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Kavanaugh: Watergate tapes decision may have been wrong
Legal Watch | 2018/07/20 13:55
Supreme Court nominee Brett Kavanaugh suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.

Kavanaugh was taking part in a roundtable discussion with other lawyers when he said at three different points that the decision in U.S. v. Nixon, which marked limits on a president's ability to withhold information needed for a criminal prosecution, may have come out the wrong way.

A 1999 magazine article about the roundtable was part of thousands of pages of documents that Kavanaugh has provided to the Senate Judiciary Committee as part of the confirmation process. The committee released the documents on Saturday.

Kavanaugh's belief in robust executive authority already is front and center in his nomination by President Donald Trump to replace the retiring Justice Anthony Kennedy. The issue could assume even greater importance if special counsel Robert Mueller seeks to force Trump to testify in the ongoing investigation into Russian interference in the 2016 election.

"But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently...Maybe the tension of the time led to an erroneous decision," Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.


Conservatives close in on dream: Tipping court right
Legal Watch | 2018/07/12 05:35
project unparalleled in American history to install a reliable conservative majority on the nation’s highest tribunal, one that could shape the direction of the law for years to come.

“They’ve been pushing back for 30 years, and, obviously, the announcement is a big step in the right direction,” said Curt Levey, president of the Committee for Justice, a conservative activist group that’s been working toward this goal full time since 2005. “It’ll be the first time we can really say we have a conservative court, really the first time since the 1930s.”

This presumes that Trump can push Kavanaugh through a closely divided Senate heading into a midterm election season, hardly a given. More so than any nomination in a dozen years, Trump’s choice of a successor for Justice Anthony M. Kennedy, the influential swing vote retiring at the end of the month, holds the potential of changing the balance of power rather than simply replacing a like-minded justice with a younger version.

But if the president succeeds in confirming his selection, the new justice is expected to join Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch in forming a much more consistently conservative majority than before.

That has not happened by accident. A network of activists and organizations has worked assiduously since the 1980s to reach this point, determined to avoid the disappointment they felt after Republican appointees like Earl Warren, William J. Brennan Jr., David H. Souter, Sandra Day O’Connor and Kennedy proved more moderate or liberal once they joined the court.


Schumer rallies opposition to Trump anti-abortion court pick
Legal Watch | 2018/07/03 07:48
The Senate's top Democrat tried Monday to rally public opposition to any Supreme Court pick by President Donald Trump who'd oppose abortion rights, issuing a striking campaign season call to action for voters to prevent such a nominee by putting "pressure on the Senate."

With Trump saying he'll pick from a list of 25 potential nominees he's compiled with guidance from conservatives, Senate Minority Leader Chuck Schumer said any of them would be "virtually certain" to favor overturning Roe v. Wade, the 1973 case that affirmed women's right to abortion. They would also be "very likely" to back weakening President Barack Obama's 2010 law that expanded health care coverage to millions of Americans, he said.

Schumer said that while Democrats don't control the Senate — Republicans have a 51-49 edge — most senators back abortion rights. In an unusually direct appeal to voters, he said that to block "an ideological nominee," people should "tell your senators" to oppose anyone from Trump's list.

"It will not happen on its own," the New Yorker wrote in an opinion column in Monday's New York Times. "It requires the public's focus on these issues, and its pressure on the Senate."

Trump has said he is focusing on up to seven potential candidates, including two women, to fill the vacancy of retiring Justice Anthony Kennedy, a swing vote on the nine-member court. He's said he'll announce his pick July 9.

Schumer's column appeared a day after Sen. Susan Collins, R-Maine, said she would oppose any nominee she believed would overturn Roe v. Wade. Collins said she would only back a judge who would show respect for settled law such as the Roe decision, which has long been anathema to conservatives.



Court deals major financial blow to nation's public employee unions
Legal Watch | 2018/06/27 07:51
A deeply divided Supreme Court dealt a major blow to the nation's public employee unions Wednesday that likely will result in a loss of money, members and political muscle.

After three efforts in 2012, 2014 and 2016 fell short, the court's conservative majority ruled 5-4 that unions cannot collect fees from non-members to help defray the costs of collective bargaining. Justice Samuel Alito wrote the decision, announced on the final day of the court's term, with dissents from Justices Elena Kagan and Sonia Sotomayor.

About 5 million workers could be affected by the decision overruling the court's 1977 decision in Abood v. Detroit Board of Education — those who pay dues or "fair-share" fees to unions in 22 states where public employees can be forced to contribute. Workers in 28 states already cannot be forced to join or pay unions.

"We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term and may require unions to make adjustments in order to attract and retain members," Alito wrote. "But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years."

From the bench, he noted that Illinois, whose Republican governor initiated the challenge, "has serious financial problems" that are exacerbated by costly union contracts. Gov. Bruce Rauner has sought to renegotiate public employee contracts.

Kagan's main dissent for the four liberal justices accused the court of "weaponizing the First Amendment in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy."

"It wanted to pick the winning side in what should be -- and until now has been -- an energetic policy debate," she wrote. "Today, that healthy -- that democratic -- debate ends. The majority has adjudged who should prevail."

Justice Neil Gorsuch cast the deciding vote against what conservative opponents have labeled a form of compelled speech. The money helps labor unions maintain political power in some of the nation's most populous states, including California, New York, Illinois, Pennsylvania and New Jersey.


Supreme Court adopts new rules for cell phone tracking
Legal Watch | 2018/06/25 00:02
The Supreme Court says police generally need a search warrant if they want to track criminal suspects’ movements by collecting information about where they’ve used their cellphones. The justices’ 5-4 decision Friday is a victory for privacy in the digital age. Police collection of cellphone tower information has become an important tool in criminal investigations.

The outcome marks a big change in how police can obtain phone records. Authorities can go to the phone company and obtain information about the numbers dialed from a home telephone without presenting a warrant. Chief Justice John Roberts wrote the majority opinion, joined by the court’s four liberals. Roberts said the court’s decision is limited to cellphone tracking information and does not affect other business records, including those held by banks.

He also wrote that police still can respond to an emergency and obtain records without a warrant. Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Neil Gorsuch dissented. Kennedy wrote that the court’s “new and uncharted course will inhibit law enforcement” and “keep defendants and judges guessing for years to come.”

The court ruled in the case of Timothy Carpenter, who was sentenced to 116 years in prison for his role in a string of robberies of Radio Shack and T-Mobile stores in Michigan and Ohio. Cell tower records that investigators got without a warrant bolstered the case against Carpenter. Investigators obtained the cell tower records with a court order that requires a lower standard than the “probable cause” needed to obtain a warrant. “Probable cause” requires strong evidence that a person has committed a crime.

The judge at Carpenter’s trial refused to suppress the records, finding no warrant was needed, and a federal appeals court agreed. The Trump administration said the lower court decisions should be upheld. The American Civil Liberties Union, representing Carpenter, said a warrant would provide protection against unjustified government snooping. The administration relied in part on a 1979 Supreme Court decision that treated phone records differently than the conversation in a phone call, for which a warrant generally is required.

In a case involving a single home telephone, the court said then that people had no expectation of privacy in the records of calls made and kept by the phone company. That case came to the court before the digital age, and the law on which prosecutors relied to obtain an order for Carpenter’s records dates from 1986, when few people had cellphones. The Supreme Court in recent years has acknowledged technology’s effects on privacy. In 2014, the court held unanimously that police must generally get a warrant to search the cellphones of people they arrest. Other items people carry with them may be looked at without a warrant, after an arrest.


Court: Compliance reached in education funding case
Legal Watch | 2018/06/12 07:17
A long-running court case over the adequacy of education funding in Washington state has ended, with the state Supreme Court on Thursday lifting its jurisdiction over the case and dropping daily sanctions after the Legislature funneled billions more dollars into public schools.

The court's unanimous order came in response to lawmakers passing a supplemental budget earlier this year that the justices said was the final step needed to reach compliance with a 2012 state Supreme Court ruling that found that K-12 school funding was inadequate. Washington's Constitution states that it is the Legislature's "paramount duty" to fully fund the education system. The resolution of the landmark case in Washington state comes as other states like Arizona, Oklahoma and Kentucky are now responding to calls for more money to be allocated to education.

The state had been in contempt of court since 2014 for lack of progress on that ruling, and daily sanctions of $100,000 — allocated specifically for education spending— had been accruing since August 2015.

"Reversing decades of underfunding has been among the heaviest lifts we've faced in recent years and required difficult and complex decisions, but I'm incredibly proud and grateful for all those who came together on a bipartisan basis to get this job done," Washington Gov. Jay Inslee said in a written statement.

Over the past few years, lawmakers had put significantly more money toward education costs like student transportation and classroom supplies, but the biggest piece they needed to tackle to reach full compliance was figuring out how much the state must provide for teacher salaries. School districts had paid a big chunk of those salaries with local property-tax levies, something the court said had to be remedied.

In November, the court said a plan passed by the Legislature last year — which included a statewide property tax increase earmarked for education — satisfied its earlier ruling, but justices took issue with the fact that the teacher salary component of the plan wasn't fully funded until September 2019. This year, lawmakers expedited that timeframe to Sept. 1, 2018.

Democratic House Majority Leader Pat Sullivan said that the court's order was a relief, though he noted that legislative debates over education funding aren't over. Sullivan said there is more work to be done on areas like special education, as well as recruiting and retaining teachers.



Egypt refers 28 to criminal court for forming illegal group
Legal Watch | 2018/06/11 14:16
Egypt's chief prosecutor has referred 28 people to a criminal court on charges including forming an illegal group aiming to topple the government.

Sunday's statement by prosecutor Nabil Sadek says the suspects face an array of additional charges, including inciting violence and disseminating false news.

The statement says the suspects formed an illegal group, "The Egyptian Council for Change," to incite against the state and its institutions.

It says only nine of the 28 suspects are in custody. No date has been set for the trial. Egypt has intensified a long-running crackdown on dissent since President Abdel-Fattah el-Sissi's re-election in March.

The arrests are part of a wider crackdown on dissent since the 2013 military ouster of an elected Islamist president following mass protests against his one-year divisive rule.


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