as of noon. Thirty days until degree conferral.

Three exams (in three days) and law school is done. Forever. By mid-day Thursday, the J.D. is almost in hand, to be conferred on January 15th. Now there's just that little bar exam thing.

Michael Newdow, the plaintiff in the "under God" fiasco that had been in the Ninth Circuit and U.S. Supreme Court in the last few years, is back at it. Not phased at all by the Supreme Court's decision that he did not have standing to litigate his interests as a parent of a school-age child to protect her from religious references, Newdow will now file suit to challenge the words "In God We Trust" on currency.

This is an extremely premature analysis, but my best guess is that this suit will go down in flames in the Supreme Court if it makes it that far and is heard on the merits; there are probably six justices that will feel that this wording is a historical exercise permitted under the Constitution.

These posters have been all over the New York City subways and buses for quite a while now, in both English and Spanish (Si ve algo, dice algo).

But soon, if the application goes through, the Metropolitan Transit Authority will have a trademark in the phrase. The MTA is pretty aggressive on intellectual property, especially considering that they are a municipal organization. I can't help but wonder if trademark attorneys' fees aren't 50 cents of every $2 fare.

Post Office officials say "That's just absolute rubbish." But USPS has also come under attack for its executive relocation bonuses, viewed by many as excessive:

After criticism in May by Senate Finance Committee Chairman Charles E. Grassley (R-Iowa), the Postal Service has drastically curtailed a moving-expense bonus program for senior executives, ending payments of up to $25,000 that allowed officials to pocket thousands of unspent dollars.

The bonuses, which supplement government payments for housing assistance and shipment of household goods, will be capped at two weeks' salary. For senior executives earning about $165,000, the limit would slightly exceed $6,300.

Thomas G. Day, the Postal Service's senior vice president for government relations, revealed the bonus change in a letter last month to Grassley, who had questioned whether they had anything to do with rate increases for stamps. Day said the program and the rate increases were unrelated, adding that the mail agency has been reviewing the moving-expense policy for some time and modified it effective Oct. 11.

... One senior vice president received $75,000 -- $25,000 each for three moves from June 1998 to February 2001. The mail service gave 265 executives $10,000 each and 10 others $25,000 each in the past two years, according to information gathered by Finance Committee investigators.

Just keep this in mind as you lick those new stamps in a few months. [Of course, almost nobody actually licks stamps anymore, as almost all are self-adhesive now, but "keep this in mind as you affix your self-adhesive stamps" just doesn't sound right.]

So there's been no substantive talk of Alito here as yet. I don't really know anything about him, save that he is vastly more qualified than Miers. No doubt plenty more will come out in the next few days and weeks. Tentatively, though, I think Jonathan Adler's comments in his Tuesday Wall Street Journal opinion piece are probably right on the mark:

We may not all agree with all of their decisions, but we will respect their judgment, appreciate their analyses, and admire their commitment to the law. As a law professor, I look forward to the opportunity to study Justice Alito's future opinions with my students, as I am confident a Justice Alito would contribute well to a Supreme Court of which we can all be proud.

In an article about a pair of recent United Methodist Church Judicial Council decisions about homosexuals in the pulpit and as members, the N.Y. Times seems a little confused over church polity and politics, apparently thinking the latter determines the former:

Some Methodists had voiced concerns that the debate over gay men and women could rupture their church, the country's third-largest denomination, and cause conservatives to leave. The rulings will most likely assuage conservatives, church experts said. But the experts also said they did not expect those who want the inclusion of gay men and lesbians in the ministry to back down, even if chances of a reversal in church policy remain remote.

One decision defrocked a lesbian minister, the other reinstated a minister that refused to allow a gay man to become a member, although he had been welcomed to worship at the church. The latter decision, especially, seems to not take a very strong stance on homosexuality per se, but instead allows individual pastors discretion.

Only in the last paragraph is the actual underlying issue -- the one which was effectively localized to individual pastors in the recent decisions -- addressed:

At the heart of the disputes, several clerics said, is a profound conflict among Methodists over the nature of homosexuality. "Is it something you can't control," Mr. Phillips [a Methodist minister and associate professor of the practice of Christian worship at Duke University Divinity School] said, "or something sinful and that should be repented of?"

Not everything is a political issue.

President Bush announced this morning the nomination of Judge Sam Alito of the U.S. Court of Appeals for the Third Circuit to the U.S. Supreme Court.

The Democrats are of course vowing to fight, but this is probably just the move Bush needed to make to rally his base after the Libby indictment and failed Miers nomination.

I learn from Will Baude that the Yale Law School library has the first two seasons of Angel in its vast collection. I can't help but wonder why, though. Perhaps because its a fabulous show, or possibly because it (accurately?) portrays lawyers and law firms as great instruments of evil in our modern world, entrenched in the demon realm. Maybe it's some of both.

But having just finished season 4 and facing the Multistate Professional Responsibility Exam on Friday, I also can't help but wonder about the (professional) ethics of Wolfram & Hart. (N.B. end of season 4 spoilers lie ahead.) Staff, including young lawyers, are to be supervised by partners licensed to practice law in the relevant jurisdiction. Certainly even heads of ancillary departments need not be attorneys, but if Angel (who to my knowledge is not licensed to practice law in any jurisdiction) is running what still purports to be a law firm, isn't Wolfram & Hart facing a whopper of an ethical violation?

Now that the nightmare is over, we are faced with the same question that plagued us a little over a month ago--who will the President nominate to replace Justice Sandra Day O'Connor? The same names are being bandied about this afternoon that were being mentioned the last time around, which raises a few issues in my mind:

1) What effect will the President's unsuccessful nomination have on the process? The usual suspects are being thrown around as potential candidates (with the notable addition of Senator Cornyn to the list), which causes me to think that the popular answer is "nothing." I initially thought that President Bush would not be able to go back to the same pool after the unpleasantness that followed the last nomination. However, the more I thought about it, the more it seemed that all of the negative spin on other potential candidates was generated by Miers herself, who has now been completely discredited.

2) What role will Harriet Miers have in the selection process? As reported here, Miers will remain on as White House Counsel. This is the position from which she cleared the way for herself the last time around. Will she be capable of peforming an about-face in her opinions on the people she had previously vetted?

3) How will White House allies who supported Miers handle the situation if it appears that someone from the previous "short list" appears likely to garner the President's nomination? For example, Brit Hume and Leonard Leo either explicitly or implicitly backed the Miers nomination. I'm not quite sure if we are in the rumor mill business here, but the word is that at least two members of Leo's Four Horsemen have spent the morning and early afternoon trying to make nice with the former short-listers in case they need to back them in the future.

Fox News is reporting that Harriet Miers has withdrawn her nomination to be an Associate Justice on the U.S. Supreme Court. I'm sure that I will have more to say on this later, but for now I am simply going to sit down and try to figure out exactly what motivated this drastic decision.

(My) New York Senator Charles Schumer indicates it may be, saying "[s]he would not get a majority either in the Judiciary Committee or the floor."

One of the important points in the article is that to access most of Miers' substantive writings, the Bush Administration would have to waive executive privilege, something they have ardently fought for in the past and not something they are expected to even consider doing.

And Harvard Con Law Prof Charles Fried has this to say in the Boston Globe:

We may grant that Miers is intelligent, decent, and hard-working. The hearings must convince us that she has the ability to understand both sides of a question, to reach sensible conclusions connected to established law, and to explain those conclusions in words that we can understand, whether or not we agree with them.

Miers, the "loopy lady" who used to write to then-Governor Bush things like "You are the best governor ever — deserving of great respect," and who desribed him as "cool" and "the greatest!" may at last be on her way out of the running for Supreme Court Justice.

Earlier, Pennoyer noted that the early hearing date for Miers:

has to be encouraging news to those who believe that Miers will crash and burn before the committee, as the relatively early start date allows her little time to prepare. However, this may also be a signal that Miers may have been better prepared to face the committee than many people had originally thought. Other possibilities include (1) the President has lost confidence in the nominee's chances and is sending her before the panel before she is prepared in order to put pressure on her to withdraw her nomination and (2) the move is scheduled in order to head off any unfavorable press about the nominee that might be surfacing in the next couple of months.

Crash and burn it may be... and soon. Hope and support for Miers appears to be dwindling. Time, it seems, is not working in her favor. An expedited hearing will likely not counteract the public and Senatorial vetting process.

Via the Washington Post:

The Kansas Supreme Court yesterday struck down a state law that penalized same-sex statutory rapes by 18-year-olds much more harshly than heterosexual cases, ruling that the law unconstitutionally discriminated against gays.

Of course, when prosecuted (rarely), women charged with statutory rape of a minor male generally face a much lighter sentence than hetersexual male statutory rapists. Wouldn't precedent like this eventually lead us to a view that all males convicted of statutory rape (of either sex) are punished harsher than females thus also sentenced in violation of the Equal Protection Clause. I'm not sure that's a result many people at all really want.

Pennoyer says that U of Rhode Island's "so-called 'double jeopardy' problem is more vexing" than the dorm search and questions whether jeopardy has even attached, as the actions are administrative in nature. A valid point, and I had initially raised concerns, but I wonder if we aren't missing the issue: its an "administrative" action because its a state actor, but really all they're enforcing is a private (contractual) remedy, essentially outside of a traditional legal context (court or administrative), save the fact that they happen to also be a state agency. A public school would likely provide for the same proceeding, and I'm not sure it's different for the state actor — i.e., I'm not sure that asking about jeopardy is the right thing to ask in the first place.

Thinking about a private school scenario, the proceedings would be to decide if the student would be allowed to stay on the campus, determined by school administrators (and maybe student panelists), based on the consented-to rules of the campus. Although we're talking about underlying actions that may be illegal, there's certainly no real jeopardy - at least in the criminal sense - attached because there's (at least at this stage) no crime charged. And there's not even a civil penalty on the line (yet), because we're not in court yet.

Now, the real question is does this intragroup procedure change in some way when the state is the head of the group and, if so, how. I'm not sure that it does, as a matter of law, and even less sure that it should. Yes, we're talking about an administrative body of government, but its not really involved in an administrative procedure in the usual sense. The proceedings aren't occurring because the state agency has a coercive power to compel it, but because it has the "private" right to do this to members of the group because they consented to the rules of the campus. It's certainly comparable to the private school scenario, and probably rightly comparable to something like a homeowners' association proceeding to enforce rules, too. The mere fact that it occurs in the state need not necessarily transubstantiate a private, non-legal remedy — an enforcement of internal and agreed-upon rules (although it could eventually be brought in court, on contractual terms).

Contrary to my prior speculation, Harriet Miers's confirmation hearings before the Senate Judiciary Committee will begin November 7. This is surprising to me, considering all the commentary suggesting that they would not begin until possibly a month later so the nominee could adequately prepare to answer questions on subjects that she probably hasn't thought much about in her role as a corporate attorney, lottery commission member, or member of the President's staff (read: "I need to sort of bone up on this a little more").

This has to be encouraging news to those who believe that Miers will crash and burn before the committee, as the relatively early start date allows her little time to prepare. However, this may also be a signal that Miers may have been better prepared to face the committee than many people had originally thought. Other possibilities include (1) the President has lost confidence in the nominee's chances and is sending her before the panel before she is prepared in order to put pressure on her to withdraw her nomination and (2) the move is scheduled in order to head off any unfavorable press about the nominee that might be surfacing in the next couple of months.

Of course this is all conjecture, but one thing is certain: I am very much looking forward to seeing how this untested nominee will handle the pressure over the next couple of weeks.

I agree with Mr. Green's comments regarding the propriety of staging a protest in response to the University of Rhode Island's new rules. Because we're not talking about the criminal justice system but rather an administrative arm of the state, procedural due process is really the only concern here with regard to the search rules and 're-indictment after acquittal' unless the police are using University officials as a conduit to avoid the requirements of the Fourth Amendment.

Whether the University has provided due process is governed by the law school classic Mathews v. Eldridge, 424 U.S. 319 (1976). In Mathews, the Supremes stated that the factors to be considered are (1) the private interest in a pre-deprivation hearing (how much would the party be harmed by the government action, even if he had a strong case against the deprivation?); (2) the risk of error/value of additional procedures (is this an easy decision to make in isolation or on paper, or would additional procedures like the right to counsel or the right to cross-examine witnesses help avoid the risk of error?); and (3) the value to the government in a post-deprivation hearing (usually very high where there is a great chance the government will not be able to recover property erroneously given).

The University could probably make a strong argument in favor of its rules under this test under the same line of reasoning that justifies warrantless police searches due to exigency. The private interests are the broadly stated and vague interests in being secure in one's belongings, but this interest is probably almost entirely overcome by the fact that the dormitory rooms are owned and operated by the state and provided to the students as a service.

The so-called 'double jeopardy' problem is more vexing. In the criminal context, jeopardy attaches as soon as the jury is empaneled, but the procedures here are administrative in nature. The unusual procedure here would present an interesting hypothetical in an administrative law class, as it seems that the school could have an infinite number of chances to charge a student with an offense, provided some new evidence is found within a week of each acquittal. Double jeopardy comes into play in a civil context when an agency punishes a person or entity for the same conduct for which that person or entity has already been punished in a criminal setting. Likewise, a civil penalty that is meant to prevent or deter wrongdoing is 'punishment' for double jeopardy purposes. Multiple punishments for the same conduct is permissible if imposed in the same proceeding, but not if there are two proceedings in which punishment is imposed. The interesting question in the administrative context is whether jeopardy has ever attached when a person is acquitted during the first proceeding and not punished. I am not sure whether this question has been answered.

The Chronicle of Higher Education reports (subscription req'd) a student protest of a new campus housing policy:

Students at the University of Rhode Island gathered on Monday outside the office of the university's president to protest new disciplinary policies that, they say, violate their civil liberties.

The new policies, which were approved last week by the president, Robert L. Carothers, give university officials more power to investigate and punish students for both on- and off-campus offenses. In particular, they permit administrators to search dormitory rooms without students' consent and, in campus disciplinary proceedings, to charge a student with the same offense more than once if new evidence is reported within a week of an acquittal.

The policy changes were adopted to curb student disciplinary problems, particularly those associated with alcohol and drugs.

But protesters on Monday called the new policies "draconian and egregious."

The dorm room search doesn't strike me as so egregious. My apartment lease expressly allows for the building owner and management to enter "at any reasonable hour." Most do. Sure, searching would be a little different, but universities are more often being held liable for suicides and drug and alcohol related deaths, so I think it's a reasonable response to their growing liability. Ideally, if I were a student Rhode Island, I would want to see that there were at least minimal procedural safeguards (e.g., that there has to be some cause), but the search itself isn't overly concerning to me, even considering the (public) school's status as a "state actor."

The latter part, however, does smack of double jeopardy. And we are talking about a state school. A better solution might be to adjust procedures so that disciplinary proceedings lasted a little longer, to cover (partially or entirely) this one week window which the university apparently feels may be important, at least in some cases, to obtain all evidence.

Still, even with some concerns, I can't help but think a protest is an overreaction. Students are fabulous at overreacting, and especially when it involves protesting. They might, after all, find much better success trying a respectful letter and student government action. I suspect all they've achieved by protesting is making Dr. Carothers all the more dogged.

It's been raining, more or less, for a week in New York. About 12.5 inches of rain. Rain is fine, but not when it's almost a half-mile to the subway and another half-mile to Cardozo. That's a mile of walking in the rain. And a another mile back home. It's not the walk that's bad - I prefer to walk the whole two miles, so long as there's no rain. (The subway only saves me a mile anyway, and takes almost as long as walking the mile.) I love to walk in New York, just not in the rain. I regularly take very long walks - usually about 10-15 miles, but occasionally longer (like down to Battery Park, up to Harlem, and back home). Walking has become my new driving: I like not having to drive, but miss being able to drive; now I hate having to walk (at least in the rain), but will miss not being able to (of course, you can walk anywhere, but everywhere isn't the same).

So with only 6 full weeks left in New York, I've been thinking about the things I will and will not miss.

WILL miss:

• Walking on nice days

• FreshDirect

• Law school???

• Answering "Where do you live?" with "Manhattan"

• All the "cultural things" that I know are close, even though I only go myself when someone is visiting

WILL NOT miss:

• Walking in the rain

• Law school???

• Cars blowing their horns 180 feet below me when the Lincoln Tunnel backs up

• The smell of the summer (i.e., piles of trash putrefying on every corner in 90+ degree heat)

• Not being able to drive

• Having no real supermarket to go to

• Knowing that there must be at least 10 of the kind of store you need nearby, but not knowing exactly where any one of them is

• Hot summers AND cold winters

I'll keep expanding the list as I think of things.

In case JNOV readers were inspired by Pennoyer's post suggesting a crash course in Con Law for Miers, details of where to send used materials (and photos of you sending them) are at StudyGuidesforMiers.com.

Some word has been spread in recent days regarding information certain media sources have uncovered that would cast Harriet Miers in an unfavorable light (gushing birthday cards aside) before her confirmation hearings. Mentioned as possessing the information is the New York Post, which is of course owned by NewsCorp, which also owns Fox and Fox News. With the tack that Fox has taken on this nomination, the word is that the Post is waiting for the White House to back off its smear campaign of the other former candidates for the seat before it acts on the information.

The real shame is that nobody took care of this business before the nomination was announced. Because of the unique position Miers assumed in the selection process, she was in a position to eliminate other candidates based on perceived ethical or philosophical problems, but nobody was in the position to eliminate her. Now it will be up to the public and their representatives in the Senate to vet the vetter. However, this process will probably not take place until mid-December now so that Miers can take a crash course in Con Law before the hearings (sorry--I know other blogs have done it, but I couldn't resist). Is a Miers withdrawal possible before then? We'll have to wait and see.

A good account of the latest attacks launched by the White House on Miers's critics from Confirm Them appears here. Though this e-mailer's criticisms are blatantly one-sided, he does make some salient points that express many of the frustrations that the base that elected President Bush are feeling right now. One of the platforms on which Bush ran in the 2004 election was that he would appoint qualified judges that will interpret the Constitution closely and not legislate from the bench. While Miers's judicial philosophies remain a mystery, Miers--by all accounts--seems to be a "lawyers' lawyer." While this may seem refreshing to those in the general public who have had no experience with the important role our federal courts play, those who have had first-hand experience in the area surely know the difference between a "lawyers' lawyer" and a Supreme Court Justice.

While there was some initial delight (albeit vicariously embarrassing) from those who oppose the Miers nomination over her supposed "Warren" gaffe, an article today in the Washington Post sheds some more light on the issue.

*******

It seems that those toeing the party line (a phrase that often irks me, as someone it has someone else, thankfully) by calling those who oppose the Miers nomination "elitist" and by disparaging the qualifications of the other potential nominees (i.e. Brit Hume) have taken the lowest road possible. Once it became apparent to those close to the selection process that Miers had vilified the other candidates in order to clear the way for her own nomination, it was not completely unexpected that the White House would feed talking points to the media focusing on the same issues. Professor Zywicki over at Volokh addressed the "elitist" and "sexist" issues today in fine fashion. His point that almost none of this dicsussion would exist had the President nominated Judge Batchelder or Judge Owen (despite their education at law schools seemingly on par or even rated lower than Miers's SMU) seems well-taken; those candidates have proved their intellectual heft to the public. Criticism of those judges would surely not be attacked as "sexist" or "elitist."

Ann Althouse wonders whether Justice Scalia's concern over televising court -- and especially Court -- proceedings is really one based on maintaining a good reputation with the public:

I suspect that what Scalia is concerned about is not some much those "real people" with legal problems, but the image of the justices. If we could see them pushing with questions and interrupting decent lawyers, maybe regular people would find them narcissistic, pompous, rude, or just plain strange. They'd be ridiculed. "The Daily Show" would run clips. Some folks like me would watch the uncut show on C-Span, but most would experience the Court in the context of politics and humor. The question is whether that might be good for them.

Althouse mentions she would watch the uncut show. So would I. And I suspect a lot of law students and pre-law students would. Isn't this a good thing? And I suspect that recurring (and perhaps well-deserved) opportunistic humor would be short-lived.

Tomorrow morning is the midterm exam for the Principles of Macroeconomics course I'm teaching. Good luck to all!

I can't help but point out that Harriet Miers and the lovely Lucy Ewing attended the same institution of higher education (Southern Methodist University; in Miers' case, for both undergrad and (#52-ranked) law school). Miers made the choice to go to a fine school close to home -- just like Lucy Ewing.

Mier's nomination seems to have taken everyone by surprise. As to competence, I think she's probably a "lawyer's lawyer", so to speak. As White House Counsel, any President would likely want someone they have known and trusted for a long time, but also someone that was awfully good. So I don't doubt that she is a more than competent lawyer. But competence as a lawyer doesn't make one qualified to decide the most complex of legal issues, often relating to deeper theoretical concerns -- matters that (as Todd Zywicki points out) we have no evidence that she has ever thought about.

Of course, I -- like everyone else -- don't know enough about her to really make an informed conclusion about her or what she believes in.

But is she even confirmable? Perhaps she should have consulted with Article III Groupie and "just said no" to the nomination. Tom W. Bell offers the most intriguing theory I've seen so far, suggesting Miers is the sacrificial lamb to make way for someone like Michael McConnell:

"You wanted credentials?" Bush will drawl, "My new nominee has 'em in spades."

Wishful thinking but, alas, I fear it is not true!

In all the Supreme Court replacement talk the last few months, I've been rather struck be the pejorative use of the word "ideology". "We don't want an ideologue!" "Roberts is ideological!" "Ideology is dangerous!"

Arguably (but not necessarily), the word "ideologue" might be somewhat pejorative, indicating that the person perhaps blindly supports an ideology. But even this use, I think, is a bit of a stretch from its actual meaning. Everyone - at least everyone that puts serious thought into matters - ought to have an ideology. Ideology is just the set of beliefs that inform your decisions - it can be primarily a priori, primarily a posteriori, or formed haphazardly. But it ought to be there. Without an ideology, one tends toward inconsistency and unpredictability.

Ideology, so long as it isn't blinding, lends itself to intelligent, thoughtful, and frank discussion. Certainly Justices Thomas and Scalia have strong ideological beliefs, but so do Justices Ginsburg and Breyer and former Justices Warren and Marshall. After all, shouldn't they?

The Washington Post has an interesting article on the prosecuter behind DeLay's conviction, saying "In Texas, The Hammer [DeLay] Runs Into an Anvil [the prosecutor]". Apparently this guy even filed charges against himself once, for filing a campaign finance report a day late, resulting in a $212 fine.

And this wouldn't be the first time he brought a high-profile case with no merits:

One of the low points of his career took place in 1993 when he pursued Sen. Kay Bailey Hutchison for allegedly misusing state telephones for political purposes. When the judge questioned whether some of Earle's evidence was admissible, Earle asked that the case be dismissed. The judge refused and instructed jurors to acquit Hutchison.

The case embarrassed Earle, who rarely tries cases himself, and led many to question his motives — specifically that he had no intention of bringing the case against Hutchison to trial and filed it only to embarrass her.

The episode distills a tension that has run through Earle's career between his abundant sense of outrage and the actual merits of certain cases.

In "The Big Buy," an assistant district attorney in Earle's office, Rosemary Lehmberg, says that Earle has pursued the DeLay case despite objections within the office. "Ronnie was the only person in maybe a group of six or seven lawyers in a room who thought we ought to go ahead and investigate," she says.

"One of these guys is not going to come out of this," Keel said, referring to Earle's prosecution of DeLay. He predicts it will be Earle who doesn't.

We shall see. The only one of 6 or 7 in the office - in lefty Austin (as blue as Manhattan) - doesn't sound too good for "The Anvil".

Only the University of Chicago's online graduate application service would have the following options for a question to be asked to retrieve your password:

What is your favorite movie?
What is your favorite chemical element?
What is your favorite novel?
What is your favorite non-carbonated beverage?

So said Wednesday's WSJ, which also reported on Tuesday that Acela Express service was about to resume full service. I guess Amtrak was worried about the few times where they aren't more expensive than flying. I must say, despite some bad Amtrak experiences, I have twice taken Amtrak from Penn Station to Boston, having a nice ride -- including seeing and talking to people I knew -- on both occasions.