Ruh Roh

Austin has a long and tortured history with the perpetually-advertised transportation nirvana that is purported to be commuter/light rail.

Well, I have to admit enjoying a little grin reading in this morning’s Statesman that a cadre of officials from the Federal Railroad Administration and Federal Transit Administration in town to discuss granting waivers to operate commuter and freight trains on the same railroad with Capital Metro experienced a minor mishap.

The commuter railcar in which they were riding (at the blazing commuter speed of 5 mph) derailed briefly. Thankfully, no one was injured in the incident, save for maybe the reputation of Capital MetroRail (whose predictable motto is “All Systems Go”).

Thx to the Austinist and the Statesman

Beeeeeer

It must indeed be the End Times when the erudite George Will finds himself agreeing with Homer Simpson: Beer is the root of western civilization.

So says King George in his op-ed in yesterday’s Washington Post:

No beer, no civilization …. The development of civilization depended on urbanization, which depended on beer.

Will credits his thesis to a recent tome by Steven Johnson entitled, “The Ghost Map: The Story of London’s Most Terrifying Epidemic—and How It Changed Science, Cities, and the Modern World.”

Speaking of Duff Beer, the South Lamar Alamo Drafthouse used to serve it (and it was surprisingly good as well), but not sure if they still do.

Thx to George Will and Volokh

Elementary, my dear Stevens

Well, I have already planned to head up to Lubbock for the UTTTU game on November 1, but now it looks like I will be visiting the High Plains twice this fall.

Below, see the text of an email sent from outgoing TTU Dean Walter Huffman announcing that Justice Scalia will be speaking at the Texas Tech Law School‘s newly-established Sandra Day O’Connor Distinguished Lecture series:

On behalf of the Texas Tech University School of Law, I am extremely pleased to inform you that the second annual Justice Sandra Day O’Connor Distinguished Lecture will be presented by U.S. Supreme Court Justice Antonin Scalia. Justice Scalia has agreed to follow the format established by Justice O’Connor and present an evening presentation to the community at large in addition to separate presentations and student events at the School of Law. A specific date for Justice Scalia’s visit to Lubbock will be announced later, but it will be in the Fall of 2008.

It is always an honor for the Texas Tech University School of Law to host a Justice of our Nation’s highest court, and it is a special privilege to host Justice Scalia. His articulate and aggressive defense of his position as a strict adherent to the fundamental principles established by the U.S. Constitution has made him one of the most well-known and oft-quoted members of the current court. He is arguably both the most colorful and the most controversial member of the court, and I am certain his presentations will be both informative and entertaining. I am equally certain that his visit will be an educational highlight that will last in our law student’s memories for a lifetime.

I would be remiss if I did not thank Tech Law Alum Mark Lanier for his extremely generous support of the Sandra Day O’Connor Distinguished Lecture. Simply stated, without Mark Lanier’s support and personal involvement, this very prestigious and important lecture series would not be possible.

Walter B. Huffman
Dean and W. Frank Newton Professor of Law

It is interesting to note that Mark Lanier is the main benefactor of the Sandra Day O’Connor Distinguished Lecture series, despite his less-than-generous treatment by some appellate courts.

Before I head north to the Staked Plains, I plan on boning up on my recent Scalia Stack of Stuff, including watching his full interview with Charlie Rose, reading the transcript of his interview with the ABA, and reviewing his recent comments on the Establishment Clause.

Of course, I’ll also have to enjoy again his dismantling of ACLU President, Nadine Strossen.


And last, but not least, I’ll have to decide on what to wear. It’s down to three t-shirts …..

NiceIpse Dixit

Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting).

PGA Tour, Inc. v. Martin, 532 U.S. 661, 699 (2001) (Scalia, J., joined by Thomas, J., dissenting).

Minnick v. Mississippi, 498 U.S. 146, 166 (1990) (Scalia, J., joined by Rehnquist, C.J., dissenting).

Thx to Justice Scalia, TTU Dean Huffman, Mark Lanier, and CafePress

Officially incompetent

After the leaders of both houses of the Texas Legislature sent a very strongly-worded to the State Auditor in late February calling for review of TxDOT‘s “questionable accounting procedures,” including TxDOT’s projection of a $3.6 billion shortfall by 2015 without accounting for some $8 billion in already-approved road bonds, and its admission of $1 billion “error” in its budget forecasting, the Texas Sunset Advisory Commission (the “Commission”)–charged with recommending every twelve years whether targeted state agencies should be done away with–unsurprisingly issued a stinging rebuke of TxDOT early last month:

Sunset staff found that this atmosphere of distrust permeated most of TxDOT’s actions and determined that it could not be an effective state transportation agency if trust and confidence were not restored …. Significant changes are needed to begin this restoration; tweaking the status quo is simply not enough.

In its report, the Commission called TxDOT “out of control” in pursuing its toll-road agenda. So disgusted with TxDOT was the Commission that it recommended abolishing altogether the five-member Texas Transportation Commission which oversees the agency and replacing it with a leaner executive structure composed only of the agency’s executive director and a single commissioner. The final major recommendation of the Commission was that TxDOT undergo sunset review again in just four years’ time, instead of the normal 12-year review cycle.

Thx to the Statesman

In our continuing series chronicling child actors gone good, we are pleased to introduce you to Isaac Lidsky, formerly known as Barton ‘Weasel’ Wyzell (aka, the new Screech) on “Saved by the Bell: The New Class.”

At the bottom leftWow

Since then, Lidsky has gone on to graduate from Harvard College and Harvard Law School after completing a stint on the Harvard Law Review, clerk for Third Circuit Judge Thomas Ambro, and practice in the Justice Department’s Civil Division and later at Jones Day.

Henceforth, he will also be known as a SCOTUS clerk, where he will be clerking for retired Justice O’Connor during the upcoming term.

Oh, and he’s accomplished all this despite being legally blind for the past fifteen years. To donate to the vision-impairment foundation he created, go to Hope for Vision’s website.

Thx to Above the Law and the Legal Times

I sure as heck am. Stewie Mandel over at SI lists the top ten defining games coming up this season, two of which involve Texas:

4. Oklahoma vs. Texas, Oct. 11. While it’s no guarantee the two Red River rivals will make it to their Shootout unscathed — Oklahoma faces early challenges from Cincinnati, Washington and TCU; Texas faces old nemesis Arkansas — they’re still likely to be vying for no less than a Big 12 championship. Between them, the two schools have won five of the past six crowns (though the Sooners claimed all but one of those).

* * *

7. Texas at Texas Tech, Nov. 1. The schedule sets up favorably for the Red Raiders — who return QB Graham Harrell, WR Michael Crabtree and eight other starters on offense — to make a run at their first Big 12 South title, but to do so they’ll almost certainly have to snap their five-game losing streak to the Longhorns. The ever-outspoken Mike Leach claims poor officiating contributed to the past two defeats.

By the way, ESPN recently voted both Texas’s victory over USC in the 2006 Rose Bowl as the best BCS game ever (Texas also held the number 4 spot for its 2005 Rose Victory over Michigan), and Vince Young‘s performance in that game as the best individual BCS performance ever (with his 2005 Rose Bowl performance against Michigan coming in third).

Speaking of his Vinceness, his coach, Jeff Fisher, used VY as an example at the NFL Rookie Symposium this past weekend of just how far the reach of the modern media is:

The first [picture] showed Young posing with fellow participants in a panel discussion during last year’s rookie symposium.

“You recognize the second guy from the left?” Fisher said. “He was here last year, and you know what he talked about? He talked about off-the-field (behavior) … how you guys have got to be really careful because … one little cell phone camera that sends out (photos or video from) here and it ends up here. And guess what? You’re embarrassed.”

Fisher then called for the next slide, taken from photos that recently circulated on the Internet. It was of Young, shirtless and partying. Additional slides showed the quarterback drinking what appeared to be tequila straight from a bottle.

Fisher’s point: The only time an NFL player has a chance to ever truly be considered “off the field” is when he is in the privacy of his home, without any cameras capturing him in compromising situations.

“You are ‘on the field’ when you walk out the front door,” Fisher said.

Thx to Texas Football, Stewie Mandel, and NFL.com

Zzzzzzzzz

Namely, Justice Ginsburg, who reportedly fell asleep during the reading of the dueling Heller opinions yesterday at SCOTUS.

And as a commenter correctly points out over at Volokh, this is not the first time Justice Ginsburg has been slumber-challenged in the Courtroom. Back in 2006, during the oral arguments in the Texas redistricting case (League of U. Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), Justice Ginsburg apparently snoozed long enough for the Court artist to capture it for posterity.

In her defense in both instances however, anyone who could stay awake through the redistricting mess was likely chemically-imbalanced, and Justice Ginsburg had no doubt read every word of the 154 pages of opinions in Heller, so there wasn’t any great need for her to remain conscious during the reading of the summaries.

Thx to Volokh and the BLT

Old school

NY Yankees slugger Jason Giambi has a new look but I can’t decide whether he looks more like Wade Boggs or Ron Jeremy.

I still remember that home runA few pounds ago

Either way, it’s a much better look than Giambi’s fellow teammate Johnny Damon used to rock.

Johnny Damon?

Oh wait, that’s not Johnny Damon.

Metro

My mistake.

Thx to Deadspin

Little did I know twenty years ago when I first illicitly saw Predator that it was not just a classic action movie starring both the Terminator and Apollo Creed fighting an alien, but that it was also a veritable breeding-ground of future politicians.

Well, consider this. Not only have two of the cast gone on to be elected governor, now a third is considering a run for the Senate from Kentucky. Billy the tracker from Predator (Sonny Landham in real life) is gathering signatures so that he can challenge current Kentucky Senator Mitch McConnell as an independant.

If he’s even half as tough in real life as he was in Predator, he’d have my vote.

Billy Bada$$Almost unrecognizable

Thx to Shenanigans

Amazing

Just one more word about Heller and then I’ll stop I promise.

Most attorneys would consider it a lifelong honor to have any of their works cited just once in a SCOTUS opinion, or even merely mentioned in oral argument—the “Holy Grail” of citation as it were. But UCLA Professor Eugene Volokh (of Volokh Conspiracy fame) accomplished today one of the most impressive citational feats any lawyer could hope for.

Justice Scalia cited not just three times to Professor Volokh’s work, but to three different articles penned by the good Professor. That’s the juristic equivalent of winning not just the Kentucky Derby, but the Triple Crown. In fact, I think the SCOTUS majority’s citations to Professor Volokh’s work numbered just shy of its citations to Blackstone.

Ye ManThe Man

Truly an amazing feat by Professor Volokh and one worthy of awe and praise alike. Congrats to the Professor.

Thx to Professor Volokh and Justice Scalia

OG--original guarantee

A hurriedly-compiled list of some of Justice Scalia‘s (“AS”) most cogent and bombastic (read benchslap-tastic) points is recounted below. Justice Stevens (“JPL”) wrote a dissent vainly attempting to combat AS on AS’s home court of originalist historical context, and Justice Breyer (“SGB”) authored a dissent devoted to supporting the D.C. (the “District”) gun ban itself. Notably, AS reserves his harshest criticism for JPL (calling him “dead wrong” at one point). See Dist. of Colum. v. Heller, No. 07-290, slip op. at 5-6 n.5 (June 26, 2008).

Part II of the opinion delves into amazingly intricate detail as to what is the meaning of the II Am. AS begins by acknowledging that the II Am. is divided into a prefatory clause (the “well-regulated militia” portion favored by collective right proponents) and an operative clause (the “right of the people” portion favored by individual right proponents). AS makes clear that a prefatory clause may operate to clarify the operative clause, but it cannot “limit or expand the scope of the operative clause.” Id. at 4. He chides JPL for suggesting that such a construction would impermissibly render the prefatory clause without effect, because:

[A] court has no license to make [a clause] do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

Id. at 4 n.3. Such a construction, AS explains, would illogically “cause the prologue to be used to produce ambiguity rather than just to resolve it.” Id. at 5 n.4.

AS next turns to the individual nature of the right, reminding the dissenting Justices that the other two times the phrase, “right of the people” is used in the Bill of Rights (I & IV Ams.), it is uncontested that such language confers an individual right.

Examining the substance of the right, AS explains:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search, … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Id. at 8 (emphasis added) (citations omitted).

AS positively disassembles JPL and the District’s construction of the phrase, “bear Arms:”

In any event, the meaning of “bear arms” that [the District] and [JPL] propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed …. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once:“weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Id. at 13 (emphasis added) (citations omitted).

AS was apparently less swayed by the amicus brief filed by a group of linguists than was JPL, remarking:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Id. at 15 (emphasis added).

AS is also unmoved by JPL’s creative grammatical interpretation of the II Am.:

[JPL] believes that the unitary meaning of “keep and bear Arms” is established by the [II Am.]’s calling it a “right” (singular) rather than “rights” (plural) …. There is nothing to this.

Id. at 18 (emphasis added). AS adds in a footnote:

Faced with this clear historical usage, [JPL] resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established …. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution ofthe United States” is not a whit different from a promise “to supportand defend the Constitution of the United States.”

Id. at 18 n.14 (emphasis added).

Unsurprisingly, when JPL attempts to broadside AS on his own turf—that of interpreting legislative history—AS is blunt: “[JPL] flatly misreads the historical record.” Id. at 30. I think the most revealing barb aimed at JPL by AS is also the most prescient. Replying to JPL’s insistence that commentary subsequent to the ratification of the II Am. somehow bore upon the understanding of those who ratified it, AS is brilliant (as usual):

Before proceeding, however, we take issue with [JPL]’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task …. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding …. “Postenactment legislative history,” … a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.

Id. at 32 (emphasis added). In one fell swoop, AS calls out the jurisprudentially liberal wing of the Court’s central tenet of juristic philosophy. Masterful.

AS easily sweeps aside JPL and the District’s contention that United States v. Miller, 307 U.S. 174 (1939) could be read to support only a militia’s right to bear arms because:

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen …. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Id. at 50 (emphasis added).

One of my favorite passages is a subtle dig at JPL’s professed concern for the judiciary at the expense of the citizenry:

As for the “hundreds of judges,” … who have relied on the view of the Second Amendment [JPL] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

Id. at 52, n.24 (emphasis added). Game … set … match.

AS concludes by discounting the faux concern raised by SGB that the majority opinion “leav[es] so many applications of the right to keep and bear arms in doubt,” reminding his colleague that:

[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.

Id. at 63 (citations omitted).

AS’s second-to-last sentence in the opinion is a skillfully-drafted and subtle rebuttal of the use of the Court by his jurisprudentially liberal colleagues—past and present—to juristically abrogate the Constitution based on modern constructions of ancient legal precepts. In it he concludes that, while the political or cultural viability of the II Am. in modern society:

[I]s perhaps debatable, … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Id. at 64 (emphasis added).

Also of note, AS cites not to just one, but two three of Professor Volokh‘s articles in the majority opinion. That is a very rare honor indeed, but also an undisputedly well-deserved one by Professor Volokh. See id at 3, 11 n.8, 24.

Also, one of the cites is to Texas’s very own Review of Law & Politics, congrats.

* * * UPDATE * * *

More quotes from the majority opinion less of the benchslapping variety can be found at SCOTUSBlog.

Thx to the Heller majority, and as always, to Justice Scalia for his intellect and wit

Say hello to my little friend!

SCOTUS just announced it has affirmed the D.C. Circuit’s decision striking down the District of Columbia’s gun ban.

More details on the text of the opinion (how far it goes in upholding an individual right to bear arms, etc.) as they become available.

* * * UPDATE * * *

From SCOTUSBlog:

10:13 Ben Winograd –
The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg. We will provide a link to the decision as soon as it is available.

10:13 Tom Goldstein – Second Amendment protects an individual right to possess a firearm.

(emphasis added).

* * * UPDATED UPDATE * * *

No plurality and and two dissents (so should be fairly clear precedent).

* * * MORE UPDATES * * *

From SCOTUSBlog:

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed

* ** Read the opinion HERE * * *

Thx to SCOTUSBlog

I’ve probably already derived too much jurisprudential pleasure from analyzing the SCOTUS plurality opinion handed down this past April in Baze v. Rees, No. 07-5439, slip op. (Apr. 16, 2008 ), but the Onion has only just begun to analyze its merits.

* * * WARNING, NSFW LANGUAGE * * *

“I am the Law!”

Thx to Volokh

Thanks for the memories

Walter Huffman, Dean of Texas Tech’s law school since 2001, and former Judge Advocate General of the Army, announced today his intent to resign effective following this upcoming school year (Spring 2009). The one-year lead time is apparently to allow the school time to conduct a thorough search for his replacement. No word on where Dean Huffman is off to.

Everything I ever heard about Dean Huffman was beyond positive, and I know that he had been ambitious in his efforts to raise both the profile and the academic statute of TTU’s law school. They will no doubt miss his leadership, and owe him a debt of gratitude for his successful and dedicated efforts as well.

Thx to an anonymous aspiring lawyer

Too soon

I read with great sadness this weekend of former Texas Supreme Court and Dallas Court of Appeals Justice James Baker‘s passing. I got to know him only briefly, but I can vouch that his stellar reputation among those who appeared before him was well-earned. He was giant both in his jurisprudence and in the admiration he rightly enjoyed from his colleagues and peers. He will be greatly missed.

Thx to SCOTX Blog and the Houston Chronicle

Lady Justice

The recent headlines concerning Chief Judge Kozinski have reminded me of the central misunderstanding or willful ignorance some judicial critics suffer from in their critiques of the judiciary. Namely, their steadfast belief that the mere appearance of impropriety must mean there is actual ethical impropriety afoot, and the absence of such appearances must mean there is none.

This week, I came across an op-ed Chief Kozinski wrote for Legal Affairs magazine back in 2005 regarding the appearance of impropriety and found it refreshingly blunt and accurate.

My problem with the appearance-of-impropriety standard is that it promotes the wrong idea—that in order to keep judges from acting unethically, ethical rules must prevent judges from appearing to act unethically. It also seems to suggest the converse: that if judges appear to be acting ethically, they probably are. Nothing could be further from the truth. A judge can appear to act ethically and still betray his responsibility in essential respects and in ways no one will ever know about[, namely] … [g]iving short shrift to small cases, signing off on the work of staff and calling it my own, bending the law to reach a result I like, and the dozens of other ways in which I feel the urge to do something unethical, yet wholly undetectable by anyone other than me.

As to the furor that is often raised about a judge presiding over a case in which the judge has at least somewhat of a financial interest, Chief Kozinski explained:

I file a financial disclosure report every year, giving the world a list of my assets, just so litigating parties can confirm that I did not—God forbid—sit in a case involving a corporation whose stock I hold. I find this requirement a nuisance and a bit dangerous and intrusive, because it makes public information about me and my family that I would prefer to keep private. But the report is required by law and is considered an important safeguard of judicial integrity.

Yet I can’t imagine that I could possibly be tempted to change my vote in a case because I own stock in one of the parties. If money mattered to me, I would be in private practice and, in a month or a week—maybe an hour—I would make much more than my one hundred shares of AT&T could conceivably change in value based on my vote in a case. The idea that I would give up my honest judgment in a case for a few dollars is beyond silly—it’s ludicrous and insulting.

Most professional court critics either can’t comprehend or refuse to accept that a jurist wouldn’t change his or her vote in a matter just because there might be some financial advantage to be gained by doing so.

I continue to believe that this disconnect on the part of these critics emanates from their true ignorance of just how profitable and lucrative private practice is and would undoubtedly be for an appellate judge who left the bench. As I discussed in a post almost a year ago regarding whether campaign contributions to Texas judges are really such an irresistibly corrupting force (a generally bad idea—yes, absolutely corrupting—no):

Partners at BigTex firms in this state (where the majority of sitting SCOTX Justices have begun their practices) routinely make anywhere from $400k to $2.5 M per year. Counting the new raise SCOTX Justices just received in 2005, they now make $150k per year, a full $10k less than their clerks do as soon as they walk out of the Tom C. Clark building.

How on Earth could a few thousand or even a few million in campaign donations (which must be reported and can’t be spent on personal expenses without risking imprisonment and disbarment) be even slightly corrupting to someone who could make that much and more in the private sector without any of the ethics reporting requirements or public scrutiny?

The sheer ignorance of some like Texas Watch or Texans for Public Justice of the personal financial sacrifice imposed by choosing to sit on the bench instead of in a firm office is glaring. Anyone so easily corrupted by money would never choose to walk away from the private sector in order to someday “pay back” donors with favorable decisions, all for a relative pittance in compensation.

Thx to Chief Kozinski and Legal Affairs

Tough

First, any man who at any point in his life wore a fu-man-chu mustache, you just gotta like.

Also, below are some excerpts from an interview former CBS News correspondent Bernie Goldberg did with Tim Russert for Goldberg’s 2003 book, Arrogance: Rescuing America from the Media Elite. Read through these excerpts and tell me if you can picture any current journalist from any network uttering these words. I sure can’t. We’re definitely gonna miss Tim.

GOLDBERG: I think a lot of people have seen a fairness in you that they’re not used to seeing on the networks, and I’m wondering how much you think your blue-collar background has to do with it.

RUSSERT: There’s no substitute for it, Bernie, believe me. I’ve worked on garbage trucks. I drove a taxi. I tended bar. I delivered pizzas. I worked with liberals, conservatives, blacks, whites; that’s how you grew up in this interesting world, and people were always simply judged in the end on their quality as a person: Did they tell the truth? Did they honor their commitments? Did they show up for work on time?

* * *

And I also believe that going to the schools I did—St. Bonaventure school, Canisius High School, John Carroll University—these are not fashionable, elitist schools. These are schools where you learn to read and write and learn right from wrong. But they would never wave a wand and say, this is the way you must think.

The key to it was always respecting another person’s view and never suggesting that anyone had a monopoly on correctness. And that should be the centerpiece to being a journalist. You don’t go out there bringing to your profession an attitude that you know what is right for the country or you know what view is the progressive one or the appropriate one to have.

* * *

It’s just central to a journalist that we not adopt a code of correctness that this is the preferred position on the issue.

* * *

There is no preferred position. One cannot be dismissive of one person as extreme and find another acceptable just because of how you define liberal, conservative or mainstream.

* * *

It really is fascinating to me when you talk to political figures and to some journalists, they’ll say the center is here—if you are for abortion rights, for gun control, for campaign finance reform, that’s a mainstream position; and those opposed to it are on the fringe. And that’s just not the way reporters should approach issues.

* * *

Whenever we were going through the whole situation with President Clinton on a variety of issues involving his veracity, I would say in the newsroom: What if President Nixon had said this? And people would sit up [because they hadn’t thought of it that way]. You have to apply a single standard.

GOLDBERG: And to those who say journalists shouldn’t wear red, white and blue ribbons, that by doing that somehow you’re taking the government’s side in some debate or another — which I don’t frankly see, by the way . . .

RUSSERT: It is imperative that we never suggest that there’s a moral equivalency between the United States of America and the terrorists. Period. I’ll believe that until the day I die. I have talked about being a journalist—but also being an American. And first and foremost, you’re an American. I want a debate about national security, and who defines national security. I understand all that. But in the end, you have to make judgements, and on that day I made a judgement that five days after the most horrific event of my lifetime and of my journalistic career, that for me to say to the country I too am part of this, I too have experienced this gut-wrenching pain and agony, and I too have enormous remorse and sympathy, with not only the people who died in the World Trade Center, the Pentagon, and in the field in Pennsylvania, but all of us—we’re in this together; this isn’t covering Democrats and Republicans or the Bills versus the Redskins; this is us. The Taliban doesn’t believe in the First Amendment.

I’m an American and then I’m a journalist.

(emphasis added).

Thx to NewsBusters and Tim Russert

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

The accused

Last month, the Texas Appellate Law Blog had a great post on the (believe it or not) benefit legal blogs offer to the legal landscape at large. I would add one other entirely unexpected yet undeniably valuable benefit to that list as well, as evidenced by the media fracas over Chief Judge Alex Kozinski‘s recent travails.

I have purposefully stayed away from writing about this story because it struck me from the beginning as likely a bogus “scandal.” I was wrong to do so, but not because the story had any merit, but because it turns out the blogosphere actually served to get the truth out.

In brief, the L.A. Times published a story at the urging of a disgruntled litigant who—as is frustratingly all too common—insisted on lambasting the four trial judges and at least six appellate justices (including Chief Kozinski) who held against him of bias and judicial misconduct. Riiiight. The L.A. Times story revealed that Chief Kozinski had various files stored on his family’s server that the paper framed as pornographic and even as examples of beastiality but that were really just so much ribald and off-color humor.

As Professor Volokh explains:

And some of the files contain what is basically—if what I saw at Patterico‘s site is representative—visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.

* * *

Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I’m sure they aren’t the kinds of things some people would enjoy seeing. But he wasn’t trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it’s a national news story.

Chief Kozinsky’s wife put it even better:

The reporter describes the handful of comic-sexual items as follows: “the sexually explicit material on the site was extensive.” He then includes graphic descriptions that make the material sound like hard-core porn when, in fact, it is more accurately described as raunchy humor.

* * *

The fact is, Alex is not into porn—he is into funny—and sometimes funny has a sexual character.

So, the only real controversy at issue as a result of all the hubbub was that Chief Kozinski was presiding over an obscenity trial when the story broke. However, any traction that valid potential conflict rightly had was quickly defused when, within just a few days of the story’s printing, Chief Kozinski recused himself, declared a mistrial, and called for an investigation into the controversy surrounding his stored web files.

Which, after much exposition, brings me back to my original point. If one were to have only read the L.A. Times story, you would have thought the Chief of a federal circuit was keeping porn on his work computer and making it available to the public. It was not until the legal blogosphere started investigating further that it came to light that the evidence upon which the story was based had been shopped around to several media outlets for months by a disgruntled litigant, that the files in question were not really pornographic at all, and that the “website”—really a server subdirectory—upon which they were stored was not meant to be publically accessible.

So, after entirely too much prologue, my point is that the legal blogosphere can even—in rare instances—be useful in combatting slovenly reporting by major news outlets that only serve to tar and tarnish the reputation of non-political actors as are most appellate courts and jurists. Chief Kozinski himself has now recognized that the legal blogosphere may serve at least one useful purpose—providing fuller context and facts after a media hit-piece has been released—after having once famously derided the utility of legal blogs:

I hate ‘em. Hateful things. . . . I just think it’s so self-indulgent, you know. Oh, I’m so proud of what I’m saying, I think the world instantly wants to know what I’m thinking today. People wake up thinking, hmm, what does this person, whoever the blogger in question is—I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can’t really have breakfast, really enjoy my day until I hear the great thoughts of Howard Bashman—I don’t think so. I go for months without ever knowing what Howard has to say. So I don’t know. I find it sort of self-indulgent. And I find it so grandiloquent.

By the way, Chief Kozinksi is absolutely correct on this point: all of us legal bloggers are—to some extent or another—at least partially self-absorbed and hubristic. Why else spend valuable billable time opining on topics about which no one asked our opinion?

On a much smaller scale, I have felt forced to use this blog in much the same fashion as Patterico and Above the Law have used theirs on this matter to combat the all too numerous instances of the Texas media blindly parrotting the tripe constantly spewed forth by Texas Watch. I have no idea if my hopefully somewhat-cogent rantings have had much of an impact, but it is my pleasure to stick up for our vastly-underpaid and supremely-talented judiciary when it is ethically restrained from responding on its own to such baseless bilge favored by Texas Watch and now the L.A. Times.

Thx to Above the Law and Patterico’s Pontifications

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