Recently in Law & Justice Category

I think everyone (except a current nominee) agrees that the American people deserve to know the inclinations of a person nominated to the Supreme Court. Unfortunately, as Elena Kagan's hearings demonstrate, no Senator who shares a party with the President is willing to vote down a nominee for being evasive. This abdication of Constitutional responsibility is especially bad when the Senate majority is held by the party of the President, whether Republican or Democrat. It's especially ironic that the present nominee herself described this Constitutional failure by the modern Senate eloquently in 1995:

Early in the day, Kagan disavowed her article on the vacuous confirmation process. "I did have the balance a little bit off," she said. "I skewed it too much toward saying that answering is appropriate."

Kohl wasn't buying that. "Back in that 1995 article, you wrote that one of the most important inquiries for any nominee . . . is to, quote, 'inquire as to the direction in which he or she would move the institution.' In what direction would you move the court?"

"All I can say," Kagan replied, "is that I will try to decide each case that comes before me as fairly and objectively as I can."

"But you, in 1995, 'It is a fair question to ask a nominee in what direction' -- this is your quote -- 'would you move the court?' " "Well, it might be a fair question," Kagan pointed out.

"All right, let's move on," the defeated interrogator said. "Can you tell us the names of a few current justices . . . with whom you most identify?"

"I think it would be just a bad idea for me to talk about current justices," she answered.

"My oh my oh my," Kohl marveled.

Democrats were amused by her newfound reticence; Republicans seethed. ...

Graham, who teased from Kagan the all-important Chinese-restaurant-on-Christmas answer, asked her to "go back in time" to the days when she criticized the confirmation process. Asked Graham: "Are we improving or going backward?"

"You've been exercising your constitutional responsibilities extremely well," she replied.

"So it's all those other guys that suck, not us," Graham said.

The solution is simple given Senators' expertise at protecting their hallowed conventions, like faux filibusters and "secret holds": how about a convention to vote down evasive nominees even if they're nominated by your own party?

I won't hold my breath.

This hardly seems like news, but I'll bite. Mean insurance company bills family for damage caused to car by loose dog.

A car insurer has asked a Canadian family to pay for repairing a broken bumper after their dog was struck by the vehicle and died, local media said Thursday.

The traffic accident occurred in March while Jake, a 12-year-old yellow Labrador, was out for his daily stroll around a quiet neighborhood in Aurora, Ontario, north of Toronto.

Kim Flemming had let the dog out when she arrived home from work. Moments later, a man knocked on the door to say a car had run over Jake.

"I got to the road and he was dying," Flemming told the Toronto Star. "He died in my arms."

Two months later, the family received a bill in the mail for 1,732.80 Canadian dollars (1,648.95 US) from State Farm Insurance. ...

"We've lost a member of our family but we're supposed to pay for the damage to her bumper? That's just wrong," daughter Katherine Flemming said.

The Flemmings lost "a member of [their] family" due to their own negligence. In the process, they damaged the vehicle of an innocent passerby. Their grief over their loss does not negate their responsibility towards the victim of their negligence.

Nicholas Quinn Rosenkranz argues that judicial review should always begin with the question "Who has violated the Constitution?".

Abstract: Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects.

This is a brilliant new approach to judicial review. The point is that if a statute is unconstitutional, then Congress violated the Constitution by enacting the statute. You shouldn't have to wait for the statute to be enforced or applied to you in order to challenge it, because an unconstitutional statute is unconstitutional immediately.

(HT: Randy Barnett, Instapundit.)

I love the reaction from this terrorist lawyer to the court ruling that prisoners captured and held on foreign soil do not have a right to a hearing before an American judge.

A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight. ...

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Right, I mean, obviously it's fine if Obama imprisons these terrorists, because he is wise and just... but remember folks, an evil Republican might one day win the presidency!

Obviously the Obama Administration is on the side of rationality in this case.

The Environmental Protection Agency channels "1984" while announcing its new "Rulemaking Matters!" video contest.

Almost every aspect of our lives is touched by federal regulations... Even before you leave the house in the morning, government regulations help set the price of the coffee you drink, the voltage of electricity in your alarm clock, and the types of programming allowed on the morning news.

Uh... that's a good thing? It's scary that some government bureaucrats are actually proud of their meddling.

(HT: Flex Your Rights.)

California is in the process of being reconquered by Mexico.

On any other day at Live Oak High School in Morgan Hill, Daniel Galli and his four friends would not even be noticed for wearing T-shirts with the American flag. But Cinco de Mayo is not any typical day especially on a campus with a large Mexican American student population.

Galli says he and his friends were sitting at a table during brunch break when the vice principal asked two of the boys to remove American flag bandannas that they wearing on their heads and for the others to turn their American flag T-shirts inside out. When they refused, the boys were ordered to go to the principal's office.

"They said we could wear it on any other day," Daniel Galli said, "but today is sensitive to Mexican-Americans because it's supposed to be their holiday so we were not allowed to wear it today."

The boys said the administrators called their T-shirts "incendiary" that would lead to fights on campus.

The proper solution to this dilemma is to control the potentially violent students and then prosecute them if they break the law. Unfortunately it's often easier to limit free speech (even patriotic speech) than to keep thugs in check... so the thugs win.

I'll jump on Michael McMahon's bandwagon: No more Ivy League Supreme Court Justices! Apparently the Supreme Court shortlist is made up of nothing but. Instapundit readers comment:

UPDATE: Reader John Steakley emails with a question for enterprising reporters: “Mr. President, do you believe that ANY of America’s public university law schools are competent to educate the next Supreme Court Justice? And if so, please name them.”

ANOTHER UPDATE: Reader Michael McMahon writes: “No more Ivy League Justices! Watch for this theme to develop. Stevens was a Northwestern Law grad.”

I'm ideologically aligned with many of these Ivy Leaguers, but still....

This sounds like a fun job: aircraft repo-man.

“What year did we snatch the president of the Congo’s airplane?” Nick Popovich asks. Outside, chilly rain soaks the pastures of his rolling Indiana country estate. From a pond with a gushing fountain, waterfowl honk faintly.

An assistant rifles through records as Popovich assures me cheerfully, “We're not going back to central Africa soon. There’s still a death warrant out for me.”

Probably less James-Bondy than it sounds though.

President Obama has taken the War on Terror to a whole new level by ordering a review of our "detection methods" in the wake of the thwarted Christmas bombing.

President Barack Obama has ordered the government to review detection methods to determine how a suspected terrorist ignited an explosive aboard a Northwest Airlines plane en route to Detroit on Christmas Day.

“We are investigating, as always, going backwards to see what happened, and when, who knew what and when,” Homeland Security Secretary Janet Napolitano said today on ABC’s “This Week.” “There was simply throughout the law enforcement community never information that would put this individual on a ‘no-fly’ list,” she said.

Then again, does our bureaucracy really require a Presidential order to perform such a review?

Furthermore, I'd prefer if the Obama Administration referred to this as an attack that was thwarted rather than "botched".

"President Barack Obama's Christmas Day began with a briefing about a botched attack on an airliner in Detroit," began an Associated Press account published Christmas evening. "Obama's military aide told the president about an incident aboard a plane as it was landing in Detroit just after 9 a.m. here [in Hawaii]. The president phoned his homeland security adviser and the chief of staff to the National Security Council for a briefing…'We believe this was an attempted act of terrorism,' one White House official said on the condition of anonymity to discuss the sensitive situation."

All the details haven't been released yet, but from what I've read it seems to me that the bombing failed due to the heroic actions of the other passengers and was not merely "botched". Is it hard for the government to admit that the billions of dollars spend on the Transportation Safety Administration have been largely wasted on security theater and that we citizens are still and always will be our own best defenders?

Since Obama made the promise I've asserted that there was no chance of him actually closing the Guantanamo Bay terrorist detention facility in January, 2010... and I was right! (Along with many other people.)

President Obama directly acknowledged for the first time Wednesday that the prison facility at Guantanamo Bay will not close by the January deadline he set, but he said he hoped to still achieve that goal sometime next year.

Obama refused, however, to set a new deadline. ...

Despite the slow trickle of prisoners out of the facility, Obama insisted in the interview that the facility will be shuttered eventually.

"We are on a path and a process where I would anticipate that Guantanamo will be closed next year," he said. "I'm not going to set an exact date because a lot of this is also going to depend on cooperation from Congress."

Unless I'm mistaken, Obama can move those prisoners to domestic federal prisons without permission from Congress. Is there some legal obstacle I'm not aware of?

I think the fact of the matter is that Obama is now beginning to realize that the promises he made during his candidacy were naive. I suppose I could be more cynical and say that he never intended to keep any of these promises at all, but even giving him the benefit of the doubt reveals that he was not even vaguely ready to be President.

The Obama administration is apparently negotiating a secret copyright treaty whose absurd contents have been leaked.

The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama's administration refused to disclose due to "national security" concerns, has leaked. It's bad. It says:

* * That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.

That's just the start of the badness. The whole thing is completely impossible to enforce, so I'm not particularly worried about it. intellectual property is dead and a piece of paper won't bring it back to life.

(HT: RD.)

Earlier this week the coroner decided that Michael Jackson was the victim of a homicide. Here's what that means:

It's important to note that homicide indicates that Jackson was killed; it does not, necessarily, mean he was murdered (homicide with intent to kill); many previous medical homicide cases have involved euthanasia. The Los Angeles County DA has not yet announced murder or manslaughter charges against Jackson's physician,Conrad Murray, who admits to giving Jackson the drugs. ...

NEWSWEEK's Sarah Kliff spoke with Dr. Vincent DiMaio, editor of the American Journal of Forensic Medicine and Pathology and former chief medical examiner in Baxter County, Texas about what constitutes medical homicide, what doesn’t and why it’s actually not too difficult to tell the difference. Excerpts:

By classifying this death as a homicide, what is the Los Angeles County Coroner’s Office saying about the actions of Jackson’s doctor?

What they’re alleging is that [Michael Jackson’s doctor] gave [Jackson] a medication for a non-medical reason and that caused the death…The reason they can classify this as a homicide is that there is simply no medical reason for this drug to have been administered. Suppose he was in surgery, and the doctor had given him too much medication. That’s a different situation which would probably be signed off on as an accident. But in this situation, it’s clearly a homicide.

In general, how do you define a medical homicide? What makes it different from medical malpractice?

There are five ways that forensic pathologists categorize deaths: natural, accidental, homicide, suicide or undetermined. Essentially, homicide means that somebody has caused the death of another person…In terms of medical homicide specifically, I think the simplest way to say it is that it’s a medical decision that’s outrageous, that you could not justify your actions medically. Or you just go to extremes, like deciding to do an operative procedure for which you don’t have the support, doing an operation on your kitchen table. That’s essentially the way to say it: if you have a medical situation, where you’re using things inappropriately and have no medical justification, that’s homicide.

It seems then that a medical homicide will likely be manslaughter or murder.

Scientists in Israel have demonstrated that DNA evidence can be fabricated relatively easily.

The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.”

I'm actually happy that DNA evidence is getting more scrutiny. I've long been uneasy with the growing dependency on DNA evidence for criminal convictions... maybe a decline in DNA credibility will lead to a resurgence of a broader range of investigatory techniques.

The monkeys are at it again, this time burglarizing a local plant nursery.

"Definitely never been robbed by a monkey before," says store co-owner Jerry Duncan.

Yes, a primate is the prime suspect in the latest break-in at this Richardson, Texas nursery.

"I said no way until I look at it and said this is crazy," said store co-owner Shelley Rosenfeld.

The owners of "Plants and Planters" are convinced that's a monkey in the bottom left hand corner of the security camera tape.

"You can see the back legs the front arms and the white head," observes Duncan.

They must be stopped.

An immigration raid of a pork processing plant in North Carolina created job openings for 1,000 citizens and led to the unionization of the plant.

The sequence of events includes:

* The Smithfield Plant, represented by the United Food and Commercial Workers Union (UFCW), failed to unionize in both 1994 and 1997. An administrative law judge found that the company committed “egregious and pervasive violations of labor law” during the 1997 effort when it used the employees’ illegal status to threaten them.

* After the initial attempts at unionizing, Smithfield and the UFCW engaged in a bitter dispute. The union launched a public relations campaign and picketed Smithfield customers. Smithfield, in return, filed a federal racketeering lawsuit against the union.

* The ICE raid, which took place in January 2007, both purged the plant of illegal workers and forced the management to set procedures to check immigration status of future hires.

* The raid opened the door for an American and legal immigrant workforce. After the raid, the Hispanic workforce dropped by approximately 1,000 workers and was replaced by mostly African American workers. Less than two years later, in December 2008, the new workforce voted for unionization.

This example shows why illegal immigration is so toxic for the Democrats: it's the perfect wedge issue that splits three of their largest constituencies: Hispanics vs. blacks and unions.

(Can we use two colons in one sentence? Yes we can!)

This is a few days old but it's still worth noting: House Majority Leader Steny Hoyer (Democrat) admits that no one would vote for ObamaCare if they had to read the bill first.

House Majority Leader Steny Hoyer (D-Md.) said Tuesday that the health-care reform bill now pending in Congress would garner very few votes if lawmakers actually had to read the entire bill before voting on it.

“If every member pledged to not vote for it if they hadn’t read it in its entirety, I think we would have very few votes,” Hoyer told CNSNews.com at his regular weekly news conference.

Hoyer was responding to a question from CNSNews.com on whether he supported a pledge that asks members of the Congress to read the entire bill before voting on it and also make the full text of the bill available to the public for 72 hours before a vote.

In fact, Hoyer found the idea of the pledge humorous, laughing as he responded to the question. “I’m laughing because a) I don’t know how long this bill is going to be, but it’s going to be a very long bill,” he said.

If a bill is too long and complex for our elected representatives to read and understand it, that's a good indication that the bill should not become a law. If the people creating the laws can't be bothered to read and comprehend them, how can the rest of us? It's their full-time job to do this Congress thing.

(HT: Hot Air.)

Larry Kudlow asks where's Madoff's money?

Yet while everyone can now cheer that the greatest crook in financial history will die in jail, Madoff also may die keeping his secrets with him. So far, prosecutors have come up with very little about this case. And under the tutelage of the clever lawyer Ike Sorkin, Madoff has given almost nothing up. No singing in jail. (Maybe he should have been waterboarded.) We don’t know if his wife or two sons were part of the scam. Nor do we know where most of the money -- estimated up to $65 billion -- has gone. There’s a number being used that bankruptcy trustee Irving Picard has recovered $1.2 billion of the $13.2 billion in estimated net losses. But the strength of those numbers is somewhat in doubt.

Where’s the money? Who are the accomplices? And what about some of these big-time fat cats who invested with Madoff, people we thought were victims but may turn out to be the real winners in the story?

There are several reports about Jeffry Picower and Stanley Chais, two rich businessmen who may have taken $6.1 billion in returns from the Madoff fraudulent funds -- more than they put in. There’s also businessman Carl Shapiro, a close Madoff pal. And while there is yet no number as to what he took out of the funds, years ago the guy sold his garment business for $20 million and grew that sum to nearly $1 billion -- most of it from investing with Madoff.

Madoff is obviously keeping quiet because his former partners-in-crime have threatened to kill him and his family if he talks.

Lots of outrage over a firefighter who killed his two dogs to save on boarding costs:

A Columbus firefighter admits that he took his two dogs to the basement, tied them up and blasted them with a rifle so he and a girlfriend could vacation without paying to board the animals. ...

He was convicted of "needlessly killing ... a companion animal" on Dec. 3, according to the charges filed 10 minutes before the hearing in Municipal Court. One dog was shot six times in the head.

Santuomo, who did not give a statement in court, will spend 90 days in jail, pay $4,500 to cover the cost of his investigation and serve five years' probation, Judge Harland H. Hale ruled.

"This is a travesty and abhorrent behavior to those in this community who work to save the lives of animals," said Jodi Buckman, executive director of the Capital Area Humane Society.

And yet killing unborn babies for the sake of convenience is a "right". The people who evince the most outrage over animal abuse tend to be the most vociferous supporters of abortion.

I mocked President Obama's "clarification" of Sotomayor's racist comments a few days ago, but unsurprisingly Thomas Sowell skewers the judge even more effectively.

In Washington, the clearer a statement, the more certain it is to be followed by a "clarification" when people realize what was said.

The clearly racist comments by Judge Sonia Sotomayor at the University of California at Berkeley in 2001 have forced the spinmasters to resort to their last-ditch excuse, that it was "taken out of context."

If that line is used during Judge Sotomayor's Senate confirmation hearings, someone should ask her to explain just what those words mean when taken in context.

Exactly. In what context is it ok to say:"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."? The only context I can think of is when you're surrounded by a bunch of fellow racists.

Sowell goes on to demolish "empathy" as a basis for judging:

It is dangerous because citizens are supposed to obey the law, which means they must know what the law is in advance - and nobody can know in advance what the "life experiences" of whatever judge hears a case will happen to be.

If judges are to be making law rather than interpreting it, then anyone who appears in their courtroom should be protected from their rulings by the ex post facto clause(s) of our Constitution.