Via Professor Orin Kerr at Volokh Conspiracy comes this example of a judiciary in trouble. This is from a dissenting judge in a recent Sixth Circuit case about searches and seizures of email (PDF). The en banc decision dismissed for lack of ripeness. One of the original panel judges dissented and absolutely loses his shit:

While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 200 . History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.

There are a couple of things to note here. First, I'm amazed at the disdain that this judge shows for the judiciary in general, and the Supreme Court in particular. Of course judges disagree with each other and with the Supreme Court. In fact, all lawyers who are litigators are wrong half the time---that's the point of an adversarial system (keep that in mind the next time you hire one!). Usually, judges---especially federal appeals judges---exercise a little dignity and decorum in disagreements with other jurists. This judge has shamefully added his voice to those who question our entire system of justice.

Second, his explicit disagreement with the Heller decision calls into question his ability to fairly adjudicate gun cases that come before him...at least, that's the argument I would make if I were in his court. Note that this is not uncommon in the lower courts. The individual rights view of gun ownership has not penetrated the judiciary to the extent it has the general populace in the past twenty years. Much of the judiciary is having to adapt to a changed worldview, and they don't plan to go about it quietly.

Finally, as the majority notes, when a court dismisses a case because it is not ripe, the court is making no judgment approving or disapproving of the underlying statutes or constitutional claims. They're just saying that there is no justiciable case at this time. It can, of course, come up properly when circumstances change.

Posted by: Gabriel Malor at 08:26 AM | Comments (34)
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The guy lived. more...

Posted by: Ace at 07:46 PM | Comments (62)
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It's official: Britain is the Florida of Europe.

Posted by: Ace at 01:37 PM | Comments (53)
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I'm not sure who exposed it, or how much credit Brian Ledbetter of SnappedShot should have (he was filling my email box), or LAHawk, but I can see that Charles Johnson exposed the picture as a photoshop at 9:00 PM Eastern last night while the NYT filed the same story at 9:00 AM this morning.

Whether CJ deserves all the credit, I don't know. I do know the NYT deserves little of it, and ought to stop claiming otherwise.

Thanks to CJ. No, a different CJ.

Posted by: Ace at 01:32 PM | Comments (38)
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Just over FoxNews now.

Kevin J. pointed out I hadn't linked anything about the remarks. Apologies. I just cut this clip from FoxNews on RedLasso.

This is just Shep Smith -- yes, an arrogant liberal prick -- digesting his remarks, shorn of context, but I don't really think context can really keep this from being an ill-advised insult.

Watch Obama -- who's had two weeks of bad press and gaffes and "refinements" -- enjoy the moment as he turns to the attack.

An unforced error. Inexcusable.

Posted by: Ace at 01:16 PM | Comments (58)
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A "nation of whiners" sometimes gets results for its kvetching.

Senate Minority Whip Jon Kyl (R-Ariz.) said Wednesday that Democratic and Republican leaders are negotiating a compromise on energy legislation.
Photo: John Shinkle

In the stages of grief, denial gives way to anger and then to bargaining.

It may be an apt metaphor this week, as DemocratsÂ’ long-held opposition to expanded offshore oil drilling succumbs to the political realities of $4-per-gallon gasoline.

Senate Minority Whip Jon Kyl (R-Ariz.) said Wednesday that Democratic and Republican leaders are negotiating a compromise on energy legislation. Kyl declined to say whoÂ’s doing the negotiating or what results, if any, their discussions have yielded.

But Sen. John Warner (R-Va.), a longtime proponent of increased offshore drilling, said he was seeing “a big shift, a big shift in my direction,” and it was hard to find Democrats who disagreed.

“I’m not knee-jerk opposed to anything,” said Senate Majority Leader Harry Reid (D-Nev.). “We’re willing to work. We haven’t shut our minds to anything.”

Democrats seem to be begging for a passel of almost-meaningless "conditions," just to show the nutroots they "fought" the Republicans on this. Harry Reid wants a guarantee that oil produced in America would be sold in America (who cares? It's all fungible, and of course it almost all would be anyway, based just on the fact that it's cheaper to keep it here than transport it) or some sort of certification that oil companies are showing good-faith efforts to exploit the leases they already have (they are, of course).

Minority Leader Boehner, meanwhile, offers the Republicans' plan: "All of the Above." Anything suggested, we do. Including the goofy shit like wind power. So long as the nitwit Democrats let us drill for oil.

It's true that's money poorly spent, but in this case I think it's justifiable as a necessary bribe to the environmentally-deranged public. We have to waste money to convince the public to avoid a recession.

And, who knows, there's a 0.001% chance some of that boondoggle research and subsidy crap might pay off.

Posted by: Ace at 12:57 PM | Comments (33)
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Apparently teachers are under the misimpression that we're having a raffle on a brand new LeBaron for most depraved rape of an underaged child.

Even so, I hope that everyone who thought this was a contest now understands it's over, and the prize has been claimed.

Posted by: Ace at 12:32 PM | Comments (43)
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Here's Slublog's.

Here's Dave's.

Here's my two-second effort.

The structure of it really limits the messaging. You get to pick a noun, basically.

Still, kinda fun. Here's the site for making your own.

Posted by: Ace at 12:09 PM | Comments (252)
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Damnit, I was just writing this post, to be headlined "Throw Phil Gramm Under the Bus!"

Gramm's statements were insulting to Americans -- he called us a "nation of whiners." This is nearly as bad as Obama himself calling Americans "bitter" and "clingy." It's only less bad because McCain didn't say it himself.

The statement was wretched politics. First of all, we are not technically in a recession, but it is all but guaranteed. When we spend money on products made by Americans, we are paying the salaries of all those Americans who made that product. With fuel costs skyrocketing, we simply cannot afford to pay the salaries of as many Americans -- thus, we will lose jobs, we will lose wealth, we will lose productivity. The additional money we're paying for fuel, both directly and indirectly, is going almost entirely into foreign pockets, and furthermore we're paying more money for the same amount of fuel. (Less, actually.) We're not even creating additional jobs by buying more fuel.

Secondly, the media has convinced the country we are in a recession, and in fact have been in a recession for seven years. According to the media, Bush began his term in a recession, then the economy grew a bit so that we we could continue to be in a recession, and lately has fallen precipitously from the previous recession into a fresh recession.

There is nothing to be gained from fighting this. As they say, do not pick a fight with someone who buys printing ink by the barrel-full. McCain, wisely, has chosen to pretend we're in a recession, because to claim otherwise sets him for the media attacking him for "being out-of-touch with the concerns of ordinary Americans."

McCain knows we're not in a recession. But he also knows he is forbidden to claim we're not in one. So he plays the media's game-- and he's wise to do so.

Finally, this was idiotic because the American people are not the bad guys here. When Americans have been polled on their personal economic situations in the recent passed, the great majority reported they were doing fair to very well. But when asked how the country is faring, they consistently say we're on the wrong track, in a recession, and all that.

What accounts for this great divergence between personal, anecdotal data on the economy one one's feelings about the entire country's economy? Well, one knows one's own finances first-hand, but one only knows about the national economy from the media. And the media has been pounding the drumbeat of recession and economic crisis for seven long, long fucking years.

How could the American people think otherwise? The media has consistently downplayed the actual numbers on the economy while always talking up crisis just over the horizon, or already upon us.

For God's sake, they were still talking recession when the economy spiked over 6% growth in one quarter. They shifted from the "technical" definition of a recession (which is, by the way, the real one) to reporting a recession according to how people "feel."

Never mind the actual numbers -- let's talk about what a large groups of non-experts without economics training or access to the actual data feel about information they've never seen.

So if Gramm wanted to make this point, he attacked the wrong target. In political terms, attacking the media is a winner; attacking the voters, not so much. And in terms of simple reality, he also attacked the wrong group. The public has been lied to constantly for seven years; that's not their fault. It's the fucking media's.

This is a serious blunder, and one which will haunt McCain. Obama's like a pig in shit misrepresenting Gramm's statements. He just claimed Gramm said that "high gas prices are just a figment of your imagination," which Gramm didn't say; he said merely, correctly, that we were not yet in a recession.

And the gall of Obama -- who actually favors high gas prices and resists every attempt to increase supply -- to dare suggest such a thing.

Nevertheless, dishonesty aside, the damage is done. And so should be Phil Gramm. McCain is rebuking Gramm, but that's not enough.

Cut him loose. Not because he's an incompetent or a bad guy. Of course Gramm knows his onions. But he is a political liability, and quite a bad one, and surely there are any number of competent economic advisers to be had who have not insulted the voting public for no very good reason at all.

Posted by: Ace at 11:43 AM | Comments (53)
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In other news, pigs were seen flying over the Empire State building, and elephants were dancing like Fred Astaire at the San Diego zoo.

Posted by: Purple Avenger at 11:29 AM | Comments (15)
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