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Attorney General William Barr last week ordered federal prosecutors across the U.S. to identify coronavirus-related restrictions from state and local governments “that could be violating the constitutional rights and civil liberties of individual citizens.” In this photo, Barr he speaks April 1 about the coronavirus in the White House press briefing room. (AP photo)

Capitol Retort: Judicial challenge, Barr the door, take me out

Editor’s note: Answers are edited for length and clarity. Any instances of agreement are accidental.

Question 1: As Court of Appeals Chief Judge Edward Cleary steps down from office, his successor, Susan Segal, takes over at a critical time, with the court system just beginning to sort out life during and after COVID-19. What do you see as her primary challenge?

Abou Amara, civil rights and employment attorney: The challenge will be continuing to make sure that the court delivers the functions that the state needs. And I think she is uniquely positioned to do just that. Her background as someone who has led a public law department, really bringing people together and administratively helping deliver on the promise of legal services, I think, puts her in a really good position. Many judges don’t have that experience. I think that because she does, she’s ready for this moment.

Scott Newman, attorney, GOP state Senate Transportation chair: The court system has to remain open to the public—that’s really of primary concern. We don’t have court proceedings and trials in secret. They are open to the public for a reason—so that the public can see what’s going on. How you maintain public input is really, really very difficult in these in these times of Zoom meetings. It’s going to come down to the Supreme Court and the chief justice, but the chief justice is going to listen to the other judges in the Supreme Court, Court of Appeals and the district courts. They will have to figure out some way to include the public. Otherwise, it almost becomes like a secret society. And all of the judges that I know don’t like that. They want it open. And it should be open.

Pete Orput, Washington County attorney: The backlog of appellate cases is going to be crushing when the gates open, and I think she’s going to have the manage it. But I have great faith in Susan. She did a wonderful job managing an office where they were getting about 25,000 criminal cases a year in. She did a really nice job keeping control over it. But I worry, because I think she’s going to get hit with a real flood when the gates open.

Warren Limmer, GOP Senate Judiciary chair: Her biggest challenge? Being an attorney that’s been launched directly to the Court of Appeals. I would imagine the new chief judge would need to catch up to not only to the backlog of cases, but at the same time get herself familiar with previous decisions in order to justify case-law application. It’s a tremendously large step to move someone from a prosecutorial role to a judgeship on the Court of Appeals.

[Editor’s note: Before she became a Court of Appeals judge—her first seat on the bench—Judge Segal was Minneapolis’ longtime city attorney.]


Question 2: A bevy of conservative leaders, donors and organizations are taking to the courts to fight state and local stay-at-home restrictions. They get oxygen, reports indicate, from U.S. Attorney General William Barr, who has ordered top lawyers to monitor state and local policies and take action if needed. Are you with the AG on that?

Amara: I find it a bit concerning that the attorney general of the United States is concerning himself with state action. Our system is based on the idea of federalism and states being able to take action in the best interest of their citizens and in the context of their laws. The idea that the attorney general is wading into that is a bit concerning to me.

Newman: I have to hesitate on that, because I am pretty much of a 10th Amendment guy and I’m not so sure that the federal attorney general has the right to meddle in in the politics of Minnesota and the stay-at-home order that the governor has issued. I don’t mind at all the fact that the AG is monitoring things, but I don’t think he’s got any authority to act. The 10th Amendment, in my mind, says the federal government doesn’t have any jurisdiction to interfere. But I’ll be very clear. I really question whether or not that portion of the [Minnesota] statute that gives the governor the authority to make law is constitutional. I sincerely question that.

Orput: Barr can’t muscle [Gov.] Tim Walz. That’s a lot of bluster and a lot of Trumpist nonsense. We’re all anxious to get back to work. For those who are unemployed, I feel very terrible about it. But at the same time, we’re setting records on deaths, still. We haven’t even peaked in several states. So we’ve got to take it right.

Limmer: I’m not going to answer this question directly. I’ll just say that my priority would be to assure that all citizens can enforce their civil liberties. Whether we are in under a peacetime emergency status or not, constitutional principles must be preserved.

Major League Baseball officials apparently are optimistic that they can start up a truncated season by July 2, but without fans the games won’t look like they did in this image of Target field a decade ago. (File photo)

Major League Baseball officials apparently are optimistic that they can start up a truncated season by July 2, but without fans the games won’t look like they did in this image of Target field a decade ago. (File photo)

Question 3: Major League Baseball officials apparently are optimistic that they can start up a truncated season by July 2. Games would be played in the teams’ own major-league ballparks, but without fans. The plan would do away with the American and National leagues and realign teams based on geography. Does this idea do anything for you?

Amara:  I still think, even considering taking out the fans—which is a smart move—there are still going to be issues dealing with the proximity of players. I think the MLB is trying to strike a balance like everybody is right now, trying to figure out how we can best return to our normal lives, but also do it in a way that is responsible. Only time will tell if that is actually feasible. But I understand. People are going to have to be creative if they want to return to normal society anytime soon.

Newman: Nothing. I think they ought to leave Major League Baseball alone. I don’t see why they can’t play baseball. It’s America’s game. Open up the stadiums and social distance.

Orput: Well, if I can watch it on TV, that would be OK with me. I think it would be hard to be a ballplayer and be in an empty stadium. But good luck to them.

Limmer: [Laughs.] I guess my quote would be, is nothing sacred any longer?

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