U-S- Fourth Circuit Court of Appeals

Judge Not? Will General Assembly On Monday Elect Controversial Attorney To State Bench?

One of the General Assembly's most important jobs is to elect judges throughout Virginia. The commonwealth is made up of four levels of state courts is ascending order: General District and Juvenile and Domestic Relations Courts, Circuit Courts, Court of Appeals, and the Supreme Court of Virginia. Virginia has 32 districts and within each district there is a court in each city and county. On Monday, the General Assembly will return to Richmond to deal with Governor Bob McDonnell's budget amendments and with the appointment of judges. Currently, there are several vacancies throughout the court system. The appointment of state judges usually receives very little public input. Legislators make recommendations to Senate and House committees, which certify that the nominees are qualified members of the Virginia bar, under state law.

One of the individuals who will be voted on by the General Assembly Monday as a nominee for a judgeship, Tracy Thorne-Begland, has a long history of political activism, was at the forefront of repealing the federal "Don’t Ask, Don’t Tell" policy, and once served as a board member and vice chairman for Equality Virginia, the commonwealth's largest and most influential homosexual activist group. In fact, this nominee for Richmond’s 13th General District Court was with President Obama when he signed the repeal of DADT. Additionally, Mr. Thorne-Begland has lashed out publicly against Attorney General Ken Cuccinelli on a host of issues related to the homosexual agenda, saying, "He’s already stood in the way" in relation to Mr. Cuccinelli's urging of public colleges and universities to follow state law when it comes to non-discrimination policies. Thorne-Begland also criticized Mr. Cuccinelli for being "against hate crime laws" and "employment discrimination" protections based on sexual behavior.

One statement he made in 2004 in particular stands out. In an interview with Richmond Magazine, Thorne-Begland said, "In Virginia, we’re seeing a different situation. The situation is so hostile to gay and lesbian interests, particularly the judicial system, a lot of gay and lesbians choose to leave." It’s the "particularly the judicial system" statement that is especially concerning. Does he plan to use his position as a judge to accomplish his political agenda?

In 2004, Mr. Thorne-Begland was asked his opinion of the Marriage Affirmation Act, a law that was the model for Virginia's Marriage Amendment, and Virginia's climate toward homosexuals. Mr. Thorne-Begland signaled his optimism and said:

Perfect example: Virginia is the only state in the union that allows businesses to decide whether they can offer health care to gays and lesbians. When progressive representatives in the legislature sought to require businesses to extend domestic-partner benefits, laws are adopted that outright coerce Virginians to accept this way of thinking.

Mr. Thorne-Begland's thoughts regarding the use of coercion to change minds and force private businesses to follow his agenda flies directly in the face of free market political principles. The question is, will his personal political agenda take precedent over Virginia law and the constitution? Is he going to uphold laws he clearly and very publicly disagrees with? What does he believe is the role of the courts in moving in a more "progressive" direction? These concerns have come to light in the time since members of the General Assembly's Judicial Appointment subcommittee interviewed him.

There is additional concern that, once appointed, a progressively minded judge would be fast-tracked by a liberal governor or president to a higher court, such as the U.S. Fourth Circuit Court of Appeals.

Considering that judges have extraordinary power, one would hope that they would have a commitment to the state and federal constitutions that overrides their personal political agendas. When one is a judicial nominee who has shown himself to be willing to personally violate the law (he violated DADT while in the Navy) and publicly attack a sitting attorney general who is enforcing the law, we share the concerns of several members of the General Assembly, and would hope that it takes a long, hard look at whether that person should elected to the bench.

Until we can be assured he will not put his obvious political agenda ahead of the law, we don't believe he should be approved.

If you would like to express your opinion to your senator and delegate about the General Assembly's consideration of Tracy Thorne-Begland to a judgeship, please click here.

Analysis Of Today's Health Care Lawsuit Hearings At The U.S. Fourth Circuit Court Of Appeals: Is It An Advantage For Virginia To Lose This Round?

Today the U.S. Fourth Circuit Court of Appeals heard two cases challenging the constitutionality of the federal health care law. One, Liberty University v. Timothy Geithner, was on appeal by the college, which lost its case in Federal District Court for the Western District of Virginia. The other, and more well known case, Commonwealth of Virginia v. Kathleen Sebelius, was on appeal by the federal government because Judge Henry Hudson in the Eastern District of Virginia, ruled the law unconstitutional late last year. The Fourth Circuit includes all of Virginia (as well as other states) so both appeals were heard at its courthouse in Richmond. As appeals are heard by three judge panels and since one panel within a circuit court cannot overrule another, the same panel heard both cases. Selection of the three judges, according to the court, was done at random by a computer system. Its picks were Judges Dianna Gribbon Motz, Andre Davis and James Wynn, Jr. — two appointed by President Barack Obama and one by President Bill Clinton. Mathew Staver, Dean of the Liberty University School of Law and lead attorney for Liberty Counsel; Duncan Getchell, Solicitor General for the Commonwealth; and Acting United States Solicitor General Neal Katyal argued the cases. The judges heard the Liberty case first and despite a straightaway-launch into skeptical questioning of Mr. Staver, they were at least as difficult on Mr. Katyal. It made for a compelling debate, so much so that the scheduled 40 minute hearing was extended by Judge Motz to 1:24. It was gripping even for experienced court observers, not to mention for someone, like me, who has limited in-person exposure to high level jurisprudence.

Since it covered most of the merits of the cases in the first one (although the cases are being argued on slightly different grounds) the Virginia case only went nine minutes beyond the 40 scheduled, with most of the questioning on Virginia's standing to even bring the case. Interestingly, Mr. Katyal said Liberty had standing, even though that was partly the grounds for its loss, because as individuals and employers it had grounds to question the employer and individual mandates enforced by the law. Although the feds lost its motion to dismiss against Virginia, again argued that line of attack. Mr. Katyal alleged Virginia passed the Health Care Freedom Act in order to have standing to challenge the health care law and that if allowed to stand, any state could pass any law any time to challenge any federal law from which it wishes to be exempt. This clearly frustrated Mr. Getchell who argued it is an unquestioned right for states to pass laws. Unfortunately, Judge Davis would have none of this and clearly blustered partisan talking points rather than judicial prowess.

On the whole, the three judges, especially Motz and Wynn, seemed open minded. Judge Motz especially perked up each time one of the three lawyers cited the Comstock case, in which her opinion came down on the limited government side. Judge Wynn clearly had problems with several instances of federal twisted logic. For example, Mr. Katyal said the words in the law don't mean what they say in the penalty provision because it is a tax even though the word tax is never mentioned in the law; and that the law does not regulate inactivity because deciding not to purchase insurance is an activity and that forcing people to buy insurance only is an "upfront payment" for a service it will use eventually. So, there was at least an appearance that the judges, despite their political pedigree, were open minded. (Prediction: 2-1 for ObamaCare.)

But here's a theory: Does Attorney General Ken Cuccinelli want to win at this stage? If he does, the feds surely will appeal to the entire Fourth Circuit. That will delay a trip to D.C. for a date with the Supremes by months, even a year. If Virginia loses, he can appeal directly to the U.S. Supreme Court, where its jurisprudence may well favor voiding the law. Remember, he attempted an extraordinary expedited appeal there and was greeted with some sympathy. He wants to get there as soon as possible. So, Virginia is in a good position: If it wins, with at least two Democrat appointed judges siding with it, the feds don't have much chance en banc, either. One caveat: If Virginia loses on the question of standing, he would have to appeal that first, in essence to win permission just to continue the suit. That's what was dangerous about the direction of the argument in the Virginia hearing. Ironically, it could be the Liberty lawsuit that could win the day, based on the intensity and skepticism of the questions to Mr. Katyal. We shall see.

Now, here's a treat. Below is are links to the audio of each case. Click and enjoy your online legal education. Its worth the listen.

Liberty University v. Timothy Geithner (1:24)

Commonwealth of Virginia v. Kathleen Sebelius (:49)

Health Care Lawsuit Appeal Hearing Tomorrow, Complete Coverage Here!

Tomorrow morning at 9:30, in the U.S. Fourth Circuit Court of Appeals, the Obama administration's appeal of Judge Henry Hudson's ruling that the federal health care law is unconstitutional will be heard. As we have been at every step of the way, from the motion to dismiss to Judge Hudson's decision, we will be there to cover it and will have video of Attorney General Ken Cuccinelli's entire post hearing news conference. We are the only Internet site has posted the entirety of each of his ObamaCare news conferences. Be sure to check back here for coverage of this history-making lawsuit which will play a significant role in the direction of our country.

Happy Birthday ObamaCare, ObamaCare Lawsuit!

Tomorrow marks the one-year anniversary of the Obamacare bill becoming the Obamacare law, as President Barack Obama added his signature to the legislation. It also marks the one year anniversary of Virginia's lawsuit contesting the bill's constitutionality (and defending the Virginia Health Freedom Act), as lawyers from the Office of Attorney General moments after the signing ceremony memorably walked the petition a few blocks north in downtown Richmond to the new Federal District Courthouse that now dominates Broad Street. Ever since, the issue has dominated the news. Virginia won rounds one (beating back the feds' motion to dismiss) and two (the ruling that the law is unconstitutional). Now the Obama Justice Department is appealing to the U.S. Fourth Circuit Court of Appeals, which maintains a modest residence on Main Street in a building the Confederacy used as its administrative offices, just next door to the OAG. The appeal will be heard in May. More symbolism: Richmond's unfancied VCU soundly defeated Washington's big, bad, sophisticated Georgetown in the NCAA Basketball Tournament last weekend, the second of its three upset wins last week. A sign that Richmond does things better than D.C.? That the third time also will be a charm? That the righteous and smaller underdog, the scoffed at state capital will defeat the unjust behemoth federal city? We'll see.

In the meantime, below is a statement issued today by Governor Bob McDonnell on the twin anniversaries:

Tomorrow marks the one year anniversary of President Barack Obama’s signing of the hastily passed 2,700 page federal healthcare bill that creates an unprecedented intrusion on America’s strong free enterprise system and places enormous unfunded mandates on the states. It was also one year ago that Virginia became the first state to file suit against the federal government over the constitutionality of this law. Today, lawmakers, state leaders, and our citizens remain as concerned about the provisions of the law as they were on the day the bill was signed.

It is estimated that implementation of the federal healthcare bill will cost Virginia $2 billion between now and 2022. While we all agree that we must make healthcare more affordable, accessible and accountable, it cannot occur in a manner that infringes on our constitutional rights, makes it harder for private-sector employers to hire new workers, creates major new government bureaucracies, raises taxes and places unfunded mandates on states that we simply cannot afford. We need to improve healthcare in our nation with common sense, free market solutions, not a federal government controlled plan.

A majority of governors across the county strongly support our call for an expedited review by the Supreme Court of the pending health care lawsuits. This will permit us to obtain certainty and finality on the law promptly, and the Obama Administration’s opposition to this request is extremely disappointing and not in the best interest of the American people. As we move past this one year anniversary, we must get clarity on a law that will have a huge impact on states, business and individuals in the years ahead, should it be implemented. We need to improve our healthcare system, but this is the wrong way to do it. It must be replaced with improvements to our excellent medical care system in a way that improves access and reduces costs, while not stifling innovation and creating unsustainable burdens on the states.

Exceeding Commerce Clause Powers

Although it is the first of many court decisions he faces, Attorney General Ken Cuccinelli this week became the first person to successfully challenge President Obama's federal health insurance scheme. U.S. District Court Judge Henry Hudson ruled a key component of the plan — the "individual mandate" — unconstitutional. In his opinion, Judge Hudson concluded:

Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

He added that the individual mandate "is neither within the letter nor the spirit of the U.S. Constitution." That letter meaning this: "Regulate" during the days of the constitution's adoption meant, "to make regular." Far from taking over entire industries, the federal government instead was to ensure that states didn't discriminate against businesses from one state to the advantage of one from another.

The Obama administration argued that the constitution's Commerce Clause gives the government broad authority to order Americans to purchase health insurance because not doing so adversely affects commerce. Of course, this unprecedented attempt to force Americans to purchase a product was predicated on labeling inactivity (not buying insurance) "interstate commerce." Stranger than fiction, we know.

While the Obama administration will appeal Monday's decision to the U.S. Fourth Circuit Court of Appeals, Attorney General Cuccinelli would prefer an expedited appeal directly to the U.S. Supreme Court. He was in talks with the Department of Justice about a joint motion to that affect, but it now appears DOJ wants no part of it (better to delay until more and more parts of the law go into affect). However, Mr. Cuccinelli told Fox New Channel's Greta Van Susteren Monday night he may go forward on that by himself and also may appeal Judge Hudson's refusal to place an injunction on the health care law (see video). He has 30 days from last Monday to make that appeal. Regardless of how or when, ultimately Obamacare's fate will be determined by the U.S. Supreme Court.

While there are dozens of reasons to oppose Obamacare (see Obamacare411), the provision that requires otherwise free Americans to purchase health insurance or face penalties is the most egregious — but it is also the financial linchpin of the entire law. Without the mandate, much of the rest of the law is untenable.

Earlier this year, The Family Foundation supported the Virginia Health Care Freedom Act, the basis for the Commonwealth's lawsuit against the federal government. It protects Virginia citizens from being compelled to buy insurance against their will. We applaud the Attorney General and his staff for their commitment to protecting the freedom of Virginians. For a great perspective on the hearing and Judge Hudson's ruling, view Mr. Cuccinelli's post-decision news conference (click here). We are the only news or Internet site that recorded and posted the entire news conference.

Great Eye For The Constitution

As we've been researching the legislative voting records of Bob McDonnell and Creigh Deeds in preparation for media interviews, we came across something rather interesting. In 1998, then Delegate Deeds voted in favor of HB 1154, a ban on partial birth abortion. That law eventually was struck down by the courts as being unconstitutional. Then, in 2003, Senator Deeds voted against SB 1205 and HB 1541, also bans on partial birth abortion. That law was recently upheld by the U.S. Fourth Circuit Court of Appeals.

So, as a legislator, Deeds voted for a bill that was found unconstitutional and against a bill that was found constitutional. Great legal analysis by a current member of the Senate Courts of Justice Committee and someone who, should he be elected governor, will be tasked with analyzing the constitutionality of hundreds of bills that land on his desk.

Statement Of Delegate Bob Marshall On The 4th Circuit's Upholding Of Virginia's Partial Birth Abortion Ban


The most fundamental purpose of government is to protect human lives. The court did that here.

It is telling that it was Virginia's Thomas Jefferson, who criticized abortion in his Notes on Virginia, and who affirmed in the Declaration of Independence that the first natural right of persons is the right to life which comes directly from God, when he wrote that, "all men are created equal," and that Jefferson didn't say all men are born equal for a reason.

I wanted a law that upheld the right to life of children near birth, would expand the legal protections previously denied such children by other federal court decisions, and which would be constitutional.

Delegate Marshall concluded his statement by quoting from the concurring opinion of Judge J. Harvie Wilkerson:

The fact is that we — civilized people — are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull. Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder.

Update: Fourth Circuit Hears Appellate Arguments On Partial Birth Ban

The hearing in front of the full U.S. Fourth Circuit Court of Appeals on the constitutionality of Virginia's law banning partial birth abortion — or infanticide — was heard in front of a packed courtroom this morning, starting at 9:00 (see Richmond Times-Dispatch article). So packed, that several extra chairs were brought in and people still were standing, crowding each other along the wall. Several late arrivers were left to stand outside, with a couple trying to peek through the door window. William Thro, Virginia's former solicitor general, who has argued this case at each stage of appeal (see previous commentary that explains the case), argued for the commonwealth, although he recently accepted the job as university counsel at Christopher Newport University. He was bombarded with questions by judges Blane Michael and Diana Motz (see previous commentary). Those two were the majority on the three judge panel (see previous commentary) that heard the previous appeal of this case around this time last year (a federal district judge originally ruled the law unconstitutional). Judge Motz wrote the opinion (see previous commentary). Judge Roger Gregory joined them in adversarial questioning of Mr. Thro. There are 11 judges on the full court.

On the other hand, there seemed to be enough interest in sustaining the law from Judge J. Harvie Wilkinson III, Chief Judge Karen Williams, Judge Robert King and perhaps Judge Steven Agee, especially as they questioned the attorney representing the pro-abortion appellees.

We'll have a more detailed analysis later this afternoon. We are about to hear from Mr. Thro who will review the case to a luncheon sponsored by Americans United for Life.

For the opinion from the panel's decision, which includes Judge Neimeyer's dissent, click here.

Fourth Circuit Court Of Appeals To Hear Partial Birth Abortion Ban Case Thursday

Just a heads up: Thursday morning the full U.S. Fourth Circuit Court of Appeals will hear arguments on the constitutionality of Virginia's partial birth abortion ban law. Although the U.S. Supreme Court has ruled that similar laws are constitutional, a three-judge panel of the Fourth Circuit twice has ruled that Virginia's law is unconstitutional. We will be there to watch the hearing and will post our impressions shortly after. (The historic courthouse is less than a block from our office.) One thing we will watch is the demeanor of former delegate and Virginia Supreme Court Justice Steven Agee, the court's newest member.

A Year Of Truth

A year after anything, it is easy to look back and wonder — in a head dizzying funnel cloud of amazement — where the time went. Easier still when you're not simply reminiscing, but have something of substance to look back upon. Where did the time go?

It has been a year since this online broadsheet tacked itself onto the world's virtual public square sideboard, rousing the restful and focusing the restless like a town crier or, we'd like to think, like the Virginia Patriot Jack Jouett, who's heroic 40-mile ride saved the lives of Thomas Jefferson, Richard Henry Lee, Benjamin Harrison, Patrick Henry and Thomas Nelson, Jr., in a ride more important, but not as famous, than Paul Revere's.

Last year on this day we welcomed people to the truth (see first post here), promising to bring not the smack talk of many political blogs (God Bless'em, there are some good ones out there), but rather an intelligent discussion of issues, with some horse race and inside baseball politics when our time and interest allowed, and when our sources were talking. We also pledged to never back down on the truth, no matter how some may perceive it, because the truth is permanent and enduring, while political gain is fleeting. We're not naive, either. We know the field on which we play, and so we mix in our own brand of snark and ridicule to those who so richly deserve it. After all, the truth can be expressed not just through fact and explanation, or through reasoned argument, but by more vernacular means. Our first sentence recognized the prominence of this new medium.

We also have had a full year of reporting events, from our Capitol Square Diary of General Assembly machinations, to U.S. Fourth Circuit Court of Appeals and Supreme Court of Virginia cases, to live and one-on-one Interviews with state and national figures, to Virginia State Police Chaplains who were ordered to cease praying in Jesus' name. We also have posted on the meaning of various holidays, patriotic television, pop culture and the media, about befriending legislators with whom we don't always agree; and created, among other things,  interactivity with an Action Center, reader Polls and video posts. It's been a full year, almost entirely fun, the little exasperation caused only from the wealth of topics and an already hectic schedule. Maintaining this blog is no one's full-time job, though it can seem like it. Three quick stats: 433 posts (1.7 posts per working day) and 1,073 comments.

We've also openly professed our lack of expertise in most things technological. Our contributors do know how to write superbly, though, and that's the essence of this anyway. The Virginia Gazette didn't look so hot in the 1700s, either. Slowly, we've added gadgets and gizmos, learning the mechanics as we go along, and that, too, has been fun. We're not the shiniest car on the block, but our motor hums ferociously. In keeping with the colonial/Captain Jouett theme it's better said that we don't have the prettiest horse in the stable, but he sure gallops a might! The blog is still pretty streamlined, as when we started, but it has grown into a vital portal of information on public policy in Virginia and on cultural and values issues at large.

Where has the time gone? Wherever it has, so too, has the truth. While we and several other worthwhile bloggers, grassroots organizations and alternative media sources continue to promulgate it in the on-going battle of ideas, not as much can be said for the body politic or the Mainstream Media. Whether it's the General Assembly's refusal to honestly deal with budget transparency or a handful of senators deviously plotting to restore taxpayer funds to Planned Parenthood when it was effectively cut out of the budget, or a governor who disingenuously contrived reasons to cut abstinence education funding while misleading the legislature on the state's revenue for the purpose of creating new government intrusions into functions where it has no business; or national candidates and radical political organizations who, between them, have, and are currently spending, more than a billion dollars to create a "messianic" image of one candidate and distastefully distort the reputations of their opponents; the truth, sadly, has gone wanting in so many ways.

Still, there is optimism. Thousands read this blog, making us one of the most read political blogs in Virginia. Hundreds of others quote us. One year ago, we weren't sure what direction this blog would go, only that each day would be an exciting challenge to discern  which important topics needed to be discussed and how best to get that point across, and deal with the constant change that is politics and policy through technology and new methods of communication.

We may adapt a little here and there to meet those challenges, just as Captain Jouett doubtlessly adapted his ride for the dangers of his mission. More than two centuries later, through a much different manner, we carry on his ride against every bit as determined a force — a ride for truth and just cause that shielded him and Virginia's founders from the trials and dangers of their day. This first year has been a great ride. We hope you continue along with us for the entire journey.

Tragic Intentions Undetected

Over the last few weeks a tragedy has come to light in Richmond. In January, an abortion happened on the watch of Commonwealth Catholic Charities, which is run by the Catholic Diocese of Richmond (one of the two Catholic dioceses that encompass Virginia's Catholic population). Four people who worked for the organization aided a 16-year-old Guatemalan in getting an abortion and in the implantation of a contraceptive device. The four, who were fired, either ignored Catholic teaching on birth control and abortion or were somehow unaware of it (the organization employs non-Catholics). Most appalling was that one of them, who had no legal standing, signed an abortion consent form required from a minor's parent or legal guardian — in direct violation of Virginia law.

The Guatemalan's only legal guardian is the U.S. Department of Health and Human Services' Office of Refugee Resettlement's Department of Unaccompanied Children's Services. Catholic Charities is one of several organizations that provide care for refuge children under the department's custody. Since Catholic teaching forbids abortion and federal policies prohibit it except in rare situations, the girl should not have been able to secure an abortion.

Quite clearly, a law was broken. But Richmond City Commonwealth's Attorney Michael Herring looked into this only briefly and determined that although what the former employee did was wrong and illegal, he would not prosecute her because he believes she had no intent.

Since when does ignorance of the law stop at abortion? Or, how about, I swindled that widow's money, but my intent wasn't to make her life miserable, I just wanted to buy myself a new Porsche? There's all sorts of byproducts of committing crimes that don't include intent, but that doesn't excuse prosecution. Ignorance never has. Besides, since when is mind reading part of a prosecutor's required job skills? Isn't the application of the law supposed to be dispassionate?

Not only that, aren't they supposed to keep evidence and suspicions close to the vest? But in interviews with the media in announcing that he would investigate, Mr. Herring basically gifted the former employee a Get Out of Jail Card, as he did in this July 9 Richmond Times-Dispatch article:

Herring said prosecution will depend on his findings. He said he also would consider the intention of the social worker who signed the consent form.

"Let's suppose that a woman in good faith thought it was OK for her to sign the form," he said. "I would not feel comfortable prosecuting. But if she behaved in bad faith, if she tried to use this incident to make a statement, which doesn't make sense considering who she worked for, then I would be considerably less sympathetic."

Regardless of that, did Mr. Herring ask the former employee if he or she thought to check with the Catholic Charities' executive director before executing such a drastic and controversial action? Even if this person wasn't aware of Catholic teaching, even if avoiding the boss' permission is an internal matter (doesn't the absence of such consultation seem strange in such a situation?), wouldn't that give insight into the motivation — i.e., intent — of this person?

Mr. Herring has done a commendable job in his first term — one reason Richmond's crime rate has dropped. He also forcefully testified, as spokesman for the Commonwealth Attorneys' Association, at the Senate Education and Health Committee this past General Assembly regular session in favor of the fetal homicide bill. In fact, he forcefully told the committee if it killed it (which it predictably did), "We will be back in front of you next year." He also is the Herring in Richmond Medical Center vs. Herring, the case in front of the U.S. Fourth Circuit Court of Appeals, testing the constitutionality of Virginia's partial birth abortion ban — which means he is the one being sued by the pro-abortionists. So with this background, we are doubly perplexed, and more than disappointed, in Mr. Herring's refusal to pursue this abomination vigorously.

Furthermore, what of the abortionist who willingly accepted this consent form? The man from Mars wouldn't have been that gullible. This person obviously saw an opening to take sad advantage of the situation and did so without hesitation. If one is looking for intent, that's probably the only one applicable in this whole sordid, tragic matter. But apparently, for some, this is the one law where that does not matter. Media reports indicate federal officials also are looking into aspects of this crime. We hope they come to a much different conclusion than Mr. Herring.

The Ringmaster

While we have our own battles with this region's federal circuit court, especially with a three-judge panel recently ruling against Virginia's partial birth abortion ban, it's nothing compared to the U.S. Ninth Circuit Court of Appeals, based in San Francisco. You know, the one that declared the Pledge of Allegiance unconstitutional, among many other such ridiculously blatant misinterpretations of the constitution; the court so out of touch Rush Limbaugh stuck it with the nickname, "The Ninth Circus." The "Ninth Circus" now has a new controversy broke by the usually sympathetic Los Angeles Times: Specifically, its chief judge, Alex Kozinski, had to recuse himself from an obscenity trial of a Hollywood producer last week when the Times disclosed he has pornography posted on his personal Web site (click here for an article). At first he resisted the prosecutor's petition, even placing the blame on his son, but he eventually agreed to declare a mistrial and recuse himself. The federal district's chief judge will select a new trial judge. 

But there's more. Much more. The tech magazine Wired reports that Judge Kozinski

. . . was the target of a complaint in 2005 for posting a different kind of material on the site — a document related to a case that was before the 9th Circuit Appeals Court.

As well as this:

It's also come to light that included amid the sexual material posted on the judge's site more recently were MP3 files of copyrighted songs by Weird Al Yankovic, Johnny Cash and Bob Dylan.

According to the source who found the MP3 files on Judge Kozinski's site, at least one of the MP3 files was being traded through a file sharing site that linked to Kozinski's subdomain where the song was stored, raising questions about whether the judge was in violation of copyright laws if anyone downloaded the music from his site. Three 9th Circuit Court judges ruled last year that just making copyrighted works available may be a violation of copyright laws. (Our emphasis. Click here for the entire article.)

If any of these allegations prove true about Judge Kozinski, he should be impeached, removed from the bench and disbarred. Such a flagrant abuse of the law and ethical conduct is one thing, but the audacity to violate a law on which his very own court ruled raises the level of hypocricy and elitism. If the ninth circuit is a judicial circus, this chief judge surely is its ringmaster.

Then there is this footnote to another sad chapter from the legal profession affecting our culture and values: Former Virginia ACLU President Charles Rust-Tierney was disbarred by the Virginia State Bar in April, though the Bar did not make the announcement until last Wednesday. In September, Rust-Tierney was sentenced to seven years in prison for downloading child pornography.

What Does Mark Warner Think?

Previously, we asked what former Governor Mark Warner thinks of his successor's tax increase proposal; Warner of expertise in that genre, and of specific greatness in birthing Virginia's all-time record tax increase after promising not to raise taxes during his campaign; and in fact, promising to cut taxes. We'd love his opinion, especially since Governor Tim "We just raised taxes. I'm not going to be in for a tax increase" Kaine is following exactly in his footsteps.

But now, we have another question. What does Mr. Warner think of the U.S. Fourth Circuit Court of Appeals decision striking down Virginia's law banning partial-birth abortion? After all, Mr. Warner was governor when it passed into law. He did not sign it, but he did not veto it. He offered amendments that had nothing to do with the basis on which the case was argued nor by which the three-judge panel made its decision. Both the House and Senate over rode his amendments by the necessary two-thirds super majority, which included several Democrats.

So if his amendments had nothing to do with the case, and since there is a federal partial-birth abortion law, logically we conclude that he disagrees with the decision, right?

We'd like to know. 

Breaking: Family Foundation Official Statement On Fourth Circuit's Absurd Ruling

Statement By Victoria Cobb, President Of The Family Foundation Of Virginia, Concerning The U.S. Fourth Circuit Court of Appeals Ruling Striking Down Virginia's Partial Birth Infanticide Law

It is disappointing that yet again just two people can thwart the will of the people, the action of a legislature, and simple justice for nearly born children. Considering that our law is substantially reflective of the federal law that was upheld by the U.S. Supreme Court we hope that a higher court will reverse this panel's absurd ruling. As this case proceeds through the courts it is our hope that judges will decide the case on its merits and not on personal predetermined opinion.

Nevertheless, the fact that pro-abortion forces continue to defend the heinous act of partial birth infanticide with such vigor reveals their extremism. It must be noted that the procedures being discussed, a "dilation and evacuation"  (D&E) abortion and an "intact D&E" both require the dismemberment of an unborn child past the known date of viability. The people of Virginia are seeing the true nature of the abortion movement.

The more people learn about the barbaric nature of these procedures, the more they support this ban. That same enlightenment will continue as people learn about abortion at all stages and as modern technology such as 4D ultrasounds reveal life in such vivid color at its earliest stages. As the truth of abortion is revealed, those willing to open their eyes to that truth are changed.

Read other familyfoundation.org commentaries on this case:

Breaking: Fourth Circuit Court Strikes Down Virginia's Partial Birth Abortion Ban 2-1

Rehearing Babies’ Deaths

Four Thoughts, One Theme: Credibility

Breaking: Fourth Circuit Court Strikes Down Virginia's Partial Birth Abortion Ban 2-1

A three-judge panel of the U.S. Fourth Circuit Court of Appeals struck down Virginia's partial birth ban by 2-1 decision in Richmond Medical Center v. Herring. (Read the opinion here.) This is horrible news. Hopefully, Attorney General Bob McDonnell will appeal to the full court or to the United States Supreme Court. After all, this case was heard because of a Supreme Court ruling that upheld another partial birth abortion ban. Read our summary of the hearing in early November here, as well as more impressions we had after the oral arguments here. (On those threads are links to legal opinions and audio of oral arguments in other key pro-life cases which played a role in this hearing.)

The decision was somewhat expected given the dispositions of Judges Diana Motz and M. Blane Michael, whose questions toward Virginia Solicitor General William Thro were clearly antagonistic. Judge Paul Neimeyer, on the other hand, seemed through his questioning, inclined toward upholding the law. Accordingly, the former two judges voted to overturn the law and the latter voted to sustain it.

More to come, possibly today, definitely tomorrow.

Four Thoughts, One Theme: Credibility

Expectations are a funny thing. Attending the hearing by a three-judge panel of the Fourth Circuit U.S. Court of Appeals on Virginia’s partial birth infanticide law, I expected certain things. I came away with four impressions: 1. Isn’t this the same place where at least hundreds lined the streets to protest Michael Vick for killing dogs?

Killing dogs is horrible, but where’s the public outcry against a practice whereby babies almost ready for delivery get their skulls crushed and remains sucked out of a woman’s womb?

2. It doesn’t matter what the issue is, or even the venue — not even one as august as so high a court: liberal arguments are just as incoherent and their tactics just the same as during the hysteria of a protest rally — change the subject, ignore the central point, redefine established facts; heck, just make up stuff.

The pro-abortion lawyer, at one point, was so off base, intentionally mixing issues, attempting to make non-germane points link to her shaky premise, that even Judge Motts, who voted previously to strike down this law, said, “Now, you’re confusing me!” At another point, Judge Paul Neimeyer asked her a question, and the lawyer refused to answer it, instead pointing to something on the Commonwealth’s brief on page eight. Judge Neimeyer had to ask her at least three times to answer the question, his irritation increasing each time. By contrast, even when Judge Diana Motz and Judge M. Blane Michael disagreed with Solicitor General William Thro, it was on interpretation, not fact.

3. Use whatever description you want — painfully awkward, bizarre, or "Twilight Zone” come to mind . . .

But it was disturbing to listen to the solicitor general have to make the case — in order for the law to be ruled constitutional — that the law did not cover, nor would an abortionist be prosecuted in situations where he allowed a pre-viability baby born by accident (when born accidentally) to be put aside to die due to inattention. Maybe the word is sick.

4. How come individuals, politicians and organizations who claim they want abortion to be “safe, legal and rare” seem to ignore the “rare”?

I have never heard any pro-abortion advocate speak in favor of counseling for giving birth and putting the child up for adoption or any other option that involves life. It’s all-abortion-all-the-time. Exactly what qualifies as “rare” anyway? More than a million abortions a year seems a bit high for “rare.” If they are really for “choice” why not provide true counseling and information on the possible options and services available for women who carry the baby to term? Doesn’t true choice mean there’s another course of action available? Why, then, is it always straight to the abortion factory? Apparently, credibility is only a concept when defending the “right” to kill babies ready to live outside the womb.

Rehearing Babies' Deaths

The Richmond-based U.S. Fourth Circuit Court of Appeals heard arguments Thursday regarding Virginia’s Partial Birth Infanticide statute. The Virginia law, originally ruled unconstitutional (on a 2-1 vote) by the same three-judge panel who presided yesterday, was revisited because of an April decision by the U.S. Supreme Court in Gonzalez v. Carhart. In that case, the justices ruled 5-4 in favor of upholding a certain partial birth abortion ban. (Hear those oral arguments.)

Lost in the argument regarding whether a facial or as-applied challenge was appropriate, was the gruesome details of the procedure that Virginia seeks to ban. Even more disturbing is what the Virginia law does not ban because of the woman’s constitutional right to kill her child. We learned in the argument that a Richmond abortionist believes that it is appropriate to begin to perform an abortion, accidentally deliver, and then set the child aside to die. In fact, based on the argument yesterday, this act is not just constitutionally protected, but Virginia’s partial birth infanticide ban would not make the act illegal. A child born at 19 or 20 weeks is callously laid to the side and left to die of natural causes. Virginia’s law would ban abortionists from accidentally delivering the child and then stabbing the child in the skull.

How can it be appropriate to deliver a child and let the living breathing child die a slow death because the doctor believes him to be pre-viability? With advances in technology, infants are becoming viable at earlier ages. Why shouldn’t doctors have an obligation to try and save a living, breathing child? At the end of life, we provide comfort to those who are terminally ill and do everything we can medically to ease the pain and suffering. Yet, a baby born at 19 weeks is thrown aside like garbage.   

Oh, and by the way, the General Assembly has twice rejected Family Foundation efforts to provide anesthesia to the babies who die by partial birth abortion as well as those who die of natural causes because the “procedure” didn’t go as planned.