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August 2, 2013

To some Justices' chagrin, SCOTUS refuses to delay latest California prison release order

As reported here by Lyle Denniston at SCOTUSblog, the "Supreme Court, over three Justices’ dissents, on Friday afternoon refused to delay a lower court order requiring California state prisons to release nearly 10,000 inmates by the end of this year, to relieve overcrowding." Here is more:

In an order containing no explanation, the Court majority denied state officials’ plea to keep the release order on hold until it could be challenged on appeal. The Supreme Court’s ruling did not even mention state officials’ plea to grant full-scale review of the order.

Justice Antonin Scalia, in a bitterly worded dissent joined by Justice Clarence Thomas, called the three-judge District Court’s release mandate a “terrible injunction” that will have the grave consequence of releasing many dangerous prisoners. Justice Samuel A. Alito, Jr., noted simply that he would grant a postponement.

The Scalia dissent condemned what he called “the Power of the Black Robe” in broadly expanding judicial power, and then hinting at limitations “that make it seem not so bad.” He was referring to the Court’s ruling in this same case, two years ago, suggesting that the state might seek and get some relief from an earlier release order. “Comes the moment of truth,” Scalia wrote, “the hinted-at limitation proves a sham.” The District Court judges, he suggested, have now called the Court’s earlier “bluff” and ordered further releases.

State officials, the dissenters argued, had come forward with evidence that they have “made meaningful progress” in relieving the serious overcrowding in the state’s 34 adult prisons, and thus it was unnecessary for additional releases to be made....

Before the latest release order, which is expected to require opening the prison gates to some 9,600 inmates, the state already had released about 37,000 inmates. Officials claimed, in their new challenge, that the only prisoners who could be released to comply to the new mandate are those convicted of very serious crimes.

The state’s challenge to the latest order was filed with Justice Anthony M. Kennedy, who handles emergency legal matters from the geographic area that includes California — the Ninth Circuit.  Kennedy referred it to the full Court, resulting in the denial issued Friday.

Although the voting of the Justices was not spelled out in the order, it appeared that it had been joined by Kennedy, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. 

The state’s challenge had been pending at the Court for more than three weeks; it was filed July 10. The delay in resolving it may have been due to the fact that members of the Court, now in their summer recess, have been traveling.

The brief order from the Court, along with Justice Scalia's three-page dissent, is available at this link.

August 2, 2013 at 04:33 PM | Permalink


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If CA was really concerned about the release, wouldn't they find some other means to house them? The real issue here seems to be CA's interest in locking up lots of people for lots of years without having to spend the money to do it safely and humanely.

As Denniston notes (in the full text version at SCOTUSBlog), the District Court has been telling CA this is an issue for some 25 years. CA's had time to make a choice. Now they have to live with it.

Posted by: John | Aug 2, 2013 7:23:17 PM

Exactly, John. The problem is that California wants to penalize behavior by sending people to jail and then not actually having to pay for it. I tend to be sympathetic to the argument that the judiciary has amassed to much but Scalia is wrong, this isn't a good poster child for that argument. CA has had decades to fix a problem and then simply piled on, rather than fix it. Now that chicken is coming home to roost. Tough shit.

Posted by: Daniel | Aug 2, 2013 7:46:13 PM

"Now that chicken is coming home to roost. Tough shit." Isn't it funny how criminal-coddling judges always have their cheerleaders.

I will put to one side the utter moral bankruptcy at the indifference to the suffering that is going to be caused by this order. It's easy to say "Tough shit." as a semi-anonymous twit on a blog. Quite another to come to grips with the fact that innocent people will die as a result of this outrage. By the way, the original Plata decision was joined by the "wise [sic] Latina" and the unpatriotic witch from Harvard. That means Obama has blood on his effete hands.

But once again, we can put that to one side--those who exult at that prospect of criminals getting less than their due and the victimization that will result are probably impervious to such arguments.

Instead, I will poke fun at the intellectual deficits our two cheerleaders for criminals have. First of all, isn't it cute how Lyle Denniston is cited, as if that contentious twit is somehow an authority on anything. Denniston, of course, isn't so impolitic as to point out that one of the judges on the three-judge panel has the worst record of any federal appellate judge. He's even been called out for playing fast and loose with the factual record to hook up a capital murderer. I'm sure that Stephen Reinhardt has played it straight as a member of this panel. Denniston's snark fails to mention that California is dealing with a problem not entirely of its own making. How many illegal immigrants make up its prison population? California can do nothing about them, yet it's forced to pay to incarcerate them. Denniston, of course, would never be too impolitic to point out this obvious problem with blaming California for public safety problems it faces.

You cheerleaders will never ever even attempt to debate the actual merits of the court decisions. The reason for that is that, as a practical matter, while a judge can write some silly crap (see, e.g., Buck v. Thaler, Wise [sic] Latina, "J.," (dissenting)) and people have to take it seriously because a judge said so (just as the fictional wardroom had to take Captain Queeg seriously), people cannot restate that sort of nonsense here because here ipse dixit doesn't fly. It just looks like cheap chant of "scoreboard."

Plata, of course, was preposterous---no one other than the most committed of criminal coddling cheerleaders could ever think that these reductions would increase public safety: "Some evidence indicated that reducing overcrowding in California's prisons could even improve public safety." Sheer idiocy, as has been shown by California's already jacked up crime rate. (By the way, while, in a vacuum, it's possible that, depending on the composition of a particular inmate population, reduction of overcrowding might help recidivism--but no one bothered to think about whether that would apply to California's prison population. Additionally, there's a logical flaw in the reasoning--let's say recidivism is in fact reduced by reducing overcrowding--there's still the problem that the crimes committed by the pool of releasees could swamp the crimes prevented by the lowered recidivism rate.) As Scalia said in a case long ago--only appellate judges could swallow such a tale.

I could go on and on about the flaws in the "reasoning" of the Plata courts. The bottom line is that the State (i.e., the people of California) got an unfair shake from the federal courts with a skewed panel and a Supreme Court more interested in being nice to criminals and protecting the image of the federal courts. The Supreme Court has tarnished itself irreparably.

The negative externalities of this lawless decision aren't going to be visited on those who put it into place. Obama's children sleep soundly in the White House, and the federal judges who have made this happen live in nice neighborhoods--but someone's kids are going to suffer preventable harm. But hey, "Tough shit."

Posted by: federalist | Aug 2, 2013 9:25:10 PM

The Justices of the Supreme Court do not know anything about anything, except some law school memorization. Their judgment about a difficult, complicated, technical matter such as corrections has no validity. California officials should just ignore the order. If federal thugs are sent by President Obama to enforce the order, do not resist. Point out where the keys are kept. Let them release the criminals, so that future violent crime victims know whom to blame.

Direct action groups of families of murder victims should take down the names of the federal thugs. If their loved one is murdered by one of the criminals they released, hunt down the federal thugs, the judges, and beat their asses. Flog them, 20 lashes, then tie them to a tree outside the federal building. To deter.

The members of the direct action group should turn themselves in, and demand an early release due to prison overcrowding. Juries will not even convict them.

Posted by: Supremacy Claus | Aug 2, 2013 10:25:48 PM

federalist, for every story you tell about suffering caused by the release of a prisoner being held in inhumane conditions, I'll tell you one about a citizen and his/her family crushed by its experience with a thuggish, cynical, hyper-punitive conviction/incarceration system.

I understand when things like the California prisoner release happen we're supposed to pretend each of the lucky 10,000 are vipers the state was kind and wise enough to keep away from the rest of us...but I guess I just don't have that good of an imagination.

Posted by: JohnK | Aug 3, 2013 8:50:11 AM

Federalist, your rant fails to address the fundamental issue: California has an obligation to treat humanely those it incarcerates. For twenty-five years, it has failed in that duty. The chickens have indeed come home to roost. By the way the decision to deny the stay was 6-3. The wise Latina has just one vote. Sotomayor has just one vote. Also, time to get over the fact that the Senate confirmed her and she's on the court for your lifetime.

Posted by: onlooker | Aug 3, 2013 10:23:18 AM

Federalist stated: "It's easy to say 'Tough shit.' as a semi-anonymous twit on a blog." Do you mean as compared to a completely anonymous person who has been, for a number of years, very offensive to various people, including SCt justices?

Posted by: Tim Holloway | Aug 3, 2013 11:00:04 AM

Tim: Please, enumerate how the Justices have earned or deserve respect. They are know nothing elite lawyers deciding the policy of very technical fields. How do their decisions have more validity or intelligence than a two year old throwing things around room? A single decision would satisfy me, that grew the economy, increased our freedoms, made us safer, or any other value you prefer. An unmitigated lawyer catastrophe promoting only lawyer interests, and rent seeking. Their political orientation makes no difference. Left, right, all are Yale and Harvrd Law indoctrinated, pro government waking nightmares for the nation.

Posted by: Supremacy Claus | Aug 3, 2013 11:48:11 AM

Onlooker. Your words have no verifiable measurement, humane, cruel. So judges use that vagueness to generate massive public spending. Prisoners may be uncomfortable. They are not being abused any more than military recruits. Billions around the world would love to trade places with the lowest of them.

Posted by: Supremacy Claus | Aug 3, 2013 11:59:57 AM

your posts are drivel. We're sorry that your ex had a good lawyer who took you for everything; next time, spend a buck and hie a good lawyer yourself.

Posted by: onlooker12 | Aug 3, 2013 12:50:10 PM

Federalist, your disdain for every judge you disagree with is getting tiresome. Get over it.

Posted by: onlooker12 | Aug 3, 2013 12:52:07 PM

Isn't it funny? None of the criminal coddlers have much of an argument--just some scoreboard pointing.

JohnK, perhapes you're right, perhaps there are instances where a thuggish justice system has greatly overreached. If you go back an read things I've written here before, you'll see that I have parted company with many on the right over this issue. Putting that to one side, where's your evidence that California does this? People rail about the three strikes laws, but the fact is that generally, the criminal has to have a pretty bad record before he gets tagged with that. California doesn't seem to be the type of jurisdiction that drops the hammer on people who have committed minor offenses.

As for the 25 years, well, let's have a draconian order, not based in reality (I gave just one snippet above) that is wildly overbroad. And given the composition of the panel (e.g., a dishonest judge--any of you criminal coddlers want to defend the integrity of Stephen Reinhardt, 'rat judge?), the argument is hardly to be taken seriously. And then there's the PLRA. But none of you are in a position to defend the order or the Supreme Court case, other than to say, "They said so."

And then there's Tim. Tim, apparently, is upset that I say very offensive things about Supreme Court Justices. Waaahhhh Waaaah. You guys can whine all you want, but I have evidence that Sonia Sotomayor, the self-described "wise Latina," ain't too bright. Care to defend her rehearsed statement to the Senate Judiciary Committee that Ginsburg's opinion "would have affirmed" the Second Circuit's Ricci decision? Didn't think so. As for Kagan, no one here has ever defended her treatment of military recruiters. With respect to Sotomayor, I don't know what "get over it" means. Am I supposed to simply push a button that makes me respect her middling talent? As for Obama--bottom line is that Plata was 5-4--sensible Bush 43 Justice opposed it, and the Obama Justices tipped the case. He owns the victimization.

It really strikes me as odd---all you supposedly enlightened people cannot even make a coherent argument.

Posted by: federalist | Aug 3, 2013 1:13:46 PM

The problem here is that the cost of releasing these many criminals is not going to be borne by the people who most directly brought it about. The cost will be increased crime; it's just silly to deny that fact, for two reasons. First, recidivism rates are sky-high (about 65%, I believe). Second, even under the realignment program as it's been administered thus far, California has shown it cannot be trusted to release only "harmless" inmates.

Who caused this crunch? California's leaders, in both the executive and legislative branches. The legislature is controlled overwhelmingly by liberal Democrats, and, in recent times, the executive branch has been as well.

Who's going to get hurt by the additional crime? The executive and legislative leaders (with their security details)? Nope. The people who are going to get hurt by the crime brought about by premature releases are the people who are usually hurt by crime. Those would be the people who live in lousy neighborhoods, the ones who can't afford home security systems and have to take public transportation, etc. And who would that be?

It will disproportionately be the poor.

Did they bring about the current situation?

Well, to the extent they voted for the current crew running California, yes they did. But that paints with way too broad a brush; as to any individual crime victim, the link between (1) his getting robbed, fleeced or beaten up and (2) the conditions that brought about the release of the convict who did it to him are way, way too attenuated to say that he's only getting what he deserved.

The exalted people who make these decisions are never the ones who have to live with their consequences. And that should concern all of us.

Posted by: Bill Otis | Aug 3, 2013 3:29:17 PM

Bill Otis, Calfifornia can easily release the required number of prisoners without endangering public safety. For starters, the state could release on parole all persons who are serving time for growing or distributing marijana and who have no convictions for violent crimes. Then the state could release on parole those convicted for possession or distribution of cocaine who have no priors for violent crimes. The state could also release on parole all persons over the age of 80, except those serving life without parole or those convicted of murder. The state could also release on parole all persons over 65 who suffer from advanced-stage cancer, diabetes, or other debilitating disease. Additionally, the legislature could pass a law increasing good time an extra 10 percent.

Posted by: onlooker14 | Aug 3, 2013 4:23:53 PM

"Federalist, your disdain for every judge you disagree with is getting tiresome. Get over it."

In other words, federalist please stop rhetorically kicking the stuffing out of all of us who agree with these naked power grabs. You people whine about what a big meanie I am. I think that's because you know I am right but can't stand to just admit it. You people think that because some dim bulb happens to be confirmed by the Senate that somehow I can't call her stupid. Well, guess what, she is stupid. (When I say stupid, I mean, of course, compared to your average federal appellate judge.) And putting on the robes she wears now didn't suddenly up her IQ.

You people are pathetic. Typical low-information Obama voters.

Posted by: federalist | Aug 3, 2013 5:23:38 PM

Sotomayor's advancement was the result of affirmative action. Princeton skipped over many white kids in her own high school class who had much better academic performances, never mind superior performing white kids from around the country. This vile feminist lawyer then pulls her obnoxious, threatening entitlement act, and castrated American male lawyers cave in. They should just have beaten her with a stick. To deter. She is totally a biased, anti-white racist, male hating rabid Hispanic supremacist. Having her on the Court is the perfectly equivalent of placing a KKK lawyer.

Her rabid threats only worked only because all PC is case. And male lawyers know the hierarchy in the courts will destroy them. Men with guns will come to take all their hard earned assets, because the lawyer profession is plundering the productive male.

Posted by: Supremacy Claus | Aug 3, 2013 6:30:16 PM

Onlooker 1 through 100: Tell us where you live. We will seize your neighbors' homes, under Kelo. We can place up to 8 convicts in each home surrounding yours without zoning board review. These convicts will be non-violent pot growers (who protected their harvests with war dogs, automatic weapons and booby trapped explosives), sick old men, mere cocaine addicts, not at all a threat to your beautiful daughters walking to school, every morning, passing them sitting on the porch. Maybe your daughters want to pet the war dogs of the pot growers.

When I say war dogs, you might be thinking of a disciplined Army German shepherd. No.


Posted by: Supremacy Claus | Aug 3, 2013 6:51:46 PM

onlooker14 --

You cannot possibly guarantee that prematurely releasing thousands of prisoners will produce no additional harm to the public (and, notably, you give no such guarantee). California officials have already promised that realignment would not release dangerous prisoners and, despite what I am willing to assume are their good faith efforts to keep that promise, have grossly breached it, as Kent Scheidegger has shown in numerous entries on Crime and Consequences. But even putting that to one side, your proposals do not carry you the needed distance.

First, you do not even claim, much less show, that your proposals added together would produce the number of releases the court is demanding. Second, cocaine distribution is a harm unto itself (which is why even stark libertarians get real quiet when the talks turns away from legalizing pot to legalizing the harder drugs). Third, the number of prisoners over age 80 is miniscule; you might as well suggest that the problem will be solved by releasing albino prisoners. Fourth, you conspicuously omit any limitation on your proposal that good time be increased. That being the case, the very worst, most unreconstructed and most dangerous criminals would be released, provided only that they are (relatively) near the end of their sentences.

Everyone knows that the court system is fallible and the prison system at least as fallible. It's therefore nothing more than pie-in-the-sky to believe that now, suddenly and for the first time, Plata-demanded releases will go just right. They won't, and, as I said, innocent people, most of them in no position to protect themselves, will pay the steepest price.

Posted by: Bill Otis | Aug 3, 2013 6:53:11 PM

Bill, as usual you are right.

They have no answer, other than to play junior G-man penologist.

Posted by: federalist | Aug 3, 2013 7:48:36 PM

"And then there's Tim. Tim, apparently, is upset that I say very offensive things about Supreme Court Justices. Waaahhhh Waaaah."

Federalist --- I was pointing out that you complained about someone being "semi-anonymous" when that person said "tough shit" when all of your statements have always remained 100% anonymous. You feel free to insult anyone you want, over the internet, while remaining anonymous. Your concerns with others being anonymous or semi-anonymous do not apply to you?

Again, this is what I stated earlier.

Federalist stated: "It's easy to say 'Tough shit.' as a semi-anonymous twit on a blog." Do you mean as compared to a completely anonymous person who has been, for a number of years, very offensive to various people, including SCt justices?

Posted by: Tim Holloway | Aug 4, 2013 12:31:11 PM

OK, so now we have to get into satellite debates over anonymous posting. Tiresome, but whatever. My comment was not designed to advocate rules about whether someone should be anonymously posting things. What I was saying was that it's easy to post a comment that basically says "too bad" to people who are going to suffer as a result of this. How this is not obvious is beyond me, but once again whatever.

Tim also accuses me of being a hypocrite because I say "very offensive" things about judges etc. Really? Is referring to Sotomayor as the "wise [sic] Latina" really all that offensive? Lighten up, Francis. Just about everything I say in here I back up with argument, so the issue isn't really anonymity, but some sort of lame plaintive wail about civility.

In any event, once again, I note that you won't defend Reinhardt, the Plata decision, Kagan or the "wise [sic] Latina." Instead, you try to engage in satellite debate about anonymity. If you want to run with the big dogs, you need to get off the porch. Maybe you could start by explaining why my comments about judges bother you more than the moral obtuseness of "tough shit."

Posted by: federalist | Aug 4, 2013 12:48:43 PM

Federalist, you keep bashing Reinhardt. Admittedly, he's a liberal judge. So? Are there no conservative judges? Reinhardt has authored many hundreds of opinions. How may have you authored? I just grabbed a sampling of his :

Cardoza-Fonseca v. U.S. Immigration and Naturalization Service, 767 F.2d 1448 (9th Cir. 1985)(the INS had conflated two different routes for seeking asylum and had improperly rejected an application made under one route based on the requirements of the second); Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994)( The Sixth Amendment right to counsel can be infringed if counsel has a conflict of interest, even if the defendant has waived the conflict.);
Ma v. Reno, 208 F.3d 815 (9th Cir. 2000)( An alien cannot be held indefinitely in detention in the absence of a repatriation agreement with his or her country of origin.); In The Matter of Brad Levenson (2009)( In his role as Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, Reinhardt ruled that the application of the Defense of Marriage Act in denying health insurance benefits to Levenson's same-sex spouse violated the Due Process Clause of the Fifth Amendment.); Perry v. Brown (2012) (Writing for the majority, Reinhardt held that Proposition 8 violated the Equal Protection Clause because California had no rational basis for withdrawing the right to marry from gays and lesbians.)

I ask again. How many opinions have you authored?

By the way, I note that Reinhardt has received the following awards:

1987 Appellate Judge of the Year by the California Trial Lawyers Association.

1995 Appellate Justice of the Year by the Consumer Attorneys Association of Los Angeles.

How many award have you received?

Posted by: onlooker15 | Aug 4, 2013 1:42:30 PM

Federalist, you also repeatedly bash Kagan. Shall I compare her to a summer's day?

Kagan graduated from Princeton summa cum laude? Did you? While there she was the editorial chair of the Daily Princetonian? Of what publication were you the editor? In 1980, she received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the university, which enabled her to study at Worcester College, Oxford. What award did you receive? She earned a Master of Philosophy at Oxford in 1983. Did you receive an equivalent award? Do you have a Master of Philosophy degree from Oxford? From any university? Federalist, Kagan attended Harvard law shcool where she later became a professor and its first female dean. When did you become a professor at Harvard? Federalist, Kagan graduated Harvard law magnum cum laude. Did you? While at Harvard she was elected chief editor of the Law Review. Federalist, were you chief editor of any law review? And what year were you the dean of any law school? Kagan became a tenured professor of law at the University of Chicago. Are you a tenured professor at any law school? Federalist, Kagan became Solicitor General of the United States in 2009. When were you ever Solicitor General? Kagan is now on the Supreme Court. When were you appointed?

Posted by: onlooker15 | Aug 4, 2013 1:48:50 PM

Federalist, if your are such a "big dog," why are you anonymous?

Posted by: Tim Holloway | Aug 4, 2013 2:54:02 PM


Kagan credential qualify her to be inthe front of the line when the arrests of the lawyer hierarchy begin. All those places are treason indoctrination camps. They make intelligent modern people into dumbasses. This waking nightmare is not qualified to clean the toilet ogf the Court, let alone write any decision.

Posted by: Supremacy Claus | Aug 4, 2013 4:59:18 PM


Posted by: Supremacy Claus | Aug 4, 2013 5:03:05 PM

"Lighten up, Francis."

Best reference ever, even if you are a complete dick.

Posted by: The Death Penalty Sucks. | Aug 4, 2013 5:53:42 PM

s.c., let me ask you some questions:

Did you graduate from Princeton summa cum laude? Did you receive a Master of Philosophy degree from Oxford? Did you attended Harvard law shcool and graduage magna cum laude? Did you become a professor at Harvard Law and a tenured professor at the University of Chicago Law School? Were you ever elected to anything at all? Were you ever elected chief editor of the Harvard Law Review? Have you ever been nominated by the President and approved by Senate to be the Solicitor General of the United States? Have you ever been nominated by the President and approved by the Senate to be on the Supreme Court?

S.C. Shame on you and shame on your nonsensical rants. Spend a buck on a good therapist and get a life.

Posted by: onlooker 14 | Aug 4, 2013 5:57:09 PM

"Federalist, if your are such a "big dog," why are you anonymous?"

He's anonymous because he's a partner at a global law firm, and the firm in question would not approve.

Posted by: The Death Penalty Sucks. | Aug 4, 2013 6:08:31 PM

S.C. you say that Sotomayor's advancement was the result of affirmative action, and imply it was not the result of her own intelligence, diligence, and perseverence. You promote an ugly racist canard.

In fact Sotomayor graduated summa cum laude from Princeton University in 1976. Do you think graduating Princeton summa cum laude is a product of affirmative action? Please explain coherently. Sotomayor received her J.D. from Yale Law School in 1979 and became an editor at the Yale Law Journal. Do you think her being selected as an editor of the Yale law Journal, where only the best and the brightest work, was the result of affirmative action? Pleas explain. And please explain rationally and coherently.

Sotomayor worked as an assistant district attorney in New York for four and a half years before entering private practice in 1984. Do you think the district attorney of New York kept her on because of affirmative action? Please explain coherently.

When on the Second Circuit Court of Appeals, Sotomayor heard appeals in more than 3,000 cases and wrote about 380 opinions. Was this the result of affirmative action? By the way, how many opinions have you written?

Sotomayor has taught at the New York University School of Law and Columbia Law School. Is this the result of affirmative action? By the way have you been asked to teach at these schools? Where have you taught? When?

Please stop your ignorant, racist, and deranged attacks on judges and lawyers.

Posted by: observer | Aug 4, 2013 6:11:03 PM

"Did you graduate from Princeton summa cum laude? Did you receive a Master of Philosophy degree from Oxford? Did you attended Harvard law shcool and graduage magna cum laude? Did you become a professor at Harvard Law and a tenured professor at the University of Chicago Law School? Were you ever elected to anything at all? Were you ever elected chief editor of the Harvard Law Review? Have you ever been nominated by the President and approved by Senate to be the Solicitor General of the United States? Have you ever been nominated by the President and approved by the Senate to be on the Supreme Court? "

Those would have erased my academic high school education, and rendered me into a dumbass. Like fish in the sewer has no awareness of the air let alone of the land. Ask Prof. Berman how he was made to forget the Scholasticist origin of the central word of the common law, reasonable. And why it must be the central word of the common law. He learned about it in World History in 10th Grade, as I did. Ask him why the reasonable person standard must be based on a fictitious character or a mistrial must be called. He will say, so it can be objective, but that is not enough. I want you to research the subject in the Catholic Encyclopedia. Now how would you like it if I had said, the Islamic Encyclopedia? Why is that any more acceptable to study the Catholic encyclopedia than the Sharia? It is not in our secular nation.

Neither Kagan nor Sotomayor will know why reason must be at the center of the common law. Why, because they are lawyer dumbasses. That is not an epithet, but a lawyer term of art. It describes the process of having an intelligent, modern student come to believe in supernatural powers, and rigid obedience to the hierarchy of a criminal cult enterprise, with no awareness of the air and land above their sewer in which they swim.

Posted by: Supremacy Claus | Aug 4, 2013 6:21:15 PM

Onlookers: You must disclose whether you are government dependent parasite, defending the rent. If you are, you are arguing in bad faith, in defense of your economic self interest. We kill the criminals, you lose your job. That is true even of the prosecutors, government dependent parasite, crushing all citizen self help to protect their client, the criminal, betraying the citizen. The top prosecutors are all on the arrest list.

Posted by: Supremacy Claus | Aug 4, 2013 6:27:03 PM

Observer, not Onlooker: All my facts are from her book.


Those schools are not that good, say compared to those in the Midwest. They just think they are, and promote themselves, but the brightest do not end up there, just people with 3.95 GPA's. Anybody can do that, just study 80 hours a week.

They had a politically correct agenda, and a quota, thus Sotomayor were placed in those positions, as was Barack Obama. I have talked about a party I attended with a bunch of Harvard Law grads. Obama was lazy, and not knowledgeable on the law review, just like he is now. Combine that inferior ability with the dumbass process that happens in law school, that turns modern intelligent people into mental cripples.

The lawyer profession has fully infiltrated the three branches of government, and is making 99% of the policy decisions, rendering government nearly useless. We pity our friends in Mexico for their corruption, and bribery. Imagine, the Drug Cartel occupies all benches, most legislative seats, and policy positions in the executive. Then they run it only for their own empowerment and enrichment.

Posted by: Supremacy Claus | Aug 4, 2013 6:38:47 PM

I think if you study 80 hours a week, you are not well rounded enough, and do not know enough about the world. It makes you a naive Momma's boy, where the dangerous world will favor a street savvy dirty fighter as leader. That explains a lot of catastrophic rookie mistakes made by lawyers in positions of policy and decision. What is worse? Their lack of awareness of their inferior leadership, and their over self confidence.

Posted by: Supremacy Claus | Aug 4, 2013 6:44:55 PM

It is ironic. The biggest, most hate filled, hate spweing anti-male, anti-white racist is Sotomayor, yet no one may criticize her biases. Why? She brings home the bacon to the government dependent parasite.

Posted by: Supremacy Claus | Aug 4, 2013 6:54:05 PM

Wow, isn't it funny how we get the resumes on these judges when they get criticized? Logical fallacy time--appeal to authority. And you guys can't even get my criticism of these judges straight. You will look in vain here for me ever calling Kagan dumb. Rather, I simply feel that she is not fit for polite company. She treated military recruiters as second-class citizens while at Harvard. Bad form. And when you stop to consider that the military was simply following orders from the civilian side of the house (DADT was, after all, the law of the land.), the snubs to those recruiters was simply an indefensible example of kicking down, not punching up. I've brought this issue up before, and no one can defend it. Of course, Kagan did join Plata, which has a bit of silliness, as shown above (once again, not challenged here).

As for Reinhardt--given all times he's been summarily reversed, one would think that a defense wouldn't name his opinions. One I will talk about--he apparently, like Breyer and Ginsburg, think that criminal aliens must be released on our streets if we can't deport them. (They can live in his neighborhood.) I must have missed that day in law school when they taught that people who have no right to walk the streets have the right to walk the streets. Interesting, to say the least. In any event, in the Belmontes case, Reinhardt was caught red-handed playing fast and loose with the trial record. That bit of dishonesty is appalling. Especially since it was on behalf of a cold-blooded killer. I mean, if you're going to hook up a litigant, should it really be a capital murderer?

As for the "wise [sic] Latina," once again, you can all recite her f'in resume. Blah blah blah. Bottom line, guys, she isn't all that. Let's put it this way, if I were a federal judge for 17 years, I would not have made the rookie mistake she made when she (in prepared testimony) stated that Ginsburg's opinion in Ricci would have affirmed the Second Circuit. No one defends that here or anywhere. And check out her incoherent response to Senator Kohl on term limits. And then there's the murderers get to vote nonsense she penned as a Second Circuit judge.

None of you here have come close to dealing with anything I've said--although I will thank TDPS for approving of my Stripes reference.

By the way, all of you should lighten up. "wise [sic] Latina" is funny, once you get over the lese-majeste attitude that permeates the bar.

Posted by: federalist | Aug 4, 2013 7:38:17 PM

"although I will thank TDPS for approving of my Stripes reference."

The one from Heat was good, too, even though you mixed together two different characters from two different scenes.

Posted by: The Death Penalty Sucks. | Aug 4, 2013 8:10:14 PM

There was a Shakespeare reference in here---but too obviously forced or so nauseatingly sycophantic.

Heat is a great flick. Best line of the whole movie: "I'll make time."

Second best line: "Because there is a dead man at the other end of this f['n] line."

Third best line: "I'm Donald Duck."

Fourth best line: "Clean yourself up."

Posted by: federalist | Aug 4, 2013 8:35:28 PM

Federalist, you're always ranting about the supposed injustice of the Plata decision. Why? The Court held 5-4 that a court-mandated population limit in California was necessary to remedy gross violations violation of prisoners’ Eighth Amendment constitutional rights--violations that had lasted for years. California's ongoing record of recalcitrance and delay, the the decision was eminently reasonable. Sure it could have gone the other way, but it didn't. Liberals lose 5-4 decisions all the time. My advice: Get over it and move on.

Posted by: Dave from Texas | Aug 4, 2013 11:42:57 PM

Federalist, you continue to promote the canard that Justice Kagan is unpatriotic and anti-military. You are entitled to your own opinion but not your own facts.

As Dean of Harvard Law School, Kagan did not prevent military recruiters from speaking To Students. While joining other schools in the recruitment ban, she still allowed Military recruiters access to students through veterans' groups. The New York Times reported: "Ms. Kagan did join more than half the faculty in January 2004 in signing an amicus brief when a coalition of law schools challenged Solomon in an appeal to the United States Court of Appeals for the Third Circuit, in Philadelphia. In November 2004, the appeals court ruled, 2 to 1, that Solomon was unconstitutional, saying it required law schools 'to express a message that is incompatible with their educational objectives.' The day after the ruling, Ms. Kagan - and several other law school deans - barred military recruiters from their campuses. In Harvard's case, the recruiters were barred only from the main career office, while Ms. Kagan continued to allow them access to students through the student veterans' group." [New York Times, 5/6/10,

Federalist, former Harvard Law Dean Robert C. Clark wrote in the Wall Street Journal: "As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school had a policy requiring all employers who wish to use the assistance of the School's Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on. For years, the U.S. military, because of its 'don't ask, don't tell' policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association. The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal." [Wall Street Journal, 5/11/10]

Furthermore, Kagan lifted the ban after the Pentagon threatened funding cut-off and after the Supreme Court Decision. According to the New York Times: "the ban lasted only for the spring semester in 2005. The Pentagon told the university over the summer that it would withhold 'all possible funds' if the law school continued to bar recruiters from the main placement office. So, after consulting with other university officials, Ms. Kagan said, she lifted the ban. After doing so, she and 39 other Harvard law professors signed an amicus brief urging the Supreme Court to invalidate Solomon. So did the university. They all received a dose of reality in March 2006 when the court ruled, 8 to 0, against them. 'A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message,' Chief Justice John G. Roberts Jr. wrote in the opinion. The ruling had little practical effect, since most universities, including Harvard, were in compliance. Despite the legal setback, Ms. Kagan continued to express her views, if less vocally." [New York Times, 5/6/10,

In her letter to the Harvard Law School community regarding the lifting of the recruitment ban, then-Dean Kagan wrote: "I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. The importance of the military to our society - and the great service that members of the military provide to all the rest of us - heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country."

Kagan also made the distinction between service members and military policies
As she stated: "We Distinguish Between Those Who Serve Their Country And The Discriminatory Policy Under Which They Serve." The New York Times reported: "Capt. Kyle Scherer, 25, who graduated from [Harvard] law school last year and is now a military intelligence officer with the Army in Afghanistan, said by phone last month from Kabul that Ms. Kagan always supported students interested in the military. When recruiters came on campus, Ms. Kagan would send out e-mail messages, saying, in effect, 'we distinguish between those who serve their country and the discriminatory policy under which they serve.' Last year, when he was promoted from first lieutenant to captain in the Massachusetts Army National Guard, he invited her to the ceremony and gave her the honor of pinning his captain's bars on his shoulder." [New York Times, 5/6/10,

So, Federalist, please stop with your nonsense about Kagan's supposed lack of patriotism and her supposed anti-military attitudes.

Posted by: Retired Army | Aug 5, 2013 12:07:38 AM

Federalist, I'm not a lawyer. But from what I've read Plata was 5-4 against your position. Now the Supreme Court has denied a stay of the latest release order 6-3. It appears to me that your position is losing ground. Am I missing something?

Posted by: Amy not a lawyer | Aug 5, 2013 12:12:16 AM

retired military guy--that's all well and good, but the bottom line is that military recruiters got second-class treatment. Why don't u start by getting that right? She can say all she wants--but actions speak louder than words. I still don't see how all the words change the fact that military recruiters got rudely treated over something they had no control over. That's like stiffing the waitress because the dish had too much salt. I don;t know why this is so hard to understand--i guess ideology trumps common sense.

By the way, note what she said--"discriminatory policy"----that's an interesting way to whitewash the fact that DADT was a law passed by Congress. So she's intellectually dishonest.

Posted by: federalist | Aug 5, 2013 12:47:07 AM

Retired Army: Fascinating but not of interest to outsiders.

When we say, government does nothing right, that includes the lawyer crippled military of the United States. it is always claimed as one of the best, when rag tag tribesmen with 100 year old weapons can chase it out of a country at will. And it takes 10 years to find a giant terrorists with a retinue of hundreds. I want Retired Army to explain the following:

1) were lawyers embedded down to the brigade level, and did they cancel tactical orders of people in the field, as breaking some regulation; did commanders obey these commissars of political correctness; what happened to any commander disobeying the lawyer commissar;

2) how many American soldiers were killed or injured, how many civilians under our protection were killed or injured as a direct result of lawyer intervention to protect the enemy from our warriors;

3) is the Army training to attack American civilians on US soil? Are soldiers being indoctrinated into suppressing any reluctance to kill fellow citizens? Since this is a sentencing blog, are facilities ready for the rounding up of thousands of citizens, as the Taliban forced the population into stadiums to watch executions of dissenters?

Posted by: Supremacy Claus | Aug 5, 2013 1:09:07 AM

Amy: The Supreme Court are lawyers. They know nothing about nothing. A complex technical field like corrections is way beyond their understanding. Daubert applies to expert testimony, and it should apply to appellate decisions, making them empirically valid. Until it does, no Supreme Court decision has any external validation.

Posted by: Supremacy Claus | Aug 5, 2013 1:14:01 AM

Retired Army et. al. makes John Stuart Mill right once again.

Posted by: Joe | Aug 5, 2013 11:26:04 AM

Joe, I don't get the Mill reference. Surely you don;t think that retired army explained away Kagan's second-class treatment of military recruiters? The bottom line is she did give completely blameless people shabby treatment. Why is that so difficult to simply admit?

As for Dave from Texas, I'll be charitable, but each and every sentence in your post is ill-considered:

The Court held 5-4 that a court-mandated population limit in California was necessary to remedy gross violations violation of prisoners’ Eighth Amendment constitutional rights--violations that had lasted for years." No Dave, remember, the Court had to make conclusions about PLRA, and there were other problems with the decision (i.e., freezing the facts while the state had made improvements before injunction) too numerous to catalog here.

"Federalist, you're always ranting about the supposed injustice of the Plata decision. Why?" Funny how you don't address my points about California having to deal with illegal immigrant criminals or the composition of the panel. But even more fundamentally--have you paid attention to the statistics--crime (i.e., victims) is exploding in California.

"California's ongoing record of recalcitrance and delay, the the decision was eminently reasonable." PLRA says otherwise, but what's a federal statute between friends.

"My advice: Get over it and move on." Yep, let's just accept BS from on high.

Posted by: federalist | Aug 5, 2013 8:08:44 PM

Mill was a strong supporter of free speech, even when it is included strong language and error -- "what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error."

works no matter who is right here.

Posted by: Joe | Aug 5, 2013 11:30:09 PM

I see, Joe, you want no part of defending retired army.

I say things bluntly and without any couching (unless you want to say my qualification on stupid is couching)---this ought to be an inviting target for libs to put me in my place. But none of you can. The best that gets mustered up is that I am a big meanie or disrespectful to judges.

And look at the weak replies that do come--retired army--what a joke. Basically, if I can understand what he's saying, is that because some reserve guy wanted Kagan to pin on his captain's bars and because she said the right thing that somehow she didn't subject military recruiters to second-class treatment? How weak is that?? If that's all you got, then that pretty much seals it. She is an unpatriotic person, willing to be rude to those who have no choice. Unpatriotic and cowardly. If she had a beef with DADT, the remedy was to go bitch at Congress and Bill Clinton. Instead, she picked on some poor person who was just doing his/her job. What cowardice.

The silence is deafening---I am right, but you guys support Kagan anyway. Fair enough--but it is contemptible. I wouldn't shake Kagan's hand. She is not fit for polite society. What does it say about the character of the effete and arrogant guy we have in the WH that he would send servicemen to their deaths, yet elevate a woman who treated servicemembers disrespectfully? I think we all know what it says. Too bad none of you libs are intellectually honest enough to man up and admit it.

Posted by: federalist | Aug 6, 2013 1:22:52 AM

federalist, I admit I'm dumb so enlighten me. What's wrong with treating military recruiters with second-class treatment when he military was treating gays and lesbians as second-class citizens?

Posted by: onlooker | Aug 6, 2013 12:02:10 PM

Big Dog Federalist really thinks highly of himself. He is the self-appointed judge of his own arguments. Look at his response to Retired Army. Is there anything logical in that response (for example, stating "what a joke?" really justifies Federalist's position).
How about "the silence is deafening" in that response . . . despite the lengthy and cogent nature of Retired Army and the other responses? Big Dog you are foaming at the mouth and not making any sense.

Posted by: Tim Holloway | Aug 6, 2013 2:45:02 PM

Tim--why don't we start with three baseline facts:

1) Elana Kagan excluded military recruiters from full participation in HLS' on-campus recruiting.

2) The military recruiters themselves had no responsibility for discrimination against homosexuals in the military.

3) The military itself was simply following the directives of the civilian government.

Retired Army gives some background and tells us what Elana Kagan said. I point out what Elana Kagan did. I also point out Elana Kagan's intellectual dishonesty. These things pretty much eviscerate retired army's point, which was what, Kagan was thrust into a situation, treated the military recruiters ok because they had access and said some nice things.

I think that comes through in my post. And yeah, I think retired army's post is a joke because it doesn't address the point--Kagan subjected blameless military recruiters to shabby treatment. Besides the "kick down" nature of that, it's unpatriotic. If she didn't like DADT, she should have written her Congressperson, not taken it out on a military member during wartime.

So Tim, were you always this obtuse, or did you have to work at it? Retired army's post in no way addressed my argument, so "cogent" wouldn't be an apt choice of words.

Now Tim, do you want to try to defend Reinhardt? Or maybe my assessment that Plata has a significant logical flaw. I may be foaming at the mouth, but I am kicking your liberal ass.

Onlooker, I believe my post answers your question. The military was simply following the directive of civilian authorities. And the recruiters were personally blameless--so no, Kagan's actions were not justified, and, in my view, she is not a patriot and is unfit for polite company.

Posted by: federalist | Aug 6, 2013 9:09:56 PM

this is funny fed!

"The Court held 5-4 that a court-mandated population limit in California was necessary to remedy gross violations violation of prisoners’ Eighth Amendment constitutional rights--violations that had lasted for years." No Dave, remember, the Court had to make conclusions about PLRA, and there were other problems with the decision (i.e., freezing the facts while the state had made improvements before injunction) too numerous to catalog here."

So just because they finaly 20 years later start to clean up the mess they made. They get a pass on the original crime?


The govt certainly won't give anyone else that break!

What it all boils down to is that the state of calif for 20+ years violated the civil rights of 1,000's and now they are being punished for it.

Tough Shit!

Yes i said said Tough Shit!

I am talking about the calif government as well as the retards who voted it in who decided it was just fine to violate those rights for decades!

We just need to up the border patrol into the other states to make sure those former inmates can't leave the state

Posted by: rodsmith | Aug 7, 2013 10:54:56 AM

oh my gosh and it's a democratic governor 'moonbeam' that's trying to push the feds enforcement back, my goodness what's next when a rightwing conservative masty boy actually defends a liberal 'linda ronstadt' loving democrat if skylab hadn't already fallen from space already I'd say make sure you to look up

Posted by: skylab is falling | Aug 7, 2013 7:21:18 PM

I think the libs have abandoned the field.

Posted by: federalist | Aug 7, 2013 10:17:56 PM

Federalist, the libs may have abandoned the field, and good riddance to them. As for me, I'm as conservative as they come and will meet you on the field of battle any time. As to the matter at hand, I point to Kagan’s 2007 speech at West Point, where she praised the military and emphasized that her stance on military recruitment was not an indictment of the armed forces as a whole:

"I want to thank all of the cadets here this evening-not for attending this talk (I’m told it’s not optional!), but for all you will do to defend, protect, and strengthen this country. Each of you has made a decision-a profound commitment-· to join “the long grey line” of service. I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger. I know how much my security and freedom and indeed everything else I value depend on all of you....

I don’t accept many outside speaking invitations; this may be the only talk of this kind that I’ll give this year. I accepted this invitation primarily to thank all of you senior cadets....

I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds indeed, facing each other in court – on one issue. That issue is the military’s don’t-ask don’t- tell policy. Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation. And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise.... But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue."

Of course, Kagan could hardly take a generally negative stance on the military in a speech at West Point. But as she implied in the speech itself, if she were genuinely anti-military, she could simply have turned down the invitation (perhaps by pleading conflicting commitments, of which an HLS dean usually has many).

This speech should put to rest your unfounded and tiresome character assassination of Kagan as unpatriotic and anti-military. By the way, Federalist, when was the last time you were invited to speak at West Point?

Posted by: Retired Army | Aug 8, 2013 10:10:39 AM

Federalist -- you prove yourself every time you comment. You are not "kicking my liberal ass." I have not even commented on the arguments in this thread. I have commented on you being one obnoxious person and a hypocrite who, with broad conclusions, awards himself the trophy in any argument --- ignoring everything else as "jokes, etc." You remain anonymous because you don't have the guts to say the things you do and allow people to know who you are. When people say far less rude things about you than you say about others, you claim the only response to your arguments is that people call you a "meany, etc . . . and ha, ha, ha, look Federalist has won." How about you tell us who you are?

Posted by: Tim Holloway | Aug 8, 2013 3:00:33 PM

retired army--I have written what Kagan did; you have responded by noting what she said. Usually, actions speak louder than words. What Kagan did (and no one here disputes) is treat blameless military members as second class citizens, and even the rationale, i.e., that the military discriminated against homosexuals, is weak because the military was simply following the directives of the civilian government. DADT was a statute, passed by Congress and signed by the President. So why was Kagan directing her protest at the military, rather than the civilian government?

It is really interesting, retired army, that you told me that I am entitled to my opinion, but not my facts---but you haven't disputed the facts as I have presented them. Instead, you imply that because Kagan made a nice speech at West Point, she is somehow inoculated from my conclusions about her actions in treating military recruiters as second class citizens.

Now onto to Tim Holloway. of course, you haven't engaged in any argument because it's my sense that you can't. At first, you wanted to engage in some satellite argument about me being anonymous after I noted that it's easy to make morally obtuse comments on a blog. I don't particularly care if you think that makes me a hypocrite--so what if it does? It doesn't make my arguments any less sound, and if you don't like me harshly criticizing judges, well, once again, so what? By the way, I don't think it makes me a hypocrite--I don't usually toss around morally obtuse comments about the suffering of innocents. But whatev, you're entitled to your opinion, and if you want to feel all good about yourself because you think I am a hypocrite--go for it.

Now, you want to engage in naked name-calling. I am obnoxious--why really? Because I call a spade a spade and say that pointing to some speech when the issue at hand is what someone did is a joke. And by the by, retired army criticized what I said about Kagan in relatively harsh terms, but i am the bad guy when I respond in kind? OK, gotcha. I may be obnoxious, rude, whatever you want to call me--but you are stupid. Your comment about me not having any logical response to retired army is patently absurd. As was your comment that his response was "cogent." I guess in twitlandia a reference to a speech somehow explains away the second-class treatment of military recruiters, but in normal society, actions aren't so easily explained away, and certainly, using a speech as a defense against criticism for a certain action doesn't justify calling the criticism of the actions "nonsense."

I'll ask you point blank, Tim, why should blameless military recruiters get second-class treatment?

Or do you want to stay on the porch?

Posted by: federalist | Aug 8, 2013 10:01:45 PM

I forgot this: "That issue is the military’s don’t-ask don’t- tell policy." That is a quote from Kagan herself. Note the utter dishonesty. She knew better. She knew that the military obeys the civilian government. Yet she chose to ascribe responsibility to the military for a statute. You know, something passed by Congress and signed by the President . . . .

So basically she was dishonest in a speech to members of the military.

There's no real debate here--you know it--so you basically want to call me names. Contemptible twits. Kagan's just another 'rat----talks a good game about respecting the military. She can join Senator Durbin (another contemptible 'rat.) in the unpatriots hall of shame.

Posted by: federalist | Aug 9, 2013 1:32:54 AM

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