Everything I Know Is Wrong

Texas Redistricting Upheld by Supreme Court.

The Texas redistricting plan, which was engineered by Tom Delay, and which was decried as unconstitutional by Democrats and those on the left who support them, was upheld today.

Reuters
In the lead opinion for the court, Justice Anthony Kennedy wrote, "We reject the statewide challenge to Texas' redistricting as an unconstitutional political gerrymander and the challenge to the redistricting in the Dallas area as a violation of the Voting Rights Act."

There was one district in West Texas that they found violated federal voting law. SCOTUSblog's analysis:

The District that the Court found legally wanting is a huge Latino-dominated district that the state created in an attempt to salvage the political fortunes of a Latino member of Congress, Republican Henry Bonilla. He had been losing strength among Latino voters, so the state legislature drew a new district by including a largely Anglo, Republican area in central Texas. That, a Court majority found, was the product of a "troubling blend of politics and race -- and the resulting vote dilution of a group that was beginning to achieve [the Voting Rights Act's] goal of overcoming prior electorial discrimination." It "cannot be sustained," the Court concluded.

Whether the state legislature can repair the problem found by the Court in that one District without redrawing the plan statewide is uncertain at this point. The Court majority found no legal flaw in any other part of the plan.

The Opinion.

Charge against Delay dropped.

The Third Court of Appeals today rejected another bogus charge against Tom Delay.

Forbes
A state appeals court sided with former U.S. House Majority Leader Tom DeLay on Wednesday, upholding a lower court ruling that dismissed a felony conspiracy charge against him...

A lower court judge dismissed a conspiracy charge against the Republican in December, agreeing with defense arguments that a conspiracy law did not cover election code violations when the alleged offense was committed in 2002. The Legislature amended the law in 2003 to include the election code violation.

Prosecutors wanted the charge reinstated. They argued last month before a three-judge panel of the 3rd Court of Appeals that conspiracy to violate the election code had always been a crime and that the 2003 change merely clarified the law.

The appeals court unanimously rejected that argument Wednesday. The ruling said that while the state's argument had merit, the court was bound by legal precedent set by the Court of Criminal Appeals, the state's highest court for criminal matters.

How many times does this need to happen before people start to see that Delay is being railroaded? I'm not trying to pretend that he is a paragon of virtue, but a travesty of justice is a… well, travesty of justice. Charging him, in 2002, with violating a law that didn’t exist until 2003, definitely qualifies.

They say it as if it's a bad thing...

David S. Broder is disturbed by the possibility that Judge Samuel Alito will be a "company man."

WaPo
Last week's hearings reaffirmed Alito's 15-year record on the Philadelphia-based U.S. Circuit Court of Appeals for the 3rd Circuit. He will construe the Constitution and statutes narrowly, and sometimes literally, and waste no sympathy on people who come to court hoping for a more expansive or generous interpretation of their rights.

What the left can't, or won't, understand is that conservatives and libertarians actually want judges that won't rule with an agenda. Even if the agenda suits conservative goals. Construing the Constitution "narrowly, and sometimes literally" is second, in the conservative mind, only to always literally. Liberals project their desire for a court that will bend the law and provide ready-made "expansive or generous" rulings, onto conservatives. But despite the worst projected fears of liberals, conservatives don't want to win in the courts, they want to win in the arena of ideas. For conservatives, a company man is not someone who votes the "right" way, it's someone who votes the correct way: by the letter of the law.

If Broder's fears turn out to be well founded then Alito is the man for me.

President did have inherent authority to conduct warrantless searches

Brought about by changes, made by the FISA court, to applications for surveillance made by the government, this ruling, by the United States Foreign Intelligence Court of Review, examines, among other things, the nature of the "wall" that existed between foreign intelligence surveillance, and the more mundane surveillance for the purpose of criminal prosecution. The court explores how the Patriot Act amended FISA to make the wall--if not entirely disappear--at least quite permeable. And, of particular interest today, they discuss in great detail under what conditions the President may order warrantless surveillance.

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. [emphasis added -- ed.]

What's more, they ask not whether FISA can encroach on the President's constitutional power, but rather if FISA increases the President's power.

The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable. [emphasis added -- ed.]

In their conclusion they mention again the President's constitutional powers. There seems to be no doubt that the President was well withing his rights when he ordered surveillance.

Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. [emphasis added -- ed.]

If you have the stamina you should read the whole thing for yourself. There is much more of interest than I have included here. As someone unaccustomed to reading this sort of document I found its thoroughness to be both tedious and extremely elegant. I was struck by the court's intellectual honesty and willingness--no even more--desire to hear, and understand, all sides of the issue. The simple common sense they applied to the problem is not something I usually associate with the courts.

Ultimately the court of review overturned FISA and told them to approve applications as they are submitted. Essentially telling them they had no authority to impose restrictions of the methods or personnel the Executive Branch used in surveillance. Doing so crossed over the constitutional line between the Judicial and Executive Branches.

Accordingly, we reverse the FISA court’s orders in this case to the extent they imposed conditions on the grant of the government’s applications, vacate the FISA court’s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.

Liberal Comedian Sues Blogger

Well, he hasn't sued yet but fellow Minnesota blog MNspeak has received a cease and desist letter from none other than Garrison Keillor.

MNspeak
Fighting off the urge to tell everyone on the planet about the old guy's folly, the first thing I decide to do is give him a second chance. I immediately call Keillor's lawyer, and the brief conversation goes something like this:

Me: "Listen, you really don't want to do this. I highly suggest you tell your client to revoke this cease and desist."

Him: "Why?"

Me: "First off, your client has no legal basis for this, and it's clear you're just trying to bully me. Secondly, this is going to make your client look extremely out of touch. I'll even write the headline for you: 'Liberal Comedian Sues Blogger.' Do you really want that?"

Him: "Is that a threat, Mr. Sorgatz?"

Me: "Dear god, no. I'm trying to be nice about this. I'm just telling you to let this go. I've made no real money off this, and there are only a handful of t-shirts left. If you let it go, I'll let it go. This is just going to blow up in your client's face."

Him: "I'll consult with my client."

The lawyer disappears for 10 days, and I assume it's over. Then he calls back late last week to say Keillor still wishes to pursue his cease and desist.

It must be difficult to be a comedian and be this humorless and still have a job.

Transcript of John Roberts Opening Statment

He spoke from memory:

Washington Post
ROBERTS: Thank you very much, Mr. Chairman, Senator Leahy and members of the committee.

Let me begin by thank Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me.

I'm humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me.

Let me also thank you, Mr. Chairman, and the members of the committee for the many courtesies you've extended to me and my family over the past eight weeks.

I'm particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent.

I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues _ many of whom are here today.

Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year, and I was glad to hear from them that he was not a particularly good patient. He chafed at the limitations they tried to impose.

His dedication to duty over the past year was an inspiration to me and, I know, to many others.

I will miss him.

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court.

I always found it very moving to stand before the justices and say, "I speak for my country."

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.

Here was the United States, the most powerful entity in the world, aligned against my client. And yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing.

It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.

President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain, from the days of our youth, certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land.

Growing up, I never imagined that I would be here, in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.

If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.

Thank you, Mr. Chairman.

Thank you, members of the committee.

I look forward to your questions.

Pontiff forced to accept feeding tube.

In an effort to deny the Pontiff the euphoria that Terri Shiavo is experiencing, Vatican medicos have inserted a feeding tube into the Pope.

AP
Pope John Paul II is getting nutrition from a tube in his nose, the Vatican said Wednesday, shortly after the frail pontiff appeared at his window in St. Peter's Square and managed only a rasp when he tried to speak.

Vatican spokesman Joaquin Navarro-Valls said the step was taken to "improve the pope's calorie intake" and so he can recover his strength.

The cruelty of those who are trying to force the Pope to live, by placing him on life support, is unthinkable; shame on them. They should allow the Pope to die peacefully from starvation, just like Terri.

Whether the Pope has a living will is unknown, but based on still pictures of the Pontiff's unsuccessful attempt at speaking before a crowd this afternoon, he might have been trying to say, "I don't want to live this way." Clearly we should abide by his stated wishes and withhold all medical help until we are sure he is dead.

Sound familiar?

What does it mean to be human?

The first time the question of what it means to be human occurred to me, I was four, maybe five, years old. It was during the early sixties and I was watching the news with my father. There was video of the police in Alabama hitting black marchers with clubs, and spraying them with water. I was utterly horrified. Over the next few days I repeatedly asked why this was happening, and because it's difficult for adults to explain something as complex and evil as racism to a small child, they reduced it to its most elemental parts. I don't remember their exact words, it was a long time ago, but I remember what they said: some people don't think that people who have black skin are human. Because I have good parents I knew those people were wrong -- wrong. I remember standing by the television watching pictures of young people -- white people -- going to Alabama to say that black people were indeed people. I remember telling my dad, we have to help--can we go there? My father explained, I'm sure, the financial realities of a young family, and how far it was to travel; what I took away from the conversation was that it would be good to help, but we couldn't go. My mom told me I could help by knowing, in my heart, that those people were wrong -- that everyone is a person.

I felt confused; how could those adults be so stupid as to be unable to see that people were, well, people? I didn't know about prejudice, or bigotry, I thought they must simply be ignorant--not ignorant with bad connotations, I was a child--I assumed they simply hadn't learned it yet. It wasn't until years later that I learned how wrong I was.

As I confront once again, because of the way Terri Schiavo is being treated, the issue of what makes us human, I find in myself the same feelings of confusion I felt as a child. How can people be so blind as to be able to ask questions about "quality of life," as if only a certain quality of life makes one human. Are people human only when they have full use of all of their limbs and faculties? What about paraplegics? Quadriplegics? People with low IQ's? People with blue eyes; brown skin? When a stroke victim cannot speak, are they less human; when they re-learn speech, have they somehow regained their lost humanity; when they are paralyzed in one half of their body, does that mean that the value of their life is cut in half? Or is their life, as I believe, just as valuable as ever, but a little more difficult?

Who has the right to ask these questions of the value of a life, except the person who's life it is? How would you feel if I decided that your life was not of a high enough quality to satisfy my standard, and that you must be starved to death -- for your own good. Appalling isn't it? Yet that is exactly where the laws in our land have stranded us.

Terri's beliefs about her quality of her own life, and whether it is worth living, are unknown. The type of documentation used to indicate these preferences in our courts is unavailable in her case. Her estranged husband/guardian says she would not have wanted to live this way, but her friends and family disagree; they say that Terri would never choose death. A standoff (at least morally). Any choice that could possibly be made has an equal chance of being a mistake.

For me though this is not a hard choice -- no Gordian knot here -- I know what makes us human. We are born human, and we die human. In between birth and death, regardless of what happens to us, we are human. Our souls make us human, and one does not treat humans the way we are treating Terri, unless, in a worst case scenario, we are absolutely certain they want us to. But we are not certain; there are grave doubts; doubts about every aspect of the decision. If we are going to make an error, when it's a issue of life and death --and in this case there is a 50% chance of an error -- we must err on the side of life.

That is the only moral choice.

Ralph Nader: 'Save Terri'

My friend Tim sent me this with a simple statment-- "Ralph Nader has earned my respect."

Ralph Nader: 'Save Terri'
In a joint statement, Nader and Wesley J. Smith, author of the book "Culture of Death: The Assault on Medical Ethics in America," enumerated what they see as the many injustices in the Schiavo case.

They said the courts, under "color of law," have imposed a slow death by dehydration on Terri, giving every benefit of the doubt to her death, rather than her continued life.

Not only has Terri's feeding tube been removed -- but no attempt has been made to let her try drinking by mouth.

"Terri swallows her own saliva," Nader and Smith said. "Spoon-feeding is not medical treatment. This outrageous order proves that the courts are not merely permitting medical treatment to be withheld, it has ordered her to be made dead," Nader and Smith said.

They also noted that experts are split on whether Terri is in a persistent vegetative state or whether she can improve with therapy. "There is only one way to know for sure -- permit the therapy," they said.

A couple of legal discussions about Terri Schiavo

Duane, at Radioblogger, has put forth a prodigious effort and transcribed two very interesting discussions of the legal side of Terri Schiavo's ordeal.

The first is between Andrew McCarthy of the National Review, and Orin Kerr of George Washington University Law School, who is also contributor to the Volokh Conspiracy.

The second is a discussion on CNBC's Kudlow and Company with Larry Kudlow, between Hugh Hewitt, Glenn Reynolds, and John Hinderaker.

Both transcripts are well worth reading, and both of them are enlightening as to how lawyers are thinking about the Schiavo predicament; they also illuminate the law's complete lack of a conscience. Though I must say, Hugh Hewitt, Andrew McCarthy, and John Hinderaker make me feel a lot better about lawyers.

Read 'em (1, 2).