Footnote Four

A collection of thoughts on Law and Politics and how small, seemingly unimportant things (like footnotes) can become large and important vehicles for historical transformation (like the infamous Footnote Four).

Saturday, February 04, 2006

New Legal Show on CBS




For part of CBS's new fall lineup, they are preparing a pilot based on Kermit Roosevelt's book, "In the Shadow of the Law". Roosevelt, a law professor at UPenn, is a former Supreme Court clerk and a great storyteller. As someone who has read this book, I can say that I'm genuinely looking forward to the pilot and hope that the show gets picked up.

Joshua Jackson (of Dawson's Creek fame) is going to be playing the main character Mark Clayton, an associate at a fictional D.C. law firm. The show seems to be reminiscent of "The Practice" but set for a younger audience and at a large firm as opposed to a small one.

Hopefully Professor Roosevelt's second book will be as good as his first.

Friday, February 03, 2006

Looks Like I Spoke Too Soon

In my last post where I made a comparison between Senators Obama and McCain I had no idea that the Washington Post would have an article up today on both of them. It seems that Senator Obama has shrugged off the idea of forming a bi-partisan task force to look at reform with McCain. It seems as though Obama isn't that interested in being linked with McCain. Interesting indeed...

Thursday, February 02, 2006

Obama's First Year




One of the lead stories in the American Prospect this month details the first year in office of Barack Obama, the darling of the Democratic Party. It's an excellent article and provides a lot of introspection with regards to the huge amount of pressure that he was under from the very beginning to live up to the hype, while still being 99th in Senate seniority. Obama is the John McCain of the Democratic Party in the sense that he has huge cross-party appeal and you can't always predict how he will side on a particular issue. He seems to have continually shown that throughout his first year in the Senate. We can expect great things to continue to come from Obama in the future.

The Forgotten Americans




The citizens of New Orleans and the surrounding areas really are the most forgotten souls in America. It seems horrible that six months after Katrina we don't really hear about it any more. Were it not for the fact that my parent's house was destroyed in Katrina, I wouldn't know of or hear about it anymore since the major news outlets have largely left it behind.

In Bush's State of the Union, only 165 of his 5300 words (or just over 3%) were directed to hurricane recovery and the word "Katrina" was not used at all. It seems horrible that the largest natural disaster in 100 years is only six months behind us and we've forgotten all about it. There are still people living in tents hoping to get a FEMA trailer some time soon with no real end in sight.

It's time for the U.S. to allocate more of their resources for improving the lives of their citizens at home instead of abroad. I don't have the total count, but I can say with certainty that the words "Iraq", "Homeland" and "Terror" constituted more than 3% of the speech.

Good Job Joe




I really want to take a minute to applaud the efforts of West Virginia's governor, Joe Manchin. I once wrote a paper analyzing the WV governor's race (back in 2004) and I had predicted at the time that he would win and do an excellent job. I think that he has lived up to that prediction.

On Wednesday there were two additional mining accidents in WV, bringing the total number of miners killed recently to 16. He called for a temporary shutdown of all mines in WV so that they can all undergo new safety screenings by state and federal authorities. Normally mines are inspected every three months, but there's obviously something wrong in a state where so far this year there have been three times as many deaths as there were in all of 2005.

The one thing that strikes me about Governor Manchin more than anything though, is how genuinely upset and concerned he is. WV is the leading coal producer in the U.S. and this mining shutdown will certainly cause them a significant loss of production and revenue. He really doesn't seem to mind. When disasters befall other states the governor is always the first on television and I always feel like they don't really care as much as they purport to. Manchin's uncle was killed in a mining accident many years ago, members of his family still work in mines, etc - bottom line: he gets it. How many times has Kathleen Blanco lived in the Ninth Ward, how many of her cousins were trapped in the Superdome, etc - bottom line: she doesn't get it. This leads to me to wonder if bigger and better things may be in his political future?

WV is an interesting case study in politics though. Both of their senators are old-school Southern Democrats (Byrd and Rockefeller), as is Manchin, but their residents turned out in droves in 2000 and 2004 to vote for George W. Bush. It goes to show you that the unions still have a good strangle-hold over the state and Senate races, but people vote their religion for President no matter what the union says.

I really like when the hard-working guy wins. In Ohio you have Bob Taft, about as crooked of a politician as you can find (and as connected - did I mention his name was Taft - as you can get). But in WV, they voted for the small town guy Joe Manchin. He strikes me simply as a hard-working man who cares about the state and its citizens. I think WV is lucky to have Joe Manchin!

Wednesday, February 01, 2006

Sandra Day O'Connor's Chair




According to Supreme Court tradition, when a Justice retires the other Justices pitch in to purchase the chair that the retiring Justice used for oral arguments. When J. Blackmun retired each Justice pitched in and paid $5.60 to purchase his chair. The Court places a depreciated value on the chair and then the new incoming Justice picks out a new chair for him/herself.

It seems pretty unfair that after 20+ years on the Court you have to buy out your own chair. Apparently this same rule doesn't apply to the White House (remember Bill Clinton's parting gift of furniture and china). I wonder how much O'Connor's chair will be worth?

Congratulations Justice Breyer!




With the confirmation of Justice Alito yesterday, I began to wonder about the new role he will play. I'm not talking about how he will vote, but how he will open the conference door. According to Supreme Court tradition, the most junior Associate Justice always opens the door when the Justices are in conference. During this meeting no one else is allowed into the room (no clerks or secretaries) and so someone is responsible for opening the door to receive messages as well as recording the votes.

I had always assumed that this was a fairly trivial position, but according to a book I was recently reading about Justice Blackmun, it is actually a pretty important role. He has written that the way the votes are tabulated is important and it also can be nervewracking to have to get up and answer the door during conference while you're trying to state your position or keep track of the multiple positions of the other justices.

The other interesting thing about this change is that Justice Breyer is no longer the most junior Justice (CJ Roberts never had to answer the door since he was immediately elevated to CJ), so he relinquishes the job to Justice Alito. He has held the position since 1994 and I wondered if that was a record. The Washington Post seems to have beaten me to this research and it turns out that Justice Story (who served from 1812-1845) held the position for just over one month longer than Justice Breyer. Congratulations Justice Breyer for FINALLY gaining some seniority and being able to relax a little more during conference.

Book Review: Sandra Day O'Connor by Joan Biskupic




Sandra Day O'Connor has been in the news so much recently that when I saw a copy of the newest biography on her I had to pick it up. The book received favorable reviews in the New York Times and I had read good things myself about it, so I jumped at the chance.

As someone who reads a lot about the SCOTUS, I was surprised by how little I actually knew about Sandra Day O'Connor (SOC). I think most people in America have now heard about how she is (was) the most influential member of the Court for the last 20 years or so and how her retirement will almost certainly push the ideological balance on the Court further to the right. I knew a little about her struggles to find work in the legal profession even though she had graduated from Stanford Law and I knew that she was one of the only justices who had an active participation in partisan politics prior to joining the Court. Other than this however, I was in the dark.

One of the things that I found most fascinating about this book was the fact the author was really able to let you in on the "social" side of being on the Court as well as the judicial side. Certainly SOC was under a tremendous amount of pressure to please women's groups, her fellow justices and to remain true to her own judicial philosophy, but she managed to accomplish so much despite all of this pressure.

One of the more interesting things I have noticed recently (here and in other books) is that the same people come up over and over again in politics. Let me give you an example. I'm sure that everyone remembers Kenneth Starr, made famous by the Monica Lewinsky scandal of the late 1990s. But, one of the things that I think many people don't know is that he was a key member of the Reagan administration in the early 1980s who helped to select SOC for the Court. He was charged with interviewing her and attempting to find any "skeletons in the closet" that may have thwarted her chances at confirmation. Reagan was so enthusiastic about SOC though, he decided to announce her appointment a few days before a predetermined date. By this time Starr would have certainly found the press clippings pertaining to her time in the Arizona Senate where she voted against a law regulating abortion, but Reagan didn't afford him the luxury. Since we didn't have the Internet, no one knew that SOC had staked out an opinion on abortion, but she was nominated and subsequently confirmed despite a small battle in the Senate. It goes to show you that thanks to technology and the increased polarization of the country, SCOTUS appointees are subjected to much stricter scrutiny (i.e. Alito's famous job application).

Overall I found this book to be highly informative and very easy to read. In addition, I thought that the author did an excellent job of explaining SOC's increasingly important role on the Court. There were a number of transitions that SOC went through and she covered each of them nicely. For example, SOC's increased role of swing-voter after Rehnquist was elevated to Chief in 1986. But, the thing that really set this book apart were the anecdotes about Court life and how SOC interacted with everyone in Washington and specifically on the Court. SOC certainly changed the Court forever through her decisions and opened the doors for women in a number of areas that were traditionally thought to be exclusively male. It is for this that she will be remembered for decades to come.

Free Speech at Funerals?





One of the more controversial stories I've seen in the news recently has to do with a group from Kansas who travels the country protesting at the funerals of American soldiers killed in combat in Iraq. When I first heard of this group on the evening news the thing that struck me was that they must be some sort of Cindy Sheehan, anti-war group. The kind that drives cars with bumper stickers that say "No one died when Clinton lied." I couldn't have been more wrong.

The group, loosely affiliated as a church from Kansas, is one of the most radical, right-of-center groups I've ever heard of. They strike me as nothing short of the Michigan militia, except under the guise of a church. Their platform is that God is allowing these deaths to occur because the United States is a supporter and enabler of homosexuality. According to their website, godhatesfags.com (no, I am not kidding), the main purpose of the Westboro Baptist Church (WBC) is to preach "the Gospel truth about the soul-damning, nation-destroying notion that "It is OK to be gay." Through their weird logic (that anyone who has taken the LSAT could pick apart), they have decided that it is their Christian mission to travel around telling the mothers and fathers of this world that their children died because the U.S. condones homsexuality.

This obviously presents a problem to a number of family members who are attending the funerals of their loved ones and who are understandably distraught. It seems though, that since they've begun to receive all of this recent attention, they've decided to branch out a bit. Now it seems like their main purpose is to get on television as much as possible. They've moved on from soldier funerals to other high-profile funerals so that the mass media will see them out there pushing their hate message as far as it will take them. They just announced that they will be protesting at the funeral of Coretta Scott King, a woman who is almost universally loved throughout the United States.

In response to this though, many state legislatures have beefed up thier efforts to speed through laws aimed at curbing their speech, atleast as it relates to funerals. While the intention is good, it probably isn't a legal action. According to Professor Stone at the University of Chicago Law School, you can't prohibit the content of speech near a funeral, but you can prohibit "noise" near a funeral parlor or other public place as long as the prohibition is enforced equally to everyone. Several states had announced their intention to pass laws that would prohibit protesting within several hundred feet of a funeral, but these will almost certainly fail. However, Indiana seems to have passed a good resolution that may pass constitutional muster. A few weeks ago they passed a bill which "makes disorderly conduct a Class D felony if it occurs within 500 feet of a funeral, burial, memorial service, funeral procession, or viewing." (Full text here)

It seems to be neutral in its application, but obviously challenges will be raised at the true meaning of "tumultuous conduct." One advantage of the law is that it simply is an amendment to a preexisting law which has withstood any challenges in the past on free speech grounds and it makes no mention of content, simply disorderly conduct. Also, the Supreme Court has said in the past that "fighting words" do not constitute a protected area of the First Amendment. It seems that given the right set of circumstances, the actions of the WBC could certainly incite violence and their speech may certainly constitute fighting words. In the Chaplinsky case, the Court held that a phrase such as "a damned fascist" constituted fighting words because it doesn't tend to convey an idea, but is only used to incite a breach of the peace. According to the WBC's own website, some of their written words are far more inciteful than that, so I can only imagine what they say when pushed out in public.

Whatever you believe about homosexuality, this group preaches hate speech in its most awful context and should be put out of business. However, doing it constitutionally may not be an option. As one of the parent's of a dead soldier said, this is what their son died for, the rights of the Constitution, but hopefully as this group continues to picket they can be removed from the line of the sight of those who have turned out to mourn the loss of their loved ones.