Pubblicato in: Devoluzione socialismo, Giustizia, Trump

Trump. Marcia verso la conquista del vero potere. – Bbc.

Giuseppe Sandro Mela.

2017-04-25.

Supreme Court

Questo articolo tratta una materia specialistica, per comprendere a fondo la quale sarebbe utile avere almeno qualche rudimento di diritto e giurisprudenza americana.

Potrebbero essere suggeribili:

– Horwitz MJ. La trasformazione del diritto americano.

– Tir F. Il writ of certiorari davanti alla Corte suprema. Principi, strategie, ideologie

– Raccolta guidata di sentenze di Common Law. Legal English casebook.

– Tesauro P. Lezioni di diritto pubblico americano.

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Poiché nessuno è tenuto a conoscere diritto e giurisprudenza americana, si allegano i testi integrali di articoli giornalistici esplicativi, chiaramente non giuridici anche se comparsi su riviste specializzate, ed accuratamente scelti tra quelli comparsi su testate fortemente avverse alla Presidenza Trump. I seguenti articoli sono invece propedeutici alla lettura del testo.

Trump. Neil Gorsuch nominato alla Suprema Corte. Sviluppi futuri.

Trump lo aveva detto, ed adesso lo fa. Nuclear Option. – NYT

Trump. White House non chiederà più parere consultivo alla Bar.

Trump. Entro la settimana Mr Neil Gorsuch alla Suprema Corte.

Trump ha vinto. – Princeton University.

Trump. Deobamizza 46 procure federali.

Infine, per comprendere a fondo il tema trattato, suggeriremmo di leggere con attenzione il seguente articolo:

Soros George. Uno stato negli stati. Ecco i suoi principali voivodati.

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«This judicial reformation is being coordinated from Washington by a relatively small team closely aligned around Mr. Leo, who is on leave from the Federalist Society while he helps the White House shepherd the Gorsuch nomination. The network includes John G. Malcolm of the Heritage Foundation and Ann Corkery, a Washington lawyer who along with her husband, Neil, oversees the Judicial Crisis Network» [Above the Law]

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«Most Americans have probably never heard of Leonard A. Leo, who has long served as executive vice president of the Federalist Society, an organization of conservatives and libertarians who “place a premium on individual liberty, traditional values and the rule of law.” But as Mr. Trump begins the process of filling what could be the most federal court vacancies left to any president in nearly a half-century, Mr. Leo is playing a critical role in reshaping the judiciary.

He sits at the nexus of an immensely influential but largely unseen network of conservative organizations, donors and lawyers who all share a common goal: Fill the federal courts with scores of judges who are committed to the narrow interpretation of the Constitution that they believe the founders intended.» [The New York Times]

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«This judicial reformation is being coordinated from Washington by a relatively small team closely aligned around Mr. Leo, who is on leave from the Federalist Society while he helps the White House shepherd the Gorsuch nomination. The network includes John G. Malcolm of the Heritage Foundation and Ann Corkery, a Washington lawyer who along with her husband, Neil, oversees the Judicial Crisis Network and related dark-money groups that also support the cause.»

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«Mr. Trump already has 124 judgeships to fill — a backlog created by Senate Republicans who blocked the confirmation of many of President Barack Obama’s nominees. That includes 19 vacancies on the federal appeals courts.

Because of the age of many judges today, the White House expects between 70 to 90 appeals court positions to open up over the next four years. That would give Mr. Trump the opportunity to fill anywhere from one-third to half of all appellate seats — a profound impact considering that those courts are often the final word on thousands of cases that never reach the Supreme Court.»

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«Trump already has the opportunity to replace about 136 judges who have either retired or are scheduled to retire. That’s about 16 percent of the federal judiciary that’s either currently vacant or scheduled to be vacant. And his lower court nominations could arguably be more transformative than Gorsuch’s nomination, which will merely preserve the high court’s status quo

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«And as Reagan did by nominating Justices Scalia and Anthony M. Kennedy, Mr. Leo and his conservative colleagues have looked for judges who can serve as long as possible. “Young is good,” Mr. Leo said. “There will be an opportunity for a transformation of the federal bench»

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«Young circuit and district judges go on to become young Supreme Court nominees. Judge Gorsuch, 49, is a perfect example: he joined the Tenth Circuit at the tender age of 38.»

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«Trump has a backchannel to Kennedy: their kids. As Politico reports, Donald Trump Jr. and Justin Kennedy are known to run in the same real-estate circles. What’s more, the Trump administration brought Gregory Kennedy on as a senior financial adviser during the transition» [Washington Examiner]

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«I think the progressives of the Democratic Party have been less vigilant and vigorous than the right»

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Riassumiamo in sintesi, enunciando i punti di interesse.

– Nel sistema giudiziario americano i giudici delle corti federali sono in parte, piccola, elettivi,  ed in larga parte di nomina presidenziale.

– Una quota minima è nominata pro tempore, mentre la maggior parte è nominata a vita.

– La nomina compete al presidente degli Stati Uniti, salvo ratifica del Senato.

– Sono ora vacanti, o di prossima disponibilità, 136 posti di giudice, e quasi altrettanti posti potrebbero liberarsi entro la fine del mandato del Presidente Trump. Un 16% subito ed altrettanti verosimili entro qualche anno.

– Dal momento che il Senato ha posto in essere la “nuclear option“, il Senato può ratificare le nomine a maggioranza semplice.

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Da tempo Mr Trump si è organizzato tramite Mr Leonard Leo e la Federalist Society e numerosi “unseen network of conservative organizations” un coordinamento di giovanissimi magistrati, fatti crescere per essere poi pronti al momento opportuno.

La direttiva sarebbe quella di nominare giudici federali giovanissimi: il Giudice Gorsuch fu nominato al Tenth Circuit che aveva appena 38 anni.

È evidente come nominare un quarantenne in una Corte federale significa che quel posto resterà occupato per quaranta anni consecutivi, in termini medi.

L’obiettivo dichiarato è quello di assumere le due maggioranze necessarie: quella di osservanza partitica repubblicana, in primis, quindi quella di concezione giurisprudenziale di applicazione testuale, non interpretativa, dei canoni costituzionali. In altri termini: via i democratici e via liberal.

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Sta emergendo un grandioso piano di normalizzazione a lungo termine della magistratura americana nei suoi gangli vitali. Il controllo della Magistratura federale è infatti conditio sine qua non per poter governare, dato che in essa risiede di fatto il vero potere di governo degli Stati Uniti.

Operazione necessaria per controbattere eguale iniziativa del liberals democratici, che però la hanno condotta in modo particolarmente maldestro per loro troppa supponenza.


Bbc. 2017-04-04. How Trump can transform US court system [Video]

This week, the final votes will be taken on President Trump’s nominee to the Supreme Court, Neil Gorsuch.

But Donald Trump’s judicial influence could be far broader than naming a Supreme Court justice.

He could replace one-third of the judiciary in four years, giving him more power to influence the US federal court system than any president in recent memory.

The BBC’s Jane O’Brien explains how.


Salon. 2017-02-23. Trump may get most federal judicial appointments since 1950s

The Supreme Court seat wasn’t the only seat that was hijacked by Senate Republicans.

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Right now, the only force in American government that’s stopping Donald Trump’s excesses is the federal judiciary, as seen in decisions by a half-dozen different benches concluding his travel ban from Muslim countries was unconstitutional. But that line of defense could crumble, and is certainly poised to change under this White House, because Trump is positioned to fill more federal court vacancies than any past president since the late 1950s, according to legal analysts.

“The fact that we have so many of these vacancies right now is due to the fact for the past two years the Senate [GOP] majority refused to do anything for the consideration of not only [Supreme Court nominee] Merrick Garland, but also the lower court nominations,” said Lena Zwarensteyn, American Constitution Society for Law and Policy director of strategic engagement. “This leaves us in the unfortunate position that we are in, with 14 percent of the federal judiciary bring vacant.”

“Certainly, Trump has an opportunity to fill these vacancies,” she continued. “But I think it is going to be incumbent upon everyone to be paying close attention to not only who he is nominating to the Supreme Court, but to the district court and circuit courts of appeals that are really the courts where a majority of people’s lives are affected by the decisions that are made there.”

Besides the open Supreme Court seat that Republicans, led by Senate Majority Leader Mitch McConnell, refused to act on during Obama’s last year in office, there are currently 112 vacancies across the federal bench. President Obama made 54 nominations to those seats that Republicans refused to confirm, including several dozen where they never held a final vote. In short, the GOP mounted a judicial coup.

“Obama had 54 pending nominees—nominees that had been named publicly but got to varying points in the process but had their nominations expire on January 3rd because of inaction,” said Zwarensteyn. “Of the 54 nominees, 25 nominees were simply waiting for their second floor vote. So it could have taken only a few moments for the Senate to have given their final up-or-down vote. There were eight nominees who were waiting to be reported out of committee, again something that takes very little time in the executive business meetings that the Senate Judiciary Committee holds. And then 21 nominees were waiting for confirmation hearings—some for well over a year.”

In addition to these vacancies, there are also large number of federal judges age 70 or older, who are likely to retire in the next few years. Taken together, the federal judgeships overtly stolen by the GOP from Obama and the pending retirements, means that Trump is positioned to reshape the court in a manner not seen in several generations.

“The Senate in the last two years only confirmed 22 Article Three [federal] judges,” Zwarensteyn said. “The last time a number of judicial confirmations was that low in the last two years of a presidency, you have to go back to [President Dwight] Eisenhower and he had 44 judicial confirmations and that was at a time when the federal judiciary and the population generally was significantly lower. So they really hit a low mark there.”

“It’s also really telling whose confirmations expired,” she continued. “To President Obama’s credit, he did a significant amount of work to make sure that the bench was diversified demographically as with professional experience… Of those 54 nominees that were pending, a significant majority would have broken barriers to some extent, whether they were a public defender, the first Asian-Pacific American, for example, in the Texas District Courts… the first African-American woman to serve on the Third Circuit, you would have had even possibly the first Muslim to serve on the federal courts as well.”

It goes without saying there is little chance that Trump’s appointments will follow Obama’s template, given his overwhelmingly white male cabinet. If anything, it appears that Trump will only appoint those most willing to rubber-stamp presidential and congressional actions, given his continuing pejorative remarks slamming federal judges who have voided his immigration orders as unconstitutional.

Just consider this diatribe from Thursday’s press conference where Trump attacked judges who drew the line on his sloppily written immigration ban on travelers from seven Muslim countries.

“The court system has not made it easy for us,” Trump said. “And [we] are even creating a new office in Homeland Security dedicated to the forgotten American victims of illegal immigrant violence, which there are many. We have taken decisive action to keep radical Islamic terrorists out of our country. Though parts of our necessary and constitutional actions were blocked by a judge’s—in my opinion incorrect and unsafe—ruling, our administration is working night and day to keep you safe, including reporters safe, and is vigorously defending this lawful order.”

People may pay particular attention to the Supreme Court, but it only hears about 75 cases a year. In contrast, federal appeals courts receive 55,000 filings annually and district courts receive about 400,000 lawsuits and complaints annually. This is where most of the controversies in business and civil rights get settled, and where the difference between more progressive and conservative views matter, on issues ranging from voting rights to government regulations to consumers’ ability to counter corporate excess.

“The Supreme Court is really important, but so are the other federal court appointments.” said Zwarensteyn. “They’re the ones that are often finding facts that are really important for the dispensation of justice. It’s really important that people pay attention to who is on the bench. It can really make a difference, whether the courthouse door will be open to everybody, or whether they are opening it a little bit wider for those corporate interests.”

But right now, the president most openly hostile to federal courts in decades is poised to appoint more judges than any president in a half-century—including the dozens of seats stolen the GOP stole from his predecessor.


Above the Law. 2017-03-20. Lower-Court Judicial Nominations By The Trump Administration

Because the Supreme Court isn’t the only game in town.

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Over the next few days, all eyes will be on the U.S. Supreme Court, now that confirmation hearings for Judge Neil Gorsuch are underway. You can follow the action by following our Twitter feed: @ATLblog.

But savvy observers of the federal judiciary, including readers of Above the Law, know that SCOTUS isn’t the only game in town. The Court hears around 80 cases each Term, while the federal courts of appeals receive more than 50,000 new cases each year. So for the vast, vast majority of appeals, the circuit court is the last stop.

And for the vast, vast majority of lawsuits filed in federal court, the trial court is the last stop. The federal district courts get more than 350,000 new cases each year. Most of these cases will never make it to an appellate court, meaning the district judge gets the final world.

So the brilliant women and men who serve as federal judges on the lower courts wield a great deal of power. And President Donald Trump, who will get to fill a great many judgeships, could have a lasting legacy on the federal judiciary.

How is the Trump Administration going about the process of picking these judges? Over the weekend, Eric Lipton and Jeremy W. Peters had a very interesting New York Times piece about the subject. They write:

Most Americans have probably never heard of Leonard A. Leo, who has long served as executive vice president of the Federalist Society, an organization of conservatives and libertarians who “place a premium on individual liberty, traditional values and the rule of law.” But as Mr. Trump begins the process of filling what could be the most federal court vacancies left to any president in nearly a half-century, Mr. Leo is playing a critical role in reshaping the judiciary.

He sits at the nexus of an immensely influential but largely unseen network of conservative organizations, donors and lawyers who all share a common goal: Fill the federal courts with scores of judges who are committed to the narrow interpretation of the Constitution that they believe the founders intended.

Okay, I have to quibble a bit with the reference to “narrow interpretation” of the Constitution. I have the same problem with this term that the late Justice Antonin Scalia had with the theory of “strict constructionism” (which was often, and erroneously, attributed to him). As Justice Scalia explained, “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

And I must also quibble with the focus on what “the founders intended.” Most current adherents of originalism — including the late Justice Scalia, and many Fed Soc-type judges — focus more on “original public meaning” as opposed to “original intent.”

I do not quibble, however, with Lipton and Peters when it comes to the huge influence of Leonard Leo and the Federalist Society on judicial nominations. President Trump has publicly thanked both the Society and Leo on multiple occasions when discussing the judiciary (including the announcement of Judge Gorsuch as his SCOTUS nominee).

The Federalist Society and Leonard Leo are not the only power brokers here, as the Times notes:

This judicial reformation is being coordinated from Washington by a relatively small team closely aligned around Mr. Leo, who is on leave from the Federalist Society while he helps the White House shepherd the Gorsuch nomination. The network includes John G. Malcolm of the Heritage Foundation and Ann Corkery, a Washington lawyer who along with her husband, Neil, oversees the Judicial Crisis Network and related dark-money groups that also support the cause.

The reference to “dark-money groups” might sound sinister to some, but it shouldn’t. It’s just a term of art referring to nonprofit organizations that aren’t legally required to disclose their donors. Given the polarized times in which we live, where a person or company can get protested or boycotted by either the left or the right for taking a stance, it’s not hard to understand why someone might want to donate anonymously to a group that gets involved with hot-button issues.

How many judgeships might President Trump end up filling: Per the NYT:

Mr. Trump already has 124 judgeships to fill — a backlog created by Senate Republicans who blocked the confirmation of many of President Barack Obama’s nominees. That includes 19 vacancies on the federal appeals courts.

Because of the age of many judges today, the White House expects between 70 to 90 appeals court positions to open up over the next four years. That would give Mr. Trump the opportunity to fill anywhere from one-third to half of all appellate seats — a profound impact considering that those courts are often the final word on thousands of cases that never reach the Supreme Court.

What is the Trump Administration looking for in its judges? Lipton and Peters report:

Mr. Trump gave broad discretion to Mr. Leo and his colleagues. Mr. Trump’s most important criterion, these lawyers said, was that he wanted judges who were “not weak” and of “high quality.”

Their approach in coming up with candidates was similar to President Ronald Reagan’s. “They had this very sophisticated, detailed frame of reference from which they could begin to say, ‘O.K., well, who understands these things like we do?’” Mr. Leo said in an interview, referring to the Reagan era. “As opposed to an administration that might sit around and say, ‘Who’s a really smart lawyer who’s been really accomplished?’ Or, ‘Hey, what about my frat buddy from 1964?’”

And as Reagan did by nominating Justices Scalia and Anthony M. Kennedy, Mr. Leo and his conservative colleagues have looked for judges who can serve as long as possible. “Young is good,” Mr. Leo said. “There will be an opportunity for a transformation of the federal bench.”

This is absolutely the conservative playbook. Young circuit and district judges go on to become young Supreme Court nominees. Judge Gorsuch, 49, is a perfect example: he joined the Tenth Circuit at the tender age of 38.

If I have one overall quibble with the Times piece, it’s the “vast right-wing conspiracy” undertone to the whole article. There’s nothing wrong with conservatives understanding the importance of the courts and exercising their First Amendment rights to fill those courts with like-minded women and men. If progressives have a problem with that, then they should do the same. As Senator (and former SCOTUS clerk) Richard Blumenthal told the Times, when it comes to the judiciary, “I think the progressives of the Democratic Party have been less vigilant and vigorous than the right.”

Senate Judiciary Chairman Chuck Grassley wants to move quickly on the Gorsuch nomination, hoping to have the committee vote in late March or early April. Republicans hope to have Gorsuch confirmed before the two-week recess beginning on April 7.

So it won’t be long before the Trump Administration and the Senate Judiciary Committee start filling vacancies in the lower courts. Indeed, word on the street is that the White House Counsel’s office has already started interviewing possible judicial nominees. As one might expect, the interviewees are skewing young — many are only in their 40s — and conservative.

I’d like to start reporting on the process of picking judicial nominees for the circuit and district courts, including possible nominees for prominent openings. If you have information to share, please email us, subject line “Judicial Nominations,” or text us (646-820-8477), including the words “Judicial Nominations” somewhere in your text. Thanks.


Washington Examiner. 2017-03-29. Trump’s other judicial nomination

Emory Law Professor Jonathan Nash writes in The Hill today on President Trump’s other judicial nomination — not Neil Gorsuch, but 47-year-old federal district Judge Amul Thapar of Kentucky, whom he has just quietly nominated to the 6th Circuit Court of Appeals.

Thapar, who is of Indian descent, was the first American of South Asian extraction to be appointed to the federal bench in 2008. He is on Trump’s famous list of judges he’d consider appointing to the Supreme Court. Nash notes that this promotion, early in the Trump presidency, “lends support to the idea that Thapar is a front-runner for a second Supreme Court vacancy, were one to open.”

The very thought of Trump appointing an “Indian judge” might be amusing given his previous comments on other judges‘ heritage. But you could view it as his way of softening one of his most divisive and outrageous comments during the 2016 election cycle.

Trump already has the opportunity to replace about 136 judges who have either retired or are scheduled to retire. That’s about 16 percent of the federal judiciary that’s either currently vacant or scheduled to be vacant. And his lower court nominations could arguably be more transformative than Gorsuch’s nomination, which will merely preserve the high court’s status quo.

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