Pandemic Journal (# 10): Wisconsin’s Primary Election

On Tuesday, April 7, the State of Wisconsin held a primary election in the midst of this Pandemic. Previously the State’s Democratic Governor,      , attempted to recognize the impact of the Pandemic on in-person voting by encouraging voting by mail through modifying the rules for the submission and counting of votes by mail, but the Republican-controlled state legislature objected to those changes. This led to litigation. Eventually the U.S. Supreme Court on Monday, April 6, by a 5-4 decision, granted the Republican National Committee’s application for a stay of the U.S. district court’s preliminary injunction requiring the State to count absentee ballots postmarked after April 7 (the date of the in-person voting).[1]

This post will examine that Supreme Court decision and the reactions thereto by the New York Times and the Washington Post) and by the Wall Street Journal. This blog post will conlclude by adding its comments to all of this.

The Lower Courts’ Decisions[2]

In early March several individual Wisconsin voters, community organizations and the state and national Democratic parties brought three  lawsuits  in a federal district court in Wisconsin against members of the Wisconsin Elections Commission seeking several forms of relief, all aimed at easing the effects of the pandemic on the upcoming election. The state and national Republican parties intervened as defendants, and on March 28, the federal court consolidated the three cases. After an evidentiary hearing, the district court entered a preliminary injunction extending the deadline for voters to request absentee ballots from April 2 to April 3 and also extending the deadline for election officials to receive completed absentee ballots from April 7 to April 13 (regardless of the postmark date). The preliminary injunction also barred the Elections Commission and election inspectors from releasing any report of the in-person polling before April 13.

The Elections Commission did not challenge the preliminary injunction, but the intervenors (the national and state Republican parties) appealed to the U.S. Court of Appeals for the Seventh Circuit for a stay of the preliminary injunction’s extension of the deadline for returning absentee ballots. However, on April 3, the Seventh Circuit denied such a stay, but granted the application for intervention by the Wisconsin Legislature.

U.S. Supreme Court’s Proceedings

On April 4, the intervenors (state and national Republican parties and Wisconsin Legislature)  filed an emergency application with the U.S. Supreme Court for a stay of the district court’s preliminary injunction insofar as it required the State to count absentee ballots postmarked after April 7 (the day of the election). [3]

The next day (April 5) the Democratic National Party filed its response followed by the Republican National Committee’s  reply. [4]

The very next day (April 6) the Supreme court issued its Per Curium majority opinion. This opinion was supported by Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel A. Alito, Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

The Majority Opinion. This opinion started by claiming, “The question before the Court is a narrow, technical questions about the absentee ballot process . . . whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead by mailed and postmarked after election day, so long as they are received by Monday, April 13.”

Important for the majority of the Court was the fact that the plaintiffs did not seek a preliminary injunction extending the deadline for mailing of absentee ballots. More importantly, the district court’s order “contravened this Court’s precedents” that have “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” (Emphasis added for the unintended ironical use of the word “ordinarily.”)

The majority opinion then criticized the dissent, which will be discussed after the dissenting opinion is summarized.

The Dissenting Opinion . The dissent was authored by Associate Justice Ruth Bader Ginsburg and joined by Associate Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

This opinion emphasized the importance of this primary election for U.S. president and many state positions in the context of the “COVID-19 pandemic” having become a “public health crisis” and the Governor’s March 24th ordering “Wisconsinites to stay home until April 24 to slow the spread of the disease.As a result, “an unprecedented number of Wisconsin voters—at the encouragement of public officials—have turned to voting absentee. . . . Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters.” (Emphasis added.)

In response, according to the dissent, after an evidentiary hearing, the district “court concluded that the existing deadlines for absentee voting would unconstitutionally burden Wisconsin citizens’ right to vote.,” and therefore entered the preliminary injunction. (Emphasis added.)

Justice Ginsburg then  pointed out that the Supreme court’s majority “requires absentee voters to postmark their ballots by election day, April 7—i.e., tomorrow—even if they did not receive their ballots by that date.” This “will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline.” (Emphasis added.)

The dissent continued, The majority opinion’s “suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.” (Emphasis added.)

The majority opinion claims that the plaintiffs in the district court did not ask for an injunction allowing ballots postmarked after April 7, but Justice Ginsburg pointed out that “the plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots.” (Emphasis added.)

Moreover, “The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.” (Emphasis added.)

The majority opinion is “wrong” to claim that this case presents a “narrow, technical question.” Instead, “The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so.” Under the majority opinion, “that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation” (Emphasis added.)

The Majority’s Response to the Dissent. This opinion asserts that before the preliminary injunction “the deadline for [election officials’] receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7. That extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.” The preliminary injunction’s allowing “voters to mail their ballots after election day . . . is extraordinary relief and would fundamentally alter the nature of the election by allowing voting for six additional days after the election.”

Reactions to Supreme Court’s Decision[5]

The Washington Post’s Editorial Board and columnists as well as New York Times’ columnists unanimously criticized the Supreme Court’s decision. (The Wall Street Journal’s Editorial Board, however, supported that decision.)

The Post’s editorial pointed out that polling places in Milwaukee had been reduced from 180 to 5, causing “lines [of voters] snaked for blocks, with waits reported to be up to three hours long.” As a result, “plenty of people chose not to vote.” In contrast, “voters in Republican-leaning areas of the state reportedly had a far easier time.” The editorial also noted, “ When people are in line at a polling place at closing time, judges order the polls to stay open. It should have been the same for people who got in line properly for an absentee ballot. The conservative justices’ lack of concern for these thousands of voters will only encourage speculation that their motivation was partisan.”

The most stinging commentary was provided by the Post’s Jennifer Rubin. She noted the irony of the majority’s opinion that delaying the date for return of the absentee ballots “fundamentally alters the nature of the election.” Yes, Rubin said, “it would make it safer (fewer people would have to risk exposing themselves to the coronavirus at the polls) and would encourage more participation.”  This decision “is among the most irresponsible and anti-democratic in recent memory.” She also quoted Michael J. Abramowitz, the President of Freedom House,       , who said,, “the emerging debacle surrounding the Wisconsin primary demonstrates the crucial need to take strong measures to protect elections during the eCOVIS-19 pandemic.” Finally, “Republican politicians and conservative justices will not shy from making voting difficult, dangerous and confusing. Their highest goal is not robust elections, but elections in which fewer voters turnout.. . . [Such] motives (think, suppress voting) are obnoxious and anti-democratic.”

Another Post columnist, E.J. Dionne Jr., said that President Trump had made clear that “for Republicans voter suppression is part of the party’s game plan.” Under a Democratic proposal for federal financing of nation-wide mail-in voting, Trump said, “you’d never have a Republican elected in this country again.” He also recently tweeted that voting by mail “for whatever reason, doesn’t work out well for Republicans.”

Linda Greenhouse, who has spent four decades studying and writing about the Supreme Court for the New York Times, said, “I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion . . . about how ‘this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.’” (Emphasis added.)

“How could they say that,” according to Greenhouse, when “[p}eople shouldn’t ordinarily be afraid of catching a deadly virus when exercising their right to vote. Half the poll-worker shifts in the city of Madison are not ordinarily vacant, abandoned by a work force composed mostly of people at high risk because of their age.” And “Milwaukee voters are not ordinarily reduced to using only five polling places. [Voters and poll workers do not ordinarily hazmat suits.]  And the number of requests for absentee ballots in Milwaukee doesn’t ordinarily grow by a factor of 10, leading to a huge backlog for processing and mailing.” (Emphases added.)

Greenhouse concluded by asserting the Court’s majority was “unwilling to do what they could to help” the Wisconsin election by rejecting the Republicans’ challenge to “the common-sense solution that a federal judge had devised with the support of the officials who actually had to carry out the election.” That majority’s decision “raises the question whether the empowered conservative majority has the situational awareness to navigate the dire situation that faces the country, and whether it can avoid further displays of raw partisanship that threaten to inflict lasting institutional damage on the court itself. It’s a moment that calls on everyone in a position of power to display vision and a generosity of spirit.”  (Emphasis added.)

In addition,, some of the commentators had suggestions for improving election laws.

The previously mentioned E.J. Dionne suggested that “Congress must pass legislation as part of the next economic rescue package that will require mail-in ballots in every state and finance the effort with federal money” and that “Biden and Sanders . . . should hold a joint video news conference with Sens. Elizabeth Warner . . and Amy Klobuchar  . . .on behalf of Warren’s comprehensive bill to provide $4 billion for postage free mail ballots . . .  [and] a ban on onerous voting requirements, hazard pay for poll workers and an end to voter purges at a moment when it will be hard for voters to defend their rights.”  Finally Dionne advocated Liberals to press for “remedies (such as expanding the size of the court0 to battle both conservative court-packing and right-wing judicial activism.”

Richard Hasen,  Professor of Law and Political Science at University of California at Irvine School of Law, said, “[S]tates need to be prepared to thwart and prosecute any attempts to tamper with ballots. . . . states should send an application for an absentee ballot to every voter listed on voting rolls. . . .Voters should also be allowed to request absentee ballots online. . . . States should also prevent the unlimited collection of absentee ballots by private individuals . . . . some voters who need assistance getting their votes to the U.S. mail or to a state collection box . . . . Absentee voters should be told if their ballots are being rejected for technical reasons — such as a purported mismatched signature — and have the chance to cure the problem and have their ballot counted.”

David Byler, a data analyst and political columnist focusing on elections, polling, demographics and statistics, offered these thoughts. “We should keep one feature of this messy Wisconsin election around: a slower process for reporting results. . . .This restriction made for a relatively muted election night: Reporters weren’t live-tweeting votes as they came in, quickly writing takes on how to interpret the race or trying to spin out a second-day story. . . . Ramping up vote-by-mail would extend the franchise, help virus-proof our system and make the process more psychologically bearable.”

John Hickenlooper, a former mayor of Denver and governor of Colorado and current candidate for the U.S. Senate, described his state’s successful voting from home for the last six years as a model for reforming other jurisdictions’ election laws. “Every eligible Colorado voter receives a ballot in the mail roughly three weeks before Election Day, and after marking their choices from the comfort of their own home, voters mail the ballot back or deposit it at one of the hundreds of drop-off locations around the state (and put on their “I Voted” sticker). We also make it possible for voters to register through Election Day, and to vote in person. Denver city and county voters even have the ability to track the status of their ballots, with email or text notifications, as they travel through the postal system. The “Ballot TRACE” software ensures that every mailed ballot is accounted for.”

In addition, Hickenlooper says, “In Colorado, election officials conduct rigorous risk-limiting audits after elections. They also use a centralized database to compare signatures in the voter file with those on ballot envelopes and track ballot returns to keep an eye out for any possible irregularities. And, of course, one advantage of using mailed ballots is that paper can’t be hacked.”  This system has increased voter turnout by 3.3% and saved about $6 per voter from reduced printing, labor and other costs. In its first year it increased turnout of unlikely voters (younger and low-propensity voters) by 20 %.

The lone contrary voice on these issues from prominent mainline newspapers was the Wall Street Journal’s editorial, which said the Supreme Court “rightly reversed a district judge’s last-minute order that would have allowed Wisconsin ballots to be cast after the election was legally over. The confusing episode is a reminder that, even in a pandemic, steps as grave as rewriting voting rules should be up to elected representatives and not freelanced by judges.”

Conclusion

Needless to say, this blogger agrees with the Washington Post and New York Times. Voting by U.S. citizens is an unalienable right and needs to be encouraged and protected, not suppressed. This especially is true during times that are not ordinary, like the current pandemic.

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[1] Opinions, Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016 (U.S. Sup. Ct. April 6, 2020).

[2] Ibid.

[3] Emergency Application for Stay, Republican Nat’l Comm. v. Democratic Nat’l Comm, (No. 19A1016, U.S. Sup. Ct. April 4,  2020).

[4]   Response to Application for Emergency Stay, Republican Nat’l Comm. v. Democratic Nat’l Comm (No. 19A1016  (U.S. Sup. Ct. April 5, 2020); Reply in Support of Emergency Application for Stay, Republican Nat’l Comm. v. Democratic Nat’l Comm (No. 19A1016 U.S. Sup Ct. April 5, 2020).

[5] Editorial, Wisconsin Republican leaders put voters in an impossible position, Wash. Post (April 7, 2020); Rubin, Wisconsin shows the fragility of democracy, Wash. Post (April 7, 2020); E.J. Dionne, Jr., What we learned from Wisconsin, Wash. Post (April 8, 2020); Marcus, Wisconsin’s debacle may be the most infuriating of the coronavirus failures, Wash. Post (April 7, 2020); Waldman, Wisconsin’s election nightmare is a preview of what could happen in November, Wash. Post (April 7, 2020); Olsen, There’s plenty of room to compromise on mail-in voting. Get it done, Wash. Post (April 8, 2020); Byler, The Wisconsin election was a mess. But there’s one element of it worth emulating, Wash. Post (April 8, 2020); Hickenlooper, We’ve been voting at home for six years in my state. It’s time to do it nationally, Wash. Post (April 8, 2020); Hasen, Trump is wrong about the dangers of absentee ballots, Wash. Post (April 9, 2020); Editorial, You Shouldn’t Have to Risk Your Life to Vote, N.Y. Times (April 3, 2020); Greenhouse, The Supreme Court Fails Us, N.Y. Times (April 9, 2020); Assoc. Press, In Wisconsin, Missing Absentees Spur Questions and Anger, N.Y. Times (April 9, 2020) ;Boule, The G.O.P. Has Turned Voting in Person Into a Death Threat, N.Y. Times (April 10, 2020) (“There is no part of the Republican Party — not its president in the White House, not its leadership in Congress, not its conservative allies on the Supreme Court, not its interest groups or its affiliated media — that has an interest in or commitment to a fair, equal and expansive democracy.”); Douglas, Yes, Wisconsin Republicans used the pandemic to stop people from voting, Guardian (April 9, 2020) (Douglas, a professor at Amherst College: “Wisconsin, once a thriving crucible of progressive politics, has turned into a vanguard of the Republican assault on democracy.”); Editorial, Wisconsin’s Election Confusion, W.S.J. (April 7, 2020).

 

 

 

Professor Orlando Patterson’s Discussion of Affirmative Action

On November 1, 2019, Orlando Patterson, the John Cowles Professor of Sociology at Harvard University, made a presentation about human rights and freedom at a meeting of the U.S. Commission on Unalienable Rights.{1]

Now he has set forth views on the related subject of affirmative action in a New York Times review of a book on that subject—The Affirmative Action Puzzle: A Living History From Reconstruction to Today by Malvin L. Urofsky.[2]

Patterson’s prelude to this review says, “For two and a half centuries America enslaved its black population, whose labor was a critical source of the country’s capitalist modernization and prosperity. Upon the abolition of legal, interpersonal slavery, the exploitation and degradation of blacks continued in the neo-slavery system of Jim Crow, a domestic terrorist regime fully sanctioned by the state and courts of the nation, and including Nazi-like instruments of ritualized human slaughter. Black harms and losses accrued to all whites, both to those directly exploiting them, and indirectly to all enjoying the enhanced prosperity their social exclusion and depressed earnings made possible.” These long years, he suggests, were a period of white-affirmative action. (Emphasis added.)

Patterson then says, “white affirmative action was first developed on a large scale in the New Deal welfare and social programs, and later in the huge state subsidization of suburban housing — a major source of present white wealth — blacks . . . were systematically excluded, to the benefit of the millions of whites whose entitlements would have been less, or whose housing slots would have been given to blacks in any fairly administered system. In this unrelenting history of deprivation, not even the comforting cultural productions of black artists were spared: From Thomas “Daddy” Rice in the early 19th century right down to Elvis Presley, everything of value and beauty that blacks created was promptly appropriated, repackaged and sold to white audiences for the exclusive economic benefit and prestige of white performers, who often added to the injury of cultural confiscation the insult of blackface mockery.” (Italic emphasis in original; bold emphases added.)

Subsequently the nonwhite version of affirmative action, Patterson continues, was begun by “the American state and corporate system” in the middle of the last century to tackle “this inherited patterns racial injustice , and its persisting inequities.” A comprehensive account of this “nonwhite version” is provided in the Urofsky book except for his failure to include the U.S. military, which has the best record of nonwhite racial integration and achievement. Urofsky distinguishes between “soft affirmative action. . . aimed at removing barriers only,” which he favors, and hard affirmative action, which attempts positive actions to make observable betterment of the excluded group” and which he does not favor even though it admittedly does not work. As President Lyndon Johnson said in a 1965 commencement address at Howard University, “It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.” [3] (Emphases added.)

According to Patterson, Urofsky also points out the success of President Nixon’s Machiavellian “Philadelphia Plan,” which had minority business set-asides and insistence on craft unions acceptance of blacks and which resulted in “major improvements for blacks at all levels of the economy, to the applause of nearly every black leader.” But this Nixon program also was an important part of his Southern strategy “to shatter the bond between white working-class union members and the Democratic Party” and to create a new bond between those workers and the Republican Party.

In conclusion, Patterson says this nonwhite affirmative action “is now an integral part of the moral, cultural, military, political and economic fabric of the nation. Its businesses, educational system and political directorate have largely embraced it and the . . . [Supreme Court] undoes it at the cost of its own legitimacy.” This is so even though it is questionable whether this nonwhite affirmative action “could have solved all or even most of the problems of blacks, women and other disadvantaged groups. That surely must await more fundamental structural and political changes that might address America’s chronic postindustrial inequality and labor precariousness.” 

Conclusion

Characterizing the many decades of slavery and Jim Crow measures as “white affirmative action” was a new labeling for this blogger, but it makes sense. It also provides another justification for the more recent era of nonwhite affirmative action.

This blogger also was not familiar with Presdient Johnson’s commencement address at Howard University, which will be discussed in a subsequent post.

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[1] U.S. Commission on Unalienable Rights Meeting, November 1, 2019), dwkcommentaries.com (Feb. 20, 2020); Reactions to U.S. Commission on Unalienable Rights Meeting, November 1, 2019, dwkcommentaries.com (Feb. 21, 2020) 

[2] Patterson, Affirmative Action: The Uniquely American Experiment, N.Y. Times Book Review (Feb. 23, 2020) 

Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records  (Updated 11/22/19)   

Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for records relating to Donald J. Trump.

D.C. Circuit Court of Appeals

As discussed in a prior post, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on October 11, 2019, upheld (2-1) a subpoena by an U.S. House of Representatives committee to Mazars for certain Trump accounting records.

A month later, on November 13, that court denied, 8-3, Trump’s motion for the full (en banc) court to review that decision of the three-judge panel.[1] As is typical, there was no opinion by the eight judges denying the motion. However, two of the three dissenting judges, wrote opinions.

Judge Gregory Katsas joined by Judge Karen Henderson, said, “this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President. The first time this was attempted with then President Nixon, this court refused to enforce the subpoena, stressing “the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974) (en banc).”

The other dissenting opinion, by Judge Neomi Rao, who also was joined by Judge Henderson, emphasized that this subpoena was not really justifiable by the congressional power to enact new laws. It was really a subpoena looking for impeachable offenses, which is not part of the legislative power.

Afterwards an attorney for Trump said that he would now petition the U.S. Supreme Court to review the case.

And on November 15, his attorneys did just that by asking Chief Justice John Roberts, who is responsible for emergency requests from the D.C. Circuit, for a stay of proceedings while the Supreme Court considers his petition for review of the merits of the lower court’s decision. This request argued for such a stay for the following reasons: (I) “There is a reasonable probability that the Court will grant certiorari to determine whether the Committee’s subpoena is lawful.” (II) “There is a fair prospect that this Court will reverse the D.C. Circuit’s decision upholding the subpoena.” (III) “Applicants will suffer irreparable harm without a stay.” (IV) “The balance of equities and relative harms weigh strongly in favor of granting a stay.” [2]

On November 18, the attorneys for the House Committee filed a letter with the Supreme Court announcing that they planned to file an opposition to the requested stay on November 22, but that out of courtesy to the Court the Committee does not oppose “a short ten-day administrative stay, beginning on November 20, 2019, to enable the Court to receive an opposition by the Committee and then rule on the request for a stay. Thereafter the same day, Chief Justice Roberts ordered “that the mandate of . . . [the D.C. Circuit] is hereby stayed pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court.”[3]

One of Trump’s attorneys, William S. Consovoy, “said the Supreme Court’s intervention was imperative. Under the lower court’s decision, ‘any committee of Congress can subpoena any personal information from the President; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of Presidents will become our new normal in times of divided government — no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”

In accordance with that order, the House Committee on November 21 submitted its opposition to the Trump motion. It argued that the Court’s precedents involving Presidents Richard M. Nixon and Bill Clinton make clear that the chief executive enjoys no special privilege to be free from investigation or legal action and that a stay would cause irreparable harm to the Congress and the public, outweighing whatever harm enforcement of the subpoena would cause Trump and Mazars. The House Committee also argued that if the Court agrees to a stay of a lower court’s order, the Court should expedite a decision on whether to order a full briefing and a hearing on the case.[4]

Second Circuit Court of Appeals

Such a petition to the Supreme Court would join a similar one by Trump from a November 4 unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a state grand jury subpoena for accounting records from the Mazars firm relating to a probe into whether the accounting for payments Mr. Trump’s former lawyer, Michael Cohen, made to two women violated state laws against falsifying business documents. .[5]

During the oral appellate argument of this case, one of the judges asked the Trump attorney if local authorities could investigate President Trump if he shot someone on Fifth Avenue in New York City, and the attorney said the authorities could not so investigate.

After the Second Circuit’s decision, Jay Sekulow, an attorney for Trump, said that Trump would ask the U.S. Supreme Court to review the case because, he claimed, ““The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”

In fact, on November 14, Trump petitioned the Supreme Court for a review of the following issues in this case: (I) “Whether the President is absolutely immune is an important and unsettled issue of federal law that the Court should resolve” and (II)   “The Second Circuit incorrectly decided this important immunity question.” The petition also alleged, “For the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process. . . . Politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”[6]

In a contemporaneous statement, Sekelow stated, “”The Second Circuit decision is wrong and should be reversed. In our petition, we assert that the subpoena violates the U.S. Constitution and therefore is unenforceable. We are hopeful that the Supreme Court will grant review in this significant constitutional case and reverse the dangerous and damaging decision of the appeals court.”

The Department of Justice also filed with the Supreme Court an amicus brief supporting Trump’s petition while saying that there are instances when a local prosecutor might legally seek a president’s documents — but that this was not one of them.[7]

Trump filed this petition so immediately because of his attorneys’ agreement with the New York prosecuting attorneys whereby the latter “agreed not to seek the tax returns until the case is resolved by the Supreme Court” so long as Trump agreed to “a very quick briefing schedule, one that would allow the Supreme Court to announce whether it will hear the case as soon as next month and to issue a decision by June, as the presidential election enters its final stages.”

Conclusion

Now the parties to these cases will be joined by all of us in the U.S. and elsewhere for the briefing on whether the Supreme Court should grant such review, the Court’s decision on these petitions and, if review is granted, the briefing and oral arguments in that court and its ultimate decision (in the midst of the 2020 presidential campaign).

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[1]  Order, Trump v. Mazars USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Nov. 13, 2019); Savage, Court Rejects Trump’s Appeal in Fight to Keep Financial Records from Congress, N.Y. Times (Nov. 13, 2019); Reuters, U.S. Appeals Court Again Backs House Request for Trump Tax Documents, N.Y. Times (Nov. 14, 2019).

[2] Emergency Application for a Stay of Mandate Pending the Filing and Disposition of a Petition for a Writ of Certiorari, Trump v. Mazars USA, LLP, Committee on Oversight and Reform of the U.S. House of Representatives, No. 19A545 (Nov. 15, 2019); Liptak, Trump Again Asks Supreme Court to Block Release of His Financial Records, N.Y. Times (Nov. 15, 2019); Hurley & Freifeld, Trump asks Supreme Court to block disclosure of financial records to Congress, Reuters (Nov. 15, 2019); Barnes & Marimow, Trump appeals to Supreme Court again, this time to block House committee’s subpoena seeking his financial records, Wash. Post (Nov. 15, 2019).

[3] Letter, House Committee to Clerk of Supreme Court, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Order, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019) Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Barnes, Supreme Court puts temporary hold on Trump financial records ruling, Wash. Post (Nov. 18, 2019); Liptak, Chief Justice Gives Trump Temporary Reprieve in Financial Records Case, N.Y. Times (Nov. 18, 2019).

[4] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); House Committee, Opposition to Emergency Application for a Stay of Mandate, No. 19A545 (Sup. Ct. Nov. 21, 2019).

[5] Opinion, Trump v. Vance, No. 19-3204 (2d Cir. Nov. 4, 2019); Weiser & Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 14, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019).

[6] Petition for Writ of Certiorari, Trump v. Vance, No. —- (U.S. Sup Ct. Nov. 14, 2019); Liptak, Trump Asks Supreme Court to Bar Release of His Tax Returns, N.Y. Times (Nov. 14, 2019); Barnes & Marimow, Trump asks Supreme Court to shield his tax returns from prosecutors, setting up historic separation-of-powers showdown, Wash. Post (Nov. 14, 2019); Bravin, Kendall & Ramey, Trump Asks Supreme Court to Block New York Subpoena for Tax Records, W.S.J. (Nov. 14, 2019); Samuelson & Gerstein, Trump lawyers take fight over tax returns to Supreme Court, Politico (Nov. 14, 2019); deVogue, Trump asks Supreme Court to block subpoena for tax returns, CNN.com (Nov. 14, 2019).

[7] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); Liptak, Justice Dept. Urges Supreme Court to Back Trump in Tax Records Case, N.Y. Times (Nov. 22, 2019); Vance, Jr.,  Brief in Opposition, No. 19-635 (Sup. Ct. Nov. 21, 2019).

 

 

 

 

The Importance of the Universal Declaration of Human Rights

As has been noted in a post about the recent launching of the new U.S. Commission on Unalienable Rights, U.S. Secretary of State Mike Pompeo made the following favorable comments about the Universal Declaration of Human Rights (UDHR): “The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” [1] (Emphasis added.)

In addition, the Commission’s chair, Mary Ann Glendon, has written a marvelous book about the UDHR: A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). [2] In her Preface, she says this Declaration “became a pillar of a new international system under which a nation’s treatment of its own citizens was no longer immune from outside scrutiny. . . . Today, the Declaration is the single most important reference point for cross-national discussions of how to order our future together on our increasingly conflict-ridden and interdependent planet.”  (Emphasis added.) Her book’s Epilogue emphatically states:

  • The Universal Declaration created a bold new course for human rights by presenting a vision of freedom as linked to social security, balanced by responsibilities, grounded in respect for equal human dignity, and grounded by the rule of law.”
  • The Declaration’s principles, moreover, have increasingly acquired legal force, mainly through their incorporation into national legal systems.”
  • One of the most basic assumptions of the founders of the UN and the framers of the Declaration was that the root causes of atrocities and armed conflict are frequently to be found in poverty and discrimination.” (Emphases added.)

Therefore, the following brief summary of the UDHR should assist in understanding the upcoming work of the Commission.

The History of the UDHR

The Charter of the United Nations entered into force on October 24, 1945. Its Preamble stated, in part, that the U.N. was created “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women” and “to promote social progress and better standards of life in larger freedom.” And one of its stated purposes was “To achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” (Art. 1(3)) The Charter also established the Economic and Social Council (Ch. X), which was to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.” (Art. 62(2))

In June 1946, that  Economic and Social Council established the Commission on Human Rights, comprising 18 members from various nationalities and political backgrounds. The Commission then established a special Universal Declaration of Human Rights Drafting Committee, chaired by Eleanor Roosevelt, to write the Declaration. The Committee met in two sessions over the course of two years to consider that proposed instrument with Canadian John Peters Humphrey, Director of the Division of Human Rights within the U.N. United Nations Secretariat, as the principal drafter of the UDHR along with a committee that included René Cassin of France, Charles Malik of Lebanon, and P. C. Chang of the Republic of China. Once the Committee finished its drafting in May 1948, the draft was further discussed by the U.N. Commission on Human Rights, the U.N. Economic and Social Council, and the Third Committee of the General Assembly. During these discussions many amendments and propositions were made by UN Member States.

On December 10, 1948, the U.N. General Assembly at a meeting in Paris, France adopted the Universal Declaration of Human Rights (UDHR) by a vote of 48-0. Eight other countries abstained: the Soviet Union, five members of the Soviet bloc (Byelorussia, Czechoslovakia, Poland, Ukraine and Yugoslavia), South Africa and Saudi Arabia. The other two U.N. members at the time were absent and not voting (Honduras and Yemen).[3]

Selected Provisions of the UDHR

Many of this Declaration’s words in its Preamble and 30 Articles are reminiscent of the language of the U.S. Declaration of Independence of July 4, 1776. Here are some of those words in the U.N. document:

  • “[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” (Preamble)
  • “[H]uman rights should be protected by the rule of law.” (Preamble)
  • The “peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.” (Preamble)
  • N. “Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.” (Preamble)
  • All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (Art. 1)
  • Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other s” (Art. 2)
  • Everyone has the right to life, liberty and security of person.” (Art.3)
  • All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” (Art. 7)
  • Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” (Art. 18) (Emphases added.)

Legal Status of the UDHR

As a resolution of the U.N. General Assembly, the UDHR is not legally binding on U.N. members. As Mr. Justice Souter stated in an opinion for the U.S. Supreme Court, “the [Universal] Declaration does not of its own force impose obligations as a matter of international law.”[4] Instead, like the U.S. Declaration of Independence, the UDHR was an inspiration and prelude to the subsequent preparation and adoption of various multilateral human rights treaties as well as national constitutions and laws.

Conclusion

 On December 10, 1978, the 30th anniversary of the UDHR’s adoption, President Jimmy Carter said this Declaration “and the human rights conventions [treaties] that derive from it . . . are a beacon, a guide to a future of personal security, political freedom, and social justice. . . . The Universal Declaration means that no nation can draw the cloak of sovereignty over torture, disappearances, officially sanctioned bigotry, or the destruction of freedom within its own borders. . . . Our pursuit of human rights is part of a broad effort to use our great power and our tremendous influence in the service of creating a better world, a world in which human beings can live in peace, in freedom, and with their basic needs adequately met.”[5]

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[1] Here are other posts about the Commission:  Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019); More Comments About the Commission on Unalienable Rights (July 9, 2019).

[2] The Glendon book discusses the history of the drafting of the Declaration and includes copies of the various drafts.

[3] U.N., Universal Declaration of Human Rights (Dec. 10, 1948), UN Gen. Assembly Res. 217A, Doc A/810 at 71;Universal Declaration of Human Rights, Wikipedia; Kentonspecial, Human Rights Declaration Adopted by U.N. General Assembly; U.N. VOTES ACCORD ON HUMAN RIGHTS, N.Y. Times (Dec. 11, 1948).

[4] Sosa v. Alvarez-Machain,  542 U.S. 692 (2004); Sosa v. Alvarez-Machain, Wikipedia.

[5] Excerpts From Carter’s Speech on Anniversary of Human Rights Declaration, N.Y. Times (Dec. 10, 1978).

 

Important Questions for Judge Kavanaugh’s Confirmation Hearing 

                                                                                                                                        Judge Brett Kavanaugh, President Trump’s nominee for the U.S. Supreme Court, is supposed to be an “originalist” or someone who bases judicial decisions on the “original” meaning of the U.S. Constitution and statutes. The logic of this philosophy is impeccable. The framers of the Constitution and its amendments and the Congress in statutes make the law and judges seek to ascertain their original intent and then apply the original intent to decide cases.

Thus, some of the important questions for his confirmation hearing revolve around this question: how do you attempt to determine what the original intent of constitutional words or phrases is?

Important guidance on this problem is provided by a recent decision by the U.S. District Court for the District of Maryland regarding the original meaning of the constitutional word “emolument” and by new searchable databases of various writings from the era of the framers of the Constitution.

The Meaning of the Constitutional Word “Emolument”[1]

On July 25, 2018, the U.S. District Court for the District of Maryland denied President Trump’s motion to dismiss the Amended Complaint alleging that his “actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments  (or any of their instrumentalities) in connection with his and the Trump Organization’s ownership of the Trump International Hotel in Washington, D.C.” violates the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.

The key issue for the court in its 52-page well-reasoned and well-written opinion denying the dismissal motion was the original meaning of the world “emolument” in these two constitutional clauses::

  • The Foreign Emoluments Clause. “And no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (U.S. Const., Art I, sec. 9, cl. 8 (emphasis added).)
  • The Domestic Emolument Clause. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (U.S. Const., Art II, sec. 1, cl. 7 (emphasis added).)

After first reviewing the parties’ different interpretations of the text of these clauses, the court’s opinion began “with a strong presumption that the term ‘emolument’ should be interpreted broadly to mean ‘profit,’ ‘gain,’ or ‘advantage,’ essentially covering anything of value.” (P. 22.)

The court then turned to the “Original Public Meaning”  of the word since the Supreme Court has held that as the Constitution was “written to be understood by the voters at the time,” it is important to consider “the meaning of the term ‘emolument’ against the backdrop of what ordinary citizens at the time of the Nation’s founding would have understood it to mean.” (Id.) This analysis reinforced the court’s strong presumption from the text that the term had a broad meaning. Important in this regard for the court were the broad use of that term in the following (id. at 22-30):

  • An “article by Professor John Mikhail of Georgetown University Law Center in which, following exhaustive research, he concluded that “every English dictionary definition of ‘emolument’ from 1604 to 1806” includes Plaintiffs’ broader definition.”[2]
  • Drafters of state constitutions;
  • Blackstone’s Commentaries on the Laws of England; and
  • The Framers themselves.

Further support for the court’s conclusion was found in Interpretations of the term by the U.S. Office of Legal Counsel  and Comptroller of the United States.

 The Meaning of the Second Amendment’s Right To “Bear Arms”

The Second Amendment to the U.S. Constitution states the following: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Emphasis added.)

The U.S. Supreme Court in  District of Colombia v. Heller, 554 U.S. 570, 576-626 (2008) held, 5-4, that the Second Amendment to the U.S. Constitution protected “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The majority opinion in Heller by Associate Justice Antonin Scalia concluded that the phrase “bear arms” in that amendment “was not limited to the carrying of arms in a militia.” (Id. at 586.)

Disagreement with that conclusion has been voiced by Dennis Baron, Professor of English and Linguistics at the University of Illinois at Urbana-Champaign. The basis for this conclusion is the result of a search for the term “bear arms” in the following two new databases compiled by the Brigham Young University College of Law:[3]

  • The Corpus of Founding Era American English is composed of 96,615 texts with nearly 144 million words (as of 07/29/18) in documents used, 1760-1799, by ordinary people of the day, the Founders, and legal sources, including letters, diaries, newspapers, non-fiction books, fiction, sermons, speeches, debates, legal cases, and other legal materials.
  • The Corpus of Early Modern English, which is composed of 40,300 texts with nearly 1.3 billion words from 1475-1800.

The search of the first database yielded 281 instances of the phrase “bear arms” while the second search produced 1,572 instances. After eliminating about 350 duplicates, there were about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful did not refer to “war, soldiering or organized, armed action.” Therefore, Baron concludes, these databases confirm that the natural meaning of “bear arms” in the framers’ day was connected with militias or the military.

According to Baron, further support for this conclusion is found in the fact that the phrase “bear arms” “has never worked comfortably with the language of personal self-defense, hunting or target practice.” Here, Baron referred to this 1995 comment by historian Garry Wills: “One does not bear arms against a rabbit.”

And in 1840, said Baron, in an early right-to-bear-arms case, the Tennessee Supreme Court stated: “A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

Moreover, Baron pointed out that in the oral arguments  in the Heller case itself, U.S. Solicitor General Paul D. Clement, who was advocating for the invalidity of the District of Colombia gun law, initially said that “bear arms” was meant to carry them outside the home. But he was interrupted by Associate Justice David Souter, who said, “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” Clement responded, “I would say that and so would [James] Madison and so would [Thomas] Jefferson.” But Souter was not persuaded and asked, “In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?” Clement finally retreated with this statement: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.” Obviously the phrase is not modified in the Second Amendment.

New Databases of Written Materials from Framers’ Era

In addition to the previously mentioned databases compiled by the Brigham Young University College of Law, a similar project is being undertaken by a legal historian at the University of Chicago Law School, Alison LaCroix , and a linguist, Jason Merchant, the Lorna Puttkammer Straus Professor, Department of Linguistics and Humanities at the University of Chicago. Their project seeks to utilize the vast collection of historical texts available through Google Books to enable users to study in a more rigorous and sophisticated way how language and meaning have changed. This project, Professor LaCroix, said, “meets originalism on its own terms.”[4]

Questions for Judge Kavanaugh

Therefore, this blogger suggests that at the confirmation hearing, Judge Kavanaugh be asked at least the following questions:

  1. How do you attempt to determine the original meaning or intent of a word or phrase in the U.S. Constitution?
  2. What sources do you use in such attempts?
  3. Do you use computer databases of written materials from the framers’ era?
  4. If so, which ones? Why those? How many texts are in those databases?
  5. If not, why not?
  6. Have you ever used the BYU Law School’s Corpus of Founding Era American English?
  7. If not, why not?
  8. If yes, for what issue? Result?
  9. Have you ever used BYU Law School’s Corpus of Early Modern English?
  10. If not , why not?
  11. If yes, for what issue? Result?
  12. If you were confirmed to be an Associate Justice of the Supreme Court, would you be reluctant to overrule one of its own precedents that, in your judgment, erroneously interpreted the original intent or meaning of a constitutional word or phrase?
  13. If you had been on the Court in the 1950’s, for example, would you have been reluctant to overrule Plessy v. Ferguson?
  14. If you are confirmed, would you be reluctant to overrule the Supreme Court’s interpretation of the Second Amendment’s “bear arms” phrase in District of Columbia v. Heller?

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[1] Order, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018); Opinion, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018);  LaFraniere, In ruling against Trump, Judge Defines Anticorruption Clauses in Constitution for First Time, N.Y. Times (July 25, 2018); Racine, Frosh & Eisen, Trump’s Emoluments Trap, N.Y. Times (July 26, 2018); Marimow, O’Connell & Fahrenthold, Federal judge allows emoluments case against Trump to proceed, Wash. Post (July 25, 2018); Barbash, Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling, Wash. Post (July 27, 2018); Editorial, The framers worried about corruption. Their words may now haunt the president, Wash. Post (July 27, 2018). The judge in this case, Senior District Judge, Peter J. Messitte, holds a B.A. degree from Amherst College (1963) and a J.D. degree from the University of Chicago Law School (1966), where he was a classmate of this blogger. He was appointed to the District Court by President Clinton in 1993. In 2008 he took senior status, but carried a full caseload through 2011.

[2] Mikhail, Abstract: The Definition of ‘Emolument” in English Language and Legal Dictionaries, 1523-1806 (June 30, 2017).

[3] Baron, Antonin Scalia was wrong about the meaning of ‘bear arms,’  Wash. Post (May 21, 2018); Brigham Young University Law School, Corpus of Founding Era American English; Brigham Young University Law School, Corpus of Early Modern English; Baron, Guns and Grammar: the Linguistics of the Second Amendment.

[4]  Allen, Alison LaCroix Leads New Law and Linguistics Project, Univ. Chicago Law School News (Feb. 2, 2015).

 

 

Spain Ready to Proceed with Case Over the 1989 Killing of Jesuit Priests in El Salvador

For the last nine years, a court in Spain has been trying to obtain the presence of 20 former Salvadoran military officers to face trial on their alleged involvement in the 1989 murders of six Jesuit priests and their housekeeper and her daughter in El Salvador. Recently one of them—Inocente Orlando Montano Morales (“Montano”)—Is about to be sent to Spain for trial.[1]

 Montano

Former Colonel Montano was the deputy minister of Salvadoran Public Security from 1989 to 1992 and since April 2015 has been the subject of a judicial request by the U.S. Department of Justice for his extradition from the U.S. to Spain to face these charges.

On February 4, 2016, a Magistrate Judge in the U.S. District Court for the District Court of the Eastern District of North Carolina, after an evidentiary hearing, granted this request for extradition based upon the following conclusions: the court had personal jurisdiction over Montano; the U.S. and Spain had an extradition treaty; Montano had been charged with extraditable offenses under that treaty (the terrorist murder of five Jesuit priests of Spanish original nationality); and there was probable cause the Montano committed these offenses.[2]

Montano then exercised his only means of appealing that order by filing in April 2016 an application for a writ of habeas corpus in the same court. After briefing and a hearing, a district judge of that court in August 2017, granted the U.S. government’s motion to dismiss the application and dismissed the application.  This was based on the court’s conclusion that this extradition followed accepted practice and did not appear to be infirm; the treaty “provides for the extradition of a defendant charged with murder when committed outside the territory of the requesting nation {Spain]; . . . [its] laws allow for such a prosecution; and the laws of the requested nation [the U.S.] would allow for a prosecution in similar circumstances.”[3]

Montano then appealed this order to the U.S. Court of Appeals for the Fourth Circuit and simultaneously asked the district court for a stay or postponement of his extradition. This was denied by the district court on September 6 after concluding that he has “failed to make a strong showing that he is likely to succeed on the merits [of his appeal]” and “cannot demonstrate that he will suffer irreparable injury in the absence of a stay.” Thereafter simple denials of the request for a stay were entered on September 28 by the Fourth Circuit and on November 15 by U.S. Supreme Court Chief Justice John Roberts.[4]

Undoubtedly important in Chief Justice Roberts’ denial of a stay was the brief in opposition to such a stay that was submitted by the U.S. Solicitor General, the principal attorney for the U.S. in the U.S. Supreme Court. In its first three of 29 pages, before setting forth a detailed review and approval of the lower courts’ actions, that brief set forth the following facts from the record: “Toward the end of that war [between the military –led government and a leftist guerrilla group]– on November 16, 1989—members of the El Salvador Armed Forces . . . murdered six Jesuit priests, their housekeeper, and the housekeeper’s daughter at the Universidad Centroamerica (UCA) in El Salvador. . . . Five of them were Spanish nationals.” Moreover, evidence submitted by the Spanish authorities showed that “in the days leading up to the murders, the . . .  radio station that [Montano] oversaw made threats against the Jesuit priests; that on the day before the murders, [Montano] participated in a meeting at which one of this fellow officers gave the order to kill the priests; that [Montano] provided ‘necessary information’—namely, the location of one of the priests—to those who carried out the murders; and that following the murders, [Montano] attempted to conceal [the Armed Forces] involvement by threatening the wife of a witness.”[5]

The Solicitor General concluded his brief with these comments: “the [U.S.] has a strong interest in having extradition requests resolved without undue delay, both to comply with its treaty obligations and to further its reciprocal interest in having other Nations cooperate swiftly with its own extradition requests and other law enforcement objectives.” Moreover, “Spain is an important partner of the [U.S.] in terrorism and other cases of national importance, and timely compliance with its extradition requests advances the [U.S.’] foreign policy and law enforcement interests.” (Pp. 27-28.)

As a result, Montano is now headed for imminent extradition to Spain. Almudena Bernabéu, an expert from the Center for Justice and Accountability (CJA) and a private prosecutor of the Jesuits case in Spain with her organization Guernica 37, said about four weeks ago the State Department determined that extradition was appropriate. “From that moment, the two countries are ready for delivery and reception of Montano, but they did not want to do it” until he had exhausted all of his U.S. remedies.

Other Former Salvadoran Military Officers

Of the other 19 former Salvadoran military officers charged with this horrible crime, one was convicted of the crime in El Salvador and was re-imprisoned after its Supreme Court invalidated its Amnesty law, one (former Defense Minister Emilio Ponce) is deceased and two others are cooperating with the Spanish prosecutors (Yussy Mendoza and Camilo Hernandez).

These other 15 still live in their home country, but its Supreme Court twice (2012 and 2016) has denied their extradition to Spain.

Manuel Escalante, a human rights lawyer at Jose Simeon Canas Central American University, where the murdered priests lived and worked and were murdered, after learning of the imminent extradition of Montano, called for prosecution of the 14 in El Salvador. He said that a conviction in Spain would be a big step toward “eliminating historical impunity” and that Salvadoran prosecutors must also act to advance the case in the Central American nation. The victims and their defenders “are going to seek justice. We are going to ask for the reopening of the trial.”[6]

The university, however, previously had said it considers the case closed against those who carried out the killings and even has called for clemency for former Col. Guillermo Benavides, who has served four years of a 30-year sentence as the only military official in prison for his role in the crime.

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[1] The charges subsequently were reduced to terrorist murder of the five priests of original Spanish nationality as a result of an amendment to Spain’s statute on universal jurisdiction. The priests, their murders, judicial proceedings about this crime, including the Spanish case, and these extradition proceeding have been discussed in the posts listed in “The Jesuit Priests” section in List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2]  Certification of Extraditability & Order of Commitment, In re Request by Spain for the Extradition of Montano, Montano v. Elks. No. 2:15-MJ-1021-KS (E.D.N.C. Feb. 5, 2016).

[3] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C. Aug. 21, 2017).

[4] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C.. Sept. 6, 2017); Order, Montano v.  Elks, N0. 17-7091 (4th Cir. Sept. 28, 2017); Order, Montano v.  Elks, No. 17A445 (U.S. Sup. Ct. Nov. 15, 2017); Drew, Last hurdle cleared for ex-Salvadoran official’s extradition, Assoc. Press (Nov. 15, 2017); Labrador & Rauda, Colonel Montano to Spain for the  murder of the Jesuits, El Faro (Nov. 15, 2017); Progress in Jesuit murder case on 28th anniversary, El Salvador Perspectives (Nov. 16, 2017); Alonso, The Supreme Court of the United States approves extraditing a Salvadoran ex-military man to Spain for the killing of the six Jesuits, El Pais (Nov. 15, 2017).

[5] Memorandum for the Federal Respondents in Opposition, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 8, 2017).

[6] Assoc. Press, El Salvador Jesuits Seek Reopening of Case in 1989 Massacre, N.Y. Times (Nov. 16, 2017); Lafuente, A halo of justice in the killing of the Jesuits in El Salvador, El Pais (Nov. 17, 2017.

Judge Gorsuch Might Be a Liberal Originalist on the Supreme Court

Akhil Reed Amar, a Yale Law School professor and the author of “The Constitution Today: Timeless Lessons for the Issues of Our Era,” argues that not all devotees of “originalism” in interpreting the Constitution and statutes are what are ordinarily called conservatives and that Judge Neil Gorsuch might be a liberal member of this group.[1]

Originalists, the professor says, “believe that faithful constitutional interpreters must build on the solid bedrock of the Constitution’s text, as that text was originally understood when drafted and ratified.” However, he adds, “not all conservatives are originalists, nor are all originalists conservative. Most jurists, most of the time, follow modern judicial precedents rather than pondering first principles of constitutional text and history. Practical considerations also factor into most jurists’ decision making. Originalists are no different in this regard, but they are more apt to dwell on first principles of text and original meaning and to discard precedents violating these first principles.”

A group of “liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues [in Pena-Rodriguez v. Colorado.] strengthened rules against racial animus in jury deliberations” in reliance . . . on the Center’s amicus brief and the historical scholarship it showcased” by another Yale Law School professor.

This case demonstrated that “originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders.”

Amar also noted “the extraordinary body of work of Steven G. Calabresi, who co-founded the conservative Federalist Society in the early 1980s and then clerked for Judge Bork and Justice Scalia. As “perhaps America’s pre-eminent conservative originalist,” [he] has shown that the 14th Amendment was plainly intended to apply the Bill of Rights to the states; that women’s equality was a central theme of that amendment, as originally understood; and that originalism in fact supports a right of same-sex marriage.”

Gorsuch, Amar asserts, “is a brainy and principled jurist” and his “embrace of originalism is honorable and admirable” and, if confirmed as seems likely, “may one day [be regarded] . . . as among the best of the century.”

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[1] Amar, What Gorsuch Has in Common with Liberals, N.Y. Times (Mar. 18, 2017).