Friday, January 27, 2006

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

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