Mark Byron

Racist? No, try a Hispanic homer.

I wanted to see the Sotomayor quote on her being a better judge because of her Latina background in context, and found it here; it's from a speech to a Latino legal group in 2001. Let's kick this paragraph around for a little bit, for the final sentence is what has gotten a lot of conservatives hot and bothered.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Is that racist? Or at least ethnocentric, since "Hispanic" is ethnic and not racial, despite the Latino activist group La Raza's name. Not in the way we normally use the word.

Let me try a thought experiment for a moment. We had a case in the news this week where a San Diego guy got busted (or at least threatened with a ticket) for having a Bible study in his house without a license. Let's say we had, say, Harriet Meiers, make this statement; "I would hope that a wise Christian woman with the richness of her experiences would more often than not reach a better conclusion than a unchurched male who hasn't lived that life."

Would that statement be arrogantly Christianist (or whatever pejorative you want to slap in there)? Not really, since an evangelical Christian could tell the difference between an informal Bible study and a church service that someone from outside that church culture might not. Yes, that is a direct lift from the Sotomayor speech, changing Latina to Christian and white to unchurched.

Is she going to have experiences that you or I (I don't know of too many Hispanic members of the Peanut Gallery other than Ben Domenech, ex-Spudlet Marc Velasquez or my former Midland pastor Tim Ortiz) don't have? Yes. On the flip side, will we have experiences she hasn't had? Yes.

However, there are no shortage of judges with nicely-off European-descended parents with similar suburban or white-collar urban histories. Can they understand the plight of a poor minority kid? Yes, but it is a bit more foreign to them.

On the flip side, is that SD Bible study foreign to a lightly-observant Latina Catholic, where home Bible studies might not be a big part of their culture? That might be one case where a "wise Latina" would be at a disadvantage to an evangelical Anglo guy. She might be more fluent in the nuances of Santeria, but I'd be more fluent in finance and charismatic Christianity.

In an of herself, I don't see her as a better judge than, say, white-bread David Souter, to pick on a ideological peer. However, she will add an extra perspective to the court that, all else being equal, will help. She does come with a left-of-center slant that might make the court the worse for wear, but Sotomayor as a Latina is a plus; it's Sotomayor the liberal that worries me.

Racist? No more so than the dad in My Big Fat Greek Wedding who knew the Greeks invented everything. A Hispanic homer (small H, as in a hard-core fan of the team) might be a fairer description.

Suffering Fools Ungladly

Interesting piece in the Washington Times (apply grains of right-leaning salt) of a less-than-friendly attitude from the bench of Judge Sotamayor-

Lawyers who have argued cases before Supreme Court nominee Sonia Sotomayor call her "nasty," "angry" and a "terror on the bench," according to the current Almanac of the Federal Judiciary -- a kind of Zagat's guide to federal judges.

The withering evaluation of Judge Sotomayor's temperament stands in stark contrast to reviews of her peers on the 2nd U.S. Circuit Court of Appeals. Of the 21 judges evaluated, the same lawyers gave 18 positive to glowing reviews and two judges received mixed reviews. Judge Sotomayor was the only one to receive decidedly negative comments.

...

"She does not suffer fools gladly," said Kevin Russell, a partner for Howe & Russell P.C. who argued a case before Judge Sotomayor about respiratory ailments suffered by the men and women who cleaned up ground zero after the Sept. 11 terrorist attacks. "I guess it is predictable that some of those fools would then complain about it."

...

Legal scholar Jeffrey Rosen documented concerns from 2nd Circuit law clerks and New York prosecutors in a piece he wrote for the New Republic earlier this month. In the piece, he quoted anonymous members of the New York legal community who described Judge Sotomayor as an intellectual lightweight and "kind of a bully on the bench."

Other than the "intellectual lightweight" part, might she be the left's answer to Antonin Scalia? He doesn't exactly suffer fools gladly either, and will give both rhetorical barrels to his colleagues if he thinks their arguments are full of it. No one accuses Scalia of being a lightweight (at least if they know any better and/or aren't well lubricated), but he isn't known as a shrinking violet on the bench.

They may have to institute a three-knockdown rule if those two lock horns; figuratively speaking of course, since I don't see Scalia hitting a lady.

Justice is Blind, and Heartless?

I've had a rough week (my students sometimes read, so I'll have to be a bit less transparent than I have been in the past), so I'm just now getting around to the issue of judge Sonia Sotomayor as the new Supreme Court nominee.

On one level, she's an affirmative action hire, a two-fer as a Hispanic female; however, unlike the last AA nominee, Clarance Thomas, she has a far better record as a judge on both the federal district and appellate levels. That's not to say that Thomas was unqualified, but he only had a year or two on the DC circuit and was rushed a smidge to fill the "black seat" being vacated by Thurgood Marshall.  Thus, you can't play the quota-hire card on Sotomayor, at least not with any honesty.

Sotomayor is left-of-center to be sure, a fair replacement for Souter on an ideological basis; not a total knee-jerk liberal, but enough of one to make conservatives justifiably uncomfortable. However, I haven't seen any red flags that would make moderates blanche enough to make a conservative filibuster hold up. The RINO Sisters of Maine will vote for her in all likelihood, and that gives 61 votes for cloture as long as all 59 Democratic and liberal independent senators are on hand; they can even let Ted Kennedy stay at home with his brain cancer recovery and still get 60. If Al Franken finally gets his MN seat approved, they can give an ailing Porkasaurus Rex a pass on showing up as well.

The final vote may go further into the 60s, as a few moderate or polite Republicans may vote for her to avoid looking nativist for voting down the first Hispanic SC justice.

A few points in the debate have bothered me to this point.

(1) Conservatives ragging on the virtue of empathy and/or compassion in a judge, harkening to the "justice is blind" meme. However, you don't always want a judge that will coldly apply the letter of the law without any mitigation. The same guys who are ragging on the empathy of Sotomayor or other liberal judges would rip a local judge for closing down a kid's lemonade stand on health code violations and/or the lack of a sales tax licence, or banning a backyard treehouse on building code violations.

Conservatives want empathy, but not empathy that goes against their favored classes (businesses, traditional religion, white guys).

(2) Sotomayor's faux pas for saying that appellate courts are where policy is made. As they say in Washington, a faux pas is an accidental telling of the truth; here's CNN's coverage of her 2005 Duke comments.

"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made," she said. "And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [Laughter from audience] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [More laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application."

American law is based, in large part, of the British tradition of common law, where the rulings of judges in the past make up the lion-share of law; where laws have not been clearly written, it is up to judicial precedent to fill in those gaps. So, she is right in that the appeals courts are making law in a very literal way.

What is at issue is how to make such interpretations and how much weight to pay past decisions, of how much a judge should stare at stare decisis.

(3) Saying that she's a better judge because she's a Latina comes over as "racist" to the white guy pundits. She's partly right, since she'll have a broader perspective than the average Anglo jurist. Applying the law requires understanding the circumstances where it is being applied, and there will be some advantage of having a minority member of a court to bring that perspective to bear on the deliberations.

Yes, you can get that perspective by interviewing people of a given ethnic group or by having staffers of that ethnic group put in their $0.02. However, a broader group is likely to give a more robust decision rather than a homogeneous group that lacks perspective.

One flip-side to that is that we often have a liberal false-diversity, where we have all the ethnic and life-style groups covered, but they all come from a hard-left academic hothouse, where the blacks, Anglos, Latinos, Asians, Native Americans, gays, deaf, disabled and quilting aficionados are all liberal. However, that doesn't seem to be the problem with the current Supreme Court, which is fairly representative of modern political thought.

This may be a bit tacky, but given that she is a Puertorriqueña from New York, she might (at least rhetorically) be the niece of one of the Sharks from West Side Story. She was born in 1954, which would have made her a tyke when the Romeo and Juliet story got recast in post-WWII Nuevo York with the Puerto Rican Sharks and Anglo Jets gangs played the roles of the Montagues and Capulets; or should that be reversed, since Maria is Juliet and Juliet was a Capulet.

Anyway, while we could do far better, if we have to pick a left-of-center judge (that's what you get when you pick a left-of-center president, like it or not), Maria's niece isn't all that bad of a choice.

Roider's News

Here's an interesting mix of law and sports; it looks like a Barry Bonds trial won't begin until 2010. A key piece of evidence is under appeal and the Peanut Gallery's favorite federal circuit, the 9th, has it on its docket.

The Administrative Office (AO) of the federal courts, which is the Elias Sports Bureau of the court system, says that the median time to complete an appeal in the U.S. Circuit Court of Appeals for the 9th Circuit -- where the Bonds case appeal will be argued and decided -- is 19.4 months.

That timetable would have a decision coming down in September 2010.

Prosecutors appealed a ruling from U.S. District Court Judge Susan Illston, asking the higher court to reverse the order and allow them to present at the trial three positive drug tests, drug calendars and ledgers that Illston barred as evidence. The appeal resulted in a postponement of the trial, which was to have begun with jury selection March 2.

So, not only are they the most liberal and most overturned, they're also the pokiest.

That's double good news for Bonds. First, it will be well into the 2010 season before the 9th gets around to ruling. When they do, that civil libertarian streak will make it more likely that they'll rule in Bond's favor and throw out the evidence.

That should clear out the "am I signing a future jailbird" dilemma that a team might have. Not for 2009 at least and probably not 2010 either.

So, if you can get past the idea that he is the poster boy for the better-living-through-chemistry era, he might be an interesting pickup. If you signed him to a minor league contract with the promise of a quick call up if he could deliver the goods at a AAA level or during pre-season, he might prove to be a valuable DH or spot-start left fielder on the cheap, for few folks are willing to risk the PR hassle of hiring Mr. Roider.

Swinging With Tony Kennedy

Conservatives were ripping Anthony Kennedy rather hard for being the swing vote yesterday in a 5-4 decision to strike down the death penalty for a non-lethal rape case; the guy on Death Row was there for repeatedly raping his 8-year-old stepdaughter. However, one thing that we might want to remember in that case is that the standard for capital punishment since the 1960s has been that there has to be some sort of murder involved in the crime for the death penalty to be imposed; capital punishment for things like rape or bank robbery were thrown out. One of my favorite web sites has the motto "Stare Decisis is fo' Suckas" but Kennedy is one such sucka who tends to go with established precedent.

I'm not sure if that standard isn't a good idea after all.  Once we get past the murder-only line, what other crimes do we trot out the death penalty for? China's executed CEOs for fraud and a lot of Muslim countries dispatch homosexuals and adulterers. Even though Patrick Kennedy (not the Congressman, the Louisiana rapist spared by his namesake) looks to be on the Lord High Executioner's little list of folks "that never will be missed," I think the line is in the right place.

_____

Justice Kennedy redeemed himself today to a lot of those disgruntled conservatives by being part of a 5-4 conservative decision overturning the District of Columbia's handgun band, holding for the first time that people do have a right to bear arms as individuals, not just as members of an organized militia.

Police can't be everywhere; their job isn't as much to prevent crime as to track down criminals once a crime has been committed. Self-defense is one of the reasons the Second Amendment is in the Constitution; even in a 911-era, police aren't going to stop armed bad guys from doing what they want to do, and individual citizens have the right to defend themselves.

Samurai Night Special

Here's an interesting piece from the other UK-

The government said on Wednesday it would ban the sale of samurai swords because the weapons had been used in a number of serious, high-profile attacks.

The Home Office said the swords would be added to the Offensive Weapons Order from April next year, meaning they could not be imported, sold or hired.

However collectors of genuine Japanese swords and those used by martial arts enthusiasts would be exempt from the ban.

“In the wrong hands, samurai swords are dangerous weapons,” Home Office Minister Vernon Coaker said.

“We recognize it is the cheap, easily available samurai swords which are being used in crime and not the genuine more expensive samurai swords which are of interest to collectors and martial arts enthusiasts.”

In any hand, they're dangerous. It's whom they're dangerous to and who is allowed to be dangerous that is the question.

Unless you had authentic stuff, you couldn't recreate that Belushi-Pryor "Yo mama-san" SNL skit legally in the UK; they'd be busted for using Saturday Night Specials.

This law has more than a bit of elitism that actually echoes medieval Japan, where only the samurai were allowed to have swords and the commoners were underarmed. In modern Britain, the elite who can afford the expensive stuff can have them, while commoners are left on the outside.

One would think that a Labour government would look after the little guy rather than the elite, but the nanny-state mindset of government protecting the populous from themselves must take precedent.

         

Tilting at Capital Punishment Windmills

Here's an interesting case that got Bene hot and bothered; the Canadian government decided not to intervene in a death-penalty case involving an Alberta guy who killed two men in Montana.

Public Safety Minister Stockwell Day said they will not plead for the life of Ronald Allen Smith, who faces lethal injection in Montana for the 1982 murder of two men.

"We will not actively pursue bringing back to Canada murderers who have been tried in a democratic country that supports the rule of law," Day told Parliament.

"It would send a wrong message. We want to preserve public safety here in Canada."

Here's the biggest problem I have with capital punishment, US style. Note the date on that murder. 1982. A quarter-century ago. Given that he plead guilty in 1983, he's been in the slammer for 24 years already.

It takes a decade or two to go through the appeals process; that's not a bad idea, since this is one area where we definitely don't want a false positive. Why not just let 'em serve life and give the do-gooders, both domestic and foreign, something else to complain about? It saves money and puts the US "on the side of the angels" in world opinion.

However, the current Conservative government doesn't appear to want to be in the do-gooder business. Here's the core of the comment I left over on Bene's post-

What I think Stock’s up to is that he doesn’t want to pester Washington about people on Death Row in the US when it isn’t going to do any good. If anything, such intervention by a foreign cabinet member will tend to make governors or state parole boards (most capital punishment cases are at the state level) circle the wagons, not wanting the “nosy foreigners” to tell them how to run their state; criticism from other countries tends to bring out the reactionary in a lot of people.

If Stock has any geopolitical capital to spend in Washington, he’d rather use it where it can do him some good, like cooperation on various cross-border law-enforcement issues. Spending it on a anti-capital-punishment crusade might be noble, but rather unproductive.

 

When do we put aside the noble cause and work on being pragmatic? Do you tilt at windmills even if the windmills ain't going to fall? Sometimes, you do have to let your inner Don Quixote loose and stand on principle; Bene, for one, is telling Sancho to get the horse and lance ready for another run.

Critics on the Canadian left point out that many Conservatives would like to bring the death penalty back and wouldn't mind if the US dispatched a Canadian murderer or two. Stockwell Day headed up the Alliance (nee Reform) Party from 2000-2002; that was the US-style conservative party that splintered off from the more moderate capital-C Conservatives in the 90s, only to merge back together with the Conservatives in 2003, largely on Alliance terms. Quite a few Reformers, including Day, were pro-death-penalty, but they've toned down the rhetoric on the issue.

Pragmatic, or quietly cheering on the US? Methinks a bit of both, but leaning towards the merely pragmatic; of course, your mileage may vary.

Does such outside "meddling" help? I don't think so, as I mentioned in the post. People don't like outsiders, especially foreigners, telling them what to do. Many folks will tend to be more resistant to change if it's pressed by an outsider.

Even folks like me, who aren't fans of the death penalty, are taken aback a bit by the protest. The reactionary side says-"Should we have one standard of justice for Americans and one standard for immigrants from non-capital-punishment countries?"

Phrasing it that way begs a "no" answer. However, this case from 1994 came to mind, where an American teen got sentenced in Singapore to be "flogged six times with a rattan cane and to spend four months in prison for spray-painting cars and other acts of mischief."

Did the US protest such cruel and unusual punishment? Yes. Such caning isn't allowed under the modern interpretation of the US Constitution. However, if I may borrow from Tom Jones, in Singapore, It's Not Unusual; caning there is standard practice.

Were Americans right to protest the caning? Yes. Did it change Singaporian policy? Nope.

Should Americans and other westerners get special treatment in Singapore (or other legally-nasty places like Saudi Arabia), some sort of watered-down version of diplomatic immunity, where they can't get any harsher treatment than they would back home? If you answer "yes", are you willing to give the same immigrant immunity to folks visiting the US, like Mr. Smith on Death Row?

The Golden Rule gets tricky here. The civilized center-right American (I say center-right, since we have about two-thirds support for the death penalty) would likely want special treatment for the teen in the Singapore case, but would likely want the Albertan murderer to be just like any American on Death Row. A bit of a double standard, one for Americans abroad and another for foreigners here.

I told Bene to "Take a bit off of the fastball." Maybe this is one where throwing a rhetorical "purpose pitch" might be called for if you think the death penalty is dead wrong. If I can call BS on Pat Robertson for "pragmatically" backing Giuliani, Bene might be justified for calling BS on Stockwell Day's "pragmatism".

Bene was a couple of notches over the top in labeling Day as appealing to fear and ignorance, but the sentiment of defending a more civilized legal system is an honorable one. You can make a Biblical case for capital punishment, but you can also make a Biblical case for not using it in a flawed modern judicial system.

Trinidad and JFK

The FBI busted a plan to blow up the jet fuel pipeline feeding JFK airport in New York. Had they wanted to do damage to Americans alone, they'd have done better to target O'Hare or Hartsfield, but JFK is the primary international gateway to the US; I can recall driving to JFK in the early 90s with a grad-school buddy to pick up his mom coming in from Cameroon.

Putting JFK out of commission would have disrupted international travel to-and-from the US. International flights could wind up getting rescheduled for other east-coast airports, but only after the current domestic flights using those gate slots get canceled or pushed back later in the day and the feeder flights that were going to-and-from US destinations from JFK get rerouted to the new locales as well.

The interesting thing about the plot is that the perps were from Trinidad and Guyana, the first time the latter's been in the news since Jonestown. I knew that Trinidad has a significant number of Muslims, as the British brought in lots of people of color from around the empire, including a lot of Indians of Muslim descent (back when India included Pakistan and Bangladesh). It turns out that Guyana (another former British colony) has almost as a polyglot population, including a 9% Muslim population.

One of the alleged plotters is a former Guyanese MP. This is interesting in that we have some people of stature rather than a bunch of wannabes that often get caught in FBI dragnets.

Making a Federal Case of It

Here's an interesting offshoot of the Democrats being in control of Capital Hill; expanded hate crimes legislation has passed the House-

The White House has threatened to veto a bill passed by the House of Representatives on Thursday that expands hate-crime laws to include attacks based on sexual orientation or gender.  

Under current law, hate crimes are subject to federal prosecution only if the acts of violence are motivated by race, religion, color or national origin. Federal prosecutors get involved only if the victim is engaged in a federally protected activity, such as voting or participating in interstate commerce.

 

The White House says there is no need for the expanded bill because state and local laws already cover the crimes it addresses, and there is no need for federal enforcement.

The supporters of the bill mention the case of Matthew Shepard, a Wyoming guy who was killed for "hitting on" the wrong guys. However, you'd have to really stretch things to say that he was involved in "a federally protected activity" when he was in that bar that evening; you could make a case that the Buds he was downing (or whatever cold beverage of choice he was drinking) made him a participant in interstate commerce, but the current Supreme Court has a tighter view of interstate commerce than in the past.

There are few cases that this would apply to, and those can be dealt with by giving the criminal the high end of the sentence range for whatever crime they did. Shepard's killers are serving life sentences; there isn't much more that you can do save the death penalty, and most of the folks in favor of this bill wouldn't like that.

What this would do is allow local activists to literally make a federal case out of something where a women gets cuffed around while her attacker borrows from Don Imus' vocabulary or someone drops an anti-homosexual pejorative while beating up a gay guy. In a few rare cases, this will allow the feds to step in if the locals aren't interested in prosecuting, but federal attorneys already have the open-ended federal "violating their civil rights" charge that can come into play to cover local miscarriages of justice.

Violent misogynists and homophobes can still be dealt with by the feds without this law.

Beaten Paths

Here's an interesting paragraph from today's immigration protest coverage-

Demonstrators descended on city centers across the country Tuesday to press Congress to give the estimated 12 million people in the United States illegally a path to citizenship.

There is already a path to citizenship for those folks; the problem is that the path starts back at in their home countries, applying for a legit visa.

My mind is thinking about physical paths around college campuses and other grassy places; often times, you'll see well-worn dirt paths where people don't care for the sidewalk selection in a locale. Sometimes, the powers that be will get a clue from the paths and normalize them with new patches of sidewalk where the paths are.

Is it time to build some new sidewalks to normalization?

A Partial Victory

The Supreme Court backed a federal "Partial Birth Abortion" law; "intact dilation and evacuation" is the technical term for the now-banned procedure.

It was a 5-4 center-right vote, with Kennedy joining the four conservative justices. This vote wasn't unexpected, since Kennedy had been in favor of upholding such laws in the past, but was in a 4-5 minority when O'Connor was on the court.

This will open the door for other regulations on abortion; Kennedy seems open to regulation as long as it doesn't impose "an unconstitutional burden on the abortion right." It means that Roe as a whole is still safe, but that other regulations on abortion might pass Tony K's muster.

The anti-abortion folks are still a vote away from overturning Roe. Currently, the votes are there to put modest modifications to what the majority of the court sees as a basic right to an abortion, but not overturning Roe entirely.

VT

There hasn't been much useful news today about the Virginia Tech shootings. One of the charter members of the Peanut Gallery is a young man named Robert Bauer who was a VT student and has the nom-de-cyber of Hokie Pundit. He's graduated from VT and has backed away from blogging. He occasionally puts in his $0.02 in the comment section even after leaving the blogosphere.

That's the only emotional tie I have to the school where we saw the worse gun massacre in US history today. They're not sure whether the early AM dorm shooting, where one person died, was part of the bigger carnage later in the morning, where the gunner killed 31 folks before doing himself in. There have been other mass murders where the shooter killed off his significant other (or his ex) before taking out his frustrations on other folks in town.

There was word that the gunner locked doors to keep folks in and that he might have been of Asian descent; for an engineering building, that wouldn't be an unheard of demographic, although you don't associate Asians with gun culture.

This isn't quite the time for legal proscriptions, but that won't stop pundits from jawing.  Extra laws might not have stopped the shooting, since VT was officially a gun-free zone. A more generous concealed-carry law might have given the gunner opposition. I remember hearing a survivor of the Luby's shooting of 1991, the previous record-holder at 23 deaths, say that they wished that someone there could shoot back.

We'll find out more about the shooter (or shooters) in the days to come. Pray for the survivors, and the families of the slain, including the shooter's family.

D&D

Yesterday was interesting; I went in for a temp assignment with a legal services firm in Tampa called ProVest. When I got in the door, I was sent back to "D&D."

It didn't have anything to do with twenty-sided dice; the department was in charge of doing "due and diligent" record searches for folks who had defaulted on mortgages, checking for leads on addresses that they might be able to serve papers on the "subjects." By the time I get the paperwork, process servers had been to all the recent known addresses of the subject and come up empty.

My job is to type up the report saying that we had hit a dead end after checking all available records, including driver's licenses and car registration, telephone listings, checks of federal, state and local jails; they even check with Social Security to see if the person had died. Even voter registration and boat registration is on the list; you can see what their driving or sailling or flying (the FAA's on the list), or see if they're Republicans or Democrats.

It's an interesting side of the legal system; the databases that my supervisors get to work with could be misused in any number of ways. Given an name and address and SS#, and a plethora of information is at their disposal. It's an honor to be trusted with that information.

Let's Be Reasonable

One of the big news items of yesterday was the shooting down by a federal judge of the NSA warrant-less wiretap program for calls with foreign and domestic user on either end. Since the judge in question was Detroit-based Anna Diggs Taylor, it was a local story in our regional papers. Here's an interesting passage out of this Detroit News piece-

It isn't the first time in more than four decades as a lawyer, prosecutor and federal judge that the civic-minded woman with a gentle demeanor faced down powerful authorities, said colleagues and lawyers.

In 1964, she spent a summer in Mississippi as part of the National Lawyers Guild's civil rights program that provided legal advice to civil rights activists and was in Philadelphia, Miss., when three civil rights activists turned up missing -- and with others faced down an angry crowd outside a sheriff's office.

"Judges are shaped by their life experience and world outlook. She grew up in the civil rights movement," said U.S. District Judge Avern Cohn, a fellow appointee of President Jimmy Carter in 1979. "She's a strong judge who searches for the truth in her own fashion. She's always been pro-people and not pro-government."

One of the interesting things here is when and how one grew up can influence how one view the world and the law. As a civil rights activist back in the 50s and 60s (her first husband Charles Diggs was a Detroit congressman) bumping up against the Hoover FBI and other authoritarians of the era, she probably picked up a critical view of governmental police power.

Here's an interesting passage from her decision of yesterday-

It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.

I added the hyperlink to the Bill of Rights. To other folks, the program isn't seen as outside of the Constitution's parameters.

What is at issue is whether this falls under the 4th Amendment's protections against "unreasonable searches and seizures." To a vet of the Civil Rights Movement, it seems unreasonable to bypass normal domestic procedures (and the Supreme Court's standard application of this passage) of asking for a warrant from a judge before tapping phones. To a vet of the "War on Terror" (we're at war against militant forms of Islam, not a tactic they use frequently, but that's the euphemism of the day), it seems reasonable.

We'll likely see the Supreme Court be the final judge on whether this is constitutionally reasonable or not. What sayeth thou, Justice Kennedy?

 

A Land Baron Has No Honor in His Home Town

Here's a national story with a Midland angle; the big Supreme Court ruling of yesterday in the Rapanos wetlands case. We used to live next door to John Rapanos' brother Nick; the two are local real estate tycoons in Midland.

It's a slight exaggeration, but any vacant land in Midland that isn't owned by Dow Chemical is likely owned by the Rapanoses; our church rented out space in an Rapanos building until late last year. John has a long-standing reputation for (run thought through libel-checker) playing hardball in his business dealings, although he can be charitable when he wants to be; he's more feared than loved around here.

Thus, it's odd for me to see John Rapanos being the poster boy for economic federalists. The Supreme Court didn't take a big whack at the Interstate Commerce clause as some conservatives would have liked. Instead, they started to look at the issue of whether his Bay County property was covered under the Clean Water Act; he filled in some wetland property without getting it OKed.  The CWA is supposed to cover "navigable waters" but has been expanded out to cover any piece of property that is part of a watershed that flows into a navigable river; that covers pretty much every piece of property that isn't desert.

The conservative quartet on the court said, in Scalia's opinion, that applying the CWA to Rapanos' property was overreaching, while Kennedy thought that it might be overreaching, "believing even remote tributaries that have a significant nexus' to a navigable waterway can be protected." Thus, the case gets tossed back to the lower courts to get it's nexus tested.

<geezer voice>Oh, you're going to test my nexus.</geezer voice>

So, we're back to the Sandy Baby school of jurisprudence; a vague standard that will get litigated back up to the Supremes.

A Meditation on the 10th Amendment

The Supreme Court upheld Oregon's assisted suicide law with a 6-3 center-left majority. However, it seems to have been decided on the grounds that the federal Justice Department overreached in applying drug laws to forbid doctors from prescribing lethal doses.

One could also question that on 10th amendment grounds

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Does the federal government have the power to forbid doctors from playing Jack the Dripper? You're stretching things if you apply the Interstate Commerce clause to do so.

Not everything that's wrong is unconstitutional. I don't like the idea of assisted-suicide being sanctioned by the state; however, I don't see where the federal government has the constitutional power to forbid it.

Before you jump over me for going off the deep end, consider this-does the federal government have the power to tell states they can't regulate abortion? Do states have the right to regulate medical practice or to defend the unborn? Or is there a personal right to an abortion that trumps those state interests?

The current Roe logic puts a personal right to privacy into the 10th. Might some state's rights (yes, that term has pro-Jim-Crow overtones, but let's use it anyways) to regulate medicine and protect the unborn be read into the 10th as well?

Civil Bills of Attainder

Most everyone's probably heard about Maryland's new law mandating that all firms with over 10,000 employees have to spend 8% on health care. There are four firms that have more than 10K, but only Wal Mart doesn't meet that 8% threshold.

One of the things that went through my mind last week was the US Constitution's prohibition of bills of attainder, laws that punish a particular person. While the law didn't say "Wal Mart must spend ...", that was the practical effect, and the intent, of the bill.

I checked out whether anyone else had made that connection. Donald Luskin and Orrin Judd, among others, beat me to it. The media coverage has the ERISA employee-benefit law going to Wal Mart's aid here; a pro-Wally-World reading would have ERISA's prohibition of states' regulating benefit packages apply here.

However, could Wal Mart apply bill-of-attainder here? I know that ex-post-facto doesn't apply in a civil setting, but are civil bills of attainder also constitutionally legit?

I know that Congress writes positive civil bills of attainder, giving tax breaks to a particular firm. I remember seeing one such break for Phillips Petroleum, where the tax break applied to anyone business headquartered in Phillips' home town in Oklahoma and incorporated on the day that Phillips was incorporated.

However, this would essentially be a negative bill of attainder, one aimed at punishing one firm. It's written much like that Phillips law above, except that it's designed to get one, and only one, firm. Does that pass Constitutional muster? I'd like the legal eagles in the Peanut Gallery to chime in.

I'll come back to the merits, or lack thereof, of this law later this week, and some ideas of how Wally World might worm its way out of it.

Make That 1001?

Kenneth Boyd's prize package is to be (posthumously) on the front page of every news web site as Ol' Sparky's 1000th modern customer. Well, give me a little poetic license; he was killed by lethal injection rather than the electric chair, but he was the 1000th person executed since the Supreme Court reinstated the death penalty in the 70s.

There are two factoids that are interesting amid all that news. Down in Florida, a jury wants to make Joseph Smith #1001. He's national news because he became part of a very big Cute Missing Female story of early 2004 when he got caught on video abducting pre-teen Carlie Brucia; he's been convicted of killing her.

The other makes the point that Mr. Smith will stay on this mortal coil for at least a decade despite being caught on tape abducting his victim; there are over 3,000 people on Death Row in the US and the average executee has been waiting for over a decade. That wait's been fairly constant since the 90s.

If there aren't any successful appeals to overturn Smith's sentence, he'll have a outside shot of being Ol' Sparky's 3,000th customer; his appeals should go a bit quicker than normal.

Here's a sobering thought; we have three times (3415 per the NAACP as of mid-2005) as many people waiting to be executed that those that have been executed. Even Illinois has repopulated it's Death Row with ten folks after being cleared out by outgoing Gov. Ryan's gubernatorial nullification back in early 2003.

That's one reason I'm glad Michigan has zero folks on death row (we don't have capital punishment and never have as a state); the wait for justice and umpteen appeals makes it bad for the budget and bad for the victim's relatives. It's better to lock the person up for life and close the door on the case.

The other reason that I don't like capital punishment is the aspect of turning the state into a killing machine, even though you can make a Biblical case for capital punishment. However, if you look at Mosaic law, there are no prisons; things were either a civil case or a capital case, IIRC. Property crimes and minor assaults were fined, major crimes were capital.

Given that we have prisons and a fallible judicial system, long-term imprisonment seems a better response that death, although I have trouble having too much mercy for a lot of the folks that do make their way through the appeals process and to the injection room.

 

A Lawyer Who's Conservative

There's been plenty of verbiage about the Miers nomination over the past few days. Loyalists like Hugh Hewitt are asking us to trust the President's judgment, while others too numerous to start to link (start with Bainbridge and start following links) were disappointed that they didn't get a conservative legal star, complaining that picking a non-judge discourages all the good conservative judges who got overlooked.

In many ways, Bush has picked his Mini-skirt Me; a Texan raised high-church (Episcopal for Bush, Catholic for Miers) who became a born-again evangelical as an adult. She's a crony, but recall that crony has the same root as chronos (time); he's known her for a while. Cronies need not be incompetent; she's a well-respected lawyer, having been head of the Texas Bar.

There are four critiques of Miers' resume. She's not been a judge, she got her law degree from second-tier (or lower) SMU, she's cozy with the left-leaning ABA and that she's not an expert in constitutional law.

Let's look at the first; the easy rebuttal is that Rehnquist turned out pretty good without a previous judicial background. Granted, he was the Solicitor General before getting nominated, so his job was to plead government cases before the Supreme Court; that's pretty good training for hearing such cases. Miers doesn't have that pedigree, but she's far from the first non-judge to get nominated.

I'd like to bundle those last three into one critique of the kind of appellate judge that people seem to long for. They get a law degree from a top law school, preferably Ivy League, get a Supreme Court clerkship, work for either the Justice Department (if their party's in power) or a high-powered Washington firm who does Supreme Court appeals, then navigate themselves into a judicial position. The intellectual and conservative ones will often have membership in the Federalist Society as a calling card.

That wasn't Miers' route. She got a second-tier law school degree, clerked for a US District court judge, and got into, and eventually headed up, a good-but-not-great Dallas law firm. She was active in the ABA, becoming the head of the Texas bar.

What that might give Miers is a good grounding in the day-to-day practice of the law rather than the rarefied legal theory that an appellate lawyer specializes in. Yes, she'll now be the ultimate appellate court judge, but I think it will be surprisingly helpful to have a good-but-mundane lawyer helping craft Supreme Court decisions.

One of the problems of many recent Supreme Court decisions, (especially O'Connor's, IIRC), is that they were so quirky and personal that they were hard to apply to future cases; future cases frequently got brought back up to the Supremes to clarify how to apply the decision.

What Miers might provide is the insight of a lawyer who is conservative; her decisions are more likely to anticipate how lawyers and lower-court judges will work with a decision than folks who are appellate-law wonks. By hanging out with ABA lawyers (who might not be all that liberal in Texas) rather than Federalist conservative lawyers, she might have a better handle of practical law; that's not to say that Federalists are all ivory-tower Constitutional law wonks, but a handle on more day-to-day lawyering might be a plus, especially when the other justices, both left and right, are more in the wonk camp.

A born-again Texas-bred girl's unlikely to be Souter 2.0. Being a lawyer's lawyer might also allow her to bring some intellectual diversity to the court along with some spiritual and gender diversity.

The lawyers in the Peanut Gallery are encouraged to chime in; my two semesters of Business Law don't make me a legal expert. However, it seems that Miers' backgrouns as a good non-appellate lawyer seems to have its advantages.

Mister Roberts

Well, the rumor mill laid an egg; Dubya picked John Roberts to replace Sandy Baby. The Clement talk proved to be a false alarm.

He's got a good conservative pedigree, having clerked for Rehnquist and had a stint as deputy solicitor general for Bush pere, getting to present the government's side in a lot of Supreme Court cases. He's currently on the DC appealate court, a good training ground for the Supreme Court.

If your known by your enemies, Roberts must be a good conservative. However, with only two years as a judge, he doesn't have a long paper trail for the left to shoot at. I think he'll pass muster with the Gang of 14 and get in without use of legislative WMDs. 65-32 is my guess for the final vote.

He's only 50 (and looked even younger at the announcement tonight), so he'll be there until 2030 or so. That will have liberals grinding their teeth.

Groking and Croaking

A lot of news and non-news out of the Supreme Court. I think the Free Press and the BBC got things right in leading with the Grokster decision, as opposed to just about everyone else who lead with the Ten Commandments cases. The 10C cases merely kept the awkward status quo, which is "Stand-alone, no; with other historical stuff, OK." How exactly you read that nuance into the First Amendment, I'm still figuring out, but that's how things tend to shake out.

The Grokster case lays out some new ground in copyright protection; if you're actively aiding in copyright violations, even if you're not doing the violationing yourself, you can get your butt sued by the copyright-holders. That's fairly simple to get your mind around; if I can borrow from Stranger in a Strange Land, I grok the Grokster decision, but and still working on groking the Ten Commandment decisions.

The 10C cases was interesting; the Kentucky cases were a O'Connor-left coalition, while the Texas case (where the 10C was in a historical setting) had the same lineup except that Breyer jumped over with Kennedy and the three conservatives.

The non-news is that no one's resigned as of yet. I forget where I read this, but one reason that Rehnquist isn't retiring is that it would take away is reason for living; most retired justices died shortly after retiring. I recall Bear Bryant fielding a retirement question, retorting that "I'd probably croak in a week if I ever quit coaching."  He exagerated just a bit; he managed to hang in there for five weeks before dying.

Establismentarianism

I'm getting back around to the eminent domain case from yesterday.

The lineup was interesting; even though this is a pro development win, it was a center-left decision, with Kennedy siding with the four liberals and O'Connor siding with the three conservatives. When you combine the medical marijuana case with the eminent domain case, you have the interesting effect that the judicial conservatives were on the side of the "liberals" and the judicial liberals were on the side of the "conservatives."   What you have isn't a liberal-conservative fight but an establishmentarian-libertarian fight; the center-left camp is siding with the establishmentarians.

It might be surprising to some people to see many conservative bloggers come out against this decision. However, you meed to remember this: big business does not equal conservative, at least not in a free-market dynamism sense. Big business can be rather statist, for they'll often benefit from regulations, targeted tax breaks and other goodies that help them and/or hamstring would-be competitors. This is especially true at the state and local level, where industries can have governments at their beck and call.

What this ruling essentially means is that, if I have a governmental entity in my pocket, I can buy any piece of property I like, even if the person doesn't want to sell.

Here's a simple example that comes to mind; an old rural farm house circa 1950 on the edge of town. It was well out in the middle of nowhere a half-century ago, but the town has grown out to it. It's not quite old enough to be quaint, and is a bit of an eyesore to the developer who's got the surrounding 160 acres that he'd like to put some starter castles on.

However, Grandpa and Grandma Jones don't want to sell, even at twice what the house is worth to replace; that's where they raised a family, and they ain't budging.

Well, if they our developer friend gets the ear of the county commission (and with his campaign contributions, he does), they'll be budging, at gunpoint if needed. Here's the developer's sales pitch to the commission-"Getting rid of that old dump is in the best interest of the county as it grows; turning that area from farmland to suburb is the highest and best use of the property. The tax revenues will go up when that old $40,000 shack is replaced by a $350,000 home. It'll also increase the values of the other homes that will be going in."

Is that in the best financial interest of the county? Yes.

Is that in the best interest of the county? Probably not. There are a lot of things that money can't buy, like tradition, continuity, respect for elders, security and quite a few other things that I've likely left off.

Developers and other fat cats generally have too much influence on local governments.  They have a vested interest in tweaking the rules in their favor and will spend a lot of time and money in cultivating the local politicians and bureaucrats. The average citizen has less of an interest in preventing such abuses and is thus underrepresented; the anti-development left, who can look rather shrill and dogmatic against what seems to be reasonable growth, are often the only thing standing in the way.

What needs to happen more often is that the anti-pork-barrel center-right needs to band together with that anti-development left to keep the fat cats from pulling fast ones, whether it be with tax abatements, abuses of eminent domain, zoning games and other local pork.

Anti-growth? Not necessarily. Just anti-special-favors.

Terri, RIP

Terri Shiavo died a little after 9AM this morning, shortly after a second round of appeals had gone all the way up to the Supreme Court.

The courts, especially Judge Greer's court, have been seen as the heavy in the piece, but they have been merely applying the law as-is. If we want to have the law allow for custody fights over adult patients like we'll occasionally have over kids, we'll need to rewrite the law. Were Terri a child rather than a wife, her parents (rhetorically morphed into grandparents) would have had a decent shot of snagging custody.

If we want to make sure that PVS patients get food and water as a matter of course, we'll need to rewrite the law. As is, folks who are deemed hopeless stuck in a PVS are fair game to have the feeding tube pulled.

The courts aren't the problem in the Shiavo case; the underlying law that led to Terri falling through the cracks is the problem. Now that Terri's dead, we can all take a chill pill, drop back five yards, and figure out some sort of legal structure to better reflect how we want to handle such cases in the future.

The Schindlers can grieve, Michael can breath a sigh of relief and marry the mother of his children and the media can find something else to obsess over.

Staring Down Stare Decisis

Here's an interesting paragraph in a Krugman screed against theocons-

But the big step by extremists will be an attempt to eliminate the filibuster, so that the courts can be packed with judges less committed to upholding the law than Mr. Greer.

There are two types of judicial conservatives. The first type is one that takes the law as-is, looking at past judicial rulings, and abiding by the law as previously determined. Stare decisis is the legal phrase for going by past decisions. I'd argue that Greer was such a judicial conservative, applying case law and coming to the conclusion that Michael Shiavo had the right to speak for his intellectually comatose wife.

However, there is a second breed of judicial conservative, for whom respecting the Constitution as originally written is their first duty. Laws have to mesh with the Constitution says and not necessarily what the Supreme Court says it means. That flies in the face of stare decisis conservatism; "If the Supremes have ruled, that's it."

The stare decisis conservative won't buck tradition, but the originalist conservative looks to a higher authority; the Constitution.They might also look to a Higher Authority as well, but most originalist conservatives will try to see if the law meets what the Constitution says and hold less respect to what judges have said about it.

Liberal judges will throw out stare decisis if it doesn't conform to what they think the Constitution should be. If I can borrow a few theological terms, the liberals are coming up with a new hermeneutic for the Constitution that better fits the current age. Originalists tend to be more concerned with exegesis, of what the writers meant when they wrote it, and throw out stare decisis if they felt past judges were ignoring the Constitutional wording and/or original intent.

Few judges these days seem to be content with stare decisis; they'll want to sculpt the constitution to where it should be, whether should be is toward a more adaptive hermeneutic or a more traditional exegesis.

At the trial-court level, you'll want stare decisis conservatives who'll apply the law as-is. At the appellate level, you'll want someone who shares your view of the Constitution. Krugman may want someone who'll uphold the law in the Shiavo case, but would be quick to cheer on a novel reading of the Constitution if it suits his left-of-center world-view. Theocons would want to defend a traditional view of marriage in the law but wanting an exception to stare decisis in the Shiavo case.

Few people are pure stare decisis fans; they'll want the way the Constitution’s read tweaked one way of the other. We’re dishonest to say otherwise, making out the opposition to be radicals while we’re the defenders of the status quo.

The Courts are Our Friends, No?

It's interesting to see the MSM editorial sections light up on the Shiavo law. Here's the NYT, the WaPo and the Detroit Free Press all going after Congress for not respecting the courts. Here's the closing argument from the WaPo editorial-

The U.S. legal system is not supposed to be one of legislative "do-overs" in which Congress, if it doesn't like the outcome in a high-profile case, changes the rules on behalf of politically favored parties. It is supposed to be a system where litigants know the rules in advance and understand the jurisdictional boundaries of the courts that decide their cases. Lawmakers may believe that they acted this weekend to save a life, but they also took a step that diminishes the rule of law.

On one level, the WaPo's right in that we don't usually rewrite the rules in mid-stream. That's one reason why we had President Bush rather than President Gore for the last four years; the Democrats were prevented from rewriting the rules after the fact, even if the rules might have resulted in the "wrong" guy getting elected.

Usually we wait until after a miscarriage of justice occurs and then rewrite the law to make sure the problem doesn't occur again. This time, they're doing the rewrite in the middle of the miscarriage.

There's a bigger issue than abortion or euthanasia involved here; it's respect for the courts. Liberals tend to do better in court than they do in legislatures, so they'll often rely on interpretation of the law and the Constitution to get to their desired outcomes. When they see Congress demanding a do-over, liberals fear that other decisions will be called into question.

Here's part of the Free Press piece-

Moving with amazing speed that reeks of political opportunism, the Republican-controlled Congress and President George W. Bush injected themselves into the Schiavo family's tragedy over the weekend, breached the balance of powers between the branches of government and offended the sovereignty of the states.

Check out the verb here-"breached the balance of powers." You normally hear that about a defensive wall, like having the barbarians breaching the walls of the castle.
With so many issues in play that are judicially-decided, such as abortion and same-sex marriage, giving Congress the power to correct a judicial mistake cuts into their turf. Even if they think that letting Terri Shiavo live is a good thing (and many don't), doing so would intrude upon that balance of powers.

Republicans might be thinking in short-term pro-life terms, where this case makes them look good with the theocons, but it will unnerve many on the left in the long term, for they fear a lack of respect for the judiciary

Does that leave the blood of Terri on the hands of the pro-judicial-independence folks? Not any more than loose environmental standards, that will likely kill off people that might otherwise live, leaves blood on the hands of the free marketeers in Congress.

Congress deals with life-and-death decisions on a weekly basis. Shorting on military equipment endangers soldiers. Shorting on workplace safety endangers workers. This won't be the first, or the last, time a vote has lives hanging in the balance. The difference is that this case has a particular women in question, not hypothetical people in the future.

There are some folks that are in the pro-euthanasia camp who will be in favor of Terri's passing. However, the issue here for most of the left isn't Terri, it's judicial independence. She's just collateral damage¹ in a battle for their vision of good government.

American liberals would be comfortable with the title as is, while conservatives would like to bring the question mark up a word, making it read "The Courts are Our Friends? No."

¹To be fair, conservatives will have their own collateral damage, but they tend to be in the abstract, people who might have benefited from stronger regulation.

A Terri Bill for More than Terri

To a certain extent, Michael Schiavo is a modern-day Claus Von Bulow, killing off his wife to get at her wealth (in Terri's case, a trust fund from the accident that put her where she's at physically). Unlike Von Bulow, Michael has some lower courts and the libertine establishment cheering him on.

Here's a thought on the Schiavo case. If Terri were Michael's daughter rather than his wife, his low-balling her medical treatment and looking to have her killed off via starvation/dehydration would be child abuse; the grandparents questioning the case would have been given custody.

However, since she's an adult, custody cases aren't usually an issue. How then can we craft a law that can keep money-grubbing family-members from killing off their kin? It's not just this case; you have plenty of families having to decide what to do with Mom or Dad as they near the end of the line.

Do they let their parent blow their inheritance on nursing home and medical costs or do they "encourage" them to die early? A greedy child with power of attorney might opt to low-ball their parent's treatment in order to maximize the net present value of their inheritance. A greedy spouse (like Michael) might do likewise if their partner's not able to speak for themselves.

It would make since from a truly pro-life perspective (it's interesting that the the radio piece I heard the other day couldn't bring themselves to utter that phrase in this case and fall back on "anti-abortion" to describe the Terri Tribe, even when abortion's not on the table) to have a second family member step in and try to get their loved-one proper care. Life's more important than the letting a husband "speak for" an incapacitated wife.

We need to set up the law to allow other family members to step in if someone's being unfairly killed off. It would make sense, even if it means having medical disputes between family members being dragged into court. I'd rather have the case dragged into court than the patient dragged into the funeral home.

[Update. I've been raked over the coals on my take on Michael S. Even if that part doesn't quite mesh, his abandonment of her to father more than one child with a mistress while Terri was out of commission doesn't help matters. I don't trust him, but I also want to make a law that protects the enfeebled from greedy/misguided family members regardless of their sexual proclivities]

Sorry, Wrong Wingnut

The killer of Judge Lefkow's family has been found, and he isn't one of Matt Hale's thugs; it was (likely) an unhinged-sounding guy named Bart Ross who's malpractice lawsuits had been thrown out by her. Ross confessed to the killings on a suicide note; he did himself in when police pulled him over in Wisconsin. DNA on a cigarette butt found in the Lefkow's house matches Ross, placing him at the murder scene.

This reminds me a bit of Oklahoma City, where everyone thought that it was an al Qaeda operation when it was really a home-grown Anglo wingnut who did it. Here, Hale's posse was suspect, when it was a garden-variety crazy-man who did it.

A Pot Shot at the Interstate Commerce Clause

The Supreme Court is taking on a California case where a medicinal-marijuana user is being tried on federal drug laws. The Ninth circuit has ruled that the law is unconstitutional  since mere possession of marijuana does not have any affect on interstate commerce.

It would at first seem that striking down federal drug law would be a bad thing, assuming that drugs like marijuana are bad things. I'm open to medicinal uses, but not in the way they've been passed; I'd like the feds to ease up and do FDA-style research into cannabis as a drug for things like anti-nausea and glaucoma, then legalize medicinal use if it works well.

However, conservatives might wind up cheering this decision, for it might restrict federal power. The law is based on the interstate-commerce clause of the Constitution, which is a mammoth loophole that lots of laws use even if they're precious little interstate-commerce involved in a lot of the activities that get regulated. Paul Musgrave over at In the Agora links to this Jason Kuznicki piece on the legal issues.

...Does the federal government possess the power to regulate the private growth and consumption of cannabis under the interstate commerce clause, even when no interstate transportation or commercial activity is present?

Frankly, historical precedent favors Mr. Ashcroft.  In Wickard vs. Filburn (1942), the Supreme Court issued a ruling that is likely to control in this situation: Responding to a petitioner who argued that the Agricultural Adjustment Act's wheat quotas did not apply to wheat that was never intended for sale, the Court ruled that even non-commercial activity could be regulated under the interstate commerce clause, provided that it exercised an indirect effect upon interstate commerce.

Upon the thin reed of indirect economic effects, a mountain of jurisprudence has arisen. Not only has this case spawned virtually the entire federal regulatory regime of the intervening years, but it has also been the basis for, improbably enough, the civil rights cases of the mid-20th century: Because discrimination in some way alters interstate commerce, and because, in the case of purely in-state actions, discrimination indirectly alters interstate commerce, it has been found that Congress has the power to regulate racially discriminatory practices.

...Under decisions like these, the interstate commerce clause has grown enormously in scope, and it seems that by now it can be used to justify the regulation of virtually anything.

It will be interesting if they proceed to go along with the 9th on this, for it may well open up a can of worms that the good liberals from the 9ths might not like; it would call a lot of laws based on the interstate commerce clause into question. This court has been willing to do that on occasion. Kuznicki mentions 1995's US vs. Lopez, where the court threw out a federal law against carrying guns near schools. If the court rules against the pot laws, conservative litigators might try to see what other federal laws might not pass constitutional muster.

One factor that came to mind just now is that this case will likely be heard with an eight-person court with Rehnquist out of commission with his thyroid cancer; IIRC, justices who weren't there to hear the oral arguments generally don't get to vote on a case. That would leave the court with four liberal justices and four center-right justices. Since the 9th ruled against the law, a 4-4 split would uphold their decision; the tie goes to the lower court's decision.

However, things might not break along right-left lines here. Scalia has a soft spot for civil liberties, as does Thomas; conversely, some of the liberals might not be up to gutting the interstate commerce clause and bring a lot of government programs into question. You might well see a 5-3 decision to uphold the 9ths with Scalia and Thomas joining three liberals and Souter, O'Connor and Kennedy voting to keep the law intact.

It will be an interesting case.

Bhopal and Chemic Town

It seems like the media is getting a jump-start on this Friday's 20th anniversary of the deadly gas leak in Bhopal; a cloud of cyanide leaked out of a Union Carbide plant and killed 7000. The BBC had a front-pager on it, but they're not the only ones not waiting for the end of the week; a Google News check had dozens of pieces over the weekend.

This piece seems to explain the rash of articles-

Activists from around the world -- including human rights, legal, environmental health and other experts -- are mobilizing over the next two weeks to demand that Dow Chemical, the current owner of Union Carbide, be held accountable.

Dow's being a bit disingenuous in the BBC piece when they say they never operated that plant; UC did, and Dow knew that when they merged in 2001. Dow's no stranger to bad PR; the napalm used in Vietnam was a Dow product, as was the defoliant Agent Orange. Well before we moved to Midland, my uncle wound up getting hired as a chemical sales rep; I used to call the annual corporate golf outing Uncle Bruce came to town for the Napalm Open. In addition, Dow has had to deal with various pollution issues, including cleaning up the Tittbawassee River that flows through Midland from various Dow toxins. Thus, the left, or the media, has never had much use for Dow. The link I excepted above has a top-20 list of questionable activities.

This story has a hometown twist, since Dow Chemical bought out Union Carbide a few years ago. Dow's based in my hometown of Midland; we're such a company town that one of the two high schools, Midland High,  is nicknamed the Chemics, and their upscale crosstown rival is Herbert H. Dow High. It's rare that such a big company has its HQ in a town of 40,000.

UC got off lightly when they settled for $470 million back in 1989; however, Indian activist (and probably others elsewhere, from the looks of the coverage) want to increase the amount. That's roughly $30,000 per dead person, not counting the non-fatal problems that were caused. A good case was made that UC shouldn't get off paying cheap Indian damage awards, since a comparable accident in the US would have set them back billions, probably along the line of $10 billion, if UC was worth that much.

Here's the ex-business professor's early-morning grumble.

{rant}I'm a bit jaded by the bankruptcy Dow Corning (a Dow Chemical-Corning Glass jointly-held company) went through over breast implants; the science behind the cases was questionable, but bad damages often make bad law. I'm also less-than-thrilled with the idea of reopening cases fifteen years after they've been settled; the effect of that will be to make any firm that has been involved with a liability toxic to lenders or investors if a seemingly-settled case can be reopened decades later.

You might have heard of "brown-fields," factory property too expensive to clean up and reuse. If the Bhopal folks have their way, we might turn whole companies into brown-corporations, where whole companies and industries are financial no-go zones. That might actually be the goal of some of the activists, as part of a drive to nationalize and/or destroy the chemical industry and other industries. {/rant}

My legal background is limited to two semesters of business law. I do know that there's no prohibition against civil ex-post-facto laws, but something akin to stare decisis should apply here; yes, this isn't an appellate case per se, but once the parties have made a settlement, that should be the end of it unless something truly extraordinary comes up.

Defendants (or the government standing as a surrogate, in the Bhopal case) will often settle for less than they deserve in order to speed delivery of the funds and bring closure. The Indian government could have run UC out of business if they wanted to, but opted to settle for a manageable amount. To come back two decades later and hit up the offending company for more seems capricious.

If we want to play hardball on future cases, we should not be afraid to bankrupt a company if they deserve it; if they've done more damage than they have in assets, the owners get zero and go away empty. It's happened before; Manville got bankrupted over asbestos claims. However, I'm not sure if reopening settled cases is good policy for the long term.

That feeling is likely biased growing up in a company town where I'd bump into the sons and daughters of Dow execs or where my mom is on a first-name basis with the wives of the execs through working at a flower shop. As an adult, I saw what my churchmates were going through when the Dow-UC merger went through on '01; a friend who worked at one of the bigger printers in town had tons of work printing up merger literature and could only hint at the embargoed news.

That company-town feeling gives me a bit of built-in resistance to anti-Dow environmental rhetoric, since I've seen a lot of Dow people as folks-next-door (at least until they move into the really swanky parts of town). While I largely agree with the need to clean up environmental messes and pay damages where merited, I find it hard to see the company as evil capitalist pigs, since I rub shoulders with that porcine populous on a regular basis, and they seem no more evil than anyone else as a group.

On the flip side, the folks in Bhopal will know the dead and injured, or one of their loved ones, and would be quick to humanize the damage and quick to dehumanize the folks whose massive snafu caused it. An extra billion dollars would mean more there than in the pockets of Dow stockholders or employees. However, that seems more of a political issue than a legal one.

Family-Equivalent Member

One of the heart-tuggers that the same-sex marriage fans trot out is that companions have no status at the hospital when their loved one is sick, nor do they get any status for keeping an apartment if their loved one dies and they're not on the lease. I've got a proposal on that front that could be useful beyond "longtime companions;" a status of being part of the family, sorta like adoption but not quite. I'm struggling to come up with a title for this status; Family-Equivalent Member is what I'm working on for starters; filing for one on-line might be referred to as a e-FEM. However, this isn't just for non-married couples. I can see the other big use outside of folks shacking up being to give a care-giver to an elderly person standing. For instance, while I was courting Eileen, she was living with an elderly lady, helping out some around the house in return for reduced rent. The lady had no relatives within 100 miles of her, so if she were to be mentally out of commission, Eileen would have no formal standing to help. My FEM license would give the following privileges. The person getting the status will be called the adoptee while the one granting it will be called the adopter (1) The adoptee has standing as a family member of the adopter in hospitals and other facilities (2) In the absence of a family member of the adopter, the adoptee could give directions for medical treatment; a limited power of attorney for medical issues only (so that the adoptee can't raid the adopter's bank account, a problem with less-reputable caregivers). (3) If the adopter dies and the adoptee isn't on the lease of a rented unit, the adoptee will have a extended period of time (say three months) to move; the adoptee is accountable for any rent. (4) If the adopter can buy insurance at work for relatives, he can do so for the adoptee at the employers cost a la COBRA; this doesn't force the employer to provide a subsidy for adoptees. For same-sex couples, they could grant each other FEM rights. For a caregiver-elder relationship, it would be likely to be only a one-way relationship. What social cost would there be to this FEM Act? A slight impact on landlords and a slight increase in insurance premiums, assuming that there's a little adverse selection on the people buying into insurance. On the upside, you'll grant same-sex couples some of the perks of marriage without giving a blessing to the homosexual nature of the union, since FEM licenses are asexual in nature. What thinkest thou?