Archive | September, 2007

Reader Poll on Justice Thomas’s Appearance on “60 Minutes”:

Tonight Justice Thomas appeared on the CBS show “60 Minutes” and was interviewed for more than a half hour. Here’s a reader poll question for VC readers who watched the show — and please, only answer if you watched the show.

After you watched Justice Thomas on 60 Minutes, how did your opinion of him change, if at all?
I now think significantly more favorably of Justice Thomas.
I now think somewhat more favorably of Justice Thomas.
There is no change in my opinion of Justice Thomas.
I now think somewhat less favorably of Justice Thomas.
I now think significantly less favorably of Justice Thomas.
Free polls from


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More on the Judge Samuel B. Kent Case:

Houston Chronicle columnist Rick Casey has a good article on the Fifth Circuit investigation into the sexual harrassment claims against Judge Samuel B. Kent.

Casey makes two important points. First, federal law requires the US Court of Appeals for the Fifth Circuit to keep secret the evidence obtained in its investigation. For this reason, it is wrong to infer that the Fifth Circuit judges are keeping the information secret in order to somehow help Kent cover up his misconduct. If you want to study the details of relevant statute for yourself, it is 28 U.S.C. 360.

Second, there actually isn’t very much that the Fifth Circuit can do to punish Kent. Article III of the Constitution prevents them from removing him from his position or docking his pay. It is unlikely that the Circuit could impose a sanction much more severe than the (unusual) public reprimand and compelled temporary leave that they have already administered. The only way to forcibly remove Kent from the bench is by means of impeachment by Congress. That is why I suggested in my last post that the House of Representatives should investigate the charges against Kent in detail, and make a determination on whether to proceed with an impeachment vote (which would be followed by a trial in the Senate, if it passes).

Casey also argues that the evidence collected by investigations of judicial misconduct should be made public. There is some merit to his view. However, I would be reluctant to establish a blanket rule in favor of disclosure; some judicial employees or other witnesses might be unwilling to assist investigators if they knew their statements would automatically be made public. The public interest in disclosure has to be balanced against the need to guarantee confidentiality to some witnesses in cases where […]

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Sunday Song Lyric:

Nothing profound this week, nor anything particularly classic — just something current and fun. Nickelback‘s “Rockstar” seems to capture our culture’s fascination and obsession with celebrity lifestyles, the glamour, the debauchery, and the emptiness. Here’s a taste.

I’m through with standing in line
to clubs we’ll never get in
It’s like the bottom of the ninth
and I’m never gonna win
This life hasn’t turned out
quite the way I want it to be . . . .

I’m gonna trade this life
For fortune and fame
I’d even cut my hair
And change my name

‘Cause we all just
wanna be big rockstars
And live in hilltop houses
driving fifteen cars
The girls come easy and
the drugs come cheap
We’ll all stay skinny
’cause we just won’t eat
And we’ll hang out in the coolest bars
In the VIP with the movie stars
Every good gold digger’s
gonna wind up there
Every Playboy bunny
with her bleach blond hair
And we’ll hide out in the private rooms
With the latest dictionary and
today’s who’s who
They’ll get you anything
with that evil smile
Everybody’s got a
drug dealer on speed dial
Hey hey I wanna be a rockstar
Hey hey I wanna be a rockstar

The full lyrics are available on Nickelback’s website here. The video, featuring quite a few lip-synching cameos, is here. […]

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Sunday Song Lyric Index:

It’s been a while since I’ve posted a Sunday Song Lyric Index, so here’s an index of recent postings.

Sept. 23
– Herman Hupfeld, As Time Goes By

Sept. 16
– Kate Bush, This Woman’s Work

Sept. 9
– Holt Marvell, These Foolish Things (Remind Me of You)
Sept. 2 – Nine Inch Nails, Hurt
Aug. 26 – Duke Ellington, Solitude
Aug. 19 – Alarm, Eye of the Hurricane

Aug. 12
– Kurt Weill & Bertolt Brecht, Solomon Song

Aug. 5
– Marcy Playground, The Vampires of New York

July 29
– Richard Adler & Jerry Ross, Rags to Riches

July 22
– Mary Chapin Carpenter, The Long Way Home

July 15
– The Cure, Jumping Someone Else’s Train

July 8
– Arctic Monkeys, Teddy Picker

June 24
– White Stripes, Icky Thump

June 17
– Ricky Skaggs, Father Knows Best

June 10
– Linkin Park, What I’ve Done

June 3
– Genesis, Illegal Alien

May 27
– [Memorial Day Lyrics]

May 20
– Sam Cooke, A Change Is Gonna Come

May 13
– Five for Fighting (John Ondrasik), Freedom Never Cries

May 6
– Elvis Costello, Radio, Radio

April 29
– Sublime, April 29, 1992 (Miami)

For a listing or prior SSL postings, start here. […]

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Pop Quiz on the History of the Fourth Amendment:

In 1925, the Supreme Court upheld a warrantless automobile search against a Fourth Amendment challenge. The dissent argued that Fourth Amendment protections should apply to cars as well to homes:

And it is argued that the words and history of this section indicate the intent of Congress to distinguish between the necessity for warrants in order to search private dwelling and the right to search automobiles without one. Evidently Congress regarded the searching of private dwellings as matter of much graver consequence than some other searches and distinguished between them by declaring the former criminal. But the connection between this distinction and the legality of plaintiffs in error’s arrest is not apparent. Nor can I find reason for inquiring concerning the validity of the distinction under the Fourth Amendment. Of course, the distinction is valid, and so are some seizures. But what of it? The act made nothing legal which theretofore was unlawful, and to conclude that by declaring the unauthorized search of a private dwelling criminal Congress intended to remove ancient restrictions from other searches and from arrests as well, would seem impossible.

While the Fourth Amendment denounces only unreasonable seizures unreasonableness often depends upon the means adopted. Here the seizure followed an unlawful arrest, and therefore became itself unlawful-as plainly unlawful as the seizure within the home so vigorously denounced in Weeks v. United States…

Here’s the quiz. The two dissenters were (a) noted civil libertarians Louis Brandeis and Oliver Wendell Holmes; or (b) reactionary “Horsemen” McReynolds and Sutherland.

The answer is “b”, with McReynolds writing the opinion. Brandeis and Holmes joined Chief Justice Taft’s majority opinion. […]

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The Ethical Cloud Over Judge Samuel B. Kent:

I would like to comment briefly on the controversy surrounding Judge Samuel B. Kent, the Galveston, Texas federal district judge who was recently disciplined by the Fifth Circuit Court of Appeals for sexual harrassment. Since I clerked for Judge Jerry E. Smith of the Fifth Circuit in 2001-2002, it is important to emphasize that this post is based solely on publicly available information and not on any privileged information that I may have had access to during my clerkship. All factual claims in the post are based on published sources that I have linked to. Also, I should note that the post reflects only my own opinions and not those of Judge Smith or other Fifth Circuit judges.

That said, interested readers should know that this is far from the first time that serious issues have been raised regarding Judge Kent’s judicial ethics. Indeed, it is no secret that Kent is a notorious figure in the Texas legal community and perhaps even nationally.

Here are a few relevant aspects of Judge Kent’s record:

In 2001, the Chief Judge of Southern District of Texas reassigned 85 cases away from Judge Kent, because the cases were being handled by Kent’s best friend Richard Melancon and there were allegations that Kent was engaging in favoritism on his friend’s behalf. In a 2002 decision, a Fifth Circuit panel removed Judge Kent from a case because he had demonstrated open bias against and “hostility” towards one of the parties. Although it is not terribly unusual for litigants to assert that a judge is biased against them, it is relatively rare for appellate courts to accept such claims and remove the judge from the case.

In this 2001 Green Bag article, Northwestern University Law Professor Steven Lubet documented Kent’s notorious courtroom “bullying,” which he […]

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No Homosexuals in the Arab World:

Recall that at Ahmadinejad’s recent speech at Columbia, he responded to a question about Iran’s oppression of homosexuals by claiming that “in Iran we don’t have homosexuals like in your country.” His statement was met with a chorus of boos and catcalls, the only thing he said that really riled up the politically correct crowd of Morningside Heights.

Well, it may come as a surprise to Columbia faculty and students to learn that a current professor at Columbia has argued that there are no homosexuals in the entire Arab world, except for a few who have been brainwashed into believing they have a homosexual identity by an aggressive Western homosexual missionizing movement he calls “Gay International.” The article is called, “Re-Orienting Desire: The Gay International and the Arab World,” and it appears in Volume 14, issue 2 of the journal Public Culture, and was elaborated upon in a book, Desiring Arabs, published by University of Chicago Press (UPDATE: BTW, I read the article, which is accessible through my GMU library account, but not the book). According to the author, “It is the very discourse of the Gay International which produces homosexuals, as well as gays and lesbians, where they do not exist” (emphasis added).

The author doesn’t deny that same-sex sexual contact exists in Arab countries, but claims that the category of “homosexual” is purely a Western one exported to the Arab world by Western cultural imperialists. He suggests that by encouraging Arabs to adopt a Western homosexual identity, westernized Arab homosexuals have naturally provoked a counter-reaction against the importation of decadent Western culture into their societies. The article, to say, the least, is not at all sympathetic with the Western gay rights movements, and the author could easily write, replacing “Iran” with “the Arab world,” “in […]

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More Cool Non-Law Blogs:

1. A very erudite blog run by Professor John Granger, who is so knowledgeable, hard-working, and good-hearted that he is undoubtedly a distant relative of Hermione Granger. Be sure to check out the blogroll too for more excellent Potter sites, especially the excellent Sword of Gryffindor.

2. The Anchoress. Musings on life, ethics (and sometimes current events) from an intelligent Roman Catholic perspective. […]

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Bushism of the Day:

[My adversary] has abandoned all sense of fairness when it comes to justice.

Funny, no? Another example of the President’s accidental wit and wisdom.

Whoops, sorry: That’s from a written statement by Speaker Pelosi’s office on July 2, condemning President Bush’s commutation of Scooter Libby’s sentence. The Bushism of the Day, from oral remarks by President Bush, is

All of us in America want there to be fairness when it comes to justice.

Neither, of course, is terribly eloquent, but neither is particularly laughable. The supposed humor, I take it, stems from the assumption that fairness and justice are synonyms, so the statement is supposedly tautological. But it’s clear that “justice” in both quotes means not just “fairness” but “the operation of the justice system.” (Bush was speaking of the Jena, Louisiana prosecutions.) Nothing particularly noteworthy, it seems to me, in someone’s saying something like this, especially in an extemporaneous oral response to a question. […]

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May Jewish Community Center Discriminate Based on Religion?

Title VII of the federal Civil Rights Act generally bars employers from discriminating based on religion, but exempts religious discrimination by any “religious corporation, association, educational institution, or society.” Those terms, however, aren’t precisely defined, and while they create plenty of black and white zones, there’s also a good deal of gray area.
Leboon v. Lancaster Jewish Community Center Ass’n, a Third Circuit decision filed last week, explores this as to a Jewish Community Center; the Center had a substantial religious component to its activities, but was not under control of any particular synagogue or rabbinical organization. The two-judge majority said the Center was a religious organization covered by the exemption. One dissenter held the contrary, and would have read the statutory exemption as limited to “only those entities that … are controlled by a religious sect.”

Note that there’s a separate doctrine, developed under the First Amendment, that allows discrimination based not only on religion but also race, sex, and the like, but that’s limited to ministers and other employees with distinctively religious jobs. We’re talking here about the categorical statutory exemption — though only from the ban on discrimination based on religion — of all employees of religious corporations, associations, educational institutions, or societies. […]

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U.S. Court of Appeals for the Fifth Circuit Admonishes Judge Samuel B. Kent for Sexual Harassment of a Judiciary Employee:

Here’s the order, which is short on details, but which does say that Judge Kent’s actions “violated the mandates of the Canons of the Code of Conduct for United States Judges and are deemed prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice.” The details of the complaint are apparently to remain confidential.

The “appropriate remedial action” for the judge has apparently been a four-month leave of absence from the bench, plus unspecified “other measures.” Recall that federal judges are generally protected from most job-related penalties, short of impeachment by the House and conviction by the Senate. […]

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Kay Hymowitz’s Response to Her Libertarian Critics:

Conservative writer Kay Hymowitz’s critique of libertarianism, published in Commentary and the Wall Street Journal, has attracted a lot of critics of its own, including responses to some of her points by co-conspirator David Bernstein, and yours truly. My main criticism of Hymowitz’s essay was that she falsely conflates libertarians’ opposition to government regulation of personal choices with an indiscriminate embrace of 1960s style lifestyle excesses. Believing that Activity X should not be banned by the state does not entail a belief that X is unobjectionable. Now, Hymowitz has written a response to her critics. The response contains some welcome clarifications and concessions, but also perpetuates some of the shortcomings of the original article.

On the plus side, Hymowitz writes that she “strongly agree[s]” with my statement that the “harmful effects of private choices . . . are best dealt with through the private sector.” She also admits that “libertarians are not libertines” and claims that some of her critics (possibly including me) misinterpreted her views when we portrayed her as equating libertarianism with near-total relativism about personal choices. To my mind, there is at the very least serious tension between Hymowitz’s comments on this score in her new essay, and her claim in her original article that “the libertarian vision of personal morality . . . is not far removed from ‘if it feels good, do it,’ the cri de coeur of the [1960s] Aquarians.” However, I’m willing to accept Hymowitz’s assertion that her views have been misinterpreted.

If Hymowitz really does agree that the “harmful effects of private choices . . . are best dealt with through the private sector,” then there really isn’t much disagreement between her and most libertarians. Why, then, does she continue to attack libertarianism? If I interpret here correctly, […]

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Unconstitutional Restriction on Use of Fallen Soldiers’ Names:

As I wrote in July, the newly-enacted Ariz. Rev. Stat. § 13-3726, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, provides:

A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier’s spouse, immediate family member, trustee if the soldier is a minor or legally designated representative….

C. This section does not apply to the following:

1. The use of a soldier’s name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier’s name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier’s name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer’s place of business or […]

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