Alito's Smoking Gun

Mr. Meyerson is correct to point out that a "strict construction" of Judge Alito'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.

One thing that we need to remember, however, is that in 1992 when Justices O'Connor, Kennedy, and Souter voted, in a joint opinion, to uphold the central holding of Roe, they did so not because they thought the United States Constitution contains a right to an abortion but because they declared "liberty finds no refuge in a jurisprudence of doubt." In other words, they tacitly declared that though Roe was wrongly decided, we will not disrupt it because for the past 19 years we have come to rely on it.

That is question that Judge Alito needs to answer. Does he think that certain decisions are best left settled, as opposed to settled correctly? I gather that like some of us, he will not be able to answer that question until he is actually presented with the issue in an actual case.

Some dabbling in non-legal/political writing

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?

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.

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

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

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

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

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

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.