Big Biotech Is Hustling To Beat Coronavirus

Coronavirus poses “low immediate risk” to Americans at this time, said Health and Human Services Sec. Alex Azar today in a press conference. But “ultimately we expect we will see community spread”—transmission from person to person, like an ordinary cold or flu—”in the United States. It’s not a question of if this will happen, but when this will happen, and how many people in this country will have severe illnesses,” said Nancy Messonnier, director of the National Center for Immunization and Respiratory Diseases.

The official death rate for folks infected with the virus, technically known as covid-19, stands at around 2.3 percent as of now, but there are reasons to question that figure. It is likely that most cases of the disease are mild and go undetected by medical personnel, which would suggest a much lower overall death rate. On the other hand, the prevalence of undetected mild cases suggests that the virus may already have slipped through efforts to quarantine carriers.

Biotech companies are racing to develop a vaccine against the new malady while others are testing their currently available anti-viral treatments to see if they can ameliorate the symptoms of infected people. The biotech company Moderna developed its vaccine against Covid-19 just 42 days after the company received the genetic sequence information on the coronavirus. The company has already delivered that vaccine to the National Institutes of Health for human trials whose results should be known by the end of April. Even if successful, a vaccine would not be widely available for at least a year.

Another avenue of attack would be to develop anti-viral drugs to treat folks who do become infected. Gilead Sciences’ anti-viral drug remdesivir is being tested in two clinical trials in China now. Results from those trials should be available by the end of April.

The rush to develop vaccines and treatments won’t immediately stop the spread of the virus, but the rapid global response should significantly blunt the epidemic’s health and economic effects in the coming year.

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California’s Fees on New Development Are 3 Times the National Average. New State Legislation Would Cap Them.

A lot of public policies in California make housing more expensive and more difficult to build. That includes the impact fees that cities and counties impose on new developments to pay for infrastructure, schools, and other services.

According to a 2015 survey, the national average impact fee was $5,484 for a two-bedroom apartment and $8,298 for a single-family home (not including utility hook-up fees). In California, the average fees were $15,555 for a two-bed apartment, and $23,455 for a single-family home.

A 2018 study from the University of Berkeley’s Terner Center found that some cities were charging impact fees in excess of $150,000 for single-family homes, and that these fees could be as much as 18 percent of an area’s median home price.

To ease the burden of these fees, California lawmakers introduced a package of bills yesterday that will cap the fees cities can charge, change the way they are assessed, and give developers more tools to claw back unjustified fees they’ve been pinged with.

“During the worst housing crisis in the history of California, when housing units can cost upwards of $800,000 per door and impact fees can account for one-sixth of the cost of each unit, we have to think differently,” said Assemblymember David Chiu (D–San Francisco), one of the lawmakers sponsoring the fee reform bills, at a press conference.

Chiu’s own bill, Assembly Bill (A.B.) 3148, would require cities to reduce the fees they impose on affordable units produced through the state’s Density Bonus Law, which allows developers to build larger buildings in exchange for renting out a portion of their new units at below-market rates to lower-income tenants.

The bill would reduce fees by 75 percent for units reserved for very low-income renters, with smaller fee reductions for low- and moderate-income units.

Another bill in the package, Assemblymember Tim Grayson’s (D–Concord) A.B. 3145, caps the total value of per-unit fees that local governments can impose on any housing development at 12 percent of a city or county’s median home price.

With the state median home price at $600,000—and cities like San Francisco’s median home value at $1.3 million, according to Zillow—that still leaves room for incredibly steep impact fees. However, putting an upper bound on what local governments can charge does limit these fees’ use as a tool by NIMBY (“not in my backyard”) activists.

“You do have a lot of cities that use the fees in somewhat nefarious ways to block housing,” says Matt Lewis of California YIMBY, who notes that local officials can cynically slap on exorbitant fees that are intended to make proposed housing projects uneconomical.

Two other bills introduced by Grayson would limit local governments to only imposing impact fees and other requirements that are proportional to the impact of the new housing being proposed, and allow developers to pay what they consider unfair fees in protest, and potentially reclaim fees they were charged.

A mix of high spending and state restrictions on raising taxes means local governments in California depend heavily on impact fees for raising revenue. Any effort to limit their power to impose these fees is, therefore, going to be controversial.

Representatives for both the state’s Association of Counties and the League of Cities—which represent local governments—stressed to the Associated Press that impact fees are used to pay for vital infrastructure, and that state-level limits on these fees should be coupled with additional state funding.

One bill in the package would partially address this concern by creating a new state grant program that would partially reimburse local governments for the impact fees they waive on affordable housing projects.

The bills are still in a very preliminary stage, and are going to be heavily marked up. So there’s a chance that more revenue for cities and counties will be included somewhere. (Expecting local governments to cut costs or find efficiencies in how they spend their money is probably too much to ask.)

Fixing California’s pressing housing affordability issues will require building a lot more homes. That’s not going to be possible while local governments impose the highest fees in the country on new development. Yesterday’s suite of bills is thus a step in the right direction.

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Supreme Court: Mexican Family Can’t Sue Border Patrol Agent in Cross-Border Shooting

In June 2010, U.S. Border Patrol Agent Jesus Mesa, Jr. fatally shot Sergio Adrian Hernández Guereca, a 15-year-old Mexican national, on the southern border. On Tuesday, the U.S. Supreme Court ruled that the Hernández family cannot sue for damages. 

As Reason previously reported, Agent Mesa responded to reports of human smuggling near the Paso del Norte port of entry. The port separates El Paso, Texas, and Ciudad Juarez, Mexico. While riding a bicycle, Mesa approached Hernández and a small group of Mexican nationals in a culvert right on the border. After dismounting his bicycle, Mesa dragged one of the individuals to the American side of the border to detain him. He also pointed his gun toward Hernández and fired. Hernández died on the Mexican side of the border.

Other facts of the case are still being debated. A statement from the Department of Justice said that Hernández was shot while “smugglers attempting an illegal border crossing” were throwing rocks at Mesa while he detained a suspect. FBI Special Agent Andrea Simmons said that Mesa was surrounded by those throwing rocks before he fired. Cellphone footage from the scene, however, challenges this claim.

Meanwhile, a lawyer for the Hernández family has stated that they were informed by American officials that Hernández was not among those throwing rocks. His family maintains that he was simply playing with his friends in the culvert at the time of the shooting.

In its ruling on Tuesday, the U.S. Supreme Court ruled that Agent Mesa may not be sued by the family for damages.

“A cross-border shooting claim has foreign relations and national security implications,” observed the majority opinion of Justice Samuel Alito. And “Congress, which has authority in the field of foreign affairs, has chosen not to create” a federal cause of action in cases such as this. In fact, Alito maintained, Congress has left “the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process.” In other words, Alito held, the Supreme Court has no business allowing this sort of suit. That decision is up to Congress.

Writing in dissent, Justice Ruth Bader Ginsburg argued that the Court’s refusal to grant the family a remedy still had foreign policy implications. Ginsburg also questioned how allowing the family to sue over “an unjustified killing” would undermine border security.

The full decision is available here.

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Video: Orlando Cops Arrest Crying Six-Year-Old Girl

Body camera footage released today shows the arrest of a Florida six-year-old last year that sparked national outrage and led to the firing of the police officer involved.

The family of Kaia Rolle shared body camera footage with media outlets showing former Orlando police officer Dennis Turner and another officer putting zip-ties around the small child’s wrists and leading her outside to a police car as she cries and begs to be let go.

“What are those for?” Rolle, a first-grader at an Orlando-area charter school, asks as the officer bring out the zip-ties.

“They’re for you,” Turner responds.


Rolle’s alleged crime was throwing a tantrum and striking three school employees. She was charged with misdemeanor battery, although the charges were quickly dropped. Rolle’s grandmother said the girl suffered from a sleep disorder that led to her tantrums.

The Orlando Sentinel reports:

After Kaia was placed in a police SUV to be taken to the Juvenile Assessment Center, Turner returned to the school’s office and spoke to administrators, who were concerned about Kaia. He downplayed the juvenile detention center, saying it’s “not like you think.”

He told them he had arrested 6,000 people in his career—the youngest, to that point, was 7. When school employees told him Kaia was 6, not 8 like he thought, he did not seem concerned.

“Now she has broken the record,” he said.

In fact, Turner arrested another six-year-old in an unrelated incident that same day.

The national condemnation that poured in after the story went viral led to the officer’s firing. Arrests of small children are unusual but not unheard of, however. Stories like this pop up every few years. In 2006, it was a St. Petersburg, Florida, five-year-old who was handcuffed and arrested in school. 

According to data from the Florida Department of Juvenile Justice, the youngest person arrested in Florida in fiscal year 2018-2019 was a five-year-old Hispanic boy, who was charged by the Osceola County Sheriff’s Office with felony aggravated assault. Florida law enforcement arrested five six-year-olds and 10 seven-year-olds that year on charges ranging from larceny to disorderly conduct to obstruction of justice.

ABC News reported that, according to FBI crime data, 30,467 children under the age of 10 were arrested in the United States between 2013 and 2018. During the same period, 266,000 children between the ages of 10 and 12 were arrested.

The good news is that—mirroring the national decline in crime—the rate of juvenile arrests in the U.S. has dropped significantly since its peak in 1996, from roughly 8,500 arrests per 100,000 individuals between the ages of 10 and 17 to 2,400 in 2016.

In most places, there is no minimum age for when a child can be arrested and charged with a crime. Thirty four states have no lower age limit for delinquency, while 11 states place the floor at 10 years old.

Meanwhile, zero tolerance policies are leading to absurd cases like a Pennsylvania school that called the cops on a six-year-old girl with Down syndrome who made a finger gun gesture at her teacher and said, “I shoot you.” 

As I wrote in a recent column for Reason on child arrests, “The criminal justice system has become America’s default solution for all of its social problems, and that mentality has oozed into the classroom.”

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Trump White House Considering Limiting Justice Department Influence Over Pardons

The Trump White House is reportedly considering overhauling the presidential pardon process and weakening the Justice Department’s role in recommending grants or denials of petitions.

The Washington Post reported last Thursday that a group of White House staffers and criminal justice advocates, led by Trump son-in-law and senior White House adviser Jared Kushner, have been discussing how to revamp the pardon process and move it away from the Justice Department:

Several officials familiar with the matter said the White House has been discussing ways to revamp the clemency process for months, amid growing consensus that the role of the Justice Department should be minimized. The White House has been disappointed with the Justice Department’s process, officials said. While the Justice Department has traditionally received clemency petitions, the new process involves direct submission of applicants to the White House Office of American Innovation, which is led by Kushner, according to people familiar with the matter.

Such a move would be welcomed by many clemency advocates, who say outsized influence by the Justice Department has led to the denial of clemency petitions filed by worthy inmates.

Over the years the DOJ has controlled the process and made it way too bureaucratic,” says Mark Holden, the former general counsel of Koch Industries and a prominent conservative criminal justice reform advocate. “While DOJ should be able to provide input into the decisions, it shouldn’t have a stranglehold on the process so it shuts down or limits clemencies. Unfortunately that seems to be the case over the past several years with its multiple layers of bureaucracy.”

In 2014, the Obama administration launched an unprecedented clemency initiative aimed at freeing non-violent federal drug offenders serving lengthy sentences. While the Obama administration eventually issued a historic 1,696 commutations, the White House still ultimately denied roughly 13,000 petitions.

New York University law school professor Rachel Barkow and Mark Osler, a former federal prosecutor and law professor at the University of St. Thomas, started a pop-up law clinic to help federal inmates prepare clemency petitions for the initiative.

The president has unilateral power to pardon or commute sentences, but normally the pardon process goes like this: Petitions are reviewed by a small and secretive office within the Justice Department, the Office of the Pardon Attorney. The pardon attorney’s recommendations are then reviewed by the deputy attorney general, the second-in-command of the Justice Department. The deputy attorney general’s final recommendations go to the Office of White House Counsel.

Barkow and Osler, along with many other criminal justice advocates, say it’s a conflict of interest for federal prosecutors to exert so much influence over the clemency petitions of the people they put behind bars.

“There were a lot of cases where we were getting different results in similar cases, and it seemed to be because of prosecutor input,” Osler says. “The first thing DOJ does in the pardon attorney’s office is reach out to the local prosecutor, and give substantial weight to the view of that local prosecutor. Well, of course, that’s the person who sought the sentence in the first place.”

Among those whose clemency petitions were rejected was Alice Johnson, a grandmother sentenced to life in federal prison for drug conspiracy. Johnson had a spotless record in prison and had become a minister and mentor to countless other inmates.

“Why was Alice Johnson a ‘no’ under the Obama administration?” Barkow asks. “There were inexplicable ‘nos.’ I heard that in many of the cases, maybe most of the cases, they were explained by the prosecutor’s office who brought the case saying that the grant shouldn’t be given.”

In 2016, U.S. Pardon Attorney Deborah Leff resigned. In her resignation letter, Leffer said she was boxed out of communications with the White House, never given resources promised by the Justice Department, and had her recommendations consistently overridden by then-Deputy Attorney General Sally Yates.

A 2018 report by the Justice Department Inspector General found the initiative was hamstrung by lack of resources, poor communication, and “philosophical differences” between the Yates and Leff.

Trump commuted Johnson’s sentence in 2018 after a personal appeal from reality megastar Kim Kardashian. Trump’s reelection campaign also featured Johnson in a Super Bowl ad this year.

Johnson, in turn, reportedly urged the White House to grant clemency to Crystal Munoz, Tynice Hall, and Judith Negron—three women serving lengthy federal sentences for marijuana, cocaine, and medicare fraud charges, respectively. Trump commuted the three women’s sentences in his most recent batch of pardons.

The Trump White House has largely ignored the pardon attorney’s recommendations, instead focusing on high-profile cases that have caught the president’s attention. Trump’s first pardon, for instance, was granted to former Maricopa County Sheriff Joe Arpaio, who was convicted of criminal contempt by a federal judge.

While some criminal justice advocates welcome a weakening of the Justice Department’s influence over the pardon process, they’re also concerned about what a replacement will look like. Making pardons dependent on snagging the fleeting attention of the president is not a feasible solution for granting mercy to the thousands of federal inmates still serving sentences that Trump himself has declared unfair.

“My hope is that this is a step towards a rational and fair process,” Osler says. “Obviously having a handful of advisors without resources and without access to the pardon attorney isn’t a long term solution because you’ve got over 13,900 petitions pending that are piled up in the official system, and at some point you’re going to have to deal with that.”

The White House did not respond to a request for comment for this story.

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Motion to Unseal Acting White House Chief of Staff Mick Mulvaney’s Sealed Real Estate Case

I blogged about this sealing controversy on Jan. 28, and I thought I’d pass along the just-filed memorandum supporting the motion to unseal. The memorandum is on behalf of Public Citizen and Georgetown Prof. Adam Levitin (who had written about the underlying case), and was filed by Paul Alan Levy of Public Citizen and local counsel Jay Bender of Baker, Ravenel & Bender, L.L.P.

Paul (who has a lot of experience with unsealing cases) has been working on the unsealing since before I wrote about it, but I didn’t feel comfortable writing about the upcoming motion before it was filed. But now I’m happy to present his argument, which strikes me as quite correct:

In this case, plaintiff Indian Land Ventures, a company involving John M. (“Mick”) Mulvaney, sued to foreclose on a piece of property, thereby cutting off the rights of a junior landholder. Mulvaney is a high-ranking federal official—indeed, he is both the acting chief of staff for President Donald Trump and director of the Office of Management and Budget, an agency within the Executive Office of the President. Consequently, there has been considerable media interest in this litigation.

To keep the factual details underlying the cross-motions for summary judgment from the public, plaintiff, with the consent of defendants, asked this Court to seal both the memoranda and the evidence filed in support of and in opposition to summary judgment. The sole basis offered to justify sealing was that discovery had been conducted under a protective order and that the parties had agreed, for unspecified reasons, that the entire briefing and evidence should remain secret. The parties’ joint request offered no evidence that any of these materials contained trade secrets or any sensitive information, and offered no explanation of why a partial sealing would not sufficiently protect any genuine secrets. Moreover, the Court’s ruling in favor of secrecy made no findings on the need for secrecy or the inadequacy of alternatives to sealing.

“Judicial proceedings and court records are presumptively open to the public under the common law, the First Amendment of the federal constitution, and the [Open Courts provision of] the state constitution.” Ex parte Capital U–Drive–It, 369 S.C. 1 (2006). The Supreme Court’s decision in Capital U-Drive-It, together with well developed caselaw in the Fourth Circuit and Rule 41.1 of the South Carolina Rules of Civil Procedure, lay down both substantive and procedural standards for assessing motions to seal court records. As explained in the memorandum below, the sealing order in this case does not meet those standards, and should be lifted.


The plaintiff in this case, a company in which Mick Mulvaney holds a major stake, sued to foreclose on a mortgage. Because Mulvaney has served as a prominent member of Congress and holds prominent positions in the administration of President Donald Trump, his real estate activities have attracted significant public interest. The Washington Post, Charlotte Observer, and several other publications covered the real estate transaction that is the subject of this litigation.

The parties took discovery from each other under a protective order. When plaintiff moved for summary judgment, the parties agreed to file all of the motion papers under seal. After summary judgment was granted, the parties filed an agreed motion to maintain the seal on the summary judgment memoranda and three deposition transcripts that plaintiff had attached to its motion. Their motion recited their agreement that the summary judgment motion itself, as well as the order granting summary judgment, should be considered to be in the public record, and that, as far as they were concerned, the factual recitals in those papers together with the initial pleadings contained enough of the “underlying facts of this case necessary for an understanding of the issues in dispute.”

The agreed motion did not provide any evidence of a need for confidentiality of the summary judgment briefs and exhibits. Rather, the parties stated that “the privacy issues set forth in and forming the basis of the initial Protective Order still apply.” Instead of analyzing the factors set forth in Rule 41.1 of the Rules of Civil Procedure, the parties rested on the conclusory statement that “balancing the factors set forth in Rule 41.1 supports the relief requested.” The parties submitted a proposed order that recited the facts set forth in the agreed motion and concluded: “The privacy interests set forth in and forming the basis for the initial Protective Order still apply. Balancing the factors set forth in Rule 41.1 of the South Carolina Rules of Civil Procedure supports the relief requested. The public interest in this specific matter and in open Court proceedings generally is protected by the pleadings that are already part of the Court record.”  The Court issued a letter that was filed, with the draft consent order attached, saying “so ordered.” The Court’s online docket reflects that the entire case is sealed.

Proposed intervenor Adam Levitin, a professor at Georgetown University Law Center who specializes in bankruptcy, commercial law, and financial regulation, wrote a January 22, 2020 blog post about the sealing of the court papers and the interesting legal issues raised by this “pretty amazing case that is fantastic for teaching purposes ….” On January 23, 2020, counsel for Public Citizen contacted the lawyers for the parties to ask about the justification for sealing each of the documents in the litigation. Counsel for plaintiff, identifying himself as Mick Mulvaney’s lawyer, responded that the parties’ intention was only to have certain papers sealed; counsel explained that the problem was likely that the Court’s electronic docket did not properly reflect the limited nature of the sealing. Public Citizen then contacted the Clerk’s office to seek access to all the documents that were not within the limited scope of the sealing order as described by plaintiff’s counsel. However, the Clerk’s office representative said that, because the file was marked sealed, Public Citizen could not get access to any of the papers on the docket.

Plaintiff’s counsel then sent Public Citizen copies of the summary judgment motion, the sealing motion and the sealing order However, the parties’ counsel have not agreed to unseal or share the memoranda and filed transcripts.


In Ex parte Capital U–Drive–It, the South Carolina Supreme Court ruled that “[j]udicial proceedings and court records are presumptively open to the public under the common law, the First Amendment of the federal constitution, and the state constitution. S.C. Const. art. I § 9 (‘[a]ll courts shall be public’).” Its decision is in accord with a line of authority from the United States Court of Appeals for the Fourth Circuit, which has stated, “The right of public access springs from the First Amendment and the common-law tradition that court proceedings are presumptively open to public scrutiny.” Company Doe v. Public Citizen, 749 F.3d 246, 265 (4th Cir. 2014) (citing Virginia Dep’t of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004)). Under these cases, along with decisions by other federal and state courts across the country, the common law and the First Amendment afford the public a presumptive right of access to court hearings and court records in civil cases. Like rulings on dispositive motions, Company Doe, 740 F.3d at 267, briefs and evidence submitted in support of or in opposition to dispositive motions, Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir. 1988), are within the ambit of the First Amendment right of public access.

The South Carolina Supreme Court enumerated in Capital U-Drive It the very limited circumstances in which public access to court records may be restricted: “matters involving juveniles, legitimate trade secrets, or information covered by a recognized privilege,” “trade secrets, identity of confidential informants, and privacy of children,” and “intelligence-related information in possession of communications service providers due to national security concerns.” On the merits, the presumption of public access is a heavy one that can be overcome only if the party seeking secrecy shows (1) that restricting access is necessary to further a compelling governmental interest; (2) that the restriction is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. See Virginia Dep’t of State Police, 386 F.3d at 575 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)). Similarly Rule 41.1 provides: “The motion shall state the reasons why sealing is necessary [and] explain why less drastic alternatives to sealing will not afford adequate protection.”

Continue reading “Motion to Unseal Acting White House Chief of Staff Mick Mulvaney’s Sealed Real Estate Case”

AOC Admits She Got Her Goddaughter Into a Bronx Charter School

Rep. Alexandria Ocasio-Cortez (D–N.Y.) knows firsthand the limitations that come with the public-school system. In a recently unearthed Facebook Live video from 2017, the self-described democratic socialist said she worked to secure a spot for her goddaughter in a Bronx charter school.

“This area’s like a lot of where my family is from,” noted Ocasio-Cortez as she walked through the Bronx. “My goddaughter, I got her into a charter school like maybe a block or two down.”

This isn’t the first time that AOC has inadvertently made the case for school choice. At an October rally for Democratic presidential candidate Bernie Sanders (I–Vt.), she shared that her family left the Bronx for a house in Westchester county, so that she could attend a higher-quality school. “My family made a really hard decision,” said Ocasio-Cortez. “That’s when I got my first taste of a country who allows their kids’ destiny to be determined by the zip code they are born in.” 

The congresswoman has correctly diagnosed the problem. Whether or not a student is able to attend a decent public school too often turns on the neighborhood he or she happens to grow up in. It’s a reality that briefly dominated the national conversation during the recent college admissions scandal, which saw wealthy celebrities paying to have their children receive rigged acceptances to elite universities. Comparisons were immediately drawn to the case of Kelley Williams-Bolar, who received a five-year prison sentence for using her father’s address to ensure that her children could attend the superior elementary and middle schools nearby.

As AOC recognized in her speech at the Sanders rally, such a dilemma is only possible when the system hinges on a zip code. But isn’t that a problem that school choice can help fix?

If her experience is any guide, the congresswoman should say yes. But school choice has become strangely polarizing in recent years, as many Democratic leaders forcefully repudiate charters.

“If you think your public school is not working, then go help your public school,” Sen. Elizabeth Warren (D–Mass.) told the National Education Association (NEA) late last year. The presidential hopeful’s education plan includes a slew of anti-choice measures, including ending all federal funding for public charters. “Go help get more resources for” your local public school, Warren has argued. “Volunteer at your public school. Help get the teachers and school bus drivers and cafeteria workers and the custodial staff and the support staff, help get them some support so they can do the work that needs to be done. You don’t like the building? You think it’s old and decaying? Then get out there and push to get a new one.”

But those words ring hollow when you remember that Warren sent her own son to a private school.

The teachers unions, who comprise a powerful part of the Democratic coalition, are staunchly opposed to charter schools. A majority of black and Hispanic Democrats, by contrast, hold favorable opinions of school choice. Charters are understandably popular in poorer communities of color—communities that progressives say they stand for—because such nontraditional schools provide viable alternatives to the status quo.

During an education town hall last March, Ocasio-Cortez said that a set of “perverse incentives” led her cousin to send her children to charter schools. “The public schools in Hunt’s Point didn’t feel good enough,” she declared, before borrowing a page from the Warren playbook: “We should never feel that way. And the moment we start feeling that way is the moment we should start fighting to improve [public schools]. Not to reject them.”

But if Ocasio-Cortez’s actual record tells us anything, it’s that both she and her family rejected those traditional public schools in favor of school choice. Can you blame them?

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Buttigieg ‘Doesn’t Want To Explain’ Why Sanders ‘Is Encouraging People To Look on the Bright Side of the Castro Regime’

Pete Buttigieg is making it clear he wants to be the choice for Democrats who aren’t happy with Bernie Sanders’ open embrace of socialism and his defenses of Cuba under strongman authoritarian Fidel Castro.

Sanders is officially the front-runner now, and former comments showing support for authoritarian communist and socialist governments are being dredged up again. During a 60 Minutes appearance on Sunday, Sanders defended previous comments he had made back in the 1980s in support of Castro’s regime. Sanders said that while he’s opposed to the authoritarian parts of Castro’s Cuba, he nevertheless wanted to point out that Castro “had a massive literacy program. Is that a bad thing?”

Well, literacy is indeed a good thing, but it’s also particularly important when you need to feed your population a diet of political propaganda, as Castro did. In any event, Sanders’ insistence on trying to find good things to say about communist Cuba is not unlike President Donald Trump praising President Rodrigo Duterte of the Philippines or the Chinese government for ruthlessly executing people trying to fight the drug war.

Buttigieg is taking Sanders’ comments and trying to carve out that space, comparing Sanders’ defenses of authoritarians with Trump’s. On Monday, Buttigieg tweeted out “After four years of looking on in horror as Trump cozied up to dictators, we need a president who will be extremely clear in standing against regimes that violate human rights abroad. We can’t risk nominating someone who doesn’t recognize this.”

In a CNN town hall interview last night, he made his position even more clear. He thinks Sanders’ defenses of Castro will be a liability come November:

Former New York Mayor Mike Bloomberg also struck out at Sanders’ comments but given his awful numbers after his horrible debate performance last week, it’s not clear that Bloomberg’s massive spending blitz is working for him as of yet. He’s not on South Carolina’s primary ballot on Saturday, so we’ll have to see what happens next week on Super Tuesday (March 3) when people will actually get the chance to vote for him.

There’s another debate tonight, and given that Sanders is coming off of the caucuses in Nevada with a strong win and Buttigieg is looking for better numbers in the South, expect some fireworks. Buttigieg did also just land the endorsement of Columbia, South Carolina, daily newspaper The State, partly because Sanders declined to sit down with them for an interview. To the extent that anybody cares about newspaper endorsements, this is probably more of a hit to former Vice President Joe Biden than Sanders. Biden is really hoping votes in Southern states keep him in the race.

But assuming Biden’s campaign continues to collapse, Buttigieg is doing the work to position himself as the more moderate Democratic alternative to Sanders.

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The Federal Judges Association tells members that “emergency meeting” was not called to discuss President Trump’s intervention in Stone Sentencing

On February 17, USA Today published a story titled “Federal judges’ association calls emergency meeting after DOJ intervenes in case of Trump ally Roger Stone.” My first reaction was, What is the Federal Judges Association? I follow the Federal Courts fairly closely, and had never heard of this group. Why would federal life tenured judges need a trade organization?

I learned that the group functions like a voluntary union. It advocates for, among other things, higher judicial pay and benefits. For example, the group filed an amicus brief in Beer v. United States. That case concerned cost of living adjustments (COLAs) for federal judges. The group also filed a class action suit on behalf of all Federal Court Judges. The Court of Federal Claims ruled in favor of the class in Barker v. United States.

That sort of work seems well within the responsibilities of a voluntary union for judges. But more recently, the FJA–or at least its President–may exceeded those boundaries. The USA Today offered this account:

A national association of federal judges has called an emergency meeting to address growing concerns about the intervention of Justice Department officials and President Donald Trump in politically sensitive cases, the group’s president said Monday.

Philadelphia U.S. District Judge Cynthia Rufe, who heads the independent Federal Judges Association, said the group “could not wait” until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and Attorney General William Barr.

“There are plenty of issues that we are concerned about,” Rufe told USA TODAY. “We’ll talk all of this through.”

Velma White, an aide to the judge, said the meeting is set for 1:30 p.m. Wednesday. USA TODAY had previously reported that the meeting would take place Tuesday.

Rufe, nominated to the bench by President George W. Bush, said the group of more than 1,000 federal jurists called for the meeting last week after Trump criticized prosecutors’ initial sentencing recommendation for his friend Roger Stone and the Department of Justice overruled them.

Rufe said the judges’ association is “not inclined to get involved with an ongoing case,” but she voiced strong support for Jackson.

“I am not concerned with how a particular judge will rule,” Rufe said, praising Jackson’s reputation. “We are supportive of any federal judge who does what is required.”

On Wednesday, the federal judges are set to convene via a conference call involving 15 to 20 officers and members of the association’s executive committee.

Founded in 1982, the 1,100-member association supports “a fair, impartial, and independent judiciary,” according to its website.

Rufe said the group has not decided how it will report the result of its meeting, if at all. “We just could not wait until April to discuss matters of this importance,” she said.

Judge Rufe erred. She should not have said anything to the reporter, Kevin Johnson. Even if Johnson found out about the meeting (perhaps from another FJA member), Judge Rufe response should have been “no comment.” Judges should not talk to the press about such politically-charged matters. Judge Rufe should have known how her statements would be interpreted in this toxic climate. No surprise, her comment was used to further criticize President Trump and Attorney General Barr. (I criticized those criticisms in a Washington Post Op-Ed).

Apparently, Judge Rufe’s statement was not well received by other judges. The New York Sun offers this account in an editorial titled, The Resistance Starts To Infect Our Courts. (I have already worried to colleagues that the “Veteran” Ninth Circuit judges are the first wave of an internal judicial resistance to President Trump’s nominees):

Then, after the Justice Department moved to reduce a sentencing recommendation for Roger Stone, USAToday reported that the Federal Judges Association was calling an emergency meeting. Its president, District Judge Cynthia Rufe, said the idea was to address concerns about how Justice officials and the President were intervening in sensitive cases.

That shocked a number of federal judges, and Judge Rufe later tried to play it all down. Not, though, before one of the towering figures on the Second Circuit, Jose Cabranes, fired off to Judge Rufe a now widely circulated email. It expressed concern that the emergency meeting would “purport to speak for the federal judiciary on a pending political question.”

“I urge you to come off this precipice, and to withdraw from active politics in the name of the federal judges of this country,” Judge Cabranes, a longtime member of the FJA, wrote in his brief cable. “If you do not do so, you risk confusing the public about the role of the courts in our constitutional order and thereby deepening the crisis in confidence in our institutions.”

I agree entirely with Judge Cabranes. The FJA should stay in its lane. Advocate for judicial pay? Fine. But the organization should not inject itself into partisan politics.

Yesterday, the FJA sent an email to its member list-serve, which I received from an FJA member:

From:   The Officers of the Federal Judges Association
To:       Members of the Federal Judges Association

Re:       Statement to Our Colleagues

There have been misunderstandings about a Federal Judges Association meeting originally scheduled for last week, resulting in questions and comments from several members. We wish to apprise all members of the facts.

A conference call of the FJA Executive Committee was set for last Wednesday. Those telephonic meetings between the annual meetings of the Board of Directors are common. Following the last Board meeting in April 2019, the Executive Committee met by phone in June, September, and November 2019, and January 2020. We regularly review financial statements, plan for future meetings, and confer with chairs of FJA committees on the work they are doing.

Despite reports to the contrary, last week’s meeting was not an “emergency” meeting. It was not scheduled in response to any public controversy or pending case. Unfortunately, though it was not anticipated that the calling of the meeting would become public, it did. That fact led to inferences and reports that were, at a minimum, misleading.

President Cynthia M. Rufe issued no public statements or press release of the originally scheduled meeting, nor did she solicit press contact. Last Monday afternoon one reporter called seeking confirmation of the objectives of our Executive Committee meeting. How that reporter learned of the meeting is unknown. Judge Rufe acknowledged the fact that a meeting had been called but rejected the reporter’s speculations as to its timing and purpose.

At no time was there any intent to involve the FJA in any political controversy or in any pending case. The FJA is non-partisan and seeks, like the judiciary itself, to remain outside of the political fray. Similarly, the FJA does not comment on the merits of any matter pending in any court, consistent with the Code of Conduct that applies to all of us. To avoid risk that the meeting might draw further attention, it was postponed. We chose not to issue a statement at that time for the same reason.

Our meetings are intended to pursue the important business of the FJA. They are a necessary part of fulfilling our duties and responsibilities to you, our colleagues, to address issues such as pay and benefits, security, civics education, the status of senior judges, and international rule of law, in accordance with the mission of the FJA. The officers and directors of the FJA remain focused on these purposes and appreciate your support for these common goals.

The FJA membership includes judges with sometimes differing positions on matters within our purview. We welcome your comments and inquiries. As an organization that depends on volunteers, our responses may not be immediate, but your officers and directors will respond as we can. In the meantime, we will continue to work toward the goals that we share.

This statement is largely non-responsive to the USA Today report. Again, here are the direct quotes from Judge Rufe:

  • “There are plenty of issues that we are concerned about. We’ll talk all of this through.”
  • “I am not concerned with how a particular judge will rule,” Rufe said, praising Jackson’s reputation. “We are supportive of any federal judge who does what is required.”
  • “We just could not wait until April to discuss matters of this importance.”

Is it possible the USA Today reporter made up each these quotes? Sure. But the email does not allege any such misconduct. Rather, the email says there were “misunderstandings” and “inferences and reports that were, at a minimum, misleading.”

Judge Rufe should have known better. A reporter asked her questions about Stone’s sentencing. She should have replied “no comment.” Saying “We’ll talk all of this through” would include talking about the Stone case. And her comment about “we just could not wait” is very difficult to make sense of, unless she is talking about Stone’s sentencing. Budgetary matters are not urgent.

The FJA email does nothing to address Judge Rufe’s comments. In any event, she does not speak for the FJA. Her comments did not represent an official press release or communication of the group. Judge Rufe should apologize, and take care not to speak to the press in her position of leadership–especially about such a politically-charged topic.

from Latest –

Can U.S. Cities Be Forced To House Coronavirus Patients?

The city of Santa Ana is taking California to court over plans to move coronavirus patients into a state-owned facility there. The matter was heard by a federal judge on Monday after the federal government said U.S. coronavirus patients had to evacuate the Travis Air Force Base in Fairfield, California, where they are now being housed.

“In a decision that could complicate California’s efforts to deal with the coronavirus crisis, Judge Josephine L. Staton…kept a temporary restraining order in place that would prevent the infected patients from being moved to Costa Mesa, at least for now,” The New York Times reports.

Staton told state and federal authorities to present her with more public safety information at a March 2 hearing. “The state has shown great empathy for the patients,” she said in the courtroom, and she hoped it would show “the same empathy for the residents of Costa Mesa,” which is California’s second-most populous county.

U.S. authorities had first planned to transfer patients from the air force base to a Federal Emergency Management Agency (FEMA) facility in Alabama. “But officials in California thought that moving the group out of the state…would be detrimental to their health and well-being,” the Times reports.

There are now 53 confirmed coronavirus cases in the U.S.

Confirmed cases of coronavirus continue to rise in China, Iran, Italy, South Korea, and elsewhere:

Worldwide, at least 80,067 confirmed coronavirus cases are being reported, with at least 2,700 deaths so far.

Politicians and investors have both begun panicking. “Major European stock markets were about 0.8 percent lower Tuesday,” and “the Dow Jones industrial average shed more than 1,000 points” yesterday, noted The Washington Post. But “global markets mostly stabilized after Monday’s heavy losses.”

President Donald Trump is asking Congress to authorize $2.5 billion in spending to deal with the disease. Trump said at a forum in New Delhi yesterday that the money would be used for “getting everything ready just in case something should happen and also helping other nations that really aren’t equipped to do it.”


The U.S. Supreme Court will weigh in on whether Philadelphia can cancel a contract with a Catholic foster care agency that refuses to place children with same-sex couples. SCOTUS agreed on Monday to hear the case (Fulton v. Philadelphia), in which the agencyCatholic Social Servicesargues that the contract cancellation amounts to religious discrimination. Philadelphia says the religious nonprofit is in violation of its nondiscrimination policy.

“Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system,” said Lori Windham, a senior lawyer for Becket Fund, which is representing Catholic Social Services. “We are confident that the Court will realize that the best solution is the one that has worked in Philadelphia for a centuryall hands on deck for foster kids.”

The American Civil Liberties Union (ACLU) is siding against the foster agencies. Leslie Cooper, deputy director of the ACLU’s LGBT project, condemned “allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child.”


Apple and TikTok are refusing to participate in Sen. Josh Hawley’s (R–Mo.) anti-tech pageantry on Capitol Hill. Both declined Hawley’s request to testify at a hearing next month on Apple and TikTok’s ties to China. “Hawley still plans to hold the March hearing, where U.S. law enforcement officials are set to testify,” reports The Washington Post.

“TikTok in particular has drawn bipartisan congressional scorn and sparked a national security probe into its origins,” notes the paper. “Branches of the U.S. military recently have barred service members from using the app on their official phones, fearing security risks. And the Transportation Security Administration this weekend said it would stop allowing its employees to use the app.”


from Latest –