Bad Sign

Lightning smokes on the hillrise
Brought the man with the warning light
Shouting loud you had better fly
While the darkness can help you hide
Troubles comin without control
No ones stayin thats got a hope
Hurricane at the very least
In the words of the gypsy queen

Sign of the gypsy queen
Pack your things and leave
Word of a woman who knows
Take all your gold and you go
(Lorence Hud, Sign of the Gypsy Queen)

A feud between two gypsy families in Southern California has offered a very rare look at a normally very secretive culture. Instead of settling their dispute the old-fashioned way, it has spilled out into the California courts.

NEWPORT BEACH, Calif. - A dispute between two Gypsy clans over control of the fortune telling trade in this Southern California city has spilled into court, offering a rare glimpse of an insular culture that has long settled scores according to its own Old World rules of honor.

The turf war in well-to-do Orange County has unfolded like a gangster movie, with allegations of death threats, a graveside scuffle, and nicknames like “White Bob” and “Black Bob” — details revealed in a police report and requests for restraining orders.

“The older Gypsies are pulling out their hair, not wanting the courts in our business because they’ll find out too much about us,” said Tom Merino, who is distantly related to one of the clans but has spurned his heritage. “Ignorance is the Gypsies’ weapon against the outside world.”

The Stevens and Merino clans, like other Gypsy families, have run numerous fortune telling businesses in Southern California for decades.

Apparently the Merino clan opened a fortune telling parlor in what the Stevens clan considered their turf and the dispute just escalated. Interesting look at how the old culture is giving way under modern pressures. One question: since they are fortune tellers, couldn't they already see how it would turn out and avoid the lawyer's fees?

It’s The Courts, Stupid

James Taranto profiles one of Rudy Giuliani's key advisers, Ted Olson. Giuliani and Olson have been friends for decades and Olson is supporting Rudy for President. For some very good reasons: the courts and who will sit on the bench.

WASHINGTON–Rudy Giuliani doesn't always follow Ted Olson's advice. "I remember conversations with Rudy before he became mayor when he was thinking about running," Mr. Olson says. "I was asking him, 'Why in the world would you want to do this? A, you can't get elected. You're a Republican; it's New York City. And B, there's nothing that can be done about New York City. It's too big; the problems are too deeply engrafted onto the city; the city's in the grip of labor unions, crime, high taxes, heavy burdens. The city's a terrible place, and it's too big to govern.' "

Just as Mr. Olson was sure Mr. Giuliani couldn't get elected in New York because of his party, it has been a common assumption that the former mayor cannot win the Republican presidential nomination because of his liberal positions on social issues, particularly abortion and guns. Mr. Olson is one of the nation's top conservative lawyers, having represented President-elect Bush in Bush v. Gore and served as Mr. Bush's solicitor general. As chairman of Mr. Giuliani's Justice Advisory Committee, he intends to help the candidate defy conventional wisdom again.

Sitting in Mr. Olson's law office during our early-morning interview, I ask how his candidate can reassure social conservatives. Mr. Olson points to the judiciary: "Judges have taken some of those decisions off the policy table, taking them away from the people by constitutionalizing these issues. The only thing that someone elected president can do about those things is appoint good, solid judges who will act as judges–interpret the law, not make it up; not create new rights that weren't there in the Constitution. I am convinced . . . that Rudy knows how important it is to appoint the right kind of individuals as judges, and that he will do that."

Olson, you may recall, has a horribly personal take on the events of 9/11. His wife, Barbara, was on American Airlines Flight 77 when it was crashed into the Pentagon. So his connection to Rudy on fighting terror is very, very strong. So is his opinion of Giuliani's response to the events of that day.

If 9/11 was personally devastating for Mr. Olson, it was politically transformative for Mr. Giuliani. The mayor's calm in the face of catastrophe made him a national hero. As Time magazine put it in proclaiming him Person of the Year, "When the day of infamy came, Giuliani seized it as if he had been waiting for it all his life, taking on half a dozen critical roles and performing each masterfully."

Mr. Olson echoes the sentiment: "You can't prepare as a leader for something like that. You don't know what you're going to do. You don't know what you're going to be made of. His instincts were the kind of instincts that we need in a leader. He went to where the problem was. He understood what the people needed in terms of compassion, in terms of stability, in terms of determination, in terms of inspiration. 'We will fight back. We are New Yorkers. We will not be defeated. We are Americans.' Those are the things people needed to hear."

Regardless of who ultimately wins the Republican nomination, the main thing to remember is the courts. Obviously, I am a strong supporter of the Second Amendment as an individual right. Yet I am very nervous about how the court will rule on the District of Columbia v. Heller case. I would be more than just worried if the court was packed with left-leaning activist judges.

Remember, it's the courts. Don't be stupid and forget that.

A Right That Resides In Plain Sight

The Opinion Journal comes out again today with strong support for the right of the individual to keep and bear arms. There is no doubt where they stand on this issue. They use the words that form the title to this post in the first paragraph of the editorial.

The dispute arises from the first four words of the Second Amendment, the full text of which reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." If the first two clauses were omitted, there would be no room for ambiguity. But part of the legal controversy has centered around what a "well regulated militia" means.

Judge Silberman's opinion argued, with convincing historical evidence, that the "militia" the Framers had in mind was not the National Guard of the present, but referred to all able-bodied male citizens who might be called upon to defend their country. The notion that the average American urbanite might today go to his gun locker, grab his rifle and sidearm and rush, Minuteman-like, to his nation's defense might seem quaint. But at stake is whether the "militia" of the Second Amendment is some small, discreet group of people acting under government control, or all of us.

The phrase "the right of the people" or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean "the right of the government." When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort–an individual's, or a minority's, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort.

This is so obvious that one hopes even a court can see it. The Bill of Rights does not detail the rights of the government but of the individual. Nobody in their right mind would argue that the right to free speech or the right of assembly dictates government privileges. Yet that is exactly the position that advocates for "collective" rights to gun ownership are doing when they argue that the word 'militia' in the Second Amendment denies the individual the right to keep and bear arms.

Claus(e) And Effect

In a sign that the times have changed for the worse, the United States Postal Service, which has for many years turned Christmas letters from needy children over to volunteer "Santas" to help the kids out is now requiring all the volunteers to sign waivers. The waiver asks that volunteers release the USPS from any and all liability for, "all causes of action, claims, liens, rights or interests of any kind or type whatsoever."

For nearly 100 years, Postal Service employees have sorted through the Santa letters and passed many on to volunteers, charitable groups and corporations that want to help. Volunteers could call an 800 number to receive information on a deserving child or go online to answer the Santa letters.

This year, for the first time, those volunteers will have to present photo identification and sign a waiver releasing the Postal Service from liability for "all causes of action, claims, liens, rights or interests of any kind or type whatsoever."

There have been no lawsuits or accusations of impropriety.

Some people are, shall we say, less than enthusiastic about the decision:

"This is absurd," says John Andrews, a former president of the Colorado Senate who specializes in tort reform at the Claremont Institute, a conservative public policy think tank in California. "You would think the North Pole is one place on Earth that is safe from the trial lawyers and the litigation experts."

"Operation Santa" has been a voluntary effort by postal workers and people in the community for almost a century. Sadly, I suspect it will go into decline from here on out. Our society is a poorer place because of things like this.

Parsing The Second Amendment

Mike Cox, the attorney general of Michigan, parses the language of the Second Amendment to the Constitution and compares the language to the rest of the Bill of Rights. He makes a very strong case that the right to keep and bear arms is strictly an individual right and cannot be construed as a collective one.

To analyze what "the right of the people" means, look elsewhere within the Bill of Rights for guidance. The First Amendment speaks of "the right of the people peaceably to assemble . . ." No one seriously argues that the right to assemble or associate with your fellow citizens is predicated on the number of citizens or the assent of a government. It is an individual right.

The Fourth Amendment says, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." The "people" here does not refer to a collectivity, either.

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Here, "the people" are separate from "the states"; thus, the Second Amendment must be about more than simply a "state" militia when it uses the term "the people."

Consider the grammar. The Second Amendment is about the right to "keep and bear arms." Before the conjunction "and" there is a right to "keep," meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

Read it all, it is very well written and thought out. One hopes that Mr. Cox will file a brief with the Supreme Court detailing all of his points in legalese. There are real problems that many of the possible rulings by SCOTUS could cause, especially if they take the route of essentially nullifying the Second Amendment. (I do not think that is likely.) But virtually any ruling that does not affirm the individual nature of the right to keep and bear arms would be a serious problem.

The Tricky Part

Glenn Reynolds points out quite clearly what the choices the Supreme Court has when it decides the Washington, DC gun ban case next year. Essentially, the three choices the court has only has one that most gun owners would find acceptable. The other two are ugly indeed.

* It can find that the Second Amendment doesn't really do anything - that it's merely a relic of an older era. But that's a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

* It can find that the Second Amendment doesn't grant individual rights, but only protects the right of states to arm their militias (or "state armies," as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don't like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear…..

….* Finally, the court can find - in accordance with the views of law professors as diverse as Harvard's Laurence Tribe and, well, me - that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

In many ways, the last option is not much more than leaving things pretty much as they are but will affirm the Second Amendment as an individual right. If the court picks the first option, I rather suspect there will be more than a little backlash by the electorate. Overturning the bill of rights by judicial fiat would be a disaster for this nation. (I hope they are not even considering anything like that, by the way.)

Supreme Court To Rule On DC Gun Ban

The Supreme Court of the United States will hear a case appealed by both parties in the case regarding the total ban on handguns Washington, DC. enacted some 31 years ago. The gun ban was overturned by the Court of Appeals but it remains in effect until thie ruling by the SCOTUS. This is widely seen as a very large issue that may define Second Amendment rights.

The justices' decision to hear the case could make the divisive debate over guns an issue in the 2008 presidential and congressional elections.

The government of Washington, D.C., is asking the court to uphold its 31-year ban on handgun ownership in the face of a federal appeals court ruling that struck down the ban as incompatible with the Second Amendment. Tuesday's announcement was widely expected, especially after both the District and the man who challenged the handgun ban asked for the high court review.

The main issue before the justices is whether the Second Amendment of the Constitution protects an individual's right to own guns or instead merely sets forth the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.

Gun-control advocates say the Second amendment was intended to insure that states could maintain militias, a response to 18th century fears of an all-powerful national government. Gun rights proponents contend the amendment gives individuals the right to keep guns for private uses, including self-defense.

Alan Gura, a lawyer for the D.C. residents who challenged the ban, said he was pleased that the justices were considering the case.

"We believe the Supreme Court will acknowledge that, while the use of guns can be regulated, a complete prohibition on all functional firearms is too extreme," Gura said. "It's time to end this unconstitutional disaster. It's time to restore a basic freedom to all Washington residents."

Even a profoundly anti-gun constitutional scholar, Jonathan Turley, has recognized that the Second Amendment is meant to be an individual right. But you can expect the anti-gun zealots to pull out all the stops on this one. A ruling that favors the right of the individual will be a major setback for them and will put many of the more extreme gun control laws in jeopardy. Keep in mind that a ruling the other way would be a disaster for gun owners.

UPDATE: Brace yourselves. AllahPundit is predicting a disaster for gun owners.

Suing Bloomberg

A court in South Carolina has allowed a lawsuit against New York City Mayor Michael Bloomberg to proceed. The owner of a pawnshop in Summerville, South Carolina is suing Bloomberg for slandering him personally in the wake of Bloomberg's "stings" of gun shop owners.

COLUMBIA, S.C. - A Summerville pawn shop owner's lawsuit accusing New York City Mayor Michael Bloomberg of slandering him after investigators bought guns from his store a year ago can move forward, a state court judge ruled Monday.

Larry Mickalis sued the mayor, the city and two firms of private investigators last year after Bloomberg had the city file a civil lawsuit against his pawn shop and 14 other stores accused of selling firearms illegally to undercover investigators.

After filing the lawsuit, Bloomberg called the gun shop owners "the worst of the worst" and said they "have New Yorkers' blood on their hands," according to Mickalis' suit.

"Those statements made by the mayor and other defendants are defamatory," Mickalis' lawyer Justin Kahn told The Associated Press by phone Monday night.

Circuit Judge Roger M. Young rejected Bloomberg's motions to throw out Mickalis' suit because the filing didn't follow New York procedures and that the mayor was not acting in an official capacity.

I think that is probably the biggest display of chutzpah yet by Bloomberg. Trying to throw a South Carolina lawsuit out for not following New York procedures? Yeesh. But this is not all that Bloomberg has done here. He also flouted Federal laws with his much publicized "stings":

In the suit, Mickalis said there was nothing improper about the sale because the woman filling out the papers had to sign a Bureau of Alcohol, Tobacco, Firearms and Explosives declaration saying she was the buyer and not buying for someone else.

Federal investigators have told New York officials there is not enough evidence to file criminal charges against any of the gun shop owners, according to court papers.

The city has been warned that its sting could leave it legally liable, according to a letter from the U.S. Department of Justice that Kahn provided to the AP.

I pointed this out once before: Knowingly making a false statement on a BATF form is a felony. What Bloomberg did was wrong and I suspect that Larry Mickalis is going to thump Bloomberg pretty solidly under South Carolina laws.

Laughing At The Law

The Times of London has a rather amusing little article up that will make you laugh. It is about some utterly bizarre court cases that have popped up all over the world. Professor Gary Slapper has been writing a column for the Times for some time called Case Notes. He is moving on to a new column, Weird Cases. To promote the new column, the Times asked Slapper to pull together his top 20 personal favorite odd cases from years off collecting these. There are some true classics here.

6. In 2005, Marina Bai, a Russian astrologer, sued NASA for £165 million for “disrupting the balance of the universe”. She claimed that the space agency’s Deep Impact space probe, which was due to hit a comet later that year to harvest material from the explosion, was a “terrorist act”. A Moscow court accepted Russian jurisdiction to hear the claim but it was eventually rejected.

7. In 2007, a court in India was asked to decide whether a vibrating condom is a contraceptive or a sex toy. The condoms contain a battery-operated device, and, for the avoidance of doubt, are marketed as “Crezendo”. Opponents argue it’s a sex toy and thus unlawful in India, whereas the manufacturer says it’s a contraceptive and promotional of public health.

8. In 2006, a young man from Jiaxing, near Shanghai, found himself in legal trouble after failing to take advice before putting his soul up for sale on an online auction site. The posting was eventually removed by the auctioneer and the seller was told that the advert would be reinstated only if he could produce written permission to sell his soul from “a higher authority”.

There are 17 more over at the link that range from the bizarre to the hysterical. Enjoy.

Hate Monger Goes Bananas

Jay over at Stop the ACLU alerted me to this one - it is an amazing clip. Fred Phelps goes totally bonkers on CNN after losing the lawsuit today.

This is a narrow but very important distinction. This is not about Fred Phelps and his family members right to free speech. They intentionally, very deliberately, inflicted emotional distress on a family not in the public sector. (Slightly different rules apply to public figures.) I probably would have gone after them for libel/slander - but the use of "intentionally inflicting emotional distress" may have been even better. You may have a right to swing your fist in the air, but that right stops at another person's nose. I think (hope) the appeal by Phelps will fail because of the very narrow scope of what the plaintiff used to go after Phelps. But enjoy Phelps' meltdown. (Jay has some good comments going over at his place as well.)

Dropping The Legal Hammer

The miserable excuse for a human being, Fred Phelps and two other members of his "church", the Westboro Baptist Church lost a civil suit brought in Federal court by the grieving father of a marine who died in Iraq. Albert Snyder of York, Pennsylvania had brought the suit as a private citizen who was the victim of a deliberately planned intentional infliction of emotional distress. The jury found unanimously for Mr. Snyder.

Albert Snyder of York, Pa., the father of a Westminster Marine who was killed in Iraq, today won his case in a Baltimore federal court against members of Topeka, Kan.-based Westboro Baptist Church who protested at his son's funeral last year.

The jury of five women and four men awarded Snyder $2.9 million in compensatory damages. The amount of punitive damages to be awarded has not yet been decided. The jury deliberated for about two hours yesterday and much of today.

Snyder was the first in the nation to attempt to hold members of Westboro Baptist Church legally liable for their shock protests at military funerals after the church protested the military's inclusion of gays at the funeral of Lance Cpl. Matthew A. Snyder, a 2003 Westminster High School graduate who died March 3, 2006, in a vehicle accident in Anbar province.

The WBC people tried to have the suit dismissed - which the court rejected out of hand. I rather suspect that some of the language in that document may be what the appeal hinges on. Because some statements made by the WBC members were highly inflammatory and were made against a private citizen - not a public figure. That may - finally - shut the WBC down and stop their utterly appalling behavior.

More analysis from AllahPundit, (who also has an appalling story from Reuters), Captain's Quarters, Wake up America, Say Anything, Dread Pundit Bluto, The Belmont Club, Gateway Pundit, Stop The ACLU, Right Voices, VDG Gazette (Marc Moore), Brandywine Books,

UPDATE: AP is reporting that another $8,000,000 has been awarded in punative damages. Since the judge has already remarked that the initial award already exceeded all of the assets of the WBC crew, this will destroy them if the judgment stands up through appeal.

The jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress.

Snyder's attorney, Craig Trebilcock, had urged jurors to determine an amount "that says don't do this in Maryland again. Do not bring your circus of hate to Maryland again."

My guess is that the circus clowns are not laughing right now.

Losing His Judicial Pants

Roy Pearson, Jr., the creepy Washington, DC administrative law  judge who sued a dry cleaner for $54 million, has lost his job. You'll recall that Pearson sued a mom and pop drycleaner over a lost pair of pants. For $54 million. Best of all, the board who decides these things threw him out of his office with an hour and a half notice.

The panel had a seven-page letter hand-delivered to Pearson about 3:30 p.m., directing him to leave his office by 5 p.m. Pearson's term ended in May, at the height of his battle with the dry cleaners. Since then, he has remained on the payroll, making $100,000 a year as an attorney adviser.

A source familiar with the committee's meetings said Pearson's lawsuit played little role in the decision not to reappoint him.

Instead, the committee said it had reviewed Pearson's judicial decisions and audiotapes of proceedings over which he had presided and found he did not demonstrate "appropriate judgment and judicial temperament," according a source who spoke on condition of anonymity because of the sensitive nature of the case.

Sources said Pearson also was criticized for displaying a "combative" nature with supervisors and colleagues and for failing to comply with policies in drafting opinions.

I rather suspect that the lack of "appropriate judgment and judicial temperament," thing is adequately demonstrated by a $54 million dollar lawsuit over a pair of pants. That lawsuit pretty well ruined the folks who ran the drycleaners. They had to close the shop as a result.

A Perilous Policy

that is what Benjamin Civiletti, Dick Thornburgh and William Webster are calling a failure to grant conditional civil immunity to private individuals and companies who cooperate with authorities in national security matters. Specifically, they are talking about provisions in a FISA revision bill that would grant some immunity from civil litigation to telecom companies that cooperated with post 9/11 surveillance.

Public disclosure of the NSA program also brought a flood of class-action lawsuits seeking to impose massive liability on phone companies for allegedly answering the government's call for help. The Intelligence Committee has reviewed the program and has concluded that the companies deserve targeted protection from these suits. The protection would extend only to activities undertaken after 9/11 until the beginning of 2007, authorized by the president to defend the country from further terrorist attack, and pursuant to written assurances from the government that the activities were both authorized by the president and legal.

We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk.

The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society's capacity to defend itself.

This concern is particularly acute for our nation's telecommunications companies. America's front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the "early warning" system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged.

As they point out, the issue of the legality of the program is completely different from the question of whether the companies acted in good faith when asked for help. Private citizens and companies are expected to cooperate with officials when there is a public need. Those entities cannot know all the facts and have to rely on assurances from the official that the needs - and the assistance - are legal.

This situation is precisely the same one that came up with the six flying imams and their threat to sue "John Does" who reported their antics. The public - individuals or corporations - have to help and be alert in these times.

Rise Of The Thought Police

Wendy Kaminer has a brilliantly reasoned - and beautifully written - op-ed over at the Opinion Journal today about why so-called hate crime legislation is a terrible idea. This is one of the best criticisms of the subject I have ever seen.

The Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act is no exception to this rule. By invoking memories of University of Wyoming student Matthew Shepard's brutal 1998 slaying, it makes a sentimental bid for expanded federal hate-crime legislation covering violent crimes motivated by a victim's sexual orientation or "gender identity," as well as race, sex, religion, ethnicity or disability.

Its prospects are dimmed by the threat of a presidential veto, but last month the Matthew Shepard Act was attached to the Defense Appropriations Bill by a 60-vote majority in the Senate; a companion bill passed the House (with the support of 212 Democrats and 25 Republicans.) Naturally, the bill enjoys the enthusiastic support of civil-rights groups, including the historically civil libertarian American Civil Liberties Union.

The ACLU has withheld support from hate-crime legislation in the past but wholeheartedly embraces this bill, which applies only to acts of violence and has been carefully drafted to avoid criminalizing pure speech: It provides that evidence of a defendant's hateful speech or associations are only admissible at trial if they "specifically relate" to the offense charged. In other words, speech could be offered as evidence that a violent act was motivated by bias, but it would not be a crime in itself.

Still, distinguishing hateful bias crimes from other hateful acts of violence punishes ideas and expression, no matter how scrupulously the legislation is crafted. When someone convicted of assaulting one woman is subject to an enhanced prison sentence or a more vigorous prosecution because his assault was motivated by a hateful belief in the inherent inferiority of all women, then he is being punished for his thoughts as well as his conduct.

Kaminer is right here. No matter how you look at this, hate crime laws punish the thoughts of the perpetrator of a crime. That is anathema to the constitution of this country. Voltaire, in his A Treatise on Toleration said:

Not only is it extremely cruel to persecute in this brief life those who do not think the way we do, but I do not know if it might be too presumptuous to declare their eternal damnation.

The murderers of Matthew Shepard are serving consecutive life sentences for their heinous crime. Punishing their thoughts would do no more to them. We do not need thought crimes ensconced in Federal law. Read Kaminer's piece.

Southwick Confirmed

The US Senate has just voted 59-38 to confirm Judge Leslie Southwick to the 5th U.S. Circuit Court of Appeals. Opponents had singled out two of the 7,000 opinions Southwick has written throughout his career as objectionable, then tried to hang the history of the entire 5th circuit on him.

The nomination tested a fragile agreement in the Senate to block President Bush's judicial nominations only in "extraordinary" circumstances. Some Democratic opponents said Southwick's writings, combined with the troubled racial history of the circuit, met this amorphous standard. But Democrats did not have the votes to sustain a filibuster.

Urged by the NAACP Legal Defense Fund, the AFL-CIO and the Congressional Black Caucus, some Senate Democrats who opposed the nomination made their case nonetheless. They said they didn't believe he is a bigot, but that the 5th Circuit could not afford a judge who has less than an "exemplary" record on civil rights.

"When it comes to the area of race and racism, we have to bend over backwards," said Sen. Chuck Schumer, D-N.Y., a member of the Senate Judiciary Committee.

"I certainly don't think he's a racist," Schumer added. "His words have to be seen in context. Like it or not when he's nominated to the Fifth Circuit he's carrying 200 and some odd years…on his back. That is the issue here."

At issue were two cases he was involved in as a state appeals court judge in Mississippi. One was a 1998 decision that upheld the reinstatement of a social worker who used a racial slur in reference to a co-worker. Three years later, Southwick joined a ruling against a bisexual mother in a custody case. He also joined what some activists said was an anti-gay concurring opinion.

Southwick's supporters pointed out that those were among 7,000 opinions across the nominee's career and that none of those facts addressed his qualifications. Conservative legal groups began pressuring Democrats from traditionally Republican states to at least give Southwick an up-or-down vote.

It's the courts folks. That is what is at issue in 2008. The courts.