An Awful Defense

A Texas killer lost at the Supreme Court today. But I wonÂ’t comment on that. Instead, I want to comment on this argument that had been used by defense lawyers during the original trial.

Mosley's trial lawyers didn't deny the shooting but argued it was accidental, that as he was trying to surrender the weapon it went off five times.

If I were a defense lawyer, IÂ’d certainly hate to have that as the major plank of my defense. Especially if my client were facing charges of murdering a police officer.

Seems to me weÂ’ve got scum who ought to soon be eliminated from among the breathing.

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Another Minority First In Texas

The first Latina justice of the Texas Supreme Court has been appointed by Governor Rick Perry.

Houston judge Eva Guzman will be named today by Gov. Rick Perry to replace Scott Brister on the Texas Supreme Court.

Though the court has had several women and several Hispanics judges, Guzman, the daughter of immigrants, is the first Hispanic woman to take that bench.

Guzman sits on the Houston-based Texas 14th Court of Appeals. Perry made her the first Hispanic woman on that court in 2001. She was elected to the bench in 2002 and 2004. Her opinions have been on a range of topics, and she writes often for the court on family law issues.

She is also a former Harris County Family Court judge, appointed in 1999 by then-Gov. George W. Bush and elected to the position subsequently.

Congratulations to Justice Guzman, who it has been my pleasure to campaign for a number of times over the years. She is a fine jurist, and I am proud to see her on one of our state's two highest courts (the other being the Texas Court of Criminal Appeals).

And I cannot help but be struck by the fact that, despite allegedly being pro-minority and pro-woman, the Democrats never could find a qualified Hispanic woman for the Texas Supreme Court.

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Why Was This Even An Issue?

After all, even prisoners have certain religious liberties upon which the state cannot infringe.

A judge says the state of Pennsylvania cannot force a seriously ill prison inmate to undergo a blood transfusion - even if it could save his life.

In a ruling made public Wednesday, Commonwealth Court Judge Keith B. Quigley said inmate Anthony Lindsey's wishes must be respected under the First Amendment.

Lindsey suffers from a serious kidney ailment. A doctor at the Laurel Highlands state prison says the 37-year-old prisoner is in imminent danger of dying if he does not have a transfusion.

Lindsey says he refuses to allow a transfusion because it violates his religious beliefs as a Jehovah's Witness. He is serving a 13- to 36-year sentence for drug trafficking.

Now I recognize that the government can limit the exercise of religion in jails and prisons for security purposes, and I am generally supportive of their doing so to some degree. But attempting to limit a decision to forgo medical treatment made on religious grounds makes no sense, as it in no way burdens the state. That litigation was necessary here is just offensive.

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Gay Marriage Mandated In Texas?

That would seem to be the implication of a decision coming out of Dallas.

A Texas judge has cleared the way for two Dallas men to get a divorce, ruling that Texas' ban on same-sex marriage violates the constitutional guarantee to equal protection under the law.

The Dallas Morning News reported that a Dallas district judge's Thursday ruling finds that the court “has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction.”

But here's the problem -- if it is a violation of equal protection of the law not to recognize gay marriages or to dissolve them for this reason, it logically follows that the refusal to perform those marriages is a violation of equal protection for precisely the same reason.

Interestingly enough, I've only encountered one media outlet that seems interested in taking up that angle on the case. Not even Texas' most prominent liberal blog has yet commented on the implications of this decision.

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New Haven Firemen To Testafy Against Sotomayor!

This will be great -- two bona fide heroes posing the question that Sotomayor needs to answer on live television.

You know -- "Why don't you think we are entitled to equal protection of the law under the Fourteenth Amendment?"

Republicans will call two New Haven firefighters to testify in the confirmation hearings of Sonia Sotomayor next week, making clear the GOP's intent to place affirmative action at the center of Senate battle over Sotomayor's nomination.

A Judiciary Committee press release lists Frank Ricci and Ben Vargas as expected Republican witnesses. Ricci was the lead plaintiff in Ricci v. New Haven, the controversial case in which Sotomayor ruled the New Haven fire department acted constitutionally when it promoted black firefighters who scored lower than their white counterparts on a qualifying test. Vargas was the only non-white co-plaintiff in that case.

Demsare bringin in a bunch of political and social elites to support Sotomayor, but these Average Americans are going to have their say, too. How refreshing!

Maybe someone on the committee will press the Wise Latina to explain why she dismissed the rights of these firefighters with no substantive analysis of their case in an opinion of less than a single page.

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Sotomayor Implictly Admits I'm Right

Of course, Obama's Supreme Court nominee denies it even as she scrambles to back away from her unethical behavior.

Supreme Court nominee Sonia Sotomayor resigned Friday from an elite all-women's club after Republicans questioned her participation in it. Sotomayor said she resigned from the Belizean Grove to prevent the issue from becoming a distraction in her confirmation hearings.

In a letter to Democratic Sen. Patrick Leahy of Vermont and Republican Sen. Jeff Sessions of Alabama, the federal appeals court judge said she is convinced that the club does not practice "invidious discrimination" and that her membership in it did not violate judicial ethics.

But she said she didn't want questions about it to "distract anyone from my qualifications and record."

Federal judges are bound by a code that says they shouldn't join any organization that discriminates by race, sex, religion or nationality.

Unfortunately, as I pointed out the other day, it is impossible to conclude that the Belizean Grove -- like its all-male counterpart, the Bohemian Grove -- is anything other than an organization that engages in invidious discrimination. If Sotomayor truly believed otherwise, she would not feel the need to quit -- indeed, she would maintain her membership and offer a defense of her membership.

So let's go down the list -- racism, sexism, unethical conduct, and free speech douchbaggery. It is clear that Sonia Sotomayor not only should not be confirmed to the United States Supreme Court, but she is also unfit to sit as a judge on any court in the United States.

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Sotomayor In Violation Of Judicial Ethics Code?

Could be -- given that Canon 2C of the Code of Conduct for United States Judges reads as follows.

“A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”

Sotomayor does, however, hold membership in just such an organization, the Belizean Grove -- "a private organization of female professionals from the profit, nonprofit and social sectors."

What does the organization say about itself on its own website?

According to the Belizean Grove's Web site, the group is a “constellation of influential women” who are building “long-term, mutually beneficial relationships.” It was founded as a counterpart to the all-male Bohemian Grove, a legendary club of elite politicians, businessmen and other leaders.

The group’s roughly 115 “grovers,” as members call themselves, include ambassadors and top executives of Goldman Sachs, Victoria’s Secret and Harley-Davidson. They meet each year for an annual retreat in Belize or another Central American destination, as well as occasionally in New York and other cities for outings described as “a balance of fun, substantive programs and bonding.” The group’s Web site does not appear to mention any roles for men.

While Sotomayor tries to play off the organization's discriminatory policies and practices by arguing that men are sometimes invited to speak to the group and may participate in social activities, this is no different than membership in all-male groups that from time-to-time have female speakers and let the wives and girlfriends of members come to social activities -- or racially-exclusive organizations that will allow minority guests but not members. Indeed, male judicial nominees have been vigorously opposed in the past for membership in such things as an all-male fishing club.

In light of this membership, one again has to question whether or not Judge Sotomayor has the sensitivity to racial and gender discrimination to sit on our nation's highest court -- and in this case to also raise the issue of whether or not Sotomayor's conduct ought to disqualify her from continued service as a judge on any court in the United States.

H/T Bench Memos

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SotomayorÂ’s Record Of Failure

Now I realize that any case taken by the Supreme Court is more likely to see a reversal than affirmation – after all, SCOTUS is more likely to fix errors than give attaboys to circuit courts. But for a judge to have a 60% reversal rate does raise some red flags – especially when that rate may rise even further right before her confirmation hearings.

With Judge Sonia Sotomayor already facing questions over her 60 percent reversal rate, the Supreme Court could dump another problem into her lap next month if, as many legal analysts predict, the court overturns one of her rulings upholding a race-based employment decision.

Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

Of course, she has written some 380 opinions as a member of the Second Circuit. Only six have gone before the Supreme Court – but one has to be struck by the reversal rate, even if (as pointed out at PowerLine) the percentage is not out of the ordinary. Does anyone know what her overall rate of rejection by the Supreme Court is – not just cases where she wrote the decision, but also every other case on which she has participated as a judge and whether her position has been rejected or affirmed by the Supreme Court on appeal. I think such a statistic could be even more telling.

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About Sotomayor’s “Policy” Comment

HereÂ’s the clip.

HereÂ’s where she is right.

District courts are bound by the facts of a particular case. They are not bout broader questions of law – they are about the application of the law in a particular situation – and the interpretation of a particular judge of a particular law has no precedent value beyond that one courtroom.. The Circuit Courts (and the Supreme Court) are courts which hear appeals – and in doing so are taking a broader view of how to apply law for more than one particular case, but also for every other case that follows under that court’s jurisdiction (whether a particular circuit or the entire nation depends upon the court. As such, the rulings of an appellate court do make “policy” in a way that the decisions of trial courts do not. While her explanation is awkward, it has the virtue of being accurate – though the use of the phrase “where policy is made” justifiably sets off alarm bells for those who are concerned about activists courts.

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Gay Marriage Advocates Go Nuclear

This is the one for all the marbles, folks – either they succeed in using the federal courts to impose gay marriage nationwide, or they hand the victory to their opponents.

Former Bush administration solicitor general Theodore Olson is part of a team that has filed suit in federal court in California seeking to overturn Proposition 8 and re-establish the right of same-sex couples to marry.

The suit argues that the state's marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies -- who argued against Olson in the Bush v. Gore case -- will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.

The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided.

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night. "I thought their cause was just."

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. "It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said. "The constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoyÂ…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California. Ultimately, Olson said, it's a question that will be decided in Washington, by the Supreme Court. "This is an issue that will get to the Supreme Court, and I think it could well be this case," he said.

Now let’s make it clear what this is about – it is about federalizing gay marriage. That Fourteenth Amendment claim is nothing short of a demand that the federal courts re-write the marriage laws of every state – an act of crass judicial activism that would constitute a case of macro-evolution of the “living Constitution”. And let there be no doubt that such a ruling would constitute the overturning of separate decisions by the people of thirty different states, federalizing as a right what has always been a state matter.

Let me deal with one of Olson’s arguments – “If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution.” He is, of course, correct in that observation – but when one considers that the purpose of the Fourteenth Amendment was to eliminate invidious racial discrimination, it is obvious that the decision in such a case would be compelled by the language and the history of the amendment. However, the redefinition of marriage from the traditional (and biologically based) “one man, one woman” configuration to “any two adults” does something different by actually altering the essentials of marriage.

What’s more, a decision in favor of Boies & Olson and their clients will have one additional effect – it will delegitimize the federal courts in the eyes of millions of Americans. And once our courts and their decisions are seen as lacking legitimacy, the legitimacy of the other two branches is also endangered. Will the issue of gay marriage ultimately be the one upon which the survival or dissolution of the republic hinges?

Ed Morrissey, however, points out a real possibility of a very different outcome.

However, Olson may have a more limited equal-protection case with the limited class of relief the California Supreme Court created in its decision. In this case, we have 36,000 citizens in single-sex marriages recognized by the state, while refusing to recognize any others. The only delimiter is the date of the decision. A federal court might find that a violation of the equal-protection clause and overturn Proposition 8, or at least the ruling. The danger here for Olson is that a federal court might take action that invalidates those existing marriages rather than forcing California to recognize gay marriage altogether.

Wouldn’t that be special. But my fear is that the those members of the court who look for “evolving standards” and “trends” will decide that five states approving gay marriage will trump the thirty that have come down firmly on the other side. And if that happens, it may well mean the end of our republic as we know it.

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How Much Medical Scrutiny Is Appropriate For A Potential Justice?

I’m all for making sure that a potential justice is in sufficiently good health to do the job. Acute medical conditions may well be a disqualifying factor for a candidate for the Supreme Court – but what about chronic conditions? Take this piece on Judge Sotomayor – and what I see as an overblown concern about a medical condition that does not seem to have hindered her career up to this point.

As President Obama approaches his first Supreme Court appointment, the question of how much scrutiny he should give to a candidate's health could rise to the surface once more.

A frontrunner for the post, Judge Sonia Sotomayor of U. S. Court of Appeals for the Second Circuit, is a Type One diabetic. It is one of the more compelling aspects to an already compelling biography. And while hardly a debilitating disease -- indeed, recent medical advancements have made it quite manageable to live with -- there remain enough late-in-life health implications to have sparked debate in legal, political and medical circles. Just how relevant are medical issues to Sotomayor's or any other potential Supreme Court nomination?

"It is obligatory [to look at this]" said Jeffrey Toobin, a legal analyst for CNN and author of "The Nine: Inside The Secret World of the Supreme Court." "The issue of duration of service for a Supreme Court nominee is critical to any president, and thus health and medical issues are very much at the forefront of their considerations... It would be irresponsible for any president not to make the health of the nominee a major subject of concern, because presidents want decades of service from their nominees."

Added another political operative who has worked on judicial nominations in the past: "I don't even think it is very sensitive. I think it is just obvious.... It is part of who we are. And so I think you find that there is almost in this day and age, there is almost no area of inquiry that is out of bounds."

Now do I think that there is a place to ask questions about Sotomayor’s diabetes? Perhaps, but only to the degree that there is any evidence that she is suffering from some seriously debilitating effects of the disease. As a Type Two diabetic, I know that there are possible complications to both forms of our disease, and that these potential future complications can be serious or even life threatening. But for most of us, they are not likely to be – yesterday I sat with an 85 year old woman who has been coping quite nicely with her Type Two diabetes for a couple of decades. My Type One cousin is a successful hospital administrator in a major Midwestern city who has progressed from insulin shots as a child to a pump as an adult to a pancreas transplant several years ago – she has been told that she can expect to live a normal lifespan with no real diminution of her ability to work or otherwise lead an active life.

Am I a fan of Sonia Sotomayor as a potential nominee to the High Court? No, but do think she may be better than some of the other options on Obama’s radar. But regardless of my lack of enthusiasm for the prospect of her becoming a justice, I don’t see her diabetes as something that should disqualify her in the eyes of the President – or during any confirmation fight. Given medical advances over the last few decades, diabetes is simply not a serious enough medical condition to keep her off the bench – as her service on both the district and circuit court levels has amply proved.

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When A Liberal Gets It

Finally, Richard Cohen sees that there is a problem with affirmative action as it is sometimes practiced. This is particularly true in the case currently before the Supreme Court, involving the city of New HavenÂ’s decision to not promote qualified firefighters of their race.

Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules -- oops, you're white. Sorry, not what we wanted. As a consequence, it was not racists who were punished but all whites. There is no need to cling to such a remedy anymore. There is, though, every need to retain and strengthen anti-discrimination laws, especially in areas such as fire departments, where racial discrimination was once endemic. Sufficient progress has been made to revert to treating individuals as individuals. After all, it is not some amorphous entity called "whites" who will suffer: It is un-lieutenant Ricci.

Now Cohen takes this position in the context of discussing Obama’s upcoming nominee to the Supreme Court. Oddly enough, the position he takes is quite akin to that taken by a current member of the Supreme Court – Chief Justice John Roberts. Has Cohen come to recognize that it is, indeed, a sordid business for the government (any government, whether federal or city) to divide and classify its citizens by race and to award benefits and burdens based upon that classification? Will Obama – who arguably achieved his current position based upon merit, not an affirmative action quota – recognize the same truth that conservatives have long embraced, and make an appointment based upon that truth?

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The Souter Retirement

On one level, this makes little difference – we will simply trade one liberal justice for another. On another level, this makes it likely that we will have one reliably liberal justice on the high court for decades longer.

Supreme Court Justice David Souter is planning to retire at the end of the current court term.
The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.
At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court's age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire. Now, according to reliable sources, he has decided to take the plunge and has informed the White House of his decision.

Of all the justices of my lifetime, it is Souter for whom I hold the least respect. A non-entity whose contributions to our nation’s jurisprudence have been negligible, he seems to have been singularly unqualified. Indeed, his appointment ranks up there with George W. Bush’s abortive nomination of Harriet Miers in terms of its weakness – and Justice Souter exemplifies the sort of judge referred to by one senator regarding a failed Nixon Nominee – "[T]here are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos."

But what will we get from Barack Obama? I tend to agree with the assessment that it won’t be a white man – even if that white man has the qualifications and character of a Brandeis, Frankfurter, or Cardozo. It would appear that the top candidates are Sonia Sotomayor, Elena Kagan, Diane Wood, Harold Koh, and Seth Waxman. To my thinking, Waxman is likely out of the running as simply another white guy – and given that Kagan and Koh are recent Obama nominees to top executive branch positions, I doubt that they are serious candidates fro the position. While Wood has Chicago connections, my money is on Sotomayor – and as a Bush 41 appointee, she would have the advantage of somewhat soothing some elements of the GOP while checking both the female and Hispanic boxes on the quota checklist. Wood, Kagan, and Sotomayor are already targeted for attack by some on the Right, so expect this to be a contentious battle for confirmation.

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Justice Breyer Gives Me A Mental Image I DidnÂ’t Need

Not only is he apparently unsympathetic to students who are strip searched by school officials based upon flimsy evidence, he also grossed out plenty of folks with this little homespun tidbit.

Justice Breyer elaborated on what children put in their underwear. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day,” he said. “We changed for gym, O.K.? And in my experience, too, people did sometimes stick things in my underwear.”

Stephen, get help. Please.

And protect the right of students to not be strip searched by school officials on the basis of nothing more than the word of another student.

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Second Amendment An Individual Right

Another court ruling to reinforce the obvious.

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

It is really quite simple – if the use of the phrase “the people” in the First Amendment is indicative of an individual right, the same must be true when that phrase is used in the Second Amendment, since it was composed at the same time by the same authors. And if the Fourteenth Amendment incorporates individual rights against the states in regard to the rights protected by the First Amendment, the same must be true of the right guaranteed by the Second Amendment. It is about time that our Second Amendment jurisprudence catches up with our First Amendment jurisprudence.

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Next Up For Decriminalizing Consensual Sexual Relations Between Adults?

How many European nations does it take before the Supreme Court declares it an international trend and finds such conduct protected by the US Constitution?

Three European Union nations — France, Spain and Portugal — do not prosecute consenting adults for incest, and Romania is considering following suit.

* * *

Laws exempting parents, grandparents, brothers and sisters from prosecution for incestuous acts if they are not forced upon adult family members are decades old in France, Spain and Portugal.

In Romania, decriminalizing incest among consenting adults is being considered as part of a wide range of reforms to the countryÂ’s criminal code. No date has been set yet for a parliament vote on the bill, and opposition to the proposal is fervent even among some lawmakers in the ruling coalition.

The reliance upon foreign courts and foreign law by the justices of the Supreme Court has become more common in recent years. And after Lawrence v. Texas and its expansive interpretation of the right to privacy to forbid consensual sexual relations between consenting adults, it would be quite easy to argue that there is a substantive basis for such a ban. After all, Justice Kennedy wrote the following in the majority opinion.

"When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."

The logic would be equally as compelling in the case of an adult couple engaged in an incestuous relationship – and given that mere societal disapproval has been held to be insufficient to allow for laws against homosexual sodomy to be upheld, how can similar laws regarding adult incest stand up to constitutional scrutiny? And lest some argue that there is the increased chance of genetic problems in the offspring of such relationships, given that the increase is relatively small is that really a sufficient basis for such a prohibition?

Now please realize that I am not making an argument for incest – I’m not. Rather, I am arguing that the current case law relating to adult sexual expression is such that I don’t see how a law against it can stand – and that this is but one potential unforeseen consequence of an expansive decision that invalidated on constitutional grounds a law that justices saw as unwise, and the tendency to use foreign law as a matrix for interpreting our own constitution.

H/T Secular Right

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SCOTUS To Keep Hands Off Gay Marriage Issue?

I find this bit of analysis to be rather intriguing – and a sign that current justices have learned from the over-reaching of an earlier era.

In other contexts, this sort of turmoil might amount to an invitation for the United States Supreme Court to step in. But there are all sorts of reasons the court is likely to keep its distance, and a central one is the endlessly debated 1973 decision that identified a constitutional right to abortion.
“The concern about creating another Roe v. Wade looms large,” said Nathaniel Persily, who teaches law and political science at Columbia. “At least five members of this court, if not more, would probably be reluctant to weigh in on this controversy, especially given the progress that is being made in state legislatures, state courts and public opinion.”

Let’s be really honest here – in 1973, there was already movement towards legalizing abortion in many states. Indeed, Ronald Reagan had signed legislation allowing it, though he later came to regret his decision. But the issue was being handled as the Framers would have hoped – on the state level, by the people and their elected representatives.

Unfortunately, I suspect that there will be a need to settle this question on the national level. Once an abortion is performed, it is done. A marriage, on the other hand, might well be described as a movable feast. Indeed, I was an Illinoisan who was married in Pennsylvania and later moved to Texas – and every state in the union would most certainly recognize my marriage as valid. The same is not true of marriages between individuals of the same sex, and that does ultimately raise a question under Article IV. Does the federal Defense of Marriage Act shield states from recognizing these marriages? Or does the requirement of “full faith and credit” mean that states must recognize marriages that would be forbidden under their own laws? The federalism issue here is one that must ultimately be resolved in the federal courts – or by a constitutional amendment.

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A Troubling Court Order

In the past, I’ve questioned the policy of keeping the names of alleged sex offense victims out of the newspaper. But in the end, that should be the decision of the news organization doing the reporting – not the judge in a particular case. And it is precisely such a case that I find disturbing here.

The Daily Press in Victorville reported yesterday that a judge ordered a reporter not to print the last name of a witness who testified in open court — a mandate the newspaper claimed was illegal.

The Daily Press said Judge Bridgid McCann gave the order to one of its reporters when an alleged victim in a sexual-abuse case testified in San Bernardino County Superior Court.

The alleged victim, a 24-year-old U.S. Army soldier, wore a name badge but his name was not on the court record when he testified at a preliminary hearing against his father, Richard Swank.

Daily Press Editor Don Holland said the judge called the reporter and attorneys to the bench and ordered that the last name of Swank's son not be printed.

And therein lies the problem. This manÂ’s name was on display for anyone in the courtroom to see. Any person who saw it could legally speak it or otherwise communicate it. The judge, however, singled out a particular media outlet and imposed a gag. That is something our First Amendment cannot and should not permit.

Of particular interest is the position taken by the paperÂ’s editor.

He said all the judge had to do was "rescind your order, ask nicely and we won't run the name.

Especially since they had never intended to publish the name in the first place.

But at this point, I’d argue that there is almost an obligation to publish the name – because to fail to report it now that it is a matter of public interest in a case where a judge issued an unconstitutional order is irresponsible.

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More Dangerous Than The Fairness Doctrine

A federal appellate panel has overruled the long-standing principal that truth is an absolute defense in libel cases.

In the second rerun incident, a three-judge panel in the 1st U.S. Circuit Court of Appeals recently upended a long-held rule of law that “truth is an absolute defense” when someone is sued for libel. The opinion has surprised some experts on libel — and, if ultimately upheld, would uproot basic legal tenets of free speech and the law.

The judges reviewed Noonan v. Staples, a case involving an employee of a business-supply firm who sued the company after an executive sent an e-mail to about 1,500 employees detailing why the employee had been fired for what the company said was falsifying expense reports.

The court’s opinion said that even if the factual account sent to other workers were true, and apparently it was, the employee involved might be able to recover damages if the e-mail was sent maliciously — in this case, to humiliate the former employee. The judges sent the case back to a lower court in Massachusetts for reconsideration.

In other words, the mere fact that you have spoken truthfully will no longer be let your words be protected by the First Amendment -- a judge will be permitted to decide if you had sufficiently good cause to speak the truth, or whether your motives for doing so were base enough to strip you of your rights under the Constitution.

Just imagine what mischief could be made if this ruling is allowed to stand. Truthful statements would become actionable – presumably even those directed against public figures and public officials. Could you imagine, just as an example, what Bill Clinton could have done with such a precedent during the Lewinsky scandal? He’d have managed to close down most of the conservative media – after all, there was certainly a lot of malice involved in the way in which the story was handled, even though the details of the case were certainly true. Do we really want the free flow of truthful information to stifled by the threat of a libel suit?

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Maybe True – But Not Appropriate To Say

Justice Ruth Bader Ginsburg has been ill in recent weeks with pancreatic cancer. That is not an illness which gives one a great prognosis. Acknowledging that is one thing – but explicitly coming out and stating that the woman is going to die soon is rude, crude, and both socially and morally unacceptable.

And one more reason the GOP needs to find someone to run against Senator Jim Bunning in the 2010 GOP primary.

Sen. Jim Bunning (R-Ken.) warned a Kentucky GOP group Saturday that the fight over a new Supreme Court justice could come soon as Associate Justice Ruth Bader Ginsburg is likely to die shortly.

In a speech to the Hardin County Republican Party at the group's annual Lincoln Day Dinner, Bunning said Ginsburg has "bad cancer. The kind that you don't get better from," according to a report in the Louisville Courier-Journal.

Ginsburg was diagnosed with pancreatic cancer earlier this year and had surgery at a New York hospital Feb. 5. The surgery to remove Ginsburg's spleen and part of her pancreas was a success, according to a Supreme Court press release, and she is expected to be back in court to hear oral arguments on Monday.

"Even though she was operated on, usually, nine months is the longest that anybody would live" after being diagnosed with the dangerous form of cancer, Bunning said.

Interestingly enough, today was Justice Ginsburg’s first day back at work at the Supreme Court – the first of what I hope are many more.

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An Interesting Observation On Liberal Justices

Dahlia Lithwick offers an interesting observation about the current liberal justices of the Supreme Court and the sort of justice various liberals have said that Obama needs to appoint when a vacancy occurs. But in the midst of it all, she offers this observation that makes a lot of sense – but which is also a telling point about the “great” liberal justices of generations past.

It's sometimes said that in addition to being voiceless, or at least librarian-voiced, the court's liberals cannot see big. Thus we often hear that the court's liberals lack a revelatory constitutional vision. Sunstein, for instance, once lamented the "absence of anything like a heroic vision on the court's left." He writes longingly of Marshall and Brennan as "the Court's visionaries, offering a large-scale sense of where constitutional law should move." What Scalia has always done so much more effectively than anyone else at the court is sell his view of originalism and textualism. He has a coherent interpretive rulebook to which he almost always adheres. Oh, and he can explain it in 60 seconds on 60 Minutes.

Yes, it is “the vision thing” – but in the course of explaining another point about the vision of the three justices she shows the fundamental difference between a Scalia and a Brennan or a Thurgood Marshall.

Whether they persuade by the force of their personality, a la Brennan; or their life story, a la Marshall; or their browbeating analysis, a la Scalia, the big justices tend to be the ones with the big ideas.

But consider the basis upon which the three justices mentioned persuade others. In the case of Brennan, it was his personality. In the case of Marshall, it was his biography. In the case of Scalia, though, it is the expounding of rigorous legal reasoning grounded in the text of the Constitution. In effect, Lithwick is calling for a move away from the founding document, with decisions instead being based upon the whims and preferences of the men (or women) on the bench. So much for being a nation of laws.

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If True, Grounds To Overturn

When a prosecution witness and a juror are doing the horizontal mambo, it seems to me that you there exists a significant reason for a do-over. And if it is an investigator and a witness? Well, the conflict is different, but it certainly provides enough of a taint to warrant overturning a conviction.

Attorneys for former Sen. Ted Stevens (R-Alaska) have accused an FBI agent involved in the Stevens corruption investigation of having an inappropriate relationship with a key witness in the case.

Based on a complaint by an FBI whistleblower, Agent Chad Joy, the Stevens defense team claims that Mary Beth Kepner, the lead FBI agent on the case, had a personal relationship with Bill Allen, the CEO of an Alaska oil services firm and a witness against Stevens.

Stevens’ lawyers state that Joy’s memo “strongly suggests that the inappropriate relationship was sexual.” Joy stated that Kepner “wore a skirt for Allen” on a day that he was to testify in the case.

Joy also charges that Kepner may have provided secret grand jury information to Allen about other ongoing federal investigations.

I agree with Ed Morrissey on this one:

The affair may be the lesser of the concerns prosecutors have over this motion. Joy informed the prosecution of the relationship on or before December 2nd, but did not reveal it to the court on that day. That could represent prosecutorial misconduct if the judge rules that the information was relevant and germane to the defense — and it’s hard to argue that a sexual relationship between a key witness and an FBI agent wouldn’t go to credibility.

The entire Stevens case was marked with assorted irregularities by the prosecution. Justice is a good thing – but I’m starting to wonder if what was done in this case was not justice.

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Court Suspends Outrageous Ruling

This is a sensible action by the New Jersey Supreme Court in response to an absurd ruling by an appellate court. Hopefully this is the prelude to that ruling that overturns a decision that would expose newspapers (and others) to civil liability for repeating information found in public records and court filings.

The New Jersey Supreme Court has suspended a state appellate court ruling that said a newspaper can be sued for libel for reporting allegations from a lawsuit before any court proceedings have taken place.

The one-page order issued yesterday puts a hold on the November 2008 decision by the appeals panel, but does not reverse it.

The appeals court decision stemmed from a March 2006 story in The Record of Bergen County. It reported a federal bankruptcy court complaint alleging that Thomas John Salzano misappropriated money from a now-defunct Newark telecommunications company.

Salzano filed suit against the newspaper, saying the allegations in the complaint were unfounded.

The appeals court decision reversed a lower court ruling that dismissed the libel claim.

This goes right to the heart of the First Amendment and the right of the people to know what is going on in the courts. After all, court filings are public documents related to the administration of justice – and if a report about the allegations in a lawsuit (or criminal complaint) are accurate, it is really irrelevant whether or not the underlying allegation is true. After all, could you imagine, for example, OJ Simpson suing after his acquittal on murder charges on the basis that news reports defamed him? That is precisely what the appellate ruling would permit – making reporting on the courts a dangerous proposition for the press.

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Major Voting Rights Act Case On The Horizon

I’ll be honest – I’m not sure whether the court ought to uphold or strike down the part of the Voting Rights Act that is being challenged in this case. On the one hand, I consider the statute as written to be terribly flawed – but on the other, I don’t believe that a statutory flaw is necessarily constitutes ground for a finding of unconstitutionality. After all, an unwise enactment is not necessarily unconstitutional. Still, the argument made in this case is intriguing – namely the fact that the preclearance provision of the Voting Rights Act is based upon findings of discrimination that occurred four decades ago while ignoring current realities constitutes a flaw of constitutional proportions.

Of course, I wrote about this very issue at the time this provision was renewed – so while I won’t offer an opinion on what the Supreme Court ought to decide, I will remind you of why I was troubled by the renewal.

* * *

VRA Renewal: Solving The Problems Of 1964 Until 2032

In 2032 I will, God willing, turn 69. The data used to determine which states need special monitoring for racial discrimination in voting will turn 68 -- making it more than old enough to collect social security if that program still exists.

That is why today's knee-jerk renewal of certain provisions of that law is an absurd act of political cowardice by the House of Representatives.

The House yesterday easily approved an extension of key provisions of the landmark Voting Rights Act, after GOP leaders quelled a rebellion within the party's Southern ranks that threatened to become a political embarrassment.

Before the 390 to 33 vote to extend the measure for a quarter-century, the House defeated four amendments that would have diluted two expiring provisions and possibly derailed final passage before the November congressional elections. With the House hurdle now cleared, Senate Judiciary Chairman Arlen Specter (R-Pa.) said he hoped to bring the extension to the Senate floor before the August recess.

The act's temporary provisions do not expire until next year, but Republican leaders had hoped that early action would earn goodwill from minority voters as members of Congress head into a brutally competitive fall campaign season.

"Today, Republicans and Democrats have united in a historic vote to preserve and protect one of America's most important fundamental rights -- the right to vote," said House Speaker J. Dennis Hastert (R-Ill.).

Wrong, Mr. Speaker. Democrats and Republicans have become a sleuth of pander-bears. These provisions were meant to expire in 1970, and use data that is woefully outdated to limit the effective coverage of the act to aonly a few states.

It seems clear that some members of Congress have been in hibernation for the last four decades.

In urging adoption of the act, Representative John Lewis, Democrat of Georgia, recalled marching on Bloody Sunday, a turning point in the movement for black voting rights in 1965, when the police in Selma, Ala., beat 600 civil rights demonstrators.

"I gave blood," Mr. Lewis said, his voice rising, as he stood alongside photographs of the clash. "Some of my colleagues gave their very lives."

"Yes, we've made some progress; we have come a distance," he added. "The sad truth is, discrimination still exists. That's why we still need the Voting Rights Act, and we must not go back to the dark past."

Fine, I can accept some sort of renewal of these provisions of the VRA. But none of these provisions is about turning the clock back four decades. Indeed, one of the defeated amendments (opposed by Democrats as a killer amendment) would have targeted voting issues as they exist TODAY, not back when I was still an infant.

A second amendment, offered by Rep. Charles Whitlow Norwood Jr. (R-Ga.), would have made every district potentially subject to the pre-clearance requirement, by including any jurisdiction where voter turnout fell below 50 percent in a presidential election. It would have eased the pre-clearance requirement for jurisdictions with voter turnout above 50 percent in three consecutive presidential elections, presuming that no court had found that discriminatory voting practices were employed. The measure failed 318 to 96.

Wow -- considering voter turnout in elections taking place TODAY was labeled as being against civil right. Applying the law to what happened in 2004 and what will happen in 2008 is not as important as correcting what happened in the election when Lyndon Johnson beat Barry Goldwater. Good grief -- would you accept the advice of a doctor who shunned MRIs and CAT scans and stuck strictly to old-fashioned x-rays because that was what he learned in medical school back in the 1960s? Of course not! Then why engage in the illogically absurd practice of using antiquated measures to determine racial discrimination -- and demand that they continue to be used for another quarter century?

Even suggesting that the renewal be done for a decade rather than a quarter century was labeled as a poison pill. Never mind that those who wrote these provisions thought it sufficient that they expire after five years -- now, four decades later, anything less than an extension of 25 years is tantamount to repealing the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.

I've expressed my frustration over this issue a number of times in the past. I'm not persuaded by anything I've read today. Far from being a profile in courage, the blind renewal of these provisions of the VRA is a profile in political and moral cowardice.

Here's hoping the Senate has the backbone either to make the Voting Rights Act relevant to the problems that exist today or to allow these provisions to expire as their authors intended them to do.

UPDATE: Interesting takes on the case at Law Blog, SCOTUSBlog, ACSBlog, BLT, The Corner

Posted by: Greg at 12:40 PM | Comments (1) | Add Comment
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California Supreme Court Guts Good Samaritan Law

Under their interpretation of the parable, the priest and the Levite got it right.

Being a good Samaritan in California just got a little riskier.

The California Supreme Court ruled Thursday that a young woman who pulled a co-worker from a crashed vehicle isn't immune from civil liability because the care she rendered wasn't medical.
The divided high court appeared to signal that rescue efforts are the responsibility of trained professionals. It was also thought to be the first ruling by the court that someone who intervened in an accident in good faith could be sued.

Lisa Torti of Northridge allegedly worsened the injuries suffered by Alexandra Van Horn by yanking her "like a rag doll" from the wrecked car on Topanga Canyon Boulevard.

Torti now faces possible liability for injuries suffered by Van Horn, a fellow department store cosmetician who was rendered a paraplegic in the accident that ended a night of Halloween revelry in 2004.

But in a sharp dissent, three of the seven justices said that by making a distinction between medical care and emergency response, the court was placing "an arbitrary and unreasonable limitation" on protections for those trying to help.

In other words, folks, the prudent rule to follow in California is “LET THAT SUCKER DIE!” After all, the alternative is being saddled with an insurmountable debt if someone decdes your course of action was incorrect – and that someone will always be a lawyer.

Oh, and when this case gets to a jury, hereÂ’s hoping for a bit of jury nullification.

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Banning Non-Invidious Discrimination

Most of us are pretty firmly against discrimination by government – and are usually pretty troubled by it when it occurs in private entities as well. But are there times when discrimination is not only not a bad thing, but essential to a group’s maintaining its identity? And if so, how should laws and institutional rules deal with that discrimination? That is a key question in this Florida case – one which deals with how a university should deal with an organization that is organized to promote a certain ethic and point of view of a religious nature.

A Christian fraternity asked federal judges Wednesday to recognize the group as part of student life at the University of Florida, despite a school rule that bars Gator groups from discriminating based on religion.
Beta Upsilon Chi lawyers told a three-judge panel of the 11th U.S. Circuit Court of Appeals that the university's policy threatens their core beliefs and that inviting non-Christians would undermine their mission.

"They're not going to be as open if everyone in the group is not sharing their Christian values," fraternity lawyer Tim Tracy said.

University lawyer Chris Bartolomucci said student groups are an extension of the educational process and should be open to intellectually curious students. He said no non-Christians have attempted to join the fraternity to hijack it, a hypothetical concern raised by the judges during a hearing in Atlanta.

Now if this were a group designed to deal with any other sort of viewpoint, this would be an open and shut case – the group would be able to restrict its membership and leadership to those who hold to the point of view established in the charter of the organization. But we as a society tend to look at religious restrictions differently, and courts generally apply a higher standard to instances of religious discrimination than other viewpoint based restrictions. Still, when a group is formed around a religious viewpoint, limiting membership (or at least position of authority) it strikes me that it needs to be treated just as any other ideological group. Indeed, the most obvious reason for doing so is the fact that there have been efforts by some opposed to the group’s point of view to join the organization in an attempt to undermine its reason for existence. Requiring a Christian (or Jewish or Buddhist, or atheist) group to admit those who hold to other religious beliefs is to effectively neuter them.

Frankly, this case is more important than it appears at first glance. Colleges and universities across the country have attempted to impose similar restrictions on religiously-oriented groups (particularly evangelical Christian groups) over the last several years. Until and unless it becomes clear that the freedom of association rights of religious groups includes the exact same right to set belief-based membership requirements as non-religious groups, we will continue to see public institutions exhibit hostility to religiously-affiliated groups that seek to be true to their mission.

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No Immediate SCOTUS Appointment For Obama?

Washington Post reports that Justice John Paul Stevens is giving no indications of an impending retirement. However, IÂ’m intrigued by this little tidbit.

The three most often mentioned [as potential retiring justices] -- Stevens, Justice Ruth Bader Ginsburg, 75, and Justice David H. Souter, 69 -- are part of the four-member bloc that most consistently votes liberal. Logic would have it that they would want their replacements to be like-minded.

But Ginsburg has made clear lately that she should not be thought of as having one foot out the door, and Souter rarely gives interviews or speeches that would reveal his intentions. They and Stevens have hired clerks for the term that starts in October.

Now that doesn’t mean that there won’t be a vacancy – but hiring clerks this far in advance would be brutally unfair to some brilliant young men and women if their retirement is in the offering. After all, the new justice (or justices) would have no obligation to keep the retired justice’s clerks – and would very likely bring one or more of their current clerks if they are sitting federal judges, or student protégés if they are not. So short of a death or a sudden health crisis, I would bet that the 2009-2010 Supreme Court term will begin with the same lineup of justices we saw when the 2008-2009 term began last month.

Posted by: Greg at 01:34 PM | Comments (2) | Add Comment
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Judge Indicted For Sexual Misconduct

Glad to see it -- Kent is scum.

U.S. District Judge Samuel Kent was indicted Thursday on charges of abusive sexual contact and attempted aggravated sexual abuse, making him the first federal judge to be charged with federal sex crimes and the first in Texas to be indicted in recent history.

The federal criminal investigation was launched in November 2007 after Kent's former case manager, Cathy McBroom, complained that the judge physically touched her under her clothing twice and and often made obscene suggestions during the six years she worked for him.

In the indictment, he is accused of various sexual contacts "with an intent to abuse, humiliate, harass, degrade... "

Frankly, I don't care that he is a Republican, and that this could lead to his removal from the bench. A man with any decency or moral fiber would have already resigned -- but then again, such a man wouldn't have engaged in such behavior.

And while this could potentially lead to his replacement by a liberal Democrat if Obama were to win the election, I think that cleansing the federal bench of this stain is more important.

Posted by: Greg at 01:07 PM | No Comments | Add Comment
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Liberal Prof Lawrence Tribe -- SCOTUS Wrong On Pedophile Death Penalty

When a liberal scholar who is generally skeptical about the death penalty says that the Supreme Court screwed the pooch in a decision limiting the death penalty and needs to reconsider the case, you know that the decision is completely screwed up.

And here is the money section of the column.

If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name. So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire. In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.

To be sure, holding the line at murder and treason gives the judiciary a bright line that blurs once one says a legislature may include other offenses in its catalogue of what it deems the most heinous of all crimes. But the same may be said of virtually any bright line. Placing ease of judicial administration above respect for democracy and for principles of equal justice under law is inexcusable.

of course, that is precisely the problem with much of the death penalty jurisprudence laid down by the Supreme Court in recent years. Everything that Tribe says in this case could equally well be applied to the decision a few terms back to exempt vicious murderers who were under the age of 18 from the death penalty. Ditto all the tinkering with the mechanism of death banning mandatory death sentences and imposing a convoluted scheme of aggravating/mitigating factors for juries to consider. After all, the nine robed justices are members of the Supreme COURT, not the Supreme LEGISLATURE -- and the naked activism found in Eighth Amendment jurisprudence related to capital punishment demonstrates what happens when the justices forget their proper role.

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Petition For Rehearing In Child Rape Death Penalty Ruling

Given the obvious flaws in the decision, pointed out by the press and bloggers around the web, this case is ripe for reconsideration.

Louisiana prosecutors asked the Supreme Court yesterday to revisit its recent decision outlawing the death penalty for people convicted of raping children.

The unusual request is based on the failure of anyone involved in the case -- lawyers on both sides as well as the justices -- to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military convicted of child rape.

The court almost never grants such requests, but lawyers for Louisiana said their situation is different. The 5 to 4 decision, written by Justice Anthony Kennedy, said the absence of any recent executions for rape and the small number of states that allow such executions demonstrate "there is a national consensus against capital punishment for the crime of child rape."

When Congress in 1994 expanded the number of federal crimes that could get the death penalty, it did not include raping a child, Kennedy said.

Only after the decision was issued on June 25 did anyone point out that Congress changed that law and that President Bush signed an executive order in September 2007 that implemented the change. It was first discussed on a military law blog.

Now here's the problem -- it takes five justices to reconsider a ruling. Will any of the five justices in the majority vote to reconsider the case, given the glaring error upon which the decision was based? Does the majority decision even hold water any longer? And if it doesn't, isn't that an even more serious reason for the justices in the majority to refuse reconsideration, given the strong anti-death penalty bias of several of those in the majority?

Posted by: Greg at 06:05 AM | Comments (8) | Add Comment
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What Will Justice Kennedy Have To Say About This?

Personally, I like this sentence.

A man was sentenced to more than 4,000 years in prison Wednesday for sexually assaulting three teenage girls over two years.

A day after finding James Kevin Pope guilty, jurors sentenced him to 40 life prison terms — one for each sex assault conviction — and 20 years for each of the three sexual performance of a child convictions.

At the request of prosecutors, state District Judge Graham Quisenberry ordered Pope to serve the sentences consecutively, adding up to 4,060 years. He will be eligible for parole in the year 3209, according to the Parker County District Attorney's Office.

Given his new-found affection for those who abuse kids, I suspect that Justice Kennedy would consider this cruel and unusual punishment. Unfortunately, our black-robed overlords tell us that we can't execute disgusting creatures like Pope, so requiring him to serve time into the next millennium may be the best possible option.

Posted by: Greg at 02:06 AM | Comments (8) | Add Comment
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NYTimes: The Sky Is Falling! The Sky Is Falling!

Looks like the editors of the New York Times have quit taking their medication.

After all, that is the only way that they could have reached this conclusion in their editorial.

In placing these rulings in the larger context of the court after two appointments by President Bush — Chief Justice John Roberts and Justice Samuel Alito, both dedicated members of the conservative movement — it is important to note that the Guantánamo decision was 5 to 4. Anthony Kennedy, the court’s swing justice, cast the deciding vote. In other cases, like the gun-control decision, the rulings might have been more sweeping and more damaging if the conservative bloc had not needed the moderate-conservative Justice Kennedy’s vote to form a majority. One more conservative appointment would shift the balance to the far-right bloc.

If that happens, the court can be expected to push even further in a dangerous direction. It would most likely begin stripping away civil liberties, like the habeas rights vindicated in the Guantánamo case. The constitutional protection of women’s reproductive rights could be eliminated. The court might well strike down laws that protect the environment, workers’ rights and the rights of racial and religious minorities.

The court was teetering on the brink in this term. Voters should keep that firmly in mind when they go to the polls in November.

What are the horrific decisions that the editorial cites? Oh, the ones you would expect -- the Heller decision (upholding the right to keep and bear arms), the recent death penalty case (which does not require that executions be pain free), lat term's Ledbetter decision (described as "baseless" -- which is true if one does not consider the actual language of the statute when interpreting it) and the upholding of the Indiana voter ID statute.

On the other hand, it cites the tenuous victories for endangered liberty found in granting unprecedented access to civilian courts to armed combatants captured in the field and the striking down of the death penalty for child rape as positive signs.

That the American public overwhelmingly supports the "conservative" decisions and was outraged by the "moderate" ones doesn't make a difference to the Times -- it is clear that they see the Four Horsemen of the Judicial Apocalypse (Scalia, Thomas, Roberts, and Alito) as dangerously out of step with the views of rightleft-thinking Americans and therefore fundamentally threatening to the liberties of Americans -- no matter how consistent with the text of the Constitution and the history of the entire Western legal tradition those conservative decisions really are.

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The Heller Decision

One of the most anticipated Supreme Court decisions of the year is in the case of District of Columbia v. Heller. This decision involves the critical question of whether or not the Second Amendment confers an individual right to keep and bear arms.

In a ruling handed down only moments ago, the justices affirmed the decision of a lower court holding that the Second Amendment does confer an individual right to keep and bar arms, striking down a Washington, DC law that virtually forbade the legal ownership of firearms -- and which required that those which were permitted be stored disassembled.

The decision, which was 5-4, was written by Justice Scalia. The usual liberal foursome (Stevens, Souter, Ginsberg, Breyer) dissented against the clear language of the Constitution -- and actually argue that there is no Constitutional right to possess (much less use) a weapon to defend oneself.

Some interesting notes:

1. How Appealing notes that Scalia cites no fewer than THREE law review articles written by noted legal blogger Professor Eugene Volokh. Congratulations, sir! Lot's of great analysis from Volokh and his co-bloggers at his blawg, too.

2. AP notes that the decision goes even further in protecting Second Amendment rights than proposed by the Bush Administration.

3. This quote from the majority is troubling:

On the question of the Second Amendment’s application to the States: “23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

Hmmm... a selective incorporation question. Could it be that the decision would have gone the other way if the law had been enacted by a state rather than the District of Columbia government, which is merely a creation of Congress? Eugene Volokh suggests that is not the case, noting that Cruikshank was later partially overturned as taking too restrictive a view on selective incorporation (with regard to the First Amendment) and that the other nineteenth century cases may therefore be similarly flawed as precedent because of their reliance on Cruikshank, which is seen by many as a monumentally bad decision.

4. Hube notes that at least one news source declared this to be "a narrow, 5-4 ruling". Oddly enough, "narrow" was not used by the same paper to describe yesterday's 5-4 ruling in favor of child rapists.

5. Confederate Yankee notes that there is already a call to assassinate Justice Scalia in a comment by lefty gay blogger David Eherenstein over at Crooks and Liars.

As of 10:46 am Central time, no other commenter has objected. I've emailed the FBI and Secret Service about the matter -- hope David has fun in federal prison.

6. John McCain notes that Barack Obama refused to sign on to a bipartisan amicus brief supporting the Second Amendment. That makes Obama's efforts to distance himself from last year's campaign statement on the issue a bit hard to believe -- unless you are an Obama true believer to begin with.

OTHERS BLOGGING: Michelle Malkin, Hot Air, Ace (twice), Urban Grounds, Dirt From Texas, Big Lizards, Hillbilly White Trash, Megan McArdle, JoshuaPundit, Wold Howling

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Impeach Anthony Kennedy

For the second time this month, US Supreme Court Justice Anthony Kennedy has written an opinion which says it doesn't matter what the political branches of government or the US Constitution have to say on a matter -- the Supreme Court knows better and will impose its will on the people of the United States.

The first time was in granting habeas corpus rights to terrorist detainees, despite Congress having acted under its authority in Article III of the Constitution to strip the Supreme Court of any jurisdiction is such cases.

This time it is in a decision that decrees that the sense of the Supreme Court will be the basis for determining when the death penalty may be imposed, not the laws of the states or the US Constitution -- and that the "evolving standard" on the death penalty can only move towards greater restrictions on capital punishment, not the other direction -- and that the rape of an eight-year old is not a sufficiently serious crime to merit the ultimate sanction.

The U.S. Supreme Court made it illegal to execute persons convicted of child-rape in a 5-4 decision Wednesday.

"The death penalty is not a proportional punishment for the rape of a child," wrote Justice Anthony Kennedy, who authored the majority opinion. The ruling broke on party lines, the liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer siding with Kennedy.

In their decision, the liberal justices ruled that a Louisiana law that sent 43 year-old man named Patrick Kennedy to death row in 2003 for raping his 8-year old stepdaughter was “cruel and unusual punishment.”

The utter constitutional, legal, and moral depravity of Justice Kennedy in this ruling is clear to see for anyone who reads the majority opinion and the dissent. Indeed, Kennedy expresses more concern with the dignity of the child-raping scumbag than he does for the innocent eight-year-old victim in this case.

In his dissent, Justice Alito shreds Kennedy's arguments, ending his analysis of the flaws of the majority opinion with this conclusion.

In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable"objective indicia" of a "national consensus" in support of the CourtÂ’s position; (4) sustaining the constitutionality of the state law before us would not "extend" or "expand" the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general.

Indeed, as in the recent case granting terrorists outside the United States access to federal courts, Kennedy again twists precedent, law, and fact to fit a pre-determined conclusion at odds with all three. This must stop -- and it must stop now.

The American people are really quite outragedabout this. National Review Online analyzes this decision's wrongness. Rush notes the same attitude on Kennedy's part that I did above.

[W]e just have the court deciding, "We're going to decide these political issues. We're going to decide these things." We don't even need a Congress, anymore. We don't even need a president. We'll just take you all of our controversial issues, submit them to the lawyers [and] the Supreme Court decides, and that's it because that's what it has become.

In the United States,Congress has rarely exercised its power to impeach and remove a sitting federal judge. Furthermore, it has been over two centuries since Congress impeached a Supreme Court justice, and in that case the Senate refused to remove him. Even more importantly, mere disagreement with Supreme Court rulings has not been held to be an appropriate cause for impeachment.

Those things noted, I return to the ultimate authority in this case -- the United States Constitution. Article II, Section 4 speaks to the matter as follows.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and misdemeanors.

Furthermore, Article III states that judges (including Supreme Court Justices) shall hold their office during good behavior.

This brings me back to the point at hand -- in these two rulings, Justice Kennedy has demonstrated bad behavior. In both cases, he has placed himself and the Supreme Court above previous court precedent, the laws duly enacted by the elected representatives of the people, and the Constitution itself. As such, he has exceeded his authority in office and promulgated lawless decisions and attempted to make them binding upon the people of the United States and their elected representatives. This is malfeasance in office, pure and simple, engaged in under color of law and authority.

I'd like to urge one or more members of the House of Representatives to file motions for impeachment against Anthony Kennedy. Put each and every Congressman on record right now, four and one-half months before the next election -- do they support allowing the Supreme Court to impose their own extra-constitutional standard rather than that set by the Constitution and the laws enacted by the United States and the several states.

Now some may challenge me, raising the spectre of billboards from decades past urging Congress to "Impeach Earl Warren". The difference here is that while many of the opinions of the Warren Court were controversial and unpopular, it was difficult to argue that they were not grounded in the Constitution -- indeed, the roots of those decisions were buried in the fertile loam that is the text of that guiding document. The same cannot be said of these two most recent judicial monstrosities brought forth by Anthony Kennedy.

I sincerely doubt that the Senate would vote to remove Anthony Kennedy if the House adopted articles of impeachment against the him, but the precedent would serve as a powerful warning against such naked judicial activism.

And in addition, there is a course of action which should be followed by in every state as a result of this ruling. Every state legislature should pass, and every governor should sign, legislation imposing the death penalty for the rape of a child. If even half manage to accomplish this task, it would establish a strong national consensus in favor of the view that "the evolving standards of decency" hold that child rape is viewed by our society as meriting death. Gov. Bobby Jindal of Louisiana has already vowed to resist this decision.

Oh, and for those of you curious, here is what Justice Kennedy argues does not merit capital punishment in today's ruling. more...

Posted by: Greg at 08:26 AM | Comments (2) | Add Comment
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After Boumediene

I still stand by my assessment from last week, that the majority in the Boumediene case screwed the pooch in holding that detained illegal combatants have habeas corpus rights in American civilian courts. National Review's Andrew McCarthy, in an article that must be read by everyone who wonders where we go from here (impeachment of the five justice majority not being practical), also makes a pointed observation as to why the decision is fundamentally nonsensical.

Now the Court has decided that the combatants have constitutional habeas rights. If you can follow this, the bloc of liberal justices reasons that the framers designed our fundamental law to empower enemies of the American people to use the American peopleÂ’s courts as a weapon to compel the American peopleÂ’s commander-in-chief to justify his actions during a war overwhelmingly authorized by the American peopleÂ’s elected representatives . . . even as those enemies continue killing Americans.

In other words, despite the clear establishment of a Constitutional framework in which Congress authorizes military action and the President is Commander-in-Chief of the armed forces, the judicial branch (delegated no role in the war-making function of government) is now somehow on top of the heap when it comes to such matters AND a powerful weapon in the hands of America's enemies, giving that enemy the power to manipulate the constitutional system of checks-and-balances to its own military and political advantage.

I heartily endorse the suggestions made by Andrew McCarthy in the article -- and add to it the suggestion that Congress exercise its authority under Article III Section 2 of the Constitution to strip the Supreme Court of its appellate jurisdiction in any and all cases related to the war powers and detention of enemy combatants.

Posted by: Greg at 07:50 AM | Comments (32) | Add Comment
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Scumbag Escapes Justice

This murdering punk doesn't like the lethal injection protocol? Fine -- let's go for the single-bullet-to-the-base-of-the-skull protocol.

Condemned double-murderer Derrick Juan Sonnier received a reprieve about two hours before he was to walk into Texas' death house Tuesday, the second time he has escaped execution.

The Texas Court of Criminal Appeals granted a stay of execution after the Texas Defender Service, a watchdog capital punishment group, filed two last-minute appeals in the 40-year-old man's case.

Sonnier was sentenced to die for the 1991 stabbing deaths of Melody Flowers, 27, and her 2-year-old son Patrick.

Authorities said he had stalked the single mother of five for months before the murders.

* * *

In its appeals, the Texas Defender Service argued that the state made changes May 30 to its lethal injection protocol that have not been reviewed by any court.

Its second appeal argues that the lethal injection protocol violates Eighth Amendment protections against cruel and unusual punishment, an issue raised in two other cases pending before the state court.

I'm sorry -- the "cruel and unusual punishment" argument doesn't was for me. While one can argue that any sentence of death is cruel, it is not unusual under the laws of this country to sentence someone to death for murder. Nor does it somehow shock the conscience that murdering scumbags might feel some fraction of the pain and suffering that their victims experienced -- indeed, most people with any sense of morality would argue that it is not unreasonable for those receiving capital PUNISHMENT to actually experience a some discomfort as a part of their punishment.

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Don't Name That Party -- Louisiana Edition

What's missing here?

SHREVEPORT, La. - Two judges were convicted Saturday of taking bribes to set low bonds or remove court holds on defendants.

A federal jury convicted state District Judge Michael Walker and Caddo Parish Juvenile Court Judge Vernon Claville on one count each of racketeering. The charge carries up to 20 years in prison and a $250,000 fine.

Claville was accused of taking bribes to remove court holds from juveniles so they could get bond.

Walker oversaw the drug section of his court and was accused of taking bribes to quickly set bonds, reduce them, recall arrest warrants or remove probation holds.

Defense attorneys argued the case was based on inconclusive recordings and testimony.

Where's the party affiliation of these public officials? Oh, that's right, it doesn't matter -- because the correct answer is DEMOCRAT!

I guess that it must now be a part of the AP stylebook that party affiliation for convicted public officials shall be disclosed only if they are Republicans

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Girl Scout Cookie Money Thief Sentenced

Remember these thieving bitches?

One of them just got three years in the slammer!

Saying she is "an out-of-control drug user," a juvenile court judge on Wednesday ordered Girl Scout cookie-money thief Stefanie Woods confined to a high-security facility for up to three years in order to address substance-abuse and mental-health problems.

* * *

Baker convicted Woods on May 13 of petty theft and two counts of violating probation after a nonjury trial for her role in the stealing of $168 from 9-year-old Girl Scout Gracie Smith outside a Winn-Dixie in suburban Boynton Beach. In a letter to the judge, Gracie urged him to sentence Woods to community service in the form of cleaning up a Girl Scout camp.

Woods was a juvenile at the time of the misdemeanor offense. A girlfriend, also a juvenile, took an envelope containing the cookie sales money and got into a car that sped off with Woods at the wheel. The next day, Woods and her friend boasted and showed off for television camera crews and found themselves making national news.

Woods will remain in a secure juvenile detention facility locally until there is a bed available at a state-run facility at the second-highest security level, as ordered by Baker. That could be a month or two, a Juvenile Justice worker told the judge.

She eventually will be in a prison-like setting where she will undergo a psychological assessment - she's been diagnosed at least once as bipolar - and individual and group therapy. "It is the hope that once and for all, she will address her substance abuse issues," Baker said.

Based on reports he receives, the judge will decide whether Woods remains confined for three years or is released earlier.

She may get out of juvenile detention briefly next week. That's when she's due back in adult court to be sentenced for a "dine-and-dash" incident for skipping out on a Denny's without paying a $25.84 check she incurred with the same friend from the cookie-money theft.

You have to read the string of outrageous claims made by Baker and her lawyer to try to get her leniency -- something which backfired in a big way. Here's hoping that her next court appearance -- on that charge from Denny's -- nets her some additional time.

What a pair of scummy, scuzzy wenches!

Posted by: Greg at 10:42 PM | Comments (3) | Add Comment
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Is This Really The Washington Post?

I was stunned when I read these words this morning.

Protecting employees from retaliation makes sense, but it is not the province of judges to create such protections on the basis of their own beliefs of what is right or wrong, or even on the basis of their intuitive sense of what Congress meant to do or should have done. And those who today praise the outcome shouldn't be upset if in the future justices read into the law new principles that lead to results they may find less acceptable.

There is a term for what the Washington Post is criticizing – judicial activism. In the past, the paper has been loath to criticize it. Did I miss some major earthshaking event that allowed this editorial to make it into print – or is their editorial page going conservative?

What next -- a call for strict constructionalism and the jurisprudence of original intent?

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Are 5-4 Decisions Coming From SCOTUS Soon?

So far, there has been only one, something that contrasts with the early pattern of the Roberts Court. But with only half the cases decided and many high-profile cases yet to come, will there be more? Or has the addition of two more top-flight legal minds helped to swing more liberal justices to conservative opinions?

Something is happening, clearly. The question is what. The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. The District of Columbia gun control case, the latest case on the rights of the Guantánamo detainees and a case on whether the death penalty is a constitutional punishment for raping a child are yet to be decided.

Still, there is a clear pattern in the cases the court has already decided this term. The court upheld KentuckyÂ’s method of execution by lethal injection by a vote of 7 to 2. It upheld IndianaÂ’s law requiring photo identification at the polls by a vote of 6 to 3. The justices voted 7 to 2 on Monday to uphold the latest federal effort to curb trade in child pornography.

All were major cases, all plausible candidates for 5-to-4 outcomes. All were government victories, hardly surprising coming from a conservative court. But even Justice John Paul Stevens, the leader of the courtÂ’s beleaguered liberal bloc, voted with the majority in all three cases. The surprise was that the government side won each so handily.

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. KentuckyÂ’s lethal injection protocol passed muster, but the court left open the possibility that another stateÂ’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin ScaliaÂ’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.

So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.

I'd argue there is some truth to the last point. That said, though, the justices have produced opinions that are undeniably conservative, but well-grounded in precedent. And it is the stability of the law (consistent with the dictates of the Constitution, of course) that has been a point of importance for both sides in their recent discussion of the role of the court. If the justices have found a way to accomplish that end, it bodes well for the nation.

Posted by: Greg at 10:09 PM | No Comments | Add Comment
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