The rest

A+ on these
A+ on these

Don Walton writes in his LJS column today — before his lament that the Yankees just can’t decide who to spend their billions on next — that the Senate has taken too long to confirm Judge Rossiter to the Federal bench.

Walton’s complaint (about Rossiter, not the Yankees) is that the Republicans took a year for confirmation. Yet, he does NOT note that this practice was started when the Democrats were in power, and continues to be a card played by each side.

It should be noted however, that Nebraska Senator Deb Fischer recommended Rossiter to President Obama in August of 2014 and the President didn’t nominate him until June of 2015.

Didn’t see that in Walton’s column, did you?

In the meantime, it’s been reported (in other places) that Republican Senator Fischer worked tirelessly for the past year to get a a vote — especially working her friendship with Majority Leader Mitch McConnell to make it happen.

Sometimes it is interesting to get more of the story.



The GOP Convention in Cleveland is starting to rev up just a little with the Trump camp and some Dump-Trumpers putting together their competing plans for the convention.

Politico has been following this closely, and from their estimates, team “Dump” doesn’t have the delegate votes to make anything happen.

They polled the 112 members of the GOP Rules Committee — which includes Nebraskans J.L. Spray and Joyce Simmons — and found that there is little appetite to allow freeing up delegates in the first ballot to “vote their conscience”.

Anything that the Rules Committee would come up with would have to be voted on by the entire body anyway (1,237 is a majority of the delegates). But the Dumpers have said that if they fail in Rules, they will try a floor fight, in any case. And some have suggested that if that occurs, it will lead to more confusion than anything else.

The whole thing should be fascinating, but the CW — today, anyway — is that there isn’t enough support for a mutiny to make it happen.

And then there is the Ralph Waldo Emerson adage, “If you’re going to strike at a king, you must kill him.

Trump gets even with those who send out a uncomplimentary Tweet. One can only imagine his wrath at floor-fighters.


The rest of the story

Robynn Tysver writes in the OWH today about Bernie Sanders’ press secretary Symone Sanders of Omaha leaving his campaign.

Tysver does mention that Sanders worked for Democrat Governor candidate Chuck Hassebrook’s campaign — but she didn’t add that (Symone) Sanders was expected to speak on Hassebrook’s behalf at the recent Nebraska Democrat state convention.

The word on the street was that new Chair Jane Kleeb called in all of her chits with the Sanders campaign to prevent Symone from coming to speak in Kearney for Chuck (as Chair).

A pity that someone from Nebraska couldn’t get the chance to speak, just because of Jane.



Just Do it!

You know what to do!
@LeavenworthSt on the Twitter!
Leavenworth St. on The Facebook!


  1. Bluejay says:

    And if Hillary wins she will NOT nominate Bob Rossiter. The new nominee will be a total political hack. Reason enough to vote Trump. Nebraska district court seat way more important than SCOTUS.

    • repenting lawyer says:

      Bluejay, utter nonsense, NE USDJs regardless of party have been excellent in my life time. How many cases have you handled in Fed Ct? In any event Bob is being confirmed, so why worry?
      I agree with Sweeper both parties have dealt shamefully with the lower federal courts.

      • Bluejay says:


        From what I understand no more federal judges will be confirmed before the election. Maybe in the lame duck session, but I doubt it.

        I’m hearing Hillary will nominate Jane Kleeb. Well qualified.

      • Pat Borchers says:

        Rossiter is going to be confirmed Monday. The timing is on Grassley, not Obama, at this point. RL is right about the quality of judges. It’s rare that the political mindset of a District Judge makes any difference and if it does there’s always the Circuit court to reverse it. Joe Batallion’s opinion in 2004 striking down Nebraska’s DOMA turned out to be about a decade ahead of its time and was swiftly reversed by the 8th Circuit.

      • Bluejay says:


        Good news about Bob. But I think you mean after the Senate is back in session as Monday is July 4th.

        Disappointed in your comment re SSM. I will remind you the vote was 5-4 with Scalia leading the way. The SSM case majority was disconnected from the Constiution. If the State of MN votes for SSM, then fine. But when the Supreme Court of Iowa or SCOTUS creates a SSM “right” out of constitutional whole cloth, that’s a different thing altogether.

        Men in black robes weren’t hired to impose their political beliefs on citizens. They aren’t our rulers.

        I’d almost be interested in your take on the dissents in the TX abortion cases. Majority -again – disconnected from the law of res judicata and standing so that political purposes can be served. King Kennedy rules!

      • repenting lawyer says:

        Bluejay, I thought Bob and one other were to be confirmed. The bar would never sit still for Jane.

      • Bluejay says:


        Apology. I stand corrected. Daily Kos below:

        “Well, lookie here, a confirmation vote this evening because it’s Monday—so we’ve got a 3 PM ET start time. The nominee in question is Omaha attorney Robert Rossiter Jr., for the federal bench in Nebraska. He’s only been waiting one year and 15 days for this vote. Nothing else is scheduled for today, but the Senate’s got a big, short week ahead.”

        Happy for Bob and his wife. The wait was very unfair.

      • Pat Borchers says:

        Bluejay, I’m not endorsing the Supreme Court’s SSM or abortion jurisprudence. In fact, I’ve said many times that I think that the Supreme Court is unwise to wander into the political thickets without a clear warrant from the Constitution. Brown v. Bd. of Ed. was different because the Court clearly had the Equal Protection Clause to endorse. The “right of privacy” is just an invention of whole cloth. I agreed with Roberts in his dissent in Obergfell that mandating SSM by judicial fiat denied its proponents a victory that they likely would have earned in almost all states in the next five years ago. However, the Court’s SSM decision has been less disastrous than Roe v. Wade. Roe has warped the fabric of constitutional law and done nothing to create a national consensus on the issue. Thomas had it exactly right in his dissent about the “abortion distortion.” In barely the blink of an eye the majority allowed third party standing which until then had been close circumscribed. Breyer’s opinion quotes a nauseating statistic that something like 16% of Texas pregnancies end in an abortion.

    • Pat Borchers says:

      “enforce” not “endorse” above. Yes, I am happy for the whole Rossiter family. Bob has been a very good friend of mine for almost 20 years. He will make an excellent judge.

      • repenting lawyer says:

        Pat Borchers, Political thickets are in the mind of the viewer. That was my view of decision on immigration, old fashion political question, but Felix is out of fashion. A lot of federalism of the right is there own invention, and idea that direct election of the Senate broadens judicial review is just odd. Liked Bickle, still like Bicycle, Jackson was always my hero. All of which probably explains why I am out of date.

      • Bluejay says:


        Bob and MBF are the best!

        “However, the Court’s SSM decision has been less disastrous than Roe v. Wade.” Damning by faint praise, I guess.

        These cases only point out how important the Court has become. I’ve mostly given up. We are completely sunk on every front if Hillary wins.

  2. Bluejay says:

    In all seriousness, SCOTUS is completely politicized and the progressive majority is disconnected from the Rule of Law. That’s the number one reason to vote for Trump.

      • HTH says:

        I thought so.

        Kennedy is, at most, a centrist. Sure, he’s been with the liberal bloc on social issues, but he’s been a stalwart conservative when it comes to gun rights, crony capitalism (see Citizens United), and opposing Obamacare, among others.

        What you see as a ‘progressive majority,’ liberals see as a conservative majority. The truth is somewhere in the middle – as it should be. Don’t oversimplify – there’s enough of that in the presidential elections.


      • repenting lawyer says:

        Bluejay, Kennedy progressive? He has a libertarian streak, but came out as much in ACA case as other opinions. Alleged disconnect with Rule of Law is in the eye of the beholder. Federalist Society agenda is more political than legal. Thomas is no devotee of traditional rule of law, treating every case as de novo, and it was hard to miss Scalia’s political commitments, or Alito’s. Roberts is more complicated. Still none of the sitting Justices are beyond the range of acceptable Constitutional thought.
        Interesting that in Part III of his dissent on todays gun case, Thomas suggests that no one shares his vision of the 2nd Amendment.

      • Bluejay says:

        HTH and RL

        Kennedy has no coherent judicial philosophy. Cases decided ad hoc and de novo. One thing for sure is that he’s no conservative and he’s not a strict constructionist like Scalia.

      • HTH says:

        I suppose that’s true if you define a conservative solely by social issues.

        But I agree about his judicial philosophy. Regardless of the merits of the conclusion, Obergefell was arguably the worst judicial reasoning in a SCOTUS opinion since… well, I guess Kennedy’s other civil rights opinions.


      • repenting lawyer says:

        Bluejay, Scalia called himself a strict constructionist, but his theory let him do what he wanted and he did. You give the game away by saying Kennedy is not a Conservative, your own politics are running your criticism. Posner makes a very good case for pragmatism as a judicial philosophy, which maybe Kennedy’s position.

      • repenting lawyer says:

        Bluejay, firstly strict constructions no supporters, it is a meaningless phrase. Scalia’s version of historical reading was rather like Humpty Dumpty’s theory of word meaning, which made his will master of language. The Coconstitution meant what Scalia wanted it to mean”nothing more no less.” Ifthat’s your definition of Conservative so beat.

      • Pat Borchers says:

        I’m confident that I’m the only person in this thread who worked for Kennedy (I was one of his law clerks from 1986-87 — his last full year on the Ninth Circuit). He got picked after the Bork and D. Ginsburg nominations went down in flames. Reagan wanted to hit safely with someone who was more moderate. My biggest surprise is that people are surprised by his voting record on the Supreme Court. In 5-4 cases when he was the swing vote, he has voted about 3/4 of the time with the conservatives. But people notice more when he votes with the liberals. So people remember the SSM case, but don’t remember Hobby Lobby or the Voting Rights Act case, or the ACA case where he wasn’t the swing vote — Roberts was. He hasn’t undergone a full scale transformation like Stevens (Ford appointee), Blackmun (Nixon appointee), Souter (Reagan or Bush I — can’t remember) to becoming a “liberal.” He casts votes I don’t agree with. He voted on some cases on the 9th Circuit where I would have voted the other way, but he was the one with Senate confirmation so it was my job to help him research and write the most sound opinion taking the position that he thought was justified.

      • Khan says:

        It’s difficult not to oversimplify when the Roberts Court has been so predictably simple. It has never given anyone cause to doubt that Gingrich, Breyer, Sotomayor, and Kagan will be in lock-step on every single issue, and almost entirely predictable as to where they’ll come down on most decisions. The same is not true for your so-called “conservative majority.”

        There is no reason to expect Merrick Garland would be any different. Republican SCOTUS appointees have shown precedent (Blackmun, Rehnquist, Souter, Kennedy, Roberts, to name a few) to tack toward or outright embrace the Left, but the Clinton and Obama appointees to the court have all been dutifully rigid in the ideology they were appointed to uphold. Period.

        This sniffing about truth being “somewhere in the middle,” “the range of constitutional thought,” et. al. is pious sophistry.

  3. Sparkles says:

    Although there is some merit to ‘both sides do it’, related to slow walking or blocking entirely judicial appointments, it’s wholly disingenuous to imply any level of equivalence between the two parties.

    For any who actually care about the truth, the June 9, 2016 New York Times presents the numbers, comparing R vs D, in:
    “The Senate’s Confirmation Shutdown”.

    And with Grassley and McConnell leading the charge, It has now devolved to the point, as with Mr. Rossiter, where Republicans are blocking Republican nominees.
    All of it as a means to inflict political damage on Obama, and appease a loon base like Phyllis Schlafly, who penned the 2/15/16 article in World Nut Daily: “GOP must block nominations of all federal judges”.

    Country be damned.

  4. Sparkles says:

    ‘Mommy, Mommy, Little Johnny tugged on my pony tail in school today.’

    ‘Oh Katy, my dear child! Here, take this finely honed hatchet and march right on over to Little Johnny’s house and chop that hand… no, no, sever from his body ALL of his limbs.’

    Because.. ‘both sides do it’.

    (it’s just a flesh wound)

  5. repenting lawyer says:

    Sparkles, I do not know about equivalence, but Ds have not earned much credit in this whole area. Did not know I had preserved by disingenuity, makes me feel young again.

    • Sparkles says:

      Young in spirit RL, young in spirit.

      I do not make the claim that D’s have earned any great deal of credibility in a whole lot of areas. I merely posit that upon objective review, they are undoubtedly the lesser of two evils on an overwhelming number of fronts.
      For years the media – right, left and center – have lazily promoted a meme of, ‘both sides do it’.
      Lazy journalism permitting ever more egregious actions by a GOP that has become hostile to the very act of informed, enlightened governance. A GOP that has devolved into a solutions averse, post governance party. A GOP incapable of evolving. Incapable of moving beyond a plethora of widely discredited policies and ideas. You need look no further than the Kansas “experiment” for proof.
      It is a party and a base that celebrates inaction and applauds the obstruction of solutions to critical issues confronting our nation.

      Each opportunity denied, each solution avoided adds to the unfathomable legacy of largely unnecessary strife we are handing down to the next generation.
      ‘Both sides do it’ will be continue to cripple and bring great damage to our nation if someone doesn’t finally step forward. (and I’m hopeful we’re now finally witnessing just that)

    • Pat Borchers says:

      And the federal judiciary is better for it. People don’t generally know it, but we have one of the best districts in terms of judges. Judge Urbom doesn’t do much anymore, but presided over the Wounded Knee trial with such fairness that he allowed the Indian witnesses to take the oath with their hand on a peace pipe instead of the Bible. The defendants refused to stand when he entered the courtroom but on the last day of the trial they all stood.

      Lyle Strom is simply one of the best trial judges in the U.S.

      Chief Judge Laurie Smith Camp was knocked for the lack of her diversified experience (mostly with the Nebraska AG) but has proved that there’s no substitute for brains.

      John Gerrard was on the Nebraska Supreme Court and is one of the smartest lawyers I know.

      Rich Kopf caused a lot of controversy with his blog “Hercules and the Umpire” but gave the world an insight into being a federal judge that will probably never be matched, and has a V-8 engine of a brain.

      The Magistrate Judges are excellent.

      Bob Rossiter will be a worth addition (and I hope I haven’t left anyone out).

      • Judge Camp says:

        I always chuckle when people say that folks from the AG’s office don’t have “experience”. Speaking from personal experience, there probably is no more diverse job in the state for lawyers. You can be in county court one day assisting a county attorney, in district court arguing about a DUI or on an administrative hearing. The next day you are preparing for your Nebraska Supreme Court arguments and trying to get your 8th circuit brief done. And you start it all over the next week.

      • repenting lawyer says:

        Pat Borchers, I want to join in congratulating Bob and in your praise of our District Judges. I taught Bob and still remember his Ad Law exam. Joe Battalion was a very fine judge and I assure he will remain active. Warren Urbom was a great judge and a delight to appear in front of. He was and is a great lawyer and a perfect gentleman. Lyle Strom deserves the praise your praise, his a a glory of the federal courts. Loved Kopf’s blog, which he occasionally continues on Mimesis Law. The other two are as good as you say

      • repenting lawyer says:

        Judge Camp, Appellate lawyers are the class act of the profession and you have proved a class act in judging.

  6. Nebraska Right to Love says:

    Well now will everybody stop giving money to JSA and Nebraska Right to Life? JSA has accomplished nothing and now with the wonderful decision by the SCOTUS, the tide has turned.
    Putting restrictions on abortion, like Krazy Kinter and Herbster puppet McCoy, are now seen as unconstitutional.
    So relax big government Republicans who want to get between a woman and her doctor, the game is over.
    Besides the rate of abortion in this country has steadily gone down thanks to better contraception.
    So JSA, get over it. I can get you a job at the Post Office if you want something to do.

    Ricky From Omaha

    • Bluejay says:

      The “restrictions” were for the benefit of the patients. Do you want to be operated on in a clinic without adequate equipment by a doctor without hospital admitting priveleges?

      • bynd says:

        I believe that has already happened to Mr. Fulton. If only his mother had made a different….. Oh never mind. He makes the pro death penalty folks look like angels.

      • Nebraska Right to Love says:

        abortion is not a risky procedure. The rightys want you think it is but it’s not. Finally we can put an end to white men making decisions for women.

      • Sparkles says:

        “The “restrictions” were for the benefit of the patients.”


        In an amicus brief filed with the court in support of Whole Woman’s Health, five of the leading organizations for medical professionals described as “medically unnecessary” HB 2’s requirement that abortion clinics be held to the same standards as ambulatory surgical centers.

        Those organizations represent the most learned collection of medical professionals on the planet:
        American College of Obstetricians and Gynecologists (ACOG)
        American Medical Association (AMA)
        American Academy of Family Physicians (AAFP)
        American Osteopathic Association (AOA)
        American Academy of Pediatrics (AAP)

        In a November 2014 statement, the American College of Obstetricians and Gynecologists (ACOG) outlined its opposition to the sort of restrictions on abortion facilities and staff included in HB 2, noting that such measures are “medically unnecessary” and “do not improve patient safety or quality of care”.

        Could it possibly be any clearer?

      • Khan says:

        Finally we can put an end to white men making decisions for women.

        Except for those growing in their mothers’ wombs, and particularly those in that population of “undesirables” that Margaret Sanger sought to eradicate IYKWIMAITTYD.

        However much time you spent running from neighborhood dogs on your mail route, Ricky, it wasn’t nearly enough.

      • Kermit Gosnell says:

        In a November 2014 statement, the American College of Obstetricians and Gynecologists (ACOG) outlined its opposition to the sort of restrictions on abortion facilities and staff included in HB 2, noting that such measures are “medically unnecessary” and “do not improve patient safety or quality of care”.

        Could it possibly be any clearer?

        Sounds clear enough to me!

      • Sparkles says:

        Gosnell is freak and a convenient red herring.

        By that logic we would need to regulate out of existence all Chocolate Factories, because that’s where Jeffrey Dahmer worked during much of his demented rampage.

      • The Grundle King says:

        Uh, Sparkles…your logic only holds up if Dahmer was killing people with chocolate.

    • Khan says:

      By that logic we would need to regulate out of existence all Chocolate Factories, because that’s where Jeffrey Dahmer worked during much of his demented rampage.

      Gosnell was an abortionist doing abortions in an abortion facility with minimal oversight, and his atrocities occurred on-site. Not in the same damned universe as Dahmer and his chocolate factory, and you know that.

      He’s an inconvenient truth, not a red herring, that this SCOTUS decision enables.

      • Sparkles says:

        Gosnell was a deranged monster who happened to work in a women’s clinic.

        Dahmer was a deranged monster who happened to work in a chocolate factory.

      • The Grundle King says:

        Oh, cut the BS Sparkles. Gosnell didn’t “happen” to work in a women’s clinic…he worked there because he was hired to perform the services provided by the clinic. They needed someone to dice up babies…and Gosnell was all too happy to oblige.

  7. bynd says:

    Bennie boy cost us $141 million. Barack (TPP) and Jane, 15 Billion. For being such a small impotent group, the Dems sure are costing the state a lot of money.

    • Bluejay says:

      I hate to say it but TransCanada has zero chance on its $15b arbitration. A President can deny the pipeline for political reasons. And, of course, one can always allege CAGW. And Nebraska was still a wild card at time of denial as it had to be approved by the NE PSC.

      • bynd says:

        I don’t know what NAFTA states, but it would seem that there must be some grounds that are not allowed for denial, otherwise why have arbitration?

        OK RL: You’re on!

  8. repenting lawyer says:

    Bynd, The scope of arbitrations is an odd field and full of constant surprises as the CJ of SJC of Mass. noted when one of her decisions was overruled in Geneva. I suspect Bluejay is right that border crossing permits are political decisions outside the scope of arbitration . The usual arbitration involves terms of trade and there is plenty of room for arbitration there. I confess though that I have never read NAFTA or any of the arbitrations under it though I have done some reading on International Trade Law. Gaining more knowledge in this area is not on my bucket list.

  9. repenting lawyer says:

    Kahn, The only Gingrich I can think of involved in a SCOTUS decision was the famous NT scholar whose translation of a Dictionary of NT and Patristic Greek was involved in trial of Colo gay rights case. Borchers’s list of cases that thrill him demonstrate that any argument about blocks is a two edged sword.
    Sanger was hardly unique in being captivated buy the eugenics movement. NE was one of the last states to repeal it sterilization statute and only because it was clear Buck v Bell would be overruled.. Might note that the nativism in a lotto the eugenics movement sounds quite trump like.

    • Khan says:

      Damned autocorrect.

      What’s to argue re: blocks in the Roberts court? GINSBURG, Kagan, Sotomayor, and Breyer, Democrat appointees all, will vote in lock-step every time. Alito and Thomas (and the late Scalia) are the only members of the “right wing” bloc that reliably do the same. It belies the notion of a “right leaning court.”

      Sanger’s captivation by eugenics may not have been unique, but the upwards of 15.5 million black babies aborted since ’73. many of which were and are performed by the organization she founded, doesn’t put her in the same ball park as, well, anybody. Supporting the SCOTUS decisions that have enabled this makes one more eugenicist and racist through ignorance than most garden variety hate mongers are on purpose.

      • repenting lawyer says:

        Kahn, I think the eugenics argument is nonsense,and, given complexity of development, to treat number of abortions as live births prevented is not defensible. How many white births have been prevented through birth control and abortion? Must abortions are simply a form of birth control., which was the original Western Church teaching and makes scientific sense.

  10. repenting lawyer says:

    SCOTUS denied cert in case on Wash statute requiring pharmacists to dispense emergency contraception. Kennedy was with the majority. Does that indicate he views Hobby Lobby as strictly a statutory case that would not apply to State statues under current free exercise case law, which we owe to Scalia.

  11. bynd says:

    Kahn and RL; If you look at the US Bureau estimates, the three races that will see the lowest growth rate by 2060 will be, Black and American Indian, and Alaska Native. The Black population will only grown from 13% to 14%. By contrast, Hispanics will grown from 17% to 29%. Abortion holding them down? Don’t know. Some are calling it black genocide. We certainly have a stereotype of single black mothers with numerous children that would indicate they would be keeping up with everyone else. But they won’t.

    By the way, by 2044 we will be a nation of plurality. No one over 50%. Whites will be a majority minority.

    In any case, by 2060 the black population will grow by only 17,000,000+. Compare that to the 15+ million aborted black babies. Numbers aren’t everything. 3.9% of the population now has a tremendous/inordinate impact on the other 96.1% of Americans. But what happens when they are all fighting for a bigger piece of the pie? What happens when they are all minorities? Pretty sure I won’t be here to see it.

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