New judge nominated for Southern District of West Virginia

The Gazette reports here that President Bush earlier this week nominated Thomas E. Johnston, age 38, the U.S. attorney for the Northern District of West Virginia, to succeed the late Judge Haden on the bench in the Southern District.

The article notes that among those who were said to be candidates for the job were two lawyers within the sphere of my acquaintance, broadly construed, and they are Mark Sadd from Charleston who was at U.Va. (and an editor of the University Journal) in my day and John Shott, a good man from Bluefield.

The view from the Great Lakes state

Someone writing in The Michigan Review says: "In the Old Dominion state, it looks that Democrat Lt. Governor Tim Kaine will be denied his bid for a promotion. Republican State Attorney General Jerry Kilgore has been running ahead of Kaine in nearly every poll since the primaries last spring. While it is true that the most recent Rasmussen Reports poll shows him in a statistical tie of 43% versus 40%, this is more likely to be statistical noise than a swell in support for Kaine. Virginia has been drifting steadily from the leaning- to safe-Republican column in recent years, and unless Gov. Warner provides Kaine with a crucial boost, the Governor's mansion will return to Republican hands on November 8th."

Best sports stories of the week

The President's Cup was exciting, and so was last night's UT comeback, but I like this one as the weekend's best sports story, about the Notre Dame coach and a kid named Montana.

While we're at it, here is another example of why I've linked to every Rayna DuBose story I've seen in these past three years.

Three and one-third Caption Contest wins

Chad gives us one-third of this week's trophy, to go along with the others.

Ben Affleck as rumored opponent for Sen. Allen

Here in the WP's Style section (so you know it's a joke) it is said that some Virginia Democrats are talking up Ben Affleck as a Senate candidate.

One great footnote

In Kondaurov v. Kerdasha, the Virginia Supreme Court in an opinion by Senior Justice Russell reversed the $300,000 verdict for the plaintiff, where it appeared the verdict may have been based in part on her emotional distress caused by the brief disappearance of her dog, Sushi.

In footnote 2, the Court noted:

"Sushi attended the trial. Plaintiff’s counsel represented that she was a 'service dog' as defined in Code § 51.5-44(E), and that the plaintiff relied on her for assistance. The court entered an order, to which the defense agreed, permitting her to accompany the plaintiff on condition that there would be 'no growling or hostility toward the defense counsel.'"

Use that fiber

Figuring out how to avoid using the roads, it says here: "Since 2001, the Virginia Department of Transportation has saved nearly $11.3 million in avoided travel and time costs for meetings by conducting them via videoconference instead of in person."

On race unity days

Here I read this:

"It was in a small town in Appalachia, Jonesville in Lee County, Va., where I first saw such an event: people of different races and cultures coming together in an organized manner.

'We bring people together of diverse cultures and just fellowship together,'' I remember Jill Carson of Pennington Gap, Va., telling me that particular Sunday afternoon in 1999. 'We hold it every year in Jonesville, and we have approximately 400-500 people attend this.

'It's a day of fellowship ? we share stories, we share music, we share love, we share friendship and it's very successful. Every year, we do it on the second Sunday in June, and this is the seventh consecutive year that we've had it.'

They called it Race Unity Day in that small mountain town located about two hours northeast of Knoxville, and it was a way to improve race relations in the area."

Judge McElyea appoints Tim McAfee to the Appalachia voting case

Laurence Hammack of the Roanoke paper reports here on the appointment of the special prosecutor in the vote-buying case from the Town of Appalachia.

On Katrina and poverty awareness

This AP story says in part:

"In Appalachia, a region where poverty is so entrenched, so intractable and so pervasive it is almost a cliche, many residents still live in century-old coal camp box houses, built to be temporary out of flimsy boards and battens.
The poverty in this region has been 'discovered' again and again, and promises to pull residents out of poverty have been made for more than a century. During the Civil War, when thousands of Appalachians were driven from their homes in the mountains, President Lincoln promised he would come to their aid.
'The folks we work with don't really see they have a future, and as a consequence they live day by day,' said John David, who directs the Southern Appalachia Labor School in Kincaid, W.Va.
Some Appalachian residents have continuous yard sales, their only hope of making money lies in selling one of their possessions. Many more spend the entire year paying off their winter heating bills, which top $500 a month because their homes lack insulation."

I never heard of the Southern Appalachian Labor School.

Circuit court judge marries well

Here the Washington Post describes in the Style section how billionaire Sheila Johnson came to marry the Virginia judge who presided over her divorce case.

The wedding couple looked great.

Richmond lawyer makes the cable channels wearing flip-flops

Mark Holmgren has this column on Chris Collins, the Richmond lawyer, who has been on cable TV lately because he represents a "person of interest" in relation to the case of the missing VCU student.

The missing student, by the way, was a blogger, according to this Washington Times report.

Community internet map

Via this Slashdot post, here is a map of the existing and pending community internet systems across the U.S., including Bristol Virginia and Bristol Tennessee.

Still fighting the elections of 2000 and 2004

In this editorial, the Roanoke Times says that (even though he won the election) President Bush should (act like he didn't and) not appoint a conservative to the U.S. Supreme Court, because doing so would not be fair to the people who didn't vote for him.

Friday night fight

I have been watching the replay of the moot court argument of Rumsfeld v. Fair on C-SPAN, recorded earlier tonight in the moot court room at my alma mater, with Rodney Smolla arguing for the government and Beth Brinkman and Walter Dellinger arguing for the law schools and a group of professors. As I listened to the arguments, the thought struck me that the respondent's position is unspeakably lame, then the panel of six Supreme Court correspondents (David Savage, Joan Biskupic, Linda Greenhouse, Stuart Taylor, Dahlia Lithwick, Charles Lane) and two professors (Gerhardt and Van Alstyne) came out and voted 8-0 to reverse.

Also, I was entertained by the setting, since I've been in that room and I recognized a few people in the audience, including William Hurd and Judge Felton, with President Nichol there, big as a moose.

It was almost as much fun as a replay of Ali-Frazier.

Looking for a few good waters

The Roanoke paper reports here that Deer Park water is looking for a place to bottle water in Southwest Virginia. Here is the Deer Park story.

Employees of attorney general's office and comp commission to make presentations to Court of Appeals meeting

The Richmond paper reports here that the members of the Virginia Court of Appeals will hear presentations from officials from the Office of the Attorney General and the Virginia Workers Compensation Commission on the topic of "the state's troubled birth-injury program" at their annual retreat.

The article quotes a lawyer who bucks head with the AG's office in these neurological birth-related injury cases as saying that she is "flabbergasted" and this news "raises more questions than answers in my mind." The article goes on to say, however, that "in almost every case reaching the appeals court, the infant has prevailed." Maybe the judges will tell the presenters to straighten up their acts.

Now it can be told

It says here that the way the law school people got the late Chief Justice Rehnquist to come to William & Mary from time to time was to promise that he would get to see the Tribe play football.

Dirtier day's work

In this MSNBC column, the author points out that Roe is not threatened while Justice Stevens is on the bench, and goes on to describe some of the bad endings for Supreme Court associate justices in the past.

Getting ready for Charlie Brown's Halloween?

CNN reports here that two freight trains collided in Southeastern Virginia this morning, and that "[t]he trains were believed to be carrying rocks."

There is no humor in the fact of an accident, but the bit about the rocks caught my eye.

From the archives - the swearing-in of Judge Kirksey

Looking for something else on the server this afternoon, I came across the speech that was given on the occasion of the investiture of Judge Larry Kirksey, which reminded me that just last week I went to sort of a cocktail party and someone there told me that he liked that speech, so here is the brunt of it:

"It was Judge Kirksey’s decision that this event would be held here in Bristol, and in this courtroom, and he made the right choice. In this room, you can see the portraits of some of the men who have served as judges of first the corporation court and now the circuit court of the City of Bristol. In 114 years, nine men have served as the Bristol judge, the six you see hanging on the wall, two more for whom we have no portraits, and the last one – Judge Flannagan - who says if anyone wants to know what he looked like, you can come and see him directly. Judge Flannagan he would tell you that the history of Bristol can be told in the history of its judges. Earlier this week I talked about this history with Judge Kirksey, and about the length of these earlier judgeships. Averaging out the job tenure of his predecessors, it appears to me the General Assembly has sentenced him to at least 12 years of hard labor.

Judge Kirksey has lived in Bristol all his life; he was born in Bristol, went to school in Bristol, Tennessee, and worked in his Bristol throughout his career. In 25 years of private law practice, he worked for 20 of those years with the firm of Woodward Miles & Flannagan, then with the Penn Stuart firm, and then in his own firm. He did mostly insurance defense work, and he also did court-appointed criminal defense work. Let me stop here and recollect that when Jim Jones was sworn in as federal court judge Abingdon, Judge Williams pointed out that now Judge Jones would get an introduction to “the dark side” of the docket. Well, Judge Kirksey in his private practice did some work on both kinds of cases, the paying kind and the non-paying kind.

Back when he was a young man, Judge Kirksey was named the Outstanding Young Man of Bristol and made a list of the Ten Outstanding Young Virginians. When he became older and wiser, he was invited to join the mostly old and wise men who are mediators with the McGammon Group, the statewide dispute-resolution firm. He also served on the Disciplinary Board of the Virginia State Bar. The lawyers in the room know that there is no more important and more thankless work than dealing with the discipline of other lawyers.

Judge Kirksey also served a memorable term as president of the Bristol Bar. That year we had a quite well-attended lawyer golf tournament and a bench-bar dinner at the Bristol Country Club, and at the dinner, Judge Kirksey gave an interesting if somewhat rambling speech, which he concluded by saying, “Can’t we all just get along?” I never knew any lawyer who couldn’t get along with Larry Kirksey.

Beyond his life as a lawyer, Judge Kirksey has made a second career of working to make Bristol a better place. Over the years, he has taken on a succession of the kind of public service positions that are really at odds with making a living, the kind of public service work that eats up all your time working to help solve other people’s problems. Judge Kirksey told me that he most enjoyed his time boards of the Bristol Department of Social Services, and the Board of the Children’s Advocacy Center, and the Advisory Board of the Bristol Office on Youth. In 1990, he took the bold step running for City Council, got elected and served 4 years on the council. In 2001, he took the bolder step of running for Commonwealth’s attorney, the position he held until the end of March. I know that his only regret about being Commonwealth’s attorney was that he didn’t get to stay there longer.

On March 10, the General Assembly voted to appoint Larry Kirksey to an eight-year term as judge of the 28th Circuit, beginning April 1, to succeed Judge Flannagan. When I asked Judge Flannagan to comment on his successor, he said: “this is the second time in 22 years that I’ve been able to turn over every one of my files to him.” The lawyers in Bristol are also glad that the files of this Court are being turned over to Larry Kirksey. Thank you all again for coming, and congratulations Judge Kirksey."

Wise County Commonwealth's attorney conflicted out of Appalachia town election case

The Coalfield Progress is reporting here that because our man Chad Dotson is employed by the Town of Appalachia to prosecute its criminal cases, he cannot be the prosecutor on the Town of Appalachia council election case, according to some kind of advisory opinion from somebody at the state bar.

My favorite hit of the day

Someone from senate.gov came googling my way this morning with the query "'karen williams' 4th circuit."

This post about Judge K. Williams talks about her opinion in Dickerson, the Miranda-rights case, with which the U.S. Supreme Court disagreed, with the majority opinion by Chief Justice Rehnquist.

Something else that would attract attention I'm sure was her opinion in the Fourth Circuit's Pledge of Allegiance case - in line with the Chief Justice's concurrence in the Newdow case.

Independent candidate for Commonwealth's attorney in Lee County

Sue Ella Kobak is running for Commonwealth's attorney in Lee County and, taking a cue from Chad Dotson (I'm sure), she has a campaign website.

Still got his fast ball?

A3G linked here to this photo of Chicago's own Justice John Paul Stevens throwing out the first pitch at Wrigley Field earlier this month.

The new dean at ASL

The most impressive fact about the new dean of the Appalachian School of Law may be found here: "Professor Kinsler sat for and passed both the Virginia and Tennessee bar exams in February 2004."

Now, that's above and beyond the call.

Steve Dillard cites a reliable source that says Judge Karen Williams is near the top of the list

Here Feddie at Southern Appeal says this:

"An extremely reliable source informs me that President Bush is seriously considering Judge Karen Williams of the Fourth Circuit to replace Justice O'Connor on the SCOTUS."

In the comments, Feddie acknowledge that his record of prognostication is, well, not much better than that of Robert Novak.

Back in July, William at Southern Appeal had this post on Judge Williams and I wrote this fun post when I first heard her name was being bandied about.

Judicial conference oks expanded citation to unpublished opinions

According to this article by Tony Mauro: "The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007."

The article does not discuss whether it was the comments from Roy Jessee and me that put them over the edge.

All the PACER accounts in all the towns in all the world

Sabrina Pacifici reports: Pacer Surpasses Half Million User Accounts.

On Friday's Virginia Supreme Court ruling on a disputed easement

Here is the Washington Post's take on the decision of the Virginia Supreme Court in Virginia Electric and Power Company, d/b/a Dominion Virginia Power v. Northern Virginia Regional Park Authority. The gist is the park authority won and the power company lost, which is not good for the power company's transferee, making heavy use of the easement.

Sample of Richmond lawyers says - Roberts 1, Senators 0

In this story, an unscientific sampling of Richmond lawyers told the Richmond paper what they thought about the confirmation hearings of Supreme Court nominee Judge John Roberts.

On reading the law

This AP article by Rebecca Carroll is about those who read for the law, to become licensed lawyers without going to law school. It says in part:

"California, Vermont, Virginia and Washington allow law readers to take bar exams after three or four years in apprenticeships registered with the state. Three other states - New York, Maine and Wyoming - let non-law school graduates take bar exams if they have a combination of office study and law school experience."

U.Va.'s Belanger wins grant as MacArthur Fellow

It says here that U.Va. Professor Terry Belanger has won a $500,000 prize from the John D. and Catherine T. MacArthur Foundation.

The article does not say whether the professor is related to the former Orioles Golden Glove-winning shortstop, Mark Belanger.

A mellow, chill kind of guy

Via this Wonkette post, I was delighted by this interview with a grand-daughter of the late Chief Justice Rehnquist.

Another Virginia prosecutor's blog

It's true, I just now discovered Seeking Justice.

The Richmond paper looks at Gene Nichol

Here is the latest article from the Richmond paper on Gene Nichol, the new president of the College of William & Mary, a few weeks into his first semester.

I thought perhaps his wife would rejoin the law school faculty, but I don't see her name on the list.

The first Virginia Anarchist Gathering

It says here that Virginia anarchists will meet in Harrisonburg beginning October 20, or wherever and whenever they darn well feel like it.

On the likeness between the Commonwealth and Imperial Rome

This CrimLaw post made me laugh. Render unto Caesar, etc.

Where's the pork?

Here Instapundit challenges bloggers to call their local legislators about "local pork" and suggest that the money should go instead to Katrina relief.

I'm not sure whether this $600,000 item from Congressman Boucher's website (which caught the attention even of the NY Times) can be considered "pork" when it involves principally horseflesh.

Having just read Senator Byrd's autobiography, I am given to understand however that there is no such thing as pork, or so he says. It's all "infrastructure."

Still proud to be a Harvest Moonie

Here is David Giacolone's 2005 list of Harvest Moon haiku dedications, and he included this blog in one of last year's lists with this:

tonight's moon--
how many mountains resemble
the ones back home?

On the Supreme Court emanations

Earlier, my wife asked me about the "emanations" for the Emmy awards. There could be a few auras coming off the winners, I suppose, but I don't expect to see them. (She said no, she meant the nominations - it isn't easy hanging out a sarcastic lawyer all the time.)

I did however see this post from Southern Appeal about the emanations observed by Justice Douglas.

E.D. Ky. U.S. attorney nominated to district court judgeship to sit in Pikeville

The U.S. Attorney for the Eastern District of Kentucky has been nominated to become a judge of the U.S. District Court for the Eastern District of Kentucky, as to which he would hear cases in Pikeville. Since the nominee is from the middle of the state, one Pikeville lawyer was quoted here as saying that the nomination was "an affront to the Big Sandy Valley."

At Paintsville, KY, I have hit a few golf balls into the Big Sandy, then made a lot of noise crossing the Big Sandy on this suspension bridge for golf carts, but the Big Sandy was not affronted.

Professor Young from ASL is on Virginia's Mediator Review Committee

I didn't know it, but Virginia has a Mediator Review Committee with some authority to investigator complaints against the certified mediators in the Commonwealth, and it says here that Professor Paula Young of the Appalachian School of Law is on that committee.

Best reason for a blawgers to go ahead and buy that radar detector

S. Dillard writes here: "My best guess is that it will be exceedingly difficult for bloggers to get confirmed as federal judges."

A Virginia Republican was denied a position to the federal bench on the stated grounds that he had been cited for having an illegal radar detector, if I'm remembering the story correctly.

An amicus brief joined by Kilgore as AG on the death penalty and teen murderers

Here is a rather chilling amicus brief on the teen death penalty issue, authored by lawyers for Alabama but also joined by the states of Virginia, Delaware, Oklahoma, Utah, and Texas.

Jury finds lawyer-farmer accused of murder not guilty

Here the Richmond paper reports that the jury entered a defense verdict in the first-degree murder case against a Virginia lawyer who was accused in the death of the neighbor with whom he had a long-running feud over issues related to the boundary between their respective properties and the amorous activities of the victim's bull and the defendant's gourmet cattle.

Today's Virginia Supreme Court opinions

Here is the "official" synopsis of today's opinions from the Virginia Supreme Court and here you can find Steve Emmert's expert analysis of those opinions.

The Washington Post takes on football brothers Thomas and Julius Jones

In "Coal Miners' Sons: From Small Town to NFL, the Jones Brothers Stick Together," Leonard Shapiro reports on the two brothers from Wise County who are now running backs for the Cowboys and the Bears in the National Football League.

The article says this about Big Stone Gap:

"Big Thomas and Betty do not expect their kids to come back to a town that still seems straight out of the 1950s, despite the Wal-Mart and McDonald's just off Highway 23. Most of the mines have closed in recent years, though several nearby prisons have taken up some of the employment slack. Churches, mostly Baptist, seem to be on every corner. The four-block downtown includes a Chinese restaurant, a Christian teen center and businesses such as Sue's Hallmark and Judy's Hodge Podge. And at the back of the Mutual drugstore on Wood Avenue, the main street, breakfast and lunch are served cafeteria-style, with an order of spaghetti and meat sauce, apple cobbler and a large Coke still bringing change from a $5 bill."

Circuit court judge and not officeholder gets to name substitute for prosecutor in Iraq

The Roanoke paper reports here: "The Virginia State Supreme Court ruled today that Floyd County Circuit Judge Ray Grubbs -- not Floyd County Commonwealth's Attorney Gordon Hannett -- has the authority to name Hannett's replacement while the prosecutor serves with the National Guard in Iraq."

The vote among the Supreme Court was split 4-3. The opinion in the Hannett case was written by Chief Justice Hassell, with a dissenting opinion by Justice Kinser, joined by Justices Koontz and Lemons.

The Roanoke Times can't count to five

Having read this editorial, with the sub-heading "Though the GOP gubernatorial hopeful dismissed a hypothetical abortion ban as irrelevant, two high court openings may prove him wrong," plainly the eds of the RT can't count to five. As explained in last night's post, there are still five Roe supporters on the Court, even without Justice O'Connor - Stevens, Ginsburg, Breyer, Souter, and Kennedy.

The RT says: "Despite his ambiguity, most conservatives appear confident Roberts has left the door open to overturning the 1973 ruling that legalized abortion. With retiring Justice Sandra Day O'Connor's seat still to be filled, a new conservative court majority could do just that." Two new justices plus Scalia and Thomas do not add up to five votes, even if it is true that the two new justices would vote against Roe if they could.

I think, as a practical matter, that the premises of Mr. Russert's question are essentially bogus - the odds are nil that the next Virginia governor will have to decide what to do if the legislature passes an outright ban on abortion, because the Supreme Court just doesn't move that fast and right now the Roe majority is not moving at all.

At least Russert acknowledged that there would have to be a third Bush appointee for there to be any chance that Roe would be overturned; the Roanoke Times did not. Shame on them for their ignorance or incompetence displayed in this editorial.

Larry Bly goes to Bertha's

In this review, Roanoke food man Larry Bly reviews Bertha's Mussels in Baltimore.

I myself have eaten Bertha's mussels, right after arguing before the Fourth Circuit there in Baltimore, which is a good time to do it - get wired from the excitement of appearing before the Court, then you will be too hyper to hesitate in throwing down a mess of the little beasties.

Home, home on the range

I suspect we have a few pups like these (photographed by Blue Ridge Muse), who sing at night on the hills around the house.

How hypothetical is an outright reversal of Roe v. Wade

On the subject of Jerry Kilgore's response or lack thereof to Tim Russert's question about what would he do as Governor of Virginia if the Supreme Court overruled Roe v. Wade and the Virginia legislature passed a ban on abortion - Russert noted that the Chief Justice is being replaced, Justice O'Connor is being replaced, and another justice is 85 years old - referring to Justice Stevens. (Virginia law says the life expectancy of an 85 year-old man is 5.2 years, if that means anything.)

Russert did not mention that Justice Ginsburg, a cancer survivor, is also the subject of retirement rumors. Currently, it appears that Justices Stevens and Ginsburg would vote against overruling Roe, along with Justices Kennedy, Souter, and Breyer. (Kennedy joined with Stevens and Souter in declining to overrule Roe in the Casey case.) Justices Scalia, Thomas, Breyer, Kennedy, and Souter will probably remain on the Court for the foreseeable future. Judge Roberts will almost certainly be confirmed as Chief Justice. The replacement for Justice O'Connor will be nominated and probably confirmed while the Republican majority in the Senate continues, as it will at least through January 2007.

In November 2006, 33 U.S. Senate seats are theoretically up for grabs. The Crystal Ball explains that the Democrats probably will not regain a majority in the Senate in 2006, since "Republicans must defend 15 seats, while Democrats have 18 (counting the Senate seat of the lone Independent-Democrat)." Iraq and Katrina may have some effect on those prospects. If somehow the Democrats have 51 or more Senators in the next Congress, and if Justices Stevens and/or Ginsburg hold out until January of 2007, then any nominee to the Supreme Court selected by President Bush would probably not be confirmed by the Senate without strong evidence that he or she would not vote to overrule Roe v. Wade.

In 2007, every seat in the General Assembly is up for election. The balance of power in the state legislature might change sooner than the balance on the Supreme Court. I expect the Republican majorities to continue, but they are not inevitable.

In November 2008, the next president will be elected and another third of the Senate (something like 21 Republican and 12 Democrat seats) up for grabs. Even the Crystal Ball does not go so far. By that time, Justice Stevens will be 88 and Justice Ginsburg will be 75. The oldest sitting member in the history of the Supreme Court was Justice Holmes, who was age 90 when he left the Court.

As recorded here: "One of the first of many standard stories recounted about the Supreme Court tells how his brethren went to an aging Justice Oliver Wend[e]ll Holmes to get him to step down and reminded the justice of similar entreaties he had made to Justice Stephen Field nearly a half century prior. Holmes is said to have responded to his younger colleagues that he had never himself done a dirtier day[']s work." No such intervention is in the works for Justice Stevens. Stevens' influence on the Court has been at a high point in the last three terms (see here and here), managing to hold the majority in a number of important cases in which the Chief Justice dissented. I suspect that Justice Ginsburg, the old ACLU lawyer, would never retire by choice while Bush is president. Unlike Justices Brennan and Marshall in their later years, while both Stevens and Ginsburg are together on the Court and can convince Kennedy, Souter, and Breyer to join with them from time to time, they will not suffer the frustration of laboring in perpetual dissent, and so have every reason to stay on the Court, health permitting.

Roe will not disappear the moment that the hypothetical fifth anti-Roe vote is confirmed to the Court. Even if the some new group of Justices decides to overrule Roe, such a decision would not come for months if not years following changes in the Court's membership. Any Supreme Court case takes a long time. Few of the cases to be argued in the new term beginning in October will be decided before the 2006 General Assembly session begins.

Notwithstanding the relatively abrupt transition from Bowers v. Hardwick to Lawrence v. Texas after only 17 years, the Court rarely overturns a major precedent in one fell swoop. It took 58 years for the Court to get from Plessy v. Ferguson in increments to Brown v. Board of Education. The Court is supposed to decide constitutional issues on the narrowest possible grounds, and is limited to the cases that are brought before them. More likely than a straightforward reversal of Roe would be its incremental erosion, as different forms of more limited prohibitions percolate up through the courts. The Virginia partial-birth abortion statute passed in 2003, which has been thrown out by the lower federal courts, might be considered by the Supreme Court (if it chooses to hear it) - in the term beginning October 2006.

So, when exactly might Roe be overruled and abortion banned by the General Assembly? I have no idea - perhaps as soon as the 2007 legislative session, and perhaps never. The latter seems as likely as the former. The chance that the next Virginia governor would have to act on the scenario raised by Mr. Russert's question is extremely slim. Change in the constitutional law comes too slowly, and is affected by too many variables, for the question to have much practical relevance to this year's campaign - which is not to say that the discourse in political campaigns has ever had anything in particular to do with reality.

The Blithering Idiot's "long" list of SCOTUS nominees includes Chief Justice Hassell

Going where no one else has gone before, here is a list of long-shots to be nominated to the Supreme Court, a so-called "long" list (of names not on the short lists). About Chief Justice Hassell, the BI says:

"Liabilities (as a candidate being considered by a conservative Republican): he's a moderate Democrat. Liabilities (to the Left): he's long been a visiting scholar at Regent University, Pat Robertson's grad school, he dissented from the Davenport v. Little-Bowser decision (compelling the issuance of a birth certificate with two persons of the same gender listed as parents). (See also the Arlington Co. v. White case, where he would have invalidated Arlington County's expansion of health care benefits to domestic partners as a disguised attempt to legitimize same-sex unions.)"

RLUIPA not unconstitutional under the Tenth Amendment

On remand in Cutter v. Wilkinson, the Sixth Circuit held that the institutionalized persons aspect of the Religious Land Use and Institutionalized Person Act is not an unconstitutional exercise of the Spending Clause power of Congress, where the state claims that it was in violation of the Tenth Amendment.

It's hard to imagine cases where the Tenth Amendment has some substantive application - although I wonder if there are some Tenth Amendment issues lurking in connection with the Hurricane Katrina relief effort.

No laches in Title VII case

In EEOC v. Navy Federal Credit Union, the Fourth Circuit in an opinion by Judge King, joined by Judge Gregory and Senior Judge Hamilton, reversed the summary judgment entered by Judge Lee of the E.D. Va. in a retaliation case, on grounds including the defendant's assertion of the doctrine of laches.

On the laches issue, the facts were that the Fairfax County Human Rights Commission sat on the claim for four years, before it went on to the EEOC, which filed suit another two years later. The Court reversed the finding that the claim was barred by laches, concluding that the district court erred in tagging the EEOC with the delay wrought by the county agency: "Absent a showing that the delaying entity is the agent or alter ego of the party against whom laches is asserted, we are unable to penalize the latter (the EEOC) for the actions of the former (the FCHRC)."

Smooth

If you're like me, you missed Judge Roberts' statement yesterday, and it's old news now, but you can find it here, or read it below:

ROBERTS: Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.

Let me begin by thank Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me. I'm humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me.

Let me also thank you, Mr. Chairman, and the members of the committee for the many courtesies you've extended to me and my family over the past eight weeks.

I'm particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent.

I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues -- many of whom are here today.

Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year, and I was glad to hear from them that he was not a particularly good patient.

He chafed at the limitations they tried to impose.

His dedication to duty over the past year was an inspiration to me and, I know, to many others.

I will miss him.

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court.

I always found it very moving to stand before the justices and say, I speak for my country.

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.

Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing.

It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.

President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain, from the days of our youth, certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land.

Growing up, I never imagined that I would be here, in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.

If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.

Thank you, Mr. Chairman.

Thank you, members of the committee.

I look forward to your questions.

The RealClear Politics page on the Virginia governor's race

Chad complains that the AP says there have been only 2 independent polls; RealClear Politics lists the results of 7 of them on their page for this year's race in Virginia.

Also, Chad has declared us the winner of this past weekend's caption contest. We also won No. 3 and No. 5, which goes to show nothing of importance.

Lawyer with Crohn's speaks

In this article, a Connecticut lawyer turned activist talks about having Crohn's disease, and one thing she says is: "You sleep and you still feel like crap when you get up."

Her website is here.

Expert testimony on gangs?

CrimLaw links to Style Weekly article about a trial which "marks the first time gang experts have been allowed to testify in Richmond Circuit Court." The trial court judge, the Hon. Margaret Spencer allowed evidence during the sentencing phase from "Mindy Drizzard, a probation and parole officer with the Virginia Department of Corrections and member of the attorney general’s gang task force, and Richmond Police Sgt. Tommy Lloyd, with the department’s gang intelligence unit," and they "identified Servellon’s tattoos as consistent with those worn by members of the notorious Cuban gang the Latin Kings."

Spanning the globe to cover the constant variety of sports

Via Yahoo, the AP reports here: "Sportscaster Chris Schenkel, whose easygoing baritone won over fans during a more than six-decade broadcasting career in which he covered everything from bowling to the Olympics, died Sunday."

I think of him as a college football and Wide World of Sports guy (and the guy who did bowling).

The Supreme Court's loss

I've been reading Robert C. Byrd: Child Of The Appalachian Coalfields. Previously unknown to me were the facts that Byrd put himself through law school while he was in Congress, and that his was one of six names that President Nixon tendered to the ABA before the "surprise" nominations of Powell and Rehnquist in 1971.

That sounds like some kind of a Nixonian joke to me, but Byrd quotes Nixon as telling him years later: "The Supreme Court's loss was the Senate's gain."

Those were the days

This correction from the NY Times says: "An Op-Ed article about the history of nominations to the Supreme Court misstated the period of time that Byron R. White was questioned by members of the Senate Judiciary Committee during confirmation hearings in 1962. It was 11 minutes, not two hours."

What I plan to do on my 41st birthday

It says here that I will be arguing an appeal in Richmond.

Should Small Firms Join The ABA?

I've been studying this Legal Marketing Blog post for a while, meaning to forward it to some people, on the topic of whether small-firm lawyers should be members of the American Bar Association.

Some of the same reasoning might apply to the Virginia Bar Association. On the Domestic Relations Law section page, some character lists these "10 reasons" to join the section:

1. The opportunity to network with other Family Law attorneys from around the state.

2. A chance to get regular updates on changes in the law, both statutory and case law.

3. The ability to have your voice heard in the General Assembly through the actions of the VBA Coalition on Family Law Legislation.

4. The chance to earn CLE credit throughout the year by attending seminars with judges participating in panel discussions on a regular basis.

5. All of your other friends are doing it so you should too.

6. It gives you an excuse to get away for the weekend with a possible tax write off for your expenses.

7. An opportunity to receive referrals from fellow family law practitioners.

8. To participate in a statewide exchange of court procedures, standard discovery forms, model orders and other valuable information to help your practice.

9. Live dangerously, run with scissors and join the Section.

10. Live out your dream and be published in the issue of the VBA News Journal that is devoted to Family Law.

Who are those 160 law professors?

Via this post, I read over the list of 160 law professors who signed a letter opposing the nomination of Judge Roberts, and I never heard of any of them except for Chemerinsky, Michael Avery, David Rudovsky, and Ingrid Hillinger. Ms. Hillinger was at William & Mary when I was there, only I thought she was more into commercial law than things constitutional. The other three I've seen or heard at section 1983 litigation seminars.

Professor Chemerinsky was the one who told the semi-off color joke that the late Bristol court reporter Ruth Greiner had me repeat whenever I saw her.

Expand section 8 housing in the wake of Hurricane Katrina?

In this Crescat post, Will Baude holds forth in favor expanding the federal section 8 housing program for the benefit of the displaced victims of Hurricane Katrina.

More on the VSB's on-line research deal in the making

Here Dave Stratton started with my humble post and added a bunch of useful information as the Virginia State Bar moves toward a free online research offering for all of its members.

Stuff I've read about the Fourth Circuit this week

One thing I've read, that Judge Luttig should not be on the Supreme Court because of his opinion in the Padilla case, which according to some evidenced the predictable result of the Administration's strategy in stashing Padilla (and others) in a forum where they would not lose. I guess Judge Luttig gets no credit for his dissent from the denial of rehearing in the Hamdi case, when it was before the Fourth Circuit.

Two other things I've read: that both John Roberts (see here) and Michael Chertoff were or are judges of the Fourth Circuit.

The Hokie Home line of products

According to this article you can make your house look like one of those "collegiate Gothic" buildings on the Drill Field at Virginia Tech.

Judge Conrad applies heightened pleading standard to patent defense

In Stowe Woodward LLC v. Sensor Products, Inc., Judge Conrad of the W.D. Va. applied a "heightened pleading" standard to the defendant's assertion that the plaintiff's claim under patent law was barred by the defense of "inequitable conduct."

This strikes me as unsound, in light of the Supreme Court's decisions Leatherman (section 1983) and Swierkiewicz (Title VII). I mean, if we can't use judge-made heightened pleading requirements in the cases that I'm interested in, why should the patent lawyers have all the fun?

Not too long ago, I wrote with regard to defamation, in a somewhat related context:

Even though the counterclaim is governed by Virginia law, the federal rules of civil procedure determine the sufficiency of its allegations, and the state court rule for pleading defamation does not apply. See Wuchenich v. Shenandoah Memorial Hospital, 2000 WL 665633 (4th Cir.) (unpublished). See also Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986) ("[w]hile [state law] requires, perhaps wisely, specific allegations of publication [of the defamatory statement] in the complaint, . . . a federal court need not adhere to a state's strict pleading requirements but should instead follow Fed. R. Civ. P. 8(a)'"); Palladino v. VNA of Southern New Jersey, Inc., 68 F. Supp. 2d 455, 475 (D.N.J. 1999) ("the specificity with which a defamation claim brought in federal court must be pled is defined by Rule 8"); Veilleux v. National Broadcasting Co., Inc., 8 F. Supp. 2d 23, 35 (D. Maine 1998) ("The sufficiency of the pleadings in a defamation case in federal court is governed by federal rules."); GE Capital Mortgage Svcs., Inc. v. Pinnacle Mortgage Investment Corp., 897 F. Supp. 854, 867 (E.D. Penn. 1995) ("Federal Rule of Civil Procedure 8(a), and not Pennsylvania law, provides the standard of specificity applicable to plaintiff’s defamation claim."); Sabatowski v. Fisher Price Toys, 763 F. Supp. 705, 713 (W.D.N.Y. 1991) ("Fed. R. Civ. P. 8(a), not [state law] supplies the standard of specificity applicable to the defamation pleading in this case."); Adler v. American Standard Corp., 538 F. Supp. 572, 576 (D. Md. 1982) (federal plaintiff not required under the Rules to "reproduce the exact words alleged to have been defamatory"). Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Pro. 8(a). Defamation is not one of those "special matters" for which pleading with specificity is required under Rule 9(b).

On U.S. v. Thompson and the Armed Career Criminal Act

Steve Sady has this Ninth Circuit Blog post on the split decision by the Fourth Circuit in U.S. v. Thompson. In that case, Judge Wilkinson wrote for the majority, joined by Judge Widener, with Chief Judge Wilkins in dissent, on the issue of whether the issue of the defendant's earlier crimes necessary to support the heightened sentence should have been submitted to the jury. Judge Wilkinson said no, Chief Judge Wilkins said yes.

On saving the Pork Queen

One or more Virginia lawyers is a member of the band described here, and one of the songs in their repertoire is called "God Save the Pork Queen."

My mom's aunt Irma once showed me a picture in which she was riding in a parade somewhere in SW Virginia, having been named something like "Miss Virginia Ham" about 65 years ago.

UPDATE: That's ERMA, with an 'E.'

Thomas is now circuit justice for the Fourth Circuit

Jaded JD links to this SCOTUSblog post that says the Supreme Court has issued an order that says, among other things, that Justice Thomas is now the circuit justice for this circuit.

Reason.com takes on the long-running Dr. Knox case, now coming to a close

Reason.com, in How 313 crimes became four discusses the W.D. Va. case against Dr. Cecil Knox, and links to this Roanoke Times story which indicates that Dr. Knox has signed a plea agreement.

The effect of Katrina on the federal courts

Benefitsblog links to this memo from the Administrative Office describing the effect of Hurricane Katrina on various federal courts.

This Legal Dockets Online post has a link to the legislation proposed by the Judicial Conference to allow the E.D. La. to hold court outside of the E.D. La.

The online legal research proposal for all Virginia lawyers

VLW is reporting this week that: "Fastcase, a legal research company based in Alexandria, submitted the only proposal late last month in response to the Virginia State Bar's request for ways to provide online legal research service to every member of the organization."

Somebody talked me into paying for a trial subscription to Fastcase several years back. I generally like to play with new programs of any kind, but I hated this one, never used it more than a few times, and felt like a fool for having paid anything for it. Supposedly, it was written to be a "better" research tool, but I never saw any advantage to it of any kind, except that I suppose it could be cheaper than Lexis or Westlaw.

Sixth Circuit affirms dismissal of claims against W.D. Va. defendants in Mettetal case

In Mettetal v. Vanderbilt University, the Sixth Circuit in an opinion by Judge Karen Nelson Moore joined by Circuit Judge Cook and District Judge Gwin from Ohio affirmed the dismissal of the plaintiff's various and sundry claims against the many defendants, including the late Judge Michael and various prosecutors, law enforcement officials, and defense lawyers connected in some way with the prosecution of the plaintiff in the W.D. Va. The appeals court reversed dismissal, however, as to Vanderbilt University and the Metro Nashville police, who were involved in the plaintiff's arrest and prosecution in Tennessee.

Ken breaks bad, equates Virginia jurists with Rose Bird, HOWT responds

In this post, obviously locked in the throes of around-the-clock brief-writing, Ken Lammers declares that the Virginia courts are not as conservative as you might expect, although his examples are not especially compelling. I mean, the liberal courts are the ones running wild with the state constitutions these days, in Massachusetts and elsewhere.

HOWT had this response, including some reference to Sutherland on Statutory Construction (which reminds me of Statutory Construction Zone, still updated every now and then).

The New Yorker takes on Patrick Henry College

From the New Yorker earlier this summer, here is an article on Patrick Henry College, the school with the debate champs, where Mike Farris is the president, and 85% of the student body were home-schooled.

What happened to the buses owned by the City?

Over lunch last week, I asked somebody the question - doesn't the City of New Orleans own any buses?

Then, I saw this post From on High.

Oral argument this month in both Vermont and Virginia in the same-sex couple's custody case

The AP has this report on the parallel appeals in Vermont and Virginia in the matter of the two women litigating custody over their child.

I expect the circuit court ruling in Virginia will be affirmed by the Virginia Court of Appeals, from what little I know about it.

On Chief Justice Rehnquist's initial appointment to the Supreme Court

Here are five incredible pages of transcripts and recordings of telephone conversations between President Nixon and Attorney General Mitchell about filling the two open seats on the Supreme Court, one that went to Lewis Powell. The other came down to a choice between William Rehnquist and Senator Howard Baker of Tennessee. Evidently, Baker was willing to take the job, but was done in by the fact that he and Powell were both Southerners, plus Nixon liked the idea of thrusting a well-qualified unknown on the legal establishment.

According to this exchange, Nixon was delighted to catch the pundits by surprise with the choice of Rehnquist:

"President Nixon: ...But on the other hand, we really threw a bombshell at these bastards tonight, didn't we?

John Mitchell: We really did--

RMN: What do you think?

JM: Well, let me tell you, they were just so flabbergasted they didn't know what to say...

RMN: Are they?...Of course, that first in his class is what these goddamn snobs - that's what impresses them. And law clerk to Jackson, that impressed Meany, they tell me...

RMN: This means, John, that we will have appointed four good men. Everybody recognizes that Burger is a good man, Blackmun is a good man, Powell, a course, everyone will recognize it. And Rehnquist is the smartest of the whole goddamn bunch

JM: (Unintelligible)

RMN: (Laughs) And he's on our side, isn't he?

JM: I think you did a great thing for the court.

RMN: I really built them up. You know, and I talked about respect the law, whether you agree and obey the law and all that. And they oughta appreciate it, the bastards-

JM: Well they should, and said it in a very mild mannered way. You got across to the American public

RMN: Be sure to emphasize to all the Southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is. In a pure press sense, it's like China--the bastards were completely taken by surprise. They didn't know what the hell was gonna hit 'em. Ha! Doesn't that amuse you? We kept it quiet..."

I suspect that if and when he ever read these word, Rehnquist found something amusing in these manic and ironic comments by President Nixon.

This year's pirated golf photo

We were just happy to be there.  This photo with the rest of them can be found here.

VBA collecting for lawyers in the Katrina zone

It says here: "All members of the legal profession in Virginia are invited to make donations to help their Gulf Coast colleagues."

UPDATE: Here is the American Bar Association's Katrina resource page.

Richie Cunningham would be cheered by this

It says here: "Fats Domino, who is in the Rock and Roll Hall of Fame and whose manager had reported him missing in the wake of Hurricane Katrina, has been rescued by boat from his flooded home."

A few new Wahoos from the wake of Katrina

USAToday says here: "The University of Virginia in Charlottesville said it will enroll academically qualified Virginia residents with the aim of transferring credits back once storm-affected schools reopen. By late Thursday, 87 students had been offered spots." The same story is told here in the Richmond paper and here in the Roanoke paper.

What of the Vioxx MDL proceedings in the E.D. La.?

From the E.D. La. website: "The offices of the United States District Court for the Eastern District of Louisiana are closed until further notice. By order of Chief Judge Helen G Berrigan, all deadlines and delays in matters pending before this court are suspended until ordered otherwise."