JUSTICE:
Well, I had intended this use this entry to excoriate the Executive-in-Chief over his State of the Union speech from this week, but a (very wise) comment led me to a different intellectual examination. Robin Bisha, who writes the very heartfelt Woman Hollerin', expressed concern that Alito and Bork might be 'cut from the same cloth', as it were, and shared my dismay that whereas twenty years ago, a mighty groundswell of opposition led to his nomination's rejection, today we saw but a relative whimper of real and sustained opposition.
Now, it has been a LOOOOoooooonnnnnnnngggggg time since my Constitutional Law class, and I really haven't spent the kind of quality time analyzing Bork's writings, opinions (of which there are MANY since his rejection - then again a highly paid cush job at the American Enterprise Institute does grant you lots and lots of free time to wax rhetorically) to do a comprehensive analysis, but while Alito's eventual jurisprudence will be undoubtedly conservative, I don't think that he's Bork-ian.
Bork, as memory serves (supplanted by a little quick Googling), takes not just a conservative view of the Constitution, but rather an ORIGINALIST view. Bork has ZERO respect for the precedence value of prior decisions from courts that he feel were based on faulty principles or where the Court input itself into areas where he felt that the Constitution's founders couldn't have possibly envisioned. Absent constitutional revision, argued the bearded Bork, the Court shouldn't have done MANY of the things we have lauded the Supreme Court for deciding.
Alito, by comparison, seems to be more of a STRICT CONSTRUCTIONALIST. Using a geometry analogy, it might be fair to say that all Originalists are Strict Constructionalists, but not all Strict Constructionalists are Originalists.
One of the largest areas of difference is, if I recall correctly, between them is whether the 14th Amendment (especially the Due Process and Equal Protection Clauses) act to apply federal constitutional protections and standards to the individual States. Bork (again, working from dim memory here) believes that the Court frequently uses the 14th Amendment as a device to reach into State action that he feels lacks a constitutional dimension, whereas a similar principle seems to lacking in Alito's viewpoints. Granted, Alito is staunchly conservative, but at least has paid lip service (in the hearings) to respecting the power and principles of the current Court.
Only time will tell, as in most things. I was somewhat heartened by Alito's first vote as a sitting justice. For those of you who missed it, Alito actually broke with the 'conservative wing' of the Court, and voted to deny lifting a stay of execution. At issue in the Taylor case was whether the State's manner of execution was cruel and unusual. Pay attention kiddies, whether the manner of execution was cruel and unusual, not whether the execution itself was cruel and unusual. Scalia, Thomas, and newly installed Chief Justice Roberts (who is the one I'm more worried about), said that the stay of execution should be lifted. The majority of judges, including Alito, decided that the stay should remain in effect while the lower court continues to consider this issue.
While the order continuing the stay lacks any reasoning or explanation (copy of order available at http://www.supremecourtus.gov/orders/courtorders/020106pzr.pdf ) I would bet next year's bar dues that Alito's vote was somewhat predicated on his belief that this question is not yet resolved to a sufficient level of constitutional certainty. As some of you may be aware, a case from Florida (whose name and citation escapes me for the moment) has been accepted by the Supreme Court for review later this term. While the issue remains unresolved, it seems that a stay of execution is the prudent course of action.
Look for more comment on this and other death penalty issues as the Court considers the case.
Again, thanks Robin for leading me to this topic.
Later . . . .
Saturday, February 04, 2006
Tuesday, January 31, 2006
Sam, your robe is waiting . . .
TRUTH / JUSTICE:
And so, it came to pass, that on the 31st day of January, in the year-of-our-lord (or other appropriate deity), in the District of Columbia, a significant event in American jurisprudence has come and gone with all but the smallest of notice.
Granted, there are MANY things to occupy our attention this day. We have lost a great woman, who was an icon to some (myself, included), and so we wish you godspeed Coretta Scott King, and thank you for your tireless dedication to improving race relations in our society. May we all strive to continue your legacy.
(Ok, so I'm being just a little over the top here, but hey, show some respect for the dead).
Where was I? Oh yes, things to occupy our attention this day. George W. Bush stands this evening and offers us his FIFTH State of the Union address. Now, I will plainly admit to being no fan of President Bush, and have so very little good to say about his administration. But for now, not having heard the actual speech, I will save what I can only expect will be a extremely violent eruption of words and criticism for the Executive-in-Chief until later. What I will mention is this: NPR and other news sources have mentioned that the speech tonight, without counting breaks for applause, will last 38 minutes. Now, I realize that NO ONE (including me) yearns to return to the days of William Jefferson Clinton and the 90 plus minute speeches. (Well, ok, maybe I do miss them once in a while, but still, 90 minutes? )
All I'm going to say at this point is this: your average hour long television drama lasts 42 minutes of actual broadcast footage. Is it too much to ask that the President spend AT LEAST that much time presenting his ideas for the country? Just a thought . . .
And, we note with continuing concern, the plight of ABC News co-Anchor Bob Woodruff, who continues to struggle with wounds he received while reporting on the state of chaos in Iraq.
But somewhat diminished in all that chatter was the beginning of Samuel Alito's term on the United States Supreme Court. I will avoid lavishing overwhelming praise on departing Justice Sandra Day O'Connor, who rightly is being heralded as one of the great minds and moderating influences on the Court during the birth of the information age. (Oops, there I go, when I said I wouldn't . . . )
But, despite the rabble rousing from some of my fellow liberal brethren, I am not so awfully afraid of Justice Alito. While many heard hemming and hawing during the confirmation hearings, I was largely struck by Judge Alito's patience with dealing with committee members who were either (a) completely unschooled in the way that appellate decisions are formed, and the intellectual rigors that are required for truly good jurisprudence; (b) just plain less intelligent than he is; or (c) just plain unintelligent.
True, Justice Alito is probably most likely going to be as conservative oriented in his opinions as Justice Scalia. True, many of his opinions seem to favor the power of the government over the power of the individual. But, having reviewed many of his opinions, including the oft-cited but rarely correctly analyzed decision in Doe v. Groody, a.k.a. the "Kid Strip Search" case, I find that the most consistent predictor of outcome is the quality of the lawyering. Judge, now Justice Alito, it seems to me takes a VERY narrow view of the question before him, and if a lawyer, either at the trial level or the appellate level, has NOT carefully crafted his or her argument and presented for review a clearly articulated ground for specific remedy, well, that's just too bad.
As to whether Judges should look beyond the articulated grounds in an appeal to the facts of a case to see that true justice should be done (in other words, should a lawyer's carelessness take away an individual's right to justice), well, that's a debate for another day (when I've got the mental stamina to consider it).
For now, anyway, I say hello Justice Alito. Let us now see how you REALLY think . . .
Later . . . .
And so, it came to pass, that on the 31st day of January, in the year-of-our-lord (or other appropriate deity), in the District of Columbia, a significant event in American jurisprudence has come and gone with all but the smallest of notice.
Granted, there are MANY things to occupy our attention this day. We have lost a great woman, who was an icon to some (myself, included), and so we wish you godspeed Coretta Scott King, and thank you for your tireless dedication to improving race relations in our society. May we all strive to continue your legacy.
(Ok, so I'm being just a little over the top here, but hey, show some respect for the dead).
Where was I? Oh yes, things to occupy our attention this day. George W. Bush stands this evening and offers us his FIFTH State of the Union address. Now, I will plainly admit to being no fan of President Bush, and have so very little good to say about his administration. But for now, not having heard the actual speech, I will save what I can only expect will be a extremely violent eruption of words and criticism for the Executive-in-Chief until later. What I will mention is this: NPR and other news sources have mentioned that the speech tonight, without counting breaks for applause, will last 38 minutes. Now, I realize that NO ONE (including me) yearns to return to the days of William Jefferson Clinton and the 90 plus minute speeches. (Well, ok, maybe I do miss them once in a while, but still, 90 minutes? )
All I'm going to say at this point is this: your average hour long television drama lasts 42 minutes of actual broadcast footage. Is it too much to ask that the President spend AT LEAST that much time presenting his ideas for the country? Just a thought . . .
And, we note with continuing concern, the plight of ABC News co-Anchor Bob Woodruff, who continues to struggle with wounds he received while reporting on the state of chaos in Iraq.
But somewhat diminished in all that chatter was the beginning of Samuel Alito's term on the United States Supreme Court. I will avoid lavishing overwhelming praise on departing Justice Sandra Day O'Connor, who rightly is being heralded as one of the great minds and moderating influences on the Court during the birth of the information age. (Oops, there I go, when I said I wouldn't . . . )
But, despite the rabble rousing from some of my fellow liberal brethren, I am not so awfully afraid of Justice Alito. While many heard hemming and hawing during the confirmation hearings, I was largely struck by Judge Alito's patience with dealing with committee members who were either (a) completely unschooled in the way that appellate decisions are formed, and the intellectual rigors that are required for truly good jurisprudence; (b) just plain less intelligent than he is; or (c) just plain unintelligent.
True, Justice Alito is probably most likely going to be as conservative oriented in his opinions as Justice Scalia. True, many of his opinions seem to favor the power of the government over the power of the individual. But, having reviewed many of his opinions, including the oft-cited but rarely correctly analyzed decision in Doe v. Groody, a.k.a. the "Kid Strip Search" case, I find that the most consistent predictor of outcome is the quality of the lawyering. Judge, now Justice Alito, it seems to me takes a VERY narrow view of the question before him, and if a lawyer, either at the trial level or the appellate level, has NOT carefully crafted his or her argument and presented for review a clearly articulated ground for specific remedy, well, that's just too bad.
As to whether Judges should look beyond the articulated grounds in an appeal to the facts of a case to see that true justice should be done (in other words, should a lawyer's carelessness take away an individual's right to justice), well, that's a debate for another day (when I've got the mental stamina to consider it).
For now, anyway, I say hello Justice Alito. Let us now see how you REALLY think . . .
Later . . . .
Sunday, January 29, 2006
A slow beginning . . .
And so, with a whimper, begins this latest attempt at one of the semi-educated masses to join the ranks of commentators and pundits, reviewers and researchers, and politicos and the just plain pissed.
So, just what do I have in mind for this small enterprise? Surely someone out there will want to know just what is the "Never Ending Search for Truth, Justice, and Perfect Pizza?" (Come on, surely SOMEONE out of the 3.8 BILLION people on this planet will EVENTUALLY want to know --- just consider me proactive).
Well, being a lawyer, it should come to no one's surprise that I enjoy the sound of my own voice, and so I continually look for ways to brandish what little intellectual and rhetorical gifts I have accumulated over the years. And following some advice I found on the great-and-powerful Google, I decided to choose a blog format that would enable me to comment on as broad a range of things as possible.
So, with little fanfare, let me explain my purpose. These are my OPINIONS. You may not agree with them. You may not like them. Then again, you don't have to READ them, either.
I hope -- let me repeat that -- hope to update this thing weekly. My comments, hopefully, will fall into one of three categories:
TRUTH: I will endeavor to tell you the truth. Most of the time, I plan to use this opportunity to point out things that more fully explain things that I feel have gotten smoothed over or lost in the chatter in the mass media. Again, these will be my opinions, and should in NO way be seen to be the absolute last word on ANYTHING. But, as Socrates once pointed out, an unexamined life is not worth living, and so I will try to take this opportunity to examine the truth of things that affect you, me, and the rest of the people on this big blue marble.
JUSTICE: I am a lawyer, and I love the law. The (purported) supremacy of the rule of law is one of the cornerstones of our civilization. I, myself, have taken an oath to protect, uphold, and defend the laws and Constitution of the United States, and the laws and Constitution of the great state of Texas. I've worked as a prosecutor, and now I work as a defense attorney. The law is near and dear to me, and I take GREAT offense when it is abused, maligned, misquoted, or otherwise misused. Expect lots and lots of semi-righteous indignation that come under this heading.
PERFECT PIZZA: As much as I sometimes like to pretend to the contrary, I am a consumer of pop culture and mass media, and have been known, from time-to-time, to follow a trend or two. I figure this is just my way of adding my two cents to things that may or may not be actually reported on Entertainment Tonight. Oh yeah, and I may add a comment on pizza from time to time.
Now, for the legal disclaimers:
1. Feel free to copy and/or quote from me as you see fit. I only ask that if I actually have an original thought and you want to borrow it, you give me a little credit. If it's an idea I've borrowed from someone else, and I've given them credit for it, please be sure to credit them.
2. Feel free to comment and criticize my reasoning, and to challenge my opinions. Please AVOID resorting to slurs, cursing, or questioning the validity of my parent's marriage at the time of my birth.
3. Any similarities to any persons, living or dead, is purely accidental, but perhaps intentional. In some cases the names have been changed to protect the innocent. For example, Dick Cheney is now known as Henry Kissinger. (with a nod to Dragnet).
Well, that's enough for one week, I suppose.
And so, I bid you all a goodbye.
Later . . . . .
So, just what do I have in mind for this small enterprise? Surely someone out there will want to know just what is the "Never Ending Search for Truth, Justice, and Perfect Pizza?" (Come on, surely SOMEONE out of the 3.8 BILLION people on this planet will EVENTUALLY want to know --- just consider me proactive).
Well, being a lawyer, it should come to no one's surprise that I enjoy the sound of my own voice, and so I continually look for ways to brandish what little intellectual and rhetorical gifts I have accumulated over the years. And following some advice I found on the great-and-powerful Google, I decided to choose a blog format that would enable me to comment on as broad a range of things as possible.
So, with little fanfare, let me explain my purpose. These are my OPINIONS. You may not agree with them. You may not like them. Then again, you don't have to READ them, either.
I hope -- let me repeat that -- hope to update this thing weekly. My comments, hopefully, will fall into one of three categories:
TRUTH: I will endeavor to tell you the truth. Most of the time, I plan to use this opportunity to point out things that more fully explain things that I feel have gotten smoothed over or lost in the chatter in the mass media. Again, these will be my opinions, and should in NO way be seen to be the absolute last word on ANYTHING. But, as Socrates once pointed out, an unexamined life is not worth living, and so I will try to take this opportunity to examine the truth of things that affect you, me, and the rest of the people on this big blue marble.
JUSTICE: I am a lawyer, and I love the law. The (purported) supremacy of the rule of law is one of the cornerstones of our civilization. I, myself, have taken an oath to protect, uphold, and defend the laws and Constitution of the United States, and the laws and Constitution of the great state of Texas. I've worked as a prosecutor, and now I work as a defense attorney. The law is near and dear to me, and I take GREAT offense when it is abused, maligned, misquoted, or otherwise misused. Expect lots and lots of semi-righteous indignation that come under this heading.
PERFECT PIZZA: As much as I sometimes like to pretend to the contrary, I am a consumer of pop culture and mass media, and have been known, from time-to-time, to follow a trend or two. I figure this is just my way of adding my two cents to things that may or may not be actually reported on Entertainment Tonight. Oh yeah, and I may add a comment on pizza from time to time.
Now, for the legal disclaimers:
1. Feel free to copy and/or quote from me as you see fit. I only ask that if I actually have an original thought and you want to borrow it, you give me a little credit. If it's an idea I've borrowed from someone else, and I've given them credit for it, please be sure to credit them.
2. Feel free to comment and criticize my reasoning, and to challenge my opinions. Please AVOID resorting to slurs, cursing, or questioning the validity of my parent's marriage at the time of my birth.
3. Any similarities to any persons, living or dead, is purely accidental, but perhaps intentional. In some cases the names have been changed to protect the innocent. For example, Dick Cheney is now known as Henry Kissinger. (with a nod to Dragnet).
Well, that's enough for one week, I suppose.
And so, I bid you all a goodbye.
Later . . . . .
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