Pro-Abortion Group Calls for Feinstein’s Ouster from Judiciary Committee after Amy Coney Barrett Hearings

Senator Dianne Feinstein (D., Calif.) speaks on Capitol Hill in Washington, D.C., January 15, 2019. (Yuri Gripas/Reuters)One of the nation’s top abortion groups is calling for Senator Dianne Feinstein (D., Calif.) to be ousted from her position as the Judiciary Committee’s ranking member after she praised the confirmation hearings on Supreme Court nominee Amy Coney Barrett, calling them “one of the best set of hearings that I’ve participated in.” Advertisement The head of NARAL Pro-Choice America issued a scathing statement on Friday, a day after the last day of hearings on Barrett’s nomination concluded. “Americans — whose lives hang in the balance — deserve leadership that underscores how unprecedented, shameful and wrong this process is,” NARAL president Ilyse Hogue said in a statement. “The Ranking Member of the Senate Judiciary Committee, Senator Dianne Feinstein, failed to make this clear and in fact offered an appearance of credibility to the proceedings that is wildly out of step with the American people. As such, we believe the committee needs new leadership.” On Thursday, Feinstein thanked Judiciary Committee chairman Lindsey Graham (R., S.C.) for his “fairness” in leading the hearings. Advertisement “Mr. Chairman, I just want to thank you,” the California senator said. “This has been one of the best set of hearings that I’ve participated in. And I want to thank you for your fairness and the opportunity of going back and forth. It leaves one with a lot of hopes, a lot of questions, and even some ideas of perhaps some goo bipartisan legislation we can put together to make this great country even better, so thank you so much for your leadership.” Advertisement Feinstein and Graham shared a hug after Feinstein’s remarks and as Thursday’s hearing concluded. Feinstein has said she will vote against Barrett’s confirmation. During the four days of confirmation hearings, Democrats, including Feinstein, frequently quizzed Barrett about her stance on abortion rights and asked whether she thought Roe vs. Wade, the Supreme Court case that legalized abortion nationwide, was wrongly decided. “I completely understand why you are asking the question, but I cannot pre-commit or say yes, I am going in with some agenda, because I am not,” Barrett responded when Feinstein asked her whether she considered Roe wrongly decided. Advertisement NARAL fought Barrett’s nomination vehemently, arguing that her confirmation to the high court would threaten abortion rights and could also jeopardize the Affordable Care Act. Send a tip to the news team at NR.

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Michigan Court Overturns Two-Week Absentee-Ballot Extension

A poll worker labels a wrapped pallet of absentee ballots for shipment at the Wake County Board of Elections on the first day that the state started mailing them out in Raleigh, N.C., September 4, 2020. (Jonathan Drake/Reuters)A Michigan court ruled Friday that absentee ballots must be received by Election Day in order to be counted, overturning a lower court’s two-week extension that was hailed by Democrats in the key swing state. The state’s appeals court said that absentee ballots must be received by 8 p.m. on Nov. 3, ruling against a lower court’s decision to allow votes to be counted up to 14 days after Election Day as long as they were postmarked by Nov. 2. Michigan’s Republican-controlled legislature brought the appeal after the ballot deadline was extended. Advertisement “To be sure, the pandemic has caused considerable change in our lives, but election officials have taken considerable steps to alleviate the potential effects by making no-reason absent voting easier for the 2020 election,” the three appellate judges wrote in a unanimous decision. Democrats had pushed to ease restrictions on absentee voting amid the coronavirus pandemic, while Republicans argued that the recent Post Office delays combined with the expected increase in mail-in ballots this year are not reason enough to extend voting deadlines. “Although those factors may complicate plaintiffs’ voting process, they do not automatically amount to a loss of the right to vote absentee,” the judges stated. Advertisement The court’s decision also reinstated some restrictions on third-party ballot collection, limiting who voters can designate to deliver their ballot to election officials. Advertisement The ruling is similar to decisions by higher courts in Indiana and Wisconsin overturning ballot extensions. President Trump won Michigan narrowly in 2016 by less than 11,000 votes. Republicans in the state celebrated the court’s decision on Friday, calling it “a great day for the rule of law.” “It’s important that the rules aren’t changed during an election to advantage one party over another,” said Laura Cox, chairman of the Michigan Republican party. Send a tip to the news team at NR.

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How to Fix Judicial-Confirmation Hearings

Supreme Court nominee Judge Amy Coney Barrett (at left) on the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill, October 13, 2020. (Erin Schaff/Pool via Reuters)Reforms to the Senate Judiciary Committee’s procedures and a loosening of the so-called Ginsburg Rule would greatly improve the process. Adam J. White, a resident scholar at the American Enterprise Institute who serves as executive director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State, writes in the Washington Post that Supreme Court confirmation hearings are “indispensable.” White contends that hearings are worth preserving because they provide nominees with the opportunity to demonstrate the requisite legal acumen, and Americans with a chance to at once “focus their minds on the Constitution,” and have their voices heard “through their elected senators.” Advertisement He is right to say that on balance it is better to hold confirmation hearings for judicial nominees than not to. Even in their current form, they build confidence in the nominee, in the process, and in our system of government. Getting rid of them altogether would be detrimental to nominees, to the process, and to the judicial branch. That being said, it should be readily apparent to anyone who paid attention to Amy Coney Barrett’s appearances before the Senate Judiciary Committee this week that there are serious structural issues with how hearings are conducted. Certain reforms could improve the process such that senators could better interrogate nominees, nominees could better establish themselves as qualified to sit on the Court, and the American people could better understand the role of our Article III institutions. On Tuesday, Judiciary Committee members had their first opportunity to question Barrett. Some senators, however, mostly or entirely declined to use their time to ask her about her judicial philosophy. Sheldon Whitehouse, the Democrat from Rhode Island did not ask Barrett a single question in his allotted half-hour, instead opting to monologue and point to what Senator Ben Sasse called, perhaps generously, “Beautiful Mind conspiracy-theory charts.” Other senators of both parties did not speak for the entirety of their 30 minutes, but nevertheless only occasionally acknowledged Barrett’s presence. Hearings are not just “increasingly” used to “grandstand,” as White acknowledges; they are almost exclusively used to do so, much of the time over issues entirely unrelated to the work of the Supreme Court, such as the merits of the Affordable Care Act (ACA). Hearings should be about learning about a nominee, not producing campaign clips. Senators who have the privilege of participating in them should not be permitted to treat nominees like props. Advertisement To remedy this sad state of affairs, Senate rules should be amended in two ways. Advertisement First, there should be a limited amount of time during which a senator can speak without asking a question of the witness. Members of the committee are already afforded ample time to speechify during their opening statements. The point of any extended time a committee member spends speaking outside of those statements should be to provide context for a question they are going to ask the nominee. So limiting the amount of time during which they may speak uninterrupted by their own questions — be it a limit of two, or three, or even five minutes — seems fair. Advertisement Second, a stricter germaneness requirement should be implemented. As amusing as it was to watch Senator Cruz pull out a chart detailing Senator Whitehouse’s own dark-money trail or Senator Hawley describe Hunter Biden’s misadventures, these tangents were entirely unconnected to what was supposed to be being discussed. The same goes for Democrats’ use of pictures of and stories about their constituents. These unrelated questions and presentations not only are a waste of everyone’s time, but misinform the American people about how our system is supposed to work. Though it is not the job of the Supreme Court to weigh in on the behavior of a vice president’s son or to decide how our health-care system functions, the typical American tuning in to Barrett’s hearings might have been led to believe that it is. The committee chairman should reserve the right to rule such topics out of order. More central to fixing the confirmation process is reforming the Ginsburg Rule, the idea that a nominee should provide “no hints, no previews, no forecasts” as to how they would rule on legal issues likely to come before the Supreme Court. The reason for the rule is that otherwise, litigants could be encouraged or discouraged from bringing forward a case, or feel that a nominee-turned-justice did not give their case a fair hearing. That’s an entirely valid concern, but the rule should nevertheless be rolled back. As it stands, nominees such as Barrett are able only to speak in generalities about our judicial system, their own judicial philosophies, and the opinions that they themselves have authored or joined in. Advertisement This makes for an unenlightening process and has several deleterious downstream effects. It makes it more difficult for committee members to discern a candidate’s fitness for the Court — not because senators should be using particular cases as litmus tests, but because it hampers nominees’ ability to walk us through their reasoning process in a concrete way. Moreover, because nominees are constricted in what they are able to say, Committee members not only end up straying away from the business of the day, but using nominees’ non-answers as demagogic ammunition, as Connecticut senator Richard Blumenthal did on Tuesday and Wednesday. A limited rollback of the Ginsburg Rule that allows nominees — including sitting federal judges who are presently confined by the Code of Conduct for United States Judges — to answer questions about cases that have already been decided would make hearings more focused and illuminating. Hypothetical fact patterns that could come before the Court in the future should continue to be off-limits. But continuing to pretend that people at the very top of the legal profession have no opinion about the legal reasoning of Roe v. Wade, District of Columbia v. Heller, and other landmark cases undermines, does nothing to protect the integrity of the judicial branch. Judiciary Committee reforms would go a long way toward improving judicial-confirmation hearings. But without amending the Ginsburg Rule, it will continue to be difficult to keep committee members on task, to ascertain the philosophy and fitness of a nominee, and to properly focus the American people on the Constitution and our Article III institutions.

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The Supreme Court Should Decide Election-Law Cases Before the Election

NRPLUS MEMBER ARTICLE I n the era of stewardship by Chief Justice John Roberts, the Supreme Court has fretted more about the public perception of the Court as a non-partisan institution than about doing what is most necessary to shore up its reputation: Do its job. Decide the tough questions in accordance with what the law requires, and stop worrying so much about what it looks like. The justices have no way of controlling how their work is perceived. The federal courts are insulated from politics by design, because the right answer is frequently not the popular answer. Indeed, as our Michael Brendan Dougherty deftly …

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Former Mexican Defense Minister Arrested in U.S. on Drug-Related Corruption Charges

Former Mexican General Salvador Cienfuegos Zepeda speaks during an official reception in Mexico City, April 24, 2014. (Shannon Stapleton/Reuters)The former minister of defense of Mexico was arrested on Thursday by Drug Enforcement Agency officials after traveling to the U.S., Mexican officials confirmed. U.S. officials have not announced specific charges as of Friday morning, however the arrest by DEA agents indicates that the former minister, General Salvador Cienfuegos, will be indicted on drug-related charges. Cienfuegos, who served in his post from 2012 to 2018, is the highest-ranking Mexican official to date to be arrested drug-related corruption charges by U.S. authorities. Advertisement “There has never been a minister of defense in Mexico arrested,” former Mexican foreign minister Jorge Castañeda told the New York Times. “The minister of defense in Mexico is a guy that not only runs the army and is a military man, but he reports directly to the president. There is no one above him except the president.” Cienfuegos was minister of defense to former president Enrique Peña Nieto, and oversaw much of Mexico’s efforts to crack down on drug trafficking. The Mexican military has taken on an outsized role in fighting drug cartels, with soldiers deployed to regions with high rates of organized crime. The news of Cienfuegos’s arrest comes almost a year after the U.S. indictment of the former head of Mexico police Genaro Garcia Luna. That indictment alleges that during his term in office from 2006 to 2012, Garcia Luna accepted millions of dollars in bribes from the Sinaloa drug cartel, in exchange for freedom of movement for cartel members and information on police operations. Advertisement Garcia Luna’s protection allowed the Sinaloa cartel to import tons of cocaine into the U.S. Send a tip to the news team at NR. Zachary Evans is a news writer for National Review Online. He is a veteran of the Israeli Defense Forces and a trained violist.

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Silly Attacks on Amy Coney Barrett and Constitutional Originalism

According to a 2015 email, then–vice president Joe Biden met with a top executive at Burisma, the Ukrainian energy firm that paid Biden’s son, Hunter, $50,000 a month to sit on its board. Earlier, the Burisma executive had asked Hunter to use his influence to quell Ukrainian government officials who were ... Read More

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Biden Calls for Gun Control after Attack on L.A. Sheriff’s Deputies

Democratic presidential nominee and former Vice President Joe Biden speaks during a campaign stop in Warren, Mich., September 9, 2020. (Leah Millis/Reuters)Democratic presidential nominee Joe Biden called for a ban on assault weapons and high-capacity magazines on Sunday, one day after a gunman ambushed and critically wounded two Los Angeles County sheriff’s deputies in their squad car in Compton. “Weapons of war have no place in our communities,” Biden said in a tweet. “We need to ban assault weapons and high-capacity magazines.” Advertisement In an earlier tweet, the former vice president called for the perpetrator of the “cold-blooded” and “unconscionable” shooting to be brought to justice and said anyone who commits an act of violence “should be caught and punished.” The 31-year-old female deputy and 24-year-old male deputy underwent surgery Saturday evening and were listed as in “critical” condition, Fox News reported. The search for the suspect continued on Monday. President Trump suggested swift, harsh punishment for criminals who target law enforcement. Advertisement “Animals that must be hit hard!” Trump said in a tweet. He later added, “If [the deputies] die, fast trial death penalty for the killer. Only way to stop this!” At a roundtable campaign event in Las Vegas on Sunday, Trump expressed support for tougher criminal sentencing guidelines and faster courts and criticized his opponent for being weak on crime, according to Fox News. “He’s not strong for law and order and everybody knows that,” Trump said. “When you see a scene like happened just last night in California with the two police people – a woman, a man – shot at stone cold short range.” Send a tip to the news team at NR.

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A Constitutional Affront by Wisconsin’s Attorney General

Wisconsin Attorney General Josh Kaul speaks during a news conference following the police shooting of Jacob Blake in Kenosha, Wis., August 26, 2020. (Stephen Maturen/Reuters)The Attorney General’s power grab destroys liberty and must not be allowed to stand. Wisconsin’s attorney general seeks to rob the state’s citizens of their sovereignty. He is trying to grab power that does not belong to him and wants to make mischief while avoiding oversight. This lawless behavior — aimed today at Wisconsin’s farmers and tomorrow at small towns — must be checked. Advertisement The Wisconsin Department of Natural Resources and Attorney General Josh Kaul oppose a number of Wisconsin farmers in a legal dispute that focuses on high-capacity wells. The specific questions in that dispute are whether Wisconsin farmers can use high-capacity wells and under what conditions. (A high-capacity well is one that can withdraw more than 100,000 gallons a day.) These wells are critical to many of Wisconsin’s farmers, who use them to irrigate crops and to raise livestock. (Many small towns also use high-capacity wells.) While access to such wells is important during a “regular” farming cycle, if there is such a thing, it is even more so during times of drought, when deep, high-capacity wells can serve as their only sources of water. Simply put, access to high-capacity wells can make the difference between prosperity or destitution for Wisconsin farmers. The attorney general seeks to avoid laws intended in part, to protect those farmers. The Wisconsin legislature passed a series of laws that expressly define the conditions under which the DNR can grant or deny permits to build and operate high-capacity wells. But the attorney general wants the power to ignore that legislation and make the law as he sees fit. He wants the DNR to have the power to impose non-legislative conditions on farmers who seek high-capacity wells. He believes he is a better steward of the people’s waters, and the environmental impacts to them, than the legislature, farmers, and the people themselves. Advertisement The broader dispute goes beyond farmers, however. It effects every Wisconsinite’s liberties and raises fundamental questions about government power. Does Wisconsin’s legislature, elected by the people in their sovereign capacity, make the law? Or can an unelected state agency — unmoored from legislative control, and against the express wishes of Wisconsin’s elected officials — make law? Reversing the state’s legal position in the middle of an ongoing lawsuit, Kaul seeks power through unchecked administrative control. Those in power cannot and must not make law that way. Government power comes from the consent of the governed. Through the Wisconsin constitution, we consented to be governed by legislators and elected officials, those whom we can hold accountable. By seeking to ignore the legislature (and a formal opinion of the previous attorney general), Kaul seeks to take power that does not belong to him and give it over to the DNR (and keep some for himself). That power belongs to the people and, in turn, to the legislature they elect. The attorney general may not make law that contravenes what the legislature has declared. Even if he was motivated by good intent, the inescapable fact is the constitution clearly makes the legislature supreme over the bureaucracy. Advertisement Advertisement To make matters even worse, he does not want Wisconsinites to know how he arrived at this decision. He has claimed the power to avoid open-records laws that none of his predecessors dared claim. He changed the state’s legal position during the dispute, and those affected, reasonably, want to know why. When they asked, the attorney general essentially told them to pound sand. The Wisconsin Department of Justice has refused to turn over documents that would shed light on its decision to change legal positions, claiming attorney-client privilege. That privilege is important, but it can also be used inappropriately to shield government actors from embarrassment and scrutiny. That is the whole point of open-records laws — to hold government actors accountable and to prevent them from abusing their power. Advertisement When asked to identify the client who claimed the privilege, the DOJ responded that the DOJ itself was the client. In other words, the DOJ claimed the right to refuse open-records requests on behalf of itself. It’s like the constitution “pleading the Fifth” on itself, to itself. If the DOJ is its own client and can assert a privilege to avoid turning over documents, there is little (other than judicial challenges) stopping it from skirting Wisconsin’s open records laws. These actions set a terrible example when people want greater, not less,  institutional transparency. Ironically, Kaul recently stated: “It’s important that we lead by example. With today’s announcement [on a separate topic], we are re-affirming the importance of transparency in government.” He was correct — at least there. The office must lead by example. Here, it failed. That we must protect Wisconsin’s God-given natural resources, such as our water, is manifest. That we must also maintain fidelity to the Wisconsin constitution and to the people’s sovereignty is equally so. The attorney general’s power grab destroys liberty and must not be allowed to stand. Ryan J. Owens is a professor of political science and faculty affiliate in the Law School at the University of Wisconsin-Madison, and the director of the university’s Tommy G. Thompson Center on Public Leadership.

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Why Government Lawyers Are Defending Trump

President Donald Trump delivers remarks on judicial appointments in the Diplomatic Room at the White House, September 9, 2020. (Jonathan Ernst/Reuters)The DOJ one-ups E. Jean Carroll in gamesmanship over ‘defamation’ lawsuit against the president Welcome back to “Politics, Not Law,” where legal process is once again asked to do the heavy lifting for democratic self-determination in a free republic. In this week’s episode, we have the anti-Trump world in full froth over the Justice Department’s intervention on the president’s behalf in a lawsuit brought against him by E. Jean Carroll. A longtime advice columnist at Elle magazine, the 76-year-old Ms. Carroll alleges that, 24 or 25 years ago — she says she can’t be sure of the year . . . or the time of year — Donald Trump, then a flamboyant New York real-estate magnate, raped her in a fitting room at Bergdorf Goodman, a tony department store in midtown Manhattan. Advertisement Only the lawsuit is not about rape. At the time she alleges she was sexually assaulted, Carroll neither went to the police nor said anything publicly — though she says she told a couple of friends about it. Rather, nearly a quarter-century later, when Trump was president, Carroll included the allegation in a book she published, entitled What Do We Need Men For? Inevitably, the media asked Trump about her claim, and he strenuously denied it. So Carroll sued him . . . for defamation. Interestingly, Carroll’s book also makes a similar allegation against Les Moonves, the former CBS bigwig. Like Trump, Moonves has been the subject of unproven sexual-abuse claims (though he has resigned over some of them, and the network is withholding his megabucks severance package pending its investigation). Carroll says Moonves accosted her in a hotel elevator sometime before February 1997, when the profile for which she was interviewing him was published by Esquire — a profile in which she makes no mention of the alleged incident (because, she says, she is one of the “Silent Generation,” who does “not dwell on the past”). Again like Trump, Moonves strenuously denies the claim, but Carroll does not appear to have taken legal action against him. Advertisement Advertisement As for Carroll’s tawdry Trump tale, there is slightly more to it, on both sides. Trump being Trump, he can never just deny something and leave it at that. In an interview with The Hill, he snarked that the allegation could not be true because Carroll is “not my type” — a variation on a go-to response Trump has used to parry similar allegations, though this time he noted that he was saying it “with great respect.” In the interview and in a statement put out by the White House, the president maintained that Carroll was lying, insisting that he had never met her and knew nothing about her. Carroll quickly produced a photograph in which she and Trump are both depicted at a 1987 party, alongside their (now former) spouses. The snapshot seems cordial enough, but, of course, it establishes neither that Trump and Carroll were much acquainted with each other nor that he would remember her many years later — either at Bergdorf’s or today. In any event, it is not defamatory to deny knowing someone (at least in these circumstances — and maybe in any circumstances). The gravamen of Carroll’s defamation claim is Trump’s assertion that she is not telling the truth about the rape allegation. Advertisement Is that defamation? If Carroll had pressed charges when the accusation was still actionable, and Trump had pleaded not guilty (which he’d be entitled to do), the implication of the plea would be that she was lying, even if Trump had not said so in so many words. That is to say, this is not much of a defamation case. As a tort claim, defamation is a pretext here. Carroll’s real objective is to press a sexual-assault claim that is otherwise time-barred — both civilly and criminally. Advertisement Now, don’t get me wrong; the law allows her to do this. A New York State court has been entertaining her civil lawsuit. But let’s keep it real: While Carroll and the battalions of anti-Trumpers cheering her on are now feigning outrage at the legal gamesmanship of the president and his Justice Department, there is only a court case at all because Carroll is engaged in legal gamesmanship, too. Advertisement Now, about all that maneuvering. For nearly four years, the president has taken his share of lumps in court proceedings. This time, though, he holds the trump card, as it were. Under federal law, government officials may not be hauled into state court anytime they are accused of committing civil wrongs in the course of their official duties. A statute, known as the Westfall Act, generally permits them to move the case into federal court and, more importantly, to substitute the United States as the defendant. The theory is that when public officials act in their official capacity, their actions are the government’s actions. Under the Westfall Act, as construed by federal courts, the ambit of official acts is extremely broad. No surprise there: Statutes are written by members of Congress, and this one protects members of Congress (as well as officers of the executive and judicial branches). High-profile officials become subjects of public concern, and that affects how they do their jobs. The courts have thus recognized that these officials’ statements to the media — even if unsolicited and involving personal rather than public matters — are deemed to be actions within the scope of their governmental duties. And here is the kicker: If the United States is the defendant, the doctrine of sovereign immunity applies. Under the Federal Tort Claims Act, the government has not consented to be sued for defamation. Therefore, the Justice Department’s action this week, which transfers Carroll’s lawsuit to federal district court in Manhattan, almost certainly means the case will be thrown out. As you’d expect, there are gusts of indignation over this. Attorney General Bill Barr chalks them up to “the bizarre political environment in which we live.” DOJ’s intervention here is “routine,” and the AG explained that similar motions were made on behalf of Presidents Obama and Bush 43, as well as Vice President Cheney. But these days, as the Wall Street Journal’s Bill McGurn dryly observes, “the Trump justifies the means” — unlike past presidents, this one is portrayed as if he were not entitled to the rights, prerogatives, privileges, and immunities of the office. Advertisement Wait, you say, Obama, Bush, and Cheney were not accused of rape. Fair enough, and it is not within the realm of imagination that such an accusation would be leveled at any of those gentlemen. So then, you figure libertines like Trump and, say, Bill Clinton should not be in that same staid category? Okay, that’s fair enough, too, and maybe it should make a difference — politically. Legally, though, it’s beside the point. Whatever you may think of Trump, he is not accused of rape — not in the legal sense of accuse. The accusation against him is defamation, which is significantly less serious. If Trump had been formally accused of a sexual assault, federal law would not have helped him. When Bill Clinton was formally accused by Paula Jones of sexual harassment prior to his presidency, there was no immunity. He was civilly sued and ultimately paid an $850,000 settlement. The law is not concerned about the character of the federal official implicated in a civil claim; the questions are strictly (a) whether the official was acting in his governmental capacity and (b) whether the tort involved is one for which the United States, as the sovereign, has consented to be sued. End of story. Well, not quite the end. Let’s be real again. E. Jean Carroll’s case is not about rape, but her story is. Her claim is stale and there are significant credibility problems with it, just as there are with the allegation Tara Reade has leveled against Joe Biden. But it’s not like these women are outliers. There are lots of disturbing allegations about the candidates. Character flaws abound. And it’s exhausting. But that’s a political issue, not a legal one. If our political processes continually produce flawed candidates, that’s not a problem of the law’s making. We should stop expecting lawsuits to fix it.

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Civil-Asset Forfeiture Should Be an Easy Place to Start on Criminal-Justice Reform

Why has civil-asset forfeiture, which flies in the face of American expectations of due process, been allowed to persist in its current form?

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