Category Archives: Federalist

In the mid-1990s, when the original line-up of the rock band Kiss briefly reunited, I was a teenage alternative rocker. I took my rock music very seriously, and although I had never heard anything by Kiss other than Rock and Roll All Nite, I instinctively knew they were precisely the kind of music to which the self-serious rock of the 90s was meant to provide an alternative.

So, I assumed they sucked. I mean, they looked like they would suck all that dumb make-up, the frizzed-out perms, and studded leather? It all seemed to typify bloated rock excess and, by extension, inauthenticity. I didnt listen to a full album from Kiss until about 2005, but when I did, I quickly realized I had been wrong. It was fantastic. I loved it. I loved it so much that years later, I delayed taking my son to his first rock concert to make sure it would be Kiss. If that didnt turn him into a lover of the genre, nothing would. It worked.

Still, there are things I dont like about the band. Most recently, my frustrations have stemmed from various public statements from frontman Paul Stanley. Stanley has a tendency to wade into contentious political debates. His opinions on Covid-19 were especially grating to me: He was among the many celebrities who railed against those of us who refused vaccination. He often made social media posts that touted his fully boosted vaccine status (he still got Covid, of course).

I tolerated this because Kiss is also very patriotic but individually, Stanley is not usually known for his conservatism. Instead, he seems to be a mouthpiece for a kind of leftism-lite: one that is pro-America but never seems to commit him to any position that deviates too far from the views of establishment elites.

Thus, I was pleasantly surprised last week to see that Stanley used his sizable platform to speak out against the medical malpractice being inflicted upon children who are labeled trans. His primary concern seemed to be the normalization of leftist responses to sexual confusion in pre-adolescents (read his full statement here).

Its not very well-written, but then, this is the writing of a man who penned unforgettable romantic ballads like Love Gun and Lick It Up. No reasonable person could say Stanleys statement was insensitive to the families and children dealing with these issues. Speaking empathetically, he simply warned that the current faddishness of transgenderism might be encouraging parents to subject their children to medical interventions that could harm them in the long run.

Because nothing so sensible can be tolerated in current-year America, people from all over the political spectrum (except Twisted Sister vocalist Dee Snider) set to attacking Stanley. Predictably, the chorus of loons on the left (including much of the corporate media) howled that his statement was transphobic. Some traditionalists on Twitter noted that Stanley and Kiss played a not-insignificant role in normalizing what had been transgressive attitudes about sexual practices and norms.

Sadly, it took only a few days of pressure from the flocks of Twitter leftists for Stanley to reverse course and post a mealy-mouthed apology. Nevertheless, the reaction that his initial comments elicited is instructive.

Stanleys critics fell into two camps. When it came to the substance of Stanleys remarks, some felt he was unqualified to make them. Their complaint was that he was being hypocritical: How can a man who fronted a notorious band like Kiss now support traditional views on the sexes? Others had no problem with Stanleys past or his bands legacy but thought his opinions were wrong. Many of these people note that gender-bending has been a part of popular culture for a very long time, which they offer as proof that cultural trends didnt (and dont) produce the (comparatively new) trans phenomenon. One such Twitter commenter argued that although her generation watch[ed] Bugs Bunny dress up as a girl plenty of times, almost none of them ever transitioned.

But the critics in both camps are wrong. Kiss didnt play a role in fomenting the trends that Stanley is now challenging. And the cross-dressing of Bugs Bunny and other popular childrens characters was not a neutral, incidental bit of comedy: It served an important cultural function, though not the one most people think. Understanding the true ideological functions of cross-dressing in the entertainment of the 20th century is important because it illuminates the enormous differences between the America of yesteryear and todays transgender phenomenon.

It is true that popular entertainment has often depicted men and women (and rabbits) who tried to pass as the opposite sex. Bugs Bunny is one example. Mrs. Doubtfire is another. Countless others could be cited. But these are in no way similar to the trans propaganda aimed at todays youth. The difference is that 20th-century depictions of cross-dressing characters actually functioned to reinforce traditional norms related to sex.

Bugs Bunny in a dress was supposed to be funny. The reasons arent hard to ascertain. First, audiences grasped any man who would want to pretend to be a woman (or vice versa) was patently ridiculous. The comedic dimension of such displays has been evident for millennia. Secondly, when characters from entertainment history dressed as the opposite sex, it was typically an effort to disguise themselves. The humor, then, derived from the fact that men in womens clothing almost never fool anyone. Thus, these depictions generally taught children that any attempt to portray themselves as the opposite sex was doomed to fail: Certain features of the body unmistakably conveyed the natural, biological truth of sex.

The gender-bending in Kiss functioned in a similar way. The incorporation of feminine clothing and style into a rock-and-roll performance by men was intended to be a spectacle one that shocked the audience. The femininity was insincere: This was underscored by the aggressively heterosexual themes addressed in the music and the bombastic sonic conventions of hard rock.

But while the lyrics embraced a libertine sexuality, they also (crassly) affirmed traditional notions of masculinity and femininity. Offstage, the bands appetite for women provided what the left would call a toxic advertisement for heteronormativity. As part of the spectacle, the feminine aspects of the bands presentation ultimately affirmed norms of the sexes via an implicit acknowledgment that it is, in fact, odd to encounter a man or a woman who pretended to be otherwise.

It may seem, then, that earlier cross-dressing in popular media encouraged audiences to defy the norms of the sexes, but in most instances, these displays actually affirmed the legitimacy of those norms and basic biology.

Comparing the treatment of so-called gender in popular entertainment from decades ago to that of todays media proves illuminating. Older examples of gender-bending in popular culture were usually accompanied by an implicit wink to the audience. Put differently, the content always found a way to confirm to the audience that what was happening was silly. That wink is completely absent from popular media today. In fact, aside from racial identity, no other topic is treated with as much gravity and self-seriousness as questions of sex.

Indeed, humorous presentations of cross-dressing which have consistently been a feature of Western forms of entertainment since the ancient Greeks have all but disappeared from our media. It is not uncommon in childrens programming to see situations when a boy or girl adopts the signs, preferences, or mannerisms of the opposite sex, and other children in the program start to snicker, only to have an adult character step in to teach them the moral lesson that all these stereotypes about sex and so-called gender identity are obsolete and hurtful.

Consider the premise of Mrs. Doubtfire (a huge hit in 1993): A divorced dad (late comedian Robin Williams), frustrated by the limited time he gets to spend with his children, begins dressing up as an older woman so he can maintain a job in his ex-wifes home doing domestic work. Does anyone doubt that such a film would never be produced in the cultural milieu of 2023?

The point here is not that we need more humorous depictions of cross-dressing in our entertainment. The point is that those depictions have all but disappeared, and the reason for that is that they were doing important ideological work in maintaining traditional ideas of sex.

The zeitgeist now views those older norms as retrograde and obsolete. This explains why although the culture industrys fondness for gender-bending remains as strong as ever, its comedic elements have been banned from public life. Even drag something that mocked the self-serious policing of so-called gender and sex is now something we have to treat in the most serious way. The kids at Drag Queen Story Hour are not learning to laugh at and enjoy the spectacle of drag, they are learning to respect it. Its function is not to drive the immutability of sex home to kids its purpose is to familiarize children with nonconformity at an early age in hopes that it will soon be normalized.

These troubling trends are what Stanley was warning us about. It is a great irony that a famous rock-and-roll clown is one of the few celebrities with enough maturity (though just momentarily!) to grasp the serious business of an ideology that is normalizing medical interventions for kids with sex confusion.

The enablers of trans kids, if anything, are taking sex and its cultural implications too seriously and in all the wrong ways. Sadly, within a decade or so, many of the children who suffered irreversible harm through the currently fashionable process of what they call transition wont be laughing either.

Adam Ellwanger is an associate professor of rhetoric at the University of Houston Downtown. He plays guitar and is a member of Heterodox Academy.

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The Lesson From The Kiss Controversy Isn't What You Think - The Federalist

Background

On April 18, 2023, the Supreme Court heard oral argument in the case of Groff v. DeJoy and considered whether to overturn the standard governing employee religious accommodation requests under Title VII.

Title VII requires employers to accommodate their employees religious beliefs and practices unless doing so would constitute an undue hardship on the conduct of the employers business. The Supreme Courts 1977 decision in TWA v. Hardison, which Petitioner Gerald Groff challenges, interpreted undue hardship to mean more than a de minimis cost.

Parties Positions

Groff is a devout Christian who was forced to resign from his job after the United States Postal Service (USPS) refused to consistently accommodate his Sunday Sabbath observance. His counsel first argued that the de minimis testwhich both the district court and Third Circuit referenced in affirming the denial of Groffs religious accommodationmakes a mockery of the English language and asked the Court to adopt the textually consistent standard of significant difficulty or expense. New York and Californias anti-discrimination laws already employ this standard, as do other federal statutes like the Americans with Disabilities Act. Groffs counsel next contended that under the statutory text, burdens on co-workers alone do not constitute an undue hardship and an employer citing such burdens must demonstrate how they disrupt its business operationswhich USPS did not do in this case.

The Solicitor General, on the other hand, urged the Court to clarify rather than overturn Hardison. While admitting that de minimis is not a proper interpretation of undue hardship, she argued that the EEOC and lower courts have nonetheless applied it to provide meaningful protection for religious observance in the workplace by interpreting it in light of the particular accommodations and the costs that the Court confronted in Hardison. The SG explained that Hardison used de minimis interchangeably with substantial cost, a phrase cited in footnote 14 of the case, and cautioned the Court against adopting any new verbal formulation that would call into question the well-developed body of case law applying the de minimis standard. Instead, she asked the Court to uphold Hardison on its facts, stating that the consistent payment of premium wages, regularly operating shorthanded, or altering a collective bargaining agreement all constituted an undue hardship.

Oral Argument

The argument was lively and fast-paced, with most Justices asking difficult questions of both parties.

Justice Thomas was the first to jump in, inquiring whether the amended text of Title VII was even at issue in Hardison. Counsel for Groff noted what the Justice has said repeatedly in other cases: that Hardisons de minimis standard was merely dicta because it interpreted the EEOC guideline in effect at the time rather than the statute itself. For her part, the SG argued that the amended statute carrie[d] the same meaning as the predecessor version as interpreted in light of the EEOC guidance and cited other cases in which the Court did not treat Hardisons standard as dicta.

Common Ground?

Justice Gorsuch sought to find common ground between the parties, commenting that both sides agreed that the test is context-dependent, that factors including the size of the employer and the reasonable options available to the employer are relevant, and that de minimis in isolation cannot be the test. He questioned whether the Court could simply say the de minimis standard was wrong and be done with it. Justice Kavanaugh similarly opined that the Hardison Courts reference to substantial cost seemed perfectly appropriate, suggesting that the Court merely make that clarification and allow lower courts to go forth.

In response, Groffs counsel stressed that more guidance was needed, especially given that under the governments position, it would constitute an undue hardship to require the largest airline in the world to pay an extra $100/week to attract an employee to take a Sabbatarians shift. So too would denying a single co-workers shift preference or any alteration of a collective bargaining agreement. None of these, he argued, would satisfy Groffs proffered significant difficulty or expense standard. The government did not disagree. While declining to defend the de minimis standard and agreeing she was amenable to a substantial cost test at the abstract level, the SG urged the Court to ensure that any clarification of Hardison not invalidate lower court decisions applying Hardison as written.

Lower Court Precedents

Such lower court decisions formed the basis of several Justices lines of questioning. Justice Barrett asked what the point of retaining the de minimis language was when it has led Courts of Appeals astray, remarking that even the amicus brief from the Americans United for Separation of Church and State did not defend the de minimis standard. Justice Alito pushed back on the notion that lower courts sufficiently protect religious minorities, noting the amicus briefs submitted by Muslims, Hindus, Orthodox Jews, and Seventh Day Adventists that argued the opposite. And Chief Justice Roberts inquired whether lower court precedent could even be trusted, given the fact that the strict neutrality principle underlying Hardison was undermined by EEOC v. Abercrombie & Fitch Stores in 2015. There, as counsel for Groff repeatedly pointed out, the Court stated that Title VII does not demand mere neutrality with regard to religious practices but gives them favored treatment. Justice Sotomayor appeared to disagree, opining that theres nothing in Abercrombie thats remotely inconsistent with Hardison.

Stare Decisis

Justices Kagan, Jackson, and Sotomayor expressed concerns about the Court doing Congress job, given that stare decisis is supposed to be at its peak in statutory interpretation cases. The SG made this point in earnest, arguing that Congress has tried and failed multiple times to codify a more stringent standard. While Groffs counsel agreed wholeheartedly that this is a policy question for Congress, he responded that Congress answered that question when it enacted the text of undue hardship in 1972. Congress, he asserted, should not be burdened with rectifying the Courts own error.

Burdens on Co-Workers

Several Justices asked about when a burden on a co-worker rises to the level of disrupting the business. Justice Barrett wanted to know whether poor morale is sufficient or if a co-worker must quit to show such a burden. Justice Kavanaugh remarked that all business owners know that morale is critical to a companys success. Groffs counsel emphasized that morale is not enough, and the SG agreed, stating that mere co-worker grumbling, resentment, or even overt hostility to religious practice and expression in the workplace is not part of the inquiry.

Justice Kagan suggested that a business is affected any time an employee is burdened. Groffs counsel replied that employee burdens leading to marginal business impacts are insufficient; there must be concrete evidence of disruption to the operation of the business as a whole. The SG offered that the number of workers, whether the burdens can be diffused, and material changes to employees work conditions are all relevant. Ultimately, this point could hinge on a factual question, as Groffs counsel stated that only one co-worker transferred due to USPSs initial accommodation of Mr. Groff, while the SG stated that one person transferred and another quit.

After nearly two hours of argument, available here, the Court concluded its questioning. A decision is expected by the end of June.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.

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The Supreme Court Hears Oral Argument in Groff v. DeJoy - The Federalist Society

As the former vice president and current co-chair of conservative legal think tank the Federalist Society, Leonard Leo sits atop one of the most influential right-wing organizations in the country. The Federalist Society counts at least five sitting U.S. Supreme Court justices among its members, as well as dozens of judges on lower courts.

But Leos influence extends far beyond the Federalist Society and its sway over the Supreme Court.

Over the past two decades, Leo has operated behind the scenes of several well-funded dark money groups political nonprofits that can spend money on political activities but dont have to disclose their donors that have spent tens of millions of dollars to boost conservative candidates in state supreme court elections across the country. According to an investigation published by the website Grid in December, nonprofit political groups connected to Leo have spent at least $31 million in 42 supreme court races across 15 different states since 2010.

The web of political nonprofits and organizations tied to Leo isnt easy to define. On paper, Leos name isnt associated with any of the major dark money groups that have directly spent money on political advocacy or to influence judicial elections. But a 2022 New York Times investigation of Leo revealed the extent of his connections to these groups, explaining how he solicits money from wealthy donors and directs the money to specific political causes through several for-profit and nonprofit groups.

Leo is most closely associated with the Judicial Crisis Network and the 85 Fund, though his name doesnt appear in the tax filings for either of these groups and hes not on their payrolls. According to the same New York Times article, Leo is connected to both groups through several for-profit groups of which he is a full or partial owner. One of the groups is CRC Advisors, a Virginia-based policy incubation group that Leo co-founded in 2020 with communications executive Greg Mueller. The other is BH Group, an LLC that dissolved earlier this year, days after Politico revealed a potential conflict of interest between the company and former Trump senior adviser Kellyanne Conway.

The Judicial Crisis Network, which goes by the name Concord Fund on its tax filings and was previously known as Judicial Confirmation Network, is a 501(c)(4) nonprofit organization considered under tax law a social welfare organization that can engage in political advocacy that advocates for and supports conservative policies and legislation and limited government. Theres no limit as to how much these groups can spend on political activity, so long as its not in direct campaign contributions, and they dont have to disclose their donors.

During Donald Trumps presidency, the Judicial Crisis Network spent millions of dollars in dark money advocating for the Supreme Court confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Leo is connected to the Judicial Crisis Network through the groups president, Carrie Severino, a former law clerk for Supreme Court Justice Clarence Thomas whom the Daily Beast describes as Leos protg.

Severino is also the president of The 85 Fund, a nonprofit formerly called the Judicial Education Project, which has a similar mission to JCNs. Unlike JCN, though, The 85 Fund is registered as a 501(c)(3) nonprofit, which cant directly spend money on political advocacy. But a 501(c)(3)y can give money to a 501(c)(4) social welfare group, which can directly spend money on political ads as long as its not in coordination with any specific political campaign.

Because of these laws, The 85 Fund doesnt directly spend money on political advocacy. But the groups close relationship to JCN particularly when JCN was spending millions of dollars on advocacy efforts to support Trumps Supreme Court picks raised ethics concerns with Sen. Sheldon Whitehouse (D-RI).

During a confirmation hearing for Barrett on Oct. 13, 2020, Whitehouse condemned the Leo and Severino-backed organizations, saying:

In all cases, theres big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. Its managed by a guy was managed by a guy named Leonard Leo, and its taken over the selection of judicial nominees. How do we know that to be the case? Because Trump has said so over and over again. His White House counsel said so. So we have an anonymously funded group controlling judicial selection run by this guy Leonard Leo.

Then in another lane, we have again anonymous funders running through something called the Judicial Crisis Network, which is run by Carrie Severino, and its doing PR and campaign ads for Republican judicial nominees. Somebody spent $35 million to influence the makeup of the United States Supreme Court. Tell me thats good.

The JCN and The 85 Fund have paid both of Leos for-profit groups, CRC Advisors and BH Group, tens of millions of dollars since 2016, according to the New York Times. Most of the money going through all of these groups trickled down from a dark money group called the Wellspring Committee, according to the New York Times, which was founded and primarily funded by the Koch Brothers until it dissolved in 2019.

Leo-affiliated dark money found its way into state supreme court races through the Republican State Leadership Committee, a super PAC that focuses its spending on right-wing candidates in state elections. An arm of the RSLC called the Judicial Fairness Initiative focuses on state judicial elections and, according to Grids investigation, spent more than $10 million on state judicial elections between 2014 and 2018. Over the past several election cycles, JCN has been a top donor to the RSLC, giving the group nearly $5.5 million since 2016.

The RSLC has played a pivotal fundraising role in some of the most contentious state supreme court races of the past several years. In the 2021 Pennsylvania Supreme Court race, for example, the group spent $1.2 million in last-minute ads to support Kevin Brobson, the conservative candidate who won the election. Last fall, the RSLC spent $2 million in support of three right-wing justices running for reelection to the Ohio Supreme Court. Most recently, the group spent at least $200,000 to support Dan Kelly, the conservative Wisconsin Supreme Court candidate who lost in April in what was the most expensive state judicial election in U.S. history.

In 2020, Leo founded a new organization called Marble Freedom Trust, which, according to its tax filings, was created to maintain and expand human freedom consistent with the values and ideals set forth in the Declaration of Independence and the Constitution of the United States.

Leos new group flew under the radar until the New York Times reported in August that Barre Seid, the billionaire owner of the electrical products manufacturer Tripp Lite, had given the organization 100% of the shares in the company in a massive $1.6 billion donation the previous year.

Because Marble Freedom Trust is registered as a 501(c)4 nonprofit organization, the group can spend an unlimited amount of money on political advocacy as long as its not given directly to a campaign. Since its founding, Marble Freedom Trust has given at least $229 million to other nonprofits, including $153 million to the conservative legal organization the Rule of Law Trust and $16.5 million to the JCN, according to the New York Times.

Leo told the New York Times in a statement, Its high time for the conservative movement to be among the ranks of George Soros, Hansjrg Wyss, Arabella Advisors and other left-wing philanthropists, going toe-to-toe in the fight to defend our constitution and its ideals.

Published with permission of The American Independent Foundation.

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How Leonard Leo became a conservative power broker in judicial ... - The American Independent

Former Vice President Mike Pence told a legal group Tuesday in Washington that the next Republican administration should work to curtail the power of executive agencies and pointed to recent legal fights over abortion access.

Restraining and reclaiming the legislative prerogatives of the legislative branch from the administrative state should be one of the most important objectives of the next Republican administration, Pence said at an event put on by the Federalist Society.

The former Indiana governor, widely considered a potential candidate for the GOP presidential nomination but who has made no announcement, also touched on the importance of judicial nominations to that effort.

The Federalist Society and particularly one of its leaders, Leonard Leo, played a leading role in shaping the Trump administrations judicial appointments even helping to create Trumps shortlist of Supreme Court nominees during the 2016 campaign.

Pence said Tuesday he was proud to be part of the administration that seated three Supreme Court justices who last year helped overturn Roe v. Wade, the landmark decision that first legalized abortion in 1973.

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Pence nods to role of judges in conservative push on abortion - Roll Call

This post was originally published at the Volokh Conspiracy.

Of late, the media has fixated on judicial ethicsfor certain judges, at least. Regrettably, many of these stories fail to put the accusations in context. In some situations, judges took actions that were actually consistent with the rules, or were not-clearly inconsistent with the rules. Still, self-professed experts find fault with unwritten rules. In other cases, judges have made good-faith mistakes based on misreading byzantine codes, and promptly agreed to correct those errors. Some of the allegations border on frivolous, but disfavored judges still get placed under the microscope. Throughout all of this breathless reporting, there has not been a single allegation of an actual conflict of interest between a judge and a party that would result in recusal. To quote Justice Breyer, there has been nothing "underhanded." At most, the claims focus on the nebulous appearance of impropriety standard, which can mean just about anything.

Yet, at present, we may be witnessing serious judicial misconduct that involves an actual conflict of interest. And the Washington Post does not need to fly a swat team of reporters to Amarillo to investigate. I speak, of course, about the Court of Appeals for the Federal Circuit.

Now, I do not have any dog in this fight. I know little about patent law, other than the fact that the Supreme Court routinely reverses the Federal Circuit. Chief Judge Moore was a professor at George Mason, but I never took any classes with her. And, as best as I can recall, I've never even seen Judge Newman. Indeed, she only popped on my radar when I was calculating which judges were eligible to take senior status. Newman was born in 1927, was appointed to the Federal Circuit in 1984, and became eligible for senior status in 1996. But the almost-96-year-old has never taken senior statusand that decision has created problems for her colleagues.

According to Judge Moore, Judge Newman is taking a really long time to resolve casesin some situations, more than a year. (To be frank, Judge Newman is performing at a faster clip than some Biden-appointed judges who are five decades younger.) On the surface, Judge Moore is trying to pressure Judge Newman to take senior status. As a general matter, senior status judges can still hear casesbut those assignments are at the discretion of the Chief Judge. And if Newman were to take senior status, then Moore and her successors could simply prevent Newman from hearing other cases. The remedy being sought is stark: Judge Moore, and her colleagues on the Federal Circuit, are trying to prevent any future cases from being assigned to Judge Newman. Indeed, Judge Moore has already stopped assigning new cases to Newman, who remains an active status judge. If Judge Moore succeeds, Judge Newman would remain an Article III judge in name only. To put it bluntly, Chief Judge Kimberly Moore is engaging in a stealth impeachment of Judge Pauline Newman.

Newman is now represented by the New Civil Liberties Alliance. And NCLA sent a letter to Moore. I realize the facts here are complex, and contested. I'll avoid opining on the merits. Rather, I want to focus on the apparent conflict of interest.

Every federal circuit has a "Judicial Council." That council includes some circuit judges, as well as some district court judges, from that circuit. (The Federal Circuit has no district court judges, so only circuit judges sit on that council.) If a misconduct complaint is filed against a district court judge in a particular circuit, it is understood that circuit court judges from that circuit can impartially resolve the conflict. After all, circuit court judges have to review the decisions of district court judges all the time. Most circuit judges never actually even see district court judgesexcept, as John Roberts once observed, in the D.C. Circuit, where all judges have to share a cafeteria.

However, when a misconduct complaint is filed against a circuit court judge, there will often be a potential conflict, or at least awkwardness. Specifically, circuit judges may not be comfortable to resolve a case against their colleague. They sit together regularly, for decades at a time. Partiality can always be questioned. Therefore, a mechanism exists in which the Chief Judge of the circuit can ask the Chief Justice of the United States to reassign the matter to another circuit. That way, the issue can be impartially adjudicated. This process is not uncommon. Over the past decade, misconduct complaints against circuit judges from the Fifth, Sixth, and Eleventh Circuits were transferred to other circuits.

Yet, Chief Judge Moore has not, to date at least, moved to transfer Newman's case to another circuit. This decision is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including Judge Moore, and court staff. Yet, Judge Moore purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.

Finally, there is another issue lurking under the surface. If Chief Judge Moore succeeds in pushing her colleague to take senior status, a new vacancy would open up for the Biden Administration. The patent bar is, from what I've heard, very clubby. And there is no blue slip delay. I'm sure there is a list of attorneys waiting to fill that seat. Judge Moore, by pushing out her colleague, is opening a seat for someone else. Judges should have no role in picking their successors. Nor should judges have a role in creating vacancies on their court, in which more-congenial nominees can assume the seat. And I don't put much stock in the fact that Moore is a Republican-appointee, and we currently have a Democratic president. Judge Newman has suggested that this misconduct process is in retaliation for her disfavored views on patent law.

Chief Judge Kimberly Moore cannot be the judge, jury, and executioner of Judge Newman.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.

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The Stealth Impeachment of Judge Newman in the Federal Circuit - The Federalist Society

Mike Curtin| Guest Columnist

Each state has its distinct political heritage.

The constitutional and governmental legacies of our 50 states differ in many ways, large and small. Citizens of our states take pride in their differences.

Most of the pioneers who carved Ohio from the Northwest Territory, at least those taking part in public affairs, identified with the Democratic-Republican Party of Thomas Jefferson.

Editorial: Hypocrisy thrives with Ohio Republicans, LaRose

They were farmers, frontiersmen and craftsmen who distrusted strong central government. They opposed the Federalists, whom they saw as aristocratic, elitist and controlled by powerful financial interests.

Ohios founders were plain folk who resented the heavy hand of Gen. Arthur St. Clair, governor of the Territory of Ohio, who with fellow Federalists opposed statehood for Ohio.

In 1801, when Jefferson was elected president, our states founders saw their opening, enlisted his help to dump St. Clair, and went about business to create the 17th state.

In 1802 at Ohios first constitutional convention in Chillicothe, 26 of the 35 delegates elected from nine counties were Democratic-Republicans. Seven were Federalists. Political affiliations of two remain unknown.

Ohios first seven governors were Democratic-Republicans. Both of Ohios constitutions, products of 1802 and 1851, were infused with Jeffersonian ideals of trusting the people more than elected officials.

The 1802 Constitution made the governor a figurehead. State lawmakers were put on tight leashes one-year terms for representatives, two-year terms for senators. In 1851, House terms were lengthened to two years. Not until 1956, more than a century later, were Senate terms lengthened to four years.

The suspicion Ohios founders held for centralized authority became engrained in the states political culture and endured. The 1851 Constitution established a debt limit of $750,000 absent a public vote. It remains.

The 1851 Constitution also adopted the Jeffersonian idea of requiring that every 20 years Ohioans must vote on whether to hold another state constitutional convention to revise, alter or amend the document. Ohioans vote again on this question in 2032.

The Bill of Rights in our 1851 Constitution proclaims the people have the right to alter, reform or abolish their state government whenever they may deem it necessary.

Throughout Ohios 220-year experiment in democracy, the peoples determination to steer their government never was stronger than in the early 20th century. As Ohio was transformed into an industrial dynamo, monopolistic tycoons bought big-city political bosses and their hand-picked officeholders. Ohios Statehouse became one of the most corrupt in the nation.

Crookedness spawned reform, which found its expression in the 1912 constitutional convention. No reform was more cleansing than voter adoption, by a landslide of 57.5%, of the initiative and referendum.

In 1912, Nebraska and Ohio became the 12th and 13th states to embrace constitutional direct democracy. Ohios constitutional initiative is the crown jewel of our states political heritage. As intended, it reminds elected officials who ultimately is in charge who owns the constitution.

August special election?: Ohio Senate Republicans OK plan to make it harder to change constitution

Now, some Statehouse politicians plot to embezzle that inheritance. They devise an unprecedented August election, hoping to catch most Ohioans sleeping, while getting enough of their supporters to the polls to pull off the heist.

The plan would cripple Ohioans ability to effectively use their 111-year-old right to initiate amendments, by doubling signature-gathering quotas from 44 counties to all 88, and by requiring all future amendments to win by a 60% ratio.

In justifying their plan, Secretary of State Frank LaRose and state Rep. Brian Stewart, R-Ashville, continually note that 32 states dont permit citizen-led, constitutional initiatives.

Unaware of Ohio history, their recitation always includes New England states where the Federalist Party ran strongest and left lasting marks on their political cultures.

LaRose and Stewart could not sound a more discordant note. They could not demonstrate a more fundamental misunderstanding of Ohios political heritage.

Ohioans never have shown any interest in emulating the political cultures of New York, Connecticut or Maryland. For two centuries, theyve identified much more with fellow pioneers who opened up the West, insisting on popular sovereignty.

Mike Curtin is a former editor and associate publisher of the Columbus Dispatch, and a former two-term state representative who served on the Ohio Constitutional Modernization Commission.

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LaRose, Stewart forget Ohio's history as they seek to upend ... - Canton Repository

Federalist papers, formally The Federalist, series of 85 essays on the proposed new Constitution of the United States and on the nature of republican government, published between 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay in an effort to persuade New York state voters to support ratification. Seventy-seven of the essays first appeared serially in New York newspapers, were reprinted in most other states, and were published in book form as The Federalist on May 28, 1788; the remaining eight essays appeared in New York newspapers between June 14 and August 16, 1788.

All the papers appeared over the signature Publius, and the authorship of some of the papers was once a matter of scholarly dispute. However, computer analysis and historical evidence has led nearly all historians to assign authorship in the following manner: Hamilton wrote numbers 1, 69, 1113, 1517, 2136, 5961, and 6585; Madison, numbers 10, 14, 1820, 3758, and 6263; and Jay, numbers 25 and 64.

The authors of the Federalist papers presented a masterly defense of the new federal system and of the major departments in the proposed central government. They also argued that the existing government under the Articles of Confederation, the countrys first constitution, was defective and that the proposed Constitution would remedy its weaknesses without endangering the liberties of the people.

As a general treatise on republican government, the Federalist papers are distinguished for their comprehensive analysis of the means by which the ideals of justice, the general welfare, and the rights of individuals could be realized. The authors assumed that peoples primary political motive is self-interest and that peoplewhether acting individually or collectivelyare selfish and only imperfectly rational. The establishment of a republican form of government would not of itself provide protection against such characteristics: the representatives of the people might betray their trust; one segment of the population might oppress another; and both the representatives and the public might give way to passion or caprice. The possibility of good government, they argued, lay in the crafting of political institutions that would compensate for deficiencies in both reason and virtue in the ordinary conduct of politics. This theme was predominant in late 18th-century political thought in America and accounts in part for the elaborate system of checks and balances that was devised in the Constitution.

The authors of the Federalist papers argued against the decentralization of political authority under the Articles of Confederation. They worried, for example, that national commercial interests suffered from intransigent economic conflicts between states and that federal weakness undermined American diplomatic efforts abroad. Broadly, they argued that the governments impotence under the Articles of Confederation obstructed Americas emergence as a powerful commercial empire.

The authors were also critical of the power assumed by state legislatures under the Articles of Confederationand of the characters of the people serving in those assemblies. In the authors view, the farmers and artisans who rose to power in postrevolutionary America were too beholden to narrow economic and regional interests to serve the broader public good. Of particular concern to the authors was the passage by state legislatures of pro-debtor legislation and paper money laws that threatened creditors property rights. Unlike most Americans of the period, who typically worried about the conspiracies of the elite few against the liberties of the people, the authors were concerned about tyrannical legislative majorities threatening the rights of propertied minorities. The Articles of Confederation, in their view, had provided no safeguards against the vices of the people themselves, and the American Revolutions enthusiasm for liberty had diminished popular appreciation of the need for good governance. The Federalist papers presented the 178687 insurrection of debtor farmers in western MassachusettsShayss Rebellionas a symptom of this broader crisis.

The authors of the Federalist papers argued for an increase in the energy of the federal government to respond to this crisis. However, the national governments increased power would have to be based in republican principles and retain a federal distribution of power; there would be no return to monarchical rule or consolidation of central authority.

In one of the most notable essays, Federalist 10, Madison rejected the then common belief that republican government was possible only for small states. He argued that stability, liberty, and justice were more likely to be achieved in a large area with a numerous and heterogeneous population. Although frequently interpreted as an attack on majority rule, the essay is in reality a defense of both social, economic, and cultural pluralism and of a composite majority formed by compromise and conciliation. Decision by such a majority, rather than by a monistic one, would be more likely to accord with the proper ends of government. This distinction between a proper and an improper majority typifies the fundamental philosophy of the Federalist papers; republican institutions, including the principle of majority rule, were not considered good in themselves but were good because they constituted the best means for the pursuit of justice and the preservation of liberty.

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Federalist papers | History, Contents, & Facts | Britannica

Federalist Party, early U.S. national political party that advocated a strong central government and held power from 1789 to 1801, during the rise of the countrys political party system. The term federalist was first used in 1787 to describe the supporters of the newly written Constitution, who emphasized the federal character of the proposed union. Between October 1787 and August 1788, Alexander Hamilton, John Jay, and James Madison wrote a series of 85 essays that appeared in various New York newspapers attributed to the pseudonym Publius. The Federalist papers (formally The Federalist), as the combined essays are called, were written to combat Anti-Federalism and to persuade the public of the necessity of the Constitution.The Federalist papers stressed the need for an adequate central government and argued that the republican form of government easily could be adapted to the large expanse of territory and widely divergent interests found in the United States. The essays were immediately recognized as the most powerful defense of the new Constitution.

Parties were generally deplored as inimical to republican government, and Pres. George Washington was able to exercise nonpartisan leadership during the first few years of the new government (begun in 1789). Strong division, however, developed over the fiscal program of the secretary of the treasury, Hamilton, whom Washington supported. Hamilton and other proponents of a strong central government formed the Federalist Party in 1791. Differences with the opposition were intensified by ideological attitudes toward the French Revolution, and by 1795 administration supporters had hardened into a regular party, which succeeded in elevating John Adams to the presidency in the 1796 election.

Over the decade of the 1790s, the Federalists stood for the following economic policies: funding of the old Revolutionary War debt and the assumption of state debts, passage of excise laws, creation of a central bank, maintenance of a tariff system, and favourable treatment of American shipping. In foreign affairs they observed neutrality in the war that broke out between France and Great Britain in 1793; approved the Jay Treaty of 1794, which terminated the difficulties with Britain; and sponsored strong defense and internal-security legislation in the crisis of 179899 (see Alien and Sedition Acts), when French demands almost forced open war. These policies were strongly resisted, especially in the South; the opposition, organized by Madison and Thomas Jefferson beginning in 1791, became the Republican Party (also known as the Jeffersonian Republicans), which later was renamed the Democratic-Republican Party. Eventually this organization became the modern Democratic Party. The name Republican was taken over in the 1850s by a new party that espoused Federalist economic ideas and that survives to the present day under that name.

The Federalists never held power again after 1801. Their failure is attributable to the Republicans political skill and to the Federalists own incapacity or unwillingness to organize politically, their internal divisions (especially between supporters of Adams and Hamilton), and their aversion to compromising principles for the sake of winning elections. Furthermore, New England Federalists adopted a divisive policy of sectionalism, moving dangerously near secession in 1808 and strenuously opposing the War of 1812 (see Hartford Convention). By 1817 the party was practically dead, though the opposing Republicans had adopted the Federalists principles of nationality and had accepted many of their economic ideas.

The accomplishments of the Federalists were great: the party organized the enduring administrative machinery of national government; fixed the practice of a liberal interpretation of the Constitution; established traditions of federal fiscal integrity and credit worthiness; and initiated the important doctrine of neutrality in foreign affairs, allowing the infant nation to develop in peace for more than a century.

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Federalist Party | Definition, History, Beliefs, & Facts

More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers. In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.

The U.S. Constitution is the nation's fundamental law. It codifies the core values of the people. Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress.The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

The American democratic system is not always based upon simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions. Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Overview - Rule of Law | United States Courts

As the year winds down, the border is about to break wide open. In less than a week, the Biden administrations last remaining tool to control illegal immigration, left over from the Trump administration, will be taken away.

Title 42, the public-health order invoked by President Trump during the pandemic that allowed immigration officials to quickly expel most migrants caught crossing the border illegally, will end on Dec. 21 by order of a federal judge.

Once Title 42 is gone, federal agencies at the border will have no choice but to process and release nearly every illegal border-crosser. It will represent a full return to the Obama-era catch-and-release policy. Border Patrol estimates they could see as many as 14,000 arrests per day in the coming weeks, which would totally overwhelm the border.

For migrants, there is now every incentive to do just that. Word of Title 42s demise has almost certainly reached migrants in Mexico already, who now know that if they cross the Rio Grande, they will be allowed to remain in the United States, with work authorization, for years while they await the outcome of an asylum hearing.

Biden, who repealed or severely curtailed nearly every one of Trumps border policies upon taking office in January 2021, has no plan for what to do now. Axiosreported this weekon a vague plan circulating among Biden officials for a temporary (five-month) moratorium on asylum, but the plan hasnt been approved. Its unclear how it would even be implemented with less than a week to go before Title 42 ends.

But even if the feds do impose a temporary halt to asylum, its too late. Thousands of migrants arecrossing into the El Paso sector every day now, many of them having beenbussed into Ciudad Jurez by the Mexican government. They are coming from large caravans that, having heard of the impending end of Title 42, formed for precisely this purpose.

Many of them are from Nicaragua, which means they cant be deported to Nicaragua (the U.S. has no deportation agreement with the authoritarian dictatorship of Nicaraguas president-for-life Daniel Ortega), and they cant be expelled to Mexico, which refuses to take back Nicaraguans. So the U.S. is just letting them in, giving them a court date for an asylum hearing years from now, and releasing them. Never mind that many of these migrants, by their own admission to reporters, are economic migrants who have no valid asylum claims.

Back in August, my colleague Emily Jashinsky and Ireportedon the migrant encampments and shelters in the Mexican border towns of Matamoros and Reynosa across the Rio Grande from Brownsville and McAllen, Texas, respectively. Most of those migrants were Haitian, although they had been living in various South American countries for years, with legal status. They came to the border for a chance to get into the U.S. and pursue what one of them told us was the American dream, a dream for all Haitian people.

The reason so many had been waiting in Mexican shelters was that they feared being deported back to Haiti, where they hadnt lived in many years, or because they had already tried to cross and been expelled back to Mexico under Title 42. They could not afford to pay the cartels for multiple river crossings, and so they were waiting, they told us, for U.S. policy to change.

Their wait is almost over. Once the threat of expulsion under Title 42 is gone, there will be little to hold them back. The border will become a chaotic, ungovernable disaster. We will likely see the appearance of tent-like refugee camps on the U.S. side of the border, as we saw in Del Rio, Texas, in the fall of 2021. To put the figure of 14,000 arrests per day into context, three years ago, during the 2019 border surge, President Obamas DHS Secretary, Jeh Johnson, said that1,000 apprehensions a day overwhelms the system and that he cannot imagine what 4,000 arrests per day would look like.

2022 wasthe worst year for illegal immigration in U.S. history. 2023 will be worse yet. As long as the Biden administration maintains its open-border policies, illegal immigration will increase, the cartels that profit from migrant smuggling will get rich, and the border will descend into chaos.

John Daniel Davidson is a senior editor at The Federalist. His writing has appeared in the Wall Street Journal, the Claremont Review of Books, The New York Post, and elsewhere. Follow him on Twitter, @johnddavidson.

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End Of Title 42 Caps Worst Year Of Illegal Immigration Ever