Hirbod's Musings

Some dabbling in non-legal/political writing

2010-12-01T14:49:00.000-08:00

With loving car
Bike, April 2010, at 36 (British motorcycle magazine)

I have noticed that car drivers here in the United States are also becoming more aware of motorbikes (Bike, January 2010) and often pull to the side to give us more room. It must have quite a bit to do with bikes becoming more mainstream now. Add to that the fact that most bikes here are sold to those whose primary source of transportation is a car and you will notice greater co-existence. So I am willing to bet many of those we see pulling over to give us room to pass are riders themselves. Add to that a dose of monkey-see-monkey-do from other drivers and the nunbers will increase. And they will continue to rise if we continue to acknowledge them by a simple wave, nod of the head..... [so long as it is safe to do so, of course!]

...

More than a Pretty Face
Cycle News, April 21, 2010, at 4

Nicky Hayden's great (almost podium finish!) performance in Qatar confirms that he remains a great rider and not just a pretty face. Kudos to Ducati for sticking with him.

Also, as a Gixxer rider and lover of all things Suzuki, I would be remiss if I did not mention how much I love the new Team Rizla colors -- courtesy of Troy Lee Designs. I cannot wait to see the new colors on their policewomen umbrella girls.

...

Letter From America
Visor Down, May 2010, at 25 (British motorcycle magazine)

The interview with James May reminded me of my very first episode of Top Gear. It was the "Vietnam" episode that got me hooked on the show. It was about these three British guys....

More recently they did a show featuring the bike on every collector's short list: a Vincent Black Shodow (ridden by Hammond).

Clearly both Hammond and May are quite enthusiastic about motorbikes. Though May asserts that motorbikes will not be a regular part of Top Gear, I hope they continue to at least throw us a bone from time-to-time.

...

Past Darkly
Metal Hammer, Oct. 2010, at 30 (British music magazine)

I'm a U.S. Maiden fan who bought their albums post-Nirvana and I'd enjoy either a nostalgia act or music of the past 10 years when they tour. Nevertheless, I don't understand why Maiden cannot continue to tour the way they did in the past: play the best songs from their catalogue and throw in new songs to promote the new album. The way they do it now has a paternalistic feel to it.

[Metal Hammer editors think it is because "[a]lternating tours means they play more often per album."]

Chemerinsky now dislikes filibusters?

2010-12-01T14:28:00.000-08:00

There is Existing History of Filibusters Against Supreme Court Nominees
Los Angeles Daily Journal, May 21, 2010, at 7

Erwin Chemrinsky -- legal scholar turned liberal talking head -- again is trying to use his soapbox to mislead and re-write history. In his most recent [Daily Journal] opinion piece (Kagan Commentary Misses the Point, May 19, 2010) he writes, "[t]here is almost no history of filibusters against Supreme Court nominees. Forty-eight Democrats voted against Clarence Thomas and 42 against Samuel Alito Jr., but these are not filibusters." What he fails to mention (as I am sure he remembers) is that then-Senator Barack Obama and practically all other Democratic presidential contenders voted to filibuster Alito; they simply did not have enough votes to succeed. Their failure was in part thanks to the so-called "gang of 14" which compromised the standstill between the unprecedented number of filibusters against lower court judicial nominees (Charles Pickering Sr., Janice Rogers Brown, Priscilla Owens, Miguel Estrada, etc.) and the Republican threat of the "nuclear option" to do away with filibusters (at least vis-à-vis judicial appointments). It was for this reason that Alito (and possibly Chief Justice John G. Roberts) was not filibustered (they did not have enough votes).

As can be seen on this exchange between Chemerinsky and a questioner, posted on the Washington Post website, Chemerinsky was in favor of the filibuster of Alito (and other judicial nominees):

Fairfax, Va.: I have always thought that the Gang of 14 "Compromise" was really a total cave-in by the Democrats wherein they agreed to eviscerate the filibuster rather than fight for it. What is your opinion about that agreement?

Erwin Chemerinsky: The filibuster has existed throughout American history. The effort by Republican Senators to eliminate it was power politics pure and simple. I am not sure why Democrats went along with the compromise unless they felt that they did not have the votes to keep the filibuster and it was the best they could do.

However, now that the tables have turned, "there is almost no history of filibuster of Supreme Court nominees." Then again, maybe he was capturing the existing history by saying there is "almost" no history of such a thing.

Uncle Napoleon recognized in the U.S.

2010-11-30T20:44:00.000-08:00

Crying Uncle in Iran?
Time, July 20, 2009, at 14.

I was pleasantly surprised to read Joe Klein's reference to Uncle Napoleons--elder Iranians who blame everything that happens in the world on Britain [July 6]. His comment that "the U.S. has supplanted Britain as the Great Satan," however, missed the mark. One of the great achievements of Britain, according to Uncle Napoleons, is that it has fooled the world into believing it no longer wields that much power, while in fact the U.S. is nothing more than Britain's attack dog. Try to convince them otherwise and they will treat you as the most naive individual.

First Annual Justice Gabbert Oral Argument Series

2009-12-08T10:43:00.001-08:00

Korematsu v. United States -- Oral Argument Reenactment
Riverside Lawyer, Oct. 2009, at 24.

On August 12, 2009, to mark the 65th anniversary of Korematsu v. United States, 323 U.S. 214 (1944), the Fourth Appellate District, Division Two, of the Court of Appeal (in Riverside) hosted a reenactment of the oral argument in that infamous case followed by the reading of the decision by the Justices of the same court. The event marked the “Inaugural Justice John C. Gabbert Historic Oral Argument Series.”

Representing Fred Korematsu was Dean Erwin Chemerinsky of the UC Irvine School of Law. And Dean John C. Eastman of Chapman University School of Law represented the United States.

As the two learned counsel were entering the courtroom, as told by Presiding Justice Manuel Ramirez, Chemerinsky told Eastman “I think you are going to win this one.” Eastman agreed. However, without missing a beat Chemerinsky observed “[then again] maybe they’ll get it right this time.” Unfortunately the script had already been written.

Korematsu, of course, deals with one of the most shameful episodes in our history where thousands of Japanese-Americans were rounded up and sent to interment camps out of fear that their loyalty to the Emperor of Japan may lead to acts of sabotage on the west coast of the United States. Fred Korematsu refused to report to his assigned relocation camp and was subsequently convicted for violating that order. Represented by the ACLU, he fought the conviction all the way up to the United States Supreme Court. In a 6-3 decision the Justices affirmed his conviction.

Appropriately, before starting his “opening argument,” Chemerinsky started by paying homage to Judge Robert Takasugi who passed away recently after a long battle with cancer. Coincidently, his memorial service was being held on the same afternoon as this event in Los Angeles. A 35 year veteran of the Federal bench, Takagugi at the age of 11, along with the rest of his family, had been relocated to Tule Lake. According to news reports, his father actually died there. I was hoping Takasugi would at least be mentioned, and Chemerinsky (a fixture of the Los Angeles legal community himself) did a great job in the small amount of time he was given.

The arguments were apparently a summary of those made at the Supreme Court. Both Chemerinsky and Eastman presented their cases with a degree of levity and a very live bench (the Justices were joined by retired Justice John C. Gabbert who had just turned 100) made for an interesting afternoon.

One amusing occasion had Presiding Justice Ramirez asking how the case can be reconciled with Ex Parte Endo, 323 U.S. 283 (1944). Chemerinsky, a giant of Constitutional Law jurisprudence, without a pause, distinguished the case “assuming we had a time machine.” Ramirez’s faux pas (and Chemerinsky’s quick catch) was that he had forgotten that Korematsu and Endo were argued on the same date and that, as you can see by the pagination of the opinions, Endo was actually decided after Korematsu.

The reading of the decisions (including Justice Robert Jackson’s famous dissent) was followed by some personal histories from the daughter of Fred Korematsu – Karen Korematsu-Haigh— and Judge Ben T. Kayashima of the San Bernardino Superior Court who had been interned near Parker, Arizona, in 1942. It was interesting to learn that Karen Korematsu did not know of his father’s legacy until a civics course in High School.

Chemerinsky and Eastman took to the podium again towards the end of the program in a section captioned “Korematsu to Hamdi – Historical Perspective.” Chemerinsky, of course, had to take the opportunity to once again use his soap box to rail against all of the policies of George Bush including Guantanamo Bay and its detainees; he represents one such detainee. I more than most, especially being an Iranian-American living in post-9/11 United States, fear that we may not have learned from our past mistakes (Korematsu is technically still good law!). Nevertheless, I cannot disagree with Eastman’s concluding remarks that our “Constitution is not a suicide pact” and that although our laws don’t change during wartime our definition of “reasonableness” does (hence affecting civil liberties).

In his final remarks, Justice Ramirez likewise paid his respects to Judge Takasugi – the “first Japanese-American named to the Federal Bench” – and thanked him for his 35 years of judicial service to the United States. In short, this was a great event and I cannot wait to see what the “Second Justice John G. Gabbert Historic Oral Argument Series” has in store for us.

[This is a longer unedited version. For the edited published version, please click here).

Summary of California Child Support & Paternity Law

2009-12-08T10:30:00.000-08:00

Child Support Cliff Notes Allow Everyone to be on Same Playing Field
Riverside Lawyer, Sept. 2009, at 11 (with Natalie Metzger)

Opposing counsel had a surprise for me at the hearing.
Though we are good friends, he wouldn’t tell me what he
was up to and wanted to unveil his “surprise” at the hearing.
Finally, before the family law commissioner, he pulled
out a copy of the Child Support Attorney Sourcebook
(Sourcebook) and started arguing that “their own practice
guide” mandates that his client prevail. I guess his “surprise”
was that he had managed to get a copy of the book.

For a number of years, the Child Support Directors
Association (CSDA) has been publishing a number of
practice guides to assist those practicing in the area of
child support and related paternity law. In addition to the
Sourcebook, the CSDA publishes Cases of Interest to Child
Support Attorneys and the Interstate Sourcebook.

Though these books have always been available for sale
to the public, the CSDA never really solicited the private
bar until recently. Last year, for example, while almost
500 copies were sold to the courts and family law facilitators,
only 53 were sold to the private bar. We are hoping
to increase that number and also to send a message that
these practice guides are readily available to the private
bar (and pro per litigants, for that matter).

I joined the CSDA’s publication committee in 2006 as a
contributing editor and have been serving in that capacity
since then. While the CSDA is a nonprofit organization
with a few paid staff, the publication committee operates
on a completely volunteer basis; i.e., neither I nor any of
my fellow editors get paid to work on these publications.

The Sourcebook, which I would call our flagship
publication, is a pocket book (small enough to fit inside a
jacket pocket or a small purse) designed as a quick reference
guide for use in court. Cases of Interest, on the other
hand, is meant to be a collection of case briefs that can (1)
quickly refresh your mind with the central holding of a
case, and (2) refer you to the citation and related authority
(including cases that have distinguished it and any splits
in authority). Finally, the Interstate Sourcebook is a collection
of case briefs and related authority from across
the nation dealing with the very specific area of interstate
enforcement of child support orders, including, but not
limited to, issues arising under the Uniform Interstate
Family Support Act (UIFSA). Like all reference guides,
these are all secondary sources designed to help refer you
to the primary source (case, statutory, or administrative
law) and its citation.

The reason I describe the Sourcebook as our flagship
publication is because it is the one that attorneys would
more likely use on a daily basis; in addition to its size, it is
designed to be a quick reference guide on all sources of law
dealing with child support. Especially for those just starting
to handle cases in this highly specialized area, it could
serve as an invaluable source. The book is divided into
16 major sections: Establishment and Civil Procedure in
IV D cases, Parentage, Support, Enforcement/Collections,
Relief from Judgment, Contempt/Criminal Enforcement,
Bankruptcy, Workers’ Compensation, Collections from
Estates and Trusts, Real Property Liens, Analyzing Tax
Returns, UIFSA and Registration of Foreign Orders,
Evidence, Objections, Miscellaneous Provisions, and
Internet Sources. Each section is divided into smaller sections
and fully indexed (including a “Table of Cases” and
“Table of Statutes”). Cases of Interest and the Interstate
Sourcebook are similarly organized.

In short, these books serve as an invaluable resource
for both experienced and novice practitioners of child support
(and paternity) law. They are also reasonably priced,
at $60 per publication and $20 for the 2009 Interstate
Sourcebook Supplement. For more information about
these publications or to place an order, please visit www.
csdaca.org.

As to my friend and his “surprise,” he lost the case
because he committed a cardinal sin of legal research:
relying on an older version of the book, he failed to look at
the primary sources (case law and related statutes) governing
the set-aside of judgments. No matter how good the
publication, secondary sources are never a substitute for
the primary source.

Defending Jack Bauer of Jurisprudence

2009-03-11T18:16:00.000-07:00

Yoo kept us safe
Orange County Register, March 6, 2009, at Local 17

I find it disgusting that someone who has dedicated a great portion of his professional life to public service – having served in all three branches of government – now has to worry about the same government possibly coming after him with criminal charges for nothing more than political expediency ["Man behind the memos," Front Page, March 4].

George Bush did at least three things right: two of them sit on the U.S. Supreme Court today, and the third is that he kept us safe after 9/11. Much of the praise for the latter achievement belongs to the likes of John Yoo.

"Unitary Executive" and the Constitution

2009-01-09T22:54:00.000-08:00

Los Angeles Daily Journal, Jan. 8, 2009, at 6

Unitary executive" is one of the most misused phrases of the past eight years ("Obama Faces Key Tests on Executive Power," Dec. 26, 2008). For example, recently, Vice President-elect Joseph Biden got it wrong by defining it as "meaning that in time of war essentially all power, you know, goes to the executive." This is especially bad given the fact that Biden fancies himself a constitutional scholar; periodically teaching a seminar on the subject at Widener School of Law.

Justice Antonin Scalia's famous dissent in Morrison v. Olson, 487 U.S. 654 (1988), is probably the best interpretation of the theory, which holds that executive power lies with the president, and that no "person whose actions are not fully with the supervision and control" of the president can seize it. The issue in Morrison was the law that provided for the appointment of an independent counsel. More specifically, the court faced the question of whether, via a statute, Congress can create an executive office that is not under the direct control of the president. Scalia was vindicated on this subject when Congress refused to renew the statute after the Clinton-Lewinsky fiasco and allegations of overreaching by Kenneth Starr. Or as Justice Samuel Alito pointed out in his confirmation hearings, "all federal executive power is vested by the Constitution in the president." Insofar as some may think that the "unitary executive" theory stands for the proposition that the president is above constitutionally enacted laws, as I think Biden does (at least during wartime), they are certainly in the minority.

The first line of Article II of the U.S. Constitution states, "The executive power shall be vested in a President of the United States of America." Does "the executive power" mean "all" of the executive power or just "some"? Compare that with the more limiting language of Article I: "All legislative powers herein granted shall be vested in a Congress of the United States." There is a difference, and it appears the Founding Fathers knew how to go about limiting powers when they wanted to do so.

To the extent that Congress wants to limit this power, it will need a constitutional amendment.

Media's liberal bias revisited

2008-10-10T09:59:00.000-07:00

The Art of the Campaign
Time, Oct. 13, 2008, at 13.

Joe Klein claims there is little "moral equivalency" between McCain's brand of lying and Obama's, with the former's ranging anywhere from the "annoying to the sleazy" [Sept. 29]. And Klein could think of only one instance when Obama crossed the line (though never calling it a lie), whereas McCain has turned it into an art form. Absent from the list of Obama's "lies" is his declaration that McCain actually is O.K. with the war in Iraq continuing for 100 years if need be. That pronouncement far exceeds any exaggerations from the McCain camp.

The media's love affair with Obama is well documented. Nevertheless, TIME magazine should at least attempt objectivity.

Why Iran will not attack Israel

2008-09-24T22:41:00.000-07:00

No attack on Israel
Washington Times, Sept. 24, 2008 at A22.

We are almost always in agreement with Thomas Sowell ("Idols and Crowds," Web, Commentary, Saturday). However, his views on the possibility of Iran attacking Israel are misplaced for the following reasons:

1) Islam's third-holiest site - the al-Aqsa Mosque, including the Dome of the Rock - is in Jerusalem, and therefore, Iran would not seek its destruction. Remember that the entire country of Israel is smaller than New Jersey. Even a nuclear bomb dropped on Haifa - the biggest city in northern Israel - would mean disaster for Jerusalem; 2) A nuclear attack by Iran would mean nuclear retaliation by Israel, the United States and its allies; 3) Iran has yet to pre-emptively attack another nation.

So, contrary to the rhetoric, Iran will not attack Israel, with or without nuclear weapons.

Reminded of Harrison Bergeron

2008-07-25T19:10:00.000-07:00

Canvassing Fairness
Washington Times, July 22, 2008, at 24.

If the Fairness Doctrine ("Keep free speech free," Editorial, July 11) makes it onto President Bush's desk for signature, he should sign it immediately. With Sen. Barack Obama raising more money and spending more on advertising, this will give Sen. John McCain an opportunity to rebut everything via a commercial of his own - even if he cannot afford it. That is only "fair," after all.

I am sure this government-mandated "Air America" will be as popular as the original and destined to the same fate.

More on Executive Power

2008-07-25T19:02:00.000-07:00

Who Decides Whether We Go to War
Washington Post, July 15, 2008, at A18

Discussing the War Powers Act, David S. Broder wrote that "its constitutionality is suspect." Many constitutional scholars share that view. Nevertheless, Mr. Broder supports the War Powers Consultation Act proposed by former secretaries of state James A. Baker III and Warren Christopher. It is not entirely clear, however, why the president can be forced to "consult" with Congress with regards to executive decisions but cannot be bound by Congress's time limits.

Congress already has the power of the purse, and that is more than any piece of legislation could offer it.

Assisted Suicide

2008-06-29T15:22:00.000-07:00

Caution on right to die
Los Angeles Times, June 28, 2008, at M2.

Re "A personal battle over right to die," June 22

If the issue of assisted suicide was simply about autonomy, personal choice and respect, then it would be an easy call: Let the terminally ill die with dignity. Unfortunately, other influences could affect this choice.

Insurance companies could have an incentive to "assist" terminally ill patients end their suffering. It is no doubt cheaper to prescribe a lethal dose of barbiturates than to manage a patient's suffering for months or years. Also, there could be self-imposed pressure to "choose" death to reduce the financial burden and, possibly, maximize inheritance.

Any assisted-suicide law must be carefully drafted to minimize the risk of outside influence.

Passport release article revisited

2008-06-23T11:11:00.000-07:00

Passport Release
Riverside Lawyer, July 2008, at 10.

An updated version of my "expert advice" column, "No Pay, No International Play," originally published in California Lawyer magazine in Sept. 2005, was published in this month's Riverside Lawyer. In addition to updating the article, I also included an insert discussing other changes to federal law affecting child support.

Here is the full text of the insert:

Recent Changes to Federal Laws
Servicemembers Civil Relief Act – Servicemembers who enter active duty status may be eligible to have the interest on their pre-active duty debt reduced to 6 percent. 50 App. U.S.C. § 527 (see also Cal.Fam.Code §§ 3651(c)(4) (“ . . . no interest shall accrue on that amount of a child support obligation that would not have become due and owing if the activated service member modified his or her support order upon activation to reflect the change in income due to activation”), 3653 (court has discretion to consider activation date in setting commencement date of any modification), 17440, 17560(f)(1)(B)(client should be referred to the local child support agency for a compromise if welfare arrears owing are “as a result a decrease in income when an obligor” entered active duty).

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 – The automatic stay no longer applies to collection of “domestic support orders” for cases filed on or after October 17, 2005. 11 U.S.C. § 362(b).

Citation to unpublished decisions – Federal Rule of Appellate Procedure 32.1 has been amended to require all federal appeals courts (and presumably district courts) to allow citation to their own unpublished (or nonprecedential) opinions issued on or after January 1, 2007. Limitations: only opinions issued on or after January 1, 2007 can be cited and, practically speaking, they are still non-precedential, i.e., one would only cite such a case in the absence of a published opinion on point.

Judges' Role

2008-05-04T14:46:00.000-07:00

Death Ruling Reveals Differing Views on the Role of Judges
Los Angeles Daily Journal, May 1, 2008, at 6.

In the weeks leading to the Supreme Court's decision in Baze v. Rees, 553 U.S. __ (2008), the ABA Journal quoted attorney Thomas Goldstein, who said that the current round of litigation over the death penalty - dealing with the constitutionality of lethal injection as administered - "doesn't advance the goal of abolition one inch." I criticized this statement as "at best naive" (and likely dishonest).

My response, which to its credit, the ABA Journal published, asserted that "[o]ne of the main arguments for doing away with the death penalty is the cost associated with it. The cost has nothing to do with the actual administration, i.e., serving the three-drug cocktail, and has everything to do with dragging the process out and therefore raising the cost of litigation. In that sense, this round has everything to do with abolishing the death penalty.

"Furthermore, to those advancing this cause, every delay is seen as a victory. The ultimate goal is to frustrate the proponents of the death penalty into submission, declaring such nonsense that we 'shall no longer tinker with the machinery of death.'"

Recently the court finally, and not surprisingly, ruled that the current three-drug cocktail protocol in administering the death penalty is constitutional. Chief Justice John G. Roberts' plurality opinion observed that the Eighth "Amendment prohibits ... wanton exposure to 'objectively intolerable risk,' not simply the possibility of pain." He further observed that we couldn't have the death penalty with no way of administering it.

What was interesting about the case, however, with the multiple opinions, was how the justices see their roles as judges. And at least one justice, John Paul Stevens, may indeed no longer be willing to "tinker with the machinery of death."

For the most part, it seemed the discussion dealing with the proper role of the judiciary was a response to Stevens' condescending concurring opinion in which he observed that the decision by the people, through their representatives, to retain the death penalty is "the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty." Stevens further thinks it is the judiciary's province to reexamine the question of whether it is "time to Kill the Death Penalty ... The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived." He then concluded "that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

What was surprising, and perhaps out of line, about Stevens' opinion was basically his call to "Kill the Death Penalty" in a case where that issue had not been raised.

Justice Antonin Scalia, joined by Justice Clarence Thomas, submitted a concurring opinion, simply to provide a "needed response to Justice Stevens' separate opinion." According to Scalia, Stevens' "conclusion is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than the courts to decide what makes significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice."
Similarly, Roberts' opinion, joined by Justices Anthony Kennedy and Samuel Alito, recognizes the limitations placed on the powers of the judiciary. "Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures - a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death." Implicit in so holding, the chief justice also recognizes that these endless rounds of litigation, dragging out these cases, needs to end.

Stevens makes another subjective judgment call that some may take issue with. He declares, as chief moralist, that "[i]t is unseemly - to say the least - that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets." Now he seems to be declaring society cannot even place greater value and hence show more compassion for our pets versus convicted murderers. Somehow, it would be "unseemly" to treat the former better than the latter.

The timing for this discussion could not have been better. With the election season looming, we have to decide what kind of judges we want nominated by the next president (even though that decision may be considered by some a "product of habit and inattention" at best, and "unseemly" at worst). Sen. John McCain has already promised to appoint judges in the mold of Roberts. I would be curious to see who Sens. Hillary Clinton and Barack Obama see as models for future appointments.

Painless death mandated by Constitution?

2008-03-01T12:36:00.001-08:00

COSTLY DELAYS CAN SERVE A PURPOSE
ABA Journal, March 2008, at 4.

Regarding “Tinkering with Lethal Injection,” January: I think Thomas Goldstein’s statement that the current round of litigation over the death penalty—dealing with the constitutionality of lethal injection as administered—“doesn’t advance the goal of abolition one inch,” is at best naive. One of the main arguments for doing away with the death penalty is the cost associated with it. The cost has nothing to do with the actual administration, i.e., serving the three-drug cocktail, and has everything to do with dragging the process out and therefore raising the cost of litigation. In that sense, this round has everything to do with abolishing the death penalty.

Furthermore, to those advancing this cause, every delay is seen as a victory. The ultimate goal is to frustrate the proponents of the death penalty into submission, declaring such nonsense that we “shall no longer tinker with the machinery of death.”

Terror law revisited

2008-02-22T11:48:00.000-08:00

Protecting America's protectors
Washington Times, Feb. 21, 2008, at A14.

I don't think anyone in his right mind can think waterboarding is not torture. However, that is not the issue. The issue is whether those charged with gathering intelligence, at any cost, will be thrown under the bus for political expediency ("Mukasey's skillful evasions on torture," Op-Ed, Monday).

One need not go any further than reading former Attorney General John Ashcroft's book "Never Again" or the books written by John Yoo or Jack Goldsmith (both principals in the Office of Legal Counsel) to know that shortly after September 11, Mr. Ashcroft was instructed that this cannot happen again -- not "try your best," but "never again."

Those in the field actually gathering intelligence want assurances that another administration, Obama, Clinton or even McCain, in another climate would not charge them criminally. Those assurances came from the Office of Legal Counsel.

So for Attorney General Michael B. Mukasey to come out now and say waterboarding is torture, and therefore illegal, he would in effect be handing down indictments on men and women who did the dirty job of protecting us from further attack. He cannot do that.

Racist Republicans? No

2008-02-10T10:46:00.000-08:00

The Press-Enterprise, Feb. 8, 2008, at B8.

Leonard Pitts' assertion that conservatives have never supported black people is an intriguing theory ("Where the right is wrong," Feb. 6).

If he means conservatives will not sign on to some kind of black agenda -- support for the welfare state and affirmative action -- then I will plead guilty as charged. However, to suggest that conservatives are basically racist is just dumb.

A bit of rhetoric, especially in the election cycle, is to be expected. However, carte blanche irresponsible statements cross the line.

[Above is the edited version published by The Press-Enterprise. Since they took out all the meat, below I am posting the original submission.]

Leonard Pitts' assertion that conservatives "have never supported black people" is a beautiful theory rebutted by some ugly facts. If he means conservatives will not sign-on to the black agenda -- support for the welfare state and affirmative action -- then I will plead guilty as charged. However, to make a statement, that they are basically racist is almost as stupid and irresponsible as the idiot that proclaimed, "Bush hates black people."

It was Bush (a conservative) that gave us our 1st and 2nd black Secretaries of State (Powell and Rice) and our first black (and female) National Security Adviser (Rice). One can argue that these high-powered blacks in the Executive branch may have laid the ground work for a future President Obama.

A bit of rhetoric, especially in the election cycle, is to be expected. However, carte blanche irresponsible statements cross the line.

Book Review: Terror Presidency

2008-02-09T10:33:00.000-08:00

Law on Terror
Los Angeles Daily Journal, Feb. 1, 2008, at 6.

A few days after Sept. 11, Vice President Dick Cheney appeared on NBC’s “Meet the Press” with Tim Russert and informed the public that the rules had changed; that we had to work on “‘the dark side’… We’ve got to spend time in the shadows in the intelligence world…. [I]f we are going to be successful… it’s going to be vital for us to use any means at our disposal.” It came to be that “any means” included torture.

In his book, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” Jack Goldsmith, former assistant attorney general in charge of the Office of Legal Counsel, chronicles the events following that horrible day and his role in it.

Shortly after Sept. 11, it became apparent to the administration that its war on terror had to be placed on a firm legal footing. By happy coincidence, John Yoo – the Jack Bauer of jurisprudence – was sitting in the Office of Legal Counsel on Sept. 11. According to Goldsmith, the Berkeley law professor was a “prominent academic who possessed at the tip of his confident pen all of the crucial precedents” dealing with presidential powers during war. “He believed that when the Constitution vested ‘the executive power’ in the president, it gave him all of the military powers possessed by the king of England save those expressly given to Congress.”

Therefore, he turned out to be the perfect person to give our intelligence community the needed cover to operate on “the dark side.” Office of Legal Counsel opinions, after all, give “counterterrorism officials the comfort of knowing that they could not easily be prosecuted later for the approved actions.” This was especially true in the political atmosphere that existed. Goldsmith himself “witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls.”

Additionally, the “[i]ntelligence community was disinclined to take risks because of what a 1996 Council of Foreign Relations study decried as ‘retroactive discipline’ – ‘the idea that no matter how much political and legal support an intelligence operative gets before engaging in aggressive actions, he will be punished after the fact by a different set of rules created in a different political environment.’” This had a “chilling effect on CIA lawyers, and thus on the agency itself.” Goldsmith also notes that contrary to the fact that “[m]any people think that the Bush administration has been indifferent to wartime legal constraints….the opposite are true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death.”

I have no doubt that underlying these events were also a Bush/Cheney desire to return presidential powers to their pre-Watergate might. But this desire was not limited to the Bush administration. Clinton’s Office of Legal Counsel also wrote opinions arguing the “president could disregard congressional statutes that impinged on the commander in chief or related presidential powers. Also, it signed off on the CIA’s original rendition program and it approved unilateral uses of presidential military force in Kosovo, Bosnia, and Haiti.” The latter marked the “first time in our history that a president waged war in the face of direct congressional refusal to authorize the war. … It also marked the first and only time that a president exceeded the limitations on the 1973 War Powers Act.”

Goldsmith does a good job of putting the events leading to the release of the so-called torture memos, Abu Ghraib scandal, and the NSA wiretapping program in perspective. Attorney General John Ashcroft’s directive from the president was not to try his best to stop the next attack. “He was telling him to stop the next attack, period -- whatever it takes.” And it was up to people like Yoo to implement those orders. It should be noted, and Goldsmith does so toward the end of the book, that the president succeeded in stopping the next attack. “Whatever one thinks about the means he has employed and the mistakes he has made, this is an accomplishment that seemed impossible on September 12, 2001.”

Goldsmith also reminds us that today, Abraham Lincoln and Franklin Roosevelt are seen as great wartime presidents. “We tend to forget about their mistakes and excesses, for which they were roundly criticized as incompetents and dictators in their day.” (Lincoln suspended the writ of habeas corpus, while Roosevelt interned Japanese-Americans.) “Historians might come to think of the interrogation controversies … as deeply regrettable, but relatively unimportant episodes in the larger arc of the war.”

Of course, Goldsmith’s book is not all praise of Yoo and the administration’s overreaching. To the contrary, Goldsmith is highly critical of Yoo. Nevertheless, the tenor of his book is surprising. He is humble enough to point out that he came out of the Office of Legal Counsel knowing that the political atmosphere was quite different right after Sept. 11, when Yoo was there, and two years later when he took over in October 2003 (For Yoo’s version of the events and the political climate in which he was operating in, I recommend his book, “War by Other Means”).

“The Terror Presidency” is worth reading not only because of the events surrounding our war on terror, but also as a good lesson about the Office of Legal Counsel, one of the most powerful offices in government, and one that not too many people, including lawyers, know much about.

Liberal v. Conservative Dancing Monkeys

2008-01-06T10:31:00.000-08:00

Article has them seeing (RED)
Los Angeles Times, Jan. 5, 2007, at A18

Re "Right for the part?" Opinion, Dec. 30

Daniel W. Drezner makes some interesting points about celebrities' involvement in world affairs. But he misses one not-so-surprising phenomenon: the celebrities' qualifications are rarely questioned unless the cause advocated supports the conservative ideology. One person who comes to mind is author Michael Crichton. Though unlike most other celebrities, he is actually quite educated, his qualifications to question the validity of global warming science (or lack thereof) is constantly brought up. In my opinion, all of these dancing monkeys (conservatives and liberals alike) should just stick to entertaining.

Clarence Thomas at Chapman Univ.

2007-12-22T08:37:00.000-08:00

A justice speaks
Orange County Register, Dec. 20, 2007, at Local 9

Prior to going to Chapman University to see Justice Clarence Thomas speak, I had read his book. I had also read every other book written about him (there are about a dozen of them out there, counting the books on his confirmation). Nevertheless, I came out of his Chapman appearance with even a greater understanding of him ["Justice Clarence Thomas reveals personal side at Chapman," Local, Dec. 18].

Where else, but the United States, could a person go from such humble beginnings of Pin Point, Ga., to becoming an associate justice of the United States?

And though reporter Marla Jo Fisher did a good job of summarizing the event, I think she missed some of the highlights. For example, in answering the question of what role his faith plays in his deciding of cases, Justice Thomas pointed out the irony (and hypocrisy) that the same people who don't want his Catholicism to play a role in his decision-making demand that his "pigmentation" dictate the results.

I feel uniquely privileged that I had a chance to go to the event and meet the justice and am grateful to Chapman University, the Federalist Society and the Heritage Foundation for sponsoring the event.

Judge Cassell leaving the bench

2007-12-02T13:08:00.000-08:00

Cassell is truly great man
Deseret Morning News, November 26, 2007, at __.

U.S. District Judge Paul Cassell is the perfect case study on what a judge ought to be. At every turn, on the issue of sentencing, he disagreed with the law, but instead of doing as he pleased he followed the law while pointing out its flaws. And finally he decided to leave the bench to pursue advocacy (instead of doing so from the bench).

I have followed Cassell's career since he argued the case of United States v. Dickerson before the Supreme Court (dealing with the continued viability of the Miranda decision; he lost) and will continue to do so. He is a great man from whom we younger attorneys can learn a lot. I wish him continued success.

Clarence Thomas and affirmative action

2007-10-27T13:44:00.001-07:00

The school of very hard knocks
The Economist, 10/25/07 (online)

Lexington does a good job of summarising Justice Thomas, his views, and his detractors. However, there is a small error in that it states, "he got into Yale because of racial preferences...". This has never been confirmed. And the fact that it keeps coming up is the best reason for ridding higher education of affirmative action; no matter how much a black person accomplishes, it will always be tainted by whether it is due to merit or a handout from "The Man."

Death Penalty must be administered in a painless manner?

2007-10-19T08:17:00.000-07:00

Spare us
Austin American-Statesman, Oct. 18, 2007, at __

We are not dealing with a case where an innocent man was put to death. We are dealing with a case where a guilty man was seeking to avoid the death penalty because he may feel some pain as the result of the lethal injection.

I can assure you Richard’s pain at the hands of the State of Texas paled in comparison to that of his victim.

[This piece was heavily edited by the paper. For more details on this story read the article I was responding to. Also, Mark O'Bar's letter, with whom I proudly share the column does a good job of summarizing the issue (Mark told me his letter was, likewise, heavily edited).]

Marriage confusion

2007-10-16T20:59:00.000-07:00

The Providence Journal, October 15, 2007, at C5.

Rhode Island’s concession “that a state court could grant the two women a divorce without answering the highly charged question of whether a same-sex marriage performed in Massachusetts should be recognized in Rhode Island” is unprincipled and, frankly, silly.

How can one dissolve something that does not exist?

What happens if the two women reconcile and have that divorce judgment set aside? Are they married again? In Rhode Island? In Massachusetts?

Who gets Jerusalem?

2007-07-16T19:24:00.000-07:00

Washington Times, June 19, 2007, at A18.

The headline "Divorce, Palestinian style" grabbed my attention because I always thought the solution to the Palestinian-Israeli conflict is a divorce (Commentary, Saturday).

Long ago, the couple in question — Israel and Palestine — were forced into an arranged marriage by the international community. (As with many couples, things were better when they simply were living in sin.) Now that the relations have soured to the point of no return, instead of a divorce decree, the parties are being sent back to endless rounds of mediation. You know mediation isn't going well when each side comes armed.

The only possible solution is for the international community to set up some kind of tribunal for the division of property. The biggest issue, as it is in a traditional divorce, is who gets primary physical custody of the parties' only child: Jerusalem.

Dad's musings on Iran

2007-07-16T19:18:00.000-07:00

Bob (a.k.a. Dad) published a couple of pieces in the Orange County Register and they appear here and here.

Federalism v. Abortion

2007-04-29T14:36:00.000-07:00

Thomas' Abortion Opinion Interesting to Note
Los Angeles Daily Journal, April 26, 2007, at 6.

The most important opinion from last week's Supreme Court decision narrowly upholding the federal ban on partial-birth abortions was neither Justice Anthony M. Kennedy's majority nor Justice Ruth Bader Ginsburg's dissent.

It was Justice Clarence Thomas' one paragraph concurring opinion, joined by Justice Antonin Scalia, inviting another challenge to the abortion law rooted in Congress' power to pass legislation pursuant to the Commerce Clause of the Constitution.

This will be the ultimate test case for Scalia and Thomas to gauge their fidelity to the Constitution irrespective of their personal views.

After all, they both want to see Roe v. Wade and its progeny aborted. They said so again last week.

But they have also stated that Congress has limited enumerated powers and any laws passed in excess of those powers are unconstitutional.

In 1995, in United States v. Lopez, the Supreme Court in a 5-4 decision struck down a federal law that made it a crime for anyone to be in possession of a firearm near a school. The majority - which consisted of Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Scalia, Kennedy and Thomas - found that guns near schools have nothing to do with regulating interstate commerce and therefore fall outside of Congress' power to regulate. (Most federal laws are passed pursuant to Congress' power to regulate interstate commerce, found in Article 1, Section 8 of the Constitution).

Five years later, in United States v. Morrison, the same five-member majority struck down The Violence Against Women Act for the same reason. Criminalizing violence against women, traditionally within the powers of the states, has nothing to do with interstate commerce. So if violence against women has nothing to do with interstate commerce, the court will be hard-pressed to explain how violence against a fetus does.

I had hoped that the Supreme Court would have struck down this law without even mentioning Roe v. Wade and its progeny. However, as Thomas' concurring opinion pointed out, "whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it."

I'll leave it to others to speculate as to why this issue was neither raised nor briefed. No doubt someone will take Thomas' invitation and file another suit by week's end - if not done already.

Striking down the federal ban on the ground that it is beyond Congress' power to regulate interstate commerce will have a limited impact in the sense that a majority of five has already stated that a law outlawing this abhorrent procedure will be upheld; leaving to each state to decide for itself whether they want to outlaw this procedure or not.

And that is exactly the way the framers of our Constitution wanted it to be.

The District's Gun Ban

2007-03-25T17:51:00.000-07:00

Washinton Post, March 23, 2007, at A16

A couple of years ago, Robert Levy -- a senior fellow at the Cato Institute and an attorney for Shelly Parker, a plaintiff in the lawsuit that challenged the District's ban on handguns -- gave a talk in Orange County, Calif., sponsored by the Federalist Society. In his remarks, he previewed the case that led to the overturning of the D.C. gun ban.

I thought he made a good point with the following example, which I am paraphrasing. He asked: If there were a constitutional amendment that read, "A well-stocked library, being necessary to the literacy of our people, the right of the people to keep books, shall not be infringed," would anyone argue that only libraries have a constitutional right to own books?

Kudos to Mr. Levy and his colleagues for a job well done.

Awaiting hypocrisy

2007-03-12T05:13:00.000-07:00

Los Angeles Times, March 12 , 2007, at A14.

Re "Right sees a prosecution run amok," March 8

I agree with the left's assessment that the right is being hypocritical, if not downright comical, by deeming perjury a serious offense worthy of impeachment of a president but simply a technicality in the context of I. Lewis "Scooter" Libby. I'll wait to see how much hypocrisy the left will partake in when President Bush pardons Libby the same way Clinton pardoned his political cronies.

Common Law v. Constitutional Rights

2007-02-07T05:00:00.000-08:00

Constitutional expectations
Washington Times, Feb. 7, 2007, at A16.

Nat Hentoff's critique of Alberto Gonzales' comments before the Senate Judiciary Committee seems to have missed the point ("Wrong on habeas corpus," Op-Ed, Monday). Mr. Hentoff criticizes the attorney general's statement that "There is no express grant of habeas [corpus] in the Constitution" by giving us a history lesson on how this right has always existed; i.e., it is a common-law right, not a constitutional one (which is exactly what Mr. Gonzales appears to have been arguing). If it is not a constitutional right, it can be taken away subject only to any limitations in the Constitution, such as Article I's mandate that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In recent decades, with constitutional rights emanating from penumbras and elsewhere, we seem to have forgotten what an "express [constitutional] grant" looks like

Gay Divorce

2006-12-12T05:53:00.000-08:00

Where's the logic?
Los Angeles Times
December 10, 2006, at M5

Re "Rhode Island courts face new frontier: gay divorce," Dec. 7

I found the legal argument in this case interesting: "We are not asking the state of Rhode Island to recognize same-sex marriage. We are asking the state to recognize same-sex divorce." Can one dissolve something that doesn't exist?

What if the court decides that it can go ahead and dissolve a same-sex couple's marriage and later, as it happens from time to time, they reconcile and file a stipulation to set aside the divorce judgment. Aren't they then married again? In Rhode Island?

How Conservative is the Supreme Court?

2006-11-24T09:47:00.000-08:00

Test of court's conservative consistency
Orange County Register, Nov. 16, 2006, at Local 8.

The Supreme Court is presented this term with two controversial cases that will say a lot about how conservative – and to a certain extent how principled – the court really is.

The court heard arguments this month in a challenge to a $73.5 million jury award against Phillip Morris. The cigarette manufacturer is arguing that the jury award is excessive and thus violates the due-process clause of the 14th Amendment. And there is the big constitutional issue. Do the words, "No state … shall deprive anyone of life, liberty, or property, without due process of law" contain a substantive right for a corporation not to be penalized excessively?

Justices Antonin Scalia and Clarence Thomas have always maintained that the "due process" clause does not contain any substantive rights. Whether the issue is abortion, sodomy, or monetary damages against a corporation, they always ask the same question: What does this have to do with the federal Constitution? You don't like these jury awards, take it up with your representatives and place a cap on such "runaway" jury awards. Justice Ruth Bader Ginsburg – a fan of substantive due process in the personal-liberties arena – usually votes with Scalia and Thomas.

The keys are going to be the latest appointees: Chief Justice John Roberts and Justice Samuel Alito. I don't see how someone can rationally argue that the due process clause provides for substantive rights when it comes to corporations, but not when it comes to personal liberties. At least Scalia and Thomas have been consistent here. In other words, if Alito and Roberts rule in favor of Philip Morris, they will lose a certain amount of legitimacy if they then turn around and vote to overturn Roe v. Wade.

The court also heard arguments this month in a challenge to the federal ban on "partial-birth" abortions. A few years ago, the justices ruled 5-4 that a Nebraska law against the procedure was unconstitutional because it did not provide an exception for the health of the mother. The federal law, similarly, provides no such exception. So it should be a slam-dunk, right? Not exactly.

For one, the swing vote in the Nebraska case, Justice Sandra Day O'Connor, has retired and has been replaced by Justice Alito. So everyone seems to think it boils down to Justice Kennedy, who dissented in the Nebraska case. They are hoping that his respect for precedent will motivate him to strike down the federal law. As we saw in Lawrence v. Texas, Justice Kennedy has no problems striking down precedents (in that case he overturned a 17-year-old precedent finding in the U.S. Constitution a right to homosexual sodomy). However, in the Nebraska case, he wrote an impassioned dissent arguing against the majority.

Abortion should not be the issue, though. One of the legacies of the Rehnquist court (and the so-called conservatives) has been federalism; the notion that the federal government has limited powers and any action taken beyond those enumerated powers is unconstitutional. For example, in 1995 the Supreme Court ruled that Congress could not pass legislation, using its legitimate power to regulate interstate commerce, to outlaw gun possession near schools. To the conservatives, gun control in and around schools had nothing to do with regulating interstate commerce.

Five years later, the same conservatives (Rehnquist, O'Connor, Scalia, Kennedy and Thomas) struck down a federal law that purported to protect women from violence, because, again, violence against women has no nexus to regulating interstate commerce.

So if the Supreme Court votes to uphold the federal partial-birth abortion ban, the court at least tacitly would be saying the procedure has something to do with regulating interstate commerce. Violence against women has nothing to do with interstate commerce but violence against a fetus does?

If the conservatives vote to uphold this law, without adequately explaining why this does not present a federalism question, it will show them to be as result-oriented as their liberal counterparts have been accused of being. Likewise, if Alito and Roberts vote to give a reprieve to Philip Morris they will undermine their legitimacy if they ever vote to strike down Roe v. Wade.

ABA's smear campaign against Wallace

2006-09-13T05:57:00.000-07:00

ABA Tries to Bar Judges With Different Views
Los Angeles Daily Journal, Aug. 22, 2006, at 8

The American Bar Association is at it again. Recently, its Standing Committee on the Federal Judiciary unanimously rated Michael Wallace "not qualified" to serve on the 5th U.S. Circuit Court of Appeals and defended its position in a document that they submitted to the Senate Judiciary Committee (full text available at www.abanet.org/).

In their own words: "The investigation revealed that Mr. Wallace has the highest professional competence. Mr. Wallace possesses outstanding academic credentials, having graduated from Harvard University in 1973 and the University of Virginia Law School in 1976. He was a law clerk to former Chief Justice William H. Rehnquist from 1977 to 1978. Mr. Wallace is often described as a 'legal scholar' of 'strong intellect;' [sic.] a quality lawyer with a 'quick legal mind.' He is a highly skilled and experienced trial and appellate lawyer who is considered a 'go-to lawyer' on certain litigation matters in Mississippi. As discussed below, even those persons with serious concerns regarding Mr. Wallace's judicial temperament describe him as a brilliant lawyer, one who would ably master legal issues before him as a judge.

The investigation also established that Mr. Wallace possesses the integrity to serve on the bench. His integrity was described by many as 'impeccable,' 'outstanding,' 'the highest,' 'absolute,' and 'solid.' Persons throughout the legal community stated that Mr. Wallace is a fine family man, an excellent husband and father."

Nevertheless, the committee decided to sully this respected attorney's reputation and became complicit in attempting to deny him the honor of serving on the Court of Appeals. Why? Because "over a third of [the 69 people interviewed off the record] expressed grave concerns regarding Mr. Wallace's judicial temperament." Read another way, the overwhelming majority of those interviewed had no concerns regarding his judicial temperament. Other than political bias, what would be the rationale of the ABA to give the benefit of the doubt to the minority of those interviewed? Why is the ABA again confusing the role of an advocate and that of a judge?

Though a majority of the ABA's standing committee on the judiciary rated Judge Charles Pickering "well qualified" (some rated this veteran federal judge simply "qualified"), I could not help but draw parallels between the two nominees.

Like Wallace, Pickering was pegged as being insensitive to minority rights, if not an outright bigot. Principally on those charges, he was opposed and successfully filibustered by the Democrats in the Senate until he was given a recess appointment to the Court of Appeals. He has since retired. (I highly recommend "Supreme Chaos," his book on the subject of judicial confirmations including his own experience.)

One need not go any further than a piece aired on CBS' "60 Minutes" - not exactly a bastion of conservatism (remember Dan Rather?) - to see that the allegations against Pickering were false. It requires that kind of public airing, where parties' bias and agendas are borne out, to be able to get to the truth. This is exactly why the right to cross-examination was enshrined in the Bill of Rights. The ABA's commitment to confidentiality (with their own hidden agenda, if any) cannot trump the rights of this highly qualified and regarded individual to serve on the 5th Circuit.

Furthermore, this serves as another example of why President Bush did the right thing by marginalizing - at least officially (the administration needs to stop citing them, thus giving them credibility, when it suits them) - the role of the ABA in vetting judicial nominees. The ABA, among other things, is for the abolition of the death penalty and the advancement of gay rights and abortion on demand by judicial fiat (I am perfectly okay with advancing these causes through the democratic process). And under the catch-all heading of "judicial temperament" they will seek to advance these policy goals by seeking to exclude highly qualified individuals that do not sign on to their various liberal social agendas.

ATLA goes to Eleven

2006-09-13T05:49:00.000-07:00

Changing Organization's Name Won't Change the Image of Trial Attorneys
Los Angeles Daily Journal, July 26, 2006, at 9.

The Association of Trial Lawyers of America's latest attempt to change its image by simply changing names, "Trial Lawyers Reborn as American Association for Justice" (Daily Journal, July 20), somehow reminded me of that famous scene from the movie "This Is Spinal Tap," where we are introduced to the first guitar amplifier that goes to 11. Here is the transcript of the scene where Nigel Tufnel, the fictional musician, is being interviewed by the fake documentary director Marty DiBergi played by Rob Reiner:

Nigel Tufnel: The numbers all go to 11. Look, right across the board, 11, 11, 11 and ...
Marty DiBergi: Oh, I see. And most amps go up to 10?
Tufnel: Exactly.
DiBergi: Does that mean it's louder? Is it any louder?
Tufnel: Well, it's one louder, isn't it? It's not 10. You see, most blokes, you know, will be playing at 10. You're on 10 here, all the way up, all the way up, all the way up, you're on 10 on your guitar. Where can you go from there? Where?
DiBergi: I don't know.
Tufnel: Nowhere. Exactly. What we do is, if we need that extra push over the cliff, you know what we do?
DiBergi: Put it up to 11.
Tufnel: Eleven. Exactly. One louder.
DiBergi: Why don't you just make 10 louder and make 10 be the top number and make that a little louder?
Tufnel: [pause, blank look and snapping chewing gum] These go to 11.

If ATLA thinks that trial lawyers as a group have an image problem, the solution cannot be simply "go[ing] to 11." They ought to "make 10 louder."

[Source of transcript: Wikipedia.]

Unitary Executive

2006-05-01T18:35:00.000-07:00

Supreme Retort
The New Republic, Feb. 20, 2006, at 4.

I think there is serious confusion as to what the theory of the “unitary executive” entails (“Against Alito,” January 30). Justice Antonin Scalia’s famous dissent in Morrison v. Olson is an example of one interpretation of the theory, which holds that executive power lies with the president, and that no “person whose actions are not fully with the supervision and control” of the president can seize it. The issue in Morrison was the law that provided for the appointment of an independent counsel. More specifically, the Court faced the question of whether, via a statute, Congress can create an executive office that is not under the direct control of the president. Scalia was vindicated on this subject when Congress refused to renew the statute after the Clinton- Lewinsky fiasco and allegations of overreaching by Kenneth Starr. This is what Samuel Alito was likely referring to when he stated that “all federal executive power is vested by the Constitution in the president.” Insofar as some may think that the “unitary executive” theory as Alito invoked it stands for the proposition that the president is above constitutionally enacted laws, they are certainly in the minority.

The first line of Article II of the U.S. Constitution states, “The executive power shall be vested in a President of the United States of America.” Does “the executive power” mean “all” of the executive power or just “some”? Compare that with the more limiting language of Article I: “All legislative powers herein granted shall be vested in a Congress of the United States.” There is a difference, and it appears the Founding Fathers knew how to go about limiting powers when they wanted to do so. There was nothing misleading or evasive about Judge Alito’s answers about the “unitary executive.”

Kelo Revisited

2006-04-27T13:40:00.000-07:00

Court Can't Decide Whether Home is Castle
Los Angeles Daily Journal, April 7, 2006, at 8

In Georgia v. Randolph, 126 S.Ct. 413 (March 22, 2006), the U.S. Supreme Court majority ruled that the Fourth Amendment is violated where the police conduct a search of a house with the consent of an occupant, if a co-occupant has objected to the search. I don't necessarily have a problem with this rule though I think the dissent had the better analysis.

What I did have a problem with was the majority's audacity to declare that "[s]ince we hold to the 'centuries-old principle of respect for the privacy of the home, it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.' We have, after all, lived our whole national history with an understanding of 'the ancient adage that a man's home is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.'"

This is the same five-member majority - Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer - that just a couple of years ago declared that the Constitution is not violated when the government takes someone's home and hands it over to pharmaceutical giant Pfizer.

The Constitution apparently allows the government to seize the property of law-abiding citizens but does not allow the government to search it for contraband even when one occupant has consented to the search.

Bloviating Ex-cons

2006-04-05T15:56:00.000-07:00

Hero v. Antihero
California Lawyer, April 2006, at 66

Joe Loya proclaims [California Lawyer, Jan. 2006, at 64] himself a hero for not stabbing the man who disrespected him. Yet earlier in his essay he writes, "I already had two strikes against me, so if I attacked that man, I would go to prison for the rest of my life." It is not entirely clear, then, whether this was an act of "heroism" or self-preservation. One thing that is clear is that the three-strike law works!

[In a paragraph that was omitted by California Lawyer, I criticized the magazine for publishing that garbage as a "pro per" column. The "Pro per" column was never intended to be a forum for bloviating ex-cons.]

Confirmation Politics

2006-04-02T23:01:00.000-07:00

The Founders and the judiciary
The Washington Times, March 29, 2006, at A22.

Though I like retired Judge Charles Pickering and think he got a raw deal from Senate Democrats, I disagree with a couple of his pronouncements ("Bench repair," Commentary, Sunday).

First, he asserts, "If Democrats think some Republicans won't use the same tactics as those used by Sens. [Edward M.] Kennedy, Charles Schumer and Dick Durbin the next time a Democrat is in the White House, they have to be living in fantasyland."

We have a historical precedent on this issue. President Clinton's nomination of Ruth Bader Ginsburg and Stephen G. Breyer came after the Robert Bork and Clarence Thomas hearings. Republicans could have justified treating the Clinton appointees harshly. Nevertheless, they took the high road, and the former American Civil Liberties Union counsel (Judge Ginsburg) and staff attorney to Mr. Kennedy (Judge Breyer) sailed through the Senate.

Also, though Mr. Pickering is correct to point out that "our Founders never intended the judiciary to be political" — confirmed by the fact that they are given life tenure — the process of selecting federal judges was explicitly made political by having the president nominate the candidates with the "advice and consent" of the Senate.

Finally, if there were not enough votes for cloture of a filibuster, what makes Mr. Pickering think his constitutional amendment has a chance?

An Ethical Question

2006-01-25T19:58:00.000-08:00

Nod to Scholar-Advocates Could Be Justice Breyer's Duck Hunt
Los Angeles Daily Journal, Jan. 26, 2005, at 8

Much has been written about U.S. Supreme Court Justice Stephen Breyer's recent book "Active Liberty," concentrating on the merits of his methodology in adjudicating constitutional cases. Though I tend to agree with those who deem his quest for "active liberty" as nothing more than him trying to get a vibe for what the Constitution stands for, instead of what it actually says (and does not say), I write to raise an ethical question.
In the "acknowledgments" section of his book, he thanks, among others, advocates who appear before him - namely professors Laurence Tribe and Erwin Chemerinsky - for "[t[heir critiques, their ideas, and their suggestions" for "hav[ing] helped [him] enormously, adding much of the value to the enterprise." He thanks all those he has mentioned "for their many contributions."
Though the "Code of Conduct for United States Judges" encourages judges to "speak, write, lecture, teach, and participate in other activities concerning the law," they should do so only so long as "in doing so the judge does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge."
Although in no way am I suggesting that Breyer should recuse himself every time Tribe or Chemerinsky appear before him, I do question the wisdom of soliciting regular advocates before the Supreme Court for assistance and "contribution" in these extra-judicial activities.
Commentary to Canon 1 of the U.S. judges code states, in part, that "[t]he integrity and independence of judges depend in turn upon their acting without ... favor." More to the point, Canon 2(b) states that a "judge should not ... convey or permit others to convey the impression that they are in a special position to influence the judge."
There is also an open question as to whether advice from these scholars has monetary value (I am not sure whether they were compensated by the justice or the publisher for their time), as Canon 5(C)(4) states that "[a] judge should not solicit or accept anything of value from anyone seeking official action from or doing business with the court or other entity served by the judge ... except that a judge may accept a gift as permitted by the Judicial Conference gift regulations."
In all fairness to Breyer, the last two times that Chemerinsky has appeared before him he has batted 1 for 2. In Lockyer v. Andrade, 538 U.S. 63 (2003), Chemerinsky got Breyer's vote while losing the case in a 5-4 decision (Chemerinsky wanted to have California's "three-strikes" law declared unconstitutional).
In Van Orden v. Perry, 125 S.Ct. 2854 (2005), however, Breyer turned out to be the swing vote in another loss for Chemerinsky, who had argued that a Ten Commandments display in Texas violated the First and 14th Amendments to the U.S. Constitution. (Chemerinsky is also a named plaintiff in the case of F.A.I.R. v. Rumsfeld, 390 F.3d 219 (3rd Cir. 2004), certiorari granted, 125 S.Ct. 1977 (2005), currently pending before the Supreme Court dealing with the Solomon Amendment.)
A cursory review of professor Tribe's more extensive record before the Supreme Court leads to the same conclusion; there is no correlation between the advocate and Breyer's voting pattern. (It should be noted that recent correspondence between the justice and the professor, made public, shows that "Steve" and "Larry" are on a first name basis with each other.)
The above analysis demonstrates that Breyer is not necessarily swayed by his friendship with these scholars-turned-advocates. However, the analysis, as it was with the whole Scalia-Cheney duck-hunting fiasco, is whether someone with a "reasonable mind" thinks that the justice's impartiality may be impaired.
Ultimately the test that can be gleaned from the judges code is whether a reasonable person would think that these advocates "are in a special position to influence the judge," or that a reasonable person may think that the judge's impartiality may be compromised. Again, based on a quick review of their appearances before Breyer, one can certainly conclude that there is nothing there. But, then again, a reasonable person could think otherwise.
Nothing in this essay should be construed as a suggestion that a judge cannot be a friend with those that appear before him. If that were the case, Justice Clarence Thomas' recent attendance at Ted Olson's (former solicitor general and regular advocate before the court) annual barbecue would violate that rule. In fact, it is not even being suggested that what the justice did was necessarily inappropriate. It should simply serve as an invitation for dialogue regarding an area of law with no clear contours (the code is not even binding on the Supreme Court).

Selling Roe

2006-01-16T18:10:00.000-08:00

Overturning Roe will let states decide
The Clarion-Ledger (Miss.), Jan. 3, 2006, at __.

Marc Harrold is correct to point out that "Common public misconception aside, overruling Roe does not instantly make abortion throughout the U.S. illegal; it simply returns the decision to state legislatures and electorates" ("Confirmation of Alito reveals hidden values" Dec. 9 guest column).

This is one area where liberals have been extremely successful: selling the overturning of Roe as analogous to rendering abortion illegal across the United States.

It is this misconception that renders all polls indicating a majority of Americans are in favor of Roe v. Wade meaningless

No More Tookie

2005-12-17T22:48:00.000-08:00

Williams' Clemency Denied? Enough Said.
Los Angeles Daily Journal, Dec. 19, 2005, at 9

Regarding "In Support of 'Tookie': Distortions of Fact, Distortions of Justice" (Dec. 15 Daily Journal):

In the future the governor can avoid this type of criticism by simply announcing: "clemency denied." There is no requirement that he pander to those on the left who want to chip away at the death penalty.

"Tyranny of the Majority" v. Democracy

2005-12-17T22:39:00.000-08:00

Democratic Majority
Miami-Herald, Posted on Fri, Dec. 16, 2005

''The tyranny of the majority?'' I wish Howard Simon had explained in his Dec. 15 Other Views column 'Activist' judges are in the eye of the beholder how that differs from democracy.

He also writes that, ``Justices Clarence Thomas and Antonin Scalia -- described as exemplary judges by the president -- vote to invalidate congressional legislation more than most every other Supreme Court justice.''

Yet he didn't identify the justices who regularly strike down state laws -- Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Souter.

"Icelandic Pop Singer"

2005-12-12T23:24:00.000-08:00

The statement, "Bork [is] still a potent symbol of judicial extremism in the minds of most Americans," gives the public too much credit. To paraphrase the editors of The New Republic, most Americans are likely to confuse Bork for an "Icelandic pop singer."

On a related note, confirmation politics is an area where polling is fraught with mistake mainly because of the abortion issue. Most Americans think since Roe made abortion legal, overturning it would make abortion illegal. Which we know is not true. It would simply return the issue to the democratic process. Until these polls start to define what Roe stands for, they are going to be meaningless.

[This comment originally appeared online on legaltimes.com.]

Rashidi and Hatch

2005-11-22T22:40:00.000-08:00

Judge Alito's Record
Washington Post, November 22, 2005; A28

My latest musings appear in today's Washington post. I don't know what pleases me more, being published in the Post or sharing the page with Senator Orrin Hatch. I have also posted the full text below:

Harold Meyerson ["Alito's Smoking Gun," op-ed, Nov. 16] is correct to point out that under a "strict construction," Judge Samuel A. Alito Jr.'s assertion that "the Constitution does not protect a right to an abortion" represents a legal conclusion, not a personal opinion or a political declaration.

However, in 1992, when Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter voted to uphold the central holding of Roe v. Wade , they apparently did so not because they thought the Constitution contains a right to an abortion but because, they said, "liberty finds no refuge in a jurisprudence of doubt." In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.

That is a question that Judge Alito, as a Supreme Court nominee, needs to answer: Does he agree that certain decisions are best left settled as opposed to being resettled correctly?

Like some of us, perhaps, he may not be able to answer that question until he is presented with the issue in an actual case.

UPDATE: On Saturday, 12/3/05, the Washington Post published this response to my musings, in which Ruth Kastner accuses me of having “misconstrued” the plurality opinion in Planned Parenthood v. Casey.

I had previously charged that Justices O’Connor, Kennedy, and Souter upheld the central holding of Roe v. Wade “not because they thought the Constitution contains a right to an abortion but because, they said, ‘liberty finds no refuge in a jurisprudence of doubt.’ In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.”

Ms. Kastner thought that this was “quite a leap” and that the reference could have been to “the principle of the Ninth Amendment – that liberty is jeopardized when we deny or disparage any right not explicitly enumerated in the Constitution.” There are two main problems with her criticism: (1) the justices never even mention the Ninth Amendment, and (2) they spend much of the time discussing the principle of stare decisis (precedents should be followed).

My position is also buttressed by the recently released Blackmun papers. Linda Greenhouse's account paints a picture of how closely the court actually came to overturning Roe v. Wade.

Update: Here is a quote from Joan Biskupic's biography of Sandra Day O'Connor that further supports my argument: "In her opinions, she typically explained why the Court ruled as it did. A prime example was the 1992 ruling she forged with Kennedy and Souter that upheld abortion rights. She explained that although the justices might not agree with Roe v. Wade, people had lived with it, reordered their lives around it." p.313

Or as Ed Lazarus -- Findlaw.com columnist and former law clerk to Justice Blackmun -- has observed, "[a]lthough Kennedy still thought that Roe was incorrectly decided, he had come to feel even more strongly that overturning Roe 'under fire' from anti-Roe groups would importantly damage the Supreme Court's institutional integrity."

Further update: Professor Kenji Yoshino writes in Slate: "Yet in Casey, three of those justices—Anthony Kennedy, Sandra Day O'Connor, and David Souter—wrote a joint opinion upholding Roe. They stressed that they were not saying Roe was correctly decided. To the contrary, they observed that the rule of stare decisis—the rule that precedent should generally be followed—dictated the result. 'Under normal stare decisis analysis,' the three justices' opinion stated, 'the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have not for overruling it.'"

Fathers' Rights

2005-11-13T11:17:00.000-08:00

We are somehow supposed to feel sorry for Kate Michelman having to notify her husband before having an abortion. What is this world coming to if we can no longer kill a man's child in secret? And how unreasonable of Alito to demand this of a woman!

Update: A slightly modified version of this post was published by the Los Angeles Times online on 11/17/05 and is available here.

Arrogant Specter

2005-11-12T21:16:00.000-08:00

Arlen Specter's demand for "due process" for Bush's judicial nominees is nothing more than a demand that his desire for the limelight not be short-circuited again as it was with the Harriet Miers nomination. His chairmanship of the judiciary committee marks the pinnacle of his political career and he resents anyone raining on his parade.

Also, it is worth noting that, Specter, who fancies himself a constitutional scholar (deeming himself worthy to take on Bork in 1987), would make the argument that commenting on the Alito and Miers nominations somehow deprives them of "due process." It is hornbook law that there can be no constitutional violation, including due process, absent state action!

The Little Supremes

2005-11-09T17:25:00.000-08:00

Must read. My favorite line is: "They [The Little Supremes] were more engaged by the wonky so-called 'plumbing' courses, including ... federal courts and administrative law. One Little Supreme described the latter as 'electrical engineering for lawyers.'"

Misconstruing Alito

2005-11-08T12:38:00.000-08:00

Anna Quindlen makes some good points in this essay, published in Newsweek, until she starts making the I’m-a-woman-hear-me-roar argument. She finds fault in Alito’s dissent in the Casey decision by misconstruing what he has written (I am assuming she has at least read it!).

She claims that the only rationale behind the Pennsylvania law – mandating, with exceptions, that women inform their husbands before obtaining an abortion – must be “pay[ing] lip service to the marital bond[,] lump[ing] spousal and parental notification together, so that women become children and husbands guardians[,]” or “play[ing] some cynical game with complex decisions of conscience for the sake of the folks back home.” This assumes, incorrectly, that men have no interest in a fetus and states have no interest in protecting that interest. As Judge Alito correctly pointed out: “The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems – such as economic constraints, future plans, or the husbands’ previously expressed opposition – that may be obviated by discussion prior to the abortion.”

The other thing that should be noted is the fact that Alito agreed with the other two judges in striking down the Pennsylvania law, only dissenting from the portion that required spousal notification.

Ups and Downs

2005-11-08T00:32:00.000-08:00

In this New Yorker piece, Mr. Herzberg misleads his readers by claiming that since Harriet Miers did not receive an up or down vote, we can no longer demand that the Senate not filibuster future nominees. The demand for an "up or down" vote, after all, was a demand that a minority of Senators, using Senate procedure, not be able to impose their will on the majority. It had nothing to do with the administration, or the nominee herself, withdrawing the nominee.

Mr. Herzberg also claims that Clinton was only able to get his nominees through the Senate "because his nominees were mild-mannered moderates, and because he consulted Republican senators ahead of time." If Ginsburg (counsel to ACLU) and Breyer (counsel to Ted Kennedy), with their voting records, are "moderates," I don't know who would qualify as a liberal.

Another thing that may have been lost in the history of Clinton's Supreme Court nominees is the fact that neither one of those justices was Clinton's first choice in replacing Justice Byron White. Clinton's first choice was Mario Cuomo and I seriously doubt he consulted Senator Orrin Hatch.

More importantly, as George Stephanopoulos pointed out in his book "All Too Human," the White House consulted w/ Hatch not because they wanted to comply with the advice prong of the "advice and consent" clause of the Constitution but because "Republicans hadn't forgotten the rejection of Robert Bork, and Democrats were reeling from their recent encounters with Zoe Baird, Kimba Wood, and Lani Guinier. Sexy was good, but safe was better. We simply couldn't afford another failed nomination." (p.168)

Alito v. Luttig

2005-11-03T11:15:00.000-08:00

Conservative Ponders Other Possibility for High Court Pick
Los Angeles Daily Journal, November 3, 2005, at 7

In the days leading up to Judge [Samuel] Alito's nomination to the Supreme Court, the press was reporting that the White House had narrowed down the list to two possibilities. On Sunday, the Los Angeles Times reported that "President Bush will announce another Supreme Court nominee within days, and he appears to have narrowed the field to conservative federal appeals court judges Samuel A. Alito Jr. and J. Michael Luttig."

Though both were on every conservative's shortlist to replace Justice Sandra Day O'Connor, some were disappointed that Luttig had once again been passed over. I speculate that the reason for that may have been Luttig's close personal friendship with those justices that the left most despises.

Though both judges are deemed to be in the mold of Justices Antonin Scalia and Clarence Thomas, Alito was not actually "tainted" by his association with these justices. Luttig was not only a former clerk to Scalia when he was a judge on the D.C. Circuit, but was in the Justice Department and charged with getting Thomas (as well as Justice David Souter) through his Supreme Court confirmation hearings.

Some had even objected to the fact that after his confirmation to the 4th U.S. Circuit Court of Appeals, he deferred taking the bench until Thomas had been confirmed.

His friendship to these two justices was close enough that when the death penalty case of Napoleon Beasly reached the Supreme Court, Scalia and Thomas (along with Souter) recused themselves. Beasly was convicted of murdering Luttig's father and has since been executed (since then the Supreme Court has banned the execution of juvenile offenders).

I gather some of us conservatives, though thrilled with Alito's nomination, would have rather seen Luttig appointed, but I don't know how much of that is just the desire to see Scalia serve with his former clerk - something akin to Mr. Miyagi fighting along side Daniel-son.

Latest Letter to the Editor

2005-10-15T15:52:00.000-07:00

Championing mediocrity?
Orange County Register Online, Oct. 14, 2005

Once Miers was quoted as saying that her favorite justice was Warren Burger. The consensus about Chief Justice Burger is that his tenure was one marked by mediocrity.

Then again, maybe, that is precisely why he is Miers' favorite!

Expert Advice Column

2005-09-30T14:03:00.000-07:00

No Pay, No International Play
California Lawyer, October 2005, at 22

For those who owe a substantial amount in back child support, traveling internationally may first require a visit to the Family Law Court-and in almost all cases that will be an exercise in futility.

Federal law mandates that a passport will not be issued to an individual who "owes arrearages of child support in an amount exceeding $5,000." (42 U.S.C. § 652(k)(1) & (2); 22 C.F.R. § 51.70(a)(8).) The law creates a two-pronged test: (1) Is the right individual implicated? and (2) If so, does he or she owe more than $5,000 in back child support? If both of those questions are answered affirmatively, the court has no choice but to confirm the findings of the local child support agency.

No Local Authority
One key mistake that moving parties make in these passport cases is to assume that the local child support agencies-dispersed throughout the counties and operated with state oversight-have the authority to issue and release passports. But, in reality, these agencies are under a federal mandate to report all individuals who owe more than $5,000 in child support to the state-and the state in turn must report these individuals to the federal government. (42 U.S.C. § 654(31).)

In other words, the agencies simply have a reporting obligation. For example, if a court were to order the agency to release a child support obligor's passport, it would effectively be ordering the agency not to report the individual. The judiciary has no authority to order the executive not to execute a law unless the law is declared unconstitutional. (Cal. Const. art. 3, § 3.)

No International Travel Right
Another common mistaken belief is that the child support obligor's fundamental right to travel is implicated. However, unlike the right to interstate travel, international travel is not considered a fundamental right. (Zemel v. Rusk, 381 U.S. 1 (1965); Califano v. Aznavorian, 439 U.S. 170 (1978); Haig v. Agee, 453 U.S. 280 (1981).) Thus, "the Government need only advance a rational, or at most an important, reason" for imposing the travel ban. (Freedom to Travel Campaign v. Newcomb, 82 F. 3d 1431 (9th Cir. 1996).)

Passing the test
The passport scheme passes this test. As the Ninth Circuit recently opined, "There can be no doubt that the failure of parents to support their children is recognized by our society as a serious offense against morals and welfare. It is in violation of important social duties and is subversive of good order. It is this very kind of problem that the legislature can address." (Eunique v. Powell, 302 F.3d 971, 974 (9th Cir. 2002).)

Therefore, Congress can decree that a parent's obligations to his or her children "must take precedence over international travel plans." (Eunique, 302 F. 3d at 976.)

The Second Circuit has likewise dismissed constitutional challenges to this scheme. (See, Weinstein v. Albright, 261 F.3d 127 (2001); see also, In re Walker, 276 B.R. 568 (Bkrtcy. W. Dist.Tex. 2002) (filing for bankruptcy will not result in release of passport).)

How Counsel Can Help
Once you have determined that the obligor is in arrears in excess of $5,000, it would be a waste of a client's money, and therefore possibly a violation of ethical duties, to file motions requesting a passport. The court simply has no authority to order the passport released.

The one area in which attorneys can assist their clients is in determining whether an obligor is indeed in arrears on a child support obligation in excess of $5,000. Note that the law requires reporting child support arrears only. For example, if an agency is reporting all of an obligor's arrears, and less than $5,000 is for child support, the agency can be mandated to correct its reporting.

Likewise, if a balance of more than $5,000 is owed for child support arrears, with an additional sum owing for spousal support arrears, the obligor only needs to bring the child support balance below the statutory amount of $5,000 to get a passport released.

This strategy will work given the requirement that child support arrears are to be paid before spousal support arrears. (Cal. Fam. Code § 5238.)

Once these requirements are satisfied, the responsible agency will likely voluntarily release the obligor's passport.

Media, Liberals Should Not Label Themselves Moderate

2005-09-04T22:46:00.000-07:00

Los Angeles Daily Journal, Sept. 2, 2005, at 6

In a letter to the editor of the Los Angeles Times, which, to the paper's credit, it published, I recently chided the Times for what I perceived as an attempt by them to change our political dictionary.

More specifically, I wrote, "The Times is trying to change our lexicon by replacing the dreaded word 'liberal' with the more palatable 'moderate.'" The July 6 story, "It's Not Politics as Usual With Gov.'s Judicial Picks," describes state Supreme Court justices as either "conservative" or "moderate," with Chief Justice Ronald M. George somewhere in the middle as the swing vote. The opposite of "conservative" is now apparently "moderate."

Or more blatantly, as if dealing with a bunch of morons, professor Bruce Ackerman, in a commentary, continually describes Supreme Court Justice David H. Souter, who is pro-abortion, pro-gay rights, anti-death penalty and anti-property rights, as a "moderate conservative" ("Bush and the Stealth Justice," July 7 Los Angeles Times).

Are we still to believe the media does not have a liberal (or maybe that should be "moderate") agenda?

Although I stand by my criticism of The Times, I recently discovered that I should not have singled the paper out. The problem is mediawide, with their pandering to professors from elite institutions - mostly liberal - and giving them almost exclusive access to the Op-Ed pages.

In a recent Harper's article, for example, law professor Cass Sunstein announced that "[t]he left no longer exists." The writer declared, "Justice John Paul Stevens is a Republican moderate."

Similarly, Tinsley E. Yarbrough's new biography of Souter is titled "Traditional Republican on the Rehnquist Court." (Maybe Oxford Press thought "Massachusetts Liberal on the Rehnquist Court" would not sell as well.)

I am not sure what a "traditional Republican" or a "Republican moderate" is, but I am certain that neither Republican category would vote to take a person's home and give it to a pharmaceutical giant because the latter could pay higher taxes. Republicans - traditional and moderate alike - tend to favor the death penalty, would not cringe at the mention of God in the public place and would tend to be against advancement of the gay-rights movement by judicial fiat. They do tend to be divided on the abortion issue, though most would not tolerate the so-called partial-birth abortion. Neither Stevens nor Souter fits this mold.

Likewise, professor Erwin Chemerinsky wrote in the Los Angeles Times, "[Justice] Kennedy has been a solid conservative" - one who, Chemerinsky pointed out, has voted to uphold Roe v. Wade and was the author of the Lawrence v. Texas decision (finding in the U.S. Constitution a right to homosexual sodomy). He also was the crucial fifth vote in the recent Kelo decision, authorizing the city of New London to take people's homes and give them to the pharmaceutical giant Pfizer (conservatives Justices Rehnquist, Antonin Scalia and Clarence Thomas, along with Sandra Day O'Connor, were in dissent).

Finally, professor Ross Baker wrote in USA Today, "No one doubts that the choices of Republican presidents will be conservative and those of Democrats will be more liberal." Stevens and Souter were both nominated by Republican presidents. They are hardly conservative. And while Reagan appointees O'Connor and Kennedy tend to be more conservative, Clinton appointees Ruth Bader Ginsburg and Stephen G. Breyer are as liberal as it gets. So Baker's statement should be edited to read, "The choices of Republican presidents tend to be more conservative, and those of Democrats will be liberal."

I don't know any conservatives who shy away from being called a "conservative," whereas liberals try to avoid the label "liberal" as if it was the plague. Why is that the case if they believe that their policies and agendas are sound?

Chemerinsky Misleads in Criticism of Thomas

2005-08-22T16:12:00.000-07:00

Los Angeles Daily Journal, August 19, 2005, at 7

Professor Erwin Chemerinsky again, in his zeal for advancing the liberal agenda, and possibly derailing the John Roberts nomination, misleads the readers. (“Thomas, Unbridled, Would Gut 200 Years of Precedent,” Aug. 5 Daily Journal)

First, he asks, “whether Roberts will be a mainstream conservative in the mold of Sandra Day O’Connor or another vote for Thomas’ more-extreme views.” Roberts could fall somewhere in between, such as a Rehnquist or a Scalia. Or, God-forbid, he could turn out to be another Souter.

Next, Chemerinsky asserts, “Thomas believes that the Establishment Clause was meant solely to keep the federal government from creating churches that would rival existing state churches.” Thomas is right on this point. Early on, in Barron v. Baltimore, 32 U.S. 243 (1833), the Supreme Court announced that the Bill of Rights applied only to the federal government.

In the words of Chief Justice Marshall, “[t]hese amendments demanded security against the apprehended encroachments of the general government – not against those of the local governments.”

Not until after the Civil War did the Supreme Court, through the doctrine of selective incorporation, started reading most of the protections of the Bill of Rights into the Due Process Clause of the 14th Amendment. I think scholars will disagree forever on whether that was the intent of the Framers of the Civil War Amendments.

Chemerinsky, however, is not addressing the validity of these arguments for the Establishment Clause. He simply makes an adverse-possession argument, claiming that this so-called wall of separation was made applicable to the states so long ago (almost 60 years ago) and it was done so in such a hostile, open and notorious matter that to question its validity now would be radical. And he tends to make this argument about every issue that Thomas may want revisited.

Adverse-possession arguments belong in discussions of property, not constitutional law.

My Published Essays

2005-05-20T13:02:00.000-07:00

Bush Must Continue to Name Strict Constructionists to Bench
Los Angeles Daily Journal, Dec. 14, 2004, at 5

I always thought if I got to meet President Bush before the election and he tried to convince me to vote for him, we would be re-enacting that famous scene from the movie “Jerry McGuire.” I would interrupt him mid-sentence and say, “Mr. President, you had me at Scalia.”

President Bush has always pledged to nominate judges in the mold of Justices Antonin Scalia and Clarence Thomas. What that means is that he is going to appoint judges that will interpret the laws and not make law, leaving policy-making to our elected representatives.

For example, a few years ago when the Supreme Court took up two right-to-die cases, Scalia (the “Stephen Hawkins of jurisprudence,” to borrow a phrase of Maureen Dowd) was criticized for commenting before the hearing that the decision should be left to the democratic process and not life-tenured judges.

The Supreme Court did exactly that, and today each state can decide for itself whether they want to authorize assisted suicide for terminally ill patients. Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997).

The Supreme Court did exactly the opposite in the 2003 term, however, by deciding that homosexuals have a constitutional right to engage in sodomy. Lawrence v. Texas, 123 S.Ct. 2472 (2003).

Our constitutional privacy rights (the word “privacy” appears nowhere in the United States Constitution) apparently include the right to engage in sodomy and to have an abortion (Roe v. Wade, 410 U.S. 113 (1973)), but do not include the right to terminate one’s own life with the assistance of a physician, even if one is terminally ill and in severe pain.

It is exactly this type of ad-hoc policy-making that ought to be left to our elected representatives; that is, to those that our accountable to us. And since federal judges – by virtue of their lifetime appointment – are not accountable to voters, the only thing that can keep them in check is the text of the law itself.

However, since so many of the decisions being handed down by the courts cannot find any support in the text of the law, the courts are resorting to novel ways – including international sentiments – in reaching the decision that they subjectively deem just. The most dangerous method of constitutional adjudication is the concept of a “living Constitution,” which is nothing more than a carte blanche to those who wear black robes to do as they please.

To those who believe in a living constitution, the words are nothing more that guidelines. The words have “penumbras” and judges are charged with – in fact bestowed with the gift of – deciphering what is in the light that emanates from the text of the words.

Whenever I hear of a “living Constitution” or the “penumbra” of the Constitution, I am yet reminded of another movie in which the advocate tried the “penumbra” approach.

In the Australian comedy “The Castle,” the government, in an airport expansion project, was attempting to exercise its “compulsory acquisition” authority to purchase the Kerrigan home. Darryl Kerrigan, the patriarch of the family, believing in the adage that “a man’s home is his castle,” decided to fight the government.

At the initial court hearing, the following exchange takes place between the judge and the solicitor, Dennis Denuto, hired by Kerrigan to represent him:

Denuto: “It’s the Constitution of Australia. This is a blatant violation of the Constitution of the Commonwealth of Australia. And when it comes to violations they don’t come any bigger.”

Judge: “What section of the Constitution has been breached?”

Denuto: “What section? There is no one section. It’s just the vibe of the thing.”

Judge: “I am afraid, Mr. Denuto, you have to be more specific.”

Denuto: “I was just starting general and then getting more specific with it. Just one moment please. [Thumbing through the constitution.] It’s all part it. This is what I’m getting at. That’s my point. It’s the vibe of it.”

Judge: “Do you have a precedent that supports this vibe?”

Denuto: “Yes! Yes I do! Just one moment.”

Denuto cites an irrelevant decision and continues: “Again it’s the vibe of it.”

After a sidebar, Denuto says: “In summing-up, it’s the Constitution…it’s justice, it’s law, it’s the vibe and… no – that’s it, it’s the vibe. I rest my case.”

After a short recess, the court finds in favor of the government.

Exactly what is the difference between the “penumbra” of the constitution and its “vibe?” Is the concept of a “living Constitution” any different that trying to get a feel for its “vibe?” Do we want life-tenured lawyers making policy for us based on what they feel is the “vibe” of the U.S. Constitution? Some of us don’t.

It requires a certain amount of arrogance to think one is powerful enough to deviate from the mandates of the law. This level of arrogance, unfortunately, is not just limited to the federal judiciary.

In a recent case, for example, the state Supreme Court, in a nod to judicial activism, refused, without explanation, to depublish an appellate decision that started its analysis by declaring: “[B]y strict application of the law, appellant should be denied relief,” and ended its analysis by granting relief and stating that they were unwilling to “sully [their] hands by participating in” what they considered to be an “unjust” ruling. County of Los Angeles v. Navarro, 2004 DJDAR 8069 (Cal.App.2nd Dist. June 30, 2004).

In cases in which judges cannot strictly apply the law they have the option of recusing themselves from the case or, better yet, hanging up their robes.

Judges in the mold of Scalia and Thomas are less likely to engage in policy-making under the guise of constitutional interpretation. And, hopefully, Bush will keep his campaign promise by continuing to nominate strict constructionists to the courts.

___________________________________________________

To Earn Discretion, Judges Must Stop Being Politicians
Los Angeles Daily Journal, Jan. 21, 2004, at 6

In a recent speech at the American Bar Association’s annual meeting, Justice Anthony M. Kennedy called on that organization to lobby Congress for the repeal of mandatory minimums in sentencing and for a return to allowing judges the discretion to be judges.

Kennedy hoped that the “Association will say to the Congress of the United States: ‘Please do not say in cases like these the offender must serve five or 10 years. Please do not use our courts but then say the judge is incapable of judging. Please, Senators and Representatives, repeal federal mandatory minimums.’”

Although, in principle, we ought to let our judges be judges (give them discretion to rule based on the facts of a given case), the timing of Kennedy’s call for more discretion – coming at a time when judges regularly are usurping the democratic process – is audacious, to say the least.

In recent years, the U.S. Supreme Court, under the guise of constitutional interpretation, has entered the “culture wars” and substituted its own judgment for that of our elected representatives. The court-created “one man, one vote” rule seems to have an exception: “five life-tenured judges, all of the vote.”

Just this last term, Kennedy, writing for a five-member majority, overturned a 17-year-old precedent and held that the U.S. Constitution guarantees homosexuals the right to engage in sodomy. Lawrence v. Texas, 123 S.Ct. 2472 (2003).

Only a few months later, taking its cue from the Supreme Court as lower courts often do, the Massachusetts Supreme Judicial Court found in its state constitution a right to same-sex marriage. That decision was by a 4-3 vote. Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003).

In support of its holding, the majority cited to other judicially created “privacy” cases, including the infamous Roe v. Wade, 410 U.S. 113 (1973), which finds in the U.S. Constitution a right to abort a child.

Although the word “privacy” appears nowhere in the U.S. Constitution, a Supreme Court majority of five periodically can find it the same way that Justice Potter Stewart found obscenity – they “know it when they see it.”

The most dangerous trend in recent years, however, has been the Supreme Court’s reliance on foreign sentiments in interpreting the United States Constitution. The majority seems to be more interested in impressing their colleagues across the Atlantic than in “interpreting” our own Constitution.

In a recent speech, Justice Sandra Day O’Connor – who concurred in the recent sodomy decision and consistently has voted to affirm the central holding of Roe – stated, “that the U.S. judiciary should pay more attention to international court decisions to help enrich our nation’s standing abroad.”

Since when is foreign relations the domain of the judiciary?

In most of these recent decisions, the Supreme Court cites to the European Court of Human Rights – which is a bad enough. In a recent case involving the death penalty, however, Justice Stephen G. Breyer supported his position by citing to the Privy Council of Jamaica, Supreme Court of India, and the Supreme Court of Zimbabwe. Knight v. Florida, 120 S.Ct. 459, 2003 (Breyer, J., dissenting).

Breyer, writing only for himself, gave lip service to the fact that it is the “Constitution for the United States of America” that he was interpreting. However, he went on to find the positions of the above foreign jurisdictions “relevant and informative.”

These types of rulings no doubt have resulted in a loss of faith in our judiciary. The more people distrust judges, the more they will attempt to alleviate this problem by advocating a system of mechanical jurisprudence, which will take discretion away from the judges.

As former U.S. Circuit Judge Robert Bork has observed, “Our Courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform.” This force will take the form of mandatory minimums, three-strikes laws, and conclusive presumptions; the ultimate goal being the reduction of judicial discretion.

At this time, the reason why we cannot allow judges to be judges is that the definition of “judge” has changed – or, at a minimum, the line between a “judge” and a “politician” has been blurred. This is, indeed, a self-inflicted wound and, no doubt, a recoverable one.

Once our judges start acting more like judges – by staying true to the text of the law and the intent of the drafters – the people once again will give them the discretion that is essential to their functioning.

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Straightening the Bar for Diversity (Senate Must Do The Right Thing: Confirm Brown Based on Jurist’s Court Experience)
Los Angeles Daily Journal, Nov. 14, 2003, at 6

One of the most memorable moments of U.S. Supreme Court Justice Clarence Thomas’ confirmation hearing was when Thomas, lambasting his critics, stated that “from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kow-tow to an old order, this is what will happen to you: You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

The confirmation hearing for Justice Janice Rogers Brown, a state Supreme Court justice nominated by President Bush to the U.S. Court of Appeals for the District of Columbia Circuit, unfortunately was somewhat reminiscent of that of Thomas.

By far the lowest blow came from a Web site called the Black Commentator. This site caricatured Brown, along with other notable black “conservatives”: Thomas, Condolezza Rice and Colin Powell.

Although the senators voiced their objections to this caricature, which portrays Brown in a despicable and racist fashion, they continually referred to it throughout the hearing, even after Brown told the committee how uncomfortable she was when she saw it.

Judiciary Committee Chairman, Sen. Orrin Hatch, R-Utah, and others argued that Democratic critics are targeting Brown because she is a conservative black jurist. Hatched alleged that Democrats are treating Brown just like Miguel Estrada, a conservative Hispanic jurist, whom democrats targeted and subsequently defeated with a filibuster.

Democratic senators responded to Hatch’s criticism by citing all of the black and Hispanic organizations that opposed Estrada and now oppose Brown’s confirmation. By this response, however, Democrats reinforced the point that Thomas was trying to make back in 1991, when he stated that it is racist to oppose blacks who “in any way deign to think for themselves.”

According to Democrats and the black community, unless one “kow-tow[s] to an old order” – supporting affirmative action, quotas, Big Government and welfare – one is not truly a “black” person: One is an “Uncle Thomas” and deserves to be ridiculed, especially by other blacks. (For example, one magazine cover portrayed Thomas as a lawn jockey.)

Brown has espoused her preference for a limited role for government in various speeches. And she had the audacity to refer to 1937, the year in which Franklin Delano Roosevelt’s New Deal agenda started taking effect, as the “triumph of our Socialist revolution.”

These turned out to be fighting words to certain senators, such as Sen. Ted Kennedy, D-Mass., who always have favored and supported our welfare state.

Unfortunately, instead of stating that those are her personal views and that she is fully capable of divorcing them from her official duties as a judge, Brown backed away from her statements, at times implying that all she was trying to do was be provocative.

The most uncomfortable portion of Brown’s hearing came early on, in an exchange between Brown and Sen. Arlen Specter, R-Penn. Specter threw some “softball” questions her way, but Brown missed the opportunity and appeared to be a constitutional novice.

The point that Specter, who fancies himself a constitutional scholar, was trying to get across was that, with regards to personal liberties, the U.S. Constitution simply creates a “floor,” not a “ceiling.” In other words, states are free to provide more liberties than those provided by the U.S. Constitution.

Brown, who has been an appellate judge for more than 10 years, refused to concede this basic constitutional point, which is well settled. In all fairness to Brown, however, Specter’s questioning was unorganized and jumbled.

Brown seemed unprepared at times. Some of this may be attributed to her nervousness. Also, she seemed inadequately coached – but some may think of this as a good thing.

Whether Brown deserves the Senate’s confirmation should have nothing to do with her personal views, religion or skin color and every thing to do with her intellect, temperament, experience, and willingness to apply the law as written. On all of these issues, her state Supreme Court record speaks for itself. The Senate should confirm Brown’s nomination.

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My Letters to Editors

2005-05-19T13:00:00.000-07:00

Judging the justices on the Supreme Court
Los Angeles Times, July 12, 2005, at B10

The Times is trying to change our lexicon by replacing the dreaded word "liberal" with the more palatable "moderate." The July 6 story, "It's Not Politics as Usual With Gov.'s Judicial Picks," describes California Supreme Court justices as either "conservative" or "moderate," with Chief Justice Ronald George somewhere in the middle as the swing vote. The opposite of "conservative" is now apparently "moderate."

Or more blatantly, as if dealing with a bunch of morons, professor Bruce Ackerman continually describes Supreme Court Justice David Souter — who is pro-abortion, pro-gay rights, anti-death penalty and anti-property rights — as a "moderate conservative" ("Bush and the Stealth Justice," Commentary, July 7). Are we still to believe the media does not have a liberal (or maybe that should be "moderate") agenda?
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Americans Have Right to Amend Constitution
Los Angeles Daily Journal, June 23, 2005, at 7

Stephen Rohde, in his opposition to the proposed constitutional amendment authorizing Congress to outlaw flag desecration, argues, "such content-based discrimination violates long-standing First Amendment principles" ("Outlawing Flag-Burning Amounts to Desecration of Constitution," June 14 Daily Journal). This is akin to saying that the 21st Amendment (ending Prohibition) violates the 18th (starting Prohibition). The whole point of a constitutional amendment is to amend (meaning alter) the Constitution.

He goes on to imply that "those we have elected who have taken an oath to defend and protect the Constitution" should not seek to amend it. This would render the provisions of the Constitution providing for the amendment process futile.

Rohde does make some valid points with regard to the language of the proposed amendment being vague, but his overall criticism in light of First Amendment jurisprudence is irrelevant because, as he points out in the second sentence of his essay, "Congress is considering amending the First Amendment ... to carve out an exception for flag desecration."

If Americans, through the constitutional process, decide to amend the Constitution to declare that they cherish their national symbol more than their right to expression, that is their constitutional prerogative.
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When Faith and Law Become Fighting Words
Los Angeles Times, April 28, 2005, at B14

Liberals tend to be OK with stating that minorities – such as filibustered D.C. Circuit nominees Brown and Miguel Estrada – are only allowed to think one way (e.g., favoring affirmative action and the welfare state). If they deviate from that mode of thinking, they will be considered a sellout or an “Uncle Tom.”

According to liberal evangelical Jim Wallis, however, when conservatives “say that people who disagree with their views and their strategy are not people of faith, they cross the line.” Hypocrisy?
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Senators’ Comments Don’t Equate to an Attack
Los Angeles Daily Journal, April 21, 2005, at 7

Professor Erwin Chemerinsky, who I generally have a lot of respect for, has sunk to a new low by comparing Tom Delay and John Cornyn’s recent irresponsible statements regarding violence towards the judiciary to those who would like to see an end to the filibuster of appellate judges. (“Attack On Courts Threatens Crucial Checks and Balances,” April 12, Daily Journal) One can denounce the minority of the Senate imposing its will on the majority while at the same time criticizing those who make stupid comments about what actions ought to be taken against the judiciary.

Chemerinky’s legal arguments are also unpersuasive. First, it is unclear why the “nuclear option” is illegitimate if the Senate gets rid of the filibuster, which is a Senate-created rule, following its own rules (regardless of whether Chemerinsky wants to label it “procedural” or “substantive”).

Next he argues that getting rid of the filibuster “of course, would eliminate any check on the ability of the president to fill the federal courts with very conservative judges.” I guess a majority of the Senate doesn’t qualify as a “check.”

Furthermore, in his historical analysis of the filibuster, he conveniently fails to mention when it was first used against appellate judges (it started with our current president).

Finally – and he has made this irrelevant argument before – he asserts that a majority of the Senate today actually represents a minority of the Americans. I don’t think this constitutional scholar needs reminding that the Senate has nothing to do with population; that is, each state gets an equal number of Senators. Had the framers wanted a popular vote on this check on the president’s power to nominate judges, they would have given the House of Representatives the power to “advise and consent.”

I guess I just expect more from Professor Chemerinsky!
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Process Due
The American Conservative, March 14, 2005, at 2

I was surprised to read Austin Bramwell’s support for Substantive Due Process (Jan. 31). The Due Process clause of the Fourteenth Amendment has been interpreted to contain certain rights, including the right to marry, have children, abort a child, and more recently, to engage in sodomy.

Bramwell argues that because the right to marry is rooted in the Constitution (the word “marriage” appears nowhere in the document), Congress can define what “marriage” means. This is legitimizing an illegitimate enterprise and ought to be avoided. It is not a good argument anyway.

Though Bramwell is correct to point out that a constitutional amendment defining marriage “has no hope of passing,” the solution is not to give in to the liberal agenda by an expansive reading of the Constitution. Not that a constitutional amendment defining marriage is a good idea. Conservatives want to minimize the powers of the federal government. We don’t want to turn that concept on its head by supporting an amendment that takes power away from the states.

A better solution is to propose a constitutional amendment that mirrors the Defense of Marriage Act. By turning DOMA into a constitutional amendment we will guarantee every state the right to decide for itself what “marriage” means and that no state needs to recognize marriages performed in another state. (This is of course necessary to avoid a court declaring DOMA unconstitutional.) This advances conservatives’ interests by (1) isolating gay marriage to a handful of liberal states, (2) promoting states’ rights, and (3) staying true to the text of the Constitution.
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Beware Arlen Specter
The Washington Times, Nov. 14, 2004, at B2

I agree with Thomas Sowell's analysis that Sen. Arlen Specter's voting record is based on the senator's own political agenda and has little to do with whether a judge is in the "mainstream" or not ("An ominous Specter: Part III, Commentary, Friday).
Mr. Specter expects us to believe that the firestorm surrounding Robert Bork's nomination in 1987, with Mr. Bork's negative poll numbers, played no role in his vote against Mr. Bork. (The nation was more evenly divided during the Clarence Thomas hearings, and Mr. Specter needed to redeem himself with his party.)
Also, Mr. Specter claims that he will not impose a litmus test on judicial nominees. However, he said something entirely different in his book, "Passion for Truth." In the chapter dealing with Mr. Bork's nomination to the Supreme Court, Mr. Specter wrote, "In my judgment, the Senate should resist, if not refuse, to confirm Supreme Court nominees who refuse to answer questions on fundamental issues." Are we to believe that this pro-choice senator wants judges to take a stand on "fundamental issues," such as abortion, out of curiosity? Mr. Specter at the helm of the Judiciary Committee is a dangerous proposition for Republicans.

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Scalia Does Protect Criminal Defendants
Los Angeles Daily Journal, Oct. 22, 2004, at 7

Professor Rory Little’s otherwise good article (“Supreme Court Decisions on Sentencing Ignore Intentions of Constitution’s Framers, Oct. 4 Daily Journal) on the Blakely decision was somewhat ruined by his ill-advised, and unnecessary, criticism of Justice Antonin Scalia.

Little claims that the “brilliant” Scalia may have devised the Blakely decision so that prosecutors will have a “constitutional obligation to introduce” aggravating evidence to the jury. And he may have devised the plan, not because he wanted to protect the criminal defendant’s constitutional rights as alleged but because “he has never been viewed as sympathetic to criminal defendants.”

Little seems to have forgotten about other decisions sympathetic to criminal defendants penned by Scalia when, in the justice’s view, the text of the Constitution has mandated it. In Kyllo v. United States, 53 U.S. 27 (2001), for example, Scalia wrote a majority opinion finding that the “use of thermal imaging to measure heat emanating from a home was a search” and thus violative of the Fourth and 14th amendments.

In Maryland v. Craig, 497 U.S. 836 (1990), Scalia dissented from the majority’s holding that the Confrontation Clause is not violated when a child witness in a child-abuse case testifies against the defendant at trial “outside defendant’s physical presence, by one-way closed-circuit television.”

A few years earlier, in Coy v. Iowa, 487 U.S. 1012 (1998), that time writing for the majority, Scalia held that the placement of a screen between the defendant and a child sexual-assault victim during testimony against the defendant violated the defendant’s Confrontation Clause rights.

Not exactly a good track record for one hostile to criminal defendants’ rights!

Also, Little’s comment is insulting to the justices who signed on to Scalia’s opinion in Blakely – Stevens, Souter, Thomas, and Ginsburg – by implying that these half-wits did not know what they were doing.

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Long Live Miranda
ABA Journal, 86 A.B.A.J. 12 (June, 2000)

Constitutional aspects of Miranda and its progeny aside, given the frameworks of our judicial system, I find the Miranda decision a bit curious. Throughout law school and in practice we consistently come across cases that announce, “Ignorance of law is no defense.” Given the foregoing pronouncement, if ignorance of law cannot be used as a shield, how is it that ignorance of our most fundamental law – namely the U.S. Constitution – has been allowed to be used as a sword for all these years?

Writings on Iran

2005-05-18T12:55:00.000-07:00

Another Perspective of Persian Gulf Map Flap
Los Angeles Times, Dec. 4, 2004, at B28

Re “Iran’s Anger Over a New Map Magnifies a Perception Gulf,” Dec 2: Your article has a tone suggesting that Iranians’ response to this slight by the National Geographic Society is unreasonable. I wonder how much complaining Americans would partake in if the next National Geographic map of the U.S. identified some of the Western states, such as California, as “formerly Mexico”?

The rationale for the alternate name for the Persian Gulf is “want[ing] people searching for ‘Arabian Gulf’ to be able to find what they’re looking for.” The National Geographic Society needs to stay out of politics.

Misc. Projects

2005-05-16T16:05:00.000-07:00

While in Law School I worked as research assistant to Professor Garland. In that capacity, I drafted the 1998 supplement to Exculpatory Evidence, and edited various sections of Criminal Evidence for the Law Enforcement Officer. I also served on the editorial board of the Southwestern Journal of Law and Trade in the Americas.

Published Opinion

2005-05-15T15:57:00.000-07:00

I represented Riverside County in In re McDaniel, an appeal before the Bankruptcy Appellate Panel of the 8th Circuit Court, which resulted in a published opinion.