Pennsylvania GOP Voters Reject McCain

The following is taken from Townhall.com (Link HERE):

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Pennsylvania Warns Us GOP Still Not Ready for McCain
By Peter J. Wirs
Monday, April 28, 2008

After all is said and done, the April 22nd Pennsylvania Primary didn’t tell us anything we already didn’t know. On the Democratic side, voters are still splintered by age and income; and on the Republican side, the conservatives still have not embraced McCain. Yes, there was a Republican primary in Pennsylvania. And its results don’t bode well for the Grand Old Party. (Snip)

What is more disturbing however, is that on the Republican side, 239,913 or over one-quarter of all Republicans casting ballots, 27.2% to be exact, voted against McCain despite the indisputable fact he is the presumptive GOP nominee. Congressman Paul won 15.9% of the Pennsylvania Republican primary, while former Arkansas Governor Mike Huckabee, without even lifting a finger, won 11.3% of the vote. This is while the Governor was accompanying Senator McCain on the "It’s Time for Action" campaign visits.

Ultra-liberal columnist Frank Rich of the New York Times makes hay out of this point, notwithstanding that most Republicans stayed at home. But 827,000 Republicans did go to the polls, which represents 26% of the 3.1 million registered GOP. Assuming the recent — and downward trending of — GOP turnout in Presidential election years, the primary turnout represents 35% of an expected GOP turnout in November.

Such a rejection does not bode well for McCain. Traveling to Harrisburg two days after the primary, there were still scores of Ron Paul signs on the highway. Conscientious Ron Paul volunteers were even picking up signs off the Interstate. How often do you see this? What motivates Ron Paul supporters to take such measures when the nomination was decided a month and half ago?

What should be more disturbing is that the number of votes obtained by Messrs. Huckabee and Paul, 239,000 is greater than 215,000 margin that separated Senators Clinton and Obama. Given that the 2000 Gore-Lieberman Democratic ticket defeated the GOP Bush-Cheney in the Keystone State by 205,000 votes in 2000 and the Kerry-Edwards ticket won by 144,000 votes in 2004, these are 220,000 voters we Republicans can ill-afford to lose, all the more so since Pennsylvania now has over a million more registered Democrats than Republicans. These figures don’t include independents, no-party and registered Green voters, who could not vote in primary, as Pennsylvania primaries are closed, and as a whole have been migrating toward the Democrats since 2006, particularly in the Philadelphia suburbs.

The GOP gains nothing by swapping conservative votes for Independent votes. McCain can win only if he attracts Independent voters while retaining conservative voters. Unless Bush enters the witness protection program, the fall campaign will be among the most difficult GOP campaigns since Watergate. (SNIP)

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Peter J. Wirs is currently the Chairman & Co-Trustee of the Republican Leadership Trust as well as the incoming President of the National Conference of Public Officials.

Copyright © 2008 Salem Web Network. All Rights Reserved. -----------------------------------------------------------

The writer here, while making the perfect case for the notion that the GOP has made a terrible mistake by presenting the electorate with an unelectable GOP candidate, goes on to plead with conservatives to again hold their noses and vote for another wealthy establishment RINO whose positions on key issues are indistinguishable from many Democrats and who arrogantly refuses to even pay lip service to the GOP conservative base. One of McCain's goals for years has been to destroy the influence of the vocal conservative wing of the GOP, especially the theocrat wing in presidential politics. He may accomplish that goal this election cycle but he will not enjoy his victory from 1600 Pennsylvania Avenue.

Judicial Selection May Have Become Less Mysterious in Oklahoma:

The judicial selection process in Oklahoma has always been something of a mystery to the vast majority of the population. Every election cycle, I get calls from friends, family and clients asking me who to vote for in the judicial elections. I never make recommendations and tell them truthfully, "For the most part, I don't know any more about them than you do."

But, if legislation passed yesterday in the Oklahoma House is enacted into law, Oklahoma judicial appointments would have to be confirmed by the Oklahoma Senate in a process similar to the federal system, where judicial candidates are voted upon after confirmation hearings. (Link to NEWSOK story HERE.) Under the bill, the people would be asked to vote to approve an amendment to Article VII of the Oklahoma Constitution as follows:

Any appointment by the Governor to fill a position, as provided by law, on an intermediate appellate court shall be confirmed by a majority of the Senate. Any appointment or reappointment, as provided by law, by the Governor to fill a position on the Workers’ Compensation Court shall be confirmed by a majority of the Senate.

Governor Henry is unhappy with the legislation and stating that measure would politcize the judicial selection process and that no changes are needed since the current system is working fine. Under the current system, the Governor has the final say on judicial appointments.

AP - TEXAS CHILD SEIZURE RAISES LEGAL QUESTIONS .... DUHHH!

In a copyrighted story by Michelle Roberts, (LINK HERE) the Associated Press is now questioning the legality of the Texas child seizures:

"...the broad sweep - from nursing infants to teenagers - is raising constitutional questions, even in a state where authorities have wide latitude for taking a family's children.

"The move has the appearance of "a class-action child removal," said Jessica Dixon, director of the child advocacy center at Southern Methodist University's law school in Dallas.

"I've never heard of anything like that," she said.

Rod Parker, a spokesman for the Fundamentalist Church of Jesus Christ of Latter Day Saints, contends that the state has essentially said, "If you're a member of this religious group, then you're not allowed to have children."

"Constitutional experts say U.S. courts have consistently held that a parent's beliefs alone are not grounds for removal. The general view of the legal system is until there is an imminent risk of harm or actual harm, you can't do that," said UCLA law professor Eugene Volokh."

Testimony by sect members is alleging that not all of the families of the sect practiced polygamy and that some of the children taken were taken from traditional nuclear families.

Attorneys are also complaining about the courtroom conditions and the sheer chaos that has resulted from having so many cases going on at one time in a small court not equipped to the handle them.

Texas officials are saying, however, that the fact that the probable cause for the raid was based upon falsified reports will not effect the outcome since they followed the information given by an emotionally troubled informant with a history of making false child abuse reports in good faith. (sarcasm off.)

Comments Before the Oklahoma Bar Association Bench and Bar Committee

As many of you know already, I was allowed to speak before the Bench & Bar Committee of the Oklahoma Bar Association to relate my concerns about proposed changes to the Oklahoma Code of Judicial Conduct. I know that several of you were praying for me during that time and I want to thank you for that. I am greatly humbled by your support. What follows is not a direct transcription of my remarks. It is a close paraphrase based upon my memory of what was actually said.

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Ladies and Gentlemen, I want to thank you for the opportunity to address you this afternoon.

If Rep. Calvey and I had coordinated a little before the meeting, we could have saved each other some time and research. I concur with everything he just said.

I will not attempt to analyze the proposed code changes in ten minutes. You have been provided a copy of my comments which have already been submitted and I trust that you have or will read them before you make your decision. So, with your permission, I will move straight to my “closing argument.”

I am concerned that the cumulative effect of the changes will be used by some attorneys and organizations to craft a defacto religious test for Oklahoma Judges.

Last week, I taught a session of a CLE in Tulsa. The lady who introduced me has known me by reputation for years. She is great lady, one of the hardworking people of her section that make the OBA the great organization it is. But, when it came time for my introduction, all she could say was, “I would like to present Bill Kumpe. He is an attorney in Tulsa and ….. (long pause – embarrassed confusion) …. a very nice person.”

I had to laugh. I do try very hard to be a “very nice person.” I thanked her and started my presentation. But, I knew I had put her in a terrible spot because I didn’t submit a bio as requested. And, the reason I didn’t submit a bio speaks volumes to the issue at hand.

Before law school, I was a computer salesman and even a reporter for a while. But, I was best known for being an ordained, lay teaching elder in my community of faith and for serving on the Board of Directors of one Tulsa’s first and now largest Christian Schools. I am also a published freelance writer on subjects of interest to what used to be called the “Christian Right.”

After law school, I was President of the Christian Legal Society of Tulsa and was one of the founders of the Dream Center Legal Clinic in North Tulsa. I am a graduate of a Christian Civil Rights Litigation Academy and have received awards for my pro-bono work. I have actually performed over three thousand hours of pro-bono and reduced fee work. In the past year, I have represented a diverse range of clients from the Speaker of the Oklahoma House of Representatives to Thirteen Baptist Pastors of the Cherokee Nation. Currently, I am serving on Representative Sally Kern’s legal team.

I am not ashamed of my career. Far from it. If I were I wouldn’t be here today telling you about it. But, I didn’t share the details of it for a number of reasons. First, I knew that it might embarrass the people that invited me and I certainly didn’t want to do that. Second, I knew from experience that some members of the audience would choose not to hear a word that I said after hearing my bio. And third, though I am ashamed to say this, I chose not to because I didn’t want to deal with that issue on that day when it had no relevance to what I was going to say. It can be a burden.

One of my favorite tools for evaluating a situation is to apply what I call the “do unto others” test. I mentally reverse the roles and/or facts to try to see the situation from the other person’s point of view.

Let’s suppose for a moment, that instead of being the President of the Christian Legal Society, I had been Chairman of one of the OBA sections. And, let’s suppose that instead of helping to found a faith based legal clinic in North Tulsa, I had helped found a Legal Aid Clinic. Let’s suppose further that I had worked in excess of three thousand pro-bono and reduced fee hours with the ACLU or Legal Aid instead of Christian organizations. And, while we’re at it, let’s suppose that right now, at this moment, I am representing any other member of the legislature other than Rep. Sally Kern. Would I have felt the need to withhold my bio in front of that audience?

Now, going directly to the point at hand, let’s suppose that I am a candidate for District Judge or under consideration for an appointment to fill a judicial vacancy. Would I need to hide those details of my bio? As a matter of fact, even if I were otherwise qualified which I am not, would my name even come up in that context given the contents of my resume’? That’s a hard question.

Under standards that have already been applied by the Oklahoma Supreme Court in an unpublished opinion styled Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake, if I were a sitting Oklahoma judge, the personal details I just shared with you would already disqualify me from hearing a case involving religious organizations even if I had no previous connection with them. This is especially ironic given the fact that on the United States Supreme Court Ruth Bader Ginsburg regularly hears cases involving religious issues and organizations despite the fact that she is the former Chief Counsel of the ACLU.

If we extrapolate this already applied standard just a little farther, suppose that I am a sitting judge and my community of faith does not allow divorce. Will not allow them take communion. Should I then be disqualified from family law cases? And, suppose that my community of faith does not approve of alternative lifestyles. Should I then be disqualified from hearing any case involving people who identity themselves with those lifestyles. If these strategies are allowed (as I am afraid the new code will) they will be used by some attorneys and some organizations to “shop” judges.

I sincerely believe with all my heart, based upon my own personal experience, that that the new proposed code of judicial conduct will be used by some attorneys and organizations to first “shop” sitting judges and then shape judicial elections and thus establish a defacto , as applied, religious test for Oklahoma judges.

The question is straightforward. Will we use the power of the Oklahoma Bar Association to dictate the religious associations (or lack thereof) of the citizens who serve on our benches? I agree with Justice Joseph Story who said, “The rights of conscience are indeed beyond the reach of any human power. They are given by God and cannot be encroached upon by human authority … Our judges did not surrender their citizenship when they took the bench and are entitled to the same rights of conscience, association and free exercise of religion as any other citizen.

Our founding fathers recognized this problem and drafted strong protections into the language of the constitution. Article VI, Para. 3 of the United States Constitution is straightforward: “ … No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Article 1 § 2 of the Oklahoma Constitution is equally clear: “no religious test shall be required for the exercise of civil or political rights.”

Ladies and Gentlemen, I ask you to consider carefully how these proposed rule changes may be misused by some attorneys and organizations as you continue your consideration of them.

Thank you.

FLDS CI HAD MADE PREVIOUS FALSE REPORTS AGAINST CHURCHES

The Associated Press has filed a motion to unseal the court records concerning Rozita Swinton, a person of interest in false child abuse reports which led to the seizure of over 400 children by Texas authorities. And, it has now been learned that Swinton had a long history of filing such reports. In a copyrighted story, link HERE, the Rocky Mountain News reports today:

The document released today shows Swinton had an extensive record in Colorado Springs of posing as a troubled teen and making false claims. The affidavit connects Swinton to several reports that alerted Colorado Springs officials.

The document links Swinton to calls made throughout October from a "Dana Anderson." The caller claimed to be a young woman being abused by her pastor at Colorado Springs' New Life Church, and later as a 13-year-old student at Liberty High School who said she was being drugged and sexually abused by her father.

In February, a woman calling herself "Jennifer" called 911 from a prepaid Tracphone, claiming that her father had locked her in her basement for days, the document said. Officers linked the calls to Swinton in March.

Texas officials claim that even though the largest government child seizure in American history since the "pacification" of Native American Indian tribes was based upon false information, information gained AFTER DURING AND AFTER THE SEIZURE verified their suspicions about the group and legally justified their actions.

How convenient. This kind of practice has gone on for years in the "war on drugs." Paid informants or informants that are not doing time courtesy of their police handlers will say just about anything against anyone. Just one more reason why the the fruit of the poisonous doctrine is a good idea, even when it lets defendants who truly deserve punishment go free.

The Mosaic Code had it right. Two sworn witnesses were required for a conviction and the witnesses testified under threat of the same penalty as the defendant would receive if convicted if it was found that they had perjured themselves. Works for me.

Correspondence Concerning Proposed Changes to the Oklahoma Code of Judicial Conduct

What follows is online correspondence with the OBA Bench & Bar Committee concerning proposed changes to the Oklahoma Code of Judicial Conduct by the Oklahoma Bar Association:

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Professor :

Yes, I do have other concerns:

(1) Comment 2 to Rule 2.2 says in pertinent part, “a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.” I submit that this interpretive comment negates the concept of malum in se and reduces the law to a purely positivist statement of malum prohibitum rulings. There are acts that are always wrong no matter what a superior judge or court has to say about them. And a good judge, in his heart and conscience knows that. This comment would strip Oklahoma judges of their ability to follow their conscience and ask them to sometimes ignore their most deeply held beliefs and values in favor of the black letter of the law. Many legal scholars still believe that valid secular law is a restatement of the natural law which, depending upon your faith, is either gift from God or statement of man’s highest moral aspirations. This natural law is the manifestation of the best of the human conscience at work. This comment would strip Oklahoma judges of their ability to call upon Moses, Aquinas, Justinian, Blackstone and even their own conscience informed by them as they struggle with the most difficult of our legal questions. Dr. Martin Luther King summarized the problem very well in his Letter From A Birmingham Jail:

One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. …. We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal."

(2) Section C of Rule 2.3 requires judge to prevent discrimination or harassment toward several otherwise enumerated classes of people. This of course raises the inevitable question, “Why do we need a rule favoring enumerated classes when a courtroom is already supposed to be a place where justice prevails and no one, protected class or not, is allowed to be discriminated against?” Rules such as this put a huge thumb on the scale of justice in favor of the enumerated class. Rules such as this also dull the edge of some arguments and put all parties on notice that all persons and arguments are not equal in this forum. The real problem with a rule such as this lies in the hypersensitive nature of many the enumerated classes. Suppose for example that the court is hearing an argument concerning the sale or extension of life and health insurance benefits to persons of the green class. Opposing Counsel seeks to introduce valid scientific data that persons of the green class have a life expectancy of twenty years less than other classes, comprise sixty percent or more of all serious sexually transmitted disease cases and are hundreds of times more likely to acquire several specifically identified, incredibly costly diseases. Simple statistical and actuarial data such as this is frequently labeled “hate speech” even though it is scientifically valid and very relevant to the argument …. depending upon who introduces the information.

This point can be best illustrated by a few lines from a very heated online discussion concerning the ABA model code which led up to the proposed revisions to the Oklahoma Code. I posted a redacted version of the AP article and link to its text in a well known secular legal publication. A firestorm erupted almost immediately. A member of the ACLU attempted to come to my defense stating: “The First Amendment issue of a proposed ethical change in American Bar Association guidelines as reported by the Associated Press is properly placed in the constitutional law section. No one, including our friend X, noticed that Kumpe did not offer an opinion a remark or even creative editing and it is linked to a neutral website.” Another poster quickly responded, “A seemingly neutral commentary from a clearly non-neutral poster is not so neutral as you suggest.” The poster’s point was that because I am a known Christian activist and am frequently involved in Christian issues at various levels, even my citation of a neutral set of facts was out of line. My point is that this is an attitude already widely found in members of the bar and a rule such as this would only codify it on the bench.

I would further submit that Comment 2 to this rule sets up an unenforceable standard that amounts to a heckler’s veto. Does the Oklahoma Bar Association really intend to have its judges enforce a “Don’t look crossways at me rule.” Imagine this statement in motion for a new trial and a related bar complaint, “When I mentioned that my lover and I (fill in the blank), their lawyer’s jaw fell open for a few seconds and then he got a very odd look on his face. It scared me and hurt my feelings. I was discriminated against and I want a new trial.” It will happen if this rule is adopted as proposed.

(3) Comment 1 to Rule 2.4 codifies the current notion that the courts are in effect a super legislature unaccountable to the electorate. The stereotypical response to this is that judges should not be afraid of lynch mobs and no reasonable person could disagree. But, I would submit that if judges are not supposed to be swayed by the values, morality and opinions of the people they serve, why do we have judicial elections at all? Does anyone really expect the people to vote for someone who will ignore their values, morality and opinions? If a judge is not expected to reflect the values, morality and opinions of his community at large, then whose values, morality and opinions should he reflect and what does this say about the concept of government by and for the people? Are we codifying the notion that we will be ruled by a judicial elite whose superior values, morality and opinion will have the final say on every issue? This very argument is playing out now in the wake of Lawrence v. Texas and I would submit that revisions to the Oklahoma Code of Judicial Conduct is not a proper forum to decide a political issue of this magnitude by default

(4) Rule 2.11 sets up another frightening scenario. We recently had an Oklahoma judge’s ruling overturned simply because of his religious beliefs and associations. The following is taken from Prof. Mike Scaperlanda’s article in the Daily Oklahoman, June 8, 2006:

By a 6-3 vote, the Oklahoma Supreme Court has established the dangerous precedent of disqualifying judges because of their religious affiliations. Last month, the Court told probate judge, Larry Jones, that he cannot hear the case of Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake because the “circumstances and conditions surround[ing] the litigation” are such “that they might reasonably cast doubt and question” as to Jones’ ability to be impartial or at least they raise “the appearance of possible impropriety.”

What caused Oklahoma’s high court to question Judge Jones’ impartiality? After Timberlake lost his case and while it was on appeal, he discovered that Judge Jones had “received a Doctor of Divinity in 1993 and is a licensed Baptist minister.” Armed with this information, Timberlake asked Judge Jones to remove himself from the case. Jones declined in a five page written opinion pointing out that a) his doctorate was earned at “a non-Baptist affiliated, independent Bible college,” b) that he is licensed by “the Seventh Day Baptist Church of Texarkana, Ark.,” which “is independent and autonomous” and

affiliated only with the Seventh Day Baptist General Conference, headquartered in Wisconsin,” c) that his church “has neither association with nor fellowship with the Southern Baptist Convention or those churches or members known as “Southern Baptists,” and d) he has never been “affiliated in any manner with Oklahoma Baptist Homes for Children Inc. or Trinity Baptist Church of Oklahoma, Inc.”

Despite the fact that Judge Jones has absolutely NO connection, however remote, to the parties in the case, the Oklahoma Supreme Court ordered him to step aside.

Do we really want to codify the notion that no judge who is deeply involved in his faith should be allowed to hear a case involving faith based issues? Again, this is a case where a heavy thumb could be placed on the scales of justice in favor of the opponents of religious litigants.

(5) Rule 3.6 would make it prudent for judge and attorneys who aspire to the bench to decline involvement in their church and values based community organizations such as the Boy Scouts of America, Royal Rangers, Awana, etc. This violates the constitutional rights of the judges and judicial candidates by establishing a defacto religious test for public office. This issue was apparent as soon as the ABA’s proposed changes were released and there is no doubt how it would be interpreted:

Judges May Have to Quit Groups That Discriminate Against Gays
Gina Holland
The Associated Press
08-09-2004

Judges are on the front line of battles over legal rights for same-sex couples and should never belong to an organization that discriminates against gays, supporters of a proposed change to American Bar Association ethics rules argued Friday. Judges are already prohibited from joining clubs that discriminate based on race or sex. An ABA panel is debating whether to make groups that discriminate against gays off limits as well. The ABA, the nation's largest lawyers' group with more than 400,000 members, writes conduct rules for judges and lawyers. States and federal courts generally adopt them, with some changes. It is not known how many judges participate in groups such as the Boy Scouts that have policies against hiring gays or having homosexual leaders, or some veterans groups that restrict membership to heterosexuals.

The proposed change to membership in groups that discriminate against gays is energized in part by the Supreme Court's ruling a year ago that states cannot "demean" same-sex couples by punishing their sexual conduct. That decision has spawned multiple gay rights cases around the country, including Massachusetts' ruling to legalize gay marriage. Most recently, a judge ruled last week that a same-sex marriage ban violates Washington state's constitution.

New York University ethics expert Stephen Gillers said gay people involved in court cases "should not be asked to trust the fairness of a judge" who belongs to a discriminatory club.

"Judges are human beings too. They should be allowed to exercise their First Amendment rights of free association," said Frederic Smalkin, a senior federal judge who teaches law at the University of Maryland. Smalkin said it could be difficult to define what organizations are acceptable. "Does that mean a judge could not belong to the reserves or National Guard?" he asked.

Brian Fahling, an attorney with the Mississippi-based American Family Association, said judges with religious objections to homosexuality should not be forced to follow such a rule.

As proposed, this is patently unconstitutional and would again establish a defacto religious test for public office.

Thank you for consideration in this matter. I look forward to meeting you.

Sincerely,

Bill Kumpe

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From:
Sent: Tuesday, March 11, 2008 3:17 PM
To: Bill Kumpe
Subject: RE: Code of Judicial Conduct

Mr. Kumpe,

I know that one of the provisions in the Code about which you are concerned is Rule 3.6. Are there any other specific rules or comments about which you have a concern.

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From: Bill Kumpe [mailto:bkumpe@cox.net]
Sent: Monday, March 10, 2008 3:49 PM
To:
Subject: RE: Code of Judicial Conduct

Prof:

Thank you for your prompt reply. You can view the items directly on the OBA net by logging on there, clicking on the “Message Board” section in the left margin, then clicking on the “Search” option on the right side of the next screen. The first thread can be found by doing a keyword search on the term “Gina Holland.” The second thread can be found by doing a keyword search on the term “Kill a judge for Christ.”

Thank you again for your prompt response.

Bill Kumpe

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From:

Sent: Monday, March 10, 2008 3:37 PM
To: Bill Kumpe
Subject: RE: Code of Judicial Conduct

Mr. Kumpe,

Thank you for writing to express your views on the proposed amendments to the Code of Judicial conduct. I do not believe that the proposed code would in any way affect a judge’s involvement with any church or church group. However, the Bench and Bar Committee will give full consideration to your concerns about this issue. I have had some difficulty in opening two of your attachments since my computer has screening devices that stops any attachment that involves “cookies”. I will ask our computer support personnel if they can help me with this problem. I will be forwarding your e-mail message to others and they may have the same problems.

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From: Bill Kumpe [mailto:bkumpe@cox.net]
Sent: Monday, March 10, 2008 3:23 PM
To:
Cc: bkumpe@cox.net
Subject: Code of Judicial Conduct

Prof:

While I do not oppose all of the changes, I am frightened that some of the changes, particularly those having to with a judge’s extra-judicial activity and judicial disqualification will be used to craft a de-facto religious test for judges. While I do not question the sincerity or the motives of either the ABA or the OBA, I do fear that the changes are such that they can be misused. This is a very sensitive topic. Find below: (A) a link to a podcast of a radio interview I gave on this subject this weekend; (B) a link to a podcast of a radio interview that fellow Christian attorney Leah Farrish gave over the weekend; (C) a link to a thread on the OBA-NET where I made an attempt to discuss the constitutional ramifications of this matter with other lawyers within the OBA in 2004; and (D) a link to another thread on the OBA-NET regarding judicial matters. Given the tone of those discussions, I think that I have reasonable grounds for my fear that judges and judicial candidates of devout faith could be un-constitutionally burdened by misapplication of some of the new provisions.

Bill Kumpe

Attorney at Law

LINK A: http://podcast.1170kfaq.com/Portals/48/Recent%20Show/sataftshow3-8hr2.mp3

LINK B: http://podcast.1170kfaq.com/Portals/48/Recent%20Show/sataftshow3-8hr1.mp3

LINK C: http://forumx.oba-net.org/detod?viewPrintableVersion@21.wvM3axZiDen.14@.1ed0368a

LINK D: http://forumx.oba-net.org/detod?viewPrintableVersion@21.wvM3axZiDen.6@.1ed06b68

401 Texas Children - Part III - Are the Amish Next?

Over the weekend, it was announced that court records into the investigation of the person being investigated for making false child abuse reports in the Texas FLDS fiasco have been sealed:

The Rangers are "actively pursuing Rozita Swinton as a person of interest regarding telephone calls placed to a crisis center hotline in San Angelo," the DPS said.

A Colorado judge approved the Rangers' request to seal records in the case.

Child Protection Project founder Linda Walker and the Phoenix-based group's executive director, Flora Jessop, said Friday they were stunned when they learned the woman's identity.

"In her little baby voice, she said, 'If you rescue me, and I get out of here, do you think the black people will hurt me?' " Walker said. "She had done her homework. She knew it was a racist cult. We know that these kids are very frightened of black people.

"The Texas Rangers told us she was obsessed with the FLDS. They confiscated tons of material on the FLDS (in the search of Swinton's home). She even gave real addresses and real names of FLDS people."

Walker and Jessop hesitated to say that Swinton was the person who called the Texas hot line to describe sexual and physical abuse by a 50-year-old husband at the ranch outside Eldorado, but they endorsed the resulting actions of Texas authorities.

"Regardless of who made these calls, the system worked exactly as it was supposed to work," said Jessop, a former FLDS member whose cousin, Merrill Jessop, runs the ranch.

"A call came into the hot line from a little girl who said she was being brutalized. They turned this information over to Child Protective Services and to the proper authorities. Those authorities went in and did their job," she said. "They found systemic abuse in there, which is what we have been saying for years."

Link to Houston Chronicle story HERE. And it turns out that this informant was already under suspicion for making false reports:

Local police said Swinton had been under investigation for some time on that accusation, but police made an immediate arrest after the Texas Rangers became involved.

"This arrest stemmed from an incident that occurred in Colorado Springs in February of this year," Colorado Springs Police said in a statement. "The Texas Rangers were in Colorado Springs yesterday as part of their investigation involving the compound in Texas. They left and have not filed any charges on Rozita Swinton as of this time. "

ABC News was unable to reach Swinton or her lawyer for comment.

Swinton became a person of interest to Texas authorities when former Fundamentalist Latter Day Saints member Flora Jessop, who now operates a rescue mission for teenage girls trying to escape the sect, told authorities she had been getting calls from a girl claiming to be Sarah -- the same girl who made the call for help to a San Angelo, Texas, shelter that led to the raid on the El Dorado compound.

Link to ABC News Story HERE. Texas blogger Rusty Shackleford and American Spectator journalist Robert McCain put together this scenario:

Rusty Shackleford says the Texas FLDS compound story has "stunk to high-heaven from the git go," and look at the way Rusty puts two and two together:

Houston Chronicle: "The Texas Rangers told us [hoax suspect Rozita Swinton] was obsessed with the FLDS. They confiscated tons of material on the FLDS (in the search of Swinton's home). She even gave real addresses and real names of FLDS people."
Rusty: Hence, how Swinton would be able to "identify" the man who "Sarah" was allegedly married to, but didn't know that Dale Evans Barlow, the man originally pegged as the "50 year old husband", didn't actually live in Texas, but in Arizona. (Editors Note: Had she revealed the suspected perpetrator was in Arizona instead of Texas that might have complicated the question of who had jurisdiction to go after the only person who should have been brought in, the suspected perpetrator.)

Right, and now let me add something else to the equation: Notice that the middle (maiden) name for "Sarah" was "Jessop" -- "Sarah Jessop Barlow."

Well, Flora Jessop is the executive director of the anti-polygamy group quoted in that same Houston Chronicle story. And if you do a Google search on "FLDS" and "Jessop," you immediately discover that Carolyn Jessop is the author of a bestselling book, "Escape," about her life inside FLDS -- and that Carolyn Jessop appeared on "Oprah" in November 2007!

Bingo! So what must have happened is that Swinton:

• Watched this "Oprah" episode in November;
• Became obsessed with the FLDS cult;
• Read about the compound in Texas;
• Learned the name Dale Evans Barlow from reports of his prosecution;
• Combined Barlow's name with "Sarah," a common female biblical name, and "Jessop," the name of the two prominent ex-FLDS women, to create a name for her fictional 16-year-old victim; and
• Then did a Google search to find the phone number of a domestic-abuse hotline near the FLDS compound in Texas.

Link to blog HERE. McCain also asks the most pertinent question of this increasingly bizzare discussion, "Are the Amish next?"

401 Texas Children - Part II

In a announcement that surprised nobody but the professionally naive', The Texas Rangers revealed yesterday that they have a person of interest in custody concerning possible false child abuse reports that led to the seizure of over four hundred children in a Texas religious community usually referred to by the press as a "cult compound." (Story and Ranger Press Release HERE.) Grits for Breakfast, a very well informed Texas Criminal Justice blog reports that the child abuse allegations may have been result of prank telephone calls. (See the blog and excellent coverage of the entire situation HERE.)

In the meanwhile, the press has been reporting that attempts by the small town court to provide the minimal due process necessary to make the child seizures stick have degenerated into a "farce" with hundreds of lawyers from around the state screaming objections and motions after waiting for hours in makeshift courtrooms and holding areas while necessary evidentiary documents were copied. (Story HERE. )

In the middle of this circus, a Texas CPS expert testified: "FLDS children are taught that disobeying orders leads to eternal damnation and have little opportunity to learn how to make independent choices." In other words, they are obedient to their parents wishes. God forbid!

Apparently, this CPS expert found the fundamentalist religious upbringing and obedience to their parents at least as abusive as the alleged child sexual abuse. The CPS worker concluded that the children did not feel abused because of their religious beliefs! Granted, this situation is far from typical and an absolute abuse of parental and religious authority. But, for years many in the professional community have alleged that a typical conservative Christian fundamentalist upbringing is also child abuse and spousal abuse. Last week, mainstream media outlets were showing video taken in mainstream Christian Bible Camps as examples of "fundamentalist brainwashing of children" that could lead to this type of situation.

To support the abuse claims, Texas officials entered into evidence reports that ten minor girls were pregnant from the group. Ten minor girls pregnant in a community of any size in Texas or Oklahoma is not news. And, the fact that they are pregnant by older men is not news either. The only difference is that in the community at large, the girls would be pregnant as the result of voluntary partying sex etc., perhaps with multiple partners whereas, in the case at hand, the girls are pregnant from voluntary underage marriage. Granted neither is a desirable state of affairs and both are a crime, but it takes supreme hypocrisy for the State of Texas to allow the former to return to their lives and probably previous sexual activities without much notice while creating concentration camps for the "re-education" of the latter.

Elucidating the obvious, the CPS expert continued, "There have to be exceptional elements in place for these children and their families. The traditional foster care would not be good for these children."

Texas and Oklahoma, especially in rural areas, are a lot alike. In the same month that this story was breaking in Texas, another story was breaking in Oklahoma. It would seem that an unacceptable number of children are being killed and abused, both physically and sexually, while in state supervised institutions and foster care in Oklahoma. The situation is so bad that a silk stocking Tulsa law firm has assisted other state and national firms in filing a massive class action lawsuit aimed at nothing less than re-building Oklahoma's foster care system from the ground up. Story HERE. In the same week as the lawsuit, a conservative Republican legislator in the Oklahoma house announced efforts there to dismantle Oklahoma's child welfare agency, the Department of Human Services, breaking it up into smaller units that will allow tighter controls and more accountability.

The men who have underage "wives" should be arrested and tried for statutory rape. If they are found guilty, they should be punished "right up to the limits of cruel and unusual" in the words of one Texas lawyer who was shocked by the seizures. But, the heavy-handed and probably unconstitutional manner in which the entire matter has been handled will probably prevent that. The following comments posted on Grits for Breakfast by Texas lawyers close to the situation are dead on point:

"Once again, Texas state government shows it couldn't pour piss out of a boot if the instructions were printed on the heel." (Regardless of your views on the raid, that's a great line!) He added here in Grits' comments:

Did no one think in advance to look if there were enough lawyers in a five county radius to serve as ad litems? Or if it was even feasible for one district court to shut down all it's operations to devote to one case? Or if there was even a courtroom big enough? And now, after letting some mothers come along with their children (admittedly an unusual act in a removal case), then stripping them of their cell phones, now they decide to kick them out unless they have kids under 4? This sort of screaming incompetence is going to permanently scar these children AND risk destroying any criminal cases that might be made. It's just beyond belief."

The Texas seizures are eerily like the Branch Davidian fiasco where a number of children were burned to death to "prevent them from being abused." They are a classic example of state authority run amok. What has happened is wrong, terribly wrong, and just like the Branch Davidian standoff, cannot and will not end well.

"Undocumented" Immigrants and the Rule of Law

In a classic statement of common sense, Judge Gary Lumpkin of the Oklahoma Court of Criminal Appeals (an ex-Marine and VietNam Veteran) quipped the following:

Too many factions in our society have tried to dilute the facts of the status of illegal immigrants by the semantic labeling of their unlawful entry and presence in our country as merely “undocumented aliens”. I guess those same factions would label someone caught trafficking in drugs as an “undocumented pharmacist”.

His statement, while certainly witty, also shows a high respect for the rule of law. The key word in that statement is illegal. Our courts and other government institutions cannot help but undermine the rule of law at large if they continue to look the other way while the country's population swells with people whose very presence is a violation of federal law and whose continued presence requires constant violation of both state and federal law. If our courts follow this path, I can see whole new movements developing: perhaps one for equal rights for undocumented possessers of property whom the unenlightened call thieves, and another for undocumented land owners whom the bigoted call trespassers.

I learned this week that my alma mater, the University of Tulsa College of Law, will be hiring an immigration lawyer who will in all likelihood be tasked with helping illegal immigrants in the same way that the university has in the past assisted the poor, the elderly and Native Americans.

I can't help but wonder if they will soon be granting degrees to the hundreds of illegal aliens who have been working on campus doing everything from building their new buildings to mowing the lawns and feeding the student body. Following the "undocumented worker" logic they should. After all, the undocumented workers are people. Many of them are probably wonderful people. And, by whatever means, legal or not, they have been on campus. It is only the hard-heartedness and backward thinking of some at the university administration that prevents these deserving unfortunates from attending classes, taking tests and earning a degree. Surely, these worthy men and women, who in all likelihood served the University at a far lower wage than a greedy "documented" worker would accept, who have literally built the university with their bare hands, maintained it with their sweat and blood and fed its students with their loving care should be given the same privileges as the children of the wealthy who attend TU.

BUT, the University would quickly argue, we have admission standards and attendance requirements and academic qualifications that have to be met. Guess what TU, so does the United States of America. They are called laws. BUT, TU would continue, we are a private institution. People who attend our university have to pay their tuition to earn the right to be here. Again, guess what TU, so do legal American citizens. They are called taxes and in my time it was also called the draft. So, if TU wants to be truly consistent in their message, I expect to see them granting degrees to all "undocumented students" who have managed to arrive at and spend time on their campus by whatever means .... regardless of their legal and academic status.

P.S. Dear reader, don't hold your breath.

401 Texas Children Seized in Raid on Polygamist Compound

The following post set off an interesting debate on the official online discussion group of a national Christian civil rights organization. After a complaint by a subscriber to the board, the chief counsel of that organization asked the people involved to take it off line. I have reproduced the original post here along with my final post. I am inviting the rest of the people involved in the discussion to use the comments function of this blog entry to allow others to read this very important diaologue.

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Although I am not a fan of polygamy in any sense, nor young marriages, I am shocked at the apparent overstepping of our liberties in this Sunday’s raid on the Mormon sect ranch and removal of 401 children from their mothers and placing them in State custody. I thought we were innocent until proven guilty, and then only the truly guilty would pay the penalty. Here, six month olds to sixteen were yanked from their mothers.

One girl (whom they have yet to find) alleged she was the wife of a Mormon sect leader one year under the age limit in Texas law.

And as a result, all 401 children are removed from their mother’s care, custody and control and are now in State custody. Even Communist China has not attempted such a feat.

And to top it off, my fellow Southern Baptists supplied church busses to the police to assist in removing the children and mothers.

If there is a wrongdoer to be had – punish him just short of cruel and unusual, throw the keys away…enforce the law as to the criminal. But…do not destroy the Constitutional rights of his family(s). Is this not prima facie evidence of a need to have a Constitutional Amendment to the United States Constitution protecting parental rights from overzealous judicial actions?

They came first for the Communists,

and I didn't speak up because I wasn't a Communist.

Then they came for the Jews,

and I didn't speak up because I wasn't a Jew.

Then they came for the trade unionists,

and I didn't speak up because I wasn't a trade unionist.

Then they came for the Catholics,

and I didn't speak up because I was a Protestant.

Then they came for me, and by that time no one was left to speak up.

- Pastor Martin Niemöller (1892–1984)

--------------------------------------------------------

Friend, nobody disagrees that polygamy and adult child sex is illegal or that the Texas authorities should have stepped in. I totally agree with the first poster who said that the guilty parties should be punished right up to the edge of cruel and unusual.

But, what we are also saying is that the wholesale seizure of all of the children, including those not in immediate danger of forced marriage, presents strong due process questions. Who is to say that the next step will not be finding all of the children of a certain denomination endangered because that denomination practices faith healing or does not believe in psychiatry or counseling? Or that failure to place children in public schools is neglect?

We had a case here in Tulsa a few years back where every little girl in a particular pre-school program was forced to submit to a full pelvic exam at the school without the knowledge or permission of the parents. The object of course was to determine if the little girls had been molested. If I remember correctly, there were no accusations of molestation against any of the parents, the authorities just wanted to make sure it wasn't happening, apparently because of the "at risk" nature of the families and neighborhood.

Now I ask you which was worse, the possibility that one little girl was molested or the certainty that all of the little girls were molested by a back room pelvic exam at school? Sometimes the remedy does as much or more damage than the problem.

Let me reiterate this. There is a large portion of the judiciary and the government child welfare bureaucracy who see all Christians exactly the same as those polygamists. To them we are the same people, just different issues. It is a matter of perception not reality. But, perceptions can become reality when a court or a social worker go looking for a reason to put a kid into the system because too often they find what they are looking for whether it was there or not originally.

The founding fathers understood these dangers and gave us strong due process protections and we ignore large scale government actions such as this one at our peril.

Bill Kumpe

Court House Security

For a long time now, the United States District Court for the Eastern District of Oklahoma has been quietly considered a backwater by many city lawyers because of its strange policy toward electronic devices in the courthouse. In an age where lawyers may carry their entire practice around with them on a laptop and a Blackberry, the Muskogee Federal Court does not allow any of these devices in their courthouse. I once tried to explain to the flawlessly courteous but equally firm security personnel there that I could not check my schedule without my PDA and that I kept most of my working documents on my laptop. It was obvious that I was speaking a foreign language to them.

This week, this backwater issue took on new urgency when all of the federal court houses in the Western District of Oklahoma in Oklahoma City, including bankruptcy courts, adopted the same policy. There was a hue and cry from a large segment of the Oklahoma bar and the policy was rescinded within hours of its issuance. (See the memo at the end of this post.)

But, this whole flap highlights just how much damage a few lunatics with box cutters could do to the American constitution. I can only imagine what Thomas Jefferson would have to say after passing through a courthouse security checkpoint where his pen knife was seized, his brief case and papers x-rayed and his body itself scanned by an electronic device. I think he would say that I can see no probable cause to publicly humiliate anyone who wants to enter a public building simply because a handful of foreign fanatics committed a terrible act.

I admit it. I resent and despise this level of intrusion. I have been forced to nearly disrobe in a federal courthouse lobby more than once. Standing before my peers without my glasses, the entire contents of pockets including medications visible for all to see, my shoes in one hand, my belt in the other, trying to hold my pants up with one hand to prevent an indignity worse still, I freely admit that I was furious with my government for allowing a few foreign fanatics with boxcutters to inflict this violation of personal dignity and privacy upon us all. And I do mean upon us all because you have not seen a truly frightening sight until you have watched a middle aged, overweight, coldly furious lawyer standing in the middle of a federal building trying to replace his belt and shoes all while holding his pants up with one hand.

If I try to attack a judge or opposing counsel with my inch and half long Swiss Army Diplomat then by all means please shoot me and get it over with. If I am caught secretly photographing drug informants and then e-mailing the pictures then by all means prosecute me to the full extent of the law. But in the meanwhile, do not force me to disrobe in the lobby, guess about my schedule, tear at sealed envelopes with my fingers and try to remove staples with a ball point pen just because I am in the court house.

This idiocy has to end and the sooner the better.

--30--

Postscript: just substitute the word "terrorist" for drugs or cocaine as you read the following:

Don't lose sight of what's really on trial here -- our basic personal freedoms,
our quality of life...

Sublime concepts, such as "the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures..."

For when we condone the bugging of our citizens' bedrooms, when we allow the police
to enter our citizens' homes with specious warrants, when we invade our citizens'
privacy in a frenzied quest for a wicked white powder, aren't we capitulating to
the evil, aren't we surrendering to the drug? Aren't we saying cocaine is more
potent than our Constitution?

From the script of the film "True Believer," 1989

Muzzling Judges On Illegal Immigration

Of late, it has become increasingly common for the courts to simply overturn the will of the people as enacted through the legislature. Oklahoma HB 1804 is in the process of being overturned in the courts both directly and indirectly. Even if its opponents, and they are legion and powerful, do not accomplish their goal directly, they may accomplish it indirectly a piece at time. A classic example of this judicial "death of a thousand cuts" can be found in an Oklahoma Court of Criminal Appeals Case styled OCHOA v. BASS, 2008 OK CR 11. The real question decided here is whether or not a District Court Judge may even inquire into the immigration status of the defendants before him. Writing in dissent, Judge Gary Lumpkin eloquently points out the problem:

LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

¶1 I want to commend Judge Bass for doing what all judges are sworn to do, follow the law. At the time of his order he had before him the Petitioners, convicted felons, and probable cause to believe another “public offense” was being committed in his presence. Pursuant to 22 O.S. 2001, § 201, Judge Bass rightfully inquired regarding the legality of Petitioners’ presence in this country and once the illegality was established, his duty was to commit them to the custody of the Sheriff for further action. I agree there are no independent state grounds for the continued detention of Petitioners and the timeline under the federal statute has passed. I further agree with the Court’s opinion that it seems “inappropriate to release illegal immigrants and thereby indirectly permit them to continue their illegal status”. However, without authority to detain under either federal or state law, the Petitioners must be released. While the provisions of HB-1804, 22 O.S. Supp. 2007, § 171.2 , require an exercise of reasonable efforts to determine the citizenship status of persons charged with crimes, it does not set out a legal basis to detain. If the Court’s opinion had concisely adjudicated these facts I would have simply concurred in the decision. However, I must take issue with its mistaken perspectives of the role of a judge, especially in the taking of pleas, some of the assumptions made, and the immigration policy analysis.

¶2 It must first be pointed out that 22 O.S. 2001, § 201 is not restricted to that time prior to sentencing. The opinion takes the plain language of the statute and seeks to judicially amend its language to restrict its application. The language of the statute makes it clear that its dictates apply any time a public offense is committed in the presence of the judge. Secondly, a judge has a duty to inquire regarding any plea presented to the court, negotiated or not, and a defendant offering a plea is on notice to that fact. It is the judge’s duty to ensure any plea meets the requirements of the law and the dictates of justice in a particular case, together with determining if the defendant offering the plea is eligible for the recommendation in a negotiated plea. The court should not allow any party to commit a fraud upon the court by withholding information regarding the qualifications of any defendant to receive a particular sentence. Third, citizenship status is important for the judge to ensure a defendant is afforded the rights under the Vienna Convention on Consular Rights prior to accepting a plea. Therefore, the Court’s policy discussions in this opinion on the handling of pleas and the inquiries that are appropriate disregard the steps required in the actual taking of pleas in the District Courts. While the opinion makes a point that a judge must remain neutral, it seems overly concerned that a judge doing his or her job might undo a deal for the State. This seems inconsistent to me.

¶3 The opinion also overlooks the fact that a state-court magistrate is specifically permitted by federal statute to arrest and imprison persons for offenses against the United States “for trial before such court of the United States as by law has cognizance of the offense.” 18 U.S.C. § 3041 (2000). This right also accrues to state officers for the investigation and arrest for immigration offenses. See United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (10^th Cir. 1999). A very thorough discussion on the inherent authority of the states to arrest aliens for violating criminal provisions of the Immigration and Nationality Act and to also arrest for civil violations that render an alien deportable was set out by Kris W. Kobach in The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179 (2005) (concluding that there has been no preemption of local police power to make immigration arrests and that Congress has repeatedly acted to preserve, support, and encourage local arrest authority). Therefore, the law supports the action by Judge Bass in this case.

¶4 The real problem in this case is that unlike Judge Bass, who did follow the law, the federal government has failed in its duty to enforce the immigration laws of this country. While individual Border Patrol and INS officers do perform admirably within the limited scope of their ability, this failure to enforce the law reflects a gross dereliction of duty at all levels of our federal government. Our country is strengthened through the entry of legal immigrants into our society with their oaths of allegiance to our Constitution, laws, and way of life. This legal entry fulfills the motto on the Great Seal of the United States “e pluribus unum”, i.e. “out of many, one”. On the other hand, illegal immigrants make a mockery of the laws enacted to protect that way of life and if not checked have the potential to “Balkanize” the country. Too many factions in our society have tried to dilute the facts of the status of illegal immigrants by the semantic labeling of their unlawful entry and presence in our country as merely “undocumented aliens”. I guess those same factions would label someone caught trafficking in drugs as an “undocumented pharmacist”.

¶5 We can all agree that as citizens by birth or naturalization, those of us here legally are blessed to be in the greatest country in the world. It is natural that individuals living in countries that do not provide the same blessings, opportunities, and security would desire to migrate to the United States of America. That migration is welcomed if it is done legally. The failure of the federal government to enforce the law of the land has made a mockery of our immigration law and diminished the Rule of Law as a part of our national framework.

¶6 As previously stated, state authorities have the police power to make arrests for violation of immigration laws. When the federal government fails to follow the law, the states must fill that void. We cannot selectively decide we will enforce some laws and disregard others if we fulfill our oath of office and truly apply the Rule of Law.

Judge Johnson also questioned the result:

A. JOHNSON, JUDGE, CONCUR IN RESULTS:

¶1 I concur with those portions of this opinion that find Judge Bass had authority to commit Petitioners to custody of the county sheriff for notification of Bureau of Immigration and Customs Enforcement (ICE) of the Department of Homeland Security. I also concur with the portions of the opinion finding that once the Department failed to timely respond to the sheriff’s notification by assuming custody of Petitioners within the time allowed by federal law, no further detention was warranted by the law of this State. I therefore fully concur with the opinion to the extent it concludes that the Petitioners have shown that their ongoing confinement by the Respondents is without any state authority and that they are entitled to the writ of habeas corpus. Lastly, for the reasons stated by the majority, I agree that the Petitioners have failed to demonstrate an entitlement to a writ of prohibition.

¶2 I cannot agree, however, with those portions of the majority opinion that: (1) purport to address the propriety of a judge questioning a defendant about his or her citizenship status; (2) reach the sweeping constitutional conclusion by mere assertion that “[n]o statute, administrative rule or executive order can constitutionally require or allow” a judge to inquire from the bench, into any violations of law that are not the subject of the case or controversy before the court; and (3) comment on the wisdom of releasing aliens from state detention when it is not even clear that they would be held in detention by federal authorities while their immigration status is being adjudicated under federal law.

¶3 The necessary question presented for decision in this case is not under what circumstances a judge may question a defendant about his or her citizenship status, nor is it whether the courts of this State are “agencies” that may be constitutionally subjected to certain legislative enactments. The only question to be answered here, as in any habeas action, is simply whether the Petitioners’ detention is lawful. Discussion of these other matters has no bearing on the legality of the Petitioners’ detention, and therefore, in my view, constitutes dictum at best and an unconstitutional advisory opinion at worst.

Conservatives have a terrible tendency to think that because they have elected "their people" to office and then had "their legislation" enacted into law that they have accomplished their goal. This view is naive' at best and subject to cynical manipulation at worst. The fact of the matter is that, under today's political conditions, any duly enacted law passed by the legislature can be overturned either directly or indirectly by the judicial branch. And, until conservatives decide to quit demonizing their lawyers and instead send them out to fight the rest of the battle, they are going to continue to lose.

I Don't Care What Dr. Dobson Says, I'm Still Not Voting ....

There has been a great poker game going on between religious conservatives and the country club wing of the GOP over the McCain nomination. The defacto leader of the religious right, James Dobson, and the oh so obstinate McCain have been staring at each over the table for the past several months with McCain refusing to even acknowledge the influence of evangelicals and Dobson threatening to sit the election out and throw the contest the Democrats. Like all poker games, one side or the other or both were running a bluff and the real question was, "Who will blink first?" Well McCain has obviously played a lot more poker than Dobson because Dobson blinked and in so doing destroyed any influence and moral credibility the evangelicals might have had in this race and probably future races. The following is taken from the LA Times Blog which can be found HERE:

The GOP concern has been instead that a lack of enthusiasm among....conservatives and Republicans would cause a low turnout on that side come November. But last night Dobson appeared to ease that worry. Stressing that he was speaking as an individual, Dobson did not actually endorse McCain -- yet. But he did tell Sean Hannity on the Fox News Channel that though he has "problems" with all three remaining presidential candidates, especially the two Democrats, he fully intended to vote on Nov. 4. That was a signal to his followers that they might have to settle for the least-worst candidate, namely McCain. "Let me just say," Dobson said, "that I will certainly vote. I think we have a God-given responsibility to vote, and there are all of the candidates and the issues down the ballot that we have an obligation to weigh in on and let our voices be heard."

So, Dobson has apparently "released" his followers to vote for the "lesser of evils" candidate. The question then becomes, "Who is he is he releasing them to vote for?" Former Clintonista "Sid Vicious" Blumenthal quietly laid a bombshell on the table yesterday when he announced that he was privy to conversations where McCain seriously discussed leaving the GOP to become an independent and caucus with the Democrats. The following is taken from the Business and Media Institute and can be found HERE:

According to Sidney Blumenthal, a senior adviser for former President Bill Clinton and current adviser to Democratic presidential hopeful Sen. Hillary Clinton, at one point McCain was going to leave the Republican Party and caucus with Senate Democrats.

“And although he doesn’t want to talk to reporters about it now, there was a time and I was privy to some of those who were involved, did conduct negotiations through third parties about whether or not he would leave the Republican Party and become an independent more or less aligned in the Senate with the Democrats,” said Blumenthal on April 1. Blumenthal did not say when those negotiations took place.

Blumenthal made the remarks before an audience at a Barnes & Noble bookstore to promote his book, “The Strange Death of Republican America: Chronicles of a Collapsing Party.” Blumenthal, the former Washington bureau chief for Salon.com, referred to McCain’s positions on various issues as evidence he’s not a traditional conservative Republican politician.

“Now John McCain has emerged as the candidate of the Republican Party,” Blumenthal said. “He is somebody who, although he says that he is a 100 percent conservative, is to all of us who have watched him over the years, somebody who has taken a stance at odds with fundamental positions that were the orthodoxy of the Republican Party on issues ranging from torture, to Bush’s tax cuts initially, to global warming, to, and I remember, tobacco – the tobacco settlement, and I remember even on health care.”

“I think Republicans as a whole – even though they’re suspicious, many of them of McCain and have been angry at him in the past – are much more disciplined as party members than Democrats are,” Blumenthal said. “There’s the famous saying of Will Rogers, ‘I’m not a member of an organized political party – I’m a Democrat.’ So, I think Republicans will rally behind their candidate to a greater degree than people will recognize right now.” Blumenthal even supplied advice for McCain. "So I do not think this will hurt him and if I were advising McCain right now, I would say he’s slightly overreacting to his conservative base,” McCain said. “I don’t think he needs to do that so much. I think they don’t have any choice right now."

It could be suggested that Blumenthal is carrying water for his former bosses with statements like this. But, even if he is, that doesn't mean that he is not telling the truth. Arch conservative David Limbaugh agrees. His comments can be found HERE:

It's disappointing to watch good conservatives demean themselves by trying to present McCain as something he's not. No matter how much they spin, they can't fool conservatives familiar with McCain's record. McCain's detractors are not the ones having to stretch and massage the facts in order to turn McCain — overnight — into a Reagan conservative.

McCain is not only not conservative enough; he has also has built a reputation as a maverick by stabbing his party in the back — not in furtherance of conservative principles but by betraying them. McCain delights in sticking it to his colleagues while winning accolades from the mainstream liberal media.

Former Sen. Rick Santorum, whose conservative credentials are beyond question, said, "I don't agree with (McCain) on hardly any issues." Santorum told radio host Mark Levin, "I just have to tell you, as a leader, as someone who had to put these coalitions together, it was always hard and we very rarely on domestic policy had any help from the senator from Arizona." Santorum said McCain has been damaging to conservative causes and would be no friend to conservatives in the White House.

McCain's defenders — in the McCainian spirit of chilling political speech — forbid us from criticizing him because he is a war hero. ... We can recognize and honor McCain's indescribably grueling POW experiences without taking the leap of arguing they automatically qualify him as an ideal commander in chief. His qualifications should be evaluated on the merits, not on sentimental appeals to his service. ...

I respectfully reject that McCain's honorable and sacrificial character-building experiences or his self-description as a "straight talker" place his veracity above question. I remember him sidling up to the media by falsely claiming George Bush didn't level with the American people about how long the Iraq war could take. I remember him blaming dirty campaign tricks on Bush in South Carolina in 2000, when investigations revealed there was no evidence Bush was behind it. I remember him joining liberals in slandering the truth-telling Swift Boat veterans as "dishonest and dishonorable." I remember his disingenuous derision of the across-the-board Bush tax cuts as being only for the rich. I witnessed him changing his position on immigration to shore up support in South Carolina, then after that primary arrogantly denying to Sean Hannity that he'd flip-flopped.

People can assess for themselves whether McCain is always straight, but hopefully they'll base their decision on the evidence and not his hero status. I seriously doubt McCain will win the GOP nomination, precisely because of his infidelity to conservative principles. Consider:

He crusades against Guantanamo, favors constitutional rights for terrorists but opposes tough interrogation techniques, was the ringleader of the Gang of 14, which legitimized the filibustering of judicial nominees, and is the godfather of political speech-suppressing and Democrat-favoring campaign-finance reform legislation.

He has displayed contempt for conservative evangelicals, opposed Bush's pro-growth tax cuts for reasons other than he says (spending), has engaged in other class-warfare rhetoric like demonizing oil and drug companies, co-sponsored the abominable McCain-Kennedy illegal immigrant-forgiveness/open-borders/Social Security zapping bill, and even voted for the Specter amendment, which could have conferred consulting rights on Mexico concerning the erection of a southern border fence.

He sold out on global warming, opportunistically opposed drilling in ANWR, favors re-importation of drugs from Canada, and promoted the McCain-Kennedy-Edwards patients bill of rights. Even his pro-life credentials are not as pristine as we're told: He opposes reversal of Roe vs. Wade and sided with anti-political speech zealots in filing an amicus brief against Wisconsin Right to Life.

WOW! Does Dr. Dobson really expect us to vote for this guy when BOTH SIDES agree that he is no conservative, no friend of evangelicals and more closely aligned to the Democratic party on key political issues than the conservative base of the GOP?

Let me start by saying that neither Limbaugh, Sid Vicious Blumethal, nor the GOP nor Dr. Dobson dictate my choices in this matter. This is not the old Soviet Union where voting for the candidate offered by the party was mandatory. My reasons for not supporting McCain, even to the extent of not voting at all, are, besides the above, more visceral. I don’t like the man and I don’t trust him. He is by all accounts the exact opposite of the type of person who should be trusted with the presidency and I cannot in good conscience support him. Haven't we learned our lesson yet from the past eight years of rule by a spoiled, rich kid slacker?

To start with, McCain was a marginal naval officer at best. His record shows that he was a hot headed, hard partying slacker that would probably never have graduated from the academy much less been retained on active duty had it not been for the Viet Nam war and considerable command influence from his admiral father. A lot of bad things happened around him but never hurt him. He was the dangerous type of officer that former enlisted men like myself despise. There were thousands of officers who served competently and honorably. Couldn't the GOP at least offer one of those officers instead of McCain?

After returning from his POW captivity, McCain resumed his partying ways, divorced his disabled wife who had stood by him through his captivity and married into a beer fortune which both bought him his introduction into Arizona political circles and provided the type of money needed to buy national office. There are hundreds of qualified politicians who have managed to keep their privates in their pockets and remain faithful to the wife of their youth. Couldn't the GOP offer one of these men instead of McCain?

In office, McCain has been at best unpredictable and at worst an enemy of the constitution and the conservative movement. How Dr.. Dobson could even intimate support for McCain after McCain Feingold which was a blatant attempt to restrict the First Amendment rights of people like Dobson is simply beyond me. There are dozens of GOP luminaries who respect the constitution, the conservative movement and the rights of evangelicals. Couldn't the GOP offer one of these men instead of McCain?

I have said this before and I will say it again. There comes a time when none of the choices are acceptable and the only honorable thing to do is refuse to participate. That time has come in this Presidential election. They say a picture is worth a thousand words. These two convey exactly how I feel about this year's presidential race. Pity. In times like these you would think a country as great as ours has been in the past could/would do better.

POSTSCRIPT:

It has been pointedly brought to my attention that Dr. Dobson did not say who he would vote for and that it is entirely possible that he may vote Libertarian or even for one of the Democratic candidates. He might not vote for any presidential candidate but still vote for other candidates as I have in the past. For the sake of clarity, here is what Dr. Dobson said earlier in the election cycle:

"I'm deeply disappointed the Republican Party seems poised to select a nominee who did not support a Constitutional amendment to protect the institution of marriage, who voted for embryonic stem cell research to kill nascent human beings, who opposed tax cuts that ended the marriage penalty, and who has little regard for freedom of speech, who organized the Gang of 14 to preserve filibusters, and has a legendary temper and often uses foul and obscene language.

"I am convinced Sen. McCain is not a conservative, and in fact, has gone out of his way to stick his thumb in the eyes of those who are. He has at times sounded more like a member of the other party. McCain actually considered leaving the GOP in 2001, and approached John Kerry about being Kerry's running mate in 2004. McCain also said publicly that Hillary Clinton would make a good president. Given these and many other concerns, a spoonful of sugar does not make the medicine go down. I cannot, and I will not vote for Sen. John McCain, as a matter of conscience.

"But what a sad and melancholy decision this is for me and many other conservatives. Should John McCain capture the nomination as many assume, I believe this general election will offer the worst choices for president in my lifetime. I certainly can't vote for Hillary Clinton or Barack Obama based on their virulently anti-family policy positions. If these are the nominees in November, I simply will not cast a ballot for president for the first time in my life. These decisions are my personal views and do not represent the organization with which I'm affiliated. They do reflect, however, my deeply held convictions about the institution of the family, about moral and spiritual beliefs, and about the welfare of our country." Link to statement HERE:

And this is what Dr. Dobson said recently:

"Let me just say," Dobson said, "that I will certainly vote. I think we have a God-given responsibility to vote, and there are all of the candidates and the issues down the ballot that we have an obligation to weigh in on and let our voices be heard." Link to statement HERE:

I don't want to believe that Dr. Dobson will vote for McCain. However, I do believe that Dr. Dobson has sounded an uncertain trumpet just as he did earlier in the election cycle when his endorsement could have secured the nomination of either Huckabee or Romney. By sitting on the fence, he cleared the path for McCain's nomination. And, by sitting on the fence again, he has again cleared the path for an outcome that nobody in our movement desires.

The Editor