Eminent Domain

It's abortion time yet again at the Supreme Court. Tomorrow, the Court will hear Ayotte v Planned Parenthood, the big abortion case of the term (story here). At issue is a New Hampshire law that requires parental notification 48 hours before an abortion can be performed on a woman under the age of 18. There is a judicial bypass in the law, but Planned Parenthood claims that this restriction is still too much.

I'd like to point out a very stupid statement in this article...

"Women are going to get abortions no matter what, whether it's legal or illegal, whether they're 13 or whether they're 50. ... Any limitations put on it is heading backward in time," said Becca Pawling, 35, who leads Annie's Forum, a weekly program that brings together teenage girls and older women for snacks, support, crafts and conversation in Portsmouth.

Think about that statement for a moment. Now apply it to any law. "People are going to steal no matter what, whether it's legal or illegal." "People are going to commit murder no matter what, whether it's legal or illegal." Those are all true statements, but that doesn't mean that we shouldn't have laws restricting those actions.

The law has public support, even in heavily pro-choice New Hampshire. It seems like a reasonable measure, keeping parents involved in a major medical procedure of their minor child. The judicial bypass is in the law, in case there is a reason why the child can't tell the parent (I'm starting to get Casey flashbacks). I think Planned Parenthood is over-extending here. I know that they are going to argue against ANY restriction on abortion just on principle. From a legal standpoint, it's good to make sure that the precedent is not chipped away at bit by bit. As the precedent gets ever weakened, it becomes prone to total reversal. I just don't know if it's a good idea from a public relations standpoint. Laws like this and partial birth abortion bans are pretty tough to attack. I think that much of the public is fine with some reasonable restrictions placed on abortion, and the no compromise position of Planned Parenthood can be a turn off.

What is the Court going to do? Who the hell knows? Certainly not me. I know Scalia and Thomas will be in favor of reinstating the law. My gut says that Roberts will be too. Kennedy has been making me wonder a bit on abortion. He helped craft the Casey decision, and he felt that they came to a reasonable framework to use in the future. When partial birth abortion came up in Stenberg v Carhart, he seemed shocked that the majority struck down the bans. His dissent is a pretty graphic portrayal of the procedures involved. It seemed like he couldn't believe that 5 members of the Court would look at Casey and not allow this kind of restriction. Scalia's finger-wagging, "I told ya so" dissent is pretty obviously directed Kennedy's way. Does Kennedy have buyer's remorse over Casey? I wonder...

The other issue is O'Connor's retirement. She's going to hear argument on this case. If she retires before the opinion comes down, her vote doesn't count. If it lines up like Stenberg and her vote is gone, it's a 4-4 decision. That means the lower court's decision (overturning the law) stands or the case can be held over for reargument. I think this is an important enough case to hold over. Then, much like what might happen with Wisconsin Right to Life v Federal Election Commission, Alito's vote decides the case. Exciting, isn't it?

By the way, here's the Solicitor General's amicus brief in case you're interested.

EDIT: CSPAN is going to run the oral argument right after it is finished, so fire up your TIVOs.

Now that Thanksgiving is over, everyone can officially concentrate on Christmas and shopping. I have already finished my shopping (aside from a few internet purchases), so I can sit back for the next month. I've been asked what I want for Christmas, and have been giving it much thought. I don't claim to speak for all law students, but I think that the following gifts would be appreciated...

Cash - Hard currency, preferably American. Unoriginal and impersonal but never refused.

Takings: Private Property and the Power of Eminent Domain by Richard Epstein - Epstein is major legal scholar, and this book is all about everyone's favorite topic. Nothing like a little light reading between semesters.

The Economics of Justice by Richard Posner - While were at it, let's throw another legal classic onto the list. Winter break is long and we wouldn't want that sharp legal mind to atrophy.

The Paper Chase DVD - Not for watching, mind you. Buy this for me so I can hurl it, discus style, into Lake Michigan. I hate this movie and everything about it.

Next semester's books - Seriously, someone foot the bill for these.

Rounders Collector's Edition DVD - Matt Damon plays a law student who neglects his studies to play poker. I'm about to spoil the ending, so stop reading here if you haven't seen it. He ends up leaving law school to go to Las Vegas to be a professional gambler. Sigh. We can all dream....

Getting to Maybe: How to Excel on Law School Exams by Richard Michael Fischl and Jeremy Paul - Of all the how-to law school books, this is the only one that I would spend money on. It teaches you how to read an exam, spot issues, write a coherent answer, and be concise so you can finish in time. It's worth your time to read this book.

Those are a few things that come to mind. A post-graduate job would be nice too, but that doesn't exactly fit under the tree.

EDIT: I have to add one more to the list...

I Hope They Serve Beer in Hell by Tucker Max - Tucker Max is a Duke Law grad turned author who is something of an internet legend. His stories have been passed around on message boards and in chain e-mails for a long time. I think that Marquette Law needs to bring him to the next Alternative Careers for JDs seminar. His exploits made the New York Times when he got sued by a former Miss Vermont for one of his stories. The story is here and all of the lawsuit articles, briefs, and motions are at the end (see, this isn't just a raunchy story, there are legal issues at work here too).

It won't be out until January, so it's either a late Christmas present or a birthday present for me.

Over at Volokh, David Kopel links to an uber-amicus brief filed by over 30 non-profit groups in the upcoming Wisconsin Right to Life v Federal Election Commission case before the Supreme Court. The non-profits are arguing that the atrocious McCain-Feingold law should not apply to non-profits and public charities. I agree. My favorite quote from the brief is...

"For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved of their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner of speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it."

Blackstone never fails. Kopel concludes his post...

The well-written brief was produced by three attorneys for Perkins Coie, and offers an excellent argument about one aspect of the constitutional abomination that Congress enacted in 2002, and which President Bush--in derogation of his oath to defend the Constitution--signed notwithstanding his belief that the bill was unconstitutional.

I've ripped Bush many times on this. He said that the law was unconstitutional, but he signed it anyway. I think he did this for two reasons: 1. an uninformed public pressured him to sign it and 2. he thought the Court would strike it down. Unfortunately, McConnell v FEC didn't come out that way. I don't know which way Wisconsin Right to Life v Federal Election Commission is going to go. It is scheduled for argument on January 17th, so O'Connor will still be on the Court then. I think that Judge Alito will be confirmed before the decision comes down, so O'Connor's vote won't count. If the McConnell votes hold and Roberts votes like Rehnquist, then it's 4-4. If it comes to that, I think that the Court will hold the case over for reargument. Then it's up to Alito. What a difference one vote makes...

James Q. Wilson (who my fellow law students may remember from Criminal Law) tells President Bush what his next speech on Iraq should discuss.

I rarely give movie recommendations on here, but I have to give my stamp of approval to Layer Cake. It's a British crime drama about a cocaine dealer with a few hurdles in his way before his retirement. The director, Matthew Vaughn, was the producer of Lock, Stock, and Two Smoking Barrels and Snatch. Layer Cake is a lot like those movies: very British, kind of bloody, kind of funny, and full of memorable characters. I wasn't really thrilled with the ending, but the alternate endings are included on the DVD. The deleted scenes are cool. I'm surprised that so many of them were cut, especially since the movie is under 2 hours. The time really flies by. The pace never really lets up, so it's easy to get engrossed in the plot.

The highlight of the movie is Daniel Craig. Craig is the new James Bond. Being a huge Bond fan, I felt a need to learn who this guy was so I bought Layer Cake. I'm pretty impressed by Craig's acting and his style. He reminds me of Steve McQueen, a genuinely cool guy who isn't like the stereotypical cool guy. He's not the Fonz; it's more of a subdued cool. He seems like he's always in control. In spite of the blonde hair, he'll make a great Bond.

Definitely check out Layer Cake. And no, I won't let you borrow it.

Sorry for the lack of posts lately. I wish I could blame it all on studying, but I really haven't had anything that I've wanted to talk about recently. I'm sure this week will give me ample fodder.

I just finished watching Charlie Sykes' panel show Sunday Insight. This episode was devoted entirely to blogs and had an all blogger panel. It was an interesting discussion, and I think that the nail was hit firmly on the head: blogs have taken away much of the power of the mainstream media. Their monopoly on the dissemination of information is over. When someone like me (not a computer genius) can have a blog, I can easily provide my small but devoted readership with news stories that they might not see in a newspaper. My blog is also an avenue for sharing my commentary and analysis with those of you who are not lucky enough to be sitting near me when I choose to run my mouth. It's an incredible form of media. For any remaining doubters out there, ask Dan Rather about the power of blogs.

EDIT: Charlie Sykes has a post about about the show, and I got linked. Very cool. As Jessica McBride says, he's the Godfather of Wisconsin Bloggers. I'm a mid-level enforcer at best. Someday, I hope to achieve Tom Hagen status.

I have waited far too long to put a link to Michael Yon's blog on here. He's a journalist in Iraq, and probably the only media source I trust on the topic. It's amazing to read his stories and look at his pictures, then see what the mainstream media is showing us. Two entirely different worlds...

Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness:"

Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enable to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.

Given under my hand, at the city of New York, the 3d day of October, A.D. 1789.

G. Washington

Enough mentions of God to make an ACLU lawyer's head spin.

During a Q&A session at an appearance at a Conversations on the Circle event, Justice Scalia schooled Al Franken on the finer points of legal ethics and word usage.

When [Norman] Pearlstine opened the floor for Q&A, Franken stood up in the back row and started talking about "judicial demeanor" and asking "hypothetically" about whether a judge should recuse himself if he had gone duck-hunting or flown in a private jet with a party in a case before his court.

I knew where this was going even before I read further...

First, Scalia lectured Franken, "Demeanor is the wrong word. You mean ethics." Then he explained, "Ethics is governed by tradition. It has never been the case where you recuse because of friendship."

I'm shocked that Franken would run his mouth about something without actually looking into the topic.

Franken still claims victory though...

"I think I got under his skin a little," Franken humbly told us.

Here's my favorite part from the New York Daily News...

...though Scalia had no idea who Franken was...

Yeah, Al. I'm sure you really shook Scalia's nerves. You were just another in a long line of jackass questioners that Scalia has dealt with during his public appearances.

Fox News is refusing to air an ad critical of Supreme Court nominee Samuel Alito, citing its lawyers' contention that the spot is factually incorrect.

I love it. I love anything that throws a wrench in the smear campaign of People for the American Way, Alliance for Justice, or any of their ilk. The story explains...

The ad says that as an appellate court judge, Alito has "ruled to make it easier for corporations to discriminate ... even voted to approve strip search of a 10-year-old girl."

Oh, yeah. Judge Alito was so in favor of that young girl being strip searched. He was gleeful about the idea, because persecution of any type causes endorphins to be released from his evil, Republican brain. Whatever.

Judge Alito made a ruling on the scope of a search warrant based on the language in the warrant. He said how horrible the results were (although it was only a visual search and was done in the presence of the girl's mother), but he was bound to rule with the law, not with what made him happy. Maybe PFAW would prefer drug dealers using small children as mules to carry and keep their drugs. That couldn't have any negative results at all.

Fox asked that the groups change their ad and remove the misleading information from it.

Asked about changing the ad in response to Fox's request, Jordan said, "Roger Ailes doesn't get to edit our ads." Ailes is chairman of Fox News.

Yeah and he can not run it too. This is the frustrating part of judicial nominations. PFAW can run an ad with a soundbite that portrays a judge as a horrible, inhuman monster. The dopey members of the public will believe it, and the political stooges will latch onto the talking points. Cases are never that simple though. There are restrictions that are placed on judges regarding how they rule and what results they can provide. Going beyond these restrictions is abuse of judicial power. Then, judges become a super-legislature that get to enforce their policy desires without looking to the Constitution or (at the lower court level) precedent.

This is just the start too. It's going to be a long time until Janurary 9th...

Andy McCarthy of The Corner highlights Edward Jay Epstein's article in the Wall Street Journal about whether Mohamed Atta met with an Iraqi intelligence agent in Prague. Unfortunately, this may be one of those "we'll never really know" things. McCarthy says...

The bottom line, as Ed puts it, is that the Atta/Prague connection remains "“consigned to a murky limbo" - largely thanks to American officials leaking the possibility while the Czechs were still trying to investigate it.

McCarthy also points our how this lead got glossed over by the 9/11 Commission...

This is Able Danger all over again. The "Atta in Prague" possibility never fit the 9/11 Commission'’s narrative, so it was buried with a shoddy, slap-dash investigation -- the same treatment Able Danger got; the same treatment the Clinton Justice Department's dramatic heightening of "the wall" between criminal investigators and intelligence agents got; the same treatment the internal assessment of the Clinton administration's performance in the run-up to the Millennium bombing plot got, and so on.

The 9/11 Commission woefully inadequate in many respects and way too political. Jamie Gorelick should've been testifying before the Commission, trying to explain herself, and certainly not on the Commission.

McCarthy finishes his long but substantive post with a great paragraph...

Meanwhile, in 1998 alone, we have $300K going from Iraq to Zawahiri (al Qaeda's number 2); bin Laden's famous February fatwa calling for the murder of all Americans and prominently featuring, as part of the justification, U.S. actions against Iraq; meetings in Iraq between Qaeda members and Iraqi officials in March; meetings in Afghanistan between Iraqi officials and al Qaeda leaders in July; the embassy bombings in August, after which, of all potential targets, the Clinton administration chose to retaliate against al Shifa, believed to be an Iraq/Qaeda joint weapons venture; an Iraqi member of al Qaeda (now held in Guantanamo Bay) traveling with Iraqi Intelligence to Pakistan to plot chemical mortar attacks on the American and British embassies there; and Iraq seeking to recruit Arab terrorists to blow up Radio Free Europe. Oh, and in February 1999, Richard Clarke objected to a suggestion that U-2 flights be used to try to find bin Laden because, if bin Laden learned the walls were closing in, Clarke wrote to Sandy Berger that "“old wiley Usama will likely boogie to Baghdad."

But the anti-war left is probably right. There was no connection between Iraq and terrorism. None at all. I don't know why the right-wing nuts keep insisting there was.

Keep saying "no connection," maybe it will come true.

Attention fishermen: PETA is trying to turn your children against you. I love the picture. I often go fishing (and clean fish) while wearing a suit. Who cleans a fish in mid-air and neglects to remove the hook? I think that this drawing may not be an accurate representation of most fishermen. PETA being deceitful?! Shocking, indeed.

Isn't it odd that it's just "Daddy" being targeted here? Isn't that incredibly sexist? Why can't Mommy be a brutal killer and take part in the rape of the natural world too?

My favorite quote is at the end...

Until your Daddy learns that it's not "fun" to kill, keep your doggies and kitties away from him. He's so hooked on killing defenseless animals that they could be next!

Oh, Daddy. When will your blood lust end? PETA doesn't tell the kids that they oppose them having their doggies and kitties as pets anyway. PETA is for "total animal liberation."

From the Fishing Hurts web site...

fish look so unlike humans that many people don'’t realize that they feel pain, just as we do and lead complex intellectual lives that rival those of dogs and some other mammals.

Maybe my definition of "complex intellectual life" is different from PETA's. I have never seen a fish discuss Locke, write a treatise on Contract Law, or pen an opinion piece for the Wall Street Journal. I'm not persuaded by equating fish to dogs as far as intellect either. My dog routinely takes a dump in the hallway and runs around scared when a garbage truck is nearby. He's no Voltaire.

More from Fishing Hurts...

Imagine reaching for an apple on a tree and having your hand suddenly impaled by a metal hook that drags you, the whole weight of your body pulling on that one hand, out of the air and into an atmosphere in which you cannot breathe. This is what fish experience when they are hooked for "“sport."”

It's called being at the top of the food chain. Enjoy it. It's pretty sweet.

If PETA thinks that they will shock me into not eating fish, think again. Smoked salmon, baked tilapia, seared tuna steaks... there is no way I am giving up that level of deliciousness on my plate. PETA is making the age-old mistake of overstating their argument to the point of absurdity. I'm not a total bastard. I refuse to eat foie gras because of how the geese are treated. I do think that there is a legitimate line between cruel treatment and simply killing an animal to eat. PETA doesn't believe that line exists.

You know, I have a few venison steaks and a pound of ground venison in the freezer right now. I think I'm going to grill the steaks this weekend in honor of PETA. I also eagerly await the PETA campaign against carnivorous animals. They can't stand idly by while there are lions killing antelope...

The legal bloggers seem to be pushing their books as Christmas presents. Prof. Eugene Volokh is recommending his legal writing book as a present to your favorite law student. Prof. Bainbridge is taking the broad approach, putting everything he's written on display for you Internet shoppers.

While I'm sure these are great books, just get me cash.

Confirm Them spotted a letter from People for the American Way president and head smear artist Ralph Neas in USA Today. It included this mature line...

What is important isn't whether Alito is "dweeby" but whether Americans can count on him to uphold their rights and freedoms if he is confirmed.

You know what they say about people in glass houses, right? Take a look at Ralph Neas.

Is that not the freakiest looking dude you've ever seen? Jim Henson's creature workshop couldn't come up with a character that strange. I don't think "dweeby" would begin to describe Neas, but "nightmarish" is a good start.

Really, the "dweeby" remark in reference to Judge Alito was nothing but an unnecessary low blow. The USA Today shouldn't have used it in its original article, and Neas shouldn't have repeated it. It's sophomoric.

I don't think I can accurately describe the pain and torture that I feel during the exam season at law school. I love hearing the undergrads in hysterics about their exam in their Sociology of the Vagina Monologues class or whatever the hell it is that you people take. You have no idea how much worse school can get. Graduate and come to law school. It will test not only your mind but your will. It takes a hell of a lot of determination to put in the marathon days of studying. Your Poli Sci 100 class has got nothing on my Federal Income Tax class. Nothing.

Here's where I am so far. My Ethics outline is almost done. I'm pretty impressed with the amount of material from this course that I've retained from the semester. It probably has to do with my chilling fear of a malpractice lawsuit. Self-preservation is strong motivation. Evidence is next. I feel like I have a good grasp on that material as well, but I'll know if that's true in a few days. Tax is next on the list. I'm at the point that I think I'm just going to melt down my copy of the Internal Revenue Code and freebase it. There's no other way I'm going to get all of this stuff into my brain. Luckily, we get to to use our notes and books during the exam. That isn't very comforting though.

Health Law and Environmental Law are on the back burner right now. I've got Evidence, Tax, and Ethics on the 5th, 6th, and 7th. That'll be a fun three days. Health Law isn't until the 13th and Environmental Law is a take home due on the 15th. The big three are getting all of my attention right now. I can't afford to ignore them in favor of the later exams.

I'm going to get back at it. I should've gotten a catheter installed, because these bathroom breaks are really screwing with my studying pace.

Both sides are throwing around the F word in regards to the Alito nomination. It might be serious, it might be puffery, and it might be purely political. Senator Biden said that a filibuster was increasingly likely, especially after Judge Alito's memo was released. Senator Coburn was on Hugh Hewitt's show, saying that Alito will be filibustered and the Republicans would force a rule change to confirm him. I've explained many times why the filibuster is a stupid tactical move (not to mention just plain wrong), but I guess the Democrats are foolish enough to try it. It's their funeral.

We've seen a change in the attacks on Alito too. I saw Senator Salazar being interviewed outside of his office (wearing a damn cowboy hat), complaining about Alito's view on affirmative action. Now, Biden has taken the reapportionment route. The reapportionment attack is an attempt to inject a non-abortion issue into the discussion. It's also a way to hump the rhetoric of the "one man, one vote" phrase, which I find eye-rollingly saccharine. Opposing the reapportionment cases like Baker, Reynolds, and the rest is a perfectly defensible position. I say that because it's my position and I'm gonna defend it. I'm in the company of Judge Bork, Judge Alito, and Judge McConnell, so I feel pretty secure anyway.

While "one man, one vote" sounds fine and dandy on its face, it is not part of the American system. Maybe Senator Biden of all people could see that not every person's vote has the same weight. Each state gets two senators, regardless of population. By that rule, Biden's Vermont voters' votes have more weight than Senator Feinstein's California voters' votes. That certainly isn't "one man, one vote" but it's our system. Writer Robert S Sargent has asked rhetorically to the reapportionment defenders, "Assuming there are 100 U.S. Senators, would you accept California having ten Senators, and Idaho, Montana, Wyoming, and North Dakota collectively having one?"

The system modeled after the federal one was exactly what the Warren Court saw as a problem within the states. They saw problems with how the states chose to structure their governments and wanted to change it. Warren said that the federal analogy was irrelevant because it was...

...conceived out of compromise and concession indispensable to the establishment of our federal republic.

In Warren's view, the states weren't formed that way, so it's totally different. Judge Bork points out that this statement says that the US Senate "was illegitimate as a matter of political morality but frozen by a compromise made to protect the smaller states..." It's wrong, but we'll ignore it because that's convenient for us. That's an interesting approach to Constitutional law.

Justice Frankfurter, in dissent in Baker v. Carr, said that proportional apportionment

...has never been generally practiced....It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system...practiced by the States at the time of the adoption of the Fourteenth Amendment, it is not predominantly practiced by the states today.

It was an idea made up by a majority of Supreme Court Justices simply because they preferred it. This was nothing but an abuse of judicial power.

The districts mandated by the Warren Court required precise mathematical equality. This wonderful gerrymandering has given us non-competitive districts where the elections are frankly meaningless. As Judge McConnell said...

In order to bring districts as close to "precise mathematical equality" as possible, states must disregard preexisting political boundaries such as cities, townships, and counties. Adherence to these traditional boundaries was, historically, the principle constraint on creative districting, popularly known as gerrymandering.

I wonder why Biden and company liked this ruling. It let them draw the results of the elections without traditional boundaries getting in the way. The results, as McConnell points out...

Protection for incumbents, a tendency towards homogeneous - and hence more partisan - districts, racial and partisan gerrymandering, and ultimately, a widespread sense that elections do not matter.

Thanks, Earl Warren. You're the best.

But I'm sure Biden will be on this talking point like stink on a monkey. His biggest problem is that he's not nearly as smart as he thinks he is. His embarrassing performance during the Chief's confirmation hearings proved that. Biden was loud, obnoxious, misinformed, and just plain rude. If he thinks he's going to be president, he better find a really good speech to steal this time.

Speaking of the Roberts hearings, I'd like to give a dishonorable mention to Senator Bayh as well. He was one of the speakers who introduced then-Judge Roberts to the judiciary committee. He gave a glowing speech, complimenting Roberts, getting his senatorial face time on TV. Then, he turned around and voted against him. Nice. That's not at all two-faced, opportunist, or dishonest. Maybe it's genetic. His father (who was apparently a tree) led the attack on two of Nixon's Supreme Court nominees. The Alito hearings are shaping up to be an even more disgusting display than the Roberts hearings. Luckily I'm off from school then, so I can watch the coverage, swear, and throw things at the TV.

By the way, I took a break from studying for exams to type this post, so I hope you all appreciate the sacrifices I make to bring you quality material.

I get the feeling that many people have their own Constitutions. The one that I've been reading and studying seems to be very different from the ones used by others. Check out the Journal Sentinel's editorial page today, specifically the Weekly Laurels and Laments. This section is usually rife with stupidity. The first one is the focus of this post.

The U.S. Supreme Court passed up a chance this week to set right a grave injustice: a Florida law that permanently bars ex-felons from the ballot box. In most states, including Wisconsin, felons have their voting rights restored once they've completed their sentences. But in a few states, the ban lasts a lifetime - an injustice because they've paid their debt to society. What's more, civic engagement ought to be encouraged, not outlawed, as a way of reintegrating ex-felons into society. Permanent state bans popped up in the South in general in the Jim Crow era as one of the ruses for keeping black people from voting. Whether that's the intent of the Florida law, it's certainly the effect. The law disenfranchises 10% of voting-age African-Americans but only 4% of non-African-Americans. Surely, a strict reading of the Constitution and of the Voting Rights Act would require striking down this unjust state law. Yet, exasperatingly, the Supreme Court declined to consider a challenge to the law.

Oh, my! Quite exasperating indeed. The editors say that this law barring felons from voting is a "grave injustice" and the Court should've overturned it. Why? The editors may view the law as bad policy, but it is not the role of the Court to be a super-legislature, overturning valid laws just because they disagree with them. Notice I did say that this was a valid law. It is. The Supreme Court examined this issue already in Richardson v Ramirez and decided that these bans are Constitutional. Haven't we heard nothing but "respect precedent, respect precedent" in the recent week?

Aside from the previous case law, we can rely on the text of the Constitution to show that these laws are valid. Section 2 of the Fourteeth Amendment includes the following language...

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,(See Note 15) and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Hello, pertinent language. It's right there. The states can take the right to vote away from rebels and criminals.

The editors are illustrating a very common view of the Court: they should strike down laws I don't like, period. Never mind the Constitution, I just want my favored results. Well, sorry. That's not the way it's supposed to go. The Court is not a super-legislature. Their role is limited. In this case, the Florida law is Constitutional (nevermind the fact that felons can petition the state attorney general to regain the right to vote) and that is the only role that the Court should have. If the editors want to direct their ire at someone, direct it at the Florida legislature and the Florida citizens. Stop trying to pervert the role of my Court.

Former Scalia clerk Ed Whelan compares Judge Alito's 1985 statements and the views of Justice Ginsburg. He takes the NYT to task for their weak editorial that slammed Alito. Whelan points out...

By contrast, 18 years before President Clinton nominated her to the Supreme Court, Ruth Bader Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. She proposed abolishing Mother'’s Day and Father'’s Day and replacing them with an androgynous Parent's Day. She criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles. And (my favorite) she urged that prisons be co-ed rather than single sex.

I wonder if there was a NYT editorial ripping Ginsburg for being outside of the mainstream or an ideologue. I doubt it.

Whelan also acknowledges the loopy view of precedent that the NYT took and applies it to Ginsburg...

As her vote in Lawrence v. Texas shows, Ginsburg does not hesitate to overrule precedent that she disagrees with.

See, the NYT is okay with that though. The precedent of Bowers didn't need to be followed because they don't agree with Bowers. That's how you decide if a case can be overturned: ask the NYT editorial board what policy they want.

Back here in reality, cases can be overturned at any time. A judge who wouldn't overturn a case that he or she believed was decided wrong would be violating their oath to defend the Constitution. What better defense could a judge mount than overturning a case that perverted or distorted the Constitution? That's their job. As Chief Justice Roberts said in his confirmation hearings, "If the Constitution says that the little guy should win, then the little guy's going to win in the court before me. But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution." It's the Constitution, not the public policy considerations, that Justices should be concerned with.

The New York Times has an editorial about Judge Alito and his statements on abortion. The opening spells it all out...

Judge Samuel Alito Jr.'s insistence that the Constitution does not protect abortion rights is not the only alarming aspect of a newly released memo he wrote in 1985. That statement strongly suggests that Judge Alito is far outside the legal mainstream and that senators should question him closely about it. They should be prepared to reject his nomination to the Supreme Court if he cannot put to rest the serious concerns that the memo, part of a job application, raises about his worthiness to join the court.

Notice the part that I bolded. Someone who doesn't think that there is a right to an abortion in the Constitution is out of the legal mainstream?! That's news to me. That's also news to Justices Rehnquist, White, Scalia, and Thomas. That's also news to Judges Jones, Pryor, Garza, Brown, and anyone else that I can't think of off the top of my head. I guess they don't count though. Four Supreme Court Justices from the modern era couldn't possibly be an example of mainstream legal thought.

The personal opinions of the New York Times editorial staff are not the dictionary definition of "mainstream legal thought," not by a long shot.

Then there is this crap...

Second, Judge Alito does not respect precedent. Judicial nominees who appear extreme often claim that because they respect precedent, they will vote to reaffirm decisions they disagree with. When Judge Clarence Thomas was nominated for the Supreme Court, he told the Senate about his deep respect for precedent - and then immediately began voting to overturn important precedents when he joined the court. The Senate has specific reason to be skeptical about Judge Alito. Not only did he work to overturn Roe v. Wade, but he also said he had been inspired to go to law school by his opposition to Warren Court precedents - presumably by a desire to see them overturned.

That's a pretty bold (no pun intended) claim. It's also crap. You can respect precedent but still overturn cases. By the reasoning of the NYT, Dred Scott should still be good law. Plessy v Ferguson should still be good law. Bowers v Hardwick should have never been overturned by Lawrence v Texas. I guess the NYT supports laws that ban consensual homosexual sodomy. After all, we have to respect precedent and never overturn anything. Rock solid legal reasoning there, NYT editors.

This is funny too...

Third, he is an ideologue. The White House has tried to present Judge Alito as an impartial judge without strong political views. But he said just the opposite in the 1985 statement. "I am and always have been a conservative," he wrote. He called himself a "life-long registered Republican" who contributed to "Republican candidates and conservative causes" including the National Conservative Political Action Committee, the super-PAC of the Reagan era. He strongly suggested that he would have been active in Republican politics if the law had not prohibited him, as a federal employee, from doing that.

Anyone who is a member of a political party is an ideologue. Anyone identified as a conservative is an ideologue. How dare Judge Alito have opinions on politics?! The best piece of irony is the bolded text. They are ripping him for even thinking about being involved in Republican politics if he wasn't a judge. This is all speculation on Alito's part too. What was Justice O'Connor's old job? Republican State Senator in Arizona. She actually was involved in Republican politics! Alito's just daydreaming about the possibility and suddenly that has become totally unacceptable. Give me a break.

I have a general policy of never reading or linking to the NYT on here. This is a wonderful example of why. This editorial is trash. It looks like something written 20 minutes before class by an undergrad Poli Sci major. It's a shoddy hit piece, but I'm more than happy to respond to it.

Senator Reid puked forth some comments on Judge Alito and Harriet Miers today. It was the usual garbage about Alito's 20 year old statement that the Constitution does not protect a right to an abortion. This may come as a shock, but many people in the legal community share that view.

The part of Reid's statement that struck me was this...

"Harriet Miers was forced to withdraw by conservative activists who want to change the legal landscape of America," Reid said. "They decided she was inadequately radical or insufficiently aggressive for their purposes, so they gave her the boot."

Uh, no. Miers was rejected because she was not qualified to sit on the Court. Even when assured by the White House that she would vote the right way, the "activists" still rejected her. We (I guess I'm an activist now too) want a great judicial mind on the Court. We want someone who not only votes the right way, but who can write sound and persuasive opinions to back those votes up. Reid is a disingenuous sack. His statements can't be further from the truth.

Jessica McBride highlights the overuse of the "maverick" label when applied to Senator Feingold. I'm pretty sick of both the "maverick" senators, Feingold and McCain. I think that there is a better M word for them: Machiavellian. If there are two distinctly political animals in DC today, it's these two. Their entire schtick is convincing everyone that they are not political. And people buy it!

McBride points out...

...why is Feingold typically called a maverick, when a politician like Jim Sensenbrenner is not? After all, voting tallies show that Sensenbrenner bucks his party and its interests more than Feingold bucks his, yet the Republican Congressman rarely gets the label.

Simple. The media loves Feingold. The media loves McCain. The media does not love Sensenbrenner. The maverick label comes from the media and is repeated by the media. They use it as a term of endearment with Feingold. "Oh, that little scamp. He's so independent!"

Rubbish. He's a liberal. That's it. Nothing more, nothing less. George Will highlighted that point in his recent column.

A good liberal -- the Senate's most pure, according to the liberal Americans for Democratic Action, whose rating of his career (97) is higher than that of Ted Kennedy (90), Barbara Boxer (92), John Kerry (93) and Hillary Clinton (95)

There's a list of names I'd never want to be associated with in any way, shape, or form.

I'm hoping that people start using my label for Feingold: enemy of the First Amendment.

I just registered for Spring classes, and I'm very happy with how it turned out. I got all of my first choices. I will be taking Land Use Planning, American Constitutional History, Business Associations, Legislation, and Alternative Dispute Resolution. No offense to any of my current professors, but I'm ready for this semester to be over. Too much of a good thing maybe? It's just nice to have something new to learn and look forward to though. I also look forward to selling a kidney on the black market to pay for my books.

I might be lacking in my updates in the near future. I'm almost in full exam studying mode, so my brain is elsewhere right now. I'll try to keep the Alito updates coming, but I can't promise much. After today, I'm pretty sick of the Federal Rules of Evidence...

Sunday morning didn't seem to go well for the good doctor. First, he ducked an opportunity to appear with Republican Party Chairman Ken Mehlman on Meet the Press. Drudge reports...

Moments before taping was to begin with host Tim Russert, Mehlman asked Dean outside the NBC studio's green room: "There's still time for us to go on together Governor."” Dean declined with a shrug of his shoulders and an uncomfortable cackle and then proceeded to walk away into the green room.

Terry McAuliffe used to make joint appearances with the Republican Party Chairman often. They were usually good mini-debates and pretty fun to watch. I guess Dean isn't up for it.

Then Mehlman called on Dean to denounce the racist attacks on Republican Michael Steele, a Senate candidate in Maryland. According to the Washington Times...

Mr. Dean declined to address the statements against Mr. Steele, but said, "I didn't hear Ken condemning the chairman of the Maryland party when he called me an anti-Semite."

Unfortunately for Dean, leader of the Republican Party in Maryland John Kane never said that. Kane is understandably pissed off.

This, as well as other instances, leave me with only one conclusion: Howard Dean is too stupid to do this job. I'm not saying that as some over the top, extreme political rhetoric phrase designed to get attention. I think that it's the only conclusion that can be drawn. He's just a horrible politician. He doesn't think before he speaks. He spouts off whatever pops into his head, failing to even examine if it's true or not. His fund raising has been dismal (gee, that's shocking). He doesn't have the guts to face Ken Mehlman on Meet the Press. Come on, it's Ken Mehlman. It's not like anyone is asking him to debate William F. Buckley or anything(although I'd pay top dollar to watch that beating).

If this is the face that the Democratic Party wants to put forward, that's fine by me. It's their funeral. Actually, I support their choice. Howard Dean is great theater. Watching this sleestak try to function on the Sunday morning shows is pretty damn entertaining.

Drudge and Confirm Them are both reporting that the Washington Times has found a paper in the Reagan library written by Judge Alito stating "The Constitution does not protect the right to an abortion."

If this is true, I guess it will be a much more interesting week than I previously thought.

EDIT: There's more...

WASH TIMES: Alito rejected abortion as a right; paper shows personal view... Judge Alito, Bush's Supreme Court nominee, wrote that 'the Constitution does not protect a right to an abortion' in a 1985 document obtained by the WASHINGTON TIMES.... 'I personally believe very strongly" in this legal position... Developing...

I love the Drudge siren too.

EDIT DEUX: Article's up.

I spotted this on Confirm Them. Kate Michelman, former president of NARAL, fires off a pathetic attack on Judge Alito's dissent in Casey.

LOOKING BACK more than three decades to one of the most difficult times in my life, it's hard to say what seems more insulting: being forced to obtain my husband's permission to have an abortion after he had just abandoned my family or, many years later, Supreme Court nominee Samuel A. Alito Jr.'s ruling that a similar requirement was not, in constitutional parlance, an "undue burden."

Wrong in the first sentence! A new record! Allow me to clear something up for Michelman.

per·mis·sion Pronunciation Key (pr-mshn)
n.

1. The act of permitting.
2. Consent, especially formal consent; authorization.

no·ti·fi·ca·tion Pronunciation Key (nt-f-kshn)
n.

1. The act or an instance of notifying.
2. Something, such as a letter, by which notice is given

Here we have two words. One of them is used by Michelman in this piece. One of them is part of the law in Casey. Notice that they mean two very different things. Can you figure this out? I hope so. I may e-mail the LA Times and try to get an address for Michelman. I have a dictionary that I'd like to mail to her.

And let's not forget this...

In 1969, in those distant but suddenly closer days before Roe vs. Wade, my husband deserted me and our three small daughters. After learning I was pregnant, and making the wrenchingly personal decision to have an abortion, I was forced to submit to an invasive and humiliating interrogation before a hospital review board in Pennsylvania. It ultimately gave its permission. I was in the hospital preparing for the procedure when a nurse informed me I would need my husband's permission too. I found him a few days later and he gave it.

Michelman is trying to compare the situation pre-Roe to Alito's view of Casey. I guess there was no exception for a husband who couldn't be found...

The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.

Whoops! I found one, and right there in the law too. Let's not let stupid things like facts get in the way of our passionate, melodramatic points, though.

According to an article on the front page of the Journal-Sentinel today, the liberal groups are ready to launch their attacks on Judge Alito this week. Nan Aron is quoted as saying, "Next week the press and American people will begin to hear a very different story." It's probably something from the fiction section.

Gregory Stanford tries to defend his previous remarks about Justice Thomas.

In talking about Thomas, Stanford says the following...

He has voted to uphold all challenges to affirmative action that came before the court on the ground that the corrective policy is "noxious" and "government-sponsored racial discrimination."

Well isn't it? Isn't it incredibly degrading to tell an entire group of people that we have to change the rules and standards in order for them to compete?

Stanford expresses shock that his statements caused such an outcry...

To my dismay, what I believed to be a mere statement of fact drew charges of racism. Conservative talk radio and the right-wing blogosphere fanned the flames.

Well as long as I'm just fanning the flames, let's continue cause flame fanning is fun.

Stanford then reframes the argument so his side looks better...

The colorblind school believes that race no longer matters, or else that the best way to arrive at the day when race no longer matters is to ignore race right now.

The race-conscious school agrees that unnecessarily harping on skin color hints at racism, but it believes that keeping tabs on race is necessary when it comes to gauging the progress the nation has made in becoming more inclusive.

It's nice of Stanford to accurately convey the opposing sides views. Yeah, he wouldn't misrepresent them at all. Nah.

Finally, Stanford gives us his conclusion...

Here's what the editorial aside did not say: Thomas is not black. Thomas is wrong in not reflecting mainstream black thought. All blacks should march lockstep to such thought. All black conservatives lie outside such thought.

Interesting. I'm feeling rather textualist tonight (like every night) so let's see what Stanford originally said...

Another minus is that the nomination lessens the court's diversity. O'Connor herself had expressed the desire that her successor be a woman. O'Connor seems to have grown wiser about diversity as a result of her Supreme Court experience. She came to see the virtues of having a court that looks like America - doubtless a big reason she softened her opposition to affirmative action in recent years.

In losing a woman, the court with Alito would feature seven white men, one white woman and a black man, who deserves an asterisk because he arguably does not represent the views of mainstream black America.

This is one of the points of the editorial, and the point in controversy. Stanford says that this is about diversity. He then points out that Justice O'Connor wanted a woman to replace her. So his point was that just having a woman on the Court increased diversity. Then he goes off on how great O'Connor has become on diversity and that supporting affirmative action is the sign of intelligence. Don't make me post my picture of the rolling eyes guy puking more rolling eyes guys.

Next, notice the shift in message. Now, Stanford just focuses on the races and sexes of the Justices. He then focuses only on Justice Thomas for the "racial views" test. What about Justice Ginsburg? Let's put her to the test. Does she represent the views of mainstream white (or even Jewish if you want to get picky) women? I'd say no. I think most people would agree with me. Stanford should give her an asterisk then too. Do the same test with each Justice. Find me one that accurately represents the views of mainstream ________ America.

It's the singling out of Justice Thomas that is the problem. I think it's clear that Stanford has a grudge against Thomas. He doesn't like the fact that Thomas isn't Justice Marshall. Tough. You don't get to guide how Justices vote on cases, even if you share the same racial background. You know what's great? Justice Thomas is 57 years old. He'll be on the Court for a long time. We have many years of Stanford being pissed off to look forward to.

A group of Senators are pushing a bill that would put video cameras into the chambers of the Supreme Court to cover oral argument. Any time Specter, Schumer, and Leahy agree on something, you know it's a horrible idea.

Why is this even necessary? The audio of the arguments is already available. Hell, I listened to the Roe v Wade oral arguments last night. Also, the oral arguments are sort of meaningless. Sure, they let the Justices test the lawyers, seeing exactly how far their argument would take the law. But this is appellate advocacy. It's the writing, stupid. The briefs and their reasoning are more important than the oral argument.

Check this out...

Specter also squared the proposal with his long-standing annoyance with the Supreme Court for overturning federal statutes in language that insults Congress. "Americans would be flabbergasted," Specter said, to see on television how the Supreme Court disrespects Congress. He predicted the coverage would put some "legitimate pressure" on the Court.

Can someone please run this man out of office? Like right now? Arlen "Super-duper precedent" Specter fancies himself a legal scholar. I guess his copy of the Constitution doesn't have Article I, Section 8. Congress has (or had, maybe) enumerated powers, limiting what they can do. When the Court strikes down a law that is beyond the powers of Congress, they are doing their job. They should be applauded for it, not "pressured" into violating the code of judicial ethics to make some moron from Pennsylvania happy.

Justice Scalia is on record against cameras in the Court. He basically says that he doesn't like being turned into a sound bite. If people would watch the coverage from gavel to gavel and truly understand what the Court did, then that would be another thing. But when the news media would grab one or two sound bites from the Justices and present that as an accurate representation of the issue, it does nothing but dumb down Constitutional law.

Look at what Ralph Neas and Nan Aron do already to judicial nominees. Look at how badly Judge Alito's positions have been distorted and out right lied about recently. During oral argument, Justices sometimes ask hypotheticals or limit testing questions. They do this to find out exactly what the lawyer is arguing (if it is unclear in the briefs). Remembering Justice Stewart's questions in Roe, I know that the kind of questioning from a Justice doesn't always agree with their vote (though it can. They even sound silly sometimes. But that is what oral argument is about: asking far out questions to focus the argument of the parties.

Let's say that this bill gets through. Then what? Will one of the Justices challenge it in court? That would be cool. Petition the Court to grant cert immediately, argue the Constitutionality of it in front of the Court. Specter would cry. Or how about this... the bill becomes law and the Court decides to stop hearing oral arguments. Do everything with the briefs.

If the Justices want cameras, they should be able to make that choice. Congress should not make that choice for them. Knowing some of the lawyers who argue cases there, this could be horrible. The last thing I want to see is a bunch of grandstanding in the highest court in the land.

Prof. Volokh has a piece in the WSJ's Opinion Journal today about Jude Alito's views on the First Amendment. It's a quick read and worth checking out. If you're too lazy for even that, let me sum it up. Judge Alito has an expansive view of the Free Speech and Free Exercise Clauses, but a narrower view of the Establishment Clause. Basically, he has the same view that I do.

I am not ashamed to admit this. It's a part of me; it's who I am. I am an addict. I am addicted to buying DVDs.

At first, it started small. I was a freshman in college and had just recently been exposed to the world of DVD. I had lived a sheltered life until then. Until that point, it was nothing but VHS tapes of questionable quality. Then I was introduced to those little shiny discs by a friend. He had a few. He got me to try one. I loved it. The picture quality, the sound, the documentaries, the audio commentaries, the deleted scenes... I was hooked immediately.

I got a DVD player and started buying my own discs. I bought a few right away, just to get a base collection down. But then I started spending more time on DVD websites, looking to see what titles were available. I bought a few more. Then a few more after that. Soon, I was getting a package every week containing 2 to 4 new DVDs. I compiled an alphabetized list of the discs that I wanted. I even ranked them with a 1 to 4 star system to denote which ones I wanted more. I started making lists of the upcoming releases, charting them months in advance. It was sick.

I'd like to say that I'm better now. But there is more to the story than just recovery. I work much less now, so I don't have the disposable income that I once had. I have also amassed such a huge collection that I own twice as many discs than I have on my to-buy list. Currently, I have 464 DVDs (and that is counting box sets as 1 DVD). I know. It's messed up. But as far as addictions go, it's not a bad one to have. I always have something to watch. I'm a very savvy shopper, so I get everything pretty cheap. I have never and will never own a Blockbuster card. And people always seem impressed (or shocked) by the collection.

And no, you can't borrow anything. I'm selfish.

EDIT: I'm also addicted to books. I haven't counted them all, but it's a pretty insane amount. Oddly enough, the books cost more than the DVDs. And people wonder why no one reads anymore...

The Confirm Alito yard sign has arrived and is displayed proudly in my front yard. I'm probably going to bring it in every night though. I would want it to be destroyed or stolen by members of the party of tolerance and diversity.

Point of Law highlights another feeble attempt to stop Judge Alito's confirmation with a conflict of interest allegation. Just give up already. This is getting pathetic. I have an entire casebook full of worse situations that attorneys have gotten themselves into during practice. This is nothing. This is a weak attempt at stopping the inevitable.

Trying to distance myself here, I really have to question the intelligence of these attacks on Judge Alito. When unfriendly elements of the media or Ralph Neas or Nan Aron level these weak attacks, all they do is weaken any credibility that they had. People hear these attacks, look at the merits of the accusation, roll their eyes, and move on. This happens over and over again. After a while, even people who would be sympathetic will write these attacks off outright. Then what happens when the PFAW brigade really needs to mobilize? What happens when President Bush gets another nomination to the Court and picks a real fire breather? The critics have lost any credibility they once had. The attacks fall on deaf ears. It's crying wolf too many times.

Of course, these groups will never listen to that kind of advice. They love seeing their names in print too much. And to them, any nominee to the right of Justice Ginsburg is an ideologue who must be opposed at all costs. I wonder what it's like living in fantasyland...

My ideological hero on the Court gave a speech recently at the University of Alabama. I totally agree with him about the focus that abortion gets as far as federal judgeships go. Here's what he says...

Speaking to law students at the University of Alabama, Thomas said former clerks and other lawyers often tell him they're not interested in federal judgeships because of the potential for bruising confirmation battles.

"I think that's a problem when the stars are beginning to say, `Thank you, but no thanks,'" said Thomas.

While I agree that abortion is an important issue that many people feel strongly about, it is not the end all of Constitutional law. What about the Commerce Clause and federalism? What about the Establishment Clause and the Free Exercise Clause? What about substantive due process? What about incorporation? What about the use of foreign law? These issues get a back seat to abortion far too often. It's a shame that judicial nominees can just be tagged with a label on one issue. The courts deal with much, much more than that.

Justice Thomas also had nothing but glowing compliments for the the Chief...

"He is younger, he is smart, he is a nice guy," Thomas said. "He is absolutely fabulous, and we are lucky to have him."

That's a pretty impressive statement. I think it's more than Thomas just wanting to get good opinion assignments for the next few years. It's a positive signal that Chief Justice Roberts is the kind of Justice that Thomas wants to work with on the Court. And that's good news to me.

The heavy hitters in originalism swapped stories and quips in Washington DC. This is a cool article, mostly because of the quotes. Here are a few of my favorites...

Here's Judge McConnell (my pick for the Supreme Court) making fun of Justice Kennedy...

Later, in his address, McConnell got in a thinly veiled slam at Justice Anthony Kennedy, for citing in his 2004 Lawrence v Texas sodomy decision the court's 1992 phrase about liberty being "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."”

McConnell said when defining liberty judges must look to rights “firmly established by long-standing custom and practice... One finds such rights... not deep within ourselves or within the mysteries of the universe.

Wouldn't it be great if McConnell was named to the Court in the next year or two? That would be a nice, awkward working environment. "Hi, Anthony. Sorry about making fun of your 'mysteries of life' thing. Really, it's good legal reasoning... really..."

Here's Massachuttes Governor Mitt Romney ripping his state's Supreme Court for "finding" a right to gay marriage in their 225 year old constitution.

"“John Adams would be surprised,"” Romney quipped. (Adams wrote the 1780 constitution.)

"It'’s a mistake for a decision of this magnitude to be made by a judicial body as opposed to a legislative body,"” Romney declared. He accused the judges of "a blatant disrespect for the processes of democracy itself. The court is basically saying what the majority of the citizens of this state feel on this issue is not relevant here. In other words, on this issue 'your vote does not count.'"

Romney is running for president. There's no doubt. He can easily run on this issue and on being a Republican governor in a very Democratic state. The point that he makes is an important one: why are we the people ceding our big decisions to courts? Why does every controversial issue get automatic Constitutional protection, taking it out of the democratic process? This is probably the biggest issue in Constitutional law.

Prof. Carter Snead sums up the Miers issue nicely...

"It wasn't so much that Miers didn't meet a litmus test for any particular issue. It was hard to surmise what her views were on any issue," said Carter Snead, a professor at the University of Notre Dame Law School. "The problem was she didn'’t come from the pool of stellar judicial nominees that people in the forefront of the conservative legal movement think of as the models for federal judges,"

Prof. Snead was at Marquette this Tuesday for a discussion about stem cell research. He's incredibly knowledgeable and persuasive when speaking on the topic. He was also on the committee that formed the Bush Administration's stem cell policy.

I'm not a member of Fed Soc (I'm not big on groups and organizations), but I'd join if I got to go to an event like this. Maybe next year...

Ald. Michael McGee Jr. had a little run in with the Tosa police this week. All Things Irrelevant has a great summary of the events and some commentary. Speaking as someone who has had the cops called on him for being in a parking lot, I have no sympathy for McGee (It was a case of mistaken identity; it was the parking lot of the place that I worked. It was dark and one of them employees couldn't tell it was me from a distance). But I digress. The parking lot belongs to Blockbuster. If he is there after hours and not dropping off a DVD in the night slot (probably the only acceptable reason to be there), then he needs to move.

McGee said he was meeting a friend to whom he'd planned to give a DVD on non-violence

I guess he didn't share this non-violence DVD with his supporters who got violent at the protest today at the Tosa Police Department. A handful of them beat up a guy who came to speak out against McGee. Who the hell is stupid enough to start a fight in front of a police department?! And in front of every TV news camera in the city?!

Here are a few more of Junior McGee's greatest hits...

At one point, he used a derogatory term for homosexuals when referring to police officers accused in the beating of Frank Jude Jr. and then refused to apologize when confronted at City Hall by state Sen. Tim Carpenter (D-Milwaukee), who is gay.

More recently, after McGee led a bus trip to the Millions More March in Washington, D.C., two Riverside students questioned comments they say McGee made that implied they were lesbians. They also said he had made racist statements and bragged about his confrontation with Carpenter.

Maybe he just feels very competitive with his father. You know McGee Senior, right? He's the guy who wanted to blow up the Bradley Center, put snipers on the freeway, and throw tires in front of cars on said freeway. Today on his radio show, he also said that he'd like to shoot Tosa cops. Class act.

EDIT: Jessica McBride has a great post about the life and times of Junior. Well worth your time.

Prof. Thomas Morgan agrees that Judge Alito did not violate ethical rules concerning the Vanguard case.

I personally think that it's interesting that Morgan and Rotunda have made statements about this case. Why? Because they wrote my ethics casebook. This is just another avenue of attack against Judge Alito that is doomed to fail.

I just added a link to the Point of Law blog on here. It's a project of the Manhattan Institute and AEI that focuses on litigation. I spent the last half hour or so reading it, and it's a great source of legal information.

They also show excellent taste by linking to me in a post. Wow, mentioned in the same breath as Prof. Althouse. Not bad at all. Thanks for reading.

The Senate Democrats try to attack Alito for a conflict of interest in a case involving Vanguard. Vanguard is a mutual fund firm that Judge Alito used. Alito maintains that there was nothing unethical about ruling on the case. Ronald Rotunda, one of the top legal ethicists in the country, agrees with him.

Rotunda states that there is no statute or rule that would demand recusal on Alito's part. He states...

The judge's ownership of shares in a mutual fund... is not an ownership interest in the Vanguard Company itself anymore than my ownership of a savings account makes me an equity owner of the Savings Bank.

Rotunda elaborates...

Judge Alito's decision in a case that a pro se litigant filed and lost at every level, was not a case where the outcome of the proceeding could "substantially effect" the value of his Vanguard mutual funds.

Basically, the worth of Alito's mutual funds were not tied to how he ruled in the case. There is a distinction between the firm itself and the funds that the firm puts together.

After the pro se litigant lost, she demanded that Alito recuse himself. He didn't have to (as Rotunda points out), but he did anyway. The case was heard by a new panel and decided the same way.

Legal ethics can be confusing, even to people who have a pretty good understanding of it. There are small variations in facts that can result in totally different resultant actions by the attorney/judge. I think that Alito went above and beyond what he was ethically obligated to do in this situation. He played it safe and recused himself, and he should get credit for that. I doubt the Senate Democrats will be as generous as I am.

"I asked him a lot of questions about Vanguard and there are going to be more," said Sen. Russell Feingold, D-Wis.

I'm sure my favorite senator will read Rotunda's analysis... and ignore it. Rusty has no problem distorting the records of judicial nominees. He did a wonderful hatchet job on Judge Bill Pryor (halfway down the post) during his hearings. I wonder if Feingold has looked into Alito's Disney World travels yet...

The Reverend Jesse Jackson (uh, who actually 'reveres' this guy?) has penned a feeble attack on Judge Alito. Most of it is Jackson using Rosa Parks recent death as a political tool. This is a lot like what he has done in the past, rubbing Martin Luther King Jr's blood all over himself any chance he gets. Anything for face time with the cameras, right Jesse? On to the article...

I actually found this part incredibly interesting...

Now, on the far right of American politics, comes a new reaction proclaiming that the real Constitution has been "in exile" since the 1930s. They want to roll back not only the privacy doctrine on which women's right to choose rests, but the Warren Court's rulings and those of the Roosevelt Court also. They would return the nation to the era of the Gilded Age, when unions were outlawed as a restraint on trade, when corporate regulation was struck down as exceeding congressional power and when states' rights were exalted.

I had no idea that the Constitution in Exile idea had made it to the mainstream. Todd Zywicki from Volokh seems surprised by this too.

For those of you not as privy as Jackson to these legal buzzwords, read this short summary of the Constitution in Exile "movement." It's used mostly by liberals as a slur against originalists. I, however, have decided to embrace the term. I agree with all of the "accusations" made against the supposed followers of CIE. I believe in a strict view of federalism issues and think that the plain text of the Constitution supports me. I also think CIE is a nice way to sum up my views. It's pithy. It gets straight to the point. I'll take the slur and make it mine.

Back to Jackson's "points"...

Alito ruled that the Congress had no right to require state governments to comply with the Family and Medical Leave Act for their employees (and by implication with any act regulating their employees).

Keep repeating it. Maybe someone will believe it.

This is a judge who rejected an African-American defendant challenging a verdict by an all-white jury purged of all black jurors because of their race.

Jackson doesn't seem to understand that peremptory strikes can be made for almost any reason, as long as you aren't dumb enough to claim it's for race or sex.

Jackson's article is pretty pathetic. It's mostly racial demagoguery (his specialty) and using the names of deceased civil rights leaders to support his points (his other specialty). Nice try, Jesse. Maybe you should of rhymed the whole thing.

San Francisco hilariously bans handguns. Yeah, that'll do it. I'm sure all of the drug dealers, armed robbers, and gang members will be lining up today to turn in their guns.

Supervisor Chris Daly, who proposed the measure, said the victory showed that "San Francisco voters support sensible gun control."

So a complete ban counts as "sensible gun control"? Only in San Fran. This is going to get litigated for a while. Someday, the NRA will take a case to the Supreme Court and incorporate the 2nd Amendment via that wonderful substantive due process. They also banned military recruiters at public high schools and colleges. You couldn't pay me to live in that city.

In Washington state, voters banned smoking in restaurants, bars, and bowling alleys. I'm on record with my opposition to smoking bans. One of my central points is that the free market will work in this situation. If smoke free bars are desired by consumers, owners will institute that policy to satisfy the demand. Check this out...

Backers celebrated in a Seattle bar that went smokeless last summer, after the owner was surprised to find out most patrons wanted to get rid of smoking.

Looks like going smoke free helped this bar's business. Allowing the free market to operate gives owners and consumers the option. Even if the market turned every bar but one into smoke free, I would still support the right of that bar owner and his customers to choose to smoke.

A county in North Carolina repealed its ban on mixed drinks. Yeah, read that again. Did that sink in yet? What the hell?! Prohibition is over, people.

"I've always been a dry man," said Elbert Blackwell, a retired dairy farmer. "I never drink beer or wine or nothing. It'd be best if they got along without it."

Thanks for the tip, Elbert. I, unlike you, prefer to toss a few back on occasion. I'll thank you to stay the hell out of my business.

We're over a week into November, and that only means one thing: we're getting close to Black Friday. In case you're kind of oblivious or dense, Black Friday is the day after Thanksgiving. Every major retailer has insane sales and opens at the crack of dawn to throngs of bargain seekers. What a country.

I have gone shopping on Black Friday for the past 4 years. I love it. I love watching adults act like morons, trying desperately to find some hunk of crap their kid wants (and save $10 on it too). It's incredible theater. I can't sleep anyway, so I have no problem leaving the house at 5 AM to stand in Best Buy's parking lot.

I know there are a bunch of hippies and anti-consumerist folks out there who want you to buy nothing on this day. It's some kind of boycott, days of yore, 60's protest action apparently designed to make you think about what you spend money on. I think it's an attempt to screw over the companies personally. I don't fall for it though. Why? Because I am the only person that I know who has all of his Christmas shopping done by noon on the day after Thanksgiving. I get everything cheap, I buy stuff for myself, and I get it done in a single morning. You can't beat that with a stick. Damn, I love the free market economy.

Speaking of Christmas (I know it's early), I have a song recommendation for anyone in the holiday mood. iTunes has recently added for sale the greatest Christmas song of all time: The Pogues "Fairytale of New York." I highly suggest that you cheapskates drop the 99 cents and buy it. The music is beautiful, and I think it is the only Christmas song with the words "slut" and "faggot" in it. That's got holiday magic written all over it.

Bench Memos has brought up two senators and their hearsay evidence about conversations with Alito about Roe.

Sen. Joe Lieberman says that Judge Alito told him Roe "was precedent on which people, a lot of people, relied, and had been precedent now for decades and therefore deserved great respect." Sen. Lieberman calls this "encouraging."

Sen. Susan Collins reports that, in reference to Roe, "he assured me that he has tremendous respect for precedent and that his approach is not to overturn cases due to a disagreement with how they were originally decided."

What does this all mean? No one knows for sure, but speculation is lots of fun. Alito's second hand statements seem to be similar to those of Chief Justice Roberts during his confirmation process. I think that people read anything into these statements what they want. If you support Roe, you might think that this is a signal that Alito won't overrule it. If you oppose Roe, this looks like a bunch of meaningless language praising precedent that Alito is throwing out to keep the Democrats off his back. If you oppose Alito because he hasn't made any statement that he would overturn Roe, you see this as validation of those fears. These statements are everything to everyone.

Honestly, I don't think that the Supreme Court will ever overturn Roe. The only way that I see it happening would be in an overwhelming vote opposing it (6 or 7 votes in the majority). I think the more likely outcome is that more restrictions will be allowed on abortion. Partial birth abortion bans were struck down by the Court 5-4. Justice O'Connor was the 5th vote in that case (Stenberg v Carhart). If the Chief and Alito vote to allow the bans, there will be a 5-4 split the other way. Also, Stenberg is a fairly recent case. If Roberts and Alito are as strong supporters of precedent that many commentators make them out to be, they would be more inclined to overturn the 5 year old Stenberg.

But who knows what will happen? You can't really predict the votes of new Justices, even when looking at their past cases. Being an appellate level judge is not the same as being on the Court. It's going to be interesting to see how Roberts and (soon) Alito will turn out.

Law & Alcoholism discusses appellate advocacy after his moot court competition...

[M]oot court oral argument is really the legal equivalent of porn-star oral sex: flashy and fun to watch, but not going to get a girl screaming your name without the essentials. Real-world oral argument, however, is messy, sometimes smelly, and best when she's got a Brazillian (sic) wax.

It's no "Equal justice under the law" but I like it.

He clarifies...

What I meant to say was that real oral arguments, like real oral sex, aren't viewer-oriented; they're result-oriented. If you can convince the judge that the law and public policy are on your side, it doesn't matter whether you stumble over a word or two.

This is what we call making law fun. Let's all play.

Beer may fight disease.

Still, no one knows how much beer is needed to reap the benefits. Mice studies show that the compound is metabolized quickly by the body, so it's hard to get a large amount in the body at one time, Stevens said.

In other words, binge drink your way to health.

Something is in the e-air, I guess. Posner and Becker are tackling the campaign finance reform topic in their blog post for the week. These two intellectual heavyweights reiterate many of the points that I made, Justice Scalia made, and John Stossel made.

Posner points out the difficulties this legislation places on non-incumbents...

But to limit advertising would be to deny sellers full use of an important competitive tool. It would have a particularly deleterious effect on new entry into markets, since a new entrant may have to spend heavily on advertising to overcome settled consumer preferences for existing brands. The political market is similar. Candidates "sell" themselves as leaders or representatives, plus their programs and policies, to the electorate; campaign advertising helps the voters decide which candidate, which package, to buy. Limiting the amount of money that a candidate can spend on advertising his candidacy discourages new entry into the political market.

It's tough to win an election if no one knows your name.

Posner does find one thing that he likes in the legislation: naming the sponsors of political ads.

It is true that one effect is to reduce the amount of political advertising, but to the extent that this comes about because disclosure of the backers of the candidate (or the candidate's connivance in an untruthful ad) makes the advertising less effective, rather than because the sponsor desires anonymity because his support of the particular candidate would be unpopular in his firm or his community, this is all to the good. And because voters have so little incentive to study political ads carefully, there is something to be said for inducing skepticism in voters by forcing the revelation of the names of the sponsors.

I think that his point is good, but I think anonymous ads have a similar effect. As I have made clear, I'm not a big fan of anonymous attacks. I would immediately view an anonymously sponsored political ad as suspect.

Becker agrees with Posner on the problems for new candidates...

Political incumbents have many advantages over challengers because they get publicity while in office, and can use their position to steer legislation toward projects that help their constituents. Effective limits on campaign contributions make it harder for newcomers to challenge incumbents by raising funds to gain the recognition among voters that enable them to compete against incumbents. For a variety of reasons, the incumbency advantage has grown over the past several decades. The movement to restrict contributions is not the main force behind this growth, but it does work toward a greater incumbency advantage.

The incumbency advantage is real. From anecdotal evidence, I have found that many people vote for the incumbent because they "haven't heard of the other guy" or "know that Congressman X is familiar with the job." It's a vote out of ignorance and comfort. All of you Democrats who support this legislation need to ask yourself if you're comfortable with the status quo in DC.

Again from Becker...

I believe these restrictions are as undesirable as restricting who can run for office. Indeed, restrictions on campaign contributions do skew the political playing field toward rich individuals like Steve Forbes, Jon Corzine, Michael Bloomberg, John Kerry, and others who spend large amounts of their own monies. This is hardly a push toward greater "democracy".

Looks like rich white guys make out pretty well with this legislation. Who else doesn't have to rely on big donors or time consuming small donation fundraising? What about that "diversity" you liberals love so much?

I highly recommend the Becker-Posner blog. Each week, they take on a new issue, allow comments, and usually respond to the comments the next week (after the new post). This isn't Daily Kos, so you won't find a bunch of demagogues and partisan hacks. It's an honest discussion of the issues by two people who are much smarter than you (and me).

Read the bottom of page 2 of the New Perspective. If you are confused about which article I'm pointing to, it's "Lonely nights no more." Mark Belling talked about this on his show this afternoon. Freshman Matt Kramer-Morning wants to start a school-recognized pornography club at Carroll College. Carroll is a Presbyterian school, just so you know. Carroll told Belling that this would just not fly at their school.

Here's a great quote...

"I love porn, and what better club to start, a club devoted to one of the most beautiful and natural things on this God forsaken Earth."

The hyphenated last name and "God forsaken Earth" line give me a pretty good idea of where this kid is coming from. This is what college is like these days. Oh sure, his request got denied. But as the article points out, UW-Madison has a sex awareness club. While the two clubs are not exactly the same (even Madison has some standards), these clubs are still pretty shady uses of student activity fees. I'd rather not subsidize your porn or condoms.

I'm glad Prof. Althouse is on my side in this argument. The august Harvard law professor Laurence Tribe has jumped on the FMLA bandwagon very late. I rarely agree with Prof. Tribe on anything, but I used to think he had some integrity. Here, he is just trying to make political hay over a fairly complex legal issue and smear Judge Alito as an extremist. Prof. Althouse, scholar-warrior that she is, takes on Tribe as well as some of the Tribe-heads in the comments. If this is the best attack that can be mustered against Alito, just give him a floor vote now and let him get to work.

I am outside the mainstream of white, heterosexual, 23 year old males.

And proud of it.

...and remembered that I never made a post about this. I don't give a damn if it's a month late. Making fun of Howard Dean is always timely in my book. Scroll down to the third question that Matthews asks to Dean.

MATTHEWS: Do you believe that the president can claim executive privilege?

DEAN: Well, certainly the president can claim executive privilege. But in the this case, I think with a lifetime appointment to the Supreme Court, you can't play, you know, hide the salami, or whatever it's called. He's got to go out there and say something about this woman who's going to a 20 or 30-year appointment, a 20 or 30-year appointment to influence America. We deserve to know something about her.

"Hide the salami"?! I don't know what that means in Vermont, but I don't see that as an activity that should be done with any Supreme Court nominee. Dr. Dean... you are the best. I forgot to post about this the day it happened, and it just slipped my mind further as time passed. But I've had a pretty crappy day, so I'm going to have a laugh at the expense of the DNC chairman. Honestly, I voted for this moron in the primary. I wanted Bush to face him. Unfortunately, he's such a horrible politician and so delusional that he took his first place spot and crashed it firmly into third. He's about as keen as a mentally retarded, blind cow. I'm glad he's leading the party I hate (as opposed to the party I tolerate... at times...).

While I was doing the dishes yesterday afternoon, I listened to Mark Belling stand up for Milwaukee (as he tends to do). He discussed an incredible story about the depths of corruption in the Doyle Administration. A tiny newspaper in Minocqua has broken a story about Doyle, Marty Schreiber, the Potawatomi, and butt loads of cash. Read every word of this story and then tell five people to read it. Something is seriously rotten in Madison these days. I am counting the days until we can rid our state of Doyle.