CA High-Speed Rail Fail: Judge derails Gov. Brown’s choo-choo?

November 26, 2013
"Train wreck"

“Train wreck”

Darn Judge Michael Kenny and his concern for the law! Doesn’t he know he’s standing in the way of the future?

A Sacramento judge put the brakes on California’s plans to build a bullet train after dual rulings Monday blocked the sale of $8 billion in bonds and ordered the rail authority to rewrite its funding plans for the huge project.

Sacramento County Superior Court Judge Michael Kenny ruled that there was “no evidence in the record” to support the California High-Speed Rail Authority’s request in March to sell the bonds from Proposition 1A, a $10 billion measure approved by voters in 2008 that allowed the bullet train project to move ahead.

In a separate but related case, the judge sided with the Kings County Board of Supervisors and two homeowners who sued the rail agency, saying it had failed to detail how the project will be financed, as legally required, before seeking bond money to begin construction.

The judge’s rulings leave the future of the $68 billion project in question. The state has been trying to get the first 130-mile segment in the Central Valley built using $3.24 billion in federal funds and $2.61 billion in Prop. 1A bond money. The rail authority has already signed a construction contract to build the first 29 miles of track from Madera to Fresno.

The judge rejected opponents’ calls for that contract to be rescinded.

The judge’s ruling seems a reasonable one, as he sticks to the question of CHSRA’s authority to sell bonds (1); the contract is a separate matter and, if the State can’t raise the money to pay for it, also moot.

Naturally, this ruling is going to get appealed by proponents of this boondoggle all the way to the State Supreme Court, if need be. Let’s hope they uphold Judge Kenny’s ruling; then maybe we can escape from this fiasco having wasted only $600 million.

I’m not, however, getting my hopes up. The legislature might try to rewrite the law to allow the bond sales. This would be difficult and subject to court challenges, as the original measure approving HSR was a public ballot initiative, and changing it might require another vote, something Brown opposes because the California public has turned against the project. He wouldn’t want to risk a public rejection that would definitively kill his 1930s retro-future dream. Whichever way this goes, it’s going to be a long fight.

As they say, “stay tuned!”

Footnote:
(1) I almost wrote “”bongs.” Fitting, seeing as this is California.

(Crossposted at Sister Toldjah)

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Doing my civic duty

May 22, 2012

Posting may be very light here the next few days, as I just started jury duty and was promptly seated on a case expected to last into next week. Epic fun.

My blog-buddy Sister Toldjah has graciously agreed to crosspost from her blog when she can to help fill the gap; I think you’ll like her stuff. In the meantime, do be sure to check the fine sites listed in the sidebar to the right.

PS: No, those aren’t my judges. Pity, that.


Bill Whittle: “How to steal power” or “Turning the Constitution upside-down”

October 31, 2011

Bill’s back with another episode of Afterburner, this time taking a look at how progressives (including Supreme Court justices) have regularly twisted (and even tortured) the plain meaning of the Constitution to get what they want, rather than what the document allows. Bill focuses on two much-abused clauses in Article I, section 8, “General Welfare” and “Commerce,” to show that, interpreted in the progressive manner, as part of a “Living Constitution,” (1) these clauses stop being limits on government’s power and instead become grants of unlimited power.

My own view is that of originalism, that the document has to be read as the Convention and the ratifying states intended. Where the language is plain, as in…

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

…then the argument ends. In more ambiguous sections (often due to 18th century grammar and style), we can use our reason (2) and examine primary sources of the time, such as the Federalist and Anti-Federalist Papers, the records of the Constitutional Convention, and the contemporaneous state constitutions to figure out what was intended.

And where the powers delegated to the federal government under the Constitution are inadequate to meet a truly national or multi-state issue, there’s this little thing called Article V that provides a means to rewrite the rules in a manner best-suited to creating consensus — unlike diktats from imperialist judges divining the current meaning of the living constitution from its penumbras and emanations.

Any other way is just stealing power.

Footnote:
(1) Just to be fair to the other side, Strauss’ recent book, The Living Constitution, has been receiving good reviews. It never hurts to know the other guys’ arguments.
(2) Contra Ezra Klein, it’s not hard.

(Crossposted at Sister Toldjah)


When did the Wisconsin Supreme Court become Fight Club?

June 26, 2011

This is one of the weirder stories I’ve seen in a while, and it’s illustrative of how heated Wisconsin politics have become in the wake to the government’s efforts to rein in public employee union privileges: either newly-reelected Justice David Prosser tried to strangle a colleague in her chambers in front of witnesses, or she attacked him and he was defending himself. Byron York has the story(ies):

Over the weekend, a Madison-based liberal journalism group reported that Wisconsin Supreme Court Justice David Prosser “allegedly grabbed fellow Justice Ann Walsh Bradley around the neck in an argument in her chambers last week.”  Prosser, a conservative, was recently re-elected in a contested election in which he was the target of an intense union-funded effort to defeat him.  The argument was said to be about the court’s 4-3 decision allowing the Walker budget law, with its restrictions on organized labor, to go into effect.

The report said details of the incident were “sketchy” and came from three sources who insisted on anonymity, “citing a need to preserve professional relationships.”  Neither Prosser nor Bradley commented.

But wait, there’s another version:

As the activist press was running with the story, new evidence emerged in a Milwaukee Journal-Sentinel report to suggest the matter was more complicated than originally reported.  Whatever happened, happened during a meeting of six of the court’s seven justices; in other words, there were several witnesses.  One witness supported the original accusation.  But another witness said that during a heated conversation, Bradley “charged [Prosser] with fists raised” and that Prosser had put out his own hands defensively.  According to one of the paper’s sources, Bradley then accused Prosser of choking her, to which another justice reportedly replied, “You were not choked.”

Let’s get the obvious out of the way, first: whatever did happen up there, it’s evident one of the two justices physically attacked the other. This is unacceptable in any case, but particularly from people who are supposed to be sober interpreters of the law and upholders of the rule of law. Whoever is at fault should resign and allow Governor Walker to appoint a replacement. (1)

As much as it is about the conflicting stories of what happened, York’s article also shows how, for the Left and Big Labor, the Battle of Madison is not yet over. Leftist papers and web sites, while piously saying Prosser should not be judged before all the facts were out, were quick to paint him as the aggressor and to point out ways he can be removed from office. (You may recall Prosser’s vote was crucial to upholding the controversial collective bargaining law passed over union screeching a few months ago.) In other words, fearful that the reforms Wisconsin enacted will spread, as they already have in Ohio and Tennessee, the Left is taking any shot it has to overturn election results and quash democratically enacted laws. And when you look at the groups involved and who’s funding them (2), it’s likely there’s coordination at well-beyond the state level.

And we’re going to see many more efforts like this as other states try to right their finances, while public unions and their Democratic allies try to keep the money-train rolling.

Footnotes:

(1) Which the Left should not want, since Walker would almost certainly appoint conservative justices. Be careful what you ask for, progressives…

(2) Both the Wisconsin Center for Investigative Journalism, which broke the original story rumor, and the Center for American Progress, parent of the web site Think Progress, which described ways to remove Prosser from office, receive money either from George Soros as an individual, or through his Open Society Institute. While not probative, it’s certainly suggestive.

UPDATE: Some good discussions at both Althouse and Legal Insurrection. At the latter, Professor Jacobson points out that only one justice is saying a crime was committed: Justice Ann Walsh Bradley, accusing Justice Prosser. She should either back up her charge with evidence, or retract it and apologize.

(Crossposted at Sister Toldjah)


Obama’s legacy: bad judges — Updated

May 19, 2011

Presidents almost always worry about their legacy — what lasting effect they’ll have on the nation and how History will remember them. President Obama is surely no different in that regard from his predecessors — a man as narcissistic as he couldn’t be otherwise.  Indeed, he made his desire to fundamentally transform America a centerpiece of his campaign for election; you can bet he wants to be known for this:

One of the more subtle, yet profound, ways a president shapes this legacy is through his selection of federal judges, from the Supreme Court down to the district courts. Our legal tradition gives judges great power to shape the law via interpretation and even to create it out of whole cloth, if they can come up with a constitutional justification — however flimsy and tortured. And so President Obama can, through his judicial nomination,  have an influence over our laws and the relationship between citizen and government long after he leaves office.

Which should worry the heck out of us.

At Pajamas Media, Hans von Spakovsky and Deborah OMalley give us a rundown of eight awful picks who pose a real threat to our democracy and who should never, ever come anywhere near the higher courts. Here’s one example:

Bernice Donald: Donald, a district court judge in Tennessee, is nominated to the Sixth Circuit. She has made some worrisome, Chen-esque statements concerning how a judge’s experience should influence her decision-making. During an American Bar Foundation panel, she stated that, as an African American woman judge, she had a “vastly different” view than her white male colleagues as to which evidence supports summary judgment — as if one’s race somehow genetically defines one’s legal thinking. While judges try to be objective, she explained, they inevitably view things “through the lens of culture … and that may impact how … much weight [they] accord to different things.”

She has even advocated that courts consider a plaintiff’s cultural background in tort suits. Why? Because a plaintiff may be “more adversely affected by [an] error” depending on their cultural background and therefore “entitled to a larger award.” Not considering a plaintiff’s culture in tort cases, she asserts, denies “true justice” to large segments of society. In fact, she believes that courts hearing tort cases can be “on the front lines of public policy, cultural anthropology, and the law.” A novel concept of justice indeed, especially in a country with a Constitution that requires all citizens to be treated equally under the law, no matter what their race or “cultural” background.

Worse than these statements is her conduct on the bench. In a number of cases, she has stretched the limits of judicial power. In a gender-discrimination case, the Sixth Circuit overturned her decision for having “circular reasoning” and for ordering a professor to apologize to a female plaintiff who sued him for discrimination. The Sixth Circuit chastised Donald for exceeding her equitable power when she ordered the professor to apologize, citing to a Ninth Circuit case where the court said “[w]e are not commissioned to run around getting apologies.”

In another case, she took the bizarre — and blatantly unconstitutional — position that the racial makeup of faculty members at a school should match the racial makeup of the student body. Her argument was that school children are constitutionally entitled to “educational guidance which includes teachers of the student’s own race.” The Sixth Circuit rejected this argument, noting the obvious fact that it would amount to discriminatory hiring and firing of faculty. Donald, however, obviously believes that discriminatory employment practices like racial quotas are not just legal, but desirable.

(Emphasis added. )

Call me old-fashioned, but, while I believe our system works best when judges are given broad discretion, that freedom also requires restraint and humility on their part. Their job is to interpret the law as democratically-elected legislatures intended, barring blatant unconstitutionality.  If they want to make policy, they should take off the black robe and run for Congress or their state legislature, the bodies which answer to the people. Of course, that’s anathema to the Left, which has been using the courts to make an end-run around the people since the 1960s.

Meanwhile, there are seven more awful picks on the list, and Judge Donald isn’t even the worst. That honor goes to Goodwin Liu, whose nomination to the 9th Circuit is up for a cloture vote today and faces a threatened filibuster, one of the rare times I think it’s justified.

Given the legacy of judges the president wishes to bequeath to the nation, however, those times may have to become much more common.

UPDATE: Liu’s nomination was blocked in the Senate. Well done to the Republican caucus.

(Crossposted at Sister Toldjah)


Not guilty by reason of sexual perversion?

May 27, 2010

According to Barack Obama’s appointee to the 2nd Circuit Court of Appeals, Judge Robert Chatigny, a confessed and convicted serial killer cannot be executed because his sexual sadism is a mitigating factor:

Shockingly, Chatingly cites Ross’s sexual sadism as a mitigating factor. “But looking at the record in a light most favorable to Mr. Ross, he never should have been convicted. Or if convicted, he never should have been sentenced to death because his sexual sadism, which was found by every single person who looked at him, is clearly a mitigating factor…

Read the full piece; this guy is a poster child for for all that’s wrong with with judges who impose on the law their own personal agendas. Not only should Judge Chatigny not be confirmed to the Court of Appeals, but Congress should seriously consider his impeachment for incompetence or misconduct.

LINKS: More from Allahpundit, including video of Chatigny’s testimony before Congress.