March 8, 2016

"Meet Donald Trump’s sister, the tough, respected federal judge Ted Cruz called a ‘radical pro-abortion extremist.'"

By Fred Barbash in The Washington Post. I don't know if Donald Trump deserves much credit for having an accomplished, sensible sister, so this article operates more as an attempt to discredit Ted Cruz.
Cruz’s sole citation for labeling her an “extremist” was a 2000 opinion she wrote for a three-judge panel striking down a New Jersey law banning  so-called “partial birth abortions” — she called law so broad and vague that it could be read to ban almost any abortion at any stage....

As [the Third Circuit panel Maryanne Trump Barry, Samuel Alito, and Leonard Garth] were preparing their opinion... the Supreme Court... rul[ed] in Stenberg v Carhart, that [a similar Nebraska] statute was unconstitutional, first, because it lacked any exception “for the preservation of the… health of the mother” and, second, because, by its vagueness, it “imposes an undue burden on a woman’s ability” to choose “abortion itself”....

The panel could have simply affirmed the District Court ruling in light of the Supreme Court’s decision.... But Barry, joined by Garth, disagreed. “The majority opinion which follows,” Barry wrote at the outset of their opinion, “was in final form before the Supreme Court of the United States heard argument” in Stenberg. “Because nothing in that opinion is at odds with this Court’s opinion; because, in many respects, that opinion confirms and supports this Court’s conclusions and, in other respects, goes both further than and not as far as, this opinion, and, because we see no reason for further delay, we issue this opinion without change.”
That is, Barry and Garth chose to publish a long analysis that had been written before the Supreme Court had issued what was now binding precedent. Instead of redoing their work and producing something that simply and duly followed the Supreme Court, they added a statement that worked to reinforce what the U.S. Supreme Court had done. The Supreme Court opinion had been 5-4, so this bolstering of the Supreme Court majority was significant.

Samuel Alito — who's now, of course, on the Supreme Court — wrote  a concurring opinion calling Judge Barry's opinion "obsolete" and beyond the proper role of a lower court, which is "to follow and apply controlling Supreme Court precedent."

46 comments:

traditionalguy said...

So she is a winner too. Keep them away from strong drink and that family is hard to beat.

tim in vermont said...

Speaking of Trump.... and are we never not? I was just watching Macbeth with my daughter on Amazon (There is a new version free to Prime customers that is pretty good) and the subject of Hadrian's wall came up. She had questions so I went to Wikipedia, and you know what? Hadrian's wall was a stupid idea that wouldn't work and was uneconomic! You see it's possible to know this stuff by applying liberal economic theory to the past, even with incomplete information! It's almost as if people are editing Wikipedia based on political considerations! Naaah! Apparently they never needed to build the wall and went to huge expense, including putting fortifications every five miles for no reason! Stupid xenophobic Romans!

Amexpat said...

Bullshit like this reminds me why I dislike Cruz so much. There's a very wide lane on the high road to take Trump down - no need to stoop to attacking his sister.

traditionalguy said...

I suspect Hadrian's Wall was only built to keep Romans from wandering into Scots tribal areas where they were always wiped out. Or maybe it was just a political statement that Rome could protect the Angles and Saxons from the dangerous red headed men coming out of the Highlands in the north.

traditionalguy said...

So Lying Ted is caught doing his trademark act. What's one more time matter.

Curious George said...

"Judge Maryanne Trump Barry serves as a senior judge on the Third Circuit Court of Appeals, and as Republican frontrunner Donald Trump's older sister."

Odd sentence.

john mosby said...

Isn't there a benefit from the lower court fully explaining its rationale, especially when the SCOTUS seems to have issued binding authority? I can think of several reasons:

1. Some clever lawyer can appeal by trying to distinguish the fact pattern here from the SCOTUS case, to show that this case is outside the scope of the SCOTUS holding. If she's successful, then the lower-court holding has its own legs to stand on.

2. SCOTUS has reversed itself every once in a while. See, e.g., the death penalty. If such reversal should happen here, once again the lower court's logic is preserved and becomes the law again.

3. Other cases may arise in this circuit which are not exactly in the SCOTUS case's fact pattern. By fully fleshing out its logic, the circuit court gives people at least some guidance for these cases.

JSM


tim in vermont said...

I suspect Hadrian's Wall was only built to keep Romans from wandering into Scots tribal areas where they were always wiped out. Or maybe it was just a political statement that Rome could protect the Angles and Saxons from the dangerous red headed men coming out of the Highlands in the north.

Well, you used words like "suspect" and "maybe," didn't you know that liberal historical theory is scientific and gives yes and no answers to a certainty?

Honestly the stupidity of the liberals is just hard to bear sometimes. And because of the D-K line, it is impossible to reason with them. Not to mention that they think they are on a different side of the D-K barrier than that which they actually occupy. But you have to give them props for energy, that they would so thoroughly scrub Wikipedia.

Steve Uhr said...

I wonder if Ted has any problem with conservative extremist courts such as the Alabama Supreme Court, which refuses to accept tthe authority of SCOTUS and, as recently as yesterday, had one of its anti-gay decisions reversed.

john mosby said...

Tradguy, at Hadrian's time the Angles and Saxons were still on the European mainland. The native population of Roman Britain were Celts who had submitted and Romanized themselves. The Wall kept out the untamed Celts. And, in line with your comment, perhaps it helped keep the tame Celts in bounds as well.

Interestingly, I remember an article from a few years ago that reported a mass genetic study of modern-day ethnic English men. They tend to have mitochondrial genetic markers prevalent among Celts, and Y-chromosome markers prevalent among Germans. In other words, they are predominantly the descendants of Anglo-Saxon men and Celtic women; the settlers left their own womenfolk at home.

But all this took place after the fall of Rome.

JSM

Tank said...

Amexpat said...

Bullshit like this reminds me why I dislike Cruz so much. There's a very wide lane on the high road to take Trump down - no need to stoop to attacking his sister.


I think that Trump has said that his sister is a great Judge and he would appoint Supreme Court Justices like her. Cruz citing this decision shows that she unnecessarily went out of her way to put her stamp of approval on a "pro-abortion" opinion. Conservatives/Republicans likely would not be happy to see that kind of nomination. While I wouldn't call this "extreme," I think it's a valid point.

Brando said...

"Tradguy, at Hadrian's time the Angles and Saxons were still on the European mainland. The native population of Roman Britain were Celts who had submitted and Romanized themselves. The Wall kept out the untamed Celts. And, in line with your comment, perhaps it helped keep the tame Celts in bounds as well."

First, I like that we can debate the relative merits of Roman border policy from nearly two thousand years ago. This is why I like this comments section.

Second, like all walls it's only as useful as the willingness of the defenders to patrol it. Ultimately if someone wants to cross, they'll find a way over or under. Not only the wall itself but the area behind the wall has to be regularly watched with backup ready to plug any breaches.

The Romans ultimately fell due to lack of will. They no longer had citizen army but rather undisciplined recruits from the barbarian lands, generals with no loyalty to the emperors (who often bought or murdered their way to power) and a citizenry unwilling to do what it took to preserve their civilization.

The lesson for us is whether Americans are willing to do what it takes to preserve our own civilization. It's less outside force and more inside rot we need to worry about.

Hagar said...

Be a little careful who you call Celts. There certainly were Brythonic speaking people north of the wall, but the Celts arrived in the British Isles not all that long before the Romans and may well still themselves have been regarded as foreign invaders by the "native" peoples.

aritai said...

Remember the commitment pTb made to the evangelical minister? His sister lives it. It’s not your governments place to extinguish free will, though you do it often, a few times the best of intentions. In 2 Corinth Paul is entering Corinth intending to call down brimstone on all the sinners in ths San Francisco of his era, including burning the children of their enslaved enemies as they sacrificed animals to their gods. At the touch of the Spirit he says he set aside his anger and brought the message of his God's love, and salvation for all. A clearer definition of free will there isn't. No government can be moral, only a person can be. The only immorality is when a government denies its people the opportunity to save themselves by their own actions. Only individuals can be charitable. Offer a helping hand up. Change from sinners to not. Government has no place here. A shock to learn that evangelicals aren't interested in banning abortions, They are only against a government forcing them to use their own hands to abort. Don't tax them and they've no blood on their Of which there's always going to be some. Just don't add to it. Only the citizens of San Francisco can save themselves. Ditto Chiraq. 2 Corinth is exactly the argument for the smallest possible, least intrusive, government, no taxes for anything a citizen can do by themselves, observes this Martian. It’s not the government’s responsibility or fault when someone starves. No wonder youe *ok, some) evangelicals love your Ptb. They can't abide a government as God denying them the opportunity to earn their own salvation, and knowing this they are miserable. Even your so called pope and his Marxist, social justice seduction. He kicks dirt every day in Paul’s face. Sigh. far too serious for popcorn again.

traditionalguy said...

@John Mosby...Thanks for the help. I could not recall who was occupied by the Romans, and you are correct that the Angles and then the Saxons came over from Denmark and North Germany after the Romans left. I do remember the Romans first settled in England in Devonshire in a Druid holy area called Avalon ( where the Glastonbury Misic Festival is held today.) London became important later.

Amexpat said...

@Tank
Fair point, Cruz gets a pass on this. Still wouldn't buy a used car from him though.

Tank said...

@Amexpat - I should be firmly behind him, but can't quite warm up to him.

Chuck said...

There is s complete mismatch, if (a) Ted Cruz is criticized for a value judgment about one or more legal opinions, while (b) Donald Trump is given a pass for suggesting that a (wholly fake) story about General Pershing dipping bullets in pig's blood before executing prisoners could be found in history books.

Cruz's rhetoric is standard campaign argumentation. Trump's lies are howlers; they are insane, and weird in a deeply ugly and dangerous way.

CStanley said...

Leaving aside the presidential campaign politics, the reason these types of judicial decisions are considered extreme is that health exceptions are used by abortion rights advocates to perpetuate abortion on demand. There is no possibility for legislatures to put meaningful limits on abortion as long as the judiciary shoots down laws that lack a "health of the mother" exception.

Qwinn said...

CStanley:

Exactly, and this very case proves it. A lack of health exception is used to preserve a procedure as insanely barbaric as partial birth abortion. It takes some brass balls to claim that the NJ law would've led to a slippery slope in one direction because it lacks the legal grease that had, in the very case in question, sent the law into the Grand Canyon in the other direction.

Humperdink said...

So labeling a 3rd trimester abortion supporting judge as extreme? Sounds legit to me.

@Tradguy: I don't have a problem w/you supporting Trump. I may also if Cruz does not make it. But please, give a your rhetoric a breather.

tim in vermont said...

“For mtDNA variation, some studies have measured Native American, European and African contributions to Mexican and Mexican American populations, revealing 85 to 90% of mtDNA lineages are of Native American origin, with the remainder having European (5-7%) or African ancestry (3-5%).

This is what genetic anthropologists will be studying in 2000 years. The mitochondrial DNA of North America. If any wall is built or not, its success or failure will be recorded there. Just as the failure of Native Americans to control illegal immigration is written in DNA today. The women survived, the men were wiped out. Of course no conclusions may be drawn regarding the gender politics of a wall.

Brando said...

"So labeling a 3rd trimester abortion supporting judge as extreme? Sounds legit to me."

Certainly by today's standards. But three new justices from now and we'll probably see the law pushed far enough into a pro-abortion direction that any restrictions will be verboten.

Earnest Prole said...

Her hair! For thirty years the great Donald Trump mystery has been what his hair is supposed to be, and now we know it wants to be his sister’s.

Eric the Fruit Bat said...

If a judge is tough it might have soaked for too long in the marinade.

traditionalguy said...

Free speech certainly is freeing. So many words and so little time.

Ted the Christian Canadian Lawyer deserves a one on one match with Donald, The Queens Killer.

Incidentally Ted is really a master at careful Rhetorical argument in a Courtroom. He structures his rhetoric for Judges that accept his Statement of Facts and must decide a stare decisis opinion built on that fact basis.

So you see what lying about the facts does. Ted sees it, and so he does it. That is OK, until you expect sincere Christians to believe a liar, to achieve themselves a well run theocracy Presidency.

William said...

I was surprise to learn that Maryanne Barry was Trump's sister. After her struggles with crack addiction and troubled tenure as mayor of Washington, she goes on to become a federal judge. I wonder how many people The Donald had to pay off to make that happen.

john mosby said...

Tradguy and Hagar: Sorry if I am not 100% historically accurate on pre-Roman Britain. But, as has been said, no one knows who they were, or what they were doing....

JSM

traditionalguy said...

@ John Mosby...that was what I heard too, no one knows much. And also that they must have been pushed over into Wales. So maybe they are Welsh.

john mosby said...

But they left a legacy that will last forever....hewn into the living rock.....


JSM

Sammy Finkelman said...

Judge Maryanne Trump Barry serves as a senior judge on the Third Circuit Court of Appeals, and as Republican frontrunner Donald Trump's older sister."

@Curious George:

The senetnce probably should have read:

Judge Maryanne Trump Barry serves as a senior judge on the Third Circuit Court of Appeals, and is Republican frontrunner Donald Trump's older sister."

Sammy Finkelman said...

You can check the history of a Wikipedia article, and see how long an idea has bene there. It could be argued that the wall itself didn't do much, but was a declaration (both to Roman soldiers, and to the people outside) of how far Roman law would go.

The wikipedia article only contains a line or two about its value. There is speculation about its purpose, and imagination is used as to who was posted. This kind of bad speculation is common in historical writing after a field gets old.

mccullough said...

Did Trump refer to his sister as the type of judges he would nominate and appoint to the federal courts? If so, then it makes sense for Cruz to criticize her rulings. If not, then it's a pretty weak attack, but federal judges issuing rulings aren't acting as private citizens. So it's fine, if weak, to criticize her ruling.

And Alito's criticism in concurrence shows why he's on the Court. This was an easy case after Carhart. Trump's sister should have just applied that decision and not dropped a footnote. Alito's criticism is valid

Amanda said...

So in essence, Cruz called the Supreme Court Justices "radical pro abortion extremists" by proxy of Barry. That alone proves he doesn't have the temperament to be President. I believe his religious views which are part of the Dominionist sect are extreme and I don't think he has the capability to separate himself from his odd religion.

mccullough said...

Amanda,

All beliefs are odd. That's why there are many religions in the world (and subsections and factions of the five major religions) and why we have political parties that have even string internal disagreements. The society you envision as best sounds too boring a place to live in. Appreciate the oddness of divergent views and you will appreciate the oddness of your own views.

mccullough said...

And to complete the story about this case, the man who wrote the concurring opinion went on to replace O'Connor, who was the fifth vote in the Supreme Court case his concurrence cites. In 2007, the Court upheld the federal partial birth abortion law that was pretty miluch indistinguishable from the Nebraska law struck down in 2000.

Partial birth abortion bans are supported by a wide majority of Americans.

Amanda said...

Mucollogh,
I have no issue with people practicing their religion, odd or not. I do not "envision" any sort of society. Do you? I do however have a problem with the POTUS belonging to a religion whose main tenet is that Biblical law usurps secular law. Look it up. We are not yet a Theocracy. I don't believe Cruz will abandon his belief sytem and may not be able to be act outside his religion's teachings.

Beldar said...

I think it's fair to characterize Trump's sister as the white sheep of the family.

I think it's also fair to point out her decision in this particular abortion case in a factually accurate way, which is exactly what Ted Cruz has done.

Likewise, it's completely fair for Cruz to refer to Trump's sister as a Clinton appointee to the Third Circuit. There's no additional obligation to cover her past job history -- although it's entirely appropriate for Trump to bring up that his sister was originally appointed by Bush-41 to the district court bench.

That leads directly to the discussion of why, then, Clinton chose to elevate her, and the answer is obvious to anyone who knows a single damned thing about judicial nominations & politics: It made her easy to confirm, despite the fact that her record as a district judge made her more attractive to a Democratic POTUS considering her for a circuit court seat. She was someone who had already proven herself to be "another Souter." That's exactly what made her attractive to Clinton.

MORAL: Donald Trump is far more likely to appoint SCOTUS Justices like Souter or his sister, rather than SCOTUS Justices like Scalia or Alito.

Bonus question for the truly well-informed: What does Ted Cruz have in common with one of the two circuit court judges whom Trump has mentioned by name as examples of the kind of circuit court judges he'd elevate to the SCOTUS? I would bet you any amount of money that Trump couldn't answer this question, and I'll be surprised if any of his supporters here can. But I'd be disappointed if our host can't.

n.n said...

Class diversity. They both have a "Trump" skin color. Well, there is a correlation, or weak evidence to support a conclusion. Perhaps.

Beldar said...

Answer to the bonus question, "What does Ted Cruz have in common with one of the two circuit court judges whom Trump has mentioned by name as examples of the kind of circuit court judges he'd elevate to the SCOTUS?"

At the GOP debate on the evening of Justice Scalia's death, Trump mentioned two sitting circuit judges -- Diane Sykes of the Seventh Circuit and Bill Pryor of the Eleventh Circuit, both Bush-43 appointees.

Pryor's previous job was as the attorney general of Alabama. In that capacity, Pryor and his office represented that state in federal-court litigation over the constitutionality of the display of the Ten Commandments that had been erected by Alabama Supreme Court Chief Justice Roy Moore in 2002.

This was one of a wave of federal court cases in the early 2000s involving the display of the Ten Commandments on public property. Texas Attorney General (now governor) Greg Abbott and Texas Solicitor General Ted Cruz also had such a case, brought against the State of Texas by a homeless lawyer who insisted on representing himself pro se. The Texas display was on the state capitol grounds, and the circumstances under which it had been erected gave Texas a much stronger argument that its erection had a secular, education purpose rather than being an attempt to establish an official state religion. And thus, while states like Alabama and Kentucky were losing their Ten Commandment cases in the lower federal courts, Abbott & Cruz won their case at the district court level and got that result affirmed by a unanimous Fifth Circuit panel.

Normally when you've won in the court of appeals, you don't want to see the SCOTUS take your case up via a grant of certiorari. And it was extremely unlikely that the SCOTUS would grant a cert application from the pro se homeless Austin lawyer in the Texas case.

But Cruz had convinced Abbott that the Texas AG's office should lead the nation's attorneys general in fighting for core constitutional rights, including religious liberty. So they made a strategic decision that they would actually urge the SCOTUS to grant review of the Texas decision they'd already won, if the SCOTUS was also going to be taking up other Establishment Clause cases from other states.

(continued next comment)

Beldar said...

The Kentucky case, McCreary County v. ACLU ended in a 5/4 SCOTUS decision that the display of the Ten Commandments in two Kentucky courtrooms was a violation of the First Amendment's Establishment Clause. But on that very same day, in Van Orden v. Perry, Cruz and Abbott actually won the Texas case, upholding Texas' display of the very same Ten Commandments on the Texas Capitol grounds that had been ruled unconstitutional to display in Kentucky courtrooms.

But the Alabama case involving then AG Bill Pryor and Chief Justice Roy Moore, ended up turning in a different direction when Moore refused to comply with the federal courts' orders, arguing (ridiculously) that the First Amendment doesn't apply to the states. It became Attorney General Bill Pryor's job to remove Moore from office for his deliberate violation of binding federal court orders that had been neither stayed nor properly set up for appeal. And in a spectacular display of fidelity to the Rule of Law, Bill Pryor proceeded to do exactly that.

For which, predictably, he was smeared by the NYT and the Dems when Dubya nominated him to the Eleventh Circuit.

Pryor is a fine judge and would be a good SCOTUS nominee. But Trump has already forgotten his name -- at two different later appearances, he could only remember Judge Sykes' name -- and almost certainly knows nothing about how either Bill Pryor or Ted Cruz was fighting for religious liberty and the Rule of Law.

Beldar said...

A minor correction: I earlier wrote that Trump's sister was appointed to the district court bench by Bush-41. It was actually Reagan.

mccullough said...

Amanda,

Cruz is as religious as Obama, which means he is not very religious at all. He went to Princeton and Harvard Law and then to work in DC. These are not places where religious people flock. It's virtue signaling to a portion of the GOP base, no more no less.

But taking your comment at face value, do you agree with Trump that we need to temporarily ban Muslims from immigrating to the US because it sounds like you believe we should be wary of Muslims who believe in sharia.

Beldar said...

@ mccullough: Yes, Cruz went to Princeton -- after graduating from Second Baptist High School in Houston. You obviously don't know much about Cruz' background. Read his book, not his Wikipedia entry, if you're curious. He actually wrote it himself.

Joe said...

Wow, Beldar, can you fit your head any further up Cruz's ass?

tim in vermont said...

But taking your[Amanda's] comment at face value, do you agree with Trump that we need to temporarily ban Muslims from immigrating to the US because it sounds like you believe we should be wary of Muslims who believe in sharia.

You do understand that any question directed towards Amanda can only be rhetorical? She is a talking point regurgitator. She is apparently unable to even grasp your point. Her reaction will not be, "How do I answer this legitimate question?", but rather "what response gives me the most perceived political advantage?"