SUPREME COURT NOTEBOOK: Chatty Thomas breaks with precedent

 

FILE - In this Feb. 11, 2020, file photo, Supreme Court Justice Clarence Thomas delivers a keynote speech during a dedication of Georgia new Nathan Deal Judicial Center in Atlanta. A Supreme Court justice gets it in his mind to ask a question, and pretty soon, he's got questions for everyone. And so the next question: Will Clarence Thomas ever stop talking? Before this week, the intervals between Thomas' questions during high court arguments were measured in years. He once went 10 years, from 2006 to 2016, without asking even one. (AP Photo/John Amis, File)

WASHINGTON (AP) — A Supreme Court justice gets it in his mind to ask a question, and pretty soon, he’s got questions for everyone. And so the next question: Will Clarence Thomas ever stop talking?

Before this week, the intervals between Thomas’ questions during high court arguments were measured in years. He once went 10 years, from 2006 to 2016, without asking even one.

Now he’s been an active questioner for three straight days. He’ll have the chance to continue his streak next week in six arguments over three days.

ADVERTISEMENT

It might be the setting, the court’s first arguments by telephone, because of the coronavirus pandemic.

“I must say, as a former clerk, I’m delighted that a silver lining of the new format in this difficult time is that the public can see the extraordinary combination of preparation, thoughtfulness, and grace the Justice brings to every case,” Elizabeth Papez, partner in a big Washington, D.C., law firm said in an email.

The new arrangement has made for more structured proceedings, with justices taking turns instead of jumping in whenever they wanted. Only Chief Justice John Roberts goes before Thomas, the longest-serving justice. He joined the court in 1991.

One reason Thomas, 71, has given over the years for his reticence is that he thinks his colleagues talk too much and don’t give the lawyers before them the courtesy of presenting arguments they have sweated over for weeks and months.

“It confirms in one sense what Justice Thomas has said about the excessive interruptions,” said Nicole Stelle Garnett, a University of Notre Dame law professor who once worked for Thomas.

The contrast between Thomas on the phone and in person is stark.

In the courtroom, the justice often reclines in his chair, his gaze toward the decorative ceiling, not on the lawyer who is arguing. Occasionally, he will lean forward, approaching his microphone and putting reporters on alert that he might break his silence.

Almost always, it’s just a feint.

But on the phone, he’s had questions for every lawyer, although he went out of order Wednesday because of temporary technical difficulties.

___

In another time, Justice Ruth Bader Ginsburg arranged her medical care around the court’s schedule so she wouldn’t miss arguments.

ADVERTISEMENT

On Wednesday, the 87-year-old Ginsburg was able to participate from a Baltimore hospital, where she was being treated for an infection caused by a gallstone. It’s an unforeseen option after the court’s virus-driven decision to hold remote arguments. Ginsburg was back home Wednesday night.

When Ginsburg was receiving treatment following surgery for colorectal cancer in 1999, she followed advice from the first woman on the court, Justice Sandra Day O’Connor, who was back in court nine days after breast cancer surgery.

“Ruth, you schedule your chemotherapy for a Friday. Then you can get over it on Saturday and Sunday and be back in court on Monday,” Ginsburg said last year, quoting O’Connor, at a Clinton Foundation event in Little Rock, Arkansas.

Illness does sometimes keep justices from the courtroom. Ginsburg herself missed arguments for the first time since joining the court in 1993 as she recovered from surgery to remove cancerous growths on her lung in 2018.

Chief Justice William Rehnquist missed 44 arguments when he was dealing with the thyroid cancer to which he eventually succumbed in 2005. Justice William Douglas didn’t return to the bench for nearly six months after he broke 14 ribs and punctured a lung in a horseback riding accident on the day before the Supreme Court term began in October 1949.

___

Follow AP’s Supreme Court Twitter feed at https://twitter.com/AP_Courtside. And Supreme Court reporters Mark Sherman at https://twitter.com/shermancourt and Jessica Gresko at https://twitter.com/jessicagresko.

A new liberal refrain: So what if Biden did it?

The defense of Joe Biden on the allegations that have disrupted his campaign has gone through some fascinating twists and turns.
At first, in the wake of Tara Reade’s accusation that he sexually assaulted her in 1993, the reaction in media and political circles was largely silence. Reade seemed to come out of nowhere, so there was little need to acknowledge her story.
Many media outlets stuck with silence after the New York Times and Washington Post published their accounts 19 days later. In other outlets, the second reaction was that she was probably not telling the truth -- after all, no Biden Senate staffer could recall her making the charge and no one could find the complaint she says she filed.
As journalists tracked down more people who say Reade told them of the alleged attack -- there are now at least four corroborating witnesses -- the third reaction was that yes, she has more evidence than Christine Blasey Ford, and yes she should be heard, but it’s still a muddle, and besides, Biden went on television and denied it.
But now, in certain quarters, comes the fourth reaction: So what if it’s true?
That is, so what if Biden did it as long as he can help us get rid of Donald Trump?
This is striking because it’s often a media indictment against the president and his supporters, that they’ll deny an allegation, then modify their stance as more evidence emerges, then retreat to “who cares, everybody does it, look at all he’s accomplishing.”
But now some on the left are twisting themselves into pretzel-like shapes to absolve the former vice president.
First, the usual disclaimer: We don’t know what happened 27 years ago, there are holes and contradictions in Reade’s account, and Biden’s denial has been absolute.
But that’s not the case that Linda Hirshman makes in a New York Times op-ed.
A longtime feminist author who’s written a book on sexual harassment, she writes: “I believe Tara Reade. So what’s a girl to do now?”
Rather than engaging in the “nonsense” of denigrating her accusation and witnesses, Hirshman says, “I’ll take one for the team. I believe Ms. Reade, and I’ll vote for Mr. Biden this fall.”
I mean, this is a woman who describes herself as one of the few establishment feminists to argue on behalf of Monica Lewinsky in 1998. Still, “I hate, hate, hate to say the following. Suck it up and make the utilitarian bargain.”
And here comes the rationale:  Biden is “likely to do more good for women and the nation than his competition, the worst president in the history of the Republic.”
In other words, we’d take anyone to dump Trump, even if that person once digitally penetrated a young staffer.
Wouldn’t a Biden presidency, she asks, “count for more than the harm done to the victims of abuse?”
Isn’t this, for all the intellectual agonizing, what Bill Clinton’s supporters did in trying to justify his treatment of Lewinsky and other women--to say he was a good, pro-choice president for women?
I get that you have to weigh the totality of any candidate, and that more than a dozen women have accused Trump of sexual misconduct. But this seems like an especially raw calculation.
To be fair, some of the most prominent female liberals in the media, including Maureen Dowd, Ruth Marcus and Michelle Goldberg, have written that they’re troubled by the Reade allegations.
But the politics-trumps-integrity argument is also being made by Martin Tolchin, a former Times correspondent and a founder of the Hill newspaper. In a letter to the editor run by the Times, Tolchin says:
“I don’t want an investigation. I want a coronation of Joe Biden. Would he make a great president? Unlikely. Would he make a good president? Good enough. Would he make a better president than the present occupant? Absolutely.
“I don’t want justice, whatever that may be. I want a win, the removal of Donald Trump from office.”
Marty is obviously entitled to speak his mind, but this is what many Trump supporters think this is what journalists believe -- that they just detest the president and don’t even care whether the Biden accusations are true.
NPR is one of the major news organizations that waited nearly a month to air the allegations, a full week after they were covered by the Times and Washington Post.
Now its public editor, Kelly McBride, is chastising the network for its “lack of urgency”:
“That it took nearly a month to get to air hurts. NPR's silence on the story feeds at least three critical narratives, or perhaps suspicions: 1) NPR preferred Biden over Bernie Sanders for the Democratic nomination (the story broke before Sanders had dropped out, but barely); 2) NPR is reluctant to tell stories that may help President Donald J. Trump's re-election effort; 3) NPR is hypocritical, covering claims of sexual assault leveled against Republicans, but burying similar accusations against Democrats.”
That demonstrates the value of having an ombudsman. And given the media’s hesitant and ambivalent coverage of the allegations, could anyone be blamed for thinking Kelly McBride is right?

Graham says Mueller probe 'scope memo' shows investigation 'was illegitimate to begin with'

Senate Judiciary Chairman Lindsey Graham, R-S.C., joined "Hannity" Wednesday moments after the Justice Department released an August 2017 memo from former Deputy Attorney General Rod Rosenstein which detailed the scope of former Special Counsel Robert Mueller's Russia investigation.
"The legal foundation for Mueller’s appointment is crumbling," Graham said.
"The memo to Mueller from Rosenstein was given to me fully by [Attorney General] Barr virtually unredacted. So now we know that the scope of the investigation was to look at Carter Page, [former National Security Adviser Michael] Flynn, [George] Papadopoulos and [former Trump campaign chairman Paul] Manafort as to whether or not they were working with the Russians. Now, this is in August of 2017."
"In January of 2017," Graham continued, "the subsource disavowed the [Christopher Steele] dossier. And without the dossier, there is no [FISA] warrant. So they knew that the Carter Page thing was a fraud. They wanted to close the case against Flynn. We have Papadopoulos on record denying working with the Russians, saying to do so would be treason. So the foundation for the Mueller investigation is crumbling."
When Mueller was first appointed special counsel in May 2017, Rosenstein authorized him to probe "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump ... any matters that arose or may arise directly from the investigation; [and] ... any other matters within the scope of [obstruction of justice laws]."
The August 2017 scope memo had remained largely redacted. The newly released version of the document makes clear that Rosenstein didn't hesitate to explicitly authorize a deep-dive criminal probe into the Trump team that extended well beyond Russian interference efforts.
Additionally, the scope memo stated that Mueller was charged specifically with investigating whether several former Trump officials had "committed a crime or crimes by colluding with Russian government officials with respect to the Russian government's efforts to interfere with the 2016 election for President of the United States."
"The legal foundation to justify Mueller's appointment in my view does not exist," Graham said. "That’s why this memo is so important. They name four people. Rosenstein tells Mueller to look at four people [on] August 2nd, 2017. Carter Page is one of the four. In January, eight months before the subsource disavowed the dossier, there was no legal justification to suspect Carter Page of being a Russian agent because it all depended on the dossier. And that crumbled in January."
" Flynn’s case was looked at by the [FBI] field office in Washington, January the 4th of 2017," Graham continued.
"They said there’s no reason to believe he is doing anything wrong ... so there is no legitimate reason to believe any of these four were working with the Russians on August 2nd, 2017. Therefore, the entire Mueller investigation was illegitimate to begin with. That’s very important."
Fox News' Gregg Re contributed to this report.

Sources say Russia probe transcripts affirm officials came up empty on collusion: 'Schiff is in panic mode'

EXCLUSIVE: Transcripts of House Intelligence Committee interviews that have been cleared for release show top law enforcement and intelligence officials affirming they had no evidence of collusion between the Trump campaign and Russia during the 2016 election, senior administration and intelligence community officials told Fox News on Wednesday.
This would align with the results of former Special Counsel Robert Mueller’s investigation — which found no evidence of illegal or criminal coordination between President Trump, the Trump campaign and Russia in 2016 — but the numerous transcribed interviews could raise further questions about committee Chairman Adam Schiff’s past statements saying that there was “direct evidence” of collusion.
“Schiff is in panic mode,” a senior administration official told Fox News.
Earlier this week, House Republicans sought over 6,000 pages of transcripts pertaining to interviews conducted by the committee in 2017 and 2018, after the panel in September 2018 voted on a bipartisan basis to approve their public release.
A day later, acting Director of National Intelligence Richard Grenell notified Schiff, D-Calif., that the redaction and declassification process was complete, and that the records were ready for release, putting the ball in Schiff’s court.
However, intelligence officials told Fox News on Wednesday that Schiff has had his subcommittee staff director reaching out to heads of intelligence community agencies asking how Grenell was involved and what role Grenell — a known Trump ally — may have played in the declassification and redaction process.
Fox News is told, however, that the redactions were completed before Grenell took the helm as acting director this past February.
The process, according to an intelligence community official, took place under both former directors Dan Coates and Joseph Maguire, and was conducted by career intelligence officials. The official also told Fox News that the relevant heads of appropriate agencies were consulted on the declassifications and redactions of all 53 transcripts.
Grenell, in a letter to Schiff dated May 4, wrote that the review of 43 of the 53 transcripts “was completed in June 2019,” and that the “interagency review of the remaining ten transcripts has been completed.” Grenell added, “pursuant to your guidance, these transcripts have not been shared with the White House.”
The remaining 10 transcripts included interviews with President Trump’s eldest son, Donald Trump Jr., former adviser Steve Bannon, the president’s son-in-law and adviser Jared Kushner, Trump aide Hope Hicks and former campaign manager Corey Lewandowski.
Further, Grenell wrote Schiff that he was “willing” to release the transcripts directly from the Office of the Director of National Intelligence [ODNI] “as to ensure we comply with the unanimous and bipartisan vote to release the transcripts.” It’s unclear, at this point, when Grenell could release the transcripts.
A House Intelligence Committee spokesman told Fox News on Wednesday that the panel received Grenell’s letter on Tuesday.
“After more than a year of unnecessary delay, the ODNI has finally concluded its protracted classification review of the committee’s transcripts, and it also appears the White House has now abandoned its improper insistence on reviewing key transcripts, which the committee appropriately rejected,” the spokesman said.
“We are now reviewing the proposed redactions from ODNI based on classification, law enforcement sensitivity or items ODNI requests be for official use only,” the spokesman continued. “Given the overtly political role now played by the acting DNI, including the leak of his letter, this committee and the public can have little confidence that his determinations are made on the merits.”
The spokesman added: “This process had already taken far too long, most notably because the ODNI improperly held up the declassification review and release of several transcripts at the request of the White House.”
The spokesman also said that the committee’s review of ODNI’s “newly proposed redactions” would be “as expeditious as possible given the constraints of the pandemic.” He continued, “We look forward to releasing these transcripts, which relate to misconduct by the Trump campaign and the president himself.”
The 53 transcripts eligible for release, according to a source familiar with the transcripts, included interviews with Trump Jr., Bannon, Kushner, Hicks, Lewandowski, former Trump attorney Michael Cohen, Roger Stone, Brad Parscale, Michael Caputo and Rick Dearborn.
Also expected to be released, according to the source: transcripts for interviews with Obama officials such as former Director of National Intelligence James Clapper; former Attorney General Loretta Lynch; former Ambassador to the United Nations Samantha Power; former FBI Deputy Director Andrew McCabe; former National Security Adviser Susan Rice; former Deputy Attorney General Sally Yates; former Obama adviser Benjamin Rhodes; and former Obama counselor and Hillary Clinton Campaign Manager John Podesta.
Another source familiar with the transcripts told Fox News that the people interviewed by the House Intelligence Committee during its Russia probe were asked whether they had evidence that Trump, himself, or the Trump campaign conspired, colluded or coordinated with Russia during the 2016 election.
Two sources familiar with the transcripts told Fox News that not one of the 53 witnesses could provide evidence of collusion.
“The transcripts show a total lack of evidence, despite Schiff personally going out saying he had more than circumstantial evidence that there was collusion,” one source involved in House Russia investigations told Fox News.
Mueller, similarly, at the conclusion of his nearly two-year-long investigation, said he and his team found no evidence of criminal conspiracy or coordination between the Trump campaign and Russia, but did not reach a conclusion on obstruction of justice, which current Attorney General Bill Barr ultimately decided not to pursue.
While law enforcement officials have long maintained that there was clear intelligence Russia meddled in the 2016 presidential election, to date, there have been no charges concerning actual conspiracy against people associated with the Trump campaign, which was at the core of the Russia investigation.
The Russia probe never produced charges linking the Trump campaign and Russia as part of a criminal conspiracy.

Stay-At-Home Order Cartoons

Wisconsin stay-at-home order is 'definition of tyranny,' state Supreme Court justice suggests

A conservative state Supreme Court justice in Wisconsin suggested Tuesday that the extension of the state’s stay-at-home order was the “definition of tyranny” and compared it to U.S. internment camps for Japanese-Americans during World War II.
"Isn't it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?" Justice Rebecca Bradley said during video oral arguments of a lawsuit brought by Republican state lawmakers against Democratic Gov. Tony Evers and State Health Secretary Andrea Palm, The Washington Post reported.
Palm issued a statewide stay-at-home order March 24 that is set to expire May 26.
“The people never consented to a single individual having that kind of power," Bradley said.

"The people never consented to a single individual having that kind of power."
— Justice Rebecca Bradley, Wisconsin Supreme Court

Republicans say the order goes too far and ignores state rulemaking laws and doesn’t allow for oversight, RiverTowns.net reported.
“I’ll direct your attention to another time in history, in the Korematsu decision, where the court said the need for action is great and time is short, and that justified ‘assembling together and placing under guard all those of Japanese ancestry’ in assembly centers during World War II,” Bradley added, according to The Post.
The 1944 Korematsu decision upheld the use of Japanese internment camps.
Evers’ administration argued that it’s vital to keep the order in place.
“People will die if this order is enjoined with nothing to replace it,” Colin Roth, assistant attorney general of Wisconsin, said.
He argued the state’s Department of Health Services has the power “to do whatever is necessary to combat a novel, deadly, communicable disease like the one we’re facing today.”
Chief Justice Patience Roggensack said “there’s an awful lot of emotion” being displayed in the case, “because we are in the middle of a pandemic that all sides agree on," according to Madison.com. She didn't say when the court would rule.
Another conservative on the court, Justice Daniel Kelly, was defeated by more liberal Justice Jill Karofsky last month.
Several U.S. states have already started to reopen some businesses following stay-at-home orders.
The Associated Press contributed to this report. 

Dan Crenshaw reacts to jailing of salon owner, says some leaders ‘drunk with power’

Tuesday’s jailing of a hair salon owner in Texas for defying a coronavirus shutdown order just doesn’t cut it, U.S. Rep. Dan Crenshaw wrote Tuesday.
In fact, the punishment dished out to Dallas business owner Shelley Luther was another example of public officials overstepping their authority during the crisis, the congressman wrote on Twitter.
“These punishments are NOT just,” Crenshaw wrote. “They are not reasonable. Small-minded ‘leaders’ across the country have become drunk with power. This must end.”
At a hearing, Judge Eric Moye called Luther’s action “selfish,” and claimed she had “disrespected the orders of the state, the county and this city,” FOX 4 of Dallas-Fort Worth reported.
Luther claimed she had to reopen her business because a federal loan had arrived too late to help her, according to the Dallas Morning News.
He said Luther could avoid jail if she would apologize, pay a fine, and remain shut down until a statewide reopening of salons takes effect Friday.
But Luther opted for jail instead.
"I have to disagree with you, sir, when you say that I'm selfish because feeding my kids is not selfish,” Luther told the judge, according to FOX 4. “I have hairstylists that are going hungry because they would rather feed their kids. So, sir, if you think the law is more important than kids getting fed, then please go ahead with your decision. But I am not going to shut the salon.”
It was the latest example where Americans were finding themselves up against what many viewed as harsh punishments.
In late April, a 40-year-old Idaho mother was arrested for allegedly refusing to leave a closed playground where she had brought her two children to play.
Her arrest later prompted a demonstration at city hall by more than 100 supporters.
In North Carolina, members of the “ReOpen NC” group were arrested last week, accused of resisting a public officer and violating the Democratic governor’s executive order.
“If you feel the need to stay home, it is your God-given right to do so. But we want to live!" suspect Ashley Elaina Smith said. “[Gov.] Roy Cooper has shown again and again how out of touch he really is. With his illogical declarations of who’s essential and who’s not, he’s effectively destroyed generational family businesses and many good businesses alike. He’s got to go. November’s coming, baby.”
Across the country, governors such as Laura Kelly of Kansas and Gretchen Whitmer of Michigan have faced opposition for the shutdown orders, such as Kelly’s limits on church gatherings – which faced GOP opposition and later a temporary restraining order – and Whitmer’s restrictions against traveling to relatives’ homes, and on sales of items such as gardening supplies, both of which were scaled back after public protests.

Congressional leaders support deductions for PPP borrowers

Congressional lawmakers are thinking that the Internal Revenue Service may have gotten it wrong when it ruled that borrowers of the Paycheck Protection Program couldn't receive tax deductions on expenses.
That ruling may not be the last word, according to Forbes.
Lawmakers on Tuesday alerted the Treasury Department that the IRS ignored the intent of the PPP.
The IRS was concerned about a double tax benefit, which according to lawmakers, may not be a bad thing.
They argue the purpose of the plan was to provide economic and specifically tax benefits to businesses to make it possible to maintain workers.
The group of congressional members is headed by Chuck Grassley and Richard Neal, the chairmen of the top tax committees in the Senate and the House, respectively.
PPP loans are largely expected to be allocated toward payroll expenses (75 percent), but the remaining 25 percent can be put toward rent, mortgage interest, utilities and interest on other debt obligations.

Hannity bashes 'truly disgusting' Obama letter hitting Biden-Ukraine probe: 'What were you hiding?'

Sean Hannity opened his show Tuesday by reacting to what he called a "truly dishonest, disgusting" letter obtained by Fox News indicating that former President Barack Obama has privately bashed Senate Republicans’ investigation of former Vice President Joe Biden and his son's dealings in Ukraine, a probe Obama's office said lent credence to a “Russian disinformation campaign."
"The office of the former president, Barack Obama, blasted a congressional investigation into Biden's dealing with Ukraine," Hannity said. "Wonder why. Now, the office actually accused the investigation [of] giving credence to a 'Russian disinformation campaign,' and this ridiculous letter insinuated lawmakers were just spreading Russian propaganda."
"This is all a lie, what Obama put out tonight," Hannity continued, calling the letter "truly disgusting and dishonest."
"In reality, it was Obama. It was his administration. It was Biden. They are the ones that spent months and months propagating the Russian disinformation campaign. Uh, Barack? Did you ever hear of the dirty Russian dossier that Hillary Clinton paid for? Of course you have."
The letter, addressed to the National Archives and Records Administration (NARA), which manages presidential records, was written in response to a request on Nov. 21, 2019, by Sens. Chuck Grassley, R-Iowa, and Ron Johnson R-Wis., for Obama administration records on Ukraine-related meetings.
The letter described the senators' request as improper use of the NARA’s release terms and a supposed effort “to shift the blame for Russian interference in the 2016 election to Ukraine.”
It goes on to cite testimony from former National Security aide Fiona Hill who derided the idea of Ukrainian interference in the 2016 election as a “fictional narrative that is being perpetrated and propagated by the Russian security services.”
"Members of your administration, they used that unreliable Clinton-bought-and-paid-for, Russian misinformation from the get-go filled with Russian lies," Hannity said, addressing Obama. "Why? To deny Carter Page his civil liberties and civil rights because your people were spying, meaning [former FBI Director] Jim Comey and company, on the Trump campaign deep into the Trump presidency.
"That would be under your watch. Your guy, Jim Comey and company," Hannity went on. "That same Russian dossier was used to commit fraud on FISA applications, premeditated fraud."

"In reality, it was Obama. It was his administration. It was Biden. They are the ones that spent months and months propagating the Russian disinformation campaign."
— Sean Hannity, Fox News

The letter's release comes after Grassley and Johnson, who respectively chair the Senate Finance Committee and the Senate Homeland Security and Governmental Affairs Committee, sent a letter to Secretary of State Mike Pompeo last month demanding more information on the Obama administration’s dealings in Ukraine.
"What did Obama know, and when did he know it? What did Biden know and when did he know it?" Hannity questioned.
"Ultimately, if President Obama was so concerned about Russian collusion, then he would've listened to Congressman Devin Nunes because Nunes warned Biden and Obama that in 2014, Russia would be playing around in their elections as they have in the past. He wouldn't have dismissed  [Utah Sen. Mitt] Romney's warning in 2012 either," Hannity said.
"Well, Barack, what... were you hiding from we, the people? We would like answers."
Fox News' By Bradford Betz and Mike Emanuel contributed to this report.

Gavin Newsom King of California Cartoons