Leading Appellate Law practitioner responds to Democrat Party attacks on the Supreme Court

 

The Supreme Court finally gets a reasoned defense to recent political attacks

As reported by Reason.com a leading Appellate Law practitioner, Kannon Shanmugam, has come to the defense of the Supreme Court in response to recent political attacks.  Rather than rebutting the reasoning of recent Supreme Court opinions, the response of a certain political party has been to bully and intimidate the Court by threatening to alter its jurisdiction and make-up.

It is therefore important that Mr. Shanmugam has the courage to point out the obvious.  Namely, that recent attacks (emanating from one political party and one side of the ideological spectrum) are politically-motived and are done in lieu of actually engaging the recent decisions of the Supreme Court on their merits. As Mr. Shanmugam said:

But today, I am breaking that habit to address the recent criticisms of the Supreme Court's legitimacy. I am doing so for a simple reason: because I revere the Supreme Court. I had the fortune of a lifetime to clerk at the Court for one of the greatest Justices of this generation or any other, Antonin Scalia. Since then, I have devoted my professional life to the Court, having spent the last 20 years arguing cases there. My wife and I even got engaged on the Court's front steps. And I firmly believe that, for all the challenges it faces, our Supreme Court is the finest high court in the world—a model for other countries to follow.

Perhaps for that reason, I have found the recent attacks on the Court to be dispiriting. At the risk of giving away the punch line to my remarks, I believe that the criticisms of the Court's legitimacy are unfounded. But more than that, I believe that attacks on the Court's legitimacy are dangerous—undermining public confidence in the Court and imperiling the rule of law. Finally, I believe that critics of the current Court would be better served engaging with the Court's work on the merits.

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The Revenge of the Dinosaurs - Amazon tells its employees to return to the office five days a week (like the early and mid 20th Century)

 

Nothing says "screw you' to your workforce than telling them their work-life balance is no more

Back in the 20th century - and especially before the computer revolution at the end of that century - employers were known for their lack of flexibility.  Using silly terms like "work culture" employers were loathe to consider part-time work or flexible hours. Cracks in the facade appeared toward the turn of the century when networking and laptops made it possible, in some instances, to work from home and still be productive.  But then, after the advent of high-speed internet and advances in wi-fi and cellular data speeds, the early 21st century saw a sharp increase in work from home, often offered as a perk to keep the best talent.

And then during the pandemic, tens of millions of workers were told they had to work from home.  They did so and many loved it and thrived personally and professionally.  

However, as has been reported, Amazon is among the companies now asking office employees to return to the office five days a week.  The cynical response is that this is a stealth layoff, as a certain percentage of workers will find another employer who is less hostile to their private lives.

Adding insult to injury, the company has said this is fair because "warehouse" workers have had to come to work in person the entire pandemic.  Such statements reveal a lack of understanding of how work was changed and that, in fact, location is not as important as it was in the analog age.  That a tech company like Amazon would not understand this is particularly ironic, given that Amazon competes against other companies in terms of talented engineeers and "the best and the brightest" always have other options.  As an Amazon shareholder, I am disappointed management is so clueless that the fact one can order something anywhere one just so happens to be and have it delivered to one's home or virtually anyone else, has changed how human beings interact.

That most US companies use foreign call centers, no matter how poor the customer service provided, also undercuts the crappy argument that everyone must be in the "same location."

And so I ask:  if management at Amzon were all under 30 years of age, would this edict have come out?

Not likely.

It has also been reported that Amazon is consolidating into "hubs," all in places that might be fun to visit but are impossible to buy a house or even a modest condominium:  New York, Seattle, San Francisco, etc.

As an attorney who has worked for a large corporation and/or private law firms, I recall being repeatedly asked to come in on Saturday even though I was given a more modest salary on the promise of "work life" balance.  And I recall being criticized, just before the pandemic, for working part of the day - and coming into the office for the rest of the day - on a huge appellate project.  Because, of course, if they were to let me work at home part of the day, they would have to do so with the other lawyers.  We can't be having that, of course. 

So I have repeatedly told young people choosing careers that they must be aware of management with an old-school mentality.  The benefit of working for a more experienced lawyer who may be able to mentor you must be balanced against the likelihood they have the stereotypical "baby boomer" workaholic mentality that "more is always better" and you must "work harder not smarter." 

It is sad, then, to say that with the Amazon announcement, it seems the dinosaurs are back in charge.  At least until the next asteroid hits.

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Third post in our series "Gaslighting and Litigation:" how to respond to opposing counsel "gaslighting" during oral argument

In parts one and two of our series on Gaslighting and Litigation, we discussed the definition and prevalence of "gaslighting" and posited "gaslighting" tactics from opposing counsel:

An example might be an appellate argument about a case dismissed following a challenge to the pleadings, with the primary issue being whether the main cause of action pleads facts showing there is an exception to the statute of limitations which bars the late-filing of the complaint.  Opposing counsel might switch from this to another issue involving the complaint, such as whether a specific element of a cause of action, such as intentional conduct, has been plead.  Veering off to another issue is permissible, of course, but your opposing counsel may recite language in the complaint (with page and line citations) that one does not recall because the complaint doesn't contain this exact language.  

Therefore, one may begin to question one's own recollection as to what the complaint states because of what the "gaslighting" attorney has said.  The initial reaction may be to call out counsel for their miscitation to the language of the complaint, but they may be so skilled at weaving what the complaint says with what it does not that it becomes tricky to claim the citation is outright "inaccurate" and, unless one has that portion of the complaint memorized, one may question which words are accurate and which are not.

Note that this is especially likely to occur either when 1) one is making some sort of argument to the lower Court and the case is being handled by another lawyer in your firm and opposing counsel is attempting to take advantage of the fact they have a better knowledge of the record, or 2) one is arguing before the appellate concerning a trial conducted by another counsel.

When gaslighting is aimed at counsel in our hypothetical oral argument, there are several options available.  However, none of these are ideal from the point of view of the counsel being "gaslit:"

• Ignore the attempt to misquote the record on the secondary issue and then continue one's argument as to the main issue;
• Point out to the Court that the citations to the record by your opponent are not "complete" and that the Court should independently review the record on this secondary point, and then one may return to the main issue;
• Stop your argument on the main issue, and assuming you have brought the record with you (and have tabbed it extensively), discuss in detail the facts and/or language cited-to by opposing counsel; or,
• Ask the Court to further brief the issue, such as by way of an informal "letter brief" so one may discuss the facts and/or language opposing counsel refers-to, noting such was not fully briefed and/or your opponent has selectively cited from the record. 

At first blush, it appears the best approach may be the last noted above, as it permits you to not let the issue of the record being quoted incorrectly "slide."  The downside to this approach, of course, is that your opponent, who might not have briefed this secondary issue particularly well (at least in terms of the facts and/or language they are now citing) will have a chance to respond, assuming the court permits additional briefing. 

Therefore, perhaps the second approach is the best, making certain that the misquoting by opposing counsel is noted in a non-confrontational and respectful manner.  One might therefore say (before reminding the Court that "in any event, the main issue is. . .") that the facts and/or language cited by opposing counsel are not entirely true by virtue of stating counsel has:

• Not given the Court the "entire picture" of the facts and/or language as to x, y, or z;
• Cited to facts and/or language "not discussed in any depth" in their brief; and/or,
• Cited to the record as to x y, or z but has not given "any specific page and line cites."

This assumes, as may often be the case, that the Court will find the secondary issue peripheral and not dispositive.  Therefore, the Court may not even ask any questions regarding the secondary issue, and, instead, focus upon the main issue and ignore the attempt by opposing counsel to sow doubt in one's mind about facts which are borderline irrelevant. 

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Breaking News - Possible Appeal to the Ninth Circuit - Federal Court Enjoins UCLA From Permitting Pro-HAMAS Protestors to Block Access to Jewish Students

 

On August 13, 2024, Judge Mark C. Scarsi of the Central District of California issued an injunction barring the University of California at Los Angeles from permitting protesters who support Hamas and/or are protesting the State of Israel from blocking access to the school by Jewish students.  The "protestors" did so, of course, unless anyone who desired or needed to enter this space wore a wristband designed to separate out anyone who had a religious or other belief supporting the State of Israel.  UCLA must assuredly know permitting such on its campus violates the United States (as well as California's own) Constitution, as UCLA has its own Law School, including an adjacent courtyard ironically named "Shapiro." Indeed, according to the First Amendment, a person may not be denied access to a public space due to their race or religion.  Therefore, the injunction (https://becketnewsite.s3.amazonaws.com/20240813183534/injunction.pdf) seeks to enforce First Amendment rights by providing, at pages 15 to 16, that:

16. 1. Defendants Drake, Block, Hunt, Beck, Gordon, and Braziel (“Defendants”) are prohibited from offering any ordinarily available programs, activities, or campus areas to students if Defendants know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students.

17. 2. Defendants are prohibited from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas, whether as a result of a de-escalation strategy or otherwise.

    3. On or before August 15, 2024, Defendants shall instruct Student Affairs Mitigator/Monitor (“SAM”) and any and all campus security teams (including without limitation UCPD and UCLA Security) that they are not to aid or participate in any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas.

Note that UCLA not only opposed the request for an injunction but also requested a stay pending appeal, meaning they would be permitted to, inter alia, continue to take actions that include, as the injunction states, "knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s . . . areas, whether as a result of a de-escalation strategy or otherwise."

Such exclusion has, according to sworn declarations, already occurred.  As the injunction states at pages four to five:

4. On April 25, 2024, a group of pro-Palestinian protesters occupied a portion of the UCLA campus known as Royce Quad and established an encampment.  News reporting indicates that the encampment’s entrances were guarded by protesters, and people who supported the existence of the state of Israel were kept out of the encampment. Protesters associated with the encampment “directly interfered with instruction by blocking students’ pathways to classrooms.” Plaintiffs are three Jewish students who assert they have a religious obligation to support the Jewish state of Israel.  Prior to the protests, Plaintiff Frankel often made use of Royce Quad. After protesters erected the encampment, Plaintiff Frankel stopped using the Royce Quad because he believed that he could not traverse the encampment without disavowing Israel. He also saw protesters attempt to erect an encampment at the UCLA School of Law’s Shapiro courtyard on June 10, 2024. Similarly, Plaintiff Ghayoum was unable to access Powell Library because he understood that traversing the encampment, which blocked entrance to the library, carried a risk of violence.He also canceled plans to meet a friend at Ackerman Union after four protesters stopped him while he walked toward Janss Steps and repeatedly asked him if he had a wristband. Plaintiff Ghayoum also could not study at Powell Library because protesters from the encampment blocked his access to the library. And Plaintiff Shemuelian also decided not to traverse Royce Quad because of her knowledgethat she would have to disavow her religious beliefs to do so. The encampment led UCLA to effectively make certain of its programs activities, and campus areas available to other students when UCLA knew that some Jewish students, including Plaintiffs, were excluded based on their genuinely held religious beliefs. (Citations and footnotes omitted; emphasis added)

   
   

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Justice Thomas' Concurring Opinion in Trump v. United States - Part Two - Application to Hunter Biden's cases

 

I was recently asked if the reasoning in Justice Thomas’ concurring opinion in Trump v. United States — that Merrick Garland’s appointment of a special counsel as part of the “lawfare” against President Trump violated basic Constitutional principles — would apply to Mr. Garland’s other special counsel appointments, including the appointment of the Special Counsel regarding Huner Biden.  As outlined in my prior post on Trump v. United States, Justice Thomas aptly noted that the Constitution only permits the Congress of the United States, to create an Office of the United States.  Therefore a member of the Executive Branch, such as the Attorney General or other Cabinet officer, cannot create such an office.

Indeed, counsel for Hunter Biden has filed a brief making this argument, as noted by MSN.  This, of course, follows the dismissal of the suit against the former President for "misusing" classified documents at Mar-a-Lago, which dismissal by the District Court was based upon the analysis in Justice Thomas' concurrence.  This dismissal, of course, in turn follows the decision to not prosecute President Biden for storage of documents in his garage even though his Special Counsel found he had "willfully retained and disclosed classified materials."

I have also been asked if this reasoning would apply to past or future charges via this same sort of Special Counsel and I believe this argument, if accepted by the appellate courts, would bar the actions of the Special Counsel no matter the charges against Mr. Biden.  This would mean the appointment of the Special Counsel would be unconstitutional whether Mr. Biden is charged or convicted of lying on a firearm's application (which, even though no one should ever lie on a form signed under penalty of perjury, is a relatively minor offense) or the claim that Hunter Biden traded influence with his father, President Biden, in exchange for monies from foreign entities (the latter being a far more serious offense as it undermines the credibility of the United States).

Lastly, I have been asked why I cited to Democrat-party affiliated media such as CNN and MSNBC in my posts even though they issued multiple retractions regarding the false claim that Mr. Trump was some sort of Russian spy.  The simple fact is if I were to cite to, for example, the Wall Street Journal, which has not had to issue the same sorts of high-profile retractions, I would be accused of citing to "conservative media." So I cite to left-wing media to show there may be no denial of the facts cited.

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Second post in our series "Gaslighting and Litigation:" gaslighting to re-write history as to Vice-President Kamala Harris

Among the many present attempts to "gaslight" the American people include convincing people that what they recall about Vice-President Harris is untrue. This goes far beyond pieces of "puff journalism" designed for the specific benefit of assisting her campaign, as these are to be expected from the corporate media. 

However, we are now being told that 1) she was never what was then-termed the "Border Czar," and thus charged with reducing illegal migration, and 2) that she was not a "diversity" hire, and worse, that something is wrong with you if you recall dare to call her such.  These tactics are classic gaslighting designed to confuse us and have us question what we already know.  

Mr. Biden, of course, loudly proclaimed on or about March 24, 2021, that he had anointed Ms. Harris to lead efforts to stem migration across the southern border, as reported by NBC (https://www.nbcnews.com/politics/white-house/biden-taps-harris-lead-coordination-efforts-southern-border-n1261952) and other "news" outlets owned by large corporations.  Previously, Mr. Biden had stated on or about March 15, 2020, that he was choosing a Vice-Presidential nominee who would be a woman and a woman only, as reported by CNN (https://www.cnn.com/2020/03/15/politics/joe-biden-woman-vice-president/index.html), and he has since bragged about this pick and why she was chosen.  As the links above indicate, these facts were reported by two of the most Democrat-party-friendly news media corporations, to wit, NBC and CNN.

Of course, these facts are now being denied by "fact checkers" in order to confuse us and blunt any criticism of Ms. Harris' record while in office.  There have, then, been an onslaught of articles designed not only to squelch debate as to Ms. Harris but to do something far worse:  to convince us we are factually inaccurate (and, of course, sexist and racist) for recounting Mr. Biden's own words as to the role he gave Ms. Harris regarding the border and how he chose her. 

 

Such gaslighting is reminiscent of litigation tactics, which include a common oral argument tactic of counsel in proudly and loudly reciting facts during oral argument in an inaccurate fashion, often replete with citations to the record.  This is often done on a peripheral matter that one may be aware of but has not prepared to discuss to a great degree at oral argument.  

An example might be an appellate argument about a case dismissed following a challenge to the pleadings, with the primary issue being whether the main cause of action pleads facts showing there is an exception to the statute of limitations which bars the late-filing of the complaint.  Opposing counsel might switch from this to another issue involving the complaint, such as whether a specific element of a cause of action, such as intentional conduct, has been plead.  Veering off to another issue is permissible, of course, but your opposing counsel may recite language in the complaint (with page and line citations) that one does not recall because the complaint doesn't contain this exact language.  

Therefore, one may begin to question one's own recollection as to what the complaint states because of what the "gaslighting" attorney has said.  The initial reaction may be to call out counsel for their miscitation to the language of the complaint, but they may be so skilled at weaving what the complaint says with what it does not that it becomes tricky to claim the citation is outright "inaccurate" and, unless one has that portion of the complaint memorized, one may question which words are accurate and which are not.

Counsel encountering such tactics are left with several options as to how to respond, including ignoring the inaccurate recitation, at the risk of having the Court assume such is accurate, or slowing down one's own oral argument to provide an accurate quotation from the complaint, all of which we will discuss in our next post.

  

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