Eminent Domain

Wow, early morning announcement. I was still asleep when it actually happened, and I had set my alarm to get up for it (assuming it would be 9 AM EST). To echo what I said before, great pick. I'm behind Alito happily and fully. This is the kind of nomination that should've been made a month ago. I guess I'm going to re-read Casey today...

EDIT: Schumer's pissed already. I'm thrilled. This has pissed off all the right people. I can't wait to see the Democrats try to oppose the guy who a hell of a lot of them voted for and praised. This is the nominee and the fight that we've been waiting for.

EDIT 2: Haha, I love Chuck Schumer. He's the gift that keeps on giving. Nice of him to invoke the name of Rosa Parks while slamming Judge Alito. Maybe he could've stood on her coffin and given his speech from there. Demagogue.

This nominee will divide America? That's crap. Even if it was true, since when is it the role of a judicial nomination to unite America? Oh, yeah. I remember the turmoil in America in the 90's. We were at each others' throats, tearing each other apart. Then it happened. Bill Clinton nominated Ruth Bader Ginsburg. The heavens opened, the trumpets blared, and sunshine poured down on the land. America was united, and there was peace in the land.

EVENING EDIT: Confirm Them has a nice example of early slimery committed by a Democrat against Judge Alito. This document is marked "Not for Attribution," which is a nice way to say "the author is a coward and wants to smear anonymously." I'm not a big fan of anonymous attacks against people, and I certainly think that this one is disgusting. Unfortunately, there is probably more to come...

That's the rumor. We find out who the next Supreme Court Justice will be tomorrow. Just about everyone thinks that it is going to be Judge Sam Alito of the 3rd Circuit. Great pick, solid pick. He's not one of my "Bush gets my first born" picks, but I am behind Alito 100%. A key plus for Alito is that Specter likes him. Normally, someone who wrote the dissent in Casey (as Alito did at the appellate level) would be in Specter's crosshairs. Of course, Schumer and Co. will be after him like mad. But screw it, it's time to fight.

I know that Casey will be the main avenue of attack on Alito. It's always about abortion, especially when Ralph Neas and Nan Aron get involved. I'm sure the press releases are locked and loaded right now. Who cares? No one takes those two goofs seriously anyway. Still, they are going to misrepresent Alito's dissent, banking on people not actually reading it for themselves. Fear not, faithful readers. I will hit the books on the 3rd Circuit's Casey opinion, and re-read the Court's.

But I might be getting ahead of myself. Alito isn't even the nominee yet. If he is, I'm happy. He's likeable and will do great on TV and in front of the committee. I can't wait for tomorrow.

...while we're kicking your ass.

Union thuggery?! I'm shocked and surprised!

I don't really keep up with CA politics, and I'm not a huge fan of Schwarzenegger beyond Kindergarten Cop, but this garbage is infuriating. What is wrong with people? Have we gotten so coddled and insulated that we can no longer tolerate someone having and expressing a different opinion? Watch the video. Yeah, hit that woman! Steal her personal property and destroy it! I guess I can add this to the long list of reasons why I hate modern unions.

Even if it is goon-like violence, it is nice to see those members of the public employees union actually moving around. Usually, they work with the speed of molasses. I was concerned that some infectious form of severe paralysis had spread through organized labor. I guess they just need the proper motivation.

This reminds me of those little jags who would go around neighborhoods at night, stealing yard signs before the election. It's a minor theft and trespass, but it's a bigger issue than that. If you engage in activities like that, you are showing everyone that you don't give a damn about free speech. You are a little authoritarian scum bag with fragile little feelings that have been bruised by someone's opposing opinion. Grow up.

I took a trip to the liquor store tonight and decided to do some window shopping. During this time of the year, there are a lot of new beers and seasonal beers available. You've gotta snatch them up while they are around. Enjoy them while you can. The Oktoberfests were in full force, but I was looking for something with teeth, something with real character. And I found it in New Glarus Tail Wagger. I love New Glarus. They are a WI micro that has been made popular by their Spotted Cow beer. They have many other varieties, all worthy of a look. But this... this was new to me.

The Tail Wagger was a surprise. I thought I knew what New Glarus brewed, so I was shocked when I saw something new. According to the label, "this is the strongest beer we have ever brewed..." SOLD! That was the point when I said "6 pack, you are coming with me."

Tail Wagger is pretty different as far as New Glarus beers go. Generally, I think that New Glarus has three categories: light, accessible beers (Spotted Cow), girly beers (Apple Ale), and distinct flavors (Fat Squirrel, Staghorn). Tail Wagger is a bit different. The flavor is fairly mild and fruity (like the first two) but with a lot of character (like the last). It's a happy marriage.

Tail Wagger has a slightly bitter initial taste on account of the very high alcohol content (I'd estimate it to be about 9%). The color is surprising. It is an amazingly vibrant red. It puts traditional red beers to shame. Once the beer fills your mouth, you will notice the very hoppy flavor. Tail Wagger is heavy on the hops, which can be overpowering to some people. But I found it quite refreshing. The flavor is rich. It has weight, but it is not too heavy that you can't enjoy the beer. It is strong, but accessible. You really feel the alcohol content in the after taste. You know that you aren't drinking Miller Lite.

This beer is kind of harsh. It will sneak up on you and do you in. I would suggest buying a 6 pack and having two in a sitting. Any more than that and you are just wasting good beer while buzzed up. I don't know how long this beer will be available. New Glarus loves to brew small batches of experiments. Get the Tail Wagger while you can. It will knock you flat.

How can you tell that blogs are becoming more and more important in news and politics? Speaker of the House Dennis Hastert has a blog now. Welcome to the party, Denny.

Now that Miers has withdrawn, we're back where we started... sort of. President Bush is in much more trouble now than he was in the past. It's been a very rough week at 1600 Pennsylvania, but there is hope.

Monday morning, I want to wake up to a press conference announcing the new Supreme Court nominee. I want someone that I can get behind. I'm not alone. Judicial conservatives, strict constructionists, originalists, and textualists have been waiting for this fight for a long time. We are ready. We want this fight. We need this fight. For the right nominee, we will do anything to get confirmation. This is the president's chance to not only rally his base, but ignite his base. Give us the nominee that we were promised, and all of the energy used to opposed Miers will be focused to support the new nominee. In fact, it will be much more vigorous than the Miers opposition, because everyone will be on board.

Once again, here is the list. If Bush nominates Luttig, McConnell, or Brown, I will give him my first born. The kid can be a farm hand down on the Crawford ranch or something. In my gut, I still think that the nominee will be a woman. I also think that the White House will wrongly want to avoid the fight for Brown, even though it would be so worth it. She and Justice Thomas are old friends and think alike. I'd love to see them work together.

But I stand by my previous (incorrect) pick of Karen Williams as the next nominee. She's proven, she agrees with Luttig on almost everything, she's fairly young, and she'll look good on TV. I would love to see Diane Sykes nominated otherwise. She would be the only Justice on the Court who was a trial judge. That's sort of a cool distinction. There are a lot of great names. Just pick one of them, White House.

As sort of a looking down the road issue, I'm very intrigued by Viet Dinh. He has an extensive resume for someone of his age. He is co-author of a piece in the Opinion Journal today (that I am too lazy to link; you go find it), and he teaches Con Law at Georgetown. President Bush should nominate him to an appeals court as soon as possible. Then there might be a promotion down the road. As much as I disagree with identity politics, it's a wonderful way to turn it around on the people who practice it.

Get Michael Luttig on the phone. Now that Grandma Harriet has bowed out, there's a judicial revolution that we need to get started.

To say that I don't like Russ Feingold is an understatement. I can't stand him. I may be allergic to him. I'm no fan of either of Wisconsin's senators, but I think my anti-Feingold streak is longer than my anti-Kohl streak. Why? There are a few substantive reasons, like my previous post about Feingold's revolting attack on Bill Pryor during his confirmation hearing. There is also my general dislike of his phony "maverick" label. It's phony, just as McCain's "maverick" label is phony. If you think that these are principled men, above the fray of partisanship, working hard for what's best for the nation, then I have one question for you. What color is the sky in your world? In my blue sky world, politicians care about one thing: re-election. Even if you buy into that "doing the people's work" crap, you can't do good deeds if you get run out of office. The end result is doing your best to not piss off 51% of the electorate.

But let's look at Russell for a moment before I digress too far. What has been the crowning achievement of Feingold's career so far? That would be the Bipartisan Campaign Finance Reform Act of 2002, BCRA if you're into brevity, McCain-Feingold if you're into fellating these two jokers. The idea behind campaign finance reform is that money corrupts politics, it corrupts elections, and it harms democracy. Given the properly drafted legislation, all of that evil money and its bad influence can be taken out of the system. If you believe that, why not just pass a law to make everyone be nice to each other. You'll end poverty, crime, and bigotry in one masterstroke.

I think the premise is flawed from the start. I don't think that money injected into politics turns good legislators into corrupt tools of special interests. I think that highly corruptible people are drawn to politics and succeed in politics. If politicians are the noble creatures that we are led to believe, they would take the money, spend it on their campaign, and legislate independently of that contribution. Of course, they won't get money from that same group next time, and might not get any from other groups. They're probably going to lose re-election. Sucks, but quite noble.

In reality, politicians do care quite a bit about who is giving them money. And they are going to represent those interests whether they are the NRA or Emily's List. Why is this shocking to people? How long has politics been quid pro quo? Unless you're in a fog of idealism, you'd probably say a long, long time. That's the nature of the activity.

BCRA is unconstitutional. Only 4 members of the Supreme Court agreed with me, but I think that you'd have to be lying to yourself to think otherwise. Read the case McConnell v FEC. The majority opinion is a justification masquerading as a legal opinion. Check out Justice Scalia's opinion, starting at page 169 of the PDF.

...a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about.

Scalia builds on this point...

It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds...

Basically, BCRA results in less speech critical of politicians. It's not shocking that so many politicians would vote for this bill. It's another hurdle placed in front of anyone who is trying to unseat an incumbent. I guess their 90-some% rate of re-election is not enough. They need to make sure it's harder to criticize them or inform voters about their records.

Scalia then takes on the argument that money isn't speech and this kind of regulation does not restrict speech. The argument is crap. He points out that regulating production and dissemination of ideas is an effective way to restrict speech. It would be like the government saying that we have total freedom of the press, but we can only spend so much each year on newsprint, ink, and printing machines. That is a de facto restriction on speech. Stamp Act anyone?

Read the entire opinion (I know it's long, just do it). Scalia masterfully takes BCRA and the majority apart and exposes the stupidity of both. I was incredibly disappointed in President Bush, who said in his first campaign that this legislation was unconstitutional, when he signed it into law. Unfortunately, campaign finance reform is popular with the public (most of them probably don't understand it), so he felt a political need to sign it. It should've been vetoed.

The law very biased against lower and middle class citizens too. Read BCRA. Easy to understand? Think Joe Six-Pack can figure out the various aspects of the law if he wants to form a citizens' group and make a difference in the election? I don't. This law does a wonderful job of preventing ordinary citizens from getting involved. They cannot afford the time and cost it will take to comply with the ins and outs of this law. Who can? The very rich. George Soros has no problem hiring an office full of people to help PACs and candidates. If you can afford to have an army of highly trained specialists working full time, you can probably comply with BCRA. Look at how much of a campaign's costs are devoted to legal and accounting services and professionals. It's a huge amount. This is just another roadblock.

I discussed this law with someone (a huge Feingold supporter) one night, and he said that he didn't care that it was unconstitutional. After recovering from my shock and restraining my urge to slap him, I asked for an explanation. He said that he'd be willing to give up some of his First Amendment rights to "fix politics." That 2004 election sure was clean, huh? And BCRA was written so well that there were no loopholes whatsoever (as long as you ignore those 527 groups). Corruption was fixed too. Now there are no politicians in DC beholden to special interests. What a wonderful law! Thank you, Senator Feingold. You fixed everything.

Kind of funny that Mr. Defender of Civil Liberties doesn't seem to care about the First Amendment...

Thank you for my laugh for the day, neighbors to the North.

And people wonder why international law is viewed as a joke. Someone should clue these legal scholars in on concepts like diplomatic and qualitative immunity, and the fact that they actually mean something. Regardless, prove complicity. I'd love to see you try. This is just a meaningless, masturabatory act by a group of people bent on making their own empty statement legitimate in... someone's eyes (most likely their own).

I'm pimping John Stossel's work more and more lately, but he deserves attention. His latest column is all about the Coburn Amendment and pork.

I think that the position that I take on this issue is brilliant. I slam any legislator for sending federal funds back home for their non-federal, pet issues. But I can't stand people who fawn over the Senators who voted in support of Coburn's plan. Why? Am I nuts? Yes. But I also don't believe that reasonably intelligent adults should be praised for doing the right thing. They should do the right thing reflexively, if they are the noble public servants that they claim to be.

But that's not politics. Politics is scummy. And I feel my most anger towards Congress when I'm writing that check to the US Treasury in early April, knowing that my money is going to some moron's bridge in Alaska.

I don't really understand the spotlight being thrown on the fact that there have been 2000 US military deaths in Iraq. The 2000th is worthy of tons of news stories, Op-Eds, and about a million blog posts? What makes this more important than 1999 or 2001 or 1786? Nothing. Each death is important in its own regard. Each is a noble sacrifice committed by a better and more selfless person than myself, someone who was willing to serve their country in any way asked. I think that all of the commotion over 2000 cheapens the deaths of the soldiers. It just becomes about big, round numbers. That's all 2000 is, it's a big round number picked by certain people to be some sort of finger waving benchmark.

Today, many liberal blogs have been breathlessly asking "oh, when will Bush learn that this folly of a war must end?" or "how could this administration get us in without a plan to get out?" I spend a lot of time wondering if these people are really this dumb or really this partisan.

As a person who supported and supports the war in Iraq, I would love to have all of our troops come home. That can happen when the Iraqis can defend their own country. That is the goal. It's a tough goal to appreciate at times because it isn't a traditional military objective, like take that hill. I think that there are things that we can do to help them get there faster, but I am opposed to pulling out until they are actually ready. Leaving prematurely would risk everything falling apart in that country. If that happens, everything that those 2000 US military deaths have accomplished would be in vain.

There is something that really amazes me about the war. Five years ago, the war in Iraq would be exactly the type of war that a liberal would probably support: a war of liberation, a war against a despot, a war for human rights. Five years ago, the war in Iraq would be exactly the type of war that a traditional conservative would probably oppose: a nation building war. I have a theory on how and why this flip happened, but that's another post for another time.

Now, imagine this. Take the events of the last 3 years and replace Bush with Clinton. If Bill Clinton were president right now and had done what Bush did in Iraq, he would be praised to no end. He would be called a great liberator of oppressed people. He would've been given the Noble Peace Prize. The media would be celebrating every successful Iraqi election as a historic moment. The praise that Clinton would've gotten after the constitution was adopted would've gone on and on. He would be called an innovator, a visionary, and a man bold enough to change the status quo of a flawed area of the world. But our current president doesn't have the New York Times opinion page to cheerlead for him...

In the latest installment of Christopher Hitchens' campaign against George Galloway, he highlights the juiciest portions of the report by the Senate's Permanent Subcommittee on Investigations. I can't come close to Hitchens in the rhetorical realm, so just read it. Here's my favorite part:

Yet this is the man who received wall-to-wall good press for insulting the Senate subcommittee in May, and who was later the subject of a fawning puff piece in the New York Times, and who was lionized by the anti-war movement when he came on a mendacious and demagogic tour of the country last month. I wonder if any of those who furnished him a platform will now have the grace to admit that they were hosting a man who is not just a pimp for fascism but one of its prostitutes as well.

Galloway is such a slimy guy. It's amazing how his demeanor and tone changes with the audience he is appearing in front of. When he and Hitchens had their debate a while back, Galloway was at his fire-and-brimstone best (worst). If I recall correctly, both men were on Bill Maher's show the Friday after the debate (I may be off, but it was very close in time). Galloway was subdued, almost neutered. He acted like the moderate victim, graciously taking the attacks from Hitchens with what could be called good humor. I think he realized that HBO and CSPAN get audiences of very different sizes.

I think it's clear that Galloway lied under oath. Hopefully, this discredits and shames him into obscurity. But I don't think that is a sure thing. We know how little some people think of the crime of perjury...

Michelle Malkin has caught USA Today doctoring a photo of the Secretary of State to make her look like an Evil Dead reject.

Is it even possible to have any respect for the mainstream media anymore? Any? And please chime in with your "there's no media bias" claims. There is obviously no motive behind this. It's not enough that they always photoshop out Hillary's bifurcated tail and hooves, now they pull this...

I attended an interesting career panel today at school. I'm always interested to hear about alternative career routes for those of us who will one day have JDs. The whole working for a firm, writing legal memos for my superiors thing doesn't strike me as good times. It sounds pretty crappy honestly. To me, this whole law school thing is all about getting some valuable skills and then doing something challenging and exciting. Lobbying seems like a definite possibility.

I'm fairly interested in politics. Honestly, my interest has really lessened in the past few years. It's too much fighting for the sake of making the other guy look like bad. It's a lot like monkeys hurling crap at each other, hoping a nice handful hits the opponent square in the face. I get more out of reading Locke, Mill, and the Founders than any current political commentators. But enough of this digression.

Lobbying seems like an interesting way to put the law school skill set to work in a creative way. I would probably have a hard time lobbying for something that I didn't agree with though. It's easy to claim that you'd be able to turn off that part of your belief system, but I don't think I could do it. Even if I got a very nice salary from it, I would think less of myself.

I'm keeping my options open. This summer, I would love to do something in the political field, just to see if I liked it. It's one thing to be interested in it as an idea, but it's another to actually do it in practice day after day. It's an odd feeling to be almost 24 and have no idea what I want to be when I grow up.

Say what you will about German television, but I've never seen a commercial that was so serene and relaxing. I could watch this three times in a row and be ready for bed. Be sure to turn the volume up so you can hear the music. It's really quite beautiful. Enjoy.

This isn't so much a beer review as it is a beer endorsement. I went out last night for a while. The bar that I went to has 50 beers on tap. I picked one and stuck with it the entire night. That beer was Hacker-Pschorr Weisse. It's my go to guy. It never disappoints. I like weisse beers in general because they are light without being lite beer. Most lite beer is flavorless and flat. It doesn't really taste like anything, so it's never really satisfying to drink. But people in general like it because of its blandness. Also, you can drink a lot of them before you get full.

Weisse beers don't fill you up and they taste great. Hacker-Pschorr is probably my favorite. It is popular enough that just about everyone has it on tap, even Applebee's (I think). It has a crisp and refreshing taste. It hits the tongue with a citrusy bite, which is heightened if you add a lemon wedge. I recommend keeping the lemon wedge on the rim of the glass instead of squeezing it into the beer. Every few drinks, run the wedge around the rim of the glass. It gives you an even lemon flavor and nothing floating in your beer. Hacker-Pschorr Weisse has a very clean finish too. There is no strong after taste to take over your mouth. This makes it a great beer to have with food, especially chicken and fish.

When I want a good beer with dinner or even a solid choice to get me through a long night, I go with Hacker-Pschorr Weisse.

I'm high on HIM right now. There is something about that post-concert buzz that just makes everything feel fine. The band was amazing live. I have a bunch of live recordings and a short live DVD, but they didn't capture the band fully. Ville Valo is a weird looking guy in person, but he's got a set of pipes on him. It's hard to say what my favorite songs were. "Poison Girl" was great, so was "Buried Alive By Love" and one of the new ones, "Wings of a Butterfly."

The setlist was excellent. They opened with a new song "Vampire Heart" and then went into an old favorite "Right Here in My Arms." Even though the latest album just came out, the band made sure to play the old songs that everyone wanted to hear. I can't stand it when bands tour and just pimp the new album. I know that they want to sell it and promote it, but the crowd wants to hear their favorites. For the encore, they did a cover of the Ramones song "Poison Heart." It was good enough that I want to by their latest CD single just to get the recording of it. I'm cheap; I usually would never buy a single. The whole performance was great. I have a feeling that I'll be listening to HIM heavily in the next few days.

The crowd was pretty interesting. There were a ton of teenage goth kids (of course), but a lot of older people too. And I'm not talking about "older" as in my age. One couple in particular decided to use the concert as a time to dry hump. Pretty classy. Freakishness aside, the crowd was really into the show. I was far too sober and with other people who I would rather not look like a moron in front of to get all stupid. The last thing I need is my classmate Lindsey telling everyone at school that I was acting like a buffoon at the HIM show. But I had a great time just watching the show and listening to the music. Sometimes it's better to just watch the performance and let it all soak in. Good times. I'm glad I went.

Tomorrow night, I am going to see HIM at The Rave with a classmate and her friend. It should be an interesting experience. I spent much of my teenage years at The Rave. I was a total concert junkie. In the last few years, my evenings of live music have been few and far between.

I'm going to predict that the crowd is full of 16 year old, Hot Topic-dressed, goth posers. And I bet most of them will be huge Bam Margera fans. Regardless, I think it's going to be a good time. There will be a review or at least a wrap up of the show on here sometime Monday.

Can't sleep. Want to sleep. Need to sleep.

If this keeps up, I'm worried that I will end up talking to an imaginary friend and starting an underground boxing club.

"The first rule of Eminent Domain is that you do not talk about Eminent Domain..."

I don't know how I can sleep at night. I live with guns. I know. Scary stuff.

John Stossel, one of the few mainstream journalists that I like, has a great opinion piece about guns and gun laws. Read it.
This is one of my favorite parts...

As Alex Kozinski, a federal appeals judge and an immigrant from Eastern Europe, warned in 2003, "the simple truth -- born of experience -- is that tyranny thrives best where government need not fear the wrath of an armed people."

I know, everyone rolls their eyes when they hear statements like that. But I'd rather have my gun and not have to worry about it. I can't wait for Gov. Doyle to be kicked out of office so WI can join the vast majority of states and have concealed carry. This is one of my many complaints against our wise and noble governor. I don't care who beats him. Walker, Green, doesn't matter. I would vote for a potted plant before I vote for Doyle. At least the potted plant couldn't veto Voter ID.

It's amazing to see how different judicial opinions are in form and substance. It's easy to look at old opinions and point out the differences with new ones, but that's not really what I'm talking about here. Those can be chalked up to changes in language usage over time usually. Modern opinions take so many forms. I often wonder why judges decide to include certain facts, omit others, or structure their fact patterns in certain ways. Many times I read something and think "Why did the judge include that?"

For instance, Doe v Medatlantic Health Care Group, Inc. 814 A.2d 939 (D.C. 2003). This case is about a woman who worked in an office and a hospital. She found out that one of her office coworkers had HIV. She should not have been able to access this information, but she got it anyway. She then told everyone at the office, and her coworker was ridiculed. Let's take a look at what Judge Ruiz put in the opinion...

On April 25, 1996, still before he returned to work, Doe went to the State Department to collect his paycheck, and he encountered co-workers Derek Nelson and Gordon Bannister outside the building. Both were laughing as Doe approached, and Nelson said to him, "Hey motherfucker, I hear you're dying of AIDS."

Interesting. Did Judge Ruiz feel the need to include this quote as an example of Doe's treatment as a result of the confidential information being released? Or does Judge Ruiz just like quotes? There are quite a few in the opinion.

Either way, it's an eye catcher. Hell, it made me reread the case twice. I guess the lesson to be learned is this: judges, if you want law students to enjoy your opinions, fill them with foul language. Or maybe it's just me and I'm the only immature person who thinks this is interesting.

I'm back. And I have a really weird post. This Miers thing seems to be falling apart more and more each day. Today's abortion news has Sen. Feinstein foaming at the mouth, ready to do battle during the hearings. And you know that all of the other Democrats and Specter are ready too. If I were in Vegas, I'd put money on Miers not getting confirmed.

Why? That's the real question. Why would the White House, which has produced John Roberts as a nominee as well as a fleet of incredible Appeals Court nominees, screw this up so royally? Because they wanted her to fail.

Bear with me for a minute. This administration has done everything in its power to get excellent judges on the bench. Except for a few that were lost thanks to the Gang of 14, they have done their jobs. My theory is that they saw how easily Roberts got through and got worried. The fight would be with the second nominee. Democratic senators had voted for Roberts, positioning themselves to be "principled" in their vote against Nominee X. Whoever they chose to be Nominee X would face the huge battle that could not be mounted against Roberts. What can be done?

Sacrificial lamb. Offer up someone to take a hit for the team. Someone that no one would expect to be nominated. Someone that can be attacked on many fronts (cronyism, unqualified, abortion). Someone who would gladly fall on the sword for her president. Enter Harriet Miers. The White House will act like they want her to be on the Court. They will fight for her tooth and nail, knowing that she's doomed. When she gets defeated, the Democrats can enjoy their little victory.

Then comes the new nominee. The real nominee. This nominee will be much more qualified than Miers. This nominee will be a sitting federal judge. This nominee will have an extensive knowledge of Constitutional law and will do great at the hearings. This nominee will be confirmed.

This is my crazy, Karl Rove is a mad genius, paranoid theory. We'll see if it happens.

There probably won't be any updates for a few days (unless something big happens). I have a lot going on right now, and the blog is low on the totem poll.

I promised I would welcome the Res Ipsa blog (link on the right) with its own post. I guess I'm to blame for him (one of my classmates) getting into blogging. It's like a disease. I'm sure he'll post something of merit.

For the record... I wore a striped shirt out tonight. But I wasn't nearly as cool as the guy in Res Ipsa's post. We all gotta have heroes.

I'm not a big fan of petitions, but I'll get on board on this one.

David Frum of National Review is petitioning the White House to withdraw the nomination of Harriet Miers. I'm sure this won't mean a damn in the long run, but it can't hurt.

is getting Sweet Caroline stuck in your head for days. That's what happens when you watch Fever Pitch.

Damn you, Neil Diamond!

James Dobson says that some of the judges on the list for nomination to the Court took themselves out of contention.

I don't buy that for one damn minute. There is no way that all of the women on the short or long list bowed out. Sure, Owen was reported to say that she didn't want the job. But Brown? Jones? Williams? Clement? Batchelder? Sykes? Corrigan? Glendon? They all said no? Don't piss in my ear and tell me it's raining.

I've been drifting over this Miers thing. I was livid the day she was nominated, then I decided to wait until the hearings. Now, I think I'm back to the beginning. I want her to withdraw or be rejected by the committee. The Court is too important to waste a seat on someone who isn't qualified.

Hell, if you're going to nominate her, why not me? Based on the lifespans of my relatives, I'd be on the Court for 60 years. I have no real paper trail (aside from ED) but at least my judicial philosophy is no secret. The Court is severely lacking in age diversity. It would be funny to have clerks older than I am too. White House, my hat is in the ring.

I've hit the mid semester slump. If you don't go to law school, allow me to explain this to you. Generally, people come back to law school ready to go. They are pumped to see their classmates, they want to see what their new classes are like, and they like the fact that they are getting closer to graduation and a lucrative job sucking the life out of this once great republic. Everything is just great. You've got the world by the ass. Then it hits.

It hit me today. How can I tell? Well three times today, I felt like throwing my book across the room, saying to hell with this, and going home. That tends to interfere with one's studies. I'm at the point where I can't stomach reading another damn case. I'm sick of negligence, fiduciary duties, business deductions, the Clear Air Act, and hearsay. All of it makes me want to move to Guam and become a fisherman.

It's after 3 AM and I still have 28 pages of reading to finish. I am less than thrilled about this. Here are my options. 1. I can stay up and read it all, guaranteeing that I will be a zombie tomorrow for class. 2. I can go to bed now, get up early, and finish the reading before class. 3. I can go to bed now, not read, hope I don't get called on, and try to take really good notes in class. 4. I can drink bourbon until the sun comes up. I'm leaning towards option 2 or 3.

The slump is not going to be helpful this weekend. I seriously need to start outlining my courses. If I wait any longer, I'm going to have way too much material to try to synthesize.

I need a week off. I need to sleep for 2 or 3 days. I need to watch about 13 movies. I need to read a novel or two. I don't need any more GD f'ing law in my life.

Diatribe over.

I am no closet James Bond fan. I own all of the official Bond movies on DVD (I don't count the spoof of Casino Royale or Never Say Never Again as official). I frequently get suckered into watching any Bond movie that is on TV. If it's on, I have to watch it. That being said, I'm pretty interested in the new Bond.

My first reaction after hearing the name Daniel Craig was "Who?" My second reaction was "Good." I would not have been happy if Ewan McGregor, Colin Farrell, or Orlando Bloom got the job. They are all just actors, occasionally good actors, but just actors. I don't want to see James Bond and think of a heroin addict, Alexander the Great, or an elf. The less I know about the actor, the more he seems like James Bond and not just some guy playing James Bond.


Pierce Brosnan isn't happy. He still wants the job. I think he was a decent Bond. He had the right look, the right attitude, and was a decent actor. He just got crappy scripts. Goldeneye was great. I think it's in the top 5 of Bond films. But Tomorrow Never Dies, The World is Not Enough, and Die Another Day just got goofy. There were a few good parts (like the opening of Tomorrow Never Dies) but they were letdowns after Goldeneye.

I hope Casino Royale is good. It's the last of the Ian Fleming books to be adapted into a serious Bond film. That is a positive because the screenwriters have solid source material to work from. The films that weren't based on novels tended to be the ones that got the most screwy. Stick to the book and it should be fine.

And for the record...
Best Bond: Sean Connery
Best Overall Movie: Goldfinger
Worst Overall Movie: A View to a Kill
Personal Favorite Movie: The Spy Who Loved Me
Best Villain: Goldfinger
Best Opening Song: Nobody Does It Better (The Spy Who Loved Me)
Best Bond Girl: Honey Rider (Ursula Andress)

Paying 26 grand a year to go to a school that can't give you an internet connection for the entire day.

It's official. I am the last living human male without a fantasy football team. I just don't get it. I'm sure it has to do with the fact that I am a pretty passive football fan. I like watching games when there is a social aspect to it. It's fun to get together with a bunch of friends, get some beers and food, and have a good time watching a game. There is no way that I could sit in front of the TV alone all day Sunday and watch more than one game. I just don't have the patience for it.

It's amazing how far fantasy football has spread in a few years. Before class, I overhear people talking about how their teams did, what trade they are engineering, and who in their league really sucks. They are checking their websites, pouring over stats, figuring out what to do for next weekend. It's strange to watch from afar. Listening to two people talk about their fantasy football teams is like listening to two dorky teenagers talking about their Dungeons and Dragons characters.

I just don't get it. But hey, have fun with it. I mean, it's not a cool hobby like blogging though...

Saturday night, I saw Waiting... This is the movie that the Milwaukee Journal Sentinel gave one star. One star. I don't know if I've ever seen a one star movie, but now I can add that notch to my cinematic belt. I liked it. It was vulgar, gross, and hilarious. You can't go into a movie like this and expect Citizen Kane.

I've noticed something about certain types of movies and the reviews they get. I saw "types" because "genre" seems too broad. Waiting... would be considering a comedy as far as genre. But I would narrow it down further as a gross out comedy as far as type. I don't think it's right to measure a movie like this against Citizen Kane or even Caddyshack (which I think is one of the all time great comedies). What was the goal of Waiting...? Laughter from shocking and disgusting words and acts. Did it deliver? Yes, it did. I'm not going to start writing a treatise on it or anything, but it's worth renting again sometime.

Prof. McAdams highlights this interesting case of diversity training for TAs at UW.

I'm curious if a grad student TA that I know went through this training and what he thought of it. Get to the comments section.

I know I said I wouldn't mention Miers until the hearings, but I lied. And this is not really about her per se. It's about this whole "Warren" issue.

Warren Burger has been dragged through the mud on almost every blog and commentary site covering this tempest in a teapot. Well, I've had enough. I'm coming out and saying it. I love Warren Burger. But here are the reasons...

It's not for his legal opinions. It's not for his leadership as Chief. It's not for his administration of the Court and the judiciary. It is because Warren Burger was the embodiment of a comic book super villain. He was the Lex Luthor of the federal judiciary. He was that damn good.

Who else could piss off Douglas and Brennan so much over opinion assignments? Burger would claim to be in the majority of a case just to assign the opinion to a particular justice. And yes, that is "claim." He would change his mind all the time. Meanwhile, Douglas was climbing up the walls of his chambers about this and Brennan was getting all teary eyed about Earl Warren not being there. Burger was amazing at sticking it to people. As an aside, I still think he joined the majority in Roe to keep Douglas from writing the opinion.

Who else would threaten to punch Judge Bazelon, chief of the DC Circuit, for allegedly letting the press into then-Judge Burger's chambers to photograph it after being nominated to be Chief? Burger was going to sock him in the nose for letting the reporters into his chambers. You gotta love that rough and tumble (and possible assault charge) attitude of the then soon-to-be-Chief.

Burger was also a snappy dresser. Look at the cover of The Brethren. Compare Burger to the other Justices. The other eight are wearing pretty dull suits. Nothing spectacular. Not Burger. He's looking quite dapper, also sporting the French cuffs on his shirt. Complain all you want about his sloppy opinions, the man can dress.

On a more serious note, I admire Burger for one thing especially. Burger climbed the mountain. He was selling insurance while working to become a night school graduate. He didn't go to law school at some big name university. He went to the St Paul College of Law (now William Mitchell College of Law). Burger was no Harvard man or Yalie. That means that he clawed his way to the top of the national legal environment without the benefit of a privileged pedigree. And he eventually did make it to the very top, Chief Justice of the Supreme Court. He gives hope for all of us in non-Ivy League schools.

This is the 300th time on ED that I'm going to recommend reading The Brethren. It's just a great book. Borrow it from a library or buy it used so Bob Woodward doesn't get any money from it. He's a pompous tool. But read it and thank Justice Stewart for being such a snitch. Without him, we probably wouldn't have so much great information on the first 7 terms of the Burger Court.

Smoking bans suck. They do. And I say this as a person who would never touch a cigarette. As a disclaimer, I smoked a cigar at a wedding once. It tasted like nothing, and I was mad that it killed important beer drinking time. Other than that, no smoking for me.

A while back, a friend in Madison commented on how he loved the smoking ban in bars. My response was that he was a dirty f'ing fascist and I will slap him about the head and neck the next time I see him (kidding, you're still okay Nick). If I lived in Madison, I would just drink at home. I would never support a bar that buckled under the pressure of the Madison elitist crowd. Fun fact... I start dry heaving as soon as I enter Dane County. It happens at any time of the day. I just can't stand the fact that Communists run my state capital, so I get physically ill. Call it a personality quirk.

Bars should be smoky. It's just a fact. If you are in a bar (drinking alcohol to scar your liver), you should not get all huffy over a little smoke. What, now you care how you harm yourself? "Oh, I'll drink a bunch a liquid that will kill me in sufficient amounts but keep that smoke away!" Give me a break. If you don't want smoke in the air, go to some sprout hut that serves honey dew smoothies and romaine sandwiches to emo kids. The rest of us have brain cells we want to kill.

Madison banned smoking in bars. That's shocking. Really. Madison is such a believer in the free market. If there was a big market for non-smoking bars, someone would open one. And that bar would be making money hand over fist. Then another would pop up. And another. And another. Look at that free market go! These bars that are so in demand would be packed on the weekends, and the smoker bars would be hanging on by the skin of their teeth. Right?

Wrong. There is no huge market for smoke free bars. Many of us want the freedom to destroy our bodies anyway we choose. And if a private business owner wants to let us damage our liver and lungs at the same time, I say more power to him. That business owner makes the choice, and the customers will endorse or oppose that choice with their dollars. But even if I am wrong and there is a huge, untapped market for smoke free bars, why only limit bars to being smoke free? Why not let the consumer choose through the free market system? I'm all about options. Give people the ability to choose an option. The bars with favorable settings will thrive, the others will fail. If you don't like second hand smoke at a certain place, don't go in. Pretty simple.

Let's look at this example. Imagine that you are at a private residence for a party. Everything is cool, people have decided on their own to enter and enjoy the festivities. There are alcoholic beverages and tobacco products for those of age. Then he shows up. One guy walks into the place and starts going off. He glares at the smokers and says, "Thanks for killing me a little, you guys!" and "I sure am happy that all these people are spewing poison at me..." Maybe he'd even say, "How dare you endanger my life with your smoke?! You should all be restrained by the law from doing this!" This guy goes around to every person at the party and gives them this business about smoke-free blah blah blah. If I was a (non-smoking) guest at this party, I'd have one question: "Who's the asshole?"

Wait. I know what's coming. You're saying "But Steve, c'mon. This is second hand smoke we are talking about. It is evil and dangerous and will kill me. If labor laws can demand a safe work environment, why can't they ban smoke in a work environment like a bar?" My response: _______. I just rolled my eyes at you. Let's talk about second hand smoke and health. The link between second hand smoke and tobacco caused harms is tenuous at best. The EPA did a study in 1993 that opened the doors to indoor smoking bans. It concluded that second hand smoke causes 3,000 deaths a year among non-smokers. Ooh, scary stuff.

But in 1998, a federal district court took a look at this study in Flue-Cured Tobacco Cooperative Stabilization Corporation v EPA. Then they took the EPA to task. Judge Osteen ripped the EPA for cherry picking its data, violating its own procedures, and ignoring data that deviated from their desired outcome. But no one cared, and smoking bans spread across the country. A New York court later disagreed and upheld the smoking bans in New York City C.L.A.S.H. v New York, but they said that the errors of the EPA test could be ignored. I think Judge Osteen got it right the first time, since he decided that a bad study should not be relied upon.

"But, Steve," you say yet again, "the American Lung Association, the American Cancer Society, and the American Heart Association all say that second hand smoke causes cancer." Okay. What's their source? The 1993 EPA study that was thrown out of court. These groups also took the number of deaths from second hand smoke in the EPA study (3,000) and inflated it up to 50,000 a year. It's a number not based on hard data. It's based on projection rates from mortality figures, disregarding the actually reasons that a person died. You lived with a smoker? You get added to the total of "may have died from second hand smoke." Overstating an argument is a wonderful way to lose it.

The chances of dying of lung cancer if exposed to second hand smoke are 1:80,000 (12.5 out of one million people). The chances of dying of lung cancer if not exposed to second hand smoke are 1:100,000 (10 out of one million people). No statistical significance.

There was another study by the World Health Organization looking at different age groups and second hand smoke that claimed that "passive smoking does cause lung cancer" in their press release. But if you actually look at the report, it had a completely different conclusion. It said "Our results indicate no association between childhood exposure to ETS (environmental tobacco smoke) and lung cancer risk." And for adults, the increased risk was not statistically significant. Hmm.

Here is what smoking bans do. If you are in favor of that, knock yourself out. Shut down businesses. Get people laid off. Order a private business owner to do something by law that you would prefer. Stop people from having the option of going to a bar where they can smoke.

My favorite people are the ones who are "speaking for the bartenders and wait staff." Like you have a freaking mandate or something. I've met more than my share of bartenders and waitresses. A lot of them smoke. A lot of them like to work in a place that lets them smoke. If you haven't noticed, most places of business make you stand outside to smoke. Not bars. It's a pretty cool job perk if you are a smoker.

I'm never going to become a smoker. Ever. But I will not legislate that choice for every business owner in my city. I believe that that would be a tyrannical use of government power. If you don't like smoky bars, don't go into them. It's cheaper to buy beer and liquor at a store and drink in a private residence anyway. If there are enough people who say that they don't like smoking and would stop frequenting a business because of it, then that business would ban smoking voluntarily to survive.

I believe in the freedom to destroy myself in any way that I see fit. If someone wants their business to cater to my self destruction, I'm all for it. If a business wants to cater to your chosen method of self destruction, I'm all for it. If you find something irritating, that doesn't mean you should legislate against it. If someone says, "There ought to be a law...", there probably shouldn't.

But maybe you want the government interfering more in your life. Maybe you want a full time babysitter. Don't mind me, but I'll be over at the grown ups table, deciding if I want that shot of vodka, that pack of Marb Reds, or that greasy cheeseburger. Freedom is more important than your constant comfort.

I went to a great restaurant tonight. Casablanca is a new Middle Eastern restaurant on Brady St. It's right at the start of Brady, near Van Buren (take Water until it winds into Brady, Casablanca is on your left). My friend Mark's cousins and assorted family members run it. It's awesome. The food was incredible. If you like Greek food, this is one step away and much better. The hummus was amazing. I've never had hummus so good. And I eat a lot of hummus. My main course was the shawarma, which is roasted lamb. It was incredible. If you like gyros, you'll love this. You get a giant plate full of food, so you will not walk away hungry.

As an added bonus, they have a great bar. The bartenders make some pretty stiff drinks. A few of my friends decided to take advantage of the hookah service also. I'm not a smoker at all, so I just watched them enjoy it. After 8 PM, there is belly dancing. If you're into that sort of thing, it's there for you. Personally, it seems like a PG-13 version of a strip club. But hey, I can appreciate culture.

I highly recommend Casablanca. I plan on becoming a regular. Take my advice... Order the hummus appetizer, get the shawarma as your main course, and get a tall Captain and Coke from the bar afterwards. You won't be disappointed.

Yeah, I've been neglecting my duties here. I've been busy. I've been so busy that I really don't have anything substantive to talk about. Here's a few thoughts that crossed my mind recently...

When someone rides past you on a bike, do you ever have the urge to just shove them over? I do. It would be so easy.

Why are there guys walking around Marquette with popped collars? You guys realize that you look like tools, right? I guess they are just so pumped about the killer house party they are going to tonight that they gotta look cool all day long. These people need their genitals crushed in a car door so they can't breed.

Dane Cook is hilarious. I listened to his new album today at school. I looked like a maniac, walking around laughing to myself. But it was well worth it.

I have to start outlining this weekend. I'm not too happy about this.

I've been at Marquette for over a year and I'm still trying to find a campus bathroom that I like. I'm very particular about where I do my business. I knew where all the best bathrooms were at UWM. I'm looking for privacy, minimal traffic, comfortable facilities, and easy access. The law school's just have too many people going in and out. And they are way too small. I currently have one at MU that is decent, but I think I can do better. The search continues...

I really like green tea. It's not because it tastes good or because of its health properties. I like it because it smells like Apple Jacks cereal.

Real posts this weekend. I promise.

I've had some time to let this soak in and think I should take another crack at it. My comments in my previous post about Miers should tell you where I stand. I can't make an honest, legal judgment about her. There is just nothing for me to read. She's a blank slate in that regard. Screw law, let's talk politics.

It is quite possible that President Bush is trying to get a very conservative, evangelical Christian onto the Court. What that means for the face of the Court, we can't know. We don't know her positions on social issues. We don't know if she will interject her religious views (whatever they are exactly) into her jurisprudence.

Bush says she will be a strict constructionist. I'll believe it when I see it. If I see it, I'll be overjoyed. But that's a bold claim, considering we only have two confirmed ones on the Court. If she is a female Scalia, this move will be the ultimate political coup for the president. He will have picked a nominee that the Democrats endorsed, then screwed them over big time with said nominee. If she goes Souter, it will be the biggest blunder since, well, Souter.

I've also been thinking about the evangelical angle more and more. The Democrats seemed happy with her nomination at first. But if more of her religious views come out, people like Schumer are going to be on her during the hearings like stink on a monkey. What if her views on the major social issues become known? Perhaps someone who knows her well will run to the press with "damning" information. She might get filibustered. Hell, she might even get voted down. There are enough pansy Republicans in the Senate for that to happen. If that happens, the president has to pick someone else. There's the best part. He can pick any of the very qualified appeals court judges and get them confirmed. Compared to the president's lawyer, the possible evangelical with the non-Schumer mainstream views, they would be seen as excellent picks. "Hey, at least it's not the religious, Bush-insider, Texan woman."

Maybe the president does win either way here. He's pissed off a good chunk of the base with Miers, but look at these possibilities. Miers is confirmed, she turns out to be Scalia in a dress (bad mental image), the base explodes with Bush-love. Miers is blocked, Bush appoints one of the solid conservative judges, the base explodes in Bush-love, albeit belated and with a little leftover frustration.

As long as she isn't a Souter, things might be fine (I'm still pissed about the pick and what it stands for, but I'll get over it if the right decisions start coming down). I just can't say. Unless there is a major bombshell, I doubt I'll even discuss her until the hearings start.

The aftermath of Kelo.

Since I did name this blog Eminent Domain, I better talk about this. Here is Kelo in action. The people who live in Riviera Beach value their homes. They may not be rich, but this is all they've got. Now, thanks to Justices Stevens, Ginsburg, Breyer, Souter, and Kennedy, Mayor Brown can break out the bulldozer. Aside from being incredibly unfair and morally wrong (in my opinion), the taking private property by government for private development sets a bad standard for local governments. Now, mayors and city councils can just gut entire areas as long as they show a projected economic improvement. They no longer have to encourage development in under-used or blighted areas. They don't have to come up with innovative ideas. They have a city planning short cut. It's city government for dummies.

Today is my day off and is usually restful and relaxing. Well, that all went out the window when I woke up to this crap. This pick is garbage. It's just trash. Who even heard of Harriet Miers until 2 weeks ago? I hadn't, and I tend to think of myself as someone fairly knowledgeable about politics. She came out of nowhere.

There are going to be a lot of calls of cronyism. Why? Cause this is cronyism. Miers has qualifications that a ton of other lawyers across the country have. She isn't spectacular. This reminds me of the failed nomination of Harrold Carswell by Nixon. He had the least credentials of any nominee in 100 years. Senator Hruska famously remarked, "There are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren't they?" No, they aren't. The Court is reserved for the top talent in the country.



"Hi, President Bush. I'm Michael Luttig. I clerked for Scalia when he was on the DC Circuit. I clerked for Chief Justice Burger. Burger even hired me on for another year as a special assistant. I worked for the White House and the Solicitor General's office. I was confirmed at age 37 for my seat on the 4th Circuit. My clerkships are the most sought after in the country. Nearly all of my clerks go on to clerk for Supreme Court Justices. My father was also murdered by a carjacker, so you know I won't waiver on criminal law issues. I have a pretty amazing resume, huh?"



"How's it going, Mr. President. I'm Michael McConnell. I clerked for Judge Skelly on the DC Circuit. Then I clerked for that goof Brennan on the Supreme Court and managed to get out with my brain intact. I'm one of the most respected First Amendment scholars in the country. I've written extensively about my opposition to Roe v Wade, most famously in the Wall Street Journal. I've supported a constitutional amendment banning abortion. In spite of all of this, I was confirmed to the 10th Circuit by the Senate. I also have a now famous letter of support from legal scholars of every political background. I taught law at the University of Chicago for over a decade. Even with my judgeship, I find time to teach law at the University of Utah."

See these two? They should be on the Court. Unfortunately, they were born with the wrong set of genitals. Miers is a trailblazer? She's a woman in law. There are many women in law. There are many women in law who are sitting judges and vastly more qualified. How about Edith Jones? Or Karen Williams? Or Alice Batchelder? Save me this trailblazer crap.

Maybe Miers will turn out to be a female version of Scalia or Thomas. Maybe Bush knows her well enough to vouch for her on the big issues. This may be a brilliant move, nominating someone with virtually no paper trail. She may turn out to be an incredible justice. The White House could have put together the biggest swerve job in the history of the Supreme Court. Hell, it faked me out. Everything might be great in the end. But right now, I feel robbed.

EDIT: My pictures keep disappearing. Stupid POS free blog.

You gotta be fucking kidding me.

EDIT: Is it too early for me to start drinking today?

Law & Alcoholism has gone corporate, which is just fine with me. He's selling clothing of questionable taste on CafePress. Honestly, I've started using 12(b)(6) in normal conversation. It's sick, I know. But I guess I should use the Federal Rules of Civil Procedure for something.

And no, there will not be any ED gear. I just don't see myself designing thongs and ringer tees. Sorry, this is as close to ED gear as you'll get.

Wow, never thought I'd type those words. The old war horse for the ACLU came through in a major way this week, giving the next Supreme Court nominee a broad shield. The full story is here.

Ginsburg also said she agreed with a position taken by federal Judge John G. Roberts during his confirmation hearing to replace the late Chief Justice William H. Rehnquist.

Roberts invoked Ginsburg when he refused to speculate on how he would rule in cases before the court.

"Judge Roberts was unquestionably right," Ginsburg said. "My rule was I will not answer a question that attempts to project how I will rule in a case that might come before the court."

So take that, all you Judiciary Committee Democrats who said Roberts was not following the Ginsburg standard. I could kiss her on the lips right now, but I'm sure she tastes like old people. The next nominee just has to follow what Roberts did and cite Justice Ginsburg as support. I'd love to see Biden claim that Ginsburg doesn't know what the Ginsburg standard is. I bet he tries to do it.

Oh, one other thing...

"I would not like to be the only woman on the court," said Ginsburg

That's easy to remedy. Quit right now. Take Justice Stevens too.