Eminent Domain

Lost in the Anna Nicole Smith media attention today is the consolidated mass known as the Vermont campaign spending cap cases. Mashed together are the cases of Randall v. Sorrell, Vermont Republican State Committee v. Sorrell, and Sorrell v. Randall. The spending caps and contribution limits are quite low...

The dispute arose out of Vermont's landmark 1997 campaign finance law, which included a $300,000 spending cap for gubernatorial candidates and lesser limits for other state political contests. Contributions to state campaigns were limited to as little as $200 per election cycle for state House races.

The spending limits issue hasn't had much movement since Buckley v Valeo in 1976. There the Court said that contributions could be limited, but campaign spending could not. Buckley is a huge obstacle to get beyond, and it was brought up in oral argument...

Justice Breyer commented: "There is a case -- Buckley [v. Valeo] -- that says that expenditure limits are not constitutional. Am I not bound by that? Why am I not bound by that, whether I may not agree with it?" He put the question to Brenda Wright, representing the Vermont Public Interest Research Group. She insisted -- but did not appear to be convincing in doing so -- that the record in the Buckley case did not really test that issue.

Ms. Wright can insist all she wants, but she's got to come up with something to distinguish Buckley from this case. There is a strong presumption in favor of campaign expenditures being seen as speech, and therefore being highly protected. You can try to distinguish Buckley in the following ways: state that the Buckley test has never been held only state law (it dealt with a federal law), claim that the issue was never fully examined (which seems weak, since the Court stated it outright as if it was a "well, duh" legal fact), or argue on public policy grounds (that these limits would stop politicians from constant fundraising and make them work on the business of the people). Personally, I think those arguments are pretty crappy. I don't think the Court is going anywhere on that aspect of Buckley.

The real battle is in the contribution limitations. Contributions have been fair game for regulation and limitation under the Court's campaign jurisprudence for a long time. The real issue here is summed up again by the always gabby Justice Breyer...

"At what point does a limit become so low that you cuff off the possibility of a challenge?"

The $200 per election cycle limit for state House races and the $400 per two-year election cycle limit for governors' races is really, really low. I'd go as far as to call it shockingly low. The justices, as Breyer says, are concerned that the limits may be so low that they will cut off any chance of a challenger defeating an incumbent.

In oral argument, Vermont's Attorney General William B. Sorrell tried to portray the state as being overrun with corruption and dirty money. The limits were necessary to reduce the political knavery that was running rampant in the Green Mountain State. Chief Justice Roberts decided to probe this...

Chief Justice John G. Roberts, Jr., asked Sorrell very early: "How many prosecutions have you had for political corruption in Vermont?" (None, was the answer.) And then: "Is political corruption a problem in Vermont?" (70 percent of the citizens think so.) And then: "Would you describe your state as clean or corrupt?" (No one has gone to jail, but "the threat of corruption in Vermont is far from illusory.")

Protecting against the appearance of corruption has been deemed a legitimate state interest in the past. This exchange may show that the Chief is skeptical of that, especially in a case where the contribution limits are so low.

Campaign finance law is one of my areas of interest, so I'll be eagerly awaiting the opinion in this case. I'm hoping that a full transcript of the oral arguments will be available soon, so I can read the tea leaves of the justices' questions and figure out their leanings.

Today, the Supreme Court hears oral argument in Marshall v Marshall, more popularly known as the Anna Nicole Smith case. Smith, whose real name is Vickie Lynn Marshall, is trying to get her share of her late husband's estate, which is estimated at $1.6 billion. The actual legal issue (whether state or federal courts have jurisdiction in this matter) is pretty boring to most people, but Smith's celebrity status will keep the media's attention focused on this case.

Smith originially lost her claim against the estate in a Texas probate court. However, when she filed for bankruptcy in a federal court in California, that court ruled that she was entitled to her share of her late husband's estate.

A TrimSpa'ed Smith approaches the Court with who I believe is one of her lawyers. Smith's legal team includes Tom Goldstein of the SCOTUS blog. He's a very capable Supreme Court litigator, so Smith definitely knows how to pick her lawyers.

Here's sort of a weird observation from the article...

Douglas Baird, a bankruptcy expert at the University of Chicago, said: "I'd suspect some justices haven't the slightest idea who Anna Nicole is."

I find that highly unlikely. I'm sure that their clerks have clued the justices in on who Ms. Marshall is exactly. Even so, which justices is Baird talking about? I'd guess that he's assuming that the younger justices know her. I'm sure Justice Thomas knows who she is (insert pornography joke here). If Justice Stevens doesn't know who she is, he'd better watch out. Being 86 years old, he's just her type (but still married).

EDIT: I forgot to add that Solicitor General Clement will also be arguing on behalf of Smith. The Bush Administration supports her claim that the federal courts should have jurisdiction in the matter.

EDIT 2: It was actually Assistant SG Deanne E. Maynard who participated in the arguments today. If you're really interested in the legal minutae of this case, which I have overly simplified above (probably to the point of getting it wrong), here is a summary of the oral argument.

The Supreme Court ruled unanimously today that the Hobbs Act doesn't prohibit acts of or threats of violence. Previously, abortion clinics had won a legal victory against protesters, claiming that the protesters' violence and threats of violence were intended to shut down the clinics. The clinics argued that this provided a legal basis for a claim that the protesters were violating the RICO law. From the AP article...

Anti-abortion groups brought the appeal after the 7th Circuit had asked a trial judge to determine whether a nationwide injunction could be supported by charges that protesters had made threats of violence absent a connection with robbery or extortion.

The 8-0 decision ends a case that the 7th U.S. Circuit Court of Appeals had kept alive despite a 2003 decision by the high court that lifted a nationwide injunction on anti-abortion groups led by Joseph Scheidler and others.

Writing for the majority, Justice Stephen Breyer said Congress did not intend to create "a freestanding physical violence offense" in the federal extortion law known as the Hobbs Act.

Justice Alito didn't take part in the case because it was argued before he was confirmed to the Court.

Unanimous decisions from the Court are not uncommon. The overwhelming majority of cases are decided unanimously. The general public usually doesn't hear about them because they tend to be quite dull legal issues. I have been surprised that certain cases have come down unanimously this term. I was surprised at the unanimity in Ayotte as well as in O Centro. I'm not sure if my instincts are just wrong and that these issues are as clear as the Court thinks they are. Maybe the new Chief Justice is a good consensus builder. This case can probably be chalked up to being a clear, but not exactly dull, legal issue though.

The opinion is here, in case you are interested. It's a fairly typical Breyer opinion. I don't agree with the guy often, but he's a clear, concise, and readable writer.

EDIT: Jacob Sullum of Hit and Run chimes in with this...

[P]rotesters who trespass, block entrances, assault patients or customers, or commit vandalism can and should be prosecuted under state law and/or sued for damages in state court... Suing the leaders of anti-abortion groups under RICO because some of their followers break the law smacks of an attempt to intimidate them into silence, a tactic with chilling implications for controversial speech across the political spectrum.

Sounds reasonable to me.

The Supreme Court will hear oral argument Wednesday in the Texas redistricting case. I think the case is still called Jackson v Perry, but I'm not certain. There are so many parties named that the final two party name of the case can change. The issue in this case is whether the 2003 redistricting plan enacted by Texas Republicans went too far. The new districting plan resulted in a six seat loss for Democrats in Congress. The Court has been struggling for decades to come up with a majority opinion in regard to political gerrymandering cases. They are notoriously troublesome.

While it will be important to see what Chief Justice Roberts and Justice Alito do with this case, I would argue that the focus is really on one justice. Watch this man.
Justice Anthony Kennedy will probably be the most important justice in this case.

Kennedy cast the swing vote in a 5-4 decision in 2004 that upheld Republican redistricting in Pennsylvania. But unlike other justices who made up a majority, he suggested some future claim against gerrymandering might have merit. "The assumption is that Justice Kennedy sees something in this case that he finds troubling," Charles said in an interview.

The article is referring to the Vieth v Jubelirer case. This was a 5-4 case with Justice Kennedy providing the 5th vote in judgment. That means that he signed on to the result, but not the actual opinion. The plurality (not majority) opinion in Vieth is not binding precedent. Davis v Bandemer, a previous political gerrymandering case, didn't produce a majority opinion either. The plurality in Vieth (made up of Chief Justice Rehnquist, Justice Scalia, Justice Thomas, and Justice O'Connor) rejected the test put forth in Bandemer, saying that political gerrymandering was a political question that was not for the Court to decide.

Justice Kennedy did not want to shut off the possibility of a workable test to be applied in these cases. Unfortunately, the good justice could not come up with one himself. His opinion was basically, "There's no good test yet, I can't think of one, there might be one out there, make one up." Plaintiffs bringing these claims know that they must formulate a test that satisfies Justice Kennedy's burning desire for a usable test. He's the real legal hurdle that you need to jump.

I was feeling in the mood for something crisp and mellow this evening, so I went looking for a good lager. Lagers are an incredibly popular variety of beer. When most people think of "beer", they are probably thinking of a lager. Lagers include Heineken, Budweiser, Warsteiner, Sam Adams, and about a thousand more varieties. The selection at the store was quite limited, so I ended up with a six pack of Harp Lager. Harp is brewed by Guinness but is the exact opposite of Guinness Draught. Harp has a transparent golden color. There isn't much aroma, but that's not out of the ordinary for lagers. Harp is very up front with its flavor. It's very strange in that regard. The initial taste has a strong flavor, but that flavor weakens as the beer passes over your tongue and down your throat. As you continue to drink it, the flavor builds and becomes much more consistent. It takes a while, but the flavor eventually coats your mouth and lingers.

Harp has a lot of carbonation. That's good because the beer doesn't get flat, but it could prove to be a problem while in mixed company. Ripping burp after burp will probably not endear you to the ladies. If you do find a girl that thinks all that burping is okay, marry her. As far as lagers go, Harp is pretty good. It's got more flavor than the domestic macrobrew lagers. It's also light enough to be enjoyed as a lager should. I would definitely drink this again when I'm in the mood for something lighter.

That is the question posed by the cover story in the latest issue of The National Jurist. The article examines the right-left divide at the nation's law schools. It's not exactly hard hitting journalism, but there are a few interesting stories from law students around the country.

I think that there are definitely some law schools that have a certain "political culture". If you go to Boalt Hall (Berkeley), Vermont, or UDC, you know that you're going to be at a fairly liberal school. If you go to Mississippi (and I almost did), BYU, or Ave Maria, you know that you're going to be at a fairly conservative school. If you're a libertarian, George Mason (mostly because of its faculty) will probably strike your fancy. There's definitely some clear choices.

What about Marquette? Honestly, I don't think that our law school is very political. Most of the people that I know are at school to learn how to be a lawyer. They want instruction. I can't remember any major political controversy surrounding the law school in my almost two years here. Neither the Federalist Society nor the American Constitutional Society are very active on campus. Politics is an occasion topic of conversation, but no one is staging protests or sit-ins or anything.

As far as the political leanings of the students, I'd say that we're pretty evenly split. I don't have anything but anecdotal evidence and a quick cruise through Facebook to back up my opinion though. There are plenty of reasons why we'd be fairly balanced. I think that the two most important reasons are that we're a Catholic school and we're in the midwest. There definitely seem to be more right of center people here than there were at UWM.

Last night's episode of America and the Courts on C-SPAN featured the widely covered Justice Scalia speech about foreign law. The speech was widely covered because of the stupidity of some of the questioners, especially one Lyndon LaRouche disciple who ended up being thrown out. If you haven't had an experience with a LaRouche follower, you're missing out on one of life's truly peculiar experiences.

After watching the Q&A session, I can see why the justices tend to stay away from public events like this. Over half of the questions were not about the topic (the use of foreign law), and a sizable percentage of those were loaded political shots. It also seemed like many of the people who tried asking on topic questions hadn't been paying attention. One of the questioners totally got Justice Scalia's view of Natural Law wrong. Scalia basically said that he believes in a Natural Law, he thinks his view of it is correct, but he doesn't think he should impose that Natural Law view on the entire country. This is the view that I personally have on a number of issues, but a lot of people don't seem to get it. I was also disappointed by the lack of Harvey Birdman questions. There were a few decent questions, including one from Tom Goldstein of the SCOTUS blog.

It seems like the justices are very torn about making these appearances. Scalia has been trying to make more of an effort to go to events like this. Breyer gets around pretty well, recently speaking at the U of Chicago law school and not-so-recently appearing on Larry King Live to push his new book. I understand why they want to attend these events. It helps educate the public about legal issues and what the Court does. I also understand why they don't want to attend these events. Anything with an open Q&A session quickly turns into a circus. It should be interesting to see if the justices, especially the new ones, try to get out in the public eye more often. It's definitely a practice that has its pros and cons.

My mind isn't totally occupied with lusting after Sasha Cohen. I've been keeping an eye on local beer happenings as well. There is a new (well, sort of new) micro-brewery coming to Milwaukee. You might know the Milwaukee Brewing Company better as the Milwaukee Ale House. After almost a decade at their location in the Third Ward, the Ale House folks are expanding into Walker's Point. This second location at 613 2nd St. will be a packaging brewery and tasting room. You will now be able to buy packaged versions of the Ale House beers for all of your non-Ale House-centered events. For those of you who are especially curious about what's going on at the soon-to-be Milwaukee Brewing Company, they have an open house every Monday from 5 to 7 PM. Watch them build the brewery and hear about their brewing techniques. If you really can't wait, here's their brewery construction web cam.

I must confess that I'm not much of an Olympics fan. The Winter Olympics seem especially dull and uninteresting to me. While I used to enjoy skiing quite a bit, I found that being someplace warm, indoors, and with a gin & tonic in hand was much more fun than hurling myself down a snowy hill at dangerous speeds.

Even I, Olympics grinch that I am, got caught up in the Sasha Cohen story. Ramjac's post sums up a lot of my feelings. Cohen's fall was one of those heart wrenching sports moments. She did end up with the silver, but it still had to be disappointing to her. Maybe I missed this since I'm not an Olympics fan, but when did they replace the medals with CDs? "You didn't just win the gold medal, you sold one million records."

Figure skating has become a sport full of insane, Jackass-esque maneuvers. That's probably why it's one of the few Winter Olympics sports that holds my attention. The technical skill bar keeps getting raised and the athletes keep trying to top each other. It's hard not to be impressed by what people like Sasha Cohen do.I'm also impressed by that.

I forgot an important part about the Federalist Society conference that occurred during the Q&A after Justice Scalia's speech. A law student asked Scalia if he saw the episode of Harvey Birdman, Attorney at Law that featured an appearance by everyone's favorite textualist. Apparently, that student was a friend of UW law blogger Law & Alcoholism, who was also in attendance (I'm sorry that I didn't get to meet him). It went down like this...

X: As a law student, I'd just like to thank you for writing all those great dissents. [audience laughs] Anyway, I have a two-part question. First, what do you think is the future of the Court's Commerce Clause and Fourteenth Amendment jurisprudence? And second, have you ever seen the show 'Harvey Birdman, Attorney-at-Law'”?

Scalia: Harvey Birdman?

X: Yeah, they featured you on it. You were rapping with Donald Rumsfeld.

Scalia: Well, I don't remember appearing on any show rapping.

X: It's a cartoon. You should get one of your clerks to TiVo it.

The Milwaukee Journal-Sentinel even has a little more...

Asked about a comedy sketch featuring Scalia and Secretary of Defense Donald Rumsfeld performing a rap song, Scalia said he hadn't seen it:

"Who played me? Was he good-looking? Was he young? Maybe Leonardo di Caprio?"

If I have the time tomorrow, I'll take a screen shot of the Scalia appearance on Harvey Birdman off of one of my DVDs. The show is hilarious, by the way. It has also featured an appearance by the late Chief Justice. Someone should buy Scalia the DVD.

Internet bad-ass nabbed over his MySpace pictures.

School spokesman Rick Kaufman said parents were calling with concerns and some kept their children home after photographs posted on the boy's profile on MySpace.com, a social networking Web site, began circulating through the community.

"Killer" had pictures of himself posed with nine guns. The caption read "Angel o' death on wings o' lead." Edgy, I know.

This fairly innocuous news story got my attention because of a recent cruise through Facebook. Yes, I do have a Facebook profile. It's kind of pathetic, but it helps me keep tabs on people I know all over the country. It's a good address book for someone like me who has an aversion to actually keeping one. I'm a little surprised that people post certain kinds of pictures on things like Facebook and MySpace. Some of it is understandable. College kids drinking at someone's crappy, campus apartment? No big deal. It's not like anyone should be shocked that college students like booze.

But some people seem to think that MySpace and Facebook are great places to post pictures of illegal activities. I think, and I'm sure the above mentioned "Angel o' death" probably sees this now, that this is an incredibly stupid idea. The thing to remember about the internet is that everybody can access it, even mom. My one Facebook picture is rather dull. In fact, I'm barely visible. I don't have any "questionable" pictures of myself (although some may exist...), but I certainly wouldn't post them for the internet to see. Think before you upload.

I once held the idealistic hope that my fellow citizens knew something about the Supreme Court. I hoped that Joe Six-pack could name two (maybe three) of the sitting justices on the Court. Rather extensive but wholly anecdotal evidence (consisting of me polling friends, colleagues, and co-workers) has crushed that hope. People just don't know who the justices are. Well, it looks like there is some non-anecdotal evidence to back this up. Here are the numbers from three studies posted on the ELS blog that asks people to name the nine justices.

I'm not surprised that O'Connor is the most well known. Being the first female justice is enough to get your name stuck in the heads of many people. Thomas at number two isn't shocking either. His confirmation hearings are seared into the memories of many people. Even I remember my mom watching the hearings on TV, and I was nine years old at the time. The most recent survey puts Roberts in third. I'm sure that his appointment was so recent and the fact that it's now the Roberts Court has something to do with that. I'm curious where Alito would rank. I'm also curious if his numbers will decline over time.

Part of me thinks that it's bad that people have no idea who is on the Court. I'm shocked that the justices aren't out in public more often, giving speeches and making appearances. But maybe they like being anonymous. On of the panelists at the conference, David G. Leitch (who isn't a professor yet I keep calling the panel that he was on "the professors' panel"...), mentioned that Chief Justice Rehnquist was once stopped outside of the Supreme Court building by a group of Yale law students. They asked him for directions. They didn't even know who he was. I guess there is something nice about being in such a position of power but maintaining your anonymity.

It's true. I did.

I just got back from the Federalist Society conference about the Legacy of the Rehnquist Court. I weaseled my way into the event by becoming a volunteer. I got to attend all of the events, but I also had a few random tasks to accomplish. These included organizing name tags, checking people in, and guarding doors. It was truly the kind of complex work that would require the skills of a college graduate. The door guarding was interesting. During the professors' panel, I stood in the back and shut the doors after people entered and exited the room. For some reason, these doors would not close on their own. It took a rather forceful pull to lock the double doors into a secure position. Anything less than a firm yank would cause the doors to swing open, allowing the noise from the hall to disrupt the event. I hate those damn doors.

The solicitors general roundtable with Paul Clement (for whom I had the esteemed pleasure of holding the door open), Ted Olson, and Walter Dellinger was very interesting. MULS's own Dean Kearney served as moderator and kept things humorous, as the dean tends to do. The discussion took on many of the major legal issues that the Rehnquist Court tackled. Apparently, C-SPAN was filming it, so I'll keep my eyes peeled about that airing. I managed to grab a "souvenir" after the panel. I have former SG Dellinger's Cybershell Kiosk receipt. I guess he had to print his notes before the event.

The professors had excellent remarks as well. I was distracted with door duties during this, but I managed to hear most of it. Prof. McGinnis made some interesting points about the Rehnquist Court (and Rehnquist himself) in regard to societal norms throughout the country. Basically, the Rehnquist Court thought that many areas of regulation (like in the Gun Free School Zones Act) were not areas that should be under federal jurisdiction. In a country this large, things like that should not be legislated "top-down". McGinnis gave an example about the differing views of guns that he saw in Idaho as opposed to New York. I think that this is an excellent and persuasive way to talk about federalism.

Justice Scalia's speech after lunch was great. He gave a firm defense against the claim that the Rehnquist Court was an activist court. When compared to the Warren and Burger Courts, the Rehnquist Court was not overly active in striking down legislation. In fact, the Warren and Burger Courts were more likely to strike down state statutes. Scalia touched on a few cases, including Lucas, Nollan, and Dolan. He discussed the idea that Congress itself has become activist. Perhaps the legislative branch had been overstepping their bounds more and more often, making them accustomed to legislating in areas that they had no true authority. Is it activist for the Court to finally restrain them? My favorite comment came during the short Q&A session. An audience member asked what Chief Justice Rehnquist thought about the Clinton impeachment and his role as presiding judge. After all, the impeachment of a president is a rare event, and Rehnquist got to take part in a historic event. Justice Scalia said that the Chief really enjoyed it. Take that as you will.

I had a great time at the event. I got to hear the views of brilliant legal minds. I got to see notable people in the crowd like Judge Sykes and Judge Randa. I got lunch. It was a pretty good way to spend a morning.

EDIT: Prof. Althouse (who was on the professors' panel and very insightful about federalism) has a post about the conference.

South Dakota is about to pass an incredibly sweeping ban on abortions. The proponents of the bill know that it will be immediately challenged in the courts. That's the whole idea.

"I'm convinced that the timing is right for this," said State Representative Roger Hunt, a Republican who has sponsored the bill, noting the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court.

"The strong possibility of a third appointee sometime soon makes this all very real and very viable," Mr. Hunt added, a reference to conjecture that Justice John Paul Stevens, 85, might soon retire. "I think it will all culminate at the right time."

Now, I'm not a math major or anything, but I only count 4 possible/likely votes to overturn Roe/Casey. In fact, the only two votes that we know for sure are Scalia and Thomas. While it will take a long time for this issue to get to the Court (the Article III world moves at the speed of a comatose sloth), I think that these South Dakota politicians are jumping the gun a bit.

What if there is another vacancy imminent? Does this change what happens on the Court with the upcoming Partial Birth Abortion case? I touched on this issue in this post. Let's say that you are a Supreme Court Justice who wants to overturn Roe. We'll call you Antonin S. No, wait, that's too obvious. Let's call you A. Scalia. There's a pretty good chance that the PBA ban will be upheld in a 5-4 decision. One of those 5 does not want to overturn Roe/Casey. Do you write a concurring opinion that calls for Roe to be overturned? You've done this consistently in the past on principle and haven't been shy about it. Would the presence of this concurring opinion make the other anti-Roe justices feel pressured to sign onto it if they agreed? Would they (the new justices) want to go on record on that, or is it ethical to not sign onto a concurring opinion that you agree with?

I guess this is really a question of tactics. Should a justice write an opinion that will get less than a majority when that opinion will further frustrate those legal goals? Make no mistake. A four vote concurring opinion that calls for the overturning of Roe would turn the next confirmation hearing into Armageddon starring Joe Biden. On the plus side, it would be televised and a hell of a show. I'm very curious to see how this plays out in the next term or two.

I recently made a somewhat bitter post about being shut out of the Federalist Society Rehnquist Court discussion. Being the resourceful young man that I am, I found a way into the event. The event has garnered so much interest that the Federalist Society put out a call for volunteers to help run things. I jumped at the chance. I'll be helping with the check in and a few other things, but I get to see all of the speakers. The volunteer solicitation said that we would have "a better chance of meeting Justice Scalia, Ted Olson, or Paul Clement." I'm pretty pumped up for this.

Today, the Supreme Court heard oral argument in two Clean Water Act cases, Rapanos v United States and Carabell v United States Army Corps of Engineers. Without getting too far into the CWA, the cases hinge on whether the Clean Water Act protects certain wetlands that are adjacent to tributaries of navigable waters (which are covered by the CWA). This is a Commerce Clause case (the CWA was enacted by Congress under its Commerce Clause power), so it is likely to give us an insight to the general Commerce Clause views of Roberts and Alito.

Normally, I can't stand Slate's Dahlia Lithwick, but she does cover oral arguments well. Her article really captures the mood and atmosphere in the room. Here's a portion...

Solicitor General Paul Clement has 40 minutes to defend against all this while Scalia and Roberts take turns punishing him with the hydrological connection stick. Scalia-who last week announced that proponents of a "living constitution" are "idiots," tells Clement that it's both "absurd" and "extravagant" to call a drainage ditch "waters of the United States." Roberts asks whether "one drop of water a year" constitutes a significant nexus to navigable waters. And Scalia invokes "storm drains," "puddles," and "rain water" to imply that all of this controversy involves trivial, ugly, brown water.

Based on this exchange and his dissenting opinion in Rancho Viejo, LLC v Norton (better known as the "hapless toad" case), I think it's likely that the Chief will be siding with the plaintiffs. Alito is probably a lock too, but those are just my predictions.

The Supreme Court will decide the constitutionality of the Partial Birth Abortion ban.

The outcome will likely rest with the two men that President Bush has recently installed on the court. Justices had been split 5-4 in 2000 in striking down a state law, barring what critics call partial birth abortion because it lacked an exception to protect the health of the mother.

I just made a post about the Administration's push to get the Court to hear this. This case will tell us where Roberts and Alito stand. It's likely that arguments will be held in the beginning of the next term. In the event of another vacancy at the end of the term, this case could be even more interesting than it already is (and it's pretty damn interesting).

Here's a heads up on a new legal blog. The Empirical Legal Studies blog's goal is to "advance productive and interdisciplinary discourse among empirical legal scholars." I have almost no experience in this area, so reading this blog will hopefully open my eyes to a few new viewpoints on the study of law. Prof. Jason Czarnezki of Marquette University Law School (and more importantly, the person who taught me environmental law) is one of the main bloggers.

I can't go a week without talking about judicial nominations, so I figured that I would start the week off with one of those posts. After the Roberts and Alito confirmations, I am convinced that there is one man in America that determines whether or not a nominee survives the process and makes it to the Court. That man is Senator Arlen Specter, Chairman of the Senate Judiciary Committee. Specter matters for a few reasons. First, he's the chairman so he holds a lot of sway. Second, he's a fairly moderate Republican. He's openly pro-choice and would not vote for a nominee who (in Specter's opinion) would vote to overturn Roe. Third, there was that little matter of his last Senate race. Specter had a conservative Republican, Pat Toomey, challenge him in the primary. While much of the conservative political base was behind Toomey, President Bush backed Specter's re-election. Without the president's support, it's likely that Specter would be sitting at home right now.

Why does all of this matter? I think that it matters because a closer rapport has developed between Specter and the White House, mostly concerning judges. Specter has led the charge for both Roberts and Alito being confirmed. Many people understand that in regards to Roberts but not Alito. How could pro-choice Specter sign on so readily to support a judge who went the other way in Casey? Maybe it's because Specter recommended him to the White House.

I have it on good authority that a list was sent from Specter's office to the White House. This list contained three names: Samuel Alito, Karen Williams, and J. Harvie Wilkinson, in that order. If these are Specter's recommendations, then I firmly believe that both Williams and Wilkinson (both of the 4th Circuit) could be confirmed to the Court in the event of another vacancy.

This also makes my twice erroneous pick of Williams as the nominee look a little less foolish. I still think that she's the number one female contender. She's got massive support among the 4th Circuit senators, about 14 years on the federal appeals court, and a judicial record that looks a lot like Justice Rehnquist circa the 1970's. In the event of another vacancy, I'm picking her again as the likely nominee. Hell, I have to be right about it eventually.

I've been amusing myself tonight with the Federal Election Commission's website. You can find everything you want to know about who gives to what political candidates and all that other fun stuff. Put in some names: friends, family, neighbors, professors, go nuts. Your taxes are paying for it.

Is another Supreme Court vacancy imminent? Some DC chatter is pointing towards it.

One Senator claims he has specific knowledge that the vacancy is coming. The speculation revolves around 85-year-old Associate Justice John Paul Stevens. Stevens, as the rumor is embellished, supposedly let it be known that he is impressed with the caliber of Chief Justice John G. Roberts, Jr., as well as with that of Associate Justice Alito. Stevens supposedly told the White House that even though he is a Rockefeller Republican (he was President Gerald R. Ford's only Court appointee during the period when Nelson A. Rockefeller was Vice President) he believes the Court would not move radically to the right should he depart.

When you first read that, you probably had the same reaction that I had. "The Court would not move radically to the right", are you kidding me? Surely Justice Stevens is joking. He must be aware of the members of his voting bloc on the Court, and they sure aren't on the Right.

But there might be something to this. Stevens still considers himself a Republican. He's a Rockefeller Republican, which is sort of the dodo bird of the Republican Party. As long as he sees himself as a Republican, he is one. If he thinks that the Court is in good hands with people like Roberts and Alito, why not retire while he's still on top of his legal game?

These are still just rumors. There had been rumors about Stevens during Clinton's presidency, including one where the White House asked him to retire so Clinton could name his replacement. That was more than a little offensive. These rumors are probably just that, rumors. There is a lot of wishful thinking that a retirement is coming. I think that there will be one before the next presidential election, but I'll be pleasantly surprised if one happens at the end of the Court's term.

This isn't a review, just a short beer-related post. Yes, it's 4 AM and I'm still awake. Insomnia sucks.

I got to try a new, yet-to-be-released beer Wednesday night: Heineken Light. I only had one sip of it, so I won't bother with a full review. If you like Heineken, you'll probably like this. In spite of being a light beer, it tastes almost exactly like regular Heineken. If you're a fan of Heineken (which I'm not) and watching your weight (which I'm not), keep your eyes peeled for this when it gets released. How did I get to try it? I know a guy who knows a guy.

I'm not sure when the next print issue of The Warrior will be out, but their website is updated with new content. Check out this issue's installment of Beyond Busch Light. It's a nice blend of beer history and beer reviews. I have yet to make it to the Old German Beer Hall. I know, I know, I've failed all of you. I promise to make it there sometime in the reasonably near future. However, here is a picture of one of my Confirm Alito bumper stickers at the Old German Beer Hall...Photo credit to Res Ipsa. If you don't have a liter mug like those, get one. I have a Hacker-Pschorr one and I love it.

Definitely listen to Brandon Henak's advice. The guy knows his beer. He mentions a Spaten Pilsner that was not so impressive. I would definitely suggest the Spaten Optimator. It's a doppelbock, 7.2% alcohol, and one of the best dark beers around. Just be sure to buy it somewhere that has a high turnover rate for their stock. I had an Optimator once that tasted like a sock. That's what happens when bars don't clean their lines and old kegs sit for a long, long time.

EDIT: Speaking of the Old German Beer Hall, tonight is the night to go. According to Brandon, "if you bring your copy of The Warrior (found on campus at most retailers) you get your second stein of german beer (reviewed in my latest column Bavarian Brewhaus Basics) free and a free warm Bavarian Pretzel." Free beer and a pretzel and all you have to do is bring a copy of The Warrior?! Quite a deal. If it wasn't 40 degrees below zero, I'd be there.

The Federalist Society is holding a conference in Milwaukee about the legacy of the Rehnquist Court. It looks like quite a line up.

9:00 a.m. - 10:30 a.m.
Solicitors General Roundtable on the Structural Constitution

Confirmed participants to date include:

* Hon. Paul D. Clement, Solicitor General of the United States
* Hon. Walter E. Dellinger, O'Melveny & Myers and Former Acting U.S. Solicitor General
* Hon. Theodore B. Olson, Gibson Dunn & Crutcher and Former U.S. Solicitor General
* Dean Joseph D. Kearney, Marquette University Law School (Moderator)

10:45 a.m. - 12:15 p.m.
The Jurisprudence of the Rehnquist Court and the Enterprise of Judging

Confirmed participants to date include:

* Prof. Richard W. Garnett, Notre Dame Law School
* Hon. David G. Leitch, General Counsel, Ford and Former Deputy White House Counsel
* Prof. John O. McGinnis, Northwestern University School of Law
* Hon. Steven M. Colloton, U.S. Court of Appeals for the 8th Circuit (Moderator)

12:30 p.m. - 2:00 p.m.
Keynote Address & Lunch

* Justice Antonin Scalia, U.S. Supreme Court

There is a vicious rumor going around school that registration for this is full and there is a waiting list. I just sent in my registration information but haven't gotten anything back via e-mail. I'm a little bothered by the fact that no one at school told the students about this. This is an excellent chance for all of us to hear major players in the legal world speak. And it's right down the street from the law school. If I am on a waiting list, I'm probably just going to go anyway. Hopefully, some people won't show up. I would love to attend this.

EDIT: I am on the waiting list. Many thanks to MULS for telling us about this in advance...

The formal investiture ceremony of Justice Alito occurred today. This was the first time that he officially took his seat on the Court. His first Conference of the Justices is tomorrow morning. They may act as early as then on the petition to hearing the case on the partial birth abortion ban. It may be an interesting first conference.There's an image that just warms the heart.

Beer #2 (which is currently making me very sleepy) was the Hacker-Pschorr Munich Helles Lager. When most people think "Hacker-Pschorr", they think Weisse. There's absolutely nothing wrong with that either. They make a great weisse beer. Hacker-Pschorr has a lot of other varieties available, but they will require a bit of looking in order to find them. The Munich Helles Lager is one of those harder to find brews. It has an incredibly vibrant golden hue. It's a beautiful beer color. There isn't much of an aroma aside from a mild, usual "brewed" smell. It's flavor is something like a mixture of sweetness and lightly yeasty "breadiness" (I know that's not a word, but that's the best way to describe it). It's not exactly a light beer, but I wouldn't say it's even a medium as far as body. It's something that even a passive beer drinker would have no problem enjoying. The finish is the most interesting part. The very light hoppy flavor is mild enough that it doesn't hit you as a bitter bite. It's almost fruity. I'd almost go as far as saying that it's got an apple cider-like tang to it. The overall taste is sweet though. The Munich Helles Lager is one of those rare beers that provides a natural sweetness without overpowering you with sugary, gut-rot inducing flavoring. It's another great member of the Hacker-Pschorr family.

I had a pair of post-dinner beers this evening, and I'd like to share my thoughts. First up was the Bell's Winter White Ale. Bell's is a very underrated Michigan brewery. I haven't had a Bell's beer yet that I didn't enjoy. I tried the White Winter Ale for the first time tonight. Like most white ales, it has a very cloudy appearance and a fairly bright color. It's got a very citrusy aroma with a few hints of spices. It's a very pleasant and refreshing smell. The flavor is crisp and refreshing. The White Ale is very citrusy in flavor as well as aroma. It's a got a very clean and distinct yeasty bite to it. There is very little after taste. It provides strong flavor while in your mouth but dissipates after swallowing. I found it strange that this was a winter brew. I think that the Bell's Winter White Ale would be a perfect summer beer. It's not heavy, the alcohol content is moderate, and it's got a clean finish. That would make it an ideal beer for a warm summer night. It provides a refreshing flavor but doesn't weigh heavily in your stomach. If you enjoy hefeweizen style beers, you will love this.

Law & Alcoholism, a Texas transplant at the UW law school, has a great post discussing the current political environment. He is a gentleman and a scholar, so I suggest that you listen to him.

The Bush Administration has urged the Court to hear the Gonzales v Carhart case. The Administration wants the Court to rule on the constitutionality of the federal ban on partial-birth abortions. The last time that a PBA ban was before the Court in Stenberg v Carhart, the ban was struck down on a 5-4 vote with Justice O'Connor joining the four liberals.

I think that the Administration is pushing for this because they sense a win. If Chief Justice Roberts votes like former Chief Justice Rehnquist and Justice Alito votes the other way than O'Connor did, there are five votes to uphold the ban. Even Justice Kennedy, who spends a lot of time sitting on the legal fence, is strongly in favor of upholding the ban. He wrote a blistering dissent in Stenberg, arguing that the ban works within the Casey framework.

In the event that happens, I'm interested in seeing what the opinions look like. Justices Scalia and Thomas are never bashful about saying that they want Roe overturned. Obviously, no majority opinion joined by Justice Kennedy will say such a thing. Will there be concurring opinions and what will they say? Will Scalia or Thomas write one, reaffirming their commitment to overturning Roe? If they do, will Roberts or Alito join it?

The complete roster for Team Alito has been filled. In addition to adopting former O'Connor clerks Sasha Volokh and Ben Horwich, Justice Alito has filled his chambers with the following...

-- Adam G. Ciongoli, currently a senior VP at Time Warner Inc., who previously served as a close advisor to former Attorney General John Ashcroft;

-- Hannah Smith, who previously clerked on the Court for Justice Thomas; and

-- Jay Jorgensen, who previously clerked on the Court for then-Chief Justice Rehnquist.

Smith is only going to work until May, then Jorgensen will replace her. The Associate Justices only get four clerks.

I think that the bios of Alito's clerks are incredibly interesting and telling. Aside from their personal connections to him, he's got a former Rehnquist clerk, a former Thomas clerk, and a former Ashcroft aide. I sense a slight ideological bent here, don't you?

I wasn't shocked to see this opinion piece in the Trib today. April Kusper and Chris Hoff have decided to make your health decisions for you. Isn't that nice of them?

When the Milwaukee Common Council meets on March 2, we hope they vote to ban smoking in bars and restaurants. As Peer Health Educators on campus, it is not only our job but our passion to promote healthy living.

There should not be a legislated ban on smoking in bars and restaurants. If a private business wants to allow smoking, they should be able to do that. If a private business wants to ban smoking, they should be able to do that too. Then the consumer can choose where they go and spend their money. The businesses will thrive or fail based on the free market.

It must be quite a feeling to have a "passion to promote healthy living". Feel free to attempt to persuade anyone to quit smoking. Don't feel free to legislate your personal policy preferences for the rest of us. Some business owners would like to let their customers use tobacco, which is a legal product.

If the thought of not having to wash every article of clothing you wear into a bar or restaurant isn't enough to sway your opinion...

Personally, I wash my clothes after I wear them, regardless of where I've been. I'm not sure how many days they want to get out of their clothes...

Among adults, secondhand smoke exposure causes approximately 53,000 deaths a year, making it the third most preventable cause of death in the United States, according the American Medical Association.

That's just not true. 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. Anti-smoking groups took the number of deaths from second hand smoke in the EPA study (3,000) and inflated it to over 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." That original EPA study was also thrown out of a federal district court because the EPA cherry picked its data, violated its own procedures, and ignored data that deviated from their desired outcome.

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). There is no statistical significance between the two.

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. Isn't that interesting?

Additionally, if the health effects don't bother you, a study released in August 2005 by the Society of Actuaries found that secondhand smoke costs our country $10 billion a year in health care bills, lost wages and other costs.

Tobacco is a legal product. If people want to use it, then they can suffer the health consequences. What is the yearly cost attributed to alcohol? What about red meat? Should we ban those too, or should we let people choose what to put into their bodies?

This is also why I dislike socialized health care. Once the whole public is paying for your health care, they can justify making health and lifestyle choices for you. After all, they are paying your bills. They are going to make sure that you don't engage in any behavior that might raise the cost of your care. Not so oddly enough, the British House of Commons voted to ban smoking in pubs today. A common excuse for this is that their socialized health care system has to pay for the smokers' care.

According to the most recent CORE survey taken by a random sample of Marquette undergraduates, only 29.3 percent of students report smoking at least once in the past 30 days.
...
The next question is why do a majority of us (non-smokers) continually allow ourselves to be exposed to the secondhand smoke of a few?

This is a wonderful example of the tyranny of the majority, an idea that is prominent in Alexis de Tocqueville's Democracy in America. As Thomas Jefferson stated, "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine." This is exactly why the US is a republic, not a democracy. We have protections that keep 51% of us from stripping rights from all of us.

As reported in the Feb. 7 Marquette Tribune, many other cities, including New York, Boston, Chicago and Minneapolis, have recently passed laws restricting smoking in bars and restaurants. If other Midwestern cities are getting serious about secondhand smoke, shouldn't Milwaukee?

Oh, come on. That argument is so weak that your mom could defeat it. "If everyone else jumped off a bridge, would you do it too?"

In 2005, Men's Health ranked the fittest cities in American and placed Minneapolis just ahead of Milwaukee.

Who gives a crap what Men's Health thinks? I bet we could be at the top of the list if we passed a law demanding that all citizens ate the same healthy meal and exercised for a certain number of hours a week. That infringes on people's freedom though. Tyranny with good intentions is still tyranny.

We're tired of smelling like smoke every time we go out and don't think anyone should work in a dangerous environment.

Are these two the speaking agents for the local service industry? I doubt it. I've met more than my share of bartenders and waitresses. A lot of them smoke, and they 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. Bars are an exception. It's a pretty cool job perk if you are a smoker.

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.

After reading this opinion piece, I was very tempted to write a response and submit it to the Tribune. I decided to make this post instead for two reasons: 1. It's much easier to copy and respond to specific statements, and 2. The Tribune sucks and I don't want my name attached to it.

For the record, I have never smoked a cigarette and would never try one.

A Virginia sheriff gives the go-ahead for undercover officers to have sex with prostitutes.

Court documents show that four times last month, county detectives allowed women at a massage parlor to perform sex acts on them. In one case, a lawman left a $350 tip. Smith acknowledged the practice is not new.

Smith told The Washington Post that only unmarried detectives are allowed to do the under-the-covers work.

He said actual sex acts are needed to help win prostitution convictions.

I'm not sure if the "tip" money is comes from department funding (tax dollars) or if it was seized in other busts. I would be interested to know that though.

I'm a little fuzzy on the intricacies of criminal law in this area. Amazingly, we didn't cover prostitution in depth during Crim first year. The sheriff says that actual sex acts are needed to get the conviction. What if we reverse the situation? It's not unheard of to have a female police officer pose as a prostitute and arrest men who try to solicit her services. Does the undercover female have to complete the transaction, so to speak, in order to get a conviction? Or is there a bias in the criminal justice system that makes convicting a John easier?

Best of luck to the brave men of the Spotsylvania Sheriff's Department's Gonorrhea Division. Pack protection, and I don't mean a gun.

For those of you MST3K fans, this is oddly reminiscent of the brilliant Joe Don Baker movie Mitchell, which focuses on a hooker lovin' (and arrestin') cop.

Honestly, I'm not trying to post this much about deviant behaviors. I'm just making my normal rounds on the web and this is what I'm finding...

Speaking as someone who is single, I'm not really sure what I think of Valentine's Day. On one hand, I'm a little jealous of others and bummed out about the fact that I'm spending it alone. On the other hand, I'm happy that I don't have to deal with this highly commercialized holiday. I know that many people don't take it seriously and see the holiday for what it is: a boom in Hallmark's sales. But there are a lot of people who do take it seriously, probably too seriously. Maybe it is nice to just have this be another Tuesday of little importance.

However, I'm still a vindictive jerk, and I would rather not let the rest of you have any sort of adult fun if I'm not. So take a look at this...
There, that should kill any hormonal urges that you planned on acting on tonight.

Shirtless Ted Kennedy: the anti-Viagra.

Since I have turned much of this site into a beer review and stripper mugshot repository, I figured why not totally descend into moral filth. Prof. Hurt, Conglomerate blogger and my Business Associations professor, has an interesting post here about controversy over record keeping requirements for porn companies.

[M]any in the pornography industry are complaining that the DOJ has instituted record-keeping requirements so complex that it will surely drive them out of a legal business. The requirement? Keep records verifying the age of every employee that shows up on-camera for ten years.

Here is what is required...

Regulations passed last year require all online purveyors of sexually explicit videos or photographs to retain each subject's birthdate, copy of government-issued ID, and list of aliases used in the industry.

The commenters, who suspiciously seem to know a lot about the porn industry, say that the most onerous part of the rules is that all of the resellers, not just the producers, must have this info. Commenter Victor chimes in...

The new regulations are precisely like requiring every bookstore that sells novels and every library that lends them to maintain complete records of the true name, age, birthdate, and government-issued ID of every author, plus all the pseudonyms those authors have ever used.

The regs have also put a burden on somewhat "non-traditional" adult-themed sites. Here is commenter SeventyNine bemoaning the loss of www.ratemyschlong.com...

While, yes, posting pictures of one's privates on the internet isn't exactly an expression falling within the core protections of the first amendment, it surely has some expressive value for the poster - particularly where other users are invited to aesthetically judge and critique the photos.

Personally, I think that requiring the resellers to have a catalog of pornstar biographical information is a little bizarre. As long as the producers maintain the proper records, I think that the integrity and legality of our nation's smut industry will be sound.

I'm still awake, studying for a quiz. Yes, a quiz. Most law school classes are graded based off of one exam given at the end of the year. They call it "finals". I call it a gross violation of the 8th Amendment. My ADR (that's Alternative Dispute Resolution) course has periodic quizzes, so you can tank the final and still pass. It's a nice way to grade, but I'm not used to it at all. I'm getting massive undergrad flashbacks here.

I would post something substantive (I have a few things in mind) but I need to get back to reading my class notes, watching this Ab Lounge XL commercial for the 76th time, and shotgunning cans of Coke.

I'd like to thank Dennis York for this post and making me look like an idiot for laughing uncontrollably in Raynor Library.

It's been said before but I'll say it again, Dennis York is funnier than The Onion.

More politically motivated eggings.

You know all that talk about how college is an open forum for intellectual debate and discussion? Well, it's a bunch of crap. College campuses are packed full of petulant little brats who can't accept living in a world where someone disagrees with them.

This egging is going to stop eventually. Sometime soon, one of these little thugs is going to shoot his/her mouth off about these late night escapades. If anyone knows who is doing this, they need to report them to DPS or MPD.

EDIT: Apparently, they egged Real Chili too. No blood for chili!

It's already 8 and I still have to go over my Business Associations reading and McConnell v FEC for Legislation. I don't have enough hours in my days.

I changed my profile a little. I liked the phrase "insatiable lust for hot Article III action" that I puked out of my brain into this post. It sums me up pretty well. I love the federal courts, as sick as that is. I also added the "beer aficionado" part because my Beer Reviews section is up to 21 entries. It's become a major and, from what I've been told, popular part of the site. I'm going to keep adding to it steadily. If Prof. Bainbridge can blog about wine, I can blog about beer.

Time to read about wrongful dissolution.

I'm exhausted from work and exhausted from reading for class, so I'm taking a break. This is the second review that I promised last night. I guess I had a craving for seasonals because I bought a six pack of Leinenkugel's Big Butt Doppelbock to go with my New Glarus Staghorn. Big Butt Doppelbock has a special place in my heart, mostly because of a story involving it, a long night at a bar, and a certain waitress. But that one's not for the blog. There are a lot of those "not for the blog" stories, including last night, but I digress. On to the review.

The Big Butt Doppelbock is a doppelbock. What's a doppelbock? I'm glad you asked. It's a kind of bock. What's a bock? I'm glad you asked. A bock is a German-style lager that is darkened with malts. Bocks have a long Catholic tradition too. Fasting monks used to brew and drink bocks because they are full of life sustaining nutrients. Think of it as liquid bread. I think the monks liked to party too, but that's just a theory. Doppelbocks (double bocks) are another Catholic creation. They are almost always very dark and full bodied. Because I'd rather not go into a long description of decoction mashing and the fermentation process, I'll just say that the secret to the doppelbock is in the malts.

The Big Butt Doppelbock is very dark red. It's not totally opaque if you hold it up to the light, but it's not exactly a Miller High Life. The aroma is nice. You can really smell the chocolate and caramel malts. You can also really taste them. The flavor is full bodied and rich. It's sort of a burnt, nutty flavor. The problem that I have with this beer is that it's so tame. The flavor is excellent, but it has no follow through. The alcohol content is low for a bock, so there's no kick to it. Basically, it's doppelbock training wheels. Don't get me wrong. It's a tasty beer and I'm not going to struggle getting through this one. I just wish that they hadn't changed the recipe (the late 90's version was a real doppelbock). Order one anyway. The name is fun to say.

I used a lull in tonight's episode of America and the Courts to make a beer run. My fridge has been devoid of beer for weeks. Yes, weeks. I'm fully stocked again and have two reviews for tonight.

First up is the New Glarus Staghorn. I'm a huge New Glarus fan in general. It's a great Wisconsin brewery with a pretty diverse menu. The first thing that I notice about the Staghorn is the color. It's got this amazing, bright red color. It's not a flat red either, it's sort of golden. The aroma is mildly hoppy and malty. It's not too overpowering, but it definitely smells like a good beer. The flavor is interesting because of how it develops. Initially, you taste almost nothing. As the beer passes over your tastebuds, they start to react. You can tell you're drinking something, but you can't really identify it. You swallow it and bam, flavor like nobody's business. It's a strong burst of roasted maltiness and a sharp bite of hops. The after taste lingers and heightens the subsequent drinks. The initial flavors become stronger and the finish is even better. This is an incredibly complex beer. It's also incredibly good.

Unfortunately, it's a seasonal so you might not be able to find it. I snagged the last six pack at the store. If you can find it, grab it. If you can find any of the New Glarus Unplugged series, buy those too. They are limited brews that may never be made again. Support your local brewer.

EDIT: Review #2 is going to be delayed. I'm going out.

EDIT #2: I need to go out more often. Thanks for the invite, Mark. I had a blast.

Flag burning may be a risky act.

"We have experienced a rise in orders for the Danish colours," owner Robin Ashburner confirmed.

But he warned, "It has to be pointed out though that a number of modern flags are now made largely of polyester and when they burn they melt. That means if they are whirled around by a protester, his or her fellow protesters could be splashed by flying pieces of burning material. If it got into the eye it could do serious damage so we are about to issue a warning to this effect on our website."

The Denmark flag fights back! It's funny that they're going to put a warning on their website. But considering what a litigious world we have, I can easily see a blinded protester suing the flag maker.

Directing my gaze closer to home, the issue of the Flag Desecration Amendment seems to be one that won't go away anytime soon. Personally, I think that burning the American flag is an abhorrent, disgusting act usually done by attention whores who are willing to do anything to get a TV camera focused on themselves. Even so, I think that the amendment is a bad idea.

One problem is enforcement. What exactly qualifies as "an American flag"? Is it just the standard size flag or all sizes? Does it have to be flag-like in appearance or can it be in some other form, like a picture of the flag on a poster or an image of the flag on a shirt? What if a similar flag that looks almost exactly like the American flag is burned? Does that count too? These are court battles waiting to happen, and will probably end up with a more scatter brained set of rulings than our Free Exercise and Establishment Clause jurisprudence.

Another problem is the free speech issue. I think that free speech and expression are important parts of the foundation of this country. As I have said, I think flag burning is disgusting. That's also why I like the fact that it's legal. If you burn the American flag, you are sending a clear message to me about yourself. I will make my personal judgment about you accordingly. I would rather have that information (knowing who the flag burning types are) than not know. I believe that you have the freedom to burn the flag, and I also have the freedom to think that you are a scumbag for doing it.

MU Cerebellum has joined the Marquette blogosphere. I saw their ad in The Warrior (maybe I should get one of those...) and the link on Prof. McAdams' blog. Welcome to the dysfunctional family, ladies.

Libertarians need a place at the political table.

This is a great opinion piece by Ron Hart about the current position of us small "L" libertarians in the Republican Party. Hart is for pushing the party back to the 1994, Contract With America, small government party that it should be. I agree whole heartedly. We should, as Hart urges, reduce government regulation, spending, and taxes. There are huge problems in the GOP, but they are fixable. If it takes some losses in the midterm elections to let the leadership see that, then so be it.

Libertarianism is a weird thing. Ignoring the Libertarian Party (the big "L" libertarians), libertarianism itself is a philosophy. Basically, it advocates the right of individuals to be free to do whatever they wish with themselves and their property as long as they let others have the same liberty, by not initiating physical force, the threat of it, or fraud against others. As a philosophy, it has many interpretations. Take a look at these controversies. You can have two libertarians who disagree on everything from the death penalty, abortion, foreign intervention, immigration, gay rights, and a hundred other issues. Same philosophy, different results when applied. Weird, I know.

That being said, there are libertarians that ally themselves with the Libertarian Party (duh), the Republican Party, and the Democratic Party. They choose their alliance for many different reasons. There are many (a lot of them on Hit and Run) who are the "I'm more pure than you" libertarians. Basically, they vote for nobody and just bitch all day. Not surprisingly, they don't get much done. I reject their view. I think you need to work within a party to get things done. Otherwise, you're just some blowhard with a blog. I end up in the Republican camp because the resultant views of my applied libertarianism are close to most of their platform. Note that "most". Also, there are many Republicans that I can't stand (hi, Ted Stevens), but hell, I have family members that I don't like too. You just have to deal with it. I'm also in the Republican camp because there isn't a current major Democrat that I would trust with the Supreme Court.

Looking back at Hart's column, he makes a call for libertarian minded folk to stay in the Republican Party and push it in the proper direction. I can hear some of you sputtering now... "But, but what about domestic spying and civil liberties?!" A commenter on Hit and Run said the following about why those issues aren't enough to push right leaning libertarians out of the party. They have prioritized their issues...

My impression was that when it comes down to it, many see a bigger threat from taxes, public schools and any type of gun regulation than from illegal spying and expanded government police powers.

Also it seems that many would rather eat shit than vote for a nanny-state big spender democrat.

Pass the fork.

...by doing whatever he can to stamp out those pesky third parties. The bad news...

On February 1, congressional Democrats, led by Rep. Obey of Wisconsin, introduced a bill, H.R. 4694, that would end viable, third-party competition in races for the U.S. House of Representatives.

The bill, ironically named the "Let the People Decide Clean Campaign Act," would mandate public funds (taken from the U.S. Treasury) to candidates for the House of Representatives and forbid candidates from taking private funds such as contributions from individual donors.

The ambiguously-written bill provides funds for candidates of the "two major parties" but essentially scuttles any campaign efforts of third-party or independent candidates.

For third-party candidates to be eligible for the same funds that Republicans and Democrats would receive, they would have to obtain enough signatures to exceed 20% of votes cast in the last election within their district.

The catch under the proposed legislation is that third-party or independent candidates cannot pay petitioners to collect any signatures, making it impossible to fund their campaigns.

H.R. 4694 is yet another attempt by our politicians in office to shut down Libertarian Party candidates and other competitive third-party and independent campaigns.

"The Republican and Democratic parties exist to maintain power for their own benefit. The Libertarian Party exists to grasp power for the benefit of the nation," stated Shane Cory, chief of staff for the Libertarian Party. "American voters are waking up to this reality, and as they do, the two parties are trying everything within their power to shut us down."

I love the title of the bill, the "Let the People Decide Clean Campaign Act". I hate the term "Orwellian" and think it gets thrown around way too much, but it's apt here. Pretty pathetic, Obey.

Prof. Althouse has a post about a lecture and panel discussion at UW about the Second Amendment. The lecturer, Sanford Levinson, wrote an article called "The Embarrassing Second Amendment", which is why this talk is titled "Is the Second Amendment Still Embarrassing (and for Whom)?". The basic idea behind the article and its title is this...

Thus the title of this essay--The Embarrassing Second Amendment--for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU).

Levinson goes on to discuss how legal academia has done everything they can to ignore the Second Amendment altogether.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

There it is, in case you've blocked it out entirely and forgot the words.

One of the favored arguments of gun control advocates and Second Amendment haters is that the text only refers to state militias. That's the view that the ACLU likes to take. Here's what Levinson has to say...

...one might ask why the (p.645)Framers did not simply say something like "Congress shall have no power to prohibit state-organized and directed militias." Perhaps they in fact meant to do something else. Moreover, we might ask if ordinary readers of late 18th Century legal prose would have interpreted it as meaning something else.

The problem that I have with that view is that it disregards the remaining language. "...the right of the people to keep and bear Arms, shall not be infringed." The right itself resides with the people.

Who is "the Militia"? According to the debates at the Constitutional Convention, the history and laws in the states (and previously colonies), and the writings of commentators at the time, the Militia is, as Justice McReynolds reiterated, "...comprised [of] all males physically capable of acting in concert for the common defense." Yes, you are the Militia. Congratulations on your position.

The Founders discussed the right to bear arms greatly. In Federalist 46, James Madison stated that the Constitution preserves "the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms." Look at Jefferson's statements: "No freeman shall ever be debarred the use of arms." and "Let your gun therefore be your constant companion of your walks." Then there is Justice Joseph Story of the Supreme Court who said "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

I am a firm believer in the idea that a right is a right. A right is not a privilege. A right is inherent in every person; a privilege is something granted by a higher power (like a government). We the people have a right to free speech, a right to freely exercise our religion, a right to bear arms, etc. They are our rights. Neither the government nor another person can take those away from us. To do so would be tyranny.

There is a a legal doctrine known as incorporation. Through the Due Process Clause of the 14th Amendment, incorporation applies the Bill of Rights to the states. One would think that incorporation would apply the Second Amendment to the states. Unfortunately, no. The Supreme Court has been selectively and gradually incorporating rights. Someday, there will be a Second Amendment incorporation case before the Court, and someday there will be five votes to incorporate it. I have no idea what the results will be. I'm assuming that there will be many court challenges to state laws. Maybe this will finally force a frank discussion of what the Second Amendment truly means.

In his opinion in Silveira v Lockyer, Judge Kozinski said "It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us." The Second Amendment exists. Deal with it.

President Bush has the opportunity to nominate quite a few judges to various positions on the federal courts. You can scope out the vacancies here. The appeals courts are exceptionally important because of their nature as well as their role as a proving ground for Supreme Court nominees. A well staffed appellate bench gives future presidents an ample list to choose from when vacancies occur on the Court.

If I were advising the president, I would urge him to nominate the following people either now or before the end of his term: Paul Clement, Viet Dinh, Maureen Mahoney, Miguel Estrada, Ronald Rotunda, Eugene Volokh, Caleb Nelson, Raoul Cantero, and Christopher Cox. That's not an exhaustive list, just the people that came to mind at the moment. Of course, they might not want the job, but it's worth asking.

A week ago, I made this post concerning the possible retirement of Justice Stevens. Well, Wonkette has jumped on board the rumor train with a colorful quote from the Court's most senior member...

"I can't put up with this shit anymore!"

Gee, could you tell us how you really feel?

Wonkette makes the case for Stevens' imminent retirement, saying that this quote is from a credible source, that he's unhappy about Justice O'Connor's retirement, and that his wife may be in poor health. Wonkette argues the other side though, saying that Stevens has already hired his clerks for the next term and has said to his clerks that he has no plans to retire.

If the bow-tied one chooses to step down at the end of this term or even the next, expect a confirmation fight that puts the Alito one to shame.

EDIT: I don't understand this line...

Sources say he's fed up with being in a powerless liberal minority...

There has been nothing "powerless" about the liberal wing of the Court in the past decade. They have four solid votes and had been able to get a five vote majority by peeling off either O'Connor or Kennedy. If the Court's decisions have been reflective of an all powerful conservative majority, I think my definition of judicial conservative needs updating.

Thanks to Dan Filler at Concurring Opinions, I now know that walking while drunk is illegal in Alabama.

Alabama law provides that "a pedestrian who is under the influence of alcohol or any drug to a degree which renders himself a hazard shall not walk or be upon a highway." A highway, in turn, is "the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel."

As far as a quick glance at the Wis Stats tells me, we don't have a law like this. That's probably good too. The police could just set up checkpoints on Milwaukee St, Water St, Old World Third, and Wells near Marquette and hand out tickets left and right. This wouldn't bother me, since I never touch alcohol or go to bars.

If the Oyez podcasts aren't enough to fulfill your insatiable lust for hot Article III action, check this out from the University of Chicago Law School. Justice Breyer gave a lecture about judicial activism (I'll bite my tongue and withhold an editorial comment on this), and it's available for download.

I listened to McCreary and Roper tonight. They were pretty good. The only flaw with the podcast/audio system for these oral arguments is figuring out who is who. I know the voices of the Justices pretty well, but even I was getting hung up a few times. When C-SPAN has oral arguments on America and the Courts, they show a picture of the current speaker. I guess I've been spoiled by it.

Since I have an almost parasitic relationship with my iPod, I'm thrilled that more of this judicial material is available in mp3 format. I'll keep my eyes peeled for anything else and link it accordingly.

Prof. Althouse has linked to a collection of oral arguments on the Oyez website. I'm enough of a geek that I'm going to download a few of these when I get home. If anyone out there doesn't understand what the Court does exactly, this is a great opportunity to learn. Based on the cases themselves, I would recommend McCreary County v ACLU (Ten Commandments case), Roper v Simmons (execution of minors), or MGM Studios v Grokster Ltd. (file sharing). Most of the cases are fairly interesting, but those are the first ones I'm going to check out. The Court needs to start issuing these en masse.

My loyal readers should remember my award winning post A Fun Lunch Hour, concerning Florida strippers. This may come as a shock, but more arrests have been made in Pasco County. Here's the good news...

According to the Pasco County Sheriff's Office, the dancers were allegedly involved in a variety of criminal activities, including cocaine peddling, prostitution, lewdness, exposure of sexual organs, and the improper solicitation of alcohol sales.

Oh ladies, when will you learn?

The Smoking Gun has the mugshots, and they are quite a sight. The Pasco County Sheriff's Department seems to have a little trouble with spelling on some of the signs, but I'll let that slide.

3 is flipping off the camera.

23 is a dude. It's gotta be.

While reading some comments on Confirm Them, I was surprised to read one that said that Senator George Allen had said that he would appoint Judge Michael Luttig and Judge Janice Rogers Brown to the Supreme Court if he was president. I've been looking for confirmation of that statement, and so far the closest I've found is this...

MATTHEWS: What'‘s it about the Supreme Court? What's in the water that turns these conservatives into liberals?

ALLEN: I don'‘t know what it is in Washington, but it does happen. It's pointed out whether it is Souter, whether it's Kennedy, whether-—there are others. I, as governor would appoint people as judges-—this was for terms.

This goes back to Hamilton beating Jefferson on the idea of judges being appointed for life rather than terms. I have recommended to the president, J. Harvie Wilkison, Michael Luttig and Karen Williams from the Fourth Circuit, as well as I think, Janice Rogers Brown or Priscilla Owen would be fine as well.

It's not exactly what the commenter said, but it's close. It's a list. I think it's notable since Senator Allen is probably going to run for president in 2008. He seems to have a lot of support in the party too. He's obviously a little biased towards the 4th Circuit since he's from Virginia, but it is considered to be one of the most conservative courts in the country.

I guess what I've been wondering is this... is this smart? This isn't as cryptic as President Bush and his statement about appointing Justices in the mold of Scalia and Thomas (although I think that statement might be hearsay). But this also doesn't go as far as President Reagan promising in the campaign to appoint the first woman to the Court. That really boxed him in when Justice Stewart retired. He had to go looking all the way to the Arizona State Supreme Court to find Sandra Day O'Connor.

Allen is probably pretty safe with this list. The trio from the 4th Circuit are seasoned, respected judges with long, conservative careers. Judge Brown and Judge Owen were two of the judges who got confirmed in the Gang of 14 deal, so I'm not sure if he mentioned them in reference to that or if it has to do with their popularity with the base or if he honestly likes them or if this is a run on sentence.

It will be interesting to see if other candidates follow suit and make their own pledge on this issue. Will there be more Scalia and Thomas quotes, like the one attributed to President Bush? Will there be candidates who pledge to nominate judges is the mold of Roberts and Alito? Or will they take the route that Allen took and rattle off a list of names?

This matters to me because it determines my vote. Until the courts have less of a role in deciding issues of public policy (which will probably be never), I'm going to vote based on judges.

Via Volokh, The Technoptimist has a great post with more information on the depiction of Muhammad on the frieze in the Supreme Court building. There had been complaints about the image in the past, but Chief Justice Rehnquist refused to have it removed. As I previously posted, the tourist information on the frieze was clarified...

Rehnquist replied that the depiction of Muhammad "was intended only to recognize him, among many other lawgivers, as an important figure in the history of law; it [was] not intended as a form of idol worship," and that "[a]ltering the depiction of Mohammed would impair the artistic integrity of the whole." Rehnquist also dismissed the objection to the curved sword in the marble Muhammad's hand as reinforcing the stereotypical image of Muslims as intolerant conquerors: "I would point out that swords are used throughout the Court's architecture as a symbol of justice and that nearly a dozen swords appear in the courtroom friezes alone." Rehnquist said the description and literature, however, would be changed to identify Muhammad as a "Prophet of Islam," and not "Founder of Islam."

That frieze is just full of controversy. It's also home to a depiction of Moses carrying the Ten Commandments. And we know how much of an issue that can be in a government building.

Once again, a funeral has been turned into a moment of political opportunity. Two speakers at Coretta Scott King's memorial service used their time to take shots at President Bush. This is what Rev. Joseph Lowery had to say...

"She extended Martin's message against poverty, racism and war. She deplored the terror inflicted by our smart bombs on missions way afar. We know now that there were no weapons of mass destruction over there,"

Yeah, those horrible smart bombs. We should really go back to the days of carpet bombing.

Former President Jimmy Carter even got a few shots in...

"It was difficult for them then personally with the civil liberties of both husband and wife violated as they became the target of secret government wiretaps."

Carter may not remember this, but those were Democratic administrations who allowed the Kings' phones to be tapped.

You know, President Bush really infuriates me sometimes. I think he's wrong on immigration, he needs to control spending, he shouldn't have signed McCain-Feingold, and he's let the federal government grow too much. In spite of those grievances, I still support him because the alternative is so much worse. Using a funeral to take cheap political shots at Bush (who was sitting there for the whole thing) is just disgusting behavior. If you're willing to do something like that, then you have about as much class as a Bangkok hooker.

I missed C-SPAN's America and the Courts this weekend, but it's available online here. This action packed episode includes the swearing in ceremony of Justice Alito and interviews with 7th Circuit Court of Appeals Judge Frank Easterbrook and 9th Circuit Court of Appeals Judge Diarmuid O'Scannlain. The Alito part is just an enjoyable moment for those of us who are happy that he's on the Court. To me, the Easterbrook interview is the real interesting part of the program. He talks about how he uses his law clerks, the 7th Circuit itself, his nomination process, and joking a bit about potentially being on the Court. Judge Easterbrook is a dark horse candidate for the next Supreme Court vacancy. He's got an amazing resume, an extensive body of academic work, and two decades on the federal bench. He also suffers from white male syndrome, so that could make him an unlikely nominee. I stopped watching halfway through the O'Scannlain interview, because I wanted to watch 24. I might finish it later.

EDIT: Did anyone else catch the John McCain cameo on 24 tonight? Proof.

Health care reform is the topic of the week over at the Becker-Posner blog. Becker's post is here, and Posner's is here. It's a pretty interesting discussion of the issue and the comments seem to be off to a good start. Their blog is one of the few that still has interesting comments that don't devolve into a name calling flame war. Even Volokh's comments have gone way downhill recently.