The Courts

May 16, 2019
Wendy Vitter, abortion foe, confirmed for lifetime federal judicial seat based in New Orleans

WASHINGTON — Wendy Vitter, the Louisiana native who set aside an ambitious legal career to stand by her husband through a scandal and an unsuccessful run for governor, is now a federal judge for life.

The U.S. Senate voted 52-45 on Thursday to confirm Vitter’s appointment to the U.S. District Court for the Eastern District of Louisiana based in New Orleans. President Donald Trump had nominated Vitter twice in the past 16 months.

“I am honored and truly humbled by this confirmation,” Vitter said in a statement. “I look forward to working hard at the job and serving with fairness, compassion, and integrity.“

No Democrats backed Vitter, and one Republican, Sen. Susan Collins, of Maine, also voted against her. Democrats had criticized her anti-abortion views and reluctance to judge the U.S. Supreme Court’s landmark segregation-busting Brown v. Board of Education decision during a committee hearing.

Louisiana’s U.S. senators, Bill Cassidy and John Kennedy, championed her nomination. Vitter’s husband, David, had previously served as a U.S. senator and lost a bid to become Louisiana governor in 2015.

“She is immensely qualified to serve, and I wish her success in upholding the Constitution on behalf of the good people of the Eastern District,” said Cassidy, R-Baton Rouge.

He had said before the vote that it was “a shame the liberal left is using fabricated political smears to suppress the voice of a strong conservative woman.” Cassidy said David and Wendy Vitter aided him “from the very beginning” in his successful effort to defeat incumbent Democratic Sen. Mary Landrieu in 2014.

Kennedy, a Republican from Madisonville, replaced David Vitter in the Senate.

“Wendy is whip smart and articulate. She understands and appreciates the rule of law,” Kennedy said.

David Vitter is now a lobbyist with Mercury LLC.

The American Bar Association, which grades all potential appointees to lifetime federal judicial appointments, rated Wendy Vitter as “qualified” but noted the 15-member panel wasn’t unanimous.

Sen. Bob Casey, D-Pennsylvania, said before Thursday’s vote Vitter has “virtually no federal trial court experience.”

Vitter, née Baldwin, graduated from the now-defunct Mercy Academy in New Orleans and holds a bachelor’s degree from Sam Houston State University in Texas. She earned her law degree from Tulane in 1986 and formerly worked as an Orleans Parish assistant district attorney and at a private firm. She has been general counsel to the Archdiocese of New Orleans since 2012.

Democrats this week renewed complaints about Vitter’s long history of anti-abortion activism, including remarks she made at a 2013 protest at the site of a proposed Planned Parenthood clinic in Uptown New Orleans accusing the group of killing “over 150,000 females a year,” and her participation in spreading false claims of links between birth control and cancer. U.S. Senate Minority Leader Chuck Schumer, D-New York, warned that she and other Trump nominees will damage the country for generations.

“We understand the president and Republicans will want conservatives, but hard-right, narrow ideologues who show no understanding or sympathy for people who don’t look like them or pray like them or marry like them?” Schumer asked. “It’s not hard. If you need the benefit of hindsight to understand that Brown v. Board of Education, which brought an end to school segregation and led to the end of American apartheid, was correctly decided, you shouldn’t be a federal judge.”

Carl Tobias, a University of Richmond law professor who follows the federal judiciary, said Vitter’s positions slowed the confirmation process.

“It did take a long time, partly because she was considered to be relatively controversial,” he said.

Louisiana residents would know Wendy Vitter as a tough-talking political spouse who proclaimed to reporters in 2000 — commenting about President Bill Clinton’s affair scandal while her husband was a congressman — that she would be “a lot more like Lorena Bobbitt than Hillary,” referring to the Virginia woman who severed her husband’s penis in 1993.

Seven years later, Wendy Vitter would herself end up dragged into a salacious politically tinged extra-marital embarrassment when David Vitter was linked via phone records to the infamous “D.C. Madam.” His troubles prompted a defiant, highly publicized “stand by your man” moment for Wendy Vitter, who by that time had already settled into life as a stay-at-home mom and part-time campaign surrogate for her husband.

“I stand before you to tell you very proudly, I am proud to be Wendy Vitter,” she told reporters in 2007, her husband at her side. She subsequently appeared in an advertisement touting her husband’s political bona fides. Wendy Vitter asked for her family’s privacy without directly mentioning the prostitution allegations. The couple has not publicly addressed the episode in the years since, aside from a campaign ad in which David Vitter said he had “failed (his) family — but found forgiveness and love.”

The Vitters have four children: Sophie, twins Lise and Airey, and Jack.

During the 2007 spotlight, Wendy Vitter waved off comparisons between herself and Hillary Clinton, another lawyer who aided an ambitious husband’s political career, suffered through a public infidelity scandal and would eventually go on to seek her own political fortunes.

The Times-Picayune reported at the time that observers quickly dismissed the comparisons, “noting that Wendy Vitter did not have her own political ambitions in mind when she chose, as she put it, to recommit to the marriage.”     Source


February 19, 2019
The Inquirer
How Clarence Thomas used a civil case against Bill Cosby to call for a reexamination of libel laws

The U.S. Supreme Court said Tuesday that it would not consider a defamation case involving Bill Cosby. But the announcement came with a twist: Justice Clarence Thomas used the appeal to call for a reconsideration of libel laws.

Kathrine McKee, one of the dozens of women who have accused Cosby of sexual assault or sexual misconduct, had asked the court to review her case, in which she said Cosby’s lawyer damaged her reputation in a letter after she publicly accused Cosby of raping her. Lower courts dismissed her complaint because they found that by disclosing her allegations against Cosby to the media, she had become a public figure. The “public figure” distinction makes it harder to sue for defamation.

Thomas, in a 14-page opinion issued Tuesday, agreed with the high court’s decision not to take McKee’s case. But he used it as an opportunity to call for a review of libel standards for public figures.

In a landmark 1964 case, New York Times Co. v. Sullivan, the Supreme Court set a higher standard for libel cases involving people who by their occupation, accomplishments, or celebrity status are in the public spotlight. It ruled that such public figures must prove that a false and defamatory statement about them was published with “actual malice,” or a disregard for whether it is false, for their claims to prevail in court.

McKee was unable to prove actual malice, so her case could not proceed, Thomas wrote. But Thomas said the court should question this precedent, and suggested the justices should, with a different case, reconsider New York Times v. Sullivan.

“We should carefully examine the original meaning of the First and Fourteenth Amendments,” Thomas wrote. “If the Constitution does not require public figures to satisfy an actual-malice standard in state law defamation suits, then neither should we.”

President Donald Trump, who often complains about the media, has called for changing libel laws. On Sunday, he complained in a tweet about Saturday Night Live and said it was “very unfair and should be looked into” that television shows can get away with mocking Republicans. In September, he suggested directly in a tweet that libel laws should be changed.

Donald J. Trump


Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost. Don’t know why Washington politicians don’t change libel laws?

80.9K people are talking about this

The 1964 case involved a paid advertisement printed in the Times that supported the civil rights movement and alleged that the movement faced terror from police in Alabama. L.B. Sullivan, commissioner of public affairs in Montgomery, Ala., sued the newspaper, and alleged that the statements were made against him because he supervised the police department. The Supreme Court ultimately ruled that by virtue of his position, he was a public figure and the statements were not published with “actual malice” or a reckless disregard for the truth.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Thomas wrote. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”

Thomas’ opinion notes little about Cosby, who is serving a three- to 10-year sentence in state prison for assaulting Andrea Constand at his Cheltenham home in 2004.

The case involving McKee was one of several legal battles the actor has faced. Several of the dozens of women who have accused him of sexual misconduct have sued him for defamation; he has sued others. In October, the Supreme Court denied a petition from Cosby’s lawyers involving a defamation suit brought by Janice Dickinson, a supermodel and one of Cosby’s most famous accusers. Dickinson was one of five women who testified last year in addition to Constand at Cosby’s trial in Montgomery County Court.

Cosby, 81, has maintained his innocence and denied all allegations of sexual misconduct; his wife and publicists have compared him to Nelson Mandela in claiming he is unjustly imprisoned. His publicist released a statement from Cosby on Tuesday thanking the Supreme Court for declining to review McKee’s case.

“I thank each of the justices for their ruling, which gives me renewed hope that the fair and impartial courts in this country will go on to deliver justice,” the statement said. “This is the very reason, why I have No Remorse because I am Innocent and will continue to channel the strength of the Great Political Prisoners.”   Source

February 19, 2019
New York Times
Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling

WASHINGTON — Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

He said the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.

“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.

Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest.

An appeals court ruled against Ms. McKee, saying that her activities had made her a public figure and that she could not prove, as required by the Sullivan decision, that the lawyer had knowingly or recklessly said something false. Ms. McKee asked the Supreme Court to review the appeals court’s determination that she was a public figure.

Justice Thomas wrote that he agreed with the court’s decision not to take up that question. “I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place,” he wrote.

In Justice Thomas’s view, the First Amendment did nothing to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit. When the First Amendment was ratified, he wrote, many states made it quite easy to sue for libel in civil actions and to prosecute libel as a crime. That was, he wrote, as it should be.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

The events leading to the Sullivan decision test that assertion. The case arose from an advertisement in The Times seeking support for the civil rights movement. The ad contained minor errors.

L.B. Sullivan, a city commissioner in Montgomery, Ala., who was not mentioned in the ad, sued for libel. He won $500,000, which was at the time an enormous sum. It was one of many suits filed by Southern politicians eager to starve the civil rights movement of the oxygen of national attention. They used libel suits as a way to discourage coverage of the movement by national news organizations.

Against this background, and animated by an urge to protect the American public’s ability to assess the situation in the South for itself, the Supreme Court unanimously ruled for The Times and revolutionized American libel law.

Justice Thomas’s statement came in the wake of complaints from President Trump that libel laws make it too hard for public officials to win libel suits.

“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Mr. Trump said on the campaign trail. “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Thanks to the Sullivan decision, it is indeed hard for public figures to win libel suits. They have to prove that something false was said about them, that it harmed their reputation and that the writer acted with “actual malice.” That last term is misleading, as it has nothing to do with the ordinary meaning of malice in the sense of spite or ill will.

To prove actual malice under the Sullivan decision, a libel plaintiff must show that the writer knew the disputed statement was false or had acted with “reckless disregard.” That second phrase is also a term of art. The Supreme Court has said that it requires proof that the writer entertained serious doubts about the truth of the statement.

Justice Thomas questioned those standards.

“There appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment,” he wrote.

Justice Antonin Scalia, who died in 2016, routinely made the same point in his speeches. But Mr. Trump’s two Supreme Court appointees — Justices Neil M. Gorsuch and Brett M. Kavanaugh — have expressed support for broad libel protections in their opinions as appeals court judges.

At his Supreme Court confirmation hearings in March 2017, Justice Gorsuch was asked about the Sullivan decision by Senator Amy Klobuchar, Democrat of Minnesota. She wanted to know whether “the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice.”

Judge Gorsuch, reticent when asked about other precedents, seemed comfortable with preserving that one.

“New York Times v. Sullivan was, as you say, a landmark decision and it changed pretty dramatically the law of defamation and libel in this country,” he said. “Rather than the common law of defamation and libel, applicable normally for a long time, the Supreme Court said the First Amendment has special meaning and protection when we’re talking about the media, the press in covering public officials, public actions and indicated that a higher standard of proof was required in any defamation or libel claim. Proof of actual malice is required to state a claim.”

“That’s been the law of the land for, gosh, 50, 60 years,” he said.

As an appeals court judge, Justice Gorsuch showed no hesitation in applying the line of cases that began with the Sullivan ruling.

Some plaintiffs, he wrote in a 2011 opinion, have reputations so poor that even serious accusations cannot damage them. Libel law, he said, is “about protecting a good reputation honestly earned.”

He added that minor inaccuracies in a news report can never serve as the basis for a libel suit, calling that “a First Amendment imperative.”

In 2015, Justice Kavanaugh, as an appeals court judge, wrote that posing provocative questions generally cannot be the basis for libel suits, choosing an interesting example.

“Of course,” Judge Kavanaugh wrote, “some commentators and journalists use questions — such as the classic “Is the president a crook?” — as tools to raise doubts (sometimes unfairly) about a person’s activities or character while simultaneously avoiding defamation liability.”  Source

January 31, 2019
new york times- Opinion
Family Ties at the Supreme Court
Do the political activities of Justice Clarence Thomas’s wife cross a line?

Let Ginni be Ginni.

That was my first thought upon seeing the headline in The Times this past weekend: “Trump Meets With Hard-Right Group Led by Ginni Thomas.” Ginni Thomas — or Virginia Lamp, as I knew her years ago when she was a smart lawyer-lobbyist working for the United States Chamber of Commerce against passage of the Family and Medical Leave Act — is married to the Supreme Court justice Clarence Thomas.

These days, she is also an activist on the far-right fringe of the Republican Party. In recent months, she has denounced the student survivors of the Parkland, Fla., school shooting who are campaigning for gun control as “dangerous to the survival of our nation” (in a later deleted Facebook post). In a speech bestowing an award on Sean Hannity, the Fox News personality, she warned fellow conservativesagainst being “complicit as the left moves its forces across the country.” According to the Times account of last week’s White House meeting, to which she brought fellow members of a group called Groundswell, the topics discussed included why women and transgender people should not be permitted to serve in the military and how same-sex marriage is damaging the country.

It hardly needs saying that modern families are complicated. A few administrations ago, it was tempting to conclude that presidential siblings had an unusual proclivity for getting into embarrassing scrapes. The day when wives of powerful men were expected to do little more than serve tea and look decorative has, thankfully, passed. “We have our separate professional lives,” Ms. Thomas said during the 2000 presidential election stalemate, when asked about her work for the Heritage Foundation compiling résumés for a potential Bush administration while the Supreme Court was deciding the outcome of the election. (She said her effort was bipartisan.)

But while my feminist sensibilities make me wary of suggesting that Ginni Thomas should not be completely free to embrace her causes and live her life, there’s something troublesome about the unbounded nature of her public advocacy, at least for those of us who still care about the Supreme Court. It’s hard to think of a more delicate moment for the court, pressed at every turn by an administration that seems to regard it as a wholly owned subsidiary of the White House and that has driven the normally reticent chief justice to declare, “We do not have Obama judges or Trump judges.” Chief Justice John Roberts did not say “justices.” He didn’t have to. The question now is whether his colleagues on the bench — his own and all the others — will show him to be right, or sadly naïve.  Source

February 7, 2019
Supreme Court blocks Louisiana abortion law from taking effect

Washington (CNN)The Supreme Court Thursday blocked a Louisiana abortion access law from going into effect for now, dealing a victory to opponents of the law who argued it could decimate “safe and legal” abortions in the state.

The order was 5-4 with Chief Justice John Roberts joining the court’s four liberals voting for the stay. New conservative Justice Brett Kavanaugh wrote a dissent.
Louisiana’s Unsafe Abortion Protection Act has been blocked since its enactment in 2014, and like a similar Texas law the court previously struck down, requires a doctor to have admitting privileges at a hospital within 30 miles of the facility where the abortion is performed.
Louisiana argues that the law is necessary to provide a higher level of physician competence, but critics say there is no medical justification for the law and it amounts to a veiled attempt to unlawfully restrict abortion.
The Supreme Court said in 2016 that the restrictions in the Texas law constituted an undue burden on a woman’s right to seek an abortion.
The Center for Reproductive Rights — representing patients, clinics and doctors in the state — had asked the justices to put the law on hold before it was slated to go into effect on Friday.
Thursday night’s ruling would not prevent the court from eventually agreeing to take up the case and uphold the law in the future. Supporters of abortion rights fear that the court’s conservative majority — solidified by the addition of Donald Trump’s nominees Neil Gorsuch and Kavanaugh — will move to chip away at abortion rights if not eventually all but overturn the landmark Supreme Court opinions of Roe v. Wade and Planned Parenthood v. Casey.

Struck down, then reversed on appeal

In 2017, a district court judge struck down the Louisiana law in a 116-page opinion laced with references to the Supreme Court’s decision in the Texas case, known as Whole Woman’s Health. Judge John deGravelles, of the US District Court for the Middle District of Louisiana, an Obama appointee, said the Louisiana law would severely limit the number of providers available to perform abortions, result in the closure of clinics and “place added stress” on remaining facilities.
About 10,000 women a year seek abortions in the state and the challengers had shown that if the law were to go into effect, only one physician would be able to provide abortions in the state, he said.
“Even working an implausible seven-day week, it would be impossible for him to expand his practice to meet even half the state’s need for abortion services,” deGravelles wrote.
Louisiana appealed the case to the 5th US Circuit Court of Appeals, which had previously upheld the Texas law before the Supreme Court reversed it.
In a 2-1 ruling, a three-judge panel of the circuit court acknowledged in its opinion that it was beholden to the Supreme Court’s opinion, but it distinguished the Louisiana law from the Texas law.
As a part of its reasoning, the majority rejected deGrevelles’ finding that abortion providers in the state had made a “good faith” effort to get the necessary admitting privileges. Instead, they said that “the vast majority largely sat on their hands, assuming they would not qualify.” The majority held that the law would not “impose a substantial burden on a large fraction of women” and that admitting privileges in Louisiana are easier to obtain because the state is less stringent in its requirements.

Kavanaugh dissents

While Kavanaugh cast his vote with the conservatives on the court, he wrote separately to explain his thinking.
Kavanaugh thought the majority’s move to block the law was premature. He noted that Louisiana had already stated that if the justices had allowed the law to go into effect, the state would have commenced a 45-day “transition” period to review how it would impact the clinics.
No provider, the state promised, would be forced to immediately cease operations.
Kavanaugh said essentially that the 45-day period would allow parties to get a true sense of the impact of the law. If the challengers still thought the law imposed an undue burden they could bring their challenges at that time.
Louisiana currently has three clinics where four doctors perform abortions, and one doctor already has admitting privileges as required by the law and the question turns on whether the others would be able to obtain the privileges, he said.
“If they can, then the three clinics could continue providing abortions,” Kavanaugh wrote. “And if so, then the new law would not impose an undue burden for purposes of” Supreme Court precedent, he wrote.
Notably, the other conservative justices, Samuel Alito, Clarence Thomas and Neil Gorsuch did not join Kavanaugh’s dissent, suggesting they may not have agreed entirely with his reasoning.

Roberts again the swing vote

Thursday’s action again demonstrates Roberts’ role as the key vote on abortion in the Supreme Court, said CNN analyst and University of Texas law professor Steve Vladeck.
Justice Anthony Kennedy had cast the deciding vote to block the Texas access law, but was replaced by Kavanaugh last year. On Thursday, Roberts cast the vote to block the Louisiana law.
“Compared to the majority opinion Justice Kennedy joined three years ago striking down a deeply similar Texas law, the fact that Justice Kavanaugh dissented drives home that, on abortion cases, the chief justice is now the swing vote,” Vladeck said.   Source
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