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:: welcome to 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 ::
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 [+] :: ... :: 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 [+] :: ... I finally finished them today -- just in time to take off for the AALS conference in San Francisco. :: David M. Wagner 6:35 PM [+] :: ... |
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