The Egregious Damage One Activist Judge Can Do

Seton Motley | Less Government |
Seton Motley | Less Government |
Activism Has Broken Justice

Judicial activism has been a huge problem for decades.  Judges and Justices ignoring the Constitution and the law – and instead imposing their personal policy preferences.  Pretending they aren’t part of the Judicial Branch – but of the Legislative.

The original sin of judicial activism?

The Senate has over and over and over again consented to judicial appointees – to whom they never, ever should have consented.  Thereby ensconcing on benches judges and Justices – who have zero business being ensconced on benches.

Behold – The Constitution:

Article II, Section 2, Clause 2:  “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court, and all other Officers of the United States….”

The Senate has far too often copped out on their Constitutional duty – “in deference to the elected President.”

But elected Presidents are supposed to appoint judges who will adhere to the Constitution.  And the Senate is the backstop – to ensure the appointees meet this criterion.

Yes – Barack Obama judicial appointees are almost universally awful.  But far too many of them – were confirmed by a Republican-majority Senate.  Oops.

Behold again – The Constitution:

Article III, Section 1:  “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior….”

Judges imposing their personal policy preferences – rather than adhering to the Constitution and the law – is not “good Behavior.”

Once on the bench, the only way to rid our nation of judicial activists – is impeachment.  The terms for which – are identical to those for impeaching a President.

But a judge being impeached – almost never happens.  The last:

“Thomas Porteous, Jr., a judge of the U.S. District Court for the Eastern District of Louisiana,…was convicted by the U.S. Senate and removed from office on December 8, 2010, on charges of accepting bribes and making false statements under penalty of perjury.”

Think of ALL the judicial activism that has taken place since 2010.  And we haven’t impeached a soul.

It is high time we do so.

We certainly aren’t lacking for judges from whom to choose.

But this choice – must serve as a visual aide.  To allow for more impeachments to come.  So we should pick someone especially, egregiously bad.

May I humbly submit – Judge Lucy Koh:

“‘Her rulings at times have broken legal ground….

“‘Koh’s interest in the law, friends and colleagues say, is rooted in an idealistic sense of justice – in the law as an agent for change.’

“Translation: Koh likes to ignore the Constitution and the law.

“And make stuff up so as to impose her personal policy preferences – ‘break new ground’ so as to be an ‘agent of change’ – rather than remain within the confines of the law.”

And Judge Koh’s latest big ruling – was omni-directional awful.  It – most unfortunately – serves as an excellent visual aide for impeaching out-of-control judges and Justices:

“Judge (Lucy) Koh’s Qualcomm Coup:

“‘Her sweeping antitrust ruling kneecaps the firm and 5G competition.’

“Judge Koh’s ruling doesn’t just kneecap Qualcomm – it kneecaps any patent holder anywhere in the world doing business in the United States.”

Judge Koh’s ridiculous ruling – is even more damaging than that.

She single-handedly, unilaterally rewrote large swaths of the United States’ patent system.

Let us ponder all the ways this heinousness does damage to our Intellectual Property (IP), our economy, the rule of law and our nation.


The Constitution

Article I, Section 8, Clause 8: “The Congress shall have Power To…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries….”

“Exclusive use” – means a monopoly on your invention.  You – and only you – decide who gets to use it.

Judge Koh bizarrely ruled Qualcomm’s patents – are monopolies that are in violation of antitrust law.

This is patently absurd (SWIDT?).  It’s like finding Shaquille O’Neal guilty of being tall.

Let us ask Merriam Webster – what “monopoly” means:

“Exclusive ownership through legal privilege, command of supply, or concerted action.”

Oh look – there’s the Constitutional word “exclusive.”  As Word One in the definition of “monopoly.”

The Law – as Reaffirmed by the Supreme Court

Judge Koh applied the wrong legal standard for finding anticompetitive harm.

In Ohio v American Express, the Supreme Court clearly stated that mere tendency or likelihood of harm to competition isn’t enough – and that the burden of proof is to show actual harm based on economic evidence:

“The Court issued its decision on June 25, 2018,…ruling that steering provisions do not violate antitrust laws.

“With this decision upheld, the two-market test could be applied to other venues, particularly to the high tech sector where two-side markets are common.”

Emphasis ours – because it is devastating to Judge Koh’s ridiculous ruling.

Judge Koh completely ignores this clear Supreme Court decision – which applies to and favors Qualcomm – and rules right in its face.

Industry Precedent

Judge Koh was so wrong – she even blew basic facts:

“In her ruling, she wrote ‘Qualcomm came up with device level licensing and Ericsson and Nokia followed suit.’

“Completely incorrect.  There is documented evidence that Motorola started this practice in late 1980s.

“After which Ericsson, Nokia, Qualcomm and many others followed suit. This is an industry wide practice – without a single known exception.

“That is, until Judge Koh got this basic fact – factually wrong.  And went on to fundamentally transform the entire sector anyway….”

Based upon her having the basic facts – totally wrong.

Basic, Reasonable Court Process

Get this:

“Judge Koh – dismissed two dozen witnesses put forward by San Diego, California’s Qualcomm.  And went whole hog with Communist Chinese cellular company Huawei.  That also happens to be a direct competitor of Qualcomm.

“Judge Koh cited Communist Chinese, Qualcomm-competitor Huawei – 134 times in her 233 page order.

“Because Judge Koh didn’t care about…you know, facts and dubious Communist Chinese witnesses and stuff.  She cared about imposing her personal Leftist policy preference.”


As stated above: “(Judge Koh’s ruling) kneecaps any patent holder anywhere in the world doing business in the United States.”

Why would anyone invest the billions of dollars often necessary to invent anything here – if they can not protect their inventions?

You know, the way the Constitution says they should.

Answer: They won’t.

And there goes our economy.

That is how all-encompassing awful Judge Koh’s egregiously activist ruling is.

This – after a career chock full of activist rulings.

Thus, Judge Koh is the perfect poster child for Judicial Activism.

And thus is the perfect candidate – to begin our impeachment of judges and Justices.

To begin to reclaim our courts.

And the Constitutional rule of law they have stolen from us.

This first appeared in Red State.

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