Voters in Iowa exercised their right to remove three State Supreme Court Justices in yesterday’s election.  There are seven justices, but only three were up for a retention vote.  This follows the court’s holding last year that men have a constitutional right to marry men, and vice versa.  (Or . . . I guess there is no vice versa.)

Iowa voters apparently think otherwise.

There will be a lot of hand-wringing over this supposed blow to an independent judiciary.  But an independent judiciary still must be answerable for its excesses.  There is a difference between an independent judiciary and an unfettered and out-of-control judiciary. 

The judges had their say on the matter, and now the voters have had theirs.  Voters in Iowa have that constitutional right.  I doubt that Iowans are, as a whole, bigoted or any less astute and sophisticated than the enlightened citizenry of, say, California. 

Oh wait!  Californians voted to uphold traditional marriage, too.

The American Bar Association is now officially in favor of same-sex marriage. In the 90s, it came out squarely in favor of abortion.

Periodically I get calls from the ABA suggesting that I re-activate my membership, and I try to explain that I no longer support their organization or its goals. They respond by telling me about all the wonderful life insurance I can get and discounts on car rentals. The real reasons behind my refusal to join never seem to get through.

But the ABA stopped listening to an enormous percentage of the bar nationwide a long time ago, and there is no reason to expect it to listen to me. Whether the lawyers who oppose the ABA’s agenda constitute a majority or merely a significant minority is irrelevant. The ABA does not represent the profession. It represents an ideology.

That should be a sufficient reason for the Senate to stop seeking any rating of judicial candidates from the ABA as a factor to consider in confirmation hearings, or at least a reason to give its rating no more credence than a rating from the ADA. The two organizations’ agendas are on a path to merge.

But if the ABA won’t hear this message, I can at least hope that some more of my colleagues will, and that they will vote with their feet.

Put up a Nativity scene on public property, and the courts will likely make you take it down.  Display the Ten Commandments in a courtroom, and expect to be labeled as a bigot.  But do a little anti-Christian kitsch and the Sacramento County Law Library might just welcome it to their collection.

Jeri Wyrick created a work called “Moral Values” that shows a Bible with a prominent label: “Warning! May Impair Judgment.”  The Sacramento Bee says:

In an “artist statement” posted next to her work, Jeri Wyrick said she created the piece after the 2004 presidential election: “I came to the conclusion that there must be something about religious faith which renders people stupid.”

Wyrick obviously feels compelled to explain away any ambiguity in her work lest we mistake what judgment is likely impaired and who is rendered stupid.  The “artist statement” however says everything Wyrick wants us to know, and makes the artwork itself superfluous.

In her statement, Wyrick described her work. She said that she decided to create her controversial piece after exit polls showed most people cited moral values as their reason for voting for President George W. Bush in 2004.

“I hope that these pieces are not presumed as a group to be pro-Muslim/anti Christian – which they are not – as opposed to just anti-religious – which they admittedly are.”

That last admission might pose problems though.  The Supreme Court has allowed Christmas displays that are not purely religious in nature.  Toss in some reindeer and snowmen and you can get by.  Might a purely anti-religious message violate the First Amendment?

But not to worry.  Despite Wyrick’s admission, her work is not just anti-religious.  It contains a sophomoric political message as well.

Now about that county name: Sacramento . . .

Thomas Paine's "Common Sense"

Congress is busy once again with bold new efforts to silence political speech in the very arena where it has the most impact – elections. Much of the public reacted badly to the Supreme Court’s recent decision in Citizens United striking down parts of the McCain-Feingold “campaign reform” act. I suspect many of the critics suffer from over-exposure to The New York Times, a corporation with a loud voice in electoral politics that thinks other corporations should not have any voice at all in such matters. It is rather instructive, however, to revisit part of the oral argument in Citizens United in which Supreme Court nominee Elena Kagan dances around the First Amendment.

Click here to view the embedded video.

The new “DISCLOSE” act is likely to pass. Elena Kagan is likely to be confirmed to the court. The new act will almost surely be challenged and reach the Supreme Court once again. Will Kagan voice these same views in a future hearing – this time from the bench?

George Will has a few questions that he thinks Kagan should answer in the confirmation hearings.  Among them:

– The president is morose about the court’s Citizens United decision holding that the First Amendment, which says Congress shall make “no law” abridging freedom of speech, means no laws abridging a corporation’s freedom to speak, including nonprofit advocacy corporations such as the National Rifle Association and the Sierra Club. The court called it “censorship” for government “to command where a person may get his or her information or what distrusted source he or she may not hear.” Do you agree?

– You have noted that the court often considers legislative motives when deciding First Amendment cases. Should the court consider legislators’ motives if, in response to Citizens United, they impose new burdens on corporate speech?

– When incumbent legislators write laws restricting the quantity, content and timing of speech about legislative campaigns, are not their motives presumptively suspect?

Steve Simpson has a new blog devoted to this topic.

According to Yale law professor Owen Fiss, we may “have to silence the voices of some in order to hear the voices of . . . others. Sometimes there is simply no other way.” The view that speech must justify itself to be left free is perhaps nowhere more apparent than in the area of campaign finance law.

* * *

In our view, the First Amendment means what it says. It protects an individual right to freedom of speech, not a privilege to be tolerated at society’s pleasure. Furthermore, the right to speak implies the right to speak effectively, by associating with others, purchasing advertisements on national television and everything in between.

In other words, campaign finance laws essentially say that you can speak so long as we’re sure no one can hear you.

. . . in Dearborn, Michigan.

Click here to view the embedded video.

But down the road in Lansing, the results are a little different.

[Rev. John] Elieff acknowledged the group’s right to protest, but he said the church’s civil rights were infringed upon when the service was disrupted.

No one was arrested at the church, and, Elieff said, as far as he knew, no arrests have been made.

Bonnie and Clyde died in a hail of gunfire on this date 76 years ago on a rural Louisiana road. Each received about 50 bullet wounds. Clyde was 24 years old; Bonnie was 23.

I passed by that site recently and had a conversation with the son of Ted Hinton.  Ted was a Dallas County Sheriff’s deputy assigned to track down Bonnie and Clyde. He set up the ambush. The son, “Boots” Hinton, comes straight from central casting, exactly who you would expect to find behind the desk at the small “Ambush Museum” in Gibsland, Louisiana. He has lots of opinions and all the time in the world to express them.

Ted Hinton’s book “Ambush” is atrociously written (despite the aid of a journalist) but interesting nonetheless.  The 1967 Arthur Penn movie took some liberties with the facts, and Hinton’s book gives a clearer picture of the two-year crime spree. The couple really had no goal, and no achievement, other than survival for a time. Their robberies rarely netted anything of significance. They suffered injuries: Bonnie was badly burned when their car careened off a river bank, rolled over on her, and caught fire. Both suffered bullet wounds in some of the shootouts.

Their lives are interesting only for the incredible waste, loss, and desperation. Bonnie is described as much prettier than her pictures, smart, literate, and good natured when Hinton knew her as a waitress.

The 14 men they murdered were almost all law enforcement officers killed in the pair’s efforts to avoid capture. Many of those officers encountered them unaware of who they were. On Easter Sunday 1934, for example, two motorcycle officers saw their car on the side of the road in Grapevine, Texas and went to offer aid. Even when the officers devised a plan, as in Joplin and Platte City, it proved disastrously inadequate. Clyde, of course, was usually better armed than the police (perhaps due to an absence of adequate gun control laws?).

Bonnie and Clyde continuously returned to Dallas to visit family, aided by a network of friends in Dallas’s dismal west side. Hinton grew up in the same neighborhood, knew Bonnie and Clyde and their families, and he tells of regular encounters with the parents. They are sympathetic accounts. Everyone knew how it would eventually end. The constant returning to West Dallas seems inordinately reckless and accounted for virtually all of Hinton’s various encounters with Bonnie and Clyde and near misses.

Hinton did not write his book until he was the sole surviving member of the ambush team, approximately ten years after the 1967 movie. Until then, they had permitted, or more accurately invited, the fictional notion that the police were led to Bonnie and Clyde by the father of gang member Henry Methvin. The movie repeated this widely held notion. But, in fact, Hinton benefitted only from reasonable deductions and some luck. A few days before the ambush, Methvin had been ordering food to go at a Shreveport cafe while Bonnie and Clyde waited in the car, and when police spotted them, they escaped separately. Hinton figured that Clyde would have to reconnect through Methvin’s father. Hinton and his partner, the local sheriff and his deputy, and two officers from the Texas prison system staked out a road leading to the elder Methvin’s farm. After they had spent two nights and a full day crouched in a wooded area beside the road, Methvin’s father drove by. He was stopped and handcuffed to a tree for several hours. The police parked Methvin’s truck on the road, jacked it up, and removed a tire in the hopes that Clyde would at least slow down. Only when they were about to give up did Clyde finally drive by. Had Methvin complained of being kidnapped, the officers would have faced charges, but Methvin saw that it might help his son if people thought he had cooperated.

Was the violation of Methvin’s civil rights justified? Was it reasonable to fire hundreds of rounds into the car? Hinton claims that they gave an audible command for Clyde to halt before opening fire, but Clyde’s reaction was exactly what was expected. The police were still mostly without radios and their actions were uncoordinated. Information traveled slowly. And Bonnie and Clyde continued to kill. Attempts to take them alive had resulted in officers being killed and civilians put at risk. One could reasonably expect that failure to stop them on that road, that day, would result in more lives lost.

Had Clyde come along 30 minutes later, after the ambush team left, Methvin would surely have told a different story. Under today’s standards, imagine the result: lawyers for Methvin, disciplinary boards, press hysteria, handwringing, a major setback in efforts to capture the outlaws, and almost without doubt, additional victims. But we are now much more sensitive to protecting our civil liberties, aren’t we?

The feds are now coming after your cocktails. Is there anything they won’t regulate?

Click here to view the embedded video.

The risk of salmonella from raw egg whites is apparently quite low:

Of course, salmonella is no joking matter. But the reality is that since the salmonella scares of previous decades, the danger of encountering the bacteria has become infinitesimal. You’re more likely — about four times more likely — to choke on a handful of bar nuts than you are to get salmonella poisoning, according to statistics from the National Safety Council. Beyond that, most cocktails that call for raw eggs also call for fresh lemon or lime juice — and the citric acid, along with the alcohol, further neutralizes salmonella risk.

Well, that’s not my area of expertise.  And besides, I’m not inclined to drink fizzy, frothy cocktails.  I drink the real thing: martinis without qualifying adjectives like “vodka” or “chocolate.”  Then again, I’m reminded of Pastor Martin Niemöller’s poem.  Better to speak up now.

Theodore Frank explains why Goodwin Liu’s nomination to the Ninth Circuit should be voted down.

The Ninth Circuit is a court that was one vote away from striking down the Pledge of Allegiance; regularly abuses the law to disregard states’ wishes to impose capital punishment; has ordered California to release 25% of its prisoners; has forbidden Los Angeles from enforcing laws against sleeping on sidewalks; has said it has seen no reason why animals should not be allowed to sue the federal government; held an ex-police officer could sue his employer for firing him for running a porn site in his uniform; said that gun manufacturers could be held civilly liable for the shooting sprees of the mentally ill.

Liu opposed the nomination of Chief Justice Roberts based on Roberts’ support for “free enterprise,” “private ownership of property,” and “limited government.”

What was it Teddy Kennedy said about nominating someone who would impose a “reactionary vision of the Constitution”?

The government will now regulate what actors wear in films. They must wear transparent latex.

You might have thought that the First Amendment allows people the freedom of expression to get naked and copulate on camera. If so, you would be in agreement with the Supreme Court. And the ACLU. The community standards of prudes and Baptists can’t stand in the way of this all-important right.

Of course, if one of the actors were to criticize a politician in between grunts and moans, that speech could be regulated according to McCain-Feingold, and Congress is currently busy preparing new regulations of political speech to avoid anyone interfering with their re-election. The grunts and moans and close-ups of genitalia will remain fully protectable by the highest principles of enlightened democracy. Political speech will be banned.

If you want to make your porn film widely available to the public, there are some limitations. Naturally, Congress won’t allow you to include certain political utterances at certain times; that would be disrespectful, or unfair, or likely to skew an election.

And you shouldn’t distribute porn to children. Of course, attempts to regulate distribution in ways that might shield children from such films have been struck down by the Supreme Court. Why? Well, because adults have an all-important right to watch each other copulate on film. (It’s in the First Amendment, you know.)

Supreme Court to parents: “Get yourself an internet filter.” Ashcroft v. ACLU, 542 U.S. 656 (2004). Congress to citizens: “Shut up.”

But the First Amendment right to copulate for the camera has finally found a limit. It’s not based on community standards. No, it’s worker safety:

State regulators are expected to vote Thursday on a petition asking them to require porn industry performers to use condoms and to take other safety measures. The six-member California Division of Occupational Safety and Health standards board appears likely to create an advisory committee to report back on whether the law should be changed and how it could be accomplished.

The board, appointed by Gov. Arnold Schwarzenegger, has up to six months to act on a Dec. 17, 2009 petition filed by the AIDS Healthcare Foundation that seeks to change state law to require safe-sex protections for adult-film workers, including mandatory condom use and more stringent safety training and testing for sexually transmitted diseases.

That’s right. Your children be damned, but these porn stars are being exploited.

Forget about the First Amendment and the artistic expression inherent in going without condoms. Forget about the government supposedly having nothing to say about sex between consenting adults. We’re talking safety here.

It also sends a bad message to the public to see people enjoying unprotected sex. And since children are much more adept at working internet filters than their parents, they might just learn some valuable lessons, too.

Is bullying the same as lynching? I suppose so, if you think hurt feelings are the same as death by asphyxiation.

But if you can’t distinguish verbal criticism, which is constitutionally protected, from homicide, then perhaps you should find a job other than law school professor. Instapundit links to this abstract of an article by Michael J. Higdon of the University of Tennessee College of Law:

[M]y article argues that bullying on the basis of gender non-conformity is, in essence, a form of lynching. First, both are driven by unwritten social codes—in one instance, white supremacy; in the other, gender stereotypes. Second, both are carried out by perpetrators who do not act in isolation but with the support and sometimes involvement of the larger community. As I explain, one of the reasons gender-based bullying is so frequent is the degree to which peers and school administrators ignore such behavior and, in some instances, even become active participants. Third, both result in extreme harm—lynching, in its most basic form, resulted in dead bodies; however, a lynching need not be defined so narrowly. In the case of segregation, for example, we had living children with “lynched” spirits.

Is gender-based taunting acceptable? No. Is it tantamount to lynching? Not by a long shot.

The author’s zealotry in promoting this false analogy does nothing to solve the problem, and I think in fact it tends to exacerbate it.

It is difficult enough to grow up male, but boys these days have to grow up without any clear model of what it means to be a man. Sure, when I was 11 years old, there were some boys who were not quite on track. I have no idea in most cases whether they turned out to be homosexual or if they were simply on a different developmental path. Luckily for them, they weren’t forced to decide at the ripe age of 11.

What cultural insanity has made it necessary for kids to grapple with their sexual orientation before puberty?

The answer seems rather obvious. There is an over-emphasis on sex and an irrational belief that people are largely defined by sexual orientation. This is not something that the heterosexual majority came up with, but rather part of the political agenda of homosexuals. It serves to promote the doubtful proposition that all people are either immutably heterosexual or homosexual from conception. There is no choice, only a realization. Sexual “preference” is a misnomer.

The tragedy of child suicide cannot be blamed so easily on taunts from peers and a failure to enforce more political correctness at school. In fact, gay seems to be the new cool at school. I have watched my own daughter’s classmates cheerfully declare themselves homosexual without fear of any backlash (and without sufficient evidence). It has become an easy alternative to the rough and competitive environment of young men, and the perfect excuse for shyness or rejection.

Perhaps we have become too accepting of homosexuality as the underlying reason behind any differences. Maybe the boys who wanted to take home economics instead of shop really just had different interests and skills rather than a gene that would determine their fate forever. Maybe labeling them early as having this immutable trait consigns them to a lifestyle that they don’t desire or understand. It is more than an 11-year-old should have to deal with.

We might avoid some suicides if we could give boys a chance to grow up without assuming that homosexuality is behind every bump on the road to manhood.