Unbelievably stupid


What to do when your print divisions are floundering?

Not realizing that mutual linking actually drives advertising revenue by boosting web traffic rather than detracts from it, the AP recently came out with a shockingly obtuse pricing scheme that purports to charge blogs up to $12.50 for as little as 5 excerpted words from an AP story.

Forward thinking

Apart from the obvious and dubious legal veracity of such a proposition, the AP apparently failed to consider or conceive of the potential reciprocal effects of such a policy.

New logo?

Prominent blogger Michelle Malkin recently calculated the amount the AP would owe her under its own pricing schedule for its quotation of her content to be $132,125.

She did the same calculation for Patterico and found the AP potentially owes that site $188,750 under the AP policy. Patterico commented on the AP’s use of Patterico‘s content, remarking:

So am I going to be an a[$$] and threaten to charge them, or sue them, or demand that they remove the quotes? Of course not. They benefited from my content and I benefited from their link.

Thx to Michelle Malkin and Patterico’s Pontifications

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Jacka$$

How bad does one’s political blunder have to be to not only force the end of a previously promising gubernatorial bid, but to impact a presidential race almost two decades later? Very, very bad indeed.

Many here in Texas have distant and dusty memories of the West Texas oilcatter and Aggie, Clayton Williams, who ran unsuccessfully for governor against Ann Richards in 1990. His campaign was going fairly well until he started lobbing rape and drinking “jokes” against his opponent who had publicly acknowledged struggles with alcohol.

Classy

Perhaps almost as unforgivable as his tasteless broadsides against Governor Richards, Claytie also made headlines when he refused to shake her hand before a debate in Dallas.

Well, John McCain‘s army of vetting wizards apparently failed to uncover these obscure political nuggets in Claytie’s past when they scheduled a fundraiser for Senator McCain at Claytie’s house in Midland. Senator Obama‘s team was quick to point out Claytie’s unsavory past, and McCain rescheduled the fundraiser, but decided to keep the $300,000 or so already raised with Claytie’s assistance.

Thx to the Politico’s Jonathan Martin and Texas on the Potomac

El Jefe

One might as well treat Justice Scalia‘s dissent from last week’s majority opinion in Boumediene v. Bush, Nos. 06-1195 & 06-1196 (June 12, 2008) as an addendum to his recent legal writing tome with Bryan Garner, largely and frustratingly unavailable here in Austin.

This is because it illustrates how to write a scathing yet persuasive dissent that will likely be viewed by future Justices and Court observers in much the same jurisprudential light as Justice Jackson‘s dissent from the majority opinion in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) is now seen, which famously rebuked the majority’s condoning of the internment of U.S. citizens of Japanese descent during WWII.

Justice Scalia’s dissent is masterful both in its tone and its construction. Part I lays out the policy fallout from the decision (i.e., the practical, real-world implications). Part II excoriates the majority’s attempt to brazenly recast the governing precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950). Part III traces the juristic history of the writ of habeas corpus from its codification in 1679 Britain to the present day, and explains why the majority’s decision is such a stunning departure from the entirety of Western common law previously construing and defining the boundaries of the writ.

As far as the text itself, no paraphrasing can do it justice. Below are selected excerpts from the opinon.

The classic first sentence:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

Boumediene, slip op. at 1 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.). And then, the meat of Part I:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Id. at 2. Talk about “plain language,” you can’t get much plainer than that.

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the namesof 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.

Id. at 4-5 (citations omitted). After recounting the bromide four of the five-Justice majority in Boumediene previously offered in Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (Breyer, J., concurring in part, joined by Kennedy, Souter, and Ginsburg, J.J.)—namely that “[n]othing prevents the President from returing to Congress to seek the authority [for trial by military commission] he believes necessary”—Justice Scalia curtly observes:

Turns out they were just kidding.

Boumediene, slip op. at 5 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisonersin this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Id. at 6. Ouch.

It is both irrational and arrogant to say that the answer [to the question of “whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims”] must be yes, because otherwise we would not be supreme.

Id. at 18. Calling out his colleagues for their juristic arrogance. And from the final paragraph:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And the most sobering, bold, and blood-chilling line I think I may have ever read in a SCOTUS dissent, the last line cautions:

The Nation will live to regret what the Court has done today.

Let’s hope not.

* * * UPDATE * * *

For a fascinating examination of the Boumediene decision, see Professor John Yoo‘s op-ed in this morning’s Wall Street Journal. This article is all the more interesting because Justice Scalia cites in his dissent to a memo Professor Yoo authored while at the Office of Legal Counsel that relied upon the then-accepted interpretation of Eisentrager. See Boumediene, slip op. at 3 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

* * * UPDATED UPDATE * * *

It is humorous to note that Justice Scalia “sics” the Justice he has publicly acknowledged as the best writer ever to sit on the Court, Justice Jackson, for the former Justice’s use of the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” Id. at 9. So strong is Justice Scalia’s dislike for this phrasing that he has stated its use makes the author sound “illiterate.”


Thx to Justice Scalia for his incomparable wit and eloquence.

Early Sunday morning, some cowardly soul set fire to the Texas Governor’s Mansion. Completed almost one hundred and fifty-two years ago on June 14, 1856, the Governor’s Mansion is one of Texas’s most historic structures, having housed Sam Houston during his first term as Governor.

In the downstairs parlors:

where Texas’ first presidential visitor, William McKinley, was received in 1901, plaster could be seen cracked and broken. Smoke damage was heavy, and windows were broken and charred.

The dining room—where famed humorist Will Rogers once ate so much chili with Gov. Miriam Ferguson that he had no room for dessert — was blackened and still smoldering.

Because the mansion was currently undergoing an extensive renovation, thankfully “all of the furnishings and official items had been removed” including “the window casements.” Some these irreplaceable items include original and seminal Texas history works of art and Stephen F. Austin‘s writing desk.

I’m not a criminal lawyer, so I don’t know what the Penal Code provides as a sentence for arson, but I’m all in favor of upping it to life in prison in this instance—or even worse—permanent banishment from Texas. Whatever misguided and mangled soul set this fire, they’ve forever given up their right to enjoy life in our fair State.

unbelievable

unbelievable

unbelievable

Thx to the Austinist, the Statesman, BurkaBlog, and State Fire Marshal Paul Maldonado, who is leading the investigation and has promised that “[w]e’re going to come get the person responsible for causing this damage.” Amen brother.

Boo-yah

Today’s SCOTX orders contain a little gem noted by both the Texas Appellate Law Blog and SCOTX Blog.

In In re Roberts (No. 05‑0362) (orig. proceeding) (per curiam), the Court (J. Johnson not sitting) dryly observes that:

[T]he only harm involved is a 30-day delay. By contrast, this original proceeding has now delayed the case for four years …. By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments.

Kudos to the authoring Justice of this one: very subtle yet very effective.

Thx to the Texas Appellate Law Blog and SCOTX Blog

The booking photo says it all

This blog’s newfound buddy, Adam “[Gee, maybe I’m not so] Bulletproof” Reposa, is–unfortunately–back in the news.

Tex Parte Blog just came across the ad mentioned here a few months ago and used quite effectively by the prosecution as an exhibit at Reposa’s trial for demonstrating an alternative hand sign for “contempt.”

Reposa has filed a writ of habeas corpus with the Texas Court of Criminal Appeals complaining his 90-day contempt sentence is excessive. In his writ, Reposa alleges that he was denied due process and due course of law when “Judge Davis declined to follow criminal procedure in ascertaining applicant’s guilt” by allowing the state to introduce evidence of extraneous conduct, i.e., the ad mentioned above from something called Whoopsy magazine, which is apparently distributed in some Austin clubs.

Of course it is.

In a letter sent by one of Reposa’s attorneys to the State Bar‘s Advertising Review Committee responding to the committee’s letter that threatened to report Reposa to the State Bar’s grievance committee, Reposa’s counsel justified the ad (presumably with a straight face) by stating:

If one was acquainted with Mr. Reposa when he was 11 years old, then they might connect this parody with him, but otherwise, no casual reader would regard this parody as an advertisement for a specific lawyer.

No, of course not. Except for the fact that the ad repeatedly mentions it references an Austin DWI attorney who has given himself the moniker, “Bulletproof.” It just so happens that there’s only one Austin DWI attorney–or any attorney in the state for that matter–who [in]famously holds himself out with the nickname “Bulletproof.”

Surely no one could connect those disparate dots?

Thx to Tex Parte Blog, Texas Lawyer, and Awesomeness For Awesome’s Sake

Good night and good luck

You hear Keith Olbermann go off on one of his unhinged tirades, keep in mind that the insanely-mustachioed Geraldo impersonator pictured above is the man you’re listening to.

Have to admit though, he and Dan Patrick were probably the best sportscasting team ever to hit the airwaves.

Thx to Deadspin and Flash Sports Tonight

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