People are losing faith in the government and it’s legitimacy, due in no small part to the fiasco that is our federal judicial system.
The courts and appeals process are overworked and have a huge backlog of cases largely in part to lower court judges who make decisions that they full well know have no basis is law or established legal tests and guidelines. Aside from political hacks, some judges are lazy, some have questionable mental health and some are just bad lawyers.
According to the SCOTUSBlog Statistic Archive the majority of lower court rulings as well as appeals rulings are overturned if they can make it to the Supreme Court. The following is the reversal rate for the ten judicial circuits:
6th Circuit – 87 percent;
11th Circuit – 85 percent;
9th Circuit – 79 percent;
3rd Circuit – 78 percent;
2nd Circuit and Federal Circuit – 68 percent;
8th Circuit – 67 percent;
5th Circuit – 66 percent;
7th Circuit – 48 percent;
DC Circuit – 45 percent;
1st Circuit and 4th Circuit – 43 percent;
10th Circuit – 42 percent.
This list does not even include the outright legal malpractice coming from the Foreign Intelligence Surveillance Court (FISA) that not only approved federal wire taps on political campaigns for clearly political reasons, it also approved search warrants covering millions of Americans at once with no probable cause, no accusation of a crime, and no due process, in spite of the fact that the 4th Amendments is clear that search warrants are to be specific to the time, place, as well as specific items and persons to be searched, with probable cause, based on oath or affirmation by a law enforcement official.
This is why great legal minds should be nominated to all federal court positions, not just donors and political hacks.
Today’s ruling on CNN’s White House Pass goes against everything a law student is supposed to learn in a First Amendment case-law course.
Judge Timothy J. Kelly, a Trump appointee, ruled that Acosta’s First Amendment rights overruled the White House’s right to have orderly news conferences, Kelly also ruled that he agreed with the government’s argument that there was no First Amendment right to come onto the White House grounds. But, he said, once the White House opened up the grounds to reporters, the First Amendment applied. Judge Kelly also ruled that the White House violated due process.
Nothing in Judge Kelly’s ruling can pass long-standing constitutional tests as established by the Supreme Court and quite frankly, these rulings can not even pass the snicker test. Here is why.
1 – Acosta’s First Amendment rights overruled the White House’s right to have orderly news conferences…
This goes against long-established Supreme Court precedents that says that government can restrict time place and manner of speech if the reasons are compelling and make common sense.
For example, one cannot put a sign in the middle of a highway at rush hour or stage a mass protest on Interstate 5, because the primary impact of such “speech” is to disrupt, not to speak. In that same regard one cannot engage in a “heckler’s veto” – meaning one cannot stand up in the middle of class at school and start reciting the Declaration of Independence because it disrupts the class, prevents the teacher from doing his/her job and affects the other student’s ability to learn.
CNN’s Jim Acosta essentially does the same thing, he yells out things in the middle of events, he hogs the microphone and stages his protests in a presser so that other reporters cannot get a turn to quarry the President or one of his officials. OANN, a competitor of CNN’s filed a brief with the court stating that they agreed with the White House because there have been times when Jim Acosta’s antics prevented OANN from having a chance to ask any questions at all.
2 – Judge Kelly agreed with the government’s argument that there was no First Amendment right to come onto the White House grounds. But, he said, once the White House opened up the grounds to reporters, the First Amendment applied…
So, I can’t break into a movie theater, but once they open their doors to the public the First Amendment lets me shout my protests once inside….and all I have to do is claim that I am a journalist.
If there is anyplace on Earth where government has a compelling interest to maintain an orderly environment it is the White House.
The First Amendment is not a license to disrupt, never has been, and the courts throughout the decades have ruled so time and time again.
3 – Judge Kelly also ruled that the White House violated due process…
Due Process rights apply when one is charged criminally, or in cases where one is the target of an administrative punitive action like an IRS ruling against you or an Article 15 if you are in the military.
The government, specifically the President, gets to decide who has access to highly secured areas of sensitive government buildings. If a grade school bans me from coming on their grounds do I get to claim due process rights? Of course not. Who has access to secured government buildings is determined at the pleasure of those in charge of such buildings and secured areas. Judge Kelly’s opinion is even more silly than those who said that former CIA employees have a constitutional right to a security clearance and access to confidential information. In short, it’s nuts.
The White House should file an appeal immediately and Republicans should make certain that Judge Kelly never gets appointed to a higher court. His ruling is breathtaking in its idiocy and would receive a failing grade in most any First Amendment case-law course.
This case is quintessential example of why it is important to have good defense lawyers who understand bogus arguments and are ready for them. The President’s lawyers seem to have dropped the ball.
1 – CNN’s lawyers said that Acosta had his credentials yanked because of the CONTENT of his reporting, therefore it was the President Trump trying to regulate the content of CNN’s speech which would be a violation of the 1st Amendment.
This argument is easily refutable. CNN has plenty of reporters with government press passes, did they have their passes removed? The other CNN reporters put out the same content as Jim Acosta. Acosta is typical of the reporting at CNN. This was not about what Jim Acosta says, it is the fact the he disrupts, calls names, filibusters and prevents other reporters from having a turn. IF CNN’s lawyers are so confident that Acosta’s conduct is not the issue then why don’t they behave the same way to the judge and see what happens? If Jim Acosta had behaved that way in a church or a city counsel meeting etc he would be thrown out in a heartbeat, rightfully and legally so.
2 – Should the court decide who gets a white house press pass and who does not? What gives one reporter priority over any other? Rush Limbaugh, who does news and opinion from a different angle than CNN, has a many times the audience of CNN. Should he get a guaranteed White House Press Pass by the court? This is why Separation of Powers matters.
Article II of the Constitution states “The Executive Power rests with the President of the United States of America.” Who has access to secured government and military facilities is clearly an executive function.
There is no way to honestly make the case that the 1st Amendment or the 5th Amendment somehow gave the courts some magical power to violate Separation of Powers and dictate to the President who gets a security pass to the White House (his residence) and who does not.
Jim Acosta and CNN can publish all they want and broadcast all the fake news they like. They can protest President Trump all they like, but nothing in the Constitution mandates that Jim Acosta be able to do so within the President’s residence. The last I checked there is no judicial supremacy clause in the Constitution. All too often these judges outright deny reality, create their own construct, then demand that we acknowledge their artificial creation as absolute proof.
The judiciary is out of control. It needs to be reigned in and straight up defied when Constitutionally appropriate. This is one of those times.