Tuesday, March 01, 2016

The Empire Strikes Back... on SCOTUSblog

Senator Chuck Grassley has responded to President Obama on SCOTUSblog.  You gotta love that a law blog is hosting a debate between the President and the chair of the judiciary committee.  It's incredible when you think about it.  Well, here's the intro:
The Constitution grants the authority to nominate and approve Supreme Court Justices to coequal branches of the federal government. The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent.
However, in his post, President Obama six times states that he “appoints judges to the Supreme Court.” From that fundamental misunderstanding, he reveals that the person he will nominate, not appoint, will be someone whose decisions are not tied to the Constitution’s text.
Like most of his nominees, the President pays lip service to the notion that judges are to “interpret the law, not make the law,” but then submits that in cases where “the law is not clear” his nominee’s views “necessarily will be shaped by his or her own perspective, ethics, and judgment.” And of course, his nominee will “arriv[e] at just decisions and fair outcomes” based on the application of “life experience” to the “rapidly changing times.”
The President, candidly to his credit, has unambiguously informed the American people that his nominee will apply his or her own ethics and perspectives in deciding cases. This goes to the heart of the matter and it is a question that confronts the American people during this presidential election.

Meantime, it's NY vs. California in the Apple vs. FBI showdown.  A New York federal magistrate has correctly ruled that Apple does not need to help the government break into one of its customer's phones:
A federal magistrate judge on Monday denied the United States government’s request that Apple extract data from an iPhone in a drug case in New York, giving the company’s pro-privacy stance a boost as it battles law enforcement officials over opening up the device in other cases.
The ruling, from Judge James Orenstein in New York’s Eastern District, is the first time that the government’s legal argument for opening up devices like the iPhone has been put to the test. The denial could influence other cases where law enforcement officials are trying to compel Apple to help unlock iPhones, including the standoff between Apple and the F.B.I. over the iPhone used by one of the attackers in a mass shooting in San Bernardino, Calif., last year.

Judge Orenstein, in his 50-page ruling on Monday, took particular aim at a 1789 statute called the All Writs Act that underlies many government requests for extracting data from tech companies. The All Writs Act broadly says that courts can require actions to comply with their orders when not covered by existing law. Judge Orenstein said the government was inflating its authority by using the All Writs Act to force Apple to extract data from an iPhone seized in connection with a drug case.
The order is here

And if you want some local news, we have West Boca banker Richard Ohrn who is charged with faking getting lost at sea.  From the Sun-Sentinel:

Ohrn on March 31, 2015, set a rented, blood-stained fishing boat adrift in the Atlantic Ocean, used an inflatable boat to motor back to shore and then fled to Georgia in a pickup truck, according to a Palm Beach County sheriff's report.
That triggered more than two days of rescuers searching by air and sea over 3,100 square miles for someone who had actually slipped away to a rented house in Albany, Ga. — all to try to escape mounting costs from a lawsuit, according to the report.
Now Ohrn, 45, faces a felony charge of communicating false distress to the U.S. Coast Guard, according to a grand jury indictment filed Thursday.
Ohrn knowingly caused "a false distress message" that prompted the Coast Guard "to attempt to save lives and property when no help was needed," according to the indictment.
The Coast Guard last year estimated that it cost nearly $400,000 for the aircraft expenses alone in the search for Ohrn.
 Only in the Southern District of Florida!


Anonymous said...

The President of the United States "shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . Judges of the Supreme Court . . . ." U.S. Const. art II, sec. 2, cl. 2.

See, the President has the duty and the power to nominate and the duty and the power to appoint S. Ct. justices. The Senate has no such power. The Senate only provides its advice and consent. Nothing there allows the Senate to prevent the President from exercising his duty and power.

Anonymous said...

I have to respectfully disagree with Senator Grassley. Article II, Section, 2, Clause 2 (spoiler alert: also known as the "Appointment Clause") reads as follows: "He[sic] shall have the Power, . . . and he [sic] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, . . . "

Therefore, the text of our Constitution clearly states that the President of the United States does "appoint" judges to the Supreme Court. Don't let the actual text of the Constitution get in the way of your rhetoric Senator.