Channeling Oliver Wendell Holmes, Jr.

Two unrelated stories made me sit up and take note:

The first, courtesy of Southern Appeal, was about a NY Times interview with SCOTUS Justice Ruth Bader Ginsburg, wherein she makes this remark about her understanding of the legal underpinning of Roe v. Wade:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.

The second story, also found at Southern Appeal, concerns a Washington Times piece which relates the following comment made by Judge Sotomayor in three separate speeches:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [federal district] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging.

Hmmm... two prominent liberal female judges, one outright endorsing a eugenic rationale for abortion rights (I wonder which populations Ginsburg doesn't want "too many of"?), and the other opining that there are "inherent physiological" differences between groups of people.

Sadly the legacy of Buck v. Bell is alive and well amongst the leftist legal "elite."

And these are the judges who are the most untethered from the plain meaning and original understanding of the Constitution, and the most eager to read their Brave New World philosophies into the Constitution.

SCOTUS to Lab Analysts: Pack your Bags

In an unusual ruling today, the SCOTUS decided, by a 5-4 vote, that admission into evidence of a drug lab certificate in a state court prosecution without the testimony of the "analyst" who prepared it constituted a violation of the Sixth Amendment right to confront witnesses.

Justice Scalia wrote the majority opinion, in which Justices Thomas, Ginsberg, Stevens and Souter joined. The mix on the dissent side was equally unusual: Roberts, Alito, Kennedy, and Breyer. The Court today continued the trend I noted here in crimlaw cases, of defying easy categorization as "liberal" or "conservative." Instead there seems to be a drift into a more "formalist" or "literalist"camp, which tends to downplay or disregard the effects of their rulings on the criminal justice system and any social and economic implications and which is fairly quick to overrule or explain away contrary precedent. Scalia and Thomas are prominent in this camp. The other camp is what one might call "pragmatist" and consists of Alito, Roberts, and Kennedy. This camp affords more weight to precedent and the practical policy, economic, and "reliance" implications of newly announced Constitutional rules.

So in this case, Scalia follows a formal, literal reading of the Sixth Amendment, reasoning that lab certificates are "testimonial" in that they are prepared with a view to prosecution, and that therefore the person conducting the test must be available for cross-examination. Pragmatic concerns such as the burden on the system in producing such witnesses, the likelihood of increased dismissals when these witnesses cannot or do not come to court, and the increased expense involved in requiring analyst testimony, are brushed aside as insignificant next to the "plain" command of the confrontation clause.

The dissent, in addition to citing the pragmatic problems (and also feeding Scalia a healthy dose of "original intent" evidence refuting his formalist interpretation of the Sixth Amendment) relies on the 90-year precedent for using lab certificates without an analyst testifying to argue that the majority is not only imposing great costs on the system, but also is throwing stare decisis overboard.

About one thing there can be no dispute: this case has dramatically changed the way business will be done in drug cases, DUI cases, and any other case which has up until now relied on use of certificates of analysis of any kind. Defense attorneys will attempt to use this opinion to pry charge and sentencing concessions from prosecutors; prosecutors may respond by opting for more jury trials in appropriate cases, to raise the stakes of contesting guilt.

Let the games begin.

Rendering Offenders Harmless, Part XX

California max security inmates go beserk... during 75-inmate gang-related riot.

Guards used pepper spray, rubber batons and fired two warning shots to stop the fighting.
Officers said they recovered 28 inmate-made "stabbing and slashing-type weapons." No guards were hurt.

We just cannot prevent some violent offenders from harming others, even in prison.


HT: Crime and Consequences.

Adnan Finds A Country

In addition to nominating the Republican ticket of Bob McDonnell for Governor, Ken Cuccinelli for AG and Bill Bolling for Lt. Governor, delegates at the Virginia Republican Convention heard from this inspiring young man (patience with the marginal video quality will be worth it):





A credit to the Virginia Tech Corps of Cadets... would that the GOP adhered to the principles embodied in his remarks.

Rendering Offenders Harmless, Part XIX

Two convicted of capital murder and serving life sentences without parole escape from high security Arkansas prison. (HT: Crime and Consequences)

Also, the Richmond Times-Dispatch revisits an infamous death row escape in 1984 where six death row inmates escaped from a facility that had been lauded by the Governor at the time as "a firm and lasting and unbreakable connection between crime and punishment." That prison break, and other breakdowns in the prison system that year caused a shakeup in the Virginia Department of Corrections. Among the other incidents, less noticed in the sensational climate of the Briley brothers' escape, were these:

In June, two maximum-security inmates on an outside work detail at the State Penitentiary in Richmond briefly escaped. On July 10, mini-riots at Mecklenburg
injured six inmates and 10 guards.
And in early August, 32 maximum-security inmates at Mecklenburg held nine employees hostage.

These were all maximum security facilities, and despite that, convicted violent felons were able either to escape or to injure or abduct correctional employees.

We have not devised a way effectively to render offenders harmless, which is why capital punishment needs to remain an option among all other sentencing options.

"I saw a body lying and I saw a gentleman walking toward me with a head in his hand"

Poor Virginia Tech... beseiged by homicidal nutjobs, like Haiyan Zhu, who in absolute cold blood calmly severed his friend, Xin Yang's head in the campus cafe in front of shocked students, who instead of gang-tackling this monster either fled the room or cowered behind a counter describing the decapitation in progress to the 9-1-1 dispatcher.

What they saw as they stood passively by? "Zhu was on top of Yang, who was on the floor. Zhu stared at Yang's face as he cut through her neck. It wasn't really an angry face at all," said [the witness], at that point the only witness to the gruesome events. "It was just a really blank, determined look."

The campus cop will no doubt never see again in her career the sight that greeted her upon her arrival: "'I saw a body lying and I saw a gentleman walking toward me with a head in his hand,'" testified Nicole Irvine of the Virginia Tech Police Department.
Irvine said he dropped the head when she ordered him to put his hands in the air."

"Gentleman"?

It's important continually to refer to actual crimes and the reality of their victims when discussing punishment, which far too often veers off into theory or into the defendants' pathologies. When the facts of these horrific cases are remembered, it tends to focus attention on the justice of the punishment. In this case, I can't imagine any reason why the taxpayers of this Commonwealth should suffer this monster to live on the dole in one of our fine correctional facilities for life.

How about instead some retributive justice for that Xin Yang, the poor girl who suffered such an unimaginable death?

Taking the Blindfold Off Justice

The shabby identity politics involved in nominating Supreme Court justices has just taken a large step forward, with Obama's naked pandering to "diversity" in nominating a hispanic female to the high court. Sonia Sotomayor may perhaps be the "best of the worst" from an originalist viewpoint, but someone who could even utter this phrase, "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," should not be a judge of any sort, much less a SCOTUS justice. This is someone who, like Obama, wants to divide the nation into what are essentially artificial and superficial categories, and make substantive decisions based upon those categories.

A judge, of any court at any level, should have only one thing in mind: applying the law fairly, according to its meaning as it was commonly understood at the time of its enactment, without consideration of any party's race, sex, religion, or any other legally irrelevant quality. If some judges have not lived up to that ideal, the solution is not to throw judicial neutrality overboard in favor of a race or group-based activism which seeks the correct "compassionate" result regardless of the facts or law.

In seeing how blatant President Obama is being with playing identity politics with the SCOTUS, I recalled my disgust at President Bush for committing the same offense with the nomination of Justice Clarence Thomas.

Much as I admire Thomas and his consistent application of the original understanding of the provisions of the Constitution, the only sure interpretive method for avoiding judicial tyranny, it seemed beyond question that Bush was picking this man based in large part on his race and the perception that the "black" seat on the Court must be maintained.

E pluribus unum and the melting pot are quickly becoming the lost ideals of American society, to be replaced apparently with an incessant struggle among various identity groups for recognition and political power.