Tuesday, July 25, 2006

Update on Tom DeLay / Benkiser Residency Suit

The panel has been announced for the Tom DeLay residency case. It is composed of two Clinton appointees and a George W. Bush appointee. Here is a bit about each of the three justices:

Judge Fortunato "Pete" Benavides

Judging moot court finals, second from left

Benavides is known more for his community service than for his judicial decisions. He has poured much of his heart into many projects outside the courtroom, most notably the Ramiro H. Guerra Youth Village, a residential facility in Weslaco with 52 beds for male juvenile offenders. Benavides, who has been praised by both prosecutors and defense attorneys for his work in Texas, is often applauded for his compassion and fair-mindedness. A senior official of the Hispanic National Bar Association said recently of Benavides, "You will never find a person with a bigger heart."

Benavides, whose middle name is Pedro, got his nickname of "Pete" because a nun from Indiana could not pronounce his first name, Fortunato. He warned members of two Hispanic groups not to forget their heritage as they move closer to the center of American life. As a youth, he said, he went through a period where he tried to forget he was Hispanic. Asked after his speech for an example, Benavides laughed and said that as young boy his mother often made him tacos for lunch, but at school he would trade them as quickly as possible for ham sandwiches. In that case, he said, the Anglo kids got the better deal."

Judge Benavides is a strong defender of the preeminence of the U.S. constitution, and most observers agree that he will uphold Judge Sparks ruling.

Judge Edith Clement

Edith Clement keeps a low profile. She has a reputation as a conservative jurist, but has written very few notable decisions. Among those were Vogler v. Blackmore, 352 F.3d 150, reducing pain and suffering damages in a vehicular tort, and United States v. Harris, 408 F.3d 186, reinstating the sentence of a police captain convicted for violation of federal civil rights laws in using excessive force.

While a strong advocate of federalism, she is also a quintessential strict constructionalist, which is bad news for the GOP, whose briefs rely too heavily on the phrase "de facto."

Edith Clement wants to be on the Supreme Court. She's been on the short list for some time now. She has spent the last few years trying to stay under the radar. The last thing she wants is this kind of exposure.

Judge James Dennis

Clinton nominated this fiery Cajun with the help of Orin Hatch. Judge Dennis, while a wild-eyed liberal on criminal law issues, is a strict constructionalist on consitutional issues like Justice Clement. He is also the only justice on the panel who has recently ruled on federalism and preemption in election law.

In Love v. Foster 90 F.3d 1026, the Fifth Circuit ruled that Louisiana cannot continue to hold congressional elections in October, since Congress passed a law back in 1872 that congressional elections must be in November. The U.S. Constitution, Article I, Section 4, gives Congress the power to regulate congressional elections, and is the basis for the 1872 law. It reads:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as the Places of choosing Senators.

Louisiana, since 1978, had been holding congressional elections in October. All candidates ran on the same ballot, and all voters received that ballot. If anyone polled at least 50% of the vote, that person was elected in October; otherwise there was a run-off between the top two vote-getters in November, even if they were members of the same party.

The court ruled that the federal law (setting a November election date) pre-empted the state law. The decision was written by Judge W. Eugene Davis, a Reagan appointee, and co-signed by Judge Eldon Fallon, another Clinton appointee. Judge James Dennis was actually the lone dissenter, but not in the way you might think. He viewed the state primary system as compatible with the federal statute's intent of providing "a center of gravity to prevent the calendrical dispersion of independent state congressional elections." Long story short, if Judge Dennis doesn't think Love v. Foster is a pre-emption moment, than there is no way on Brahma's blue ball that he will think the TEC is pre-empted in TDP v. Benkiser. He will probably view TEC 145 as compatible with the Constitution and accept Judge Sparks findings of fact, ruling that no evidence in the public record exists to prove DeLay is ineligible for office.

It is also worth noting that Judge Dennis tosses out a criticism of the state lawyer's bizarre hypotheticals:

In order to demonstrate that it is impossible to harmonize or to comply with both the state and federal laws the plaintiffs advance an esoteric interpretation of the federal statutes that is not supported by either the scant legislative history or the previous judicial understanding of the those laws and the Constitution.

Given the weird hypos in the Abbot and Wallace briefs, I take this as another bad omen for the GOP.

Oral arguments are set for the 31st.


Blogger muse said...

If Dennis thought that one lawyer couldn't "harmonize", I can't wait to see what he says about the Wallace brief. Maybe that it is mesmerizing in its vapidity.

6:26 PM  
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Blogger Texas 22 said...

Two Clinton appointees, payback is a bitch, huh?

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