Thursday, September 15, 2005

The Problem With The New Pledge Ruling

As I've listened to the visceral screaming --- from all sides --- on yesterday's ruling on the Pledge of Allegiance, I can't help but be fascinated.

It's an interesting case, personally. I had a case in front of Judge Lawrence Karlton. Interesting fellow. Generally cordial, even though I knew he wasn't ideologically predisposed towards my position. Very demanding. Once made me feel sorry for an opposing counsel. Not easy to do when opposing counsel is a union lawyer.

But in reading his decision, it's also quite clear that --- all due respect (Judge Karlton once stopped me after saying this, noting that it was unnecessary and, besides, he knew I was next going to tell him why he was wrong) --- the court in Sacramento got this one wrong.

Without addressing the merits, the court suggested that it was bound by the Ninth Circuit's prior decision in the Newdow case. However, the Supreme Court had reversed Newdow, stating that he lacked "standing" to pursue his non-custodial daughter's claim. Under that circumstance, the panel's earlier decision became a legal nullity, authority for precisely nothing. The district court therefore clearly erred by treating it as controlling authority.

It will be interesting to see whether the Ninth Circuit reverses on this rather elementary ground, or addresses the merits. Having already improperly addressed the merits of Mr. Newdow's noxious argument without insuring that the proper forms were observed, it would seem imprudent for the Court to do so.

3 comments:

Shaun Kenney said...

That's pretty much what I was thinking when reading the new ruling. In the 9th Circuit Court didn't have standing, then how did it set precedent?

too conservative said...

Jim,
I don't know about you, but I get so heated after rulings like this.

It just dissapoints me what is going in America, regarding these judges, and people like Newdow. He goes out of his way, to try and piss people off.

It's disgusting.

I hope when Roberts is confirmed, he refuses to hear the case.

tschy said...

Stop the presses....there are conservative attorney's. Thank God!