Israel Reflections 2017–The Israeli Supreme Court

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Category: International Law & Diplomacy, Judges & Judicial Process, Marquette Law School, Public
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Interior view of a hallway in the Isralei Supreme Court Building with natural light strwaming in from a row of windows.This year we were able to meet with two different former Israeli Supreme Court Justices–at the beginning and at the end of the trip–which provided great bookends to our week of learning.  Student Celeste Borjas reflects on the visit to the Supreme Court…

On our last day in Jerusalem we were able to tour the Israeli Supreme Court. The Israeli Supreme Court building is conveniently situated between the Israeli Parliament building (the Knesset) and the office of the Prime Minister. Our tour guide explained that this was purposeful, and was meant to symbolize the role of the judiciary as mediator of conflict. As we entered the building, I was taken aback by the amount of natural light entering through the windows. Though it was a very rainy day, there was no need for lamps or artificial lighting in the foyer. Another physical attribute of the Court foyer that caught my eye was the aesthetic created by a wall made entirely out of Jerusalem stone (a sandy-white limestone out of which most buildings in Jerusalem are constructed) standing opposite of a clean unadorned wall of white plaster. Our tour guide explained that this juxtaposition was meant to symbolize how the laws of men on Earth should complement the ultimate pursuit of eternal justice.

One of the first things to surprise me was that the Israeli Supreme Court actually operates similarly to the United States Court of Appeals. I had originally expected the highest court in Israel to resemble the Supreme Court of the United States. Not so. Like the U.S. Court of Appeals, the Israeli Justices (13 total) typically preside over cases in panels of three. Additionally, parties to a suit are entitled to an appeal at the Israeli Supreme Court as a matter of right. Moreover, any person may directly petition the Israeli Supreme Court (and bypass the district courts) if an action by an Israeli governmental entity contradicts/contravenes the basic laws of the Knesset. This last point reminded me of the power of the D.C. Circuit to hear cases involving federal agency action. Read more »




Roggensack Calls for Defending Legitimacy of Courts from “Tough Talk” of Critics

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Category: Judges & Judicial Process, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Wisconsin Supreme Court Chief Justice Patience Roggensack wanted to use her Hallows Lecture at Marquette Law School on March 7 “to start what I hope will be a public conversation about a rising challenge to the institutional legitimacy of our courts, both state and federal.”

Roggensack launched the conversation with strong words for those she thinks are harming the standing of courts as a whole. She named names and spoke forcefully about the impact of those inside and outside the legal system who have disparaged some judges and justices in personal terms or who have said the Wisconsin Supreme Court and other courts make decisions based on political allegiances. She criticized what she called their “tough talk.”

“Most tough talk comes from those who have no conscious intent to harm the institutional legitimacy of courts, but have not considered the unintended consequences that may follow from their fully protected speech,” Roggensack said. Read more »




From Immigration to Executive Orders to Judicial Review: Miracle or Not?

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Category: Civil Procedure, Judges & Judicial Process, Political Processes & Rhetoric, Public
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[The following guest post is from Jacques Condon, the alumni guest blogger for October 2016.] In the movie Die Hard, an enterprising police office played by Bruce Willis thwarts a large-scale robbery attempt (of, all things, bearer bonds). He does it barefoot, and clandestinely. But he also has aid from outside law enforcement which, unwittingly, is also used by the bad guys to their advantage. According to the lead bad guy, played by Alan Rickman, when asked what miracle will crack the safe to expose its riches, he responds: “You asked for miracles, Theo, I give you the F.B.I.”

The Die Hard “miracle” is rolled out for full entertainment value, and, to be sure, even Hollywood miracles that can be traced to non-fiction are sometimes hidden by the misnomers of “Based on a True Story” or “Taken From Real Events,” which allow for artistic license.

Yet this same point — the artistry of miracles — continually shows up in explaining and describing judicial rhetoric.

Nowhere has this been more than in the sound bites surrounding the President’s executive order on immigration. Read more »




Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

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Category: Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public
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galler_hornsgatan_2012aMy recent article, “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” examines judicial decisions that reflect an increasing dissatisfaction with harsh criminal penalties and severe collateral consequences for nonviolent offenders.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

A full copy of the article can be downloaded at the New York University Law Review Online.

Nora Demleitner is the 2016 Boden Visiting Professor at Marquette University Law School.




ACS Panel Explains Voting Rights Litigation in Wisconsin

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Election Law, Judges & Judicial Process, Marquette Law School, Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Law & Legal System
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img_5794-meOn October 20, I had the honor of moderating a panel discussion at the Law School devoted to Voting Rights Litigation in Wisconsin.  The event was co-sponsored by the Marquette University Law School Student Chapter of the American Constitution Society and the Milwaukee Chapter of the American Constitution Society (ACS). A crowd of approximately 60 persons witnessed a lively presentation on the right to vote under the U.S. Constitution, recent legislation in Wisconsin that places burdens on the ability of some people to vote in our State, and the status of litigation in the federal courts challenging these state laws.

The event began with a welcome from the Chair of the Milwaukee Chapter of the ACS, Attorney Craig Mastantuono.  Attorney Mastantuono began with a description of the mission of the American Constitution Society and the benefits of membership.  He also noted the excellent timing of the day’s event, given the attention currently being given to the integrity of the American voting system.  Then Attorney Mastantuono introduced the Mayor of Milwaukee, the Honorable Tom Barrett.

Mayor Barrett began his remarks by providing the Marquette University law students in attendance with a bit of career advice: namely, the importance of being nice to your colleagues in the workplace.  Turning to topic of the federal judiciary, Mayor Barrett criticized lawmakers who impose litmus tests on judicial appointees, in a misguided attempt to ensure that there is “only one type of thinking in our court system.”  Mayor Barrett also expressed his disappointment in the fact that Wisconsin is no longer a national leader in ensuring access to the ballot, and criticized recent state laws that have made it more difficult to vote in the City of Milwaukee.  Finally, while he touted the benefits of early voting as a means of improving ballot access, the Mayor explained that there are limits to the City’s ability to expand the early voting process due to the City’s interest in maintaining a well-administered voting process. Read more »




What Happens if Trump Drops Out?

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Category: Constitutional Law, Election Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court
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Donald_Trump_-_CaricatureWhat happens if Donald Trump drops out of the presidential race?  Some Republican politicians have begun to call on Mr. Trump to step down as the Republican nominee for President (he cannot be forced out).  If this happens, the Republican Party would then select a new nominee for President.

It might be conceivable for Donald Trump to voluntarily step down, and for the Republican Party to select an alternative nominee.  However, the real issue is whether the name of the alternative nominee would appear on the ballots of a sufficient number of states to permit an Electoral College victory.  At this late date in the election cycle, the names of presidential candidates on absentee ballots have already been finalized in many states.  In fact, early absentee voting using the final ballots already is underway in Wisconsin and many other states such as California, Ohio and Indiana.  Every day, more state deadlines for placing names on the ballot pass, and it is probably already too late to prevent Donald Trump’s name from appearing as the Republican nominee on a majority of the ballots used by states across the country.  To get state officials to print new ballots and then allow re-voting of ballots already turned in would require 1) litigation in state courts across the country and 2) the willingness of a large number of these state court judges to adopt an unprecedented procedure based upon vague “emergency” arguments.  Such a high stakes multi-state litigation effort would make the combative Bush v. Gore lawsuit look like a law school moot court competition in comparison.   Read more »




Time is Running Out to Confirm Judge Garland

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Category: Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court
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Merrick_Garland_speaks_at_his_Supreme_Court_nomination_with_President_ObamaThe unprecedented, and unconstitutional, obstruction of Supreme Court nominee Judge Merrick Garland is just one of many recent missteps by Republican leaders.  For example, mainstream Republican presidential candidates strategically withheld their attacks on Donald Trump during the primary season, in the hopes that he would be an easy target to topple once the field sorted out.  This was a major blunder.  More broadly, the decision of Republican leaders in Congress to make the repeal of the Affordable Care Act the centerpiece of their legislative agenda, at a time when Republicans lacked a veto-proof majority, was an empty gesture which merely fueled anger among their Party’s base and ultimately made Trump possible. Both of these decisions were political calculations that seemed clever at the time, but which turned out to have disastrous consequences for the Republican Party.   However, the unjustified refusal to hold hearings on a highly-regarded and moderate Supreme Court nominee has the potential to dwarf every other political miscalculation that Republican leaders have made over the last eight years.

First of all, it is important to recognize that Judge Merrick Garland is a laudable nominee for the U.S. Supreme Court.  He is a former federal prosecutor, a highly respected Judge on the U.S. Court of Appeals for the District of Columbia, and someone identified by Senator Orrin Hatch and other prominent Republicans (prior to his nomination) as the type of judge who would receive bi-partisan support in Congress.  Post-nomination arguments raised about Judge Garland’s supposed lack of respect for the Second Amendment are not justified by his actual opinions and, in reality, are merely a fig leaf contrived to rationalize opposition to the nomination by Republican lawmakers.

In addition, the refusal of the Senate to take up the nomination is a clear violation of the Constitution. Read more »




Trump’s Rhetoric, Proposed Policies, and the Rule of Law

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Category: Constitutional Law, Federalism, First Amendment, Immigration Law, Judges & Judicial Process, Media & Journalism, Political Processes & Rhetoric, Public, Religion & Law
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www.intellectualtakeout.org_

For some, presumptive Republican nominee for president Donald J. Trump’s biggest appeal is his blustery persona and his take-no-prisoners attitude in his quest to “Make America Great Again.” For example, he started his campaign with a bold promise to build a wall on the United States border to keep out Mexican immigrants. More than that, Trump said, he would make Mexico pay for that wall. Mexican President Vincente Fox said Mexico would not and Trump just upped the ante. When Wolf Blitzer asked Trump how he would get the Mexican government to pay for a wall, Trump responded simply, “I will and the wall just got 10 feet taller, believe me.”

And, in the wake of the mass shooting at Pulse, the gay nightclub in Orlando, Trump renewed his call to profile on the basis of race/ethnic origin and religion, in order prevent future terrorist attacks. (The Pulse nightclub shooter was American-born and raised; his parents were refugees from Afghanistan, but his father became a naturalized American citizen.) Though claiming he hates the “concept” of profiling, he says other countries profile, and “it’s not the worst thing to do.” Earlier in his campaign, after the San Bernardino shooting in December 2015, he talked about increasing surveillance of Muslims and mosques and has suggested registering Muslims or mandating that they carry cards that identify them as Muslims.

Trump also doesn’t suffer fools gladly—or more precisely, he doesn’t suffer his version of “fools” gladly. When the Honorable Gonzalo P. Curiel, the federal circuit judge presiding over two class action suits against Trump University, ordered documents in the suit be unsealed—documents that are likely to shed negative light on Trump University, Trump spoke loudly and often about Judge Curiel as a “hater” and biased against Trump because, in Trump’s view, Judge Curiel is Mexican and, presumably, would not like Trump’s wall. (Judge Curiel is an American, born in Indiana.) Trump went even further, seemingly threatening the judge: “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. . . . O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”

As well, just over a week ago, Trump revoked The Washington Post’s press credentials to cover his campaign because he did not like how it wrote about some of his comments after the mass shooting at Pulse, calling the publication “phony and dishonest.” Trump seems particularly thorny about The Washington Post’s owner, Jeff Bezos, who founded Amazon. Like Judge Curiel, Bezos has been on the receiving end of what seems very much like a Trump threat. According to The New York Times, Trump said in February about Bezos, “He owns Amazon. . . . He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”

These examples and more have a common theme: Trump’s disdain for the rule of law, if not outright ignorance of it. Read more »




How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

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Category: Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Milwaukee, Public, Wisconsin Supreme Court
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homeruleToday the Wisconsin Supreme Court issued its opinion in the case of Black v. City of Milwaukee, 2016 WI 47, holding that a state law (Wis. Stat. 66.0502) that prohibits cities and other municipalities from imposing residency requirements on municipal employees does not contravene the Home Rule provision of the Wisconsin Constitution (Art. XI, sec. 3(1)).  The result of the ruling is that the City of Milwaukee may no longer require city employees to reside within the City limits, with the resultant loss of significant tax revenue for Milwaukee.

Reading the text of the Home Rule provision, one might reasonably question how the Wisconsin Supreme Court arrived at this conclusion.  The relevant text of Art. XI states:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.

However, the Justices of the Wisconsin Supreme Court have very helpfully demonstrated how the clear language of the Wisconsin Constitution can be interpreted away in four easy steps. Read more »




Donald Trump and the Belief in Law

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Category: Judges & Judicial Process, Political Processes & Rhetoric, Public, Uncategorized
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Donald_Trump_-_CaricatureAmong Donald Trump’s many provocative statements, his recent claims that a specific federal judge with a “Mexican heritage” and Muslim judges in general would be biased against him have apparently struck a special chord.  Even Trump’s fellow Republicans have been highly critical.  Senator Mitch McConnell of Kentucky, for example, completed disavowed Trump’s claims, noting “All of us come here from somewhere else.”

Most of the criticisms deplore Trump’s lack of respect for American diversity and also his racism.  House Speaker Paul Ryan said in this regard that Trump’s comments amounted to “textbook racism.”  However, I wonder if some part of the strong negative reaction also relates to Trump’s challenge to an American belief in law and in the courts’ ability to apply law in a fair and objective manner.

I have argued in several of my writings that a belief in law should be recognized as an important tenet of American ideology, with “ideology” being understood as a normative expression of dominant beliefs rather than as a manipulative falsehood.  Americans have traditionally believed in law, which is presumably understandable, made in public, and useful for one and all.  In addition, law is supposed to be applied without bias, and independent courts in particular are expected to adjudicate disputes fairly and to decide similar cases in similar ways.  “Ideologues” — that is, believers in and promoters of this ideology– routinely assure us that Americans live by the rule of law more so than any other nation. Read more »




Insights Offered on Working in the White House and Judicial Nomination Gridlock

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It was three years from the time Brett Kavanaugh was nominated by President George W. Bush to be a federal appeals court judge to the time when his nomination was approved in 2006. That certainly gave him a first-hand look at the difficulties of getting a federal judicial nominee approved by the U.S. Senate.

“It’s been a mess for decades,” Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, said Wednesday during an “On the Issues with Mike Gousha” program at Marquette Law School. Republicans have held up appointments by Democratic presidents. Democrats have help up appointments by Republican presidents.

Kavanaugh would not comment specifically on the current high-profile part of this recurring “mess,” in which President Barrack Obama’s nomination of Judge Merrick Garland to the Supreme Court has met a wall of Republican opposition in the Senate.

But Kavanaugh repeated a position he has held for years, one that was in line with the policy Bush advocated when he was president: “There really should be rules of the road agreed on by both parties ahead of time to fix the process. “ Kavanaugh said Bush, during his presidency, had suggested a policy in which nominations would get a vote in the Senate within 180 days. Kavanaugh supported that idea. Read more »




Limited Terms for Justices Worth Considering, Appeals Judge Says in Hallows Lecture 

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Judge Albert Diaz began his E. Harold Hallows Lecture at Marquette Law School last week by saying that he was going to offer thoughts on life tenure for federal judges ”which I’m pretty confident do not reflect the views of many, if not all, of my judicial colleagues.”

But Diaz, a judge since 2010 on the U.S. Court of Appeals for the Fourth Circuit, thought the ideas he presented to be worth considering, especially at a time when concerns about the U.S. Supreme Court, including how justices are appointed, are getting so much attention.

In his Eckstein Hall lecture, Diaz outlined arguments for and against both life tenure for federal judges and election of judges. He traced the debate back to the U.S. constitutional convention in 1787 and the opposing views for and against life tenure. The former prevailed, of course.

“The act of judging is not for the faint of heart,” Diaz said. “Judging is a human endeavor” and decisions are “not always free from taint.” But it is difficult to decide what “on the front end,” i.e., in determining who will be a judge, would best minimize the chances of tainted judicial work.

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