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“Chief Justice John Roberts Just Isn’t Far Enough To The Right”: When Even Conservative Justices Aren’t Conservative Enough

Over the weekend, Sen. Ted Cruz (R-Texas) added a new line of attack to his offensive against his party’s Beltway establishment: the Republican presidential hopeful insisted that Supreme Court Chief Justice John Roberts just isn’t far enough to the right.

In fact, the GOP senator, who was an enthusiastic Roberts booster in 2005, even criticized former President George W. Bush for his reluctance to “spend some political capital” in support of a genuinely right-wing nominee.

Jeb Bush was asked in last night’s debate whether Cruz was right, and though the former governor’s answer meandered a bit, Bush suggested he’d nominate different kinds of justices than his brother: “Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do. And I’m willing to fight for those nominees to make sure that they get passed. You can’t do it the politically expedient way anymore.”

Cruz added in response:

“I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. […]

 “It is true that after George W. Bush nominated John Roberts, I supported his confirmation. That was a mistake and I regret that. I wouldn’t have nominated John Roberts.”

Watching this unfold last night, some viewers might have been left with the impression that Chief Justice Roberts is, well, retired Justice David Souter. One President Bush nominated a jurist who seemed conservative enough, but who turned out to approach the law from a center-left perspective, and then another President Bush did the same thing.

Except, that’s not even close to being true.

When Cruz and others on the right complain bitterly about Roberts, they’re generally referring to the justice’s rulings on the Affordable Care Act. But the fact remains that both of the major “Obamacare” rulings were genuinely ridiculous cases – and it’s not Roberts’ fault that he took the law, court precedent, and common sense seriously.

Health care cases notwithstanding, though, Roberts is not a moderate by any fair measurement. We are, after all, talking about a court that handed down the Citizens United ruling. And then later gutted the Voting Rights Act. Roberts didn’t even support marriage equality.

Souter he isn’t.

If Roberts isn’t radical enough for Cruz, who exactly would the Texas Republican like to see on the court? Three times last night he mentioned Judge Edith Jones of the 5th Circuit Court of Appeals. Given Jones’ jaw-dropping record, that tells us an awful lot about Cruz.

 

By: Steve Benen, The Madow Blog, September 17, 2015

September 18, 2015 Posted by | Conservatives, John Roberts, Ted Cruz | , , , , , , , | 1 Comment

“It’s No Big Deal”: Fifth Circuit Seems To Find No “Burden” As “Undue”

A three-judge panel of the conservative Fifth Circuit Court of Appeals has upheld Texas’ new anti-abortion law, a classic of the genre insofar as it uses late-term abortion restrictions to mask a more general effort to shut down abortion clinics via medically dubious “health” requirements.

You can expect conservatives to make hay of the fact that all three judges on the panel are women (one of them the famous conservative judicial activist Edith Jones, who wrote the opinion). But they certainly had no sympathy for the women affected by their action, arguing that it’s no big deal if they have to travel across or beyond Texas to obtain abortion services. MSNBC’s Irin Carmon assesses the damage:

The Supreme Court has held that laws restricting access to abortion can’t put an “undue burden” or have the purpose of putting a “substantial obstacle” in the path of a woman seeking an abortion. But in a decision written by Judge Edith Jones and signed onto by Judges Jennifer Elrod and Catharina Haynes, the Fifth Circuit argued that Texas’s law wasn’t harsh enough to meet that standard. Despite the fact that the admitting privileges requirement has been rejected as medically unnecessary by the American Medical Association and the American College of Obstetricians and Gynecologists, the Fifth Circuit opinion accepted the state of Texas’s reasoning at face value – that it was intended to protect women’s health, not end access to abortion.

The Fifth Circuit wasn’t impressed at how much harder it has become for Texas women to have abortions, both because clinics whose providers have been rejected for privileges have closed outright and because clinics with doctors that have been able to get privileges are operating at reduced capacity. According to a map by RH Reality Check’s Andrea Grimes, “As of March 6, there are 25 open abortion clinics, six of which are ambulatory surgical centers, in Texas.” There were 36 abortion clinics in Texas at the time the law was passed, meaning that the dire prediction that a third of the clinics would close has come true. When requirements that abortions be provided in ambulatory surgical clinics go into effect in September, that will leave only six clinics, plus another one Planned Parenthood is building in San Antonio.

Since the 7th Circuit reached the opposite conclusion in striking down a similar law in Wisconsin, it’s now almost certain the Supreme Court will have to weigh in, giving Justice Anthony Kennedy a fresh chance to recite his paternalistic approach to women’s health, and the Court’s conservative bloc the best chance they’ve had in years to weaken the “undue burden” standard for abortion restrictions.

 

By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 28, 2014

 

 

 

March 30, 2014 Posted by | Abortion, Texas, Women's Health | , , , , , , | 1 Comment

“Make Peace With God”: Embattled Federal Judge Called For Texas To Execute 8 To 12 Times As Many Inmates Per Year

According to a complaint filed last week against federal appellate Judge Edith Jones, Jones suggested that African-Americans and Hispanics are predisposed towards violent crime and that the death penalty is a public service because it allows inmates to “make peace with God.” Should these allegations against Judge Jones be proven, they will be only the latest examples of a career’s worth of nonchalance regarding executions. Indeed, as far back as 1990, a much younger Jones proposed a series of reforms to Texas’ execution procedures that would have increased that state’s execution rate by as much as twelve times.

In an article for the Texas Bar Journal entitled “Death Penalty Procedures: A Proposal for Reform,” which is available through the legal research service HeinOnline, Jones decries a capital punishment system in Texas which she views as too inefficient, in large part because judges delay executions by taking time to review death sentences to determine that they were lawfully handed down. Indeed, at one point Jones blames the slow rate of executions on “the frequent, human reaction of most judges . . . to defer a decision if any element of a case raises doubts, or to grant a temporary stay for further consideration.”

To speed along Texas’ ability to kill death row inmates, Jones proposes that Texas schedule “four to six executions per month, commencing six months to one year from the date” those execution dates are made public. Notably, in the five years prior to when Jones wrote this piece, Texas executed an average of just under six inmates per year, so the immediate impact of her proposal would have been to multiply the state’s execution rate eight to twelvefold.

It’s also worth noting that Texas’ execution rate did spike significantly in the years after Jones wrote this piece. Most significantly, during the four years after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which limited the ability of death row inmates to challenge their sentences in federal court, Texas executed an average of 33 people per year. Nevertheless, in the modern era of American death penalty law, Texas has never executed the 48 to 72 people per year suggested by Jones’ piece. The deadliest year for Texas inmates was 2000, when 40 people were executed. 15 people were executed last year. Nevertheless, Jones concludes her list of proposals for expediting Texas’ executions by suggesting they could be viewed as “too lenient” because they would “take more than four years to conclude all the currently pending capital cases.”

A decade after publishing this proposal, Jones joined two opinions claiming that a man whose attorney slept through much of his trial could nonetheless be executed.

Even without Jones’ proposal for a wave of executions, Texas has a higher execution rate than any other state. More than one third of all U.S. executions took place in Texas since 1976, when the Supreme Court announced the modern constitutional regime governing death penalty cases.

 

By: Ian Millhiser, Think Progress, June 10, 2013

June 12, 2013 Posted by | Death Penalty, Federal Courts | , , , , , , , | Leave a comment

“Unfair And Partial”: Federal Judge Edith H. Jones Says Minorities Are Predisposed To Crime

Judge Edith H. Jones of the 5th Circuit Court of Appeals is facing serious allegations this week after controversial remarks the jurist made at Federalist Society in February. According to the conservative group, there is no transcript of recording of Jones’ speech, but affidavits from attendees point to deeply problematic language from anyone, least of all a sitting federal judge.

According to the [ethics] complaint, Judge Jones, 64, who was nominated to the bench by President Ronald Reagan, and who until recently was the chief judge of the Fifth Circuit and mentioned during Republican administrations as a possible Supreme Court nominee, said that “racial groups like African-Americans and Hispanics are predisposed to crime.”

One of the affidavits accompanying the complaint is from Marc Bookman, a veteran death penalty lawyer in Pennsylvania, who attended the lecture. He quoted Judge Jones as saying, “Sadly, some groups seem to commit more heinous crimes than others.” When asked to elaborate, Judge Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime,” the affidavit said.

A variety of civil rights organizations and legal ethicists this week filed a complaint of misconduct. An affidavit from James McCormack, the former chief disciplinary counsel for the Texas bar, added that he believes Jones “violated the ethical standards applicable to federal judges under the Code of Conduct for United States judges.”

Making matters slightly worse, this wasn’t the only offensive comment Jones made at the event.

Judge Jones is alleged to have said that the defenses often offered in capital cases, including mental retardation and systemic racism, were “red herrings.” She also said, according to the witnesses, that Mexicans would prefer to be on death row in the United States rather than in prison in Mexico.

It would appear that defendants have reason to question whether Jones is a fair and impartial arbiter of justice. Indeed, if I were a criminal defense attorney, and my client’s conviction rested in part on a ruling from Jones, I’d probably have new grounds for an appeal.

The matter will reportedly be reviewed by the 5th circuit’s chief judge. It’s a controversy worth watching.

Postscript: When Jones was on a very short list of jurists then-President George W. Bush was considering for the U.S. Supreme Court in 2005, the Washington Post published this brief profile, noting, “Known as a strong and outspoken conservative, she has written opinions that called into question the reasoning behind the Roe v. Wade abortion ruling, has been an advocate for speeding up death penalty executions, and is a vocal proponent of ‘moral values.’ She also wrote a 1997 opinion throwing out a federal ban on the possession of machine guns and has been an advocate for toughening bankruptcy laws.”

 

By: Steve Benen, The Maddow Blog, June 5, 2013

June 7, 2013 Posted by | Conservatives, Federal Courts | , , , , , , , | Leave a comment

   

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