Eminent Domain

From Volokh...

Does "engaging in a three-way sexual encounter with [a current client] and [the client's] girlfriend" count as having sex "with a current client" (a practice forbidden by state bar rules)?

From Office of Lawyer Regulation v. Inglimo, decided last week by the Wisconsin Supreme Court (paragraph break added):

¶57 The relevant language of SCR 20:1.8(k) is as follows:

(k)(1) ... (i) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer.... (2) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

¶58 The referee found that Attorney Inglimo engaged in sexual relations with L.K.'s girlfriend while she was doing the same with L.K. The OLR essentially argues that the word "with" in SCR 20:1.8(k)(2) connotes a temporal and spatial connection. According to the OLR, as long as the lawyer and the client are both participating in a sexual act at the same time in the same place, they are having sexual relations "with" each other....

¶59 On this issue, we concur with the referee's conclusion [that Inglimo did not violate the rule]. The definition of sexual relations in SCR 20:1.8(k)(1) connotes conduct directly between the lawyer and the client. When the definition refers to touching, the rule speaks of the lawyer intentionally touching the intimate parts of "a person," but the subsequent alternative definitional phrase uses the more definitive "the person" when referring to a situation in which the lawyer causes the touching to be done to him/her. In addition, to the extent that sexual intercourse also qualifies as "sexual relations" under the definition, such conduct is likewise done intentionally (i.e., not by accident).

Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual relations" "with a current client." Thus, the definitional language of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2) together clearly indicate that the prohibited "sexual relations," whether intercourse or touching, must be intentionally done between the lawyer and one particular person, namely the client.... [B]ecause it does not appear that the definitional elements of "sexual relations" have been satisfied, the simple term "with" in the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this situation into a violation of the rule.

Who says a career in law is boring?

I've been dragging my feet on the reviews lately, which is bad for two reasons. First, people seem to like reading them. It's never a good idea to hack off your readers. Second, we're at the tail end of Octoberfest season. This is probably my favorite time of the beer year. Sure, the Winter seasonals are great (and many of them are already in stores), but there is nothing like a great Octoberfest.

Tonight's selection is Bell's Octoberfest. Bell's is a very consistent, high quality Michigan brewery. I'm a fan of most of their line up. The Octoberfest has a clear, amber color to it. The aroma is dominated by the caramel smell from the malts, not surprising for this style. The taste is smooth and sweet. It's flavorful but not too heavy. The caramel taste of the malts coats the inside of your mouth, leaving a pleasant after taste. The finish is a little surprising. There is a small bite from the hops, but nothing overpowering. I definitely didn't see it coming, but the harshness is reduced as you continue drinking.

I urge you to get your hands on the Octoberfests while you can. Hacker-Pschorr's is great this year, as is Sam Adams' and Flying Dog's. Don't you just love Octoberfest?


I know I do.

Yes, the beer reviews are back. I had a brief stint a while back writing reviews for a local newspaper. Shockingly, people actually want to read this crap. It's been a while, so here goes nothing. Tonight's selection is the Happy Heron Pale Ale from Amherst, Wisconsin's own Central Waters Brewing Company. I've never had a Central Waters beer before, so the pressure is on to wow me, fellas. The first thing that I notice is the thick, frothy head. I've never seen a headier beer (and I did properly pour it). The beer has a bright orange-golden color to it, not surprising for an American Pale Ale. The aroma is zesty and citrusy, balanced with a hint of graininess. It's an interesting blend. The beer itself is surprisingly light and easy to drink. It's not heavy at all. Since it is a Pale Ale, there is a hop kick to it. The bitterness of the hops doesn't hit you until the very end, but it's a nice jolt. It hits you on the back of your tongue. Overall, this is a crisp and refreshing beer. I only bought a single bottle of it, but I would definitely pick up a six pack in the future.

I'm loving the book Nanny State so far. I'm loving it so much that I'm going to keep my series of posts about the book alive. After a chapter on food, author David Harsanyi moves on to its partner in crime, drink. I'm something of a beer aficionado, so this chapter hits very close to home. Like the previous chapter, this one is full of interesting and horrible examples of bad legislators and bad laws.

The first infuriating example is that of Debra Bolton. Miss Bolton is a lawyer, single mom, and resident of the DC area. She was pulled over shortly after leaving a restaurant (the parking attendant had shut off her car's automatic headlight feature, so her lights weren't on). The kindly police officer then had her take a field sobriety test. All is well until the breathalyzer comes out. Bolton blows a .03. Big deal, right? The one glass of wine she had at dinner didn't push her over DC's .08 blood alcohol limit. Wrong. Our nation's capital adopted a zero tolerance rule for alcohol. If you are behind the wheel and have anything above .01, you can be arrested. And in this case, Bolton was.

According to Harsanyi, this wasn't an isolated incident of one cop abusing (in my view) his discretion. Hundreds of these under-.08 arrests were made in 2003 and 2004 in DC. Thank goodness that these wine-with-dinner menaces are off the streets. It's not like Washington DC has any other crime that the police could be dealing with instead.

Let's switch to speech and advertising issues before my sarcasm breaks the Internet. Harsanyi also discusses the plight of Bad Frog Beer. The label of this microbrew had a picture of a frog giving you, the consumer, the middle finger. Harmless buffoonery? Nope. Bad Frog was banned in eight states. This was, of course, duked out in court. The Frog claimed First Amendment protection; the state of New York claimed that the cartoon frog would attract kids (because kids can often be found scoping out the microbrew selection of liquor and grocery stores). Well, the Frog won. Hey, a win for the good guys for once!

Harsanyi also mentions the Seriously Bad Elf issue. This one is pretty well known to those of us in the beer snob community. The Shelton Brothers are beer importers with a rather extensive list of beers in their fleet. One of them, Seriously Bad Elf, was banned in Connecticut. From the website...

BREAKING NEWS Seriously Bad Elf has been banned in Connecticut! That little red speck you see in the background of the label? Why, that's none other than Kris Kringle, Santa Claus, who, according to the Connecticut Department of Consumer Protection, cannot appear on a beer label. Sleep well, Connecticutians! Your government is working overtime to protect you. (By the way, you can buy Seriously Bad Elf in Massachusetts. And New York. And Rhode Island. But please do not carry the offending bottles across state lines.)

That's right, folks. Multiple states in the Union have laws banning the use of Santa Claus imagery to sell alcohol. Read that sentence again, just to let it sink in. Take a look at the label on the website. You can barely see Santa. There's another Shelton Bros. beer, named Santa's Butt, with a much better view of jolly ol' St. Nick. A rear view, to boot. The fight for vulgar beer labels marches on, though. Dan Shelton was a lawyer before he became a brewer. He's not taking this lying down.

This chapter really surprised me. I didn't think that the anti-alcohol sentiment was so strong in this day and age. The part of the chapter about MADD and its sharp ideological shift was especially interesting. The next chapter is on smoking, a vice that I actually don't embrace. Hopefully, that chapter gives me some great blog material.

Seriously, folks. Buy the book.

Well, in Philadephia...

A DEFENDANT accused of forcing a prostitute at gunpoint to have sex with him and three other men got lucky, so to speak, last week.

A Philadelphia judge dropped all sex and assault charges at his preliminary hearing.

Municipal Judge Teresa Carr Deni instead held the defendant on the bizarre charge of armed robbery for - get this - "theft of services."

Unbelievable.

Deni told me she based her decision on the fact that the prostitute consented to have sex with the defendant.

"She consented and she didn't get paid . . . I thought it was a robbery."

The rest of Jill Porter's column discusses the details of the incident at length and has more comments from the judge. Amazing.

While cruising my way through Friday's Investors Business Daily, I came across this interesting editorial about the Fairness Doctrine. The editors rip the Democrats for trying to revive the Doctrine, calling it an act of jealousy and frustration. While I agree that the Fairness Doctrine is horrible, I can't help but feel sorry for the Democrats in this situation. Since the demise of the Doctrine at the hands of President Reagan, conservative talk radio has become a major political force. The Left has not been able to muster the same AM-airwave power that the Right has in the past two decades. So I do feel sorry for them, but not too sorry.

There was a big flare up of Fairness Doctrine revival talk last Summer. John Kerry bemoaned the "imbalance" in our public dialogue. Dennis Kucinich pushed for the Doctrine to come back (or at least some serious deiscussion of it), and Hillary Clinton and Barbara Boxer supposedly didn't have a conversation about a "legislative fix" to the talk radio problem. Dick Durbin chimed in as well... "I have this old-fashioned attitude that when Americans hear both sides of the story, they're in a better position to make a decision." That's a lot of cranky D's.

With respect to Durbin's statement, I've never believed that there are only two sides to any story, issue, or policy. If the proponents of the Doctrine really cared about having a robust debate, they would have to broaden their scope. Why not have a libertarian viewpoint added to the mix, or a Green viewpoint, or a Socialist viewpoint (we even have one of those in the US Senate, Bernie Sanders)? There are two reasons. First, that's a lot of people trying to share limited airtime. Second and most important, the Fairness Doctrine isn't really about robust debate. It's about getting more liberal voices on the radio and/or pressuring media companies to carry fewer conservative talk shows.

The Supreme Court took up the Constitutionality of the Fairness Doctrine in Red Lion Broadcasting v FCC. The Court said that the Doctrine was Constitutional, discussing the scarcity of the airwaves, the ownership of the airwaves by the public (not by the private entities), and the fact that the stations are licensed by the government. That's probably the worst, most superficial explanation of Red Lion ever written, but I'm sure you get the main idea: the Court okayed the Fairness Doctrine. Would today's Court come to the same conclusion? I'm not sure, but I doubt that the Court would be unanimous like it was in Red Lion.

Why do I dislike the Fairness Doctrine so much? Am I that big a fan of talk radio? Not exactly. The Fairness Doctrine has a history of being used as a weapon against political rivals. Here's an excellent summary by Jesse Walker, which includes some examples...

In December 1961, Walter and Victor Reuther of the United Auto Workers, together with the liberal lawyer Joseph Rauh, wrote a 24-page memorandum to Atty. Gen. Bobby Kennedy. The memo urged the administration to deploy the FBI, the IRS, and, yes, the FCC to win "the struggle against the radical right," which to the Reuthers included not just the John Birch Society and the Christian Crusade but Sen. Barry Goldwater and the libertarian Volker Fund. The FCC, the authors wrote, "might consider examining into the extent of the practice of giving free time to the radical right and could take measures to encourage stations to assign comparable time for an opposing point of view on a free basis."

Okay, that seems a little ominous, but not exactly damning. It's just a memo. Wait, there's more...

In his 1976 book The Good Guys, the Bad Guys, and the First Amendment, former CBS president Fred Friendly quoted Bill Ruder, an assistant secretary of commerce under Kennedy and a PR consultant during Johnson's presidential campaign, on the advantages of the regulation. "Our massive strategy," Ruder said, "was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."

Well, now that's a little more direct, an administration official stating that the Fairness Doctrine was used to harass political opponents. But let's be fair here, even the right wingers got in on the act...

Private activists directed by the Republican National Committee regularly filed Fairness Doctrine challenges against stations whose reporting angered the White House, and Nixon staffers found they could intimidate network officials merely by threatening to challenge their licenses if their coverage was deemed "unfair." Twenty-one times during the intense antiwar demonstrations of October 1969, Nixon told his underlings to take "specific action relating to what could be considered unfair network news coverage."

Government intimidation of news networks. Sounds like fairness to me.

I'm a lifelong Milwaukeean, so this example really jumped out at me...

In 1981, Milwaukee Mayor Henry Maier asked the FCC to intervene after WTMJ-TV ran 15 editorials criticizing his city government. The commission didn't find any violation of the Fairness Doctrine. When Mayor Maier asked the courts to force the regulators' hand, they also sided with the station. But in the meantime, the broadcasters had run up a legal bill of $17,000 defending themselves.

Here is an excellent example of why the Fairness Doctrine is horribly flawed. It didn't matter that WTMJ was right the entire time. They still had to fight Maier's attempt to sic the FCC on them. A fight like that costs a lot of money. If you think $17,000 is a lot of money, remember that this is in 1981 dollars too. Is this really the "fairness" that we want?

This quote by Nat Hentoff from the Walker article really nails it...

"When official Fairness Doctrine letters came to the station's owner from the FCC, the front office panicked," he wrote. "Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent. After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station."

Station owners had to spend significant amounts of money when they simply received Fairness Doctrine letters from the FCC. The owners got sick of the time and money spent in response, so they watered down their programming. Nothing controversial or thought provoking gets on the air because the owners don't want to deal with the FCC or pay the bills. That sure would correct the imbalance in our public dialogue. It would do it by ending the dialogue.

A few days ago, I mentioned that I was reading Nanny State: How Food Fascists, Teetotaling Do-Gooders, Priggish Moralists, and other Boneheaded Bureaucrats are Turning America into a Nation of Children by David Harsanyi. I toyed with the idea of doing a review after I finished the book, but I decided against it. Instead, I'm going to periodically post about things in the book that I find interesting. I'm a little over 100 pages into it, and I've already found a lot that I'd like to discuss.

Chapter 1, Twinkie Fascists, is all about food. I'm sure you all are aware of the concerted effort by a few busybodies to get us eating healthier. Creative people who hate your personal freedom and menu choices have come up with a wide variety of legislative fixes to your expanding waistline. Harsanyi mentions things like trans fat bans, laws regulating portion sizes at restaurants, and body mass index taxes. These are all very interesting and horrible, but one really takes the cake (literally). It happened in Texas of all places...

She [Texas agriculture commissioner Susan Combs] went out and banned all foods of "minimal nutritional value" at schools. Food and beverages like "carbonated drinks, frozen flavored ices (sicles), chewing gum, and candies (including hard candy, jellies, and gums, marshmallow, fondants, licorice, spun candy, and candy coated popcorn)."

This scatter gun ban also got rid of cupcakes, a birthday treat favorite of kids even back when I was in grade school. Then came one of the most absurd blocks of text I have ever seen in print...

To undo some of the damage, the Texas legislature attempted to pass a law that allowed cupcakes just for birthday parties. "We have an opportunity to really make the children happy here," said Representative Jim Dunnam, whose school-age daughter, Lauren, had asked him if he could make cupcakes legal again. Soon enough, Combs relented, offering a "cupcake clarification" to allow cakes at school birthday parties.

When I read this, the only thought in my head was "Are you f*cking sh*tting me?!" Is this really what government is for? Do you think Thomas Jefferson, John Adams, James Madison, and friends would be pleased with this? It would be one thing if these were just stupid regulations on the books somewhere that really didn't mean anything. But Combs was actually enforcing them and dished out more than $8,000 in fines to public schools.

I'm not against eating healthy or against offering healthy choices, especially with kids involved. However, these bans and zero tolerance policies are just stupid. Part of becoming an adult is learning to take responsibility for your own choices and actions. Sheltering kids from things like Crystal Lite and chewing gum isn't going to do anything to impart those life lessons. Beyond that, if a kid wants to have a candy bar at lunch, who the hell are you to say no? It's not like eating strychnine. This is just bad government and bad lawmaking.

When Fritos are outlawed, only outlaws will eat Fritos.

This is yet another post in my continuing Thomas-palooza series. Here is a four part interview of Justice Clarence Thomas by radio host Mark Levin.

Part 1
Part 2
Part 3
Part 4

I haven't made it through the whole thing, so I can't offer much of a substantive critique. But I do know one thing: Mark Levin has a strange voice. This is the first time I've heard it.

Journalist Kevin Merida, co-author of a recent book on Justice Clarence Thomas, stopped by Marquette Law School this semester to talk with Mike Gousha. Gousha, formerly of WTMJ, is the Distinguished Fellow of Law and Public Policy at Marquette. He's been bringing in a wide variety of community leaders, politicians, lawyers, and authors for discussion sessions.

Here is a video clip of Merida talking about some of the counter intuitive similarities between Justice Thomas and Justice Thurgood Marshall, the Justice that Thomas replaced...

There are a few more video clips on YouTube from Gousha events. Check them out to see what's going on at the law school between classes.

It's almost that time of the year again. The 2007 National Lawyers Convention of the Federalist Society is almost upon us. From November 15 to 17, the nation's conservative and libertarian lawyers will hang out in DC, talk shop, attend discussion panels, and have a good time.

Four Supreme Court Justices (Roberts, Scalia, Thomas, and Alito) will be speaking, as well as almost-Justice Bork, Ted Olson, Ed Meese, and Rudy Giuliani. That doesn't even being to scratch the surface of the big names in attendance either. Click the link above to see the discussion panels. It's incredibly impressive. I'm proud that the Seventh Circuit will be well represented by Judges Easterbrook and Sykes.

Guess who's not going? Me! I'd love to go, but it just isn't in the cards right now. It's at an inconvenient time and the cost is a little steep. Plus, I have no desire to rent a tux. If you have the means and the desire, I'd strongly suggest going.

I know that many people have already seen this (it's a bit old), but I thought I'd comment on this op-ed by Professor Steven Calabresi. Calabresi is a co-founder of that shadowy cabal, the Federalist Society. The essay discusses originalism, a theory of Constitutional interpretation, as well as other aspects of the Supreme Court. As I am a card carrying member of the Federalist Society (seriously, ask me to see my card sometime, I'd be glad to show you), expect a lot of agreement from me in my analysis of the piece.

Calabresi, concerned about the moans and groans in the media about the "dramatic rightward shift" of the Roberts Court, felt that the real work of the Court should be looked at in much more detail. The media loves to focus on the results or a pithy quote from a dissenter or something similarly superficial. The real question is this: How exactly should the Court decide cases? That is the real question. The actual result of the case is usually not as important as how the Court actually got to that result.

The professor knows that originalism is not the prevailing method of interpretation in legal circles. In fact, it's often viewed with scorn. But Calabresi makes a spirited defense of the theory...

For starters, the long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law. This is the way we interpret statutes, contracts, wills and even old Supreme Court opinions.

No leftist ever says of Roe v. Wade: Let's let President Bush's lower court judges construe that opinion in light of the "evolving standards of decency that mark the progress of a maturing society." Leftists and indeed all non-originalists would be utterly outraged if this were to happen.

Funny how the "standards of decency" are only allowed to "evolve" in one direction, isn't it?

Calabresi also discusses precedent and stare decisis, a topic of much conversation during the Roberts and Alito confirmation hearings as well as at the close of the last term...

Accordingly, the Supreme Court must have the duty and power to overrule its own unconstitutional precedents, just as it has the duty and power to disregard unconstitutional statutes and treaties.
...
This authority is also a practical necessity. Because the Court is composed of human beings, it is inevitable that it will make mistakes. This includes big mistakes about the meaning of the Constitution that, left uncorrected, work a continuing, significant distortion on how our government functions.

This whole discussion has always puzzled me. Some people seem to have a blind loyalty to Court precedent (and many of those people sit on the Senate Judiciary Committee). Oddly enough, their loyalty only applies to precedent that they like. Roe v Wade? Iron clad! Bowers v Hardwick? Overturn it now! I guess I shouldn't be puzzled. It's just hypocrisy, nothing new to politics. I just can't believe that these windbags don't get called on it more often. Anyway, Calabresi is right. The Court is a body of fallible human beings. They make mistakes. Those mistakes should be correctable without the Senator from Massachusetts from having a coronary. Of course, it's not that cut and dry in the real world. This is really a much more complex isssue to be saved for another post.

Next, the separation of powers argument for originalism...

Non-originalist judicial review severely distorts the allocation of powers that is central to the Constitution. That document limits and defines powers by assigning them carefully and precisely to different federal and state institutions.

Originalists believe it is critical that these constitutional allocations of power be respected. We think the Constitution is enforced by the Madisonian system of checks and balances, of separation of powers, and of federalism. We do not think that the Supreme Court is some kind of Supreme Council of Ayatollahs that can do anything it wants do on a 5-4 vote.

Unfortunately, some people do see the Court this way. The judicial system has become the last refuge for hacked off individuals with weird agendas. These are people who can't get their preferred policy enacted through normal democratic means. They lawyer up, head to court, and hope to find a judge that will buy whatever bull plop they're selling. Usually, the error is corrected by an intermediate appellate court, but occasionally it isn't. The Court itself doesn't have a stellar track record in this area. Some incarnations of the Court (Warren Court, I'm looking in your direction) enacted their preferred policies under the color of Constitutional law.

Calabresi hits us with a money quote near the end...

No sane framer of a constitution would ever have written a document that required bicameralism and the president's signature to pass ordinary laws, while leaving the most sensitive issues of morality and religion up to an unelected, unaccountable, life tenured, elite group of judges to be decided on a 5-4 vote.

Amen to that.

In closing, I want to return to a comment that the good professor made at the beginning of the piece. He said this...

...on Jan. 20, 2009, six of the nine current justices will be over the age of 70, an age at which many people either retire or begin to wind down their affairs. There is thus a very real possibility that the next president could appoint as many as four justices in his or her first term alone. We may be getting ready for the biggest turnover in the membership of the Supreme Court since Richard Nixon's election in 1968 brought the Warren Court to an end.

Emphasis added. The 2008 presidential election is winner take all, as far as the Court goes. If a Republican wins the White House (and manages to make conservative appointments to the Court), the balance will shift solidly to the right for many years to come. If a Democrat wins, the current balance will likely be maintained, and some additional ground may be gained back.

If I was a gambling man (and I occasionally am, just not lately), I would lay down a decent chunk of change on me being very sad come November 2008. I'm open to being pleasantly surprised, though.

I've been away for a few days, but I should have some things to talk about in the near future. I recently picked up the book Nanny State: How Food Fascists, Teetotaling Do-Gooders, Priggish Moralists, and other Boneheaded Bureaucrats are Turning America into a Nation of Children by David Harsanyi. I felt obligated to purchase it for two reasons. First, it has one of my favorite words ever (priggish) in the subtitle. Second, it discusses one of my favorite (or more precisely, least favorite) aspects of modern America: the rise of the nanny state.

I'm only about 40 pages into the book, currently on the chapter about food, but I like it. Here's the blurb from Booklist...

Besieged by do-gooder legislators and activists pushing health, safety, or "family values," Americans have been subjected to bans on everything from trans fats to cookie-scented ads in bus shelters to happy hours. Harsanyi offers a catalog of rules imposed by "Twinkie fascists" and "playground despots" who are micromanaging all manner of bad habits and immorality that threaten to remove from citizens the right to choose how they live their lives. For example, he notes that the Centers for Disease Control has evolved from an agency concerned with infectious diseases to one concerned with overeating. Conceding that one person's idea of government intrusion is another's idea of prudent policy, Harsanyi stakes a claim on common sense as the judge. Laws against illicit drugs and prostitution are good for the public welfare; laws against smoking outdoors are intrusive. This is not just a rant against overzealous legislators but a thoughtful look at how the government is overreaching into everyday life and how Americans are quietly going along with it. An interesting look at freedom and personal responsibility.

If I'm feeling really ambitious, I'll post a review when I finish reading it. Until then, Harsanyi has a blog that is well worth a look if you are interested in the book, the subject, or the author.

Justice Stephen Breyer on judicial activism and short-sleeved shirts...

Okay, he didn't really discuss the shirt, but it's the first time I've seen Casual Breyer and wanted to make note of it.

Well, it looks like we're going to have a primary election for the Wisconsin State Supreme Court after all. Burnett County Circuit Judge Michael Gableman threw his hat into the ring to take on Justice Louis Butler next year. Sun Prairie attorney Charlie Schutze jumped into the race in early September, so now we have three names on the ballot. Gableman is running as a non-partisan, but Schutze seems to be taking a more direct approach...

"No seat on the Supreme Court should ever go unopposed especially when that seat is currently held by a liberal political appointee and not an elected official," Schutze said.

And from his press release...

"I am deeply concerned about the unfriendly business environment that has been created in this state by the high court's careening to the left to protect special interest groups at the expense of common sense," Schutze stated. "We continue to lose our best and our brightest graduates to companies outside of the state. We handicap our businesses with the burden and cost of over-regulation, provide little or no incentives to our companies and employees, and yet we blame them for the ills of our economy."

Gableman has posted a video introducing himself to the voters...

This is going to be a very important race. The balance of the court could be shifted with this election. Currently, the court has three liberals, three conservatives, and one swing vote. A loss of one of the liberals, Butler, could dramatically change the direction of law in the state.

I spotted a link to this story on Drudge last night. Two secessionist groups, the Vermont-based (AKA liberal as hell) Middlebury Institute and the League of the South (possibly, slightly right wing?), met in Tennessee to break bread and smack talk the Union. Both of these groups have gripes about policy in the United States, and they think that the answer is to split a handful of states from the country...

If allowed to go their own way, New Englanders "probably would allow abortion and have gun control," Hill said, while Southerners "would probably crack down on illegal immigration harder than it is being now."

There are definitely regional differences across this great nation of ours. It's bound to be that way; it's a big country. While not a complete solution, I think that a revival of federalism principles would soothe some of these tensions. It's okay to let New York do one thing, policy-wise, and let Alabama do another. We tend to federalize everything though. It seems like the federal government expands its reach every year.

Of course, federalism won't solve everything. It won't do much to calm the ire of the Middlebury folks about the war and issues like that. But I think it would do the country some good to allow differences of opinion and policy in the states. After all, they are the laboratories of democracy.

Is secession constitutional? Well, that depends. Prof. Michael Dorf wrote an interesting article after the 2004 elections about that very topic. Dorf says that unilateral secession isn't allowed, but mutually agreed upon secession might be okay.

The argument made by unilateral secessionists is the following...

Because the Constitution derived its initial force from the voluntary act of consent by the sovereign states, secessionists argued, a state could voluntarily and unilaterally withdraw its consent from the Union.

In this view, the Constitution is a kind of multilateral treaty, which derives its legal effect from the consent of the sovereign parties to it. Just as sovereign nations can withdraw from a treaty, so too can the sovereign states withdraw from the Union.

Dorf lists President Lincoln's arguments against unilateral secession, but he points out the problems with each one. The professor then offers the best counterargument, one not explicitly made by Lincoln...

Whatever the status of the states when they entered the Union, they perpetually gave up important attributes of sovereignty in doing so. Among these was--and is--a right of unilateral secession.

In this view, it is significant that Article VII sets out the provision for original ratification, and that Article IV empowers Congress to admit new States, but that no provision of the Constitution authorizes a state to leave the Union. The juxtaposition of what the Constitution says about states entering the Union and what it does not say about them leaving, indicates that the door to the Union swings in but not out.

Dorf also quotes the 1868 case of Texas v White where the Court said "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

Dorf goes on to discuss mutually agreed secession, which he thinks is probably okay. There are problems about how it would be done, though. What if Congress controlled the process...

Suppose that Congress simultaneously received secession petitions from all the blue states, and that the Congressional delegations of these states all supported these petitions. Suppose further that a minority of the Congressional representatives of the red states also supported the petitions. (Their reaction: "Good riddance.") Adding the votes of representatives from the blue states to the votes of representatives from the minority of red states would yield a pro-secession majority in the existing Congress.

But notice what happens if Congress permits secession under these circumstances: Secession will have been allowed even though a majority of the representatives of one of the resulting pieces--the remaining red state rump United States--opposed it. That hardly seems consistent with the notion of secession by mutual agreement.

One might thus conclude that Congress can only approve a secession petition if the controlling bill obtains a majority of the votes of representatives of non-seceding states in both houses of Congress.

But while that solution makes some theoretical sense, it is also, from a constitutional perspective, arbitrary. Why this particular mechanism rather than some other mechanism--such as a national referendum, or a two-thirds (or three-quarters or three-fifths) vote in the existing Congress?

Dorf then looks to the amendment process as a possible solution...

Although the Constitution sets forth a number of mechanisms for its own amendment, the same procedure has consistently been used: Proposal of amendments by a two-thirds vote in each house of Congress, followed by ratification by three-fourths of the state legislatures. This formula seems well designed to ensure that any secession petition has the backing of the nation as a whole.

I don't expect chunks of the nation to break off in my lifetime. I just don't see enough support for it. The groups mentioned in the article are definitely on the extreme side of this issue. Most people are content to complain about the results of an election, the enactment of a law, etc. and then go on living their lives in our 50-state Union without raising much of a ruckus.

Is it just me or is everyone currently hellbent on shutting everyone else up?

First General Wesley Clark wants to get Rush Limbaugh pulled from Armed Forces Radio over the "phony soldiers" imbroglio. Check out the video in the link. He thinks it's a good idea for Congress to step in, make judgment calls about the "propriety" of discourse on public broadcasts, and yank Rush. Tucker Carlson points out that the same standard won't be applied to PBS and NPR, entities that routinely broadcast opinions (opinions that many people disagree with or find downright offensive). Clark claims that the standards would be applied consistently. Clark fails to understand that he's calling for judgment calls that are subjective in nature. The majority in Congress (which, I should remind the Democrats, does change over time) will have free reign to pull commentators from public broadcasts just because they disagree with the propriety of the content. This is just screaming to be abused.

In the video clip, Clark even goes as far to say that political discourse should be "rated." "I'd like to see A-rated, B-rated, C-rated political discourse," sayeth the General. I used to have a favorite saying, "You'd have to go to college to come up with an idea that stupid." Well, you'd have to be a Rhodes Scholar to come up with an idea this stupid.

Next, the San Francisco Board of Supervisors is targeting Michael Savage. The Board tried to pass a resolution condemning him for hate speech. They are up in arms about Savage's comments about illegal aliens. I don't know for sure, but I'm betting that Savage is against them. Just a hunch. The resolution would've passed, but something happened...

The only thing that stops resolution from passing is a San Franciscan by the name of Ed Jew (an American-Asian) vetoes the vote. Not only that, but Jew had the stones to stand up and defend Savage's First Amendment right to free expression. If only such a person existed in Washington DC - on either side - we'd all be better off.

Jew said, "For the record, I do not agree with comments allegedly made by Mr. Savage, but the First Amendment gives him the right to make those comments."
How refreshing to hear such an obvious point said in public.

Refreshing indeed. But, of course, it didn't go unanswered...

[San Francisco Supervisor Gerardo] Sandoval responded with a personal challenge to Jew. "If this commentary was directed at the Chinese-American or the Asian community, you would not be resorting to this rigid formalism on your part," he said.

...which is about as school-yard and knee-jerk as it gets. David Harsanyi responds...

I have no idea if Jew would adhere to ideological and political consistency if his own ethnicity were attacked daily on the radio. But I do know Sandoval's comment gives us a peek into the mindset of many officials these days. To them, freedom is no longer a priority. Not if it offends them.

And for the sake of consistency, I should mention that I think that the Congressional condemnation of the MoveOn.org General Patraeus ad was as unnecessary as the San Fran/Savage resolution.

Even though I talk about these incidents together, I think there is a distinction between simple condemnations (although Daniel A. Horowitz sees some legal issues with the San Fran one) and Clark's proposal. The condemnations can be viewed simply as more speech in the free marketplace of ideas, where Clark's proposal would get Congress into the business of removing speech based on its content. Is it really so bad that Congress or the San Francisco Board speak on an issue? After all, they are just adding another viewpoint to public discourse. Well, maybe there is something bad about it. Prof. Timothy Zick thinks so...

There are three problems, although as I say no technical First Amendment violation has occurred. As a matter of bedrock First Amendment principle, we expect the government to maintain neutrality with regard to political expression. Institutional condemnation of this sort, as opposed to individual statements of displeasure or disgust, violates that principle. Second,and relatedly, as you note the Senate's voice is a "powerful" one. Given its power, the Senate can distort the marketplace of ideas. Finally, this form of public condemnation may have the effect of chilling expression on matters of public concern. That will surely not be the case with respect to MoveOn.org, which seems quite pleased to have the attention of the Senate and the President. But speakers with different agendas may quite understandably wish to avoid irritating the Senate with their own sharp attacks -- even if what they have to say is fully protected expression.

Maybe the condemnations and Clark's "Congressional censor" solution are BOTH bad, just different degrees of bad. Zick may be right on this one. I reserve my right to change my mind on this.

For those of you looking for a trip down memory lane, here's a link to the text from the Clarence Thomas confirmation hearings. Enjoy.

In cases you missed it Sunday night...

Part 2...

Part 3...

Enjoy.

This has been an exciting time for Court watchers and Justice Clarence Thomas aficionados. Thomas has been everywhere in the media lately to promote his new autobiography. I managed to catch half of his interview on 60 Minutes last night. I would've seen the whole thing, but I was in a medication-induced coma thanks to my current battle with illness. I think I have malaria. Anyway, I enjoyed the interview. I don't think that I've ever heard Justice Thomas' voice that much.

After watching the 60 Minutes episode, I spotted a link to another interview with Thomas. This interview was conducted by ABC's Jan Crawford Greenburg. It's quite long, but I highly suggest it. I thought that I would point out some of the highlights.

He says his critics — the people who question whether he is smart or qualified to be on the Court or who suggest he merely does what a white Supreme Court colleague dictates — are as also as bigoted as the whites of his childhood in the deep South.

"People feel free to say about me what they think about lots of blacks," Thomas said in an interview in his chambers at the Supreme Court. "Because of the heterodox views I've taken, they have license to say it about me with impunity."

I've noticed this criticism of Thomas quite often. "He's just following Scalia." "He's Scalia's puppet." Sure, Scalia and Thomas often vote the same way (they agreed in full in 74% of the 06 term's cases). If you consult that same chart, you'll notice that Justices Souter and Ginsburg have the same "agreement in full" percentage. Odd that we never hear about one being referred to as the other's puppet.

Of course, if one where to actually read the opinions written by these Scalia and Thomas, it would be obvious that they have distinct views on the law and the Constitution. The Thomas-as-Scalia's-puppet line is usually parroted by people who know nothing Court aside from what they read on blogs (crappy ones, not finely written ones like this one).

Back to the interview...

"And I always find it fascinating that people who claim, well, you did this because you went to Yale, all these good things happened because you went to Yale," Thomas says. "I couldn't get a job out of Yale Law School."

Thomas came to believe whites assumed he wasn't as smart as his white Yale classmates, and when he couldn't get a job when he was graduating, he saw that as proof: Because he was black, he says, people believed his degree was not as good as a white student's degree. He saw no "benefit" from affirmative action.

Emphasis added. And I thought the job market was bad now... But seriously, this point illustrates Thomas' reasons for opposing affirmative action. AA is discussed a lot in the interview, since it is still a very hot topic and Thomas has written and talked extensively about it. His insights on the subject are very interesting.

This part really popped out at me. At the time, Thomas was working for John Danforth (the a state attorney general)...

He recalls, for example, Danforth stopping by his office when the attorney general was preparing to argue a case defending abortion restrictions. Danforth's position was that the federal government had no business telling the states what to do on abortion. Thomas responded: "The state had no business telling women what to do with their bodies."

This part jumped out at Prof. David Bernstein as well. I know that this statement was made years ago but consider this: Wouldn't it be interesting if Thomas was personally pro-choice? I'm guessing that he probably isn't, but it is possible to follow Thomas' judicial philosophy and still be pro-choice.

This part about Thomas' selection for the Court is interesting...

Had the White House seriously vetted Thomas, or closely analyzed his views, it would have probably been more reluctant to nominate him, because he'd given countless speeches while at EEOC expressing a range of controversial opinions, not only about the law and the Constitution, but also on his critics and his admiration of Louis Farrakhan and the Black Muslim theory of self reliance — all of which would be fodder in his confirmation hearing.

Anita Hill aside, would Thomas be nominated to the Court today? I have my doubts. The vetting process, especially in the current administration, seems very sensitive to things like "countless speeches... expressing a range of controversial opinions." I think that those strict standards developed largely because of the Souter and Thomas nomination experiences of Bush 41.

And finally, the man, the myth, the mouth, Joe Biden...

His confirmation hearing began September 10, 1991, and Thomas immediately was confronted with aggressive questions by Sen. Joe Biden, the committee chairman. In their private meetings before the hearings, Thomas wrote that Biden led him to believe he would begin with "softball questions," but he instead "threw a beanball straight at my head."

He wrote that the words of the song "Smiling Faces" by the Undisputed Truth came into his head: "Smiling faces tell lies/And I got proof."

"Now, I, too, had proof: Senator Biden's smooth, insincere promises that he would treat me fairly were nothing but talk," Thomas wrote.

More Biden...

Biden, by that point, also had seen Hill's detailed statement, which Thomas did not know. But he offered Thomas his assurances: "Judge, I know you don't believe me, but if any of these… matters come up, I will be your biggest defender."

"He was right about one thing: I didn't believe him," Thomas wrote. "Neither did Virginia. As he reassured me of his goodwill, she grabbed a spoon from the silverware drawer, opened her mouth wide, stuck out her tongue as far she could, and pretended to gag herself."

I laughed about this part for a while.

Thomas also talks about his problems with alcohol, his gripes about the Reagan Administration's handling of race issues, and his financial difficulties. I know I sound like a broken record, but the interview is excellent. I'm looking forward to reading Thomas' book.

It is the first Monday in October and that means that the Supreme Court is back in business. If you are like me, you're probably pretty foggy about what the Court is tackling this term. Hell, you might even be foggy about what the Court did last term (hint: it was a pretty damn good term). If that's the case, the Federalist Society is there to help you out with an event entitled A Preview of the Supreme Court October 2007 Term, With a Look Back at the October 2006 Term. Here's the panel...

* Ted Cruz, Texas Solicitor General
* Gregory G. Katsas, Acting Associate Attorney General, U.S. Department of Justice
* Joan Larsen, Lecturer, University of Michigan Law School
* Glen Nager, Jones Day Reavis & Pogue partner and Issues & Appeals chair
* William Otis, former Chief of Appeals of the Eastern District of Virginia U.S. Attorney's Office
* Jan Crawford Greenburg, ABC News Legal Correspondent (Moderator)
* Introduction by Lee Liberman Otis, Director, Federalist Society Faculty Division and Senior Vice President

Audio and video are available here. I would recommend the video. The 2 hours and 7 minutes will just fly right by, I promise.

This is a clip from a CNN program called "God's Warriors," which focuses on the Christian Right. This particular clip is about Jerry Falwell's work to change the direction of the Supreme Court and Constitutional law. Falwell's Liberty University Law School has always interested me. I know that some of people have a huge problem with the obvious religious bent to Liberty's graduates and their work. I've ready comments on message boards that ridicule the very idea of the school. However, you can't really fault Falwell and Co. for talking this path. If major policy issues (especially ones with religious aspects) are decided in the courts in general and in the Supreme Court in particular, then people who are concerned about these issues need to be trained in the legal martial arts.