NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Wednesday, January 26, 2005 ::
The manufactured quasi-scandal about Maggie Gallagher
Well, turns out some people I thought had more than two neurons to rub together, in fact don't. Michelle Malkin, for instance. Under the preening header "Holding Ourselves to a Higher Standard" (scroll down -- she evidently thinks permalinks are for losers), she joins the Washington Pest's ambush of Maggie Gallagher.
Maggie is a much-published policy analyst on the issue of marriage. In that capacity she was hired a few years ago by HHS to turn out a number of specific, tangible work products related to marriage policy. Now, because she never mentioned these contracts in her syndicated column on marriage, the Left sees its chance to make of her another Armstrong Williams -- the columnist and talk-show host who was paid by the Bush administration precisely to use those venues to promote a particular Bush initiative (in his case, the No Child Left Behind Act).
Being paid to endorse a bill in your syndicated column; being paid for specific, agreed-upon works of policy analysis -- exactly the same, right? Not. If no actual work product had been required of Ms. Gallagher, we could then suspect that this was a disguised pay-off designed to produce favorable coverage in her column. But no one disputes that her contract with HHS was to produce think-tank-type products that HHS needed, that Maggie was and is superbly qualified to produce, and that she did in fact produce. HHS was buying her intellectual work-product, and not (as in Williams's case) her column-inches.
Did I mention that Maggie is also the nation's most influential voice against same-sex marriage? The Lavender Left is mad, really mad....
:: David M. Wagner 10:52 PM [+] ::
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A Con Crim Pro student asks:If it is acceptable for a policeman to see an illegal activity by standing somewhere permissible and looking in, then couldn't the Court [in Katz] have argued that there was no expectation of privacy in the phone booth (assuming it has glass panels) regarding the one sided conversation by the person in the booth because it is common knowledge that people (mainly the deaf) read lips?
I think there was indeed no r.e.p. as far as anything visible from outside the booth was concerned. But if the gov't had actually used a lip-reading policeman instead of an eavesdropping device, the Katz majority would probably have looked for ways to distinguish the words that were picked up from movements that would have been in plain view. They might (though one can't be sure) have reached for the Ciraolo-Kyllo doctrine that "tech" makes a difference.
:: David M. Wagner 8:15 PM [+] ::
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:: Tuesday, January 25, 2005 ::
Justice Scalia, speaking last Saturday: "If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world."
:: David M. Wagner 1:29 PM [+] ::
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take the WHAT INTENTIONAL TORT ARE YOU test.
and go to mewing.net. because law school made laura do this.
:: David M. Wagner 2:26 AM [+] ::
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:: Saturday, January 22, 2005 ::
I've just found an interesting new news site, TheFactIs.org, and a companion blog, The Thing Is.
:: David M. Wagner 11:19 AM [+] ::
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:: Monday, January 17, 2005 ::
My dean and I are both quoted, along with Jay Sekulow, in today's Richmond Times-Dispatch.
:: David M. Wagner 1:15 PM [+] ::
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:: Thursday, January 13, 2005 ::
Booker & Fanfan
It's a mess, with Stevens writing the opinion of the Court on one issue, and the principal dissent on the other, and Breyer writing the inverse opinions.
The Stevens-led majority was sound on the main Blakely issue: facts that augment a sentence have to found by a jury. No more letting juries find beyond a reasonable doubt that Jones had 50 g of coke and then letting the judge find, "via ex-parte, hearsay-ridden memos" (Scalia's words), by the preponderance standard, that Jones in fact had 500 g, and sentencing him accordingly to a decade or two more than would be allowed by the 50 g finding.
But, having established this, what's the basis for striking down the expressed will of Congress that judges should make use of the Guidelines, when they can do so within the constraints of the Sixth Amendment? It's not my will -- I'd have voted the other way if I were in Congress -- and besides, the Commission that wrote the Guidelines was unconstitutional all along, wasn'it. But if Congress voted the other way, and we're not going to revisit Mistretta (for now), where do we get off prohibiting Congress from mandating use of the Guidelines?
A word to fans of judicial discretion in sentencing, of which I'm one: what was at stake in Booker was judicial finding of sentence-augmenting facts, without the evidentiary safeguards of a trial. The policy wisdom of determinate sentencing is, like Mistretta, an issue for another day.
:: David M. Wagner 10:28 PM [+] ::
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:: Tuesday, January 11, 2005 ::
Supreme Court Won't Hear Gay-Adoption Case
Tony Mauro
Legal Times
01-11-2005
The Supreme Court on Monday declined to review a challenge to Florida's law against gay adoption, passing up a chance to elaborate on its landmark 2003 gay rights case, Lawrence v. Texas.
A boost to advocates of a narrow reading of Lawrence. But since Lawrence is more a political belch than a legal opinion, no consequence of it, or lack thereof, should be surprising. Most likely, the Lawrence majority has simply decided to go cool on social revolution for a while and let the Court's credibility as a legal institution recover.
:: David M. Wagner 4:05 PM [+] ::
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:: Wednesday, January 05, 2005 ::
And why haven't I done that post about the 11th Circuit Confrontation Clause case yet? Because you students keep burying me with exams! I swear, you grade one, and there's another! On and on!
I finally finished them today -- just in time to take off for the AALS conference in San Francisco.
:: David M. Wagner 6:35 PM [+] ::
...
Well, turns out some people I thought had more than two neurons to rub together, in fact don't. Michelle Malkin, for instance. Under the preening header "Holding Ourselves to a Higher Standard" (scroll down -- she evidently thinks permalinks are for losers), she joins the Washington Pest's ambush of Maggie Gallagher.
Maggie is a much-published policy analyst on the issue of marriage. In that capacity she was hired a few years ago by HHS to turn out a number of specific, tangible work products related to marriage policy. Now, because she never mentioned these contracts in her syndicated column on marriage, the Left sees its chance to make of her another Armstrong Williams -- the columnist and talk-show host who was paid by the Bush administration precisely to use those venues to promote a particular Bush initiative (in his case, the No Child Left Behind Act).
Being paid to endorse a bill in your syndicated column; being paid for specific, agreed-upon works of policy analysis -- exactly the same, right? Not. If no actual work product had been required of Ms. Gallagher, we could then suspect that this was a disguised pay-off designed to produce favorable coverage in her column. But no one disputes that her contract with HHS was to produce think-tank-type products that HHS needed, that Maggie was and is superbly qualified to produce, and that she did in fact produce. HHS was buying her intellectual work-product, and not (as in Williams's case) her column-inches.
Did I mention that Maggie is also the nation's most influential voice against same-sex marriage? The Lavender Left is mad, really mad....
:: David M. Wagner 10:52 PM [+] ::
...
If it is acceptable for a policeman to see an illegal activity by standing somewhere permissible and looking in, then couldn't the Court [in Katz] have argued that there was no expectation of privacy in the phone booth (assuming it has glass panels) regarding the one sided conversation by the person in the booth because it is common knowledge that people (mainly the deaf) read lips?I think there was indeed no r.e.p. as far as anything visible from outside the booth was concerned. But if the gov't had actually used a lip-reading policeman instead of an eavesdropping device, the Katz majority would probably have looked for ways to distinguish the words that were picked up from movements that would have been in plain view. They might (though one can't be sure) have reached for the Ciraolo-Kyllo doctrine that "tech" makes a difference.
:: David M. Wagner 8:15 PM [+] ::
...
:: David M. Wagner 1:29 PM [+] ::
...
take the WHAT INTENTIONAL TORT ARE YOU test.
and go to mewing.net. because law school made laura do this.
:: David M. Wagner 2:26 AM [+] ::
...
:: David M. Wagner 11:19 AM [+] ::
...
:: David M. Wagner 1:15 PM [+] ::
...
It's a mess, with Stevens writing the opinion of the Court on one issue, and the principal dissent on the other, and Breyer writing the inverse opinions.
The Stevens-led majority was sound on the main Blakely issue: facts that augment a sentence have to found by a jury. No more letting juries find beyond a reasonable doubt that Jones had 50 g of coke and then letting the judge find, "via ex-parte, hearsay-ridden memos" (Scalia's words), by the preponderance standard, that Jones in fact had 500 g, and sentencing him accordingly to a decade or two more than would be allowed by the 50 g finding.
But, having established this, what's the basis for striking down the expressed will of Congress that judges should make use of the Guidelines, when they can do so within the constraints of the Sixth Amendment? It's not my will -- I'd have voted the other way if I were in Congress -- and besides, the Commission that wrote the Guidelines was unconstitutional all along, wasn'it. But if Congress voted the other way, and we're not going to revisit Mistretta (for now), where do we get off prohibiting Congress from mandating use of the Guidelines?
A word to fans of judicial discretion in sentencing, of which I'm one: what was at stake in Booker was judicial finding of sentence-augmenting facts, without the evidentiary safeguards of a trial. The policy wisdom of determinate sentencing is, like Mistretta, an issue for another day.
:: David M. Wagner 10:28 PM [+] ::
...
Supreme Court Won't Hear Gay-Adoption CaseA boost to advocates of a narrow reading of Lawrence. But since Lawrence is more a political belch than a legal opinion, no consequence of it, or lack thereof, should be surprising. Most likely, the Lawrence majority has simply decided to go cool on social revolution for a while and let the Court's credibility as a legal institution recover.
Tony Mauro
Legal Times
01-11-2005
The Supreme Court on Monday declined to review a challenge to Florida's law against gay adoption, passing up a chance to elaborate on its landmark 2003 gay rights case, Lawrence v. Texas.
:: David M. Wagner 4:05 PM [+] ::
...
I finally finished them today -- just in time to take off for the AALS conference in San Francisco.
:: David M. Wagner 6:35 PM [+] ::
...
