President Bush has nominated Samuel Alito, a 3rd Circuit judge, for the Supreme Court. From this AP article:

Judicial conservatives praise Alito's 15 years on the Philadelphia-based court, a tenure that gives him more appellate experience than almost any previous Supreme Court nominee. They say his record shows a commitment to a strict interpretation of the Constitution, ensuring that the separation of powers and checks and balances are respected and enforced. They also contend that Alito has been a powerful voice for the First Amendment's guarantees of free speech and the free exercise of religion.

Update: Time has a short article that discusses differences between Alito and Scalia.

Vice President Cheney's top advisor, Lewis "Scooter" Libby, was indicted today. Special Prosecutor Patrick Fitzgerald has filed the grand jury's indictment on a charge of obstruction of justice and perjury.

Meanwhile, Rove is still under investigation, and Fitzgerald could impanel a new grand jury to seek an indictment of Rove on similar charges. That grand jury would probably only take days, as they would have the complete record of the prior grand jury before them.

Update: Libby has resigned. If convicted on all five counts of his indictment, he could face up to 30 years of prison.

Check out Miers' letter of withdrawal here. In the letter she states that the reason she chose to withdraw was to avoid tensions arising from Senators' request for privileged executive documents regarding her service as White House Counsel.

Update: Many pundits have stated their disbelief in Bush/Miers' claim that her withdrawal was out of concern for the balance of powers and for executive privilege. Count me as one of them. The reasoning contained in Miers' letter and in Bush's statement of acceptance of that letter is a form of subterfuge to distract people from the weakness of the nomination, by placing blame upon the Senate confirmation process.

It was just announced that Harriet Miers has decided to withdraw her nomination to the Supreme Court.

The National Academy of Elder Law Attorneys (NAELA) is offering a writing competition on topics related to one or more of the following three issues in an elder law practice: 1) diversity in senior housing, 2) diversity in access to health care, and 3) diversity in capacity and guardianship. The top eight articles selected will be published in the NAELA Student Journal in the spring of 2006. The writing competition will promote a greater interest in, and understanding of, elder law issues. This opportunity is open to all students in good standing who attend a law school within the United States. NAELA is pleased to offer a $1,500 cash prize for the best article submitted. The winner will be honored at the Spring 2006 NAELA Symposium in Washington D.C. and receive up to $1000 for travel and meeting related expenses. The second place winner receives $1000 cash, and the third place winner receives $500 cash. The top eight authors will also receive a complimentary one-year membership to NAELA. Follow these links for more and the competition flyer suitable for posting.

I'm not thrilled about offering yet another post on the Bradford et al dispute, but I suppose I might as well link to an article in the Chronicle of Higher Education titled, "The 'Wrong Kind of Indian?'" It offers updates on the saga, the near future plans of Prof. Bradford, and notes:

The controversy has even consumed a law school blog (http://www.iuilaw.blogspot.com) run by students and alumni, and opened a new line of inquiry, this time into the bona fides of Mr. Bradford's military service. After Mr. Bradford appeared on The O'Reilly Factor, discussion on the blog heated up and chipped away at the professor's once sterling reputation. In June, a column in a local newspaper reported that Mr. Bradford had fought in Desert Storm and Bosnia and Herzegovina, served as a major in the U.S. Army Special Forces, and received the Silver Star. Posts on the blog questioned his military record since the gulf war ended in 1991 and Mr. Bradford had served in the U.S. Army infantry from 1994 to 2001, according to his profile on the law school's Web site.

It goes on to quote an anonymous commenter here which investigated the extent of Bradford's military service. But the article's scope is far ranging and covers the whole story from beginning to end. For better or worse, this article appears to be the most complete and thorough yet.

Fox News anchor John Gibson's latest book is out and it's titled, "The War on Christmas: How the Liberal Plot to Ban the Sacred Christian Holiday Is Worse Than You Thought." Chapter 6 is titled, "Indianapolis, Indiana: The Law School Evicts a Totally Legal Christmas Tree." The chapter quotes me in several places. Given the prominence this book will have it's worth exploring its accuracy and thesis.

Chapter 6 focuses on a two year old controversy at the law school involving the removal of a Christmas tree from the building's atrium. After Prof. Roisman and two students had complained about the alleged Christian connotations of the tree, it was removed and an "Indiana winter scene" was put up in its place (pictured right).

The chapter begins with a detailed description of former Dean Anthony Tarr's slow exposure to American holiday festivities (he is Australian by birth), eventually culminating in his purchase of a "12 foot kangaroo with a red nose." The chapter includes extensive quotes from his wife, professor Julie-Ann Tarr, all designed to paint the picture of a well-intentioned dean about to unwittingly step in a hornets nest.

Well intentioned or not, a hornet's nest is exactly what Dean Tarr stepped into. To his credit John Gibson does a decent job of reporting the facts that led to the tree's removal, but it is the thesis that follows which I must differentiate with to some degree. Gibson works hard to portray an ongoing battle between Christian students and a monolithcally liberal faculty. On page 107-108 he writes:

So the Christian students were in a state of extra watchfulness even before the Christmas tree incident, but when it was taken down they were positive they had caught the school in what they believed was yet another incident that demonstrated an anti-Christian bias.

Claybourn and [Jon] Mayes weren't alone in their objections.

One gets the sense that I believe our particular school has a bad anti-Christian bias, and simply put, I don't. I did object to removing the Christmas tree, both on principle and because it was done in secret without discussion. I think a vast majority of people, including faculty members, would admit that academia is home to a large number of secular liberals. But I don't believe our school has any more "anti-Christian bias" than others.

That was clearly the picture Gibson wished to portray based on the questions he kept posing to me. I declined to take the bait and ultimately he turned to a student email from the infamous listserv debate:

One of the Christian law students wrote in another e-mail that the issue of liberal indoctrination in the classroom was on the minds of many Christian students. "I also brought it up before class with people," the student wrote to one of his friends, also a Christian student, "and they said they usually just pretend to be indoctrinated to get the grade and then go on believing their same values. It seems that a large number of people do think they need to offer a non-Christian view on exams in order to pass."

Gibson doesn't offer the name of that student, but I have to disagree with them. One's religion rarely, if ever, becomes an issue on exams or classroom discussion. And even if the topic arose and some sort of religious position had to be taken, I can't imagine a single professor at IU School of Law - Indianapolis who would mark a student down for it.

Although Christians are not persecuted at our law school any more than elsewhere, I would remind them of Jesus' words in Matthew 5:11-12: "Blessed are you when people insult you, persecute you and falsely say all kinds of evil against you because of Me. Rejoice and be glad, because great is your reward in heaven, for in the same way they persecuted the prophets who were before you." In other words, Christians should expect to be persecuted for their beliefs until the end of time.

When all else fails there's always satire. In one Christmas episode of South Park, the popular cartoon program on Comedy Central, the townspeople go at one another's throats over what symbols can and can't be used in the children's Christmas play. In order to quiet fighting Jews, Catholics, and tree-huggers, the mayor orders the town to come up with "the most non-offensive Christmas ever." The school even takes away Christmas lights "because they might offend people with epilepsy."

The actual pageant, billed "The Happy Non-Offensive, Non-Denominational Christmas Play," ends up featuring minimalist composer Philip Glass playing hideous avant-garde music. The audience erupts in rage until they are calmed by the Yuletide figure called Mr. Hankey, who tells them to get over themselves, to quit focusing on what's wrong with Christmas, and instead celebrate the joy and fellowship of the season. (The program also shows a lonely Jesus with a birthday cake, having to sing "Happy Birthday" to himself.)

It's funny stuff, especially since Ms. Hankey is talking fecal matter. But as with most things South Park, there's a serious point: It's a sad day when the message given by a cartoon Christmas poo is more reasonable than the humorless, uptight P.C. crowd.

Bonus material: Here's a link to the video of John Gibson on the O'Reilly Factor discsusing the book. Here's John Gibson's column introducing the book.

In creating a parking policy to promote frustration and limit the overall benefit to those subject to it, the objective should be to promote inefficiency and unreliability, and whenever possible, unfairness. By permitting students who have easy access to many equally convenient parking options to displace and divert law students from the only lot within a five minute walk of the IU School of Law, the current IUPUI campus parking policy meets these goals with little difficulty.

Assuming, however, that a frustrating and unbeneficial parking arrangement is not what we really want, the current system should be fixed by creating a new class of parking tags for law students, and by reserving enough space for holders of these permits in the lot immediately to the west of the law school.

To do this would cause the limited number of parking spaces near the law school to be used more efficiently, because these spaces are more valuable (and the alternatives more inconvenient) to law students than to any other students parking on the IUPUI campus. For those unfamiliar with the geography of the relevant part of the campus (assuming that the parking situation in the northwest corner is irrelevant, since those working and taking classes in that area would not normally consider using the lot by the law school), there several clusters of lots on campus, and some of them form a rough circle around many of the buildings used by IUPUI students. The IU law school is outside of that "circle," in the far southeast corner of the campus. While IUPUI students using buildings inside the circle face a walk of a similar distance to each of the lots forming the circle, a law student’s walk to and from these same lots varies greatly.

The result is that the spaces closest to the law school are more valuable to law students than to anyone else. Though individual IUPUI students inside the circle may prefer certain lots to others, their next-best parking options are likely to be nearly as convenient as their best, and as a result, the parking spaces in the lot by the law school are not uniquely convenient to them. (There is an exception—after seeing the lines of cars parked by 7:50 each morning on the far north and west ends of the disputed lot, I have to assume that there are at least some people in the Informatics and Communications Technology Complex and the Science Building, of which both are near the disputed lot, who arrive early daily and expect to be able to park there. Presumably, they do this to avoid crossing Michigan Street. If the lot were reserved, they would no longer be able to park there, but it does not appear that they would be significantly inconvenienced if the lot were to be reserved to law students. Only Michigan Street separates these two buildings from several lots to their north -- the science building is even connected by a "skyway" to a parking garage. It is, of course, possible for law students to walk to and from these same lots, when space there is available, but what logic is there in asking law students to walk a distance, often through rain, heat, or cold, and to then cross a street in order to save others the inconvenience of walking across the street alone? If efficiency, or maximizing the benefit to people on this campus overall, is one of the goals in forming a parking policy, then it is hard to see the logic in asking one group of people to bear a greater burden for no reason other than to spare a different group of people a smaller burden.)

For law students, these spaces are significantly more convenient than any others. From the lot to the west of the law school (or the half E lot to the northwest, which fills as quickly as the lot to the west), it takes one or two minutes to walk from the car to the building. Once those lots have filled, as they do before 8:30 every morning, the second-best option is to walk to the lots north of Michigan Street. Including the delay at the stoplight, it usually takes more than five minutes to walk from these lots to the law school. These lots, when I have used them, were still open late in the morning, but if a law student were not to find space available there during the day, the third-best option, to the far west of the law school, is about twice as far away as the second-best.

Law students' efforts to deal with the shortage of parking show how valuable those parking spaces are. Some of us arrive hours before our first class just to park near the building, and avoid leaving during the day in order to keep the parking spaces once we have them. Others risk fines by parking illegally. Throughout the day, cars can be seen circling the lot, waiting for spaces to open. We would not resort to this if these spaces were not uniquely valuable to us.

To whatever extent reserving space by the law school would actually inconvenience IUPUI students, they are better positioned to bear this burden. As I explained above, other lots are similarly distant from most of the buildings that the average IUPUI student uses. Even those who only go to buildings near the edge of the circle face a shorter average walk to each lot than a law student who cannot find a space in the lot by the law school, and can make much of that walk through a series of connected buildings, avoiding heat, cold, and rain. Also, considering that undergraduate students may use several different buildings in different parts of the campus, the likely cost of providing adequate parking near each of their destinations makes it easier to justify forcing them to walk; it is justified because nothing can be done about it (and because it is in the nature of college students to walk across campus).

For the inconvenience endured by law students under the current arrangement, however, there is no such inherent necessity and no such justification. Law students go, every day, to a single building in the corner of the campus. Law students, in a normal day, do not go to any other part of the campus. Because we have only one destination, a single lot is all that we need, and because this lot already exists and can be reserved at little cost to others, it cannot be argued that reserving it would be prohibitively expensive, unworkable, or difficult. There is no advantage to continuing to use an inferior, inefficient arrangement, and there is no excuse for settling for a defective status quo in order to spare others a short walk from their comparative abundance of nearby parking.

Because I expect irrelevant arguments to be made in response to this post, I want to point out a few things in advance:
#1: Reserving the lot by the law school would not transfer net parking space to law students at the expense of others. Under the current arrangement, many law students find themselves scattered across the campus. However, this does not prevent them from displacing IUPUI students, who cannot, of course, use spaces that law students already occupy. The only difference would be that the spaces we occupy would be near our building, and that the spaces we would otherwise have used in other lots would be available to all E permit users.
#2: IUPUI students may also have parking problems, but the fact that others have to live with difficulties similar to our own should not prevent parking policies from being improved where possible. If their parking problems were worse than ours, and if our solution would have a bigger impact on them than on us, then these facts might be persuasive, but the opposite is true.
#3: If the distances from even the most distant lots are too short to be worth writing about, then there should be no question that the lot by the law school should be reserved -- every lot that is "close enough" to the law school is even closer to another building, so the students using those buildings should have no need to park by the law school. (Of course, since some of them do park by the law school, I doubt that they would agree that those lots are "close enough," since they have chosen to avoid an even shorter walk than we face. If those lots are not close enough for the students in buildings closest to them, then they are not close enough for us.)

The conclusion is simple and clear: law students have fewer suitable parking options than most students on this campus, and the spaces in the lot by the law school are more valuable to us than they are to anyone else. For this reason, space from the lot by the law school should be reserved for law students.

There's an interesting article in the Atlantic Monthly by Colin Diver, former Dean at Penn and currently President of Reed College, on his college's decision to refuse participate in the U.S. News college rankings. I found the article via Leiter's Law School Reports, which notes:

"Penn, of course, has taken the art of gaming the rankings, across the boards, to quite remarkable heights: in both law and the undergraduate rankings, Penn ranks well ahead of where even its US News reputational scores would put it. I always had the sense that Diver was never happy about the pressure to perform in US News when he was Dean at Penn, so it is nice to see that Reed has opted out so successfully."

I oppose Harriet Miers' nomination to the Supreme Court. I oppose it because, not in spite of, my conservative attitude regarding the Constitution. I oppose it because it was made for the wrong reasons and upon a deleterious basis.

When President Bush stood before the lectern and announced Miers' nomination, he reaffirmed his very un-conservative adherence to identity politics and his promotion of the blurring of religion and politics. His mantra, 'Trust me, I know her,' is anything but reassuring considering his lack of legal and Constitutional experience.

Who did President Bush expect to convince with that reasoning? No, maybe the better question is who was convinced by it?

Principled conservatives such as George Will, Charles Krauthammer, and Robert Bork all have publicly opposed her, while several prominent Protestant evangelicals, such as WorldMag's Marvin Olasky, Dr. Richard Land, and James Dobson, have supported her. This provides a clue to the basis upon which President Bush would like us to trust his nomination of Miers: she is a politically active and devout evangelical, just as is Bush.

In explanation of his support of Miers, Olasky wrote the following:

Maybe it’s the judicial implications of her evangelical faith, unseen on the Court in recent decades. Friends who know Miers well testify to her internal compass that includes a needle pointed toward Christ. Again, Texas Supreme Court Justice Nathan Hecht told me she has a philosophy that grows out of evangelical exegesis and carries over into legal issues: "She's an originalist -- that's the way she takes the Bible," and that's her approach to the Constitution as well -- "Originalist -- it means what it says."

Never mind theexclusivitym displayed in Olasky's refusal to acknowledge the Catholic Scalia's or the Lutheran Rehnquist's faith, the more troubling aspect of this argument is that religious faith and intention are supposedly enough to form the requisite intellectual capacity to interpret the Constitution in a conservative textualist manner.

Her faith is certainly not a disqualification, but by itself, it does not qualify her for the Supreme Court, as Bush et al. would have us believe. Conservatives may take heart that her evangelical faith would make her likely to side with them on issues such as abortion, but what about the commerce clause, matters of equal protection and due process, federalism, etc.? What does her biblical exegesis tell her on these matters?

This nomination sends the wrong message--namely, that to be qualified for the Supreme Court one only needs to have the right religious beliefs and to be loyal to the President. If Harriet Miers had any history at all of dealing with Constitutional matters or even intellectually tackling lesser matters of law, the message might be otherwise.

Meanwhile, prominent conservative lawyers, many of which have dedicated their legal careers to developing a consistent and thorough textual philosophy regarding the constitution, have been left out in the cold.

So what are her chances of being confirmed?

Despite Bush's arrogance that she will be, Senate Republicans are not exactly enthused and this ethical question could overwhelm her. Nevertheless, I am less than hopeful that she will be defeated. The Bush administration has shown remarkable prowess at bending congressional Republicans' arms, and they have already unleashed Laura Bush to call critics of Miers, sexist.

Just more sad identity politics.

John Roberts this week took his seat as the 17th chief justice of the United States. The Week looks at the power of the chief justice.

A recent article in the Legal Times is titled, "Law School: Make It Optional? Why is a Mercedes Education Necessary for a Lawyer Seeking a Corolla Legal Practice?"

Why are law schools everywhere in the United States basically the same? Why do they all require three years, rather than one or two? Why do they all have big libraries that cost $4,000 or so per student per year? Why do they all hire mainly expensive, full-time faculty, rather than much cheaper part-time teachers?

The answer is that the American Bar Association's accreditation standards require these conditions, and almost all states demand that students graduate from an accredited law school before they can become lawyers. The ABA responds that all the requirements are necessary to train students properly and to protect the public from law schools producing incompetent lawyers.

The ABA's standards, however, may protect less the public interest and more the interests of the many law professors, law librarians, and practicing lawyers who serve on the ABA's accreditation committees. The law professors and librarians have an incentive to extend law school as long as possible so that more professors and librarians must be hired, and to require the hiring of full timers like themselves.

In an interview with Indiana Barrister, Judge John D. Tinder offered his own view of how he would change legal education:

J.D. programs should be four years in length for students who will practice law, with the first two years involving academic courses, much as they are taught currently, and the last two years involving principally clinical experiences under the supervision of carefully selected lawyers and judges. I think law schools should look to medical schools to design a program more like the medical model where an internship is a requirement for graduation for students who will practice law. As our legal educational and bar admissions systems now work, a law school graduate who passes the bar is permitted to handle a death penalty case or a multi-million dollar transaction before the ink is dry on the admission certificate. I think we ought to find a way to transition from the academic world of law school to the pragmatic challenges of the practice of law. This would require the involvement of practicing lawyers and judge, but that is done at medical schools with practicing physicians, so it can be done. If a student attends law school for the pure academic experience and will not practice law, three years of academic classes without clinical experiences may be enough (or too much.) But for those who will have the responsibility of handling the legal affairs of clients, or who will serve as judges, there ought to be a mandatory emphasis on the practical, ethical and interpersonal dilemmas that they will face in the legal profession. While it might take longer to accomplish a program like this, I think it would better qualify law school graduates to enter the practice of law, and I also think it would be a good think to link practicing lawyers and judges to the education of aspiring lawyers.

Perhaps it is simply idle banter, but I've read a growing number of commentators calling for something more similar to that called for by Judge Tinder. The opportunity for "real world" experience in an apprenticeship is enticing for those who feel law schools have not kept up with a dynamic legal profession.

The Delaware Supreme Court reversed a lower court opinion requiring an internet service provider to disclose the identity of an anonymous blogger who allegedly made defamatory claims about a public official. You can access the ruling here (pdf). The justices said the Smyrna town councilman Patrick Cahill should have to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News. Among other things the bloggers pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual. The News Journal of Wilmington, Delaware offers this report. The Associated Press reports that "Court Rules in Favor of Anonymous Blogger."

Fast Forward, an Indiana journalism program web magazine, has two great articles regarding IndyLaw Net and blogging in general.

The first one deals with the history and technology behind blogging.

The second one includes an interview with ILN contributor Josh Claybourn and discusses ILN's investigation into last year's terminated law school expansion plan.

His thoughts in this column seem to reflect my own concerns, which I'll state soon enough. I have reduced Will's column here to its main point, but please read the whole thing for his full support:

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution....

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

The wisdom of presumptive opposition to Miers' confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination....

Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation....

Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?

Did you know that Harriet Miers has a blog? If so, you'd have noticed this gem:

MEMO TO J. MICHAEL LUTTIG ... Mike, if you want to snipe at me, fine. But you're not Supreme Court material, you never have been, and you never will be. And if you think you're smarter than the President of the United States, well that just shows why you're a divorce court judge (or whatever you are) and he's in the White House.

This was, of course, in response to this post on Michael Luttig's blog:

HAIRY-ETTE: ALL EYELINER, NO JURISPRUDENCE ... Every hour that goes by, the more depressed I get. It's not that I'm mad about not being appointed to the Supreme Court. (I mean, I am, but this is much bigger than that.) It's that the President of the United States, whom at this point I wouldn't allow one of my clerks to hire as a manual laborer, had to choose such a sycophantic lightweight to fill what would have been my seat. The only possible distinction that Hairy-Ette might hold is she's the first Supreme Court nominee whose eyeliner is thicker than her curriculum vitae.

Many, though certainly not all, conservatives are unhappy with the pick--mainly because of the great unknown and looming fear of another Souter or O'Connor.

Kristol is Disappointed, Depressed and Demoralized. David Frum says Bush made the wrong choice. Several people over at NRO's The Corner are nonplussed.

WorldMag has a ton of info on Miers, including that she's a practicing evangelical Christian whose view on abortion is consistent with that of her church, that according to her best friend she is an "originalist," that she has been to a few prolife dinners, that she has given money to Al Gore back in the past but now is considered one of Bush's most loyal, and that she is not known for having strong views on Constitutional issues in the past and has been actively involved in the ABA.

I will wait for more information before I decide what I think.

Update: More conservatives show disappointment... Rush Limbaugh says it was a "Pick Made from Weakness" and Pat Buchanan says "her qualifications for the Supreme Court are non-existent" ...liberals for the most part seem to be playing a "wait and see" approach of caution

Click here for a short bio... more to come.