f/k/a archives . . . real opinions & real haiku

October 22, 2008

big league battles: guns and baseballs

Filed under: Haiku or Senryu,lawyer news or ethics — Tags: — David Giacalone @ 11:17 am

There are two good diversions available today for folks who would like to give the old Sicilian Chin-flick to either or both of the Presidential Campaigns: 1) The recent attacks from the political and judicial Right on the Supreme Court’s gun control decision in D.C. v. Heller — especially as it focuses on the “judicial activism” of Justice Antonin Scalia; and, for those who would rather avoid all political agita, 2) The opening of the World Series tonight in Tampa Bay, Florida.

October revival
all hands lift
to the foul ball

two outs in the ninth–
the reliever bangs the ball
against his cup

…………………………. by Jim Kacian
“October revival” – Piedmont Lit. Review (Circa 1992); Baseball Haiku (2007)

.. Justice Antonin Scalia.. (photo: Peter Smith/Boston Herald)

Who Are You Calling an Activist? Yesterday’s NYT article “Ruling on Guns Elicits Rebuke from the Right” (New York Times, October 21, 2008) has been getting a lot of attention.  In it, Adam Liptak says:

“Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.”

As Prof. Steven Schwinn at Constitutional Law Prof Blog summarizes in “Heller critiqued from the Right“:

“Adam Liptak (NYT) reported today that Judge J. Harvie Wilkinson III (4th Circuit) and Judge Richard Posner (7th Circuit) criticized D.C. v. Heller, last term’s gun-rights case, for its methodology.  Particularly, Judge Wilkinson wrote in a Virginia Law Review article, and Judge Posner wrote in The New Republic, that the Court’s methodology had some of the same problems as the Court’s methodology in Roe v. Wade.

“The articles aren’t new, and I suspect many of us have been using them and Heller to illustrate and discuss originalism in our classes.  (Heller, of course, is a wonderful case study, because both majority and dissent claim to adopt a form of originalism, but they come out very differently.)  But Liptak’s article, which clearly and concisely sets out the arguments and explores (even if only briefly) the politics of aligning Heller with Roe, gives us yet another way to share these issues with our students.”

.. At the often-thoughtful, mostly right-leaning Volokh Conspiracy, Prof. David Bernstein disagrees with Judge Wilkinson’s comparison of Roe and Heller, saying “this is a terrible analogy, and one that would get a poor grade from me if made on a constitutional law exam.”  And, although VC‘s Jonathan Adler is not convinced by Judge Wilkinson’s complaints against Heller, he is also not at all surprised, because “Judge Wilkinson has always been uncomfortable invalidating legislative acts on constitutional grounds.”

For more, see “Conservatives against Heller” at Reason.com (Oct. 21, 2008); “Another judge rips Scalia’s Heller opinion,” from Scott Greenfield” at Simple Justice (Oct. 22, 2008); and “Is Heller like Roe v. Wade,” at Feminist Law Profs.

The skeptics here at f/k/a have always felt that Activism is in the Gut of the Beholder (or, as Prof. Yabut put it a few years ago, “it all depends whose Fox is being whored.”) Back in 2004, Dahlia Lithwick got it right in a guest column in the New York Times, headlined “Activist, Schmactivist” (August 15, 2004):

We can disagree about outcomes, but we have, at least as a matter of political language, internalized the fiction that liberal judges “make” law, while conservative judges “interpret” it.

A modest proposal, then: Let’s invent a new term right here, today, for judges or judicial nominees on the right, who claim to be merely “interpreting” the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by “liberal activist judges.” And while I am open to better suggestions, here’s a tentative offering: “Re-activist judges.”

That’s about all punditry we’re gonna make today (since we have to run out to see our primary medical provider), beyond noting that we’ve been less than impressed over the years with the antics of our paisan Anonin Scalia (see here and there).

.. Phillies vs. Rays: The (so-called) World Series starts tonight, with the Philadelphia Phillies visiting the Tampa Bay Rays. The f/k/a Gang is even more indifferent than usual about the outcome of this year’s Fall Classic.  Nonetheless, the World Series is a great excuse to remind you to check out the f/k/a Baseball Haiku page, our many excerpts from last year’s haiku classic volume Baseball Haiku (W.W. Norton Press, 2007), and our coverage of the Chautauqua Institution’s Baseball Haiku Roundtable this past June.

As we’ve said before, you don’t have to like baseball or haiku to like baseball haiku. Here are a few tiny seasonal poems to get you in the baseball spirit:

first red leaves
i swing late
on a change-up

two crows
settle on the foul pole…
100th loss

“red hots!”
for an instant i’m ten
father’s still alive

bases loaded
no one out…..
the pitcher
blows a bubble

. . . . . . . . . . . . by Ed Markowski

“bases loaded” – Haiku Sun (Issue X, Jan. 2004)

and see our collection from Ed: “American Sports . . . American Haiku” (June 2008; cover)

third strike
the designated hitter
blows on his hands

tied in the ninth
pitcher and batter
cross themselves

…………. by dagosan

p.s. Did you say you really do need your Presidential Politics Fix today?  Head over to the new ABAJournal (American Bar Association, November 2008), where the cover story tells you their best guesses at “The Lawyers Who May Run America” in either a McCain or an Obama Administration.

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