Wednesday, July 27, 2005


Senate GOP moves gun bill atop list

Very simply, you can't make this stuff up:
Senate Republicans on Tuesday moved the National Rifle Association's top priority ahead of a $491 billion defense bill, setting up a vote on legislation to shield firearms manufacturers and dealers from lawsuits over gun crimes.

Completion of the defense bill, which the Senate had been debating for a week, will now be delayed until fall. Democrats were incensed.

"What's happening on this gun liability bill is really despicable," said Sen. Dianne Feinstein, a California Democrat. "To put that ahead of the defense bill, I think, is the most distorted priorities I can possibly conceive of." (Full story)

...With strong support from the White House, Senate Majority Leader Bill Frist, a Tennessee Republican, used a technical maneuver to halt debate on the defense bill and move to the contentious gun legislation sponsored by Sen. Larry Craig, an Idaho Republican.

...The bill could eat up much of the Senate schedule before lawmakers leave at week's end for a monthlong vacation. The House passed a similar bill last year but has taken no action on it this year.

There are your Republican priorities.

Read more in this post: Going to the mat...

Tuesday, July 26, 2005

I am really getting to old...

I honestly don't know if this is serious technology reporting...or satire.

An acquisition by Yahoo empowers widget market

Konfabulator is a Java-based program that runs modules called widgets. Each widget specializes in fetching specific information and displaying it on a computer desktop in a visually cool way.

Normally, I'm suspicious when a small, innovative company is swallowed by a bigger one, but given that Yahoo has made the program free and taken Pixoria's entire three-person staff on as employees, there's not much of a downside. The only evil I can see so far is that the name's been changed to — ugh — Yahoo! Widgets.

Other than the fact that Konfabulator's cool, free and incredibly useful, why is this an important move by Yahoo?

Most of the widgets developed for Konfabulator rely on a kind of data feed known as XML, which stands for Extensible Markup Language. This is the code that powers RSS, or Really Simple Syndication feeds, which I have written about in the past (see

Konfabulator allows widget designers to capture XML feeds and present them graphically, rather than as simple text or a table. That's important for the development of this powerful technology, which is primarily used now by techies and early adopters. Konfabulator is the type of application that can bring RSS and XML to the masses. And that's Yahoo's audience.

With its abundance of content and marketing savvy, Yahoo could turn Konfabulator into a killer application.

There is no question that I'm too old. Companies named Yahoo!, products named Konfabulator which include modules called Widgets. And this is all serious!!! I can't wait for my son to get to elementary school so he can show me how to use this stuff...

5th Circuit follows Supreme Court directive...

5th Circuit sets aside Dallas man's conviction

After being rebuked twice by the U.S. Supreme Court, the 5th U.S. Circuit Court of Appeals on Monday issued an order overturning a conviction in a Texas death-penalty case.

Appeals Judges Edith H. Jones, W. Eugene Davis and Harold R. DeMoss Jr. issued a one-paragraph unpublished opinion setting aside Thomas Joe Miller-El's 1986 capital murder conviction and ordering him released unless a new trial date is set within 120 days.

"All (the judges) were doing was what the U.S. Supreme Court said in no uncertain terms they had to do," said Neil Siegel, assistant professor of law and political science at Duke University.

Miller-El's attorney — Jim Marcus, director of Texas Defender Services — said the decision was expected and preparations are under way for a new trial. The order contrasted with the 5th Circuit panel's two lengthier decisions, the first setting out why the judges believed Miller-El did not deserve permission to appeal.

...In an 8-1 ruling, the Supreme Court overruled the appeals court in February 2003, giving strong hints on how the 5th Circuit should rule. The appeals court then allowed the appeal, but didn't take the high court's hints. Instead, the panel followed the reasoning of the lone dissenter in the Supreme Court decision, lifting several paragraphs verbatim from the dissent in rejecting the appeal.

As Texas Defender Service's director Jim Marcus noted, this decision was expected. After the Supreme Court has dealt with the issue twice, you would certainly hope so. But there will be another trial.

I first wrote about the the Miller-El decision in this post, where I noted that:
Last year there was discussion that the Supreme Court is so frustrated by Texas' and the 5th Circuit's unwillingness to provide rigorous tests and protections related to capital punishment, that at some point, the Supreme Court may halt the process in Texas until the state can come to grips with just just how unfair it's process is.
It may seem counter-intuitive, but the 5th Circuit's (unpublished) decision yesterday in many ways worked to bolster the capital punishment system in Texas. How so, you wonder? Well, if they had taken the (frankly unheard of) step of once again ignoring a direct order from the Supreme Court, it would have made the High Court reasonably likely to slap a moratorium on the capital punishment system in Texas.

This holding does NOT mean that Miller-El "gets off." He will be retried, only this time (hopefully) there will be no racism used by the prosecution to select jurors to hear the case.

See more on Miller-El and other capital punishment in Texas issues in my posts: Capital Punishment in Texas... and Believe it or not.... (Also see posts on the UH Law Center's Prof. David Dow's recent capital punishment book: Lethal Injustice... and Go buy this book....)


U.S. military admits error in news releases

I certainly hope that this is not typical of the information that is being reported about Iraq - but how can any of us know?

The U.S. military expressed regret Monday for issuing news releases about two separate attacks in Iraq that included almost identical quotes attributed to an unidentified Iraqi.

...After the media contacted officials Sunday on the similarities, the military reissued the latest release without the quote.

...Lt. Col. Clifford Kent, spokesman for the 3rd Infantry Division, also spoke Sunday of an "administrative error."

Kent did not explain why the quote apparently was changed to apply to the latest attack.

Below are the two news releases from the U.S. military with the similar quotes:
From Sunday:
" 'The terrorists are attacking the infrastructure, the ISF and all of Iraq. They are enemies of humanity without religion or any sort of ethics. They have attacked my community today and I will now take the fight to the terrorists,' said one Iraqi man who preferred not to be identified."
From July 13:
" 'The terrorists are attacking the infrastructure, the children and all of Iraq,' said one Iraqi man who preferred not to be identified. 'They are enemies of humanity without religion or any sort of ethics. They have attacked my community today and I will now take the fight to the terrorists.' "

Monday, July 25, 2005

You heard it here first...

Before there was any nomination for Associate Justice to the Supreme Court, I was writing about the Federalist Society, and how it was a core piece of the conservative jurisprudential puzzle. Now, it turns out that this issue has become some question in the nomination of Judge Roberts.

CNN has this story today entitled, Roberts faces questions, in which it appears that (as I noted in this post) the Washington Post and the White House have stated that Roberts has no recollection of membership in the conservative legal organization, his name appeared on a Society leadership directory as part of a steering committee.

The question of Roberts' membership in the society -- an influential organization of conservative lawyers and judges formed in the early 1980s to combat what its members said was growing liberalism on the bench -- emerged as a vexing issue at the start of another week of meetings for President Bush's nominee on Capitol Hill.

Clearly, membership (or non-membership) in the Federalist Society should not be a factor in Roberts' nomination confirmation. To me, the fact that such a membership (or non-membership) has garnered so much attention in the past week is a testament to the increasing power and influence of the Society.

In other news, the Houston Chronicle reports today - Bush pick gives Democrats tough choice. The article notes that political considerations will present an interesting counter to progressive interest groups' pressure on Democratic Senators to fight the Roberts nomination.

After Supreme Court nominee John Roberts completed a series of meetings on Capitol Hill last week, at least one Democratic senator was ready to pronounce him a "wise choice."

That was Ben Nelson of Nebraska, who this year helped broker a deal with Republicans that ended a stalemate over judicial nominations and who is up for re-election next year in a state that President Bush has won comfortably twice.

The article also refers to the pressures on potential '08 contenders for the Democratic nomination - in addition to those in possible re-election fights.
Buchanan said Democratic senators thought to have presidential aspirations — such as Hillary Clinton of New York, John Kerry of Massachusetts, Joseph Biden of Delaware and Evan Bayh of Indiana — have to strike a delicate balance. ...

Voting for Roberts could also carry risk. In early Democratic primary or caucus states, such as Iowa, liberal activists carry a disproportionate weight.

Mann predicted Clinton and Biden would position themselves with moderates and vote for Roberts, while Kerry and Bayh would court liberal activists by voting against him.

Another category of Democratic senators — those in states that voted for Bush and who are up for re-election next year, such as Nebraska's Nelson — must be aware of how Roberts is being received at home.

At this point, it's my opinion that any progressive special interest groups would be wasting political capital to oppose the Roberts nomination. It is a sort of a Catch-22 I suppose - these groups have spent so much time and energy raising money from their supporters in order to wage a nomination battle, how can they now lay down without a fight. On the other hand, it's a fight they can't win, so fighting it is an expenditure of funds and political capital that will deplete these organizations, and make them less credible during any future nominations...especially if a turly extreme nomination is forwarded. Obviously, it is not an easy decision. It appears to me that the likelihood of the derailment of the Judge Roberts nomination is very small (unless other information comes to light), and in that sense, any large-scale opposition is wasted.

As I have stated in many other arenas - George W. Bush won the election, and the Republican's control the Senate. To the victor goes the spoils...this scenario was unquestionably on the table in November of 2004, and American chose Bush. A qualified, non-extremist nominee - regardless of if he matches one's opinions, beliefs, or ideologies - should have been expected to be a very conservative jurist. That is the clear result. Judge John Roberts is highly skilled, highly respected, and (in my opinion) qualified. Regardless of whether I agree with him on the interpretation of Constitutional law, at this point (unless other information is revealed) his nomination should not be blocked.

Thursday, July 21, 2005

For the Record...

After I had posted about the Federalist Society - at the center of conservative legal thought..., and in the midst of the rumors that Judge Clement was set to be named as the new Associate Justice, I posted this FYI... post, noting that Judge Clement was indeed a member of the Federalist Society.

I had assumed (as did much of the media it appears) that Judge John Roberts was a Federalist Society member as well...but that is not the case.

Federalist Affiliation Misstated
Roberts Does Not Belong to Group

Everyone knows that, like all good Republican lawyers, John G. Roberts Jr. is a member of the Federalist Society, the conservative law and public policy organization where right-of-center types meet to denounce liberalism and angle for jobs in the Bush administration.

And practically everyone -- CNN, the Los Angeles Times, Legal Times and, just yesterday, The Washington Post -- has reported Roberts's membership as a fact. One liberal group opposed to Roberts's nomination, the Alliance for Justice, has noted it on its Web site.

But they are wrong. John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been.
Roberts recalls speaking at Federalist Society forums (as have lawyers and legal scholars of various political stripes). But he has apparently never paid the $50 annual fee that would make him a full-fledged member. His disclosure forms submitted in connection with his 2003 nomination to the D.C. Circuit make no mention of it.
How this urban legend got started is not clear. The issue probably got clouded in part because the Federalist Society's membership is confidential; individual members must decide whether or not to acknowledge their affiliation.
Some conservatives said that a Federalist affiliation, while a definite plus within Bush administration circles, could only provoke hostile questions from Senate Democrats -- so Roberts, in keeping with his low-key approach to conservatism, just steered clear.

(HT: Supreme Court Nomination blog)

Houston landmark sold...

Heritage Plaza tower sold, loses biggest tenant

The sale coincides with its largest tenant vacating nearly half of the space in the 1.15 million-square-foot property. That will leave it about 70 percent vacant by year's end.

The office building, formerly known as Texaco Heritage Plaza, has shortened its name since Chevron absorbed Texaco and is pulling out of this and other downtown buildings.

It's pretty amazing that a major tower looking at 70% vacancy would be able to sell. Obviously the purchaser, Goddard Investment Group, has the captial to push through this slow period and wait for better days.

Heritage Plaza is a very distintive building on the western side of Houston's downtown. It's primary architectural feature is it's unique top.

This is not a good time for the commercial real estate market in least not if you're a property owner. The market is soft, and large discounts are being offered to encourage tenancy downtown. Heritage Plaza is in a good location, but if faces stiff compeititon:
While the building has good access on the western edge of downtown and unobstructed views of Sam Houston Park, competition is intense for tenants.
Downtown's office market is slowly improving after the 2001 collapse of Enron and other merchant energy traders, but some say it will take years for it to return to normal.
"It's probably not going to get significantly softer, but we're going to hang down here at the bottom in the foreseeable future," said Mark Russell, senior vice president and branch manager with Studley in Houston.
A recent report from Moody's Investor Service said Houston had one of the worst commercial real estate markets in the country.

Vacancies are relatively common downtown these days, and Texaco leaving Heritage Plaza obviously contributes to that soft market. This Wall St. Journal article notes that although the area has seen job-growth, that has yet to translate to a hotter commercial real estate market. Although the current market pales in comparison to the hard times during the oil bust of the late 80's, when office vacancy rates exceeded 30%.

No end to Enron Broadband...

No guilty verdicts in latest Enron case

Mary Flood reports in this morning's Houston Chronicle that, "Three months after the Enron Internet fraud trial began, prosecutors failed Wednesday to win a single conviction against any of the five defendants."

Jury deliberations lasted only four days, and resulted in Not Guilty verdicts on 24 counts - but deadlocked on another 168 counts...Judge Vanessa Gilmore refused to force the jury to go back in for further deliberations an hour after they had told her they were hopelessly deadlocked.

Get in depth analysis from Houston Clear Thinker's here.
See the Houston Chronicle's coverage of Enron here.
See my earlier post on the Broadband trial here.

Tuesday, July 19, 2005

Associate Justice John Roberts...

WaPost reports.

More to come...

Profile from Supreme Court Nomination blog

Judge Roberts was appointed to the D.C. Circuit in 2003 by President George W. Bush (he was also nominated by the first President Bush, but never received a Senate vote). Before his appointment, he practiced at Hogan & Hartson from 1986-1989 and 1993-2003. During the interlude, he was the Principal Deputy Solicitor General in the first Bush administration. He also served in the Reagan administration as a Special Assistant to the Attorney General from 1981-1982 and as Associate Counsel to the President from 1982-1986.
Judge Roberts attended Harvard College and Harvard Law School. He then clerked for Judge Henry Friendly on the Second Circuit and for Justice Rehnquist.
Judge Roberts is fifty years old. He and his wife have two children.

From the Slate article linked below:

John Roberts
Age: 50
Graduated from: Harvard Law School.
He clerked for: Judge Henry Friendly, Chief Justice William Rehnquist.
He used to be: associate counsel to the president for Ronald Reagan, deputy solicitor general for George H.W. Bush, partner at Hogan & Hartson.
He's now: a judge on the U.S. Court of Appeals for the D.C. Circuit (appointed 2003).
His confirmation battle: Roberts has been floated as a nominee who could win widespread support in the Senate. Not so likely. He hasn't been on the bench long enough for his judicial opinions to provide much ammunition for liberal opposition groups. But his record as a lawyer for the Reagan and first Bush administrations and in private practice is down-the-line conservative on key contested fronts, including abortion, separation of church and state, and environmental protection.

Civil Rights and Liberties
For a unanimous panel, denied the weak civil rights claims of a 12-year-old girl who was arrested and handcuffed in a Washington, D.C., Metro station for eating a French fry. Roberts noted that "no one is very happy about the events that led to this litigation" and that the Metro authority had changed the policy that led to her arrest. (Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004).

In private practice, wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001).

For Reagan, opposed a congressional effort—in the wake of the 1980 Supreme Court decision Mobile v. Bolden—to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act.

Separation of Church and State
For Bush I, co-authored a friend-of-the-court brief arguing that public high-school graduation programs could include religious ceremonies. The Supreme Court disagreed by a vote of 5-4. (Lee v. Weisman, 1992)

Environmental Protection and Property Rights
Voted for rehearing in a case about whether a developer had to take down a fence so that the arroyo toad could move freely through its habitat. Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government's power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to "consider alternative grounds" for protecting the toad that are "more consistent with Supreme Court precedent." (Rancho Viejo v. Nortion, 2003)

For Bush I, argued that environmental groups concerned about mining on public lands had not proved enough about the impact of the government's actions to give them standing to sue. The Supreme Court adopted this argument. (Lujan v. National Wildlife Federation, 1990)

Criminal Law
Joined a unanimous opinion ruling that a police officer who searched the trunk of a car without saying that he was looking for evidence of a crime (the standard for constitutionality) still conducted the search legally, because there was a reasonable basis to think contraband was in the trunk, regardless of whether the officer was thinking in those terms. (U.S. v. Brown, 2004)

Habeas Corpus
Joined a unanimous opinion denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment. The panel reversed its decision after a Supreme Court ruling directly contradicted it. (Fletcher v. District of Columbia, 2004)

For Bush I, successfully helped argue that doctors and clinics receiving federal funds may not talk to patients about abortion. (Rust v. Sullivan, 1991)

Judicial Philosophy
Concurring in a decision allowing President Bush to halt suits by Americans against Iraq as the country rebuilds, Roberts called for deference to the executive and for a literal reading of the relevant statute. (Acree v. Republic of Iraq, 2004)

In an article written as a law student, argued that the phrase "just compensation" in the Fifth Amendment, which limits the government in the taking of private property, should be "informed by changing norms of justice." This sounds like a nod to liberal constitutional theory, but Rogers' alternative interpretation was more protective of property interests than Supreme Court law at the time.

Breaking word...

ABC news is now reporting that the nomination will NOT be Judge Clement...

UPDATE I: Supreme Court Nomination blog is now backing off Clement as well...although not saying specifically it will not be the 5th Cir. Judge.

UPDATE II: And now, CNN is reporting it will NOT be Judge Clement as well.

More Judge Clement information...

Just a my first post related to Justice O'Connor's decision to retire from the Supreme Court (Justice O'Connor Retires), I included this comment:

This move likely favors Alberto Gonzales and also Edith Jones and Edith Clement, both of the 5th Circuit. (More on Jones here... Clement here... and more on Gonzales here.)

How's that for an early, (potentially) accurate prediction outside some of the early 'short-listed' names...and if today's speculation is wrong then I'll quickly delete this post!!

Anyhow, I'm getting the following info related to Judge Clement from the Slate piece I linked to in that original O'Connor post above (here is that Slate link again):

Edith Brown Clement
Age: 57
Graduated from: Tulane Law School.
She clerked for: Judge Herbert W. Christenberry.
She used to be: a judge on the U.S. District Court, Eastern District of Louisiana.
She's now: a judge on the U.S. Court of Appeals for the 5th Circuit (appointed 2001).
Her confirmation battle: Clement doesn't provide much ammunition for opposition groups, but perhaps not much for conservatives to get excited about either. She hasn't written anything notable off the bench (or at least nothing that's come to light yet), and most of her judicial decisions have been in relatively routine and uncontroversial cases.

Civil Rights and Liberties
For a unanimous panel, allowed a plaintiff who sued the police for violating his right to due process to proceed with his claim that the officers who arrested him used excessive force when they allegedly injured him by slamming the door of their car against his head. Reversed the district court's finding that the plaintiff could also sue for unlawful arrest and excessive force involving the use of handcuffs. (Tarver v. City of Edna, 2005)

Environmental Protection and Property Rights
Voted for the 5th Circuit to rehear a decision blocking developers from building on a site where six endangered bug species lived in a cluster of limestone caves. Clement joined a dissent that argued that the decision's rationale for protecting the bugs—to preserve the interdependent web of species—bore no relationship to Congress' power to regulate interstate commerce. (GDF Realty Investments v. Norton, 2004)

Criminal Law
For a unanimous panel, rejected the claim of a man flying to Nigeria that his luggage was unlawfully searched at the border. Clement ruled broadly that customs inspectors need not have probable cause to search the bags of people who are leaving the country. (U.S. v. Odutayo, 2005)
Agreed with a unanimous panel that an asylum applicant who was 20 minutes late to a hearing because he'd taken the wrong highway exit should not have been ordered deported in absentia and was entitled to a new hearing. (Alarcon-Chavez v. Gonzales, 2005)

Habeas Corpus
Over a dissent, ruled that a death-row inmate who claimed to be mentally retarded was entitled to a lawyer to develop that claim in a habeas petition. Clement's ruling followed the Supreme Court's 2002 decision barring the execution of the mentally retarded. She followed up with a second opinion that limited the significance of her ruling by stating "this is a fact-bound case." (Hearn v. Dretke, 2004)

For a unanimous panel, reversed a decision of the district court finding that a police officer convicted of civil rights violation, for hitting a drunk suspect in the head with his baton, was entitled to a new trial because his lawyer was ineffective. The officer argued that his lawyer erred by failing to call character witnesses to rebut testimony that he'd complained about the need to control Mexicans in the United States. Clement said the rebuttal evidence would have been irrelevant because the officer was not charged with a hate crime. (U.S. v. Harris, 2005)

Damage Awards
Over a partial dissent, in reviewing a jury verdict in favor of a man whose wife and 3-year-old daughter were killed in a car crash, affirmed damage awards of $1.9 million for the man's loss of his wife and $1.5 million for the loss of his daughter. Reduced from $200,000 to $30,000 an award to the wife's estate for her pain and mental anguish before her death and eliminated a $200,000 award to the daughter's estate for her pain and mental anguish. (Vogler v. Blackmore, 2003)

UPDATE I: As always, the Supreme Court Nomination blog is all over the Judge Clement news, and they already have a tremendous amount of information over there...especially this post which is being updated as they find more to write - Rolling List of Interesting Opinions By Judge Clement. I'm not going to take the space to re-print it all, but it is a tremendous resource.


Related to this post...

Judge Edith Clement is a member of the Federalist Society...I believe its first (official) member on the Supreme Court (if she is indeed nominated and confirmed).

Nomination Imminent???

There is speculation today that Bush will name his appointment to Associate Justice of the Supreme Court within the next 48 hours - likely even today - to divert attention away from the scandal surrounding Karl Rove criminally outing the name of an undercover CIA agent.

It appears that the nominee will be Judge Edith Brown Clement of the Fith Circuit Court of Appeals.

Here is some of the speculation:
Speculation Centers on Clement for Court - WaPost
A Tale of Two Ediths - National Review Online (NRO)
The Note - ABC News
Sources: Court choice could come Tuesday - CNN

Here is some info on Judge Clement:
Confirm Them (a conservative site tracking the nomination)
Wikipedia entry
Daily KOS bio
People for the American Way commentary
Supreme Court Nomination blog's profile (from SCOTUSblog)
Edith Clement Resources (from Supreme Court Nomination blog)
The site above includes a couple of the sites I had linked, but also the following:

We'll see what happens today...

UPDATE I: Jurist - Paper Chase is reporting that Bush will announce the nomination at 9:00 pm tonight (EST - 8:00 pm CST)
UPDATE II: It's as official as it will get before 8:00 pm tonight - Sec. Specter's Staff Just Sent This Note Around The Senate

"The October 4, 2001 confirmation hearing for Edith Clement is available full text online. See S.Hrg. 107-584, Pt. 1 on GPO access [here] . This includes submissions to the record, any follow-up questions, and her questionnaire."

UPDATE III: Rather suddenly this afternoon, there is a lot of speculation that it will NOT be Judge Clement annoucned tonight. ConfirmThem (a conservative nomination blog) is saying that it is a bait-and-switch pulled by the Bush admin, and the real announcement will be of Edith Jones (also of the 5th Circuit). Judging the Future notes that Judge Michael Luttig (of the 4th Circuit) has his entire family with him at the court it is really still up in the air. ABC News is now reporting that Judge Clement is NOT the choice...

We'll see what happens tonight...

Monday, July 18, 2005

Federalist Society - at the center of conservative legal thought...

Interesting article from CNN - Society a must for conservative lawyers

Ted Olson may joke about the Federalist's "secret handshake", but in reality, the Federalist Society has very quietly become the very center of conservative legal thought. Everyone who is anyone in conservative legal circles either is a Federalist, or addresses the group.

From this article:
[The Society] now boasts a membership of more than 25,000 that includes prominent members of the Bush administration, the federal judiciary and Congress. Supreme Court justices, Cabinet members and other top Bush aides take regular turns at the society's podium.
Chances are good that the next Supreme Court justice will be either a member of the society or someone who has addressed the group.
Olson himself has been mentioned as a potential nominee. Newly confirmed appellate Judge Janice Rogers Brown, also mentioned as a possible future justice, was among those in the luncheon audience recently.
Others on President Bush's reputed short list include Federalist Society members John Roberts and Michael McConnell, both appellate court justices. Still others on the list have addressed the group, including appellate Judges J. Harvie Wilkinson, Emilio Garza, Edith Hollan Jones and Samuel Alito, and Attorney General Alberto Gonzales.
While the society has no formal role in consulting with the White House, "the reality is, given the presence of Federalist Society members within the White House counsel's office and the Bush administration, they are playing a crucial role in selecting judges and likely justices," said Erwin Chemerinsky, a liberal Duke University law professor who has addressed the group.
Georgetown University law professor Mark Tushnet wrote in his book, "A Court Divided," that Federalist Society conferences serve as "something like the out-of-town preview of a Broadway show, where ambitious conservative lawyers strut their stuff."
"Appearing at Federalist Society events is one, perhaps the most important, of the ways in which a person who wants to get known as 'reliable' and promotable makes sure that his/her name gets put on 'the list'," Tushnet said in an interview.
This is a very powerful group - although they are not widely known at all...but, let's also not forget that this group stands for...

The Federalist Society is key in the Constitution-in-Exile movement, which believes that the Constitution should be "returned" to it's pre-1930's/pre-1880's/pre-1800's (depending on whom you talk to) state. Of course, what they don't like to make to public is that this means a return to segregation, the elimination of civil rights, end of government infrastructure projects, lack of worker protections, etc.
[See some of my other comments on the Constitution-in-Exile at these posts: A bit of Reading... (the last recommendation, The Unregulated Offensive); and More on Raich...]

Many Federalist members/supporters (including Janice Rogers Brown mentioned above) support a return to Lochner. In essence, Lochner jurisprudence grants a so-called "freedom of contract" or "liberty of contract", which means that no contract can be regulated...which of course means basic civilized protections such as minimum wages, safe working conditions, child-labor laws, etc. are completely done away with. [See some of my other comments on Lochner at these posts: Just something I want to remember...; Speaking of Lochner...; On the Merits; and More on Raich...]

So, it's pretty clear that what the Federalist Society is attempting to do to the law is drag it back to the "good old days"...of course, when examined just a touch critically, it's clear those day's weren't so good.

In another post from some time ago, I mentioned how the Federalist Society has become one of the critical pieces of the right-wing's effort at control of power. In The Democrat's Problem... I said this about the Federalist's, and countering them:
[The Right] spend[s] wild amounts of money identifying young leaders, and putting them in positions of success – and targeting specific offices to challenge for and put their people in place. ... There have been some (still very limited) attempts to counter groups like the Federalist Society that identify young conservative leaders with groups like the American Constitution Society.
The American Constitution Society was founded five years ago to begin to counteract the emerging role of the Federalist Society. As I believe I've mentioned before, it's stunning to me how a group who wants to return law to it's 1870's state could be taken seriously...but not only are they taken seriously, they are, in some ways, winning. This is a time of real upsurge in extreme conservative and libertarian legal thought. It is time for people who love the Constitution and believe in the Bill of Rights to stand up and make their voice heard - lest we find some of our basic American rights truly put into exile.

Responding to a Comment...

Quick response to a Comment on this earlier post:

Bush solicts Supreme Court Advice
-Top Senate Democrats floated the names of potential candidates for the Supreme Court on Tuesday in a meeting with President Bush, describing them as the type of nominee who could avoid a fierce confirmation battle. Looks like you were too quick to criticize Bush...

I saw that story last week. It was nice of him to have that meeting. I obviously hope that it was an attempt at real dialogue, and not just a nice photo op for appearances. I guess I'd feel better if it was leaked that Bush had called key Senate leaders and discussed this with them, instead of making it a big national story which he benefits by. But maybe I'm just being too harsh. I guess we'll see if the names floated by the Senators in that meeting (Sotomayor, Prado, and Hinojosa) are taken seriously.

There are key differences, as I see it, between Bush's meeting last week and the scenario described by Orin Hatch. First, Clinton made a call - completely unpublicized, not a media-manufactured event - to the minority leader. Bush invited Senate leaders to the White House for a photo-op. Hatch delivered specific suggestions to Clinton - which turned out to be the next two (and last two) Supreme Court nominees - Ruth Bader Ginsburg and Steven Breyer. Leahy floated the names of three Hispanic candidates - Sonoia Sotomayor (2d Cir.), Ed Prado (5th Cir.) {also see}, and Ricardo Hinojosa (S. Dist. Tex.) - we will see if one or more of these suggestions will be taken seriously.

Friday, July 15, 2005

Rehnquist says he's staying...

Last evening, Chief Justice William Rehnquist issued a short statement to the media saying he has no intention of retiring right now:
I want to put to rest the speculation and unfounded rumors of my imminent retirement. I am not about to announce my retirement. I will continue to perform my duties as Chief Justice as long as my health permits.

You can get the story and a little analysis from these links:
Chief Justice to Remain on Court (SC Nomination blog)
Analysis: Rehnquist stays, no two-seat strategy (SC Nomination blog)
Rehnquist silences retirement speculation (CNN)

Thursday, July 14, 2005

Interesting summer at the Court...

AP's Gina Holland (a regular Supreme Court reporter) reports that Chief Justice Rehnquist's hospitaliztion increases speculation about his potential retirement - Speculation at a fever pitch over Rehnquist.

But, whether it's just a time for rumors, or whether it's reality, there are rumors swirling about the Court this summer. J. O'Connor has already announced, due to the Chief's health, an announcement is still expected from him...but, there is also speculation about other justices. Here, Professor Stephen Bainbridge (corporate law professor at UCLA and author of says that he has it from a reliable source that Justice Stevens will resign if the Chief decides to go. In addition to that, there are must less reliable rumors that Justice Ginsburg has been struggling with her health and may be considering retirement this summer. Stevens is 85, Ginsburg is 72.

I still find it unlikely that either J. Stevens or J. Ginsburg would retire under Bush, the rationalization is interesting - that if Bush were given four vacancies that he would be forced to offer up one or potentially two moderate justices. I don't know, I'm not buying it. But all of these rumors really do bring up the age of this Court, a Court that remained intact for 11 terms.

Rehnquist - 80 (on Court since 1971; Chief in 1986)
Stevens - 85 (1975)
O'Connor - 75 (1981; retired this summer)
Scalia - 69 (1986)
Kennedy - 69 this summer (1988)
Souter - 65 (1990)
Thomas - 57 (1991)
Ginsburg - 72 (1993)
Breyer - 68 this summer (1994)

So - let's make the assumption that CJ Rehnquist joins J. O'Connor in retirement this summer, but that no other justice retires before the next election. By the end of the first term of Bush's successor (six years from now) you would have to expect that J. Stevens and Ginsburg would be gone by that time, but you'd also have Scalia, Kennedy, and Breyer in their mid-70s and Souter in his early 70s. It's not unimagineable that if Bush only gets two appointments the next President may get 5 or maybe 6. (Assuming that Thomas remains healthy, I would suggest that he would easily be healthy, and frankly in the prime of his career in Supreme Court terms, even if the next President were to serve two terms.)

That's a lot of responsibility.

Wednesday, July 13, 2005

Monday, July 11, 2005

Is Rehnquist Next?

Two Front War

Slate is saying that Robert Novak (the same man who outed an undercover CIA agent for entirely policical motives at the behest of Karl Rove) is saying that the retirement of the Chief Justice is imminent.

SCOTUSblog's Supreme Court Nomination Blog is downplaying those rumors here.

Friday, July 08, 2005

A departure from, or reversion to, history?

An interesting piece of Supreme Court history in this David Greenberg article, The Judge Wars. It would probably be best to just quote the whole thing, but here are a few interesting excerpts:

The Senate of the 19th century was no rubber stamp. The politics of that period are known for their partisanship, and the judicial wars were no exception. Between 1789 and 1894, 22 of 81 Supreme Court nominees failed to reach the bench as a result of being either rejected, withdrawn, or left unacted upon by the Senate.The first Supreme Court nomination battle came in 1795, when George Washington chose John Rutledge as chief justice. When John Jay resigned in July 1795, Washington named Rutledge to succeed him using a recess appointment. But when it came time to confirm him, the Senate, although dominated by Federalists loyal to the president, refused to do so...
Many of Washington's successors... faced similar defeats. Andrew Jackson, for example, failed to win the appointment of his longtime associate Roger B. Taney in 1835... (Jackson successfully renominated Taney the following year.)
And so it went for the remainder of the century. John Tyler was thwarted by the Senate no fewer than five times. Nominees of Presidents Polk, Buchanan, Johnson, Grant, and Hayes all met significant resistance. Toward the end of the century, Grover Cleveland saw two nominees go down to defeat and a third insist his name be withdrawn before finally securing the appointment of his fourth choice, Edward White, to the bench.

From 1894 to 1968, the Senate rejected just one nominee, John J. Parker in 1930. Throughout these years, presidents enjoyed a relative free hand in making their choices—so much so that the Senate's more recent reassertion of its constitutional prerogative still strikes many contemporary observers as a departure from, rather than a reversion to, the typical historical pattern.

Only in the 1960s and early '70s did presidents begin to feel their autonomy again restrained. ... In 1967, Southern Democrats tried unsuccessfully to keep Lyndon Johnson from naming Thurgood Marshall to the court. Although Marshall's confirmation was never seriously in doubt, the passions raised during his hearings simmered.

The next year, Southern Democrats joined with Republicans to successfully filibuster Johnson's nomination of Abe Fortas, then an associate justice, to become chief justice. Johnson's other appointee at the time, Homer Thornberry (who had been poised to take Fortas' associate justice seat) was also kept off the bench.

But when Fortas resigned from the bench in 1969, Nixon saw two of his nominees to fill the seat—Clement Haynsworth and G. Harrold Carswell—defiantly rejected. William Rehnquist, nominated for yet another vacancy the next year, endured intense scrutiny... Although he was confirmed, 26 Senators voted against him after protracted hearings.

But the decision to make Rehnquist chief justice in 1986 was divisive; seven more senators voted against his elevation than had opposed his initial appointment. The Bork nomination followed the next year, followed by the 1990 skirmish over David Souter and the 1991 donnybrook over Clarence Thomas. Thus, even though Bill Clinton steered clear of fights by vetting his Supreme Court choices with Republican leaders beforehand, his aversion to conflict didn't really change the broader post-Fortas pattern: Almost every vacancy that has arisen in the last 38 years has given rise to ideological jockeying if not outright combat.

So, history, as always, is a guide, and it tells us that this experience may not be all that aberational. I think that we always like to believe that what ever we are going through at the time is always either the best or worst it's ever been. In reality, it's just another part of the cycle. The nomination process will be interesting, but maybe not all that unusual.

Thursday, July 07, 2005

Everybody's got a shortlist...

This is a really good "alternate" shortlist of potential conservative nominees for associate justice of the Supreme Court. What makes this list interesting is that these are "old-school" legal conservatives - as opposed to partisan political neo-con jurists.

A Different Shortlist: How about an old-style conservative Supreme Court nominee?

I really like the inclusion of Judge Posner. Bush would not touch him with a 40 foot pole, but he would be a really interesting is the Becker-Posner about intellectual heavy-weights!

Design by Committee

Slate's architecture critic (Witold Rybczynski) weighs in on the new Freedom Tower design.

The latest version of the Freedom Tower is the best yet.

The tower now has a square footprint (set well back from the street), and a graceful, tapering shape. The gimmicky open-air structure at the top of the tower (which was to have housed wind turbines, of all things) is gone, too. What Childs has produced instead is a simple obelisk, an appropriate shape for a building that is, at least in part, a memorial.
I do not agree with this. I noted earlier that I think that this new design is clunky and anything but graceful...but I'm certainly no critic.

Original Winning Libskind Design:

Compromise Libskind/Childs Design

New Childs Design

See my earlier Freedom Tower posts:
The (all new) Freedom Tower unveiled...
Addition to NY Skyline put on Hold

Wednesday, July 06, 2005

It's not as bad a slump as it appears...'s worse. The Vanishing Box Office: A terminal condition

Slate columnist Edward Jay Epstein has more comments related to the 19th straight weekend of declining box office receipts (year over year). And this is during a stretch when you had the final Star Wars release, the reemergence of the Batman franchise, and Steven Spielberg and Tom Cruise pairing up for a remake of War of the Worlds. Those are big time summer blockbusters, yet the industry is in a historically long slide.

Or maybe not. Epstein points out at least two interesting facts in this article, one positive and one negative for Hollywood. First, the big boys are doing fine:
Despite the weekly chorus of doom about the decline of the Hollywood box office, the six major studios—Paramount, Warner Bros., 20th Century Fox, Disney, Universal, and Sony—actually took in more money from their movies in the first half of 2005 than they did in the same period in 2004. These studios (and their subsidiaries) earned $3.2 billion at the box office from Jan. 1 to June 30 in 2005 as opposed to $2.7 billion the previous year (click here for a table). To be sure, there as a 7 percent decline in overall U.S. ticket receipts, but the loss came mainly at the expense of independent distributors and studioless studios, which account for more than half of the films released in the United States. So, even though fewer Americans went to the movies in 2005, the big studios did not lose out.

Interesting - the majors are making their money, so the dips are hurting the independents more. I would not have thought that...if anything I would have assumed the opposite. But, that does not mean that all is well - the long-term decline is precipitous:
In 1948, when home TV was still a rarity, theaters sold 4.6 billion tickets. By 1958, TV had penetrated most American homes, and theaters sold only 2 billion tickets. The Hollywood studios tried to counter television with widescreen (CinemaScope), noisier (surround sound), and more visually exciting (special effects) movies, but technology did nothing to stem the mass defections. ... Even the much-heralded fantasy bonanzas of Spielberg and Lucas could not halt the decline. By 1988, ticket sales hovered at 1 billion.

So the long-term trend still seems to be away from the "theatre experience" and toward the "home-theatre experience." (Although we have seen some empirical evidence suggesting that those investing in the home-theatre experience are also spending more money at the box office than those who don't.) There can be no doubt that there are many variables that are affecting the declining numbers, but two that simply cannot be ignored are more variety of entertainment options (this article alludes to the correlation between the mass spread of television and the decline of movie-going) and also simply a lower quality of entertainment in the theatres. In any event, the studio's themselves will continue to do fine, because they are still the conduit into the home-theatres as well as the stadium theatres...the question in my mind becomes what happens to the large movie theatre chain corporations?

For more perspective from the Houston Chronicle click here - Rude people, high prices costing movie theaters.

Also, see my previous posts on the movie business:
Home Movies...
Post-Easy Riders and Raging Bulls...
Dumb Money...
Gross Misunderstanding

Tuesday, July 05, 2005

Which of these scenario's makes sense?

Very interesting find from Think Progress a few days ago. Here is a post in which they look at a portion of the autobiography of Sen. Orin Hatch (R - UT) in which he discusses the way President Bill Clinton treated the minority Republicans in the Senate when an associate justice position opened up for a Democratic President for the first time since Lyndon Johnson. Here are Hatch's comments:
[It] was not a surprise when the President called to talk about the appointment and what he was thinking of doing.
President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.
I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.
Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.
I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.
In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.

Compare and contrast how diplomatically President Clinton worked with the minority in the Senate to find compromise candidates who were highly qualified and would achieve confirmation with ease (Ginsburg: 97-3; Breyer: 87-9) - with how President Bush has decided to freeze the minority Senate Democrats out of the process entirely (at least to this point). Although Senators on both sides have urged the White House to extensively consult with the Senate prior to nomination, Bush refuses to do so.

What Bush's tactic will breed is a knock-down drag-out fight - it is likely to be very ugly. And it is reasonably likely if he nominates an ideologue that the vote will end up in the range of 56-44 - divisive, bitter, and harmful (which, by the way, are three words that describe much of Bush's governing). A simply phone call, consultation, and good-faith effort could lead to a 85-15 confirmation which a qualified Supreme Court justice deserves.

Which scenario makes more sense?

(Hat Tip to ACSblog)

Interesting O'Connor perspectives...

Slate has a interesting series of perspectives by several of their legal columnists here. These comments are from Emily Bazelon (Slate senior editor), Oona A. Hathaway (associate professor of law at Yale Law School and a former law clerk to Justice Sandra Day O'Connor), and Dahlia Lithwick (Slate senior editor) respectively.

What I find most intersting about these peices is their inclusion of importance of the non-legal Ms. Justice O'Connor. I think that often, when we think about a jurist's legacy, oftentimes their non-legal lives gets lost or glossed-over. But in the case of J. O'Connor, we need to remember the tremendous impact she's had on the legal and public landscape far beyond the words of her opinions. Quoting Lithwick:
At the risk of waxing personal for a moment, I offer one thought about what O'Connor means to me: Perhaps it's because I write this while officially out on maternity leave—rocking my infant son in his bouncy chair under my desk as I type—but to me, O'Connor truly models the feminist dream. She managed to "have it all" simply by being braver than everyone else—trusting that she could drop out of the workforce to raise three boys and come back to a good job—and by showing a kind of relentless focus that most women of our generation have not yet mastered. It seems to me that when she was a mother, she was fully a mother; when she was a politician, she was fully a politician; and when she was a jurist, she was fully a jurist. And now she's most likely keeping her promise to spend more time with her family. Good for her. She has earned it.

Going to the mat...

The Republican party is out of touch with America. Sure, they sell their product well, manipulate well, and scare well - and that wins them lots of elections. But that does not mean that as a party they care about the things America cares for.

This morning, as I'm getting ready for work, I'm listening to this NPR story about how Republicans are taking forward legislation to strip all responsibility for inventory management, etc., from gun dealers. They interview Republican lawmakers about how important this is, and how they are going to fight for this roll-back of control over gun dealers. (FYI - this is not an issue of suing manufacturers of guns...this is about asking gun dealers to take close control over their inventory, and if they "lose" large quantities of guns, they can be held responsible - this is simply about gun dealers complying with laws on the books.)

That got me thinking about just how out of touch the Republican party is. Sure, I understand that gun rights are very important to a significant portion of the public, and a more significant bloc of conservative voters. That's not the issue here though - this has nothing to do with the right to buy, own, or use a weapon. And yet, this is the sort of an issue that the Republicans are willing to go to the mat on - fight it out tooth and nail.

So, then I start thinking about what issues the Republicans have been willing to go to the mat on over the last six years...and the list is not exactly America friendly:
~Tax cuts for the wealthiest echelon
~Elimination of taxes on dividends
~A partial-birth abortion ban which was stayed less than an hour after being passed
~Constitutional amendment to ban flag burning
~Giving police the power to search library records
~Keeping police from tracking domestic gun sales to terrorists
~Protecting global energy companies from liability for the MTBE pollutants they dump

So, while we've been at war, while the economy has attempted to recover from recession, while there have been serious questions about domestic safety - these are the things that the Republican party has been willing to fight for...not things that help average Americans like you or me, but things that help their base - the wealthy elite, deep pocketed special-interest groups, and large global corporations. It is almost unbelievable that a political party with this as their record over six years can maintain such a stranglehold on power. It is an absolute tribute to their marketing (read: fear-mongering) prowess.

The Republican party does not stand for least not for 98.5% of America. They do, however, manage to fool 50% of America. And that's all it takes to stay in power...

Friday, July 01, 2005

Justice O'Connor Retires

A resignation was expected...and Justice O'Connor was rumored, but this still comes as a bit of a surprise.

NPR's report here.

Bush Admin has got to regroup REALLY quickly, I would assume. They are going to have to turn their search for a Chief replacement (and a hard-line conservative which they could have pushed to replace Rehnquist) to an O'Connor replacement. That will potentially entail another woman (no women had made the original short-list - see that list here), or more of a moderate.

This move likely favors Alberto Gonzales and also Edith Jones and Edith Clement, both of the 5th Circuit. (More on Jones here... Clement here... and more on Gonzales here.)

More to come.

UPDATE: The Washington Post already has a good article up - click here.

The war effort at home...

NPR ran a really good piece on the domestic 'war effort'...of if there really is one. From Morning Edition - they just went out and interviewed visitors to the World War II memorial and Vietnam War memorial in Washington D.C.

The visitors - a real cross-section including WWII vets, Vietnam vets, familes of soldiers currently in Iraq, and just regular American citizens - share their impressions of the war effort domestically - if there is any real sacrificing for the war these days.

Very touching...

You can listen to the show here at the story's site from NPR. Hear more at