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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Audio: Talking about Zubik on Houston Public Radio

May 31st, 2016

Today I was a guest on “Houston Matters,” an excellent program on Houston Public Radio to talk about Zubik and the Little Sisters of the Poor. You can listen here:

Airport Delays in Houston

May 28th, 2016

Yesterday I was schedule to fly back from Philadelphia to Houston. Due to awful storms in Houston, my 12:19 pm flight was cancelled by 7:00 am. Bush Intercontinental Airport (IAH) had a ground stop in effect for most of the day. Other flights were diverted to New Orleans or Austin. I was rebooked for a 5:40 pm flight that did not leave until 7:00 ET. Our flight was schedule to land around 9:30 CT. Before landing, we had to circle in the air for about 30 minutes. Finally, we landed at 10:00 CT. But then something absolutely crazy happened. There were so many airplanes backed up on the tarmac that there were not enough empty gates to pull into. When we finally landed, the captain announced that there were 14 planes ahead of us waiting for gates. Every 30 minutes, the captain would announce that we were moving up in the line, and would soon have a gate in another 30 minutes. The announcements came at 10:30, 11:00, 11:30, 12:00, and 12:30. Finally, around 1:15 we pulled into a gate. I spent about 3 hours in the air, and about 3 hours on the ground waiting for a gate.

The pilot said in 21 years he had never seen a delay quite this bad. About an hour in, the flight attendants started handing out water. About two hours in, they gave a round of free snacks. Fortunately, no one on the plane misbehaved. Most people were resolved that their travel plans were absolutely screwed. One guy I talked to was flying to Brazil for a wedding on Saturday. No way he made it. The person sitting next to me was heading to Las Vegas for a weekend. She was rebooked for a Sunday evening flight to Vegas. So she will be stuck in Houston for two days.

After I entered the terminal, it was surreal. There are two customer service desks: one in Terminal C and one in Terminal E. As the below videos illustrate, the line snaked hundreds of people deep. It took me roughly two minutes to walk the line, so to speak. And I fear that the customer service reps will not be able to help these poor stranded passengers on memorial day weekend. Flights will be backed up for days, and United does not provide free hotels when delays are caused by weather. I saw a countless number of people sleeping throughout the terminal. Even worse, all food concessions were closed, so there was nothing to eat late at night. I am grateful that I was able to get home.

Donald Trump’s Dangerous Attack on U.S. District Judge Gonzalo Curiel and the “Rigged” Federal Judiciary

May 27th, 2016

During his rally in San Diego, Donald Trump spent twelve minutes lambasting U.S. District Judge Gonzalo Curiel and Magistrate Judge William Gallo. His jaw-dropping comments reflect an utter ignorance about what judges do, and amounts to a dangerous attacks on the fairness of our court system. Whatever negligible good will he built up by nominating a list of solid potential nominees to the Supreme Court was squandered with this scurrilous attack. Those who defended his selection process should immediately rebuke him for these baseless insults.

The remarks began at 22:16. I’ve cleaned up the C-SPAN closed captioning so it makes it easier to follow along, but I encourage you to actually watch the video.

Does everybody have a little time? [cheers and applause] so I end up with a lawsuit, and it ends up in San Diego in federal court. It is a disgrace the way the federal court is acting, because it is a simple lawsuit. Everybody that took the so-called course. Trump University is in San Diego. The trial, they wanted it to start while I am running for president. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .

But I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler. And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barrack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us. The good news is it is a jury trial. We can even get a fully jury. We are entitled to a jury, and we want a jury of 12 people. And you are going to watch. First of all, it should be dismissed. Watch how we win it was I have been treated unfairly. Very much like with the veterans, where I raised all that money, but on Tuesday I am announcing all of the groups we are giving almost $6 million to. You turn things around. Here is the story. We have a law firm named Robin Skeller. It is the spin-off of two law firms. Two of those partners went to jail for an extended period of time for doing very bad things legally. This same group is the lawyers against. So what happens is the judge, who happens to be, we believe Mexican, which is great. I think that is fine. You know what? I think the Mexicans are going to end up loving Donald Trump when I give all these jobs. I think they are going to love it. I think they are going to love me. . . .

A lot of people said before you run you should settle. I said I don’t care. The people understand it. And they use it. So when I have 10,000 people, and when we have mostly unbelievable reviews, how do you settle? And in fact, when the case started originally, I said how can I settle when I have a review like this? Now I should have settled, but I am glad I didn’t. I will be seeing you in November either as president. And I will say this. I have all these great reviews, but I will say this. I think Judge Curiel should be ashamed of himself. I think it is a disgrace he is doing this. I look forward to going before a jury, not this judge, and we will win that trial. We will win that trial. Check it out. Check it out, folks. You know, I tell this to people.  November 28. I think it is scheduled for. It should not be a trial. It should be a summary judgment dismissal. . . .

It is a disgrace. It is a rigged system. I had a rigged system, except we won by so much. This court system, the judges in this court system, federal court. They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace. Ok? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case? Where everybody likes it. Ok. This is called life, folks. . . .

I am speechless. Absolutely, and totally speechless. I was highly critical of President Obama’s attacks on the Court. I cringe to think what will happen when the Supreme Court rules against him. I repeat everything I said here: Donald Trump is unqualified to be President.

Update: Yesterday, shortly after Trump’s speech, Judge Curiel issued a decision unsealing a “playbook” used by Trump University employees. The opinion referenced the fact that Trump “place the integrity off these court proceedings at issue.”

Update: Trump continues to tweet that Judge Curiel is biased against him.

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Video: “The Next Supreme Court Battle” at the National Constitution Center.

May 27th, 2016

The National Constitution Center hosted me for a discussion on “The Next Supreme Court Battle.” I was joined by former 3rd Circuit Judge Timothy Lewis, Michael Gerhardt of UNC Law School, and David Strauss of the University of Chicago Law School. As always, the event was moderated by Jeff Rosen. I was the sole person on the stage who did not think the Senate had any obligation to provide a hearing for Judge Garland. My remarks were based on articles I wrote in the Wall Street Journal and National Review. I also previewed some of the arguments advanced in Restoring the Lost Confirmation, which I co-authored with Randy Barnett for the University of Chicago Law Review Online.

You can watch the video here (my questions come at 10:30, 23:30, 38:40, 50:05, and 1:10:10).

 

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#SCOTUS Life Goals: RBG References My Breyer-Page Statistics During 2nd Circuit Judicial Conference

May 27th, 2016

Yesterday Justice Ginsburg addressed the 2nd Circuit Judicial Conference. She made some news with her comment that “Eight is not a good number” for the Court, but the far more momentous occasion came when she discussed records set during the Term. This morning Will Baude emailed me, and said “RBG just mentioned you in her speech at the second circuit judicial conference.” I patiently waited for the transcript to be posted, and she did not disappoint.

From her prepared remarks:

Records set during the term. According to a law professor who keeps tabs on these things, then blogs about them, Justice Breyer asked the longest question at oral argument. In United States v. Texas, a challenge to the President’s immigration executive order, Breyer’s inquiry ran 52 transcript lines.

That law professor would be me! #SCOTUS life goals. Not as good as an actual citation in the U.S. Reports, but I’ll take it for a start.

I am glad to perform this public service, and do whatever is in my power to highlight the plight of the poor advocate who has to cede 10% of his time for a single question that has no answer.

RBG-breyer

Breyer’s 52-line question in U.S. v. Texas–which lasted 3 minutes and 15 seconds–was not just the record for this term, but the longest one I have ever seen. (If anyone can find a longer Breyer question, please send it in). He went for 49 lines in Zubik v. Burwell. His previous record was in 44 lines in Hosannah-Tabor. In Bond, he spoke for 38 lines uninterrupted. 36 Lines in FERC v. Electric Power Supply Association. He went 32 lines in Medtronic v. Boston Scientific Corp. He had 35 lines in EPA v. EME Homer. In Franchise Tax Bd. of Cal. v. Hyatt, Justice Breyer spoke had 34 lines. Alas, only 27 lines inZivotofsky.