Some preliminary thoughts about President Trump's list of nominees to the US Supreme Court

 Started to research the list of nominees of President Donald Trump to the US Supreme Court.

This post has been dictated, I'm trying to edit out errors, please bear with me.

Very very very very depressing, and not for reasons Democrats claim.

 I have watched the confirmation hearing of Brett Kavanaugh, I understand the political situation and I understand the need of putting a judge through quickly and as smoothly as possible under the circumstances through the confirmation process.

And yet.

For all that Donald Trump claims that his anti-establishment, the nominees are establishment on very many levels - upper government echelon, private schools and what is most disturbing clerkships in the US Supreme Court.

I will not be revealing details that I found, it is premature at this time.

I am planning an article about this where it will be published fully with detailed analysis.

What I can tell at this time is that certain candidates and the history of their legal career give to a disinterested public observer an impression that the US Supreme Court is operated as a private quid pro quo venture, a closed order where cases are taken before the US Supreme Court are taken exclusively on the basis of personal connections, not merit.

And the recently sainted (as a person of Jewish faith who has died during the Jewish holiday of Rosh Hashanah and thus has become a Jewish saint called tzaddik) late judge Ruth Bader Ginsburg was complicit in it.

Once again not one candidate with a prior criminal defense experience, and let's remember that these judges literally decide people's life or death, specifically death because they are deciding last minute appeals from death penalties, federal and state.

In that unfortunately president Donald Trump cannot be distinguished from any other president before him including the Democrat's dears Barack Obama and Bill Clinton who both similarly put on the court exclusively judges with prosecutorial mentality.

The only Justice on the US Supreme Court who was not a prosecutor before coming to the US Supreme Court was actually the just departed Ruth Bader Ginsburg.

Now the eight remaining justices are all former prosecutors, appointed to the court by both Republican and Democratic presidents.

So for all the fights over the US Supreme Court seats between the two major parties in the United States what we the people get is, uniformly, former prosecutors with inbred notion that they can do absolutely anything including malicious and corrupt conduct in office with impunity because they are immune.

Unfortunately, president Donald Trump is following in this trend and adding people with the same mentality.

People who get appointed there by all presidents are, first, licensed attorneys - which means that the federal judges are controlled by state governments, state courts from which they take and review appeals, such a conflict of interest is not good. There is no requirement in the US Constitution that your Supreme Court judges justices must be state-licensed attorneys, or attorneys at all.

Number two is that they're all former prosecutors with the respective accusatory mentality, presumption of guilt in their minds, and long years of "enjoying" the illegally given by the US Supreme Court to themselves and to prosecutors absolute immunity for malicious and corrupt conduct embedded into their minds as a matter of entitlement.

That means that after having enjoyed a lifetime of immunity for their own malicious and corrupt conduct in office there is no way in hell that these people are going to shoot themselves in the foot and declare their own actions unconstitutional.

If we the People think that partial qualified immunity to the police given by the same US Supreme Court illegally is bad, how bad is the self-given entitlement by judges and prosecutors to do absolutely anything including corruption and crimes in a court proceeding and be absolutely immune for it to the victims of their behavior.

Number three they're mostly graduates from private including Ivy league schools and members of the American blue blood, practically hereditary top government establishment.

As such they have absolutely no real life experience of ordinary Americans and no care or concern about the plight or rights of ordinary people.

And number four, a lot of them are former clerks to the US Supreme Court justices which indicates that they were previously bound by the courts illegal code of silence to the clerks, and personal loyalty to the judges not the Constitution and the American people, and moreover that they complied with this illegal code, otherwise they wouldn't have been able to make their brilliant and financially beneficial legal careers.

It is very sad.

And we the People should put pressure on our Representatives in the US Congress to put an end to this travesty, change jurisdiction term limits and makeup of the Court.

It is our court, existing on our money and that should be serving for our benefit, not a private quid pro quo personal venture of the American new hereditary royalty.

The speech of US AG Bill Barr on the disruptive role of the judiciary in the American democracy

I am publishing the portion of Bill Barr's speech about the role of the judiciary in the legislative process and the executive decision-making without comment for now.

I do not endorse every single argument in this speech, but I do consider the speech an important food for thought for every American citizen and voter.

Time permitting, I will try to provide comments on sections of the speech regarding the role of the judiciary issue by issue.

Here is the link to the full text of the speech.


"Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch. 

In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency. 

 The Courts have done this in essentially two ways: 

 First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. 

Second, the Judiciary has usurped Presidential authority for itself, either 

(a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or 

(b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential power. 

The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. 

 As Madison explained in Federalist 51, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 

By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation. 

The “constitutional means” to “resist encroachment” that Madison described take various forms. 

As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other. 

Conspicuously absent from the list is running to the courts to resolve their disputes.

That omission makes sense. 

When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal. 

And, if the political branches believe the courts will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process — with input from and accountability to the people. 

And they will not even try to make the hard choices needed to forge compromise. 

The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts. 

In any event, the prospect that courts can meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly a false promise. 

How is a court supposed to decide, for example, whether Congress’s power to collect information in pursuit of its legislative function overrides the President’s power to receive confidential advice in pursuit of his executive function? 

Nothing in the Constitution provides a manageable standard for resolving such a question. 

It is thus no surprise that the courts have produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison v. Olson that Congress did not “disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.” 

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. 

One way courts have effectively done this is by expanding both the scope and the intensity of judicial review. 

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making. 

They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process.  

They require what we used to call prudential judgment. 

They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future. 

Such decisions frequently call into play the “precautionary principle.” 

This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry. 

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials. 

This outlook now seems to have gone by the boards. 

Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs. 

The Travel Ban case is a good example. 

There the President made a decision under an explicit legislative grant of authority, as well has his Constitutional national security role, to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting processes. 

The common denominator of the initial countries selected was that they were unquestionable hubs of terrorism activity, which lacked functional central government’s and responsible law enforcement and intelligence services that could assist us in identifying security risks among their nationals seeking entry. 

Despite the fact there were clearly justifiable security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked this public-safety measure for a year and half on the theory that the President’s motive for the order was religious bias against Muslims. 

This was just the first of many immigration measures based on good and sufficient security grounds that the courts have second guessed since the beginning of the Trump Administration. 

The Travel Ban case highlights an especially troubling aspect of the recent tendency to expand judicial review. 

The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action. 

To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. 

And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship. 

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. 

With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. 

They apply only to executive action. 

Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. 

And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives. 

The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction. 

First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. 

By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government. Both were vacated by the Ninth Circuit. 

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. 

No other President has been subjected to such sustained efforts to debilitate his policy agenda. 

The legal flaws underlying nationwide injunctions are myriad. 

Just to summarize briefly, nationwide injunctions have no foundation in courts’ Article III jurisdiction or traditional equitable powers; they 

• radically inflate the role of district judges, allowing any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; 
• they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing; 
• they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary; and 
• they displace the settled mechanisms for aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions. 

Of particular relevance to my topic tonight, nationwide injunctions also disrupt the political process. 

There is no better example than the courts’ handling of the rescission of DACA. 

As you recall, DACA was a discretionary policy of enforcement forbearance adopted by President Obama’s administration. 

The Fifth Circuit concluded that the closely related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court affirmed that decision by an equally divided vote. 

Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful —President Trump’s administration understandably decided to rescind DACA. 

Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise. 

In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide. 

Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means. 

A humanitarian crisis at the southern border ensued. 

And just this week, the Supreme Court finally heard argument on the legality of the DACA rescission. 

The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful. 

That is not how our democratic system is supposed to work. 

To my mind, the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of President George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict – decisions that lie at the very core of the President’s discretion as Commander in Chief.  
This usurpation climaxed with the Court’s 2008 decision in Boumediene. 

There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. 

For the first time, the Court ruled that foreign persons who had no connection with the United States other than being confronted by our military on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them. 

In essence, the Court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the Nation’s activities when it is engaged in armed conflict with foreign enemies. 

This rides roughshod over a fundamental distinction that is integral to the Constitution and integral to the role played by the President in our system. 

As the Preamble suggests, governments are established for two different security reasons – to secure domestic tranquility and to provide for defense against external dangers. 

These are two very different realms of government action. 

In a nutshell, under the Constitution, when the government is using its law enforcement powers domestically to discipline an errant member of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people. 

Thus, the Constitution in this arena 

• deliberately sacrifices efficiency; 
• invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and 
• dilutes the government’s power by dividing it and turning it on itself as a check, 
• at each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter. 

None of these considerations are applicable when the government is defending the country against armed attacks from foreign enemies. 

In this realm, the Constitution is concerned with one thing – preserving the freedom of our political community by destroying the external threat. 

Here, the Constitution is not concerned with handicapping the government to preserve other values. 

The Constitution does not confer “rights” on foreign enemies. 

Rather the Constitution is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. 

The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane. 

The impact of Boumediene has been extremely consequential. 

For the first time in American history our armed forces is incapable of taking prisoners. 

We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with drone or any other weapon. 

But if we capture them and want to hold them at Guantanamo or in the United States, the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation. 

The fact that our courts are now willing to invade and muck about in these core areas of Presidential responsibility illustrates how far the doctrine of Separation of Powers has been eroded."  

No discipline for SCOTUS Justice Kavanaugh: good or bad? The Trump litmus test continues

I have written on this blog many times that the election of Donald Trump has so far worked, and continues to work, as a litmus test for many ways of how the American government works, on federal and state levels.

Certain things which the law permitted the previous administrations to do, somehow becomes not permissible under this administration.

Certain things that were wrong - but not noticed - under the previous administrations, became more visible just because Trump is doing it.

I am planning a detailed overview of this phenomenon, but in this particular article I wanted to point out one extraordinary feature of the "Trump litmus test":  it has shed a light on the U.S. Supreme Court and what is very wrong about its operation over the last 100 years.

First of all, with the death of Justice Scalia (and unlawful filibustering by the Republican Senate of a nomination to SCOTUS by President Obama) and retirement of Justice Kennedy, Trump has got to fill two seats so far on the U.S. Supreme Court.

Same as President Obama, same as all presidents before him, President Trump has avoided as a plague in fitting the vacancy on the U.S. Supreme Court, the last resort in death penalty cases - candidates with criminal defense background.

The only people who have criminal law experience on that court are former prosecutors.  

Of the 9 current justices of the U.S. Supreme Court, 

1. Stephen Breyer;
2. Clarence Thomas;
3. John Roberts (The Chief Justice):
4. Ruth Ginsburg;
5. Samuel Alito;
6. Neil Gorsuch;
7. Sonia Sotomayor;
8. Elena Kagan;
9. Brett Kavanaugh,

the only U.S. Supreme Court justice who does not have prior experience as a prosecutor is Ruth Ginsburg, and yet, Ruth Ginsburg's experience as a law professor and general counsel for ACLU between 1973 and her nomination to the bench in 1980 is not the equivalent of a background in criminal defense, since the ACLU has never undertaken criminal defense, and Ruth Ginsburg in particular did not work as a criminal defense attorney.

I thoroughly dislike Hillary Clinton and did not vote in the previous presidential elections because I did not see good presidential candidates in either of the candidates running in 2016.

Having said that, I did defend Hillary Clinton, during her election campaign, in August of 2016, in my blog article when she was bashed for her actions as a criminal defense attorney and a public defender.

And, I have stated on this blog that President Obama did a disservice to this country when he nominated Merrick Garland, having bypassed a courageous female judge Jane Kelly with a public defender background, who continued to work as a public defender even after she was attacked and left for dead, because of her public defense work.

President Trump, so far, also disappointed, having nominated to the court 2 white males, both former prosecutors, having so far confirmed the trend portraying background in criminal defense or civil rights litigation as a disqualification for public office (only one justice on the U.S. Supreme Court has a qualification in civil rights litigation, and NONE - in criminal defense).  Once again, this court handles criminal cases, and, especially, death penalty cases.

With NO justices having prior experience in criminal defense, while 8 justices having experience (and indoctrination) in prosecution, and the mentality of people having "enjoyed" prosecutorial immunity - which corrupts prosecutors' minds and drives them to score convictions, without regard whether the law is followed, with an eyes on the prize, career advancement.

For 8 out of 9 U.S. Supreme Court justices, prosecutorial positions did bring a career advancement, to the top of the American government, a lifetime appointment to a position where there are no job requirements, no accountability and an unlimited power over life and death (literally), people's fates, property, and over setting the law in the entire country - without authority for doing that in the U.S. Constitution, but by "well-settled" custom.

Since 1925, SCOTUS has asked - and received - from the U.S. Congress the gift of not having to review all petitions filed with the court, on the merits.

A SCOTUS judge is the only position where the judge does not have to preside over court cases other than impeachment of the President (applicable only to the Chief Judge of SCOTUS) and does not have to discharge functions other than administrative (swearing in highest officers of the U.S. Government).

Otherwise, there is no minimum of cases to review per year for SCOTUS.

If SCOTUS chooses no cases for review in a given year, they have a right to do that, too.  Nobody can make them accountable for refusing to review the absolute majority of cases (7920 out of 8000 filed, and then, we do not have official statistics of how many cases are REALLY filed published by the U.S. Supreme Court, only approximate numbers).

Cases that SCOTUS does take for review "coincidentally" are filed predominantly by 70 attorneys, the so-called "Echo Chamber", most of them having some kind of connection to the court (former clerks etc.).

Nothing too crooked.

Judges accept gift from parties and attorneys - for themselves and for their law clerks.

Periodically scandals flare about particularly corrupt gift-taking, but no impeachment of a U.S. Supreme Court Justice occurred on that ground so far, and the U.S. Supreme Court does not have a code of judicial conduct, but does have a code of silence for its clerks and a code of PERSONAL loyalty of clerks to justices, which has nothing to do with the U.S. Constitution that gives to justices their power, within its strict boundaries.

Justice Scalia was "found dead" at a remote Texas ranch with personnel speaking only Spanish, the ranch belonging to an individual who has had prior litigation with the U.S. Supreme Court that ended up in his favor.

The duck-hunting trip of the same Scalia with a party in litigation also did not result in discipline for Scalia.

Scalia's friend on the court Justice Ginsburg, while spewing open hatred to the current President, and having done so since before his elections, continues to preside over cases where he is a party, without recusal.

As reported by an extraordinary lawsuit of an attorney out of California, Linda Shao, SCOTUS Justices not only refuse to recuse from a case involving an organization that judges ask to "sponsor" their law clerk for annual free month-long trips to London with VIP treatment by the British judiciary, but hide certain materials from Linda Shao's docket on the court, and do that systematically.

While President Trump is being investigated for "Russian collusion" by a special counsel, nobody investigates SCOTUS justices when they travel or lecture while paid by foreign governments.

In 2015, foreign sponsors paid (bought) U.S. Supreme Court justices for the following:

Roberts - lectures in Japan;

Ginsburg - lectures in South Korea; Switzerland

Kennedy with spouse - Austria;

Kagan - Israel;

Breyer - Great Britain

Ginsburg and Alito were paid by lawyers' organizations to travel abroad in 2015,

Ginsburg - to the Great Britain (paid for by the American College of Trial Lawyers), 

Alito - to the Dominican Republic, paid for by the Federal Bar Council - 

by organizations of attorneys APPEARING in front of these judges.

SCOTUS judges who reject the majority of incoming petitions, have time for side jobs.

For example, in 2015, the following side jobs were reported by SCOTUS judges (I summarized this information from justices' releases obtained by a watch-group on a Freedom of Information Request),  I have printouts of  copies of justices' actual financial disclosures for 2015 are on file.

Anthony M. Kennedy	McGeorge School of Law, University of the Pacific	$                   12,500.00
Anthony M. Kennedy	Colonial Williamsburg Foundation
Clarence Thomas	Horatio Alger Association
Clarence Thomas	Creighton University School of Law	$                   15,000.00
Clarence Thomas	George Washington University School of Law	$                   10,000.00
Clarence Thomas	J. Reuben Clark Law School - Brigham Unviersity	$                      2,225.00
Clarence Thomas	The Daily Caller	Salary
Clarence Thomas	Liberty Consulting, Inc.	Salary and benefits
Ruth Ginsburg	Trust Article Fourth U/W Martin D. Ginsburg, Trustee
Ruth Ginsburg	University of Michingan - Tanner Lecturer	$                   10,000.00
Samuel Alito	ABA Advisory Committee on the Law Library of Congress
Samuel Alito	Member Honorary Board of the Franciscan Monastery of the Holy Land in the United States
Samuel Alito	University of Kentucky	$                      6,000.00
Samuel Alito	Duke University Law School	$                   15,000.00
Elena Kagan	Harvard Law School
Elena Kagan	President and Fellows of Harvard College	$                   15,000.00
Stephen Breyer	Dana-Farber Cancer Institute
Stephen Breyer	The Pritzker Architecture Prize
Stephen Breyer	Penguin Random House LLC, Royalty Income	$                 116,774.61
Stephen Breyer	The authors Registry, Inc; Royalty Income	$                         384.93
Stephen Breyer	Penguin Random House LLC, Nonemployee compensation	$5,000

Note that, when SCOTUS Justices are paid lecturers in colleges and universities, they were disqualified from hearing immigration cases where colleges and universities were claiming standing and injury from Trump administration's "travel ban".

None of them recused.

And none of that became a burning issue in the American media or for the American public.

No "emolument clause" was invoked, no demonstrations held in the streets, no lawsuits filed and no criminal or impeachment investigations commenced.

In fact, complaints against U.S. Supreme Court justices die on filing - because NOBODY "under the law" in the United States may discipline a SCOTUS justice.

As was shown in the case of Justice Kavanaugh.

One might say that complaints against Justice Kavanaugh were politically motivated - since he was on the federal bench for 12 years, from 2006 to 2018, with no complaints filed against him.

The trigger for the complaints was not the judge's behavior, but him having been nominated by President Trump who certain people want to filibuster no matter what he does.

From that point of view, complaints against Kavanaugh, likely, did not have merit and were unfair.

But, that is not the point I am making here.

The point I am making is that the complaints, fair or unfair, meritorious or not, were not even REVIEWED by federal judges - BECAUSE Judge Kavanaugh has become a U.S. Supreme Court Justice Kavanaugh, and as such, unreachable by judicial discipline.

He (and his 8 associates) have a job that has

1. no requirements of a minimum caseload;
2. a marble palace and a practically unlimited budget - for 9 people to review court cases, for which the same court had, initially, a single room in the Capitol building;
3. plenty of time to go, during business hours, to 
1. talk to law students;
2. talk to bar associations (all expenses paid for travel and accommodations);
3. write books, sell them and advertise them;
4. lecture for money;
4. an ability to allow themselves to accept gifts in money and in kind for themselves and for their personnel from parties and counsel in litigation, and from foreign governments and entities - 

with NO ACCOUNTABILITY whatsoever.

The "phenomenon" of no discipline for a U.S. Supreme Court Justice BECAUSE he is a U.S. Supreme Court Justice was caught by the media because the complaints were against a Trump-nominated Justice.

But, the same applies to all other judges of this court.

Isn't it time to demand from the newly-elected democratic House in the U.S. Congress to stir up this sinecure that has nothing to do with the authority given to this court (a limited authority, mind) by the U.S. Constituion, and to re-establish this court the way it was planned by the "Founding Fathers" in the first place - 

not as a lifetime graft-making sinecure without any accountability and unlimited power, 

but a court of law that must resolve ALL incoming petitions on the merits.

If they do not have enough justices to review all incoming cases - expand the court.

If we have 150 justices of the U.S. Supreme Court, and if they have a strictly enforceable code of conduct, limited terms and a prohibition on making laws, and on accepting gifts of ANY KIND from the public and especially from foreign governments, entities and individuals - maybe, then, we will look the way we declare ourselves to be, a democracy?

Because the way SCOTUS is set up now smacks of a monarchy.

The 10th Amendment, its reach, its consequences and how it is played by state and federal governments.

Donald Trump's presidency has stirred to life interest to law and Constitutional Amendments which did not previously draw much public attention.

One of the previously obscure Constitutional Amendments that the public did not feel attracted to is the 10th Amendment, one of the main bases of separation of powers between the state and federal government.

The text of the 10th Amendment is as follows:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Let's look at it once again, in a more structured format:

The powers 

• not delegated to the United States by the Constitution, 
• nor prohibited by it to the states, are 
• reserved to the states respectively, or 
• to the people.

It is quite peculiar how the 10th Amendment is - is not - mentioned and is - and is not - litigated nowadays, and how the public mislead as to is meaning, which is quite plain and unambiguous.

Let's look at the recent and not-so-recent judicial decisions regarding interpretation of the 10th Amendment.

The 10th Amendment is often equated with the so-called "police power" - of the states, not the federal government.

==
Quote:

The authority for use of police power under American Constitutional law has its roots in English and European common law traditions.^[2] Even more fundamentally, use of police power draws on two (Latin) principles, sic utere tuo ut alienum non laedas ("use that which is yours so as not to injure others"), and salus populi suprema lex esto ("the welfare of the people shall be the supreme law"), to justify restriction of individual liberties in order to protect the general welfare.^[2] The concept of police power in America was further expanded in a series of notable court cases in the late-nineteenth and early-twentieth centuries, including the landmark 1851 Massachusetts Supreme Judicial Court case Commonwealth v. Alger, and the 1905 Supreme Court case Jacobson v. Massachusetts. 

Unquote
=======


So, here are some "police power cases" that have been made by American courts - as an example of laws "made" by courts in the U.S. - completely at a whim, of courts, or those politically and financially powerful forces that make courts tick.  

Vaccination decisions by the U.S. Supreme Court: 

the 10th Amendment is alive (1905), and the 10th Amendment is dead (2011)

Jacobson v. Massachusetts, 197 U.S. 11 (1905), a 1905 case, 
is a case challenging mandatory smallpox vaccination in the state of Massachusetts as a violation of individual 14th Amendment rights.

The U.S. Supreme Court refused to find a 14th Amendment violation in mandatory smallpox vaccination and pointed out that mandatory smallpox vaccination, as protection of public health, is within lawful police power of the state of Massachussetts.

The court did point out that

"if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

Mugler v. Kansas, 123 U. S. 623, 123 U. S. 661; Minnesota v. Barber, 136 U. S. 313, 136 U. S. 320; Atkin v. Kansas, 191 U. S. 207, 191 U. S. 223.

Of course (as a side note), the same U.S. Supreme Court, 20 years after deciding this case, has asked the U.S. Congress for a "right" to pick and choose whether to exercise such a duty and whether to give effect to the Constitution - and the U.S. Congress did give the U.S. Supreme Court a "right" to pick and choose its cases on a whim, so, after 1925, we have in the United States a discretionary enforcement of the U.S. Constitution, and, as a result a discretionary Constitution, and a super-powerful U.S. Supreme Court acting as a super-legislature - which is confirmed by the recent circus of judicial appointments and attempts for judicial appointments to that court:

• "the stolen seat" of Merrick Garland;
• the nomination of Neil Gorsuch by President Trump; and especially
• the nomination of Brett Kavanaugh by President Trump, and
• the recent #ribsforruth not-so-much-of-a-joke campaign when Ruth Ginsburg, a 85-year-old judge of the court who broke 3 ribs after a "fall in her office" (drunk, asleep or out of it on medication or due to physical frailty or dementia - we do not know since the court refuses to release its judges' medical records, and we are reduced to being force-fed ads about her workouts and interviews with her paid trainer of many years) - the public went so far as openly stating that it will accept a "stuffed Ruth" (I preserved a scan), so far as there is an appearance of a filled seat, the "stuffed Ruth", or her law clerks, rule against Trump, and Trump does not get to appoint a 3rd judge. Note that Ginsburg, by rules of judicial ethics, should be nowhere near Trump's cases - because of her public hostility towards Trump - yet, she sticks to these cases like glue, refuses to recuse, rules against Trump in dissents and is glorified for her obvious judicial misconduct by a large portion of the American public.

Had the court not turned itself into a super-legislature, lamentations that death or retirement of a single person, a judge of any court, would change, for decades, the law of a 345-million country positioning itself as a democracy and a leader in defense of human rights would not have been possible.

But - back to the 1905 vaccination case, one of the main cases on the subject of the state police power in the United States.

Here is what the U.S. Supreme Court has said in that case:

"The police power of a State embraces such reasonable regulations relating to matters completely within its territory, and not affecting the people of other States, established directly by legislative enactment, as will protect the public health and safety.

While a local regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, the mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.

It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health."

So, mandatory vaccination is within the state police powers and does not violate individual 14th Amendment rights - according to the U.S. Supreme Court, as of 1905.

According to the same U.S. Supreme Court, as of 2011, 106 years after Jacobson v Massachussets, 

• states have mandatory police powers to order vaccination as a public health issue, 

BUT

• state courts are not allowed to decide the issue of remedies of victims of such vaccinations - children who were injured or died as a result of vaccinations.

One decision is in direct contradiction to the other.

If it is a state decision to order vaccinations, within the state police power to provide general protection of public health, safety and morals, it is also the state police power to secure access to state courts for victims of such vaccinations.

There is no bar to file a lawsuit in state court against a manufacturer of any medicine other than vaccine and for anybody but a child injured or killed by such a vaccine.

In other words, an adult injured or killed by the vaccine (the adult's legal representative in this case) is allowed to sue the vaccine manufacturer - but a child is not.

And, an adult or a child injured or killed by any medicine other than a vaccine is allowed to sue the medicine manufacturer in state court.

If that is so, then, protection of individuals who were injured or killed by vaccination is within the state power.

Regulation of access to state courts, for state-recognized "causes of action", actionable/legal wrongs - is also within state powers, and neither the U.S. Congress, nor the U.S. Supreme Court could deem it somehow a federal right to regulate.

Yet, we have, from the same U.S. Supreme Court, two cases, both on the issue of vaccination, decided 105 years apart, both still "on the books", one saying that mandatory vaccination is within the state police power to protect general public welfare (health, safety and/or morals), and the other - saying that blocking access to child victims of vaccination to state courts seeking state-recognized remedies for state-recognized legal wrongs (negligence, products liability) is somehow a federal issue and federal government may forego the 10th Amendment, 14th Amendment and 1st Amendment Petitions Clause mandate and to simply forbid children injured or killed by negligently manufactured or applied vaccines from having any legal remedy in state court, while allowing adults to have such a remedy and while allowing children and adults to have such a remedy if injured by any other medicine.

Bruesewitz v Wyeth, a 2011 case, is the 10th Amendment put on its head.

The case was decided 7 years ago, and I do not see any significant coverage of this case in the press, especially now, when the campaign to vaccinate children has descended into the gutter and where anybody opposing vaccination of children regarding a particular vaccine, based on particular grounds of the vaccine's dangerousness, becomes the target of finger-pointing, ridicule and accusations of being a brainless "anti-vaxxer" and child abuser.

So, you are a brainless "anti-vaxxer" and child abuser if you do not vaccinate your child and, as per the U.S. Congress and the U.S. Supreme Court, your child is not entitled to access to court if he/she is injured or killed by that supposedly "safe and effective" vaccine.

That is one bizarre aspect of mis-application of the 10th Amendment.

In fact, the 10th Amendment has been killed in the case Bruesewitz v Wyeth, for the benefit of vaccine manufacturers who craved a captive market (children) for the product with an extremely short shelf life, and received it - from the federal government.

Yet, there was absolutely no grounds for the federal government to legislate under the state police power regarding access to court of victims of negligence of doctors or vaccine manufacturers, where acts of negligence occurred within states and had nothing to do with any powers reserved to the federal government.

In this case, power and money overpowered reason and "the rule of law" - and children's right to health, life and at least for being compensated for the loss of either or both.

So, here both the 10th Amendment and the children lost to money and power.

Female genital mutilation

I've seen a lot of angry comments to the recent decision of a federal judge declaring unconstitutional federal criminal law where the U.S. Congress has made female genital mutilation a crime.

And that is true - but it is also true that, in vaccination cases, there is nothing commercial or economic in a child being injured, permanently disabled or die from application of a vaccine.

The judge was correct, though, that making FGM a crime is a matter for state legislatures.

And, state legislatures - I bet - will not make FGM a crime, because it will be immediately challenged on grounds of gender discrimination and equal protection, and making genital mutilation a crime without regard to the child's gender will cause an uproar in Jewish and Muslim communities where male genital mutilation (circumcision for religious reasons) is routinely practiced and is considered a requirement of the faith.

So, here the 10th Amendment won, but the female children lost.

Occupational licensing of illegal aliens

New York State, California and, likely, other states by now, have begun issuing occupational licenses (law, medical etc.) to illegal aliens back during the President Obama's presidency, with President Obama's opposition.

And here there is an interesting trick of the law that does not often - or at all - get discussed in the mainstream media or in the mainstream legal scholarship in the United States.

While it is proper, under the protection of national security powers, for the federal government to regulate immigration, who does or does not work within a state is a purely state power falling within protection of the "general welfare", police power doctrine protected by the 10th Amendment.

So, the federal government is within its rights to "adjust immigration status" - issue permits to foreigners to stay within the United States, temporarily (visas) or permanently (green cards), or accepting foreigners into citizenship (naturalization).

But, the federal government oversteps its authority given to it by the U.S. Constitution by issuing work permits.

At the same time, it is, of course, bizarre when states issue, specifically, law licenses to illegal aliens - because attorneys are required to take an "oath of office", and swear their allegiance to the federal and state laws and to the federal and state Constitutions.

It is bizarre when a state accepts an oath from attorney of loyalty to the Supreme Law of the Land (which includes federal immigration laws) while knowing that that attorney is, and has been for years, violating those same laws - himself and, often, by bringing into the country and harboring his illegal alien relatives, a federal felony.

State education

I see a lot of article and comments condemning actions of Betsy DeVos, the U.S. Secretary for Education.

Commentators accuse DeVos of undermining public education in various ways.

Recently, there were a lot of accusations because of DeVos's change of federal rules of handling sexual assault of campuses.

From the point of view of a constitutional lawyer and a criminal defense attorney, DeVos actually did not go far enough - she did not forbid ANY procedures handling sex assault complaints by college administrations, as she should have, because it is a state CRIME, and states already provided for both civil and criminal procedure for addressing this issue where it is supposed to be addressed - in court.

DeVos is now vilified because - the horror! - she introduced cross-examination of the accuser (the right of the accused guaranteed in criminal proceedings by the 6th Amendment's Confrontation Clause) in "proceedings" on campus substituting the police, prosecution and state courts and handled by people who have neither training nor authority to hold such quasi-criminal proceedings, with long-reaching, life-changing consequences for the accused. 

Here would be a good time to recall the 10th Amendment.

DeVos, as a federal public official, has no duty to finance or provide for public education in the states.  That duty is squarely, under the police power, the 10th Amendment, on the shoulders of state officials - who are answerable to the public for any mishaps in that area.

And, DeVos certainly has no right to substitute criminal investigations or prosecutions - and there should be, and I am sure that there will be a lawsuit like that by the accused who would tell her that.

Under the 10th Amendment.

It is the state power to control state crime.

And states already provided for how they want that control to be handled, by state police, state prosecutors and state courts.

Not by college administrators.

But, invoking the 10th Amendment in such contexts is inconvenient - because beating federal government for state failures looks kind of stupid, don't you think?

Public safety and the new "duty" to support police power of the state by federal government while there is no duty for the states to help federal law enforcement

Unless you can earn money by that stupidity, of course.

Like New York State Acting Attorney General Barbara Underwood is doing - by engaging a political activist judge to squeeze federal taxpayers for millions of dollars in order to finance irresponsible fiscal policies of the New York State government.

Imagine.

Sooner or later, any parent has this conversation with his child:

• Child: I am old enough to know what I want, and I want XYZ
• Parent: you are also old enough to get a job, earn money, and buy what you want with your own money

It is a common sense approach.

In the separation of state and federal governments, it is also a constitutional, 10th Amendment approach.

The states have a right - and obligation - to secure general welfare of their residents, to enact and enforce laws that would protect general health, safety and morals of the public.

The states also have an obligation to generate money, on their own, to be able to discharge these duties. 

There is no federal law forcing the federal government to finance state needs.

Sometimes, the federal government does provide some discretionary funds (discretionary - meaning, no obligation) to the states.

Lately, this discretion of the federal government was put on its head, and the states that played fast and loose with taxpayer money and thus are not able to make ends meet to discharge its police power duties decided that the discretionary (no obligation) money have become actually the obligation of the federal government (meaning, obligation of taxpayers from other states), simply because particular states cannot put together a workable fiscal policy and to properly arrange financing of the state governments.

That challenge was brought under the pretext of "resisting Trump" by the unlikeliest of civil rights defenders - by state attorneys General.

Now, since the beginning of this blog, in March of 2014, I have been writing about the hypocrisy of the New York State Attorney General (Eric Schneiderman at the time) who, while basing his election campaigns on defense of human rights, once elected, appeared in court OPPOSING individual lawsuits of New York residents claiming violation of their human rights by the government.

I suggested, in 2014, for the New York State AG to be truthful and tell the voters in the election campaign exactly what he is going to do once elected - or re-elected:

FIGHTING AGAINST YOU

If you elect me as Attorney General,

• I WILL FIGHT AGAINST YOU IN CIVIL RIGHTS LAWSUITS BROUGHT BY YOU, USING AGAINST YOU YOUR OWN HARD-EARNED TAXPAYER MONEY;
• I WILL REPRESENT AGAINST YOU THE CORRUPT JUDGES YOU SUED AND WILL FIGHT YOU TOOTH AND CLAW TO DISMISS LAWSUITS AGAINST SUCH CORRUPT JUDGES CLAIMING THAT NO MATTER WHETHER THOSE JUDGES ARE IN FACT CORRUPT, THEY ARE ABSOLUTELY IMMUNE FROM YOUR LAWSUIT AND YOU MUST REMAIN VICTIMIZED AND WITHOUT ANY REMEDY;
• I WILL REPRESENT GOVERNMENT OFFICIALS WHO VIOLATED YOUR CONSTITUTIONAL RIGHTS AGAINST YOU, WHILE YOU ARE SCRAMBLING TO FIND AN ATTORNEY WHO IS NOT AFRAID TO SUE THE GOVERNMENT OR TO PAY FOR HIS SERVICES;
• I WILL INVOKE EVERY JUDGE-CREATED DOCTRINE THERE IS ON BEHALF OF GOVERNMENTAL OFFICIALS TO PROTECT THEM FROM YOUR LAWSUIT, NO MATTER WHAT KIND OF FRAUD OR CONSTITUTIONAL VIOLATION THEY COMMITTED AGAINST YOU AND NO MATTER HOW MUCH YOU WERE HARMED BY THEM;
• I MIGHT EVEN ASK THE COURT TO HAVE YOU PAY THE LEGAL FEES OF GOVERNMENT OFFICIALS YOU SUED FOR FRAUD AND CIVIL RIGHTS VIOLATIONS

I also published, in 2016, when Obama was President, entire lists of dockets from federal courts showing how exactly the New York State Attorney General is opposing civil rights lawsuits against New York State officials accused of violating individual constitutional rights in the state.

All of what I said in 2014, when Obama was President, is as applicable at present, when Trump is President.

State AGs, including the New York State AG, 

• continue to OPPOSE civil rights lawsuits in court, 
• continue to represent, at taxpayers' expense, government officials accused by citizens of misconduct and corruption, instead of prosecuting them, 
• often seek from the court a punishment against civil rights litigants for bringing civil rights lawsuits against the government officials violating their civil rights, as well as to make them pay attorney fees - in other words, to make them BOTH finance his work as taxpayers AND as litigants, and to finance his work not to protect their civil rights, but to protect violators of their civil rights.

Only now they are pretending they are also defending civil rights of a particular part of state population - illegal aliens.

And, they are defending the non-existing "right" of states to make the federal government to finance state policies of harboring illegal aliens (a federal felony) - now presented as the states' 10th Amendment power to "secure and protect public safety" - at federal taxpayers' expense.

See, for example, what acting New York State AG Barbara Underwood said in her recent public statement:

The "public safety" victory - is the supposed "right" of state governments to receive GIFTS (grants) from the federal government to do what is their duty to do (and finance, with their own means) in the first place - secure public safety.

Underwood remembers that the police power is the power separate and distinct from the federal government:

And it is true - as with any emancipated child - you earn your own money (collect your own taxes, run your own state-owned enterprises for profit), you use your earned money in any legal way you want.

But, the emancipated child has a right not only to SPEND the money, but to, in the first place, EARN it.

Here the State AG has a memory lapse:

In other words, New York, the state from which taxpayers run because of corruption of its government, high taxes and waste, forced the entire country (federal taxpayers, since the U.S. Attorney General was sued in his official capacity, representing all U.S. taxpayers) to finance its welfare programs for illegal immigrants.

In other words, the employers will get their "right" to hire illegal aliens, paying them under the table much less than the legal wage that legal residents and citizens would have been paid, New York taxpayers will foot the bill of providing for their public education, health and for policing additional crime coming from illegal immigrants (including gangs), and federal taxpayers will be forced to pony up 29 million dollars for New York State to continue its harboring of illegal aliens, once again, a federal felony.

And the person who obtained this "civil right" is Barbara Undrewood - 

• the person who will fight your civil rights lawsuit in court, on behalf of the government;
• who will represent every corrupt public official in court, at your expense as a taxpayer, but against you.

And, this "victory" is "won" by Underwood in judge Edgardo Ramos's court - under the 10th Amendment.

Police power.

Imagine an emancipated child who says - yes, I am old enough to earn the money, and I do earn the money, but, I have squandered my money on betting, drinking, what not - so, since you were giving me money before, you now MUST give me money for my living expenses, because now it is my right.

The 10th Amendment does not presuppose a right to rescue bankrupt state officials who cannot properly secure or manage state finances to discharge their own state duties.

And, State AGs, unless they stop opposing civil rights in court, may not call themselves civil rights defenders.

The only thing they protected was not public safety, but New York State's right to squander more federal taxpayer money on its irresponsible, and criminal, handling of the crisis of illegal immigration.

And that is very far from what the 10th Amendment allows it to do.