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February 2016

Posted by Fuzzy Slippers on February 15, 2016 9 Comments
As the scandal surrounding her private email server and her apparent mishandling of classified information and FBI suspicion involving her possible public corruption mount, Hillary Clinton bounds joyfully along the Democrat presidential primary trail seemingly without a care in the world. However, not everyone thinks she should be in the presidential race at all given the FBI investigations swirling around her.  Indeed, retired Defense Intelligence Agency chief, Lt. Gen. Michael Flynn, is calling for Hillary to drop out of the presidential race while she is under investigation by the FBI. CNN reports:

Posted by Jonathan Levin on February 15, 2016 4 Comments
Two Supreme Court cases with significant public policy implications previously discussed on Legal Insurrection face very different futures in the wake of Supreme Court Justice Antonin Scalia's death on Saturday. Oral arguments in Fisher v. University of Texas and even more more so Friedrichs v. California Teachers’ Association suggested the Court would decide for the conservative position in both. Now those cases are thrown into turmoil.  The traditional response when a Justice dies after oral arguments but before a written decision has been to either affirm the lower court without setting precedent, or to order.  Either option is at least a temporary setback for conservatives.

Fisher revisited

I previewed the challenge to the University of Texas's affirmative action scheme in Fisher, here, and discussed the oral arguments, here.   In Fisher, the Court is reviewing UT's admission system that considers race as one factor among many for admitting applicants who did not otherwise qualify for admission for having graduated in the top-10 percent of their Texas high school class. As noted in the case preview:

Posted by William A. Jacobson on February 15, 2016 25 Comments
You remember Mizzou Prof. Melissa Click, don't you? She's the world's most famous red-headed social warrior professor who gained internet fame for seeking "some muscle" to keep a student journalist away from a Black Lives Matter protest. https://youtu.be/xRlRAyulN4o?t=6m19s Click claimed this was an aberration and that she's not really the wacko she appears to be on the video. The Columbian Missourian reports on the consequences, or lack thereof:
She acknowledged that ordering Schierbecker away from inside a human wall around the camp and calling for “some muscle” was poor judgment.
But Click, who also had joined student protesters during MU's Homecoming parade, didn't rule out protesting with them again; nor did she rule out filing a lawsuit against the UM System Board of Curators, MU or Schierbecker. She said she would not join students in protest if she felt it would endanger others or disrupt an event.

Posted by William A. Jacobson on February 15, 2016 140 Comments
Last night, for reasons unrelated to this post, I was looking back at the posts from when former Cornell undergrad Kathleen McCaffrey joined (November 2010) and then departed (May 2012) Legal Insurrection. What I immediately noticed is how many of the commenters back then still are commenters now. That sense of continuity and community is one of the things I think sets Legal Insurrection apart. But it wasn't something I was going to write about. Over the years I've struggled with how to handle the comment section. I've had to make repeated appeals to commenters to tone things down, and on occasion have had to ban people when they crossed that "you know it when you see it" line. Those appeals have met with limited success, and it troubles me that in the past couple of months I have received numerous communications from long-term readers -- some who have been with us almost since the beginning -- that the comment section is out of control and they don't like reading it anymore. They are not wrong, and things seem to be getting worse this election season. But, that said, I want our comment section to be vibrant and active.  I think it would be worse if we opened it up to third-party software like Disqus or Facebook. We would lose the sense of community, and would open ourselves up to more drive-by commenters throwing hand grenades into the comment section then moving on.

Posted by Mike LaChance on February 15, 2016 11 Comments
For months now, we've been told that the black community of South Carolina is Hillary Clinton's firewall to retain her front runner status but after Sanders' sizable New Hampshire win, she's not taking any chances.

Posted by Fuzzy Slippers on February 14, 2016 16 Comments
So far, it's not Big Brother listening to your every word, but someone may be . . . if you have a Smart TV or other internet-connected devices A year ago, Samsung confirmed that their Smart TVs are indeed listening in on everything you say and do and is warning customers to avoid discussing personal topics in front of their Smart TV. The Week reported in February 2015:
Samsung has confirmed that its "smart TV" sets are listening to customers' every word, and the company is warning customers not to speak about personal information while near the TV sets. The company revealed that the voice activation feature on its smart TVs will capture all nearby conversations. The TV sets can share the information, including sensitive data, with Samsung as well as third-party services.

Posted by William A. Jacobson on February 14, 2016 23 Comments
"Social justice" activism at Vassar College in Poughkeepsie, NY, is becoming self-parody, and not in a good way. We have covered extensively the anti-Israel activism that has led to anti-Semitic incidents in 2014 and 2016. Among other things, in 2014 Jewish students who stood up at a campus-wide forum were mocked and jeered by a raucous crowd of students and faculty, a class was picketed and a professor forced to cross a picket line of ululating students because the course involved a trip to Israel (and the West Bank), Students for Justice in Palestine posted a Nazi cartoon on social media, and pro-Israel displays were vandalized. Just recently, a Boycott Divestment and Sanctions (BDS) resolution campaign kick-off by SJP and Jewish Voice for Peace, followed by a faculty-sponsored event at which Israel was accused of engaging in an experiment to "stunt" Palestinian bodies, led to anti-Semitic messages on campus Yik-Yak. As if that were not bad enough, the social justice warriors at Vassar now have turned their sights on a feminist professor who allegedly did not use proper pronouns for transgender students.

Posted by Jonathan Levin on February 14, 2016 4 Comments
For the second time in a month, a Washington, D.C., court has rejected DOJ's arguments for withholding documents related to the Fast and Furious scandal. Last month, Judge Amy Berman Jackson of the United States District Court for the District of Columbia, presiding in Committee On Oversight And Government Reform, United States House of Representatives v. Lynch (the "House Suit"), rejected the Justice Department's assertion of the "deliberative process privilege" to withhold around 10,000 Fast and Furious documents.  Judge Jackson held that DOJ had waived the privilege by previously releasing a substantial amount of information about the same documents it then sought to withhold. I discussed Judge Jackson's decision in more detail, here.

Posted by Leslie Eastman on February 14, 2016 12 Comments
We noted that the water crisis in Flint, Michigan was 40-years in the making and the situation was worsened by complete bureaucratic failure. However, unlike Hillary Clinton and her emails, the electronic correspondence from regulators and government officials associated with the decision that resulted in Flint residents consuming water with elevated lead concentrations has been released. It is not a pretty picture. One set from the EPA's local regulators indicate that the bureaucrats were prepared to let the situation continued unchecked for several months before proceeding to take any mitigating action.

Posted by Mike LaChance on February 14, 2016 48 Comments
The left comes up with this stuff faster than anyone can keep up with them. Just in time for Valentine's Day, the left-wing Cosmopolitan Magazine is pushing an anti-gun narrative under the heading of gunsplaining:
Why You Should Never Date a "Gunsplainer" We've all met mansplainers, but have you ever met a similarly dreadful gunsplainer? He's the type of guy who will attempt to hit on you by calling you "schnookums" and, like the mansplainer, he will condescend to you about why you're safer in a world where guns are easier to buy than Sudafed, or how a good guy with a gun is the best antidote to a bad guy with a gun.

Posted by William A. Jacobson on February 14, 2016 12 Comments
The unexpected news that Antonin Scalia died was a punch in the gut. It reminded me of when I first heard that Andrew Breitbart had died -- my wife saw it on Twitter and asked whether it was true. Her comment about Breitbart applies equally to Scalia, A personal note on the death of Andrew Breitbart:
Since my wife called this morning to let me know of Andrew’s death, it has been hard to focus on anything else.  In her words, we don’t have that many bright media lights, and to lose him hurts.
Scalia was more than just a Justice. He was the embodiment of resistance to liberal political correctness and social justice war perpetrated through the judiciary rather than the electorate. I never met Scalia, but I heard him speak once at the Justinian Society in Providence, Rhode Island. He was larger than life, had total command of the room packed with 150 or more lawyers, and was incredibly self-deprecating. And we all laughed so hard at times it's a miracle no one choked on lunch.

Posted by Fuzzy Slippers on February 14, 2016 10 Comments
In the latest batch of released emails, more than 15% had classified information. The Washington Times reports:
More than 15 percent of the latest batch of former Secretary of State Hillary Clinton’s emails released Saturday contain classified information, with three of the messages being labeled “secret” — continuing to add to the questions surrounding her email use. The department released 551 messages Saturday in response to a federal judge’s order.
Apparently, the State Department had tried to delay the release of the emails due the Democrat primary schedule; however, a judge ordered their release.

Posted by Kemberlee Kaye on February 13, 2016 177 Comments
Welcome to our live Republican debate coverage. Tonight's debate will air on CBS, live from the Peace Center in Greenville, South Carolina. The debate begins at 9:00 PM ET. Obviously, the death of Justice Antonin Scalia sets a somber mood for the night. DEBATE OVER. Aleister nailed it: https://twitter.com/AmericanGlob/status/698710383738097664 https://twitter.com/VeraMBergen/status/698706876503080961

Posted by New Neo on February 13, 2016 29 Comments
Let's set the scene: it's nine months to the election, about eleven till the inauguration. The GOP controls the Senate, but there's a Democratic president (in case you hadn't noticed). The Supreme Court has been split between four liberal and four conservative justices and one swing justice. One of the conservative justices dies, Justice Scalia. President Obama has the right to nominate his successor, and that choice will entirely change the Court's makeup to predictably liberal. And yet he needs the Republican Senate's advise and consent to do it. In an ideal world, justices would be "neutral" and the august and objective law would be the only guide they followed. But in the real world, justices each have a judicial attitude and philosophy that is reflected in decisions that tend to consistently and predictably lean to one side or other in their political consequences. Therefore no judge Obama nominates will be "neutral"; that person will be liberal if not leftist. That is a given.

Posted by William A. Jacobson on February 13, 2016 54 Comments
Just Breaking:
Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said. Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa. According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body. Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.
Justice Scalia leaves behind 28 grandchildren: https://twitter.com/DouthatNYT/status/698629400900870145 A selection of our prior posts about Justice Scalia (apart from dozens of posts about Supreme Court rulings):

Scalia always was the Happy Jurist, and Warrior.

This CBS interview was excellent:
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