On the late Henry Hyde

Is it just me, or does the mention of the name of Henry Hyde, who died yesterday, make you think of this speech, which might be viewed as profound or ironic depending on your point of view, in which he said among other things:

"The rule of law is one of the great achievements of our civilization. For the alternative to the rule of law is the rule of raw power. We here today, are the heirs of three thousand years of history in which humanity slowly, and at great cost, evolved a form of politics in which law, not brute force, is the arbiter of our public destinies.

We are the heirs of the Ten Commandments and the Mosaic law: a moral code for a free people who, having been liberated from cruel bondage, saw in law a means to avoid falling back into the habits of slaves.

We are the heirs of Roman law: the first legal system by which peoples of different cultures, languages, races, and religions came to live together in a form of political community.

We are the heirs of Magna Carta, by which the freemen of England began to break the arbitrary and unchecked power of royal absolutism.

We are the heirs of a long tradition of parliamentary development, in which the rule of law gradually came to replace the royal prerogative as the means for governing a society of free men and women.

We are the heirs of 1776, and of an epic moment in human affairs when the Founders of this Republic pledged their lives, fortunes and sacred honor - sacred honor - to the defense of the rule of law.

We are the heirs of a hard-fought civil war, which vindicated the rule of law over the appetites of some for owning others.

We are the heirs of the 20th century's great struggles against totalitarianism, in which the rule of law was defended at immense cost against the worst tyrannies in human history. The "rule of law" is no pious phrase from a civics textbook. The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties. The rule of law is what allows us to live our freedom in ways that honor the freedom of others while strengthening the common good. The rule of law is like a three-legged stool: one leg is an honest judge, the second leg is an ethical bar, and the third is an enforceable oath. All three are indispensable to avoid political collapse.

In 1838, Abraham Lincoln celebrated the rule of law before the Young Men's Lyceum of Springfield, Illinois, and linked it to the perpetuation of American liberties and American political institutions:

'Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution never to violate in the least particular the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws let every American pledge his life, his property, and his sacred honor; let every man remember that to violate the law is to trample on the blood of his father, and to tear the character of his own and his children's liberty. Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap - let it be taught in schools, in seminaries, and in colleges - let it be written in primers, spelling books, and almanacs - let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.'

My colleagues we have been sent here to strengthen and defend the rule of law - not to weaken it, not to attenuate it, not to disfigure it while seeking an extra-legal and extra-constitutional solution to the threat posed to the Republic by a presidential perjurer.

This is not a question of perfection; it is a question of foundations.

This is not a matter of setting the bar too high; it is a matter of securing the basic structure of our freedom, which is the rule of law.

No man or woman - no matter how highly placed, no matter how effective a communicator, no matter how gifted a manipulator of opinion polls or winner of votes - can be above the law in a democracy.

That is not a counsel of perfection; that is a rock-bottom, irreducible principle of our public life."

The quotation was from Abraham Lincoln, "Address to Young Men's Lyceum of Springfield, Illinois, January 27, 1838," in Abraham Lincoln: Speeches and Writings 1832-1858 (New York: The Library of America, 1989), p. 32.

Good books read (or re-read) lately

The Kite Runner, by Khaled Hosseini. The talk about kites in pre-Communist, pre-Taliban Afghanistan makes me think of the descriptions of pigeon-racing in Belgium before World War I, in After the War by Richard Marius, one of my favorite books.

Welcome to the World, Baby Girl!: A Novel by Fannie Flagg. My wife picked this up for me from the library, I certainly would not have predicted the mother's secret.

1776 by David McCullough. This book made me think of the Jamestown book I read not too long ago - the survival of the American experiment was a close-run thing, even before it got started.

It Doesn't Take a Hero : The Autobiography of General H. Norman Schwarzkopf by Norman Schwartzkopf. This book on re-reading makes me wonder all over again, who was surprised by anything that Dick Cheney has done since 2001? He was doing it back then.

Playing for Pizza, by John Grisham. This book is absolutely delightful, and the very best part is the description of Rick's first meal in Parma. This book makes me think that Grisham has a few quarterback flights of fancy, going back to his high school days - supposedly he was a quarterback back then, like the local lawyer in A Time to Kill. Having been a tourist in Italy with just about as much sophistication or lack thereof as the hero of the book, I found it entertaining as a travel and food book - the football part is the least of it.

Frank Kilgore wants to take away your fried chicken

Here is a piece of writing by St. Paul lawyer Frank Kilgore, on educating Appalachia out of poverty and disease.

It says in part:

"[O]ur region’s health care statistics are still shameful, and the images of the huge crowds at annual Remote Area Medical (RAM) health care events in the Virginia communities of Wise and Grundy are not acceptable in the world’s richest nation in one of the nation’s richest states. When under served citizens will stand in line for hours and sleep in cars overnight just to have a throbbing tooth pulled or to obtain life saving medicines, something very bad has gone wrong."

It also says:

"Holding parents and caretakers more accountable for harming children with second hand smoke, drug use and alcohol abuse would be a good start as well. The throngs of adults who attend coalfield higher education institutions should follow the examples of the Appalachian School of Law and the University of Appalachia College of Pharmacy. These graduate schools located in Buchanan County, Virginia are national leaders in requiring community services of their students to promote healthier living, leadership and guidance to the young generations who will soon face the option of staying in their coalfield communities to seek higher education and making a difference, or leaving the region and continuing the “brain drain” that ultimately disables progress."

I heard an interesting discussion while driving back from Nashville last night, either Fresh Air or some similar left-wing Public Radio program, and the gist was that the European Union is more intrusive in matters of public health and safety - because there the government winds up footing the bill for the health consequences.

Washington Post approves Rosenstein for Fourth Circuit

The Washington Post editorializes here in support of the nomination of Rod S. Rosenstein to the United States Court of Appeals for the Fourth Circuit, rejecting the arguments put forth by Maryland's Democrat senators.

Judge Millette gets Court of Appeals vacancy

I had heard that Governor Kaine was going to appoint Circuit Court Judge Leroy Millette to the Virginia Court of Appeals, and yesterday he did.

The press release from the Governor is here.

The Baltimore Sun ran this profile on Judge Millette at the time of the D.C. sniper trial in Prince William County, over which he presided. It says among other things that he is a William & Mary law graduate, evidently from the same class of '74 as Judge Glen Conrad of the W.D. Va.

West Virginia Supreme Court overturns verdict against A.T. Massey in Harman Mining case

As reported here, the West Virginia Supreme Court overturned the $50 million plus verdict against A.T. Massey in the case of Caperton v. A.T. Massey, in a split decision. The Court held that the plaintiffs' claims were subject to a constractual forum-selection clause, specifying Virginia, not West Virginia, and that they were also barred by res judicata, based on Virginia law as applied to the now-final prior litigation in Virginia.

Check it out.

In his dissent, Justice Starcher begins: "The majority’s opinion is morally and legally wrong," and goes on to talk about Don Blankenship and his attempts to influence judicial elections in West Virginia. There's never been a dissenting opinion like it issued by the Virginia Supreme Court, surely.

As I've written before, in earlier times, several of the earliest federal judges of the Western District of Virginia came from what is now West Virginia, and but for the location of some railroad lines, some say Southwest Virginia would be in West Virginia - yet I read Justice Starcher's dissenting opinion and West Virginia seems very far away and different from here.

Next week in the Fourth Circuit

Here's the online argument calendar for next week's session of the Fourth Circuit.

One case is about the constitutionality of the exception to Virginia's FOIA for inmates.

One case is about whether a letter of reprimand is an adverse employment action for purposes of Title VII.

One case is a constitutional challenge to North Carolina's campaign finance laws.

One case is about standing in connection with a constitutional challenge to zoning limits on the location of methadone clinics.