Tuesday Morning Blog Round-Up.

A quick look around the legal blogosphere this morning:

Coretta Scott King:


There's a good post over at Firedoglake commemorating the passing of Coretta Scott King. A woman of grace and dignity, for whose presence the world is a better place.

Appellate Practice Tips:

The North Dakota Supreme Court has posted some tips for appellate practice. Although some of them are specific to North Dakota appellate practice, many are generally good tips for anyone who engages in appellate practice. Some of them are even somewhat humorous:

"When your client wants to appeal as a matter of principle, tell the client how much principal it will take."

"Seek to persuade, not to show how much you know."

"'Civility is not too much to expect in a civilized society's alternative to brute force, stealth, and deception.' See Jacobson v. Garaas, 2002 ND 181, ¶ 37, 652 N.W.2d 918."

Go check it out.

Hat-tips:
Appellate Law and Practice
Legal Writing Prof Blog

Alito Up-Down Vote:



As Bashman reports (with several good links), the up-down vote on Alito is scheduled for 11 a.m. today. It'll be on C-Span, etc. Barring some shocking twist, this is already a foregone conclusion.









Oscar Nominees:



Okay, so I know the Oscar nominees being announced is not really "legal" news of any sort. But it's good enough for Ms. Althouse to comment on, so it's good enough to mention here.

Jurist Editorial: Dangers of Presidential Spying

Jurist has a new editorial up by guest columnist Brian Foley of Florida Coastal School of Law. Foley writes about what he perceives as the "real" danger of the Bush administration's authorization of the NSA warrantless eavesdropping program. According to Foley:

The most important issue is not, however, whether people feel comfortable talking on the phone or sending emails. The real danger is that electronic surveillance can be used to increase and solidify executive power. A president can collect private information not simply about “ordinary Americans,” but extra-ordinary ones – political rivals, journalists, and activists – and use this information against them. After all, if a president is convinced he is right, he may well view those who disagree with him as dangerous and believe it’s legitimate to use any means available to stop them.

Foley compares the danger here to what came to light "in the aftermath of President Nixon's harassment of political enemies" 30 years ago. Foley also takes a look at a few "scenarios" of what could happen if executive power is allowed to expand too far with this type of "spying" program, including the possibility of the executive using illicitly obtained information against political enemies.

According to Foley, the biggest danger is not really the theoretical potential harm to the privacy rights of ordinary citizens. Rather, it's the theoretical potential harm to the political process that could result from allowing unchecked executive power. Foley concludes:

The virtually undetectable abuses that can result from presidential spying pose an enormous and immediate threat to the viability of our government. Although the issue generally has been framed as a legal issue, perhaps to be decided ultimately by the Supreme Court – while the present administration continues surveillance under its more than four-year-old program – we must recognize that presidential spying is first and foremost a political issue. Congress should not wait for the courts to determine whether the president has broken the law but should act immediately to stop the spying – before this or any future president renders his opponents too scared to do anything but submit to his will.

Miscellaneous Monday Morning.

BlawgReview #42

The Forty-Second edition of BlawgReview is up this morning over at CyberLawCentral. In honor of it being the "42"nd edition, the author chose to build this week's blawgreview around the theme of the Hitchhiker's Guide to the Blawgosphere. It's an interesting trek through some of the best legal blog posts of the past week. Go check it out.

"SPELL"

Courtesy of Legal Writing Prawf Blog comes a post about "SPELL," the Society for the Preservation of English Language and Literature. It's a group for those of you who get all bent out of shape about spelling and grammar mistakes, etc. If you feel like you don't really fit in with any other group, you might want to consider joining this one.

Wiretapping Link Repository
This story doesn't seem to be going away. So there's some new updates.

The Friday Fantastic Four #4: January 27, 2006.

1. Featured Law-Oriented Blog.
This week's featured law-oriented blog is "decision of the day", which provides "a daily summary of the best (and worst) of federal appellate decisions. I've been casually following this site for a couple of weeks now, and it provides a remarkably thorough summary of appellate court decisions released every day across the country in the federal courts. Perhaps one of the strongest aspects of this site is the fact that the summaries are not just dry recitations of technical legalese, but, rather, provide very readable summaries of the key decisions and what they really mean or stand for.

If you are involved in federal practice, or if you just have an interest in federal court decisions, this site will be an invaluable resource for you. Go check it out.

2. Featured Law Commentary.

a. Temple's Gary Kairys is wary of Alito.

Since the Alito nomination is currently being debated by the Senate, I thought it appropriate topick some "Alito-commentary" this week. First up, is an editorial posted on Jurist this week written by David Kairys of Temple Law.

Kairys argues that the Senate should be "wary of endorsing [Alito's] commitment to legal technicalities over core constitutional values." Kairys notes:

Judge Samuel Alito is smart, fair, collegial, and independent. He’s qualified, and he calls 'em how he sees 'em. But that's the problem - how he sees 'em.

The Constitution consists of short, general phrases - freedom of speech, due process, commerce among the states - whose meaning at particular times and in particular circumstances is left to the justices of the Supreme Court. The justices have broad discretion because the meaning of these phrases is open to a wide range of interpretations.

The discretion of judges, particularly Supreme Court justices, is not a deviation from the system - it is the system. Supporters of the Alito nomination can't seem to make up their minds if they like him because he doesn't apply values or because he applies values they like. But this (and every) Supreme Court nomination is about values, not the absence of values.

Kairys notes:

Alito’s decisions as a judge, like his testimony, usually don’t repudiate established laws or principles or make major pronouncements. Rather, his method is the tedious, often trance-inducing interpretations and applications displayed at his confirmation hearings.

Like the rest of us, he’s for a clean environment and corporate responsibility, but he interprets environmental laws so it's near impossible to make out a case against a polluter, and anti-trust laws so it’s near impossible to make out a case of price fixing.

He tells us about the importance of privacy and of limits on the government’s power to intrude on individuals, which are the essence of liberty. But he accepts farfetched rationales to justify most any intrusion – even the unauthorized strip search of a 10-year-old girl and the unauthorized holding of a farmer at gunpoint and ransacking of his home.

He’s for balance among the three branches government, but he’s taken every opportunity to strip Congress of the basic power to protect and serve the public. He voted, based on lack of congressional power, to invalidate the decades-old ban on machine guns in spite of numerous decisions to the contrary, and to invalidate a provision on sick leave benefits approved even by Chief Justice Rehnquist.

He’s for religious freedom, but used an obvious sham to get around decisions on the separation of church and state.

His judicial opinions don't repudiate anti-discrimination laws, but they advocate evidentiary requirements and legal rules that would make it near impossible to make out a case of race or sex discrimination.

In many such decisions, he was a lone dissenter, and majorities on his own court, including then-judge and now Secretary of Homeland Security Michael Chertoff, often expressed unusual displeasure with his dubious manipulations of rules and evidence.

Ultimately, Kairys suggests that the Senate should be wary of Alito because "Alito believes in freedom, but it's the freedom of the most powerful and wealthiest among us and of the government to do as they please, with little or no concern for the effect on most Americans or the nation as a whole."

b. Richard Garnett is Pro-Alito.

On the other hand, Richard Garnett from Notre Dame Law thinks that Alito and O'Connor have similar views, at least with respect to religious freedom. In an editorial in USA Today, Garnett notes:

Alito is an eminently worthy successor to O'Connor. What's more, he is all the more fitting a replacement, given their shared commitment to what has been quite rightly called our “first freedom”: The freedom of religion protected by the First Amendment.

Like O'Connor, Alito understands that our Constitution does not regard religious faith with grudging suspicion, or as a bizarre quirk or quaint relic. They both appreciate that, in our traditions and laws, religious freedom is cherished as a basic human right and a non-negotiable aspect of human dignity. This is why both jurists have occasionally come under fire from activists who misunderstand the “separation of church and state.”

Garnett compares O'Connor and Alito on religious freedom:

In case after case, O'Connor has vindicated this understanding. For example, in the 1994 Kiryas Joel case, she insisted that “government impartiality, not animosity, toward religion” is the constitutional touchstone, and that the First Amendment neither requires nor permits “hostility to religion, religious ideas, religious people, or religious schools.” Yes, as in the recent Ten Commandments cases, she has disapproved religious activities or expressions that, in her view, exclude some by endorsing the faith of others. At the same time, though, she has vigorously defended accommodations for religious believers and their right to participate fully and speak openly in the public square. Accordingly, in Rosenberger v. University of Virginia, she agreed that the First Amendment does not permit a state university to exclude a student newspaper from a program designed to fund student activities and publications simply because the paper endorsed and proposed a Christian perspective.

Alito has been equally vigilant and clear in policing discrimination against religious believers, conduct and expression. In a 1999 case, he wrote that the First Amendment did not permit the police department of Newark, N.J., to exempt officers from its no-beards policy on medical grounds while refusing similar accommodations to Muslims. He said the department had, in effect, made “a value judgment in favor of secular motivations, but not religious motivations.” That same year, he upheld Jersey City's holiday display — which included, among other things, a crche and a menorah — emphasizing that the display was a permissible recognition of citizens' faith and the city's diversity, not an unconstitutional establishment of religion.

Ultimately, Garnett concludes that "At the heart of O'Connor's legacy is an insistence that our Constitution does not mandate a public square scrubbed clean of religious symbols and speech, and that equality and neutrality — not hostility or marginalization — are the watchwords of our First Amendment. With Judge Alito, that legacy is in good hands."


3. Featured Non-Law-Oriented Blog.

This week's featured non-law-oriented blog is Swapatorium. This site is simply amazing. It's something unlike any other site I've come across on the blogosphere, and I just had to share it.

The site describes itself as "A journey through junkland - flea markets, thrift stores, antique shops, garage & estate sales, found photographs, collecting, odd finds, (&) swaps." The site regularly features old photographs from the author's collection, mug shots, and diary of a girl excerpts from a little girl's vintage diary. There's just so much to see at this site, that you really have to spend a little time wandering through the archives and old posts. It's nostalgic, it's fun, and it's fascinating. And it's totally different from most of the blogosphere.


4. Featured Just-For-Fun Site.
This week's featured just-for-fun site is a quiz over on Quizilla. Specifically, it's the "Which Canon of Statutory Construction Are You?" quiz. Trust me ... it "could" be fun, you know, if you're into statutory construction canons and stuff.

You are the Golden Rule! You presume that the
legislature would not want to apply the
statute to achieve an unreasonable or absurd
result inconsistent with its purpose. It's
not what's on the surface that matters for
you, and you try to do what's best in any
given situation. You're a bit unpredictable,
but you don't mind.


Which Canon of Statutory Construction are You?
brought to you by Quizilla

Previous Friday Fantastic Four Posts:
FFF #3: January 20, 2006
FFF #2: January 6, 2006
FFF #1: December 30, 2005

A Picture Worth a Thousand Words.

According to CNN.com:

Attorney General Alberto Gonzales had trouble tapping into a group of hooded protesters at Georgetown Law School in Washington on Tuesday.

The university was one of the stops on Gonzales' circuit as he attempts to defuse criticism of the National Security Agency's domestic spying program.

But as the attorney general tried to convey that the extraordinary circumstances of the September 11, 2001, terror attacks justified the program, the protesters turned to one of America's Founding Fathers for their rebuttal.

"Those who would sacrifice liberty for security deserve neither" -- a paraphrase of a quote attributed to Benjamin Franklin -- had been scrawled in capital letters on a sign that required four protesters to hold it up.

Gonzales didn't acknowledge the sign nor did he stop his speech as 22 protesters, including the four with the sign, stood with their backs to him during the address. Five protesters left the room during the speech.

(Hat-tip: Seth.)

Ninth Circuit: Possession of Assault Weapon Is Not A "Crime of Violence."

Ninth Circuit Says Possession of Assault Weapon Is Not A 'Crime of Violence'.



As reported on earlier at Volokh Conspiracy, the Ninth Circuit issued an opinion (.pdf) on Monday in a case involving the federal sentencing guidelines. The opinion, authored by Judge Kozinski, ultimately concludes that possession of an assault weapon is not a "crime of violence" for which the sentencing range can be increased.

The defendant in the case, Xavier Serna, pleaded guilty to being a felon in possession of a firearm. Serna had previously been convicted under state law for violating a California statute prohibiting possession of an assault weapon. The subject of the opinion is entirely the prior state court conviction and its impact on the sentencing range. It is not clear from the opinion whether Serna was, at the time of the state court conviction, a felon. It seems to me that the logical implications of Kozinski's rationale in the present case suggest that Serna was not a felon at the time of the prior conviction, or Kozinski's rationale seems to fall apart.

The sentencing guideline at issue, Section 4B1.2(a), defines "crime of violence" as

"any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another, or . . . involves conduct that presents a serious potential risk of physical injury to another.

The Ninth Circuit's opinion methodically follows the language of this statute to ascertain its meaning. There is no dispute that the prior conviction was punishable by imprisonment for a term exceeding one year, and there is no assertion that the prior conviction involved any kind of physical force against another; the prior conviction was simply for possessing the assault weapon. As such, the key to determining whether that prior conviction involved a "crime of violence" is to determine whether simple possession of an assault weapon "involves conduct that presents a serious potential risk of physical injury to another."

The Ninth Circuit's opinion methodically follows through the various arguments that can be made on this last part of Section 4B1.2(a). Simply possessing an item that has the potential to cause physical injury is not enough, or possession of any number of otherwise innocuous items might be classified as a "crime of violence."

Where the Ninth Circuit's opinion becomes a bit unclear, however, is when the court notes that "[o]ur caselaw and the Sentencing Guidelines instruct that being a felon in possession of a firearm is not a crime of violence." The court notes this as a transition to concluding that because illegal possession of an ordinary firearm is not a crime a violence, "possessing an object designed to be lethal does not alone pose a 'serious potential risk.'" I think it is the nonsequitor in this transition that potentially creates confusion. By specifically raising the specter of "being a felon in possession of a firearm," the court has planted the notion that Serna might have been a felon at the time of his prior conviction, albeit likely unintentionally.

The court's subsequent rationale for why possessing an assault weapon is not a crime of violence turns largely on the potential "legitimate" uses of the assault weapon. The court concludes that some items, like silencers and sawed-off shotguns, "have few, if any, legitimate uses." As a result of this nature, Congress requires registration of silencers, sawed-off shotguns, and other similar firearms. The court then concludes that Congress' failure to impose a blanket registration requirement on assault weapons is a recognition "that they have lawful uses and are less likely to lead to unlawful violence than sawed-off shotguns and silencers."

Whether Serna was a felon at the time of his prior conviction is crucial to the validity of the Ninth Circuit's analysis, even though the court never makes his status at that time clear. If Serna was, in fact, a felon at the time of his prior conviction, then it could certainly and logically be argued that there was no legitimate use of an assault weapon by him -- any possession and any use would be inherently unlawful and illegitimate. It seems to me that the court's analysis, and its reliance on the "legitimate use" rationale, strongly suggests that Serna was not a felon at the time and that it was unlawful for him to possess the firearm only because of the specific California statute prohibiting possession of assault weapons, not because of any felon status.

(**UPDATE: On further consideration, I'm still not sure why the Ninth Circuit concluded that the "legitimate" uses of assault weapons makes the criminal possession of them not a crime of violence. Following my own reasoning above that possession by a felon would, by definition, be "illegitimate" isn't it similarly the case that if the California statute explicitly made *any* possession of an assault weapon illegal then, by definition, there is no "legitimate" use for an assault weapon in California (at least at the time of this prior conviction)? For example, while the Ninth Circuit talks about things like sporting uses and self-defense, etc., if mere possession of the assault weapon is prohibited, how can one "legitimately" use an assault weapon for sporting uses or self-defense? They can't, can they? Any thoughts or comments? Where is the breakdown in my logic on this one? Would it be a better phrasing of the logic in the Ninth Circuit to say, rather than "legitimate" uses that there are uses for the particular weapon which are not serious potential risks of injury to another, such as sporting uses? Then, even though not "legitimate" in the sense of lawful, the key term in the statute might remain unsatisfied?)

This and That on Tuesday, January 24, 2006.

Blog Archives
I noted a while back that I was working on creating archives to past posts here at Kierkegaard Lives. I notice that Seth noted just Sunday that Blogger makes it very difficult to do such a thing. My solution was to create a separate blog just to post those "Archives" on. I finally completed going through the old posts and uplinking them in the Archives blog. As a result, you'll notice over on the sidebar that there are now links to various categories of posts. Which category (or categories) each post goes into is solely within my whim, and may not always make sense to you. You'll have to deal with it. It's the best I could do. I even got a message from Blogger noting that my "Archives" blog will have to be reviewed because it has characteristics of a "Spam Blog." Perhaps if they made archiving easier such things wouldn't happen. Anyway, let me know if you have any problems or suggestions for improving the archives.

**UPDATE: January 27, 2006: I'm temporarily removing the archive links from the sidebar. Shortly after I finished spending hours and hours compiling the archives and getting the "secondary" blog links all set up, the secondary blog that I was using for archiving was deleted by Blogger. My efforts to get an explanation all week have, thus far, yielded absolutely nothing. I received no warning, no request for information, nothing. They just deleted the archives. So until I get it straightened out, I'm removing the dead links from the sidebar.

**UDATE: February 17, 2006: As I noted in a post today, I finally (nearly a month later) got a response from a real live person at Blogger "Support" and have been able to restore the Archives. I've added the links back to the sidebar. Thanks to Samantha at Blogger Support.

Alito Passes Committee

Ok, so perhaps I'm being a bit cynical in saying that Alito passing the Judiciary Committee is the most obvious news ever. But it's close. If you want details about the vote (which was strictly party line), you can go to any of the following links and read to your little heart's desire:

Associated Press
NY Times
Jurist
SCOTUS Blog
TalkLeft
Firedoglake

Enjoy. More coverage when the vote goes before the entire Senate. It looks like the Republicans are pushing to get that done before next Tuesday's State of the Union, so watch for coverage of that later in the week.

Lawyer Seeks Dismissal of Criminal Case Because of NSA Surveillance

TalkLeft is reporting that what is believed to be the first filing seeking dismissal of criminal charges based upon the NSA Surveillance program has been filed. The details are in this story in the TimesUnion. According to the article:

An FBI sting case that targeted two members of an Albany mosque should be dismissed because the investigation originated from a national spying program that may be illegal, an attorney for one of the defendants said in a motion filed in U.S. District Court.
Advertisement

The challenge of the government's case against Yassin Aref and Mohammed Hossain, who are accused of taking part in a plot to sell missile launchers to terrorists, may force federal prosecutors, and a U.S. District judge, to address a national debate unfolding about whether the National Security Agency violated any laws by eavesdropping on U.S. residents.

Terence L. Kindlon, Aref's attorney, filed a nine-page motion late Friday asking for all evidence in the case to be thrown out, and for a dismissal of the indictment. While defense lawyers in the case have been requesting access to classified evidence for more than a year, the new motion specifically targets the NSA program.

"The government engaged in illegal electronic surveillance of thousands of U.S. persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a nonexistent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref," Kindlon's motion said.

Kindlon's motion was filed several days after the New York Times, citing anonymous sources, reported that the NSA spying program may have prompted the FBI to zero in on Aref and Hossain. An analysis on the spying program by Harvard Law School Professor Laurence H. Tribe, a noted legal scholar on constitutional law, is attached to Kindlon's motion. Tribe's report, which was solicited by U.S. Rep. John Conyers Jr., D-Mich., calls the NSA eavesdropping program "as grave an abuse of executive authority as I can recall ever having studied."

Inasmuch as this seems to be the first filing bringing the legality of the NSA program into controversy in an actual case, the developments here could be interesting. As they say, stay tuned.

Professor Kerr's Thoughts on First Year Law School Grades

Knowing some people who are still in law school, and knowing that first semester first year grades have recently come out, this post over at Volokh Conspiracy might be an interesting read. It's about how much (or how little) you should make of those first semester first year grades. I don't disagree with much of Kerr's thoughts, except that I think he may go a tad too far in downplaying the importance of such grades. His advice is all sound, and the long-term importance of those grades may be just as he suggests. But in the short-term, there's little doubt that those grades will have an impact, at least in the minds of some potential employers, on interviews for summer clerkships, etc. And even upon graduation it's not unlikely that employers will at least pause if they see low grades in some of those first semester core classes. Following Kerr's advice could well put people in a position to at least get an interview, though, and then an opportunity to explain what happened or why those first semester grades shouldn't be weighed too heavily.

Blawg Review #41

Jonathan Wilson over at Jonathan B. Wilson is hosting Blawg Review #41 today. A few of the highlights from last week's blawgging:

Patriot Search: A search engine that works much like google but has the added advantage of sending your personal information directly to the government for their perusal.

Rosa Brooks' post about "Goodbye to Law Reviews?", in which she questions the utility of continued law review publication post-tenure.

"Let's Make The Word 'Blawg' Obsolete" over at F/K/A, arguing for getting rid of the use of the word "blawg."

As always, you can get more information about BlawgReview and upcoming hosts at BlawgReview.com.

Missing Child: Amber Harris

Amber Harris, missing since November 29, 2005, from Omaha, Nebraska:

Amber Harris is considered to be missing and endangered. She was last seen wearing light blue jeans, a black and white wind-breaker jacket and white K-Swiss shoes. She was carrying a new black and white Nike book bag. Anyone with information on her whereabouts and/or this case is urged to immediately contact the Omaha Police Department (402-444-5600).

More Information Here.

The Friday Fantastic Four.

1. Featured Law-Oriented Blog.

This week's featured law-oriented blog is Progressive Law Blogs Aggregator. The blog is basically a running aggregator of posts from a number of "progressive" blogs, including Daily Kos, Balkinization, Sentencing Law & Policy, Talkleft, and others.

What I find most useful about this blog is that it lets you quickly scan through a short synopsis of the latest postings from each of the "included" blogs. Instead of having to individually keep up with all of these different blogs, you can check the Progressive Law Blogs Aggregator for updates to all of them at once.

2. Featured Law Commentary.


This week's featured legal commentary is Edward Lazarus' editorial about the Alito hearings. Lazarus argues against the more technical considerations of what Democrats might have done differently or better in questioning Alito, and argues for a more substantive examination of what lessons can be gleaned from last week's hearings. Lazarus argues that one important substantive lesson is that nominees now need to portray themselves as relatively moderate to secure confirmation, even in the currently conservative dominated Congress.

Lazarus notes the following significance of the nominee's need to at least portray himself (or herself) as a moderate:

My point here is not to suggest that Alito is going to be anything other than the very conservative jurist he has always been. On the contrary, I fully expect him to be more conservative than Roberts and perhaps as conservative as Scalia, though probably without the originalist trappings.

But it is still significant that conservatives appear to recognize that the legal rollbacks they seek are sufficiently unpopular with the public at large that no candidate for the Supreme Court can openly endorse them. Indeed, nominees have to explicitly repudiate much of the real right-wing legal agenda, or else risk Senate rejection.

This seeming disjuncture between right-wing jurisprudence and public opinion raises some intriguing possibilities.

One possibility is that Roberts and Alito will stay true to the moderate conservative image that they sought to project at the hearings. If so, the ideological shift at the Court will be fairly modest. It was, after all, already a conservative court by most benchmarks.

A second possibility is that either Roberts or Alito or both will treat their testimony before the Senate as a means for achieving life tenure, rather than as a sincere expression of their views - and that, over time, one or both with emerge as a radical conservative in the Clarence Thomas mold.

Naturally, such an eventuality would have significant consequences for the political balance of the Court. Depending on who replaces 85 year-old John Paul Stevens once he retires, if Roberts and Alito turn out to be radical conservatives, a major retrenchment becomes a very real prospect.

At least some interesting thoughts to ponder.

3. Featured Non-Law-Oriented Blog.

Bloglines. This is a great resource if, like me, you try to keep up with a significant number of blogs and websites. The concept is simple. You go to bloglines, go through a free registration to create an account, and then add the RSS feeds of your favorite sites to your bloglines "feeds" list. Then you can simply log in to bloglines, open up "My Feeds" and see what sites have been updated and what the latest posts on all your favorite sites are. A quick synopsis that lets you scan whether you want to go read the entire post or not.

This really is an incredible time-saver. The only drawbacks I've found so far is that not all of my favorite sites have RSS feeds, and that on occasion I get an error message related to some of the sites. But on the whole Bloglines is really saving me lots of time. And Kierkegaard Lives can be syndicated through Bloglines; just click the little Bloglines button over on the sidebar!

4. Featured Just-For-Fun Site.


Today's "Just for fun" site is Daily SuDoku. If you haven't had the joy of getting hooked on Sudoku yet, here's the basics: You get a puzzle consisting of Nine squares, each of which is also comprised of nine smaller squares. The result is a big box that is nine squares long and nine squares high. In each of the nine big squares, you must have the numbers 1 through 9. In each row, you must have the numbers 1 through 9. In each column, you must have the numbers 1 through 9. It sounds easy, but it can be infuriating. If you haven't tried this yet, go check it out. If you are hooked on Sudoku like I am, this is a great place to get a daily "fix."

Previous Friday Fantastic Four Posts:
January 6, 2006
December 30, 2005

Thursday Morning Quick Hits.

Update on Justice Parker in Alabama


As previously posted HERE, Alabama Justice Tom Parker drew some criticism in the blogosphere (and elsewhere) when he wrote an OP-ED piece criticizing the Alabama Supreme Court's decision to follow SCOTUS precedent in Roper v. Simmons and remove an inmate from death row because the inmate was a juvenile when he committed his offense. Parker wrote in his OP-ED that his fellow justices should have disregarded the SCOTUS precedent as a means of trying to get SCOTUS to reconsider the issue.

In an update earlier this week, I noted a January 16 editorial in the Decatur Daily further criticizing Parker. Now there's more. The AP is reporting today that Parker's fellow Alabama Supreme Court Justice Mike Bolin is critical of Parker's OP-ED approach. "Bolin accused Parker of exercising the same judicial activism that he criticizes in his article." The article notes:

With Parker's strategy now moot, he's left to wonder whether anyone will file a complaint with the Alabama Judicial Inquiry Commission accusing him of violating the state Canons of Judicial Ethics.

One of those canons says a judge should promote public confidence in the judiciary.

"You have to question whether some or all of this was a violation of the canons," Bolin said.

Parker says he was simply upholding his oath of office to support the Constitution, and his writing didn't violate the canons.

He's heard rumors that a complaint may be filed, like the one that led to Roy Moore's removal from office, but so far, he says he's seen no sign of it.

After the reaction to this op-ed article, would Parker write another?

"It depends on what comes up. I'm passionate in defense of the Constitution I swore to support," he said.

For even more on this story, there's an editorial in today's Montgomery Advertiser on the story.

(Hat-tip for these updates: How Appealing.)

(**UPDATE: Thanks to a thoughtful e-mailer, I've been pointed to an ABA Journal article on this story. It's thoughtful and well-written and incorporates many of the same thoughts/points as the earlier posts here on the story.**)

Update on Kathleen Sullivan and the California Bar Exam


Back in December I posted about Kathleen Sullivan, former Stanford Law Dean and noted Constitutional law scholar, failing the California bar exam. The Legal Reader is reporting today that Sullivan has been denied a request to appear pro hac vice in a case, presumably as a result of the bar failure.

(**UPDATE: WSJournal Blog has picked up on this, albeit several hours later than Legal Reader or even my post this morning.**)



Today's Disturbing Legal News

From the AP comes this story about an Ohio couple accused of abusing a number of special needs children who were in their care. According to the story:

The children were taken from the Gravelles in September after a social services investigator visited the home and saw wood and chicken-wire cages she likened to a kennel. In addition, one of the children testified last month that his parents made him sleep in a bathtub for more than two months because he wet the bed.

The Gravelles who live in a rural area 50 miles (80 kilometers) southwest of Cleveland, Ohio have defended the enclosures, saying they were necessary to keep the children from harming themselves or each another.

The children have problems such as fetal alcohol syndrome and a disorder that involves eating nonfood items.

Now the couple wants these children back " because they removed the wire, alarms and doors from the enclosures." There is, apparently, a custody hearing currently scheduled to address this.

More news stories about this story:
Sydney Morning Herald.
MSNBC.
CNN.com.
Toledo TV.

**UPDATE: February 17, 2006 Update.

SCOTUS' New Commerce Clause Analysis?

I'm in court for most of the rest of the week. I would make this simply an "open comment" thread, but seeing as how nobody really comments much here anyway, that probably wouldn't work.

At any rate, I noticed over my lunch hour today that I completely missed the "other" opinion released by SCOTUS yesterday (other than Gonzales v. Oregon) that is. Fortunately, Publius over at Legal Fiction did not miss it. He published the entire text. As important as commerce clause law is, it's almost unfathomable that the main-stream media missed this.

Oh... and feel free to comment, even if I did say that nobody really comments. Prove me wrong.

SCOTUS Upholds Oregon Assisted Suicide Law.

As reported over at How Appealing, AP is reporting that SCOTUS has upheld Oregon's physician-assisted suicide law.

According to the AP story:

Justices, on a 6-3 vote, said that federal authority to regulate doctors does not override the 1997 Oregon law used to end the lives of more than 200 seriously ill people. New Chief Justice John Roberts backed the Bush administration, dissenting for the first time.

The administration improperly tried to use a drug law to prosecute Oregon doctors who prescribe overdoses, the court majority said.

"Congress did not have this far-reaching intent to alter the federal-state balance," Justice Anthony M. Kennedy wrote for himself, retiring Justice Sandra Day O'Connor and Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

The case arose from a 2001 directive from then attorney general Aschroft ordering a halt to the use of controlled substances by Oregon physicians in assisting patient death. The federal government argued that the Oregon Act was a violation of the federal Controlled Substances Act.

The opinion is available: HERE.

Background materials:
SCOTUS Blog post after oral arguments in the case (October 2005).
Oregon Death with Dignity Act (text of the Act).
Duke Law Backgrounder on the case.

NSA Eavesdropping Developments.

The past couple of days have brought a whole host of new interest in the NSA eavesdropping story. I updated the Link Repository again this morning with lots of new links.



Most of the new interest comes from a couple of fronts:

New York Times Story

The New York Times has posted a story today about the NSA's program and the FBI after 9/11. The article indicates that, after 9/11, when the NSA began this eavesdropping program, the NSA

began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of phone and Internet traffic. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mr. Mueller asked senior administration officials about "whether the program had a proper legal foundation," but deferred to Justice Department legal opinions, the official said.

The article indicates that the FBI complained about the program, questioned its legality, and, further, questions they effectiveness of the program and the administration's attribution of certain successes to the program. The article also points out, however, that the FBI may be trying to distance itself from the program in the wake of public criticism and the call for Congressional hearings on the program.

Federal Lawsuits
Further, also as New York Times, the ACLU and the Center for Constitutional Rights are both filing federal lawsuits today about the NSA program.

Both groups are seeking to have the courts order an immediate end to the program, which the groups say is illegal and unconstitutional. The Bush administration has strongly defended the legality and necessity of the surveillance program, and officials said the Justice Department would probably oppose the lawsuits on national security grounds.

Justice Department officials would not comment on any specific individuals who might have been singled out under the National Security Agency program, and they said the department would review the lawsuits once they were filed.

. . .

The lawsuits seek to answer one of the major questions surrounding the eavesdropping program: has it been used solely to single out the international phone calls and e-mail messages of people with known links to Al Qaeda, as President Bush and his most senior advisers have maintained, or has it been abused in ways that civil rights advocates say could hark back to the political spying abuses of the 1960's and 70's?

"There's almost a feeling of déjà vu with this program," said James Bamford, an author and journalist who is one of five individual plaintiffs in the A.C.L.U. lawsuit who say they suspect that the program may have been used to monitor their international communications.

"It's a return to the bad old days of the N.S.A.," said Mr. Bamford, who has written two widely cited books on the intelligence agency.

These lawsuits are the first to be filed challenging the program. In the suits, the plaintiffs are seeking more information about what the program actually entailed, which could go a long way toward answering the questions about its legality and whether individual liberties were being infringed upon.

Reason Online Interview with Whistleblower

Reason has an interview with former NSA insider Russel Tice, who recently admitted to being one of the sources for the NY Times story that first went public about the NSA program. Tice explains why he went public with this information, explaining:

As a signals intelligence officer, kids who go right out of college and work for the NSA, this is drilled into you, especially when you're young: You will not do this. This is number one of the NSA's Ten Commandments: You will not spy on Americans. Even after you've had all those introductory briefings when you're a new employee, for the rest of your career, at least twice a year they call you in for a briefing, and this is always covered. "You will not do this," they shake their fingers at you. "If you do this you can be thrown in jail." And all of a sudden you find out the people who've been shaking their fingers are doing what they're telling you is against the law and coming out with some cockeyed nonsense excuses for why everything's OK. It's sort of like having your parents drill it into you not to smoke cigarettes or do drugs or whatever, and then after you're a good little boy coming home from school at 15 and finding your parents out on the balcony doing all that.

He also responds to polling data suggesting that most Americans are not overly concerned about the program:

People think it's not going to affect them. They think it's against the bad people, it's to protect our national security. Maybe it's against the law, but it's just the bad people, just to keep the terrorist from blowing up my neighborhood dam. But if those people find out it was hundreds of thousands or millions, and they were swept up into it and the government was listening to their conversation with their doctor.... Now all of a sudden it affects them personally. Right now I don't think people see how it affects them. Though even if it were just these few thousand people that have been talked about, nonetheless it's wrong. There's no reason the two thousand warrants could not have been done through the FISA court. The question is: Why wasn't it done?

Blog-Housekeeping.

A couple of quick "housekeeping" matters this morning.

First, thanks to Evan Schaeffer at Legal Underground for adding Kierkegaard Lives to his blogroll. I added Legal Underground to the blogroll here after the Friday Fantastic Four 1-06-06 when I featured Legal Underground as the legal blog of the week.

Second, thanks to the fine folks over at Concurring Opinions for adding Kierkegaard Lives to their blogroll. Concurring Opinions is, in my opinion, by far the best law-prof blawg out there. If you haven't already been checking out their posts, now would be a good time to start.

Coming soon: I'm currently working on creating an idex to previous posts, grouped by category. Look for that to be coming in the next week or so, over at the sidebar on the right.

Finally, my apologies for not getting a "Friday Fantastic Four" up last Friday. The Alito hearings consumed my minimal blogging time last week. I'll definitely get one up again this week, though.

Blawg Review #40.

Blawg Review #40 is up over at Small Business Trends. This week's author, Anita Campbell has a fascinating story of her own; she's educated as a lawyer, but chose to work in the business world instead of the legal field.

This week's blawg review has shout-outs to some of the best of the blawg-o-sphere from last week on a variety of topics including:

The Alito Hearings and various recaps of them.
Business Ideas.
Corporate Legal Issues.
Better Writing practice tips that are applicable in law, business, and blogging.
Patents.
Life as we know it.
The Justice System.
All About Clients.

If you were consumed with the Alito hearings last week, like I was (when I wasn't working, of course), this is a great way to catch up on the high points you might have missed. Links to many of the best or most interesting blawg posts of the past week, all in one place.

Alito Confirmation Hearings: Day 5 Recap.

Day 5 of the Alito-marathon is underway. More panels today. I don't know that I'll have time to watch much of this today or to do much recapping, but I'll try to provide some periodic updates as the day progresses. As always, the fine folks linked below will likely have more detailed and thorough consistent liveblogging.

Mixed Panel #2
The first panel this morning, of both Pro-Alito and Anti-Alito folks, consists of: Professor Nora Demleitner from Hostra Law School, Professor Erwin Chemerinsky of Duke, Professor Anthony Kronman of Yale, Beth Nolan, a former White House Counsel, Professor Charles Fried of Harvard, and Professor Laurence Tribe of Harvard.

Of this group, Demleitner, Kronman, and Fried are testifying Pro-Alito. Demleitner is a former Alito clerk who considers herself politically liberal but who believes that he simply follows the law carefully. Kronman was a classmate of Alito's at Yale who testifies to Alito's studiousness at Yale and indicates that it was impossible to see Alito's political affiliation during law school; he thinks of Alito as a judicious judge. Fried was at the Solicitor General's office at the same time as Alito and testifies that Alito urged not arguing to overturn Roe and suggest Alito is in the mainstream, even if toward the right bank of the mainstream.

Chemerinsky, Nolan, and Tribe are testifying Anti-Alito. Chemerinsky stresses the importance of this confirmation for the future of constitutional law, stresses the unprecedented power grabs of the current administration, and stresses the importance of separation of powers and checks and balances; he testifies that Alito's record shows too much deference to the government and shows no willingness to act as a necessary check and balance. Chemerinsky says, of the strip search of the little girl case, that any reasonable police officer or judge should know that it's unconstitutional to strip search a ten year girl who is suspected of nothing. Nolan testifies about her background working with the executive office (Clinton) and that this administration has gone much too far; coupling that with Alito's deference would be a cause for concern. Tribe also testifies that Alito doesn't show concern for individual liberties.

The Senators then asked questions of the panel. Generally the questions and answers followed the same patterns as the Senators' questions of Alito and of the testimony already provided by this panel. For example, Specter asked Chemerinsky if Alito would serve as a rubber stamp for the executive (questions Specter asked Alito repeatedly) and Chemerinsky answered that his record gives no reason to think he'll enforce checks and balances (just as Chemerinsky just testified).

... Short break taken for the memorial service for New York Times reporter David Rosenbaum . . .

Panel #3 (Anti-Alito)
The next panel of witnesses include Fred Gray, a civil rights attorney; Kate Michelman, a pro-choice activist; and Ronald Sullivan, from Yale Law School; Amanda Frost, from American University Law School; John Flym from Northwestern.

Gray is up first. As a legend in civil rights litigation (being the attorney who defended Rosa Parks definitely makes you a legend), he testifies about voting rights and is Anti-Alito. Gray is troubled by Alito's views about the Warren Court's protection of voting rights for African-Americans. He warns that Alito could turn the clock back on progress in this area. He is Anti-Alito.

Michelman testifies about her own experience with securing an abortion prior to Roe. She testifies that Alito has shown no concern about how his rulings will affect real people and he has a drastically different perspective on womens' privacy rights than O'Connor did. She is Anti-Alito.

Sullivan talks about the 4th Amendment and Alito's decisions in that area. Notes that Alito has a clear pattern of siding with the government, even if his opinions don't appear radical. Sullivan says Alito does too little to protect individual privacy and dignity, especially for "little people" (like the 10 year old girl who was strip searched; Alito apparently showed more concern for the indignities of a wealthy defendant searched in an IRS case), Alito goes as far as possible to excuse and overlook government wrongdoing, and is a strict constructionist only when doing so favors the government. He is Anti-Alito.

Frost is mostly talking about recusal issues. She explains how it works in the federal system and the SCOTUS level specifically. She recommends ways to improve the system and provide more accountability. She is Anti-Alito.

Flym testifies that Alito should have recused himself in Vanguard. Flym was counsel in Vanguard. Flynn argues that even small monetary interests, even in mutual fund situations, can be sufficient to warrant recusal. He also questions Alito's answers on the Vanguard issue because Vanguard was all over the pleadings and it should have been obvious to Alito early on that he had a conflict. Vanguard was another case where Alito went out of his way to find a "dubious" legal principle upon which to rule against the little guy. He is Anti-Alito.

During questioning by the Senators, Michelman suggests that Alito should be rejected because he will move the Court in a bad way on privacy rights and suggests that privacy is not a "single" issue, but something that will have profound implications for everybody. Alito is a danger to constitutional freedoms.

The stirring value of the Senators' questioning is clearly evident once again today. Kennedy asks Flym (the attorney who actually MOVED for recusal of Alito in Vanguard) if Flym thinks Alito should have recused himself. Guess what? Flym answers YES. With quality information like this continuing, maybe they should try to stretch these hearings out for a few more weeks.

After a couple more Senators make sure everyone knows they are around by saying hi to everyone and thanking them, but without doing anything of substance, this panel is finished.

...another short recess...

Panel #4 (Mixed, again)
This panel includes Kate Pringle, another former Alito clerk; Congressman Charles Gonzales, representing the Hispanic Caucus; Congresswoman Debbie Schultz from Florida; Jack White, from the ACLU and NAACP, and also another former Alito clerk; Reginald Turner from the National Bar Association; Theodore Shaw, of the NAACP Legal Defense and Education Fund.

Pringle testifies about her experience working with Alito. He was a hard worker, he was fair, he was a good boss, he tried really hard to consider everyone's thoughts and views, he respects the institution of the courts, etc. She says Alito did not come to cases with a political agenda in mind. She is Pro-Alito.

Gonzales testified that the Hispanic Caucus was (gasp) disappointed that a Hispanic was not nominated. The caucus is concerned about Alito because he likes to allow discrimination in jury selection, seems to favor race and gender discrimination, and does not look out for minority and individual interests. Alito does not share the basic values needed to be on SCOTUS. He is Anti-Alito.

Schultz is Anti-Alito. Alito ruled in favor of overruling Roe and voted to require women to get husband's permission to get abortion. Alito would have ruled wrongly (whatever that means) if Schiavo case had been before him. In the strip search of a 10 year old girl, Alito didn't understand why her attorney kept bringing up the fact that she was just a 10 year old girl. Senate should guard it's legislative authority. She is Anti-Alito.

White, as former Alito clerk, thinks Alito is the bomb. Alito worked hard, was fair, and was loyal to the fair judicial process. Alito was non-ideological. After White spent his time working closely with Alito, he did not even know Alito's personal beliefs on the wide range of issues that had come before the court (I imagine this is supposed to bolster the idea that Alito did not let his personal views influence cases, but it could just as easily suggest that White was just not very perceptive). Alito treated everyone with dignity and respect. He's swell. He is Pro-Alito.

Turner indicates that the National Bar Association is a bar for African American Lawyers. Alito is hostile to individual liberty. Alito is against legitimate affirmative action programs. Alito has been the most frequent dissenter in the 3rd Circuit when it comes to remedying civil rights violations and protection of citizen welfare. Turner and the National Bar Association are Anti-Alito.

Shaw, who is allegedly the final witness, notes that the NAACP LDEF usually does not take a position on federal court nominees. But guess what? In the case of Samuel Alito, they made an exception. Don't get him wrong, he doesn't mean to attack Alito personally or disparage his character, or call him a racist or whatever. It's just that Alito is a danger to civil rights. Alito's record is markedly anti-civil rights and pro-discrimination. Don't be misled by the loyalty of former clerks and their testimony about Alito's collegiality. On discrimination, civil rights, apportionament, criminal judgment, Shaw and the NAACP LDEF are Anti-Alito.

After questions from the Senators (which I did not get the chance to watch, regretfully), the hearings appear to be over for now.

Specter has proposed a schedule for next week, Leahy disagrees, they'll talk, etc. And then Specter moved into what appeared to be an advertisement on Alito's behalf. Apparently Specter supports Alito? Who knew?

Anyway... that appears to be about it for this week of the hearings. I don't know for sure how we'll all survive the weekend without the drama like this, but I guess we'll all have to manage. If anything else happens, I'll update.

....
Resources for keeping up today:

Washington Post Supreme Court Blog (updated sort of liveblogging)
SCOTUS Blog (liveblogging again)

Roger Keith Coleman Update.

DNA Tests Confirm Coleman's Guilt.


CNN.com is reporting that a spokewsoman for the governor of Virginia has said that "[n]ew DNA tests confirmed the guilt of a man who went to his death in Virginia's electric chair in 1992 proclaiming his innocence."

I earlier posted about this HERE. The case has been closely watched by both sides in the death penalty debate.

The governor's spokesperson is reporting today that the new DNA tests confirmed the earlier results placing Coleman within a 0.2 percent of the population group who could have produced semen found at the crime scene.

I'm sure there will be more on this, and I'll update if/when I see something new.

**UPDATES: January 13, 2006:

Governor's Press Release. An excerpt:

“The probability that a randomly selected individual unrelated to Roger Coleman would coincidentally share the observed DNA profile is estimated to be 1 in 19 million.”

“We have sought the truth using DNA technology not available at the time the Commonwealth carried out the ultimate criminal sanction,” said Governor Warner. “The confirmation that Roger Coleman’s DNA was present reaffirms the verdict and the sanction. Again, my prayers are with the family of Wanda McCoy at this time.”

Talkleft post on the news, including comments from the Innocence Project and Amnesty International, both commending the Virginia Governor for furthering the search for the truth, even though it turned out that Coleman was, in fact, guilty.

Yahoo News story. Key excerpts:

James McCloskey, executive director of Centurion Ministries, had been fighting to prove Coleman's innocence since 1988. The two shared Coleman's final meal together — cold slices of pizza — just a few hours before Coleman was executed.

"I now know that I was wrong. Indeed, this is a bitter pill to swallow," McCloskey said, describing Thursday's findings as "a kick in the stomach" and adding that he felt betrayed by Coleman.

Death penalty proponents welcomed the results. "Stop the presses — it turns out that rapists and killers are also liars," Michael Paranzino, president of a group called Throw Away the Key, said in a statement.

Death penalty opponents praised Warner's decision to order the testing but warned that Coleman's case does not mean the death penalty is infallible.

Alito Confirmation Hearings: Day 4 Recap.

Is everybody ready for another exciting day before the Judiciary Committee? Yeah, I'm not sure I am either. But I'll try to provide some updated recaps throughout the day. Since they are underway, let's get started ...

Round 3: Leahy
Leahy is first up today, with 25 minutes. Leahy wants to talk about executing innocent people. Alito indicates that he is against such a thing and suggests that the Constitutional framework is designed to help doing everything possible to avoid having it happen.

Continuing with his death-theme, Leahy next asks about physician-assisted-suicide. Leahy criticizes the actions of Congress in the Schiavo case. Alito talks about common-law rights to refuse medical treatment and indicates that such common law has been around "for a long time."

Leahy tries to bait Alito on the issue of Congressional actions to "strip" jurisdiction from federal courts in various types of cases. Alito doesn't take the bait and indicates that he has not considered whether Congress can do that, and also notes that there is disagreement amongst scholars on the subject.

Round 3: Kennedy
Kennedy starts off on executive power again. Then moves on to Vanguard (again). Alito (again) can't really remember whether Vanguard was on various recusal lists, and judges invest in mutual funds because they rarely present conflicts, etc. Kennedy is "confused" by the various excuses that Alito has offered for failing to recuse himself after promising to do so and Kennedy thinks this is a serious issue. Alito counters that he's being as forthcoming as possible, that he took great steps to avoid ethical problems, and says he has not given conflicting answers.

Kennedy decides to finish up by listing reasons he won't support Alito: executive power, women's rights, the little guy, inconsistent answers, etc.

Round 3: Hatch
Hatch is up next. Hatch argues that Vanguard and CAP are both meaningless at this point. Points out that there was no law requiring recusal in Vanguard. Even asks Alito if he's "lived up to [his] word" (and Alito says, "yes"). Hatch also suggests Alito has answered more questions than any other nominee and argues that the way Alito is being treated will make others not want to serve.

Round 3: Biden
Biden has 20 minutes. Biden starts off questioning about presidential power. Some questions about whether the President can declare war without Congress and whether Congress is limited only to appropriations limitations, etc. Alito basically says it's a complicated issue, subject of great debate, that he'd have to study it if the case came before him, etc.

Biden moves on to ask about stare decisis. Alito explains the differences between vertical and horizontal stare decisis and explains that even though horizontal is not mandated, it is presumed that courts will follow their own precedent. Although it is not forbidden to overrule prior cases like Roe, there has to be a good reason to overrule people's reliance on those cases.

Round 3: Kohl
Kohl asks about term and age limits on judges. Alito hasn't really thought about whether it's a good idea or not. He does think it'd be a good idea to look to foreign countries and see how they do it (I'm sure he means as long as we don't look at their "laws" on the subject for guidance).

On to talk about Kelo. Alito acknowledges that eminent domain is a touchy issue. He won't comment on the decision itself.

Kohl asks how O'Connor will be remembered. Alito says with great admiration. He'll try to emulate her work ethic, etc. Kohl wants Alito to say he'll be a centrist judge like O'Connor was, and Alito will only say that he'll emulate O'Connor's work habits and that you'd have to look at his record as a judge to see what kind of a justice he'll be.

...RECESS!!...

DURING THE RECESS: Leahy and Schumer are addressing the press and lamenting Alito's failure to answer specific questions and distance himself from controversial comments in his past about women's rights, etc. Further, because the radicals who ended Harriet Miers' nomination support Alito, everyone should be wary.

...END RECESS...

Round 3: Kyl
Kyl reserves his time.

Round 3: Feinstein
Feinstein asks about presidential power and specifically gets into FISA / eavesdropping. Feinstein wants to know if the President was acting within his plenary powers in authorizing eavesdropping that was not indicated in the Congressional resolutions. Alito answers that it's a matter of statutory interpretation, that if the issue came before him that's how he would approach it.

Feinstein then starts asking Alito about odometer fraud. Yeah, odometer fraud. Apparently she's getting to commerce clause issues. Alito basically tells her that both the state and federal government have roles to play in protecting citizens.

Round 3: Grassley
Grassley suggests that Alito appears to have the judicial temperance to keep his (possibly) crazy personal poly sci theories about government out of his rulings. Alito agrees (not with the possibility of his personal theories being crazy, but with the idea that he'll follow the rule of law and not his personal ideologies).

Grassley then brings up a subject that he has no question at all about, just to tell Alito it would be an interesting thing for him to study in his spare time: The Federal False Claims Act.

Round 3: Feingold
Feingold wants to return to presidential power (because we haven't beat around the Bush -pun intended- enough on that one yet). Feingold asks about whether the president can violate a constitutional statute if it involves constitutional powers of the president. Or something like that. Alito basically says that the Constitution trumps statutes, that it would involve weighing the powers involved, ebbs of presidential power, and depends on the specifics to give a real answer.

Feingold moves on to revisit execution of innocent people. He wants to know if a person has a constitutional right not to be exectued based on actual innocence if all procedural methods were perfect but the person is still convicted and sentenced to die. Alito says there are procedures to prevent that and they would have to be followed.

Feingold notes that a group of federal judges are appearing on his behalf, and asks Alito if he will have to recuse himself from any of their cases in the future if they appear on his behalf. Alito has not thought about it. (But seems to be thinking, "I could always promise to do so in the 'initial phase' and then conveniently forget later, especially if there's no actual conflict.")

Round 3: Schumer
Fourth Amendment hypothetical: If the president has the power to engage in warrantless wiretaps, can he also search homes without a warrant? Alito says it depends on why a court would find the right to wiretap without a warrant. Might play out differently for wiretaps and home searches. (He doesn't point out that every second year law student learns that home searches are the most protected of all and certainly would require different scrutiny that eavesdropping on cell phones.)

Schumer then picks two cases out of Alito's thousands. He asks why Alito in one case voted against allowing a plaintiff (a mentally retarded one) from raising an issue that wasn't properly raised below but, in the other case, voted to allow the government to do precisely that. Alito tries to explain why the two issues were different, but Schumer doesn't buy it.

Schumer then tries to get into Alito's opinions on constructionism. Asks a hypothetical about whether a law could be passed that would strip people born in the US of citizenship if parents are here illegally, when Constitution clearly says anyone born in US is a citizen. Alito says he can't comment because there is such a bill currently pending. Schumer gets frustrated that Alito won't answer such a "simple" question. Alito replies, again, that it doesn't matter how simple it is, it's inappropriate for him to answer while there is such an issue pending.

After asking a couple of federalism questions, Schumer wraps up by indicating that he is disturbed by Alito's record and judicial philosophy. Alito's record is one siding with executive power, economic power, and against the "little guy." Alito's answers have not been illuminating. It will be hard to vote for him, but thanks anyway.

Round 3: Sessions
Not much of significance (even by the standards of what I've reported so far). One really "hardball" question though, from Sessions. Sessions asks Alito if there are only three branches of government. After considering the question carefully, Alito answers that there are, indeed, only three. Regis Philbin then asks Alito if that is his "final" answer. (ok, so that last bit didn't happen, but you get the idea).

Round 3: Durbin
Durbin asks about jurisdriction stripping (which he doesn't like), asks about the strip-search of the little girl case, and asks about immigration cases. Alito explains his position on the strip search case, and explains that he approaches immigration cases by following the rules and deferring to the immigration judges on factual and credibility determinations. Alito suggests the problems with the immigration system are problems for Congress, not for judges.

Round 3: Leahy
I actually missed Leahy's questioning. But I'm guessing he expressed some dismay about Alito's views on executive power.

END OF ROUND 3!!! The Committee is going into executive session, and I believe this afternoon will bring testimony from witnesses. Stay tuned.

--------

Afternoon Session: Testimony of witnesses

ABA Witnesses
First up this afternoon are the "neutral" ABA witnesses: Steve Tober, Marna Tucker, John Payton.

Tober explains what the ABA does in rating candidates. They look at integrity, competence, temperament, qualifications. In investigating Alito, over 2000 people were contacted -- judges, lawyers, lay people; additionally, Alito's opinions, briefs, and other writings were reviewed; finally, a personal interview of Alito was conducted. The ABA committee unanimously gave Alito a "well qualified" rating. In response to a question from Specter, Tober explains that the committee found that Alito is "even-handed" in his application of the law based on interviews with people and reviewing his writings. He acknowledges that the committee was inconclusive about whether Alito favors the government in decisions.

Payton answers a question from Specter about Vanguard. Payton says that Alito acknowledged that it was a mistake for him to hear the cases, the committee did not feel it reflected poor integrity, that Alito's integrity is held in high regard by the judges interviewed, and the committee concluded it was just a mistake.

Tucker handles a question about Alito and CAP. She indicates the commitee was concerned about CAP, and they looked into the matter. Alito gave them the same answers he gave in these hearings (not remembering much of anything). But she indicates that everyone they talked to saw no bigotry or prejudice in Alito and that everyone was surprised about his membership in CAP.

A few more questions of these panel members on the same basic issues; not much else really accomplished or revealed.

The ABA Panel is dismissed.

Panel of Judges For Alito
Next up is a panel of judges: Becker, Scirica, Berry, Aldisert, Garth, Gibbons, Lewis. All are current or former Circuit Court of Appeals judges who were invited by Specter.

Becker speaks to Alito's temperament, intellect, integrity, and approach to the law. Alito never raises his voice in conferences. Alito was not required to recuse from Vanguard by law. Alito has the intellect to sit on the SCOTUS and is a practical judge. Alito decides every case on its merits, not based on his personal views. Alito adheres to precedent. Alito decides cases as narrowly as possible.

Scirica believes Alito is ethical and deeply respects the law. Alito demonstrates compassion and temperament necessary to be an outstanding judge. Alito approaches every case with an open mind and respects precedent.

Berry has known Alito since 1977. She agrees with every glowing statement made about Alito. Alito was a skilled attorney and his level of work was contagious in the office. Alito is fundamentally decent.

Aldisert says that Alito's opinions show that he believes cases are dictated by their facts. Aldisert argues that political loyalties go out the window when people become judges. Alito's political loyalties from his early career are incompatible with judicial independence, and Alito's record shows judicial independence. In a nice touch, Aldisert quotes O'Connor about how judges must stay close to the record to mediate conflicting impulses and comments that the statement accurately describes Alito's work.

Garth has known Alito the longest because Alito clerked for Garth in 1976 and 1977. Garth rates Alito a 10+ on a scale of 1-10 (at least he didn't say 11?). Even when they disagree, he always respects Alito's opinions. Alito is a sound jurist with respect for the institution and he does not let himself get influenced by his personal opinions. Alito is led by the Constitution. Alito has respect for stare decisis (in case anybody didn't hear Alito say "stare decisis" approximately one million times in the past three days). He's qualified.

Gibbons also makes the case that becoming a judge transforms people from partisal political loyalties, regardless of the role those loyalties play in appointment. Good judges put that aside and become magically impartial and unswaying once they get their robes. As a result, what Alito may have said or done before getting robed should not play a role in the Senator's votes. (loosely translated: NOW he's fair and impartial and not a bigot and well qualified, and that should be good enough.) Gibbons even takes a shot at Congress by saying he thinks Alito would give the current detainee cases thoughtful consideration and that he can't say the same for Congress. Gibbons also defended Alito's dissent on Casey and the fact that the SCOTUS had not yet clarified the rules, allowing reasonable judges to disagree at the time.

Lewis is the last of this group. Lewis makes it known that he is by far the most liberal of the judges to speak on Alito's behalf. Lewis is very pro-choice and pro-civil rights, and is involved in many endeavors that would seem contrary to Alito's nomination. But he is testifying on Alito's behalf because of his respect for Alito's intellectual honesty. Lewis commends Alito for his principles and his respectful disagreement when the panel did not agree on decisions. He thinks Alito is qualified.

Specter is now going to ask some tough questions of these pro-Alito judges. Like whether they think Alito's personal views will influence his decisions on SCOTUS. Nevermind that they've all already said no, it's always a good idea to explicitly ask them and get the sound-byte answer that everyone already expects anyway. (by the way, the answer Specter gets to that question, asked of Judge Becker, is that "no" he doesn't think Alito will let his personal views influence his decisions -- shocking, I know). I won't recount all of the specifics.. it's just stuff like, do you (Alito supporter) want to say anything bad at all about Alito's attitude toward women or the little guy or his ethical standards? And each judge asked will then, as they have already done once, repeat that they have no reservations about Alito, that Alito is a shining star among the shining stars of the federal judiciary, etc. etc. ad nauseum. I'm sure you all get the picture here.

Feinstein is also asking questions now. Judge Becker is trying to get her to understand that the nature of appellate courts is such that 85 percent of cases that are heard by the appellate court are affirmed, so you can't just look at statistics of who "won" or "lost" on appeal to declare Alito against the "little guy." Judge Barry tries to explain standards of review to Feinstein.

The other Senators are also asking questions of the panel. Unfortunately, I have a meeting again this afternoon and won't be able to watch and/or report on the specifics. I'll try to read the transcripts later on and I'll post any specifics that are interesting. There may not be any. I expect that the Senators will ask these judges about the same things they either already have or that they asked Alito about, and these judges (being pro-Alito judges, afterall) will say they have no qualms about Alito's abilities, qualifications, or integrity. There will be more detail, of course, but that will be the generally idea of what will happen. If one of them surprisingly says something negative or controversial, I'll definitely post an update. Otherwise, check out the links right below here for ongoing coverage.

...ok... a little "ex post facto" recap of what happened after the "Pro-Alito" judges' panel yesterday:

Mixed Panel #1
After the Pro-Alito judges, the first panel of witnesses who were both for and against Alito appeared. The panel consisted of: Edna Alexrod, former Chief of the Appeals Division in the USA office; Michael Gerhardt, con law professor from UNC Law School; Peter Kirsanow of the US Commission on Civil Rights, Sam Issacharoff, professor from the NYU Law School; Carter Phillips, attorney and former colleague in the Solicitor General's office; and Goodwin Lieu, professor from Cal Law School.

Of those witnesses Alexrod, Kirsanow, and Phillips were Pro-Alito. They generally indicated that he is not an idealogue, that his political affiliations were not evident, and he's not out of the mainstream. They also defended specific rulings of Alito as showing deference to precedent.

Gerhardt, Issacharoff, and Lieu were Anti-Alito. They focused on the necessity and the propriety of hard questions and the process and argued that Alito's record shows him siding with government and against individual rights.

Eventually Specter decided that they were not "at their best" any longer and recessed for the night. More panels on Friday.



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Resources for today:
Washington Post (Transcript of January 12 hearing)
Washington Post Supreme Court Blog (Updated after each Senator)
SCOTUS Blog (liveblogging)
Sam Alito Blog (liveblogging)

Alito Confirmation Hearings: Day 3 Recap.

Day 3 of the Alito hearings is now officially underway. I'll pick up the recaps where we left off yesterday, near the end of "Round 1" of questioning. I'll try to update this post as the day progresses. (And as an aside, I notice that my own comments are getting a bit "snarkier" as the day progresses ... perhaps I'm becoming a bit too cynical about this whole process or something?)

Round 1: Durbin
Richard Durbin is the first Senator to get a crack at Alito this morning in the Round 1 questioning. Durbin starts right off with privacy questions. He asks Alito about Griswold. Alito recognizes both Brown and Griswold as cases based on the text of the Constitution (Equal Protection and Due Process, respectively) and says that Roe is different because it is not rooted on text of Constitution. Alito says consideration of Roe has to start with stare decisis, that it's an important precedent, but refuses to say that it is "settled" in the sense that it cannot be revisited.

Durbin moves on to ask about CAP. Durbin doesn't buy Alito's answers yesterday that he joined CAP to react to the ejection of ROTC from Princeton and asks what the ejection of ROTC has to do with CAP's policies regarding women and minorities. Alito again says he doesn't remember CAP but that it's his best explanation for why he joined.

Finally, Durbin asks about a series of specific cases and rulings and suggests that the "small person" will be crushed under Alito's rulings. Alito responds with a specific case in which he ruled for the "small person."

Round 1: Brownback
Sam Brownback is next. Brownback enters a couple more "reference" letters into the record to show that some people support Alito. Brownback makes the (obvious?) point that sometimes precedent has to be revisited when it is contrary to current values. Brownback mentions a number of scholars who disagree with Roe and suggests it should be revisited.

Brownback asks Alito for a statement about Alito's interpretation of the Constitution. Alito says it should be similar to statutory construction, but that it is somewhat different because the Constitution has to endure over a much longer time than most statutes and because some issues were not specifically addressed by the framers.

Finally, Brownback takes a moment to point out another case that should be revisited (while we're appointing new Justices who, certainly, should revisit any cases that specific Senators disagree with): Kelo. Not much else from Brownback.

Round 1: Coburn
Tom Coburn is last for Round 1. Coburn makes more record with a list of cases where Alito ruled for the "little guy." Coburn apparently doesn't agree with the concept of stare decisis; he asks Alito where it is in the Constitution (Alito acknowledges it isn't) and says the framers never mentioned it. It's not clear if Coburn is suggesting that stare decisis should be abandoned and all of the judicial system thrown into chaos and unpredictability or what.

Coburn and Alito bond a little bit over their distaste for "foreign" law.

Coburn moves on to talk about (surprisingly?) abortion. Although he agrees with the "health of the mother" exception, he thinks courts have interpreted "health" too broadly. As support, he (for some reason) relies on a foreign health study from New Zealand (which apparently is more relevant than foreign law).

Coburn asks Alito why he wants to be on the Court. Alito says to use his judge-skills to make a difference, of course.

... and thus Round 1 comes to a close.

Round 2: Specter
Specter tries to make a point about SCOTUS decisions which seem to undermine Congress' powers (at least in Specter's view). Specter suggests that part of the purpose for these hearings is to "send a message" to SCOTUS -- apparently the hearings are really not just about determining Alito's qualifications to be confirmed.

Round 2: Leahy

... I'm not going to be able to watch any more of this until sometime this afternoon .. so until then, go check out the liveblogging at SCOTUS Blog to keep up to date with what is being asked, answered, and commented.

... ok. I'm back. Let's see what I've missed, based on the liveblogging at SCOTUS Blog ...

Round 2: Leahy
Leahy apparently felt that Alito had given (gasp) some inconsistent answers. Leahy attempted to pin Alito down on such things as executive power and interaction of the three branches of government. Leahy then asks about another specific case and Alito again tells him that the result was driven by the specific facts of the case (the water pollution case).

Round 2: Hatch
Hatch asked some really difficult questions of Alito. Like whether Alito's friends and people who know him consider him fair and impartial and whether Alito himself thinks of himself as a fair and impartial judge. Although Alito likely was sweating a bit, he handled those tough questions by representing that he is, indeed, fair and impartial. With that settled, Hatch then went on to defend Alito by pointing to more cases where the "little guy" won and defending his decisions in cases like Vanguard.

Round 2: Kennedy
Kennedy (finally) brings some drama to the hearings. Kennedy started off by pressing on Vanguard, but then moved on to talk more about CAP. Still not satisfied with Alito's responses about "not remembering" why he joined CAP, Kennedy quotes some inflammatory material about CAP's policies toward minorities and gays, argues that Alito's responses about ROTC being the likely reason for joining CAP don't make any sense, and then . . . (dramatic pause). . . moves for executive session to subpoena documents about Alito's involvement in CAP. Kennedy and Specter argued about whether this came out of nowhere or whether Kennedy had told Specter ahead of time, Specter refuses and says "he's the chair" and that he'll "consider" it later.

Round 2: Grassley
Grassley brings to mind the Joe Montana Fed-ex commercial about inappropriate use of football metaphors. Grassley says the Democrats are hurling "hail Mary's" and then compliments Alito for everything except his choice of tie. Grassley basically asked nothing new and his most stunning contribution in Round 2 was to ask Alito if Alito is biased on False Claims Act cases. Guess what Alito said?

Round 2: Biden
Biden, apparently, is just perplexed about many things about Alito. I believe yesterday he was "puzzled." Tune in tomorrow to see what he is then. Today he asked Alito about, among other things, abortion cases, the FMLA case (again), and CAP ... and was perplexed about Alito's responses. Oh, and he suggested that Alito seems, even if he is sincere, to be out of touch with the little guy.

Round 2: Durban
Umm... yeah. Nothing to report on Durban's "Round 2" questioning.

Round 2: Kyl
Kyl begins by defending Alito on the CAP issue. He reads from some CAP material indicating that the ROTC issue was, in fact, an issue that CAP was concerned about at the time. He calls Kennedy's material "scurrilous" (great word, by the way). Kyl afford Alito the opportunity to point out that the appeals process makes certain cases more likely to come up and that the end-result in a statistical number of cases does not necessarily reflect a personal preference for one side of an issue over another, but more likely a procedural result of the way the system is. He also let Alito explain why Alito cannot answer specifics about how he would rule on cases that might come before the court. What a helpful Senator.

Round 2: Kohl
Alito explains to Senator Kohl why he will explicitly say that he will honor "bedrock" principles in cases like Brown v. Board and one-person-one-vote, but not Roe; something about Roe still being very much the subject of a lot of litigation, whereas the others are now settled and not litigated.

Round 2: DeWine
DeWine reiterates his concern about SCOTUS overruling decisions by state and federal legislatures (wonder why?).


Round 2: Feinstein
Feinstein whines a little bit about Alito suggesting that abortion cases will come before the Court so he can't answer questions about it, and yet answering questions about one-person one-vote even though that issue actually is in cases before the Court. Feinstein also says that she, as a member of a Congress, is concerned about SCOTUS cases that suggest limits on Congress' Commerce power (shocking, I know).

Round 2: Sessions
Sessions praises Alito for coming through all of the background investigations (FBI, etc.) with so little "mud" on him. He asks Alito another really tough question: Can Alito show that he is in touch with issues of deep morality? Alito says "Yes." Good stuff. It appears that Sessions is also challenging whether SCOTUS really has authority to be final say on matters of the Constitution, because Article III doesn't explicitly say so (of course he doesn't really explain how removing this power would not result in Congress being completely unchecked in its decision-making; perhaps as a member of Congress that doesn't concern him, though).

...Brief Recess...

Round 2: Feingold
Feingold wants to know exactly who helped Alito prepare for the hearings. Alito says he'll get Feingold a list. A little discussion about ineffective assistance of counsel in capital cases (basically everyone agrees that it is important), and some discussion about the fairness of the death penalty in general. Feingold asks if Alito agrees with some specific cases (like Roper) and, in a completely unforseen response, Alito suggests that they are precedent and entitled to respect. Feingold also doesn't want to quite let Vanguard go; Alito tells him that it is important to recuse when required, not when not required.

Round 2: Graham
Graham wants Alito to educate everyone about "eating clubs" at Princeton. Alito didn't belong to any, but he'll tell us about them anyway. In addition, Graham points out a number of people (including Rumsfeld) who did. Keeping with the pattern for the day, Graham stops to ask Alito a very difficult question: "Are you a closet bigot?" Thankfully, Alito assures the Senator that he's not "any" kind of bigot. Graham also offers a stirring soliloquy about "guilt by association." Graham makes a point of criticizing those Democrats who will vote against Alito because of his earlier opinions on abortion by noting that Republicans voted for Justice Ginsburg even though she was pro-Roe. He does tell Alito that Alito will be confirmed, however (which begs the question of what these guys are really doing, doesn't it?).

Round 2: Schumer
Schumer is pretty hung up on Roe v. Wade and Alito's refusal to answer questions about it. He tries about every angle imaginable to get Alito to say that he wants to vote to overrule Roe; Schumer argues over Alito's position on "settled" vs. non-settled law, argues about the 1985 memo, argues about the consequences of not allowing any exceptions for health, rape, incest, incestual rape, etc. Alito basically just sticks with the pat answer: "The statement in the memo was one sentence and not an attempt to lay out a comprehensive position on every aspect of the issue, and I can't say more because the issue might come before the Court."

Schumer also wants to talk about CAP. He wonders why Alito felt the need to include it on his job application if he can't really even recall joining the group. (I'm guessing Alito will resist the temptation to just come out and say, "because the administration I was submitting the application to was going to like seeing it there, obviously.")

... ok ... that's it for me for now. I have a teleconference at 4:30 to get ready for. If I get a chance, I'll try to finish updating what happened today later on. I doubt it will be anything earth-shattering, but you just never know.

(UPDATE: From my home:

Round 2: Cornyn
Cornyn spends a lot of time up front talking about how Alito is his own justice, not a clone of anyone else, will review cases on his own and make up his own mind, etc. Cornyn apologizes for "accidentally" calling Alito "Scalito" yesterday (certainly among the top 5 high points of the hearings so far, in my opinion). Cornyn also declares Alito to be in the conservative "mainstream".

Round 2: Durbin
Durbin babbles a little bit about executive power, then starts asking questions about whether "non-believers" are protected by the Constitution. Alito quickly responds that people are free to worship or not worship. Durbin tries to delve deeper by referring to a specific case, and Alito knows about the case and explains the rationale for the ruling. Durbin goes on a bit more about religion and government support of religion.

Round 2: Brownback
Brownback, in perhaps the wisest move of all Senators so far, decides he doesn't need to ask any more questions to make up his mind (because, of course, these proceedings are really going to make up the minds of some of the Senators and they really didn't all know ahead of time how they'd vote, really, we believe that.)

Round 2: Coburn
Coburn rambles on a bit more about abortion, about how his grandmother was born as a result of a rape, about how the laws seem inconsistent that you can be held civilly liable for killing a fetus if you kill a pregnant woman, but the pregnant woman can have an abortion, and then starts asking something about how we'd explain this apparent inconsistency to space aliens when they invade. Alito basically says that he would tell the martians that the two situations involve different types of law and different decision-makers, and that tort law is different from state government decision-making about whether abortion is ok or not.

Coburn concludes with one of the most absurd statements of the hearings so far: that the confirmation process for SCOTUS should not be driven by the candidate's legal mind, but by his heart and soul (which, of course, means that the kindly old fellow who lives down the street and is always ready with a wave and a smile but can't actually read or write would be Coburn's ideal SCOTUS candidate).

This brings Round 2 to a conclusion. More to come tomorrow, so get a good night's sleep and get ready for the excitement.)

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Resources:
Washington Post (Transcript of today's hearing)
Washington Post Supreme Court Blog (sort of liveblogging the hearing)
SCOTUS Blog (liveblogging)
Samuel Alito Blog (liveblogging)