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SCOTUS

Supreme Leak— A Law Clerk’s Perspective

By | Dobbs, Legal, News and Events, SCOTUS | No Comments

By Alexandra McPhee, CWA’s Director of Government Relations

 

Working as a judicial law clerk for the Supreme Court of Virginia remains one of the greatest experiences of my personal and professional life. I had the privilege to work under the tutelage of Justice D. Arthur Kelsey and learned immensely from his wealth of experience. I especially enjoyed the fellowship and the opportunity to learn with my co-clerks, who were women deeply committed to their faith and to their clerkship duties.

 

I thought of them as I processed the news of the unethical leak of the Dobbs decision at the United States Supreme Court this week. I remember the great weight I felt as a clerk for the responsibility that I and all judicial employees had to protect confidentiality within the court. Throughout my clerkship and for a period after it, the court set the high expectation to refrain from behaving in any manner that undermined public perception of the court’s impartiality. That included disclosure of any nonpublic information or internal deliberations. This is crucial to the proper administration of justice.

 

It saddens me that the recent events brought U.S. Supreme Court Chief Justice John Roberts to a point of referring to a “betrayal” within the Court. He is right, of course. It is inexcusable. The leaker accomplished absolutely nothing. He or she hurts their cause and the institution of the Court.

 

Maybe this person thought that the benefit of fleeting press coverage outweighed the cost of long-term broken trust. Worse yet, perhaps they sought to intimidate the very justices and institution they serve. As result, the American people are being thrust into unfair speculation and innuendo that have the potential to undermine justice for years to come.

 

That is not to take anything away from this important decision that looks like it will go the right way, that is, according to proper constitutional standards. Abortion is a tragedy every time. The judicial stranglehold on pro-life legislation has enabled the destruction of more than 62 million unborn lives since the Court decision in Roe v. Wade that erroneously created a constitutional right to abortion.

 

That is why it is time for Roe to go. Its reversal will once again give proper meaning to the words engraved above the Court’s front entrance: “Equal Justice Under Law.”

 

One of the unofficial slogans at Concerned Women for America (CWA) is the Book of Esther’s use of “for such a time as this.” It was a call for Queen Esther to consider whether she had been placed in that specific place and time to bring about the change that could save her people. She received the prompt in circumstances where her obedience meant risking her life, much less her livelihood.

 

We believe the Lord has given us the same prompt today regarding deliverance for the unborn. Women like CWA founder Beverly LaHaye—who took on the challenge to answer God’s call and speak for the unborn—know that there is a price to pay. The hundreds of thousands of conservative women across this country who support us today understand the risk of speaking truth in today’s day and age. They understand that this week’s breach of trust is disheartening, but they are resolute. They have worked for such a time as this.

 

Nothing can interrupt the divine plan for justice for the unborn or the women that the Lord is willing to use to see that end.

Prayer at the Supreme Court

By | News and Events, SCOTUS, Uncategorized | No Comments

One of the great evangelists of the Nineteenth Century, Dwight L. Moody, famously said, “The Christian on his knees sees more than the philosopher on tiptoe.” The reality of those words came to life for us this week as the Supreme Court heard oral arguments in Kennedy v. Bremerton School Dist., where the government punished a Washington State high school football coach for the sole fact that he took a knee at midfield to say a brief, personal, private prayer after football games. For that, Coach Joe Kennedy was fired.

With everything going on in the world, can you imagine our government is concerned with one coach praying privately at midfield after football games? Think of how desperate our youth are for good role models. Think of how many men need father figures to teach them the life skills needed to be good citizens.

Think of how many objectionable things public schools are not only allowing but encouraging inside public classrooms. Yet, a fleeting, private prayer is beyond the pale, apparently.

CWA General Counsel Mario Diaz and CWA Director of Government Relations Alexandra McPhee with Coach Kennedy and his wife.

Concerned Women for America (CWA) has stood firmly in support of Coach Kennedy and our constitutionally protected religious freedoms throughout the years, and we were proud to lift our voice in support today as we prayed in front of the United States Supreme Court in Washington, D.C., while arguments where being heard inside the courtroom.

We are thankful that Paul Clement, the veteran constitutional appellate advocate, presented Coach Kennedy’s case on behalf of First Liberty. He was superb.

Much of the argument centered on government “coercion,” as if the government were, through the coach, forcing students to pray. But this complete fiction by the state is impossible to reconcile with the facts as presented. Clement exposed the point using an analogy:

[T]hink about what happens when a player gets injured on the field. I mean, it’s common practice at all levels of the game, public school, private school, you take a knee. The coach takes a knee. The players take a knee. Many of them presumably are praying for the player’s health. Some of them are not. Some of them are –have their own religious traditions. But none of that is coercion, not in a real sense, and none of it violates the Establishment Clause.  

It really is that simple. Justice Brett Kavanaugh asked about a similar hypothetical pressing on the limits of government control, “[T]he question is, how far does that go? The coach does the sign of the cross right before the game. Is that –could a school fire the coach for the sign of the cross right before the game?” The answer was revealing. Richard Katskee of Americans United for Separation of Church and State, who argued the case for the school district, said candidly that “if the coach is doing it while not making himself the center of attention at the center of the field, it’s perfectly fine.” Justice Kavanaugh expressed his frustration with such a frivolous argument. “I don’t know how we could write an opinion that would draw a line based on not making yourself the center of attention as the head coach of a game.”

In rebuttal, Clement drove home some of the facts of the case that make the school district’s religious retaliation very dangerous. Coach Kennedy was reprimanded for his conduct (his prayer) in two specific games where, to the surprise of many listening to the arguments, no one (no player) joined him in that prayer. If that was supposed to be a form of coercion, it was not very effective.

The other side tried to argue the case should be sent back to the lower court, yet again delaying what should be a resounding defeat. Clement appealed to the Court with a powerful example:

[M]y client has already waited six years to get his job back. And if you imagine the parallel for this is a race case where the lower courts, both lower courts, said the sole reason the government acted was because of race. But yet, we think it’s okay because there’s this compelling interest. If this Court took that case up and said there’s nothing to the compelling interest, it wouldn’t send it back down to see if there was some other reason when the courts had already found the sole basis for the action was on the basis of race. Here the record is clear, two courts that didn’t agree with much of what we said, said the sole basis for the government’s reactions –actions here were religion. That is not something that should stand.

It shouldn’t. Let us pray that the Supreme Court vindicates Coach Kennedy and protects religious freedoms for all Americans, regardless of faith. A decision is expected by the end of the Court’s term in June.

Ketanji Brown Jackson Confirmed to the Supreme Court

By | News and Events, Press Releases, SCOTUS | No Comments

For Immediate Release

April 7, 2022

Contact: Katie Everett, Press Secretary

[email protected]

571-420-2488

Washington, D.C. — Moments ago, the United States Senate confirmed Judge Ketanji Brown Jackson to be an Associate Justice of the Supreme Court by a vote of 53-47. Penny Nance, CEO and President of Concerned Women for America Legislative Action Committee (CWALAC), said:

“The hundreds of thousands of women I represent are disappointed in the outcome of this nomination. At every turn during the confirmation process, Judge Jackson demonstrated an unwillingness to be truthful about women and the law. How can we trust a judge to protect women’s rights, when she can’t define the word ‘woman’?

“Judge Jackson also refused to be forthright about her judicial philosophy—perhaps the most important criteria for us as we look at the qualifications for a Supreme Court Justice.

“Despite multiple opportunities to justify her consistent under-sentencing of criminals in child pornography cases, Judge Jackson failed to give a satisfactory rationale that explained her sentencing choices. And with Democrats refusing to release the full records of her time at the U.S. Sentencing Commission, the American people are left with more questions than answers. No nominee should be approved with such a troubling record.

“Inexplicably, and most frustrating of all, the Senate did not utilize the full time available for debate to discuss the negative consequences of this nomination. There is just no excuse for that.

“Having said that, we are thankful for the Senators who stood strong and voted against the nominee and intend to make sure that our supporters are fully aware of their senators’ performance on this crucial nomination.”

###

Concerned Women for America Legislative Action Committee is the legislation and advocacy arm of Concerned Women for America, the Nation’s largest public policy organization for women; we are dedicated to promoting Biblical values and Constitutional principles. More information is available at ConcernedWomen.org

Senators Disappoint Millions of Women by Voting to Confirm KBJ

By | News and Events, Press Releases, SCOTUS | No Comments

For media inquiries, contact:  
Katie Everett
(571) 420-2488
[email protected]

WASHINGTON, D.C. – Penny Nance, CEO and President of Concerned Women for America Legislative Action Committee (CWALAC) denounces the actions of Sens. Collins (R-Maine), Murkowski (R- Alaska), and Romney (R-Utah):  “Concerned women across the country want to know how you can stand up and defend the truth about women by supporting  Supreme Court nominee Ketanji Brown Jackson, who is not willing to be truthful about women and the law. This is a matter of judicial philosophy. Faced with the Biden agenda and a Democrat party that rejects our status, women today are looking for champions. You have disappointed millions of American women.”

Catastrophic Day 2 for Ketanji Brown Jackson

By | Breyer, Judicial Nominations, Legal, News and Events, SCOTUS, Vacancy | No Comments

Early in the second day, the focus of the hearings for Ketanji Brown Jackson’s (KBJ) nomination to the United States Supreme Court was on a concerning pattern that has emerged where KBJ has given low sentences to defendants in possession of child pornography. Having given ample room for KBJ to explain her thought processes in these cases, we can say the explanations we heard were simply unsatisfactory.

Sen. Josh Hawley (R-Missouri), who had given KBJ the specific cases he was interested in, drilled down on one particular case that illustrates the problem. The clip is long, but it is eye-opening, I commend it to you in its entirety:

It is troubling, no doubt. Again, she was given time to prepare to answer questions about those specific cases, so to try to obfuscate the issue with a lack of record is not reasonable. The concern is compounded by the fact that Democrats have denied the Republicans’ requests to release the records from KBJ’s time in the Sentencing Commission.

Even Judiciary Chairman Sen. Dick Durbin (D-Illinois) seemed to agree with Sen. Hawley that the case was unacceptable and suggests it is Congress fault. He suggests that they need to pass a law to prevent judges like KBJ from enacting sentences like she did in that case. Watch:

Her performance devolved from there. She could not answer Sen. John Kennedy (R-Louisiana) when he asked her when does life begin, even though her advocacy for pro-abortion groups is well established. How can someone who doesn’t know when life begins fairly decide when life can be terminated?

The issue was explored further by Sen. Marsha Blackburn (R-Tennessee) who got some incredible confessions out of KBJ as she tried to distance herself from the language she approved of in a brief she cowrote calling pro-life advocates a “hostile, noisy crowd of ‘in-your-face’ protesters.” She apparently didn’t really mean it. She was just “lawyering,” you know. Take a look at this troubling exchange. Take special note of her admission that the Constitution says nothing about abortion, even as she apparently supports the Court in making up such rights by judicial fiat.

But the lowest point of the evening came when Sen. Blackburn tried to address the issue of gender with KBJ. The nominee could not even provide a definition of what is a woman. Apparently, one needs to be a biologist to define the term. Take a look for yourself:

How is a justice supposed to stand up for women’s rights if she cannot even tell you what a woman is? Her non-answer is revealing.

Concerned Women for America (CWA) has been at the hearings, monitoring closely every second. We have given her a fair hearing. But the bottom line after day two is that Judge Ketanji Brown Jackson simply cannot be trusted. Therefore, how could she be entrusted with a lifetime appointment to the nation’s highest court in the land? There are still a couple more days of hearings, but the damage she has done today seems too much for anyone to overcome.

Stay tuned.

Ketanji Brown Jackson – Judge or Policy Maker?

By | Breyer, Judicial Nominations, LBB, Legal, News and Events, SCOTUS, Vacancy | No Comments

The first day of the hearings of Judge Ketanji Brown Jackson’s (KBJ) nomination to the United States Supreme Court is over. Members of the Senate Judiciary Committee got an opportunity to make opening remarks, and then we heard the opening statement from KBJ.

In his opening remarks, Sen. Ted Cruz (R-Texas) set up the hearings well by addressing why nomination hearings have become so controversial. Judicial activists taking on the role of legislators has much to do with it. Here is the clip:

This is the central question to assess in looking at this nomination. Will she be the type of justice that sees her role as one who brings “progress” to the law, pushing legal interpretation beyond the text of the law and the Constitution in order to implement policies that they personally believe are important.

Roe v. Wade is the classic example of the justices reaching beyond the text of the Constitution in order to implement changes they personally deem important. KBJ’s support for abortion “rights” is alarming, and it is one area that we hope we can hear more about during the hearings. Note the difference. The support of the policy is not the issue. The use of legal interpretation as a way to promote social or cultural change is the crux of the matter.

The Court is primed to hear some crucial cases in the coming years in which this type of judicial philosophy will be crucial to the protection of our liberties. We were grateful for Sen. Marsha Blackburn (R-Tennessee) for bringing up some the issues of parental rights and women’s rights during her opening remarks. Here’s that important clip:

Sen. Josh Hawley (R-Missouri) also raised some important questions regarding KBJ’s work as a trial judge deeply involved with sentencing matters. He listed several concerning cases related to the very sensitive issue of child pornography. As Sen. Hawley ended his opening remarks, we look forward to hearing the nominee’s explanation in the next few days.

Finally, we were glad Sen. Cruz heard our request for some accountability on the incredible injustice done to Justice Kavanaugh and the numerous blatant violations of Senate procedures committed for purely partisan reasons. This fact should never escape conservative senators’ minds going forward until some accountability is implemented.

Concerned Women for America (CWA) is at the hearings right now meticulously monitoring this nomination and will have updates for you throughout the week as we get into the question and answers portion of the hearings which we hope will help to shed more light on the concerns about the type of justice KBJ would be.

Nance: Joe Biden’s Commitment to Diversity Just a Virtue Signal

By | CEO, Judicial Nominations, Legal, News and Events, SCOTUS, Vacancy | No Comments

President Joe Biden has announced his pick for the U.S. Supreme Court, Judge Ketanji Brown Jackson, and has received widespread acclaim and praise for nominating the first African-American woman to the nation’s highest court. Few have mentioned that in 2005, then-Senator Joe Biden almost single-handedly destroyed the career and reputation of an accomplished, brilliant jurist who also happened to be an African-American woman.

Read the latest piece from Penny Nance, Concerned Women for America‘s CEO and President.

Conservatives Should Demand Respect on KBJ Nomination

By | Breyer, Judicial Nominations, Legal, News and Events, SCOTUS, Vacancy | No Comments

“I’m going to remember this,” he vowed.

During the Kavanaugh confirmation hearings, Sen. Lindsey Graham galvanized conservatives everywhere when he stood up against the injustices being committed against “a good man.” He spoke for millions of Americans who were outraged by the unjustified antics they were witnessing in the Senate Judiciary Committee when he called the hearings “the most unethical sham since I’ve been in politics.”

Conservatives want that fire back as the Senate considers Judge Ketanji Brown Jackson, President Joe Biden’s nominee to replace Justice Stephen Breyer on the Supreme Court — not only from Graham but from all conservative senators.

Are they going to put up with the same malicious shenanigans by liberal radicals with this nomination? Some Democrats have already started to accuse GOP senators of racism before the hearings have even started. Conservatives should not put up with it. Not after Kavanaugh…

Click here to read Mario’s op-ed as featured exclusively on The Western Journal.

 

No Shortcuts on Supreme Court Nomination

By | Breyer, Legal, SCOTUS, Vacancy | No Comments

President Joe Biden has announced Judge Ketanji Brown Jackson as his pick to replace Justice Stephen Breyer at the United States Supreme Court. I will have more for you on Judge Jackson’s record in the coming weeks, but right now it is crucial for us to keep our senators accountable for their essential constitutional role of “advice and consent.” There should be no shortcuts allowed for President Biden’s nominee.  

All senators should ensure they can have a private, in-person meeting with Judge Jackson to get a sense of her judicial philosophy, her character, and judicial temperament. It is not enough to examine the record on paper. This private meeting allows the senator to assess the nominee at a deeper level, without the theatrics and remarks prepared for the cameras.

President  Biden has said, “The people that I would appoint to the Court are people who have a view of the Constitution as a living document.” This is deeply disturbing. The judicial philosophy that believes the Constitution is a living document that changes with the times creates judicial activists who also believe unelected judges are the ones who get to choose these arbitrary constitutional changes. It is the judicial philosophy of personal policy preferences.

Does Judge Jackson ascribe to that judicial philosophy? Presumably, she does because President Biden selected her. So, senators should get that answer face to face and assess her judicial philosophy beyond the coached answer they are likely to get in the hearings.

President Biden has said that he wants someone with “an expansive view of the Constitution.” Does Judge Jackson share that progressive view that essentially destroys the Constitution by making it malleable to the latest political trends?

Is she committed to a particular policy position on abortion? Again, President Biden has said plainly that he does have a litmus test on abortion.

Unlike conservative nominees who are always asked to be faithful to the text of the Constitution as written, President Biden wants commitment on particular issues, so Judge Jackson should answer those questions. It is up to senators to ask those critical questions.

They must ask about her overwhelming support from radical leftist groups.

The current political climate will demand strategic engagement from you and me on this nomination because senators tend to be pragmatic. They could, seeing the numbers in the Senate, relegate this nomination to the backburner allowing the nominee to sail through, without proper vetting, thinking others are doing their due diligence. Do not allow them to do that. Demand that they be active participants in the vetting process of this nominee every step of the way.

Full Senate engagement is needed to stand up for our values beyond just senators on the judiciary committee. No stone should be left unturned.

The Constitutional standard must be defended beyond political and pragmatic calculations.

Troubling Radical Left Support Drives Ketanji Brown Jackson Choice

By | Breyer, Legal, News and Events, SCOTUS, Vacancy | No Comments

Three choices were reported to be at the top of President Joe Biden’s list of possible Supreme Court nominees. Judge Michelle Childs appeared to have more broad support, even among some Republicans. But the radical left demanded Judge Ketanji Brown Jackson. Predictably, they got their wish.

The radical group, Demand Justice, who shamefully had trucks around Washington, D.C., asking Justice Stephen Breyer to retire, along with other radical groups like MoveOn and Indivisible, had called for Judge Brown in no uncertain terms. The move prompted Sen. Lindsay Graham (R-South Carolina) to say, “The radical Left has won President Biden over yet again.”

So, who is Judge Ketanji Brown Jackson? Here is a basic rundown.

She was born in Washington, D.C., on September 14, 1970. She is 51. Last year, she became a judge for the United States Court of Appeals for the District of Columbia Circuit, taking the seat left vacant by U.S. Attorney General Merrick Garland. Even then, she had strong Republican opposition, being confirmed by a 53-44 vote. Only three Republican Senators, Susan Collins (Maine), Lisa Murkowski (Alaska), and Lindsey Graham (South Carolina), voted in favor.

Before that, she was a judge at the U.S. District Court in Washington, D.C., after being nominated by President Barack Obama and was the Vice Chair of the United States Sentencing Commission. She also clerked for Justice Breyer after graduating from Harvard Law School.

After her clerkship with Justice Breyer, Judge Jackson went to work for Goodwin Procter, a large law firm out of Boston, where she helped write an amicus (“friend of the court”) brief representing NARAL Pro-Choice America, the League of Women Voters, and the Abortion Access Project of Massachusetts, among others. The case was McGuire v. Reilly, a 2001 case where she supported a law targeting pro-life advocates trying to counsel women at abortion clinics.

Her pro-choice advocacy work has earned her the support of Big Abortion, including Planned Parenthood, NARAL, and the National Women’s Law Center. They are confident she will be willing to circumvent the Constitution to promote abortion “rights.”

The same can be said for the endorsements of pro-LGBTQ groups, like the Human Rights Campaign, who are pushing the boundaries of laws protecting women in sports, women’s shelters and prisons, and multiple other areas.

Her commitment to labor unions has also been held as an important asset, especially when comparing her to other nominees. She was cheered for her enjoining an executive order by President Trump that sought to hold federal employees accountable. She was later overruled unanimously by a D.C. Circuit panel that included an Obama appointee. But this seems to boost her credibility among activists looking for judges who will be “progressive” in their ruling, despite what may be required by the text of the law and judicial procedure.

There are concerns about her religious liberty commitments, also. At her D.C. Circuit hearing, Sen. Josh Hawley (R-Missouri) asked her about her involvement with a Christian school. Though she said she believed in religious liberty, she felt the need to distance herself from the Christian teachings relating to marriage that were referenced. This is an area that the Senate must fully explore.

The full review of her record is just starting, so we will have much more to come. But the preliminary report must be concerning for all freedom-loving Americans who want judges who will show the judicial restraint envisioned by the Constitution, instead of judges who interject themselves on every political and socially controversial issue with which “we the people” have vigorous disagreements to push their personal policy preferences.

U.S. Supreme Court Nominee Ketanji Brown Jackson

By | Breyer, Legal, News and Events, SCOTUS, Vacancy | No Comments

Experience

  • U.S. Court of Appeals for the District of Columbia Circuit
  • U.S. District Court for the District of Columbia
  • United States Sentencing Commission Vice Chair
  • Assistant Federal Public Defender, Appellate Division
  • Law Clerk for Justice Stephen Breyer at the U.S. Supreme Court, Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit, and Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts

Education

  • JD., cum laude, from Harvard Law School in 1996
  • Supervising editor of the Harvard Law Review
  • B., magna cum laude, in Government from Harvard-Radcliffe College in 1992

Involvement

  • Board of Overseers of Harvard University
  • American Law Institute
  • C. Circuit Historical Society
  • United States Supreme Court Fellows Commission

Notable Cases

  • Fed. of Gov. Employees, AFL-CIO v. Trump – unanimously reversed by the D.C. Circuit for ignoring clear jurisdictional requirements to enjoin an executive order by President Donald Trump seeking to make it easier to hold federal workers accountable.
  • Make the Road New York v. McAleenan – unanimously reversed by D.C. Circuit. Judge Neomi Rao would have gone further and dismissed the case, believing Judge Jackson overstepped the bounds set by Congress, saying, “One of the few checks on the independent judiciary comes from Congress’s ability to set the jurisdiction of the inferior federal courts.”
  • Committee on the Judiciary v. McGahn – ordered White House counsel to President Donald Trump, Don McGahan, to testify before the House Judiciary Committee as part of its investigation into Russia’s involvement in the 2016 election saying, “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
  • McGuire v. Reilly— authored an amicus brief representing Planned Parenthood, NARAL Pro-Choice America, the Religious Coalition for Reproductive Choice, and the National Women’s Law Center, among other radical groups in supporting a “buffer zone” law that targeted pro-life advocates wishing to counsel women in front of abortion clinics.

Click here for a .PDF version of this one pager on U.S. Supreme Court Nominee Ketanji Brown Jackson

Penny Nance statement on Justice Breyer’s retirement

By | Judicial Nominations, News and Events, Press Releases, SCOTUS | No Comments

Penny Nance, CEO and President of Concerned Women for America (CWA), the largest public policy organization for women in the country, had this to say on the retirement announcement of Associate Justice of the United States Supreme Court Stephen Breyer:

“Justice Breyer’s announcement comes as no surprise to those of us engaged in the policy, political arena. The Democrats are facing a potentially disastrous midterm election, and the left has been aggressively, and very publicly, pushing for his retirement—to their shame honestly.

“We are thankful for Justice Breyer’s service and have shown respect for him, even when we vehemently disagree with his judicial philosophy.

“But the radical left does not care. And it is that same boorish crowd we hope President Joe Biden can resist in making his nomination.

“He needs a win; we can all see that. But I hope he has learned from his recent defeats in the Senate that the radical lefts’ insistence on alienating half the country to get their way is a losing strategy.

“The president has a chance to finally unify the country with a consensus nominee, breaking away from the shameful and vile tactics we have experienced in recent Supreme Court nominations.

“No matter what, CWA’s army of happy warrior women is ready and eager to speak up for truth and justice to prevail on this nomination, against any and all odds.”

 

For media inquiries, please contact: Katie Everett, Press Secretary 571-420-2488

Breyer Retires

By | Breyer, LBB, SCOTUS, Vacancy | No Comments

I was done writing my newsletter piece to you when the news broke. Justice Stephen Breyer is retiring. That changes things a bit.

No official word from the Supreme Court, though, which is interesting and suggests someone talked without authorization. It immediately brought memories of these radical groups in Washington, D.C., driving trucks saying “Breyer Retire” all over town, trying to bully him into submission. The Left is so eager to see him gone that they even messed up his announcement. Usually, the justice who is retiring gets to announce it himself. He must not be happy.

Whatever the case, the radicals got their wish. Breyer is retiring, they have the majority in the U.S. Senate, and President Joe Biden gets to appoint whomever he wants.

Except, that is not entirely true. President Biden made a pledge. During the 2020 presidential debate in South Carolina, when his campaign was struggling to get off the ground, then-presidential candidate Biden promised that, if elected, he would appoint the first African American woman to the Supreme Court. “Not a joke,” he emphasized with his usual common-man style.

As told through different reports, the story of the pledge behind the scenes is not about sincere, ordinary person concerns for the country but about raw politics, as you might have guessed.

The story goes that candidate Biden desperately needed the endorsement of one of the most influential figures in South Carolina, House Majority Whip James Clyburn, who had also been the chair of the Congressional Black Caucus. Without his endorsement, the whole campaign could tank. Clyburn asked him not only to commit to appointing the first African American woman but also to pledge it publicly during the debate.

According to Jonathan Allen and Amie Parnes, who wrote the book “Lucky,” Clyburn was so frustrated when he didn’t hear candidate Biden say the pledge publicly that he went backstage during one of the breaks to put pressure on him. “Don’t you leave this stage without doing it,” he is reported saying.

And so, he did. Now, President Biden is locked into a very narrow pool of candidates, not based on professional qualifications and merit, but on identity politics. Sad to see the judicial nominations process reduced to these sorts of calculations.

Given that, some names are already floating around. Judge Ketanji Brown Jackson, who was recently elevated to the U.S. Court of Appeals for the D.C. Circuit, which is said to be the second-highest court on the land, is the first name you will hear. She is a former clerk of Justice Breyer.

California Supreme Court Justice Leondra Kruger has also been mentioned, as well as South

Carolina U.S. District Judge Michelle Childs and NAACP attorney Sherrilyn Ifill.

For our part, we must add this nomination to our prayers as we continue to lift up the Court on the upcoming Dobbs decision. As CWA President Penny Nance said in her statement on Justice Breyer’s resignation, let us pray for President Biden that he may use this opportunity to unite the country, instead of further alienating half, to appease the most extreme elements of his party.

“The president has a chance to finally unify the country with a consensus nominee, breaking away from the shameful and vile tactics we have experienced in recent Supreme Court nominations,” Penny said.

Let us pray as one for that as we await an official announcement. And stand by, ready to lift our voices for justice.

Indefensible Roe – The Scientific Track

By | Dobbs, Legal, News and Events, Sanctity of Life, SCOTUS, Substack | No Comments

Do not believe your lying eyes.

This (pictured above) is not a baby. No sir.

If it were a person, then the Supreme Court itself admitted in Roe they would not have made the decision they made to allow her to be crushed and sucked out of her mother’s womb.

It is actually a good thing they didn’t have such confusing pictures back then. In 1973, when Roe was decided, they thought a baby at 15 weeks, as is at issue in the Mississippi law being challenged in Dobbs v. Jackson Women’s Health Organization, looked like this:

Much easier to declare that this is some sort of tissue, part of a woman’s body, instead of a baby deserving of love and care. That is why the pro-abortion side in Dobbs wants the justices to keep women back in 1973. Nothing has changed, they argued on the day of oral arguments…

<em><a href=”https://mariodiaz.substack.com/p/indefensible-roe-the-scientific-track”>Click here</a> to read the rest of Mario’s exclusive <a href=”https://mariodiaz.substack.com/”>Substack column</a>. And be sure to subscribe below to never miss one of his posts again!</em>

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Supreme Court Releases Opinions in Texas Abortion Law Cases

By | CWA of Texas, Dobbs, LBB, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

As we discussed recently, the state of Texas presented a novel problem to the United States Supreme Court by enacting a law prohibiting abortions after a heartbeat is detected, but giving the right of enforcement to private citizens and not to any state official. Today, the Court handed down its opinion dismissing most of the claims but preserving the challenge going forward. Here is a short summary.

When abortionists sought to challenge S. B. 8, the Texas Heartbeat Act, they really had no one to sue because no state official is charged with its enforcement and no private citizen had sued. Still, they tried to push the legal envelope by suing a whole host of people, including state judges or state law clerks, the attorney general, some licensing officials, and even a potential private citizen defendant in an effort to enjoin the law and prevent it from going into effect.

The United States also tried to intervene, given its radical pro-abortion stance under President Joe Biden. That was the easy part (United States v. Texas). Its claim was summarily dismissed by the Court (8-1), as expected, with only Justice Sotomayor dissenting. The United States simply has no business interfering with this state law and basically seeking an unprecedented injunction against all persons in the country. Their effort would break with the most fundamental principles of federalism in our Constitution.

The more interesting challenge (Whole Woman’s Health v. Jackson) is a bit more complicated. In its opinion, the Court wanted to stress first what it was not deciding. “In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court,” said Justice Neil Gorsuch who wrote the majority opinion.

He summarized, “The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.” So, who can be sued? Well, not court officials: “Under the doctrine of sovereign immunity, named defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state court judge) should be dismissed.” Not the attorney general: “Texas Attorney General Paxton should be dismissed.” And not a private citizen prematurely (an affidavit showed he had no intention to sue): “The sole private defendant, Mr. Dickson, should be dismissed.”

But the Court leaves open “other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’s Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants.”

Justice Clarence Thomas dissented from this last pronouncement, saying he would have dismissed the case against “all respondents, including the four licensing officials.”

It also declared “petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation.”

So, the bottom line is that the challenge to this law will continue as to the allowed defendants.

It is important to note that Chief Justice Roberts, joined by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, expressed considerable frustration with the law in concurring in part and dissenting in part. He wrote, “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.”

It seems clear the Chief views the law as an attack on the Court itself. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings … Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’[] The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he wrote.

We will have to wait for a further challenge to see where the more conservative justices land on the issue.

As I mentioned before, this problem is of the Court’s own making, by injecting itself into the political abortion debate. Texas is simply trying to protect life, which most of its citizens demand, and trying to work within the arbitrary and dubious parameters the Supreme Court has set up. The best way for the Court to guard its legitimacy would be to reverse Roe and Casey in the Dobbs case, and then states like Texas would be free to protect life, without having to come up with innovative ideas to appease the Supreme Court’s personal preferences.

Indefensible Roe – The Policy Track

By | Dobbs, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

Having established that “The Constitution does not explicitly mention any right of privacy,” as the Court accurately noted in Roe, and that the Court relied on that virtual right to further invent another constitutional “right” to abortion with no basis in law, history or tradition, we turn to the Court’s dreadful shift to policymaking and why it, too, is indefensible.

While the media’s caricature of pro-life laws around the country at the time of Roe is that they sought to completely ban it, without regard for women, the facts of the case in Roe were, of course, different. I think by now every reader knows that the media lies. Therefore, remember that when it comes to the coverage you hear around Dobbs v. Jackson Women’s Health Organization.

The Texas law at issue in Roe actually had an exception for “medical advice for the purpose of saving the mother’s life.” If Roe were overturned, it does not mean abortion will be criminalized everywhere for every reason as some will have you believe. Instead, it would mean that laws would more accurately reflect the convictions of most Americans in their localities. What the Supreme Court did in Roe was impose its preferred view of abortion policy robbing “we the people” of a voice in the matter.

In Dobbs, Mississippi passed a law establishing a policy of restricting abortions after 15 weeks only to the cases of medical emergencies and or severe fetal abnormalities. There is no basis, constitutional or otherwise, for the Supreme Court to second guess a state’s policy in such a matter. …

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Indefensible Roe – The Legal Track

By | Case Vault, Dobbs, Legal, News and Events, RBG, Sanctity of Life, SCOTUS | No Comments

As that great bulwark of honesty Buddy the elf would say, Roe “sit[s] on a throne of lies.” This series will expose many of them in the spiritual, scientific, cultural, moral, and policy realm. But we start this endeavor with the most pressing deception as far as it concerns the U.S. Supreme Court’s upcoming considerations of the Dobbs v. Whole Women’s Health Organization case: the legal one.

It is a plain statement of fact that the U.S. Constitution has nothing to say about abortion. Zero, zip, zilch, nada. In fact, the fallacy of Roe is so deep, that the Court did not just invent the right to abortion, it actually based its decision to invent it on another “right” that appears nowhere in the Constitution. In an earlier case (Griswold v. Connecticut), the Court had “recognized” a new right to privacy that it now magically expanded to cover the right to abortions.

The Court is not even sure where this right to privacy comes from; it recognizes different theories. But wherever it came from, it is surely meant to cover abortion; it promises us. Here is how Justice Harry Blackmun, who shamefully wrote the Roe majority opinion, put it:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

And just like that, 185 years after the Constitution was officially ratified on June 21, 1788, the Court gives birth to a new right to abortion with no legal underpinning whatsoever…

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Indefensible Roe — An Introduction

By | Case Vault, Dobbs, LBB, Legal, News and Events, SCOTUS, Substack | No Comments

Dobbs v. Jackson Women’s Health Organization, the Mississippi case where abortionists are challenging the state’s “Gestational Age Act,” should force the United States Supreme Court to reevaluate its disastrous abortion jurisprudence.

Because Mississippi’s law places strict limits on abortion after 15 weeks, it runs straight up against the Court’s nonsensical and arbitrary “viability” pronouncement which has somewhat guided the Court through its oversight of more than 60 million babies aborted since 1973. In Roe v. Wade, the Court invented a right to abortion out of nothing and established limits based on an arbitrary trimester framework, but it also recognized a state’s interests in the health of mothers and “potential life,” as it cunningly termed babies in the womb. Only when those state interests become “compelling” are states able to regulate abortion, perhaps even ban it.  The Court explained:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

The Court’s mushy pronouncement ensured it would continue to act as a super-legislature, second-guessing virtually every state attempt to protect life. Therefore, we continue to see a never-ending series of cases at the Supreme Court with citizens from different states trying to assert their interests in the health of mothers and protecting children in the womb…

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