Notable Quotes, Nov.-Dec. 2006

Tomiko Brown-Nagin was quoted in an Nov. 12 Boston Globe article about the Supreme Court's current cases on the constitutionality of programs to promote racial diversity in public schools, an issue the Court had declined to review in 2005. "The only thing that has changed since last year is the composition of the court," she noted. Brown-Nagin also wrote a commentary on the cases for the Dec. 15 Richmond Times-Dispatch. Noting that the programs in issue were community-based, adopted by school boards "of their own accord, rather than under the thumb of the federal courts," she wrote that the Court had "repeatedly cited local control over educational policies as a rationale for removing federal oversight. Given the premium that the Court has placed on local control, a decision by the Court striking down politically accountable school boards' voluntary desegregation initiatives would undermine one of the Court's greatest legacies, and the Court itself."

Earl Dudley was quoted in a Dec. 5 Charlottesville Daily Progress article about the four Law School graduates clerking at the Supreme Court this term. He noted that a limited number of clerk positions are available each year, and competition for them among young lawyers is intense. "There is a lot of self-selection, because I think most people are pretty realistic about the demands of the process and only people with really strong credentials tend to apply," he said. "It is the plum job coming out of law school, . . . one of the most prestigious things you can have on your resume," he said. "It's something that opens doors throughout a lawyer's career."

John Harrison was quoted in an Nov. 15 New Orleans Times Picayune article about the investigation of Rep. William Jefferson on bribery and corruption charges. Jefferson's lawyers have challenged the use of documents seized in a raid on his Capitol Hill office, but Harrison said that they probably don't want to overplay their hands. "Jefferson's lawyers will most strongly resist release of the documents that are most unfavorable to their client," he said, "but their argument is based on the Speech or Debate clause privilege including, I think, the claim that even going through documents to find those that aren't privileged is impermissible."

In the Dec. 8 Washington Post, Linda Malone discussed a lawsuit by former prisoners in Iraq and Afghanistan seeking to hold former Defense Secretary Donald Rumsfeld and top military commanders personally responsible for the torture they say they endured. "It's a difficult lawsuit to prevail across the board, but it's not one that doesn't have legitimate basis in the law," she said. "In international law, the prohibition against torture is one of the most serious conventions." In a Dec. 13 Cox News Service story on the case, Malone said the case could break new ground about who can bring claims against government officials during wartime. "If they get to the merits, it will be extraordinarily significant not just on a legal basis but on a political basis," she said. In the Dec. 24 Daily Progress, Malone explained that a formal declaration of a civil war by the U.N. Security Council would mean that other countries are required to remain neutral and not aid any of the warring parties, including the Iraqi government. "Formal recognition of a civil war, for several years now, has been an unworkable rule," she said.

David Martin was quoted in a Dec. 10 Denver Post article about Colorado's first prosecution under new human-smuggling laws. "For many years, the penalties for human smuggling were unrealistically low," he said, but it will only "deter people from getting involved at the margins." He explained that tougher workplace identification laws were required. "You can ratchet up the penalties on human smuggling," he said. "But you could put a fence all the way across the Southwestern border, and people will still find a way over or around it unless you make it harder to get a job once you get in the country."

Richard Merrill was quoted in a Dec. 18 New Yorker article about proposed legislation that would compel the FDA to make experimental drugs available to seriously ill patients who have exhausted standard treatments. He said that the bill "would require a major investment to scale up production of an experimental drug, and it would not be at all clear that the drug had a good chance of ultimately being widely marketed, because its safety and efficacy could prove problematic in more extensive human testing." He added: "It's not necessarily a mistake to go in this direction, but it will require a commitment to intervene that is unprecedented."

In a Dec. 1 Chronicle of Higher Education commentary on the loyalty declarations required of new public employees under Ohio's recently enacted Patriot Act, Robert O'Neil pointed out that the law's application in universities "violated the constitutional guarantees of free speech and threatened the academic freedom of professors," and added that "it is the genuinely subversive and dangerous applicant for a sensitive position who is least likely to be deterred by such a hurdle, while the loyal and conscientious candidate is at risk of a seriously adverse effect. . . . The person who poses the gravest threat to our national security would be only too willing to falsify a response to a misguided inquiry about loyalty." O'Neil was quoted in a Dec. 8 Washington Times article about whether the property of several Northern Virginia congregations voting to leave the Episcopal Church belonged to the local congregations or the national denomination. "Neutral principles of Virginia property law" favor the titleholders, he said. "What courts will not do is apply theological, scriptural, liturgical or canon law principles in the resolution of a case."

In a Nov. 8 New York Newsday article about the close Virginia senate race between James Webb and George Allen, Daniel Ortiz said, "It looks like the margin is enough that it is unlikely a recount will affect it." The same day in MarketWatch, he said the odds of Allen's overturning Webb's lead in a recount were "very small if the very-limited experience of the past is any guide."

Margaret Riley was quoted in a Dec. 15 Richmond Times-Dispatch article about a drop in public support for embryonic stem-cell research. "People tend to be much more accepting when they can imagine health or treatment applications that may affect them personally," she said. "There has been extraordinary hype surrounding stem-cell research and this has created inflated expectations. Some of the decline in support," she added, "may be evidence of a natural disillusionment" that there haven't yet been dramatic breakthroughs in the field.

A Dec. 1 Hollywood Reporter article noted that Glen Robinson and fellow former FCC commissioner Henry Geller were among the dozens of people and organizations asking a federal court Thursday to throw out the commission's new indecency standards. Their brief told the court that they "have been dismayed by a series of recent decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a censorship crusade that will put a chill on all but the blandest of program fare."

Jason Trujillo was quoted in the Dec. 5 Daily Progress article about UVA graduates clerking at the Supreme Court. "The Supreme Court clerkships are a great proxy for the academic life of the UVA law school," he said. "For lack of a better term, the clerkships are a very reliable and accurate measure of institutional quality."

Robert Turner was quoted in a Nov. 27 Associated Press article about congressional criticism of the Justice Department's investigation of its handling of information gathered in the government's domestic spying program. He said that congressional demands for sensitive information about the program puts them at odds with long-standing presidential powers over the collection of foreign intelligence. "It's good that the executive branch, on its own, is making sure that someone's not abusing this power," he said. "But when Congress usurps power vested in the president by the people through the Constitution, then it becomes the lawbreaker."

In a Dec. 25 Associated Press about the more media-friendly attitude of the Supreme Court under Chief Justice John Roberts, G. Edward White noted that one possible reason for the change is that the court will stay in the middle of national controversies and that Roberts believes its credibility will be enhanced if the justices appear less remote.

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