Tuesday, January 15, 2008
Sunday, January 13, 2008
More on the (Floyd) Roberts nomination
On February 7, 1939, after the U.S. Senate voted to deny confirmation to Floyd Roberts of Bristol to the second seat on the U.S. District Court for the Western District of Virginia, President Roosevelt wrote this letter to Roberts, which says in part:
"My dear Judge Roberts:
I feel that in justice to you and your family I should write to you in regard to the refusal of the Senate to confirm your appointment as United States District Judge for the Western District of Virginia.
First of all, I tender you my thanks for the honorable, efficient, and in every way praiseworthy service that you have rendered to the people of the United States in general and to the people of the Western District of Virginia in particular.
Second, I wish it known that not one single person who has opposed your confirmation has lifted his voice in any shape, manner or form against your personal integrity and ability.
In order that you may know the full history of what has occurred, I take this opportunity to summarize the story.
On March 17, 1938, I received a letter from Senator Glass enclosing a clipping from a local Virginia paper. This newspaper article, quoting an editorial in another local Virginia paper, made the assumption that it would henceforth be necessary to receive the backing of Governor Price of Virginia before any Virginian could hope for a Federal appointment.
Senator Glass in his letter asked if Federal appointments, for which Senate approval was necessary, would be subjected to the effective veto of the Governor of Virginia.
To this I replied on March 18th, explaining to the Senator the difference between the appointive power, which is in the President, and the power of confirmation, which is in the Senate. I pointed out to the Senator that time-hallowed courtesy permits Senators and others to make recommendations for nomination, and, at the same time, that every President has sought information from any other source deemed advisable.
On March 19th Senator Glass wrote me again, covering his construction of Article II of the Constitution, and asking me again as to the accuracy of the newspaper statement. He winds up by saying, 'The inference is, of course, that you approve the offensive publication which was the basis of my inquiry.'
I replied to this letter from the Senator on March 21st in a personal and friendly vein. I stated that I was glad that we seemed to agree in our construction of the Constitution. I told him that I was not in the habit of confirming or denying any newspaper article or editorial. Obviously if I were to begin that sort of thing, I would have no spare time to attend to my executive duties.
I told the Senator to go ahead as before and make recommendations; that I would give such recommendations every consideration; but that I would, of course, reserve the right to get opinions from any other person I might select. I ended by asking the Senator to forget the newspaper article and wished him a good vacation and expressed the hope that he would come to see me on his return.
. . .
The Attorney General and I held several conferences with the result that we concluded that you were best fitted to fill the Judgeship.
As a result, I wrote on July 6th to both of the Virginia Senators stating that I had concluded to appoint you, that a number of gentlemen had been suggested for the place, but that I believed you to be the best fitted.
The following day, July 7th, I received a telegram from Senator Glass stating that he and his colleague would feel obliged to object to your appointment as being personally objectionable to them, and that a letter would follow. A few days later I received a letter from the Senator stating that he could not conceive any fair reason why one of his candidates had not been appointed.
It is worth noting that neither Senator on July 7th or subsequently raised any question as to your integrity or ability, and the only objection was that you were personally objectionable.
In regard to the original newspaper article suggesting that Governor Price had been given the veto over Federal appointments, this and similar stories are, of course, not worth answering or bothering about, for the very simple reason that no person—no Governor, no Senator, no member of the Administration—has at any time had, or ever will have, any right of veto over Presidential nominations. Every person with common sense knows this.
. . .
We come now to the last chapter. Your nomination was referred to the Judiciary Committee of the Senate and by the Chairman of that Committee to a Subcommittee of three. It appears from the record that both Senators from Virginia registered their objection with the Subcommittee saying, "This nomination is utterly and personally offensive to the Virginia Senators whose suggestions were invited by the Department of Justice only to be ignored." The Subcommittee reported back the nomination to the full Committee without recommendation, stating the raising of the matter of Senatorial courtesy and saying that this matter had not been a direct issue since 1913.
At a special meeting of the full Committee on the Judiciary, and before the Committee went into executive session, attention was invited to the presence of the Governor of Virginia, to the presence of two former Governors of Virginia, and to the presence of the nominee and his Counsel.
. . .
Continuing, the senior Senator from Virginia referred to other newspaper articles which spoke of "rebukes" to the Senators. It is almost needless for me to suggest that neither you nor I pay any attention to such excuses. Finally, Senator Glass stated, "As a matter of fact, the President of the United States did give to the Governor of Virginia the veto power over nominations made by the two Virginia United States Senators." I am sorry, in view of my long personal friendship for the senior Senator, that he has made any such statement, and I can only excuse it on the ground of anger or forgetfulness.
At the end of his speech Senator Glass says, "Mr. Cummings never had the slightest idea of giving consideration to the recommendations of the two Virginia Senators because the Governor of Virginia had been promised the right of veto on nominations that they made." Neither of these statements is true.
Senator Glass was followed by Senator Byrd who stated that your nomination was personally offensive to both Senators, in fact, "personally obnoxious."
At the very close of the Judiciary Committee hearing Governor Price stated, "Senator Glass has made a charge against me. He is entirely mistaken about it." The Governor further stated that he was not involved in the newspaper story.
The Committee thereupon abruptly closed the hearing and went into executive session, with the result, as you know, that your nomination was reported adversely to the Senate.
. . .
In the particular case of which you are the unfortunate and innocent victim, the Senators from Virginia have in effect said to the President—"We have nominated to you two candidates acceptable to us; you are hereby directed to nominate one of our two candidates, and if you do not we will reject the nomination of anybody else selected by you, however fit he may be."
Perhaps, my dear Judge Roberts, the rejection of your nomination will have a good effect on the citizenship and the thinking of the whole nation in that it will tend to create a greater interest in the Constitution of our country, a greater interest in its preservation in accordance with the intention of the gentlemen who wrote it.
I am sorry, indeed, that you have been the victim. Against you not one syllable has been uttered in derogation of your character, or ability in the legal profession or your record on the Bench."
"My dear Judge Roberts:
I feel that in justice to you and your family I should write to you in regard to the refusal of the Senate to confirm your appointment as United States District Judge for the Western District of Virginia.
First of all, I tender you my thanks for the honorable, efficient, and in every way praiseworthy service that you have rendered to the people of the United States in general and to the people of the Western District of Virginia in particular.
Second, I wish it known that not one single person who has opposed your confirmation has lifted his voice in any shape, manner or form against your personal integrity and ability.
In order that you may know the full history of what has occurred, I take this opportunity to summarize the story.
On March 17, 1938, I received a letter from Senator Glass enclosing a clipping from a local Virginia paper. This newspaper article, quoting an editorial in another local Virginia paper, made the assumption that it would henceforth be necessary to receive the backing of Governor Price of Virginia before any Virginian could hope for a Federal appointment.
Senator Glass in his letter asked if Federal appointments, for which Senate approval was necessary, would be subjected to the effective veto of the Governor of Virginia.
To this I replied on March 18th, explaining to the Senator the difference between the appointive power, which is in the President, and the power of confirmation, which is in the Senate. I pointed out to the Senator that time-hallowed courtesy permits Senators and others to make recommendations for nomination, and, at the same time, that every President has sought information from any other source deemed advisable.
On March 19th Senator Glass wrote me again, covering his construction of Article II of the Constitution, and asking me again as to the accuracy of the newspaper statement. He winds up by saying, 'The inference is, of course, that you approve the offensive publication which was the basis of my inquiry.'
I replied to this letter from the Senator on March 21st in a personal and friendly vein. I stated that I was glad that we seemed to agree in our construction of the Constitution. I told him that I was not in the habit of confirming or denying any newspaper article or editorial. Obviously if I were to begin that sort of thing, I would have no spare time to attend to my executive duties.
I told the Senator to go ahead as before and make recommendations; that I would give such recommendations every consideration; but that I would, of course, reserve the right to get opinions from any other person I might select. I ended by asking the Senator to forget the newspaper article and wished him a good vacation and expressed the hope that he would come to see me on his return.
. . .
The Attorney General and I held several conferences with the result that we concluded that you were best fitted to fill the Judgeship.
As a result, I wrote on July 6th to both of the Virginia Senators stating that I had concluded to appoint you, that a number of gentlemen had been suggested for the place, but that I believed you to be the best fitted.
The following day, July 7th, I received a telegram from Senator Glass stating that he and his colleague would feel obliged to object to your appointment as being personally objectionable to them, and that a letter would follow. A few days later I received a letter from the Senator stating that he could not conceive any fair reason why one of his candidates had not been appointed.
It is worth noting that neither Senator on July 7th or subsequently raised any question as to your integrity or ability, and the only objection was that you were personally objectionable.
In regard to the original newspaper article suggesting that Governor Price had been given the veto over Federal appointments, this and similar stories are, of course, not worth answering or bothering about, for the very simple reason that no person—no Governor, no Senator, no member of the Administration—has at any time had, or ever will have, any right of veto over Presidential nominations. Every person with common sense knows this.
. . .
We come now to the last chapter. Your nomination was referred to the Judiciary Committee of the Senate and by the Chairman of that Committee to a Subcommittee of three. It appears from the record that both Senators from Virginia registered their objection with the Subcommittee saying, "This nomination is utterly and personally offensive to the Virginia Senators whose suggestions were invited by the Department of Justice only to be ignored." The Subcommittee reported back the nomination to the full Committee without recommendation, stating the raising of the matter of Senatorial courtesy and saying that this matter had not been a direct issue since 1913.
At a special meeting of the full Committee on the Judiciary, and before the Committee went into executive session, attention was invited to the presence of the Governor of Virginia, to the presence of two former Governors of Virginia, and to the presence of the nominee and his Counsel.
. . .
Continuing, the senior Senator from Virginia referred to other newspaper articles which spoke of "rebukes" to the Senators. It is almost needless for me to suggest that neither you nor I pay any attention to such excuses. Finally, Senator Glass stated, "As a matter of fact, the President of the United States did give to the Governor of Virginia the veto power over nominations made by the two Virginia United States Senators." I am sorry, in view of my long personal friendship for the senior Senator, that he has made any such statement, and I can only excuse it on the ground of anger or forgetfulness.
At the end of his speech Senator Glass says, "Mr. Cummings never had the slightest idea of giving consideration to the recommendations of the two Virginia Senators because the Governor of Virginia had been promised the right of veto on nominations that they made." Neither of these statements is true.
Senator Glass was followed by Senator Byrd who stated that your nomination was personally offensive to both Senators, in fact, "personally obnoxious."
At the very close of the Judiciary Committee hearing Governor Price stated, "Senator Glass has made a charge against me. He is entirely mistaken about it." The Governor further stated that he was not involved in the newspaper story.
The Committee thereupon abruptly closed the hearing and went into executive session, with the result, as you know, that your nomination was reported adversely to the Senate.
. . .
In the particular case of which you are the unfortunate and innocent victim, the Senators from Virginia have in effect said to the President—"We have nominated to you two candidates acceptable to us; you are hereby directed to nominate one of our two candidates, and if you do not we will reject the nomination of anybody else selected by you, however fit he may be."
Perhaps, my dear Judge Roberts, the rejection of your nomination will have a good effect on the citizenship and the thinking of the whole nation in that it will tend to create a greater interest in the Constitution of our country, a greater interest in its preservation in accordance with the intention of the gentlemen who wrote it.
I am sorry, indeed, that you have been the victim. Against you not one syllable has been uttered in derogation of your character, or ability in the legal profession or your record on the Bench."
Quotes from the latest round of Virginia Supreme Court opinions
"There is good reason for the rule that appellate courts must defer to the factual findings of the trial judge in Fourth Amendment cases. The fact patterns in such cases arrive in infinite variety, seldom or never exactly duplicated. Moreover, they involve consideration of nuances such as tone of voice, facial expression, gestures and body language seldom discernable from a printed record. The controlling inquiry is the effect of such matters on a reasonable person in the light of all the surrounding circumstances." Russell, S.J., in Malbrough v. Com.
"[T]he law in effect when a contract is made becomes a part of the contract as though incorporated therein." Kinser, J., in Wright v. Com.
"[T]he plaintiff's allegations that she was injured after she was placed in a defective chair, if proven at trial, would be sufficient to establish a prima facie case of medical negligence against the defendant without the necessity of expert testimony." Hassell, C.J., in Coston v. Bio-Medical Applications of Virginia, Inc.
"We adhere to the view that the public policy of Virginia favors arbitration. TM Delmarva Power, L.L.C. v. NCP of Va., L.L.C., 263 Va. 116, 122-23, 557 S.E.2d 199, 202 (2002). Nevertheless, that policy does not impair the constitutional right of a party to have access to the courts, including the right to a jury trial if requested, unless that party has, by contract, voluntarily waived those rights." Russell, S.J., in Mission Residential, LLC v. Triple Net Properties, LLC.
"Failure to object to the use of the deposition is sufficient to establish acquiescence. Accordingly, based upon the record before us, the trial court did not err in using deposition evidence in the resolution of the motion in limine and subsequent motion for summary judgment." Lemons, J., in Lloyd v. Kime.
"A gift has been defined as a contract without a consideration." Russell, S.J., in Ott v. L&J Holdings.
"Because Rule 1:8 requires leave of court to amend any pleading after it is filed, we conclude that the circuit court did not err by holding that an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend." Kinser, J., in Ahari v. Morrison.
"It is immaterial whether the assailant's subjective motivation is playful, amorous, vindictive, or hostile. An injury resulting from an assault arises out of the injured person's employment when it is directed at the victim as an employee. Russell, S.J., in Hilton v. Martin (reversing Judge Moore in a Russell County case).
"In summary, we have determined that: (1) the circuit court had jurisdiction to determine what interest was due to the Joint Venture under the court's June 27, 2005 judgment pursuant to UOSA's motion for satisfaction of that judgment; (2) the circuit court did not err in determining that interest was to accrue on the compensatory damages awarded in the First Trial between November 6, 2003 and June 27, 2005, but it erred in setting the rate of that interest at 9% per year, rather than the rate of 1% per month provided for in the jury's verdict; (3) the circuit court erred in determining that post-judgment interest was to accrue on the pre-judgment interest awarded in the First Trial and the Second Trial; (4) the circuit court erred in determining that UOSA made a timely allocation of the May 8, 2006 payment on the judgment debt; and, (5) the circuit court did not err in denying UOSA's motion for satisfaction of the judgment. Koontz, J., in Upper Occoquan Sewage Authority v. Blake Const. Co., Inc. (applying Leasing Service Corp. v. Justice, 243 Va. 441, 416 S.E.2d 439 (1992), one of my favorites).
"Because the term 'a person' means any individual human being, the term encompasses the entire universe of people, including the defendant. There is no authority for excluding the defendant from that universe. If the legislature had intended to exclude the defendant from the class of persons whose endangerment is prohibited by Code § 46.2-817(B), the legislature would have said so." Goodwyn, J., in Phelps v. Com.
"We reject DVCA's argument that the plain language of the definition of 'declaration' includes instruments such as articles of incorporation and bylaws if such documents are filed in the appropriate land records and create either certain assessment authority or maintenance duties for the property owners' association. Such a literal application of the phrase 'any instrument' in the definition of 'declaration' is inconsistent with the concept of 'declaration' used in other provisions of the POAA." Lacy, S.J., in Dogwood Valley Citizens Ass'n, Inc. v. Shifflett (causing me to recollect Justice Breyer's comment that "any entity" does not mean "any fish").
"While the term 'abandonment' is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts." Lacy, S.J., in Purce v. Patterson.
"In light of the presumption established in Code § 23-7.4(B) that an out-of-state student be required to demonstrate by clear and convincing evidence that he entered the Commonwealth for a primary purpose other than an educational purpose, we hold that the circuit court was plainly wrong in finding that the decision made by GMU was arbitrary, capricious, or otherwise contrary to law." Koontz, J., in George Mason University v. Floyd (reversing Judge Ney of Fairfax County).
"While Code § 55-59.1(A) does allow a proper notice of foreclosure sale to exercise an accrued right of acceleration, Bayview failed to fulfill the contractual condition precedent that would have given it such a right." Agee, J., in Bayview Loan Servicing, LLC v. Simmons.
"In the absence of a reasonable effort to market his residual work capacity, Favinger is not entitled to temporary partial disability benefits for his alleged loss of overtime earnings." Kinser, J., in Ford Motor Co. v. Favinger.
"[T]he law in effect when a contract is made becomes a part of the contract as though incorporated therein." Kinser, J., in Wright v. Com.
"[T]he plaintiff's allegations that she was injured after she was placed in a defective chair, if proven at trial, would be sufficient to establish a prima facie case of medical negligence against the defendant without the necessity of expert testimony." Hassell, C.J., in Coston v. Bio-Medical Applications of Virginia, Inc.
"We adhere to the view that the public policy of Virginia favors arbitration. TM Delmarva Power, L.L.C. v. NCP of Va., L.L.C., 263 Va. 116, 122-23, 557 S.E.2d 199, 202 (2002). Nevertheless, that policy does not impair the constitutional right of a party to have access to the courts, including the right to a jury trial if requested, unless that party has, by contract, voluntarily waived those rights." Russell, S.J., in Mission Residential, LLC v. Triple Net Properties, LLC.
"Failure to object to the use of the deposition is sufficient to establish acquiescence. Accordingly, based upon the record before us, the trial court did not err in using deposition evidence in the resolution of the motion in limine and subsequent motion for summary judgment." Lemons, J., in Lloyd v. Kime.
"A gift has been defined as a contract without a consideration." Russell, S.J., in Ott v. L&J Holdings.
"Because Rule 1:8 requires leave of court to amend any pleading after it is filed, we conclude that the circuit court did not err by holding that an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend." Kinser, J., in Ahari v. Morrison.
"It is immaterial whether the assailant's subjective motivation is playful, amorous, vindictive, or hostile. An injury resulting from an assault arises out of the injured person's employment when it is directed at the victim as an employee. Russell, S.J., in Hilton v. Martin (reversing Judge Moore in a Russell County case).
"In summary, we have determined that: (1) the circuit court had jurisdiction to determine what interest was due to the Joint Venture under the court's June 27, 2005 judgment pursuant to UOSA's motion for satisfaction of that judgment; (2) the circuit court did not err in determining that interest was to accrue on the compensatory damages awarded in the First Trial between November 6, 2003 and June 27, 2005, but it erred in setting the rate of that interest at 9% per year, rather than the rate of 1% per month provided for in the jury's verdict; (3) the circuit court erred in determining that post-judgment interest was to accrue on the pre-judgment interest awarded in the First Trial and the Second Trial; (4) the circuit court erred in determining that UOSA made a timely allocation of the May 8, 2006 payment on the judgment debt; and, (5) the circuit court did not err in denying UOSA's motion for satisfaction of the judgment. Koontz, J., in Upper Occoquan Sewage Authority v. Blake Const. Co., Inc. (applying Leasing Service Corp. v. Justice, 243 Va. 441, 416 S.E.2d 439 (1992), one of my favorites).
"Because the term 'a person' means any individual human being, the term encompasses the entire universe of people, including the defendant. There is no authority for excluding the defendant from that universe. If the legislature had intended to exclude the defendant from the class of persons whose endangerment is prohibited by Code § 46.2-817(B), the legislature would have said so." Goodwyn, J., in Phelps v. Com.
"We reject DVCA's argument that the plain language of the definition of 'declaration' includes instruments such as articles of incorporation and bylaws if such documents are filed in the appropriate land records and create either certain assessment authority or maintenance duties for the property owners' association. Such a literal application of the phrase 'any instrument' in the definition of 'declaration' is inconsistent with the concept of 'declaration' used in other provisions of the POAA." Lacy, S.J., in Dogwood Valley Citizens Ass'n, Inc. v. Shifflett (causing me to recollect Justice Breyer's comment that "any entity" does not mean "any fish").
"While the term 'abandonment' is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts." Lacy, S.J., in Purce v. Patterson.
"In light of the presumption established in Code § 23-7.4(B) that an out-of-state student be required to demonstrate by clear and convincing evidence that he entered the Commonwealth for a primary purpose other than an educational purpose, we hold that the circuit court was plainly wrong in finding that the decision made by GMU was arbitrary, capricious, or otherwise contrary to law." Koontz, J., in George Mason University v. Floyd (reversing Judge Ney of Fairfax County).
"While Code § 55-59.1(A) does allow a proper notice of foreclosure sale to exercise an accrued right of acceleration, Bayview failed to fulfill the contractual condition precedent that would have given it such a right." Agee, J., in Bayview Loan Servicing, LLC v. Simmons.
"In the absence of a reasonable effort to market his residual work capacity, Favinger is not entitled to temporary partial disability benefits for his alleged loss of overtime earnings." Kinser, J., in Ford Motor Co. v. Favinger.
On the intervention of the Commonwealth in the Episcopal Church property litigation
The Washington Post reports here ("State Files to Join Episcopal Case," by Michelle Boorstein, Saturday, January 12, 2008; Page B03), that Attorney General McDonnell has petitioned for leave of court to allow the Commonwealth to intervene in the much-publicized litigation pending in Fairfax County Circuit Court over the property rights of breakaway conservative congregations. The stated reason for the intervention is to defend the constitutionality of the Virginia statute at issue.
That seems like a pretty good reason. I've always wondered why the Attorney General never tried to inveigle himself in the Martin case, a couple of years ago.
The Washington Times has this story ("Church law may be with breakaways," by Julia Duin, January 12, 2008), that says in part: "Attorney General Bob McDonnell's motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute — the largest in the church's history."
That seems like a pretty good reason. I've always wondered why the Attorney General never tried to inveigle himself in the Martin case, a couple of years ago.
The Washington Times has this story ("Church law may be with breakaways," by Julia Duin, January 12, 2008), that says in part: "Attorney General Bob McDonnell's motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute — the largest in the church's history."
On moonshine in Southwest Virginia
Back on January 8, the Washington Post published this story by Jerry Markon on the continuation of the moonshine business in Franklin County and elsewhere.
It says in part:
"Since Prohibition, southwestern Virginia has been a hub of moonshine production, along with North Carolina and a few other Southern states. The tradition extends to the English and Scotch-Irish colonists who settled western Virginia and made grain-based whiskey and the Germans who specialized in apple brandy. When Franklin County was formed in 1786, the first county court met in a house with a tavern."
It says in part:
"Since Prohibition, southwestern Virginia has been a hub of moonshine production, along with North Carolina and a few other Southern states. The tradition extends to the English and Scotch-Irish colonists who settled western Virginia and made grain-based whiskey and the Germans who specialized in apple brandy. When Franklin County was formed in 1786, the first county court met in a house with a tavern."
On showing the Super Bowl on a really big screen at church
The Daily Progress has this story that says that fellow from the Rutherford Institute wants to take on the National Football League on the issue of displaying NFL games on big screens in churches.
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