Patterico's Pontifications



Filed under: General — Patterico @ 5:47 pm

PATTERICO HITS THE BIG TIME: A very interesting web site that I read frequently is How Appealing, a site which bills itself as the “The Web’s first blog devoted to appellate litigation.” The site keeps track of hot issues that affect the federal appellate courts. It is well-known within the vast blogging community, it is widely read by high-powered lawyers, and it has gotten over 700,000 hits since its inception. It is the first place I go to find the latest on the Estrada nomination, and is required reading for anybody interested in what is going on with today’s federal courts. Many of the ideas I have discussed here have related in some way to something I read at the “How Appealing” site. I have linked to documents contained there, and yesterday I discussed an essay (regarding the judicial confirmation process) written by Howard Bashman, who puts out the “How Appealing” site. You see a permanent link to the site on the left margin of this page.

Anyway, today “How Appealing” printed an e-mail regarding judicial activism, which you can read here. If you notice a similarity between that e-mail and a previous post on this site, it’s because I am the one who sent the e-mail. After I sent it, I decided to expand upon the thoughts in the e-mail, and created the post below (thinking that my e-mail would never get published at the “How Appealing” site). It is pretty exciting to see my thoughts printed on such a well-known and respected site.


Filed under: General — Patterico @ 5:10 pm

BE CAREFUL WHAT YOU VOTE FOR: Hard not to be amused by this New York Times article. Many lawmakers who voted for the McCain-Feingold bill are now attending seminars designed to teach attendees what the law actually says. And it turns out many of the fine folks who voted for the law are a little surprised. Summing up the reaction of many is Representative Robert T. Matsui, Demmycrat from my own state of California. He voted for McCain-Feingold and now says: “I didn’t realize what all was in it. . . We have cautioned members: ‘You have to really understand this law. And if you have any ambiguity, err on the side of caution.’ “

I’ll wait a second while you stop chuckling.

If we could just get them to say “You really have to understand this law” before they voted on the laws, well, then we’d really have something going there, wouldn’t we?


Filed under: General — Patterico @ 1:36 pm

THOSE NUTTY, NUTTY HOLLYWOOD TYPES: Martin Sheen has filmed an antiwar commercial. Read about it here. Apparently his first line is: “I’m not the president, but I play one on TV.”

For the older folks.

UPDATE: Good Lord. I just ran the video on the Reuters web site about this, and they used the same line. Sometimes great minds and not-so-great minds think alike; I’ll leave it to you to sort out who’s who.


Filed under: General — Patterico @ 12:33 pm

JUDICIAL ACTIVISM: One thing I am hearing from a lot of liberals is that conservative judges are the activists nowadays, simply because they strike down a lot of legislation. For example, Al Hunt says so in a Wall Street Journal op-ed today.

Al Hunt (and many law professors) misunderstand what “judicial activism” really is. Judicial activism is not measured by how many statutes a court strikes down. If Congress passed a law today banning all speech critical of the Bush administration, our “conservative” Supreme Court would strike that law down tomorrow. Would that be an “activist” decision? Obviously not.

Whether a judge is an judicial activist depends upon whether he ignores or bends the plain language of the Constitution, statutes, and/or precedent to achieve the result he desires.

Let’s be honest: under that definition, these days, the typical conservative jurist is far less activist than the typical liberal jurist — largely because the “principles” which liberal jurists regularly employ are so ill-defined. Liberal judges nowadays base their decisions on fuzzy concepts such as living Constitutions, evolving standards, and my personal favorite: “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Non-lawyers reading this might think I made up that last phrase. After all, it sounds more like a phrase in a philosophy text than a quote by an appellate court designed to give guidance to lower courts. Unfortunately, that quote comes straight from our very own Supreme Court. Justice Anthony Kennedy wrote that as an integral part of his disastrous 1992 Casey decision upholding that eyesore of our legal landscape: Roe vs. Wade.

Such “principles” are so ill-defined and open-ended, judges can infuse them with whatever specific meaning they wish. When we trust 5 of 9 lawyers (a majority of the Supreme Court) to assign a subjective meaning to such vacuous phrases, and allow that subjective meaning to trump legislation passed by duly elected legislators, “judicial activism” is too tepid a phrase to describe the result. Try “judicial tyranny.”

If it is “conservative” to insist on confirming only those judges who are wary of employing such high-flown phrases to “find” new constitutional rights — look! I found another right over there, under that oak tree! — then call me conservative. I will respect Justice Scalia’s opinions when he votes to protect flag-burners or overturn criminal convictions, because I trust that he is voting that way for the right reasons. I can’t say the same for the Stephen Reinhardts of the world.


Filed under: General — Patterico @ 9:25 am

RANDOM WAR THOUGHT: A good friend describes the impending war as a “first-strike” invasion. If I really thought that’s what we were doing, I wouldn’t support it. My thinking is that Hussein himself started a war back in 1991, signed terms of surrender which include disarming, and hasn’t lived up to those terms. That’s what makes it legitimate to attack.

I have been very upset by the Bush administration’s characterization of the impending war as a “pre-emptive strike.” I can’t say such a strike would never be justified under any circumstances, but I would be much more wary of pursuing such a strike because of the precedent it would set. Yet another reason why I find Tony Blair so much better at articulating why we are doing what we are doing.


Filed under: General — Patterico @ 8:51 am

L.A. PRIORITIES: I was a little confused at first when I read a headline in today’s Los Angeles Dog Trainer (aka Los Angeles Times), titled Reiner Endorses Dean for President. I just didn’t understand why the Dog Trainer found it particularly significant that Ira Reiner (one of our former District Attorneys here in L.A.) had endorsed a Democratic candidate for president. Yes, at one time Reiner had been considered a potential candidate for California Attorney General, but that was years ago. Sure, he manages to get himself quoted on TV and in the newspapers from time to time, but generally the quotes relate to his area of expertise: the criminal justice system. Who really cares if he endorses someone for president?

As I kept reading, the mystery was soon solved. Howard Dean was endorsed, not by Ira Reiner, but by somebody really important: a Hollywood director! Yes, the story was about an endorsement announcement by Rob Reiner, who first became famous portraying the character on “All in the Family” known as “Meathead.” Now I understood why this was an important story.

But I got a little sad that nobody cares who Carl Reiner endorses for the presidency. Couldn’t we all benefit from political advice given by one of the guys who created the “2000 Year-Old Man”?

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