Year End Reflections, Part II (Abortion Rights at SCOTUS)

Imagine my surprise when, while eating my breakfast, I turned on the TV last Wednesday morning and found myself listening to oral arguments at the Supreme Court in the case of Dobbs vs Jackson Women's Health Organization.  While there was no video, only audio, I could not recall another time where I was able to listen in on arguments at the Supreme Court.  As an attorney, I was fascinated.  

Allow me to start with what should be obvious, but maybe not.  Neither side argued "morality" or religious doctrine.  While much of our society, and laws, are founded in Judeo-Christian doctrine, we are not run as a religious country.  Our government is, and should be, a secular one.  

The Dobbs case involves a Mississippi statute banning most abortions after 15 weeks.  (See the October 5, 2021 post for a discussion of this and the Texas abortion law, which banned abortions after 6 weeks.)  The 15 week limit conflicts with the 1973 decision in Roe v. Wade, allowing abortions prior to the date of fetal viability, generally considered to be at 24 weeks.  (Some would argue now as early as 22 or even 20 weeks.)  In Planned Parenthood v. Casey (1992), the Supreme Court added (modified Roe?) an "undue burden" on abortion rights standard.

Arguing on behalf of Mississippi was their Solicitor General, and opposing was the US Solicitor General and counsel for Jackson Women's Health.  The pro abortion side argued that Roe should be treated as a "super precedent," akin to the 1954 decision in Brown v. Board of Education.  Brown overturned the 1896 decision in Plessy v. Ferguson, which had held racial segregation laws that were "separate but equal" were constitutional.  Brown reversed that decision.  I am reluctant to declare any court decision a "super" precedent.  If it is deserving of that nomenclature, then perhaps the proper approach is to add a constitutional amendment based upon the Court's holding.  

Justice Amy Coney Barrett asked whether or not the so-called "safe haven" laws obviate the need for abortions.  There are safe haven laws in all 50 states, although the terms vary somewhat state to state.  Generally, a woman or legal guardian is able to drop off a newborn baby at a fire station or hospital and, assuming no issues of child abuse, they can remain anonymous and not face any legal charges.  

Chief Justice Roberts tried to keep the arguments focused on Mississippi's 15 week rule which was technically the only issue before the Court, even though there was much argument on both sides on the overturning or upholding of Roe v. Wade.  Roberts wanted to know if 15 weeks was an undue burden, and why it would be considered a significant departure from the 24 weeks allowed by Roe.  I do not believe Roberts wants to explicitly overturn Roe.  

Justice Kavanaugh inquired why the Court should even be involved in the abortion issue, suggesting that the Court remain "neutral" on the issue.  It would seem that "neutral" would necessitate the overturning of Roe, and leaving the decision to the States.  Although, I imagine Pelosi and Schumer would immediately pass federal legislation permitting abortions consistent with Roe, if the Court overturned Roe.

Justice Sonia Sotomayor was having none of it.  She was outraged at the mere possibility that the Court might reverse Roe based upon a change in the make-up of the Court.  After all, President Trump ended up being able to appoint three justices to the Court (Gorsuch, Kavanaugh and Barrett).  Sotomayor:  "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?...I don't see how it is possible."

In the October 5 post, I opined that I thought the Court would not overturn Roe, with a 6 to 3 vote.  Listening to the arguments (not all of it) I am inclined to slightly amend that opinion.  There is a chance that the Court will uphold the Mississippi statute's 15 week limit, without expressly reversing Roe.  In other words, abortion would still be a constitutional right.  And, they would need to declare that the 15 weeks is not an undue burden, consistent with Casey.  If Roberts is able to get a majority to agree with that, he would like assign the writing of the opinion to himself, in order to guarantee that Roe was not overturned.

Year End Reflections, Part I (In Case You Had Any Doubt)

I certainly had no doubt, especially given the number of times that people on the left stopped being friends with me because of political differences.  But now I have located poll numbers to prove it.  People on the left are far more intolerant than people on the right.  Does this really surprise anyone?

An Axios poll of college students conducted last month is quite revealing.  71% of Democrats would not go on a date with the someone who voted for the opposing party's presidential candidate, while only 31% of Republicans felt the same way.

41% of Democrats said they would not shop at, nor support a business, who voted for the opposing candidate.  But only 7% of Republicans agreed with that.  And while 30% of Democrats would not work for someone who voted for the opposing party, only 7% of Republicans concurred.

And, perhaps most telling, 37% of Democrats would not be friends with someone who voted for the opposing party, a mere 5% of Republicans agreed with that position.

A Pew Research poll of all adults from 2019 bears out the same findings.  43% of "single and looking" Democrats would not be willing to be in a relationship with a Republican.  But only 24% of Republicans described an unwillingness to be in a relationship with a Democrat.  

Now, some may argue these differences are all due to Trump/Trump derangement syndrome.  Maybe in part.  But some commentators have long discussed the fact that Democrats think Republicans are evil, while Republicans tend to think that Democrats are wrong.  And Axios commented on the fact that some Democrats simply believe their issues - such as abortion, LGBTQ rights, and immigration - are more important than any issues Republicans care about.  I guess that means things like free speech, liberty, less government involvement in our lives, capitalism and the like, are relatively unimportant. 

One thing is certain.  I have not ended any friendships with those holding opposing political beliefs.  But that has not stopped friends and colleagues of 25 years, 30 years and 40 years (3 different individuals) from ceasing their friendships with me - simply providing yet more examples of left-wing intolerance.    

Why I Now Oppose Capital Punishment

Just this month, Oklahoma Governor Kevin Stitt granted clemency to a Julius Jones, reducing his death sentence to life in prison without the possibility of parole.  Jones had been convicted in the 1999 shooting death of a businessman, during a carjacking.  Not surprisingly, Jones claimed that he was innocent.  I am not familiar with the underlying facts of the case, beyond the few words stated here.  And while I believe that such a crime is deserving of the death penalty, I nevertheless believe that the Governor made the right decision.

Also this month, I saw that the two men convicted in the killing of Malcolm X were recently exonerated.  Malcolm X was killed in 1965.  But evidence was disclosed that the NYPD and FBI withheld key exculpatory evidence.  While both men were released from prison (one in 1985 and one in 1987) they had to live with the stigma of being convicted murderers.  One is now 83 years old, while the other died in 2009.

And, in a case much closer to home here in California, is the story of Craig Coley.  Coley was convicted of killing 24 year-old Rhonda Wicht and her 4-year old son, in Simi Valley.  Coley had dated Wicht for two years, but they had recently broken up before the murders.  And a witness said they had seen Coley and his truck at Wicht's apartment building after hearing a disturbance.  Coley was promptly arrested.  The young police officer who was directed by a superior to arrest Coley has since become a dear friend.  But, Coley ended up serving 39 years in prison for crimes he did not commit.

In November, 2017, former California Governor Jerry Brown issued a full pardon, declaring Coley to be innocent of the crimes for which he was convicted.  The dedication of a single detective, Michael Bender, ultimately led to the discovery of evidence which, through DNA testing, showed no sign of Coley's DNA.  Furthermore, three officers testified that the original investigation was mishandled at best, or that Coley was framed at worst.  

But for the dedication of Detective Mike Bender, who saw problems with the case from the beginning, and but for his tireless pursuit of the truth for years and decades, Coley would have died in prison.  (The arresting officer is of the belief that the prosecutor was not getting favorable responses from the jury pool with regards to the death penalty, and therefore sought life without parole.)  Coley has made peace with that young officer who arrested him on the orders of a superior.  That same officer also helped Detective Bender in his investigation, whenever possible.

I do not know how many detectives like Mike Bender there are in police departments across the country.  I do not know how many police officers and detectives will spend as much time as necessary to learn the truth about a suspected criminal, in order to see that justice is done.  I certainly hope that the vast majority of officers would do that.  Coley got out of prison at age 69 or 70, after 39 years in prison.  The state paid him a settlement of $2 million, and Simi Valley paid him $21 million.  Thankfully, he gets to live out his remaining days as a free man, without any need to worry about how he will support himself after 39 years behind bars.  A death sentence would not have allowed for any of this to happen.  That injustice would have been irrevocable.  And unacceptable.   

A Few Words About The Blog And My Readers

(Note.  On May 2, 2021, I wrote a post called "A Few Words About The Blog And Me."  This post is more about readers' comments, and how some (many) on the left perceive me.)

In various posts this past year I have said things that should have gotten agreement from those on the left.  Here are some examples that come to mind.  Following the events of January 6, 2021, I wrote that I was appalled by what I saw.  I said then, and more recently, that I wanted Trump out of politics.  I said that Trump was wrong when claiming that Pence could, and should, overturn the December, 2020 Electoral College.  I made it clear that the Vice President does not have that power, nor should any Vice President have the power to overturn election results.

I wrote back in November, 2020, that I accepted that Biden won late on election night.  That was days before any media outlet had called the election.   More recently, I explained that I opposed the Texas abortion law.  

And twice recently, I spoke in favor of the Covid vaccines.  I explained that I had gotten the two Pfizer injections, and more recently the booster.  I discussed the positive history of vaccines in our country helping to eradicate disease.  

I received no agreements from those on the left to any of the above.  I used to get agreement.  I did get some disagreements from those on the right.  But here is the difference.  When I hear from readers on the right, they do not mock me, or stop being friends with me (if we are friends).  They engage.  They will tell me why they believe that I may be wrong, or may have overlooked somethings.  Some will send links to articles.

It is difficult to engage with those on the left.  I recently told someone on the left that the world ended for him on January 6.  Not matter what I say, the reply is always "January 6" and "Trump."  He is not the only one.  As long as Trump is alive, there is no other issue of any importance.  Anything that Biden and the Democrats are currently doing to harm the country is insignificant compared to Trump.  

As I hear non-stop about the "insurrection," I suggested that one reader take a look at my March 12, 2017 post, "The Deposing of an American President."  I suggested that the three year effort to "depose" a duly elected president was worse that the few hours of violence at the Capitol on January 6.  Of course, there was disagreement.  Trump was trying to overthrow the government.  So imagine my surprise when I was told that this particular reader had no problem with any lawful means being used to unseat Trump from the day he took office.

Let's think about that for a moment.  It astounds me to think that this individual has no qualms about seeking to immediately remove a duly elected president from office, while telling me that my blog causes great damage to our country and democracy.  What an excellent idea.  Every time a new president takes office with the opposing party in control of Congress, the Congress should immediately impeach that new president because...?  That's some way to keep a stable democracy.  

What I have also noticed from readers, and even family, is their usually unstated belief that I am a right-wing extremist.  Why?  Because I voted for Trump.  Which is all they need to know about me, my beliefs and my character.  So when I said that I wanted Trump out of politics, one reader was upset that I did not explain why.  When I said that I was vaccinated, and believed in vaccines, I was told that I did not tell unvaccinated people that they needed to get vaccinated - it was part of their civic duty.  Well, whether or not you believe it is a civic duty, one thing is certain - it is not my civic duty to tell other people what they must do.    

    

The Rittenhouse Verdict, Part III (You Cannot Even Trust The Dean Of An Elite Law School)

Erwin Chemerinsky is the Dean of the University of California, Berkeley, School of Law.  Berkeley law school is an elite school, and arguably among the top five law schools in the country.  So, what the Dean of this school says should be considered as important, right?  Wrong.  Chemerinsky wrote an Op-Ed that was published in the 11/20/21 Los Angeles Times.

After stating that the jury only gets to decide the case before it, he said this:  "The acquittal of Kyle Rittenhouse on all counts sends a chilling message about the acceptability of vigilantism."  How does it do that?  The evidence showed that the aggressors were the ones who Rittenhouse shot, not Rittenhouse.  And what message does the Dean want the jury to send - ignore the facts and the law and hand down a verdict that is acceptable to the mob?  I don't get it.  

After noting that Rittenhouse testified to going to Kenosha to protect local businesses, Chemerinsky said this:  "There is so much that is disturbing about that: a teenager deciding that he needed to provide law enforcement, when he lacked training or experience, and illegally arming himself with a semiautomatic rifle."  First, teenagers also fight in our armed services.  Second, the allegation of illegally carrying a weapon was dropped by the prosecutor, apparently because it was not illegal.  Third, and perhaps most importantly, private citizens might not feel a need to arm themselves if the police did their jobs.

But the police are not allowed to do their jobs, their hands having been tied by left-wing elected officials and district attorneys.  If you need any examples, then you were asleep during the summer of 2020 when mobs caused an estimated $2 billion in damage to businesses, and even government facilities, across the country, following last summer's "mostly peaceful" protests (read, riots) following the murder of George Floyd.  It is completely unreasonable to ask people to stand by and watch their businesses, their life savings often, be destroyed by a mob.  

Some on the left have suggested to me that these businesses have insurance anyway.  What kind of answer is that in a civil society?  Let the criminals run amok because it's only insurance companies who have to pay?  Pretty outrageous.  Plus, many of the businesses destroyed last summer did not have insurance.  And even if they did, taking months to collect and then rebuild could easily put them out of business.  

I am also disturbed by the way Chemerinsky presents the fact of the case.  He said Rosenbaum "allegedly" grabbed at Rittenhouse's rifle.  From the video I saw he definitely appeared to grab for the rifle.  Chemerinisky said Huber "apparently" struck Rittenhouse with a skateboard.  From the video I saw, Huber struck him in the back of the head, knocking him to the ground.  Most egregious was Chemerinsky saying Grosskreutz "reached for a weapon."  Grosskreutz's own testimony was that he pointed his gun directly at Rittenhouse.  He didn't just reach for it.

Chemerinsky:  "I worry that the acquittal conveys the message that Rittenhouse did nothing wrong..."  Well, Dean Chemerinsky, the jury found exactly that - Rittenhouse did nothing wrong legally.  Chemerinsky:  "But looking at the events in this way obscures what precipitated these shootings: A 17 year-old with an assault weapon was misguidedly taking the law into his own hands."  See above paragraphs.  Further, the jury found that those Rittenhouse shot precipitated the shootings.  And if we are looking at the bigger picture, the violent mob following the lawful shooting of Jacob Blake were the ones who precipitated these events.   

Chemerinsky ends with this:  "The tragedy in Kenosha could have been avoided.  Sometimes the law really ignores common sense."  I cannot help but wonder what change in the law Chemerinsky seeks?  Eliminate the thousands year old doctrine of self-defense?  

(A closing note to these three posts.  Readers will notice that I have not celebrated anyone's death.  But if I have to choose between harm to a perpetrator versus harm to an innocent, in any situation, I will always side with the innocent.  And, we can debate all day long about whether any 17 year old should be out on the streets at night during violent protests.  The fact that Rittenhouse had as much right to be there as the ones burning and looting should go without saying.  However, these nighttime protests are rarely, if ever, peaceful.  But if you ask me, would I like to see my own son at age 17 out on the streets in the midst of violence (armed or not), I'd say definitely not.)  

The Rittenhouse Verdict, Part II (A Few Words From Democratic Officials)

Congresswoman Ayanna Pressley (D-Mass) Tweeted this:  "A 17 year old white supremacist domestic terrorist drove across state lines, armed with an AR15.  He shot and killed 2 people who had assembled to affirm the value, dignity and worth of Black Lives."  One lie after the next.  No evidence of white supremacy and not a domestic terrorist.  Traveling across state lines meaningless, and did not so with a rifle.  How is it that the widespread damage and destruction to local businesses in Kenosha did anything to support the "value, dignity and worth of black lives?"  And, STOP saying Rittenhouse is white, unless your intent is to start a race war.  I was not aware that it is a criminal offense to be white.

Congresswoman Cori Bush (D-MO) Tweeted this:  "The judge.  The jury.  The defendant.  It's white supremacy in action - this system isn't built to hold white supremacists accountable."  So now everyone involved is a white supremacist.  Which is curious, because the identity of the jurors is unknown.  And, it's a safe bet that the jury consisted of both Democrats and Republicans, as Kenosha is fairly evenly split.  And she does know that the people who were shot were white, right?  

Congressman Jerry Nadler (D-NY) is the Chairman of the House Judiciary Committee.  He Tweeted that it was a "heartbreaking verdict (and) a miscarriage of justice."  Imagine that - the Chairman of the Judiciary Committee doing his best to undermine the judicial system.  (Remind me again, who is the threat to democracy?)  Nadler:  this "sets a dangerous precedent which justifies federal review by DOJ."  Here is the Chairman of the Judiciary Committee pandering to the mob.  Someone ought to explain to him that the jury system, while imperfect, is meant to act as a bulwark against the mob.  

Congressman Sean Patrick Maloney (D-NY) had this to say:  "It is disgusting and disturbing that someone was able to carry a loaded assault rifle into a protest against the unjust killing of Jacob Blake, an unarmed Black man."  By protest, does he mean violent burning and looting?  Rittenhouse testified that he went there to protect businesses.  Unjust killing of Jacob Blake?  Blake is not dead.  Unjust?  Both the state and federal investigations found no basis to charge the police involved in his shooting.  Unarmed?  He had a knife.  Black man?  Yes, but yet another example of the dangerous attempt by the left to divide the country into black and white.

Here is Joe Biden, the President of the United States, appearing to get it right:  "I stand by what the jury has concluded...the jury system works, and we have to abide by it."  But shortly after we got this:  "While the verdict in Kenosha will leave many Americans feeling angry and concerned, myself included, we must acknowledge that the jury has spoken."  There's Biden, contradicting his own attempt to sound reasonable by saying he is angry.  If he is angry at the jury, then he does not accept and abide by the jury's decision.  But if he is angry, he should have kept it to himself, instead of pandering to the left-wing mob.  After all, he claimed numerous times during his campaign and in his inaugural speech, that he would be a unifier.  Not unifying when you are trying to undermine our jury system. 

I will not set forth here all the times that the mainstream media have lied about Rittenhouse being a white supremacist.  Nor will I rehash all the other lies they have made.  Some, before the verdict was handed down, even referred to him as a "murderer," as opposed to an "alleged murderer."  So, while many of us are not surprised by the mob mentality of the left-wing media, it is extremely disappointing that elected officials, even though they are Democrats, truly have no respect for our judicial system, nor for our democracy.   

The Rittenhouse Verdict, Part I (Let's Dispense With The Misconceptions, Irrelevancies and Lies)

(Note:  Some context.  In August of 2020, Jacob Blake was shot, and seriously injured, by the police in Kenosha, Wisconsin.  Blake is black.  Both the state investigators and the federal government looked into the shooting and concluded there was no basis to charge the police officers involved in the shooting.  But that did not deter a mob from not only immediately protesting, but burning and looting as well.  Only a few days later, Kyle Rittenhouse was on the streets of Kenosha, and armed with a rifle, he shot and killed two men and injured a third.  He has been acquitted of all charges relating to those shootings.  A further note.  I only watched a little of the trial, but I have read some of the testimony and other analyses.  As an attorney trained to look at the facts and the law, I believe the jury reached the proper verdict, notwithstanding what was likely an enormous amount of pressure on them to find Rittenhouse guilty.)

Rittenhouse has been repeatedly referred to as a "white supremacist."  I have not seen any support for that allegation.  The men he shot were white.  But I'm wondering if just being white today is enough to get one branded as a white supremacist.  

Rittenhouse "crossed state lines."  Yes, he lived in Antioch, Illinois with his mother and sister,  But his father lives in Kenosha, and Rittenhouse has worked there.  Question: when did it become illegal to cross state lines?  Was the media concerned about how many "protesters" crossed state lines following the shooting of Jacob Blake?  

Rittenhouse was a "vigilante," and initiated aggressive actions against those he shot.  Wrong.  Joseph Rosenbaum (who was shot and killed) was seen charging after Rittenhouse on video, and reaching for the barrel of the rifle.  Rosenbaum was previously heard threatening Rittenhouse.  Rosenbaum had a criminal record, but that is also irrelevant, as we don't get to shoot people for having a record.  

A star witness for the prosecution was the man who was shot and survived, Gaige Grosskreutz.  But here is how it went on cross-examination by defense counsel:  Question:  "When you were standing three to five feet from him with your arms up in the air, he never fired, right?"  Answer:  "Correct."  Question:  "It wasn't until you pointed your gun at him, advanced on him, with your gun, now your hands down pointed at him, that he fired, right?"  Answer:  "Correct."  The defense to the shootings was that they were done in "self-defense."  The prosecution helped to prove that.

The other man who was shot and killed was Anthony Huber.  A video seems to show Huber chasing Rittenhouse, and hitting him with a skateboard in the back of the head and knocking him to the ground.  So, in none of these instances was Rittenhouse the aggressor.  Huber also had a criminal record.  Again, irrelevant to the issues.  

Commentators have said that Rittenhouse not only crossed state lines, but did so with the rifle.  No, he didn't.  The rifle was in Kenosha.  

Finally, as we always hear from the mainstream media, the protests following the Jacob Blake shooting, were "mostly peaceful."  I am not sure how peaceful protests result in the destruction of 40 local businesses, and a total of at least 100 being damaged.  (And for those concerned about the source, it was not Fox News, but the Chicago affiliate ABC News.)