Nuclear Option

ACSBlog reports that Sen. Bill Frist’s “nuclear option,” an attempt to curb Democratic filibusters, doesn’t have the numbers for support.

The State of Palliative Care | Health Evolution

As Congress left Washington for its President’s Day week-long recess, Senate Majority Leader Bill Frist appeared not to have corralled enough Republican votes to carry out his often repeated threat to use a parliamentary power-play called the “nuclear option” to extinguish Democrats’ filibusters of judicial nominations. The “nuclear option” covers a variety of stratagems to use a simple 51-49 majority vote to force a floor up-or-down vote on a nominee, rather than the 60 votes prescribed by Senate Rule 22 to end floor debate, or the 67 votes required to change the rules themselves.


Rush and Trial Lawyers?

tr goldman (@trgoldman) | Twitter

Rush Limbaugh and trial lawyers fighting along side? T.R. Goldman of the Legal Times reports that as the federal government attempts to tap into the LLP and “S” corporation goldmine for taxes, trial lawyers may find an unfamiliar ally, Rush Limbaugh.

Most lawyers prefer to organize themselves in LLPs or “S” corporations because of the tax protections they provide. However, a proposal to directly tax these types of businesses is being kicked around Washington. Rush Limbaugh, being a fervent supporter of small businesses, has continually derided these proposals as “stealth taxes.”

Politics certainly makes strange bedfellows.

Asbestos Bill Update

Reuters reports,

WASHINGTON (Reuters) – Senate Republicans will meet again on Thursday to discuss a proposal for a $140 billion asbestos compensation fund, Sen. Arlen Specter said after a lengthy session on the issue on Wednesday.

Speaking after more than an hour with Senate Judiciary Committee Republicans and Senate Majority Leader Bill Frist, Specter said he was “considering” changes in his proposal to address Republican concerns. But the Pennsylvania Republican added that he still hoped to attract Democratic supporters as well.

Specter, the Judiciary Committee chairman, canceled what had been planned as a full meeting of the panel for Thursday in order to meet again with Republicans on the asbestos bill draft. Republicans have raised concerns about whether the proposed fund will provide a final cap on asbestos liability for business and insurers.

On Roper and Stare Decisis

First, in the interest of full disclosure I will admit that I oppose the death penalty in all regards. This bias may or may not interfere with my interpretation of Roper v. Simmons. In any event…many people are having a hard time digesting this ruling not because of the result, but because of the logic behind it. The logic of the opinion goes like this. Courtesy of Mark Stancil,

The Eighth Amendment reflects an evolving standard of decency, discerning which requires a two-step process. First, look at the “objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.” Second, the Court “must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.”

The problem that most have with this case is that the justices have taken it upon themselves to decide the “standard of decency” held by the United States population as a whole. They disagree that it is the Supreme Court who is to decide the “standard of decency.” Now it is one thing to disagree with the Court’s finding as to whether the standard of decency has changed. In fact many people take issue witht this alone, but it is entirely different to take issue with whether it is the Court’s responsibility to decide this issue(i.e., whether juvenile death penalties are “cruel and unusual”).

Here’s a quiz. Who wrote this?

[Petitioners argue] their punishment is contrary to the “evolving standards of decency that mark the progress of a maturing society,” They are correct in asserting that this Court has “not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century,” but instead has interpreted the Amendment “in a flexible and dynamic manner.” In determining what standards have “evolved,” however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole. As we have said, Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.

I’ll give you a hint, his name starts with an “S” and ends with “calia.” Scalia, writing in Stanford v. Kentucky, acknowledges that when determining whether a particular punishment is “cruel and unjust,” the Court must determine the “conceptions of decency…of modern American society as a whole.”

So what was overruled in Roper v. Simmons? The test certainly remained the same. In determining whether the juvenile death penalty is a “cruel and unusual punishment” the Court used the exact method it used fifteen years ago in Standford v. Kentucky. The logic is virtually unchanged. The difference? They reached a different conclusion this time around.

Did they reach a different conclusion based on shaky evidence? Perhaps. Did they overturn Stanford with the reckless disregard for stare decisis? Absolutely not. Stanford put forth a straightfoward analysis. When defining “cruel and unusual” the Court must look toward the conceptions of decency of the society as a whole. In Standford, the Court recognized that the standard of decency will evolve, and after fifteen years, the Court found that it had. It was a simple application of the law.

As I stated before, taking issue with how the Court’s analysis(i.e., how many states have banned juvenile death penalties) panned out is one thing, but saying that the Court abandoned the law and stare decisis is another. In fact, its fallacious.

UPDATE: Matt Barr provides a coherent argument against the silly notion that because the United States is one of the relatively few nations that does(did) allow juvenile death penalties, it is therefore “unusual.”

UPDATE: Kevin Drum seems to agree. Via Prof. Bainbridge.

The Wonders of McCain-Feingold

Well the word on the street is that the FEC is about to lay the smack down on political bloggers. I don’t doubt the seriousness of these concerns, but what I do doubt is the longevity of any government official that actually tries to enforce such a cockamamey idea. Talk about a third rail.

What’s at issue? As you well know the Bipartisan Campaign Reform Act(aka McCain-Feingold act) tightened the reigns considerably on campaign financing and advertisements. The question soon arose as to whether the law applied to the internet. In a 4-2 decision the FEC ruled that the language of the act implied that the world wide web wasn’t included as a “public communication”. However, upset that at least some Americans retained their First Amendment right, Congressmen Christopher Shays and Martin Meehan filed action against the FEC ruling in the D.C. District Court. Here, Judge Colleen Kollar-Kotelly overturned a multitude of FEC findings including the exemption of the internet. Unfortunately, the FEC won’t be appealing. It takes at least four commissioners to vote for an appeal and appanently one of them has switched sides.

In the end, our only hope for recourse is that Congress steps up and redefines the law to exclude the internet. Otherwise virtually every aspect of political blogging could be called into question. Links to political campaign sites? Regulated. Reposting something written on a site connected to a campaign? Regulated. First Amendment to the U.S. Constitution? Non existent.

More at Outside the Beltway, Captain’s Quarters, Eschaton, Pajamahadin, and Begging to Differ.

Ten Commandments Oral Arguments

Howard Bashman has unearthed a copy of oral arguments from the Ten Commandment cases heard on Wednesday. Link.

UPDATE: Outside the Whale writes that the justices indicated their inclination towards “ceremonial deism.” Coined by former Yale Dean Walter Rostow, the term has mades its way into case law via Justice Brennan, and more recently Justice O’Conner in the Newdow case. For more discussion follow the link. My thoughts? If it helps the justices sort through the mess and come to some coherent discernible solution, I’m all for it. I am hesistant, to say the least, given that Establishment Clause jurisprudence suffers from no lack of tests. In fact my favorite Scalia line arises from this predicament.

[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it.

Absolutely a classic.

Justice Department Appeals Tobacco Ruling

The Kansas City Star reports that the Justice Department is requesting en banc review of the D.C. Circuit ruling which prohibits disgorgement of past profits in civil RICO suits against Big Tobacco(my previous comments here and here). I am mystified as to why the Bush administration is even seeking an appeal. As Anthony Sebok writes,

The chances of the D.C. Circuit allowing an en banc appeal are very slim. The opinions written by Judges Sentelle and Williams are very persuasive and they are very highly respected by their colleagues on the court. The same can be said for an appeal to the Supreme Court.

The only explanation I can see is that the Bush administration is feeding the political witch hunt. Considering the costly nature of this sort of litigation, this political maneuver by the President may come at high price to taxpayers.