There's no denying that a Supreme Court ruling against the law is a very real possibility. — The WaPo's Greg SargentSeries: Liberals in denial
Edited to add:
Showing posts sorted by relevance for query denial. Sort by date Show all posts
Showing posts sorted by relevance for query denial. Sort by date Show all posts
February 3, 2011
Liberals in denial: A ray of hope
Edited to add:
June 25, 2012
May 8, 2009
Favre will won't will won't will won't will
Sign with the Vikings. If something.
Snapit: What is the first step again? Denial or despair?
Herb Adderley: Snapit, after denial comes anger.... it's been a fun step for me personally.
March 9, 2010
More Holocaust denial denial
Writes the publisher of the Badger Herald (not in the Badger Herald but at Madison's alternative entertainment weekly, Isthmus):
The Badger Herald's readers are informed on the one hand that the paper decided to publicize the Holocaust denier's website beneath the header "Advertising" because its staffers didn't even know what it contained and then on the other hand subjected to a purportedly noble homily about free speech and "trusting the people."
What seems far more likely is that "trusting the people" and the rest of it was an ex post facto rationalization cobbled together after having entered into an ill-advised — unwitting, in fact — commercial contract with the Holocaust denier, who clearly won the upper hand.
Admitting to a dreadful business decision can't be that difficult.
The [Badger Herald] decided to run the $75 ad for one month on its website because it trusted that people on campus and throughout the community would be able to see through its lies. (Initially the ad slipped online without being noticed as a potential problem by ad staff, but was scrutinized shortly thereafter through a process with a board of nine students.)So, which is it?
The Badger Herald's readers are informed on the one hand that the paper decided to publicize the Holocaust denier's website beneath the header "Advertising" because its staffers didn't even know what it contained and then on the other hand subjected to a purportedly noble homily about free speech and "trusting the people."
What seems far more likely is that "trusting the people" and the rest of it was an ex post facto rationalization cobbled together after having entered into an ill-advised — unwitting, in fact — commercial contract with the Holocaust denier, who clearly won the upper hand.
Admitting to a dreadful business decision can't be that difficult.
February 23, 2011
Liberals in denial: Andrew Cohen
In The Atlantic, "one of the nation's leading legal analysts" manages to complete his leading analysis without once mentioning the newly discovered power of Congress to regulate your commerce-thoughts.
I would have imagined* that significant.
Instead, analyst Andrew Cohen dwells — apparently approvingly — on Judge Gladys Kessler's inappropriate policy views: Kessler suggests, says Cohen, that "those who do not purchase health insurance are making irresponsible choices that eventually harm others."
It would be one thing if Judge Kessler's admonitory musings were obiter dicta; that is, extrajudicial asides offered separate and apart from the substance of the ruling itself. The problem is they are integral to her reasoning: how else could she arrive at the conclusion that the federal legislative power includes for the regulation of personal decisions taking place wholly in the province of the mind.
Judge Kessler is speaking, Andrew Cohen believes, to all who "refuse to buy health insurance in the name of federalism and the 10th Amendment." I don't know if that's why they "refuse" to buy health insurance, but at least they found something in the Constitution which mitigates against the view that "commerce among the several States" means "among the several states of human consciousness."
That's the same Andrew Cohen, incidentally, who sought to preempt the expected effect of Judge Clyde Roger Vinson's January 31 order invalidating the PPACA in its entirety by dismissing it brusquely as "a stray decision by a conservative trial judge." But today he's enamored with this wildly injudicious exercise of authority by a liberal one.
If this decision is allowed to stand, I'll eat my tricorne cheese-hat.
* This imagining subject to federal regulation.
More: Liberals in denial.
I would have imagined* that significant.
Instead, analyst Andrew Cohen dwells — apparently approvingly — on Judge Gladys Kessler's inappropriate policy views: Kessler suggests, says Cohen, that "those who do not purchase health insurance are making irresponsible choices that eventually harm others."
It would be one thing if Judge Kessler's admonitory musings were obiter dicta; that is, extrajudicial asides offered separate and apart from the substance of the ruling itself. The problem is they are integral to her reasoning: how else could she arrive at the conclusion that the federal legislative power includes for the regulation of personal decisions taking place wholly in the province of the mind.
Judge Kessler is speaking, Andrew Cohen believes, to all who "refuse to buy health insurance in the name of federalism and the 10th Amendment." I don't know if that's why they "refuse" to buy health insurance, but at least they found something in the Constitution which mitigates against the view that "commerce among the several States" means "among the several states of human consciousness."
That's the same Andrew Cohen, incidentally, who sought to preempt the expected effect of Judge Clyde Roger Vinson's January 31 order invalidating the PPACA in its entirety by dismissing it brusquely as "a stray decision by a conservative trial judge." But today he's enamored with this wildly injudicious exercise of authority by a liberal one.
If this decision is allowed to stand, I'll eat my tricorne cheese-hat.
* This imagining subject to federal regulation.
More: Liberals in denial.
February 7, 2011
Liberals in denial: The law professors
Prof. Akhil Reed Amar, who has written two superb books on the Constitution, compares Florida Judge Clyde Roger Vinson to the 19th-century Supreme Court Chief Justice Roger Taney, the author of Dred Scott v. Sanford, which affirmed the notion of his fellow human beings as property and arguably precipitated the U.S. Civil War.
Prof. Amar — and, indeed, the administration — might wish to resuscitate it, but doing so doesn't address the Commerce Clause question, as the latter is not where Congress's power to impose taxes resides. So this is some goalpost-shifting by Prof. Amar and therefore not an appropriate ground to attack Judge Vinson's ruling.
And, in the New York Review of Books, Georgetown's David Cole refers to the Necessary and Proper Clause as "[t]hat catch-all provision" which "authorizes Congress to enact laws that, while not expressly authorized by the Constitution’s specific enumerated powers, are 'necessary and proper' to the exercise of those powers."
First of all, if the Necessary and Proper Clause really is a "catch-all provision" — emphasis on "all" — then Judge Vinson is exactly correct, in that viewing it as such would render Congress's legislative powers not just "virtually" unlimited, but actually unlimited in practice.
But obviously there are limits to Congress's authority — see, for further evidence of those limits, the Bill of Rights — and bold assertions of the said "catch-all provision" do not alter that fact.
Secondly, Congress's authority to impose the mandate must first be discovered within Congress's enumerated powers before any other necessary and proper acts may be justified to carry it into execution. The N&P Clause is not a separate grant of legislative power, but rather is present to facilitate bringing those enumerated powers to effect: if there's no enumerated power, then there's no propriety.**
Prof. Cole also "goes there," observing of a prior decision issuing from a federal district court in Virginia that similarly found the insurance mandate to be beyond Congress's authority:
Anyway, even the staunchest admirers of Judge Vinson's handiwork shouldn't get too excited about these recent rulings, as the Supreme Court engages the relevant questions presented to it de novo ("anew, afresh") which means the SCOTUS needn't pay any heed to those lower courts' holdings while it conducts its own independent review.
Likewise, Vinson's and Hudson's detractors should keep their powder dry as well, particularly when they're accusing federal judges and State attorneys-general of behaving like slaveowners, as it detracts considerably from whatever legitimate objections they may have.
(Or, as I'm inclined to suspect, substitutes for the lack thereof.)
Special Series: Liberals in denial
* "My earlier ruling [dismissing] the defendants' tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause." — Vinson, Jan. 31, footnote 4.
The dismissal of that argument was the most problematic blow to Obamacare thus far, in your correspondent's own humble estimation.
** Even where there's necessity.
Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers.Except Judge Vinson's most recent order is confined to the narrow question of whether Congress is properly exercising its powers under the Interstate Commerce Clause. The administration had previously argued that the mandate was a tax, and in fact Judge Vinson rejected that argument back in October,* as have even those district courts which have otherwise sided with the Obama administration.
Prof. Amar — and, indeed, the administration — might wish to resuscitate it, but doing so doesn't address the Commerce Clause question, as the latter is not where Congress's power to impose taxes resides. So this is some goalpost-shifting by Prof. Amar and therefore not an appropriate ground to attack Judge Vinson's ruling.
And, in the New York Review of Books, Georgetown's David Cole refers to the Necessary and Proper Clause as "[t]hat catch-all provision" which "authorizes Congress to enact laws that, while not expressly authorized by the Constitution’s specific enumerated powers, are 'necessary and proper' to the exercise of those powers."
First of all, if the Necessary and Proper Clause really is a "catch-all provision" — emphasis on "all" — then Judge Vinson is exactly correct, in that viewing it as such would render Congress's legislative powers not just "virtually" unlimited, but actually unlimited in practice.
But obviously there are limits to Congress's authority — see, for further evidence of those limits, the Bill of Rights — and bold assertions of the said "catch-all provision" do not alter that fact.
Secondly, Congress's authority to impose the mandate must first be discovered within Congress's enumerated powers before any other necessary and proper acts may be justified to carry it into execution. The N&P Clause is not a separate grant of legislative power, but rather is present to facilitate bringing those enumerated powers to effect: if there's no enumerated power, then there's no propriety.**
Prof. Cole also "goes there," observing of a prior decision issuing from a federal district court in Virginia that similarly found the insurance mandate to be beyond Congress's authority:
Judge Hudson and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked States' rights not because they cared about the rights of States, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.Jeez, Louise. He sounds a lot like the Madison Capital Times.
Anyway, even the staunchest admirers of Judge Vinson's handiwork shouldn't get too excited about these recent rulings, as the Supreme Court engages the relevant questions presented to it de novo ("anew, afresh") which means the SCOTUS needn't pay any heed to those lower courts' holdings while it conducts its own independent review.
Likewise, Vinson's and Hudson's detractors should keep their powder dry as well, particularly when they're accusing federal judges and State attorneys-general of behaving like slaveowners, as it detracts considerably from whatever legitimate objections they may have.
(Or, as I'm inclined to suspect, substitutes for the lack thereof.)
Special Series: Liberals in denial
* "My earlier ruling [dismissing] the defendants' tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause." — Vinson, Jan. 31, footnote 4.
The dismissal of that argument was the most problematic blow to Obamacare thus far, in your correspondent's own humble estimation.
** Even where there's necessity.
December 10, 2009
Prof. Esenberg remains in climate denial denial
Combining two different measurements and pretending they are the same thing and mischaracterizing what data show has not been limited to tree ring data. — Prof. Richard EsenbergSure sounds like a pretty devastating indictment, don't it.
Only problem is, that is not at all what was done.
Page 2 of 12:
"Front cover: Northern Hemisphere temperatures were reconstructed for the past 1000 years (up to 1999) using palaeoclimatic records (tree rings, corals, ice cores, lake sediments, etc.), along with historical and long instrumental records. The data are shown as 50-year smoothed differences from the 1961–1990 normal. Uncertainties are greater in the early part of the millennium (see page 4 for further information). For more details, readers are referred to the PAGES newsletter (Vol. 7, No. 1: March 1999, also available at http://www.pages.unibe.ch) and the National Geophysical Data Center (http://www.ngdc.noaa.gov)."
Page 4 of 12:
"Our knowledge of pre-20th century temperature variations in the Northern Hemisphere has increased dramatically in recent years. The availability of natural archives of past temperature such as tree rings, banded corals, ice cores and lake sediments, in addition to historical and long instrumental records, has enabled [Northern Hemisphere] temperature variations to be reconstructed for the last 1000 years at an annual resolution. It is not yet possible to do the same for the Southern Hemisphere due to the lack of adequate palaeoclimatic records. Despite their different emphases on annual or extended summer seasonal temperatures and their different geographical biases, all the reconstructions (shown on the front cover as 50-year smoothed differences from the 1961–1990 normal) indicate that against the background of the millenium as a whole, the 20th century was unusually warm."
Emphases added.
The only person pretending and mischaracterizing here is Prof. Esenberg. Why he chooses these hills to die on is anybody's guess.
November 26, 2010
The continuing saga of liberals in denial
Latest in a series.
Federal lawyers are bracing themselves, it says here, for adverse rulings in several courts over the controversial individual insurance mandate provision contained in 2010's health care reform act.
It seems to me they are well advised to be so braced.
Without that language — which leads ultimately to a determination of whether the entire Act might survive once a single provision as operationally crucial as the individual insurance mandate is found unconstitutional — it's left for the courts to decide. Although any judicial orders of the trial level court — which is where the legal challenges are now ensconced — barring the enforcement of the law will most likely be postponed pending a higher court's decision.
And that higher court will most probably be the U.S. Supreme Court, and that Court is not likely to rule until such time as smack dab in the middle of the 2012 presidential and Congressional campaigns.
Woe betide somebody (See, e.g., "Obamacare" vs. "Romneycare").
A worse oversight than the lack of that specific language obtains from Congress's failure to convincingly articulate that its authority to enact the insurance mandate derives from something other than its power to "regulate Commerce ... among the several States."
As noted at this space earlier, the federales sustained a body blow when a district court in Florida, decidedly unimpressed by arguments that the mandate was not a regulation of interstate commerce but rather a tax, criticized the administration for cobbling together an ex post facto defense of the law, one which the law itself doesn't appear to have contemplated. So long as the legal challenges remain focused on the Commerce Clause, which is where its critics prefer the focus to remain, the mandate is in much greater danger of invalidation.
Doubtless there is skepticism even within those States which will not join the litigation. There has to be, given both the unprecedented interpretation of the Commerce Clause that will be required to sustain the mandate's viability and the current make-up of the Court.
Assuredly, Congress and the president would have been on firmer ground implementing wholesale a single-payer system. A nightmare Supreme Court ruling may be what "compromise" gets them instead.
Federal lawyers are bracing themselves, it says here, for adverse rulings in several courts over the controversial individual insurance mandate provision contained in 2010's health care reform act.
It seems to me they are well advised to be so braced.
While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states.Been saying that for more than a year now.
An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.Ye gods.
Without that language — which leads ultimately to a determination of whether the entire Act might survive once a single provision as operationally crucial as the individual insurance mandate is found unconstitutional — it's left for the courts to decide. Although any judicial orders of the trial level court — which is where the legal challenges are now ensconced — barring the enforcement of the law will most likely be postponed pending a higher court's decision.
And that higher court will most probably be the U.S. Supreme Court, and that Court is not likely to rule until such time as smack dab in the middle of the 2012 presidential and Congressional campaigns.
Woe betide somebody (See, e.g., "Obamacare" vs. "Romneycare").
A worse oversight than the lack of that specific language obtains from Congress's failure to convincingly articulate that its authority to enact the insurance mandate derives from something other than its power to "regulate Commerce ... among the several States."
As noted at this space earlier, the federales sustained a body blow when a district court in Florida, decidedly unimpressed by arguments that the mandate was not a regulation of interstate commerce but rather a tax, criticized the administration for cobbling together an ex post facto defense of the law, one which the law itself doesn't appear to have contemplated. So long as the legal challenges remain focused on the Commerce Clause, which is where its critics prefer the focus to remain, the mandate is in much greater danger of invalidation.
A White House official said that in the meantime "the litigation is really not having an impact" on the pace of putting the law into effect: "I talk weekly to officials in States that have sued us, and in States that have not. I cannot tell the difference between them."If one of them is Wisconsin's attorney general J.B. Van Hollen, it's no wonder you can't tell the difference, because both Van Hollen and the governor-elect have been chomping at the bit to join the litigation.
Doubtless there is skepticism even within those States which will not join the litigation. There has to be, given both the unprecedented interpretation of the Commerce Clause that will be required to sustain the mandate's viability and the current make-up of the Court.
Assuredly, Congress and the president would have been on firmer ground implementing wholesale a single-payer system. A nightmare Supreme Court ruling may be what "compromise" gets them instead.
December 13, 2010
Liberals in abject denial quote of the day
A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional.The hell they didn't.— TPM's Josh Marshall
January 2, 2010
Ireland bans victimless crimes
While Ireland's new blasphemy provisions "have no bearing on the law of defamation or its practice," according to the Irish Times's solicitor, who approves of the Defamation Act's heightened protections of (responsible) speech and of the press, the blasphemy provisions, reasoned a Trinity College fellow, are unconstitutional.
Nevertheless, they are today the law:
Nevertheless, they are today the law:
Dermot Ahern, Irish Minister for Justice, introducing his blasphemy law at an Oireachtas Justice Committee meeting, 2009, and referring to comments made about him personally: "They are blasphemous." Deputy Pat Rabbitte replied: "Given the Minister's self-image, it could very well be that we are blaspheming," and Minister Ahern replied: "Deputy Rabbitte says that I am close to the baby Jesus, I am so pure." So here we have an Irish Justice Minister joking about himself being blasphemed, at a parliamentary Justice Committee discussing his own blasphemy law, that could make his own jokes illegal.Björk, Jesus, Mark Twain now liable in Irish penal code
Micheal Martin, Irish Minister for Foreign Affairs, opposing attempts by Islamic States to make defamation of religion a crime at UN level, 2009: "We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief." Just months after Minister Martin made this comment, his colleague Dermot Ahern introduced Ireland’s new blasphemy law.
January 11, 2008
I love kiddy porn
Cases, that is. Pornography in general is interesting, if not for its alleged merits and therapeutic benefit, then for its location at the First Amendment frontiers of protected expression. Most everyone is familiar with U.S. Supreme Court Justice Potter Stewart's famous declamation, inspired by his admitted inability to define material described as hard-core pornography: "But I know it when I see it."
One subgenre of pornography that is not protected by the First Amendment is kiddy porn, which involves real life subjects under the age of 18 (that's the federal definition).
Whenever the government moves to restrict speech or expression, its motives are subjected to what the courts call strict scrutiny. According to strict scrutiny, the onus is on the government to demonstrate a compelling interest showing why its actions may infringe against First Amendment protections.
The compelling interest in the case of kiddy porn is the protection of minors — that is, the subjects of the obscene materials — against the depredations of pornographers, and worse.
That is why First Amendment proponents beat the government in a U.S. Supreme Court case called Ashcroft v. Free Speech Coalition in 2002. Because the subjects of the material at issue were not real life children but rather computer-generated images, there were no minors to protect and, therefore, no compelling government interest.
Although Justice Clarence Thomas concurred in the Court's opinion, he noted that "persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated, thereby raising a reasonable doubt as to their guilt."
This is precisely what a Washington County man attempted to do in the Wisconsin District II Court of Appeals. But that court shut him down a week ago, in State v. Van Buren (.pdf; 14 pgs.).
Van Buren was charged with (and convicted of) repeated sexual assault of an 11-year-old girl in 2004, when Van Buren was 26. His friends alerted West Bend police that something "didn't seem right" about his relationship with the girl, who later testified to authorities that Van Buren had been sexually assaulting her for more than a year.
Then a search of Van Buren's computer turned up 51,760 images alleged to contain child pornography, a selection of which were used to convict him of their possession at his jury trial. On appeal, Van Buren argued that it was insufficient for the government to simply have presented the images as evidence, it needed to prove further that the images depicted real children as opposed to computer-generated ones (an argument that apparently did not occur to him at trial).
Juries comprised of laypeople, Van Buren claimed, are incapable of determining whether such evidence depicts real children or not, given the technological sophistication available to produce the latter. He was also able to muster up a dissenting opinion from a recent federal case out of the First Circuit, remarking that, "virtual and real child pornography images are indistinguishable, and that even experts have difficulty determining what is real and what is virtual."
Indeed, the District II court found much to commend in Van Buren's proffered First Circuit case. But, unfortunately for Van Buren, it reserved its commendations for the majority opinion portion of United States v. Rodriguez-Pacheco: "We can explain our view on the issue no better than the First Circuit did."
It's unknown at this time whether Van Buren will launch another ineffective assistance of counsel claim, proceeding from his placing into the hands of the District II court the very rationale and even the language upon which it supported the denial of his appeal.
One subgenre of pornography that is not protected by the First Amendment is kiddy porn, which involves real life subjects under the age of 18 (that's the federal definition).
Whenever the government moves to restrict speech or expression, its motives are subjected to what the courts call strict scrutiny. According to strict scrutiny, the onus is on the government to demonstrate a compelling interest showing why its actions may infringe against First Amendment protections.
The compelling interest in the case of kiddy porn is the protection of minors — that is, the subjects of the obscene materials — against the depredations of pornographers, and worse.
That is why First Amendment proponents beat the government in a U.S. Supreme Court case called Ashcroft v. Free Speech Coalition in 2002. Because the subjects of the material at issue were not real life children but rather computer-generated images, there were no minors to protect and, therefore, no compelling government interest.
Although Justice Clarence Thomas concurred in the Court's opinion, he noted that "persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated, thereby raising a reasonable doubt as to their guilt."
This is precisely what a Washington County man attempted to do in the Wisconsin District II Court of Appeals. But that court shut him down a week ago, in State v. Van Buren (.pdf; 14 pgs.).
Van Buren was charged with (and convicted of) repeated sexual assault of an 11-year-old girl in 2004, when Van Buren was 26. His friends alerted West Bend police that something "didn't seem right" about his relationship with the girl, who later testified to authorities that Van Buren had been sexually assaulting her for more than a year.
Then a search of Van Buren's computer turned up 51,760 images alleged to contain child pornography, a selection of which were used to convict him of their possession at his jury trial. On appeal, Van Buren argued that it was insufficient for the government to simply have presented the images as evidence, it needed to prove further that the images depicted real children as opposed to computer-generated ones (an argument that apparently did not occur to him at trial).
Juries comprised of laypeople, Van Buren claimed, are incapable of determining whether such evidence depicts real children or not, given the technological sophistication available to produce the latter. He was also able to muster up a dissenting opinion from a recent federal case out of the First Circuit, remarking that, "virtual and real child pornography images are indistinguishable, and that even experts have difficulty determining what is real and what is virtual."
Indeed, the District II court found much to commend in Van Buren's proffered First Circuit case. But, unfortunately for Van Buren, it reserved its commendations for the majority opinion portion of United States v. Rodriguez-Pacheco: "We can explain our view on the issue no better than the First Circuit did."
[T]he mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court’s ruling founded on reasonable inferences derived from experience and common sense.Mr. Van Buren was sentenced to 25 years in State prison, followed by another 20 of extended supervision, in July, 2005. The present appeal also contained claims of ineffective assistance of counsel, which the District II court also denied.
It's unknown at this time whether Van Buren will launch another ineffective assistance of counsel claim, proceeding from his placing into the hands of the District II court the very rationale and even the language upon which it supported the denial of his appeal.
November 14, 2008
Clearly erroneous
The Milwaukee Journal-Sentinel this morning reports on the decision of a Wisconsin Court of Appeals yesterday which reversed a lower court's denial of a petition for conditional release from custody brought by a man who killed three people at a church in 1985.
Bryan J. Stanley was found not guilty by reason of mental disease or defect and has been in institutions since.
According to yesterday's opinion (.pdf; 12 pgs.), what the lower court did was place undue and ultimately erroneous emphasis within the record of Stanley's history of taking anti-psychotic medications.
For the past 15 years, Stanley has been on a drug called Clorazil. Prior to that and since his trial, he was on Prolixin, which he refused to take for one day in 1993, when his prescription was changed to Clorazil. By all accounts the latest regime has been successful.
More important to Judge Gonzales, presumably, was that before the killings Stanley was on a third medication which he stopped taking on three occasions, during one of which he committed the crimes.
Judge Gonzalez inferred from these facts the future likelihood of Stanley going off his current medication and denied the petition. The appeals court found that the factual basis for this inference was lacking. It did not find that Judge Gonzalez "ignored" any evidence.
Quite the opposite, in fact. If anything, she erred on the side of overly cautious attention to — not ignorance of — evidence.
Bryan J. Stanley was found not guilty by reason of mental disease or defect and has been in institutions since.
La Crosse County Circuit Judge Ramona Gonzalez denied Stanley's release in November 2007. The appellate court can overturn such decisions only if the judge's decision was "clearly erroneous."More specifically, if the circuit court's interpretation of facts is clearly erroneous.
The appellate court, in a unanimous decision written by Judge Burnie Bridge in Madison, found that Gonzalez had ignored the evidence.No, that isn't what the appeals court found and this is an unfair characterization. Judge Gonzalez certainly hadn't ignored the evidence, which was primarily the unrebutted testimony of physicians in support of Stanley's request for conditional release.
According to yesterday's opinion (.pdf; 12 pgs.), what the lower court did was place undue and ultimately erroneous emphasis within the record of Stanley's history of taking anti-psychotic medications.
For the past 15 years, Stanley has been on a drug called Clorazil. Prior to that and since his trial, he was on Prolixin, which he refused to take for one day in 1993, when his prescription was changed to Clorazil. By all accounts the latest regime has been successful.
More important to Judge Gonzales, presumably, was that before the killings Stanley was on a third medication which he stopped taking on three occasions, during one of which he committed the crimes.
Judge Gonzalez inferred from these facts the future likelihood of Stanley going off his current medication and denied the petition. The appeals court found that the factual basis for this inference was lacking. It did not find that Judge Gonzalez "ignored" any evidence.
Quite the opposite, in fact. If anything, she erred on the side of overly cautious attention to — not ignorance of — evidence.
May 31, 2009
The non-lawyer nails it
In the Milwaukee Journal-Sentinel's contribution to the Sonia Sotomayor "controversies" yesterday, U.S. Senator Herb Kohl, contra Chief Justice John Roberts, observes:
Last week Justice Antonin Scalia, speaking for a 5-4 majority,* wrote up some policy for law enforcement in Louisiana — and, given the U.S. Supreme Court's jurisdiction, the rest of the country — when he retooled the circumstances under which a criminal defendant may be interrogated after having been appointed defense counsel.
Show me an appellate decision and I'll show you the policy announced. Judge Sotomayor's sin was stating an obvious truth, about which many fans of a "conservative judiciary" are in complete denial.
Hence her joking in the immediate wake of having stated it.
Speaking of non-lawyers, Donald Downs, twice identified by the Journal-Sentinel as "a professor of law" under the heading "Legal scholars [sic] weigh in," is in fact a professor of political science.
* Montejo v. Louisiana (.pdf; 42 pgs.)
As all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.The sports metaphor, of course, was Roberts'. But appeals court judges make rules all the time. They also make policy. All the time.
Last week Justice Antonin Scalia, speaking for a 5-4 majority,* wrote up some policy for law enforcement in Louisiana — and, given the U.S. Supreme Court's jurisdiction, the rest of the country — when he retooled the circumstances under which a criminal defendant may be interrogated after having been appointed defense counsel.
Show me an appellate decision and I'll show you the policy announced. Judge Sotomayor's sin was stating an obvious truth, about which many fans of a "conservative judiciary" are in complete denial.
Hence her joking in the immediate wake of having stated it.
Speaking of non-lawyers, Donald Downs, twice identified by the Journal-Sentinel as "a professor of law" under the heading "Legal scholars [sic] weigh in," is in fact a professor of political science.
* Montejo v. Louisiana (.pdf; 42 pgs.)
May 4, 2008
What Would Javex Do?
Fla. Teens Believe Drinking Bleach Will Prevent HIV
And that Mountain Dew will prevent pregnancies.
And, doubtless, it would be "anti-Christian bigotry" simply to point out that this idiotic — dangerously idiotic — denial of human sexuality is one of many political initiative/fantasies of the so-called Religious Right and its faux-sanctimonious, bought-and-paid-for legislators.
And that Mountain Dew will prevent pregnancies.
State lawmakers said the myths are spreading because of Florida's abstinence-only sex education.Et quelle surprise! Abstinence-only sex ed doesn't stop kids from having sex, it just turns them into even dumber kids having sex.
And, doubtless, it would be "anti-Christian bigotry" simply to point out that this idiotic — dangerously idiotic — denial of human sexuality is one of many political initiative/fantasies of the so-called Religious Right and its faux-sanctimonious, bought-and-paid-for legislators.
October 23, 2010
Liberals in denial, continued
Van Hollen also was wrong to seek to join other attorneys general in a lawsuit over the individual mandate in the new federal health care law. Van Hollen claims the legislation "was a clear case of federal overreach" for requiring citizens to buy health insurance. We'd say it's Van Hollen who is overreaching.— Milwaukee Journal-Sentinel editorial.
The truth is, Van Hollen's been spot on the money so far. And the AG can expect more vindication forthcoming from Virginia by year's end.
HCR is in trouble, and not from Ron Johnson's silly cries of "repeal." Congress may regulate commerce, but it seems doubtful Congress may coerce into existence the commerce it's empowered to regulate.
And if the federales' taxing power argument keeps failing as hard as it did in Florida, then that coercion into existence is all it's got left.
It may be necessary, but is it proper? It's got to be both.
October 15, 2010
Liberals in denial
Professor Timothy Jost of Washington and Lee University stressed that already the judge has thrown out the plaintiff's claim that the mandate is an unconstitutional tax (the judge ruled that it's not a tax at all) ...TPM
That was a defense of the individual mandate that the court threw out, and a pretty significant one at that. I like this headline too:
Parts of healthcare suit may proceed — UPI
Understatement of the year.
And you can barely even locate the story at the New York Times.
August 23, 2010
Scott Walker scandal is imminent
Notes Jay Bullock, inter alia. That should be entertaining.
"Political speech" needn't be true. That's the Supreme Court rule.
Truth is for chumps.
eta: Authorities seize computer of Walker aide — Daniel Bice
And there it is again: "extensive political blogging."
As in, reading Dan Bice's column? One day we may find out.
Chris "capper" Liebenthal wasn't blogging. Anyone who says he was is committing a pretty serious libel. Given that Mike Maistelman is still Chris's attorney, I'd be careful what you say.I don't know about that. In Wisconsin, we have a Supreme Court justice who reportedly got away with lying under cover of "political speech," so conservatives probably don't have all that much to fear.
"Political speech" needn't be true. That's the Supreme Court rule.
Truth is for chumps.
eta: Authorities seize computer of Walker aide — Daniel Bice
Whatever it might be, Walker said he can't be considered out of touch for not knowing that one of his aides had his computer seized as part of a criminal probe.Bice doesn't say whether Scott Walker's denial was in response to a question, or if it was just something that Scott Walker volunteered.
And there it is again: "extensive political blogging."
As in, reading Dan Bice's column? One day we may find out.
October 26, 2010
Liberals in denial, continued again
The most common argument against the mandate is that in giving Congress the power to regulate interstate commerce, the founders didn't create the authority for the federal government to regulate inaction. In other words, they say citizens can't be compelled to participate in interstate commerce, such as buying health insurance. Most legal scholars disagree with this interpretation ... — TPMSounds suspiciously like wishful thinking* to me.
* Perhaps even magical thinking.
Incidentally, here is Georgetown law professor Randy Barnett's very recent paper (h/t David Ziemer) on the individual mandate, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional. It's comprehensive, fairly devastating, and has already been cited approvingly by the district court in Florida by way of rejecting the federal government's taxing power argument.
Read it and weep, I'm afraid.
December 9, 2008
Foot tapping is not protected speech
So says a court of appeals in the State of Minnesota by way of denying U.S. Senator Larry Craig (R-Wide Stance) his petition to reconsider a district court's denial of Craig's earlier motion to withdraw his guilty plea to disorderly conduct.
Sen. Craig further argued that the disorderly conduct statute is unconstitutional on First Amendment grounds because it prohibits expressive conduct, in this case, communication by foot tapping to an undercover police officer in an adjacent bathroom stall.
Rather, the said communication was unwanted, observed the appeals court, and the privacy interest against unwanted communication "is very strong in a stall in a public restroom."
Invasion of privacy, therefore, equals disorderly conduct, the court concluded. Craig conceded that foot tapping is not "fighting words."
Craig v. Minnesota (.pdf; 10 pgs.)
Sen. Craig further argued that the disorderly conduct statute is unconstitutional on First Amendment grounds because it prohibits expressive conduct, in this case, communication by foot tapping to an undercover police officer in an adjacent bathroom stall.
Rather, the said communication was unwanted, observed the appeals court, and the privacy interest against unwanted communication "is very strong in a stall in a public restroom."
Invasion of privacy, therefore, equals disorderly conduct, the court concluded. Craig conceded that foot tapping is not "fighting words."
Craig v. Minnesota (.pdf; 10 pgs.)
March 6, 2010
Know it when you see it
A reader asks whether the Badger Herald would publish a paid advertisement containing a hyperlink to a "porn site":
Why mightn't that include Holocaust denial? "[Especially that] designed to incite lust or depravity," M-W's Collegiate definition number 2 goes on. Especially, but not exclusively.
It needn't offend your morality or decency, but it does a substantial constituent of the polity which, under the circumstances (a literal and very recent genocide), is entitled to a degree of deference.
Holocaust "revisionist" Bradley Smith's advertisement, complete with a link to his own website, currently appears on every single page of the Badger Herald's online edition. This is his patronizing plea:
Well, since that would fall under the "obscene" category, then no, it wouldn't be run. — Kevin Bargnes, chairman, BH Board of Directorsobscene adj 1 : REPULSIVE 2 : deeply offensive to morality or decency — Merriam-Webster's Collegiate Dictionary
Why mightn't that include Holocaust denial? "[Especially that] designed to incite lust or depravity," M-W's Collegiate definition number 2 goes on. Especially, but not exclusively.
It needn't offend your morality or decency, but it does a substantial constituent of the polity which, under the circumstances (a literal and very recent genocide), is entitled to a degree of deference.
Holocaust "revisionist" Bradley Smith's advertisement, complete with a link to his own website, currently appears on every single page of the Badger Herald's online edition. This is his patronizing plea:
Help me help student journalists allow these questions to be asked in the pages of their newspapers.Such passive selflessness ... here, let me fetch you a tissue.
Your contribution of $25 a month will help me place more ads, and bigger ads, in more student newspapers.Like I said, the Badger Herald got itself played like a cheap fiddle.
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