Eminent Domain

How Appealing linked to this news story about a recent Utah Supreme Court decision concerning strippers' Constitutional rights. Law is occasionally entertaining.

Three strip clubs (with the incredibly tasteful names American Bush, Leather & Lace, and Paradise) sued over a city ordinance in South Salt Lake that required dancers to wear pasties and G-strings. I'm not defining either of those terms for you. If you don't know what they are, head to Google. The Utah Supreme Court handed down a 3-2 decision upholding the ordinance. The court stated that the Utah State Constitution does not provide greater protection than the US Constitution (yes, the Supreme Court has dealt with this issue) for freedom of expression in this situation. Attorney for the city Scott Bergthold on the federal precedents...

Bergthold paraphrased the U.S. Supreme Court's ruling in two related cases: "Even though it's a little less graphic, the dancers have plenty of opportunity to portray their erotic message without dropping the last stitch."

The court's majority examined the original intent of the Mormon drafters of the Utah State Constitution and agreed. Sadly, only American Bush is still in business. They don't have a liquor license and have been complying with the city ordinance. I guess Utah's not the easiest place to set up shop for that kind of business.

I was alerted by a link on Confirm Them that Former White House Chief of Staff Andy Card is the subject of a three-part interview with Newsmax. This part of the interview is especially interesting to me. Card talks about the failed Harriet Miers Supreme Court nomination. Card says that Bush wanted to nominate a woman to the Court...

"And then when William Rehnquist left, you know, 'What do you mean you're not going to nominate a woman? You've had two opportunities, and you haven't nominated a woman.' And so he was looking to nominate a woman - not blindly, not any woman, not just to nominate a woman."

This doesn't make sense to me. He was looking to nominate a woman... but not blindly, and not any woman, and not just to nominate a woman. It seems a little contradictory to me, especially the last part that I bolded. Maybe Card means that Bush wanted to consider gender as an important quality, just not the only quality. But if that is the case, then I don't see how Miers' gender could outweigh the other qualities and qualifications of other potential nominess.

I think that this part is very odd...

As the search committee kept suggesting female candidates who did not seem right, Bush pushed for more selections.

What was not right about Judge Karen Williams? What was not right about Judge Diane Sykes? There are other female judges (Batchelder, Owen, Brown, Corrigan, Jones, Clement) too. Many of them have some kind of strike against them, whether it is age or controversy, but none of them have questionable qualifications. That is what should matter about a Supreme Court nominee. I hope the President remembers that if he gets another vacancy.

After the American Bar Association gave judicial nominee Michael Wallace a unanimously unqualified rating, many people had many questions. Why would someone with Wallace's resume and experience get such a horrible rating? How did the ABA decide this? Why has the ABA been so quiet about their reasons? Well, the ABA has finally sent out their formal statement about the nominee, and Ed Whelan at Bench Memos has it.

Whelan's analysis is spread out over a handful of posts. He doesn't see any good reason for the poor rating. Here are a few highlights. First, let's look at who is involved here...

Moreover, according to a letter from one witness in support of the Wallace nomination, current ABA president Michael Greco, at a 1989 ABA meeting, made a public attack on Wallace that was "so vicious and personal" that it offended some of the members of the ABA House of Delegates. This witness thinks that Tober also took part in the vicious attack.

Tober is Stephen Tober, the ABA committee chairman. Next...

As for Fifth Circuit member Kim J. Askew, who conducted the lead investigation: Askew serves on the Board of Trustees of the Lawyers' Committee on Civil Rights, which occupies the hard Left on matters of race and has fervently opposed leading nominees of the Bush Administration. In January 2006, for example, the Lawyers' Committee issued a statement opposing Samuel Alito's nomination to the Supreme Court. In September 2005, the Lawyers' Committee stated that it could not support John Roberts' nomination as Chief Justice.

Then there's this...

Whether or not the second investigator, Thomas Hayward, is biased against Wallace is rendered moot by the fact that Hayward did not re-interview any of the individuals interviewed by Askew but instead accepted, and relied on, her interview summaries.

Don't strain yourself working too hard.

Whelan makes this point...

I can't help noting that ABA president Michael Greco has stated only that he "did not express any opinion to anyone [about the Wallace nomination] during the evaluation process." (Emphasis added.) It would be worth inquiring whether he expressed any opinion to anyone about the Wallace nomination between the time the nomination was announced and the time the evaluation process started.

Someone should ask Greco about that. I'm eager to hear his response.

What reasons did the ABA give for the poor rating? This is the explanation...

According to Askew, her investigation revealed that Wallace "has the highest professional competence" and "possesses the integrity to serve on the bench," but lacks the necessary judicial temperament.

Ah, so the judicial temperament criterion is the killer. I guess I shouldn't be surprised. It's hard to prove that someone has the proper temperament, because it is so insanely subjective. Whelan goes on to criticize the depth of Askew's investigation. I found this funny...

As I understand it, Wallace travels to Honduras every summer, as part of a biracial conciliation group, to build homes for poor Hondurans. But Askew closes her section on "commitment to equal justice" by crediting the comments of critics who, while praising that work in Honduras, complain that Wallace has "not demonstrat[ed] a similar understanding of issues related to the poor in his own community in Mississippi"!

Wallace cares about the wrong poor people!

Whelan goes on to note that Askew violated the ABA's procedures, failing to give Wallace the details about some of the attacks against him. He can't even mount a proper defense of himself then. Unfortunately for Wallace, the ABA has run out the clock on his nomination. The Senate will not be taking up any more "controversial" judicial nominees before the elections. We may be dealing with a very different Senate next year, and Wallace will have to face them.

What happened this weekend? Was there some Lefty memo that went out, "Time to start whining about the Supreme Court"? Gregory Stanford of the Milwaukee Journal Sentinel joins Ted Kennedy in this weekend's "Roberts and Alito Suck" parade. I read this early this morning before work and have been thinking about it since then. Let's get on with it...

Let's start off with the requisite kiss-up to Justice Kennedy...

The saving grace for the bench in the recently concluded term was Justice Anthony Kennedy, a Reagan appointee who slowed Roberts' and Alito's drive to pull the conservative court further to the right.

The liberals in the media are making a smart move here. Kennedy loves praise. He worries about his image. Keep telling him that he's the savior of the Court and nation, and he just might drift further.

This part drove me insane...

No, I'm no lawyer. Don't even play one on TV. A sis' and a nephew are lawyers. I'll just leave to them and their profession the evaluation of the legal arguments that come before the high court. The rest of us, however, can rate what the Supreme Court does from the point of view of what's good for the nation. Does a ruling advance or thwart the nation's ideals? American principles and American laws do correlate, don't they? If not, "the law is a ass - a idiot," to quote Charles Dickens' Mr. Bumble.

What? Oh, I see. Stanford thinks this is still the Warren Court, you know, the "Court" that was really just a higher house of Congress. It's all about policy creation, right? No. The Supreme Court is about legal arguments. That's what the decisions should be based on, and that's how the decisions should be evaluated.

Stanford, like Ted Kennedy, cares only about the results. To Hell with the text of the law or the Constitution. Stanford wants his Justices to vote based on policy, on "what's right for America," as he sees it. He ignores the fact that we have two elected branches of government, and one of them gets to enact laws and shape policy directly. They even have the mandate of being popularly elected. Of course, Stanford is ignoring this fact because the branches aren't run by the Democrats right now.

Then there is this bit of analysis...

For a non-lawyer, I happen to read many Supreme Court opinions - one reason I view askance the claim that Bush is fond of making about his nominees: namely, that they strictly adhere to the letter of the Constitution, as if its framers specifically wrote instructions on how to deal with child porn on the Internet. "Strict constructionist" is just code for "likely to interpret Constitution in a way that pinches freedom, favors corporations and protects government authoritarianism."

This must be willfully simplistic (I hope that's the excuse for it). "Strict constructionist" is a broad term, probably too broad to use with any sort of accuracy. Stanford may be shocked to learn that Justice Scalia is not a strict constructionist. He says in A Matter of Interpretation that he is "not a strict constructionist, and no-one ought to be;" he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute." Scalia has also said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably." Scalia is an originalist (usually... he has deviated, sometimes sharply, in the past) and a textualist. Justice Thomas is an originalist but not exactly of the same stripe as Scalia. Roberts and Alito are not originalists, at least, they haven't showed that yet. Trying to paint all four of these Justices as having the same philosophy is just shoddy, superficial analysis.

Stanford also talks about a few cases...

In Hudson vs. Michigan, Alito and Roberts helped form a 5-4 majority that, in a drastic departure from past rulings, gives police a virtual license to seize evidence illegally.

Ted Kennedy touched on Hudson also. Both men claimed that the majority opinion by Scalia was a huge U-turn by the Court, ignoring precedent. I disagree, and so does Prof. Orin Kerr...

According to Scalia, automatic suppression for a knock-and-announce violation is inconsistent with precedent...
As a doctrinal matter, it seems to me that Justice Scalia's majority opinion has it basically right. First, Fourth Amendment rules traditionally have focused on the facial validity of the warrant -— the requirements of probable cause and particularity - rather than its execution. So long as the evidence discovered is within the scope of the warrant, the execution of the warrant traditionally receives very little constitutional scrutiny. Second, even where the Court has announced a constitutional suppression remedy, that remedy is typically limited by all sorts of exceptions such as good faith and fruit-of-the-poisonous tree doctrine. As every practicing criminal lawyer knows, when the police have a warrant the evidence is probably coming in even if the defense can find some technical violation along the way. So if the question is which rule fits most naturally into the preexisting framework of Fourth Amendment law, it seems pretty clear that it's the majority's rule, not the dissent's. Put another way, Scalia's opinion essentially restores the constitutional status quo.

I guess this wouldn't interest Stanford though. Who cares about that pesky legal analysis when looking at Court opinions?

How about one more case...

In Georgia vs. Randolph, Roberts wrote a dissent arguing that one spouse could overrule another and give police permission to search their quarters for contraband - which would have eroded the principle that a person's home is a person's castle. Alito did not participate in that decision.

Isn't the home the spouse's castle too? Or do all castle decisions have to be unanimous?

I'm a little confused why these op-eds are coming now. The Court has been out of session for quite a while. These pieces are hardly timely, and based on the content, could've been written very quickly. Maybe it has something to do with this...

Kennedy, the second swing vote before O'Connor retired, has emerged as pivotal. But what happens next term, when abortion, affirmative action and environmental law are on the agenda? What happens should Bush get another vacancy to fill?

I think it is now unlikely that a vacancy will occur this Summer, unless it is an illness or a death. The clerks are hired and some very big cases have been granted cert. Still, I think people like Ted Kennedy and Gregory Stanford are stricken with the fear that another vacancy will come before 2008.

Tonight's beer review is not being done live like most of them. I'm transcribing the voice memo that I made in my cell phone Thursday night while out. I was at a great bar (there were 50 different beers on tap), so I was playing the menu a bit to try new stuff. My favorite beer of the night was the Stone Cellar Marquette Pilsner. This beer hails from the Stone Cellar Brewpub in Appleton, Wisconsin. It looked fairly golden in the moonlight (I was seated at a table on the patio), a shade darker than a Leinenkugel's Honey Weiss. There was a fair amount of head, and it maintained a nice ring for the duration of the beer. The aroma had a mix of hops and wheat. It was surprisingly strong. The flavor was an interesting mix of hops, malts, and wheat. The dominance of the hops surprised me. Just by appearance, I didn't expect the beer to be hoppy. Even after I smelled it, I didn't think the hops would be this dominant. As the beer made its way through my mouth, the hoppy bite gave way to a rich maltiness. The finish reminded me a lot of bread. The best part was that this up-and-down of flavor kept the beer interesting to drink. While it had complex flavors, it was still fairly light. I will definitely be ordering this again.

When he's not drinking or letting women drown to death, Senator Ted Kennedy is writing opinion pieces for the Washington Post. The title of the piece says it all, "Roberts and Alito Misled Us." That's a fairly provocative statement. Not as provocative as Roberts and Alito Lied, but a charge like that would be severe enough to warrant impeachment. Kennedy's not that brave or stupid to call for it.

Kennedy claims that Roberts and Alito misled the Judiciary Committee in their hearings...

The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist's embrace of the administration's political and ideological agenda.

I want everyone (that means people on the Right, Left, and all points in between) to stop using the term "activist" when talking about judges. It's stupid. It's gotten to the point where the term has lost its true meaning. Now, it just means "a decision that I think is wrong."

Kennedy rails on Roberts and Alito for being tools of the administration and outside of the mainstream. Of course, these two Justices don't vote only with each other. They aren't on the losing end of 7-2 decisions. Other Justices agree with them. Most often, those Justices are Scalia and Thomas. Fairly frequently, Justice Kennedy is in there too. I guess that means that an entire wing of the Court and legal thought in general is activist.

Kennedy attacks Roberts for a few cases in particular, including this...

In League of United Latin American Citizens v. Perry , the Supreme Court held that Texas's 2003 redistricting plan violated the Voting Rights Act by protecting a Republican legislator against a growing Latino population. Roberts reached a different view, concluding that the courts should not have been involved and that it "is a sordid business, this divvying us up by race."

Kennedy has no problem with the Court divvying us up by race. Personally, I'd rather have equal treatment.

Kennedy gets into a bit of a snag with the Justices' votes here...

In Rapanos v. United States , the court was asked to interpret the definition of wetlands under the Clean Water Act. Four justices deferred to the Army Corps of Engineers' expertise in implementing the statute. But Roberts and Alito joined an opinion that describes wetlands as "transitory puddles" and criticizes their colleagues for "giving that agency more deference than reason permits." For Roberts and Alito, protecting the environment -- unlike "protecting public morality" -- is clearly not a top priority.

I love how he says that four Justices took the Corps' view, and then that Roberts and Alito were out in la la land somewhere. What about the other Justices? Rapanos was a 5-4 decision, with a four vote plurality (Roberts, Scalia, Thomas, Alito) that was joined in result by Kennedy. That means that five Justices agreed with the outcome and four explicitly agreed with the opinion. They must all be tools of the administration, huh? That's the only way this could happen. They couldn't, you know, all adhere to a widely accepted view of statutory interpretation that would cause them to reach this result. No way.

I would also like to make it clear that it's not the Court's priority to protect the environment. It's the job of Congress to enact legislation. They can clear up most of the Rapanos mess by giving more detailed guidelines to the Corps. That would be too much work for them, though. Kennedy might have to do something other than act pompous, like, you know, work.

Kennedy then says that the confirmation process needs reform. He has a few points that I would like to comment on...

First, any qualified nominee to the Supreme Court will have spent many years thinking about legal issues. We should require that nominees share that thinking with the Judiciary Committee, and not pretend that such candor is tantamount to prejudging specific cases.

Bull. If it was fine and dandy for Justice Ginsburg to give "no hints, no forecasts, no previews," then it should be fine for everyone else. If a nominee has a judicial record, it is pretty easy to tell what their general philosophy is on the Constitution. Ask them about their past cases. More importantly, ask them about their decision making process and analysis of the cases. That's where the really interesting stuff lies. Unfortunately, most of the Senators don't care about that. They just want to ask "Why did you side with Big Business?" for the umpteenth million time.

Kennedy wants to hear more about the views of nominees that he wants torpedoed. Make them say they will overturn Roe and they're done. That's the idea. He can preface this all he wants with "...the next justice will be nominated by a Democratic president and be sent to a Democratic Senate for confirmation." He really just wants to force an answer that he can use to sink a nomination if that wet dream of his doesn't come true.

Here is point number two...

Second, the Judiciary Committee will need to reorganize the way it asks questions. An in-depth inquiry will require something more than short rounds of questions that pass from senator to senator.

Bull. The day-long hearings may need some changing, but the Senators have more than enough time to ask questions. Everyone needs to remember Senator Biden's brilliant performance where he took 30 minutes to ask about four questions. If the Senators themselves cut down on the speech-giving and reigned in their egos, they could ask quite a bit. They could also do some more preparation, so they could ask intelligent follow-up questions. I know those pre-written questions from law professors cut down on the work the Senators have to do, but it doesn't make for a very penetrating examination.

If time really is that big of an issue, the Senators of each party can do a better job of coordinating their questioning. I have no proof of this, but I think that the Senators already coordinate their questioning. They all have some issues of personal importance they ask about at length (abortion, voting rights, etc.) and then an issue or two that they all want to use to kill the nomination. The Democrats decided to ask question after question to Alito about Vanguard, trying to trip him up. It failed. They decided to waste their time, asking the same questions over and over and over again. It's their fault that all of that time was wasted.

The third point that Kennedy makes deals with the reason for the hearings...

But it is essential that we learn enough of their legal views to be certain that they will make good on the simple promise etched in marble outside the Supreme Court: "Equal Justice Under Law."

I find it funny that he would use that quote. He certainly doesn't believe in it. He thinks that the Justices should stand up for the environment or "the little guy" or minorities or whatever. To Hell with the text of the law or the Constitution. If you don't vote in favor of these interests, you're getting kicked off the Kennedy Christmas card list. That's not the way the law should work. If the law says that the little guy should win in this situation, then he should win. If the law says that the big guy should win in this situation, then he should win. Kennedy doesn't want that. He wants his side to win regardless. Maybe someday, Kennedy will get the Court that he wants: one that has an activist's embrace of Kennedy's political and ideological agenda (see what I did there?).

For more on this wonderful opinion piece, check out Jonathan Adler at Volokh, Andrew at Confirm Them, and Matthew Franck at Bench Memos. They have some great, in depth analysis. Kennedy's misquoting of Justice Thomas in Hamdan in order to slam Alito is especially nice.

With the Supreme Court out for the Summer, I've been watching the Seventh Circuit Court of Appeals more closely for interesting material. They have a great website, and it's easy to keep up with the opinions as they are handed down. I've talked about Judge Richard Posner in many posts recently, partly because he seems to write in a lot of interesting cases and partly because he's just a good writer. Both of those categories are satisfied in the Doe v Oberweis Dairy case. This case deals with a minor working at an ice cream shop. She was a victim of statutory rape by one of her supervisors. Posner decided to give us some great language in this opinion. Here, he summarizes what the supervisor did...

"[T]he shift supervisor regularly hit on the girls (most of the employees were teenage girls) and young women employed in the ice cream parlor. He would, as one witness explained, 'grope,' 'kiss,' 'grab butts,' 'hug,' and give 'tittie twisters' to these employees, including the plaintiff."

Howard Bashman also picked up on this case and gave us this interesting factoid...

[A] search of Westlaw suggests that this may be the first published judicial opinion in the USA to use the phrase "tittie twisters."

I'm shocked it took this long.

Bashman also picked up on another great Posner quote from the opinion...

Nor are American teenage girls such blushing violets that sexual badinage is harassment per se.

I guess Posner is saying that a little sexual talk in front of or directed at teenage girls is okay in the eyes of the law. Of course, this depends on the context. In Posner's eyes, they can take it. It is a bit of a long opinion for an appeals court opinion. However, the situation involved is fairly interesting and Judge Posner keeps it very readable.

The Nebraska State Supreme Court rejected an inmate's claim that the electric chair was cruel and unusual punishment. Nebraska is the only state in the country that has the chair as its only form of capital punishment. Other states still have it, but also use other methods...

No American court has ever ruled that electrocution amounts to cruel and unusual punishment. But as legal challenges were mounted against its use, others states adopted alternative methods of execution, primarily lethal injection.

I doubt that the chair is going away anytime soon. Courts won't strike it down as C&U because it's used so rarely, it may cause a public backlash, and its been in use for over 100 years.

I found this interesting though...

Last week in Virginia, Brandon Hedrick, 27, chose to become the first person in the U.S. to die in the electric chair in more than two years.

I find something morbidly funny about death row inmates choosing their method of execution. I'm imagining a menu of options being handed to them. Personally, I'd ask for the firing squad, but only Idaho and Oklahoma still have it.

I'd like to thank Erick from Letters in Bottles for e-mailing me this news story. Well, he will be "Erick from Letters in Bottles" when he finally decides to start posting...

Yesterday, the Seventh Circuit Court of Appeals ruled that a lawsuit by a former Milwaukee County Deputy Sheriff against Sheriff David Clarke can go forward. Writing for the three judge panel, Judge Richard Posner stated that the lower court judge was wrong to grant summary judgment to Clarke. The case will be remanded to the lower court and the former deputy will get to make his case.

While a deputy and union president, plaintiff James Fuerst criticized Clarke's decision to replace a deputy staff position with a civilian who only answered to Clarke. It was believed that this individual (who would earn a handsome salary of $71,500 a year) would serve as Clarke's "mouthpiece" in his run for mayor and other political activities. Fuerst was then passed over for a promotion to sergeant, even though he scored 2nd out of the 150 deputies who took the sergeant's exam. Clarke told Fuerst that he was passed over because he wasn't "loyal" to Clarke's "vision," a high crime if there ever was one. In the course of this lawsuit, Clarke stated that Fuerst was actually passed over because of his criticism.

Judge Posner analyzes the First Amendment issues involved here. If the position of sergeant is a political, policy making decision, then Clarke can choose to not promote anyone who isn't "loyal" to his "vision." It would be his right to fill policy making positions with people who share his views. Judge Posner states that the position of sergeant is not a policy making position. They are "modest supervisors" and have broader discretion than deputies, but they do not create department policy. The lower court was wrong on that issue.

Posner's ultimate point in this decision is that the situation is "in between." The First Amendment issues involved are fairly fuzzy. Posner mentions a WI shield law in place to protect political activity by law enforcement officers, but not all political activity is protected. These are issues that need to be resolved in trial. There is no way that Clarke should have been granted summary judgment in the lower court. This case is not that clear cut. It has been remanded, so we'll have to wait and see how it turns out.

It's a beautiful Summer night here in Milwaukee, and I'm enjoying it with a cold beer on the porch. Tonight's selection is another variety from the good people at New Glarus. It has a pale yellow color that is very translucent. I'd say that it is almost transparent. There is a fair amount of head for a beer of this variety. The aroma is dominated by malts that smell a lot like bread. The flavor is also dominated by the malts. The beer finishes fairly dry with a small bit of hops detectable at the end. I keep thinking of bread when I drink this. It's got a fairly light body, so it's very drinkable. I'm not overly impressed by it, but I do recognize what New Glarus was trying to do with this beer. They made a very basic, crisp light beer that would appeal to a wide audience for Summer drinking. It doesn't have the complex flavors of their Staghorn Oktoberfest or their Tail Wagger Barley Wine. I think it's similar to the Yokel in many ways, but I think I prefer the Totally Naked to the Yokel. I would drink it again, but I'd choose something that wasn't so light instead of this.

Jonathan Adler at Volokh highlights this opinion from the Ohio State Supreme Court. There is some local news coverage here. The article states...

In moving to halt the taking of private homes by the city of Norwood to make way for a residential and commercial development, the court ruled that while economic factors may be considered in determining whether governments can take private property, the economic benefit to the government and community cannot be the sole reason for the seizure.

The court also voided use of the term "deteriorating area" as the standard for appropriating private property, saying it was overly vague and speculative about the future condition of the property targeted for seizure.

This case is fairly similar to the federal Supreme Court Kelo case. However, since it was a state case, it was decided under the Ohio state Constitution. That's why the two decisions can conflict. As the Ohio opinion states, the Court did say that the state courts and legislatures could restrict these kinds of takings.

Here is what Adler has to say about the decision...

Based upon a quick read of the opinion, this seems to be quite a resounding victory for opponents of eminent domain. It also seems to me that this opinion relies upon (or at least cites to) academic commentary far more extensively than the typical Ohio Supreme Court opinion. Indeed, it is not every day that one sees an opinion issued by any court that cites both Richard Epstein and Edith Wharton!

Quoting from Epstein's 1985 Takings work is a definite sign that the court would rule in favor of the landowner. Gotta love those Lockean property rights.

EDIT: Fellow Volokh blogger Ilya Somin shares his thoughts on the decision as well. In the past, he has assisted the Institute for Justice, the libertarian public interest law firm that has been fighting these eminent domain abuses. He states...

It is probably the most important judicial decision on eminent domain since Kelo v. City of New London. Perhaps the most significant element of the decision is the fact that the Court went beyond banning "economic development" condemnations of the sort permitted by the U.S. Supreme Court in Kelo, and also suggested that there are state constitutional limitations on the governments' power to condemn property that is designated as "blighted."

It's interesting to watch the Kelo backlash continue.

Confirm Them alerted me to this Opinion Journal piece about the American Bar Association and their rating of judicial nominee Michael Wallace. Wallace has been nominated for a seat on the Fifth Circuit Court of Appeals. The ABA had previously been given the names of judicial nominees early. They would then rate them well qualified, qualified, or not qualified. President Bush changed the process a bit. The ABA still rates the nominees, but they don't get the names early. So what's the big deal now...

Enter Michael Wallace. Anyone who still clings to the fiction that the ABA can be counted on to provide professional evaluations of judicial nominees without regard to politics should take a look at the current squabble over Mr. Wallace, whom Mr. Bush has nominated for the New Orleans-based Fifth Circuit Court of Appeals. In May the ABA panel rated Mr. Wallace as "unanimously not qualified" for the federal bench.

That's a pretty harsh rating for a nominee. Surely, Wallace must have a poor resume and not enough experience to be a judge, right? Well, not exactly...

He graduated cum laude from Harvard University in 1973. In 1976, he received his Juris Doctor degree from the University of Virginia College of Law, where he served on the Virginia Law Review and was named to the Order of the Coif.

He served as a law clerk for the Honorable Harry G. Walker of the Supreme Court of Mississippi and the Honorable William H. Rehnquist, then-Associate Justice of the U.S. Supreme Court.

Add to that years in private practice, a position as counsel for Trent Lott, serving as a board member of the Legal Services Corporation, a non-profit established by Congress to provide legal services to the poor, and years of Constitutional law practice. Am I missing something here? What is wrong with Wallace? I'd love to have a career like his. Here's the problem according the Opinion Journal...

Mr. Wallace's efforts to reform the LSC had many critics, among them an attorney by the name of Michael Greco. Another opponent was the then-president of the New Hampshire bar, Stephen Tober, who accused him of having a "political agenda" at one particularly contentious hearing. Mr. Greco is now president of the ABA, and Mr. Tober is chairman of the ABA committee that nixed Mr. Wallace. Mr. Wallace's reforms were adopted, and now it's apparently payback time.

This is pretty low. Who are these men trying to fool? Look at the career that Wallace has had and tell me with a straight face that he is not qualified to serve on the Fifth Circuit. Unless there is some huge ethical matter that has not come to light (and that's doubtful, since the ABA wouldn't be sitting on something that legitimate), then this is just a political hit.

The situation is not over though...

In any case, the ABA selection panel's deliberations are secret and it hasn't said why it considers Mr. Wallace unfit for the federal bench. In an exchange of letters last month with Mr. Tober, Senator Arlen Specter, chairman of the Judiciary Committee, said he would call the ABA to testify on its "Not Qualified" rating. He requested materials supporting the rating "as soon as possible."

Mr. Tober replied that "we will do our best" to submit the materials 48 hours in advance of the hearing--a schedule that would make it difficult and perhaps impossible for Republicans on Judiciary to evaluate the ABA's charges and prepare for the questioning. Senator Specter threatened a subpoena and the ABA supplied an advance copy of its testimony but not the supporting documents. The immediate effect of the ABA's delaying tactics has been to push Mr. Wallace's hearing date into September, when election-year politics make confirmation unlikely this year.

I would love to see Specter subpeona every member of that panel and grill them over this. It's a cheap shot that shouldn't go unanswered.

It's been a good couple of days on the judicial front. Judge Neil Gorsuch was confirmed last week, and now Jerome Holmes has been confirmed to the Tenth Circuit Court of Appeals too. In spite of Holmes' resume, he received some strong opposition in the Senate. The final vote was 67-30. Leading the charge against Holmes, Senator Pat Leahy issued this statement. Here's a sample...

Before Mr. Holmes'’ hearing, I raised concerns about the many controversial letters and columns he has written on such topics as juror racial bias, affirmative action, discrimination, and school vouchers. In these writings, Mr. Holmes derided opposing points of view and those who held them. I asked Mr. Holmes to address my concerns about how he might rule on civil rights issues and how he would treat litigants as a judge. Regrettably, Mr. Holmes' stock answers to my questions that he would follow Supreme Court precedent have not reassured me that he would be the kind of judge who understands the critical role of the courts as a protection of individual rights and civil rights.

The rest of the statement is worth reading too. Holmes is a black conservative, so I'm not surprised that the opposition was so strong. He will have a lot of power on the Tenth Circuit, but I think that the real fear lies elsewhere. Born in 1961, Holmes is young enough to gain many years of experience on the Tenth Circuit and still be nominated to the Supreme Court at a fairly young age. He could be another Clarence Thomas. This is all speculation, of course. Holmes has made speeches and statements similar to Justice Thomas' views, but this does not exactly translate into the two men sharing the same legal philosophy.

Much like his new colleague Judge Gorsuch, I look forward to reading his work. Interestingly, the Tenth Circuit has become full of Republican appointed judges. With Holmes' confirmation, President Bush has appointed six of its twelve circuit judges (not counting the senior circuit judges). His father and President Reagan each have one judge on the court as well. President Clinton has the remaining four. I'm going to be spending more time on the Tenth Circuit's website in the near future. While I prefer to spend my time following my own circuit, I'm intrigued to see what this roster of judges does.

...and it is good.

One of the joys of blogging is having your work recognized by people you respect. I don't go out of my way to pimp my site. I rarely comment on other blogs or try to get others to link to my blog. I just do my own thing here and hope people find it and like it. But as I said, I do appreciate recognition. I'm proud to say that Eminent Domain has been linked on How Appealing, Howard Bashman's trailblazing law blog. How Appealing is definitely in the top 5 of law blogs and one that I check multiple times daily. It's an honor to join a blogroll of such prestige.

Ramesh Ponnuru of National Review has an interesting article about the Hamdan decision. He states that Justice Stevens' majority opinion got important facts about the legislative history of the Detainee Treatment Act of 2005 wrong. Stevens used statements from two of Hamdan's briefs about the legislative history to support his view that the DTA did not strip the courts of jurisdiction in this case. Ponnuru looks at the problem...

In deciding how to read the amendment, Justice Stevens, writing for the Court, looked at senators’ statements, among other things. Here he encountered a problem: The senators disagreed. Senators Lindsey Graham and Jon Kyl, the Republican authors of the amendment, thought that it applied to pending cases. Other senators, notably Democrat Carl Levin, did not.

Stevens handles the problem in footnote 10. The statements by Kyl and Graham, he writes, “appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin’s understanding” (emphasis in original).

But Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act).

I haven't gone through the effort of watching the entire floor debate on the bill (and I sure as hell won't), but I trust Ponnuru to be reporting this accurately. He makes an important point about the use of legislative history in his closing remarks...

Legislators routinely insert speeches into the Congressional Record, and they routinely do so in order to influence judges. The manipulability of legislative history by legislators and judges is notorious, and it is one of the reasons Justice Antonin Scalia gives for not basing judicial decisions on legislative history. (He argued that the text of the law was on Kyl and Graham’s side.) After Hamdan, Scalia has more evidence to support his skepticism.

Legislative history is used by creative legislators to change the meaning of laws. Judges then use their favorite pieces of debate language to justify rulings that fly in the face of the text. Hopefully, Scalia's view on this will triumph... but it probably won't be soon.

Sorry for the rare posting lately. I've been lacking both the time and the material for blog posts. Since the Supreme Court is on vacation, I have lost my biggest source of blog worthy material. I've been looking for interesting appeals court decisions (and have found some), but they are few and far between.

Anyway, this book review has been making its way around legal blogs lately. Judge Richard Posner reviews Wild Bill: The Legend and Life of William O. Douglas by Bruce Allen Murphy. I first saw it on Orin Kerr's blog, and have since seen it on Volokh as well.

I had known his court opinions and legal work earlier, but I was first introduced to Justice Douglas while reading The Brethren. He seemed like a rather vile, angry old man. He had considerable contempt for his own law clerks, who were some of the brightest legal minds in the country. Douglas' pricky personality goes much further. Posner quotes portions of Murphy's book, discussing the laundry list of lies that Douglas told about his own life and background. These include everything from claiming to be a WWI veteran (he was not) to claiming that he cured himself of polio through the force of his own will (he never had the disease). There's much more in the article, too much for me to reproduce here.

I've walked past Murphy's book many times in the library. I guess I never had any desire to read a biography about someone who I don't respect. Now, I'm intrigued. I plan on picking this up in the near future. I'm sure it will do nothing but infuriate me more that this man was on the Court for so long.

Neil Gorsuch is now Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. I previously wrote about his nomination here. He has an incredible resume and a ton of experience: degrees from Columbia, Harvard Law, Oxford, clerkships with Sentelle, White, and Kennedy, and working for the DoJ. He's only 38 years old too. If he does well on the Tenth Circuit, I expect Gorsuch to be high on the list of Supreme Court nominees in the future. Imagine, he could get ten years of experience and still only be 48 when appointed to the Court. I look forward to reading his work.

Everyone's favorite (or at least in the top 2) big brain on the Seventh Circuit Court of Appeals, Judge Richard Posner, testified before the House Intelligence Committee yesterday. The topic was the NSA's domestic surveillance program. How Appealing gave me a heads up on this article from this NYT...

Judge Richard A. Posner, an author on intelligence, told the House Intelligence Committee that the requirement for court warrants under the Foreign Intelligence Surveillance Act was “obsolete.”

To get a warrant from the secret court that oversees such eavesdropping, said Judge Posner, who sits on the United States Court of Appeals for the Seventh Circuit, the government must already know who the terrorists are. “The challenge for intelligence is not to track down known terrorists,” he said. “It’s to find out who the terrorists are.”

Posner is once again being Posner here. He's a pragmatist. He's often called a conservative, but I think that label is way off. His view of the law is a very practical one. In this testimony (I'm going by this excerpt since I haven't been able to watch it all yet), he's basically telling it like it is. The intelligence means needed to find terrorists is not the same means that we use under FISA. If the goal is to find them, then this apparatus is not going to get the job done. You may believe that FISA should be strictly adhered to and that's certainly a reasonable position to have. However, you must recognize that a strictly adhered to FISA will make it much more difficult to find unknown terrorists. Posner is just laying this out as the state of things. I'm looking forward to watching all of this testimony tomorrow (that's how cool I am...).

There are few three letter combos that can elicit a reaction like IPA. Most beer drinkers that I know have strong feelings about IPA's, or India Pale Ales. The IPA is a British invention, created to survive the long voyage to India. When you hear IPA, immediately think "hops". Hops give a beer flavor, usually a bitter flavor. There is also a signature hoppy bite to heavily hopped beers. The overpowering hop flavor in IPA's causes most drinkers to either happily embrace this variety or totally scorn it. I'll admit to be an IPA snob. I like hops but only to a point. I want to taste the beer too. I don't want a mouthful of hop bite.

Tonight's selection is the New Glarus Hearty Hop IPA. It has a dark bronze color to it. The head is fairly frothy and maintains itself well. Even recovering from a cold, I can smell the aroma. It is hoppy and spicy. The first taste will remind you that this is an IPA, in case you forgot. As the beer passes over your tongue, you get hit with a sharp hoppy bite. It certainly wakes you up. There is a nice aftertaste of woody hops, but it does dissipate after a few moments. It finishes fairly clean, leaving your mouth feeling dry after the flavor is finally gone.

This is a beer that you sip slowly and enjoy. There is something about the combination of an IPA, a warm Summer night, and a patio that is just right. If you like IPA's, the New Glaurs Hearty Hop will probably be right up your alley. If you aren't into hops, pass on it.

From Reuters...

In a move intended to preserve a reference to God in an oath recited by millions of Americans each day, the House of Representatives voted on Wednesday to prevent U.S. courts from hearing challenges to the Pledge of Allegiance.

The bill is still stuck in the Senate, but this House vote may cause it to start moving.

The Ninth Circuit previous struck down the pledge as unconstitutional. The Supreme Court then said that petitioner Michael Newdow, lacked the ability to bring the suit (known as standing) on behalf of his daughter. In the case Elk Grove Unified School District v Newdow, the Court reasoned that since Newdow's ex-wife had sole legal custody of their daughter, he could not sue on her behalf.

This was seen by many as the Court punting the case. Four Justices (Rehnquist, O'Connor, Scalia, and Thomas) issued three concurring opinions, stating that Newdow did have standing and he should have lost the case on its merits. Justice Thomas' opinion, which is an analysis of the Establishment Clause as a federalism provision, is especially interesting. In my opinion, the other five Justices just wanted this case to go away. They saw an opening with the standing issue and took it. Now, the case is on its way back, unless the Senate acts here to restrict the courts' jurisdiction.

This may come as a shock to many, but Congress does have this power. As part of those lovely checks and balances that our federal structure has, the Founders gave us Article III, Section 2, Clause 2...

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress can't touch the original jurisdiction of the Supreme Court. That first sentence covers all of those case types. The appellate jurisdiction is under the control of Congress. They can restrict the Court on those cases. Another fun fact for those of you who slept during high school civics... the Supreme Court is the only court specifically created in the Constitution. All of the other federal courts (known as Article III courts) are created by Congress. Congress can create and abolish those courts with a vote. They cannot do that for the Supreme Court though, since it is explicitly in the Constitution. These items, along with confirmation of judges, are the checks that the legislative branch has on the judicial branch.

Congress has done this before too. The Court has had to examine jurisdiction (as altered by Congress) issues in the past in Ex Parte McCardle and Ex Parte Yerger after the Civil War. A more apt example of Congress "interfering" in an ongoing case would be the recent Hamdan case. Congress passed legislation to strip the courts from hearing cases involving Gitmo. However, the majority on the Court decided to ignore that and heard the case anyway.

If the Senate does pass this bill, what will the Court do? Will they pull a Hamdan, dance around the will of Congress, and hear the case? Or will they decline to hear the case based on what Congress has said? I don't think there is a Justice on the Court who wants to be known as "one of the majority that struck down the Pledge of Allegiance". Even if they think that it is in violation of the Establishment Clause, they don't want that as their legacy. Either they punt again (thanks to Congress), rule in favor of the government and the pledge stays, or rule in favor of Newdow and take the heat. It's going to be fun to watch.

EDIT: NRO's Greg Pollowitz spotted this great line from Minority Leader Nancy Pelosi...

There was a vote yesterday in the House to protect the "Under God" provision of the Pledge of Allegiance. The legislation passed 260-167. Nancy Pelosi voted against the bill and had this to say:

"We are making an all-out assault on the Constitution . . . which, thank God, will fail."

Thank God the courts will be able to rule on "Under God"?

God bless Nancy Pelosi.

Actually, that is Justice Stephen Breyer with the mascots for the Boston Red Sox. He, his wife, and his granddaughter were at the game yesterday to throw out the first pitch.

I'm starting to think that all of the Justices like baseball, or at least a substantial majority of them. I haven't seen Justice Ginsburg throw out a pitch yet, though I would pay the price of admission just for that. Justice Thomas is a big NASCAR fan, but I don't know if he's a Braves fan. I'm sure that the other baseball-loving Justices will out themselves as the Summer passes. Hell, I'd take advantage of the position too. I want to throw out the first pitch.

Although I don't intend to write anything about the current business in Lebanon, I'd like to give my endorsement to a great source of information about it. I've been following the events closely but have been very disappointed in the coverage by most of the news outlets. The analysis has been fairly lacking too. I've been getting my best information, analysis, and predictions from Stratfor. What is Stratfor? Other than the coolest thing ever, it is this...

Founded in 1996, Stratfor has revolutionized the way businesses, trade associations, government agencies, and individuals get access to timely, accurate global intelligence, analysis, and forecasting for making their most important strategic decisions. Stratfor has been cited in the mainstream media for the "uncanny accuracy" of our forecasts and our "ability to uncover the globe's best-kept secrets and predict world-changing events in ways that no one else can" (ABC News).
...
Known by the largest and most successful global corporations as the "shadow CIA" (Barron's), Stratfor can be your secret weapon for navigating the global business and political environment and optimizing the results of your initiatives.

They have eyes and ears everywhere. Their information has been solid in the past, and I've been very pleased with their coverage of the current situation. There are free Intelligence Reports available (after you sign up) if you aren't ready to fork over the big money to join the service.

Stratfor founder and chairman Dr. George Friedman is the author of a few books, including America's Secret War. I recommend checking it out. It is a no frills, no political partisanship view of the post-September 11th actions taken by the U.S. and others. Not that I don't love watching Anderson Cooper dodging Katyushas or anything, but I'll stick with Stratfor for now.

While reading through the newest opinions from my beloved Seventh Circuit Court of Appeals, I came across an interesting footnote. In US v Bullock, Judge Terence Evans (MULS alum) is writing for the panel. The case concerns the length of a sentence given to a heroin dealer. Our lucky contestant got 1200 months in federal prison. Yup, 100 years. Before jumping into the court's Booker analysis, Judge Evans hits us with this odd sentence and footnote...

One hundred years is a long time - one year longer, in fact, than the standard lyrical shorthand for an unimaginably long sentence.

The footnote follows...

See, e.g., Bruce Springsteen, "Johnny 99" ("Well the evidence is clear, gonna let the sentence, son, for the crime / Prison for 98 and a year and we'll call it even, Johnny 99."); Bob Dylan, "Percy's Song" ("It may be true he's got a sentence to serve / But ninety-nine years, he just don't deserve."); Johnny Cash, "Cocaine Blues" ("The judge he smiled as he picked up his pen / Ninety-nine years in the Folsom pen / Ninety-nine years underneath that ground / I can't forget the day I shot that bad bitch down."); Ed Bruce, "Ninety-Seven More To Go" ("Ninety-nine years go so slow / When you still got ninety-seven more to go.")...

The footnote continues at some length, and I don't feel like typing it all. I think it's safe to say that Judge Evans is a music fan. You never know what you are going to find in these cases.

From The Onion...

WASHINGTON, DC- The Supreme Court's third 5-5 vote in the past month has some justices wondering whether one of their number is voting twice. "As the highest court in the land, it's vital that the Supreme Court observes the basic rule of one vote per justice, even if it's hard to pick a side," a spokesman for Chief Justice John Roberts said. "The court will begin again on Thursday in the usual fashion, writing votes for SCOTUS case 11816, People v. Padilla and Brown, on little slips of paper, placing them into the Supreme Court voting hat, and not peeking." Observers are calling this the worst breach of court procedure since Chief Justice Warren Burger temporarily moved the court to an Arlington, VA Red Lobster for the inaugural Lobsterfest in 1983.

I wasn't aware that Chief Justice Burger was that big of a lobster fan. He was a very upper class, patrician-type guy. I'd think that Red Lobster would be a little too "Fifth Circuit" for him.

Richard Epstein is a professor at the University of Chicago Law School and something of a property rights guru. He has written this WSJ piece, posted on Cato, about the Supreme Court. In it, Epstein examines how the Justices make their decisions, looking back at the last term. He first examines their approaches...

[T]he justices oscillate uneasily between two inconsistent approaches. Sometimes they distill the meaning of a disputed provision by making their best independent judgment about its structure and function. So they slap down any government officials who exceed statutory powers. Alternatively, they lament the imprecision of language, doubt their own expertise about social and political complexities, and defer to whatever reading the official gives to the statute that empowers him.

This is generally how statutory interpretation cases go. However, Epstein says that the conservative and liberal wings of the Court do not apply the standards consistently. What is the key to figuring out which way each wing will vote? Epstein knows...

They defer only to the government officials they trust. Otherwise, they read a statute carefully to rein in the authority of officials they don't trust. The two factions don't differ in their philosophy of language, or in their on-again, off-again adherence to the rule of law. Rather, the court's liberal wing profoundly distrusts this president, but has great confidence in the domestic administrative agencies that regulate matters such as the environment. The conservative wing of the court flips over. It willingly defers to the president on national security issues while looking askance at expansionist tendencies of the administrative agencies.

I think Epstein is correct on this point. He uses the Rapanos and Hamdan cases to illustrate the point. Justice Thomas made the exact comparison in his Hamdan dissent...

Those Justices who today disregard the commander-in-chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusion that a storm drain is a tributary of the waters of the United States...

It's all about who you trust. Do you trust the president or do you trust the Army Corp of Engineers? There's a third option, the Epstein option: Don't trust either of them...

Our Constitution starts out with a presumption of distrust of all government actors, which is why it drew a sharp line between the legislative and executive branches. We can argue until the cows come home whether national security or environmental protection presents the greater threat of executive or administrative misuse. But that ranking really doesn't matter, because there is no reason why the Supreme Court has to defer to overaggressive public officials in either context.

Epstein is calling for the Justices to quit playing dumb on statutory language, even when it means they have to defer to someone they don't like. It's wishful thinking, though. The Justices don't have to do it. They have no reason to do it(aside from their own consciences). What's going to force them? Public criticism? They get that anyway. Epstein may be right on principle, but the reality and politics of the Court will keep that from ever coming to pass.

Joel McNally is one of my favorite people of all time. Seriously. If I am home on a Sunday morning, I tune in to Mark Belling's TV show hoping, pleading, praying that McNally is on the panel. Why? Because the most insane crap comes out of this guy's mouth. First, it was that the 2004 election eve tire slashers were really voting rights heroes. Now, it's 9-11 conspiracies.

You'd have to be under a rock to not know about the Kevin Barrett, UW-Madison, 9-11 thing, so I won't go into the details. I just want to get into this column by McNally, cause it's a doozy. On to the madness...

If you don't believe at least a few wild-eyed government conspiracies, you're not paying attention.

Okay, right off the bat we get a protest bumper sticker slogan turned into an introduction. Things can only get better...

Anyone who believes "official explanations" of world events provided by the government gets stuck with having to swallow stuff like President John F. Kennedy being assassinated by a lone gunman using a single "magic bullet" that passed through the president to wound Texas Gov. John Connally in the back, chest, wrist and thigh before being recovered in pristine condition.

Obviously, McNally has not spent time on Prof. John McAdams' website or read Case Closed by Gerald Posner. I would suggest that he take the time, but I doubt it would do any good.

Then McNally hits us with this anecdote and stunning logic...

My wife Kit and I were in Madrid on Sept. 11, 2001. That night, a few hours after a hotel clerk told us terrorists were attacking all over the United States and that troops were in the streets restoring order, we went out to dinner with a young economist who worked for the Spanish government.

Our dinner companion gave us more accurate information based on the reports he had been receiving all afternoon. He described the attacks on the World Trade Center and the Pentagon.

He also told us the U.S. government had shot down a hijacked passenger plane that was headed for the White House.

Brace for the conclusion that he draws. It's a doozy...

Since everything else he told us that night turned out to be true, I have never been able to accept the popular mythology about the heroic passengers of Flight 93 rising up to give their lives to thwart the hijackers for the red, white and blue.

Let me get this straight. Some clerk who has been riding a desk at a hotel gives you some fuzzy info early in the day on 9-11. The clerk gets some details wrong. Then some dude with an econ degree later in the evening tells you a more accurate description about some of the events. He also claims that the U.S. shot down Flight 93, which had been speculated about on the news coverage but never confirmed. You now take anything that this man said as the Bible truth of the day's events.

Okay...

Look, we all (hotel clerks included) didn't exactly have a handle on what was happening on 9-11. As the day progressed, everyone started to understand the basics of what happened. That's sort of what one would expect in a crisis situation. The news coverage wasn't helpful most of the time. A lot of them had a very WTF? manner about them, which was totally understandable. There were a lot of ideas, theories, and unconfirmed reports of things happening. I also heard that Flight 93 might have been shot down. I heard lots of rumors. McNally is simply believing what he wants to believe in this instance.

Okay, a guy working for a government gives you some credible information about what happened. You have an inclination to believe what he says concerning this topic. But your intellectual search for the truth should not stop there. Shouldn't you want to check this out? Perhaps you could examine the numerous passenger phone calls and the black box recording that corroborated the official explanation for what happened on the plane. Perhaps you could page through the 9-11 Commission Report. Perhaps you could even view the Spaniard economist's information with a shred of skepticism since, you know, he was an ocean away and not on the plane. Just a thought.

In theory, McNally is right... almost. You should be skeptical. However, you should not just be a skeptic for the sake of being a skeptic. You also have to ask questions, do some research, and draw logical conclusions based on weighing the evidence that you find. He only made it to Step 1. He's happy with his "the government lies, man" mantra and his disbelief that a group of ordinary people could do something extraordinary when the moment called for it. That's pretty closed minded.

Why are so many people so willing to buy into conspiracy theories? My theory (there's that word again) is that it makes them feel better in some way. Hear me out... Let's take the Kennedy assassination. President Kennedy was admired by many people and considered a great man. He was a young president with a cute family (immediate family only; Teddy doesn't count) that captured the hearts of a nation. And he was murdered in broad daylight in the middle of a major U.S. city. Who or what could bring this great man down? Surely, it must've been a shadowy cabal made up of the Mafia, the CIA, the FBI, anti-Castro rebels, the military industrial complex, LBJ, and probably you too. It must've been a group with immense power and influence. There's no other way that such a great man, the President of the United States, could've been killed by anything else than these great forces. It's a scary thought to think that one guy, one total loser, with a rifle could do such a thing. In fact, it's absolutely frightening. But I also think that, based on all of the reading that I have done, it's absolutely true.

This Wednesday, I was at Club Garibaldi for the second meeting of The Onion's Society for Beer Enjoyment. If you haven't seen the ads, The Onion has put together a group for those of us interested in enjoying excellent beer at some of Milwaukee's finest bars. It's free to join and you get to drink free beer during the event. My friends and I tried both the Lakefront Riverwest Stein and the Lakefront White. Since I already reviewed the Stein, I'll tackle the White.

The Lakefront White is an American (and Milwaukee) version of a Belgian Witbier. It has that distinct hazy, translucent gold that you would expect from any other white. It also appears to be unfiltered. The head is fairly thin, much thinner than the Riverwest Stein. The aroma is sort of lemony, sort of yeasty. It's not overpowering, but it's there. The lemon-citrus smell is the precursor to the citrusy flavor. It reminded me of coriander. The finish is crisp and fairly light. It's incredibly drinkable and refreshing, definitely a Summer beer. It's probably not my favorite Lakefront selection, but that's not exactly a bad thing. It has a lot of tough competition for that spot. It's worth a try.

By some act of Satan, I ended up reading The Nation today. I read through David Cole's article about the Supreme Court, oh so originally titled The 'Kennedy Court'. I know, I know, there have been six and a half million articles about Justice Kennedy's influence on the Court. I admit to being a part of the problem too.

Cole spends the beginning of the article lighting off fireworks in honor of the Hamdan decision. After some celebrating, Cole hits us with this hyperbolic statement...

But as much as Hamdan deserved celebration for rejecting the President's vision of unchecked power in the post-9/11 world, the term also showed just how close the country is to a system of government that has no meaningful checks and balances.

"No meaningful checks and balances." That actually translates into "the branches of the government will not do something that I want (because my side got trounced in the last few elections), therefore we are living in a police state." We have elections in this country. If the public does not support the policies and direction of the majority party, they will vote them out. Let's just calm down on the "OMG DICTATORSHIP!!!" comments.

You may think that this post's title refers to the previously mentioned statement, but it does not. After the usual examination of Justice Kennedy's swing voting from the past term, Cole enters the fear portion of the article...

But the voting alignment in Hamdan and many other important cases this term only illustrates how close the Court is to veering off in an extreme rightward direction. Its two oldest members are Justice Stevens, at 86, and Justice Ginsburg, at 73. If either retires while a Republican President is in office, the Court will likely be reliably conservative for several decades at least.

I have made this point numerous times. The liberal wing of the Court is older and in worse health than the conservative wing. The next retirement is almost guaranteed to come from their ranks. Cole continues...

Perhaps never before has the power to appoint the next Justice been so potentially determinative of the course of constitutional law.

Depending on which Justice is next to go, this is true. As I said, a liberal retirement as the next retirement is almost guaranteed. If there is a liberal to conservative flip, then Cole is right. It would be huge. If it is a conservative replacing a conservative, that is still important but not as important. A new, younger Justice, even one with the same voting pattern, is still an important appointment.

Now, Cole gets really ominous...

Meanwhile, the division on the Court will undoubtedly continue next year. The Court has already agreed to take up cases involving so-called "partial birth" abortion laws and efforts to maintain racial balance in public schools. On both issues Justice Kennedy has previously sided with conservatives. While he was in the majority that refused to overrule Roe v. Wade in Planned Parenthood v. Casey, he dissented passionately from the Court's application of Casey to strike down a "partial birth" abortion statute in 2000. And he has been an outspoken critic of affirmative action, voting to declare it unconstitutional in the University of Michigan's affirmative action cases just three years ago. This time next year, in other words, we may not be celebrating.

To me, the idea of celebrating a court striking down a partial birth abortion ban is a troubling thought. If that's what gives Cole his jollies, well, great for him. I do think that Cole is right that the partial birth abortion cases will not go his way. I re-read Kennedy's dissent in Stenberg v Carhart the other day. I can't see him changing his vote. If Roberts and Alito join Kennedy, Scalia, and Thomas, then the bans will stay in place. Cole will just have to deal with it.

Judge Alex Kozinski is one of the most intelligent and entertaining federal judges. He's got a great writing style, a sharp wit, and an active sense of humor that has served him well during his two decades on the Ninth Circuit Court of Appeals. Kozinski sat down with Reason for this very interesting interview.

Here is Kozinski talking about growing up in Communist Romania and his philosophical transformation...

I was a very committed communist when I was there. I believed in communism, and I thought it was the wave of the future. When my parents applied to leave, I thought it was a good thing because I’d be able to educate the workers of the West that they were being enslaved by capitalist exploiters.

When we arrived in Vienna, I discovered bubblegum and chocolate. These things were nonexistent in Romania, and I immediately became a capitalist. I was easily bought off.

The Reason interviewer spent a great deal of time talking about privacy. He/she seemed to be trying to get Kozinski to agree that the courts had to protect people's privacy as they began using new technologies. Here is Kozinski's response...

If you can set up an e-mail system using your own servers, using nobody else’s lines, then you can have a perfectly secure system. You want to use other people’s telephone lines and other people’s networks, and you want to be protected from being monitored by them. You can try to sort out your privacy concerns contractually with your provider or employer, but it should be up to you.

This has been my point of view. If you are using someone else's service to access the internet (for example), don't be shocked that they have a record of everything that you view. You are choosing to use their service. If you don't like the terms of service (you know, that thing you never read and just click OK), don't sign up for it.

While discussing the FISA issues and use of presidential in national security, Kozinski offered up this comment...

It depends on the body count, doesn’t it? Fifty million dead? A hundred million dead? Or are you talking about destroying America as we know it? Destroying our industrial base or covering our fields with radioactive waste so we can’t grow any food for the next three millennia? I’d be willing to give up some privacy to prevent those things.

Kozinski seems to be taking a very pragmatic, Posner-esque approach to the War on Terror. Would you rather have the president actively and aggressively searching for threats or not? And if not, would the possible high costs of not actively searching change how you think? This was the most surprising comment from Kozinski in the interview.

Kozinski seems to tip his hat slightly about his views on the Court's record on campaign finance laws and protecting free speech...

Well, they had done that before in Buckley v. Valeo [a 1976 ruling that upheld campaign finance laws]. I was disappointed they didn’t cut back on Buckley, but they’re not perfect. By and large, they’ve been pretty effective on free speech. We have some Supreme Court justices, such as Justice Kennedy, who are very protective of free speech. He usually picks up a majority. It doesn’t mean that I wouldn’t go farther in some areas.

I think that Kozinski would have no problem gutting Buckley if he were on the Court.

Kozinski also talks about public schools, limited government, the Kelo decision (which he agreed with), capital punishment, and the Commerce Clause. This was a great interview. I really wish that federal judges (especially interesting ones) would talk more like this.

The last question in the interview really sums things up nicely...

Reason: Then can you tell us which justice or judge out there most exemplifies your own approach to law?

Kozinski: Judge Kozinski.

The man is nothing but an individual.

Chief Justice John Roberts spoke the yesterday at the Ninth Circuit Court of Appeals. He was one of the guests attending the Ninth's Judicial Conference. Roberts participated in an informal Q&A session. I haven't been able to find much coverage of the event, but I'm curious to see what was discussed.

EDIT: Wow, that was fast. First we have the Chief discussing cameras at the Supreme Court...

"There's a concern (among justices) about the impact of television on the functioning of the institution," Roberts said. "We're going to be very careful before we do anything that might have an adverse impact" on oral arguments.
...
He noted that the court has increasingly made audiotapes of arguments in major cases available to the media as soon as a hearing ends.

But, he added, "we don't have oral arguments to show the public how we function. We have them to learn about a particular case in a particular way."

Don't expect to see televised oral arguments any time soon.

The topic of Court unanimity came up as well. The first half of the Roberts Court was relatively boring with few split decisions. Here is Roberts taking on some of the journalists and commentators who thought that the divisions later in the term meant that the unanimity was a joke...

"When (Joe) DiMaggio finally ended his hitting streak, sportswriters didn't say, 'He's all washed up.' "

I think it's hard to draw any concrete conclusions from one term with Roberts at the helm. He may be able to narrow the focus of the cases eventually and bring a little sanity to the Court. However, I would bet that we'd need more personnel changes for that to happen.

The twin headed beast known as boredom and intellectual curiosity led me to the Seventh Circuit Court of Appeals website once again today. I like to know what my circuit is doing, and I like to know what my judges are doing. This tax case caught my eye. The three judge panel included Judge Frank Easterbrook, Judge Diane Wood, and Judge Diane Sykes. This opinion is full of great Easterbrook moments. Let's start with the first sentence...

Sophie Szopa maintains that only corporations and foreign citizens need pay income taxes.

I can just imagine his eyes rolling as he writes this.

Szopa decided to pull the old "you can't tax me" routine and paired it with the "and this court can't punish me" flourish. In case you are getting any ideas, this does not work. More from Frank...

Szopa maintained that the Tax Court cannot entertain litigation about what Szopa insists is an "employment tax" rather than an "income tax." Moreover, she asserts, the Tax Court is not a "court" - notwithstanding its name, its governing statutes, and Freytag v CIR [citation omitted] - and cannot resolve disputes about points of law.

Here's an argument that's going nowhere fast. Easterbrook then says "There is no excuse for persistence in such a foolish argument."

Fear not, Judge Easterbrook has enough venom for everyone, including the Justice Department. The DoJ claimed that the amounts of money that they spent fighting these frivolous suits was... well, a lot. Easterbrook then examines the salary paid to a government tax lawyer as well as the costs of support staff. Using a little math, Easterbrook figures out that it would take a government tax lawyer ten full days to respond to one of these frivolous claims. He says...

If this is really how the Department of Justice staffs these cases, it needs to rethink its assignment practices.

He's arrogant... but he has earned the right to be. Another gem...

Why would it take 10 days to produce a brief at the glacial rate of 1.6 pages a day?

Even I write faster than that.

I just wish that I could have heard the oral arguments for this case. Easterbrook must've been losing his mind. I think that he's an incredibly entertaining judge. He's brainy as hell and doesn't have a problem browbeating the lowly mortals who dare enter his court. Someone put this man on the Supreme Court. He and Scalia would be hilarious to see in action together.

The Seventh Circuit Court of Appeals (my circuit) delivered an interesting opinion regarding religious liberty, the First Amendment, and university student groups. The three judge panel divided 2-1, with Judge Diane Sykes writing for the majority. The case concerns a student group, the Christian Legal Society, at the Southern Illinois University School of Law. The dean revoked their official status, thus taking away funding, access to student e-mail directories, rooms for private meetings, etc. CLS had rules that demanded that their officers live by a certain code of conduct, one that would preclude anyone who was openly and actively homosexual (you could be gay and serve as an officer if you didn't engage in any non-Bible approved sexual activity and repented for any past buggery). The dean received a complaint about this and revoke their status, stating that the group was violating the Affirmative Action/Equal Employment Opportunity Policy and an SIU Board of Trustees policy. CLS filed suit and asked for an injunction to restore their status while the lawsuits worked their way through the courts. The district court denied the injunction, and the case was appealed.

Writing for herself and Judge Kanne, Judge Sykes stated that the district court erred in not issuing the injunction. A distinction was made between CLS restricting its officers based on conduct, rather than orientation. CLS's policies would preclude anyone who engaged in non-Bible approved sexual conduct, that includes heterosexual sex before marriage.

Judge Sykes also believes that CLS was likely to succeed (one of the prongs involved in getting an injunction) based on their expressive association and free speech claims. The expressive association analysis includes those old favorites Boy Scouts of America v Dale (the gay scoutmaster case) and Hurley v Irish-American Gay, Lesbian, & Bisexual Group of Boston (the St. Patrick's Day parade case). Judge Sykes states...

It would be difficult for CLS to sincerely and effectively convey a message of disapproval for certain types of conduct it, at the same time, it must accept members who engage in that conduct. CLS's beliefs about sexual morality are among its defining values; forcing it to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist. We have no difficulty in concluding that SIU's application of its nondiscrimination policies in this way burdens CLS's ability to express its ideas.

Judge Sykes also states that SIU is not applying its policies to all groups...

The Muslim Students' Association, for example, limits membership to Muslims. Similarly, membership in the Adventist Campus Ministries is limited to those "professing Seventh Day Adventist Faith, and all other students who are interested in studying the Holy Bible and applying its principles." Membership in the Young Women's Coalition is for women only, though regardless of their race, color, creed, religion, ethnicity, sexual orientation, or physical ability. There are other examples, but we need not cite them all.

Just so you know, MULS has an Association for Women in Law. Guys can join though. I think they just want the dues.

Judge Diane Wood writes the dissent here. She states that the factual record is lacking in much needed detail (a claim which was echoed by the majority). Judge Wood presents a list of honestly important questions about the facts that have not been addressed (to my knowledge, I haven't looked at the briefs or the district court record). Judge Wood then states that appeals courts should not second guess the lower courts if the facts of the case are as close as they are here. She also takes issue with the majority and their analysis of the conduct v. orientation claim. She even cites Lawrence v Texas.

I honestly like Judge Wood. She's a Clinton appointee, but she still an incredibly sharp judge. I saw her on a panel with Judge Easterbrook once, and she managed to keep up with him and hold her own in the discussion. They are both big antitrust nerds (she served in the DoJ division) and both taught at the University of Chicago. She'd be a great Supreme Court pick for a Democratic president.

I also like Judge Sykes, which shouldn't be a secret to readers of this blog. I think that this decision only makes her stock rise for a potential Supreme Court nomination. Religious liberty has become a big issue with many folks on the Right in the last decade or so. If the White House gets another vacancy in the next two and a half years and they want to appoint a woman, Judge Sykes will be high on the short list.

For some reason, the blog template for Eminent Domain has taken a crap on me. This has happened before in the past and has self-corrected. Hopefully, it will do the same in the near future. If it doesn't, I'm going to have to do some playing with the code. For now, you'll just have to bear with the ugly white background and the links shoved to the bottom of the page. I have crap to go do.

EDIT: I gave the template until I finished cutting the lawn to come back. It did not. My sleek, sexy black and gray format is gone. Welcome to the new look for Eminent Domain.

Orin Kerr had a great post a few days ago concerning the Supreme Court and splintered opinions. Cases this term like Randall give us all nightmares. There are like six or seven separate opinions, the Justices are only joining parts of other opinions, the dissenters are concurring in some parts, it's just a mess. Not only are these opinions hard to read, they make the law very unclear. Prof. Kerr highlights one of his favorite splintered cases, Walter v US...

The Court split 2-2-1-4, with the fifth vote a real doozy. Two Justices, Stevens and Stewart, said that the private viewing had only eliminated privacy protection for what the private parties had seen: Thus the FBI's viewing of the rest of the film violated the Fourth Amendment. Two Justices, White and Brennan, said that the private viewing made no difference at all, and that the private viewing had not eliminated any Fourth Amendment rights. On the other side, four Justices, Blackmun, Burger, Powell, and Rehnquist, took the view that the private viewing had eliminated all Fourth Amendment rights. The deciding vote was Justice Marshall'’s, but Marshall didn't join or write any opinion at all. Although he was the "swing vote," Marshall chose not to express his view. The U.S. Reports simply records, "MR. JUSTICE MARSHALL concurs in the judgment." So the Fourth Amendment was violated, but no one really knows why. Hmm, how helpful.

What a mess. That line up was probably one of my least favorite Courts in recent history. The only Justice on there that I liked was Rehnquist. White was decent at times, but the rest of them... forget about it. I hope the Court will do more to keep this from happening in the future. It's just a headache for the rest of us.

I just saw this on Instapundit...

A federal judge on Monday upheld the FBI's unprecedented raid of a congressional office, saying that barring searches of lawmakers' offices would turn Capitol Hill into "a taxpayer-subsidized sanctuary for crime."

Emphasis added. I think that's the most apt description of government that I've ever read.

It's the middle of summer, hotter than Hell, and I'm sick. Wonderful. I spotted a few legal articles this weekend that are worth a read. I won't go into them too deeply, mainly because I'm hopped up on cold medicine and will probably write an incoherent post.

Howard Bashman has this interesting analysis of the possible split of the Ninth Circuit over the protests of some of its judges...

Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, recently expressed his support for pending legislation to split the 9th U.S. Circuit Court of Appeals into two smaller circuits. Specter's support makes it more likely than ever that the proposal will be favorably reported from the Judiciary Committee to the full U.S. Senate, where the legislation is certain to also gain the support of a majority of senators.

This is long overdue. Regardless of what I think of the Ninth's political bent to their decisions, it's just too freaking big to operate as a unified court. Carve it up like a Thanksgiving turkey.

Pepperdine law professor Douglas Kmiec takes on the current view that it is the Kennedy Court, not the Roberts Court. Kmiec thinks that Kennedy is not just the "new O'Connor"...

In writing her down-to-earth lyric for the court, O'Connor was pragmatic; Kennedy, as an explorer of the spatial heavens, was poetic. Commentators, including myself, would occasionally express frustration with O'Connor's balancing tests that only she could apply, but at least she decided the particular ‚— and often sensitive ‚— case before her. Kennedy's writing, while rhetorically eloquent, can be as maddeningly ambiguous as the abstract poetry of Dame Edith Sitwell or the art of Jackson Pollock. Having taught law for more than 20 years, Kennedy sees all kinds of potential permutations and is quite content to let them percolate unresolved ‚— like provocative questions posed during an academic seminar.

Of all the lines penned about Justice Kennedy and his jurisprudence, I think this may be my favorite...

Kennedy as a solo act poses the perennial Father's Day dilemma: You know the old man needs something, but darned if you can put your finger on it.

That's spot on. Prof. Kmiec thinks that the Court belongs to neither Kennedy nor Roberts. It's at an open minded phase. I'm not sure if I agree, but one term doesn't provide a lot to work with as far as analysis.

Last and certainly least in my heart is Adam Cohen of the New York Times with his whiny editorial complaining about Chief Justice Roberts. He thinks that Roberts has abandoned the judicial modesty approach that many, including Prof. Cass Sunstein, thought Roberts would take. Cohen accuses Roberts of blatantly ruling in favor of Republicans and conservative interests, focusing on the Rapanos and Gonzales cases. Matthew Franck rebuts Cohen here...

Maybe such a view could be sustained if Cohen were to supply legal arguments why a judge should adhere to the deference principle in Rapanos but not in Gonzales. But he doesn’t even try. Instead we get slogans, epithets, and Hyde Park soapbox oration. Scalia’s opinion in Rapanos was “stridently anti-environmentalist,‚” you see. We know the Corps was reasonable because “four justices agreed with‚” its view. In the Oregon assisted-suicide case, on the other hand, we had former AG Ashcroft trying to ‚“invoke an irrelevant federal statute‚”‚—irrelevant because Adam Cohen says so. Roberts would have ‚“overrul[ed] the voters” of Oregon and “intrud[ed] on state sovereignty.‚” Bad things to do, if no good ground exists for doing so. But no legal commentator thinks these are principles that trump all other possible grounds for decision-making. (We‚’ll see whether Cohen objects if his beloved Justice Kennedy puts together five votes in the next few years to bless gay marriage over the wishes of the voters in the ‚“sovereign‚” states.)

I get the feeling that Cohen's love for federalism is very fair-weather. Speaking of "his beloved Justice Kennedy", don't think that this line from Cohen didn't get past me...

The Roberts court's first term was not radically conservative, but only because Justice Anthony Kennedy, the swing justice, steered it on a centrist path.

Let the tempting of Tony Kennedy continue.

Time for more Comtrex.