Saturday, October 22, 2005

You didn't hear it here first

Here Secretary of Education Margaret Spelling says of Supreme Court nominee Harriet Miers: "I don't think I have ever heard her say a cuss word in the entire time I have known her."

For some reason, this comment causes me to recollect the character Nate Caudill's observation in Harry Turtledove's The Guns of the South that "sometimes nothing felt better than a ripe, round oath." I'm not sure that I understand precisely what is a "ripe, round oath" but I have observed that something of the kind appears to have a therapeutic effect for some people.

Virginia Cavaliers with five points outscore Tennessee Vols

Unfortunately, Virginia lost 7-5 to North Carolina, while UT lost 6-3 to Alabama.

Ruminations on the Harriet Miers nomination

Leftcoaster posts here on the signs that the White House might be plotting a way out of the Harrier Miers nomination, citing among other things this Washington Times story, titled Insiders see hint of Miers pullout. CQ has this post describing another kind of out for the Bush Administration, which seems plausible enough - the White House can say that it will not waive the privilege covering Ms. Miers' work papers as White House counsel, and the Senate will say then she cannot be approved.

Truth Laid Bear has this list of bloggers for and against the nomination.

Baseball Crank has a lengthy and thoughtful post about why he is opposed to the Miers nomination.

The latest George Will column, titled Defending The Indefensible, has been cited in many places. Will begins: "Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it." She might get confirmed, however, because "it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence."

Patterico has tracked down the passage from The Brethren that comes to mind whenever I hear comparisons between Harriet Miers and Virginia's own Lewis Powell, Jr. (“Bill Douglas, now, he knows what is in those books,” Powell said. “I don’t.”) I think of Powell as a great man, the ideal of the lawyer-citizen from Virginia, but not so great as a justice of the Supreme Court. I don't think he ever thought of himself as a great justice and was reluctant to take the job in the first place. The circumstances of his appointment were much different: Powell accepted the nomination after Judges Carwell and Haynsworth had been rejected by the Senate, and as a former American Bar Association president, his selection neutralized opposition from the ABA. The Bush administration was on a roll with the selection of Chief Justice Roberts and has never given a flying Fig Newton about the ABA, which may yet opine that Harriet Miers is not qualified (or less than "well qualified"). What the ABA committee will say about Miers is "[o]ne of the more interesting questions." For all these reasons, I don't see much likeness between the nomination of Justice Powell and the Miers nomination, except in the sense that Miers seems no more likely to be comfortable (or predictable) while learning on the job than was Powell.

Friday, October 21, 2005

What do Professor Bainbridge and the Roanoke paper have in common?

The professor might agree in part with the editorial from the Roanoke Times that says here: "Bush should be ashamed and embarrassed to have nominated a candidate with so little merit as a U.S. Supreme Court justice."

On judicial restraint

A state court trial judge writes here in the New York Times: "A week doesn't go by when I am not forced by the law to do something that I would rather not do if I were, say, a philosopher-king unencumbered by the legislation of mere mortals."

He concludes: "We need more judges, at all levels, who are not frustrated policymakers, who won't strain to find ambiguity in unambiguous words because they want to 'do good,' and who won't hesitate to go where their own principled application of the law takes them, even if (and especially if) it is a result they would not freely choose."

Thursday, October 20, 2005

New board member of Domino's - Diana Cantor

This press release says that the wife of Virginia Congressman Eric Cantor has been named a director of the board of Domino's Pizza, Inc.

What do you suppose they eat at those board meetings? Can I volunteer? I eat Domino's Pizza about once every two weeks.

The press release notes that Domino's is the Official Pizza of NASCAR.

Rep. Cantor was at William & Mary during part of my law school days, but I don't know what he ate while he was there.

Still more on the Harriet Miers questionnaire

This post, among other things, shows the startling contrast between the questionnaire answers of Harriet Miers and those of John Roberts on the question of judicial activism.

Wednesday, October 19, 2005

What can a judicial nominee learn from a deposed tyrant

Wonkette thinks this picture of Saddam Hussein with some notes written on the palm of his hand might give Harrier Miers an idea as she prepares for her confirmation hearings before the Senate Judiciary Committee.

Detail is on demonkey - Bainbridge et al. look at the Harriet Miers written answers

In this Bainbridge post, he cites the list of alleged errors in the written answers prepared by Supreme Court nominee Harriet Miers for presentation to the Senate Judiciary committee.

He cites one fellow who wrote: "Where are the passages that show a bright, analytical mind — or failing that, a basic competence in placing commas?"

He concludes by agreeing with someone else who wrote: "everyone makes typos/spelling errors. However, most of us catch them before we hand them to the Senate in our application for one of the most powerful positions in the country, which is the most powerful in the world."

Bad plan No. 5

In this post, Amy Ridenour takes on the White House's latest bad move in bashing the Republicans who think the nomination of Harriet Miers was a bad idea.

The post begins: "Adding to the sexism, elitism, faith, and threat cards in the White House arsenal, comes the 'far right' card."

It describes the appearance of a White House surrogate on the Tucker Carlson show (as seen by hundreds of people on cable), where the guy Blakeman dismissed the opponents of the nomination as characters from the "far right."

Tuesday, October 18, 2005

Fourth Circuit denies rehearing in Hatfill v. NY Times defamation case

In Hatfill v. New York Times, the Fourth Circuit denied rehearing en banc by a vote of 6-6, over the dissent of Judge Wilkinson, who thinks that the panel decision fails to pass muster under the First Amendment.

As I wrote in this post about the panel decision, state law pleading standards would be much more demanding, and come closer (perhaps by accident) to providing the First Amendment protection Judge Wilkinson advocates.

The Harriet Miers written answers

Here, via the National Review, is the written collection of Supreme Court nominee Harriet Miers' answers to some written questions from the Senate Judiciary Committee.

The parts that I liked were the summaries of her civil cases. There's no doubt that she has had an interesting and lively legal career.

Third Saturday in October, Secretary of State Rice knows where the action is, and she's not rooting for the Vols

The NY Times reports here that Alabama-native Condoleeza Rice is meeting with the British Foreign Secretary in Alabama where they will "perform the pregame coin flip when the University of Alabama football team faces Tennessee in Tuscaloosa, and then stay to watch the game."

Here the Washington Post explains that Ms. Rice is an old Bama football fan who once dated Rick Upchurch of the Denver Broncos.

The White House needs to put out some football stories about Harriet Miers. Maybe call in former Dallas Cowboys Roger Staubach, Bob Lilly, Walt Garrison, and Lee Roy Jordan. Or, Bob Hayes, Rayfield Wright, Mel Renfro, and Calvin Hill.

On Virginia lawyers and the death penalty

The Washington Post reports here that a gang of mostly members of the Virginia Trial Lawyers Association wrote a protest to the Kilgore campaign about what's wrong with using the fact that Kaine or somebody in his firm represented somebody in a capital murder case as evidence of anything.

After all, everybody charged with a felony is entitled to a lawyer, the Constitution says so, in your Sixth Amendment. I agree with Bob Hall and the VTLA gang - you don't go around bashing lawyers because they fulfilled their professional obligation to provide legal services extends to making sure that a criminal defendant's constitutional right to counsel is realized. I would think that even death penalty supporters would want capital murder defendants to have good lawyers - because in theory (and hopefully in practice), no one can lawfully be sentenced to death, who was not represented at trial by competent, zealous, thoughtful counsel.

Furthermore, although the article doesn't say this, there's no need to bash lawyers, especially not court-appointed ones, to make the point that Kaine and Kilgore are as far apart as can be on the Death Penalty. Unlike judges, who must apply the law regardless of personal views, by contrast, the law imposes no limitation on what the Governor may do in considering a clemency petition for a deathrow inmate. If Tim Kaine says he is opposed to the death penalty, for whatever reason, and you think the death penalty is important, then you want him working as a lawyer and not as Governor.

Latest polls

Here is the Diageo/Hotline Poll Of VA, which shows Kaine ahead among all voters but Kilgore ahead among likely voters, in contrast with the SurveyUSA poll which has Kaine ahead among likely voters, and all of everything within the margin of error (or is it Marge Innovera, the Cartalk statistician?).

More on the constitutionality of coal severance taxes

The Coalfield Progress has this report with comments from Mike Quillen of Alpha Natural Resources and Delegate Bud Phillips on the matter of the constitutionality of Virginia's coal severance tax.

Roanoke lawyer Bill Rakes knows Harriet Miers

The Roanoke paper has this column with the observations of Gentry Locke's Bill Rakes on his friend Harriet Miers, whom he got to know in connection with American Bar Association activities. Rakes says she would make a fine justice, and that she is a "by-the-rules sort of person," that she is very personable, yet "tough as nails."

On the importance of correct punctuation

Today I read this on legal writing, and it includes this story on punctuation:

A panda walks in to a cafĂ©. He orders a sandwich and eats it, then draws a gun and fires two shots in the air. “Why?” asks the confused waiter. As the panda exits, the panda produces a badly punctuated wildlife manual and tosses it over his shoulder. “I’m a panda,” he says, at the door. “Look it up.” The waiter turns to the relevant entry and, sure enough, finds an explanation. “PANDA. Large black-and-white bear-like mammal, native to China. Eats, shoots and leaves.”

Monday, October 17, 2005

Good judges with whom to share a foxhole

In this first-person account from Have Opinion, Will Travel, the author relates that he once had a lawyer pass out at the podium, whereupon two judges ran to help the lawyer while the third ran for the exit.

The West Virginia coal severance tax challenge

Here are links to the briefs in U.S. Steel Mining Co., LLC, et al. v. The Hon. Virgil Helton, State Tax Comm’r, before the West Virginia Supreme Court, including:

Opening brief of appellant U.S. Steel
Brief of appellee Tax Commissioner
Reply brief of Appellant

In one of the amicus briefs, the West Virginia Municipal League declares that an end to the tax would be ruinous to West Virginia localities: "It is not a matter of crying wolf or 'Chicken Little, the sky is falling . . .' just turn out the lights on a great number of West Virginia municipalities and their programs."

The always excellent Goodwin firm filed this brief for the County Commissioners' Association.

The issue is whether West Virginia's coal severance tax violates the Import-Export Clause of the U.S. Constitution, Article I, section 10, clause 2, which says: "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress."

I understand from reading the Virginia Mountaineer that some coal companies are contemplating raising the same issue here in the Commonwealth.

Beamer ball turns to Engineering School for ball-carrier brace

Via this Blawg De Novo post, the Washington Post is reporting that the engineers at Virginia Tech are working up a special brace for the arm of injured Hokie tailback Cedric Humes. Tech plays the Maryland Terrapins on Thursday night at College Park on ESPN.

Declaring his faith in the e-schoolers, Humes declared: "My grandmother graduated from the engineering school."

Now, what year was that? Maybe Dad knew her.

A guide to oral argument

Via Ohio Law, here is the official guide to oral argument before the Ohio Supreme Court.

The Virginia Supreme Court (and the Virginia Court of Appeals) should have such a guide.

Kilgore ahead on Tradesports

TradeSports is selling contracts on the Virginia governor's race - the Kilgore price is 60-something, the Kaine price is 30-something.

Money tight again for federal courts

This article from Law.com about the federal court money shortage includes a quote from a deputy clerk on electronic filing: "We can't trust the lawyers to do it right."

His cornerman should have thrown in the towel

Appellate Law & Practice links here to the tale of a lawyer in California who collapsed while being nailed by barrage of unfriendly questions from a panel of appeals court judges.

Sunday, October 16, 2005

One lame idea after another

Jaded JD links (with some glee) to this Newsweek story that says the Bush administration is strong-arming Senator Allen and other presidential aspirants in their latest act of flailing about to secure the consent of the U.S. Senate to the nomination of Harriet Miers to the U.S. Supreme Court.

As I've been thinking football and baseball lately, I'm wondering how the Miers' nomination compares with the Red Sox trading Babe Ruth or the Steelers cutting Johnny Unitas - will history record this nomination as a blunder that starts a funk that lasts for decades? There might not be another Republican nominee to the Supreme Court for 20 years, just as the Democrats had none during the 1970s and 1980s.

Great night of football

Unlike Chad, 63,000 of my closest friends and I went to the big game in Charlottesville last night, and saw Virginia beat Florida State 26-21. They got the big touchdown right before the half to build a 23-10 lead and held on in the second half, with the aid and comfort of many costly Seminole penalties and giveaways. The much-maligned Marques Hagans out-dueled Drew Weatherford, as both threw more than 35 times and for over 300 yards, but Weatherford gave up three interceptions, including the clincher in the final minute to end Florida State's last possession. As Virginia ran out the clock, a mob swarmed over and through the shrubbery behind the North end zone onto the field, past the out-numbered security forces. As I left, they were climbing the goalposts. The gang in section 127 were almost beyond speech, in part because you can't say much when your grin is too wide to move your lips and your throat too hoarse to be heard anyhow.

Why not more excitement about the governor's race

Rick Sincere links here to this article in the style section of the Washington Post, which quotes Rick and others, on the proposition that there is not much public interest in this year's governor's race.