Sunday, June 28, 2009
You can listen live here, or find your local station here. (It's 91.3 FM in Jackson.)
Saturday, June 27, 2009
Governor Barbour has reportedly notified some legislators that the Special Session to solve the state's budget crisis will convene on Sunday at 2:00 p.m.That is welcome news, if it is indeed true. I have written previously about the constitutional hypocrisy of the Governor proclaiming that he has emergency powers to keep selected agencies of State government operating without a budget, when he had the tobacco settlement payments to the Partnership for a Healthy Mississippi stopped because the settlement funds were not appropriated by the Legislature.
There will be three calls.
1. To authorize basic state services (which will take the pressure off of July 1).
2. To pass a bill for the equal taxation of non participating tobacco products
3. To agree on a medicare fix.
Reportedly, there is not full agreement on Medicare between Governors and House Democrats loyal to Speaker Billy McCoy yet, and it could still stall out. However, it is likely very close with both sides likely betting the other will bend a bit amid the pressure of a session.
Congratulations to Y'all Politics for the scoop.
Friday, June 26, 2009
Here's the opinion letter, h/t to Christopher, a regular poster on Ipse Blogit.
Attorney General Opinion (June 26, 2009) on Emergency Spending Powers
Hood said only services mandated by the Constitution - such as public schools, courts and mental institutions - will continue operating if the new year begins Wednesday without a budget.
He said other state agencies won't be able to spend money - forcing state troopers off the roads and furloughs for state workers. The Republican governor said he could use executive authority to keep essential services running, but Hood, a Democrat, said a court order would be required for some.
He said other state agencies won't be able to spend money - forcing state troopers off the roads and furloughs for state workers. The Republican governor said he could use executive authority to keep essential services running, but Hood, a Democrat, said a court order would be required for some.
One wonders where this emergency authority is granted. The Mississippi Constitution's sections on the Governor's power is found in Article V, Sections 116-127. Nothing there about running essential functions without Legislative appropriation or authorization. Miss. Code Ann. section 7-1-5 contains the Governor's statutory powers. Nothing there either.
So assuming that some but not all government agencies go forward, how will the Governor decide which ones? Does Parchman release prisoners? How about Whitfield? Do the Courts operate? Will the Highway Patrol be on the freeways? Will the Crime Lab be open? There are a lot of State Agencies out there.
And what about State contracts on things like construction projects? And private prisons? Are they breached? Do they carry penalties?
These kinds of questions could, I suppose, be answered by an Official Attorney General's Opinion. I somehow doubt the Governor will ask for one, though.
It turns out that Prudential is trying to extract the proverbial pound of flesh from the Stewart family -- to the tune of $500,000. Earlier this year, Circuit Judge Kidd had not decided whether the costs alleged by Prudential can be properly taxed. Taxing of costs, after a loss on appeal, can include the cost of the bond that must be posted by the Defendant to prevent a jury verdict from being collected pending appeal. That can be a substantial cost.
So the Mississippi Supreme Court was asked to issue an order (called "mandamus") to require Judge Kidd to rule on Prudential's cost bill. In response, Mr. Alston (who, I should say for the record, is a long and good friend of this writer) filed a "motion for rehearing" asking the Supreme Court (now lacking Justice Easley, who wrote the original opinion, and of course Chief Justice Smith) to change its opinion of a year ago.
Yesterday, the Supreme Court, in a terse opinion that called the motion for rehearing "frivolous," denied the Stewart family's motion. The Court's opinion went so far to say that the motion "contains language showing disrespect for this Court. Such language serves no purpose, is no aid to this Court, and is of no service to the clients in whose behalf it was used."
Prudential Order Denying Third Motion for Rehearing
Here is the Stewart family's motion. I will let you judge for yourself, but it strikes me as fairly strident, and not likely to induce any other members of the Court to change either their votes on the Stewart case or their rules against belated motions to reconsider past opinions and rulings.
Prudential v Stewart 3rd Motion for Rehearing
My Two Cents: Mr. Alston's righteous indignation at the Court's ruling was justified. But he had won all he could when he convinced the electorate to change the composition of the Court. That was a bright, shining example of the positive effect of allowing the people to select judges. I doubt that a more reasoned use of language would have gained a different result. But the Court could never have countenanced such an attack on its former rulings and members, so the motion as written was bound to lose. An advocate has to overcome obstacles to rulings in his/her client's favor -- not create them.
More Spock, and less Kirk, makes a more effective lawyer. Alex Alston's long and storied career proves that. This time, he let his heart overrule his head. But as FDR reminded us, "the immortal Dante tells us that divine justice weighs the sins of the cold-blooded and the sins of the warm-hearted on different scales." This was the sin of a warm-hearted hero.
Thursday, June 25, 2009
Remember when you believed that it was just a horrible, terrible, UNCONSTITUTIONAL thing for anyone but the LEGISLATURE to appropriate and authorize the expenditure 0f State Funds?
Remember when you sued the Partnership for a Healthy Mississippi because a Chancery Court directed funds from the tobacco settlement to fund efforts to curb or eliminate teen smoking?
Remember what you won in the Supreme Court? The Partnership for a Healthy Mississippi v. State of Mississippi, by and Through Governor Haley Barbour, 958 So. 2d 790, 812 (Miss. 2007). It was a ruling that said this:
¶ 77. With this being said, we note the obvious. The Legislature holds the purse strings. To illustrate this point, we have previously stated:
Under all constitutional governments recognizing three distinct and independent magistracies, the control of the purse strings of government is a legislative function; indeed, it is the supreme legislative prerogative, indispensable to the independence and integrity of the legislature, and not to be surrendered or abridged, save by the constitution itself, without disturbing the balance of the system and endangering the liberties of the people. The right of the legislature to control the public treasury, to determine the sources from which the public revenues shall be derived and the objects upon which they shall be expended, to dictate the time, the manner, and the means both of their collection and disbursement is firmly and inexpugnably established in our political system.
* * * *
¶ 79. Before money can come out of the state treasury, such money must be appropriated by the Legislature.
And then the shocker that the Cleveland Cavaliers have acquired Shaquille O'Neal to make a serious run at a title for LeBron.
It's almost enough to knock Gov. Sanford off the front page . . . well, not quite.
WJTV-TV also reports that "Officers say the teens have confessed to the armed robbery as well as two previous carjackings. " Yep, a few slam-downs will have that effect on a guy. Who needs Gitmo and the War on Terror when our very own JPD have their own, well, "extraordinary" techniques?
Clark was charged with capital murder, which carries a possible death sentence. His lawyers, Hinds County Public Defender Bill LaBarre and Ipse Blogit's own Matt Eichelberger, litigated the District Attorney's office to a standstill, resulting in a plea to murder and a life sentence.
Congratulations go out to Bill and Matt for the zealous representation of their client, and our hope for healing to the survivors of this tragedy.
PS to Bill: I'm not making fun of hoopty cars. Really, I'm not.
Definitely worth a read, and absolutely worth some discussion.
Synopsis: A defendant has the right to cross-examine the lab analyst who analyzed a purported controlled substance. In Massachusetts, state law allowed a certified copy of the lab analyst's report to be admitted into evidence as proof of the substance's content. USSC says that violates the Confrontation Clause, because such lab reports are accusatory in nature.
Here's the opinion in Melendez-Diaz v. Massachusetts.
Somewhat odd alliance on this one: Scalia authors majority, joined by Stevens, Thomas, Souter, and Ginsburg. Kennedy dissents, joined by Roberts, Breyer, and Alito.
h/t to MS Office of Indigent Appeals via their Twitter feed, @MOIA_Jackson.
USSC says it's constitutional to search a student on the word of a snitch, but disagrees with how far that search should go
Justice Thomas, in a partial dissent that's fortunately only cold comfort to pervy school officials across the land, says it's A-OK to search any part of a student where contraband could be found.
Here's the slip opinion.
Edited to add: Tom Freeland does a great job with this case with a post to his blog.
Wednesday, June 24, 2009
Tuesday, June 23, 2009
My understanding is that Peters only bought himself immunity on the Wilson case with his promise to testify against DeLaughter. If that's true, then he's still open to prosecution on Eaton v. Frisby, Kirk v. Pope, and State v. Middleton. And if the Feds are expecting Peters to get shifty on the stand in U.S. v. DeLaughter, an indictment hanging over his head in Eaton would be the way to keep him in line.
Also, I don't think it's Trent Lott, although I've heard speculation that it is. I don't think Acting U.S. Attorney Stan Harris would be involved with prosecuting his former boss, if merely for appearance purposes. On top of that, those types of prosecutions are usually handled by the D.C. office, from what I understand.
P.S. - I also recall news of a big indictment spreading like wildfire back in mid-2008, causing speculation to skyrocket. It turned out to be something about a mid-sized immigration raid (not Howard Industries), if I remember correctly.
By the way, what's the difference between merely "asking someone to pay their fair share" and "socialism?" Riddle me that, Guv.
There is confusion to say the least at the Capitol Building.
The papers are reporting that an agreement on the budget has been reached. Yet, the governor last night sent us all a communication saying that the senate and he are of one accord that there is no agreement on Medicaid; and, that until he gets his $90 million and hospitals are removed from any protection of future cuts, he will not call any special session to pass a budget.
House conferees were meeting this morning to determine what position they would take on this latest position.
Here’s the policy issue: The House conferees have agreed to go to the latest figure the Senate was at to put a special tax of $60 million on the hospitals to help fund Medicaid. But, in return, the conferees wanted assurances that since the hospitals would be paying a special “Medicaid Tax”, they would be exempt from any future, if any, cuts by the governor.
I don’t know about you, but that makes sense to me. If you are the only one paying an additional tax to fund something (doctors, pharmacists, medical supply businesses, clinics, nurses who benefit from Medicaid reimbursement for their services would not), why should you be exposed to future cuts for as long as you are paying the bill? I understand that hospitals are taxed for this additional assessment based on their total revenues. I have been told that that includes revenues from paying patients, revenues from Medicare, Medicaid, and other government reimbursements, AND revenue from revenues the hospitals will never collect, but will charge to a non-paying or indigent person.
The hospital’s position seems reasonable to me.
To add fuel to the pressure on the House, healthcare providers have been told they will no longer receive reimbursements for treating Medicaid patients until the budget impasse has passed. On June 30, if the governor does not call us back into special session SOON, Medicaid will cease to exist.
Monday, June 22, 2009
Anybody know anything?
Tip of the hat to the Jackson Free Press, obviously, and to Rep. Greg Snowden for the "re-tweet."
h/t Dorsey Carson via Facebook
With only one Justice voting to strike down Congress’s 25-year extension of the Voting Rights Act’s controversial Section 5, the Supreme Court on Monday interpreted the law in a way that saves it. The Court said that all local units of government must be given the option to bail out of the requirement that they get Washington approval for any changes in their election laws or methods.
Chief Justice John G. Roberts, Jr., writing for an eight-member majority in Northwest Austin Municipal Utility District v. Holder (08-322), said that Section 5 has achieved “historic accomplishments,” but “now raises serious constitutional concerns.”
And, he said, while the Court would not shrink from its duty to apply the Constitution to block “legislative encroachments,” the Court also was obliged to decide a case by interpreting the scope of legislation if that route is available as an alternative to striking down the law altogether. That is the option it chose.
My two cents: I can't agree with his assessment of "serious constitutional concerns," but Chief Justice Roberts kept his word on this one. If he continues to follow Justice Brandeis's version of judicial restraint, which requires the Court to give Congress the benefit of the doubt by interpreting laws so that they can be upheld under the Constitution, then the Obama Era will not be threatened by the Bush v Gore Court.
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But if we're to believe what we're hearing from Haley's foot soldiers, the news of a budget deal must have followed this route:
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In short, it appears as though Haley is going to attempt to deny the existence of a deal in an effort to avoid having to take responsibility for a looming state government shutdown. In all honesty, Barbour wants the budget negotiations to fail, as he sees it as a way to amass power. According to Barbour, he can run state government via his fiat in the event a budget is not passed.
Barbour should know better. This game of budgetary chicken didn't work out well for the GOP during the Clinton Administration, and it won't work this time. Here's why: The general public, on a very instinctive level, views Democrats as the ones who support government services and Republicans as the ones who oppose them. As a result, the public can't envision Democrats willingly shutting the government down and ending state services. They can, however, see Republicans doing so. After all, Republicans get elected to office railing against "big government" and touting private sector alternatives. It's truly that simple.
And if Phil Bryant and Alan Nunnelee aren't careful, they're going to wind up the real casualties of this debacle. Barbour doesn't have to go before the voters of this state again. Bryant's running for Governor, and Nunnelee is setting up a Congressional run. The voters will not look favorably upon a government shutdown on their watch.
We are, of course, talking about Judge Sonya Sotomayor, the President's nominee for the seat on the United States Supreme Court vacated by retiring justice David Souter.
In a guest editorial written for the Philadelphia Inquirer, Mr. Castor says that "the United States Supreme Court will be reviewing a case of one of the commonwealth's worst." He is referring to Joseph Kindler, who was denied an appeal by the Pennsylvania Supreme Court because he had escaped after his conviction and during the time the conviction and sentence should have been appealed.
The Supreme Court long ago made clear that the right to appeal is an important guarantee that the death penalty is not arbitrarily imposed. So it's no surprise that they've granted review of Kindler's case. Even if Kindler wins, all he gets is a new appeal. He doesn't get set free. He doesn't even automatically get a new trial.
But Mr. Castor is concerned about the memo Judge Sotomayor co-authored (before her 17 years as a judge) as a member of the litigation committee of New York's Puerto Rican Legal Defense and Education Fund (you can read about the memo here, and the memo itself is here).
The Pennsylvania Prosecutor (and doubtless, a potential GOP candidate for some statewide job in the future) says that Judge Sotomayor should be asked specifically how she will rule in the Kindler case:
"What is not clear is how Judge Sotomayor will side on the Kindler case this fall should she be confirmed.
Would Judge Sotomayor side with the Pennsylvania jury, Pennsylvania law enforcement and courts that took a stand against a violent criminal and clear escape risk? Or, will she side against Pennsylvanians and allow a federal court to take a murderous criminal off death row where Pennsylvanians decided he belonged?"
How soon they forget. Does anyone remember when Samuel Alito was nominated? He had written a memo in 1985 for the Reagan Justice Department that said Roe v. Wade was wrongly decided. I guess maybe Republicans conceded that this disqualified him?
Ooops, no. The archives (January 2006) of the Christian Science Monitor report:
For the past two months journalists and legal analysts have been poring over hundreds of Alito decisions issued during his 15 years as a judge on the Philadelphia-based Third US Circuit Court of Appeals. They have also examined memos and letters he wrote while working as a Justice Department lawyer during the Reagan administration. "I am particularly proud of my contribution in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion," Alito wrote in one letter.
In a 1985 memo, Alito made clear his legal judgment that the landmark abortion case, Roe v. Wade, should at some point be overturned. But he said in the memo that the 1985 case then before the high court was not the right time to push for it. Instead, he counseled his Reagan administration colleagues to urge the court to cut back on abortion protections.
Some Alito supporters have downplayed the papers, saying they were produced 20 years ago when Alito was a young lawyer, and not yet a judge. They urge senators to focus instead on Alito's work as an appeals court judge.
A later Christian Science Monitor story highlights how and why then-Judge Alito did not give more specifics about cases that might present potential constitutional issues:
"He is saying as little as he needs to be confirmed and hasn't made many mistakes that trouble a majority of senators whose votes he needs," says Carl Tobias, a professor at the University of Richmond Law School.
But unlike Chief Justice John Roberts, Mr. Alito did not default to refusing to answer a question because "the issue is likely to come before the Court," he adds. "He has tried to wade in and engage the questions. The answers aren't always as specific as the senators would like, but he can't go too far, either. He'd have to recuse himself."
Maybe Mr. Castor should bone up on constitutional law before he runs his mouth (or for office) in the future. But he probably won't take my advice. Oh well.
P.S.: The Pennsylvania ruling should be reversed by the Supreme Court.
The case went back to Circuit Court for a jury to consider only the sentence to be imposed on Holland. The State reintroduced the facts of the crime, and Holland's lawyers tried to rebut this evidence. The defense said that the State had misrepresented the facts. But the trial judge said that the State could have, in essence, a "free shot." They could re-prove their case, but Holland couldn't try to rebut or undermine the presentation made by the State.
The case in now in Federal court on habeas corpus appeal, and the US Court of Appeals for the Fifth Circuit asked specifically for briefing on that issue. The Fifth Circuit said: "The lack of rebuttal evidence makes it much more likely that a jury would find that the state met its burden with respect to that aggravating circumstance. We believe reasonable jurists would find the resolution of this argument debatable."
The AP story, as reported by the Commercial Appeal, is here.
Y'all Politics (here) and State Street Posts (here) were nice enough to give this blogger headline credit for the two cents I gave the AP on the issue.
As the AP (correctly) quoted me:
Jim Craig, a Jackson attorney and blogger who has handled dozens of death penalty appeals, said Mississippi jurors in death penalty cases weigh aggravating factors against mitigating factors to choose between life without parole and the death penalty.
"When the state reintroduced details about the crime as aggravating facts in Gerald Holland's sentencing case, simple fairness demanded that Mr. Holland have the opportunity to rebut those facts," Craig said.
He said while a sentencing jury can't undo a conviction, "they could decide that the state's narrative of the crime wasn't totally true, and that would have affected their sentencing decision."
Saturday, June 20, 2009
Friday, June 19, 2009
June 19, 2009
Moments ago, residents of the Mississippi Gulf Coast got some much needed good news. In his remarks to the Jackson press corps this afternoon, Governor Barbour announced that he has decided to add the additional $20 million Wind Pool appropriation to his budget. As a co-sponsor of the original bill, I can tell you that this has been a long process but after months of debate, both chambers of the Legislature and now the Governor have agreed to re-up their investment in the Gulf Coast. I have already passed along my thanks to the Governor’s office.
The rest of the budget picture may also be coming into focus. After months of wrangling, some major concessions are being made and conferees report that an overall agreement could be in the offing.
Yesterday, conferees reported substantial agreements on the General Fund portion of the budget. Today, those same conferees appear to be getting closer to an agreement on Medicaid.
Despite the progress report coming out of Jackson, this is no time for victory laps. The people of Mississippi deserve a budget yesterday and until one is delivered, there is work to be done.
Yesterday, I started using the networking service Twitter to send brief real time updates of legislative business. This will enable me to provide updates from the floor of the House and to pass along information that becomes available between the posting of my e-mail updates. For those of you who are already using Twitter, my user name is “brandoncjones”. If you haven’t heard of Twitter, you can check out my page at http://twitter.com/brandoncjones or by following the link on my website.
The JFP story quotes the incoming Mayor: "There are a number of things we can spotlight rather than homicides."
I agree with Mayor Johnson, but not so much for the reasons he states. In my opinion, a show dedicated to showing the "first 48" hours of a homicide investigation is virtually begging the police to find a suspect -- any suspect -- in that artificial time frame. The inevitable result? Pressured false confessions, false arrests, lives and reputations ruined, the Constitution shredded.
Now, if we want transparency, let's DO put cameras on our police cruisers and in our detective's hands, and make the record -- start to finish -- the interrogation of any subject. THAT would promote transparency and aid judges and juries in deciding whether a suspect's statement is . . . suspect.
Thursday, June 18, 2009
Rep. Brandon Jones at brandoncjones
Rep. Greg Snowden at snowlaw
Rep. Becky Currie at becelayne
Anyone know of others? I didn't find any senators at all.
FOR IMMEDIATE RELEASE
WASHINGTON, DC – U.S. Representative Gregg Harper (R–Miss.) joined the Mississippi Poultry Association to announce that Mississippi’s Third Congressional District leads the nation in poultry production, according to recently released data from the U.S. Department of Agriculture’s 2007 Census of Agriculture.
“Mississippi’s poultry producers should be proud to lead the nation’s competitive agriculture industry,” said Congressman Gregg Harper. “Poultry production provides the Third Congressional District and the State of Mississippi with firm jobs and a steady source of revenue.”
The Third Congressional District, stretching from Woodville to Starkville, includes the bulk of the state’s poultry producing areas generating $1.78 billion in poultry and egg sales. Five additional congressional districts from Alabama, Arkansas, and Georgia topped $1 billion in poultry farm sales.Poultry is Mississippi’s largest agricultural product with $2.44 billion in poultry and egg farm sales. The industry employs approximately 20,000 people on farms, feed mills, hatcheries, processing plants and other related industries with a total $6 billion impact on the state’s economy.
Wednesday, June 17, 2009
Tuesday, June 16, 2009
Just got word that Alabama rockers Drive-By Truckers will be playing a show at Hal & Mal's on August 8th. No word yet on when tickets go on sale.
As far as my musical tastes are concerned, this is the biggest show there since the Strokes played around 7 years ago.
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Among other things, the article says:
For those who want to connect or reconnect with others, social-networking sites are a huge, glorious honeypot. But for those who are disconnecting, they can make things quite sticky. And as the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators.
Lawyers, however, love these sites, which can be evidentiary gold mines. Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.
Having represented a divorcing spouse who was able to force a settlement because her partner was a bit too "candid" on MySpace, I concur wholeheartedly in the article's warnings. Be careful out there in cyberspace . . .
Monday, June 15, 2009
Matt and I adapted the name to "Ipse Blogit" -- "because I (we) blogged so" -- but we are still going to give Graham the "prize" of an evening drinking at the Plaza.
Until we figure out how to change the url, you can still reach IB at http://jimcraigsworld.blogspot.com
Today, they've posted a piece from MSU's political guru (and father of Starkville mayor-elect Parker Wiseman) Dr. Marty Wiseman. Dr. Wiseman figures that, since the population of the Delta is down, and the populations of GOP stronghold counties like Rankin, DeSoto, and Madison have increased, that the MSGOP will benefit:
So, at this point, what do these numbers mean? First the lines are already being drawn in the battle of the respective parties to save seats for the partisan debates ahead. The Democrats by virtue of their majority position should have somewhat the upper hand, at least as far as the House is concerned. But the census numbers are clearly working against the Democrats on their home turf. The 44% population increase in DeSoto County makes it the 32nd fastest growing county in the nation, and in Mississippi that is seemingly a big gain for the Republicans. Thus, as things currently appear the numbers alone would portend a shift in several districts from Democratic leaning to Republican leaning.
The problem with Dr. Wiseman's idea is that population growth in historically GOP-leaning counties doesn't automatically equal more Republican voters in those counties. I don't have any numbers to support this, and perhaps Dr. Wiseman does, but from my personal observations, the areas of Rankin and Madison that were once havens for white flight (and thereby GOP voters) are now substantially more demographically complex.
There is one area where Dr. Wiseman is dead-on, however:
If the current philosophical battles over the budget are any indication, the war to come over the partisan makeup of the legislature for the decade of 2011 to 2021 will be one for the ages.
Sunday, June 14, 2009
Congratulations to Kobe Bryant and the Los Angeles Lakers for their impressive NBA Finals performance. It is especially good to see Bryant's maturity as a team leader and professional. The long journey he travelled to get to this point -- including his excessive ego-promotion and his poor judgment with the messeuse in Colorado -- evinces the moral bankruptcy of the NBA policy allowing youngsters to skip college or any minor league development and collect millions of dollars before they turn 20. The policy has since been changed to require one year of college, which (as any parent of a collegian can tell you) is no real difference.
But in any event, Kobe Bryant has proved that he has what it takes to provide leadership in the NBA. Congrats to him and the Lakers.
Friday, June 12, 2009
The latest such pieces I've read are in the Wall Street Journal's law blog, which sent me to Jeffrey Rosen's analysis for TIME.
An examination of Sotomayor’s career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed.
Given than Rosen had previously quoted unnamed sources as saying that Judge Sotomayor was “not that smart and kind of a bully on the bench,” this revised opinion is well, "more nuanced and complex" than Rosen's earlier piece.
But wait, there's more. In the TIME article, Rosen writes:
[Judge Sotomayor] appears to be an incrementalist rather than a radical of any stripe. In a survey of Sotomayor’s 226 majority opinions, Stefanie Lindquist, a law professor at the University of Texas at Austin, found that only 38% could clearly be characterized as liberal, while 49% could clearly be considered conservative. When the criminal cases (in which appellate judges are encouraged by Supreme Court precedent to be relatively pro-prosecution) are taken out of the mix, Sotomayor’s record looks about 46% liberal and 36% conservative.
* * * *
But it’s in dissents rather than in majority opinions that appellate judges often reveal their true feelings. Of Sotomayor’s 19 published dissents, only three dealt clearly with racial issues, and they pointed in different directions. Sotomayor does not appear to be an outlier in race cases, although she seems to have no overarching theory about how to decide them.
I've got news for Rosen and the WSJ: Sonya Sotomayor is, well, a judge. Judges decide the cases they have before them, in a sincere (we hope) effort to apply existing legal principles to new fact situations and thereby to resolve disputes. So why, even in dissent, would it matter that Judge Sotomayor's opinions on racial issues "pointed in different directions" and that "she seems to have no overarching theory about how to decide them?"
We liberals can hope that Judge Sotomayor's sympathies lie with the left-out in this country (what the prophets called "the poor and the oppressed"). But we should not expect that she has any "overarching theories" that account for her past opinions.
And lest anyone thinks this is an anachronistic or reactionary position on my part, I would remind you that Justice Brandeis coined the phrase "judicial restraint" and the epithet "judicial activism." Judges do "make law," of course. In our Anglo-American judicial tradition, we recognize that existing legal principles do not solve every case, and therefore have to be changed and molded to meet new issues. We also know that the Framers wrote the Constitution (and the first Congress the Bill of Rights) in self-consciously abstract language (e.g., the prohibition against "cruel and unusual punishment"), so that the original Federalists (John Adams and John Marshall) could use the power of judicial review to apply the language of the document in new and even unforeseen ways.
But for judges to function in a democratic system of government, they must, at the end of the day, allow the people to be sovereign. That means having respect for legislative and executive pronouncements, and also for precedent set by other judges. "Judicial restraint" in the common-law system means that judges "triangulate" the views of the elected branch of government, the precedent of earlier judicial decisions, and the abstract values of the Constitution. It is a fabulous, practical exercise in process philosophy and philosophical idealism (cf Whitehead, Hartshorne, Hegel, Royce) -- but it does not involve the mechanical application of a "judicial philosophy" to make edicts by judicial fiat.
So three cheers for Judge Sotomayor's "incrementalist, nuanced" approach to cases. And three raspberries for the legal pundits. Get a life, guys.
Thursday, June 11, 2009
Here's what I've got thus far:
Jim Hood (D)
Bill Luckett (D)
Phil Bryant (R)
Delbert Hosemann (R)
Phil Bryant (R)
Delbert Hosemann (R)
Billy Hewes (R)
Tate Reeves (R)
Jim Hood (D)
Delbert Hosemann (R)
As you can see, I've heard Delbert's name for everything under the sun. State Auditor Stacey Pickering (R), appears to be looking to make a move, but I don't know where to just yet. Also, nearly the only Democratic name I've heard is Jim Hood. As the only statewide elected Democrat, that makes sense. That's not to say there's a lack of young talent on the Democratic side of the aisle. (Sen. David Baria, Sen. Gray Tollison, Sen. David Blount, Sen. Eric Powell, Sen. Bill Stone, Rep. David Norquist, Rep. Brandon Jones, Rep. Bryant Clark, and Northern District Public Service Commissioner Brandon Presley are just a few of the young Democrats we'll hear from for a long, long time.) It'll probably just take awhile for them to figure out how and if they'd like to continue to serve.
The Associated Press reported today that Bryan won the 2009 Gruber Justice Prize for his longtime work representing death row inmates, indigent defendants and juveniles.
From the AP story:
Stevenson said the prize will go into the budget of the Equal Justice Initiative, which he said lost a source of funding when a major donor lost money in the investments of disgraced financier Bernard Madoff.
A release from the Gruber Foundation said Stevenson and his staff had been responsible "for reversals and reduced sentences in more than 75 death penalty cases."
U.S. District Judge Bernice Donald of Tennessee said in the release that Stevenson won the award for "securing access to justice for those most in need of protection from discrimination."
The American Bar Association honors Bryan on its website, saying:
As one of the most effective public interest lawyers in the country, and one of the nation's leading critics of the death penalty, Stevenson is a highly sought-after speaker. In addition to his views on the unreliability of the death penalty and its disproportionate use for the poor and people of color, he fervently believes that "no one is beyond hope, beyond redemption."
When speaking to students of all ages, Stevenson exhorts them to become passionate advocates for causes in which they believe. He encourages them to recognize the power that they have and advises them, "don't be afraid to change the world."
Bryan Stevenson continues to work tirelessly, devoting his life to helping disadvantaged people in the Deep South. "I feel blessed each day," he has said, "to be engaged in something that gives my life meaning, that keeps me spiritually alive and aware."He has won wide recognition for his work. Among the prestigious awards Stevenson has earned are the MacArthur Foundation's "Genius Award," the ACLU's National Medal of Liberty, and the American Bar Association's Wisdom Award for Public Service. In 1996, the National Association of Public Interest Lawyers named him Public Interest Lawyer of the Year. He has also received honorary degrees from the University of Pennsylvania, Georgetown University, Washington University and Eastern University.
My two cents: This guy is real. He is unusually kind and thoughtful -- not just as attorneys go (a low bar, to be sure), but in general. He believes deeply that no person is the sum of their worst acts. He lives very modestly, despite his many awards and accomplishments. I would propose him for the Supreme Court (as if anyone pays attention to my suggestions), but I think he'd rather be meeting clients in prison than deciding tax and antitrust cases.
If there are saints in our age, Bryan is one. This was a well-deserved award.
Congratulations to our Atticus Finch.
I've never had the opportunity to meet Bill Luckett. I've only laid eyes on him once, and that was when I briefly watched him advocate on behalf of Kroger in the Kroger beating case.
Anyone know anything about Luckett?
Wednesday, June 10, 2009
Sent via BlackBerry by AT&T
So now we have the spectacle of a white supremacist shooting and killing a security guard at the National Holocaust Museum in Washington, DC.
Courtesy of the Washington Post (linked above), here's a description of the man who was so ably sheltered by Scalia's Second Amendment:
A law enforcement source identified the gunman as James W. von Brunn, 88. On a Web site he apparently maintains extolling a "Holy Western Empire," von Brunn says he served in the U.S. Navy during World War II, worked for 20 years as an advertising executive and film producer in New York and then became "an artist and author" living in Maryland.
Police recovered a notebook from the gunman that apparently contained a list of different D.C. locations, law enforcement sources said. D.C. police bomb squads were called to search and secure those locations after the shooting, including one in the 1400 block of Pennsylvania Avenue near the White House.
How about a movement to amend the Constitution to explicitly provide for control of non-hunting, non-pistol weapons? Let's have an open debate with those who think there's an inalienable right to own semi-automatic firearms or armor-piercing bullets.
Apparently a 72 year old grandma refused to "sign" a ticket she was being given in Travis County, Texas (why, pray tell, does one have to "sign" a ticket?), and gave the deputy some grief about the need to do so . . . when he made her step out of her car, and threatened to Tase her, she said, "Go ahead . . . I dare you."
And so he did.
Kudos to Kathryn Winkfein, for proving that "Tasers don't kill people. Cops kill people." They aren't so lucky in Oakland . . .
So far the only proposals are . . .
1. The Frontal Lobotomized
2. Jim & Matt's Excellent Lobotomies (I see a theme here, but not sure I like it)
3. The Samurai Defenders
Surely someone has additional thoughts on this weighty matter . . .
“The Miss California USA Organization, in conjunction with the Miss Universe Organization and with the blessing of its owner, Mr. Donald J. Trump, announced today the termination of Carrie Prejean as Miss California USA 2009, citing continued breach of contract issues,” the Miss California Organization said in a statement to Access Hollywood.
So many questions, so little time:
1. Does it matter what Miss California's "political beliefs" or "moral beliefs" are? I don't agree with her denunciation of gay marriage, but I can't say I give a damn what she thinks about it. It's not like she's some accomplished artist, writer, actor, etc. I might care what such a person thinks, just as I might care what any successful, accomplished person thinks -- obviously, they must have something on the ball. But the winner of one beauty pageant? I don't think so.
2. Should it matter what Miss California's "political beliefs" or "moral beliefs" are? If you have to believe for or against gay marriage, or contraception/abortion prohibition, or immigration reform, or whatever, to be Miss California, then it cheapens celebrity political statements in general. No artistic endeavor should be required to pass a political litmus test to earn the right to be judged on its own merits.
3. Did Miss California try to cash in on the Perez Hilton controversy to make a name for herself in the fundamentalist Christian market? I think so.
4. Is this the real reason Mr. Trump was so upset? Yes, probably. There can only be one superstar in any Trump production, and it's Trump.
5. How did Donald Trump come to own the Miss California and Miss Universe USA franchises? Isn't this the kind of industry that cries out for nationalization? We The People should own Miss Universe USA, Miss America, the NFL, Dancing With The Stars, America's Next Top Model, and Top Chef.
Which leads to the most important question . . .
What does Judge Sonya Sotomayor think about this whole controversy?
Monday, June 8, 2009
Sotomayor Memo on Capital Punishment
Saturday, June 6, 2009
Friday, June 5, 2009
Twenty years ago today, the above happened. I was 11, and I'm certain that Tank Man in no small way shaped my worldview and led me into a career in criminal defense. Tank Man became the ideal for me. In my estimation, Tank Man is the only way to be a true man. John Wayne barely holds a candle to this guy: alone, unarmed, standing firm as the tanks of a repressive regime roll toward him.
I think about Tank Man often when I think about what it is that criminal defense lawyers do. While there's truly no grave danger associated with being a criminal defense lawyer, he or she is the only person standing between a citizen and the power of the state. The criminal defense lawyer, metaphorically, stands in front of the tank for his or her client. I encourage each of you to find your own tank, and refuse to back down.
On Wednesday, House and Senate conferees published their budget proposals alongside the latest proposal from the Governor’s office. I won’t bore you with the specific figures (e-mail me if you want them) but I will try to hit the high points:
1. The budgets provided by the House, Senate and Governor each use $95 million in “Rainy Day Funds”;
2. The budgets provided by the House and Senate tax hospitals at $57 million annually. The Governor’s budget calls for a $90 million tax on hospitals;
3. The House budget prohibits additional cuts to Medicaid providers. The budgets offered by the Senate and Governor allow unlimited cuts to Medicaid providers;
4. The House budget does not move Federal Stimulus dollars forward to later fiscal years. The Senate budget moves $60 million in Federal Stimulus funds into the 2011 fiscal year. The Governor’s budget moves $90 million in Federal Stimulus funds into the 2011 fiscal year;
5. The House budget fully funds National Board Certified Teachers, the Gifted Studies Program, and Special Education teachers. It reduces expansion of the high school redesign program. The Senate budget fully funds National Board Certified Teachers. It does not fully fund the Gifted Studies Program, Special Education teachers and reduces expansion of the high school redesign program. The Governor’s budget does not fully fund National Board Certified Teachers, the Gifted Studies Program, Special Education teachers and reduces expansion of the high school redesign program;
6. The House budget fully funds Medicaid. The budgets provided by the Senate and Governor do not fully fund Medicaid;
7. The House and Senate budgets fund the $20 million additional appropriation to the State Wind Pool program. The Governor’s budget does not fund the $20 million additional appropriation to the State Wind Pool program;
8. The Governor’s plan does not fund the car tag credit for 2010.
Regular Session v. Special Session
At the urging of hundreds of teachers, hospital workers, and public employees who were roaming throughout the Capitol on Wednesday, the House tried three times to extend the Regular Session. The resolution would have allowed conferees to continue the negotiation process and avoid another costly special session. As many of you will remember from last year, special sessions cost substantially more per day than regular sessions. These types of resolutions require a 2/3rds vote for passage. A bipartisan group of 72 Republicans and Democrats voted to extend the Regular Session and against a Special Session but fell short of victory by 4 votes.
I voted against the Special Session for 4 simple reasons: 1) The same people who are in disagreement now will still have to reach an agreement in a Special Session; 2) There is nothing about a Special Session that compels legislators to agree (in fact, last year, quite the opposite happened); 3) In a budget year like this one, we should take the cheapest route to a solution; and 4) The Governor has repeatedly failed to include the Wind Pool increase in his budget figures.
Wednesday, June 3, 2009
Monday, June 1, 2009
He has served ably, and this writer has considered it a privilege to practice before him.