Notable Quotes, Nov.-Dec. 2005

Kenneth Abraham commented in a Dec. 14 Daily Progress story about a defamation lawsuit filed against his accuser by a man wrongly identified as a rapist. He noted that defamation law must strike a balance between protecting reputations and allowing crimes to be reported, and explained that a successful defamation claim in a case like this must show that the person acted with malice when making the identification.

Lillian BeVier appeared on the Dec. 1 NewsHour with Jim Lehrer to discuss Judge Samuel Alito's background. "I think what we have here is a conservative in the ways that are appropriate to someone who is going to be a Supreme Court justice," she said. "He's conservative in his approach to everything that he takes on. He's careful, he works diligently. He tries to be fair in everything that he's done. I have never heard a single word of criticism about Judge Alito in terms of his fairness to individuals or the approach that he's taken to people he's worked with or cases he's decided."

In a Dec. 5 Associated Press story about a pending Supreme Court case on the insanity defense, Richard Bonnie noted that this was the first time the court has dealt with a direct constitutional challenge to insanity defense laws since new restrictions were imposed following John Hinckley's acquittal in the 1981 shooting of President Reagan. "It comes as a surprise," he said. In the Dec. 11 Boston Globe, Bonnie commented on the parental role in teenage alcohol abuse. "Adult attitudes have to be changed," he said. "Many adults actually think they're doing a good thing when they buy alcohol and serve it in their home, on the assumption that it would be safer." In the Dec. 21 Washington Post, Bonnie discussed a case in which a man was convicted on charges of beating his pregnant girlfriend to death with a baseball bat. The defendant did not face the death penalty because there was proof that he intended to kill the fetus only, not his girlfriend. Bonnie noted that this mixture of motive is highly unusual. "This is the kind of case you find in a law school classroom," he said.

Rosa Brooks continued her series of weekly columns for the Los Angeles Times. In her Nov. 18 column, for example, she wrote about the isolationist instinct that seems to lie beneath some of the growing demand for withdrawal from Iraq. "Let's not forget," she wrote, "that even when there is no urgent national security issue at stake, the use of American military force may sometimes be both justified and morally necessary." On Dec. 2 Brooks wrote about her guilty pleasure in loving big-box stores, and argued that "the laws of nature don't require superstores to succeed at the expense of workers and communities. . . . the main problem is not their size but the current regulatory climate (or, to be precise, the near-complete lack of a regulatory climate)."

George Cohen was quoted in a Dec. 3 Chicago Tribune story about the negligible effect of new SEC rules adopted to curb abusive behavior by corporate lawyers. "The obligations imposed by the new rules aren't any more onerous than what good lawyers were doing anyway," he said. "I don't think the basic position of the lawyer has changed at all."

Anne Coughlin was quoted in a Dec. 14 Daily Progress article about the defamation suit filed by the wrongly accused rape suspect. She noted that a successful lawsuit could affect the way that sex crimes are reported. "Rape is the most underreported crime in the nation and women are already very reluctant to complain," she said. "If it became standard for men to file these lawsuits, that could certainly put a chilling effect on the victims."

Earl Dudley was quoted in a Dec. 4 Daily Progress story about a mistrial in a Charlottesville drug case, granted after the judge learned that a juror had read a newspaper story about the case. He noted that the mistrial was required "because the whole theory of the system is that the jury will decide the case based exclusively on three things: the evidence that's admitted, the instruction that the judge gives the jury on the law and the lawyers' arguments."

John Harrison wrote a commentary for the Nov. 19 Augusta Chronicle recommending that Judge Samuel Alito's qualifications and beliefs made him a superb choice for the Supreme Court. "His critics will not suggest that he is unqualified. . . . They will focus on his apparent willingness to take seriously the principle that the powers of Congress are limited to those actually listed in the Constitution." He concluded: "If we, the people, want to remove some of those limits on congressional power, we can do so. Until we do, however, the courts should enforce them. That is what Judge Alito appears to want to do, and that is why he should be confirmed as the next associate justice of the U.S. Supreme Court." In a Nov. 28 Legal Times article about Alito's time in the Department of Justice's Office of Legal Counsel, Harrison noted that a clear division between Republican and Democratic jurisprudence has emerged. "You can tell the difference between a Republican OLC position and a Democratic OLC. It's originalism versus the living Constitution," he said. "If you use legislative history, you will start reading your own views into it because the intent is more elastic."

In a Nov. 1 Voice of America story about the Alito nomination, A. E. Dick Howard said that Justice Sandra Day O'Connor "was often the critical vote in five-to-four cases. She has played a role, I think, of pulling the court somewhat to the center." In a Nov. 1 Newhouse News Service story about Alito, he said that the Reagan Justice Department lawyers saw themselves in the forefront of a movement that would "transform America's political and legal landscape." He added: "They came from elite law schools and thought of themselves as the beleaguered minority. . . . They looked and found kindred spirits as they came to Washington during the Reagan years after all those years in the wilderness." Howard was also quoted in a Dec. 19 Richmond Times-Dispatch story about recounts in two disputed Virginia races in the November election. The winner in a tied House of Delegates race is determined by drawing a name, while the General Assembly determines the outcome in a tied race for a statewide office such as attorney general. He noted that the practice predates recent constitutional revisions, adding "I guess the General Assembly didn't want to leave anything to chance."

Paul Lombardo commented in a Dec. 11 Roanoke Times article about the decisions two teenagers faced when their baby was born three months premature with severe disabilities. Because parents have the power to make decisions for their minor children, he explained, this can lead to a situation in which a teenage mother may be able to make medical decisions for her child but not for herself.

David Martin was quoted in a Nov. 8 Washington Times story about a proposal to keep children of illegal aliens from receiving automatic citizenship. "I'm inclined to think the Constitution requires a broad birthright citizenship rule," he said, and added that restricting citizenship was the wrong way to attack illegal immigration. He said if the border can be controlled, the question is irrelevant, and if the border cannot be controlled, the change could create a generation of disaffected youths without access to the opportunities provided by American citizenship. Martin was also quoted in the Nov. 23 Salt Lake Tribune about a proposal that would shield churches from criminal liability for letting illegal immigrants volunteer for religious work. Despite concerns by some that this would allow extremist groups to harbor terrorists, Martin said that the provision that would be amended is "such an unimportant part of our legal arsenal" that he doesn't see it as opening much of a loophole. "It would take one small arrow out of a quiver in that setting," he said. "Realistically, it seems to me it's not a big blow in the struggle against terrorism."

Robert O'Neil was quoted in a Nov. 12 Columbia, S.C. State article about the University of South Carolina's decision not to block a Web site containing racist remarks. He said that USC had taken the best course of action, in part because codes that attempt to regulate or prohibit certain types of speech are notoriously ineffective. O'Neil was also quoted in a Nov. 13 Richmond Times-Dispatch story about proposals to enhance sanctions for hate-motivated violations at the University of Virginia. Noting that similar initiatives at other universities have been found unconstitutional, he said "It's a daunting task, and that's not to say that it can't be done; that's to say that it hasn't been done." In the Dec. 11 Richmond Times-Dispatch, O'Neil commented on the clash between campus freedom and civility. He said colleges have set rules about when and where protests may be held, or where literature may be handed out, to maintain an orderly community that still allows everyone to have a say. "If there aren't some rules, then obviously you have chaos," he added.

George Rutherglen was quoted in the Nov. 24 Daily Progress on U.Va.'s firing of an opponent of its charter plan. "The real question in this case is whether the university followed a policy that they apply to everyone even-handedly or if they singled her out for retaliation," he said.

James Ryan was quoted in a Nov. 11 Richmond Times-Dispatch story about a North Carolina school district that has found success by balancing the income levels of the students in each school. "Poor kids tend to come to school with greater needs," he said, adding that they can benefit from being in a climate where higher education is considered the norm. He suggested charter schools and regional magnet schools as two ways to increase diversity without consolidating districts.

Richard Schragger wrote a commentary for the Nov. 1 issue of Slate on Judge Samuel Alito's abortion decisions. "In one article after another it is suggested that Alito has taken a middle-of-the-road position in abortion cases," he wrote. "Now, let's be very clear: Judge Alito might be ambivalent about many things, but he is not ambivalent about abortion. Seeking to cloud this issue by pointing out that Alito authored opinions on both sides of the issue is nonsense. . . . If Alito replaces O'Connor, both of his crucial abortion opinions in the 3rd Circuit indicate that he will not take her centrist path."

Stephen Smith was quoted in a Nov. 27 Washington Post story about Governor Warner's decision whether to extend clemency to convicted murderer Robin Lovitt. He said Republicans could use such a decision to paint Warner as "soft on crime," adding "I think Mark Warner would be playing with fire by granting this clemency request without clear-cut evidence of innocence." Smith commented further in the Nov. 30 Toronto Star, saying "This is a man who says he can pick the lock on the South for the Democrats. He has to appear to be tough on crime."

In a Nov. 6 Albany Times Union article about the case against former White House aide I. Lewis "Scooter" Libby, Robert Turner said a plea deal may emerge because "proving these charges beyond a reasonable doubt is going to be tough." Turner wrote a commentary for the Dec. 28 Wall Street Journal about the legality of the National Security Agency's domestic wiretap program authorized by President Bush. "For nearly 200 years it was understood by all three branches that intelligence collection—especially in wartime—was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution," he wrote. "Those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's ‘enemies lists' are serving neither their party nor their country. . . . Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant."

J. H. Verkerke was quoted in a Dec. 5 Virginia Lawyers Weekly article about a Fourth Circuit case holding that Title VII discrimination plaintiffs no longer need to show that they were replaced by someone outside their protected class to make out a prima facie case of discrimination. Noting that the Fourth Circuit has a reputation for being extremely employer-friendly in discrimination cases, he said the ruling "adds a little spice to a variety of cases that appeared to be going in one direction."

In a Dec. 4 Boston Globe story about the Supreme Court's 1937 "switch in time that saved nine," G. Edward White called the traditional tale that Roosevelt's court-packing plan caused the justices to change course "a distortion of the historical record." He noted that Court's jurisprudence on economic policy was "beginning to disintegrate" well before 1937, as the justices began to realize they could not continue to oversee every case of economic regulation.

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