Eminent Domain

Yesterday's Garcetti decision from the Supreme Court is not as big a deal as many people think, according to one California law professor.

"It does not prohibit states or local governments from enacting whistle-blowing statutes like California has done," McGeorge School of Law professor Clark Kelso said. "The opinion is going to have no substantial impact on the rights of state employees who have all sorts of protections under our whistle-blower statutes."

The article, which I spotted linked on How Appealing, states that California has its own whistleblower statute, and there is little stopping other legislatures from enacting strong protections also. Aside from that, Professor Kelso thinks that the decision itself is nothing to get bent out of shape about...

He said the "precise holding" of the decision's author, Justice Anthony M. Kennedy, applies only to a government worker "speaking in the course of his or her employment." Public workers speaking out as private citizens can still spotlight wrongdoing that they believe is taking place within their agencies, Kelso said.

"If you want to do it, do it in a slightly different way than the routine memo, which will look to employers as an internal communication," Kelso said.

Some of the comments about the case that I've read have claimed that it's too hard for courts to say if someone is acting as a worker in the course of their employment or as a private citizen. I don't really buy that. Sure, it may be a little tough sometimes, but I think that an internal office memo is pretty easy to label as a "course of employment" thing.

I had a good time reading one of the left wing message boards that I frequent. Oh, man. They were just in hysterics over the line up in this decision. "Hurr... Stupid Bush and his Roberts-Alito stooges!!1" and such. Even though I agree with Professor Kelso and think this case isn't that big of a deal, it was still funny reading those comments.

This article, linked by Prof. Althouse, continues the discussion of why Judge J. Michael Luttig really left the federal bench. There isn't much new here, but it sums up the recent discussions nicely. Prof. Althouse is quoted in the article and makes an interesting point...

But all the speculation may be totally off-base, Althouse says. "I’m inclined to think that if he were resigning over a particular issue, he could have chosen to raise it, whether it’s salaries or how the Bush administration has handled detention cases," she says. "People are speculating, and that may say more about us than him."

Yeah, it says that we (me included) need to get hobbies that don't center on federal judges. It's a little weird.

The Supreme Court denied to hear an appeal in a case concerning Boy Scout recruitment at public schools. Prof. McAdams has picked up my Court-news-slack with a post about the denial...

This left standing a lower court decision allowing the Scouts the same access that other groups have. According to the Associated Press:

A Michigan appeals court said that Mount Pleasant schools allowed other organizations to use class facilities, including a hospital group, an Indian tribe, a Baptist church, and a hockey association.

Thus we have the continuation of a fairly consistent pattern of courts upholding the principle of neutrality in dealing with religious groups.

I'm very in favor of a neutral approach in these cases. Either the schools should be open to anyone to use or no one to use.

Just for the record, I was never a Scout. I'm just not a neckerchief fan.

I also love it in the evening after dinner, which is when I read it. Being stuck in an office all day is really cramping my posting style.

Anyway, the Supreme Court decided an interesting First Amendment case today by a tight 5-4 decision. The case, Garcetti v Ceballos, had to be reargued after Justice O'Connor left the Court earlier this year. A little deductive reasoning (or subtraction) will tell you that her departure made the case a 4-4 decision. Justice Alito cast the deciding vote in this case, siding with Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.

The decision limits the protections that government employees have when they "blow the whistle" on perceived knavery at the job. The AP has some background on the case itself...

The ruling overturned an appeals court decision that said Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff's deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

Writing for the majority, Justice Kennedy said that Ceballos' bosses could punish him if they thought the memo was inflammatory...

"Proper application of our precedents leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities."

But the speech door isn't totally shut...

Kennedy said that government workers "retain the prospect of constitutional protection for their contributions to the civic discourse." They do not, Kennedy said, have "a right to perform their jobs however they see fit."

The AP thinks that there will be big push for Congress to enact more protections for federal workers. That could lead to an interesting election year fight.

It seems clear, even to the AP, that Justice David Souter's tome-like dissent was the original, pre-Alito majority opinion. Justice Kennedy gets a lot of needling from people, including me, about his wishy-washy approach to Constitutional law. However, he is a conservative vote on many issues. I think that the current Court will line up in this 5-4 split often, but not always (not by a long shot...).

Marty Lederman at SCOTUS has some interesting analysis of the case here.

EDIT: The more I think about this case, the more interesting it is. Is this even really a "whistleblower" case? It (the drafting of the memo) seems more like an action and less like speech. Interesting. I'm going to bat this around in my head for a while and try to find some more comments about it.

What is tomorrow? Kelo Crunch Time. As stated in the link, tomorrow is the deadline set by the New London City Council and the New London Development Corporation for the holdouts to either accept their "offer"” (moving the houses to a different parcel and paying rent for the rest of their lives) or face eviction and the assessment of $946,000 in back rents, taxes, and fees. I had no idea that the deadline was so soon. Many thanks to Volokh for the heads up.

When we discussed this in Land Use last semester, my professor was confused about the backlash of the Kelo case. Honestly, he's got a point. There is about a hundred years of caselaw that gives local governments (via the police power from the state) free reign to do what they deem to be for the health, welfare, and safety of the public. That includes using eminent domain to take title of property and give it to a private party. Well in my opinion, lots of precedent doesn't make it right. I guess that the best part about Kelo is that it did spark legislative reforms at the state level, including in Wisconsin. It's got to suck to lose a home that way though.

Just how deep is the diversity pool for Supreme Court nominees? Depending on what you are looking for, it might be pretty shallow...

Some names have been on the "list" for two or three Republican administrations: for example, Edith Jones and Emilio M. Garza of the 5th U.S. Circuit Court of Appeals and U.S. District Judge Ricardo H. Hinojosa in Texas.

Others have emerged more recently by virtue of their connection to the president himself, either having worked in his administration, for example, former Deputy Attorney General Larry Thompson, now general counsel at PepsiCo Inc., or having been appointed by him to the bench, such as 9th Circuit Judge Consuelo Callahan.

The article goes on to state that this list lacks "great thinkers". It's true. There aren't many Borks in skirts (nice mental image there). There are many more white male legal scholars with conservative judicial philosophies. The real minds in the field happen to be white guys. That's just the way things are right now.

I'm not sure how big of a problem that is. It really depends on how big of a problem that you let it become. If you are dead set to appoint a minority to the Court simply for the sake of appointing a minority, well then you just made it a big deal. If you are going to appoint the best candidate regardless of skin color or chromosome combo, then it's less of a deal. Of course, you have to be strong enough to stand up to the diversity gurus who will flog you for your non-PC choice.

I don't really know where the president fits in here. The track record is kind of helpful, but far from a definitive statement about future intentions. He put two white males onto the Court. He tried to appoint a female, but we all know how that ended. A lot of people think that the next Bush pick has to be a woman. I certainly understand that point of view. "It's the politics of it all." That attitude makes diversity a big deal, and I hope thinking like that is avoided.

You would think that Memorial Day weekend would be slow for legal news... not if you're over at Confirm Them. This post and the comments are blowing up. The rumors have been gathering for a while about a possible Supreme Court vacancy at the end of the term. If Bill Kristol (who called the O'Connor retirement) is dropping hints, who knows what's going to happen? The two vacancy rumor is really catching steam. It would be a shock to the legal community, that's for sure. It's not unheard of though. Nixon had two simultaneous appointments during the 70's.

A Stevens-Souter retirement would be incredible. Unfortunately I, like many commenters on Confirm Them, think that President Bush may screw that up royally. The Miers nomination is still fresh in many minds. It's just a creepy thought. There is such a long list of people who could be appointed that are so much more worthy of the position. The bench is deep, deeper than it has been in a long time. Even a single vacancy can remake the Court in ways that will have effects for decades.

If there is a vacancy or two and Bush wants to save his second term, he can do it. Strong judicial nominations to the Court will bring his base back to life. Based on all of these rumors, this could be a very interesting Summer. Until there is definitive news, I will be waiting with baited breath.

EDIT: Pick your favorites:

McConnell
Estrada
Cantero
Easterbrook
Williams
Sykes
Callahan
Mahoney

“SOMEWHERE IN A SURREAL SUPERTERRESTRIAL TWILIGHT”

JRB
Robert P. Young

“I WONDER WHY I HAVE NOT HEARD OF MORE”

Paul Clement

The bolds get my immediate "thumbs up". I really want to believe the Miguel Estrada hype, but I want more than rumors, nicknames, and feelings from collegues. I'd love to see his SG's office memos (and I'm not even a Senate Democrat)...

If the Frank Easterbrook rumors are true... wow. I would pay to watch him take on the Senate Judiciary Committee. He is not going to take Joe Biden's crap for half an hour.

I have to apologize. I haven't really been posting much. I just started my internship this week, so I'm still trying to get my schedule and routine down. It's a bit of an adjustment. I'm going to try to manage my time a little better and keep my posting at a steady pace. I expect a few interesting decisions from the Supreme Court in the very near future, including a Clean Water Act case that will be very enlightening (especially on the Chief Justice's views). Don't give up on me yet. I'll get my rhythm down soon enough.

Duke Law Grad, website owner, and author Tucker Max wins a lawsuit. The case basically says that a message board owner can't be held liable for posts made by people on the board under the Communications Decency Act. Take a look. I love the opening line...

Tucker Max describes himself as an aspiring celebrity "drunk" and "asshole" who uses his website, www.tuckermax.com, to "share [his] adventures with the world."

Law can be fun.

Tucker has a post on his own blog about the case here. Tucker tries to decide what part of the decision he likes best...

Here we do so by protecting the coarse conversation that, it appears, never ends on tuckermax.com"

Well, that or the part where a FEDERAL JUDGE quotes someone from my board using the phrase, "getting fisted by an angry gorilla" and "mold your face to what you think you would look like if a leper were about to take a shit in your mouth." Best. Legal. Decision. Ever.

The First Amendment is once again safe.

I'm an admitted fan of Solicitor General Paul Clement (as seen in this recent post). I've listened to him in oral argument before the Supreme Court, I've seen him speak in person, and I've held a door open for him. Aurel over at Confirm Them has a well written post that makes the case for Paul Clement's nomination to a federal appeals court. Clement is only 40 but could seriously be a nominee for the Court now (barring those pesky identity politics). Take a look at the post and learn about your nation's excellent Solicitor General.

Third Circuit Court of Appeals Judge Edward Becker's funeral was yesterday. There was quite a group in attendance...

His funeral drew three U.S. Supreme Court justices - Samuel A. Alito Jr., David H. Souter and Antonin Scalia - along with Homeland Security Secretary Michael Chertoff, U.S. Sen. Arlen Specter (R., Pa.), Gov. Rendell, and row after row of judges from the federal courthouse, where Becker was a judge on the U.S. Court of Appeals for the Third Circuit for 25 years.

Justice Alito in particular had some nice remarks...

...as Alito put it, the law was a "labor of love" for Becker, who died of prostate cancer Friday at the age of 73.

"I can't tell you how much he helped me, particularly during the last few months of his life," said Alito, who was a Third Circuit judge before he was named to the U.S. Supreme Court in November.

Judge Becker was a strong supporter of then-Judge Alito during his Supreme Court confirmation hearings. He gave forceful testimony concerning the weak Vanguard conflict of interest issue that many of the Senate Democrats kept harping on endlessly.

It also looks like Judge Becker will get part of a street named after him...

Becker also worked to brush back what many viewed as excessive security measures near Independence Hall after the 9/11 terrorist attacks. And for his effort, the stretch of Chestnut Street between Fifth and Sixth Streets will now be named Edward R. Becker Way.

He was an excellent judge and will definitely be missed.

The Supreme Court issued its eighth straight unanimous opinion today in Brigham City v. Stuart. I'll let the AP sum it up because I'm tired...

Justices said that a "melee" that Brigham City, Utah, police officers saw through a window early one morning in 2000 justified rushing in without knocking first.

"The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," Chief Justice John Roberts wrote.

Come on, Court. Give me something here... a blistering dissent, a heated 5-4 decision, something more than a Stevens concurrence. I demand conflict to be entertained. There have been a few close cases so far this term, but mostly things have been buzzing along merrily so far. I'm expecting some more close decisions in the coming weeks. I need my Scalia dissent fix.

I'd like to extend a formal welcome to the blog world to my friend Erick. Erick recently joined the popular Madison conservative (no, that's not an oxymoron) blog Letters in Bottles. He is part of the "new class" at LIB, which added Erick and two other bloggers to site. It's cool to see that individual blogs are taking on lives of their own, being passed down other capable hands.

Has George W. Bush been able to change the direction of the federal courts through his appointments? This article says yes. Take a look at these numbers...

By their count, Bush's judges issued liberal rulings or opinions in 33 percent of their nearly 800 decisions in the study. That was predictably lower than the figures for judges named by Democratic presidents Lyndon B. Johnson, Jimmy Carter or Bill Clinton. But it was also lower than the scores for judges named by Richard M. Nixon (38 percent), Ronald Reagan (36 percent) or the elder George Bush (37 percent).

"There's been a quiet, silent revolution going on," Carp said in an interview. "If you're a conservative, you'’re going to say, 'Thank God.' If you're a liberal, you're going to put your hands over your head and say it's a nightmare."

It's still early to tell if these numbers will hold for the Bush judges. If they do hold, it will be quite an achievement.

The article goes on to examine the distinctions between "politically conservative" and "judicially conservative", as well as discussing some of the legislation that Bush-appointed judges have been hostile towards. It closes with this...

With two Bush-appointed justices, the Supreme Court may be shifting to the right - giving lower-court judges that much more room to move in the same direction. "If the Supreme Court starts to change," Carp says, "I think you've got a lot of district court judges who are chomping at the bit."

It remains to be seen how much of an effect that Roberts and Alito will have on the Court. There is still no solid five-vote conservative bloc, so I doubt there will be many earth shaking opinions. Until that fifth vote gets on the Court, I expect a lot of issues decided in the Roberts-brand "narrow focus". Maybe that will continue to be Roberts' style for the next 30 years. However, that may just be a way of biding time until another retirement comes. Then the fun really begins...

A New York Daily News column relates a few remarks recently made by Justice Clarence Thomas. Thomas, a conservative, is worried about the President...

"We have to pray for your brother. He's in real trouble," Thomas told a wide-eyed Koch [the President's sister], whose older brother is, indeed, suffering from near-catastrophic public-opinion ratings.

Thomas is a big believer in prayer. It was one of the few things that kept him going during his very difficult confirmation hearings. Speaking of those hearings, columnist Lloyd Grove sees something related in these remarks...

"That's right," Thomas agreed. "That's what you should say when somebody does something to you: Life is lo-o-ong. Ha-ha."

Sounds like Thomas is still trying to get over that unpleasant piece of business from long ago.

Life is long, and Justice Thomas is 57 years old. The people who tried to take Thomas down in the hearings, and there are people who still try to do that now (like Harry Reid "I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice."). Thomas isn't leaving anytime soon, and he will continue to enjoy sticking it to his most annoying critics.

Chief Justice John Roberts gave the commencement address at Georgetown University Law Center. Law schools have a rule about making everyone wear the most garish clothing possible for commencement. Thanks to How Appealing, here is a link to video of his remarks. The Chief starts speaking around the 19 minute mark.

I just started watching this week's episode of American and the Courts. I was twenty minutes late because there was important grilling of dead animals that needed to be attended to first. This week's episode is a conversation with Solicitor General Paul Clement, or as I like to call him, Shorewood Wisconsin's own Paul Clement. Clement is an incredible attorney. He has to be, since he is the governments top lawyer. Clement has a resume that is second to none. He's got John Roberts-like credentials. I would not be surprised if he got named to a federal appeals court, probably the DC Circuit, before Bush leaves office. I would also not be surprised if Clement ended up on the Supreme Court someday. The replay on the C-SPAN website is well worth watching.

EDIT: C-SPAN is having fun with last names. The second part of this episode is a speech by Judge Edith Clement of the Fifth Circuit Court of Appeals. The most pathetic part of my day is that the first thought I had when she approached the podium was "Oh, she changed her hairstyle". I need to find a hobby that doesn't include the federal judiciary. By the way, Paul and Edith are not related.

Justices Antonin Scalia and Samuel Alito were in attendance at the National Italian American Foundation luncheon.

I know that just about every law blog has a post about this, but I feel compelled to join the chorus honoring Judge Edward Becker. Judge Becker died today at 73. One of the all time great Judge Becker quotes comes from a case about a merchant sailor's right to sue for lost wages when he was drydocked after arguing with his captain.

So while trial counsel are doubtless in fine fettle, with many fine fish in their trial kettle, we urge them not to test their mettle, because for the small sum involved, it makes more sense to settle.

He played a mean piano too.

I had a nice long laugh at this article when I read it this morning. Senators Specter and Feingold got pissy with each other yesterday...

Feingold announced he was walking out of the committee session, saying he objected to the meeting's location in a small room off the Senate floor with limited public access.

That brought an angry rebuke from committee Chairman Specter (R-Pa.), who shouted at Feingold, as the Wisconsin Democrat described it later.

The room was apparently too small for Feingold's ego. Portions of it were sticking out the door and into the hallway. Specter's ego was at its most bloated too...

"You are no more a protector of the Constitution than am I. I don't take second place to you on that subject or frankly on any subject. This is an open meeting. We have a great deal of business to conduct, and this is an appropriate forum. We have a quorum here, and if you want to leave, good riddance."

Feingold responded: "I enjoyed your lecture, too. See ya, Mr. Chairman."

These are our leaders, folks. This is the best we can do as a nation. The Senate is full of these self-important, arrogant gas bags who are more than willing to get into "I'm the protector of the Constitution" pissing matches. I am much more comfortable with the Constitution's safety when Arlen Specter's and Russ Feingold's grubby little hands are nowhere near it.

I recently found this conversation between Robert Bork and PJ O'Rourke, facilitated by the American Enterprise Institute. In case you don't know these two, they occupy a lot of space on my book shelf. Robert Bork was a judge, Supreme Court nominee, and continues to write about Constitutional law. PJ O'Rourke is a humorist and political commentator. They discuss mostly the 60's and that decade's effect on modern culture and politics. The introduction notes that these two come from fairly opposite ends of the conservative political spectrum. O'Rourke is more libertarian while Bork is more traditionalist. The discussion is fairly interesting, highlighting the similarities and differences in their viewpoints.

Here's one of my favorite parts. The AEI editor is throwing out names to see what the guys think of these people...

TAE: Bill Clinton?

BORK: I have a hard time discussing Clinton without getting a nasty edge on, because I really despise the man, both in his private life and his public life.

TAE: What do you dislike the most?

BORK: It's hard to say. He's world class in all areas. He's the hedonistic side of the '60s. His wife is the ideological side of the '60s. She looks to politics as a way of finding meaning in life, which is not a very safe kind of a person to be.

O'ROURKE: It's easier to forgive her than him. In the first place, she'’s been married to him for a long time. That in itself is punishment enough.

I did a review of Hillary's It Takes a Village, and I actually read that whole book pretty carefully. I felt I was in the presence of a very silly woman, somebody who probably did very well in school because she always did exactly what the assignment was. I'm sure she's good at memorizing things.

BORK: I wish she'd stop talking about how her unpopularity is due to the fact that Americans are not ready for a strong woman.

O'ROURKE: Nonsense. We all had mothers, just for starters. America is not ready for a strong woman who's wrong about everything.

Bork actually taught the Clintons while they were at Yale Law School. He doesn't remember them much, especially because Bill's attendance record was less than stellar.

Aside from making fun of the Clintons (which is always a worthwhile endeavor), the guys actually talk about more weightier issues, including this view of law...

TAE: What if, let's say, citizens in Utah want to restrict certain individual activities, would libertarians say no, you can't do that?

O'ROURKE: Say, for instance, that Utah wanted to pass laws against public expression of homosexual affection or selling Coca-Cola. I'm basically in favor of allowing local areas to pass the laws that they think are good and just as long as those laws do not clearly violate the Constitution. They may be very stupid laws and if they are, the locality that passes them will feel the effect. They lose business, lose quality of life, crime increases, and so on, because of the silly laws that they'’ve passed.

BORK: Even if they don't feel the effect, that's a great advantage of federalism. Unlike the national government, you can get away from an oppressive local government. In Salt Lake City, I've had a lot of fun trying to get a martini. The last time I was there they announced they were not allowed to mix it, but they brought the ice, the vermouth, the gin, and everything else over to the table. I had to make my own. They do pass silly laws. It's their right. I didn't feel oppressed.

I've tended to agree with this point of view, which I think is at the core of Justice Thomas' dissent in Lawrence v Texas. It's not unconstitutional to have a stupid law. I think the alcohol laws that Bork describes are stupid. I think the law in Lawrence was stupid. But that doesn't mean that those laws are unconstitutional. That is a different and, in my view, a much more narrow analysis.

It's an interesting conversation. O'Rourke is probably the one human being who I agree with on every issue. That's incredibly rare for me, because I tend to find something about everyone else's point of view that I disagree with. I highly recommend Parliament of Whores and All the Trouble in the World. I'm usually in agreement with Bork, except on some of the moral issues. I'm not what you would call a social conservative. However, Bork's level of insight is undeniable, and The Tempting of America should be required reading. For a little Summer reading, these two guys are well worth your time.

It appears that Michael Luttig has not been pleased with some of the press coverage surrounding his recent retirement. This Law.com article details the former judge's anger...

...he called Attorney General Alberto Gonzales to make it abundantly clear that his on-the-bench objections to the Justice Department's handling of the Jose Padilla case played no role in his resignation.

"The Padilla case had nothing whatsoever to do with my decision to leave the court -- nothing at all," Luttig told Legal Times on May 12.

The Wall Street Journal article didn't explicitly say that he retired because of the case, but it is reasonable to draw that conclusion from reading it. I think it's good that Luttig did his best to clear the air and try to mend some bridges with the White House. Regardless of no longer being a sitting judge, I think he would be a great Supreme Court Justice in a few years.

Via Boots and Sabers, the Wisconsin State Supreme Court will hand down the decision in State v Scott K. Fisher. Here are the facts...

Scott Fisher owned and operated the Cozy Corner Tavern in Black River Falls. At bar time, he would transport the night'’s receipts -– a substantial amount of cash -– to the bank or to his home. He testified that this required travel through a high-crime neighborhood.

That Fisher packed a loaded pistol in the center console of his truck came to light after the truck was stolen and he notified police that the pistol was in it. Soon after the theft, the truck thief was killed in a knife fight and the truck and loaded pistol were returned to Fisher. After Fisher had a subsequent encounter with a law enforcement officer and disclosed that he still had the loaded gun in his truck, he was charged with carrying a concealed weapon.

I love how the car thief was later killed in a knife fight. He sounded like a wonderful human being...

You can read a more detailed description of the case at Boots and Sabers or on page 10 here. Fisher won at the circuit level, but we'll have to wait and see what the WISC has to say. Owen points out the conflict between our amended Constitution and Doyle's consistent veto of any new concealed carry legislation. With that stalemate in place (hopefully only until November), the WISC gets to craft the limits of the Constitutional protections for gun carriers. I will try to drag myself out of bed early enough to read the decision as soon as it's posted.

EDIT: Fisher loses.

The essence of the dissent...

It is undisputed that the constitutional amendment's broad declaration of the right to keep and bear arms may be reasonably limited by such police power. Yet, in light of our constitutional amendment which grants Wisconsin citizens the right to bear arms "for security, defense, hunting, recreation or any other lawful purpose," a statutory prohibition on carrying concealed weapons at all times, under all circumstances, the sole exception being for peace officers, is not a reasonable exercise of the state's police powers.

The case is here.

Antics in Southeastern Wisconsin have once again placed us on the main page of the Drudge Report. This time, it is the Port Washington high school sexual orientation survey. Keep shooting for the stars, everyone.

Eugene Volokh has posted the results of the academic misconduct investigation of Ward Churchill. The results are as follows...

Two members of the Committee conclude and recommend that Professor Churchill should not be dismissed. They reach this conclusion because they do not think his conduct so serious as to satisfy the criteria for revocation of tenure and dismissal set forth in section 5.C.1 of the Law of the Regents, because they are troubled by the circumstances under which these allegations have been made, and because they believe that his dismissal would have an adverse effect on other scholars' ability to conduct their research with due freedom. These two members agree and recommend that the most appropriate sanction, following any required additional procedures as specified by the University's rules, is a suspension from University employment without pay for a term of two years.

Three members of the Committee believe that Professor Churchill’s research misconduct is so serious that it satisfies the criteria for revocation of tenure and dismissal specified in section 5.C.1 of the Laws of the Regents, and hence that revocation of tenure and dismissal, after completion of all appropriate procedures, is not an improper sanction. One of these members believes and reccomends that dismissal is the most appropriate sanction; the other two believe and recommend that the most appropriate sanction is suspension from University employment without pay for a term of five years....

One of the commenters in the Volokh post thought that Churchill's celebrity was a creation of right wing media types, like O'Reilly and Limbaugh. I disagree. I've been exposed to Churchill's "work" for a long time, even before the whole 9/11 controversy. I had two professors at UWM who taught Churchill's material as part of the class. I should've asked for refunds, considering that these classes weren't Plagarism 101 or Intro to Spotting BS.

I think that everyone has some sort of crush on Chief Justice John Roberts. Via the SCOTUS blog, this article from Bloomberg heaps praise on the Chief and his first term. Here's some praise from the Right...

"He sure looks like he was born to do it," said Theodore Olson, a former U.S. solicitor general and a partner at Gibson, Dunn & Crutcher in Washington. "He does it with a certain genuine comfort in that job, which is quite remarkable."

And some from the Left...

"There's a wonderful air of normality about the chief justice as he goes about his business," [Walter] Dellinger [former acting solicitor general] said.

And some whining from the Left...

"He can be very, very aggressive at times," said Elliot Mincberg, legal director of People For the American Way, a Washington advocacy group that opposed Roberts's confirmation. "How that style works out and how that will affect his fellow justices really remains to be seen."

Everyone but PFAW seems to like Roberts on some level. I am pleasantly surprised at what a tough questioner Roberts is during oral argument. He hasn't been biting his tongue. The article has this example...

In a voting rights case in March, he peppered a lawyer for a Mexican-American group with 16 questions in 20 minutes, repeatedly -- and unsuccessfully -- asking her to specify the percentage of Hispanic voters she would find acceptable in a congressional district in Texas.

I think his experience as a Supreme Court litigator has really sharpened his skills in this aspect. He knows game well.

Ted Olson thinks that Roberts' style is making a difference in the cases themselves...

Of the 38 cases resolved so far by signed opinion, 25 came without dissent. Olson speculates Roberts might be letting the justices work through their disagreements at their weekly conferences, which under Rehnquist had become truncated affairs.

"Maybe people are getting things off their chest at conference, and that's producing more unanimous decisions," Olson said.

That may be the case, but it's hard to verify unless one of the Justices actually said so. It seems like there are more unanimous decisions, but there are still many more to go. We'll have to crunch the numbers when the term is over and see if there was actually some effect.

Professor Bainbridge has this proposal from 7th Circuit Court of Appeals Judge Richard Posner...

The U.K.'s domestic intelligence agency, MI5, works closely with Scotland Yard, Britain's counterpart to the FBI. But it is not part of Scotland Yard.

The British understand that a criminal-investigation culture and an intelligence culture don't mix. A crime occurs at a definite time and place, enabling a focused investigation likely to culminate in an arrest and conviction. Intelligence seeks to identify enemies and their plans before any crime occurs. It searches for terrorist sleeper cells in the U.S. with no assurance of finding any. Hunting needles in a haystack is uncongenial work for FBI special agents. And so at the same time that the attorney general was testifying before Congress that the National Security Agency's intercepting some communications of U.S. citizens is essential to national security, leaks from inside the FBI revealed that special agents are disgruntled at having to chase down the leads furnished to them by NSA. FBI special agents--the bureau's only operations officers--want to make arrests, and so they zero in on animal-rights terrorists and ecoterrorists--people known to be committing crimes and therefore relatively easy to nail. These people are criminals and should be prosecuted, but as they do not endanger national security, prosecuting them should not be an intelligence priority.

Bainbridge comments, "One advantage of such an agency would be the fresh start - it would, presumably, be unencumbered by the predelictions and biases of the FBI and CIA."

I don't know what to make of this. The FBI and CIA have systemic problems, and Posner points out some of the flaws in our current system. Something has to be done, and I don't know if anything short of firing half the people in both agencies will do it. But would this just be another inefficient federal bureaucracy? I'm skeptical of another three-character agency added to a currently endless list. I'm curious to see what else Richard "007" Posner has to say about this. I'm not exactly sure where Prof. Bainbridge got the quote, though.

EDIT: This is part of Posner's piece in the Wall Street Journal. He also has yet another book coming out. This guy just sweats books.

An op-ed in the Harvard Crimson calls for a Constitutional Amendment defining the right of privacy. This isn't a new idea. It pops up every so often. The op-ed points out that Justice Scalia made this point recently...

When he spoke at the Institute of Politics last year, he asserted his judicial principle: if it isn't in the Constitution, it isn'’t constitutional; if we want it in the Constitution, let's add it. I agree. Let's amend the Constitution to include the right to privacy.

Here's more from the op-ed...

Nearly every American agrees that there are certain spheres where the government does not belong, and that we have a right to be free from government intrusion in those areas - it's a part of the American ethos. The Constitution hints at it, as the justices recognized in Griswold, but doesn'’t flat-out say it.

I think that an amendment would be a good idea, but that hinges on the language, of course. I may end up hating the language and thinking the amendment itself is horrible. But I have more faith in an amendment with specific language than some screwy penumbra of privacy that Justice Douglas pulled out of wherever back in Griswold. It's not perfect, but it would at least be a marginal improvement.

This was part of his speech at Liberty University (gag), via Byron York at the Corner...

When I was a young man, I was quite infatuated with self-expression, and rightly so because, if memory conveniently serves, I was so much more eloquent, well-informed, and wiser than anyone else I knew. It seemed I understood the world and the purpose of life so much more profoundly than most people. I believed that to be especially true with many of my elders, people whose only accomplishment, as far as I could tell, was that they had been born before me, and, consequently, had suffered some number of years deprived of my insights. I had opinions on everything, and I was always right. I loved to argue, and I could become understandably belligerent with people who lacked the grace and intelligence to agree with me. With my superior qualities so obvious, it was an intolerable hardship to have to suffer fools gladly. So I rarely did. All their resistance to my brilliantly conceived and cogently argued views proved was that they possessed an inferior intellect and a weaker character than God had blessed me with, and I felt it was my clear duty to so inform them. It's a pity that there wasn'’t a blogosphere then. I would have felt very much at home in the medium.

Not much has changed, because McCain still thinks that he is "so much more eloquent, well-informed, and wiser than anyone else". He gets to cross out the First Amendment because he and Russ Feingold think it's a good idea. He's right, dammit. His policy judgment should scrap important guarantees of political expression. And anyone who disagrees with him is just an arrogant, blowhard asshole with an internet connection. McCain just can't stand criticism.

The busy Supreme Court refused to stop a lesbian from seeking parental rights to a child that she helped raised in the case Carvin v Britain. The Washington state court said that she could proceed with her attempt to gain legally recognized ties to the child. The AP describes the background as follows...

Carvin and Britain had lived together for five years before they decided to become parents. Britain was artificially inseminated and gave birth in 1995 to the daughter, known as L.B. in court papers. The girl called Carvin "Mama" and Britain "Mommy."

The couple broke up in 2001 and the following year, when the girl was 7, Carvin was barred from seeing the girl. After Carvin went to court, Britain married the sperm donor.

I'm not surprised that the Court did not want to get involved in this case. Family law in general is just a huge mess. Add the gay rights issue into the picture and this case gets even messier. I agree that these issues are better resolved at the state level. The Court was right to punt on this one. Let Washington state deal with it.

The Supreme Court, feeling the heat of their looming deadline, delivered four opinions today. All four opinions were unanimous with a handful of concurrences. Two of the opinions, DaimlerChrysler v Cuno and Sereboff v Mid Atlantic Medical Services were written by Chief Justice Roberts. This gives us a few more opportunities to check out his work.

Of the two, I think that DaimlerChrysler is easily the more interesting case. Prof. Althouse summarizes the history in the following way...

It's hard being a plaintiff who:

1. files a case in state court,

2. has the defendant remove the case to federal court,

3. moves to remand the case on the ground that you don't seem to meet the requirements for standing in federal court,

4. loses that motion,

5. litigates the case in federal court and ultimately wins in the Court of Appeals,

6. has the Supreme Court grant certiorari and now must argue that you do have standing in order to preserve the victory, and

7. loses when the Supreme Court decides that you don't have standing.

This is a standing case. Standing basically means that you, you person filing the lawsuit, must be an injured party in the dispute. For example, if A hits B with his car, I can't sue A. I have no claim. It wasn't my car; I had no injury. Standing was used to boot Michael Newdow's Pledge of Allegiance case out of the Court a few years ago.

The case itself concerned the city of Toledo giving a 10 year tax ememption from property taxes (as well as additional investment tax credits) to get a billion dollar Jeep assembly plant to build in the area. The Chief said the following...

A taxpayer-plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him... To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment.

Courts are very worried about lawsuits that second guess every policy decision made by elected legislatures. This would cause most legislatures' activities to come to a grinding halt. Paralysis is not looked at favorably.

The plaintiffs sued, claiming that their status as taxpayers in Ohio was enough to bring a claim. They claimed that their local and state tax burdens were increased by the tax breaks. Federal jurisdiction expert that she is, Prof. Althouse sums up the Court's response nicely...

The Court held unanimously that state tax breaks to business don't injure state taxpayers in a sufficiently "concrete and particularized" way to create a "case or controversy," as required by Article III of the Constitution. Standing in state court, where the plaintiffs originally filed, is governed by state law. It remains unanswered whether the states violate the Commerce Clause when they offer tax breaks to lure businesses into the state.

Justice Ginsburg's concurring opinion showed her skepticism at taxpayer lawsuits that claim a generalized grievance. It's tough suing the government.

The Court also okayed hearing four cases (known as "granting cert") in the next term. The Orders List is here. The most interesting case here is Environmental Defense v Duke Energy Corp. This is a Fourth Circuit Court of Appeals case about the EPA's definition of emissions increases under the Prevention of Significant Deterioration program. I, and the rest of the hippies that I hang out with, will be watching this case closely.

Say what you will about those French Canadians, they brew a mean beverage. Unibroue's beers are easily identifiable on the shelf because of their cool artwork. The Trois Pistoles label looks like this...It may look like beer for Dungeons & Dragons fans, but it'll really kick your ass. Trois Pistoles is a dark ale, refermented in the bottle to deliver a body-warming 9% ABV. Have a full stomach before delving into a few of these. It looks sort of purplish-black. It looks like a wine, and it smells like a wine. The aroma is dominated by grape and prune scents. You taste the high ABV up front, but it is joined by a blend of flavors. You can taste the grape flavors that you smelled, as well as plum, cherry, and spice flavors. It tastes like half of a fruit stand exploded in your mouth. The surprising part is that I never felt that it was overpowering in any regard. Everything blends so well that it is incredibly drinkable. This beer will age on the shelf for up to 8 years. Good luck keeping one around that long.

Tonight's first victim is a Flying Dog Tire Bite. This is a golden ale from the very unique Denver micro-brewery. As usual, the bottle has a cool Ralph Steadman drawing on it. It will find a home in my bottle collection (yes, I have one). Tire Bite has almost no head. The little foam that it did produce dissipated in about a minute. The aroma is light with a little malt and a slight hop to it. It is a translucent gold, similar to other pilsners. The flavor is fairly grainy with light maltiness. The Tire Bite is very light, surprisingly light in fact. The finish has a bitter bite, which is it's only really distinctive characteristic. Unfortunately, the force of the bite weakens as you drink the beer. It coats your throat and blunts the effect. I'm going to skip this one next time. It was very underwhelming.

The AP has an article about the looming deadline for this term at the Supreme Court. Here's the situation...

With a late June deadline looming, the high court has yet to issue opinions in about 35 cases in which justices have heard arguments. At this point a year ago, the court had the same number of cases pending, a sign the justices' pace has changed little with the arrival of Roberts, who succeeded the late William H. Rehnquist as chief justice.

Well, 35 to go with a month and a half is not bad. I don't think it's surprising that Chief Justice Roberts hasn't amped up the pace of the Court. He's professed a willingness to increase the caseload of the Court. Perhaps next term will be different. Roberts will be more settled in and familiar with his job. Maybe he can get the Court moving faster, possibly pushing some of the older Justices out the door. Is that too malicious?

The article finishes with this...

Generally, the most contentious cases of the year are decided in the final weeks, usually on 5-4 votes. Also historically, justices announce retirements at the end of their term.

We will see more close cases in the last few weeks. Much of the unanimity that we've seen from the Roberts Court is going to end as the term ends. That's usual and understandable. It's easier to get an opinion written and agreed on by everyone when the case isn't tough. The controversial areas require more drafts of the opinions to be circulated among the Justices, more discussion and persuasion, and usually a changed vote or two. Also, remember that Justice O'Connor announced her retirement on July 1st of last year. If a retirement comes, I would expect the timing to be very similar.

Hugh Hewitt thinks that Mike Luttig's phone is ringing off the hook, thanks to all of the calls from 2008 Republican presidential hopefuls. He specifically thinks that Senator McCain should be extending an olive branch to Luttig, hopefully bringing him onboard as a senior advisor. Hewitt thinks that this "would overnight ease conservative concerns about the senator's judicial philosophy."

Well, I'm not Johnny Conservative, but that would do nothing to ease my concerns about McCain's view of judges. It would look simply like a calculated political move. It would be nothing more than an extended photo-op by McCain, trying to distract us from his Gang of 14, BCRA-is-okay judicial views.

I think I have McCain pegged on his judicial views. I know Senator Allen's views, think they are solid, but find Allen as exciting as instant oatmeal. I think Senator Frist would be solid on judges, but I have been totally underwhelmed at his abilities as Majority Leader and as a confirmer of judicial nominees. Romney, Guiliani, Rice, and the rest are all question marks to me on the issue. Hell, maybe Luttig should run for president.

Former Senator Alan Simpson is one of my favorite politicians. He was a real straight shooter who said what he felt and didn't care who he pissed off. The statement that he gave before Justice Scalia's confirmation hearing (then-Justice Rehnquist's hearing for his elevation to Chief Justice was also going on) way back in 1986 is worth looking at...

"Well, we certainly washed all the laundry on Bill Rehnquist. I assume we will do that with you. And yet not one of us, not one of us up here would want to sit right there at that table. We could not pass the test. We could not stand the heat. It is easier up here. We can brag and bluster, and blather, and almost like a comic book character, you could invent 'Captain Bombast', pull the cape around the shoulders, and shout the magic words 'Get him,' and rise above it all in a blast of hot air.
...
Three sitting Members, though, of this U.S. Senate, right now, voted against the sweeping Civil Rights Act of 1964. Do we keep score on them? Do we let them know we will never forgive? They changed, they listened, they adopted, they adapted, and they learned. Don't others get that leeway in this particular arena?

Oh, I tell you I can hear it now: 'Oh, Simpson, you old silly. There is a higher standard here for the Attorney General or for the Supreme Court, or for the Federal district court. There is a nobler and higher yardstick for the Chief Justice or the Justice.' Or for any Presidential appointee. Oh, what bosh and twaddle that is. What arrogance that is, true arrogance. A higher standard than that than a U.S. Senator, a proud office we all cherish and lusted after, and try to honor? Just because we get elected? Well, we have a word for all that in Wyoming. It is succinct, scatological, and searing when it is said in the proper Western twang."

Simpson was referring to the tendency of his fellow Senators to act as an Inquisition board, picking apart anything and everything that a judicial nominee had done. They acted in this manner, and still act in this manner, in spite of their own many personal failings. There were Senators who voted against the Civil Rights Act of 1964. There were Senators with mistress and drinking problems. There was even one who drunkenly drove a car into a river and left a woman in that car to die. Yet these are the people who pillory nominees because they ruled on a case that involved a company that managed their mutual fund. What a truly bizarre spectacle this is.

I'm a big fan of seasonal brews in general. Some liquor stores let product sit on their shelves for a long, long time. Unless there is a date on the bottle, you are really taking a gamble. Seasonals are their own born-on date. You have to love that kind of certainty. Samuel Adams Summer Ale is in the pint glass this evening. The Summer Ale, like most warm weather seasonals, is a wheat ale. It has a golden, cloudy appearance. The aroma, also consistent with the style, is fairly light. It is dominated by citrus, but I'm also picking up hints of that aforementioned wheat. The head is light and dissipates quickly. However, it does leave a nice ring of foam around the edges of the glass. The flavor is crisp and light. The lemon zest flavors are dominant, but even those are fairly subdued. The finish is dry, leaving a slightly bitter grain taste. Overall, I would say that the Summer Ale is good, not great. It's a warm weather beer that would go well with anything that you decide to grill. A little stronger flavor might be nice, but it's still an enjoyable brew.

Joan Biskupic has a good article in USA Today about the five Justices to watch on the Roberts Court. She says to watch Kennedy's swing vote, Roberts' conservative leadership, Souter's newfound energy and vigor, Alito in general, and Stevens' attempts to take the steering wheel from Roberts. It's a fairly superficial article, but come on, it's USA Today. I'm just happy to see interesting stuff about the Court in general and the Justices specifically in major media publications.

This piece by George Will, linked by Instapundit and in this morning's Milwaukee Journal-Sentinel, takes on Senator John McCain's views of the Constitution. Will looks at a recent statement by McCain...

On April 28, on Don Imus' radio program, discussing the charge that the McCain-Feingold law abridges freedom of speech by regulating the quantity, content and timing of political speech, John McCain did not really reject the charge:

"I work in Washington and I know that money corrupts. And I and a lot of other people were trying to stop that corruption. Obviously, from what we've been seeing lately, we didn't complete the job. But I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt. If I had my choice, I'd rather have the clean government."

Will then goes on to attack McCain's most famous piece of legislation, the Bipartisan Campaign Reform Act of 2002 (or "BCRA" if you're into that whole brevity thing or "McCain-Feingold" if you want to stroke these two giant egos some more)...

McCain seems to regard unregulated political speech as an inherent invitation to corruption. And he seems to believe that anything done in the name of "leveling the playing field" for political competition is immune from First Amendment challenges.

Will then wonders why a government that is so corrupt should be trusted to regulate speech about itself. It's a good question, and I don't think I've ever heard an answer from McCain or his sidekick Rusty.

I've spent many posts explaining my list of grievances against BCRA, so I won't rehash them all here. I don't think it's necessary here because Will is just using it as an example. The main point of his piece is a much weightier and a much more interesting question about McCain...

McCain hopes that in 2008 pro-life Republicans will remember his pro-life record. But they will know that, regarding presidents and abortion, what matters are Supreme Court nominees. McCain favors judges who think the Constitution is so radically elastic that government regulation of speech about itself is compatible with the First Amendment. So Republican primary voters will wonder: Can President McCain be counted on to nominate justices who would correct such constitutional elasticities as the court's discovery of a virtually unlimited right -- one unnoticed between 1787 and 1973 -- to abortion?

Will is right. A president's appointments to the Supreme Court are usually their most lasting decisions in office. The Justices that upheld the Constitutionality of BCRA were Stevens, O'Connor, Souter, Ginsburg, and Breyer (it was basically those five that upheld the bulk of the law, I'm oversimplifying the very long opinion that is McConnell v FEC). I know McCain won't appoint another Ginsburg, but I doubt that he would appoint another Scalia or Thomas. Those two wrote sharp dissents against upholding McCain's law. He's looking for a different kind of Justice, probably one more akin to O'Connor.

Will's point is incredibly important. We are going into an election in 2008 with a wide open field. Both parties have long lists of possible candidates. It's time to take a hard look at these men and women and ask what kind of Justices they would put on the Court.

I hope I can work for a firm like Sebben & Sebben after I graduate.

This is from Harvey Birdman - Attorney at Law. I live for this show.

The New Glarus Cherry Stout is part of their Unplugged line. I have mentioned it before in my reviews but in case you missed it, Unplugged is a series of beers brewed at the whim of New Glarus brewmaster Dan Carey. He just follows his creative muse and sees where it leads him. Honestly, the Cherry Stout did not impress me at all. It looks very dark. It's a deeper red than I would expect from a cherry beer. It's aroma is not very cherry. There is a rich, woody smell that is fairly surprising. The flavor just did not work for me. The mix of eight malted barleys is just a little too much. It's overwhelming. More importantly, the beer is aged in oak barrels to promote fermentation. That oak flavor overpowers the beer and hits you like a punch in the face in the after taste. It's a worthy attempt, but I think the Cherry Stout just doesn't make it. It was really a challenge to finish this. The oak flavor just killed it for me. I'll give New Glarus credit though. They could just produce Spotted Cow, Fat Squirrel, and a handful of others and just do fine. At least they try new things, experiment, and look for interesting brews. This one just didn't do it for me.

Bell's Oberon Ale is probably one of the best Summer beers you can buy. I've always been impressed by the Bell's line from the Kalamazoo Brewing Co. in Kalamazoo, Michigan and Oberon is no exception. It has a cloudy, orange-amber color. Poured properly, it has a creamy head that will last a long time. The aroma is light but interesting. It is dominated by citrus, but there are hints of wheat and clove. The mouthfeel is light but carbonated enough to keep things interesting. The taste, while not heavy, is a little heavier than one would expect from a beer of this style. The citrus and wheat flavors are at the forefront, but they fade nicely into a clean finish. At 6% ABV, the Oberon is a little stronger than one would expect. It can really creep up on you. Overall, it's drinkable and refreshing. The only real drawback is the price. Oberon is usually a little pricier than other comparable beers. Being the cheapskate that I am, I would probably pick up something else that I liked instead of Oberon. It's still nice to occasionally have one though.

My last take home exam was turned in this morning. Summer has officially begun. Let the beer reviews roll! No, I am not drinking beer at 3 in the afternoon. As pointed out in a previous post, I have a handful of reviews stored up in my head, ready to go. Here is the first. The Franziskaner Hefe-Weisse Dunkel is the yang to the basic Franziskaner Hefe-Weisse's yin. It has a rich, dark brown color that looks like chocolate. There isn't much of a strong aroma, but it is more noticeable than it's cousin's scent. I picked up an unexpected but pleasant mix of clove and banana.

Like most good hefe-weisse beers, it's got a crisp, clean flavor. Because it is a dunkel, the dark malts add a roasted toffee flavor to the traditional wheaty, spicy, slightly citrusy flavors. It straddles the line between a pure hefe and a pure dunkel. The interplay of flavors is very satisfying. Fairly light in your mouth, the flavor does not linger. This is good or bad, depending on what you are looking for from this beer. I like the lightness and clean finish, because you still get that burst of lots of malty flavor. Someone who expects a thicker, darker beer might want that mouth coating flavor. I think this beer is excellent the way it is. People who are turned off by the light lemony flavor of traditional hefe-weisse beers will love the depth of flavor added here with the malts. Great beer.

Temperatures drop in Hell as I praise the New York Times. They have a pretty decent article about Michael Luttig that goes beyond the recent news. It gives the reader some great background information about his past positions, friends on the Court, and the tragedy involving his father.

While there are many pressing questions (Who will Bush nominate to replace Luttig? What will happen to Luttig's hired clerks? Who will be the new favorite clerk feeder of Scalia and Thomas?), I think that there is a more important question. Why is there only one picture of Michael Luttig on the internet?

EDIT: Hugh Hewitt's send off post to Luttig has a very interesting conclusion...

And he will no doubt remain on the short list of every serious SCOTUS observor for future vacancies. In fact, a period of practice inside one of America's great corporations will be an additional argument in his favor when the next opening comes around. (And if that next opening is weeks away, his announcement today would not be an obstacle to his nomination at that point.)

I agree that Luttig will remain on the short list, just not for this president. Hewitt's mentioning of another vacancy being possibly weeks away is interesting. I've been trading in rumors about such an occurrence recently as well. I wonder if Hewitt is basing this off of the same source that I am. He may have another credible source too. Or it may just be wishful thinking on both of our parts. Wait and see...

EDIT 2: The Wall Street Journal has an excellent article detailing the recent history of Luttig, the Bush Administration, and the War of Terror cases. I'd say that it's a must read.

My take on the situation is as follows. The apparent past personal clashes between Luttig and Bush seemed like enough to keep Luttig from getting the Court nomination. He was viewed as one of the top picks on just about everyone's list, yet he was passed over three times. I don't think that his final Padilla decision was the nail in the coffin or a judicial temper tantrum. It was just Luttig doing what he thought was right. Luttig was never going to be nominated by Bush, so he had nothing to lose. Strangely enough, that decision makes him an even better nominee to the Court. If a Republican wins in 2008 and the public has similar feelings about Bush that they do now, who would be a better nominee than a judge who didn't change his mind to suit the desires of the Bush Administration? He looks conservative and principled at the same time.

EDIT 3: I spoke too soon. The Wall Street Journal also has an editorial about Luttig. The editors have a similar take on Luttig that I do...

In short, Judge Luttig showed judicial modesty in deferring to the Constitution's broad delegation of power to a President to defend the country. But he was also willing to call the executive when it lacked the courage of its Constitutional convictions and played political tricks. The country has been fortunate to have its major post-September 11 cases go through the Fourth Circuit.

I'm glad that Luttig's retirement from the bench is getting this much attention. It's well deserved. Hopefully, all of this praise for Luttig's career accomplishments and judicial philosophy will nudge the White House in the right direction for their next possible Supreme Court pick.

By the way, it's pronounced Loo-tig, just in case you want to talk about the retirement with your friends and sound like a true Article III nerd.

As promised, the White House is beginning to send judicial nominations to the Senate. Today's nominee is Neil Gorsuch for a seat on the 10th Circuit Court of Appeals. Gorsuch clerked for both Justice White and Justice Kennedy on the Supreme Court. He has a law degree from Harvard and a doctorate in legal philosophy from the University of Oxford. He is currently employed in the Justice Department.

Gorsuch wrote a piece for National Review Online that I'm sure will raise a few eyebrows among the Senate Democrats. This is his conclusion...

In the face of great skepticism about the constitutionality of New Deal measures in some corners, a generation of Democratic-appointed judges, from Louis Brandeis to Byron White, argued for judicial restraint and deference to the right of Congress to experiment with economic and social policy. Those voices have been all but forgotten in recent years among liberal activists. It would be a very good thing for all involved - the country, an independent judiciary, and the Left itself - if liberals take a page from David von Drehle and their own judges of the New Deal era, kick their addiction to constitutional litigation, and return to their New Deal roots of trying to win elections rather than lawsuits.

It's true and it's good advice. There is often a public backlash over courts deciding important policy issues. I think that's where a lot of the cries about "activist judges" come from. But I'm sure someone on the Judiciary Committee will have problems with this piece.

Gorsuch might face problems over his residency too. He was born in Denver (deep in the heart of the 10th Circuit) but has spent a long time in Washington DC. The Senators have that goofy "oh this seat on the court belongs to my state" mentality. Senator Allard is on board with the Gorsuch nomination. Senator Salazar might be a problem, but he's the same person who called Justice Thomas an "abomination". His opinion of judges is meaningless to me.

This is the first I've heard of Gorsuch, but he looks solid to me. Good pick, White House. I guess you aren't totally useless.

Today, the Supreme Court decided in a 5-4 vote to allow the Bush Administration to proceed in a deportation. The deportee, a quarrelsome Briton named Kiren Kumar Bharti, was convicted in state courts for a variety of crimes, including drug possession, domestic violence, and resisting arrest. Sounds like a real charming guy.

The five Justices willing to give Bharti the boot were Chief Justice Roberts, Justices Scalia, Kennedy, Thomas, and Alito. Bloomberg makes a point of IDing Justice Alito's vote, even putting it in the headline. The first sentence of their article is...

A divided U.S. Supreme Court cleared the way for deportation of a British man convicted of drug possession and other charges, as Justice Samuel A. Alito Jr. cast a deciding vote.

I find this a little interesting. Are they spotlighting Alito simply because he is the newest Justice? Chief Justice Roberts is almost as new as Alito. Surely his vote would be as interesting, especially since he is the Chief. Why was it Alito's vote that was deciding? Why wasn't it Roberts' vote or Kennedy's vote that was deciding? Why you gotta pick on Sam? I think it's odd how these articles are worded and framed sometimes. I guess he's stuck in the spotlight as O'Connor's replacement.

EDIT: Here's the link to the actual order.

Judge J. Michael Luttig announced that he will step down from the 4th Circuit Court of Appeals. He is leaving the bench to become vice president and general counsel to Boeing. Luttig is something of a conservative judicial icon and this news may have far reaching effects. As I have discussed before on here, Luttig is the top clerk feeder for Justices Scalia and Thomas. He was an important step in the intellectual training of many conservative lawyers.

There could be many reasons for this move. As Luttig states, this is an extraordinary opportunity. Chances like this do not come by often. There is also the issue of compensation. Luttig is going to be making a hell of a lot more money at Boeing. When compared to other jobs for lawyers of their ability, federal judges just do not make a lot. They are certainly not starving, but I'm pretty sure that the Chief Justice took a pay cut when he left Hogan & Hartson. You really need a strong commitment to public service to overcome those pay differences (or be less greedy than I am). Also, Luttig knows that he is not going to be nominated to the Supreme Court, at least not by Bush. Apparently, he and the president have some heat between them. They just don't get along for some reason. It's tough to speculate why, but Luttig worked in the George HW Bush administration. Maybe their paths crossed there.

Best of luck to Luttig. He honestly deserves a seat on the Supreme Court. Maybe he will get it sometime after 2008.

The names of more than 20 judicial nominees will be sent to Congress in the near future, so says Karl Rove and Harriet Miers. The White House has been sitting on their hands far too long on these nominations. It's about time that there has been some movement.

The delay, and probably other factors, caused some people to boycott the Rove-Miers meeting...

Prominent conservatives who have played instrumental roles in the battle over the federal judiciary but skipped the meeting included Leonard Leo, executive vice president of the Federalist Society; former Attorney General Edwin Meese, chairman for the Center for Legal and Judicial Studies; and Jay Sekulow, chief counsel for the American Center for Law and Justice.

Gentlemen, I understand your anger with the White House on this issue, but this does us no good at all. If judges are being discussed and nominations about to be made, I want these three men involved in the process. I may not agree with them 100% of the time, but I trust them more than Rove and Miers on these nominations.

Rove sees this as an issue to take into the midterm elections. It's not a bad plan, especially considering the current state of their political base. Approval numbers don't get that low without your own supporters being pissed off at you. Give people something to support. Make a push to fill these vacancies with outstanding candidates. And when the Democrats try to fight them, fight back.

I'm very eager to see the slate of names. I have my own dream list in my head, but I understand that the realities of the federal judiciary will keep most of them out of the running. Beyond that, there is another issue about attracting solid nominees to the federal bench: money. I spotted this in an interview with Judge Richard Posner...

I hadn't previously had any thought of becoming a judge. My principal concern in accepting the judgeship was the financial sacrifice, because I had a large income from consulting.

Compared to private practice in major firms, judges don't make a hell of a lot. I'm hoping that the White House was able to persuade some real legal stars to accept nominations.

I am in the final stretch of the painful, 8th Amendment-violating experience known as law school exams. I have one more in class exam and one more short take home to finish. Regular posting will resume in a few days. I have a few ideas for posts, including a massive kickstart to the Beer Reviews section. I have been lagging in my beer duties. It's been over a month since I've done a review. Fear not, though. Last weekend, I took a few hours off from studying to attend the Beer Barons of Milwaukee World of Beer Festival. I took a few notes (mostly mentally) about some of the beers that I sampled. I have eight, yes eight, reviews coming up in the very near future. Summer is fast approaching and you need to know what to drink at parties, festivals, barbecues, baptisms, etc. I am here to help.

This is just too much. I shouldn't be shocked by this column. It was written by Joel McNally, and rational thoughts from McNally are as frequent as visits from Haley's Comet. McNally goes after Judge Michael Brennan for his sentencing of the tire slashers. It starts off wonderfully...

Milwaukee Circuit Judge Michael Brennan said he wanted to send a message with his sentence. And he sure did.

The message Brennan sent was this: Drunken white police officers who savagely beat and torture a black man may go free in Milwaukee, but young black men who commit acts of vandalism will go to jail.

This is the stupidest argument that's been flying around lately. Brennan had nothing to do with the Jude case. He had no control over what the jury did. Yet these two incidents keep getting linked. Why? They are totally separate crimes. I guess that because the cops got off in the Jude case that no one can ever be convicted of a crime again in Milwaukee County. The wheels of justice must grind to a halt now. It's a judicial holiday from now until the feds act on the Jude case. Anyone who makes this argument is just demagoguing.

It gets worse...

Some people suspect there was another message Brennan also wanted to send: White voters of Wisconsin, if you don't like uppity young blacks, vote for Michael Brennan for the Wisconsin Supreme Court.

Uppity young blacks? Are you kidding me? I think that Lewis Caldwell would be interested to know that he is an "uppity young black". Isn't McNally's view of crime interesting? He doesn't think that we should be concerned about what these men did. It's a minor crime according to McNally. And if you citizens think that Judge Brennan was right here, you're probably racists. If you were a noble, tolerant liberal like McNally, you would be defending these poor young men from The Man.

McNally doesn't even think that the rented vans were going to be used to drive voters to the polls...

Republican voters usually don'’t need rented vans to get to the polls. Republican voters drive their own enormous SUVs or possibly ride to the polls in the back of limousines lighting cigars with $100 bills.

This is McNally trying to be funny. It's a way to direct readers away from the fact that his point is pretty stupid. It's not the Thomas Nast-esque lumber baron Republican voters that need a lift to the polls. It's the older folks who don't have a way to get around on their own. McNally might be shocked by this, but there are some senior citizens that vote Republican. They might need rides to the polls on a brisk November day.

McNally then offers his totally unbiased anecdotal evidence as a poll watcher, saying that he saw "teams of lawyers and other party operatives dispatched to challenge and intimidate black voters". You can translate that as "people trying to try to keep the election clean and lawful". Then the Office Space Jump to Conclusions Mat comes out...

If the real purpose of the Republican van fleet was to intimidate voters, those young vandals may have inadvertently thwarted a Republican attempt to interfere with voting in Milwaukee just as they were accused of doing in Ohio and Florida.

They weren't criminals! Those young men are civil rights heroes! There's no real proof for this, but who cares?!

This column is indicative of why I use the Shepherd Express as a coaster or swatting instrument for insect eradication. It's useless otherwise.

Exams are half over, so I feel okay about doing a quick check-in post. Justice Alito has hired an interesting new law clerk. Mike Lee was general counsel for Utah Governor Jon Huntsman Jr. Lee clerked for Alito previously when he was an appeals court judge. This is a pretty common practice for new Supreme Court Justices. For this term, Judge Alito brought some of his current clerks with him and called back some of his former clerks. I know that Justice Thomas did something similar when he was confirmed to the Court.

Lee also has a genetic tie to the Supreme Court. His father is former Solicitor General Rex Lee, who served as Ronald Reagan's first SG. I'm sure he will serve Justice Alito well.

Okay, I know. This is the worst hiatus ever. I just can't stay away from my beloved blog, especially when Harry Reid is spewing crap from the hole in his face. He had some remarks about appeals court nominee Brett Kavanaugh. Care of Ed Whelan at Bench Memos...

Senator Harry Reid is an irresponsible mudslinger. Here's what he has just been reported to have said today about Brett Kavanaugh's nomination:

"Here's a person who has been involved in a lot of things dealing with torture, and his experience is nonexistent, basically - 41-years old. I'm not sure he's ever been in a courtroom."

Whelan says that he knows from a reliable source that Kavanaugh didn't have anything to do with any torture policies. I haven't seen anything that points in that direction either. Maybe it's true and I'm just not privy to this information. But I know for a fact that Reid is full of crap on the "his experience is nonexistent" remark.

Kavanaugh has argued cases in appeallate courts across the country. He was a partner at Kirkland & Ellis (a major DC law firm) where he worked in the appellate section. Kavanaugh represented the Adat Shalom congregation in Montgomery County, Maryland against the attempt to stop construction of a synagogue. He also represented Elian Gonzalez after the Immigration and Naturalization Service decided to return him to Cuba. He took on both of those cases pro bono. Kavanaugh clerked for Supreme Court Justice Anthony Kennedy, Judge Alex Kozinski of the Ninth Circuit, and Judge Walter Stapleton of the Third Circuit. I'd call all of that "experience". He has also argued cases before the Supreme Court. So yes, Harry, he has been in a court room, the highest one in the nation.

Just checking in briefly to direct your eyes to Judge Posner and Professor Becker. They are talking about gas prices and why everyone is stupid.