The N.Y. Times reports on the D.C. Circuit's rejection of an amicus brief filed by retired judges. The article suggests politics played a role in the rejection.

David B. Rivkin, who was an official in the administrations of Ronald Reagan and the first President George Bush, said he detected a political undertone.

“It certainly tells you,” Mr. Rivkin said, “how at least some of the D.C. Circuit judges feel about the anti-Bush-administration judicial activism by their former colleagues.”

The two judges who rejected the brief, Sentelle and Randolph, were Republican appointees, while the dissenting judge, Rogers, and some of those on the amicus brief were Democratics appointees. One of the brief's signatories suggested personal animus explained the decision.

[Former Judge Abner J.] Mikva said the rejection of his brief was motivated by personal animus, not politics. “It’s not political at all,” he said in an interview. “This was clearly aimed at me.”

The judges in the majority, Mr. Mikva said, were furious with him because he opposed allowing judges to accept free trips to resorts for seminars sponsored by private groups.

There's no question that many federal judges object to Mikva's support of a campaign against privately funded judicial education seminars, particularly given some of the inaccurate and outrageous claims made in the course of that campaign. That said, I find the idea that either Judge Sentelle (for whome I clerked) or Judge Randolph (who was a professor of mine) would base their decision on such sentiment [to be ridiculous]. Correctly or not, I think it clear that Judges Sentelle and Randolph [sincerely] believed that Mikva and the other judges on the brief were inappropriately using their status as former judges in an effort to influence the case [or public perception thereof].

Experts in legal ethics were divided over yesterday’s ruling. Ronald D. Rotunda, a law professor at George Mason University, said it was an unexceptional application of a sensible policy.

“There is no particular reason why former judges should be able to leverage their titles in litigation,” Professor Rotunda said.

Stephen Gillers, a law professor at New York University, disagreed. “It’s more than petty,” Professor Gillers said of the brief’s rejection. “It’s unnecessary and insulting.”

He added that the objection was an empty formality, as former judges remain free to submit briefs if they omit references to their prior judicial service.

Whatever its basis and wisdom, yesterday’s order probably indicates that a ruling in the underlying case is near. In a 1994 libel case, a panel including Judges Mikva and Wald rejected a supporting brief that Kenneth W. Starr, a former judge on the court, had tried to submit on behalf of several news organizations. The panel decided the libel case the next day.

UPDATE: I edited the post above to fix an incomplete sentence and make my point more clear. The added portions are in brackets.

As for my accusation against Judge Mikva, he endorsed a report attacking privately funded seminars for judges that included ridiculous charges against sitting judges, including judges with whom he served. One of the charges was that a judge's vote in a case was influenced by having attended a seminar — even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with "anti-environmental" views. I've written about this issue quite a few times, most recently in this article for NRO.

Let me make clear that I am not endorsing the panel's decision to reject the brief. While I understand why a court might be wary of briefs that are submitted for political reasons, I am unsure whether Judges Sentelle and Randolph were correct on the merits. I am concerned about whether this decision has sufficient precedent. I also find Steve Lubet's suggestion in the comments that any rejection of the brief should have been without comment to be reasonable as well. My point is that I believe both judges made a sincere and principled judgment on the merits, and were not motivated by a desire to get back at Judge Mikva.

FURTHER UPDATE: Stephen Gillers fleshes out his position in a comment below. It is much more informative than the NYT soundbite. Beldar has some thoughts as well.

The Ohio Supreme Court issued a particularly interesting, and potentially significant, workers’ compensation decision yesterday in State ex rel. Gross v. Industrial Commission of Ohio. By a vote of 5-2, the Court upheld the decision of the Industrial Commission of Ohio (ICO) to deny workers’ compensation benefits to an injured worker because he voluntarily terminated his employment. Specifically, the ICO concluded that because the worker’s injury resulted from actions in direct contravention of written company policy and repeated warnings, the worker was not eligible for benefits when the company fired him.

The employee, David Gross, worked for Food, Folks and Fun, the operator of a local KFC franchise. Among the written safety guidelines in the employee handbook was a warning never to clean a pressure cooker by boiling water in it. The employee handbook further declared that violations of safety policies were “critical violations” that could result in immediate termination of employment. There was also a written warning on the pressure cooker itself, and Gross had been repeatedly told not to boil water in the pressure cooker.

In November 2003, Gross nonetheless sought to clean the pressure cooker by boiling water in it. A co-worker warned Gross not to open the lid, because the water was under pressure. Gross did so anyway injuring himself and two other workers.

Gross and the others suffered severe burns. Initially he received workers’ compensation benefits. In February 2004, however, the company informed Gross that after investigating the accident, it concluded that Gross caused his own injury by violating company safety policies, despite repeated warnings from co-workers. The company informed him in writing that it “cannot and will not tolerate employees who pose a danger to themselves and others based upon their refusal or failure to follow instructions and recognized safety procedures,” and fired him. At this point, the company requested that ICO terminate Gross’s workers’ compensation benefits, which the ICO did.

The Ohio Supreme Court’s majority concurred with the ICO that gross had effectively abandoned his employment when he repeatedly violated the company’s safety policies, and was therefore not eligible for benefits; Gross “was fired because he directly and deliberately disobeyed repeated written and verbal instructions not to boil water in the pressurized deep fryer and injuries followed.” This was so even though he had received them for a few months.

In this case, Gross’s disability and the misconduct that precipitated a finding of voluntary abandonment occurred simultaneously, not sequentially. The date of disability onset preceded the date of termination only because F.F.F. conducted an investigation first rather than firing him on the spot, which, given the gravity of the misconduct, may not have been unwarranted.

concerned that the majority is tacitly injecting fault into a no-fault system of compensation and reintroducing contributory negligence as a basis for defeating the right to recover compensation. Our workers’ compensation laws are intended to compensate a worker who suffers an industrial injury without a determination of fault or wrongdoing. Yet KFC assessed fault for the accident and acted according to its conclusion. This is contrary to worker’s compensation principles, and we should not condone such actions.

If we conclude that this was a voluntary departure that precludes payment of [benefits], I believe that this will place us on a slippery slope toward assessing fault in industrial accidents. The employer will examine the employee’s conduct following an industrial accident and use any infraction discovered to terminate the employee. When this occurs, where do we draw the line? What about the employee who fails to properly shut down a machine, tries to stop it manually, and, as a result, causes a machine malfunction that results in injury? The employer may decide to terminate the employee for improperly operating the machine in violation of a work rule. Should the employee’s fault preclude his receiving [workers’ compensation] benefits? The answer to this question is no. Our workers’ compensation laws do not permit the introduction of fault — regardless of whether the employee’s act that caused injury was intentional or negligent. Therefore, if the employee is terminated and the termination was related to the employee’s conduct that resulted in injury, I believe it should be deemed an involuntary termination.

Today the U.S. Court of Appeals for the D.C. Circuit denied "the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006" in the consolidated cases of Bouemediene v. Bush and Al Odah v. United States. The three judge panel's order was issued without opinion, providing only a parenthetical citation to Advisory Opinion 72 from the Judicial Conference's Committee on Codes of Conduct, which reads in relevatn part:

Judges should insure that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person’s status at a time pertinent to the lawsuit.

A copy of the brief in question is available here.

Early in President Bush's first term, the Justice Department adopted the "individual rights" interpretation of the Second Amendment. According to administration attorneys, the weight of historical evidence and academic scholarship supported this view. Now, however, it appears that at least one federal agency (the Federal Aviation Administration) is endorsing the "collective rights" view in a rulemaking concerning whether firearms should be allowed during space travel. Given that proposed rules are supposed to be subject to White House review in the Office of Management and Budget, the question is whether this one just slipped by, whether it represents a sign that the Administration is backing off the "individual rights" interpretation favored by most supporters of gun rights, or whether this is something that only those of us who with scheduled space travel need worry about. (Link via Instapundit)

UPDATE: It is important to note that, according to David Codrea, the FAA maintains that the rule's language was approved by the Executive Office of the President. This would suggest that the White House, perhaps inadvertently, let through a statement that the Second Amemdment only protects a "collective right" to arms. If this represents an official change in policy, it is significant (and far more significant than the FAA's regulation, which could easily have met the more exacting scrutiny required by an "individual rights" interpretation of the Second Amendment).

As anticipated, a draft ruling from the Food and Drug Administration concludes the meat and dairy products from cloned animals are safe for human consumption. As the Associated Press reports

The government believes "meat and milk from cattle, swine and goat clones is as safe to eat as the food we eat every day," said Stephen F. Sundlof, director of the FDA Center for Veterinary Medicine. Meat and milk from the offspring of clones is also safe, the agency concluded.

If consumers truly care about whether the milk or meat they consume was produced, producers will have an incentive to respond by offering "clone-free" meat and dairy products, and labeling them accordingly. At least one producer, Ben & Jerry's, plans to do just that. The Vermont ice-cream makers already advertise that they do not use milk from cows treated with recombinant bovine growth hormone (rBGH). Even though the use of rBGH has no effect on the milk cows produce, this may influence some consumers (though I suspect the high-milk-fat content is the real basis for Ben & Jerry's' popularity).

The legal standard the FDA uses in determining whether it has the authority to mandate labels is the right one, in my view. If the use of a biotech production method, whether the application of an engineered hormone or the cloning of animal stock, does not result in a difference in the product itself, there is no reasonable basis for mandating that the product be labeled, irrespective of consumer preferences. The range of production methods that are of potential interest to consumers is limitless. In these contexts, what information consumers want should be revealed through the interplay of consumer and producer behavior in the marketplace. In the end, perhaps most clone-derived products will be labeled. If so, it should be due to consumer demand, not government mandate.

Universal Parks and Resorts has jumped on the anti-trans-fats bandwagon. Early reports seem to be positive, but a self-confessed "junk food addict" can taste the difference: "It tastes drier and not too salty," but is still tasty.

Lyle Denniston has an interesting post on Ford's impact on the Supreme Court on SCOTUSBlog.

I promise to blog about what I think of Vista if you add me to your laptop list. (Of course, I can't promise that I'll like it.)

Via Paul Caron comes news that Robert Steinbuch's $20 million lawsuit against Jessica "Washingtonienne" Cutler is headed to trial. Steinbuch is now a law professor at the University of Arkansas-Little Rock, and claims public humiliation due to the claims Cutler made about him, and their sex life, on her salacious blog. Apparently the two sides are wrangling over discovery requests and other pre-trial matters. Among other things, Cutler's attorney is seeking copies of Steinbuch's student evaluations.

The Food & Drug Administration is expected to give the green light to meat and dairy products produced from cloned animals. It is no surprise that biotech boosters like my friend Ronald Bailey cheer this development. Perhaps a bit more surprising is today's endorsement of cloned meat from the Washington Post. Even though polls suggest public unease with the idea of cloned meat, the Post applauds the FDA's focus on the scientific evidence showing the safety meat and dairy products from cloned animals.

Cloning animals with superior genetics will make animal products better and less expensive. Breeders aim to grow genetic twins of animals with desirable traits -- such as leaner, tastier meat -- in order to breed them and improve herds over generations. The only difference between this technique and traditional animal husbandry is the production of a genetic copy at the outset. As more high-quality breeding stock becomes available, the value of such animals will decrease, lowering production costs. Americans who don't want to eat animal products made this way will undoubtedly have the opportunity to do so through niche producers.

The Supreme Court of Ohio has formally reprimanded outgoing Ohio governor Robert A. Taft II today for violations of the Code of Professional Responsibility. As outlined in the Court's unanimous per curiam opinion (one judge not participating), Governor Taft repeatedly violated financial disclosure requirements. Because an investigation concluded that the violations were not deliberate, the only sanction recommended was a public reprimand, a recommendation the Court accepted.

The AP covers the story here. (Link via How Appealing)

After a federal grand jury indicted James Thorpe for being a felon in possession of a firearm in violation of federal law, Thorpe sought to dismiss the indictment on grounds of selective prosecution on account of race. Lacking much evidence to support his claim, Thorpe sought "discovery of all of the government’s files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted." The district court granted the request, but the federal government failed to comply fully with the discovery order, and the court dismissed the indictment.

On appeal, the U.S. Court of Appeals for the Sixth Circuit reinstated the indictment, holding the district court's discovery order was improper. Before he could be entitled to discovery, the Sixth Circuit held, Thorpe was required to show "some evidence" that "similarly situated persons were treated differently" under United States v. Bass 536 U.S. 862 (2002). That most PSN prosecutions in the Eastern Distrcit of Michigan arose from those counties with the greatest African-American populations did not suffice to meet this test.

I wrote another op-ed on the Massachusetts v. EPA case. This one was for a pro/con feature distributed by the McClatchy-Tribune news service. It ran in yesterday's Columbus Dispatch. Here's an excerpt:

A basic principle of our governmental structure is that all legislative powers of the federal government are vested in the legislature. As a consequence, federal agencies, including the EPA, possess only those powers given to them by Congress. Controlling greenhouse gases would be the greatest regulatory undertaking ever contemplated in environmental law. As such, it is simply implausible that Congress would have delegated such authority to the EPA without saying so, yet nowhere does the Clean Air Act explicitly delegate authority to adopt such rules. . . .

The clear intent of the act as amended in 1967 and as subsequently amended in 1970, 1977 and 1990 is to control local and regional air pollution, such as soot and smog. Every time Congress has sought to address a broader environmental concern, such as ozone depletion or acid rain, it has explicitly authorized the EPA to act. Moreover, if carbon dioxide and other greenhouse gases are pollutants for the purposes of Section 202, they are almost certainly air pollutants for the Clean Air Act’s "nonattainment" provisions as well, as the language is virtually identical. Yet the regulatory measures that are required by these provisions — the creation and enforcement of national ambient air-quality standards — are fundamentally incompatible with the regulation of greenhouse gases as such.

Arizona State University's Joseph Feller wrote the opposing article. Here's an excerpt from his piece:

t is not up to the EPA, or the courts, to decide whether automobile emission standards are a wise, reasonable or economical way to control air pollution. Congress decided that automobile-emission standards are a good idea, and instructed EPA to issue them for any air pollutant that endangers the public’s health or welfare.

If Bush’s EPA doesn’t agree with the Clean Air Act, it can ask Congress to change it. Until then, to paraphrase Donald H. Rumsfeld, the EPA should implement the law that Congress wrote, not the one that it wishes Congress had written. And if the EPA refuses to follow the law, then the courts should order it to do so. After all, that’s their job.

The Supreme Court's current term is already sure to be an big one for environmental law. Two major Clean Air Act cases, Massachusetts v. EPA and Environmental Defense v. Duke Energy, should yield important environmental decisions and more may be on the way. As Marty Lederman details on SCOTUSBlog, the Solicitor General has recently filed petitions for certiorari in four environmental cases, including another Clean Air Act case, and has acquiesced to certiorari in two others. Adding just a few of these cases to the Court's dockets would make this a truly major environmental term.

The U.S. Court of Appeals for the D.C. Circuit has granted the petition for rehearing in Murphy v. IRS. In Murphy, a unanimous three-judge panel held unconstitutional a provision of the Internal Revenue Code that taxed as income, compensation for personal injuries unrelated to lost wages or earnings. Note, this is not an En banc rehearing. Rather, the original three-judge panel will rehear the case. Paul Caron has details here. (LvHB)

UPDATE: In my initial post I neglected to note that Orin blogged on the Murphy case here and here.

A well-crafted sci-fi book can be a fun read, but are there many modern science fiction works that would qualify as "literature"? Any science fiction books that would qualify as literary masterpieces?

One benefit of political incumbency has been the ability to dispense goodies to one's constituents. For years, members of Congress larded up appropriations bills with pork barrel projects to curry favor back home. This was the rule during decades of Democratic control of Congress, and when Republicans took over, they did the Dems one better. Republican appropriators piled the pork to new heights. Yet, as the New York Times reports, it is not clear pork barrel politics protected Republican incumbents at the polls.

A timeworn bit of political wisdom has been that larding one’s district with pork projects can act as an incumbency protection program. And the Republican leaders in Congress ardently followed that principle.

“The leadership talked all the time about how we’ve got to use earmarks to help these vulnerable members,” said Representative Jeff Flake, Republican of Arizona, who has become one of Washington’s loudest opponents of earmarking. “But what this election showed was that earmarks just aren’t that important to voters.”

The powers of incumbency could not outweigh far more pressing issues, this year, like the war in Iraq — which became the central point of most of the Democratic campaigns — or the scandals that tarnished the Republican Party as a whole. The abuse of earmarks itself became an issue in several races with some of their biggest users, including two senators and four House members who served on the appropriations committees that oversee federal spending, losing their seats.

The story stresses that it is too early to put a fork in pork, but the tide may be changing. It is also possible that Republicans may be less potent protection for Republicans, particularly insofar as some Republican constituencies are offended by what they perceive as wasteful government spending.

This morning the U.S. Court of Appeals for the Sixth Circuit held in Fieger v. Ferry that infamous Michigan trial lawyer Geoffrey Fieger has standing to challenge the constitutionality of the Michigan Supreme Court's recusal rule, and that his challenge is not barred by the Rooker-Feldman doctrine.

To the extent that Fieger challenges the constitutionality of Michigan's recusal rules by alleging that "[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing," Rooker-Feldman does not bar his action. To that extent, the source of Fieger's alleged injury is not the past state court judgments; it is the purported unconstitutionality of Michigan's recusal rule as applied in future cases. Such a claim is independent of the past state court judgments. Thus, insofar as the district court dismissed Fieger's challenge to the constitutionality of Michigan's recusal rule pursuant to the Rooker-Feldman doctrine, the court's judgment must be reversed.

As background, Fieger hasbeen quite critical of several justices on Michigan's high court, and some of the justices returned fire. Fieger claimed that some of the justices' public comments about him demonstrated their animus against him, and that they should recuse themselves in cases involving him or his clients due to potential bias. In all, Fieger sought the recusal of four Michigan justices.

This is not the only legal development involving Fieger's feuds with the Michigan Supreme Court. Howard Bashman rounds up additional developments here and here.

The Senate Intelligence Committee's investigation concluded that the "Able Danger" allegations that military anlysts identified the 9-11 hijackers before September 11, the LA Times reports.

"Able Danger did not identify Mohammed Atta or any other 9/11 hijacker at any time prior to Sept. 11, 2001," the committee determined, according to an eight-page letter sent last week to panel members by the top Republican and Democrat on the committee.

The Able Danger allegations were championed by Represenative Curt Weldon (R-PA), who lost his bid for reelection in November.

I want a hippopotamus for Christmas
Only a hippopotamus will do
Don't want a doll, no dinky Tinker Toy
I want a hippopotamus to play with and enjoy.

I want a hippopotamus for Christmas
I don't think Santa Claus will mind, do you?
He won't have to use our dirty chimney flue
Just bring him through the front door,
that's the easy thing to do.

I want a hippopotamus for Christmas
Only a hippopotamus will do
No crocodiles, no rhinoceroses
I only like hippopotamuses
And hippopotamuses like me too.

Mom says the hippo would eat me up, but then
Teacher says a hippo is a vegeterian.

Merry Christmas!