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A Blog for and by ACS members nationwide. Links
Archives The ACS Weblog is maintained by ACS members and is not otherwise affiliated with or sponsored by the ACS National Office.
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Thursday, July 31, 2003
The National Office has informed me that there will be a forum on Friday, August 1 at 8:30 pm in the Presidential Ballroom of the Capital Hilton titled "ACS Members Forum: Where Does ACS Go From Here?" Opening remarks by: The Honorable Robert W. Pratt ACS Member Judge, U.S. District Court, Southern District of Iowa Forum organized and facilitated by: Chris Sprigman ACS Member & Founding Member, DC Lawyer Chapter Partner, King & Spalding LLP sprigman1@yahoo.com Juliet Choi ACS Member & Founding Member/Past-President, University of Maryland Law School Chapter juliet.choi@verizon.net Rhett Millsaps ACS Member & Former Associate Director, ACS Judicial Grassroots Coordinator, Earthjustice rhettmillsaps@hotmail.com See you there! Wednesday, July 30, 2003
How is the President going to explain this one to the federalists? Or rather, how are the federalists going to spin it? I find no mention of marriage in the Constitution. The fun will be watching the compelling state interest arguments. Indeed, hopefully after the Convention I or some one else will comb through Scalia's dissent in Lawrence and see where a federal prohibition of same sex marriage would come out. Well the first National ACS Convention is nearly upon us. I will be driving down from NYC this Friday morning at some ungodly hour to get there in time for breakfast. I will have a car full of ambitious young law students, all on their cell phones checking their office voice mail. This will be a great weekend indeed. I do want to congratulate, again, everyone in the national office that put this together. The line up is truly remarkable. Finally, for those of you interested in getting into the Blogsphere, I will have some sort of sign-up sheet at the student organizing session at 10:15 Sunday morning. Stop by and say hello. See you all there! Monday, July 28, 2003
This story reminds me of a line from my crim prof's death penalty class. It went something like: "When I was young and idealistic I opposed the death penalty because I thought no one deserved to die. Now I'm older and cynical and am not so sure that no one deserves to die, but I still oppose the death penalty because I am sure that if certain people do deserve to die, we as humans are completely incompetent to decided who they are." In the recent and much celebrated CFE case, the NY Court of Appeals recently dropped their old standard for public education as that which enables students to "function productively as civic participants capable of voting and serving on a jury" and adopted the theoretically more ambitious "meaningful high school education, one which prepares them to function productively as civic participants." The old standard had placed the bare minimum at the 8th grade level because it was claimed that jury instructions were written at an 8th grade level and an 8th grade education enabled a citizen to make an informed vote in elections. The new standard is designed at least in part to avoid pegging public education goals to a particular grade. However, by keeping the reference to "civic participants," it would appear to import the voting and jury duty standards as well. It was with this in mind that I was shocked to read that in California they are dumbing their jury instructions down to a 10th grade level. I've never gotten a chance to read the amicus briefs in the NY case, but does anyone out there know at what level the NY pattern jury instructions are written? My concern is that, although the CFE decision was welcomed by all concerned with the state of public education in New York City, its more ambitious standard is less explicit. If it were my case to try I would have argued that jury participation and informed voting require a minimum 12th grade standard. I would have made the case on the other prong as well, that is, argued that to make an informed vote one must have a diversity of news sources, and that news sources that are not owned by corporate conglomerates tend to be presented at a higher level than the media giant's tabloids and tv news programs. There are no doubt ramifications for the FCC debacle as well, but I have to deal with that on its own in another post. Monday, July 21, 2003
David Ettinger emails the following excerpt from the recent Bush-Blair press conference which offers an interesting insight into the president's view of the justice system. I have carried a weight of guilt for some time for not posting more about the parallel-universe justice system that has been erected in the last few months. For a few recent stories, see here, here and here. Q I wonder if I could ask you both about one aspect of Iraq and freedom and justice which, as you know, is causing a great deal of concern in Britain and the British Parliament. That is, what happens now in Guantanamo Bay to the people detained there, particularly whether there's any chance that the President will return the British citizens to face British justice, as John Walker Lindh faced regular American justice? And just on a quick point, could the Prime Minister react to the decision of the Foreign Affairs Committee tonight that the BBC reporter Andrew Gilligan is a "unsatisfactory witness"? PRESIDENT BUSH: You probably ought to comment on that one. (Laughter.) PRIME MINISTER BLAIR: Can I just say to you on the first point, obviously, this is an issue that we will discuss when we begin our talks tonight, and we will put out a statement on that tomorrow for you. PRESIDENT BUSH: We will work with the Blair government on this issue. And we're about to -- after we finish answering your questions, we're going to go upstairs and discuss the issue. Q Do you have concerns they're not getting justice, the people detained there? PRESIDENT BUSH: No, the only thing I know for certain is that these are bad people, and we look forward to working closely with the Blair government to deal with the issue. [Discussion about other issues] Q Nick Robinson, ITV News. Mr. President, do you realize that many people hearing you say that we know these are bad people in Guantanamo Bay will merely fuel their doubts that the United States regards them as innocent until proven guilty and due a fair, free and open trial? PRESIDENT BUSH: Well, let me just say these were illegal combatants. They were picked up off the battlefield aiding and abetting the Taliban. I'm not trying to try them in front of your cameras or in your newspaper. Wednesday, July 16, 2003
With the first annual American Constitution Society National Convention just around the corner, I thought I would invite attendees to send in their thoughts, comments, hopes, etc. for the Convention. Also, if you are interested in participating in an ACS blogger meetup at some point during the convention, let me know. I'm trying to set a time and place and will keep you updated. The Convention lineup is really remarkable. Kudos to everyone involved in putting this together. Tuesday, July 15, 2003
Thanks Fred. Coincidentally the Washington Post is running this piece on Robertson's support of Liberia's Charles Taylor. Following up on John's post below, I would note that Pat Robertson has done more to change the Court than simply pray for God to call a Supreme Court Justice home. In 1990, Robertson founded the Orwellian-named American Center for Law and Justice, which immediately began litigating cases that would undermine a woman's right to choose, tear down the walls between church and state, and confine the definition of family to a nice "700 Club" approved-nuclear unit of mommy, daddy, and child. Shockingly, as the federalists have grown in clout on the federal bench, the ACLJ has accomplished much of its agenda, particularly on the church-state issue. In numerous cases, it has convinced the Supreme Court that, under the guise of free speech, government must subsidize religious activity in the schools and elsewhere. (See this link for a run down of the ACLJ caseload.) So, as you consider Robertson's plea for a Supreme Court vacancy, be cognizant that he's doing much more harm -- at least now -- with his money than with his prayers. On a lighter note, check out this post at my personal blog, Bureaucrat by Day, for a brief summary of today's ACS D.C. Lawyer's Chapter lunch. The Latest in the Ettinger-Curits debate (begin here and work your way up if you have not been following). This volley is from Curtis: Mr. Ettinger suggests that by leaving out a portion of Douglass's comments, Justice Thomas deceptively portrayed Douglass as saying, "Leave us alone" when Douglass had actually conveyed, "Stop hurting us." It appears that Mr. Ettinger, and the author he cited, are attempting mightily to see something that is not there. Below are both sections of Douglass's speech that were included in the article cited by Mr. Ettinger. "Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... (Y)our interference is doing him positive injury." (Quoted in Thomas's dissent). "Let him alone. If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him along, don't disturb him! If you see him going into a work-shop, just let him alone, - your interference is doing him positive injury." (Portion of original comments left out of Thomas's dissent). The tone of the entire quotation is "Leave us alone." In fact, Douglass plainly suggests that benign interference is no more desired than malevolent interference. And both elements of that idea are contained in the first quotation whereas the second quotation merely applies the idea to actual circumstances. But for argument's sake, let's say that Douglass intended his comments to suggest "Stop hurting us" or even, "Give us a hand." The idea presumably intended by Thomas to be conveyed by citing Douglass was the same idea expressed in our Declaration of Independence, in the Fourteenth Amendment and by the Reverend Martin Luther King: all persons should be accorded the equal protection of the law regardless of their race, ethnicity or sex. Whether that principle has merit does not depend upon whether Frederick Douglass or Justice Thomas believe it to have merit. Rather, its merit must be evaluated in its own right. It seems that Mr. Ettinger is more concerned about who supports a particular idea or philosophy than he is about the actual merit of that idea. Would you join with me and many others in crying out to our Lord to change the Court? Just one of the gems from Pat Robertson's Operation Supreme Court Freedom. Full of absurd statements like the above and selective constitutional law scholarship (knowledgable enough to speak of 14th Amendment "penumbra" theory but ignorant enough to have missed that whole establishment clause thing), it then goes on to be just down right offensive: "One justice is 83 years old, another has cancer, and another has a heart condition. Would it not be possible for God to put it in the minds of these three judges that the time has come to retire? With their retirement and the appointment of conservative judges, a massive change in federal jurisprudence can take place." Why not just call on God to smote Ginsburg dead? Friday, July 11, 2003
2000! Despite everyone's busy summer schedules (firms, journals, beaches, etc.) we received our 2000th hit today, just over six weeks since our launch. Not bad at all. Thanks to all who have contributed. We'd also like to announce that we'll be trying to set up a blog-table or at least blog-meet-up-place at the national convention (you are registered, right?) to build the blog team for the fall, when "all" we have to worry about is school. We look forward to seeing you there. And David Ettinger has replied to Matthew Curtis' response: Mr. Curtis misses the point. I agree that the full Douglass quote does not show Douglass supported affirmative action. But neither does it show he opposed it. Douglass was not talking about a program to affirmatively remedy past grievous wrongs. Rather, at the time he spoke, the grievous wrongs were still continuing and he was making an eloquent plea to end them. Affirmative action wasn't on the radar screen at that point. When someone has his foot on your neck, you stop the assault before you even think of asking him for a hand to help you up. What makes Justice Thomas's use of the quote deceptive is that Douglass was saying, "Stop hurting us" and Justice Thomas was making it look like Douglass was saying, "Don't help us." I'm not a Douglass scholar, so I won't pretend to know what his views about affirmative action might have been. However, I think the criticism in the column of Justice Thomas's use of Douglass's speech is right on the money. I received this response by Matthew Curtis to David Ettinger's recent post. Mr. Ettinger recently criticized Justice Thomas's quotation of Frederick Douglass in his dissent in Bollinger v. Michigan. Yet, upon reading the article cited by Mr. Ettinger and the full quote of Douglass, I found that the portion of the quotation edited out by Thomas was consistent with the portion Thomas quoted. In short, the context did not change the eaning or substance of the portion quoted. Douglass's comments do not, as asserted by Mr. Ettinger and the author of the article he cited, demonstrate either the appropriateness of affirmative action or that Douglass would have supported affirmative action. In fact, the full quotation supports a conclusion that Douglass sought only a system of laws that was colorblind, not one that distinguished on the basis of one's accident of birth in order to benefit one at the expense of another. Wednesday, July 09, 2003
Check out Solum's response to NRO's Goldberg's Dead Constitution rant. I would expand the charge- conservatives do not innocently fall into this fallacy- they deliberately embrace. Strict constructionism and textualism do not necessarily follow from conservative politics, nor vice versa. But when your politics are very, well, 18th century anyway, it is convenient to take the next step, which is Solum's point, and say that any judge who lifts her head from the text and looks around is acting in bad faith. And thus you arrive at the mistrust of "activist" judges- not because of their jurisprudence, but because of their politics. Tuesday, July 08, 2003
Anyone who was lucky enough to attend the World Free Press Committee Conference in New York last month (as I was) will let out a sigh of relief at hearing this news. If anyone did attend, send in your thoughts. I thought it was outstanding, and a welcome break from the craziness of this summer (implicit apology for scarcity of posts). Saturday, July 05, 2003
David Ettinger writes via email: When Justice Thomas quoted Frederick Douglass in dissenting in the affirmative action case, it was very effective. It was also very deceptive. He took the quote out of context and edited out text that illuminates the true meaning of Douglass's statement. Here's a good column that gives the full story. If Justice Thomas gets tired of his day job, he could probably fit right in with the Bush/Rumsfeld foreign intelligence team that reported on the Iraqi weapons of mass destruction. A reader writes via email: One thing that the reaction to the Lawrence v. Texas opinion makes clear is that many Americans appear to believe in what might be called the "Taliban theory of government." In other words, it appears that they would agree with the following statement: "If I think it's a sin, it should be illegal." Many of them would also agree with this statement: "Judges cannot and should not do anything to keep a legislative majority from spitefully using and persecuting a small minority group if the minority group fails to act in accordance with the majority's views regarding religious doctrine." Thank God Justices Kennedy, O'Connor, Stevens, Souter, Ginsburg, and Breyer don't believe in the Taliban theory of government. |
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