Friday, September 16, 2005

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.

Thursday, September 15, 2005

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.

Tuesday, September 13, 2005

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)."


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.

Monday, September 12, 2005

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.

Sunday, September 11, 2005

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.