Politics
Opinion: Unhappy with the Supreme Court? Your vote for president could make it worse
By now it shouldn’t need to be said: When Americans vote for a president, the federal courts are on the ballot as well. Yet too few voters, especially among those in the decisive middle, make their choice with that in mind.
Think about it: The issues that voters do care most about in this election year — immigration, reproductive rights, the economy and government regulation, gun control — increasingly are decided in federal courts reshaped by Donald Trump, including the Supreme Court, because of the paralyzing dysfunction in Congress.
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Jackie Calmes
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
Add to those perennial issues the novel one of 2024: Trump’s legal accountability. Here, the judiciary’s impact couldn’t be more clear. Foot-dragging — by the Supreme Court, where three Trump appointees sit, and at the Florida district court where a Trump-appointed judge presides — has all but assured that voters won’t get criminal verdicts before election day on the former president’s efforts to overturn his 2020 defeat and to squirrel away top-secret documents.
We’ve learned the hard way: It matters whether Trump or President Biden is picking federal judges, just as it matters which party controls the Senate and has the power to confirm them.
Only since the 2022 Dobbs decision overturning a half-century of abortion rights have Democrats begun to wise up to what Republicans have long known: With executive and legislative power, your party can put its stamp on the unelected third branch of government, the judiciary, and that legacy can long outlast the politicians. As Trump lackey Sen. Lindsey Graham of South Carolina recently said of 2024, “One of the big issues on the ballot is trying to have a more conservative judiciary.”
Be forewarned, Democrats. Flip the script — mobilize your voters around this issue.
Here are the stakes: If Biden wins, he can continue the unfinished work of trying to offset the right-wing tilt (and white male dominance) that Trump gave to the courts by naming more judges in a single term than any president other than Jimmy Carter. Biden’s effort could well be slowed if, as widely expected, Republicans take control of the Senate and gum up the confirmation works.
But better slow action in the Senate on Biden appointees than a return, if Trump wins, to a fast track for extreme right-wingers. Such as Trump-appointee Aileen Cannon, the novice Florida district judge (mis)handling the former president’s trial involving classified material. Or Matthew Kacsmaryk, the Texas district judge and culture warrior who last year sought to outlaw mifepristone, one of two drugs used for the medication abortions that account for more than half of all abortions in the country. He filled his opinion with the jargon of antiabortion activists, writing at one point that mifepristone, which is used just up to 10 weeks’ pregnancy, “ultimately starves the unborn human until death.” The Supreme Court will hear that case March 26.
Another consideration for voters: While a reelected Biden likely wouldn’t be able to alter the imbalance at a Supreme Court between six archconservatives and three liberals, he could prevent it from getting even worse.
None of the justices are expected to retire soon. However, the two oldest (and most conservative), Clarence Thomas and Samuel A. Alito Jr., are in their mid-70s and could opt to step aside if Trump wins, court watchers speculate, so that he could replace them with like-minded jurists young enough to serve for decades. (In normal times, we might already be rid of Thomas through impeachment or resignation, given his well-documented ethical lapses and his refusal to recuse himself from Jan. 6 cases despite his wife’s complicity in efforts to overturn Biden’s election. But these aren’t normal times.)
When Trump reluctantly left the White House, his judicial picks made up one-third of the Supreme Court, nearly one-third of the 13 appeals courts and more than a quarter of the 94 district courts. Because relative youth and proven Republican bona fides were the job criteria set by Trump and the trio to whom he outsourced his court-packing — Senate Republican leader Mitch McConnell, then-White House Counsel Don McGahn and former Federalist Society leader Leonard Leo — Trump judges likely will be prominent on the federal bench well past midcentury.
“Topping Trump seems impossible” was the headline last fall on an analysis of Biden’s judicial appointments by Russell Wheeler, of the Brookings Institution, who tracks the courts. In an update in January, however, Wheeler said that although Biden probably won’t top Trump’s one-term total for judges on the appeals courts, he could match him on district court judges.
Should Biden fall short, it won’t be for lack of trying. More than Democratic predecessors Bill Clinton and Barack Obama, he has made judicial nominations a priority in the wake of Team Trump’s single-minded courts makeover. Better late than never?
Biden was, after all, a leader on the Senate Judiciary Committee for years; he knows his stuff. (Except we do have him to thank for Thomas’ confirmation three decades ago.) And Senate Democrats, with their one-vote majority, have helped. Together, they set a record for confirmations in a president’s first year in office, though the pace was only “so-so,” as Wheeler put it, by the end of last year.
One problem is that Biden didn’t inherit nearly as many vacancies as Trump did. McConnell had thwarted confirmation of many nominees in Obama’s final year — most famously, Merrick Garland for the Supreme Court — so Trump was able to fill the seats. Then in Trump’s final year, McConnell nearly made good on a vow to “leave no vacancy behind”; he even rammed 14 nominees to confirmation after Trump lost the 2020 election, the first time a defeated president’s nominees were confirmed since 1897.
Now Democrats must copy McConnell’s zeal. Fifty-seven judgeships are open, and Biden has picked nominees for just a third of them. For one thing, he and Senate leaders are being too deferential to Republicans about whom to nominate for red-state vacancies. Just get ‘em all filled before election day, lest Trump and a Republican-run Senate once again inherit a bonanza of seats.
If the republic is lucky, voters will give Biden another four years to keep at it. And that’s more likely if enough of them remember: The bench is on the ballot too.
Politics
Trump ally diGenova tapped to lead DOJ probe into Brennan over Russia probe origins
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The Justice Department is turning to former Trump attorney Joeseph diGenova to spearhead a probe into ex-CIA Director John Brennan and others over the origins of the Trump-Russia investigation, as the department reshuffles leadership of the sprawling inquiry.
Acting Attorney General Todd Blanche has tapped diGenova to serve as counsel overseeing the matter, according to a New York Times report, putting a former Trump attorney in a key role in the high-profile probe. A federal grand jury seated in Miami has been impaneled since late last year.
The Department of Justice did not immediately respond to Fox News Digital’s request for comment.
DOJ ACTIVELY PREPARING TO ISSUE GRAND JURY SUBPOENAS RELATING TO JOHN BRENNAN INVESTIGATION: SOURCES
Joseph diGenova represented President Donald Trump during special counsel Robert Mueller’s investigation. (Tom Williams/CQ-Roll Call/Getty Images)
DiGenova, a former U.S. attorney in Washington, D.C., who represented Trump during special counsel Robert Mueller’s investigation, has repeatedly accused Brennan of misconduct tied to the origins of the Russia probe—allegations that have not resulted in criminal charges.
He also said in a 2018 appearance on Fox News that Brennan colluded with the FBI and DOJ to frame Trump.
The origins of the Russia investigation have been the subject of ongoing scrutiny by Trump allies, who have argued that intelligence and law enforcement officials improperly launched the probe.
BRENNAN INDICTMENT COULD COME WITHIN ‘WEEKS’ AS PROSECUTORS REQUEST OFFICIAL TRANSCRIPTS
Joseph diGenova has previously said that ex-CIA chief John Brennan colluded with the FBI and DOJ to frame Trump. (Tom Williams/CQ-Roll Call/Getty Images)
DiGenova’s appointment follows the ouster of Maria Medetis Long, a national security prosecutor in the South Florida U.S. attorney’s office. She had been overseeing the inquiry, including a false statements probe related to Brennan and broader conspiracy-related investigations.
As the investigation continues, federal investigators have issued subpoenas seeking information related to intelligence assessments of Russian interference in the 2016 election.
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John Brennan has denied any wrongdoing related to the Russia investigation. (William B. Plowman/NBC/NBC NewsWire via Getty Images; Alex Wong/Getty Images)
Brennan has previously denied wrongdoing related to the Russia investigation and has defended the intelligence community’s assessment that Moscow interfered in the 2016 election.
Politics
Supreme Court weighs phone searches to find criminals amid complaints of ‘digital dragnets’
WASHINGTON — A man carrying a gun and a cellphone entered a federal credit union in a small town in central Virginia in May 2019 and demanded cash.
He left with $195,000 in a bag and no clue to his identity. But his smartphone was keeping track of him.
What happened next could yield a landmark ruling from the Supreme Court on the 4th Amendment and its restrictions against “unreasonable searches.” The court will hear arguments on the issue on April 27.
Typically, police use tips or leads to find suspects, then seek a search warrant from a judge to enter a house or other private area to seize the evidence that can prove a crime.
Civil libertarians say the new “digital dragnets” work in reverse.
“It’s grab the data and search first. Suspicion later. That’s opposite of how our system has worked, and it’s really dangerous,” said Jake Laperruque, an attorney for the Center for Democracy & Technology.
But these new data scans can be effective in finding criminals.
Lacking leads in the Virginia bank robbery, a police detective turned to what one judge in the case called a “groundbreaking investigative tool … enabling the relentless collection of eerily precise location data.”
Cellphones can be tracked through towers, and Google stored this location history data for hundreds of millions of users. The detective sent Google a demand for information known as a “geofence warrant,” referring to a virtual fence around a particular geographic area at a specific time.
The officer sought phones that were within 150 yards of the bank during the hour of the robbery. He used that data to locate Okello Chatrie, then obtained a search warrant of his home where the cash and the holdup notes were found.
Chatrie entered a conditional guilty plea, but the Supreme Court will hear his appeal next week.
The justices agreed to decide whether geofence warrants violate the 4th Amendment.
The outcome may go beyond location tracking. At issue more broadly is the legal status of the vast amount of privately stored data that can be easily scanned.
This may include words or phrases found in Google searches or in emails. For example, investigators may want to know who searched for a particular address in the weeks before an arson or a murder took place there or who searched for information on making a particular type of bomb.
Judges are deeply divided on how this fits with the 4th Amendment.
Two years ago, the conservative U.S. Court of Appeals for the 5th Circuit in New Orleans ruled “geofence warrants are general warrants categorically prohibited by the 4th Amendment.”
Chief Justice John Roberts sided with the court’s liberals in a 4th Amendment privacy case in 2018.
(Alex Wong / Getty Images)
Historians of the 4th Amendment say the constitutional ban on “unreasonable searches and seizures” arose from the anger in the American colonies over British officers using general warrants to search homes and stores even when they had no reason to suspect any particular person of wrongdoing.
The National Assn. of Criminal Defense Lawyers relies on that contention in opposing geofence warrants.
Its lawyers argued the government obtained Chatrie’s “private location information … with an unconstitutional general warrant that compelled Google to conduct a fishing expedition through millions of Google accounts, without any basis for believing that any one of them would contain incriminating evidence.”
Meanwhile, the more liberal 4th Circuit in Virginia divided 7-7 to reject Chatrie’s appeal. Several judges explained the law was not clear, and the police officer had done nothing wrong.
“There was no search here,” Judge J. Harvie Wilkinson wrote in a concurring opinion that defended the use of this tracking data.
He pointed to Supreme Court rulings in the 1970s declaring that check records held by a bank or dialing records held by a phone company were not private and could be searched by investigators without a warrant.
Chatrie had agreed to having his location records held by Google. If financial records for several months are not private, the judge wrote, “surely this request for a two-hour snapshot of one’s public movements” is not private either.
Google changed its policy in 2023 and no longer stores location history data for all of its users. But cellphone carriers continue to receive warrants that seek tracking data.
Wilkinson, a prominent conservative from the Reagan era, also argued it would be a mistake for the courts to “frustrate law enforcement’s ability to keep pace with tech-savvy criminals” or cause “more cold cases to go unsolved. Think of a murder where the culprit leaves behind his encrypted phone and nothing else. No fingerprints, no witnesses, no murder weapon. But because the killer allowed Google to track his location, a geofence warrant can crack the case,” he wrote.
Judges in Los Angeles upheld the use of a geofence warrant to find and convict two men for a robbery and murder in a bank parking lot in Paramount.
The victim, Adbadalla Thabet, collected cash from gas stations in Downey, Bellflower, Compton and Lynwood early in the morning before driving to the bank.
After he was robbed and shot, a Los Angeles County sheriff’s detective found video surveillance that showed he had been followed by two cars whose license plates could not be seen.
The detective then sought a geofence warrant from a Superior Court judge that asked Google for location data for six designated spots on the morning of the murder.
That led to the identification of Daniel Meza and Walter Meneses, who pleaded guilty to the crimes. A California Court of Appeal rejected their 4th Amendment claim in 2023, even though the judges said they had legal doubts about the “novelty of the particular surveillance technique at issue.”
The Supreme Court has also been split on how to apply the 4th Amendment to new types of surveillance.
By a 5-4 vote, the court in 2018 ruled the FBI should have obtained a search warrant before it required a cellphone company to turn over 127 days of records for Timothy Carpenter, a suspect in a series of store robberies in Michigan.
The data confirmed Carpenter was nearby when four of the stores were robbed.
Chief Justice John G. Roberts, joined by four liberal justices, said this lengthy surveillance violated privacy rights protected by the 4th Amendment.
The “seismic shifts in technology” could permit total surveillance of the public, Roberts wrote, and “we decline to grant the state unrestricted access” to these databases.
But he described the Carpenter decision as “narrow” because it turned on the many weeks of surveillance data.
In dissent, four conservatives questioned how tracking someone’s driving violates their privacy. Surveillance cameras and license plate readers are commonly used by investigators and have rarely been challenged.
Solicitor Gen. D. John Sauer relies on that argument in his defense of Chatrie’s conviction. “An individual has no reasonable expectation of privacy in movements that anyone could see,” he wrote.
The justices will issue a decision by the end of June.
Politics
Trump renews bridge, power plant threat against Iran in push for deal, mocks ‘tough guy’ IRGC
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President Donald Trump mocked the Islamic Revolutionary Guard on Sunday morning for staking claim to a Strait of Hormuz “blockade” the U.S. military had already put in place.
“Iran recently announced that they were closing the Strait, which is strange, because our BLOCKADE has already closed it,” Trump wrote on Truth Social. “They’re helping us without knowing, and they are the ones that lose with the closed passage, $500 Million Dollars a day! The United States loses nothing.
“In fact, many Ships are headed, right now, to the U.S., Texas, Louisiana, and Alaska, to load up, compliments of the IRGC, always wanting to be ‘the tough guy!’”
Trump declared Saturday’s IRGC fire was “a total violation” of the ceasefire.
“Iran decided to fire bullets yesterday in the Strait of Hormuz — A Total Violation of our Ceasefire Agreement!” his post began.
“Many of them were aimed at a French Ship, and a Freighter from the United Kingdom. That wasn’t nice, was it? My Representatives are going to Islamabad, Pakistan — They will be there tomorrow evening, for Negotiations.”
Trump remains hopeful about diplomacy, but is not ruling out a return to force, where he once warned about ending “civilation” in Iran as they know it.
“We’re offering a very fair and reasonable DEAL, and I hope they take it because, if they don’t, the United States is going to knock out every single Power Plant, and every single Bridge, in Iran,” Trump’s stern warning continued.
“NO MORE MR. NICE GUY!
“They’ll come down fast, they’ll come down easy and, if they don’t take the DEAL, it will be my Honor to do what has to be done, which should have been done to Iran, by other Presidents, for the last 47 years. IT’S TIME FOR THE IRAN KILLING MACHINE TO END!”
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