Wednesday, June 26, 2013
In this week's opinions, the Supreme Court 1. Somewhat cracked down on affirmative action, in the Fisher case (7-1 vote), 2. Somewhat made it more difficult to employee plaintiffs to win in Title VII cases, in the Nassar case (5-4), and the Vance case (5-4), 3. Somewhat made it more difficult to sue drug manufacturers for bad products, in the Bartlett case (5-4), 4. Somewhat struck down the Voting Rights Act in the Shelby County case (5-4), 5. Somewhat cracked down on impact fees, in the Koontz case (5-4), 6. Somewhat cracked down on the Indian Child Welfare Act in the Baby Girl case (5-4), 7. Cracked down on DOMA, in the Windsor case (5-4), 8. Punted on Proposition 8 in the California case (5-4), 9. Overturned an extortion conviction in the Sekhar case (9-0). What do all these cases have in common? I have no idea, other than that Justice Kennedy wins again. Probably the right won more than it lost - the impact fee case, the voting rights case, the products liability case, the Title VII cases, and the affirmative action cases sound like big victories for the right. Perhaps the experts will explain it all this weekend at the Fourth Circuit Judicial Conference, which you can watch live on C-SPAN on Saturday morning. The conference is at the Greenbrier as in 2011.
The Virginia Bar Association is a product of the Progressive era. Forward-thinking lawyers joined together to promote the highest ideals of the profession. Many of the same lawyers who were leaders in the Bar Association were also delegates to the Virginia Constitutional Convention of 1901.
The Virginia Constitution of 1902 contained some remarkably progressive elements - for Virginia. It established the State Corporation Commission as an independent rate-setting entity for the railroads and public utilities. It incorporated an express Double Jeopardy clause.
It also sought to take the right to vote away from black Virginians. In this effort, the new constitution was a success. Black voting was suppressed for decades. At the distance of barely more than 100 years, it is troubling to think that the best and the brightest of Virginia's lawyers worked so carefully and intentionally to prevent black voters from voting.
The Twenty-Fourth Amendment was adopted in 1964, prohibiting the poll tax in federal elections. The Supreme Court did not rule until 1966, in a Virginia case, that the poll tax was illegal as a violation of Equal Protection in state elections. Congress passed the Voting Rights Act of 1965.
Yesterday, the Supreme Court held in the Shelby County case that the premises of the Voting Rights Act could no longer support the imposition on certain states of the burden of pre-approval for all voting law changes. The commentary I have read is full of the view that racism remains a fact of life for millions of Americans.
There has been a reversal, however, between 1901 and the attitudes of the legal elite. I have never met a lawyer who would say in private the outrageous things that Virginia's best lawyers were saying proudly on the record in 1901. Black voter turnout exceeded white voter turnout for the first time in 2012. Whether the Chief Justice got it right or wrong in his conclusions, I agree that a fundamental change has taken place since 1902, that is not going to change back. There will not ever be another Virginia constitutional convention for the express purpose of keeping racial minorities from voting.
Tuesday, June 25, 2013
In today's email: "The United States District Court and the United States Bankruptcy Court for the Western District of Virginia take great pleasure in announcing that Paul Markham Black has been designated by the United States Court of Appeals for the Fourth Circuit, subject to satisfactory completion of standard background checks, to succeed William F. Stone, Jr. as United States Bankruptcy Judge for the Western District of Virginia at Roanoke, Virginia. Mr. Black, a native of Roanoke who graduated from Northside High School, received his undergraduate degree from Washington and Lee University in 1982 and his law degree from the T. C. Williams School of Law of the University of Richmond in 1985. He then served as law clerk to the Honorable Blackwell N. Shelley, United States Bankruptcy Judge for the Eastern District of Virginia at Richmond. After practicing law in Richmond for several years with the firm of Mays & Valentine, he returned to Roanoke in 1991 to join the law firm of Melchionna, Day, Ammar & Black, P.C. Since then, his practice has involved representation of clients in the United States District Court and United States Bankruptcy Court in the Eastern and Western District of Virginia as well as numerous Virginia state courts. Currently, Mr. Black is a member of the firm of Spilman, Thomas & Battle, PLLC in Roanoke, where he is co-chair of the firm's bankruptcy and creditors' rights practice group. Since 2007, he has served as a member of the Virginia State Bar Disciplinary Board. Mr. Black lives in Roanoke, Virginia with his wife. They have three daughters. The term of the appointment will be fourteen years, and Mr. Black is expected to take the bench during the latter part of this year or the beginning of 2014."