Tuesday, January 31, 2006


The Ninth Circuit...post Ayotte

Over at SCOTUSblog, they’ve begun discussing today's Ninth Circuit Decision which is the first lower court decision to reference the Supreme Court’s recent Ayotte decision. Anyone familiar with the legal reasoning coming out of the Ninth Circuit over the years may be surprised to read that they apparently now have serious reservations about intruding on the legislative prerogative:

“Even if we could draft a remedy that sufficiently restricted the scope of the statute (which we believe we could not properly do consistent with our limited judicial role), such a narrowing construction would serve not to cure an error but to reverse a political judgment that Congress expressly made.”

Reluctantly, then, the Ninth Circuit states: “[i]n light of Ayotte, we conclude that the only appropriate remedy is to enjoin enforcement of the Act (Partial-Birth Abortion Ban Act of 2003) and we now affirm the district court’s grant of a permanent injunction.”

Friday, January 27, 2006


The Central Virginia Community College decision

There is a lot to criticize in Justice Stevens’ majority opinion in Central Virginia Community College v. Katz but I think Justice Thomas’ opinion more than carries that burden. However, I would like to pick at Justice Stevens’ annoying selectivity in how he used certain numbers.

As part of the history lesson Justice Stevens gives us (in fact it is the bulk of his opinion), he writes the following:

“As discussed below, to remedy this problem, the very first Congresses considered, and the Sixth Congress enacted, bankruptcy legislation authorizing federal courts to, among other things, issue writs of habeas corpus directed at state officials ordering the release of debtors from state prisons.”


“Congress considered proposed legislation establishing uniform federal bankruptcy laws in the first and each succeeding Congress until 1800, when the first Bank­ruptcy Act was passed.”

Glossed over in all this is the actual length of time involved in getting Congress to pass an initial Bankruptcy Law. Noting it was the Sixth Congress or “each succeeding Congress until 1800” obscures the fact that it took twelve years to get this legislation passed. A casual reader of Justice Stevens’ opinion may instead get the impression that few things weighed on the collective minds of our first Congress’ as much as Bankruptcy legislation.

In the second example, he takes note of the aftermath of a particular case that led to the swift enactment of the 11th amendment and pointedly makes note of the length of time needed for adoption.

“Chisholm v. Georgia, 2 Dall. 419, the case that had so “shock[ed]” the country in its lack of regard for state sovereign immunity, Principality of Monaco v. Mississippi, 292 U. S. 313, 325 (1934), was decided in 1793. The ensuing five years that culminated in adoption of the Eleventh Amendment were rife with discussion of States’ sovereignty and their amenability to suit.”

Well, as Justice Thomas correctly noted in his dissent, ratification was complete by 1795. In fact it took all of 340 days from the time Congress approved the amendment in March 1794 until North Carolina made ratification official in February 1795. What Justice Stevens must be referring to is that official announcement of ratification was not made until January 1798, when President Adams did so to Congress. To the extent that the ensuing years “were rife with discussion of States’ sovereignty and their amenability to suit”, it seems fairly clear that States’ sovereignty was a very important concept and the states weren’t all that amenable to suit. But by including the extra three years, Justice Stevens can better make it seem that the Bankruptcy Act of 1800 was passed on the heels of the amendment and, “[y]et there appears to be no record of any objection to the bankruptcy legislation or its grant of habeas power to federal courts based on an infringement of sovereign immunity.” This is probably because everyone involved considered it a done deal with the ratification of the 11th amendment.

And, while I’m here:

From Justice Stevens' opinion: "The power granted to Congress by that Clause is a unitary concept rather than an amalgam of discrete segments." ...is this the opening salvo in an emerging "Unitary Legislative" theory?.....And Justice Stevens' seems very taken with the idea that the 1st Congress considered Bankruptcy legislation...never mind they didn't actually do anything about it until the 6th Congress. Has the use of legislative history in judicial decision-making really gotten to the point where it's just the mere existence of a history that is important; the details are irrelevant.

Thursday, January 26, 2006


Senator Leahy was probably surprised that anyone was listening...

Senator Leahy accuses Senator Hatch of misquoting him:

“I have asked the distinguished senior Senator from Utah if he purports to quote me, to
try to at least get within the ballpark of accuracy. … [It is a misquote] to suggest that I
have said … that Judge Alito, all by himself, would do away with all the liberties of
-Senator Patrick Leahy (D-VT), Congressional Record, 1/25/06

Great comeback from Senator Hatch:

“I was not only in the ballpark, I was standing on home plate.”
-Senator Orrin Hatch (R-UT), Congressional Record, 1/25/06

You be the judge: Senator Hatch speaks

Sunday, January 22, 2006


Elect Shadegg & let's get on with it....

Over at Baseball Crank, I think he speaks for a lot of us conservative Republicans who don’t think the Republican leadership quite grasps that we’re Republicans because we’re conservative – and not vice-versa

Saturday, January 21, 2006


Help for the socially-conscious rich

Jon Cardin, a Maryland House of Delegates Democrat from Baltimore County, reports that among his legislative initiatives for this session is the following:

HOV Lanes for Hybrid Cars – Yet another incentive to reduce our dependence on oil and decrease environment pollution. It works in Virginia, it should work here. “

I recognize that hybrids have become status symbols in leftists’ circles. But do they deserve this kind of special treatment? Jon says that it works in Virginia but that’s based on what? That satisfaction reported by hybrid owners as they race by the less-fortunate inching along in their Chevy Cobalts? Maryland had already previously offered tax credits to those wealthy enough to afford these pricey vehicle alternatives (that’s right, just another tax cut for the rich). Here are some other special breaks we provide these rich people.

Hybrid Center

Would it surprise you to know that the final verdict on the hybrids efficacy is not yet settled?

The Hybrid Hoax


Now I may be more amenable to these special breaks if these cars were actually being built here in Maryland. Maybe some legislative actions (or inactions) that could attract businesses to Maryland….?

Friday, January 20, 2006


Mike Kinsley says he's a liar. I'll take his word for it.

Over at Bench Memos on National Review Online, Ed Whelan has a pretty good take down of Mike Kinsley's op-ed in today’s Washington Post. In addition to the subjects of Ed’s criticisms, I found myself fixated on this gem:

“And, finally, even Supreme Court justices are bound to some extent by the doctrine of stare decisis, which is the judicial equivalent of papal infallibility.”

I don’t want to be too hard on Mr. Kinsley; after all, that may very well be what they taught him at Harvard Law but let’s be clear: the doctrine of stare decisis (which I’m guessing is Latin for “Roe v. Wade”) is the judicial equivalent of …… stare decisis. Stare decisis is a tool and a symptom. It’s a tool for judicial efficiency – we don’t want to have to continually re-invent the wheel. But if the wheel resembles an oblong then out it goes and we get one that works. And it’s a symptom because one would hope that judicial decision-making would stand the test of time and reflect a constant set of underlying principles. But it emphatically is not a judicial version of the “rule of perpetuity”….but who knows if they even taught that rule at Harvard.


Hey Maryland, let me tell you what you think...

Judge Rejects Md. Marriage Law

Judge M. Brooke Murdock first heard arguments on this matter back in August 2005. The state constitution requires Circuit Court judges to render their decision within two months of hearing a case (Part II, Section 23 - Maryland Constitution - Article IV) so there have been some grumblings about the length of time it was taking her to render her decision. Well, the wait is over and, first impression: I think she could’ve used more time (Judge Murdock’s decision).

First of all, I don’t agree with the way she frames the issue. She refers to the statute in question as a “same-sex marriage prohibition” (as does obviously the Washington Post and other media outlets). But here’s how the statute reads: “Only a marriage between a man and a woman is valid in this State” So yeah, I guess it’s a prohibition on same-sex marriage but it also prohibits you from marrying your goldfish, motorcycle or the Bobbsey Twins. It’s an affirmative statement of who will be recognized as married in Maryland.

This leads to my biggest complaint with her decision: a total disregard for the timeline of events leading to the passage of the Maryland statute. In November 1972, Maryland voters ratified a constitutional amendment that more or less mirrored the proposed federal ERA. A few months later, the Maryland legislature passed the above-referenced statute. Now comes Judge Murdock, more or less telling then-Governor Marvin Mandel and the then-members of the Maryland legislature that they were morons who just didn’t understand the intent and meaning of the just-ratified Maryland ERA .

So now we have two ways to look at this decision and I don’t think either one reflects well on the Judge: Either Judge Murdock believes that when the Maryland voters were ratifying the ERA they knew they were also ratifying same-sex marriages (or at least that that knowledge wouldn’t have been a show stopper) or she is a proud adherent to Justice Brennan’s “Living Constitution” ideal.

2006 is an election year here in Maryland and I’m fairly confident that Judge Murdock’s decision will find little support with Governor Ehrlich. He should have no problem stating so unequivocally. I think this will be a little more problematic for his Democratic opponents. Let the squirming begin.

Thursday, January 19, 2006


Does David Broder have a man-crush on Al Gore?

David Broder is the senior political columnist at the Washington Post. He is often labeled a “dean”: “the dean of American political punditry”, the "dean of the Washington press corps”, the “dean of [fill-in-the-blank]” - probably because he’s been around seemingly forever (if you’re 50 or younger, he’s been working in Washington all your life). In general, I’ve long considered him better than most liberal political columnists – if for no other reason than the competition is so weak. But his latest effort is causing me to rethink that.

His Thursday Washington Post column (Gore's Challenge) reads like a fan letter to Al Gore as he offers his analysis of Al Gore’s latest diatribe against the administration. Here are some tidbits:

“Having outpolled Bush in the popular vote only to see his apparent victory taken from him by a divided Supreme Court,..”

Apparent victory? The only time Gore’s victory was “apparent” was when the networks called Florida for him – despite the fact that Gore never led in the Florida vote count (nor should we forget that all the polls in Florida hadn’t yet closed). And I’m sure Mr. Broder realizes that the overall popular vote is ultimately irrelevant. Mr. Broder may also want to revisit the Supreme Court decisions!! in that case – they took nothing from Al Gore.

“But even after discounting for political motivations, it seems to me that Gore has done a service by laying out the case as clearly and copiously as he has done. His overall charge is that Bush has systematically broken the laws and bent the Constitution by his actions in the areas of national security and domestic anti-terrorism.”
Clearly? Copiously? Here’s Al Gore after outlining his problems with some of the administration’s responses to our post-9/11 environment:
“Moreover, there is an in fact an inherent power conferred by the Constitution to any president to take unilateral action when necessary to protect the nation from a sudden and immediate threat. And it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not.”
In other words, A president has some leeway constitutionally to act in defense of the country – just not this president. The rest of Al Gore’s clear and copious case: Gore's Speech.
Finally, Mr. Broder throws the wiretapping bit out.

“Gore's final example -- on which he has lots of company among legal scholars -- is the contention that Bush broke the law in ordering the National Security Agency to monitor domestic phone calls without a warrant from the court Congress had created to supervise all such wiretapping.”

Sigh….This is an issue about which we simply do not have enough information to assess its legality or illegality. Based on the limited information available to us about the program, I tend to believe it fits within the “power conferred by the Constitution to any president to take unilateral action” for national protection.  But citing “lots of company among legal scholars” tells us nothing – you could have probably found “legal scholars” supporting any effort to impeach President Bush (or otherwise discredit him) minutes after his first inauguration.


Al Skinner's Whine Festival

For the uninitiated, Al Skinner is the Boston College men’s basketball coach (don’t worry, you won’t have to remember that too far, if at all, into the post season). Last night, his team played long time rival Holy Cross (full disclosure: Holy Cross is my alma mater so you may need some salt with this rant). Al had some things to get off his chest after last night’s game:

"This game didn’t do anything for us if you want to know the truth. I don’t think a game like this gets played very often and played in this manner. If we lose it’s bad — if we win that’s what people expected."

"I thought the game was quite physical, and not in a positive sense," said Skinner, who sniped at the officiating crew for not containing the physical play. "Sean Marshall got smacked in the face, Craig's got a bruised hand, and Louis [Hinnant] has a sprain in his [left] wrist and his arm. So it's not good." (Ed. Note: Somehow the refs must have seen it differently as it was Sean Marshall who was called for the foul on the play he alludes to)

“What I think happens at times when you look at two players and one is less talented than the other, you give him some leeway. I think that leeway led to a lot of aggression and a lot of non-calls, and I just have a problem with that. We’ve got guys walking out of here hurt. We’ve played a lot of games and we haven’t played any where three or four guys get hurt in one game. It’s just unfortunate.”

Now if you didn’t already know the final score, you may be surprised to learn that BC won this game 63 – 53.

Some comments on Al’s comments:

First off – he’s right – people do expect BC to win this game. They’ve won 15 of the last 16 times the two schools have played (although Holy Cross still leads the overall series 57 – 52) But recently the games have been competitive – last season BC had to go to overtime before defeating Holy Cross at BC: 63-60. And December 2002, Holy Cross beat BC 71-70.

Al further states that this game “didn’t do anything” for his team. The Coach no doubt has specific things he wants to get out of each and every game which would explain the rest of his out-of-conference schedule. In fact, I’m sure it was running the gauntlet that was Shawnee State, Texas Southern and Sacred Heart that catapulted his team to an impressive 1-3 start in the ACC.

I watch a lot of ACC basketball and, well…..if a game against an under-sized Holy Cross team  is enough to trigger such petulance out of Coach Skinner, then he is going to be one miserable dude for the remainder of the season.

For other perspectives on this:
Holy Cross fans:  CROSSPORTS

A BC fan: Eagle in Atlanta

Wednesday, January 18, 2006


Of all the words of mice and men.....

.....the saddest are BC by ten.

BC 63 - Holy Cross 53

Tuesday, January 17, 2006


Death with Dignity? Aisle 5, next to the cough syrup...

The Supreme Court today issued their decision in Gonzales v. Oregon, the case involving Oregon's so-called "Death with Dignity" law. The Court affirmed the 9th Circuit decision upholding the statute against federal pre-emption by a count of 6-3, the Court's opinion was written by Justice Kennedy. Justice Scalia penned the dissent and was joined by the Chief Justice and Justice Thomas. Justice Thomas also filed a separate dissent.

The dissent by Justice Thomas is especially interesting as he questions how today's opinion squares with the Court's recent decision in Raich (the medical marijuana case decided last year). Hint: it doesn't.

More on this case after taking the time to wade through Justice Kennedy's rather lengthy opinion.


The Unitary Presidency - a "sophisticated issue"

From James Taranto's BOTW this past Monday (referencing a NY Times article):

    We Told You So
    Mr. Kennedy said that the nomination process, and particularly the hearings, had "turned into a political campaign," and that the White House had proved increasingly skilled in turning that to its advantage.

    "These issues are so sophisticated--half the Senate didn't know what the unitary presidency was, let alone the people of Boston," he said, referring to one of the legal theories that was a focus of the hearings. "I'm sure we could have done better."


    Half the Senate doesn't know what the Unitary Presidency is? (Any guesses where you can find at least 45 of those Senators.) Really, if this qualifies as a sophisticated issue, then anything beyond "We the People" is a potential problem. Here's a brief outline that I found in the Constitution - I think it sums up the "theory" quite well:

    Article II, Section1: The executive Power shall be vested in a President of the United States of America."

Monday, January 16, 2006


Maryland's bid to get business to move....to Delaware, Virginia, Pennsylvania....

In Maryland (where I live), the overwhelmingly Democratic-controlled State Legislature recently overturned Republican Governor Bob Ehrlich's veto of a bill from the prior year's session. The bill requires any company employing more than 10,000 people in the state to pay at least 8% of their payroll costs for healthcare or make up the difference with a contribution to the state coffers. Now when I write "any company", I guess I should be more specific. I should just write "Wal Mart" as that is the only company this bill impacts. And such measures go a long way toward ensuring that no other large employer will also find itself subject to the bill's provisions.
As alluded to below, Wal Mart recently agreed to build a distribution center in Wicomico County, Maryland - one of the poorer areas of the state. Predicatably, Wal Mart will now re-visit that decision. Also predictably, Wicomico County is not a Democratic stronghold. [Oops - that should be Somerset County]
The following are some of the comments I sent to one of the delegates who voted to override the veto.

"I was so surprised to see you voted to override the health care veto. Then I remembered that you don't live in Wicomico County and thus any negative impact of this override will probably not fall on you or your immediate constituents. I know you and your fellow Dems carefully weighed the impact of this bill on the Maryland business climate before making your decision. And, as a result of your clear thinking, I imagine all over America business leaders are now taking notice of what is going on in Maryland and saying "Wow - that's where we should be doing business - they love us there!!"

Neverthless, I'm sure there are those naysayers out there who may decry this override as an obvious sellout to organized labor and unionized businesses. I've even heard some who suggest this was nothing more than a singular attack on Wal-Mart. However, in the interest of bi-partisanship, I will not ascribe those motives to you and yours. Instead, let me tell you why I think this override was so important: after listening to Ted Kennedy, Kate Michelman, Chuck Schumer & other Democratic deep-thinkers, I now recognize this as a necessary first step toward covering all the women, children & minorities who will, no doubt, be tossed into the street, bereft of all their civil rights, once Judge Alito ascends to the Supreme Court.

Finally, please pass on to the rest of your compatriots just how much schlubs like me appreciate their sacrifice and time in serving in Annapolis. Obviously, with your collective business accumen, you could all be multi-millionaire business owners. Instead, you give the rest of us the benefit of your keen economic insights: minumum wage, 8% health care costs...I mean, Damn - how do you guys nail it so exactly when the collective wisdom of the market just doesn't seem to have a clue?"

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