Author: Kent Scheidegger

A Problematic Attorney General Nomination

by · Nov 14, 2024 9:17 am

President-elect Trump has nominated Rep. Matt Gaetz to be Attorney General of the United States. If he had intentionally set out to choose the Republican with the least chance of being confirmed, he could hardly have done better.

With a 53-47 Senate and his Vice-President having a tie-breaking vote, the 47 Democrats plus 4 Republicans can block a nominee. Mr. Gaetz is a disruptive, divisive figure, widely despised among his former colleagues in the House Republican Caucus. Can he attract unanimous support, or anything close to it, among Republicans in the upper chamber? That seems unlikely. An appeal to party loyalty and unity in support of a man who is the epitome of the exact opposite does not seem to be a winning argument. Continue reading . . .

Federalist Society Convention

by · Nov 13, 2024 9:46 am

The Federalist Society’s National Lawyers Convention begins tomorrow. The panel discussions will be live streamed. The agenda is here. YouTube links are here.

The Criminal Law Practice Group’s panel is “Evaluating the Progressive Prosecutor Experiment.” It is tomorrow (Thursday) afternoon at 3:30-5:00 EST / 12:30-2:00 PST. California voters provided some grist for that mill last Tuesday, as noted in this post.

The speakers are Zack Smith from the Heritage Foundation, DA Ray Tierney from Suffolk County, NY (eastern Long Island), DA John Creuzot from Dallas, TX, and Prof. Carissa Hessick from UNC Law. Eleventh Circuit Judge Kevin Newsom moderates. Continue reading . . .

The Economics of Political Correctness

by · Nov 11, 2024 12:55 pm

Roland Fryer, professor of economics at Harvard, has this article in the WSJ with the above title. The subtitle is “Scholars need incentives to tell the truth, not to hide it and promote socially acceptable ideas.”

Both academic journals and campus discussions are cramped by the mandate to conform to the political and social ideas that are presently dominant in academia.

A decade ago, I still interacted with dozens of undergraduates and doctoral students who were asking important and provocative questions about race and sex in America. But now students invite me to lunch and ask if their research idea is too risky; they wonder out loud what they are allowed to “say in public,” as though they are in the situation room discussing nuclear launch strategy rather than pondering the economics of policing in an overpriced cafe. Continue reading . . .

Sorry Joe, No Midnight Justice for You

by · Nov 10, 2024 10:55 am

In 1800, Jefferson’s Republicans routed Adams’s Federalists. During the transition period, the Federalists still controlled the government. They created many new judicial positions and filled them quite swiftly. The appointees were called the Midnight Judges, which has been a term of derision for this maneuver ever since.

Some people have been calling on Justice Sonia Sotomayor to retire abruptly in mid-term so that President Biden could replace her with a younger justice during the transition period. Justices rarely step down in mid term, as it would be disruptive to the workings of the Court. Doing so now would be correctly perceived as blatantly political, something the Court surely does not need.

Jess Bravin reports for the WSJ:

Despite calls from some liberal activists for Justice Sonia Sotomayor to step down while Democrats can fill her seat before political power changes hands in January, she has no plans to retire from the Supreme Court, people close to the justice said. Continue reading . . .

Results on Drug Votes

by · Nov 8, 2024 11:31 am

Magic mushrooms didn’t have enough ballot magic to be legalized in Massachusetts, David Ovalle reports for the WaPo.

In three red states, voters opted not to legalize recreational marijuana.

In blue Massachusetts, residents rejected a plan making therapeutic use of psychedelics plants legal.

And in liberal California, voters embraced stiffer penalties for certain drug crimes.

The state ballot decisions Tuesday signal voter concerns that drug policies across the United States have drifted too far to the left, according to some policy experts and political analysts. Each ballot question featured nuances specific to their states.

Continue reading . . .

A One-Sided Battle of the Experts

by · Nov 6, 2024 5:10 pm

Following up on Mike’s post earlier today. I obtained the federal district court opinion in Grayson v. Hamm, M.D. Ala. No. 2:24-cv-00376-RAH and uploaded it here. It makes interesting reading. Here is one passage:

The evidence here presents the classic battle of the experts, and a battle where one expert (Dr. McAlary) [the inmate’s] has no supporting case studies or other supporting medical testimony while the other (Dr. Antognini) [the state’s] does. And when considering these medical experts and their opinions in the context of the evidence on which they rely, Grayson’s expert finds himself without any real foundational support other than an unsupported opinion – no supporting articles or case studies, reliance upon highly questionable hearsay witness accounts, no support in Smith’s autopsy report for an upper airway obstruction that led to negative pressure pulmonary edema, untested reliance on proposed alternatives with their own set of risks and complications, unfounded theories of risks of mask leaks or monitoring device failures, and unfounded theories that the execution team cannot adequately monitor pulse oximeter or EKG devices or make the simple interpretations intended from them. As such, the Court finds Dr. Antognini and his opinions on these subjects more credible and persuasive than those of Dr. McAlary.

I find it appalling that so many medical professionals consider it perfectly okay to testify to junk science so long as it supports the preferred narrative. Continue reading . . .

Results on Ballot Crime Measures

by · Nov 6, 2024 6:05 am

See yesterday’s post for a description of the ballot measures. Here are the results as of 8 ET / 5 PT the morning after:

California‘s Proposition 36, partially rolling back the disastrous Prop. 47 of 2014, passed by a landslide 70-30. Much closer is the deceptive measure to forbid compelled work for prisoners, being sold as an “anti-slavery” measure in a state that forbade slavery at its birth 175 years ago. With no opposition funding or advertising and not even an opposition ballot argument, it is still going down 45-55. Give the voters credit for seeing through it on their own.

In Colorado, Amendment I, making an exception to the right to bail for first-degree murder cases, is sailing through 69-31. Proposition 128, a truth-in-sentencing law requiring service of 85% of the sentence before parole eligibility for murder-2, sexual assault, and some other violent crimes is also passing by a landslide, 62-38. Proposition 130, a police funding measure, is ahead 53-47.

In Arizona, Proposition 311, also a funding measure, is passing handily, 64-36. In Missouri, though, a measure for funding via fees is going down by a similar margin, 39-61. Continue reading . . .

Woke DAs Routed in California

by · Nov 6, 2024 5:34 am

Voters in three major California counties continued the rejection of so-called “progressive” prosecutors yesterday. The results below are as of 5 am PST:

In Los Angeles, voters ousted George Gascón in favor of Nathan Hochman by a landslide 61-39.

In Alameda County (Oakland and vicinity), voters recalled Pamela Price by an even larger margin, 65-35.

In San Francisco, voters reelected Brooke Jenkins, who replaced the previously recalled Chesa Boudin. She was challenged by Ryan Khojasteh, one of the prosecutors she fired shortly after taking the reins. Khojasteh tried to soft-pedal his links to the “progressive” prosecutor movement, but he was endorsed by all the usual suspects: Gascón, Philly’s Larry Krasner, and California’s thug-hugging Gov. Newsom. See this story in the SF Chron Saturday. The vote at this time is over 2-to-1: 67-32. Continue reading . . .

Crime Measures on the Ballot

by · Nov 5, 2024 11:59 am

National Public Radio has this article by Meg Anderson on crime-related measures on the ballot in various states. And of course, because it is NPR, the article lists to the left. Even so, it does have some interest.

California’s Proposition 36 is described as ” a proposition that would undo changes made a decade ago that lessened the punishments for certain crimes.” That is potentially misleading. It doesn’t repeal 2014’s Proposition 47, but rolls back some of its more poorly thought-out provisions. “Among other changes, the proposed proposition would turn some misdemeanors – certain kinds of theft and drug crimes – into felonies, and lengthen some prison sentences. It would also require people facing certain drug felonies to go through treatment.” That’s a decent quick summary. Continue reading . . .

SCOTUS’s Unclear Reversal of Capital Case It Deems “Unclear”

by · Nov 4, 2024 10:31 am

The U.S. Supreme Court has finally acted on Alabama’s petition in the case of murderer Joseph Clifton Smith. The high court’s repeated relisting of this case for consideration in an unprecedented number of conferences has drawn considerable speculation as to what was going on.

The high court did not take the case up for full briefing and argument but instead sent it back to the Eleventh Circuit for a do-over. That is most unfortunate, because they failed to clean up a mess of their own creation.

In the 1989 case of Penry v. Lynaugh, the Supreme Court ruled correctly that its precedent in Lockett v. Ohio requires capital sentencing juries to consider mental retardation (as it was then known) as a mitigating circumstance. (Whether Lockett itself was correctly decided is another question. See this article.) In 2002, the high court decided that wasn’t good enough, and it made mental retardation (as it was still known then) a categorical exclusion. Along with the constitutional problems, there is a huge practical problem. The Court tried to draw a bright-line rule with a paint roller.

Intelligence is a continuous spectrum, and the breakdown into categories is entirely a human construction. There are no natural dividing lines set by objective science. The lines are therefore subject to manipulation, as discussed in this post. Continue reading . . .