October 2005 – Richard Bennett

Alito and the rights of fathers

It appears that the dissent Alito wrote in Casey is going to play very heavily in the discussion on his confirmation. So here’s a link to it and a bit of the essence: My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 … Continue reading “Alito and the rights of fathers”

It appears that the dissent Alito wrote in Casey is going to play very heavily in the discussion on his confirmation. So here’s a link to it and a bit of the essence:

My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 & Supp.1991), results from disagreement about the portion of Justice O’Connor’s two-part test that must be applied to this provision. Under that test, as the majority explains, a law that imposes an “undue burden” must serve a “compelling” state interest. By contrast, a law that does not impose an “undue burden” must simply be “rationally” or “reasonably” related to a “legitimate” state interest. The majority holds that Section 3209 constitutes an undue burden. The majority therefore applies the first prong of the two-part test and strikes down Section 3209 on the ground that it does not serve a “compelling” interest. I do not believe that Section 3209 has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that Section 3209 is constitutional because it is “rationally related” to a “legitimate” state interest.

Although the majority and I apply different prongs of this two-part test, I see no indication that we disagree concerning the conclusion produced when either prong is applied to Section 3209. If the majority is correct that Section 3209 must satisfy heightened scrutiny, I agree that its constitutionality is doubtful. Similarly, I do not interpret the majority opinion to mean that Section 3209 cannot satisfy the rational relationship test. Indeed, the majority acknowledges that Section 3209 serves a “legitimate” interest. See majority opin. at 715, 716. Thus, my major disagreement with the majority concerns the question whether Section 3209 imposes an “undue burden,” and I will therefore turn to that question.

It strikes me as well-researched and well-reasoned, and if there’s a problem behind it at all it’s in the vagueness of O’Connor’s concept of “undue burden.”

Eolas ruling affirmed

The Supreme Court has declined to get involved in the Eolas case: WASHINGTON — The U.S. Supreme Court Monday refused to hear an appeal from Microsoft Corp. challenging the methodology under which damages were calculated in a patent lawsuit filed by Eolas Technologies Inc. and the University of California over features in the software giant’s … Continue reading “Eolas ruling affirmed”

The Supreme Court has declined to get involved in the Eolas case:

WASHINGTON — The U.S. Supreme Court Monday refused to hear an appeal from Microsoft Corp. challenging the methodology under which damages were calculated in a patent lawsuit filed by Eolas Technologies Inc. and the University of California over features in the software giant’s Web browser.

Rejection of the appeal leaves the fate of the lawsuit in a U.S. District Court in Virginia, which was earlier this year ordered by a federal appeals court to hold new proceedings on the disputed patent technologies in Microsoft’s Internet Explorer. That March ruling threw out portions of the ruling against Microsoft, which included a $521 million damages award that with interest grew to $560 million.

That’s it for Microsoft, now it’s “pay, pay and more pay.” This is what happens when you create a massive software giveaway program just to kill a rival.

AOL Founder Case Resigns From Time Warner Board

Here’s one of those “end of an era” things: America Online co-founder Steve Case resigned from the board of Time Warner Inc., five years after the media giant’s painful merger with the Internet service he helped create. The AOL takeover of Time/Warner was emblematic of the irrational exuberance of the dot com bubble (some would … Continue reading “AOL Founder Case Resigns From Time Warner Board”

Here’s one of those “end of an era” things:

America Online co-founder Steve Case resigned from the board of Time Warner Inc., five years after the media giant’s painful merger with the Internet service he helped create.

The AOL takeover of Time/Warner was emblematic of the irrational exuberance of the dot com bubble (some would say “swindle”), and Case’s departure from the TW board says dot com foolishness is all over.

OK, let’s get on with VoIP and home media networks.

Valuable endorsement

I’m sure the endorsement of the Gun Owners of America will help Judge Alito: Judge Samuel Alito, Jr., in the Third Circuit, has argued that Congress has no right to regulate the private possession of machine guns. Cool. HT Billy the Quick

I’m sure the endorsement of the Gun Owners of America will help Judge Alito:

Judge Samuel Alito, Jr., in the Third Circuit, has argued that Congress has no right to regulate the private possession of machine guns.

Cool.

HT Billy the Quick

Scalito!

The dude is a federalist: In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses. …and only 55 years old. The hysterical reaction is going to be … Continue reading “Scalito!”

The dude is a federalist:

In the early 1990s, Alito was the lone dissenter in
Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

…and only 55 years old.

The hysterical reaction is going to be fun to watch. One case they don’t want you see is this one:

A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), holding that an Iranian woman seeking asylum could establish that she had a well founded fear of persecution in Iran if she could show that compliance with that country’s “gender specific laws and repressive social norms,” such as the requirement that women wear a veil in public, would be deeply abhorrent to her. Judge Alito also held that she could establish eligibility for asylum by showing that she would be persecuted because of gender, belief in feminism, or membership in a feminist group.

Oops. HT Jeff Goldstein.

Appellate law blogger Howard Bashman knows Alito and likes him:

A first for the Third: Not only is Circuit Judge Samuel A. Alito, Jr. President Bush’s third nominee to replace Justice Sandra Day O’Connor, but Judge Alito is also the first judge serving on the U.S. Court of Appeals for the Third Circuit ever to have been nominated to serve on the U.S. Supreme Court.

The Philadelphia-based Third Circuit is, of course, the federal appellate court before which I practice most frequently, and I know Judge Alito well. At some point over the days to come, I will explain why I enthusiastically support this nomination. For now, my wife (who thinks Judge Alito is a great person, too) and I just want to take a moment to wish Judge Alito well in the days ahead, for he is a truly kind, intelligent, and compassionate person who undoubtedly will serve the Nation with great distinction on the Supreme Court just as he has served to this point with great distinction as a U.S. Court of Appeals judge.

So that’s another “yes” vote from the blogosphere. HT Baseball Crank.

In addition to being vaguely racist, the Scalito label isn’t especially accurate:

The conservative bent of judge Sam Alito, who President Bush nominated this morning to the U.S. Supreme Court, has prompted facile comparisons to Justice Antonin Scalia, arguably the most stridently conservative member of the court. But clerks and associates say the comparison, often made with the derisive nickname of “Scalito,” does a disservice to the man. “I think he really looks at the facts of the case; he’d be very realistic,” says former clerk Katherine K. Huang. “He doesn’t have his head in the clouds. He’s not going to be carried away by some legal doctrine or some arcane grammatical rule.” Huang is refering to a little-known Social Security case in 2002 which may be instructive when it comes to comparing Alito to Scalia.

In that case, Alito argued passionately with other members of the 3rd Circuit Appeals Court that a disabled woman, Pauline Thomas, should be granted benefits because she had been laid off from her job as an elevator operator and could not find a new job since the position of “elevator operator” had virtually disappeared from the economy. A lower court had ruled that a narrow and technical reading of the Social Security statute did not entitle Thomas to benefits. Alito called this result “absurd” and overrode the objections of several of his colleagues and convinced the full 3rd Circuit to overturn the lower court decision.

Alito’s passion didn’t move the Supreme Court, however, which overturned his decision in 2003. In a pointed rejection of Alito’s opinion—accusing him of “disregarding” basic grammatical rules for interpreting the law—the Supreme Court fell back on the narrow and technical reading and denied Thomas her Social Security benefits. The author of this stinging rebuke to Alito? Justice Antonin Scalia.

From your well-know righty rag, Time.

Cost of Fitzgerald investigation

One of the crazy factoids that’s buzzing around the left side of the blogosphere says that Fitzgerald’s investigation into the Joe Wilson matter only cost $723,000. It’s been on Daily Kos and 30 other blogs, and widely used by Air Hysteria’s hosts. It’s based on a sloppy reading of a story in the Washington Post: … Continue reading “Cost of Fitzgerald investigation”

In its first 15 months, the investigation cost $723,000, according to the Government Accountability Office.

But it’s not true.

GAO does report on some of the expenditures of Special Counsels, but their reports don’t come out for a year after the expenditures are made. Every six months, they issue a report on the expenditures that were made in a six month period ending six months before the report, so we don’t have figures for the past year.

The reports that we do have are pretty sketchy, as they don’t include all the personnel costs associated with government employees, like Fitzgerald himself, for example.

Fitzgerald started in Dec. 03, and the report for the period ending Mar 04 shows personnel costs of only $13,330. That’s one cheap lawyer.

In the next six months, ending Sept 2004, Fitzgerald got his operation ramped-up and charged $584,899, again exclusive of certain personnel costs for government employees.

In the next half-year, Fitzgerald charged $112,550 plus an additional $35,195 for Justice Department lawyers and an unspecified amount for FBI investigators:

Also, certain costs were incurred by detailees from the Federal Bureau of Investigation involved in the investigation but the associated costs were not readily identifiable. Such costs of detailees are not reflected in the statement of expenditures

So that’s already $759,236 not counting FBI agents and anything that happened since March of this year. Certainly, the costs are in the millions already, but we won’t know the basics for a year, and even though we won’t know the whole story. One thing is clear, however: the costs of this investigation are already a lot more than the figure used by the Kossacks.

And yes, this type of investigation is cheaper than Ken Starr’s, but no more substantial.

My sentiments exactly

Politechnical nails it: Not Scooter Libby! I’m crying now. When I voted for Bush, Libby’s presence in the administration was key to my vote. I had been 99% for John Kerry until I learned that Libby would be staying over in a second Bush administration. Well, that’s enough for me. Heh heh heh.

Politechnical nails it:

Not Scooter Libby! I’m crying now. When I voted for Bush, Libby’s presence in the administration was key to my vote. I had been 99% for John Kerry until I learned that Libby would be staying over in a second Bush administration. Well, that’s enough for me.

Heh heh heh.

Now the fun starts

Whoopee! Moveon.org, the organization that was started to protect Bill Clinton from the consequences of lying to a Grand Jury, is on the warpath to promote the idea that lying to a Grand Jury really is a big deal after all. So what’s going to be more fun, liberals changing their tune about lying, or … Continue reading “Now the fun starts”

So what’s going to be more fun, liberals changing their tune about lying, or conservatives changing theirs? We’ll see.

Clinton, Stewart, and now Libby

Special prosecutor Patrick Fitzgerald spends two years investigating press leaks and comes away with nothing more than a face-saving indictment on a charge slightly more serious than jaywalking. There was no charge for any crime directly related to the disclosure of any secret identity or any misuse of classified information. The official in question, Scooter … Continue reading “Clinton, Stewart, and now Libby”

Special prosecutor Patrick Fitzgerald spends two years investigating press leaks and comes away with nothing more than a face-saving indictment on a charge slightly more serious than jaywalking.

There was no charge for any crime directly related to the disclosure of any secret identity or any misuse of classified information. The official in question, Scooter Libby, has resigned and presumably a trial will follow on his alleged Clintonian Grand Jury behavior.

This is much less than the self-identified informed sources lead us to believe was coming, so the credibility of such people as Arianna Huffington, Larry O’Donnell, Markos Zuniga, and Josh Marshall is nullified.

Fitzgerald says his investigation was “more serious than baseball” but fails to prove it. He’s from Chicago, and we know what that means. The Fifth Amendment takes a beating, as it did in the case of Clinton’s lies to the Grand Jury and Martha Stewart’s lies to the FBI. Why even ask questions that require the subject of the investigation to incriminate himself?

Even the mainstream media is not impressed by this outcome:

The charges in the Friday indictment are similar to the ones used in Martha Stewart’s criminal case. She was convicted last year for obstructing justice and lying about why she sold ImClone Systems stock, just before a negative government decision on an ImClone drug. She served a five-month prison term followed by home confinement.

This is no Watergate, it’s one guy acting on his own, essentially a case of “nothing to see here, move along.”

What a waste of the taxpayers’ money.

UPDATE: It’s also worth noting, of course, that Scooter is innocent until proven guilty. What we actually have in the indictment is Scooter’s claim that he learned about Plame from a reporter, and Fitzgerald’s claim that he learned about it from Cheney. What if both are true? I would assume in that case that Scooter walks, and it’s not an unlikely scenario.

UPDATE 2: See the indictment here. It’s pretty thin. See Jeff Goldstein for a great link round-up.

Savoring victory

The coolest thing about the defeat of the Miers nomination is seeing neo-blogger Hugh Hewitt get all self-righteous in his whining about how close it brings us to the collapse of civilization as we know it. And it’s right for Hewitt to complain, because the Miers defeat (or victory, if you oppose incompetence on the … Continue reading “Savoring victory”

For once in his presidency, Bush has refused to “stay the course” when doing so would have meant certain disaster, so one of the biggest cudgels used against Bush by his enemies has been reduced to a wet noodle. We aren’t staying the course in Iraq because that’s the only way Bush nows to act, it’s because it’s the right thing to do. So Bush wins by losing.

Hewitt loses by displaying the kind of blind partisanship that we’ve come to expect of left-wing bloggers, and that crowd loses on the same count as well.

And second to the fun of seeing Hewitt squirm is the fun of seeing Kos and his Chief Lieutenant Armando go at each other tooth and claw.

So it’s a good day all around.