Packing the Courts, and why it’s bad

Joe Biden won’t answer the question about whether he’ll attempt to pack the U.S. Supreme Court, until the day after the election – so he’s claimed. What is “packing the Court,” and why is it such a terrible idea that even Ruth Bader Ginsburg warned against it?

The Constitution did not specify the number of justices to sit on the Supreme Court. That’s up to Congress. For the past 150 years or so, Congress has maintained that number at 9. An odd number is required, so as to avoid the rather-anti-climactic tie vote. With a 9 member Court, a 5-4 decision, or better, wins the case. With the loss of RBG, the American left loses a crucial vote on the Court, which is why they are threatening to increase the number of justices on the Court, so as to counteract her replacement with Judge Amy Coney Barrett. Thus, if Biden wins, and if Congress is able to increase the number, they could create a left-wing majority on the Court by increasing the number of Democrat-nominated justices.

But the problem with any such plan is, that eventually the other side will return to power and retaliate accordingly. What we then end up with has now become a super-legislature, rather than a Supreme Court, as the Founders intended. Even RBG herself was against Democrats’ 2019 threats to pack the Court:

Justice Ruth Bader Ginsburg said in an interview Tuesday that she does not favor proposals put forth by some Democratic presidential candidates who have advocated changing the number of Supreme Court justices if the Democrats win the presidency.

Ginsburg, who got herself in trouble criticizing candidate Donald Trump in 2016, this time was critical not of any particular Democratic contender, but of their proposals to offset President Trump’s two conservative appointments to the court.

“Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”

https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive

To pull it off, the Democrats would really need to add 4 new liberal members to the Court, which would create a 7-6 majority. Setting long-term retaliation and consequences to the Court aside, the results would be disastrous to the Second Amendment:

A 7-6 progressive majority on the court would very likely overturn decades of precedent that have protected gun owners from both state and federal attempts to deny them their Second Amendment rights. Millions of American gun owners would be subject to these changes and the laws, which Democrats, some of whom are committed to confiscating guns, would impose.

5 Major Ways America Will Fundamentally Change If Biden Packs The Court, The Federalist, by David Marcus, Oct. 9, 2020.

Free speech would be nonexistent:

The most obvious change to free speech laws that would come with a progressive majority on the Supreme Court would be the overturning of the 2010 5-4 Citizens United decision….. More broadly, speech laws such as those that exist in New York City requiring people to use preferred pronouns even if they do not believe that gender is mutable, would find a much kinder hearing in the new court.

5 Major Ways America Will Fundamentally Change If Biden Packs The Court, The Federalist, by David Marcus, Oct. 9, 2020.

Abortion, obviously:

The progressive reading of Roe v. Wade is almost limitless in its scope and perhaps the only question mark would regard the ability to kill babies even after they are outside of the mother. Beyond that, it is very likely that almost any state restrictions would be shot down.

5 Major Ways America Will Fundamentally Change If Biden Packs The Court, The Federalist, by David Marcus, Oct. 9, 2020.

Religious liberty:

Several religious liberty cases such as Hobby Lobby and Little Sisters of the Poorhave been closely decided of late. It is safe to assume these decisions would be reversed. Practicing Christians and members of other faiths would face far greater restriction in living their faith in their public life. Our understanding of how we may practice our religions would undergo a major change, abandoning the American tradition of public faith, and limiting religious expression to the church and the home.

5 Major Ways America Will Fundamentally Change If Biden Packs The Court, The Federalist, by David Marcus, Oct. 9, 2020.

Election laws:

In all likelihood, a new progressive majority would be open to efforts to abolish the electoral college, to allow statehood for the District of Columbia and Puerto Rico, and to allow voting by people in the country illegally. All of these changes would skew towards the Democrats and could very well result in one-party federal rule of the United States.

5 Major Ways America Will Fundamentally Change If Biden Packs The Court, The Federalist, by David Marcus, Oct. 9, 2020.

So what stopped FDR from packing the Supreme Court back in the 1930s? It happened during the Great Depression, when FDR was pushing his socialist New Deal programs, only to have them struck down by the conservative-majority Supreme Court of the early 1930s. President Roosevelt sought to solve the problem sooner, rather than later, so he introduced the “Judicial Procedures Reform Bill of 1937,” commonly referred to as the “court packing plan.” This would have allowed him to appoint up to 6 additional justices to the Court for every justice older than 70.5 years, or who had already served 10 years or more. In reality, a conservative majority had developed on the Court, and like Biden, he was willing to add justices to create his own new majority, consequences be damned:

From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote to invalidate almost all of the New Deal. They were referred to in the press as “the Four Horsemen,” after the allegorical figures of the Apocalypse associated with death and destruction. In the spring of 1935, a fifth justice, Hoover-appointee Owen Roberts—at 60 the youngest man on the Supreme Court—began casting his swing vote with them to create a conservative majority.

When Franklin Roosevelt Clashed With the Supreme Court—and Lost, By William E. Leuchtenburg, Smithsonian Magazine, May 2005.

FDR indirectly attacked the Court, claiming publicly he was concerned about their age, rather than the ideological point of view of its majority:

 FDR recognized, though, that a direct assault on the court must be avoided; he could not simply assert that he wanted judges who would do his bidding. The most promising approach, it seemed, would be to capitalize on the public’s concern about the ages of the justices. At the time of his reelection, it was the most elderly court in the nation’s history, averaging 71 years. Six of the justices were 70 or older; a scurrilous book on the court, The Nine Old Men, by Drew Pearson and Robert Allen, was rapidly moving up the bestseller lists.

When Franklin Roosevelt Clashed With the Supreme Court—and Lost, By William E. Leuchtenburg, Smithsonian Magazine, May 2005.

A 1937 political cartoon with the caption ‘Do We Want A Ventriloquist Act In The Supreme Court?’ which was a criticism of FDR’s New Deal, depicting President Franklin D. Roosevelt with six new judges likely to be FDR puppets.
Fotosearch/Getty Images

FDR basically lied about his motivations. Rather than admit to the American people that he was playing politics, and attempting to enact his progressive legislation without interference by the conservative court, he feigned concern over the age of the justices:

“A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves,” the president observed. “This brings forward the question of aged or infirm judges—a subject of delicacy and yet one which requires frank discussion.” He acknowledged that “in exceptional cases,” some judges “retain to an advanced age full mental and physical vigor,” but quickly added, “Those not so fortunate are often unable to perceive their own infirmities.” Life tenure, he asserted, “was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts.”

When Franklin Roosevelt Clashed With the Supreme Court—and Lost, By William E. Leuchtenburg, Smithsonian Magazine, May 2005.

Similar to what would happen in 2020, the result was all-out war between the branches of government, and between the political parties:

While it was never voted on in Congress, the Supreme Court justices went public in their opposition to it. And a majority of the public never supported the bill, either, says Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center.

“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” she says. “The chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.”

“It was never realistic that this plan would pass,” Perry says. “Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”

This Is How FDR Tried to Pack the Supreme Court, by Lesley Kennedy, Jun 28, 2018.

The battle lasted 168 days. It’s difficult to imagine how it would play out in the era of social media and biased news. But even then, it was ugly:

Roosevelt’s message touched off the greatest struggle in our history among the three branches of government. It also triggered the most intense debate about constitutional issues since the earliest weeks of the Republic. For 168 days, the country was mesmerized by the controversy, which dominated newspaper headlines, radio broadcasts and newsreels, and spurred countless rallies in towns from New England to the PacificCoast. Members of Congress were so deluged by mail that they could not read most of it, let alone respond…..

This Is How FDR Tried to Pack the Supreme Court, by Lesley Kennedy, Jun 28, 2018.

At the time, the FDR liberals showed little concern for the Supreme Court as an independent and important branch of government. If other countries could enact these programs, then so should we be able to do so….

If Roosevelt won, opponents warned, he would destroy the independence of the judiciary and create an evil precedent for successors who wished to “pack” the court. If Roosevelt lost, his supporters countered, a few judges appointed for life would be able to ignore the popular will, destroy programs vital to the welfare of the people, and deny to the president and Congress the powers exercised by every other government in the world. Although the country divided evenly on the issue—about as many were for Roosevelt’s plan as against it—the opposition drew far more attention, especially on editorial pages……

This Is How FDR Tried to Pack the Supreme Court, by Lesley Kennedy, Jun 28, 2018.

The Bill was ultimately defeated, but FDR still got what he wanted in the end. The historians’ lesson of the affair, as relayed to us in 2005, is perhaps more credible than any we would receive today, in the era of over-politicization of all fields of academia. So pay attention to the parts in bold:

The nasty fight over court packing turned out better than might have been expected. The defeat of the bill meant that the institutional integrity of the United States Supreme Court had been preserved—its size had not been manipulated for political or ideological ends. On the other hand, Roosevelt claimed that though he had lost the battle, he had won the war. And in an important sense he had: he had staved off the expected invalidation of the Social Security Act and other laws. More significantly, the switch in the court that spring resulted in what historians call “the constitutional revolution of 1937”—the legitimation of a greatly expanded exercise of powers by both the national and state governments that has persisted for decades.

The 168-day contest also has bequeathed some salutary lessons. It instructs presidents to think twice before tampering with the Supreme Court. FDR’s scheme, said the Senate Judiciary Committee, was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And it never has been. At the same time, it teaches the justices that if they unreasonably impede the functioning of the democratic branches, they may precipitate a crisis with unpredictable consequences. In his dissent in the AAA case in 1936, Justice Stone reminded his brethren, “Courts are not the only agency of government that must be assumed to have capacity to govern.” These are lessons— for the president and for the court—as salient today as they were in 1937.

This Is How FDR Tried to Pack the Supreme Court, by Lesley Kennedy, Jun 28, 2018.

As RGB knew, even the mighty FDR was wrong to attempt to destroy the SCOTUS by increasing the number of justices as a means to an end for temporary political goals. However enticing it might appear, it’s going to hurt everyone in the end.

Continued fallout from the Family Court Judge Search Case

Here is some of the recent press and updates on the Family Court Judge Search Case out of Raleigh County, West Virginia. It made the front page there today:

The West Virginia Supreme Court of Appeals has charged a Raleigh County Family Court judge of 26 years with at least seven alleged violations of the Code of Judicial Conduct, after she admitted to visiting the home of litigants to investigate a property dispute.

The SCOA formally charged Judge Louise E. Goldston on Sept. 23 with violations to rules on compliance with the law, confidence in the judiciary, avoiding abuse of prestige of office, impartiality and fairness, external influences, competence, diligence and cooperating and extrajudicial activities, in general.

Goldston hears cases in Raleigh Family Court and Wyoming County Family Court.

https://www.register-herald.com/news/deja-vu-another-county-judge-in-ethics-trouble/article_9952c3b7-29c5-5d9a-8aba-17a6a5604849.html?fbclid=IwAR0UGqXmpoWpwy48dJXuLjgO0XJqd06gwvRmnRY9rzj-ExerRJOuRhQmn80

Another interesting update….. Apparently there was a public admonishment against another Family Court Judge, who was recently elected to the bench, for doing a “home visit” in two instances, though both of those included lawyers who either requested the visit, or failed to object. The judge in that case mentioned that he never would have performed them had someone objected, and blamed Judge Goldston (from the video):

Respondent opined that he believed it was proper to visit litigants’ homes because a colleague had engaged in the same practice for several years. (The colleague, who is also the subject of a judicial disciplinary proceeding, recently engaged in a visit to a litigant ex-husband’s home to search for….

Discussion with my client, Matt Gibson, on having his house searched by a judge:

I did three TV interviews on Monday. I’ve only seen one, this one, which I thought turned out well – brutally honest:

BECKLEY, WV (WVNS) — Impartiality and fairness, complying with the law, avoiding abuse of office. These are only three of the seven rules Judge Louise Goldston is charged with violating during an incident in March.

Goldston oversaw a divorce case involving Matt Gibson. In order to find items Gibson allegedly neglected to maintain or turn over to the court, his attorney, John Bryan, said Goldston reportedly stopped the hearing and ordered all parties to immediately go to Gibson’s house.

“From day one that I looked at that video, I didn’t see any way that that was legal,” Bryan explained.

Here’s another:

UPDATE: Raleigh County Family Court Judge now facing charges from the Judicial Investigation Commission

Even though Gibson is representing himself in the divorce case, he did hire John Bryan for action taken against the judge after the at-home search.

 “Apparently this has been going on for 20 years and at least 10 other times this was done upon the motion of an attorney without the object of the other attorney,” Bryan said. “And what does that tell me? That maybe they were scared to challenge the judge, to challenge the system. I don’t know. I think that there are a lot of questions there that need to be answered.” 

Read the formal statement of charges and my analysis:

WV Supreme Court Releases Formal Statement of Charges against Raleigh County Family Court Judge

Yesterday afternoon, the West Virginia Supreme Court of Appeals clerk’s office released the Formal Statement of Charges against Raleigh County, West Virginia Family Court Judge Louise E. Goldston – a 26 year Family Court judge. This is the judge caught on video searching the home of my client, Matt Gibson – threatening him with arrest if he didn’t allow her in. Here’s the post with the original video, as well as the update video, if you haven’t seen it. The charges state that on March 11, 2020, investigators opened a complaint, and that a subsequently second complaint was filed by my client, Matt Gibson.

For reference, I originally uploaded the video of the judge searching Matt’s property on March 10 – the day before the inception of the opening of the investigation. The video quickly went viral, and by the next day an investigation had essentially opened itself. In other words, the power of Youtube is great. In one day, it found its way into the eyeballs of the Judicial Investigation Commission, the only folks with the power to lodge judicial disciplinary charges against judges in West Virginia.

The Supreme Court of Appeals of West Virginia established the Judicial Investigation Commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges and to determine if a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.

http://www.courtswv.gov/legal-community/judicial-investigation.html

If you want to report what you believe is judicial misconduct, or a civil rights violations committed by a judge, anyone can file a complaint with the JIC. Here’s the complaint form.

Any person may file an ethics complaint against a judge. However, a complaint that is filed more than two (2) years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct may be dismissed for exceeding the statute of limitations.

http://www.courtswv.gov/legal-community/judicial-investigation.html

Then, even though covid hit, the investigation apparently proceeded, and 6 months later the charges dropped (which was yesterday, 10/2/20). I just happened to be traveling when the charges came out, so it wasn’t really until this morning that I was able to digest them.The Formal Statement of Charges alleges that:

FAMILY COURT JUDGE GOLDSTON violated Rule 1.1 (compliance with the law), Rule 1.2 (confidence in the judiciary), Rule 1.3 (avoiding abuse of prestige of office), Rule 2.2 (impartiality and fairness), Rule 2.4(B) (external influences), Rule 2.5 (competence, diligence and cooperation) and Rule 3.1(A), (B), (D) (extrajudicial activities in general) of the Code of Judicial Conduct….

In other words, the JIC concluded that the judge failed to comply with the law, committed actions which undermines confidence in the judiciary, abused the prestige of her office, was impartial and unfair, allowed external influences on her actions, was incompetent, un-diligent (is that a word?) and uncooperative, and engaged in extrajudicial activities. According to the charges, these home “visits” (searches) have been going on “over the past twenty years.”

Over the past twenty years as a Family Court Judge, Respondent has been engaging in the practice of visiting homes of litigants appearing in front of her. Respondent went to the litigants’ homes to either determine if certain disputed marital property was present and/or to supervise the transfer of disputed property. Respondent admitted to conducting these home visits in her capacity as a Family Court Judge on eleven separate occasions in different cases.

In every instance except Mr. Gibson’s case, all of Respondent’s home visits were prompted by a motion by a litigant’s attorney and not objected to by the opposing party and will full knowledge of the purpose therein. Most of the Respondent’s home visits occurred during a court hearing in the case. A party’s attorney would move the Court to leave directly from the bench and accompany the parties to the home. After granting the motion, Respondent would meet the parties at the home.

The JIC interviewed the judge and asked her what authority she had to engage in this practice:

On July 22, 2020, Judicial Disciplinary Counsel took Respondent’s sworn statement. Respondent admitted that she failed to inform Mr. Gibson of the purpose of the home visit while the parties were in the courtroom and that she did not give him any opportunity to object thereto until everyone was at his house.

Respondent opined that she believed it was proper to visit litigants’ homes. Respondent likened the practice to a jury view or similar continuation of the court proceeding and stated that as a finder of fact it was necessary to determine whether a party could be held in contempt for not turning over personal property as previously ordered by the Court.

When asked, Respondent could provide no statute, rule or case that gave her the authority to conduct home visits. Respondent also acknowledged that there was nothing in the contempt powers that gave her the authority to conduct a home visit. Respondent confessed that she never held anyone in contempt prior to going to the home and that she failed to enter any order subsequent to the visit reflecting what had happened at the residence, whether any items had been secured and/or whether or not a party was in contempt.

I was absolutely correct when I first reviewed the video. There was no legal basis upon which a judge could search a home as was portrayed in the video. The fact that this judge had been doing it for the past 20 years, was not itself justification. Instead, this sobering fact proves that many former Family Court litigants are absolutely correct when they rant about corruption and unlawfulness. Over the past 20 years, at least 10 other victims have been subjected to this in this judge’s “courtroom,” subjected to unlawful “home visits” upon the motion of an attorney, and without objection from any other attorney.

I wonder how many of these visits involved this one particular attorney involved in this video? After all, it was this attorney who left a voice message for Mr. Gibson the night before the search, offering $5,000 in exchange for foregoing what would essentially be a Family Court anal probing:

This whole thing reeks to me, and sounds a lot like a “pay to play” style judicial experience. Had he paid 5 grand, he could have avoided being lucky number 11? Time will tell, hopefully. Roots run deep in a 20 year period inside one particular court. Perhaps this had something to do with a local Family Court attorney going on TV following my initial TV appearance with my client, to say that I was wrong, and that “home visits” were a perfectly legal Family Court practice. Yeah, okay…..

BECKLEY, WV (WOAY) – UPDATE: On Thursday, we ran a story about a Raleigh County man involved in a contempt case after a finalized divorce whose recording of a family court judge went viral. Matt Gibson claimed the search of his home was against his 4th Amendment rights. Because the judge and the opposing attorney cannot comment on ongoing litigation, local family attorney [let’s call him JOHN DOE] is speaking out saying Judge Louise Goldston was doing her job and doing it legally

“What I think is most important to know about this is when you see a video on YouTube, when you see a Terry search, when you see something and immediately it doesn’t match what we’ve always seen on television that doesn’t make it wrong,” he said. “Because they didn’t do it that way on Law and Order doesn’t mean that a judge that has decades of experience is breaking the law.”

It looks like I was right, and he was wrong. So, he said the judge wasn’t allowed to respond, so he was responding on her behalf? Why is that, I wonder? That’s a rhetorical question, of course. Is he saying that she asked him to respond and defend her publicly? Another good point that the JIC makes in the statement of charges, is that if the judge, and her local family court lawyers, are going to characterize her actions as a lawful component of a judicial proceeding, then they have some issues to consider:

Respondent admitted that she never had any clear or written procedures for conducting a home visit, including but not limited to, when the proceeding should be utilized and how the process should take place. She also acknowledged that she never took a court reporter to the scene.

Upon reflection, Respondent agreed that the practice could make her a potential witness to a future proceeding which could then result in her disqualification. Respondent further agreed that family court judges run the risk of disqualification if he/she were to become a witness in a subsequent proceeding pertaining thereto.

Respondent also agreed that the burden of proof in a contempt proceeding rests not with the Family Court Judge but with the moving party. She agreed that it is the moving party’s responsibility to provide evidence in support of his/her contention that the other side has failed to produce the items in question. Respondent admitted to improperly putting herself into the role of litigant.

Like I said during the TV interview, the reason I’ve never heard people complain about having their homes searched by judges before, is because that’s not what judge do – judges don’t search homes. This judge was acting in the role of a litigant. So it was basically like Trump debating both Biden and Chris Wallace in the first presidential debate. That’s not how it’s supposed to work. The opposing attorney is supposed to submit evidence and prove his case. Here you had a judge doing both of these things, and then engaging in an unlawful search of one party’s home, on behalf of the other party. Why? That’s yet another rhetorical question of course. If the other 10 victims were represented by lawyers, why didn’t they object?

And then there’s the 800 pound gorilla in the room: the Sheriff’s Department assisting the judge in these actions. On how many of these 10 other searches were they present? The statement of charges also notes that the bailiff (a sheriff’s deputy) forced Mr. Gibson to stop his recording, and that he himself started to record what happened inside the home:

Upon Respondent’s arrival at Mr. Gibson’s property, Mr. Gibson had a bystander video record the initial interactions outside the house between Respondent and the parties. Mr. Gibson also secretly recorded several minutes of audio of the initial interaction on his cell phone.

When the video and audio recording were discovered by Respondent, she ordered both recordings stopped. However, once inside the house, Respondent’s bailiff used his phone to record both video and audio of the separation of marital assets.

Where is this video, and why hasn’t it been produced? I heard through the grapevine, that following my initial uploading of the Youtube video, that the Sheriff of that county sent around a memo to the effect of, “no more going anywhere with a judge….” Of course, the JIC doesn’t investigate law enforcement, nor discipline them. You might find this shocking, but there is no state agency or commission which investigates law enforcement officers in the way that judges, and even lawyers, are investigated (there’s a pending disciplinary complaint against the lawyer who was involved here as well).

The only consistent investigator of law enforcement misconduct in West Virginia is me, sadly. Those who were involved in the search of my client’s house will be explaining their actions. I can’t put people in jail, nor discipline them, so we’ve pretty much come full circle. I have to demand money damages for my client, and they’ll have the opportunity to avoid what’s coming their way. It ain’t pretty, but that’s the relief available. Unless someone wants to deputize me as a special federal prosecutor or something…..

Family Court Judge Search UPDATE – the Judge has been charged!

UPDATE, and Part 2, to one of the craziest search and seizure cases I’ve ever seen, or personally been involved with: The West Virginia Family Court judge who’s searched the home of a federal law enforcement officer, looking for his ex-wife’s DVDs and other stuff, a year and a half after they divorced….. and got caught by YouTube.

Another UPDATE 10/2/20: The judge has been charged. The Statement of Charges was just released this afternoon:

The original video (Part 1), in case you missed it:

Part 3 expected early next week. Make sure to subscribe to our channel and also add yourself to our email subscription list. No spam, just updates every time a new post drops.

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Should RBG be replaced before the November election?

My thoughts on the Ruth Bader Ginsburg drama. There are 3 currently living retired Supreme Court justices: Sandra Day O’Connor, Anthony Kennedy, and David Souter. Each of these still-living former justices chose to retire, rather than to remain on the bench until death. RGB was perhaps the most left-wing partisan justice ever to serve on the Court, so understandably, she made the purposeful choice to stay on as long as possible. Therefore, it was her choice to politicize the vacancy which would be created by her death. In fact, her last words, as relayed by her granddaughter, were purportedly, “My most fervent wish is that I will not be replaced until a new president is installed.”

[Podcast version (audio only) here (download for later or listen)]

First of all, presidents are elected – not installed – and secondly, the seat belongs to the American people. It never belonged to her. It’s not her seat; it’s not the Democrats’ seat; it’s not the left’s seat; it’s not the right’s seat; it’s the people’s seat. Assuming that RBG actually said that, she didn’t just say wait until after the election, but rather, she wants to wait until Donald Trump’s successor takes office. She’s therefore expressing her desire that Trump not replace her. If she said that, it wouldn’t be the first time that she’s knocked Trump, and it’s frankly sad to think that a man she disliked was the last thing on her mind in her final moments, rather than the granddaughter she was purportedly speaking to.

There can be no doubt that the Constitution provides the that the President is tasked with nominating someone new to fill the vacancy, subject to the advice and consent of the U.S. Senate. The only issue is the timing.The Constitution doesn’t necessarily provide, or require, that federal judgeships last until “death,” per se. What does the Constitution say about this? Article III is the part of the Constitution which lays out the constitutional foundation of the judicial branch, which leaves the logistics to Congress:

Article 3, Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Thus, a justice serves “during good behavior.” So for life in general, but not necessarily. And it gives Congress the responsibility of organizing the federal judiciary. In fact, one of the first things Congress did in 1789 when it set up shop, is to set up the federal judiciary – including a Supreme Court, with then-6 justices. Of course, we now have 9, though Democrats have been threatening to increase the number (which RBG has gone on the record as opposing, even if done by Democrats).

The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.

National Constitution Center, Article III, Section One, by Richard W. Garnett and David A. Strauss, https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45

Let’s look at the science behind it. There was a study done in 2010 on retirement vs. death-in-office of Supreme Court justices, noting that it was a “small but extremely important social group” which had not been previously studied in this way.

[S]ome observers have long asserted—and others have long denied—that the timing of justices’ resignations from the Court, and even the probability that they die in office, reflect a highly politicized process that, like their nominations, revolves around political compatibility between the individual jurist and the incumbent president of the United States as well as personal circumstances of justices, such as vitality (i.e., health, wellness), age, personal finances, and job tenure (i.e., length of service on the Court; see, e.g., French 2005). We call this assertion the politicized departure hypothesis.

The politicized departure hypothesis is based on (1) the observation that a justice’s retirement—particularly if it occurs early in a president’s term of office—allows the incumbent president to nominate the replacement for that justice, (2) the belief that justices tend to be loyal to the party of the president who appointed them to the Court, and (3) the conjecture that justices tend to display this loyalty by timing their resignations to give a president of that party the opportunity to appoint their judicial successor. Thus, the politicized departure hypothesis is as follows: (1) Other things equal, if the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice is more likely to resign from the Court than at times when these two conditions are not met.

Retirement and Death in Office of U.S. Supreme Court Justices, by ROSS M. STOLZENBERG and JAMES LINDGREN, May, 2010 (citations omitted).

The study found that history has shown that, despite the ability to generally stay until death, as end-of-life nears, with the existence of a pension, justices have tended to retire, rather than die in office. Those who have chosen to stay until death are dedicated politicos, as one of my college professors (Dr. Lanier) used to call them, acting not in their own personal best interests, but rather for pure politics. I think he used to say, “Don’t kid yourselves, these people are seasoned politicos.” Turning to the study at hand, the average service period of a SCOTUS justice over the course of the last 230 years of American jurisprudence has been about 25 years. According to the science, as the age of a justice advances, the expected annual odds of their retirement are about a 6% chance per additional year of life. Then comes the politics, which skews the numbers according to the political party of the president vs. the justice:

If the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.

In addition, political climate effects on death in office are consistent with the politicized departure hypothesis. When the incumbent president is of a different party than the president who appointed the justice, then the justice’s death-in-office odds are about tripled, compared with when the appointing president and the incumbent president are members of the same party.

Retirement and Death in Office of U.S. Supreme Court Justices, by ROSS M. STOLZENBERG and JAMES LINDGREN, May, 2010.

That’s the category RBG fits into. The likelihood of RGB dying in office based purely on the politics of replacing her, was about 3 times higher than the likelihood of her having retired had Trump not won in 2016. That seems about right to me. She’s had cancer for some period of time. Had Hillary won in 2016, it seems rational to believe she would have voluntarily retired sometime after November of 2016. Still though, RGB’s choice bucks the trend. Looking at history, the trend seems to have been towards increasing voluntary retirement of Supreme Court justices, rather than through death, which was more pervasive in the 19th century:

The evidence shows that RGB was a diehard politico. She went against the grain in choosing not to retire, and instead to attempt to outlive a Trump presidency. Her anti-Trump politics were well-known.

Washington (CNN) Supreme Court Justice Ruth Bader Ginsburg’s well-known candor was on display in her chambers late Monday, when she declined to retreat from her earlier criticism of Donald Trump and even elaborated on it.”He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

https://www.cnn.com/2016/07/12/politics/justice-ruth-bader-ginsburg-donald-trump-faker/index.html

There was more:

Ginsburg had told a Times reporter, “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.” 

https://www.thedailybeast.com/cheats/2016/07/14/ginsburg-on-trump-comments-i-m-sorry

Mind you, she made these comments about Trump before he was elected. They were made during the 2016 election – only months away from election day. Wisely, she publicly apologized:

Supreme Court Justice Ruth Bader Ginsburg apologized Thursday for comments she made about Donald Trump in The New York Times over the weekend. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” she said in a statement. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

https://www.thedailybeast.com/cheats/2016/07/14/ginsburg-on-trump-comments-i-m-sorryhttps://www.thedailybeast.com/cheats/2016/07/14/ginsburg-on-trump-comments-i-m-sorry

I can agree with that sentiment. Particularly inappropriate was the fact that she said this not while Trump was President, but during the campaign. So she’s not criticizing the Executive Branch, she ‘s criticizing a candidate. That seems dangerous to me. By all accounts she was extremely smart, and was an effective proponent of her point of view. She certainly wasn’t afraid of having her own opinions. You may not know this, because the media probably hasn’t spoken of it much, but RBG also criticized Colin Kaepernick, calling his national anthem kneeling/protest “dumb” – though she later apologized for that too.

You may have seem memes about RBG in reference to advising Egypt away from copying the U.S. Constitution…. In a 2012 interview with an Arabic television station, RBG publicly reccomended that the Egyptians, after overthrowing their old government, NOT look to the U.S. Constitution as a model for their new government. This wasn’t taken out of context, either. Don’t just read the meme, or a biased “fact-check” article. Go ahead and read her full quote:

Ruth Bader Ginsburg, Jan. 30, 2012: You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa — that was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the U.S. Constitution, Canada has the Charter of Rights and Freedoms — dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?

In her own words, as a sitting Supreme Court justice, she prefers the South African constitution, or the Canadian “Charter of Rights and Freedoms,” neither of which include any real right of the people to bear arms. South Africa itself is a hot-mess, and has a constitution which is full of problems, including the fact that it created a socialistic system of government control of over 700 businesses, as well as a disaster as far as racial relations goes. Canada’s ultra-leftwing charter is like taking the radical left’s social justice platform and turning it into constitutional law. It may be good from the left’s political perspective, but it would be antithetical to the governmental constraint and limited government required from the U.S. Constitution.

Clearly RGB knew it would be much easier for the left to impose their agenda on a populace without a constitution such as ours in place. That’s her opinion, which is likely the reason she chose to play politics until the very end. The beauty and the genius of the U.S. Constitution is that its can be amended at any time. Bad stuff can come out. Good stuff can go in. You just have to follow the process – which requires broad support by the people. It’s not something done by swamp creatures alone.

Therefore the question is not whether the President should nominate a new justice – it’s whether the President should delay doing so, just in case he loses the election, because political pressure from the opposition is demanding it. There is no constitutional basis for such a request – only politics. This, mind you, is coming from the same political opposition who impeached the President, in an election year. The President needs only to ask himself one question. What would the Democrats do? There’s his answer.

Lifestream Update 7/23 on the Suit Against the WV Governor over his COVID Tyranny

Also from 7/23/20, my appearance on the Tom Roton Show on WVHU in Huntington, West Virginia, discussing the COVID suit:

https://800wvhu.iheart.com/featured/the-tom-roten-morning-show/content/2020-07-23-wv-attorney-standing-against-unconstitutional-jim-justice-executive-orders/?fbclid=IwAR2hcAf3gXIUpx6CHv9EYKPGib2EtTBUEYdau3RhpwqZ20d8okZZh3qViLc

Fayette County Search Case was Settled

I’ve had several people ask me about an update on the Sizemore case, which was a search and seizure case out of Fayette County, West Virginia, involving a multi-jurisdictional drug task force who were found by a federal judge to have included false allegations in a search warrant application. The federal criminal charges were dropped after the evidence seized during the search was suppressed from evidence. Then the case was brought to me for a civil lawsuit. We filed in in September of 2019. We recently settled the case.

This was the case where the Charleston Gazette newspaper thought it was shocking that we filed a lawsuit over an illegal search where, despite the illegal warrant, drugs actually were found in my client’s house. I believe the headline was, “Officers found his $25k of heroin. He walked free, and now he’s suing police.”

In my December 2019 update, in response to the police officers’ motion to dismiss the lawsuit, I reiterated that equal justice under the law should mean that even people found with drugs should be entitled to the equal application of law and posted our response brief, as well as their motion.

In my January 2020 update, I posted a copy of the federal court’s memorandum opinion and order denying the motion to dismiss, and denying the application of qualified immunity, ordering that the case proceed. You’ve been hearing a lot about qualified immunity lately. The order in this case denied qualified immunity to the officers:

As previously explained, Defendant Morris violated Plaintiffs’ Fourth Amendment protections. Thus, the next question is whether the violated right was clearly established at the time of the events in question. “[I]t has long been established that when law enforcement acts in reckless disregard of the truth and makes a false statement or material omission that is necessary to a finding of probable cause, the resulting seizure will be determined to be unreasonable.” Gilliam v. Sealey, 932 F.3d 216, 241 (4th Cir. 2019); see Franks, 438 U.S. at 157. 

As the Fourth Circuit has explained, “a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by statements that the officer knows or should know are false.” Miller, 475 F.3d at 632 (quoting Smith v. Reddy, 101 F.3d 351, 355 (4th Cir.1996)).

Qualified immunity is actually pretty rare in excessive force lawsuits – at least where the plaintiff’s attorney knows what he or she is doing. Ideally, there is a dispute of facts, which requires a trial. But in search in seizure cases, it’s usually less of a factual dispute, and more of a legal dispute. The gist of qualified immunity is that courts give some leeway to police officers, who can’t be expected to automatically know each and every new case that comes out. Some courts expand it, unfortunately, but many don’t.

Here, the court equally applied the Fourth Amendment and justice was served. A police officer should not be allowed to lie in order to obtain a search warrant, even where they believe that the ends justifies the means. Here’s the full order, which was quoted above:

Petition for Rehearing En Banc Filed Yesterday with the Fourth Circuit in the Orem Search and Seizure Case

Yesterday we filed a Petition for Rehearing En Banc with the U.S. Court of Appeals for the Fourth Circuit in the Orem case. On May 11, 2020, the Fourth Circuit handed down a panel decision in the Orem v. Gillmore, et al., Section 1983 civil rights lawsuit, arising out of Berkeley County, West Virginia.

Here’s the background post on the initial filing of the lawsuit, in April of 2018. This is the case that made national headlines when a Republican nominee for Sheriff was arrested for allegedly overdosing in his home. He was arrested by a state trooper, who showed up at the scene of the medical emergency, and performed a warrantless search of a bathroom in the house. The trooper’s longtime secretary was the married to one of the candidate’s political opponents. During the arrest booking, a photograph was taken of the client while handcuffed inside a secure area of the state police detachment. It was uploaded to social media as a meme, and quickly went viral. Of course, the state police investigated themselves, and strangely were unable to find the culprit.

The damage was done, as far as the election is concerned. The prosecuting attorney determined that the arrest resulted from an illegal search of the bathroom, and evidently the court agreed. The criminal charges were dismissed. We filed a civil lawsuit in federal court. Unfortunately however, the Court granted the trooper qualified immunity on the search, and claimed that we missed the statute of limitations on the false arrest count. I argued up and down that the judge and the opposing lawyer were confused, and that false arrest has a 2 year SOL – not 1 year, as they claimed. Well, I was right. The Fourth Circuit overturned the ruling on the statute of limitations, holding that I was right about it being 2 years. But then they granted qualified immunity anyways.

Here’s the Petition for Rehearing:

Here’s the opinion, if you want to read it. Unfortunately, the opinion was pretty sparse – granting the defendant police officer qualified immunity, with pretty much no explanation whatsoever. They just said, it was “beyond debate.”

The expansion of qualified immunity to police officers who violate the most central tenant of the Fourth Amendment – a warrantless search of a home – is concerning. Qualified immunity is supposed to apply to the gray areas, where we can’t expect police officers to understand all the nuances and constant changes in case law. But the warrant requirement for searching a man’s home? The U.S. Supreme Court has long held that a police officer cannot be entitled to qualified immunity for the warrantless search of a home. Hopefully we get a rehearing on this and a new opinion, or else we very well may end up there.

New issues are presented on whether jail and prison inmates in (or from) West Virginia can/should be released due to COVID-19

We’ve been working hard in multiple cases to try to obtain the release of some non-violent jail and prison inmates who are currently stuck in their cells, having completed the bulk of their sentences for nonviolent offenses. Many of the facilities have stopped all academics and facility programming and just leaving people quarantined in their cells. (Update 4/30/20: Success! First one is out!)

Many of these same individuals have the ability to be self-sufficient in the outside world – even during this crises – rather than requiring prison staff to interact with them, feed them, and so on. Not to mention the requirement of we the taxpayers to fund the whole thing. Yet even with this global pandemic, West Virginia’s correctional facilities are still overcrowded, with more inmates incarcerated than there are “beds available.”

As of April 1, 2020, there were still 270 more prisoners incarcerated than available beds. Many of these prisoners, such as the ones we’ve been trying to help, are nonviolent offenders who’ve already served most of their sentence, who pose no real risk to public safety, and who could be assisting their own families at this time. Some of these individuals have underlying health issues which makes them especially vulnerable.

The West Virginia Division of Corrections has come up with a comprehensive plan to mitigate the likelihood of an outbreak in these facilities, but we’ve all heard about the issues at nursing homes in West Virginia, where our outbreak first started. Vulnerable individuals in institutions such as these are at “grave risk of severe illness or death from COVID-19,” and this includes vulnerable prisoners. See Joe Severino, Charleston Gazette-Mail, A WV Nursing Home Had 29 COVID-19 Cases. Here’s How they Contained the Spread (Mar. 31, 2020).

West Virginia recently passed legislation which was intended to address overcrowding, but which also would be perfectly suited to the COVID-19 threat. However, it doesn’t go in effect until June 5, 2020. In that legislation, the DOC is authorized to develop and approve home plans for certain qualifying inmates. This would help, but June is still some time away. In the meantime, inmates are most likely required to go back to their sentencing judge in the court/county in which they were sentenced. That’s what we’ve been doing.

In federal court, there’s a provision for an inmate to petition for what’s called a “compassionate release,” which would apply well to prisoners with an underlying health vulnerability. However, there’s a problem there as well. By law, they’re required to make an administrative request to the federal Bureau of Prisons first, prior to going to the sentencing judge.

Unfortunately, West Virginia doesn’t have an option for “compassionate release” just yet. But something needs to be done. So far, we’ve filed motions for reconsideration of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. There’s a time limit of 120 days generally to file this, so most inmates are going to be beyond this number. However, there is an exception which allows a sentencing judge to waive the time limitation so long as it doesn’t “usurp the role of the parole board,” whatever that means. See, e.g., State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). 

We finally have our first hearing coming up this week on a Rule 35 COVID motion. We do know that certain sentencing judges around the state have allowed some of their inmates an early release on bond or home confinement due to COVID-19, but at this point it’s entirely up to the discretion of the court, which means that everything is on a case-by-case basis.

In the federal system, there is a mechanism for release, and there’s a number of set factors for the court to address – also a case by case analysis. But again, there’s that requirement to exhaust administrative remedies from within the BOP first before filing.

So far the ACLU and Mountain State Justice have tried to take action on a multi-client basis and have been denied. Again, these are case-by-case fact-heavy situations which require going to the sentencing judge. In New Jersey, there’s already been a case up to the U.S. Court of Appeals for the Third Circuit on a “compassionate release” petition. (USA v. Raia) However, because they didn’t make the petition to the sentencing judge, and also because the inmate didn’t ask the BOP administratively first, it got sent back with no real decision.

On its own, the West Virginia DOC has already released about 70 parolees who were serving short terms for parole-related violations, and about 70 other work-release inmates on “extended furlough.” Who knows where we go from here, but as they say, “no asky, no gety….”

If you need help with an inmate who you believe is vulnerable medically, or who is a nonviolent offender who has served a substantial portion of their sentence, we would be happy to help. Give us a call. (304) 772-4999. We’re still working, though we’re having all consults via telephone or teleconference.

Family Court Judge Searches Home


I just uploaded this yesterday afternoon and it’s already over 12k views on Youtube. Probably because most people can relate with having been before a Family Court judge before, whereas they may not be able to automatically relate to someone involved in the criminal justice process.

This is video footage from our client, Matt Gibson, a federal law enforcement officer who had his home searched by a Family Court judge over a year after his divorce was finalized.  This just happened on March 4, 2020. I’ve never seen anything like this before, so needless to say, I’m still researching the mountain of issues here.

 

This isn’t the first viral video showing a West Virginia Family Court judge on a rampage.  Remember Chip Watkins in good ‘ole Putnam County? Man that guy was something else.

 

The Family Court involved in our video is Raleigh County, West Virginia, Judge Louise Goldston. If you know of this happening in other cases, please let me know as I continue to look into this.

UPDATE 3/11/20: Voicemail received by my client from the opposing attorney the evening prior to the hearing, which he himself scheduled. In the recording he says that the Court asked him to call him to convey a settlement offer (which sounds like he’s admitting to an ex parte communication with the judge, meaning without the other party having the opportunity to participate, which is a big no-no) and he demands $5,000.00 to stop the “hearing” which would take place the next day:

UPDATE 3/13/20: TV news segment: