Hewitt Blog

The United States Court of Appeals for the District of Columbia Circuit is often referred to as the second most important federal court in the United States.

Yesterday, long serving Harry Edwards took "senior status," which means a sort of semi-retirement status, which opens up another seat on the court for a nominee from President Bush. There are now three vacancies, and although some argue that the court really ought only to have 11 members, the law authorizes 12.

One of those vacancies should be filled by Brett Kavanaugh, who has been languishing in the Judiciary Committee despite the Gang of 14's deal. Even though the Committee cannot trouble itself to get to work on the nomination of Judge Alito, perhaps they can get Judge Kavanaugh seated this month or early next, and perhaps the White House can get one or two additional names sent forward.

This court is too important to allow it to drift along without a full compliment of judges. Not only is the D.C. Circuit the on-deck circle for the SCOTUS (batting next, Judge Janice Roger Brown), it also deals with an incredible number of crucial cases that never reach the next level but which have profound impact on the operations of the government.

The Kavanaugh nomination needs to get to the floor, and new nominees need to get from the White House to the Hill. And the Judiciary Committee needs to finish up the work on those nominees not thrown under the bus by the Gang of 14 last spring.

From today's Washington Times:

The Senate will not conduct Supreme Court confirmation hearings for federal Judge Samuel A. Alito Jr. until next year, Judiciary Committee Chairman Arlen Specter announced yesterday.
A final confirmation vote by the full Senate is scheduled tentatively for Jan. 20, making it the longest confirmation process since that of Justice Clarence Thomas in 1991.
Mr. Specter's timetable envisions five days of hearings before the judiciary panel, starting Jan. 9, followed by a committee vote on Jan. 17.

Senate Democrats bluntly warned their GOP colleagues that they would not attend confirmation hearings held in December, and would otherwise obstruct the Alito nomination unless their slow-roll approach was adopted. Given the overwhelming likelihood of confirmation, the GOP elected not to give the Dems any high ground on which to complain and thus divert attention from Judge Alito's qualifications.

Of course the senators had other plans and generally don't like to work post mid-November. I'd like your help figuring out what was so important to the Democratic members of the Judiciary Committee that will keep them away from D.C. during the run up to Christmas and the New year. If you come across the travel plans for Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer and Durbin --including any articles that mention them while on recess-- please pass them along to me.

Jim Gilchrist phoned in yesterday and stayed for three very interesting segments. Throughout his campaign for Congress, the candidate has been able to use the comfy confines of local talk radio cheerleaders, Los Angeles talkers John and Ken, to repeatedly be asked one question in a thousand forms: What about illegal immigration? On yesterday's show, Jim had to respond to a few questions outside his comfort zone. Radioblogger has the transcript and audio available, and I'll replay the segments today from 4:30 to 5:00 pacific.

In fact, this was one of the strangest weeks of interviews in my 16 years in broadcast journalism. I'll also be rebroadcasting in the same hour, my interview with the USCD student pornographer and with the Fort Worth columnist who thinks most of Bush's "short list" for SCOTUS would be as comfortable under white robes as black robes.

Sort of the triple play of "out there" interviews.

There is a light rain in Paris at this hour, but the forecast is clear for the rest of the afternoon and evening, as Paris braces for a weekend of rioting.

Depending on what you read, 160 cars, 400 cars, or more than 500 cars were burned last night, along with shootings and other arsons. Some details from the BBC:

In the reported overnight incidents:

Shots are fired at riot police, slightly wounding five officers, police say.

A group of officers are targeted near a synagogue in the Seine-Saint-Denis area of Stains, where a primary school is partially burned.

Police say 519 vehicles were burned and 78 people held in the Paris region, in the worst night of riots so far.

More than 100 firefighters fight a blaze at a carpet warehouse in Aulnay-sous-Bois; another warehouse is also set alight in Le Blanc Mesnil area.

Twenty-seven buses are burned at Trappes depot in Yvelines, west of Paris
Outside Paris, as well as the cars set alight in Dijon, unrest flared in the Rouen area, to the west of Paris, and in the Bouches-du-Rhone region near Marseille in the south.

Here are the accounts from the New York Times and Washington Post. From the Post:

"The peak is now behind us," Gerard Gaudron, mayor of Aulnay-sous-Bois, one of the worst-hit suburbs, told France-Info radio.

Is it? Mark Steyn, from yesterday's interview:

I'm actually thinking of going to Paris. I went to one of these suburbs that's currently ablaze three years ago. And what was interesting to me is I had to bribe a taxi driver a considerable amount of money just to take me out there. They're miserable places. But what was interesting to me is that after that, I then flew on to the Middle East, and I was in Yemen, and a couple of other places. And what was interesting to me was that I found more menace in the suburbs of Paris than I did in some pretty scary places in the Middle East. I mean, there is a real...this, I think, is the start of a long Eurabian civil war we're witnessing here.

Comprehensive coverage at OutsidetheBeltway. Excellent analysis at The Shadow of the Olive Tree.

An official from Jim Gilchrist's campaign tells me that The Green Party hates Gilchrist and have been harassing and threatening him for years. The spokesman, Tim, did not , however, have an explanation for the Gilchrist statement from June 14th of this year, in which Gilchrist said about anti-World Trade Organization "reactors," that

"I was elated that people were going standing up against the World Trade Organization, and I don't know that much about it except it's part of that big monster that wants to dominate the world and it goes back to that movie Rollerball made in 1974 where become nations of economies rather than sovereignties. The nation of IBM, the nation of Exxon Mobile, the nation of Wal-Mart...uhh there are no borders anymore, we are all slaves to these gigantic global enterprises and it's disgusting."

When Jim Gilchrist was on my radio show a few months back, the Minuteman founder didn't say anything that whacky. But if this site is true, he was just on his best behavior.

I am late to this effort, but some fine people --SoldiersAngels-- have organized to raise money for voice activated laptops for wounded soldiers, sailors, airmen and marines.

The friendly competition is headquartered here.

There are teams for each branch of the service.

Smash and Blackfive are on the side of the Navy and the Army respectively. (Mrs. Smash is a dynamo!) MudvilleGazette is leading the charge for the Air Force team. (Where Mrs. Greyhawk is pounding the keys for her team.)

This blog is a proud member of the USMC team, headquartered at Holly Aho as the fetching Mrs. Hewitt, daughter and sister of career Marines, would have it no other way.

Please give generously to those who have given a great deal on our behalf. To get team credit for a donation, you must donate via the "To Donate" button on the website of your team leader.)

And if you are a blogger, sign up for the USMC Team. (Heh. Just recruited Instapundit to the right team.)

It is getting worse.

Matthew Maynard notes that France has been the canary-in-the mine before.

Mark Steyn's candid assessment will be transcribed and up at Radioblogger later.

Meanwhile, in Canada...

K-Lo reports this over at The Corner. I can't say I am surprised. To push the Dems would simply trigger the sort of obstructionist tactics that we witnessed on Tuesday.

I don't think the extra time is going to do much to help or hurt Judge Alito. The broad themes are already set, and there isn't going to be any sort of blockbuster revelation. And there isn't going to be any filibuster.

But there will be some significant SCOTUS hearings between then and now --especially the parental consent hearing-- but I also suspect that the Court will not rule on that or any other extraordinarily controversial matter prior to the arrival of the new justice given Specter's estimate of a vote by Janury 20th.

The phrase, the "Constitution-in-exile," has become short-hand for labeling a judge as an enemy of the post-modern SCOTUS and especially Roe. Like most short-hand phrases, it allows opponents of a particular nominee to avoid detailing exact objections to specific decisions, and instead to allow the listener to imagine for himself what the charge means. The anti-religion gang asserts that it means the return of the established church. The gun control crowd assert it means F-15s to anyone who can fly. The abortion-rights absolutists argue that it means a judicially-decreed criminality for abortion providers.

According to IP Central, the phrase was first used by Judge Douglas Ginsburg, a D.C. Circuit judge, who wrote in a 1996 book review:

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.

I am teaching the Contracts Clause this week, which slumbers but is not "in exile" anymore than the substantive due process theory is in exile. (The latter, identified first with Lochner, has been used in the field of economics by the SCOTUS to strike at excessive punitive damage awards in recent years, e.g. State Fram Mutual Automobile Insurance Co. v. Campbell. This is a 2003 holding that struck down a huge punitive damages award, which written by Justice Kennedy, but dissented from by Justices Scalia, Thomas, and Ginsburg --making it a ripe doctrine for reconsideration with the new Chief and Justice Alito on the court.)

As for the Contracts Clause, in Allied Structural Steel Co. v. Spannaus, a 1978 case in which the SCOTUS struck down a Minnesota law that sought to impose certain "pension funding charge" on companies leaving the state, Justice Stewart dusted off the Contracts Clause which had been put in the Court's basement in 1934, writing:

Although it is perhaps the strongest single constitutional check on state legislation during our early years as a Nation, the Contract Clause receded into comparative desuetude with the adoption of the Fourteenth Amendment, and particularly with the development of the large body of jurisprudence under the Due Process Clause of that Amendment in modern constitutional history. Nonetheless, the Contracts Clause remains part of the Constitution. It is not a dead letter.(Emphasis added.)

Folks who throw around the phrase "Constitution-in-exile" as a pejorative would say Stewart's decision was a shocking retreat from precedent, an attempt to summon this part of the Constitution from its exile. Supporters of Stewart's opinion would say he took his oath seriously. There has been no follow-up to Spannaus from the Court. But the Contracts Clause hasn't been repealed either.

The point is the debate about the phrase "Constitution-in-exile" is really a debate between proponents of the Constitution as understood by Madison, Marshall, and other early geniuses of the Framing and first decades of the Republic, and the more recent vision of William O. Douglas, William Brennan, Earl Warren and Abe Fortas. The shorthand stuff doesn't explain a thing, and is in fact a marker of someone unprepared to debate specifics.