Patterico's Pontifications


Unqualified Judicial Candidate Withdraws

Filed under: General — Patterico @ 12:30 pm

You may recall that the other day I posted the viral video of the unqualified Trump judicial nominee.

He has never tried a case. He’s assisted with fewer than five depositions and never taken one himself. He’s never argued a motion in court. He stumbled and bumbled when asked when he last read the Federal Rules of Civil Procedure. He last read the Federal Rules of Evidence in law school. He doesn’t know what the Daubert standard is. He initially says he knows what a motion in limine is, but ends up conceding that he could not give a definition of it. He doesn’t know what the Younger or Pullman abstention doctrines are.

And now, he is withdrawing from consideration:

He makes a case in the letter that knowledge of incredibly basic questions of civil procedure and evidence is unnecessary for this position, because it deals with many regulatory matters. Maybe that’s why he didn’t bother to prepare himself for the job — as I explained in my previous post:

But if I were a nominee to the inflatable movie screen federal bench, I would bone up on this stuff. Especially if I had never tried a case or argued a motion or taken a deposition. I would read the FRCP and FRE. I’d look at the basic jurisdictional rules, which federal judges have to know and apply whether the parties raise them or not.

In other words, I would try to show that I am worthy of the nomination.

Nominees to the federal bench aren’t supposed to be just any random lawyer. It’s a lifetime appointment. You’re expected to have at least some idea what you’re doing.

This guy is not only unworthy, he’s not even trying. It’s shameful and embarrassing.

I can’t feel too sorry for the guy. Two to three days of preparation could have avoided this embarrassment. If you’re unwilling to do that preparation, how can we know you’ll be prepared for cases you try as a judge?

[Cross-posted at RedState and The Jury Talks Back.]

Kozinski to Retire Amid Another #MeToo Scandal

Filed under: General — Patterico @ 11:15 am

The first major judge caught up in the #MeToo phenomenon was Alex Kozinski, a well-known Ninth Circuit judge with strong libertarian leanings. The Washington Post published a story about alleged inappropriate behavior with women, and followed it up with another story that brought the total number of accusers to in excess of a dozen women. Now the judge is retiring:

Alex Kozinski, the powerful judge on the U.S. Court of Appeals for the 9th Circuit who was facing a judicial investigation over allegations that he subjected 15 women to inappropriate sexual behavior, announced Monday that he would retire effective immediately.

In a statement provided by his lawyer, Kozinski apologized, inflatable movie screen saying that he “had a broad sense of humor and a candid way of speaking to both male and female law clerks alike” and that, “in doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace.”

“It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent,” he said. “For this I sincerely apologize.”

The whole thing is very regrettable. The behavior alleged in the stories turned out to be fairly widespread and — if all the stories are to be credited — more severe than one might have imagined likely from this jurist. I still don’t see him as someone who was ever out to demean women. I see him more as a fellow with a very effusive personality combined with perhaps a lack of sensitivity as to how people might react to certain comments or behavior. I have met Kozinski on more than one occasion and always found him an engaging and an interesting person, and I think the federal judiciary will be the poorer without his intellect, wit, and direct and clear manner of expression. But I respect his decision to retire, under the circumstances, and wish him the best in the future — just as I also wish the best to his accusers.

[Cross-posted at RedState and The Jury Talks Back.]

Roy Moore Won’t Take No For An Answer, But He Will Take Your Money

Filed under: General — Patterico @ 11:14 am

[Guest post by Dana]

Nearly one week after the special election in Alabama was called for Doug Jones, Republican candidate Roy Moore is still refusing to concede the race.

In fact, not only is he refusing to concede, he is now also asking supporters to send him money so that he can investigate voter fraud:

Alabama Republican Roy Moore on Friday told supporters that the “battle is not over” in Alabama’s Senate race even though President Donald Trump and others have called on him to concede.

Moore sent a fundraising email to supporters asking for contributions to his “election integrity fund’ so he could investigate reports of voter fraud.

“I also wanted to let you know that this battle is NOT OVER!” he wrote.

As a reminder, Jones garnered 49.9 percent of the vote compared to Moore’s 48.4 percent, and while Moore apparently believes he can accrue 20,000 more votes, inflatable movie screen including military and provisional votes, Alabama secretary of state John Merrill, himself an ardent Moore supporter, remains doubtful:

While the vote isn’t yet certified — that won’t come for several weeks — and the totals could move a few votes here or there even John Merrill, the Alabama Secretary of State who acknowledged he voted for Moore, has told CNN that it is “highly unlikely” that Moore could come close to winning the race. (Each of Alabama’s 67 counties are required to report the results to the Alabama secretary of state’s office by Dec. 22. Then, the state’s Canvassing Board has until Jan. 3 to formally certify the results.

Here are the odds of that happening:

What Moore is banking on is that there are 20,716 votes for him and 0 for Jones in the military and provisional ballots. That would give Moore a one-vote victory.

Moreover, the cost for any possible recount would be exorbitant:

If the difference between Jones and Moore is less than half a percentage point, the state would pay for the recount, but if it’s greater, Moore’s campaign would have to request and pay for it.

The check would be a big one.

“We estimate that it might be somewhere between 1 million and 1.5 million dollars but that could change,” says Alabama Secretary of State John Merrill.

Moore’s latest actions remind me of Jill Stein, who asked her supporters to fund a recount in the 2016 election. However, unlike Moore, Stein never discussed accepting the election results as God’s will being done — no matter the outcome:

It’s God’s will whatever happens, so we’re expecting God to do whatever he does will be the right thing to do.

Certainly one of the most difficult aspects of the Christian faith is submitting oneself to the will of God and trusting Him, especially when it goes against what we want. So it’s pretty rich that Roy Moore, who presented himself as some sort of model Christian and paragon of virtue, and whose supporters defended him as such, still refuses to yield to the “will of God,” which has been loudly and clearly made known to him and to the voters of Alabama.

[Cross-posted at The Jury Talks Back.]

— Dana


Sunday Music: Bach Cantata BWV 30, Part 2

Filed under: Bach Cantatas,General,Music — Patterico @ 10:45 am

It is the third Sunday of Advent, and the title of today’s cantata is “Freue dich, erlöste Schar” (Rejoice, redeemed flock), Part 2. Last week we heard Part 1.

Today’s Gospel reading is John 1:6-8, 19-28

There was a man sent from God whose name was John. inflatable movie screen He came as a witness to testify concerning that light, so that through him all might believe. He himself was not the light; he came only as a witness to the light.

. . . .

Now this was John’s testimony when the Jewish leaders in Jerusalem sent priests and Levites to ask him who he was. 20 He did not fail to confess, but confessed freely, “I am not the Messiah.”

They asked him, “Then who are you? Are you Elijah?”

He said, “I am not.”

“Are you the Prophet?”

He answered, “No.”

Finally they said, “Who are you? Give us an answer to take back to those who sent us. What do you say about yourself?”

John replied in the words of Isaiah the prophet, “I am the voice of one calling in the wilderness, ‘Make straight the way for the Lord.’”

Now the Pharisees who had been sent questioned him, “Why then do you baptize if you are not the Messiah, nor Elijah, nor the Prophet?”

“I baptize with water,” John replied, “but among you stands one you do not know. He is the one who comes after me, the straps of whose sandals I am not worthy to untie.”

This all happened at Bethany on the other side of the Jordan, where John was baptizing..

The text of today’s cantata is available here. It contains this passage:

The glory of your happiness,
the time of your contentment and peace
will never reach an end.

Happy listening!

[Cross-posted at RedState and The Jury Talks Back.]

The Day Fast Approaches…

Filed under: General — Patterico @ 9:56 am

…when Amazon Prime members can’t get Christmas presents in time for Christmas.

The last day to do so is December 22.

As always, use the widget on the sidebar inflatable movie screen for your Amazon shopping needs.

[Cross-posted at The Jury Talks Back.]


Irony: Office of Congressional Ethics Staff Director Accused of Sexual Misconduct

Filed under: General — Patterico @ 11:22 am

[Guest post by Dana]

In light of the current flurry of elected officials being accused of sexual misconduct (and making payouts using taxpayer money), it is an ironic slap in the face of Americans to find out that a high-ranking official, whose job is to investigate accusations of sexual misconduct against lawmakers, is himself being sued in federal court for physical and sexual harassment of several women — as well as using his powerful position to influence law enforcement responsible for the investigation into the matter:

Omar Ashmawy, staff director and chief counsel of the Office of Congressional Ethics, is heavily involved in determining which allegations brought against lawmakers warrant an ethics committee probe.

Ashmawy, who signed off on the ethics investigation into Democratic Rep. John Conyers of Michigan among others, was allegedly assaulted by three men after repeatedly sexually harassing women in a Milford, Penn., bar on Valentines Day in 2015.

One of the men, Greg Martucci, is suing Ashmawy in federal court for, among other things, “threatening to use his position as staff director and chief counsel of the Office of Congressional Ethics to induce a criminal proceeding to be brought against Plaintiff and/or others,” according to court inflatable movie screen filings obtained by Foreign Policy.

Ashmawy denies that he harassed any women that night, and says the assault was unprovoked: “To be clear, I did not harass anyone that evening, physically or verbally,” he wrote in a statement to FP. “To the contrary, I was the victim of a wholly unprovoked assault for which those responsible were investigated, arrested and charged. Any allegation to the contrary is unequivocally false.”

However, witnesses at the bar and the alleged victims corroborated Martucci’s accusation that Ashmawy had behaved in an “extremely violent and belligerent” manner toward several women that night:

Dawn Jorgensen corroborated much of what Martucci alleges in his suit in a written statement provided to police. She claims she saw Martucci “clearly sexually harassing” [Joey Lynn] Smith during successive trips to the bar to order drinks.

“You’ll give me drinks, but you won’t fuck me,” Ashmawy said to Smith before physically blocking her escape and grabbing her, according to Dawn Jorgensen’s statement. At that point, Dawn Jorgensen said she tried to intervene, at which point Ashmawy allegedly grabbed her wrist and fell on top of her.

[Christina] Floyd confirmed much of what Dawn Jorgensen alleged in her own statement to the police.

“I watched each time Omar would come down and verbally sexually harass the bartender as he ordered drinks,” Floyd wrote in her statement, describing Ashmawy.”

After witnessing the altercation, bar owner John Jorgensen (who is also the husband of Dawn Jorgensen), Martucci, and another individual took Ashmawy out back to the woodshed where, according to Ashmawy’s statement, he was left with a “bruised and bloody eye.” Oddly, in spite of the written statements by the alleged victims, no charges of sexual assault or harassment have been filed against Ashmawy.

Piggybacking on the theme of “ethics” and officials behaving badly, Rep. Ruben Kihuen (D-Nev.) is currently facing an investigation concerning his alleged sexual misconduct involving two women:

The House Ethics Committee announced Friday that it has launched an investigation into the conduct of Rep. Ruben Kihuen (D-Nev.) amid allegations that he sexually harassed an employee on his 2016 congressional campaign and a lobbyist during his time as a state legislator.

Nancy Pelosi has called on Kihuen to resign several times, based on the accusation by the lobbyist that: “…Kihuen touched her thighs and buttocks without consent and sent her hundreds of suggestive text messages, which the Nevada] Independent reviewed.”

Kihuen has declined to step down, stating that he wants to “go through the ethics process.”

Meanwhile, Rep. Blake Farenthold (R-Tx.), who is also the subject of a House Ethics Committee investigation, announced that rather than step down from his position, he has decided instead not to run for reelection after it had been revealed that he had “settled a lurid sexual harassment claim with his former communications director for $84,000,” and faces accusations from two former press secretaries who claimed he had “an explosive temper, berate them repeatedly, made sexually explicit jokes and engaged in casual sexual banter that set a tone followed by his underlings.”

And as a reminder, Sen. Al Franken (D-Mn.) has not yet stepped down after facing numerous allegations of sexual misconduct. The senator also remains baffled about how those women’s bottoms ended up in his unwilling hands. However, according to a report out today, the Democrat will be gone in early January when Lt. Gov. Tina Smith is scheduled to take over his seat.

In the midst of numerous allegations against officials, and resignations by some of them, Speaker Paul Ryan has had enough of these shenanigans, especially when it involves taxpayer money:

House Speaker Paul Ryan (R-Wis.) said Wednesday that Congress plans to stop using taxpayer dollars to settle sexual harassment cases against lawmakers.

When asked whether Congress would stop using taxpayer dollars to settle these cases, Ryan replied, “Yes, that’s among the things we’re working on right now.”

Ryan added that he agrees with Weber’s assertion that using taxpayer dollars to settle harassment claims is “indefensible.”

While both the House and the Senate have voted to implement sexual harassment training for all members of Congress and staffers, reforms on how Congress should handle accusations of sexual misconduct are also in the works. One hopes that all the decision-makers bear in mind that these lawmakers who have behaved badly are adults who already know that sexual harassment and assault is not only wrong but also illegal. However, like small children, they behave in such an unacceptable manner because they know they can get away with it. And no amount of sexual harassment training can change that. As such, it will be interesting to see whether the new reforms have any actual teeth to them.

Final point: if this teaser has any merit to it, those reforms should be put in place much sooner rather than later.

Also, any official that has used taxpayer money to make secret settlements should be publicly named, to promote a more transparent government.

— Dana


Painful: Unqualified Trump Judicial Nominee Founders Under Questioning (VIDEO)

Filed under: General — Patterico @ 12:23 pm

Oh, man. This is just brutal. Under gentle questioning from Senator John Kennedy (R-LA), Matthew Spencer Petersen, a Trump nominee to the U.S. District Court, reveals that he is patently unqualified for the job:

He has never tried a case. He’s assisted with fewer than five depositions and never taken one himself. He’s never argued a motion in court. He starts stumbling and bumbling when asked when he last read the Federal Rules of Civil Procedure. He last read the Federal Rules of Evidence in law school. He doesn’t know what the Daubert standard is. He initially says he knows what a motion in limine is, but ends up conceding that he could not give a definition of it. He doesn’t know what the Younger or Pullman abstention doctrines are.

And throughout, he stutters and filibusters.

Those of you who aren’t lawyers are probably wondering: to what extent these are trick questions? Can every lawyer articulate the Daubert standard? Not necessarily, if they don’t practice in federal court, but it’s pretty basic stuff for federal court practitioners. Most lawyers at least know that it addresses the admissibility of expert testimony. This guy doesn’t. Can most lawyers distinguish between Younger and Pullman abstention and tell you which is which? Again, you’re more likely to be able to do this if you’re a federal court practitioner; they have to know the ins and outs of federal vs. state jurisdiction and abstention doctrines. I learned about abstention doctrines in my Federal Courts class in law school, and applied them as a federal judicial clerk for a United States District Judge, but in 20 years as a state prosecutor I don’t deal with those doctrines any more.

But if I were a nominee to the federal bench, I would bone up on this stuff. Especially if I had never tried a case or argued a motion or taken a deposition. I would read the FRCP and FRE. I’d look at the basic jurisdictional rules, which federal judges have to know and apply whether the parties raise them or not.

In other words, I would try to show that I am worthy of the nomination.

Nominees to the federal bench aren’t supposed to be just any random lawyer. It’s a lifetime appointment. You’re expected to have at least some idea what you’re doing.

This guy is not only unworthy, he’s not even trying. It’s shameful and embarrassing.

Lefties will use this video to suggest that all Trump’s nominees are unqualified. WRONG!

By most accounts, Donald J. Trump has done a good job manning the federal judiciary. The New York Times is upset at the way he is reshaping the federal courts — in particular the appellate courts, whose rulings are final in all but the .1% of cases that go to the Supreme Court. Trump doesn’t care about judges, so he largely outsources the job to the Federalist Society — and as far as I can tell, they’re doing an excellent job by and large.

But the fella in the video above shows a hole in the process. Whether through cronyism or donations or some other kind of connection, he received a nomination for a position for which he is totally unqualified. Nobody should be on the federal bench who is this lacking in experience and basic knowledge.

Find the hole and fix it.

[Cross-posted at RedState and The Jury Talks Back.]


Yes, the Strzok Text Messages Are a Problem

Filed under: General — Patterico @ 10:00 am

So one of the top FBI guys investigating the Russia stuff for Mueller hates Trump, as revealed in several text messages published yesterday. Sarah Lee posted about them last night. My first reaction upon reading them was that many of them sound a lot like my own private (and public) statements about Trump:

“I just saw my first Bernie Sanders bumper sticker. Made me want to key the car,” Page wrote in an August 2015 exchange.

“He’s an idiot like Trump. Figure they cancel each other out,” Strzok replied.

Whoa. He thinks both Bernie Sanders and Donald Trump are idiots? Who doesn’t — besides fanbois who are super-impressed that a guy can inherit a lot of money?

In a March 2016 message, Page exclaimed: “God trump is a loathsome human….omg he’s an idiot.”

“He’s awful,” replied Strzok.

Someone thinks Donald Trump is awful? Get out!

Of course, Strzok went further than I ever did or would, actively wishing for the election of Hillary Clinton by saying “God Hillary should win 100,000,000 – 0.” But many of his rants about Trump and his idiocy are shared by, well, millions of people in the country. Including people who voted for the guy.

Andrew C. McCarthy says no biggie:

Well, I’m not OK with Trump’s outbursts, but I’m not sure I’m OK with this either.

I’m of two minds about this. Before the Strzok texts came out, but after their existence was reported, McCarthy made the case that people in law enforcement can work political cases while holding political beliefs:

People who work in law enforcement tend to be engaged citizens, well-informed about current events. Many of them are passionate in their political convictions. In the New York metropolitan area, those convictions tend not to jibe with mine — although rank-and-file FBI agents tend to be more conservative than their high-ranking superiors, and than prosecutors educated in elite American schools. Political differences are fodder for good-natured ribbing in the hallway or over beers after work. But they get checked at the courthouse door, even in political-corruption cases. Law enforcement is a straightforward exercise: Figure out what the facts and law are, then apply the latter to the former.

I actually agree with this. I have no specific reason to believe that Peter Strzok is anything less than professional at his job. I don’t do political cases, but I think if people could see how the day-to-day operation of criminal investigation and prosecution works, they would have more confidence in the system than they get from Big Media’s often unfair portrayals.

But here, there is an issue that goes beyond whether the work is actually getting done right: the public’s perception. And while having general political opinions should not necessarily render a prosecutor or an investigator unfit for prosecutions of political cases — again, like McCarthy says, they tend to be engaged citizens — a very strong bias against a particular person, as we see here, has a negative effect on the perception of the integrity of the investigation.

At this point, I would like to quote a question from a correspndent whom I respect, who wrote me an email asking in the subject line: “Isn’t Bias Good in a Prosecutor?”

Not corruption, bias.

Doesn’t our system demand an aggressive prosecutor who has a jaundiced eye for suspected criminals? The defense is lionized for doing most anything to get a defendant off. Don’t The People need an energetic/passionate person to prosecute?

I believe Mueller was corrupted as an FBI Director, and maybe before. I am not defending him. There shouldn’t even be an IC without hard and fast limits as to scope. If an IC learns anything outside that scope, they should/would be free to refer to DOJ just as any U.S. Attorney can.

What troubles me is the meme that a prosecutor (or defense counsel, for that matter) is somehow wrong for having a bias. Isn’t that a core trait necessary to the job?

I’d answer this with an unqualified “no.” Yes, you want an energetic and passionate person to be a prosecutor. But their zeal must be for justice —
and it must be tempered zeal. Having a strong pre-existing bias against the target is not the kind of zeal that promotes justice or that gives the public confidence.

So I’m fine with Mueller taking Strzok off the investigation. He should not have been on it. Even though I agree with many of his views of Donald Trump.

[Cross-posted at RedState and The Jury Talks Back.]

RIP Pat DiNizio

Filed under: General — Patterico @ 7:59 am

The first time I went out with Mrs. P in what could be considered a date, she wanted to dance. I hate dancing. But I told her that I would dance with her if “Behind the Wall of Sleep” by the Smithereens came on. It did. We danced, and later that night we kissed for the first time.

We last saw The Smithereens at the Roxy, I think in 2016. DiNizio was not doing well. His right arm hung at his side, and he seemed to have limited use of his left arm too. Between songs or during guitar solos, one of his bandmates would mop his brow and give him water to drink. He could not hold the towel or glass himself.

And yet, he sounded great, and it was a marathon show. It might’ve gone three hours, maybe even three and a half. It was clearly not easy for him, but he still gave it his all.

RIP, Pat. You will be missed.

UPDATE 12-30-17: How awful. Mrs. P. reminds me that the song was “Blood and Roses” and not “Behind the Wall of Sleep.” (Actually, the way it worked is that I related the story to my brother-in-law, but citing the relevant song as “Behind the Wall of Sleep.” Christi told me I got it wrong, and that I had three more tries before I was “locked out’ — you know, the way one gets locked out of their iPhone upon guessing the password wrong . . . but with presumably more dire consequences. I got it right on the next try.)


Open Thread: Showdown in Alabama

Filed under: General — Patterico @ 11:00 am

Often we say “let the best man win” but it seems like an odd thing to say in a race between a pedophile and a supporter of killing any baby for any reason before it’s born.

I still believe Roy Moore will win despite a Fox News poll released yesterday showing Moore down by ten points. Then again, another poll shows Moore up by nine points. Even a veteran pollster like Nate Silver seems flummoxed by it — although he seems to be leaning towards a Jones win, based on the superiority of the polling methods showing Jones ahead. [UPDATE: As Donald Trump likes to say: WRONG! That’s what I get for skimming Silver’s post too fast this morning. He actually says the opposite: “I still think Moore is favored, although not by much.”]

The polls are trying analyze voter turnout in which some people feel like me (I would never vote for either man), while some other people are extra fired up — whether it’s by Moore’s past behavior and statements, by Jones’s position on abortion, by unthinking tribalism . . . or by dark thoughts of Bernie Bernstein and his pack of Jewish infiltrators from the #FAKENEWSAMAZONPOST.

As an amusing aside, True Populist Steve Bannon was in Alabama stomping all over his own junk as he fought the scourge of Joe Scarborough:

I don’t like Scarborough, but I still gave a solemn standing O in my head for this response:

So what’s gonna happen and what’s the fallout?

As a mere spectator, it feels like a win-win. If Moore wins, it’s (like Trump) endless entertainment where you never know what crazy damn fool thing he’ll say next. We’ll get to enjoy the spectacle of seeing the Democrats hang Moore around the neck of the GOP. There will be endless debates about whether to seat him or subject him to an ethics investigation, all amounting to nothing. Al Franken will try to worm out of his resignation, citing Moore. And we’ll probably get some pretty good votes in, amid the stupid ones:

And if Moore loses? I guess there’s a lesson in there somewhere about the ultra-alpha-male guy who never apologizes for anything, treats women like objects, and promotes bigotry against Muslims and gays.

But that’s if he loses. And let’s face it. He’s gonna win.

[Cross-posted at RedState and The Jury Talks Back.]

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