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:: 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 ::

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    :: Saturday, November 29, 2008 ::
    Catholic News Agency: Why Kmiec will not become the new Vatican Ambassador. I mean,when a high Vatican official says in effect, even without attribution, "You do and we'll toss him in the Tiber and see that he lands on something sharp," that's not exactly encouraging, is it?

    :: David M. Wagner 7:13 PM [+] ::
    :: Saturday, November 22, 2008 ::
    NYC Churches Ordered Not To Shelter Homeless NEW YORK (CBS) ― City officials have ordered 22 New York churches to stop providing beds to homeless people.

    With temperatures well below freezing early Saturday, the churches must obey a city rule requiring faith-based shelters to be open at least five days a week -- or not at all.....

    "We really don't want people sleeping on the streets, on grates, on church steps. We want people sleeping in beds," said Homeless Commissioner Robert Hess.
    If the ordinance really does say in effect "faith-based shelters (but not other shelters) are subject to such-and-such restrictions," then it's obviously not neutral or generally applicable, and would therefore be subject to strict scrutiny in a Free Exercise challenge.

    I suppose the City's compelling interest would be the civic-order value of not having "people sleeping on the streets, on grates, on church steps," etc. -- you know, "broken windows" and all that. I myself might estimate that interest somewhat highly (whether "compelling" or not, I don't know), but several courts have held that, not only is there no c.s.i. in preventing homeless people from sleeping outdoors -- homeless people actually have a constitutional right to do so!

    Any Free Exercise litigators in the greater New York area? This one should be low-hanging fruit.

    :: David M. Wagner 10:54 PM [+] ::
    :: Friday, November 21, 2008 ::
    AG Mukasey is OK, and the Federalist Society has sent around this message from him:
    Well, as I was saying...

    Let me please begin by underscoring what an honor it was to speak to you last night. I am, as you might imagine, quite embarrassed to have collapsed last night. I hope that embarrassment is not the product of undue human pride, or at least not principally so. I am embarrassed in part because I fear I ruined your evening and caused you concern - for that I am truly sorry. Equally important, I hope the shortened conclusion of the speech did not detract from the message I hoped to convey: Specifically that the issues of law and policy relating to our continuing national security are real, and are worthy of the most careful thought and deliberation so as to keep the American people safe.

    The Federalist Society has spent the last 25-plus years promoting thoughtful and fair debate concerning the critical legal and public policy issues facing our nation. It was an honor to address you last night, and I urge you to continue the fine efforts of the Federalist Society in the future.

    Finally, I was truly humbled to hear all of the prayers and well wishes sent on my behalf from attendees at the dinner. Thank you all. I am, fortunately, well, and I too pray for all of our good health and for the future of the Nation we all love.

    Very Truly Yours,
    Michael Mukasey

    :: David M. Wagner 4:37 PM [+] ::
    :: Thursday, November 20, 2008 ::
    Praying for AG Mukasey....

    :: David M. Wagner 11:30 PM [+] ::
    It appears that AZ Gov. Janet Napolitano, attorney to Anita Hill during the Thomas confirmation outrage, is going to be the one watching our movements as Security as Homeland Security. Any statements of concern, anyone? Sen. Hatch? Sen. Specter? Former Sen. Danforth? Anybody home?

    MORE INFO: Newsmax reports:
    Napolitano's representation of Hill became an issue in 1993 when the Senate considered Clinton's nomination of Napolitano for the U.S. attorney's job. Napolitano refused to answer questions about a private conversation with one of Hill's witnesses, Susan Hoerchner. At issue was whether Napolitano persuaded Hoerchner, Hill's corroborating witness, to change her testimony.

    Hoerchner initially told the Senate Judiciary Committee during its Thomas hearings that Hill had told her in the early 1980s that she had been sexually harassed by Thomas. After Napolitano requested and had a private conversation with her, Hoerchner told the committee she wasn't certain of the date Hill told her about the alleged harassment. Napolitano said she couldn't answer questions about the talk because Hoerchner wouldn't waive her right to confidentiality.

    Some Republicans accused Napolitano of stonewalling the committee and contended it could cause a dangerous precedent if the panel confirmed a nominee without having all the information it needed. Democrats defended her, saying Napolitano wanted to be forthcoming but couldn't due to attorney-client privilege.

    Some senators said at the time that Hoerchner had admitted before talking with Napolitano that she was just guessing about the date Hill first said she'd been harassed by Thomas. A book published after the Thomas hearings said the date Hoerchner guessed, September 1981, was before Hill went to work for Thomas
    Well, in all fairness to Napolitano: (1) she's on solid ground re attorney-client privilege, and (2) it seems her intervention, in this instance, was to cause Ms. Hoerchner to give a non-perjurious answer (or a less perjurious one?).

    The larger point -- and it has considerable ramifications for the direction of "this our tottering state" -- is whether conservatives have memories as long as those of liberals. There are solid conservative lawyers lying around unconfirmed today to the judgeships to which they were appointed, because of associations far less rebarbative than Anita Hill.

    If, for conservatives, the Thomas-Hill hearings are water under the bridge, then anything can be. For liberals, nothing ever is.

    :: David M. Wagner 12:54 PM [+] ::
    Boumedienne, along with four others, is now loose. OK. Gulp, and hope for the best.

    :: David M. Wagner 12:50 PM [+] ::
    :: Tuesday, November 18, 2008 ::
    How long will the "pro-choice" movement continue to use that name, when its latest initiative is to deny to objecting doctors, pharmacists, etc., any choice as to whether to take part in abortions or not? The latest administrative battle over this issue is reported, with biases all in place, here.

    "Choice" was never more than a political cover. Only one "choice" is to be protected, and it's certainly not the choice of conscientiously objecting medical professionals who cannot be complicit in abortion. Where they are concerned, the overriding value turns out to be not "choice," but "access."

    :: David M. Wagner 8:35 PM [+] ::
    :: Thursday, November 13, 2008 ::
    David Lat nails it: "New Haven and judicial fiat. Some things just belong together."

    :: David M. Wagner 12:23 PM [+] ::
    :: Wednesday, November 05, 2008 ::
    The headline news not in the headlines:California voters approve Proposition 8, overturning state Supreme Court decision that created same-sex marriage.

    :: David M. Wagner 11:42 AM [+] ::
    :: Sunday, November 02, 2008 ::
    A Facebook group for us conservative Yalies: Coastal Elites for Sarah Palin!

    :: David M. Wagner 5:46 PM [+] ::
    :: Saturday, November 01, 2008 ::
    Let me see if I can figure out this Liddy Dole "Godless" ad thing. It says here:
    Dole's 30-second advertisement shows clips of some members of an atheist advocacy group -- the Godless Americans Political Action Committee -- talking about some of their goals, such as taking "under God" out of the Pledge of Allegiance and removing "In God We Trust" from U.S. currency. It goes on to question why Hagan went to a fundraiser at the home of a man who serves as an adviser to the group.

    "Godless Americans and Kay Hagan. She hid from cameras. Took Godless money. What did Hagan promise in return?" the narrator says.

    The ad ends with a picture of Hagan, as another woman declares in the background, "There is no God!"

    On Wednesday, her attorneys demanded the ad come down within 24 hours. On Thursday, Hagan's attorneys filed a lawsuit in Wake County Superior Court accusing Dole of defamation and libel.

    Well that's interesting, because in yesterday's mail I got this big card for which the Democratic Party of Virginia claimed credit, if that's the word, that showed an affecting young actress in the role of a woman who, the card claimed, had been raped and was now pregnant, and that went on to claim that Thelma Drake (that's my local Congressman) wants to put this young woman in jail for having an abortion.

    Now, there is of course no way Thelma Drake wants to put women such as this in jail, or "women and doctors" (as the card says, emphasis added) in jail for abortion in case of rape. (I'm not conceding the "rape exception," I'm just stating the reality of the worthy Mrs. Drake's agenda.)

    So, should Mrs. Drake sue? Will she guarantee her own reelection by running hard-hitting counter-ads? What advice you do you have for her, Kay Hagan?

    Tags: Candidates use over-the-top advertising: media (sometimes) shocked

    :: David M. Wagner 2:18 PM [+] ::
    Electoral College: I just want to put this on the record before the election. It's just possible that, as in 2000, the popular vote and the electoral vote will reach opposite results. This could benefit either candidate.

    Under our Constitution, we choose our Presidents by electoral vote. The merits of this system have been and will be debated (though I'm half-hoping the EC system twigs it in favor of the Democrat this time, so we stanch the flow of anti-EC articles into the law reviews for a while), but there's not the slightest doubt that for now, this is the rule laid down.

    I don't suppose Obama voters come here very often for advice, but let me say this to McCain voters: if we win the popular vote but lose the electoral vote, Obama is elected President, and no whining about the Electoral College!!

    :: David M. Wagner 1:43 PM [+] ::

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