NINOMANIA

 Subscribe in a reader

:: Saturday, November 27, 2004 ::

It's a bit off-topic for this blog, I suppose, but here's a new non-law blog I'm enjoying.

:: David M. Wagner 3:29 PM [+] ::
...

:: Wednesday, November 24, 2004 ::

Regent Law student Jamie Jeffords has a blog!

And so does Regent Law alum Randy Tunac!

:: David M. Wagner 11:50 PM [+] ::
...

New blog: Underneath Their Robes -- News, gossip, and colorful commentary about the federal judiciary.

:: David M. Wagner 3:23 PM [+] ::
...

:: Tuesday, November 23, 2004 ::

I've just come from teaching Maryland v. Craig in Criminal Procedure. GRRRGHGHRRRRGH. Mr. Chief Justice, conservatism in constitutional law is not all about locking people up. Justice O'Connor, your nanny pose in unbecoming.

This case gives us one of Justice Scalia's best dissents, of course, made all the more piquant by being joined by Justices Brennan, Marshall, and Stevens. "Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion" -- and it just gets better from there.

Oh, that reminds me: Justices Brennan and Marshall (wherever you are) and Justice Stevens: doesn't this case give you any hesitation, any at all, about a "living Constitution" as you use the term? Maybe a clue about how a Constitution that "lives" under judicial management so as to "expand" rights can equally well contract and deny them?

As it happens, NR published today a piece by Sen. John Cornyn about judicial nominations, in the course of which he points out Justice Scalia's under-discussed record as a defender of criminal defendants' rights, when those rights are plainly in the Constitution. The Senator writes, inter alia:

Rights of the Accused: The judicial philosophy of Justices Scalia and Thomas has led to numerous decisions favoring criminal defendants, notwithstanding the contrary views of some of their colleagues. In Blakely and Apprendi, they authored or joined 5-4 majorities recognizing a robust right to jury trial under the Sixth Amendment. In Kyllo, Justice Thomas joined Justice Scalia's 5-4 majority opinion expanding Fourth Amendment protections against government searches based on new technologies. Justice Scalia's dissent in Maryland v. Craig, decided before Justice Thomas joined the Court, championed a broader Sixth Amendment right of criminal defendants to confront their accusers than that ultimately adopted by the Court.

Fortunately, there is language in Scalia's recent opinion for the Court in Crawford v. Washington that offers us a time-bomb underneath Craig: "The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts." And: "It is not enought to point out that most of the usual safeguards of the adversary process attend the [out-of-court testimonial] statement, when the single safeguard missing is the one the Confrontation Clause demands."

That last line could have gone on to specify that it refers to the right to cross-examination, which after all is what was at issue in Crawford; but instead it's phrased so as to refer to the Confrontation Clause as such. Well done. Craig delendus est.

:: David M. Wagner 10:15 PM [+] ::
...

:: Sunday, November 14, 2004 ::

The Hill -- Tide runs against Specter: Uproar continues over comments on federal judges

:: David M. Wagner 9:42 PM [+] ::
...

Before the election, Justice Scalia turned out to be on the mailing list for a "piece" (as they say in the mass-mailing business) from Jim Carville, with an "in terrorem" on the outside on the envelope saying: "How would you like -- CHIEF JUSTICE SCALIA?" --

-- Whereupon hundreds of Federalist Society conference attendees rose to their feet and cheered. He made a two-handed "Aw get outta heah" gesture, and added: "I only said it because it's FUNNY!"

:: David M. Wagner 9:38 PM [+] ::
...

Sen. Frist has now commented on Sen. Specter's Judiciary chairmanship prospects -- and it doesn't sound like rock-ribbed support.

:: David M. Wagner 8:58 PM [+] ::
...

:: Wednesday, November 10, 2004 ::

Janet Dailey writes in London's Daily Telegraph:

There are lots of reasons why the liberal intelligentsia in the United States has so spectacularly fallen out of touch with the true democratic will of the country. Part of this is geographic - the electoral map with its huge mass of red states, fringed with blue bits hanging on for dear life at the edges, was clear enough. But the picture was far more complex than that map reflected: the real story is one of break-away Hispanic and black voters who went conservative on the social issues that John Kerry's campaign had thought to be a strong card with minorities. The truth in America, and in Britain, is that the Left-liberal axis has lost its way: it has failed to notice that its "liberalism" has become an off-putting orthodoxy with which most people do not identify. Government ministers have been pretty quick off the mark in noticing this: that is why [Home Secretary] David Blunkett is assigned the task of making anti-liberal noises. The Tories, alas, have yet to get the message. They still seem to think it is up-to-the-minute, state-of-the-art politics to talk like a sociology lecturer from the 1970s.

In the United States, liberalism has not only overplayed its hand but it has tried to attach the spirit of the 1960s civil rights movement to causes that the great majority see as inappropriate. Everybody that the orthodoxy adopts becomes an honorary southern American black: persecuted, exploited and downtrodden. Gays, however wealthy, successful and influential they are, must be portrayed as social victims whose lives are made hell becausetheir unions are denied absolute legal equivalence with heterosexuals. It is quite true, as everybody is saying, that in Britain, gay marriage is not the explosive issue that it is in America, where Biblical authority has much more sway. (But the Westminster obsession with gay issues such as the age of consent certainly is out of tune with most people's sense of political priorities.)

:: David M. Wagner 10:09 PM [+] ::
...

White House Counsel Alberto Gonzalez has been nominated to succeed Ashcroft as AG. I take it this makes a Gonzalez Supreme Court appointment substantially less likely.

:: David M. Wagner 1:19 PM [+] ::
...

:: Wednesday, November 03, 2004 ::

Sooooo -- Bush is back, with 55 Republican Senators; plus, Captain Filibuster lost his seat. The Democrats will have to elect a new leader. To be sure, filibusters aren't that hard to organize, and many of the same staffers will still be around; but the new Minority Leader will have to learn the ropes, and then pull them with a smaller conference behind him than Daschle used to have.

Besides, no Senate minority party gets away with filibustering a Supreme Court nominee (Strom failed in it, after all) -- especially not with a President freshly reelected with a popular as well as electoral majority.

For conservatives, the only sour note is Arlen Specter chairing the Judiciary Committee. On that, there is much in what Timothy Carney writes here.

:: David M. Wagner 4:37 PM [+] ::
...

:: Tuesday, November 02, 2004 ::

Me.

:: David M. Wagner 5:02 PM [+] ::
...

Let me know if I have to explain why this makes today's election even more interesting.

:: David M. Wagner 10:08 AM [+] ::
...