Relevant and even prescient commentary on news, politics and the economy.

Oh, But Mr. Trump, Obama WAS Working For the American People Last Thursday. (!)

Looking at Air Force One @ MIA. Why is he campaigning instead of creating jobs & fixing Obamacare? Get back to work for the American people! 11:19 AM – 3 Nov 2016

Obama taunts Trump after aides reportedly take his Twitter account, Colin Campbell, Yahoo News, yesterday, quoting a Trump tweet from last Thursday

Is there really any work of more importance for the American people (!) than campaigning to defeat his man?  Of course not.

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Yup. Comey’s a Goner.

President Obama briefly addressed the FBI’s reopened investigation into Hillary Clinton’s email practices for the first time, saying in an interview posted Wednesday that the agency does not “operate on innuendo” and emphasizing that there is no evidence that the Democratic presidential nominee had violated the law.

“I do think that there is a norm that when there are investigations we don’t operate on innuendo, and we don’t operate on incomplete information, and we don’t operate on leaks,” Obama said in the interview with NowThis News, which was filmed Tuesday. “We operate based on concrete decisions that are made. When this was investigated thoroughly last time, the conclusion of the FBI, the conclusion of the Justice Department, the conclusion of repeated congressional investigations, was she had made some mistakes but that there wasn’t anything there that was prosecutable.”

Obama on FBI: ‘We don’t operate on innuendo’, David Nakamura, Washington Post, today at 11:46 a.m.

I’m sooo glad that President Obama reads Angry Bear.

Now, Mr. Obama, please read this post of mine.  And this one of mine.  Because you may be the only one who make these points and make them heard, before any more days of early voting go by.

And btw, although I certainly have some issues with Hillary Clinton but unequivocally supported her all along once she won the nomination, the intensity of my support is greater right now than at any earlier point.

I cannot–cannot–overstate the depth of my anger toward Comey.

Cannot.

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WHY OBAMA SHOULD FIRE COMEY*: Comey himself makes clear that he either does not understand what a law enforcement cover-up IS, or he knows what it is but acted out of fear that others may not. That’s a profoundly dangerous message to law enforcement and prosecutors nationwide. As well as to the public.

According to senior F.B.I. officials, Mr. Comey felt that he would be breaking his pledge of transparency to Congress if he did not reveal the new information from the Weiner case. And he believed that the bureau would be accused of suppressing details to benefit Mrs. Clinton — an accusation that he believed could do lasting damage to the F.B.I.’s credibility.

10 Questions (and Answers) About New Email Trove, Michael S. Schmidt and Matt Apuzzo, New York Times, yesterday

As it stands, we now have real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation. Perhaps worst of all, it is happening on the eve of a presidential election. It is antithetical to the interests of justice, putting a thumb on the scale of this election and damaging our democracy.

James Comey is Damaging Our Democracy, Jamie Gorelick and Larry Thompson, Washington Post, yesterday

You know what is the scariest and most absurd part of Comey’s offered reasons? That he was afraid he would be accused of a cover-up.

Please understand, he’s saying one of two things: Either he himself thinks that not releasing raw information learned through a search warrant, the significance of which his agency does not yet know because it needs a new search warrant to learn more, amounts to a cover-up. Or he himself knows it does not, but is so cowed by the prospect that some political forces will erroneously call it that, that he releases raw information learned through a search warrant.

That alone should cause Obama to fire him. Does Comey also think it’s a cover-up to withhold from the public information learned through grand jury testimony? Does he think that OTHER law enforcement agencies should announce to the public raw information learned through a search warrant?

And does this definition of cover-up apply only just before an election, to information about a candidate? He did say, after all–stunningly; this IS the FBI director, remember–that his very purpose was to “inform” the public about new, utterly raw information about a candidate (for president, no less) obtained through law enforcement policy powers.

Where exactly does he think this use of police investigatory power ends?

I think Obama needs to make clear that it ends well before where Comey has now said it ends. And he needs to do that NOW, not after the election.

Something about informing the public before the election.  As Comey himself would say.

In this instance, though, it would be about informing both the public and law enforcement and prosecutors’ offices around the country that, the FBI director’s statement and actions notwithstanding, the law does forbid the use of raw investigatory information obtained through search warrants, grand jury testimony and other means, with the exception of information contained in police reports and in indictments and other court papers available to the public.

Comey has seven years remaining on his 10-year term, but the president can fire him for cause.  Anyone who thinks that statement of his does not constitute cause does not understand the significance of what Comey actually said.

Obama rarely explains things; that’s been a huge problem throughout his presidency and is a large part of the reason for the Democrats’ massive midterm electoral losses, in 2010 and 2014.  But this should not be hard to explain, because it’s just not very complicated.  He can quote this:

Actually, the idea that materials gathered in a governmental investigation resolved without prosecution should, in the name of transparency, be made known in summary form when relevant for the guidance of voters is quite frightening.

– Comey’s mistaken quest for transparency, Donald B. Ayer, Washington Post, yesterday

Donald B. Ayer, the post states under his byline, served as U.S. attorney for the Eastern District of California, principal deputy solicitor general and deputy attorney general under Presidents Reagan and George H.W. Bush.

Comey does not understand the fundamental nature of police and prosecutorial investigatory powers, either in and of itself or in that public misunderstandings of it should itself alter fundamental nature of police and prosecutorial investigatory powers.  He has misinformed the public, police and prosecutors about this.  This misinformation should not be allowed to stand.

It doesn’t matter whether the misinformation is because Comey is dismayingly weak or instead just stupidyingly stupid.  We need him gone, and his instruction on police and prosecutorial informational obligations corrected.   This is profoundly serious stuff.

Really.

____

* UPDATED: Reader J.Goowin posted this in the Comments thread:

J.Goodwin

October 31, 2016 10:48 am

President Obama probably should not fire the director of the FBI for cause just before the election in reaction to the director’s apparent political efforts. Even asking for his resignation before the election is probably a bad political move.

He’ll certainly be packing up his desk the day after the election though.

Upon reconsideration, I agree that given how very close we are to the election, Obama should just wait until afterward to fire Comey.  But for the reasons I discussed in this post, Obama should fire him shortly after the election, and explain exactly why.

This post’s title originally was: WHY OBAMA SHOULD FIRE COMEY, NOW.  It no longer says “Now.”

Updated 10/31 at 12:15 p.m.

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Obama should tell the public specifically—in meticulous detail—what the Syrian refugee vetting process IS. Since Clinton once again failed to do that.

There has been a great deal of concern about the U.S. Refugee Resettlement Program. Are we letting terrorists into the United States? How much do we know about the Syrians being admitted? Is our vetting process strict enough?

For more than two decades, I’ve devoted my professional life to refugee resettlement, working and collaborating with nongovernmental organizations, the U.N. Refugee Agency and the U.S. government. Now I lead one of the few global agencies involved both with refugee resettlement for displaced communities and in the policy sphere.

Here are the facts:

— America already uses strict refugee vetting. Here are the facts., Sasha Chanoff, op-ed today in the Washington Post

The facts are a multi-step, lengthy process.  Multi-step.  Lengthy.  Why does Clinton repeatedly fail to detail this in response to Trump’s outlandishly false representations?  And since Clinton refuses to do so, why doesn’t Obama take up that slack?

I forgot to include that issue in this post this morning.  And it’s beyond frustrating.

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“Why would you want to be associated with a party that’s so awful?”

This morning I overheard a part of a conversation between two 30-ish old high school friends, both from career-military families; their high school was on a military base.  One is a disabled Marine veteran, having lost his right leg below the knee, significant muscle in his left leg, a good part of the movement in his right hand (he’s right-handed), and enough of his colon to wear a colostomy bag, when he stepped on an explosive during deployment in Afghanistan, ending his plan to be career Marine.  During an earlier deployment in Iraq he watched as a friend of his was blown up by a suicide bomb in a car.

His friend was in the Navy for two years and then in a National Guard unit for several more.

Neither is a college graduate, although both of their wives are.  At least one, the Navy vet, is a comedy-talk-radio devotee, which I think means right-leaning.  Both of their families are decades-long Republicans.

Their conversation was about junk mail.  The Navy vet, one of my neighbors (I live in a college town, but one that has a good number of military vets and a major veterans’ hospital, which makes for a nice mix, in my opinion), made some off-hand comment about it, which I didn’t hear.  The disabled Marine vet responded, “Oh, yeah.  It’s all that campaign stuff.  I said to [I think he said, his mother, but I’m not sure], ‘Why would you want to be associated with a party that’s so awful?”  His friend said, “Yeah.”

What struck me was the indictment of the party, not merely of Trump.

I was so glad to read this morning about Obama’s speech last night in Ohio, in which he indicted the Republican Party itself for Trumpism—a change from the tack he took in his convention speech in July.  The purpose is to–finally–force Clinton to make a serious effort to swing control of the Senate and the House.

I also was struck by Paul Krugman’s column this morning, the purpose of which–notwithstanding its title, “The Clinton Agenda”—is to try to shift the discussion from the Clinton-Trump contest, whose outcome no longer is in doubt, but to which party controls Congress.  Because which party controls Congress will determine whether or not federal policy shifts to what a large majority of Americans want—especially on climate-change-related law, but also on so much else on which there is broad public consensus.

The WikiLeaks-released emails from John Podesta seem to be largely-irrelevant history.  They show the dismaying extent to which Clinton and her aides, other than Podesta, failed so completely, for so very long, to grasp the nature of this election cycle.  But they continue to matter unless Clinton finally does recognize that most of the policies that progressives so care about—foremost, I believe, the policies (a.k.a., law) that the Supreme Court and the lower federal courts and federal agency heads will determine—are supported by the moderates she so fears reminding that she’s a Democrat, and who may decide to vote Democratic for Senate and House precisely on that basis.

Obama talked yesterday only about the Trumpian awfulness of the Republican Party itself—a subject that certainly deserved a speech all its own.  But Clinton should pick up the fiscal and regulatory mantle from her biggest cheerleader pundit and campaign for a Democratic-controlled Congress.  He says she’s done enough on that, but then belies that in the rest of his column.

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Trump is wrong. Hillary Clinton didn’t start the birther claim. New Jersey Muslims standing on rooftops did.

Hillary Clinton and her campaign of 2008 started the birther controversy. I finished it. I finished it, you know what I mean. President Barack Obama was born in the United States, period. Now we all want to get back to making America strong and great again.

— Donald Trump, today

I took that quote from Paul Waldman’s post at the Washington Post’s Plum Line blog titled “Donald Trump just summed up his entire despicable campaign in 30 seconds.”  Waldman then says, “Neither Hillary Clinton nor her campaign ever questioned Obama’s birthplace in 2008, as Trump claims. Every fact-checker has verified that. Trump is lying.

Lying?  Nah.  I think, instead, that Trump just has Clinton and her earlier presidential campaign confused with one of the groups of New Jersey Muslims on rooftops, and the year 2008 with 2001.  I’m pretty sure I read somewhere that the Obama-birther claim originated back in 2001 in New Jersey by people standing on rooftops and cheering as the Towers fell.

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Liberals, and especially African-American liberals, should not encourage Senate confirmation of Garland to the Supreme Court

Repubs apparently now think they can have the last laugh.  Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins.  But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.

— Me, here, yesterday

Today, Greg Sargent writes at length about that possibility:

[T]here is a scenario worth entertaining here in which Obama has the last laugh — and the GOP posture ends up leaving Republicans with only downsides, and zero upsides.

That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.

The Republican argument for refusing to consider Garland (or anyone Obama nominates) is that the selection of the next justice is so hugely consequential that only the next president should make that choice, so that the American people have a say in it, by choosing who that president will be. Lurking behind this rationale is the understandable fear that if the court is tilted in a more liberal direction, it could deal a serious blow to a number of conservative causes — so better to roll the dice by holding out and hoping a Republican is elected president.

But with Donald Trump tightening his grip on the nomination, and the more electable “establishment” GOP candidates falling like dominoes, the prospect of Clinton winning the presidency is looking very real, and may continue to look even more likely as the campaign progresses. Republicans themselves fear that a Trump nomination could cost them the Senate, too. If all of that happens, Republicans might see no choice but to try to confirm Garland in the lame duck, before Clinton takes office and picks a nominee, possibly with a Dem-controlled Senate behind her. Some Republicans are already floating this idea.

But Obama could decline to play along with that scenario.

His post is titled “How Obama could get last laugh in Supreme Court fight.”  He posted this update:

It occurs to me that I probably should have argued that in this scenario, Democrats and liberals would be getting the last laugh, as opposed to Obama getting it. After all, Obama by all indications does want Garland confirmed; he’d merely be deferring to Hillary after the election. And liberal Dems (some of whom are already disappointed by the Garland pick) would be getting their preferred outcome. I’m not predicting this will happen, just floating it as an interesting possibility. You may also see some liberal pressure on Obama to do this, if Democrats secure a big victory in November (though whether Obama would bow to it is anybody’s guess), which would also be an interesting scenario to see play out.

But liberals should not push this man’s confirmation, and certainly African-Americans should not.  To quote Politico’s Josh Gerstein, “A former prosecutor, Garland often split with his liberal colleagues on criminal justice issues.”

Garland would not bring the court leftward in the absolutely critical realm of criminal justice issues, including jurisdiction to challenge via federal habeas corpus petition anything state-court criminal convictions or sentences on grounds that some aspect that lead to the result was unconstitutional–including police or prosecutorial misconduct and ineffective assistance of counsel, and including immunity of cops and prosecutors from civil liability in civil rights lawsuits.

That, in fact, reportedly was a big plus for him in Obama’s opinion in 2009 and 2010 when he was being considered to replace Souter and Stevens–even though the Dems controlled the Senate.

Thomas Friedman, of all people, had a terrific line about Obama in his NYT column a day or two ago, something like, “Let’s face it; you wouldn’t want President Obama to be the one selling your house for you.” The column, which really was quite good, was about the TPP, and what Clinton should say about it now. But that comment about Obama was hilarious, and absolutely spot-on.

I’ve thought for about seven years now that Obama’s primary concern is to be considered a moderate by The People Who Matter. I don’t think he cares all that much about anything else, really.

Or maybe he thought in 2009 and 2010 and today that what the Supreme Court needs is a former prosecutor who will join with Samuel Alito in anything related to criminal law and law enforcement.

Garland is being hailed in some quarters as a brilliant legal mind, but I have yet to see an iota of evidence of it.  On a par with Samuel Alito, maybe? Or maybe just in comparison to Samuel Alito. And best as I can tell, not by all that much.

____

UPDATE: This article by Janell Ross on the Washington Post’s The Fix blog about both Obama and Garland is outstanding.  I disagree with her that the anger toward Obama among what she calls the far left (which as a Sanders supporter I guess I qualify as part of, right?) is misplaced, but I agree with her about pretty much everything else she says in the article.  It’s a terrific analysis of Obama’s presidency as well as of Garland’s career.

Added 3/17 at 4:40 p.m.

____

SECOND UPDATE: Just saw this article on Politico via Yahoo News, titled “Black lawmakers irked by Obama’s Supreme Court choice“. Their concerns are that Garland is a moderate rather than a progressive, and that Obama didn’t consult them before finalizing and announcing the selection.  Some of them also are angry that a member of a racial minority wasn’t selected.

Good for them.  I myself don’t care one whit about the nominee’s race, gender, family background, religion, ethnicity.  I care only about the person’s professional experience, views on legal issues I care about, and intellect, because that is what will determine how this person will effect the law. I can’t think of a clearer in-your-face affront to African Americans, at this particular moment, than the nomination of a pro-police, pro-prosecutor, anti-habeas corpus judge to be the swing justice on the Supreme Court for, very likely, the next several years.

I also have to say how very retro it is that Obama thinks the public is 1980s-’90s-era pro-police, pro-prosecutor. Then again, for some people–i.e., politicians–it will forever be the 1980s or ’90s.

Added 3/17 at 7:15 p.m.

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GAG. (And Paul Krugman is just so, so mystified that so many progressives support Sanders. Be mystified no longer, dear professor.)

Dan Crawford gave me the news this morning before I’d already learned of it. He emailed me with the subject title: “Merrick Garland…here we go!” He linked, without comment, to the NYT article on the announcement.

I responded:

UGH. I guess the idea is that there just aren’t enough super-establishment Supreme Court justices already. We definitely need one more.

And Krugman is just so, so mystified that so many progressives support Sanders.

I WANT TO SCREAM.

Beverly

I’ll post at more length later today; I don’t have time right now.  But at the risk of drawing attention to the attention of the Secret Service, in an unpleasant way, I will take the time right now to say to Obama: Drop dead.*

And I’ll take the time to note this: The title of the NYT article is “Obama Chooses Merrick Garland for the Supreme Court.”  Its subtitle? “Appeals Court Judge Is Respected by G.O.P.”  Well, the G.O.P. that the Washington in-crowd hasn’t noticed isn’t all that popular right now with, um, some of the G.O.P.

_____

*Na-na-no; this is said facetiouslyThe  drop-dead part, that is. Please, Secret Service. Really.  I don’t like Joe Biden all that much, either.

____

UPDATE:  This blog post in Slate by someone named Michael Gerhardt, whom I’d never heard of before and who is not identified there by anything other than his name, makes me cringe.

This guy’s bottom line: Yup, can’t be a merit nominee to the Supreme Court unless you’ve been an intrinsic part of the Centrist Establishment in Washington for, say, several decades.

And interestingly narrow definition of merit, wouldn’t you say?

Okay, well, actually he is identified by more than his name.  He’s a Centrist Establishment person.  Just an educated guess, but still ….

Fittingly, the post title is, “Merrick Garland deserves to be on the Supreme Court.”  Because what matters is what Merrick Garland deserves, not what the multitude millions of people whom the Supreme Court pretends don’t exist.  Or just aren’t worth the time of such an august group.  Or even a moment’s thought.

Then again, there is this hopeful note, also from Slate.  It’s by Jim Newell, Slate’s main political analyst.

Added 3/16 at 6:32 p.m.

____

UPDATE TO UPDATE:  Calmer now.  Reread Jim Newell’s awesome article and agree with every word of it.  Including why Obama almost nominated Garland to fill John Paul Stevens’ seat for real. Which pretty much sums up why I can’t stand Obama and don’t want a third Obama term in the person of a chameleon.

Added 3/16 at 7:10 p.m.

____

PS: Greg Sargent writes:

I’ll bet that a big part of his selection was that Garland was willing to go through the process knowing he probably won’t get to actually serve on the court, while a younger judge who could have another chance later might not want to.

In thinking about it more, I’m betting that that was a very big part.  As in, none of the others would accept the nomination, and told Obama so.

Repubs apparently now think they can have the last laugh.  Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins.  But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.

This post is starting to feel not like a blog post but like a blog.

Added 3/16 at 8:36 p.m.

____

PS TO PS:  Yup.  It’s been officially confirmed by go-to-Centrist Ruth Marcus: Garland resoundingly (her word) deserves to be confirmed, and what really matters is what Garland deserves.

Her piece is titled “A Supreme Court nominee too good for the GOP to ignore.”  I’m not kidding.  That’s its title.  You really have to read this thing.  The whole thing; you don’t want to miss the part about her running into him on the street after she became a well-known Washington Post journalist.  Her piece apparently is not intended as a parody of a Washington insider’s view, although it does double duty as that.

Yup. This post is a blog unto itself.

Added 3/16 at 9:02 p.m.

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Biden Tips Obama’s Hand On the Choice for the Supreme Court Nomination. (I’m not unhappy about the selection.)

Obama’s choice to replace Scalia, it appears from Biden’s comments this morning, will be Jane Kelly, whom Obama appointed to the Eighth Circuit Court of Appeals, based in St. Louis, in 2013.

Josh Lederman of the Associated Press reports:

WASHINGTON (AP) — President Barack Obama is looking to nominate a Supreme Court candidate who has enjoyed past Republican support, Vice President Joe Biden said, offering some of the first indications of the president’s criteria in replacing the late Justice Antonin Scalia. …

“In order to get this done, the president is not going to be able to go out — nor would it be his instinct, anyway — to pick the most liberal jurist in the nation and put them on the court,” the vice president told Minnesota Public Radio. “There are plenty of judges (who) are on high courts already who have had unanimous support of the Republicans.”

President Barack Obama is looking to nominate a Supreme Court candidate who has enjoyed past Republican support, Vice President Joe Biden said, offering some of the first indications of the president’s criteria in replacing the late Justice Antonin Scalia. …

Although the White House hasn’t publicly disclosed any candidates Obama is considering, he’s expected to look closely at a number of circuit court judges — including some that meet the benchmark that Biden laid out. Sri Srinivasan, who sits on the U.S. Court of Appeals for the District of Columbia Circuit, was confirmed 97-0 less than three years ago by the Senate, which also unanimously confirmed Jane Kelly in 2013 to the St. Louis-based Eighth Circuit.

Minnesota is part of the Eighth Circuit. And Kelly, who was an assistant Federal Public Defender in the Northern District of Iowa for 19 years before her appointment to the Eighth Circuit, all but the first five years as the Supervising Attorney in the Cedar Rapids, IA office, notably—it is noted each time her name is mentioned as a possible nominee—received the strong support of Charles Grassley, then the ranking Republican of the Senate Judiciary Committee and not its chairman.

Biden’s choice of local radio station for that interview may be coincidence.  Or it may not be.

Kelly joined the Federal Defender’s Office after completing clerkships for a federal trial judge in South Dakota and an Eighth Circuit judge.  She apparently has never been in private law practice, and also has never worked in government other than in those positions, and never represented a government as an attorney; as an assistant Federal Defender, she opposed the federal government in criminal cases.

Obviously, Obama reads Angry Bear.

No, Kelly was not on my three-person list of preferred nominees.  But all three of my preferences are men, and because Kelly would be replacing a man, that will free President Sanders to nominate one of them to replace Ruth Bader Ginsburg.  Who is a woman.  (It would free a President Hillary Clinton to that, too, but as a practical matter they all will be out of the running unless one of them gets a sex-change operation, and really soon. Ginsburg in 83 years old.)

Luckily, she was a classmate of Obama’s at Harvard Law School. Which may be why he nominated her in 2013 to a federal appeals court, or to any court, even though she was a career public defender.  Rather than a former prosecutor.

I do have a couple of caveats about her, though.  One is that although she’s had reams of experience representing the hoi polloi in criminal cases, especially of course in drug cases, all of her experience is in federal court.  Most criminal cases are state-court prosecutions, and this is where there is rampant misconduct and framing, by police officers, prosecutors, and prosecutors’ so-called-expert witnesses.  And courtesy of a 1996 federal statute that came close to precluding federal habeas corpus review of state-court convictions—and the O’Connor/Kennedy/Thomas/Alito/Scalia/Roberts crowd’s virulently angry and inappropriately aggressive actions—the Supreme Court’s effective rewriting of that statute to make it fully, completely, totally preclude federal habeas review of state-court convictions, state judicial branches and anything that occurs in them are constitutional-rights-free zones to the extent that they want to be.

This although the Constitution’s Article I provides that “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  For people convicted in state courts, Congress suspended that right two decades ago, at least according to the Supreme Court.  That’s a very long suspension.

So I would prefer someone who has represented criminal defendants in state courts, even though I don’t doubt at all that Jane Kelly well understands this issue.

The other caveat concerns something I’ve noticed over the course of more than a decade: The near-impossibility of obtaining meaningful appellate review in state court or in a habeas petition by female judges if the conviction occurred in a sexual assault case, although there is now a generational divide on this.  Kelly was born in 1964, and is on the young side of that female-judge generational divide.  And there now have been enough high-profile cases in which the allegation was fabricated that perhaps even some of the sisterhood judges have taken note, although I doubt it. This is simply an observation that among older female judges there is an unshakeable, irrebutable presumption of guilt that precludes genuine appellate or habeas review.

Finally, the Wikipedia entry for Kelly includes this: “In 2004, Kelly was attacked while jogging in a park in Cedar Rapids, and was brutally beaten and left barely conscious; her assailant was never identified.”

Yet Kelly did not walk away from her career as an assistant Federal Defender.

From what I know about her, which is almost entirely from Wikipedia and the short blurbs about her in media lists of potential nominees since Saturday, I will be happy if she is the nominee.

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A Question For Democratic Senate Judiciary Committee Members to Ask Sri Srinivasan If Obama Nominates Him to Fill Scalia’s Seat

In private practice, prior to his appointment to the appeals court, Srinivasan successfully represented former Enron Corp CEO Jeff Skilling in a Supreme Court case. The Supreme Court narrowed the reach of the so-called honest services fraud law, invalidating one theory used by prosecutors for Skilling’s conspiracy conviction and ordering further appeals court review. Despite the high court ruling, Skilling’s conviction was later upheld by an appeals court.

Srinivasan also represented Exxon Mobil Corp in a lawsuit alleging human rights abuses in Indonesia, and mining giant Rio Tinto in a similar case about its activities in Papua New Guinea. Both cases concerned in part whether a law called the Alien Tort Statute allows such cases to be heard in U.S. courts. The Exxon case is still ongoing. The Rio Tinto lawsuit was dismissed.

Judge who could replace Scalia worked on controversial cases for business, Jonathan Hurley, Reuters, today

There are, of course, some questions about the Exxon Mobil cases that he should and probably will be asked, by Democratic members of the Judiciary Committee if Obama does nominate him, as the betting folks in Washington expect.

Far less controversial, in my opinion, is his representation of Jeffrey Skilling.  The federal honest-services fraud statute, which the Court held, at Srinivasan’s urging as a partner in the Supreme Court Practice group at the Washington, DC office of mega-legal-powerhouse Los Angeles-based O’Melveny & Myers, was too vague to comport with constitutional dictates of due process of law.

But what is controversial, in my opinion, is how it happened that this particular criminal defendant managed to garner the attention and support of at least four justices (the minimum needed for the court to grant a petition to hear a case), in a case that challenged a criminal statute as unconstitutionally vague.

The Supreme Court has a preset number of cases it will hear each year (a fact that itself is ridiculous and inappropriate).  I believe the number is about 70.  Almost all of the cases that fill those spots—court term after court term after court term—are heard at the behest of lawyers who fall into one of three categories: attorneys representing law enforcement, usually the state’s attorney asking the Court to reverse a lower federal appellate court’s grant of a petition for writ of habeas corpus on behalf of a convicted state-court criminal defendant, but also “cert.” petitions asking the Court to reverse a monetary judgment against a law enforcement officer in a civil rights lawsuit; a lawyer from one of the rightwing self-styled legal foundations around the country serving as pro bono counsel in a culture-wars and Koch-brothers-wish-list cases (think: affirmative action, attempts to nullify the Voting Rights Act, attempts (currently, at the Court) to profoundly restructure legislative reapportionment; you get the picture); and a member of so-called Supreme Court specialist bar, whose actual specialty is putting the lawyer’s name, law firm and Washington, DC. Office address on the cert. petition, for a fee that only corporations, lobbying groups and individuals of the Jeffrey Skilling personal-wealth set, have access to.

Pretty much no one else need apply, although roughly 9,000 others each year do. Many of them to the tune of about $7,000, the de facto application fee, the typical cost for the 40+ copies of the cert. petition and appendices, printed by one of three printing companies that exist because they print these things with the (very) nonstandard sizing and binding-into-a-cute-little-booklet precision that the Court’s rules mandate.  A high cost for the privilege in participating in a charade.  A steep admission fee, deliberately so; there is no conceivable justification for it, given today’s modern technology for printing, electronically transmitting, and e-reading.

I mean, y’know, no legitimate justification for it.

In recent years, the Court has, in my opinion appropriately, agreed to hear a number of cases that challenge on vagueness grounds the constitutionality of criminal statutes.  But they are always federal statutes rather than state ones, and almost always are heard at the behest of someone whose cause correlates with a Republican interest, of the culture-wars variety or of the corporate-folks variety.

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