Eminent Domain

I know that I've got a sizable collection of posts that start "I know I've been gone for a while," but I thought that I could squeeze one more into the pack. I know I've been gone for a while, but forces much stronger than Blogger.com are to blame. The past month and a half has been eaten up mostly by what I will just call professional developments. When combined with my current day job, holiday and family stuff, and the random things that tend to come up, I haven't had any time to write anything. Honestly, I haven't even had time to keep up with my normal blog reading schedule. It's strange that I had the most free time to blog while I was in the middle of law school (since that takes absolutely no time commitment at all, right?).

Anyway, this is my last post for the foreseeable future. This isn't going to be a hiatus like I've done in the past. This is me quitting. I guess I should address the Why? question. Beyond the aforementioned time issues, I've lost my zeal for blogging. I just don't have the drive to spend hours reading, researching, and posting. It's become too much work and just not as fulfilling as it once was. I'm not ruling out a return eventually. Stranger things have happened. But as of right now, I don't plan on it. Like I said, something might happen to change my mind... a big Court case might energize me, new found free time might draw me back to the keyboard, or I might just miss it after a long enough break. The blog itself won't go anywhere. I'm not deleting it. I'm just not posting anything on it.

For the hell of it, I thought I'd include a little (very little) substance in this post. If you haven't noticed, there's an election going on this year. It's kind of an important one too. If you're a Supreme Court fan, it's a very important one. If you're a right of center Supreme Court fan, it's like the Battle of Stalingrad. The Court has (in general terms) four conservative votes, four liberal votes, and one idiosyncratic Justice Kennedy. Kennedy tends to be more conservative than liberal, but there is still no solid majority on the Court.

It is likely that the next president will appoint at least one new Justice. Justice Stevens is 87 years old. Justice Ginsburg is a not-to-spry 74. A retirement is likely between now and 2012. If the retiring Justice is a liberal (as are the two previously mentioned Justices), than something very important could happen. Either a Republican president can appoint a conservative Justice, swaying the Court to a solidly conservative majority. Or a Democratic president can appoint a liberal Justice, holding that seat on the Court in liberal hands for the next two decades. (Of course, there is a third option: the president appoints a moderate and not much changes. I think that any president of either party will work strenuously to not let this happen. That seat is too important).

So what is one to do? I don't particularly support any of the presidential candidates. There's just no one that really grabbed my attention. I decided that my best bet is to analyze (and I use that term loosely) each of the Republican nominees and see what I think at the end...

Rudy Giuliani - I like him personally. He revitalized NYC, he's run a large government, and he gets the terrorism issue. However, he's a bit of a nanny stater and authoritarian. I don't like his record on Second Amendment issues. He has made it clear that the judges issue is important to him, and I believe him. He's got a great legal advisor group around him. I really don't care much about his personal life, but I know that the guy has more skeletons in his closet than a haunted house. Is that good for a candidate, especially when there is a long campaign ahead? I doubt it.

Mike Huckabee - A snake oil salesman who wears his religion on both sleeves, his lapel, and on a sign taped to his back (just in case you forgot that he was a Christian minister). Pro-big government, naive national security views, and the biggest nanny stater this side of the right/left divide. What's not to not like? I'd stay home in November before I voted for him.

Duncan Hunter - Who?

John McCain - Strong on national security issues and terrorism. Most importantly, he's tough. He could survive the long and dirty campaign that is going to come. He would also be the strongest in the general election, if you believe the polls. Partially to blame for the McCain-Feingold campaign finance law (which I think is an unconstitutional abridgement of the First Amendment) and other domestic policy blunders. Also, part of the Gang of 14. Can he be trusted on the issue of judges?

Ron Paul - I agree with him on a lot of domestic issues, but I think that his foreign policy is dangerous, naive, and archaic. My complaints about Paul are the same complaints that I have about the Libertarian Party. I'm glad that his small government message is out there and gaining traction, though. It's something that the other Republicans need to remember.

Mitt Romney - I think that I have a genetic disposition against politicians from Massachusetts. I can't think of a single one that I like. It's hard to really know where Romney stands on the issues when he's changed his mind so much. There's nothing wrong with changing ones mind. It just seems odd that all of the changes have been fairly recent and would make him more appealing to Republicans nationwide. Coincidence? Comes across as way too polished and rehearsed. Spectacular hair.

Fred Thompson - I think that I agree with Thompson more on policy than I do with any of the other candidates. My concern is his ability to wage the kind of campaign necessary to win. He's been very slow to start. With all the hype that he had pre-candidacy, he should've been able to steamroll his way to the front of the pack. He's been low key, the anti-candidate. Unfortunately, that doesn't translate well in a world where campaigns live or die by the sound bite. The pundits talk him down, the media covers him less, and his support dwindles. If he can hang on, stay viable through Super Tuesday, and get the people who support him to actually vote for him, he's got a shot at the nomination.

So here I am, on the raggedy edge, looking to make my jump to one of the candidates, pledge my support and probably some cash, and ride things out to the bitter end. Right now, I'm backing Thompson. He needs to stay alive through January, though. And I'm not sure that's in the cards. He needs strong showings to, as he said (paraphrased), get the ticket to the next dance. If Thompson craps out, I'm throwing my support behind McCain. Yes, McCain. I have serious disagreements with the man, but I think he's strong enough to win the general election. I don't need 100% agreement to vote for someone. I didn't agree with President Bush on everything, but I voted for him twice. Hell, I'd probably vote for him again.

Believe me, I'm not happy about this election situation. I've never felt so underwhelmed and depressed by an election or a slate of candidates. If I had my choice, my presidential ticket would be Mark Sanford and Sarah Palin, governors of South Carolina and Alaska respectively. Unfortunately, they are nowhere to be found (actually, you can find them in South Carolina and Alaska). I'm stuck with what I've got, and I'm not very optimistic about the outcome. I have a bad feeling that a Democrat will be sworn in and replacing Justice Stevens in a little more than a year. So it goes, as Vonnegut would say.

Well, that's it. Last post. I'll keep up with the comments here, in case anyone wants to call me stupid for my picks. Thank you for reading all these years. I've really had a good time.

I had a chance to listen to the audio from the Boumediene v Bush case last night. I previously guessed that this would be a clear 5-4, Kennedy joins the liberals case. After the argument, I'm not so sure anymore. Kennedy was oddly quiet. The questions that he did ask seemed to hint that he sided with the government. It was very interesting. I'm going to chew on this a little bit more, then post about it. Until then, here's Justice Kennedy being funny...

With all the talk about GITMO and enemy combatants, I thought the mood should be lightened.

Scary title, isn't it? I'm using the word "on" in place of "talking about," so hopefully that should calm some fears. But wait. Don't relax just yet. Here's Senator Hillary Clinton talking about who she would appoint to the Supreme Court and her views on the Roberts Court. Buckle up and grab a sick bag. This is rough...

"...the Constitution is an organic, growing, evolving set of principles..." Thank you, Senator Clinton, for giving me a pithy quote to use as a reason why I will never, ever vote for you for any political office.

Apparently, the Roberts Court is rolling back the 20th Century. I hadn't heard; I must've missed that in the pages of the US Reports. I can't wait for that legalizing child labor decision to come down, though. I will celebrate that day with cigars and brandy along with my fellow lumber and steel barons. It'll be like a Thomas Nast cartoon.

I love her whole "this (the Roberts Court) is an assault on progress"/dark era of child labor reference... but she doesn't believe in judge bashing. Oh, no. Only Republicans do that. Give me a break.

Honestly, there isn't a single candidate running for the presidency that I support. None of them make me want to run to the polls to vote for them. But I will take a Giuliani, Romney, Huckabee, Thompson, Paul, McCain, Tancredo, or Hunter-Supreme Court Justice over a Clinton, Obama, Edwards, Kucinich, Biden, Dodd, Richardson, or Gravel-Supreme Court Justice any day of the week.

It looks like the Court will be giving us same day audio of the oral arguments in Boumediene v Bush...

The Supreme Court will hear arguments next week about the rights of prisoners who have been detained at Guantanamo Bay, Cuba, and will immediately release audio tapes of the proceeding.

The court made available same-day releases of audio tapes on two occasions last term, for cases involving abortion and the use of race in public school assignments. The quick release of audio tapes in major cases dates to 2000, when justices heard Florida ballot recount appeals that determined the outcome of the presidential election.

Television cameras are barred from the court and reporters are not allowed to use tape recorders there. But arguments are taped by the court and usually are released at the end of the term.

The cases to be argued next Wednesday deal with whether the Guantanamo detainees can contest their confinement in U.S. civilian courts.

I'm definitely going to check this out. As far as the case goes, I think it's a pretty easy call. Government loses 5-4, Kennedy joins the liberals. You heard it here last.

Best Democratic Presidential debate yet.

I spent a little time this weekend watching coverage of the presidential race (something that I've been avoiding like the plague). It made me remember this...

Rehnquist was not impressed with Bill Clinton and his wife. When told that the newly elected president was thinking of nominating Hillary as attorney general, the chief justice quipped, "They say Caligula appointed his horse counsel of Rome."

I miss Chief Justice Rehnquist.

I love being able to make update posts. Remember this story from a while back? Here are the facts of the situation, for those of you with an aversion to clicking links...

The Volokh Conspiracy has been blowing up today with posts about a controversy at San Francisco State University. The whole mess stems from one of my favorite parts of campus life, the student protest. Here's what went down...

The College Republicans "offense" took place on October 17, 2006, when they held an anti-terrorism protest in SFSU'’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protesters, the flags they had copied contain the word "Allah" written in Arabic script.

The CRs were charged with violations of university policy for "attempts to incite violence and create a hostile environment" and "actions of incivility" in violation of the Standards for Student Conduct. The investigation portion of this drum head has ended and now the complaint is being sent to the Student Organization Hearing Panel for review" and "possible disciplinary proceedings."

Well, the wheels of justice have churned away (slowly as usual) and we've got some results. The CRs were cleared at the review panel, but they ended up filing a lawsuit because the civility code had a chilling effect on future speech. A federal magistrate has ruled the "civility" expectation in the student handbook unconstitutional. The intimidation and harassment rules are still in effect, as they should be (IF they are applied fairly). Overall, I'd call this a victory for free speech on campuses.

The UK's Telegraph has published a list of the 100 most influential conservatives and the 100 most influential liberals. The lists are pretty decent and worth a look if you have a few minutes to kill. The lists did include four current Supreme Court Justices too...

8. JOHN ROBERTS
Chief Justice of the Supreme Court

George W. Bush will bequeath his successor a head of the Supreme Court who could be on the bench for the next 30 years, shaping the parameters of American life for the next generation and beyond. Roberts joined the court as chief justice in July 2005. He was originally nominated by the president as an associate justice to replace the retiring Sandra Day O'Connor, but was given the top job when William Rehnquist died. At 50, he was the third youngest man to lead the court.

Bush chose him as a reliable conservative and he has not disappointed so far. But the Christian Right's holy grail of overturning Roe versus Wade and making abortion illegal is not among his plans, although he backs limiting practices such as partial-birth abortion. On issues such as the future of Guantanamo, the death penalty, the limits of what constitutes torture, the reach of executive power and conducting the war on terror, the Roberts court will have far-reaching influence. Already the Supreme Court under Roberts has become more conservative.


62. JUSTICE ANTONIN SCALIA
Supreme Court Justice

The first Italian-American to be appointed to the Supreme Court, by Ronald Reagan in 1986, "Nino" Scalia, 71, is beloved by conservative Republicans. A committed Roman Catholic and father of nine, he is a much more forceful and intellectually flamboyant personality than his fellow conservative justice Clarence Thomas.

A strict "textualist" and strongly anti-abortion, he adamantly opposes attempts to interpret the US constitution in the light of modern mores. If he were not such a lightning rod for criticism from Democrats, he would have been a natural Chief Justice. Has an acid wit, barbed tongue and relish for taking on his opponents.


85. CLARENCE THOMAS
Supreme Court Justice

It has been 16 years since the contentious confirmation hearings that threatened to stop him becoming the first black Conservative Supreme Court justice were held. In his recent book, he described the experience as being “pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony".

Still only 59, he could be on the court for another three decades, making him one of the longest serving justices in history as well as a reliable Conservative vote on virtually every issue. Adored by the party establishment, a Republican candidate is guaranteed a round of applause when he cites Thomas as a model jurist.


64. JUSTICE JOHN PAUL STEVENS
Supreme Court Justice

Although appointed by a Republican president, Gerald Ford, Stevens, 87, is the most reliable liberal vote on the Supreme Court. Despite his age, he shows no sign of retiring and appears healthy. Has led the judicial movement to restrict the use of the death penalty and to tie the hands of the Bush administration in its attempts to battle the Islamist threat.

Will play a key role in smoothing the path of any new justices appointed by a Democratic president and, perhaps, in identifying his successor.

In case you couldn't figure it out, the first three Justices were on the conservative list and Justice Stevens was on the liberal list. He still claims to be a conservative, but I can claim to be a beagle. That doesn't make it so.

I haven't been able to update lately. I've been pretty busy, so I haven't even had a chance to do much scouring for legal topics. I will have another Nanny State post soon, though. For those of you who can't wait, check out the NBC Nightly News tonight. Nick Gillespie of Hit and Run has been kind enough to inform us that David Harsanyi will be making an appearance to discuss some of that fun Nanny State kind of stuff. I'll be breaking my boycott of television news to watch.

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.