On Florida and Michigan

Watching the events unfold in the campaign, I have had cause to recollect that the Supreme Court has already ruled in Cousins v. Wigoda, 419 U.S. 477 (1975), and Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981), that the Illinois state courts got it wrong "in according primacy to state law over the National Political Party's rules in the determination of the qualifications and eligibility of delegates to the Party's National Convention" with respect to the dispute over the seating of the Illinois delegation to the Democratic National Convention and, with respect to the Wisconsin delegation to the 1980 Democratic National Convention, that Wisconsin could not "compel the National Party to seat a delegation chosen in a way that violates the rules of the Party."

The Cousins v. Wigoda case is another of which some tales are told in John Tucker's book, Trial and Error: The Education of a Courtroom Lawyer, one of my favorites.

So, on the face of things, there is no constitutional impediment to the enforcement by the National Committee of its rules against Michigan or Florida for conducting their primaries too early - which must be why there have been no lawsuits before now. I note that at least in the Illinois case, the impression I get is that the litigants filed the case before tame state court judges to get their injunction, and the federal courts had no role until the cases wert all the way through the state appeals courts.

Death penalty verdict here in Abingdon

Here from the Roanoke paper, here from the Virginia Tech paper, and here from the Richmond paper, are stories about the Washington County jury's recommendation of the death penalty in the case of William Morva. The case was moved for trial from Montgomery County, and tried by the Montgomery County prosecutors.

I can't remember the last time someone was sentenced to death in a case from here in the 28th Circuit, unless it was the late Lem Tuggle, Governor Kaine's old client, one of the famous escapees from Mecklenburg. Or, Arthur Jenkins.

Boo, hiss

The Virginia House of Delegates and the Senate of Virginia adjourned sine die last night without picking any more new judges for the year. Sine die means "without any future date being designated (as for resumption)." They might come back for a special session in April, or they might not.

That should be barred by the Constitution, the legislature should not be allowed to leave town until all the courts have the full complement of judges every year.

For the special session, the plan is that "no bill or joint resolution other than (i) those relating to transportation; (ii) joint resolutions affecting the rules of procedure or schedule of business of the General Assembly, either of its houses, or any of its committees; (iii) resolutions regarding the election of judges; (iv) commending and memorial joint resolutions; or (v) joint resolutions confirming appointments subject to the confirmation of the General Assembly shall be offered in either house."

People ask me what I hear about the judgeships in Southwest Virginia. The gossip I hear is that in the 29th, General District Court Judge Pat Johnson will be moved up to the Circuit Court if the legislature acts, but Juvenile District Judge Farmer might be reappointed by the circuit court judges for another year if the legislature doesn't act. Or, both.

It's . . . Agee

President Bush has nominated Virginia Supreme Court Justice G. Steven Agee for the seat vacated by Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit, following the failed nomination of Richmond lawyer Duncan Getchell. Unlike Getchell, Agee is on the list to which both Senators Webb and Warner agreed, of names for the position.

Justice Agee is from Salem, and he was a Republican legislator in the General Assembly and a lawyer with the Osterhoudt firm before he became a judge. Per Westlaw, Justice Agee argued a few cases before the Fourth Circuit, but his cases included Patterson v. Shumate, which he argued before the U.S. Supreme Court (and not on the side of Mr. Shumate).

Despite the increasing proximity to lame duck status for President Bush and his nominees, the Senate ought to move ahead with Agee's nomination, particularly since it will probably give Senator Webb's buddy, Governor Kaine, a chance to appoint another Democrat to the Virginia Supreme Court.

The Richmond paper has this story, noting that Webb and Warner both gave statements of approval. BLT has this post. Confirm Them has this post, with a few comments, including one that says: "Now nominate Lemons too, George. Cripes almighty. Unreal. Of course, he finally caves to the list when it'll do no good. As I've said many times before, Nixon, Truman & Harding just have to be shaking their heads that they can't play poker with this Administration."

The Roanoke paper has this lame article, which concludes inanely "Widener said he will step down once his successor is confirmed." Such may have been Judge Widener's intention, before his death in 2007.

Agee joins Robert Conrad, Steve Matthews, and Rod Rosenstein, the other three lawyers with pending nominations to the Fourth Circuit.

Wednesday with Judge Turk

I went to Roanoke today for a conference with Judge Turk, he was in good humor and there were no great issues at stake, and so it was a good day.

And, while I was there, I drove by that new museum, for the first time. What a spectacle it is.