:: welcome to


:: 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 ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

 Subscribe in a reader

Site Feed

Also please visit my opera blog, Box Five!

    follow me on Twitter


    Above the Law, by David Lat



    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris


    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog

    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence


    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard

    Something I wrote about marriage

    lawyer blogs


    :: Tuesday, January 31, 2006 ::
    Justice Alito. Deal with it.

    :: David M. Wagner 2:37 PM [+] ::
    :: Monday, January 23, 2006 ::

    :: David M. Wagner 5:43 PM [+] ::
    :: Thursday, January 19, 2006 ::
    Ed Whelan corrects media misstatements of Ayotte's holding, here and here, proving again that illawterate journalists are a menace to society.

    :: David M. Wagner 12:43 PM [+] ::
    :: Wednesday, January 18, 2006 ::
    A liberal blogger reports on a conversation with Senate Minority Leader Reid:
    I complimented Senator Reid for invoking Rule 21 and shutting down the Senate to compel Senator Pat Roberts and the Republican Senate establishment to stop dragging its feet on its investigation into the administration's use and potential abuse of WMD intelligence. Reid relished telling the tale of how it all unfolded.

    I told him that such demonstrations of backbone needed to be less rare -- and that the absence of such resolve in the Alito confirmation process was disheartening. He said that he was meeting today with the Democratic caucus to see if there are 41 Senators willing to say no to Alito -- and really say no (meaning a filibuster). He indicated that there was only a 50/50 chance that there were 41 Senators and sounded doubtful.

    :: David M. Wagner 6:49 PM [+] ::
    Ayotte, 9-0, O'Connor writing:
    We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.
    And that's about it. Sounds like a victory for the Salerno facial/as applied distinction, but I'm not sure. Also sounds like this one will be back. Nothing else could have prevented separate concurrences, unless the new Chief wields a much sharper whip than his prededessor, on colleagues much older than himself.

    :: David M. Wagner 12:35 PM [+] ::
    :: Tuesday, January 17, 2006 ::
    Gonzalez v. Oregon: So -- we interpret the Commerce Clause and executive interpretive power narrowly when they are deployed against the culture of death, but broadly at most other times. Am I getting with the program?

    As Justice Thomas notes in his separate dissent, the outcome here may be right if the outcome and reasoning in Raich are wrong, but not if Raich is right.

    :: David M. Wagner 4:25 PM [+] ::
    :: Friday, January 13, 2006 ::
    Do people like this congressperson from Florida really think they're contributing anything to the debate? She's not only talking shrill ideology (notice that "privacy" and "equality" can't stop with killing babies, it's also "unthinkable" that Terri Schiavo's "family" can't bump her off); she's talking shrill ideology that's already been talked all week by most of the Democrat side of the table.

    Does she think she's advancing the debate, or is this just political positioning, impressing the folks in Miami, staking a claim to be the next Bella Abzug, whatever?

    :: David M. Wagner 12:21 PM [+] ::
    :: Thursday, January 12, 2006 ::
    Washington Post: Alito Likely to Become a Justice

    :: David M. Wagner 11:08 PM [+] ::
    The glow-in-dark praises Judge Alito has received from an ideologically diverse panel of 3rd Circuit colleagues create a problem for the Democrats. Their strategy in response has now been revealed by Sen. Leahy: claim that because these judges' opinions might be reviewed by Alito if he is confirmed, they can't be expected to speak freely. Yup, they came all the way to Washington (from the west coast, in the case of Judge Alito's former boss, Judge Garth) just to brownnose.

    It took less than a minute to say, but Leahy managed to claim that these six present and former federal judges are cowards and aggressive sycophants, and that Alito is the kind of guy who would use Supreme Court opinions to get even with former colleagues for criticizing him. It's so sleazy, I'm tempted to accuse Leahy of exploiting a stereotype about Italian-Americans.

    Sens. Sessions and Cornyn have called Leahy on this. Meanwhile, Sen. Durbin explicitly "associated" himself with Leahy's comments.

    EDITED TO ADD: Apparently Feingold was the first to float this puppy.

    :: David M. Wagner 4:55 PM [+] ::
    :: Wednesday, January 11, 2006 ::
    The story about Mrs. Alito's tearful reaction to the attacks on her husband appears to have traction. Daily Kos is in panic mode over it, talking about "crocodile tears." Way to win the hearts of Americans, Kos!

    :: David M. Wagner 11:25 PM [+] ::
    Schumer wants to know: "what was your state of mind" when you included Concerned Alumni of Princeton among the groups you listed on your 1985 application for a political position in the Reagan Administration?

    Duh, duh, and double duh.

    Alito got the answer right, but perhaps not the framework. He mentioned that he had listed his political donations but not his charitable donations, and trusted observers to understand the analogy. He is too confident in the intellectual honesty of his opponents.

    I suggest he put it this way: Senator, at the time I applied for that job, my resume was strong on the technical-legal side, but weak on the political side. As the job was a political one, this was a problem. Those looking at my record could see Princeton yadda yadda yadda, Yale Law yadda yadda yadda, law review yadda yadda yadda, clerkship yadda yadda yadda, but they wouldn't have any reason to think I supported the political platform of their Administration unless I gave them some reason to think so. That was why I listed every conservative association I could plausibly claim, rather than listing every organization I am or ever have been a member of.

    Do you see now, Senator? That application wasn't a xanga where the idea is to express everything most important to you. It was an occasion to compensate for a relative weakness in my resume, in pursuit of a job where that weakness was a potential problem.

    :: David M. Wagner 5:24 PM [+] ::
    Specter smacks down Kennedy: Now that's the Specter I remember from '91...! More here.

    With a "growing sense of inevitability" about Alito's confirmation (though, indeed, let's not get complacent), the Senators of the Left are probably just doing their command performances for their activist groups. Most of them need to keep those people happy for reelection, just as the Senators of the Right have to do for their groups. Reelection is never a serious concern for Kennedy (though Mitt Romney gave him a run for the money); in his case, it's probably true ideological fervor.

    Say, did you see where Kennedy is going to "write" a children's book about his imaginary pet Portuguese water-dog, named "Splash"? I. Am. Not. Making. This. Up.

    :: David M. Wagner 1:07 PM [+] ::
    :: Monday, January 09, 2006 ::
    Yes, you're right: the velocity of posting has picked up here at Ninomania now that the Alito hearings are underway (and exam grading is done). However, on Tuesday the 10th I have some family business to attend to that may keep me away from the Web. Stay tuned, as always, to Confirm Them and Bench Memos.

    :: David M. Wagner 10:31 PM [+] ::
    So Dick Durbin thinks Sam Alito caused the death of the West Virginia coal miners. The Dems are certainly pulling out all the demagogic stops.

    :: David M. Wagner 2:54 PM [+] ::
    Blanton at Confirm Them writes:
    The Democrats will light a fire under the great American racial divide and send Alito into the flames and, with him, kick off the 2006 Democratic campaign to recapture Congress from white sheeted Republicans....

    According to my loose tongued Democrat friends, the Democrats are going after Alito on voting rights and civil liberties and, in the process, intend to take down a few Republicans....

    By the time Democrats are through with Alito, they hope to have made the case that Alito will be a pawn of Bush in Bush’s war against the American people. From eavesdropping to voting, Alito will be painted as a foe of civil liberties. The loss of liberty will be their theme and Alito will be their victim in the process. The drunk staffers assured each other that it polled well.
    Democrat Senators are certainly picking up these themes. Quin adds:
    So far, the answers to the one-man, one vote issue have been highly academic, but far, far from being effective sound bites. WE MUST HAVE AN effective sound-bite. So far we don’t. The fact is that Alito’s views on the reapportionment cases are thoroughly respectable. But if we can’t explain in a sound bite why they are respectable, then we open the door to letting the Dems start ot add on their other “equality” issues to pound home the message Blanton warns about.

    :: David M. Wagner 1:22 PM [+] ::
    Senator Kennedy: "Judge Alioto." Sheesh.

    :: David M. Wagner 12:45 PM [+] ::
    Specter and Leahy have made their opening speeches, and they clearly share a theme: Alito's job is to be just like O'Connor, and these hearings are his chance to convince them that that's what he'll do. Specter added a meditation about many "surprises" the abortion issue brings, with special attention to how Souter changed.

    Both are leaning even more on the NSA issue than the "choice" issue. Clearly the "save Roe" issue is not going to carry it for the Democrats; it's doubtful that the safe-communications-for-terrorists issue will either.

    Specter seems to want it both ways: he wants an "independent" Court, yet he blasts the Court for criticizing Congress's reasoning in U.S. v. Morrison (Violence Against Women Act). Utterly independent of the President, utterly dependent on Congress -- that seems to be the kind of Justice a President should look for, according to Specter and Leahy. Leahy would add that the nominee should also be black, hispanic, or female, though he exonerated Alito of personal responsibility for not being any of these.

    :: David M. Wagner 12:25 PM [+] ::
    Alito resources, courtesy of the Committee for Justice

    :: David M. Wagner 12:24 PM [+] ::
    :: Thursday, January 05, 2006 ::
    A very interesting blog to which my attention has just been called: Judging Crimes, by Joel Jacobson.

    :: David M. Wagner 11:17 AM [+] ::
    :: Monday, January 02, 2006 ::
    What image will Alito project at the hearings? One moot-committee participant leaked this:
    "I am not sure his glasses fit his facial features. He might not wear the right color tie. He won't be tanned. He will look like he is from New Jersey, because he is."

    :: David M. Wagner 5:16 PM [+] ::
    So, Guy Walks Up to the Bar, and Scalia Says... On Court jesters, of whom Our Hero is the leader, though Roberts and Breyer may also be a rising stars. From the article:
    Consider, for instance, the golden opportunity on Halloween this year when a light bulb in the courtroom's ceiling exploded during an argument.

    It takes two justices, it turns out, to screw up a light bulb joke.

    "It's a trick they play on new chief justices all the time," Chief Justice John G. Roberts Jr., who joined the court that month, said of the explosion.


    "Happy Halloween," Justice Scalia retorted.


    And then, the kicker. "We're even more in the dark now than before," Chief Justice Roberts said.


    :: David M. Wagner 12:27 PM [+] ::

    Site Meter
    This page is powered by Blogger. Isn't yours?