Friday, November 04, 2005

Ten non-policy reasons why it is inevitable that I will vote for Jerry Kilgore

There was never any doubt that I will vote for Jerry Kilgore, for reasons like these:

10. When I was a law clerk, Jerry was the resident assistant prosecutor, and he tried the first federal criminal case I ever saw. During that year, the courthouse gang had a birthday party for Jerry, and a dancing gorilla in a bikini was there.
9. Years ago, I had a meeting with Jerry's mom, and she made me laugh. Years later, my wife met Terry Kilgore, and he made her laugh. Virginia, like the Kilgore family, needs a good straight man.
8. Like Jerry, my aunt Lois went to Clinch Valley. So did my friend Will. And my cousin Samatha. My grandma's friend Joe Smiddy was the head man there. I root for all CVC grads.
7. I too was a too-skinny, bookish kid on the high school football team.
6. Some say Jerry never did any work to speak of down on the farm, and neither did I, despite ample opportunities. Even so, I like the look and smell of a Southwest Virginia farm. Virginia needs a governor who knows that fall smells like tobacco hanging in the barn, even if someone else hung it.
5. Jerry was the attorney general. I like to think about attorney general stuff. His office won reversals of fortune (at least in part) against all odds in two famous First Amendment cases before the U.S. Supreme Court, the cross-burning case and the public housing trespass case. Now, those were interesting cases.
4. Jerry gets excited on the Virginia Cavalier post-game show. I'm surprised Waldo never got hold of an audio clip of Jerry talking football with Mac McDonald.
3. I had a Southwest Virginia accent once. I might have one now.
2. We went to the same law school, America's oldest, and a good place. Ask Dawn Figueiras. Or Don McGlothlin. Or Mickey McGlothlin. There ought to be a William & Mary grad sworn in at the inauguration in Williamsburg.
1. My Democrat friends from Scott County always beat me at golf.

Progress through technology

My dad the engineer gets a kick out of the safety warning symbols on products. He once told me with a laugh about his granddaughter examining the illustration on a stepladder and asking, "Papaw, why's that man falling down?" Now, BoingBoing reports on the adorable symbol on the glow-in-dark car trunk release tab.

The criminal defense lawyer's perspective from the Ninth Circuit on last year's Supreme Court term

Here is an excellent report on the last U.S. Supreme Court term, prepared by the public defenders in the Ninth Circuit.

The introduction says:

"In going through the opinions to look for hidden gems, three major themes emerge. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions."

The report says this about the latest qualified immunity case:

"Brosseau v. Haugen, 125 S. Ct. 596 (2004): Separate from the constitutionality of an officer’s use of deadly force against an unarmed felony suspect, the courts had not “clearly established” the right in question, in a particularized sense, to the facts presented to foreclose qualified immunity for the officer.

In another reversal of a Ninth Circuit civil rights case, the Court per curiam found an officer to be protected by qualified immunity. Officer Rochelle Brosseau went to the home of Kenneth Haugen, who was suspected of selling drugs and stealing the tools of a co-worker. When Haugen saw Officer Brosseau approach, he jumped in his Jeep, and ignored the officer’s warnings to stop, even when she smashed a hole in the window of his Jeep. Brosseau shot Haugen in the back as he drove away, and Haugen subsequently filed a suit for damages under 42 U.S.C. § 1983. The Court of Appeals held that Brosseau violated Haugen’s Fourth Amendment rights and also that she was not entitled to qualified immunity.

The Supreme Court reversed only on the qualified immunity question because the law of when an officer may shoot a fleeing suspect was not clearly established with the particularization necessary to apply it to this set of facts. The Court’s holding in Brosseau substantially extends qualified immunity by encompassing excessive force cases where the law has not been previously applied to particular facts. Here, even though past cases had clearly established that officers may only shoot a fleeing suspect who presents a risk to others, the Court held that in this case, “Brosseau’s actions fell in the ‘hazy border between excessive and acceptable force.’” (Quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). This case includes an echo of the Doctrine of Constitutional Avoidance. In footnote 3, the majority finds no reason to reconsider Saucier’s order of proceeding: 1) first decide
the constitutional question; 2) then decide the qualified immunity question. Justice Breyer, joined by Justices Ginsburg and Scalia, concurred to say that Saucier should be reconsidered because, if the question is iffy enough for qualified immunity, why reach the “difficult constitutional questions when there is available an easier basis for the decision”?"

Why indeed? Because if the difficult constitutional questions never get answered, then the defendants will keep winning every case on qualified immunity.

This report is chock full of good stuff and worth reading even if like me, you have nothing to do with federal criminal practice.

On the literacy of literally

Found by way of this Crescat post, in this Slate piece, a dictionary editor actually and really does take on the word we love to hate: "literally."

Tuesday, November 01, 2005

What will be the effect of newspaper endorsements on next Tuesday's Virginia elections?

Back in 1985, I wrote a paper for Larry Sabato's Campaigns and Elections class about the Boucher-Stafford race in 1984, and concluded that the Bristol paper's endorsement of Boucher, seeking re-election for the first time, was a big help to him. Back then, the newspaper was owned by the Worrells, before it was sold to Media General.

Now, the people who write the editorials are not the owners of the newspaper, at least nowhere around here (perhaps they still do it in Winchester), and so in this Washingtonian piece, Larry Sabato is quoted as saying that newspaper endorsements don't carry much clout.

I must confess that I was surprised that the Bristol paper endorsed Kaine instead of Kilgore, the local man, and then endorsed Bolling, noting Bolling's real but more limited SW Virginia roots. Something's wrong with that combination.

Those GI patients are an irate bunch

Here it says of the surprising information presented to a committee studying medical malpractice insurance in the Commonwealth: "Thoracic surgeons, dermatologists and gastroenterologists were the medical specialists who paid the highest average malpractice claims, according to a new state study."

You can't fool Senator Shumer or Colonel Flagg

Sen. Shumer, in today's Wall Street Journal, on Supreme Court nominee Judge Samuel Alito, Jr.: "At first blush, Judge Alito does not appear to be a Sandra Day O'Connor."

Weird spook Colonel Flagg, in a M*A*S*H episode, to Corporal Klinger:

Colonel Flagg: "Hey, up close you are a guy!"
Klinger: "Far away too."

Mr. Patton goes to Richmond

Here Brian Patton relates that when he and the Virginia Supreme Court met, swearing ensued.

One step closer to the Hall of Fame

Here it says we got Win No. 4.333 in Chad's Caption Contest No. 25.

Monday, October 31, 2005

Why I'm not following the Kaine logic on the death penalty

In this post, my fellow Virginia lawyer at Blawg De Novo wrote:

"As a Catholic (and a lawyer), I can tell you Kaine’s logic is very easy to understand. The disconnect appears to be with those who have difficulty understanding the ability to separate the individual religious view from the oath of office, a concept apparently as novel today as it was when it was drafted into the Constitution."

I'm not following the logic, and so I wrote this comment:

"It appears to me that a governor’s oath of office does not require him to 'enforce' the death penalty. To the contrary, under the Virginia Constitution and by statute, the power without limitation to commute a death sentence in any (or every) case is vested solely in the Governor. Va. Code § 53.1-229. If there are substantive limits on the Governor’s discretion, I don’t know what they are, short of malfeasance or corruption that would justify removal from office."

In other words, the point is not that there is a conflict between Virginia law and Mr. Kaine's views on the death penalty, but rather the opposite: the law would empower Mr. Kaine as governor to do whatever he sees fit in dealing with death penalty cases. Certainly, every governor should be vigilant in the exercise of his power of executive clemency. One would expect, however, that a Governor with a categorical objection to the death penalty might be more expansive in his use of that power, in ways that many Virginians might find objectionable.

Heard at the courthouse

Whenever a couple of lawyers have to wait a few minutes in a room together, they started telling stories.

Here's one I heard today, about a case before Judge Glen Williams years ago:

The client worked for a potato chip company. He went to a grocery store and began stocking his goods, when a man came up to him and said, "are you the potato chip man?" The client replied that he supposed he was, in fact, the potato chip man. Without another word, the other man proceeded to hit him over the head.

It turns out, the other man's wife had been in the store earlier in the day and when she came home, she told her husband that "the potato chip man" had pinched her fanny.

What President Bush and Judge Alito said

Here is the text of the remarks by President Bush and Judge Samuel Alito, Jr., at this morning's event.

The President I think made a compelling summary of the points in favor of Judge Alito - top schools, law clerk, veteran, prosecutor, appellate advocate, U.S. attorney unanimously confirmed, court of appeals judge unanimously confirmed, 15 years and hundreds of opinions - "more prior judicial experience than any Supreme Court nominee in more than 70 years," son of an immigrant, husband of a ex-librarian.

Sunday, October 30, 2005

Will Judge Brown be invited to join?

Feddie at Southern Appeal says here that he thinks the President will nominate Janice Rogers Brown, which could mean that the nominee will be someone else, as I don't recall that Feddie has nailed any of these picks, unlike Tom Goldstein of SCOTUSBlog, who has guessed right on both Chief Justice Roberts and non-Justice Miers and who says this time it will me Judge Alito.

Professor Berman is also thinking about Judge Brown.

Any how, all that gives me sufficient occasion to repost once again this link to a law school graduation speech by Janice Rogers Brown, with the following introduction, which I find delightful:

"We once welcomed law students by inviting them into the brotherhood. Now, with so many women in the profession that no longer seems right. But, we can certainly understand why our brethren would not wish to be part of a sisterhood. A friend of mine, Justice Vance Raye, came up with the perfect solution. He said, from now on we should just call it the 'hood.' So, let me be the first to welcome you … to the 'hood.'"

Virginia case argued before S.Ct. on Monday

Here the SCOTUSBlog has the lowdown on a Virginia case being argued before the U.S. Supreme Court on Monday, with Virginia's Solicitor General Thro arguing for the Commonwealth, where the issue involves the connection between the sovereignty of the Commonwealth and the supremacy of the nation's bankruptcy laws.

How to fire up Virginia Republicans

Discriminations has this funky post, which suggests that if President Bush nominates a Virginian to the Supreme Court, that would energize Virginia Republicans and help Jerry Kilgore across the finish line.

Certainly, such a nomination would energize those Virginia Republicans who would like to have some say in who might replace Judge Luttig or Judge Wilkinson on the Fourth Circuit.

On juvenile conduct and federal sentencing

Earlier this week, Judge Conrad of the W.D. Va. ruled in U.S. v. Whittington that he could consider for sentencing purposes acts the defendant committed before he turned 18. Even though I'm not experienced in these matters, this sounds like an interesting opinion to me, and Professor Berman evidently agrees.