Legal Developments

Judicial Confirmations

President Biden is rightfully proud of his record of judicial appointments:

Judges matter. They shape the everyday lives of Americans, preserving our freedoms and defending our liberties. They hear cases and issue rulings on whether Americans can cast their ballots, whether workers can unionize and make a living wage for their families, and whether children can breathe clean air and drink clean water.

Biden had one more judicial confirmation than Trump. Judicial nominations for around thirty district court slots were not even provided, probably because of blue slips. Which should go.  

ETA: President Biden, as foreshadowed by a previous statement, vetoed a bill expanding the number of district judges. I provided an extended comment at the link (Joe from Bronx) but suffice to say it probably turned on the House waiting until after the election. The other reasons come off as bullshit. 

Senate SCOTUS Ethics Report 

A half-empty viewpoint here is that the numbers are misleading. Trump had three Supreme Court confirmations. He also had more appellate confirmations. I wanted the Senate to do more. 

One area in which they did not do enough was ethics. They dropped a final report but could have more hearings and subpoenas. I got tired of Senator Durbin constantly begging Roberts to do something.  

The report is fine to put things on paper. I think the section on constitutional matters (it simply cites emoluments) should be longer. Explain "good behavior" rules and how Congress has clear power to enforce them with binding ethics rules. 

Instead, a lower court judge gets an ethical slap on the wrist for a mild Alito criticism. 

Biden Commutes Death Row Inmates

Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.

Chris Geidner is a good reporter on this beat. After Trump went on a mini-execution spree, with the help of six members of the Supreme Court, this was especially an appropriate move. I think going all the way would be correct but understand the compromise. Getting it all? In this economy?

Geidner notes that some of the people you would think might oppose this move (some families of victims, an officer's partner, etc.) agreed with Biden. Others will oppose it. People who appeal to victims should know they have different views. Victims do not have a veto either way.

There does not appear to be word on a final report arising from the Justice Department's study of the death penalty as part of a current moratorium. I suspect one will come. 

Overall, the death penalty is very problematic. The Trump executions had multiple problems, even with an attempt at winnowing to clear cases. The Garland Justice Department (see Geidner) supported commuting most of the sentences. 

We can debate the validity of one person having such broad power to pardon and commute sentences. Nonetheless, with the power in place, this was the correct move. Do we want to rely on Trump's attorney general (even if they aren't this guy)? 

Pragmatism 

The current Supreme Court majority favors a form of originalism that is somewhat arbitrary in practice. I think Justice Breyer's writings provide a helpful approach. This essay on using a pragmatic approach, weighing various types of interpretative guidelines in the process, is a reasonable discussion.  

Holiday Films

Multiple holiday films have a legal context. 

Remember the Night stars Barbara Stanwyck and Fred MacMurray. Stanwyck was arrested for theft. MacMurray was the prosecutor and found a way to postpone the trial to avoid having the jury sympathetically get her off out of holiday spirit.

They fall in love after MacMurray gets into a bit of legal trouble himself. He tries to throw the case but she will not let him. She also turns down his offer to marry her right away. Let's see after I get out.

Will she have second thoughts and have her lawyer challenge the voluntariness of her guilty plea?!

Miracle on 34th Street eventually leads to a sanity hearing with the federal post office playing a somewhat ironic role. The Manhattan prosecutor here is played by Dagwood's boss in the later film in the Blondie films. The actor here shines among many great supporting roles along with the leads.  

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We might see some miscellaneous orders pop up as the year winds down. The next scheduled thing is the Chief Justice's end-of-the-year report.