In his latest broadside against Judge Sonia Sotomayor, Stuart Taylor revisits Ricci v DeStefano. In addition to a naked call for judicial activism (I'll address that point at the end of this post), Taylor takes issue with the factual findings of the District Court, the per curiam panel decision and, though Taylor chooses to ignore it, the concurrence in denial of en banc rehearing of the highly respected Second Circuit judge Guido Calabresi. Taylor writes:

The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.

In terms of viewing the law, this is an erroneous method for evaluating a legal opinion. Disagreeing with the factual conclusions of a judge or an appellate panel is not the same thing as saying a judge got the law wrong. In terms of Taylor's view of the facts, it is mystifying that he chooses not to address the concurrences to the denial of en banc rehearing by Judges Parker and Katzman (PDF), but especially that of Judge Calabresi (PDF). Judge Calabresi wrote:

Here's what's caught my eye this morning:

• Behind Bars, Sort Of....Can a prison have glass walls, balconies, communal cooking spaces and private bathrooms — and still be a prison? (NY Times Magazine) The answer: Yes, but not in the U.S. Europe is so much more enlightened. In addition to Austria, as I wrote last week, there's France.

• Unlikely heroin confession: Researcher reveals past as an addict to encourage new tactics in war on drugs (Chicago Tribune)

• Las Vegas Mayor Oscar Goodman may run for Governor of Nevada, as an Independent. Oscar is a long-time hero of mine. As I've been saying since 2002, Run, Oscar, Run!

U.S. District Court Judge Jeffrey White in San Francisco yesterday ruled Jose Padilla can sue former Bush terror policy maker John Yoo.

Mr. Padilla was held as an “enemy combatant” in solitary confinement for more than three years in the Navy brig in Charleston, S.C. Mr. Padilla, who was convicted of supporting terrorism and other crimes, demands that Mr. Yoo be held accountable for actions that Mr. Padilla claims led to his being tortured.

....In the 42-page ruling, Judge Jeffrey S. White of Federal District Court in San Francisco characterized the conflict as one that embodies the tension “between the requirements of war and the defense of the very freedoms that war seeks to protect.”

Judge White refused all but one of Yoo's immunity claims, finding "Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”

The National Journal Weekly Bloggers Poll asked:

Politically, how important is it to President Obama that health care reform be bipartisan?

My answer:

"Bipartisan" health care reform would not be health care reform. It is important that health care reform not be "bipartisan."

What do you think? Take the poll. Speaking for me only

Shwawna Ford, the National Executive Director of a local the Minuteman American Defense group (M.A.D.) has been arrested for a double killing, that of a 9 year old and her father, during a home invasion last month.

According to authorities, Bush, [MAD leader Shawna] Forde, and Gaxiola broke into the home of the Flores family just after midnight on May 30th. At the time, the mother, father and daughter were home. The invaders reportedly shot the three members of the Flores family, killing the father, Raul, and the daughter, Brisenia. The invaders then left the scene.[More...]

Cell phone service around Tehran is currently down. Clashes have erupted.

According to Peiknet (and a translation I received by e-mail),

Telephone communication between Tehran and the rest of Iran has been completely disconnected. This corresponds with the beginnings of the arrests of the opposition. It is suspected that this is being orchestrated by the son of Mojtaba Khamenei son of The Supreme Leader, Ali.

CliffLyon at Daily Kos is following the breaking developments.

From Bermuda, the four recently transferred Chinese Uighur Muslims, Abdulla Abdulqadir, Salahidin Abdulahad, Khalil Manut, and Ablikim Turahun, discuss the seven-plus years they spent in the United States' prison at Guantanamo Bay, Cuba.

"We'd never heard of al Qaeda until we came to Guantánamo and heard about them from our interrogators. "From what we have heard about them, they are an extremely radical group, with totally different ideals from ours. We are a peace-loving people."

The men said for a year of their imprisonment they were held in solitary confinement for 22 hours a day in a cramped cell with no natural light, and were allowed outside for a couple of hours a day in a three-metre by five-metre "recreation area".

Like many other of the Gitmo detainees, they were sold to the U.S. for cash after crossing into Pakistan: [More..]

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How [will] arguments of this kind . . . affect proposals to “incorporate” the second amendment[?] - Judge Frank Easterbrook

Sandy Levinson discusses the issues I wrote about yesterday - the dissonance between the insistence by extreme conservatives that the individual 2nd Amendment rights discovered by the Roberts Court in Heller be incorporated into the Due Process Clause of the 14th Amendment and their stated commitment to the New Federalism. Levinson writes:

Props to Palau, for tentatively agreeing to take up to 13 of the Chinese Uighur muslims from Guantanamo.

It is one of the world's smallest countries, with about 20,000 people scattered over islands of lush tropical jungle. Most work in tourism, construction and farming.

China is not happy. [More...]

Kendall Craig Farris, author of Drugs, Kids and Crime: Surviving Our Drug Obsessed Culture and founder of the Over the Wall Foundation in Marina del Rey, a nonprofit organization that works with families and schools to prevent kids from abusing drugs, was arrested Thursday after an undercover cop purchased methamphetamine and ecstasy from him for $480. The drugs turned out to be fake. Whether Farris viewed the sale of bogus meth as another technique for preventing drug abuse is unclear, but since it is just as illegal to sell counterfeit controlled substances as it is to peddle the genuine merchandise, Farris will be explaining how to survive our drug obsessed culture to his fellow inmates until he's able to post bail.

The Justice Department filed a brief today (available here) in a federal case in California. Gay rights groups are outraged.

This week, the Obama administration is facing the ire of gay rights groups after it filed a brief in California federal court defending the Defense of Marriage Act and calling it a "valid exercise of Congress' power" that is saving taxpayers money.

The Defense of Marriage Act, or DOMA, was signed into law by President Clinton in 1996. It doesn't prohibit same-sex marriages; instead, it says that no state "shall be required" to honor same-sex marriages taking place elsewhere or any "right or claim arising from such relationship."

Human Rights Campaign, Lambda Legal, the ACLU and other groups issued a joint statement today blasting the filing: [More...]

Since stories about nudity engage the attention of our loyal readers more than (for instance) stories about DOJ misconduct or the FBI's recruitment of informants to spy on mosques (for shame, people!), let's wrap up the week with a "crimes in the news" story about a man who (according to the AP) "was arrested on suspicion of being naked." Upon further review, it turns out that the man was arrested for loitering on school grounds but is nonetheless suspected of being naked on school property.

According to the Douglas County Sheriff's Office, three Whittell High School students reported coming across a naked man behind the school who appeared to be tied to a rock and was lying face down. A student said they asked the man if he was really tied up, which he confirmed. Then they asked if he needed to be untied and the man answered no.

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