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 ::
:: Monday, November 28, 2005 ::
Pieces Fall From Supreme Court Facade. Well, I've long said it was bound to crumble. Take a good look at exactly what symbol it was that dropped a basketball-sized chunk of marble this morning. (Hat-tip: How Appealing)
:: David M. Wagner 3:33 PM [+] ::
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Hello. That was a long blog-break by recent standards. Let's see what we've got today....
I'd say Judge Alito is still sailing toward confirmation. That 1985 DOJ job app was good for a few fundraising letters and attack ads, but two facts continue to make this a world apart from the Bork process in '87: the GOP Senate majority, and the presence of pro-nominee forces on the political/media battlefield.
I remember the tone of the headlines, day after day throughout the summer of '87: "Bork opinions raise concerns," "Support for Bork seen slipping," "Moderates uneasy about Bork," etc. etc. What do we see today? Warnings about the "political dangers" of attacking Alito; Alito keeps favor of conservatives, moderates; and this Washington Post piece on how both categories of "vulnerable Senators" are being lobbied: Republicans in liberal states, like Chafee (RI), and Democrats in conservative states, like Ben Nelson (NE) and Conrad and Dorgan (ND).
Also, the activist groups are now recognized as such. In '87, People for the American Way could pass for, you know, just a bunch of people who are for the American way. In '05, an ace conservative strategist like Keith Appell can say: "If you are a Democratic senator from a state that the president won, the last thing you want to do is be aligned with [liberal advocate] Ralph Neas or groups like People for the American Way."
So much, for now, about incoming Justices. As for Our Hero, here's one: Al Franken Schooled by Antonin Scalia at New York Event.
:: David M. Wagner 3:01 PM [+] ::
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:: Monday, November 14, 2005 ::
Yale Law Frets Over Court Choices It Knows Best. The New York Times continues its prurient obsession with all things Yalie, and Bruce Ackerman continues to demonstrate that political hacks can be found all up and down the law-school food-chain.
:: David M. Wagner 1:40 PM [+] ::
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:: Wednesday, November 09, 2005 ::
Fred Barnes agrees with me: Kilgore wouldn't say what he'd do if Roe were overturned, irritating many conservatives. See my Nov. 7 post.
:: David M. Wagner 12:03 PM [+] ::
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AG Race: McDonnell leads slightly over Deeds
RICHMOND, Va. (AP) -- Republican Robert F. McDonnell held a narrow lead early Wednesday in the race for attorney general but stopped short of declaring victory over Democrat R. Creigh Deeds, who said he not concede and expects a lengthy recount.
...Deeds predicted Wednesday it would be weeks before the outcome of the race is known.
Well of course: in an off-year, with no other close statewide races around the country, every Democratic lawyer in the country could be heading to Virginia. I may even rent out my den, if I can do so at an unconscionable rate.
Seriously, though -- best to you, Bob, and recount their buns off!
:: David M. Wagner 11:23 AM [+] ::
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:: Tuesday, November 08, 2005 ::
First decision of Roberts Court unanimously upholds the Ninth Circuit.
:: David M. Wagner 2:17 PM [+] ::
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:: Monday, November 07, 2005 ::
Kilgore in a quagmiers?
You're in a "quagmiers" when you take your base for granted.
GOP nominee Jerry Kilgore may lose tomorrow's gubernatorial election here in Virginia. Power Line gives reasons for this. I'd like to give another: asked a straightforward hypothetical question as to whether, in a post-Roe world, he would sign a bill that bans abortion except in cases of rape, incest, or life of the mother, he has repeatedly refused to answer clearly.
Undoubtedly he didn't want to alarm the liberal folks up in Fairfax and Arlington counties (the places where Democratic AG nominee Creigh Deeds is running ads criticizing his opponent, frontrunner Bob McDonnell, for having attended this law school). But Mr. Kilgore may have forgotten that pro-life voters, too, have standards.
I say this because, during the course of the present day, I have randomly walked into three separate conversations in which people who would normally be considered part of the Republican "base" were expressing indecision about the Governor's race (not the AG's race -- we all admire Bob McDonnell!), and assigning as reason for their uncertainty Kilgore's perceived weakness on the pro-life issue.
Hardly a scientific sample -- but I wanted to put it on the record, because if Kilgore does in fact lose, the punditocracy will proclaim it was because he was too far to the "right" on "social issues." In fact, it may be because he was not far "right" enough.
N.B. (1) Conservative State Senator Ken Cuccinelli makes the conservative case for Kilgore here.
N.B. (2) Our local paper endorses Kaine for Governor -- and McDonnell for AG:Virginia Beach GOP Del. Bob McDonnell merits election as one in a tiny pantheon of legislators with the intellect and the energy to have advanced a broad range of substantive legislation. He worked tirelessly to implement welfare-to-work reform, a tough-love approach to juvenile justice, performance reviews for judges, and to close the cracks through which repeat DUI offenders were esacaping. His workhorse mind-set, coupled with an uncommon willingness to recognize the shortcomings of his limited government ideology, make him a cut above.
:: David M. Wagner 2:35 PM [+] ::
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:: Sunday, November 06, 2005 ::
"Power corrupts, and PowerPoint corrupts absolutely." And other great jokes about weapons of mass instruction.
:: David M. Wagner 6:09 PM [+] ::
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:: Friday, November 04, 2005 ::
Does Alito have dissentary? A former Alito clerk writes in to say:Okay, here's a small example of the silly ignorance suffused throughout critiques of Alito:
The NYT said in its editorial today [11/1]:"The concerns about this particular nominee go beyond his apparent hostility to abortion, which was most graphically demonstrated in 1992 when his court ruled on what became known in the Supreme Court as the Casey decision. Judge Alito was the sole judge on his court who took the extreme position that all of Pennsylvania's limitations on abortion were constitutional, including the outrageous requirement that a woman show that she had notified her spouse."
Note the use of the fact that he was "the sole judge on his court" that took a particular position. This point is ridiculous in the context of a three-judge appellate court panel. A dissent will, by definition, by "lone" in that context because otherwise the dissenter would have had a majority. (I.e., two out of the three judges on the panel.)
The only time a dissent on an appellate court can meaningfully be called "lone" is when it is a dissent from the majority view in an "en banc" decision -- meaning a decision in which all of the active (meaning non-"Senior") judges on a panel. Most typically (though not universally) an en banc hearing occurs after a three-judge panel of the Circuit has already issued a decision in a case but the rest of a Court grants a rehearing.
A minor mistake, perhaps, and certainly a technical one, but still ridiculous. And I believe it is a common tactic in the attempt to depict Alito (or any other conservative nominee) as being out of the mainstream.
:: David M. Wagner 12:44 PM [+] ::
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MSNCB: Cheney's new chief of staff controversial
Eeek, it's me!! No, no, wait -- the eyes are bit too small, the cheeks a bit too puffy, the glasses a bit too squared off, and the hair and beard, if I may say so, a bit too gray....
:: David M. Wagner 12:01 PM [+] ::
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:: Tuesday, November 01, 2005 ::
Democrats Signal Hesitance to Use Filibuster Against AlitoNov. 1 (Bloomberg) -- Moderate U.S. Senate Democrats said they want to know more about Supreme Court nominee Samuel Alito Jr.'s judicial philosophy and signaled reluctance to support a filibuster to block his confirmation.
"There is no question the judge is a conservative,'' said South Dakota Democrat Tim Johnson, who voted in September to confirm Chief Justice John G. Roberts Jr.
...and who last year watched his former senior colleague go down the drain over the judicial obstructionism issue...The issue is "whether his conservatism falls within the broad mainstream of contemporary jurisprudence and whether it is beyond the bounds,'' Johnson said after meeting with Alito in Washington.
:: David M. Wagner 7:03 PM [+] ::
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Credit where it's due: a good New York Times profile of Alito.
:: David M. Wagner 7:00 PM [+] ::
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Me in the Daily Standard: Alito and "Rational Basis"-- If the legislature is sane, the court should refrain!
:: David M. Wagner 10:06 AM [+] ::
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:: David M. Wagner 3:33 PM [+] ::
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I'd say Judge Alito is still sailing toward confirmation. That 1985 DOJ job app was good for a few fundraising letters and attack ads, but two facts continue to make this a world apart from the Bork process in '87: the GOP Senate majority, and the presence of pro-nominee forces on the political/media battlefield.
I remember the tone of the headlines, day after day throughout the summer of '87: "Bork opinions raise concerns," "Support for Bork seen slipping," "Moderates uneasy about Bork," etc. etc. What do we see today? Warnings about the "political dangers" of attacking Alito; Alito keeps favor of conservatives, moderates; and this Washington Post piece on how both categories of "vulnerable Senators" are being lobbied: Republicans in liberal states, like Chafee (RI), and Democrats in conservative states, like Ben Nelson (NE) and Conrad and Dorgan (ND).
Also, the activist groups are now recognized as such. In '87, People for the American Way could pass for, you know, just a bunch of people who are for the American way. In '05, an ace conservative strategist like Keith Appell can say: "If you are a Democratic senator from a state that the president won, the last thing you want to do is be aligned with [liberal advocate] Ralph Neas or groups like People for the American Way."
So much, for now, about incoming Justices. As for Our Hero, here's one: Al Franken Schooled by Antonin Scalia at New York Event.
:: David M. Wagner 3:01 PM [+] ::
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:: David M. Wagner 1:40 PM [+] ::
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:: David M. Wagner 12:03 PM [+] ::
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AG Race: McDonnell leads slightly over DeedsWell of course: in an off-year, with no other close statewide races around the country, every Democratic lawyer in the country could be heading to Virginia. I may even rent out my den, if I can do so at an unconscionable rate.
RICHMOND, Va. (AP) -- Republican Robert F. McDonnell held a narrow lead early Wednesday in the race for attorney general but stopped short of declaring victory over Democrat R. Creigh Deeds, who said he not concede and expects a lengthy recount.
...Deeds predicted Wednesday it would be weeks before the outcome of the race is known.
Seriously, though -- best to you, Bob, and recount their buns off!
:: David M. Wagner 11:23 AM [+] ::
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:: David M. Wagner 2:17 PM [+] ::
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You're in a "quagmiers" when you take your base for granted.
GOP nominee Jerry Kilgore may lose tomorrow's gubernatorial election here in Virginia. Power Line gives reasons for this. I'd like to give another: asked a straightforward hypothetical question as to whether, in a post-Roe world, he would sign a bill that bans abortion except in cases of rape, incest, or life of the mother, he has repeatedly refused to answer clearly.
Undoubtedly he didn't want to alarm the liberal folks up in Fairfax and Arlington counties (the places where Democratic AG nominee Creigh Deeds is running ads criticizing his opponent, frontrunner Bob McDonnell, for having attended this law school). But Mr. Kilgore may have forgotten that pro-life voters, too, have standards.
I say this because, during the course of the present day, I have randomly walked into three separate conversations in which people who would normally be considered part of the Republican "base" were expressing indecision about the Governor's race (not the AG's race -- we all admire Bob McDonnell!), and assigning as reason for their uncertainty Kilgore's perceived weakness on the pro-life issue.
Hardly a scientific sample -- but I wanted to put it on the record, because if Kilgore does in fact lose, the punditocracy will proclaim it was because he was too far to the "right" on "social issues." In fact, it may be because he was not far "right" enough.
N.B. (1) Conservative State Senator Ken Cuccinelli makes the conservative case for Kilgore here.
N.B. (2) Our local paper endorses Kaine for Governor -- and McDonnell for AG:
Virginia Beach GOP Del. Bob McDonnell merits election as one in a tiny pantheon of legislators with the intellect and the energy to have advanced a broad range of substantive legislation. He worked tirelessly to implement welfare-to-work reform, a tough-love approach to juvenile justice, performance reviews for judges, and to close the cracks through which repeat DUI offenders were esacaping. His workhorse mind-set, coupled with an uncommon willingness to recognize the shortcomings of his limited government ideology, make him a cut above.
:: David M. Wagner 2:35 PM [+] ::
...
:: David M. Wagner 6:09 PM [+] ::
...
Okay, here's a small example of the silly ignorance suffused throughout critiques of Alito:
The NYT said in its editorial today [11/1]:"The concerns about this particular nominee go beyond his apparent hostility to abortion, which was most graphically demonstrated in 1992 when his court ruled on what became known in the Supreme Court as the Casey decision. Judge Alito was the sole judge on his court who took the extreme position that all of Pennsylvania's limitations on abortion were constitutional, including the outrageous requirement that a woman show that she had notified her spouse."Note the use of the fact that he was "the sole judge on his court" that took a particular position. This point is ridiculous in the context of a three-judge appellate court panel. A dissent will, by definition, by "lone" in that context because otherwise the dissenter would have had a majority. (I.e., two out of the three judges on the panel.)
The only time a dissent on an appellate court can meaningfully be called "lone" is when it is a dissent from the majority view in an "en banc" decision -- meaning a decision in which all of the active (meaning non-"Senior") judges on a panel. Most typically (though not universally) an en banc hearing occurs after a three-judge panel of the Circuit has already issued a decision in a case but the rest of a Court grants a rehearing.
A minor mistake, perhaps, and certainly a technical one, but still ridiculous. And I believe it is a common tactic in the attempt to depict Alito (or any other conservative nominee) as being out of the mainstream.
:: David M. Wagner 12:44 PM [+] ::
...
Eeek, it's me!! No, no, wait -- the eyes are bit too small, the cheeks a bit too puffy, the glasses a bit too squared off, and the hair and beard, if I may say so, a bit too gray....
:: David M. Wagner 12:01 PM [+] ::
...
Nov. 1 (Bloomberg) -- Moderate U.S. Senate Democrats said they want to know more about Supreme Court nominee Samuel Alito Jr.'s judicial philosophy and signaled reluctance to support a filibuster to block his confirmation....and who last year watched his former senior colleague go down the drain over the judicial obstructionism issue...
"There is no question the judge is a conservative,'' said South Dakota Democrat Tim Johnson, who voted in September to confirm Chief Justice John G. Roberts Jr.
The issue is "whether his conservatism falls within the broad mainstream of contemporary jurisprudence and whether it is beyond the bounds,'' Johnson said after meeting with Alito in Washington.
:: David M. Wagner 7:03 PM [+] ::
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:: David M. Wagner 7:00 PM [+] ::
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:: David M. Wagner 10:06 AM [+] ::
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