3 June 2009 @ 8:49AM >> Joe Paladino of Lake Mary, Florida e-mailed in response to my piece on President Obama’s choice for the Supreme Court, Sonia Sotomayor. And, no, the reason I’m posting this is not because of the first paragraph... I keep telling myself.

Joe writes:

First off, let me say that I love your site. There have been very few times were I seem to disagree with your posts. But what I like most is that you seem fair with the issues you write about and present all facts, then state your opinion. And still have time acknowledge the letters of those who disagree with you, even though there have been instances when they don’t seem worthy of anyone’s time. That is far more than I can expect from many other sources.

But for this most recent post, I have to express opinion. To most people, this nomination seems to clearly be a case of affirmative action. Understand that I’m certainly not doubting her qualifications, which may be sufficient. Of course that is to be decided during the Senate confirmation hearing. However, what infuriates me (and should disturb her as well) is that Sotomayor was only considered on the luck that she is female, and better yet, Hispanic. I believe it is safe to say that a majority of this country has no problem working and going to school with whoever desires to be there, so long as they deserve to be there. And by that I don’t mean because a college Dean or the President of the United States wants to even things out a bit.

This inforrmation you provide about her outrage while in college concerning the lack of hispanic students on campus is ridiculous. How is it anyone’s fault that only 66 Puerto Ricans applied to Princeton that year? Perhaps her time would have be better spent encouraging the potential students to consider Princeton as the college of choice. To support my argument I’m going to quote a great man who’s influence is still seen today though the messge is often passed over.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.—Martin Luther King, Jr.

I think it is safe to say that the way our colleges, and appearently supreme courts, are run is not exactly what Dr. King had in mind. It’s common sense that we should judge all people by their character. But it is absurd that in the year 2009 people still want racial equality, unless of course you are white. We already had our run.

But I don’t suppose I can blame her. It would take a extraordinary person turn down such an incredible opportunity and immense honor.

But a black man now holds the highest office in the land. While that certainly does not undo all of the racial oppression this country has seen, it does show that Americans are ready to move forward. Unfortunately, there are some who still think that things just aren’t fair yet.

1 June 2009 @ 7:41AM >> In the mid-1970s, Sonia Sotomayor—President Obama’s nominee for a seat on the Supreme Court—was a student at Princeton. Back then, when Sotomayor led a group called Acción Puertoricaño, she was an “outspoken activist” well-versed in the language of leftism and identity group grievance politics.

In a letter to the Daily Princetonian published 10 May 1974, she describes a complaint from “the Puerto Rican and Chicano students of Princeton”:

The facts of the complaint are these: 1) There is not one Puerto Rican or Chicano administrator or faculty member in the university; 2) There are two million Puerto Ricans in the United States and two and a half million more on the island itself. Yet there were only 66 Puerto Rican applicants this year, and only 31 Puerto Rican students on campus. While there are 12 million Chicanos in the United States, there were only 111 Chicano applicants and 27 students on campus this year; 3) Not one permanent course in this university now deals in any notable detail with the Puerto Rican or Chicano cultures.

Although she herself was a Puerto Rican student receiving a free ride on a full scholarship, Sotomayor concluded that a “lack of commitment on the part of the university to the Puerto Rican or Chicano heritage seems self-evident” and that it “reflect[s] the total absence of regard, concern and respect for an entire people and their culture.”

Hyperbole comes naturally to the college-aged, so I’m willing to believe that the Sotomayor of the Woodstock era is not the woman who sits on the court today because, as she might say, I would hope that an older Latina woman with the richness of her experiences would more often than not reach a better conclusion than a young Puerto Rican girl who hasn’t lived that life.

Legal blogger Tom Goldstein conducted a survey of her record on the court of appeals, where he says “Sotomayor has decided 96 race-related cases.” Sotomayor has been on the United States Court of Appeals since 1998, where she serves on panels of (typically) 3 judges that hear each case. Goldstein’s survey found:

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous.

If that’s true and is reflective of her record being better than her rhetoric, then that’s a bit of a relief. And although there is at least one highly-controversial racial discrimination decision in the record Goldstein cites, the fact is, Republicans don’t have the political juice to oppose her anyway. So, barring Obama withdrawing her for some reason or a new fact emerging that moves enough Democrats to vote against her, Sotomayor will be confirmed.

Nevertheless, her seeming inevitability doesn’t mean that Sotomayor should get a pass for her rhetoric or her fierce support of affirmative action and racial preferences in hiring. Her philosophy on racial preferences and “social justice” should be questioned thoroughly during her Senate confirmation hearings.

Since Sotomayor endorses the idea that a judge’s ethnic background affects judicial decision-making, shouldn’t we know how her heritage has influenced her thinking in cases she’s judged? Could she point to specific cases where “being a Latina woman” lead her to a “better” decision than a “white male” would have made?

I don’t expect the Democratic majority to ask these questions, so Republicans should. That is the minimal duty of an opposition party. We’ll see if they have the stomach to do it.

26 May 2009 >> Reverend Jeremiah Wright’s most famous congregant dishes out another heaping helping of racial healing with his Supreme Court pick:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.—Judge Sonia Sotomayor,
President Barack Obama’s nominee for the Supreme Court

Apparently, however, Judge Sotomayor was not referring to herself.

6 August 2008 @ 8:58AM >> One year ago tomorrow, I was sued for defamation and interference with contract by a laundromat located in my former apartment building. For a while, my fiancee and I were customers of Todd Layne Cleaners until we tired of its rude and incompetent service. Eventually, I came to the informed conclusion that Todd Layne Cleaners “sucks” and is “overpriced.”

For expressing these two opinions to the neighbors in my building, a creature named Todd Ofsink, the “Todd” in Todd Layne Cleaners, sued me. (You see, Todd is fortunate enough to have a brother, Darren, who owns a big Madison Avenue law firm called Guzov Ofsink. Darren Ofsink’s firm is representing brother Todd.)

In response to the lawsuit, I created a website called ToddLayneCleanersSucks.com where I documented the case and the incidents that led up to it. This caused Ofsink to increase the damages in his lawsuit; instead of suing me for $20,000, it became $300,000.

I generally don’t write about my personal life on this site, but I wrote about this case last October after the New York Post got wind of it. And now that the case is approaching its one year mark, I thought it was time for an update.

The case is still ongoing, oozing through the courts with all the speed of cold molasses.

Initially, the court threw out Ofsink’s defamation claim, upholding my constitutional right to express my opinion about his business. The court should have thrown out the interference with contract claim too; that claim was just a smokescreen for the dismissed defamation claim.

Why is the case still alive? Because courts are reluctant to dismiss a case before the plaintiff has had an opportunity to gather evidence. The evidence-gathering phase is called “discovery,” wherein each side is allowed to demand evidence from the other. After the discovery phase is complete, I will have an opportunity to move the court for summary judgment. If I am successful, the case won’t proceed to trial, but instead, will be dismissed.

In my discovery demands, I asked for several things, including financial records to support Ofsink’s claim that my criticism of his business caused him to lose hundreds of thousands of dollars. I also asked for the store’s security camera tapes, because Ofsink swore under oath that I attempted to disrupt his business by “simulating masturbation” within his store. Later, Ofsink tacitly admitted his statement was false by recasting his earlier characterization as merely a “euphamism.”

Ofsink misled the court by making false sworn statements under oath, which is why he refuses to turn over the store’s security camera tapes or anything else. He knows that if caught lying to the court, he could be subject to monetary sanctions, or even criminal prosecution for perjury.

The deadline to produce discovery was in mid-February. Not surprisingly, nearly half-a-year later, Ofsink still hasn’t produced any of the required documentation. (Meanwhile, I’ve responded to his discovery demands in good faith, turning over 116 pages of documents he requested.)

Ofsink’s excuses for violating his discovery obligations are comedic. The following gives you a sense of his petty antics. (My requests are at the top of each scan, followed by his response.)

As you can see from these responses, Ofsink isn’t even willing to turn over evidence documenting his own claims. His strategy is to drag this case out as long as possible, hoping that I will eventually buckle and sign a non-disparagement agreement. That’s what he demands in exchange for dropping the case.

In other words, Ofsink will only stop using his brother’s law firm to harass me for engaging in free speech if—and only if—I agree to sign away my right to criticize his business.

It ain’t gonna happen.

In the meantime, I’ve filed a motion asking the court to compel Ofsink to comply with discovery, and I’m awaiting the court’s decision. That’s where things stand now.

The wheels of justice grind slowly, and the cost of exercising one’s most basic rights can sometimes be quite high. But if people don’t stand up to the Ofsinks of the world, we won’t even have the right to criticize lousy service from our local cleaners.

For an overview of the case, visit ToddLayneCleanersSucks.com.

10 January 2008 @ 6:37PM >> A few years back, I interviewed Michael Moore and asked him if Fahrenheit 9/11 should be considered a political advertisement, and if so, whether campaign finance laws should apply. Moore admitted the film contained his opinions, but that his film should be treated like an op-ed in the paper.

During the 2004 election, neither ads for the Bush-bashing Fahrenheit 9/11, nor the film itself were regulated under campaign finance laws.

But now that there’s a new film about Hillary Clinton, all of a sudden, campaign finance laws do apply to political perspective films:

The early reviews are in, and three federal judges appeared in agreement Wednesday that a movie lambasting Hillary Clinton seemed an awful lot like a 90-minute campaign advertisement.

Citizens United, a conservative advocacy group, is challenging the nation’s campaign finance laws, which require disclaimers on political advertisements and restrict when they can be broadcast. The group argues “Hillary: The Movie” and related television advertisements are not political advertising even though the New York senator is in the presidential race.

Attorney James Bopp argued that they should be considered “issue-oriented” speech because viewers aren’t urged to vote for or against the Democrat.

[...]

The movie is scheduled for two screenings in theaters, once each in California and Washington. It is also being sold on DVD. Neither of those methods are regulated under campaign laws. The advertisements, however, are scheduled to run during the peak presidential primary season and would be regulated.

Bopp, who successfully led a challenge to one aspect of the campaign finance system last year, compared the film to television news programs “Frontline,” “Nova,” and “60 Minutes.” That prompted Lamberth to laugh out loud from the bench.

“You can’t compare this to ‘60 Minutes,’” the judge said. “Did you read this transcript?”

The movie features commentary from conservative pundits, some of whom specifically say Clinton is not fit to be the nation’s commander in chief.

The content of the film is irrelevant; if the film merely expresses opinions, it is protected constitutional speech. And if it is factually inaccurate in a way that is defamatory to Hillary Clinton, she has legal recourse for that.

It shouldn’t matter whether a film is made by a Hollywood insider like Michael Moore or an issue-based outfit like Citizens United. Groups like Citizens United—on the right and the left—are formed by private citizens with a common goal of promoting their shared ideas. The speech of Citizens United should not be more regulated than the speech of any of its individual members—or any other private citizen for that matter.

All filmmakers—in fact, all citizens who value their free speech rights—should be concerned about this decision. Michael Moore should be concerned. Because even though he has the benefit of Hollywood’s infrastructure and support (and therefore has no need to become involved with an organization like Citizens United), his films are financed and distributed by corporations that may one day find themselves subject to the same regulations now being imposed on Citizens United.

Any attempt to regulate political speech is direct assault on the First Amendment.

29 November 2007 >> Last week, I linked to a Denver Post story detailing the ordeal of Don and Susie Kirlin, a Boulder couple who’ve been living in the city for 27 years. The Kirlins recently had a substantial chunk of their land taken away from them by the legal maneuverings of their well-connected politician neighbors, Richard McLean and wife Edith Stevens. You see, McLean and Stevens wanted that land for themselves. And thanks to a friendly judge and an obscure legal doctrine called “adverse possession,” they were able to seize the land from the Kirlins.

A reader wrote in with a little more background about this case:

Evan,

Just some notes I found while poking around on the internet about this case. I don’t know anyone involved, everything I know came from Google searches. It just infuriates me that someone could do this.

1) The Kirlins claim that they have satellite photos proving that the paths that McLean “developed” didn’t exist until a year ago.

2) Edith Stevens is a former Chairwoman of the Boulder Democratic Party and is still active in local politics. In fact, one of the claims that she uses to justify the land grab is that she used the land to stage political fundraisers. I’d be interested to find out which politicians benefited from her land grab.

[Link]

Edith Stevens has resigned as campaign treasurer for State House Representative Claire Levy (Democrat).

[Link]

3) Levy appears to be yet another trial lawyer turned politician. From her website:

[Link]

“I also worked with legislators on bills related to local government land use authority. Our goal was to retain flexibility for local governments to address their unique problems during a time when the state legislature wanted to take tools away from local government in favor of developers.”

Presumably Don and Susie Kirlin, in this case, are the developers. They’re a family trying to build their dream home. “Local government” in this case are the courts and politicians. This isn’t eminent domain or overzealous land use regulation, but it’s all part of the same picture— usurping property rights in the name of “public good”. After all, where would we hold our democratic fundraisers if Don and Susie build their house?

4) Two points seem to be getting lost in the comment threads on the sites I’m reading. First, this is NOT an open and shut case. Apparently, the Kirlins claim to have convincing evidence that key facts were misrepresented (that is, aerial photography disputing when the footpaths were created). Second, over and above the legal question is the ethical question. The Kirlins aren’t 17th century English barons, fencing off the commons and evicting the commoners. They’re neighbors. McLean and Stevens might win in the courts—in fact with their political clout it seems likely they will—but that doesn’t make taking what isn’t theirs morally right.

Rob in Atlanta

21 November 2007 >> An example:

[Don and Susie Kirlin] moved to the city in 1980. A few years later, the Kirlins purchased a plot of land near their residence, hoping to someday build a “dream home.”

“We took advantage of the market in the early ’80s,” says Susie Kirlin, almost apologetic for making a smart investment.

Children interfered slightly with the master plan - three of them in the next few years - postponing any development of the property.

As the children began to make their own way in life, the couple decided it was time to finally develop the property in late 2006.

By then, it was too late.

Despite owning the land, despite living only 200 yards from the property, despite hiking past it every week with their three dogs, despite spraying for weeds and fixing fences, despite paying homeowner association dues and property taxes each year, someone else had taken a shine to it. Someone powerful.

Former Boulder District Judge, Boulder Mayor, RTD board member - among other elected positions - Richard McLean and his wife, attorney Edith Stevens, used an arcane common law called “adverse possession” to claim the land for their own.

All McLean needed was to develop an “attachment” to it.

Undoubtedly, his city connections couldn’t have hurt, either.

In the court papers, McLean and his family admit to regularly trespassing on the Kirlins’ property.

They created paths. They said they put on a political fundraiser and parties on it (though not a single photograph of these events surfaced in court documents).

This habit of trespassing developed into an affection.

If we take McLean at his word, he should have been treated appropriately: like a common criminal. Instead, the former judge demanded a chunk of the land for himself - and implausibly he got it.

[...]

When the couple began building a fence on the land - which is within Boulder city limits, not out in the wilderness - McLean was able, according to the Kirlins, to obtain a restraining order in an exceptionally speedy 2 1/2 hours.

Boulder District Judge Morris Sandstead, who served with McLean, issued the restraining order quite swiftly.

Serendipity, I guess.

All of this adds up to District Judge James Klein ordering the Kirlins to sign over about 34 percent of their 4,750-square-foot lot to McLean and his wife last month.

“Now the lot is just about worthless,” explains Don Kirlin. “We estimate the land was worth about $800,000 to a million dollars. Now, we can’t build anything on it.”

Update: A reader wrote in with some additional background about this case.

7 October 2007 @ 11:32AM >> The old saying goes, when life hands you a lemon, make lemonade.

Well, sometimes, life hands you a bushel of lemons, a block of ice, a bag of sugar, a nice big pitcher, and a whole bunch of cups.

This happened to me recently, when I became the target of a lawsuit that goes to the heart of what it means to have the right to share your opinions with your fellow citizens.

For the past four years, in putting together the film Indoctrinate U, I investigated administrative abuses against free speech and free thought rights on college campuses. To me, the topic is of vital importance to our nation’s health.

If a generation of students graduates into a society riven by a worsening political divide, what would the effect on that society be if those students were never afforded the opportunity to engage in real, down-and-dirty debate in the one venue where people can pursue a life of the mind? Eventually, you end up with a society that fears free speech, because its citizens have gotten used to being protected from the uncomfortable aspects of hearing things that they vehemently oppose. By coddling students and attempting to shield them from reality by stifling certain speech, academia is directly contributing to a diminishing respect for free speech in the larger society.

On campus, administrators and student mobs do the dirty work of shutting down speech that falls outside what academics consider to be the realm of acceptability. Around the world, we see instances where governments, police and military forces put people to death for having the wrong thinking. These sorts of transgressions happen relatively infrequently in Western society, but that doesn’t mean there isn’t a clear and present threat to free speech.

In hyper-litigious Western nations, courts are often the weapon used to shut people up. But instead of this weapon being wielded by the state, courts are used by corporations, non-profits, accused terrorists financers and even newly-invented religions to tamp down criticism of various kinds.

Out of necessity, while putting together Indoctrinate U, I immersed myself in trying to understand the legal ramifications of speech. I knew that the film would anger a lot of folks at institutions that have lawyers on retainer. I knew we could be targeted legally whether justified or not.

But it turns out, it wasn’t Indoctrinate U that got me dragged into court. It was a dispute with a dry cleaner, of all things.

Today’s New York Post, which heard about the case after the plaintiffs filed to have the case moved to New York Supreme Court, contains a short piece on the story.

I was originally sued for $20,000 for the words, “Todd Layne Cleaners sucks and is overpriced.” Admittedly, my words were juvenile and, to some, offensive. But as a statement of opinion—an opinion formed after a long string of negative experiences with this cleaner—it is quite clearly constitutionally protected speech.

But Todd Ofsink, the owner of the cleaners, sued me for expressing my well-grounded displeasure with his business. Fortunately for Ofsink, his brother Darren is an partner in the law firm of Guzov Ofsink. So he is getting an endless supply of legal work from his brother’s firm, presumably for free. Ofsink knows that I would have to pay to defend my right to criticize his business, so he figured I’d be an easy target. His attorney brother told me that if I signed a non-disparagement agreement—in effect, giving up the right to criticize his business—he would drop the lawsuit.

They were hoping that I would do what most people would do: sign the agreement, end the case, put it out of my misery, and not waste tens of thousands of dollars defending a right that’s guaranteed to me as a U.S. citizen.

I decided to try to fight the case myself, without an attorney representing me in court. I didn’t want to spend tens of thousands of dollars to defend a right that I already had, but I also thought it would be an interesting test. After all, I knew I wasn’t the only person who’s been sued for expressing displeasure with a business.

What would other people do in such a case? Would they fight it themselves? Or would they buckle under and sign away their rights to a bully? And if they decided to fight, is the legal system today even accessible to the individual, or has the law in our society become so professionalized and abstracted from daily life that individuals have no way to defend themselves?

This brings me back to the lemonade. Although this nuisance lawsuit has brought me much personal agitation, it also perfectly illustrates the troubles faced by many others. I could be a guinea pig going through this aggravating process to demonstrate whether or not the average citizen can navigate the legal process to defend the rights enumerated in constitutional law.

Morgan Spurlock subjected himself to a month of McDonald’s for Super Size Me. If I was going to be subjected months and months of a convoluted legal process, maybe some good could come out of it by incorporating the story into a film.

One of the things that inspired me when making Indoctrinate U was all the students whose academic careers were in jeopardy—simply for having the wrong views—who fought back and won. Most people end up backing down when confronted with a system aligned against them. Those were the stories we never heard, because the people involved went away quietly and defeated. But by putting some of the people who stood up and prevailed on screen, I hoped to encourage others to fight for their right to think freely. Little did I know that those same students would inspire me to defend my own rights of free speech.

Perhaps my story could serve as a lesson for others. Unfortunately, I don’t know what that lesson is, because the story isn’t over. I’m still fighting it in court, and Todd Ofsink, his attorney brother Darren, and their courtroom litigant Damien Matthew Bosco, keep trying to ratchet up the pressure.

After filing the original lawsuit against me, Ofsink found out through my court filings that I was a documentary filmmaker. He also discovered that I’m not exactly politically in tune with most of my fellow New Yorkers.

Suddenly, Ofsink filed a new motion with additional accusations that were not included in the original complaint. He claims, for example, that I “simulated masturbation in front of female employees.” But Ofsink also made the mistake of claiming to have security cameras covering the store, which allows me to make this challenge: put the security tape online. What the world will see is an angry former customer making a dismissive hand gesture after Todd Ofsink makes his initial threat to sue me.

Once he leaned about my filmmaking career, Ofsink also jacked up the amount of money he’s trying to take from me: now it’s $300,000!

I hate to tell them, but in all these years of service, I have still not received my first check from the Vast Conspiracy. Being a documentary filmmaker is not lucrative unless you can get Hollywood to distribute your films. And as I can tell you, that’s not easy for someone of my pursuasion. So if jacking up the cost of his attempt to use the legal system to extract more money from me, he won’t be too happy to hear about the state of my finances.

But I’m not convinced that their motivation is money. It seems clear to me that their maneuverings are calculated to pressure me into signing the non-disparagement agreement that they have now offered me twice. They are just trying to use the legal system to shut down legitimate criticism of their business.

Sorry, gentlemen, it’s not going to happen. I will not sign away my rights. If you insist on fighting this ludicrous case, then I will keep fighting it until I win. Your lawyers will lose to a guy representing himself with no legal degree, but who has the law on his side. In this country, I am still allowed to criticize businesses that provide lousy and rude service. I am still allowed to tell my neighbors all about it. So, you can either drop the case and save yourselves further embarrassment, or you can continue trying to put the screws to me and in the process give me a great story to tell the world.

Where will this end up? Who knows! All I know is that I wish it weren’t happening. But because it is, then maybe some other folks might benefit from watching my experience—whatever my experience ends up being.

18 July 2007 @ 12:44PM >> American Journalism Review covers the professional fallout (or lack thereof) from the Duke non-rape case:

Michael B. Nifong—the district attorney who pursued Seligmann, Finnerty and teammate David Evans even as evidence of their innocence mounted and his case imploded—was held accountable for his actions. Hours after Seligmann testified, Nifong announced his intention to resign; the next day, he was disbarred.

The media incurred no such penalties. No loss of license, no disciplinary panels, no prolonged public humiliation for the reporters, columnists, cable TV pundits, editorial writers and editors who trumpeted the “Duke lacrosse rape case” and even the “gang-rape case” in front-page headlines, on the nightly news and on strident cable shoutfests.

Of course, Nifong had information and power the media did not. His failing in the case cannot be overstated, nor can it be equated to that of a throng of journalists and pundits, however odious some of their reporting and commentary. But the media deserve a public reckoning, too, a remonstrance for coverage that—albeit with admirable exceptions—all too eagerly embraced the inflammatory statements of a prosecutor in the midst of a tough election campaign. Fueled by Nifong, the media quickly latched onto a narrative too seductive to check: rich, wild, white jocks had brutalized a working class, black mother of two.

“It was too delicious a story,” says Daniel Okrent, a former New York Times public editor, who is critical of the Times’ coverage and that of many other news organizations. “It conformed too well to too many preconceived notions of too many in the press: white over black, rich over poor, athletes over non-athletes, men over women, educated over non-educated. Wow. That’s a package of sins that really fit the preconceptions of a lot of us.”

As with so many stories, lies that fit the media’s preconceptions were reported, while contradictory facts were ignored. It’s just another example of how a lack of intellectual diversity in the establishment press results in a shoddy product. It seems that too many media organizations don’t have anyone in the newsroom challenging the preconceptions that led to this journalistic fiasco.

In this case, the reputations of the accused were destroyed, and they will never be fully restored. The prosecutor’s malfeasance was amplified by reckless reporters who pushed an ideological storyline about race, class and gender. The prosecutor has been punished, but none of the reporters faced any consequences. They’re still employed, ready to distort the next story.

7 June 2006 >> The Associated Press reports:

A judge said a 5-foot-1 man convicted of sexually assaulting a child was too small to survive in prison, and gave him 10 years of probation instead.

His crimes deserved a long sentence, District Judge Kristine Cecava said, but she worried that Richard W. Thompson, 50, would be especially imperiled by prison dangers.

“You are a sex offender, and you did it to a child,” she said.

But, she said, “That doesn’t make you a hunter. You do not fit in that category.”

[...]

“I want control of you until I know you have integrated change into your life,” the judge told Thompson. “I truly hope that my bet on you being OK out in society is not misplaced.

The problem with Judge Cecava’s logic is, once we start exempting People of Compactness from going to jail, eventually the only people in jail will be People of Altitude, who will then file a class action lawsuit prohibiting all jail time, saying that it discriminates unfairly against the tall.

Come to think of it, doesn’t this also insult People of Compactness by saying that they’re not tough enough to handle time behind bars? I wouldn’t want to be standing near Gary Coleman if you were to tell him he’s too much of a wimp for jail.

17 May 2006 >> This week’s Chutzpah Award goes to the government of Mexico, which is threatening to bring lawsuits against the U.S.—in our own courts—for enforcing American immigration laws:

Mexico warned Tuesday it would file lawsuits in U.S. courts if National Guard troops detain migrants on the border [...]

“If there is a real wave of rights abuses, if we see the National Guard starting to directly participate in detaining people ... we would immediately start filing lawsuits through our consulates,” Foreign Secretary Luis Ernesto Derbez said in an interview with a Mexico City radio station.

Perhaps the Mexican government should instead focus on reforming their economy so Mexican citizens don’t feel driven to flee the country as if it were a burning building.

3 May 2006 @ 6:56PM >> Convicted September 11th co-conspirator Zacarias Moussaoui was spared the death penalty. His reaction:

“America, you lost. I won!” Moussaoui yelled as he was escorted from the U.S. District courtroom in Alexandria after the verdict was read. He clapped his hands as he left.

There are those who believe that the fight against Jihadist terrorism should be handled by law enforcement, as though al Qaeda were the mafia. To me, that’s naive and dangerous thinking.

You can’t win a war in court. Just ask Zacarias Moussaoui.

27 October 2005 @ 9:31AM >> Victory. I suspect President Bush’s next nominee will be far more palatable to the people who voted for him. At least now there’s that possibility.

20 October 2005 @ 8:06AM >> Did President Bush pick Harriet Miers for all the wrong reasons? The White House has been quietly touting Miers’s religious background for the apparent purpose of signaling her position on the abortion debate. But if that’s the sole reason she was chosen, then her Supreme Court nomination might be even worse than I originally feared.

Abortion-rights advocates argue in favor of Roe v. Wade, not because it was based on sound judicial reasoning, but because it resulted in an outcome they favor. If Miers would vote to overturn Roe v. Wade because of personal beliefs—as opposed to reasons of law—then she might be casting a sensible legal vote, but she would be doing so for all the wrong reasons.

Conservatives tend to favor justices whose philosophy is to interpret the Constitution as written, not as they would like it to be personally or as Europeans might want. Conservatives recognize that this philosophy would restrict the unlimited growth of government and would preserve individual rights in the way that the Founders intended. In my mind, having the correct judicial philosophy is far more important than casting one or two votes any particular direction, especially when those votes are cast for political reasons.

Despite what the abortion debaters say, overturning Roe v. Wade would have a relatively limited effect. In many states, abortion would still be legal, in some, it would be more restricted, and in a few, it could be outlawed. Sure, a post-Roe world would be different, but it wouldn’t be so vastly different that anti-abortion conservatives should sell out all their other beliefs to secure it.

I’ve got a bad feeling about Miers. If she gets on the court, she could be issuing decisions decades from now that would make Constitutional conservatives cringle. Long after George W. Bush has left the White House, conservatives could be cursing his name. Is President Bush willing to risk leaving that legacy by putting Miers on the Supreme Court? We already know the answer, and this is one of those instances where the president’s legendary steadfastness runs the risk of driving a permanent wedge between himself and many of the people who voted for him. Luckily for President Bush, he doesn’t have to run again.

8 October 2005 @ 5:25PM >> Is the nomination of Harriet Miers to the Supreme Court the biggest political misstep of the Bush presidency? After assessing the mood of the guests at the White House’s dinner for the 50th Anniversary of National Review magazine, James Taranto believes he sees “a political disaster in the making.”

We talked to quite a few people, and we heard not a single kind word about the nomination from anyone who wasn’t on the White House staff. A couple of our soundings led us to think that such support as it has received has been more sycophantic than sincere. One putative proponent privately distanced himself from his public praise of Miers. Another person, whose employer has strongly backed the Miers nomination, told us, “Of course, I disagree wholeheartedly.”

[...]

Conventional wisdom still has it that Miers is a shoo-in for confirmation. We’re not so sure. From what we saw last night, the right is furious at President Bush for appointing someone they see as manifestly underqualified and for ducking a fight with the Democratic left—a fight that, in their view (and ours), would be good for the country, the conservative cause and the Republican Party.

Charles Krauthammer zeroes in on the problem:

When in 1962 Edward Moore Kennedy ran for his brother’s seat in the Senate, his opponent famously said that if Kennedy’s name had been Edward Moore, his candidacy would have been a joke. If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.

[N]ominating a constitutional tabula rasa to sit on what is America’s constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. [...]

It is particularly dismaying that this act should have been perpetrated by the conservative party. For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions — school prayer, abortion, busing, the death penalty — that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

Absolutely. The best conservative argument for the philosophy of the court is that the Constitution should be interpreted as written, not through some sort of deconstructionist psychic reading of what the Founders might or might not want if they were alive today and informed by supposedly enlightened European jurisprudence. If there is no public record whatsoever of where Miers stands on this debate, I wonder whether she has any underlying philosophy at all. Maybe I just naturally recoil when a President Bush puts forth an unknown quantity for the Supreme Court. The Harriet Miers nomination was a disaster the first time when it went by the name David Souter.

“A disaster on every level” is also what Robert Bork—nominated for the Supreme Court by President Reagan in 1987—said of the Miers nomination. He added:

It’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. It’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.

Just as there’s a reason the judiciary shouldn’t assume the role of the legislature, there’s also a reason the judicial branch is supposed to be separate from the executive. When President Bush tries to put someone on the court whose only real qualification seems to be her proximity to him, he is neglecting the core principle that defines conservative court philosophy, and he is sinking to the very sort of behavior that conservatives have been decrying for years: using the court as a political tool. By putting forth Harriet Miers, President Bush is almost daring principled conservatives to oppose her, because if we didn’t, we’d be hypocrites.

President Bush places a high value on personal loyalty, and for that reason, he’s unlikely to withdraw the nomination of Harriet Miers. Well, I pledge my loyalty not to a particular leader or party, but to a set of ideas. And those ideas require me to oppose Harriet Miers because she is simply too close to the president and because there don’t seem to be any other arguments in her favor.

I hope there are still enough principled leaders in the Senate to give this nomination the kind of scrutiny it deserves. As Democrats are often fond of reminding Republican presidents, the Senate is under no obligation to rubber-stamp any of the president’s judicial nominations. Republican Senators should remember that as well.

16 August 2005 >> Imagine this scenario: your town wants to take your land and give it to someone who’ll generate more tax revenue for the town government. You don’t like that very much, so you refuse, and the town then sues you. The case goes all the way to the U.S. Supreme Court, which sides with the town.

You now must move off the land you once owned, so the town can take it for someone else.

Is this just a nightmare vision of an out-of-control government? No, this is the new reality in a country whose Supreme Court grants only periodic deference to the words written in our Constitution.

But as bad as that is, imagine how you’d feel if the town then sent you a bill after all that. A bill for what, you might ask? For the back rent that the town now says you owe for the time that you occupied “their” land while fighting them in court.

Sad but true:

The U.S. Supreme Court recently found that the city’s original seizure of private property was constitutional under the principal of eminent domain, and now New London is claiming that the affected homeowners were living on city land for the duration of the lawsuit [which started in 2000] and owe back rent. It’s a new definition of chutzpah: Confiscate land and charge back rent for the years the owners fought confiscation.

21 July 2005 @ 8:31AM >> When President Bush nominated one John Roberts for the Supreme Court, a certain CBS News reporter with the same name apparently suffered an ego blow. Now that CBS’s John Roberts is no longer the John Roberts in D.C., the reporter took the occasion to pen a smirky commentary piece that reveals his overinflated sense of self importance:

After my four and a half years covering the Bush White House, I couldn’t imagine the name “John Roberts” and the phrase “widely admired for his intellect, his sound judgment and his personal decency” being used in the same time zone, let alone the same sentence. More likely would have been “John Roberts” and “should join Judith Miller in jail”; or “frog-marched out of the White House in handcuffs”; or, “Oh yeah, we’ve got a dossier on him”.

Yeah, that’s it, John, you’re such a dangerous, fearless reporter that the Gestapo-like Bush White House would like nothing more than to put you in jail.

This feeble attempt at humor—at least I’m assuming he was aiming for humor here—reveals more about his perceptions of the White House and the media than anything else:

It’s no secret that the White House doesn’t hold a lot of respect for the media at large [...]

Gee, I wonder why that is!

Does Roberts expect that the White House should hold respect for the media? When was the last time you saw the media show respect towards this White House? Reporter Roberts might not understand an important dynamic of respect: people rarely respect those who find them contemptible.

As a correspondent, it was one of the most frustrating days of my life. A lot of my fellow White House denizens share the same sentiments. My BlackBerry was buzzing all day with messages from colleagues – “I HATE this” and “Just SHOOT me now” were two of the more popular expressions of exasperation.

Just a hunch, but the dread expressed by these news insiders might have something to do with the president making the Supreme Court choice, not with the process itself. I doubt these same insiders “hated” the day President Clinton announced Ruth Bader Ginsburg as a nominee. At the very least, they probably weren’t requesting to be shot.

29 June 2005 >> If you haven’t yet read about the Supreme Court’s decision in the Kelo vs. New London case, then you might not appreciate how much I love this:

Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter’s land.

Justice Souter’s vote in the “Kelo vs. City of New London” decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on [...] the present location of Mr. Souter’s home.

Clements [...] points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on [Mr. Souter’s land].

The proposed development, called “The Lost Liberty Hotel” will feature the “Just Desserts Cafe” and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon’s Bible each guest will receive a free copy of Ayn Rand’s novel “Atlas Shrugged.”

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

“This is not a prank” said Clements, “The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development.”

Clements’ plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.

(Note: Links in quoted text above added by me.)