Wednesday, April 26, 2017
President Trump's Problems with the Ninth Circuit: An Alternative Theory; He Angered the Brethren by insulting Judge Curiel
President Trump’s Problem With Ninth Circuit Judges: An Alternative Theory President Trump is getting skewered by federal district judges in Seattle, Hawaii, and now San Francisco as well as the Ninth circuit. The ultra-liberal Ninth Circuit is judicially trashing the Trump Administration. The judges either did not read or consider the law, the statutes, or precedence. Judge Robart in Seattle and Judge Orrick in San Francisco looked outside the record to consider campaign statements by candidate Trump in striking down the immigration and sanctuary cities orders. That is not judicially appropriate! The district judges know their anti-trump decisions will almost automatically be affirmed by the Ninth Circuit. The Ninth Circuit appellate judges know the Supreme Court cannot hear all their bad decisions. Even if reversed, the preliminary injunctions will stay in effect for years. Just blame it on the liberal justices. Let me suggest that another reason is also behind their anti-Trump animus. It goes back to law school at the University of San Francisco in the late 1960”s. The Jesuit USF was considered a “local” law school in the vernacular of the times unlike the prestigious national law schools. We were taught the law rather than policy. We learned about the Courthouse and not White Shoes. We also knew that our future was not in the Wall Street firms. Heller Ehrman, Brobeck, and Thelan, now all defunct, would not interview us. That was fine; we learnt the law. Several were destined to become incredible trial lawyers. Thus, we were also taught the realities of practicing law. One was that when you tried a case outside your jurisdiction, be sure to retain local counsel to sit at counsel’s table. Else you will be home towned. The second lesson was that judges were a “fraternity,” now a “fraternity and sorority.” They stick together. Even if initially appointed to the bench, California judges must stand for reelection. Except for the state Supreme Court justices, the elections are contested. The lesson was “Don’t run against a sitting judge, unless you expect to win.” Otherwise the judges will consistently rule against you. The problem President Trump faces with the federal judges on the West Coast is that he “took” one of them out during the election. Federal District Judge Gonzalo P. Curiel, sitting in San Diego, issued rulings against the Trump defense in the Trump University litigation. Donald Trump was unhappy with these rulings. Judge Curiel is a second generation American of Mexican descent. He was born, raised, and educated in Indiana – a Hoosier. Candidate Trump said of Judge Curiel at a May campaign rally in San Diego: “This [case] should have been dismissed on summary judgment easily. Everybody says it, but I gave a judge who is a hater of Donald Trump. He is a hater. His name is Gonzalo Curiel …. “We are in front of a hostile judge. The judge was appointed by Barack Obama …. “So what happens is the judge, who happens to be, we believe Mexican, which is great ….” Candidate Trump continued in this vein in the upcoming days. He asserted Judge Curiel had an “absolute conflict” because of his Mexican heritage: “Let me just tell you. I have had horrific rulings. I’ve been treated very unfairly by this judge. Now, this judge is of Mexican heritage. I’m building a wall, OK? I’m building a wall.” He alluded to Judge Curiel being in La Raza. Donald Trump was roundly criticized for his comments about Judge Curiel. Must people have forgotten these statements from 11 months. I believe Judge Curiel’s brethren in the Ninth Circuit have not. It's not a conspiracy of the judges - just the ethos and mores of the Bench.
Monday, April 24, 2017
Scott van Zyl disappeared last week on a hunting safari in Zimbabwe. The South African hunter was accompanied by a Zimbabwe tracker and a pack of dogs. They left their pickup track and went in opposite directions. The dogs returned hours later without van Zyl. The tracker tracked van Zyl’s tracks to the bank of the Limpopo River. He found a backpack and several large, well-fed Nile crocodiles. The 44 year old van Zyl operated a hunting safari company, SS Pro Safaris, specializing in exotic trophy kills. He marketed the company to wealthy trophy hunters. $9,000 would get you a safari to hunt seven species. His web site mentioned lions, leopards, rhinos, antelopes, buffalos, wildebeests, and zebras. It also alluded to elephants and giraffes. The company’s slogan is/was “Stop whining; Go hunting.” Nile crocodiles are a perfect killing machine. They harken back to the age of the dinosaurs with little evolution. They eat anything they can catch, hundreds of humans a year, 4 in Zimbabwe in March alone. Van Zyl forgot the maxim: “Don’t go near the water.” Zimbabwe investigators got permission to shoot the well-fed crocodiles. Van Zyl’s remains and DNA were found in the bellies of two of the crocs, a veritable croc corpus delicti. We have the making of a National Geographic or Discovery Channel Special: “Hungry Crocs Eat Hunter: The Predator Becomes the Prey.” Alas, at least three crocodiles were killed in the CSI search for van Zyl. Alas, no live coverage exists of the fabled, crocodile roll of van Zyl as they ripped his body apart. No problem; they can simulate it! The pain on van Zyl’s face as he realized he was the victim of poetic justice would have been a priceless photo, worthy of an award. The hungry crocs would be the stars of the special. Today’s graphics allow a celebratory army of antelopes, buffalo, elephants, giraffes, leopards, lions, rhinos, wildebeest, and zebras, cheering on the crocs in the demise of the trophy hunter. They could give points on the quality and style of the kill: a perfect 10 points for a quick roll with little splash.
Sunday, April 23, 2017
Ann Coulter, the University of California Berkeley, and Free Speech Ann Coulter is a lawyer and polemicist. Some will call her a provocateur. She is quite outspoken in her conservative views. She arouses strong feelings. Ann does not believe in safe spaces and trigger warnings. She accepted an invitation from the Berkeley Young Republicans and the Young American’s Foundation to deliver a speech at the University of California Berkeley on Thursday, April 27, 2017. Milos Yiannopoulous, another outspoken conservative, spoke at Berkeley last February. Riots occurred outside his speech, fueled by Antifa (Anti-fascists), a group of bullies, goons, and thugs in the greater Berkeley area. The University incurred about $100,000 in damages. Berkeley’s Mayor Jessie Arreguin apparently told the police to stand down in the Antifa riots. The results were a small version of the Baltimore riots when the police were ordered to stand down. University officials quickly cancelled Ann Coulter’s appearance for “safety reasons.” They claimed to have “legitimate concerns and credible evidence that it will jeopardize the safety of students, faculty, staff, and visitors.” They said they feared for her safety. She said she was coming anyway. They then reconsidered and said she could come on December 2 during midday at a science hall far from the central campus. December 2 is perhaps just coincidentally during “dead days” when students are studying for exams. Attendance would probably be low. Sproul Hall is usually the foci of demonstrations and protests at Berkeley. If the threat of violence from Antifa and their fellow travelers is legitimate, then it wouldn’t matter when or where she appeared. The risk exists on either November 27 or December 2, day or night. The Berkeley administrators joined others continuing to be cowed by the alt-left demonstrators and protestors. They are inherently biased against the outspoken conservatives, and hence eager to downplay the free speech rights of the conservative speakers by banning them. The muzzling of conservatives on campus is escalating as alt-left militants threaten violence. Heather MacDonald at Claremont-McKenna, Charles Murray at Middlebury, Ben Shapiro at UCLA, and the list goes on. The supine administrators make no action to bring criminal charges or disciplinary actions, including expulsion, against the academic nihilists, academic Neanderthals, and snowflakes, thereby emboldening their behavior. Berkeley, the birthplace of the Free Speech Movement, had no problem with Mahmoud Ahmadinejad, the vicious anti-Semitic, former President of Iran, from speaking on campus. Sadly, the only recourse may be what happened last week at Auburn. The Auburn administrators cancelled a speech by Richard Spencer, a White nationalist. He got a court order against the university, requiring them to allow his presentation. The judge said that there was no evidence that Spencer advocates violence. Ann Coulter may be strident, but she also does not advocate violence. I say sadly, but it may be the only recourse. A lawsuit under 42 U.S.C. §1983 is always a possibility against a public university. Remedies include attorneys’ fees and costs of suit. It would be best if the offending college officials were individually named as defendants, and then subject to rigorous discovery, including depositions. College officials might act differently when they realize they could be subject to personal liability. University regents and trustees will not turn a blind eye to large judgments because of violations of the free speech rights of speakers.
Once upon a time, in an era not long ago, the role of judges was to enforce the law and follow the Constitution. Our democracy is based on the rule of law, and not the rule of man. Then came the Warren Court, which turned the Supreme Court into a judicial legislature. The Constitution evolved into a “living constitution,” which would be molded to fit the social views of the individual jurists. “Social justice,” as defined, interpreted, and applied by progressives will become the leitmotif for judges. Some conservative Supreme Court justices succumb to Potomac Fever and become progressively liberal. Justice Kennedy is an example. He sojourns in Salzberg, Austria during the summer He is imbued with European social justice and believes international law and foreign law should be used in interpreting our constitution. European social democracy is failing the people of Europe. The framers of the Constitution rejected much of European law in drafting the Constitution. The Constitution posited a government of limited powers. The Bill of Rights is intended to protect the rights of the people., Today, judges are no longer be appointed on their judicial expertise and impartiality, but rather on their political views. Judicial appointments became partisan appointments after Senator Kennedy Borked Judge Robert Bork. The Democrats increasingly turned to the courts to advance their political goals unachievable through the political process. Republicans responded at both the state and federal level by seeking conservative appointments to the federal courts. State judicial elections have become pitched battles with out-of-state money pouring into the races. The wishes of the President on appointments cannot always be followed. Senate confirmations under the unwritten rules of the Senate can be vetoed by either Senator of the state in which the judge is to appointed and confirmed. Take the Ninth Circuit for example. California, Oregon, Washington, and Hawaii each have two very liberal Senators. Thus the Circuit judges and district court judges will be overwhelmingly liberal, whether appointed by a Democratic or Republican president. The Ninth Circuit was the most conservative when I was in law school. It has increasingly become the most liberal and likely to ignore the law and rewrite the Constitution. Judge James Robart and the three Ninth Circuit appellate judges could thereby ignore the Constitution, statutes, and precedence in tossing President Trump’s immigration ban. Judges are human. They are subject to the same emotional response as the rest of us, but are supposed to present an aura of judicial impartiality, such that the public can continue to respect the judiciary. The American people have jaundiced opinions of presidents, governors, and legislators. The judiciary should not lose the respect of the people. Judges can be activists, but most know to couch their opinions in judicial legalese. Arkansas Judge Wendell Griffin, an ordained Baptist Minister, is a prime example of a judge stepping over the line and letting his biases and prejudices blatantly show outside the courtroom for all the public to see. Capital punishment is a major social issue today. Arkansas announced it was planning to execute two death row prisoners within a few weeks. Judge Griffin issued an injunction staying the execution of eight of the defendants. He claimed it was a matter of pure property law. A supplier of one of the drugs to be used in the execution claimed the State of Arkansas was misusing the drug. He ruled, he said, purely as a property matter: “My job as a judge was to apply property law to the facts presented by the verified complaint and decide whether the medical supplier moving party was likely to succeed on its property law claim for return of vecuronium bromide.” He was most likely wrong, but that could be reversed on appeal. The problem is what he did after his decision. He went to a Good Friday anti-capital punishment demonstration and lay on a cot for 1½ hours, professing to be an executed dead man. Judge Griffin blogged: While the world meditates about divine love, forgiveness, justice, and hope, Arkansas officials plan to commit a series of homicides.” He turned his opposition to capital punishment into a political statement, which brings discredit and disrespect on the judiciary. The Alabama Supreme Court has stripped him of his power to decide capital punishment cases. Several Arkansas legislators have called for his impeachment.
Thursday, April 20, 2017
So, Jon Ossoff, the Democratic carpetbagger in Georgia’s 6th Congressional District, did not win out Democrats were salivating! The mainstream media was cheering him on. $8.3 million poured into his campaign from out of state, 95% from outside Georgia. Hollywood was backing him. Jon Ossoff, the 30 year old, telegenic Democrat was touted to be the first Democrat to win the Congressional seat in 4 decades. Newt Gingrich held the seat. Senator Johnny Isakson held it. Secretary Tom Price recently vacated it to become Secretary of Health and Human Services. The media was hyping an Ossoff victory as a rejection of the Trump Administration. President Trump had barely carried the district by 2% while Congressman Tom Price won reelection by 23%. The media focused last week on the Kansas special election for the House. The Republican candidate won that election. The media thereupon dropped coverage of that race, as if it never happened, and moved to Georgia. The problem for the Democrats and media is that their only message is the failed Hillary Clinton campaign theme: “I’m not Trump.” His media campaign was “Make Trump Furious.” They lack a positive message, just as they did in 2010, 2014, and 2016. The Republicans control 33 governorships, 32 state legislatures, and both houses of Congress. Democrats need a message to overcome the Republicans. They threw a 30-year novice into the breach. They mounted a strong ground campaign. They brought in Hollywood: Samuel L. Jackson, Chelsea Handler, Debra Messing, George Takei, Alyssa Milano. The election was heralded as a referendum on Trump. The Democrats and mainstream media were ready to celebrate the early demise of the Trump Administration DOA on Day 87. Ossoff failed. He won 48.1% of the vote. Republican Secretary of State Karen Handel, received less than 20%. Georgia though is one of the states which require the winner to receive 50% plus one vote. Else there will be a runoff between the top two finishers. Ossoff received 92,370 votes, but the 11 Republicans in the race garnered 97,937 votes. He’s gearing up for the June runoff, but he’s toast. The Democrats propped up a young Millennial with a fresh face to reflect a new face for the Party. He carried the same old “I’m not Trump” message. He’s had his 15 minutes of fame. He couldn’t even vote for himself since he lives outside District 6. CNN’s Alisyn Camerota specifically asked him on election day: “Is it true you cannot vote for yourself?” He sounded like a politician, not a fresh face in his answer: “I grew up in this district. I grew up in this community. No one knew there was going to be an election. I have been living with my Alicia my girlfriend of twelve years down by Emory University where she is a full time medical student. As soon as she concludes her medical training I will be back in the district where I grew up., but I want to support her and her career and do right by her.” Alisyn repeated the question, essentially asking for a direct Yes or No. He again responded: “I am a mile and a half down the street to support Alicia while she completes medical school. It’s something I’ve have been very transparent about. I am proud to be supporting her career. As soon as she finishes her medical career, I will be ten minutes back up the road where I grew up.” In other words, he’s just another political opportunist And a carpet bagger.
Monday, April 17, 2017
President Erdogan and his AKP Party won the Turkey referendum to reform the Turkey Constitution by 18 articles. Turkey will now become a Presidential Government with President Erdogan able to stay in office until 2029. He won because he had to. He won narrowly, 51.4% to 48.6%. He won because he controlled all the media. He won because he has used the past 6 months to chill the opposition. He won, or did he? Was the count fair, or was there voting fraud? The Organization for Security and Co-operation in Europe (OSCE) questioned the election. It found “an unlevel playing field” and ‘not equal opportunity.” It said the vote "fell short of adherence to international standards." Was the count fair, or was there voting fraud? Election observers were barred from monitoring the vote. Was the count fair, or was there election fraud? The rules were changed on counting ballots during the election. The rules required ballots to be stamped when submitted to minimize fraud. About 1 million ballots, almost the margin of victory, were stamped after submission. A person who will suppress the press, jailing more members of the media than any other country, will not hesitate to stuff the ballot box. A person who has imprisoned or purged 145,000 judges, lawyers, teachers, police, professors, military, and soccer players. will have no problem rigging the election. A person who stripped opposition legislators of their legislative immunity is not concerned by the nuances of democracy. A person who closed schools and opposition newspapers will not tolerate dissent. A person leading a war against the Kurds in Turkey and Syria will have no qualms about suppressing their vote. He lost the vote in the three largest cities of Istanbul, Ankara, and Izmir as well as the Kurdish homeland, but he still won, He polled 85% in much of Anatolia and along the Black Sea Coast. His victory may have been narrow and unexpectedly low, but he won. Fairly? The main opposition party is demanding a recount of 60% of the vote. They won’t get it. He does it all in the name of religion. He serves Allah, but he and his family have been enriched in office. He blames it all on the Gulen Movement, the Crusader nations of the West, the Kurds, the Nazi nations of the West, you name it. His response to the election results was to claim at the Ankara Airport that he won despite the attack by nations with the “Crusader Mentality.” He also called for a new referendum on restoring capital punishment to Turkey. He is vengeful and vindictive, but has a right to be so. The military imprisoned him when he was Mayor of Istanbul, and then tried to overthrow him in a bloody, abortive, incompetent coup last July. The tragedy for the world is President Erdogan and Turkey have tremendous leverage. The secular Turkey was a critical stalwart of NATO because of its location during the Cold War. Today’s Turkey is critical to the stability of Europe because it controls the spigot of Syrian refugees to Europe. President Erdogan built his support on the twin base of Islam and economic development. Istanbul was a basket case when he became Mayor. He turned it around. He fostered economic development as Prime Minister of Turkey. The economy grew at a 10% annual rate. The cities were booming. Turkey is becoming an economic basket case. The fabled Grand Bazaar is empty of customers; shops are closing The Turkish Lira is tanking. The tourist industry is moribund. His purges have struck the professional class and the middle class. His military adventures against the Kurds and in Syria are draining the economy. His fights against both Kurdish and ISIS terrorism, albeit necessary, are further sapping public morale. But he is winning. To a great extent the referendum simply formalizes the powers he has already accrued under the successive “states of emergency” imposed in the aftermath of the failed coup. One of the 18 articles grants the President the power to unilaterally declare a state of emergency. The government is planning to issue an extension of the current state of emergency, which expires later this month. Another article will make him President for Life, albeit not in those words. It provides the President can serve two successive terms of five years with the possibility of a third term, all taking effect after his current term expires in 2019. He’s 64 now. He can be President of Turkey for another 17 years until 2034. ________________________________________________________________________________________________________ I probably shouldn't publish this blog, but so be it.
Sunday, April 16, 2017
United reinforces our dislike for flying. View flying today as being crammed like sardines into an elongated aluminum cigar tube. We recognize that’s the tradeoff for low fares and the freedom to travel almost anywhere in the world in a short time. We expect the airlines to treat us with respect. Every service business should treat its customers with respect. It risks going out of business if it doesn’t. Think of the retailers, large and small, who died or are dying due to poor service. We will even put up with nickel and dime fees for luggage, upgrades, entertainment, food, changes to schedules, and even talking to live operators. We realize that flights can be delayed or cancelled. Flying can be stressful. We love getting there, and look forward to returning. It’s the hassles of travel that are stressful. We may get lucky or unlucky with our involuntary seatmate. Just treat us with respect. Many of us created personal “Do Not Fly” lists. My two never fly again airlines were U.S. Air and Northwest. U.S. Air may have changed its name, but it remained Agony and Useless Air. Northwest was Northworst. United was my primary carrier for two decades. I racked up about 1 million frequent flyer miles on United. We took the family from Massachusetts to Kauai in first class on frequent flyer miles in 1994. United was good to me. That was then. Delta was my secondary carrier. Delta and United gradually changed positions as United’s service progressively deteriorated over the past two decades. The United pilots, flight attendants, and agents were usually friendly, but they could work only so many miracles with poor service. Delays were common and luggage late. On-time rates were usually the lowest in the industry. The last time I flew United was a few years ago. They took off from San Francisco to Orange County a few hours late on a clear day. It’s now Southwest for me within California. The 2010 United merger with Continental Air Lines promised relief to flyers. Continental, rising like a Phoenix out of bankruptcy, was soaring in the marketplace. Its great service was highly appreciated by frequent flyers. The Continental management would take over the merged airline. Thus, great management would restore United to its preeminence, That was the theory. The reality is that United’s poor service survived the merger. Indeed, for six years the flight attendants from the two airlines had separate contracts until a short time ago. Only United flight attendants could fly the former United planes and Continental attendants on Continental planes. Three reasons why Americans are outraged at United. First, it was captured on cell phones. We all saw the innocent bloody and bruised passenger being dragged out of the plane. Police officers and service workers should understand that a high risk exists of being captured on video if they screw up. It only takes a few seconds to go viral. Second, we empathize with Dr. David Dao because we can visualize ourselves in his position. Third, United’s response compounded the mishandling of the situation. United’s CEO Oscar Munoz’s first response was that United had the right to do it. All you have to do is read the 46 pages of fine print carriage rules to know that. United is now on apology number four, vowing it will never happen again. Maybe! United will be a case study in how not to both create and respond to a problem. We now learn that Dr. Dao was not involuntarily removed because the flight was overbooked. It wasn’t. It was full, but not overbooked. Four crew members dead heading to Louisville to crew a flight the next morning showed up after Dr. Dao’s flight was loaded. Their earlier flight to Louisville was cancelled for mechanical reasons. If they didn’t make it to Louisville that night, then that morning flight would be cancelled, costing United, technically Republic Airlines and United, money and grief the next morning. Now it is going to cost United millions of dollars in costs and legal settlements. Dr. Dao has hired a great Chicago trial lawyer to represent him. More has come out about United’s poor customer relations. An almost similar incident occurred two weeks. An Irvine financial manager paid the $1,000 full fare to fly first class from Kauai to Los Angeles on United. He was seated, sipping on a complimentary orange juice, when a gate agent rushed on board and told him to get off because they needed to give his seat to someone more important. United threatened to put him in handcuffs if he didn’t comply. Just a few days ago a scorpion fell out of an overhead luggage bin and stung a passenger. And check out the United Airlines YouTube video of breaking guitars. That was the infamous video United was known for prior to Dr. Dao. United better hope the worse is over.