What, Republicans are hypocrites?  Who knew????

Using false history to fortify a position.. where have we heard of this before?  Just more proof that the republicans are controlled by the Christian Right?

I was watching an interview recently, of the Senate’s head of the judiciary committee, or one of the other highly relevant committees, and this very fact was brought up.

His response was that, yes, they had been used, but in the other cases, the filibuster was bipartisan..and this one was strictly along party lines.

So as long as a minority from BOTH parties are doing the fillibuster, it’s apparently okay. So if there is a single Republican who joined the fillibuster, then obviously all republican objections to it would be immediately withdrawn. Nice to have that clarification. Um....

Yes, Abe Fortas was filibustered.  Anybody know anything about Justice Fortas?  No, I didn’t think so.  Let us learn together:

Senator Robert Griffin learned in September that Fortas had accepted $15,000 to give some summer school lectures at American University’s law school, money that had been raised by Fortas’s former partners and clients, the nomination was in trouble. In early October, after a vote to end the filibuster on the nomination failed, Fortas asked that his nomination be withdrawn. By 1969, further revelations led Fortas to resign from the Court. A convicted financier named Louis Wolfson had agreed to pay Fortas $20,000 per year for the remainder of his life, an amount that continued until the death of his wife if Fortas died before she did. Fortas received the first check in January 1966, after joining the Court,…

So, let’s review.  The guy that was filibustered ended up resigning from the highest court in the land for ethical impropriety, not to mention the fact that he leaked to Johnson the private discussions of the Justices in contravention of the Court’s rules.

http://www.michaelariens.com/ConLaw/justices/fortas.htm

As to the hypocrites, I think the scoundrels are the usual crew:

Barbara Boxer (D-CA)...said, “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.”

Diane Feinstein (D-CA) averred, “Our institutional integrity requires an up-or-down vote.”

Senate Democratic Edward Kennedy (D-MA) indignantly argued, “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.”

Frustrated, they tried the “Constitutional Option” back in 1995:

In January 1995, by a vote of 76-19, the Senate rejected a proposal by Sen. Tom Harkin that would “permit cloture to be invoked by a decreasing majority vote of Senators down to a majority of all Senators duly chosen and sworn.” This would have effectively done away with the filibuster--not just for judicial nominees but for all purposes.

Among the senators who favored the proposal (voting “no” on the motion to table it) were nine who still sit, several of whom are now among the most vigorous filibuster defenders: Harkin plus Jeff Bingaman, Barbara Boxer, Russ Feingold, Ted Kennedy, John Kerry, Frank Lautenberg, Joe Lieberman and Paul Sarbanes.

http://www.opinionjournal.com/best/?id=110006596

The Republicans are running the same play the Dems ran in 1995.  leguru were you screaming about this back in 95? 

When one learns more about the filibuster, it’s origins (not constitutionally mandated mind you), it’s history, how it has changed and been modified and how it has been used, you will also find out that the filibuster may not be employed willy nilly.  The Senate has limited its use when bipartianship has gotten in the way of conducting the country’s business.  For example, the filibuster may not be used to delay budget resolutions, trade agreements, or the use of force. Holding up appointments to Circuit Court’s is not proper use of this tool, never has been, nor now should it be now.

The filibuster has a long history.

Using the filibuster to delay debate or block legislation has a long history. In the United States, the term filibuster—from a Dutch word meaning “pirate”—became popular in the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill.
In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate’s right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote—a tactic known as “cloture.”
...In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.

[1]
So far the Dems have blocked 10 of Bush’s 214 judicial apointees, or 4.7%.  While Hatch was chairman of the Judocoary committee 35% of Clinton’s appointments were blocked by the Senate.[2]
While I might agree with some of Brown’s views on socialism, it appears that she switches ideologies to suit her needs. 

Brown’s openly expressed nostalgia for the Lochner era, in which judges imposed their laissez-faire economic philosophy and thwarted democratic decision making, is more than idle theorizing. The largely Republican judiciary has already deployed what amounts to a new Lochnerism, imposing an aggressive and baseless theory of federalism and the takings clause to strike down national and state regulatory efforts, at the same time that they curtail individual liberties in service of the national security state.

[3]
In one of Justice Priscilla Owen’s cases, her ruling would have prevented a woman from suing a corporation for a rape committed by a sales representative for its distributor.[1]

Alabama Judge William Pryor has called laws prohibiting gender discrimination in public education “antidemocratic.� He strongly defended the practice of handcuffing prisoners to hitching posts during summer as a form of punishment.

[ibid]

Judge Terrence Boyle of North Carolina has twice had rulings reversed by the U.S. Supreme Court because he allowed congressional redistricting that disenfranchised black voters. He also indicated that states should not require equal employment opportunity for women if that state’s “culture� has discouraged women from working in certain professions. He has ruled that an employer was exempt from the Civil Rights Act of 1964, which protects against job discrimination based on race and sex.

[ibid]

David McKeague, a judge in Michigan, ruled that an employer could terminate an HIV-positive employee without trying to accommodate his disability. Another ruling, which allowed substantial logging without the state’s mandated environmental analysis, was reversed by an appellate court which called his ruling “arbitrary and capricious.�

[ibid]

Although judicial nominees have traditionally had extensive experience, William Myers of Idaho has never been a judge. He spent 12 years as a lobbyist for mining and cattle corporations. In 2001 he became the chief legal advocate for the Interior Department. In this role, he has been criticized for overturning and eliminating regulations designed to protect the nation’s public lands from corporate interests.

[ibid]

William Haynes is the chief legal counsel for the Defense Department. He was the principal author of the Bush administration’s handling of enemy combatants. In this capacity, he denied Geneva Convention protections to those captured during battle. Although he was responsible for the oversight of legal standards for military personnel, he failed to prevent, and possibly encouraged, the torture and mistreatment of combatants in Iraq, Afghanistan, and Guantanamo Bay.

[ibid]
Yep, these are regular mainstream good ol’ apple pie Americans and by no stretch of the imagination could they be called “activist”.

Oops!!!  The references that for the judicial nominee information should all be from #2 and not #1!!!  D’oh!  Sorry, people.

Aside from skirting the topic, let’s look at what the American Bar Association ratings for those that have been rated:

WQ=Well Qualified
Q=Qualified

Priscella Owens----WQ
Terrence Boyle-----Q
David McKeague-----WQ

The ABA is thought by many Republicans to be biased in its ratings. 

Warbi, if you know the citations for the cases that are referenced, I would really appreciate them so that we can look them up ourselves.

Terence Boyle cases:
Ellis v. North Carolina, 2002 U.S. App. Lexis 23717 (4th Cir. 2002)
Franks v. Ross, 313 F.3d 184 (4th Cir. 2002)
United States v. North Carolina, 914 F.Supp. 1257 (E.D.N.C. 1996)
United States v. North Carolina, 180 F.3d 574 (4th Cir. 1999)
Cromartie v. Hunt, 34 F.Supp.2d 1029 (E.D.N.C. 1998)
Cromartie v. Hunt, 133 F.Supp.2d 407, 420(E.D.N.C. 2000)
Hunt v. Cromartie, 526 U.S. 541 (1999)
Easley v. Cromartie, 532 U.S. 234 (2001)
Cannon v. N.C. School Bd. Of Educ., 917 F.Supp. 387 (E.D.N.C. 1996)
Cannon v. Durham Co. Bd. of Elections, 959 F.Supp. 289 (E.D.N.C. 1996)
Cannon v. Durham Co. Bd. of Elections, 1997 U.S. App. Lexis 31794 (4th Cir. 1997)
1

Priscilla Owens
Read v. Scott Fetzer Co (damn, I lost the page)
Well, here is a link that has some of the case info, just not that particular one!2 You can do a search on the case to get the particulars.  Apparently she is anti-abortion even in the case of rape and incest.

David McKeague
Mauro v. Borgess Medical Center, 886 F.Supp. 1349 (W.D. Mich. 1995)
3

I shall go through with you at least one case for each judge to illustrate the point that often times writers will misconstrue judicial opinions to the public.

The first and only case that I have time for this evening is Mauro v. Borgess Medical Center.  I note that Judge McKeague was the U.S. District Court Judge in this case and the case went to the 6th Circuit on appeal.  His judgment was affirmed by the 6th Circuit Court of Appeals in 1998. (Note the date is prior to any Bush appointments)

William Mauro worked for Borgess Medical Center as an operating room technician.  In 1992, Borgess discovered that Mauro was HIV positive.  Borgess was concerned that Mauro might expost one of the patients receiving surgical care to HIV.  Borgess created a new full time position of instrument coordinator that eliminated all risk of transmission.  Mauro refused the position.

Borgess created a task force from its medical team to determine if an HIV infected person could safely place his or her hands into a patient’s body cavity in the presence of sharp instrumentation.  The task force found that there would be risk of exposure to a patient. Borgess communicated this Mauro and again offered the instrument coordinator position to Mauro or alternatively to be laid off. 

Subsequently Mauro brought suit against Borgess alleging violations of the American with Disabilities Act.  Borgess moved for summary judgment arguing that it was entitled to remove Mauro from his position since his HIV positive condition posed a direct threat to the health and safety of others.  The court considered four factors set forth by the Supreme Court: the nature, duration, and severity of the risk, and the probability that the disease will be transmitted.  The parties agreed that the first three factors indicated that Mauro posed a significant threat to others, and the court focused on the probability that the disease would be transmitted, the fourth factor.

Judge McKeague found that by Mauro’s own admission that he was “occasionally required to place his hands upon and into the patient’s surgical incision to provide room and visibility to the surgeon.” He then determined that Mauro’s own experts admitted it would present a direct risk if a surgical technician was required to place his or her hands into a surgical incision and was exposed to the risk of needle sticks and lacerations.

There was not a material question of fact to even allow the judge to consider not granting summary judgment.  The facts were uncontested.  Mauro’s own experts stated that there would be a risk. Accordingly, the judge appropriately granted summary judgment, and the 6th Circuit affirmed the judgment.

That is a far cry from the obvious insinuation that the man is a virulent homophobe that is contained in the quote you chose to share with us.  What the hey though?  Who is concerned with details when raking a man through the gutter with nothing but a blurb.  That’s all okay in this scorched earth approach to the judiciary.

Les, your standing question seems more apt than ever.

Okay, sound reasoning on the HIV case, I’ll await your take in the logging one.

Personally I could careless if and or when the Filibuster was ever used in history or if Democrats dreamed it up completely just a few weeks ago, utterly moot.

Fact is what we have today in Washington is one small step away from a Totalitarian government, there are no “Checks & Balances” left.
There is ONE thing that Democrats which BTW represent at least 49% of the population of this country have left to them to keep freaks of nature, card carrying members of the Federalist Society, Far Reich Christian zealots pushing the Theopublican agenda, that ONE small bastion of democracy is called the Filibuster.

Why is it do you suppose that Dubya Christ is so hell bent on getting THESE particular judges through to the appeals court?
I mean really, just think about that he has already gotten through I believe more of his “anointees” than any other president in modern history 204 out of 214?
Yet Dubya with his strings being pulled by his Dominionist handlers are determined to push through these Judges.

One of the main freaks that pulls Dubyas strings is a long time advocate of completely dismantling the Judiciary in this country so he can achieve his goal of a Totalitarian Theocracy.

Pat Robertson.
http://mediamatters.org/static/video/thisweek-200505020003.wmv

This man is without any question a Dominionist that has been waging an all out war on Democracy in this country for over 25 years along with several others of the same Ilk such as Jerry Falwell, Franklin Graham, James Dobson just to name a few.
These freaks play that simpleton we are forced to call president like an old fiddle.
Look at what the Dominionist agenda is, then look at what Dubya Christ has done in the last 4+ years, nothing different would have been done if Robertson himself was President, Dubya has mirrored every point of the agenda Robertson laid down 20+ years ago.

This fact is irrefutable & impossible to deny.
http://www.yuricareport.com/Dominionism/TheDespoilingOfAmerica.htm

http://www.theocracywatch.org/av/liberty.ram

http://www.theocracywatch.org/av/video_dominion.ram

http://www.theocracywatch.org/audio-video.htm

Now as for these particular Judges the case against them is as follows.

Exactly WHO is it that is absolutely determined to push these 10 Theopublican judges through? several of which are members of the “Federalist Society”

http://www.pfaw.org/pfaw/general/default.aspx?oid=765

http://www.pfaw.org/pfaw/general/default.aspx?oid=652

The far Reich Christian zealot Theopublicans are the only ones trying to push these judges through, that alone should tell you something, also every card carrying nut from the Christian Coalition, again WHY do you suppose these particular Judges have this much support from a group of people that FUCKING HATE JUDGES THAT UPHOLD THE CONSTITUTION? *southern drawl* Hmmmm yer need ta be slapted in der face thar Jethro? Iz yer dat fucking dum? DOH!

http://www.au.org/site/News2?page=NewsArticle&id=7005&abbr=cs_

Now I ask you honestly do you think for one second the Christian Coalition gives a rats fucking ass about Black women judges?

http://www.cc.org/content.cfm?id=213

http://www.cc.org/content.cfm?id=210 Fuck no! they want ALL Judges to be Reich wing lunatics to push their agenda of Dominionism. This is all bald faced lies as they could positively careless about women judges of any color, they want religious freaks that they feel will push their brand of ignorance & intolerance.

http://www.now.org/press/11-03/11-13.html

NOW continues to oppose Janice Rogers Brown, Carolyn Kuhl and Priscilla Owen for seats on the federal bench,” said National Organization for Women (NOW) President Kim Gandy. “We hold every nominee to the same standards, regardless of gender, and these women meet an extremist standard, not a fairness standard. No judicial nominee will or should receive less scrutiny for a lifetime appointment just because she was born with ovaries.” NOW has been working in coalition with more than 100 groups—including the American Association for University Women, People for the American Way, NAACP Legal Defense Fund and the Mexican American Legal Defense Fund—in opposing these and other ultra-conservative nominees.

Who opposes them?

ALL Democrats, and even one or 2 moderate republicans, everyone from about any group you can possibly name actively trying to uphold the Constitutional rights of every American citizen, especially women/minorities/gays.

So you be the judge, how much more proof do you need than that? Well here is a little more.

Funny you should mention ABA qualifications considering Dubya has decided (err I should say his puppetmaster decided) to end the ABA’s pre-nomination review.

http://www.pfaw.org/pfaw/general/default.aspx?oid=745

Judge Boyle ( I have an inside line on this loon as I know someone close to me that works for him) The Theopublicans in their usual shadow government fashion refuse to release many of Boyles unpublished opinions which they have done with many other anointees to hide just how Far Reich & zealous these people are. Now why would they do that do you suppose?

Now Boyle and old Jesse Helms are good buddies, work in the same building, and Boyle was an aide to Helms, I know first hand that Boyle is a racist, he shows very little concern for privacy rights or women’s rights or for people with disabilities, and for what its worth everyone in the federal court literally hates his guts, he treats everyone around him like dirt and he is an outright asshole. In other words a perfect anointee to further Dominionism & Far Reich Christian agenda.

http://www.now.org/issues/legislat/nominees/boyle.pdf

http://www.pfaw.org/pfaw/dfiles/file_496.pdf

None of those 10 judges deserves to be anointed into Dubya’s Kangaroo court.

http://www.now.org/issues/legislat/nominees/021505renominations.html

The ONLY way Democrats have to stop such egregious Judges from a lifetime anointment to further push through the Dominionist agenda is the Filibuster, so what does this budding Theocracy want to do about that?  Why get rid of the Filibuster of course, get rid of that last small voice that at least 49% of the population of this country have in Government.

We are currently all but a ONE party system as it is and we are dangerously close to becoming a Totalitarian Theocracy run by ONE party of crazy religious zealots that want absolute control of everything you do, say, even think, want to demolish democracy, install Dominionism, destroy the Constitution & its laws, completely re-write it to fit their own lunatic supernatural fantasy world all based on Biblical law which would make this country no different than Iran or other such countries terrorized by “Sharia” law.

When Theopublicans sit there and demand a “Up or down” vote with that fucking smirk on their face, they know damn well that means all 10 of these freaks will be pushed through 100% guaranteed.  So wipe that smirk off your face and STFU.

The Democrats have no choice, its quite literally either Filibuster or may as well just go on vacation for the next 4 years, go home be with their families and just sit back and shake their heads wondering why so many Americans have been so easily fooled by a bunch of lying bastards that are just 2 Supreme court justices and a few appeals court judges from pulling off a bloodless coup d’état take over of the US Government.

http://www.pfaw.org/pfaw/general/default.aspx?oId=18666

“The fact that more than 200 of President Bush’s judicial nominees – more than 95 percent – have already been confirmed. It reminds us that this battle over a handful of extreme nominees is actually about the “nuclear optionâ€? and its proponents’ desire for unchecked power.’

Here is the real story on the Filibuster which is exactly the opposite of what those lying pieces of shit Theopublicans are spewing.

http://www.pfaw.org/pfaw/dfiles/file_527.pdf

http://www.pfaw.org/pfaw/general/default.aspx?oid=18350

I think the Filibuster is being used for the right purpose by the Democrats. I mean what else are they able to do to get thier views heard?

Lastly, I say that Bush should just quit while he is ahead, because he wouldn’t want to be the US President who is best known for starting Civil War II. If you take away every peaceful option the Democrats have of getting thier opinion heard, then only war remains.

I don’t know which one the logging case was.  I did Read v. Scott Fetzer Co. this morning and the post didn’t take for some reason.  In any event here is an abbreviated version of the facts.

Scott Fetzer Co. is Kirby.  Kirby contracts with distributors.  The distributors are independent contractors, not employess, an important distinction in the law.  The distributors in turn contract dealers (read salespeople) who are also independent contractors. Kirby requires that the vacuums be sold door to door and that the distributors use reasonable care in selecting the dealer.  The contract between Kirby and the distrubitors stated that Kirby would “exercise no control” over the selection of dealers.

Mickey Carter was selected as a dealer by one of the distributors.  The distributor failed to do a background check on Carter.  Had the distributor done a background it would have discovered that Carter had been arrested and received deferred adjudication on a charge of indecency with a child, and that one of the previous employer’s records indicated that Carter had been fired because of that incident. 

Carter went to Krista Read’s home and met with her for several hours. That afternoon, Carter returned to Read’s home, where he sexually assaulted her.  Read brought suit against Carter (the rapist), the distributor that selected Carter and Kirby.

It is important to understand something when it comes to civil trials, and it applies in this one. When a jury renders a verdict they must complete what is called a verdict director form.  If there are multiple defendants the jury can apportion fault amongst them, find one of the defendants completely responsible, apportion fault between the plaintiff and the defendants or one of the defendants, apportion all the fault to the plaintiff, or decide that nobody was at fault. The percentage on that form must be either be 0% or add up to 100%.

The plaintiff’s attorney nonsuited Carter prior to trial.  What that means is that when the jury went to decide a verdict, it could not apportion fault to Carter for the injuries.  Carter was no longer a party to the suit.  Plaintiffs’ attorneys do this because it prevents the jury from apportioning fault to the guy with no money.  In this case Kirby was the deep pocket.

The result following the trial was that the jury rendered a verdict that found the distributor 10% at fault, Krista 10% at fault, and Kirby 80% at fault.  The jury also granted punitive damages.  That tells me that Kirby’s lawyers most likely pissed off the jury somehow during trial.

On appeal, the Court of Appeals reversed the punitive damage award, and upheld the actual damage award.  It went to the Texas Supreme Court where the Court upheld the actual damage award, and agreed that the punitive damage award was not in accord with the law.  The decision was 6-3.  There were two dissents.  One authored by Justice Hecht and one by Justice Abbott.  Justice Owen joined in both, but authored neither.

The dissent focuses on two issues.  The first was that absent control by Kirby, there is no liability for the negligent acts of an independent contractor.  This is not unique to Texas, but is the law in most states. The dissent was puzzled how Kirby exercised control over the independent contractor of an independent contractor. Kirby-->Distributor-->Salespeople. Binding precedent in Texas had held in a similar organizational structure that the parent organization was not liable for the negligent hiring of indpendent contractors.  The court did not overrule that precedent but confined their decision to the facts of this case.

The second issue that the dissent had with the majority opinion was that ordinarily companies are not liable for the criminal acts of their employees, let alone their independent contractors unless and only if it realized or should have realized the likelihood that it had created a situation in which such a tragedy might occur.  The majority appears to have ruled that vacuum cleaner sales will create this situation as a matter of law, yet there was no evidence to suggest this. 

You may disagree with the dissent.  The fact that you disagree with the dissent in no way diminishes the judicial capacity of the dissenters.  Unless you can point to something in the dissent’s analysis that I overlooked.

Two judges. Two cases that purportedly condemn them as fit nominees.  Furter review here has shown that neither case contains any “radical” reasoning, or anything else for that matter that should prevent these two judges from receiving serving their country.

If you will point me to the logging case I will be happy to do that one next.

So far the HIV case is much stronger than the dissent in the rape case.  As an analogy, you hire a company to build your house.  90+% of the work will be done by contractors.  If the roof (or whtever) caves in due to shoddy craftsmanship, you would sue the company you hired, not the contractor that actually did the work.  Now if the company wants to take the contractor to court is a separate issue.  The company is liable because they are the are the ones who contracted out the work.  It is their job to ensure that any contracting is done with reputable people.  These types of cases are common.  A similar issue is the “guilt by association” of which the police are so fond.  You get a ride from a friend (or just someone you happen to know).  A routine traffic stop truns up some sort of contraband (drugs, illegal weapons, whatever).  The cops will then arrest you as well as the person who actually committed the crime.  Disregarding previous court cases about this is within the judge’s purview, but shows the judge to be a maverick or “activist”.
Here are some of the logging/environmental cases:

InPape v. U.S. Army Corps of Engineers, 1998 U.S. Dist. LEXIS 9253 (W.D. Mich.), a wildlifephotographer sued the Corps under the Resource Conservation and Recovery Act (RCRA),alleging that the Corps mishandled hazardous waste and as a result destroyed wildlife in a parknear the site. Judge McKeague found that the plaintiff lacked standing to sue because hisallegations concerning his past and intended future use of the site were not sufficient, eventhough the complaint stated that Pape “has visited the ‘area around’ the RACO site ‘at least fivetimes per year’ and that he has made plans to vacation in ‘Soliders Park’ located ‘near’ theRACO site in early October 1998, where he plans to spend his time ‘fishing, canoeing, andphotographing the area.’� Judge McKeague also held that Pape had failed to demonstrate a linkbetween the Corps’ actions and the alleged impact on wildlife populations.In Miron v. Menominee County, 795 F. Supp. 840 (W.D. Mich. 1992), Judge McKeaguerejected the efforts of a citizen who lived close to a landfill to enjoin landfill cleanup efforts until an environmental impact statement (EIS) regarding the efforts could be prepared. The citizen contended that if the statement were prepared, the inadequacies of a state-sponsored cleanup would be revealed and appropriate corrective measures would be undertaken to minimize furtherenvironmental contamination and wetlands destruction. Holding that the alleged environmental injuries were “remote and speculative,� Judge McKeague denied the requested injunctive relief Other opinions authored by Judge McKeague reflect antipathy toward the vigorous enforcement of environmental laws. For example, in Northwoods Wilderness Recovery v.United States Forest Service, 323 F.3d 405 (6th Cir. 2003), Judge McKeague would have allowed the U.S. Forest Service to commence a logging project that allowed clear-cutting in areas of Michigan’s Upper Peninsula. The proposed logging project would have permitted cutting twice as much sugar maple tree acreage as was allowed under the Forest Plan by arguing that there would be no significant environmental impact. The appellate court reversed Judge McKeague’s ruling and found that the Forest Service had not adhered to the National Environmental Policy Act’s (NEPA) “statutorily mandated environmental analysis� prior to approval of the project. Sitting by designation on the Sixth Circuit, Judge McKeague joined in an opinion in another timber case that permitted the Tennessee Valley Authority (TVA) broadly to interpretthe NEPA in a way that would allow the TVA to conduct large-scale timber harvesting operations without performing site-specific environmental assessments. Help Alert Western Ky.,Inc. v. Tenn. Valley Authority, 1999 U.S. App. LEXIS 23759 (6th Cir. 1999). Under NEPA, inlimited instances agencies may adopt “categorical exclusions� that waive responsibility to environmental safeguards. During the 1980s, the Forest Service limited the size of these exclusions to timber sales fewer than 10 acres in size. However, the majority decision in this case permitted the TVA to determine that logging operations that covered 2,147 acres of landwere “minor,� and thus fell under a categorical exclusion to the environmental impact statement requirement.

1

As an analogy, you hire a company to build your house.  90+% of the work will be done by contractors.  If the roof (or whtever) caves in due to shoddy craftsmanship, you would sue the company you hired, not the contractor that actually did the work.  Now if the company wants to take the contractor to court is a separate issue.  The company is liable because they are the are the ones who contracted out the work.  It is their job to ensure that any contracting is done with reputable people.  These types of cases are common. 

Of course that is the case.  The contractor owes you a duty because YOU contracted WITH HIM.  In the rape case, imposition of the duty means that Kirby has a duty to protect you from criminal acts of an independent contractor.  It is rare indeed to find cases where such a duty is imposed.  There are usually exceptional circumstances that aren’t present in the Texas rape case. 

In fact, if you contracted to with contractors to build your house, and the contractor hires a subcontractor, if the sub rapes you, unless the contractor knew or should have known that there was a risk of that there will likely be no liability.  Tort law is different than contract law, and this is a good example of that.

A similar issue is the “guilt by associationâ€? of which the police are so fond.  You get a ride from a friend (or just someone you happen to know).  A routine traffic stop truns up some sort of contraband (drugs, illegal weapons, whatever).  The cops will then arrest you as well as the person who actually committed the crime.

It is not a similar issue at all.  The courts don’t consider this analagous in any way to civil liability cases.  Civil liability centers on whether you were owed a duty and whether that duty was breached.  Criminal law doesn’t involve any such analysis.

Warbi, before I start into the environmental law cases that you are critical of, I want to ask you something:  How familiar are you with the concept of standing?  I need to know so that I know where to start.  If you are not familiar with the concept of standing to bring suit, some background is necessary to explain the concept so that the first case that you cite to makes sense.

Standing has three requirements, the plaintiff must show injury, the injury must be traceable to the defendant’s actions, and redressability.  For example in the rape case, there was injury.  It was traceable to Kirby (the linking factor between the rapee and the rapist, otherwise, they would most likely have never had any sort of contact).  Redressability, the woman is compensated for the injury done to her and Kirby monitors their contractors more closely so a similar occurance is avoided.  In addition, standing can not be “third-party”, you have to be asserting your own rights, and there is a prohibition against generalized grievances (you can’t sue if everyone else is affected in the same way).
Finally, the issue at hand is that the GOP is whining over a measly 4.7% blockage as opposed to the 35% of Clinton’s nominees that were blocked.  In other words, there is a factor of almost 9 in the percentage of judicial nominee blocks of Clinton vs Bush.  Even were you to convince me (which you so far haven’t done) that these judges weren’t merely ruling from their personal belief system as opposed to the “law of the land”, that would still beg the question of the GOP hypocritically trying to get rid of the filibuster because a very small percentage of their hand-picked pro-business judges didn’t get confirmed.

And what if a fundie judge does get confirmed? Will he always rule on his fundamental principles? Haven’t we seen many judges rule contrary to expectations? Is it possible for a judge to rule in favor of the constitution rather than the emotion? Didn’t Saul of Tarsus convert miraculously to become Paul the Christian? And what’s another 50 or 60 years of misery? The 4th or 5th administration from this could correct this court’s leaning. 

Well, it seems you understand standing.  Since you do, I’m sure you see why Pape lacked it. The question of standing is not a partisan issue, it’s a legal question.

Finally, the issue at hand is that the GOP is whining over a measly 4.7% blockage as opposed to the 35% of Clinton’s nominees that were blocked.  In other words, there is a factor of almost 9 in the percentage of judicial nominee blocks of Clinton vs Bush....

Two wrongs do not a right make.  How bout agreeing that all judicial nominees deserve a vote, absent a lack of qualifications.  Being an originalist is not a lack of qualifications.

Warbi, for the record, I’m against the filibuster change.  This drivel about changing the rules violates blah, blah, blah, is just that drivel. The Republicans can change the Senate rules any time they damn well please.  However, when you run someone over eventually it will bite you in the ass.  It’s just like Jesus said, do unto others.