Thursday, February 06, 2003

The Solicitor General's Role. We all know from our elementary school social studies classes that the government is divided into three branches. We are all familiar with the major offices of the federal government. Those of us who have a strong passion for politics have a somewhat greater familiarity with the workings of the federal government. But one area which doesn't get discussed very much is the particular relationship between the Solicitor General (currently Ted Olson) and the Supreme Court. For a fascinating look at this relationship, as told by examining the SG's recent brief to the Supreme Court on behalf of the plaintiffs in the upcoming University of Michigan affirmative action cases, please refer to this article.

The article, written by Edward Lazarus, also takes a critical look at many of the issues contained in the SG's brief in this matter. Interestingly, the brief ignores the best available arguments against affirmative action. This was a political calculation. Especially in light of the Trent Lott fiasco, the White House is already pushing the envelope of how hard it can fight against affirmative action. On the other hand, in light of the 2002 election, hard-core conservatives are expecting Bush to take advantage of his position as the most powerful President in recent history. Bush is stuck in the middle of competing political interests, as all politicians are. His compromise was to argue against the University of Michigan, but refuse to either support or attack affirmative action in general. Lazarus argues that this gutless approach violates the close relationship between the Court and the SG, which requires that the SG always be candid, forthright, and meticulously well-reasoned in its briefs. he brief actually submitted in this matter is, according to all reports I've seen, illogical and craven.

Regardless of what you think about the University of Michigan cases, or about affirmative action in general, this is a fascinating article that I reccommend to anyone who wants to know more about government than 95% of the journalists we get our news from.
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Coincidentally, Edward Lazarus made a cameo appearance in Josh Marshall's blog yesterday. It looks like Miguel Estrada, who has been nominated to the US Circuit Court of Appeals for the District of Columbia, may have lied to Dianne Feinstein during his confirmation hearing. I'm surprised that Mr. Marshall is so concerned about this. I mean, Clarence Thomas lied in his, and William Rehnquist lied in when he was appointed to the Court, and again when he was appointed Chief Justice. I would have been more surprised if Estrada hadn't lied. Anyway, in making the case against Estrada, Marshall refers to Estrada's days as a clerk for Justice Kennedy. Also clerking for the Court at the same time was Edward Lazarus, whose name pops up in Marshall's account. Weird coincidence.

Wednesday, February 05, 2003

Can the Jury Take Back a Verdict? Here's an interesting case. According to this article in the New York Times, the jury that convicted a man for growing and distributing marijuana has changed its mind. Ed Rosenthal had a California state permit to grow and distribute marijuana for medicinal purposes. Residents of California state, along with several others, have voted in the last few years to allow the cultivation, distribution, and use of marijuana on the advice of a physician. The federal government, however, permits no such exception to the federal drug laws. Taking a break from protecting the country from terrorism, Attorney General John Ashcroft has decided to redouble the government's effort against the nation-wide scourge of marijuana abuse. So, they prosecuted Ed Rosenthal under federal law.

The defense in the case was barred from mentioning the California state law. The reason for this is that this was a prosecution under federal law, and according to the "supremacy" clause of the federal Constitution, federal law trumps state law. Therefore, the existence of a California statute, and the defendant's full compliance with that statute, were not considere relevant issues by the court. But the jury has a different view. Several jurors have stepped forward to publicly apologize to Mr. Rosenthal for convicting him. They have stated outright that, had they known of the California statute, they would not have convicted him. Moreover, they also atended Rosenthal's bail hearing to tacitly pressure the judge to set bail. The federal prosecutors argued that he should be held without bail. The judge sided with the defendant. Mr. Rosenthal's sentence is pending, but the jurors are already calling for a new trial. Ironically, they are being joined by the California District Attorney's office.

This issue is all about federal vs. state law. Legally speaking, the trial court was correct that the existence of the state law is not relevant. Whether or not Mr. Rosenthal was in compliance with state law, he was violating federal law. On that analysis, his conviction is no doubt correct. On the other hand, the jurors did not know why he was cultivating marijuana, and clearly, the answer to that question was relevant to their decision. Under our system, the jury has the power to completely disregard the law if they feel that an injustice would result from the correct application of the law. This is clearly how they felt about this case. But the federal government refuses to allow the individual states to decide for themselves whether or not they want marijuana to be prescribed by doctors to the terminally ill. In fact, the federal government is so adamant that marijuana is EVIL, the states must not be allowed to lessen the restrictions on it.

I don't know what's going to happen to Ed Rosenthal. I don't know what should happen to Ed Rosenthal. But I hope his case brings more awareness to the heavy-handed, over-bearing activities of the Ashcroft Justice Department. Anyone remember when Ashcroft took another time out from the War on Terror to prosecute doctors in Oregon for prescribing medicine to facilitate patient's suicides? Someone needs to sit Ashcroft down and get his priorities in order. Stop the terrorists, Mr. Attorney General. Concentrate on them. Let the states deal with this small stuff on their own.

Monday, February 03, 2003

Get Your Facts Right. My friend Tucker has a long a post up about the McDonald's lawsuit, which I thought was dismissed a week or two ago. Whatever. Like most people who don't know anything about the law, Tucker has an opinion about this case, and wants to share it with you. I do know something about the law, but not much. I have no opinion of the McDonald's suit. Why? Because I don't know what the plaintiff's were claiming. How could I have an opinion? Of course, I haven't heard anyone offer an opinion on this case who had even smallest clue what the issue was. It's this kind of self-supporting ignorance, goaded and stoked by the national media (which can't be bothered to research, or even to book knowledgeable experts as guests on their shows), which drives mindless calls for tort reform. "We must have tort reform to protect McDonald's from these moronic lawsuits!" The case was dismissed!!

Read lower, and see how Tucker thinks the shoe-bomber should be executed because it cost too much money to keep him alive in prison. Check your facts, Tucker. It's more expensive to execute prisoers than to keep them for life. I know, it's a shocking statistic, and I don't really understand how it's true, but it is true. And executing someone won't make anyone any safer than keeping him in prison forever would. In both cases, the public is protected from a dangerous criminal, which is the whole point.

So, let's get this straight. You think that the shoe-bomber should be killed, or at least, beat up a lot in prison. As my Bible-burning father would say, that's mighty Christian of you.

[Tucker doesn't have permalinks, so just click the link on the navi-bar to the right, and scroll down to the January 30, 2002 entry "Chewing Fat".]
Blame This on Clinton, I Dare You! According to the latest budget submitted by the White House, we will have a record deficit this year, and a new record deficit next year. How did we go from record surpluses to record deficits in just two years? It took Clinton something like six years to go from record deficits to record surpluses, but only one-third of that time for Bush to more than undo Clinton's historic achievement. Seriously, that's impressive, in a "shockingly-irresponsible" kind of way.

Helen Thomas says Bush is the worst President ever, and she's met them all since Kennedy. When you read articles like this, it's hard not to agree.