Tag Archives: Supreme Court

Misconduct Complaints Against Kavanaugh Referred to Federal Appeals Court

On Wednesday, Chief Justice John G. Roberts Jr. referred more than a dozen judicial misconduct complaints filed recently against Brett M. Kavanaugh to a federal appeals court in Colorado.

The 15 complaints, related to statements Kavanaugh made during his Senate confirmation hearings, were initially filed with the federal appeals court in Washington, where Kavanaugh served for the last 12 years before his confirmation Saturday to the Supreme Court.

The allegations center on whether Kavanaugh was dishonest and lacked judicial temperament during his Senate testimony, according to people familiar with the matter.

Last month, a judge on the U.S. Court of Appeals for the D.C. Circuit asked Roberts to refer the complaints to another appeals court for review after determining that they should not be handled by judges who served with Kavanaugh on the D.C. appellate court.

In a letter Wednesday to the U.S. Court of Appeals for the 10th Circuit, Roberts said he selected the court in Colorado to “accept the transfer and to exercise the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.”

The Denver-based appeals court is led by Chief Judge Timothy M. Tymkovich, the former solicitor general of Colorado who was nominated to the bench by President George W. Bush. The 10th Circuit handled another recent judicial misconduct case from Washington involving the former chief judge of the District Court.

It is unclear what will come of the review by the 10th Circuit. The judiciary’s rules on misconduct do not apply to Supreme Court justices, and the 10th Circuit could decide to dismiss the complaints as moot now that Kavanaugh has joined the high court.

“There is nothing that a judicial council could do at this point,” said Arthur D. Hellman, a law professor at the University of Pittsburgh and expert on the operation of federal courts.

He said it was unprecedented for a new justice to face such a situation. Hellman predicted that the 10th Circuit will likely close the case “because it is no longer within their jurisdiction,” now that Kavanaugh has been elevated to the Supreme Court.

The letter from Roberts does not mention Kavanaugh by name. On Saturday, Judge Karen LeCraft Henderson of the D.C. Circuit, who originally requested the transfer, said in a statement that the court had received complaints about Kavanaugh since the start of his confirmation hearings.

“The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States,” said Henderson, a Bush nominee.

Complaints made against judges are usually handled by the chief judge. Henderson took over from Chief Judge Merrick Garland, who recused himself from the matter.

When complaints were filed in late September and early October, Henderson dismissed some but concluded that others were substantive enough to refer to another judicial panel for investigation.

Roberts received the first transfer request on Sept. 20, followed by four additional requests on Sept. 26, Sept. 28, Oct. 3 and Oct. 5, according to his letter. He did not immediately move to refer the filings to another appeals court.

People familiar with the matter who spoke on the condition of anonymity say the allegations had already been widely discussed in the Senate and in the public realm. Roberts did not see an urgent need for them to be resolved by the judicial branch while he continued to review the incoming complaints, they said.

The complaints landed with Roberts because of his role as chief justice of the United States, not because Kavanaugh is now a member of the Supreme Court.

Such complaints are usually confidential unless the judicial council investigating issues a public report about its findings.

The existence of misconduct complaints and the procedure can be disclosed, according to the rules, “when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.”

The public nature of such a case last year involving former 9th Circuit judge Alex Kozinski, who was accused of sexual misconduct, was unusual. The chief judge of the 9th Circuit asked Roberts to transfer the case for review after The Washington Post reported allegations against Kozinski.

Roberts referred the case to the appeals court in New York City. The judicial council of that court publicly announced it was closing its investigation because Kozinski had retired, saying that because he “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated.”

Judge Kozinski was well known in judicial circles as a fair and well reasoned jurist and his loss as a significant blow to the conservative judicial community.

President Slams Democratic Party For Casting Stones In Glass House

President Trump turned the tables on Democrat credibility amid the Supreme Court showdown.

At last week’s fiery hearing probing sexual assault allegations against Judge Brett Kavanaugh, Democratic Sen. Richard Blumenthal lectured the Supreme Court nominee on the implications of telling even a single lie.

“Falsus in uno, falsus in omnibus,” Blumenthal, D-Conn., told Kavanaugh, reciting a Latin phrase. “It means ‘False in one thing, false in everything.’”

But Blumenthal’s own difficult history with the truth is coming back to haunt him amid the Kavanaugh fight, with President Trump and Republican senators slamming him for inflating his military service during the Vietnam War.

In the 2000s, when Blumenthal served as Connecticut’s attorney general, he began to claim that he served in the Vietnam War. Blumenthal, repeatedly, has touted his experience during the war.

“When we returned [from Vietnam], we saw nothing like this,” Blumenthal reportedly said in 2003.

“We have learned something important since the days I served in Vietnam,” The New York Times quoted Blumenthal as saying in 2008.

“I served during the Vietnam era,” Blumenthal reportedly said at a Vietnam War memorial in 2008. “I remember the taunts, the insults, sometimes even the physical abuse.”

But Blumenthal didn’t serve in Vietnam. He reportedly obtained at least five military deferments between 1965 and 1970. He eventually served in the U.S. Marine Corps Reserve, but did not deploy to Vietnam.

In the wake of Blumenthal questioning Kavanaugh — who faces multiple sexual assault or misconduct allegations, which he denies — Trump and fellow Republicans have not let him forget his own past statements.

“You have the great Vietnam War hero—who didn’t go to Vietnam—[Sen. Richard] Blumenthal,” Trump said at a rally Monday evening. “How about Blumenthal? We call him ‘Da Nang Blumenthal.”

Blumenthal, last week, said Trump’s initial reluctance to demand a FBI supplemental background probe of Kavanaugh was “tantamount to a cover-up.” Blumenthal hit Kavanaugh during the hearing on questions related to his high school yearbook entries, calendar entries and drinking habits.

“For 15 years as the attorney general of Connecticut, he went around telling war stories,” Trump said. “’People dying left and right—but my platoon marched forward!’ He was never in Vietnam. It was a lie. And then he’s up there saying, ‘We want the truth from Judge Kavanaugh.’ And you’re getting the truth from Judge Kavanaugh.”

During the Kavanaugh hearing, Blumenthal said “the core of why we are here today really is credibility.”

Kavanaugh is accused of sexually assaulting Dr. Christine Blasey Ford while at a high school party 36 years ago. Ford, who also testified before the Senate Judiciary Committee last week, alleged Kavanaugh pinned her down and tried to remove her clothes. Her attorney says Ford believes this to have been an “attempted rape.”

Kavanaugh also faces allegations from Deborah Ramirez, who claims that while freshmen at Yale University, the Supreme Court nominee exposed himself to her at a dorm party in the 1980s; and Julie Swetnick, who is represented by Stormy Daniels’ attorney Michael Avenatti and claims that Kavanaugh was involved in or present at “gang” and “train” rapes in the 1980s.

Kavanaugh has vehemently denied the allegations.

Amid the hearing, though, Sen. Tom Cotton, R-Ark., an Iraq and Afghanistan war veteran, hit Blumenthal for his credibility.

“.@SenBlumenthal lied for years about serving in Vietnam, which is all you need to know about his courage & honesty. Maybe he should reconsider before questioning Judge Kavanaugh’s credibility,” Cotton tweeted.

Blumenthal’s office did not immediately respond to Fox News’ request for comment.

In 2010, Blumenthal admitted to giving misleading statements about his service.

“On a few occasions I have misspoken about my service,” Blumenthal, as quoted by The New York Times, said, adding that he served in the U.S. Marine Corps Reserve. “And I regret that and I take full responsibility. But I will not allow anyone to take a few misplaced words and impugn my record of service to our country.”

Supreme Court’s Decision Protects From Dangerously Confusing & Vague “Aggravated Felony” Statute

Yesterday, April 17, 2018, in Sessions v. Dimaya, No. 15-1498, the Supreme Court (in a 5-4 decision) held that 18 U.S.C. § 16’s residual clause is unconstitutionally vague. At issue in the case, the Immigration and Nationality Act (INA) provides that a noncitizen convicted of an “aggravated felony” after entering the United States will be deported. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C).

Under the INA, an “aggravated felony” includes, among other offenses, a “crime of violence” as defined in 18 U.S.C. § 16 (excluding a purely political offense) for which the term of imprisonment is at least one year. The term “crime of violence” under § 16 is defined as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Subsection (b) is typically referred to as a residual clause.

A majority of the Court held that a straightforward application of Johnson v. United States, 135 S. Ct. 2551 (2015) resolved this case. In Johnson, the Supreme Court held that a similar residual clause found in the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated the Constitution’s guarantee of due process. In that case, the residual clause was used to increase a criminal defendant’s sentencing range. Although the specific language of the residual clause in § 16(b) was not identical to the residual clause of § 924(e), the Court held that it suffered the same infirmities.

Specifically, the Court found two features of the residual clause in both statutes conspired to make them unconstitutional: determining an “ordinary case” and determining the risk posed by the crime. The majority rejected the government’s attempts to distinguish the two clauses.

Justice Gorsuch joined with Justices Kagan, Ginsburg, Breyer, and Sotomayor, in finding the residual clause unconstitutionally vague.

Although Justice Gorsuch filed an opinion concurring in the judgment, he did not join in all parts of the opinion authored by Justice Kagan. Chief Justice Roberts filed a dissenting opinion, in which Justices Kennedy, Thomas, and Alito, joined. Justice Thomas filed a dissenting opinion, in which Justices Kennedy and Alito joined in part.

Supreme Court Hears States Beg For Your Bucks

Online shoppers have gotten used to seeing that line on checkout screens before they click “purchase.” But a case before the Supreme Court could change that.

At issue is a rule stemming from two, decades-old Supreme Court cases: If a business is shipping to a state where it doesn’t have an office, warehouse or other physical presence, it doesn’t have to collect the state’s sales tax.

That means large retailers such as Apple, Macy’s, Target and Walmart, which have brick-and-mortar stores nationwide, generally collect sales tax from customers who buy from them online. But other online sellers, from 1-800 Contacts to home goods site Wayfair, can often sidestep charging the tax.

More than 40 states are asking the Supreme Court to reconsider that rule in a case being argued Tuesday. They say they’re losing out on “billions of dollars in tax revenue each year, requiring cuts to critical government programs” and that their losses compound as online shopping grows. But small businesses that sell online say the complexity and expense of collecting taxes nationwide could drive them out of business.

Large retailers want all businesses to “be playing by the same set of rules,” said Deborah White, the president of the litigation arm of the Retail Industry Leaders Association, which represents more than 70 of America’s largest retailers.

For years, the issue of whether out-of-state sellers should collect sales tax had to do mostly with one company: Amazon.com. The online giant is said to account for more than 40 percent of U.S. online retail sales. But as Amazon has grown, dotting the country with warehouses, it has had to charge sales tax in more and more places.

President Donald Trump has slammed the company, accusing it of paying “little or no taxes” to state and local governments. But since 2017, Amazon has been collecting sales tax in every state that charges it. Third-party sellers that use Amazon to sell products make their own tax collection decisions, however.

The case now before the Supreme Court could affect those third-party Amazon sellers and many other sellers that don’t collect taxes in all states — sellers such as jewelry website Blue Nile, pet products site Chewy.com, clothing retailer L.L. Bean, electronics retailer Newegg and internet retailer Overstock.com. Sellers on eBay and Etsy, which provide platforms for smaller sellers, also don’t collect sales tax nationwide.

States generally require consumers who weren’t charged sales tax on a purchase to pay it themselves, often through self-reporting on their income tax returns. But states have found that only about 1 percent to 2 percent actually pay.

States would capture more of that tax if out-of-state sellers had to collect it, and states say software has made sales tax collection simple.

Out-of-state sellers disagree, calling it costly and extraordinarily complex, with tax rates and rules that vary not only by state but also by city and county. For example, in Illinois, Snickers are taxed at a higher rate than Twix because foods containing flour don’t count as candy. Sellers say free or inexpensive software isn’t accurate, more sophisticated software is expensive and that collecting tax nationwide would also subject them to potentially costly audits.

“For small businesses on tight margins, these costs are going to be fatal in many cases,” said Andy Pincus, who filed a brief on behalf of eBay and small businesses that use its platform.

The case now before the Supreme Court involves South Dakota, which has no income tax and relies heavily on sales tax for revenue. South Dakota’s governor has said the state loses out on an estimated $50 million a year in sales tax that doesn’t get collected by out-of-state sellers.

In 2016 the state passed a law requiring those sellers to collect taxes on sales into the state, a law challenging the Supreme Court precedents. The state, conceding it could win only if the Supreme Court reverses course, has lost in lower courts.

South Dakota says the high court’s previous decisions don’t reflect today’s world. The court first adopted its physical presence rule on sales tax collection in a 1967 case dealing with a catalog retailer. At the time, the court was concerned in part about the burden collecting sales tax would place on the catalog company. The court reaffirmed that ruling in 1992.

It’s unclear how the justices might align on the question this time. But three justices — Neil Gorsuch, Clarence Thomas and Anthony Kennedy — have suggested a willingness to rethink those decisions. Kennedy has written that the 1992 case was “questionable even when decided” and “now harms states to a degree far greater than could have been anticipated earlier.”

“Although online businesses may not have a physical presence in some states, the Web has, in many ways, brought the average American closer to most major retailers,” he wrote in suggesting the days of inconsistent sales tax collection may be numbered. “A connection to a shopper’s favorite store is a click away regardless of how close or far the nearest storefront.”

Supreme Court To Consider Whether Florida Robbery Qualifies As A Violent Felony Under ACCA

This past Monday, the Supreme Court granted certiorari in Stokeling v. United States, No. 17-5554. The question presented is: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”

The circuits are in conflict on whether “overcoming resistance” in robbery statutes categorically requires “violent force.” The Tenth and Eleventh Circuits have held that two different common law robbery offense offenses, both of which require overcoming “victim resistance,” categorically require violence force, that is, “force capable of causing physical pain or injury to another person,” which is “a substantial degree of force;” the word “violent” connotes “strong physical force.”

In contrast, the Fourth and Ninth Circuits have held that similar offenses (and in the case of the Ninth Circuit, the exact same robbery offense as addressed by the Eleventh Circuit) do not categorically require violent force.