And, we're back.

Since it's summer, I'm going to make an attempt to get this blog up and running again.

Cal. Supreme Ct. will hear Prop 8 Challenge

The California Supreme Court granted (cert? discretionary review? not sure how the state's system works) review of three lawsuits challenging the gay marriage ban.

I know nothing more about California law than what I've read in conjunction with this issue, but it seems like the lawsuits have a decent legal argument. Essentially, they're arguing that this is not just an amendment to the constitution, but a change in a legal right that the constitution guaranteed. That's a subtle distinction, but an important one: ballot initiatives can accomplish the former, but not the latter.

The problem is this: even if it's a valid and sound legal argument, it will still be looked at as an attempt to thwart the "will of the people." Of course, that's pure crap -- Prop 8 was passed with 51% of the vote, and maybe 50% of the eligible voters voted in the election. So it's the will of a quarter of the people.

That attack is also crap in another way: the courts are supposed to protect vulnerable minorities from majoritarian excesses. If the 25% of the California population that's still bigoted can use a loophole to change the legal status of citizens, that's a problem. And the courts are supposed to prevent that from happening.

Imagine if this were the 1960s, and Prop 8 forbade interracial marriage. Some of the same people who are against gay marriage now were against (and probably still are, though under the radar) interracial marriage.

Of course, it took a court case to put an end to the de jure prohibition against interracial marriage (Loving v. Virginia). It will probably take another court case to end the modern version of that hatred.

The current SCOTUS isn't likely to look favorably on such a case, but luckily for the Prop 8 challenge, it won't get the chance to rule: the Prop 8 lawsuits are purely a matter of state law, and SCOTUS has no jurisdiction there (unless the challenge is that state law violates the federal constitution, but that argument isn't being made).

California's Supreme Court to Take Up Gay-Marriage Ban - WSJ.com

Let Detroit Go Bankrupt

This is a really, really good op-ed by Mitt Romney. Hopefully Detroit doesn't get its requested bailout.

Imagine the better debate on this issue we could have had if McCain had tapped Romney to be No. 2 instead of tapping the Alaskan Ice Moron.

Update -- WSJ has this article about the gains foreign manufacturers stand to make if Detroit does go bankrupt. In theory, how many of the jobs lost in Detroit could shift to the South?

Op-Ed Contributor - Let Detroit Go Bankrupt - NYTimes.com

The idiocy of popular elections for judges

Judicial elections are stupid. There, I said it. Though it may be undemocratic (small 'd') to say this, the general public has no idea what makes a qualified judge. A judicial candidate shouldn't be selected on the same criteria as are regular political candidates -- i.e., I'm for family values, I'm against gun control, etc. In fact, not so long ago, it used to be against several canons of judicial ethics for a candidate to announce publicly his position on an issue. This makes sense -- a judge shouldn't be seen by litigants or the public as having staked out a position before considering the facts and law in a given case.

Additionally, retired SCOTUS Justice O'Connor has weighed in. "There is too much special interest money and influence in state court elections," O'Connor said recently. "It endangers the public's faith in the justice system. If courts are going to stay impartial, leaders in every state need to get moving on reforms." (Thanks to AP article cited below for these quotations)

The better way to select state judges is via merit selection: a committee reviews a slate of candidates and recommends one to the governor, who appoints the judge. After a given period, say two years, the judge is up for retention (not re-election: the only effect of the vote is a decision whether the judge stays or gets the boot). If the public is sufficiently incensed about the judge's performance, he's sent packing, whereupon the governor appoints a replacement and the process continues.

This allows the benefits of judicial elections -- a democratic (again, small 'd') check on the power of the judiciary -- without the costs associated with potentially unqualified by well-funded candidates displacing experienced judges.

Institutional memory is an important asset. It takes a few years for a judge to find his groove and to get familiar with the lay of the land. A judge who has a few years under his belt is far more valuable to the bar and to the public than a newbie.

Update: SCOTUS will hear a case dealing with judicial ethics and tangentially involving judicial campaign financing. It seems that a certain West Virginia Supreme Court justice declined to recuse himself from a case in which a $50m verdict against his largest campaign donor was overturned. Really, though, what's $50 million among friends? Read more about the case, Caperton v. Massey, here and here.

When SCOTUS does hear the case, it will be interesting to hear what Justice Scalia has to say about it; you'll recall that in 2004, he faced quite a bit of criticism when he failed to recuse himself from a case in which VPOTUS Cheney's energy policy was the issue. A few weeks before argument (might have the timing wrong; it might have been months), he went duck hunting and fishing with Cheney at a private hunting camp. Sure, he didn't share the same duck blind with Cheney, but what about the fishing boat?

Oh, by the way, speaking of Scalia, this just in: it seems he spent this past weekend hunting with the author of an amicus brief in the huge Pharma case, Wyeth v. Levine (summary here), which was argued today. Um, wow. That's about all that can be said.

And another update: NYT has this article about some of the late Chief Justice Rehnquist's papers. Interesting stuff; the reason I include it in this post is because of the discussion on judicial ethics and recusal. Rehnquist faced stiff criticism for failing to recuse from a case early in his tenure as Associate Justice, then seemingly reversed course and recused himself from the consideration of US v. Nixon (yes, that one).

The attack on merit selection for judges. - By Bert Brandenburg - Slate Magazine

Kitchy monuments and mummified pets: SCOTUS takes on Summum

An interesting case from Utah. Pleasant Grove City has a park it says is dedicated to its "pioneer heritage." To celebrate that heritage, it has a number of privately-donated monuments. There's a log cabin, a Mormon religious artifact, a monument to firefighters who died on Sept. 11 (an Eagle Scout's public service project -- not sure how that's related to pioneer heritage, but whatever), and a monument to the Ten Commandments.

A weird (no really, it's weird) religious group called Summum wanted to put its own monument up in the park, right next to the 10 Commandments monument. Summum believes that before Moses came down the mountain with the Commandments, he received Seven Aphorisms from God. Apparently the Israelites weren't ready, so he hid the Aphorisms away and went to get the Commandments. But the Aphorisms have been passed down through history, and now they've appeared in Utah.

Anyway, the city, predictably, said "thanks, but no thanks" to that monument. Summum sued, and eventually won at the Court of Appeals. The city petitioned the Court for certiorari, and got it.

Oral arguments were a couple of days ago. You can read about them here and here.

The case boils down to this: if the Eagles monument and the Summum monument are private speech, then the city is engaging in viewpoint discrimination. If the city has “adopted” the monuments in the park, then the monuments are government speech — and government can say nearly whatever it wants. The problem with that is that what it’s saying here is “we think the 10 commandments are better than the seven aphorisms.” That constitutes an official statement of preference for one religion over another. That’s an establishment clause violation. There wasn’t an establishment question before the Court, but there was an establishment issue in earlier proceedings (it just wasn’t appealed). Procedurally it’s complicated, but I think the case will (should) get remanded for additional factfinding on the question whether the government speech (if that’s what it is) is itself a violation of the establishment clause.

Law Blog - WSJ.com : Seven Aphorisms and the First Amendment: A Look at Oral Arguments

Read more in this WSJ summary and this NYT editorial.

Dallas DA re-examines questionable convictions

I get the knee-jerk reaction, but why are prosecutors really mad at this guy? If you go from the premise that those who he clears with DNA evidence are actually innocent, then why in the world would prosecutors want to keep them in jail? Won't the public have more confidence in those that the DA convicts? What is wrong with this picture?

The Exonerator - WSJ.com

Which School Will Pass the Obamas' Test? - washingtonpost.com

I think Michelle Rhee's daughters go to a DC public school. Surely the Obamas cannot be expected to throw their daughters into a poor academic environment (or, infinitely worse, a dangerous environment), but if there's a school good enough for the Chancellor's daughters, might that school also be worth considering? Imagine the message of support it would send to teachers, parents, and students in the DC public schools!

Sadly, this probably isn't an option. Real life isn't the West Wing, and there are too many risks and variables associated with gambling on a public school.

What a commentary on the sorry state of American education.

PS -- thanks to Amy for the correction re: number of Rhee's daughters.

Which School Will Pass the Obamas' Test? - washingtonpost.com