This is weird — the 9th Circuit issued a correct ruling

The Ninth Circuit, which is the laughing stock of the federal judiciary because it is overruled so often, did something bizarre yesterday: it issued a Constitutionally correct decision. Not only that, the decision meant that a citizens’ group will be able to engage in free speech that is contrary to the type of speech the 9th Circuit prefers. I’m impressed:

An Arizona anti-abortion group’s right of free speech was violated when the state refused to issue specialty license plates with the message “Choose Life,” a federal appeals court ruled Monday.

Reversing a judge’s decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said Arizona’s License Plate Commission had approved less-controversial plates for other nonprofit organizations, such as associations of police and firefighters and the Wildlife Conservation Council, before turning down the Arizona Life Coalition.

The commission “clearly denied the application based on the nature of the message,” Judge Richard Tallman said in the 3-0 ruling. He rejected the commission’s argument that it was entitled to control the content of state-issued license plates and said Arizona was attempting to restrict free expression.

Opponents of abortion have been trying for years to get states to let them use license plates as mobile billboards for the “Choose Life” motto. Judges’ reaction has been mixed.

A South Carolina law expressly authorizing the plates was struck down in 2003 by a federal appeals court because the state did not allow similar plates for abortion-rights advocates, but another appeals court upheld a similar Tennessee law in 2006. The Supreme Court has not taken up the issue.

Courts have generally frowned, however, on a state’s singling out abortion-related messages for exclusion from license plates. Monday’s ruling comes five days after a federal judge ordered Missouri to issue “Choose Life” plates, saying state law gave officials too much leeway to reject license-plate messages because of their content.

California has allowed nonprofit groups to ask the Legislature to approve specialty license plates by submitting 7,500 paid applications. The fees, minus state expenses, are used by foundations that promote such causes as coastal protection, Lake Tahoe, Yosemite National Park and the victims of the Sept. 11, 2001, terrorist attacks.

Backers of a proposed “Choose Life” plate in California have failed several times to win legislative passage, but won a federal court ruling in 2004 that declared the entire program unconstitutional on the ground that it gave lawmakers unlimited authority to decide which messages to accept. The judge in that case allowed previously approved plates to remain, however, and the state has not established a new specialty-plate program.

Monday’s ruling set legal standards for federal courts in nine Western states, including California. It stemmed from a 2003 lawsuit by the Arizona Life Coalition, which had applied the previous year for a license plate that would display the “Choose Life” slogan with a picture of two children’s faces.


Acting as judge or legislator?

I haven’t read the underlying decision, nor am I familiar with the case. Nevertheless, if you read the following, do you feel that the judge is acting as a judge or actually stepping in as a legislator?

The Ninth U.S. Circuit Court of Appeals today tossed new federal fuel economy standards for some sport utility vehicles, minivans and light trucks, arguing that regulators failed to properly assess the risk of global warming and that the new rules didn’t include larger SUVs and trucks.

The decision is a huge win for several environmental groups and 11 states that argued that the National Highway Traffic Safety Administration’s new fuel economy standards, announced in March 2006, ignored the effects of carbon dioxide emissions.

Currently, those vehicles are required to achieve 22.2 mpg for 2007 models. The new standards would have boosted that requirement to 24.1 mpg by 2011.

But the Center for Biological Diversity petitioned the federal appeals court a month after the new standards were revealed, arguing that a38 mpg benchmark can be readily achieved by 2015.

Since then, other environmental groups, including Sierra Club, and 11 states led by California have joined the petition asking the federal regulators to come up with a new standard that considers global warming impacts.

“The court decision is a rebuke to the Bush administration and its refusal to make meaningful steps to reduce global warming pollution from our automobiles,” said Pat Gallagher, director of environmental law at Sierra Club. “The decision tells the National Highway Traffic Safety Administration that it can’t monkey the numbers when it sets fuel economy standards by ignoring the cost of carbon emissions.”

The court decision is the latest evidence of mounting pressure on the White House to address global warming.

Last week, Gov. Arnold Schwarzenegger filed a lawsuit against the U.S. Environmental Protection Agency in an effort to force the federal agency to grant a waiver that would allow the Golden States to require automobile manufacturers to sell more fuel efficient vehicles starting next year.

It doesn’t sound like a legal issue to me, that’s all I can say.

Oh, those wacky Clinton-appointed judges

This is the third time in a month that a judge has struck down a hot topic policy that the Bush administration supports (this time it’s an immigration policy that got the ax) and it’s the third time that the judge was a Clinton appointee. This time the judge was Charles R. Breyer, who sits in San Francisco, and about whom I can’t say much that is good — although, to be fair, I’d have to say the same about most Bay Area judges who have decided matters on which I’ve worked. It’s not that my work is so stellar that the judges should bow down before it and rule in my favor. Nope. I has more to do with the fact that so many Bay Area judges manifestly rely on gut feelings and prejudices, without making even the semblance of a bow to the controlling law. But back to topic:

Without know the legal issues, I’m not going to stick my neck out here to challenge Justice Breyer’s opinion. For all I know, he’s absolutely right. I’m just noting a trend in federal court rulings lately. I’ll also note that, for litigation attacking federal policies, forum shopping is easy.

For other examples of this trend, see this and this.

As a complete aside, Justice Breyer is the younger brother of Justice Stephen Breyer, one of Clinton’s Supreme Court appointees.

UPDATE:  The Captain, who has actually taken the time to examine the issue and the ruling, is dismayed.  His post on the subject begins as follows:  “It’s hard to imagine what Judge Charles R. Breyer had in mind when he issued a ruling that prevents the government from detecting identity fraud, but clearly it wasn’t the law or the interests of the American community.” You’ll want to read the rest.

Feeling quite guilty in retrospect

Back in 1991, I was a good, unthinking liberal soldier. I was appropriately horrified when George Bush nominated Clarence Thomas for the Supreme Court and was just thrilled when Anita Hill fortuitously showed up. In my own defense, since I’m not a manipulative person, it never occurred to me that the whole thing could have been a set up. To me, it was good luck, with a “he said/she said” narrative where I desperately wanted to believe her. I remember that my friends and I had long lunchtime talks about how it was perfectly possible for an ambitious woman to continue working with her harrasser rather than jettisoning her career.

I wonder how I would have felt about the whole thing if I the media had focused on the Senate testimony from John Doggett, who quite bravely came before the Senate panel to testify on Thomas’ behalf.

Why do I say bravely? After all, this is the United States Senate we’re talking about, not some Soviet kangaroo court. Sadly, though, it was a Soviet/McCarthy style kangaroo court. The Captain provides detailed evidence showing that the Democrats launched against Doggett, who is also a black attorney, precisely the same attack they launched against Thomas: they found a young woman who claimed that, on her very first day at work, he assaulted her — but she never told anyone. Then, in violation of his own Committee’s rules, Sen. Metzenbaum used this unsworn testimony to try to discredit anything Doggett said. Doggett, bless him, didn’t take it lying down:

Mr. DOGGETT. Senator, your comments about this document are one of the reasons that our process of government is falling apart. First of all, Senator, I have a copy of the statement that this person met—it is called a transcript of proceedings. But, Senator, if you read this, it is as telephone conversation that she has with some staff members pro and against Mr. Thomas, and she is not under oath. I did not do any of the things that she alleged. In fact, the first time any of these issues were raised was the day before I was supposed to come here, 8 1/2 years later. I knew when I put my information into the ring, that I was saying I am open season. For anybody to believe that, on the first day of work, for a woman working in the xerox room, who is 19 years old, a 33-year-old black man would walk up to a 19-year-old white girl and kiss her on the mouth as the first thing that they did, whoever believes that really needs psychiatric care. But let me talk about the facts, since you brought up this statement, which was not made under oath, which was not made consistent with any of the rules that you Senators are supposed to be responsible for, since this is the Judiciary Committee, let me talk about that, since you asked the question and went on and on and on. During that time that she—I have read this statement. If she had made it under oath, Senator, I would go to court, but

Senator METZENBAUM. This isn’t her statement. I am reading from your statement, Mr. Doggett.

Mr. DOGGETT. The statement that you read from was a discussion with me, and consistently your staff people said, “I don’t have the transcript, I don’t remember the exact facts.” Well, I have the transcript and the exact facts show this woman to be a profound liar who does not even remember the facts accurately.


Mr. DOGGETT. I will tell you, Senators, before I talk about the specifics, I debated, myself and with my wife, whether or not to start the process that resulted in me being here, because this is vicious, and I knew, since anything I said was going to raise the question about the credibility of Professor Anita Hill, as a lawyer, that meant my character was open season. I have never been involved as a candidate, although I have always said you can’t complain about the process, if you’re not willing to put your ass on the line—pardon me, I am sorry. I am sorry about that.

Senator METZENBAUM. Mr. Chairman —

Mr. DOGGETT. But I have said if you don’t like the way the political process is, then you have to get into it and you have to get into the fray. So, I said, okay, if I submit this information to this committee, then I am open season and people are going to shoot at me, and I do not care. I have information I think the committee needs to hear. If they feel it is relevant enough for me to be here, I will be here and I will take whatever occurs. But I will tell you, sir, I have had lawyers and professional people in Texas and around the country say that I was insane to subject myself to the opportunity to have something like this crawl out from under a rock. They have said I should have just stood on the sidelines and let it go by. I am an attorney, sir

Senator METZENBAUM. Mr. Doggett —

Mr. DOGGETT [continuing]. I am a businessman and I cannot allow this process of innuendo, unsworn statements and attacks on characters to continue, without saying it is unacceptable.

I’d like to think that, had I known about Doggett’s testimony, I would have thought twice about the attack against Clarence Thomas, but I really don’t know. I was such an unthinking soldier, so caught up in the “fate worse than death if Thomas wins” mentality, that I might have justified the Doggett attack away as easily as I did everything else. I also doubt that I would have seen the profoundly racial dimensions to these attacks in the U.S. Senate. When Clarence Thomas talked about his high tech lynching, I took the party line: he was trying to blame his accusers to avoid his own undoubted guilt. I’m quite ashamed about my young self’s inability to look at the facts and suspect a fraud.

Sadly, it looks as if Doggett is now one of the group of black attorneys pressing for reparations, a concept I find morally suspect and economically unsustainable. Nevertheless, the fact that he is in thrall to a bad idea now does not erase his bravery and integrity then.

UPDATE: I’m not the only one who feels guilty about my attitude towards Thomas 16 years ago.

Another Clinton appointee chisels away at the Patriot Act

I am not conversant with the details of the Patriot Act, nor am I a Constitutional lawyer. I simply find it interesting that, more often than not, when a Federal District Court judge rules something about the Patriot Act unlawful, that judge is a Clinton appointee. The most recent case in point is a decision out of Portland, Oregon, where Ann Aiken, a Clinton appointee, struck down part of the act:

Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment’s guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

“For over 200 years, this Nation has adhered to the rule of law — with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised,” she wrote.

Aiken’s ruling may be absolutely correct.  I’m not quarreling with the ruling.  I’m just noticing a pattern.  (See here for another recent example in that same pattern.)

It’s a very small world (if you’re a conservative in the Bay Area)

I just read that a federal judge has temporarily canceled the Patriot Act’s wire tapping provisions. I’m very much not a Constitutional lawyer, so I can’t comment on the validity of this decision at a legal level. Immediately upon reading that story, though, I was pretty willing to bet that Judge Victor Marrero, who operates in the U.S. District Court for the Southern District of New York was a Clinton appointee. I therefore googled “Victory Marrero appointee,” which I thought was a sufficiently broad search to pull up that info.

Guess what I found with the search. Aside from the obvious fact that Marrero is indeed a Clinton appointee, I found another Marin conservative blogger! You see, when Google returned the search results, the very first item on the list was for a website called Marooned in Marin, which comments on the same thing that struck me: it’s somehow not surprising that a Clinton appointee would fairly effortlessly jettison a useful weapon in the war against international terrorism, a war increasingly being strategized without the need for physical locations because of cell phones and the internet.

At least the two of us conservatives in Marin are thinking along the same lines. I feel much less lonely now.  And I’m very flattered because, while I just found Marooned in Marin, s/he had already found and blogrolled me!  Thanks.

“Straw, meet camel’s back.”

History has its tipping points. I wonder if Britain or, rather, the ordinary British, have met another tipping point. A while ago, I blogged about the fact that, as Melanie Phillips points out in Londonistan, the rule of judges has gone insanely against ordinary Brits, with judges relying on the British Human Rights Act to elevate all rights over those of the indigenous Brits’ rights. Yesterday, I blogged about news in Britain that saw the Human Rights Act used to justify keeping in Britain an Italian man who brutally murdered a British headmaster. Today, news out of Britain has the British becoming increasingly upset about the fact that British judges are looking to continentally oriented law to justify squashing the rights of ordinary British people:

David Cameron last night called for the Human Rights Act to be scrapped outright for the first time amid mounting anger that the controversial law had allowed the killer of the head teacher Philip Lawrence to escape deportation.

The Conservative leader accused the Government of being “blind” to the Act’s failings as it emerged that Home Office officials still regarded Italian-born Learco Chindamo as a threat to the public.

Mr Cameron’s call came on a day of high emotion as Mr Lawrence’s widow, Frances, said the legislation, which was adopted by the Labour Government in 2000, was “rotten at the core”.

Concerns over the decision to allow Chindamo – who is due to be considered for parole early next year – to remain in Britain were heightened when official papers handed to the courts by the Home Office showed he posed a “genuine and present risk” to the public.

However, last night Downing Street said that Gordon Brown would not alter the legislation. A spokesman said: “The Government has made its position clear many times.”

The Human Rights Act has been widely criticised and has led to the Government suffering a number of high-profile setbacks, notably in its failed attempts to deport terrorism suspects.

You can read the rest of the story here, including a description of just how vile Chindamo’s conduct was, and how heroically Lawrence died at the hands of this mob leader.

Labour thinks it has a lock on things.  But I wonder if Labour without Tony Blair has the reputation and charisma to hang on to office if “little things” like this begin to irk the ordinary Brit (assuming ordinary Brits haven’t been wiped out by 40 years of multi-culti education).