February 27, 2013

"You don't need a peg leg or an eye patch"

Charlene recommends this opinion, by her favorite federal judge I love that last paragraph:

KOZINSKI, Chief Judge:

You don't need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Plaintiffs-Appellants (collectively, "Cetacean") are Japanese researchers who hunt whales in the Southern Ocean. The United States, Japan and many other nations are signatories to the International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74, which authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. Cetacean has such a permit from Japan. Nonetheless, it has been hounded on the high seas for years by a group calling itself Sea Shepherd Conservation Society and its eccentric founder, Paul Watson (collectively "Sea Shepherd").

Sea Shepherd's tactics include all of those listed in the previous paragraph. Cetacean sued under the Alien Tort Statute, 28 U.S.C. § 1350, for injunctive and declaratory relief. The statute provides a cause of action for "a tort . . . committed in violation of the law of nations or a treaty of the United States." 28 page 3 U.S.C. § 1350. Cetacean argues that Sea Shepherd's acts amount to piracy and violate international agreements regulating conduct on the high seas. The district court denied Cetacean's request for a preliminary injunction and dismissed its piracy claims..



...The district court held that Cetacean's hands are unclean because, "[i]n flouting the Australian injunction, the whalers demonstrate their disrespect for a judgment of a domestic court." Because neither the United States nor Japan recognizes Australia's jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order. Moreover, the unclean hands doctrine requires that the plaintiff have "dirtied [his hands] in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant." Republic Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 349 (9th Cir. 1963). Cetacean has done nothing to acquire the rights to safe navigation and protection from pirate attacks; they flow automatically from 
page 15
customary international law and treaties. Nor is there anything remotely inequitable in seeking to navigate the sea lanes without interference from pirates.
* * *
The district court's orders denying Cetacean's preliminary injunction and dismissing its piracy claims are REVERSED. The preliminary injunction we issued on December 17, 2012, Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 702 F.3d 573 (9th Cir. 2012), will remain in effect until further order of this court. The district judge's numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington. The panel retains jurisdiction over any further appeals or writs involving this case.
Posted by John Weidner at 7:18 AM

February 22, 2013

"What is the true state of our union?"

Charlene recommends this, Sarah Palin, on the State of the Union address, #SOTUGottaBKiddingMe | Facebook:

...We heard the same recycled rhetoric, and we heard his Orwellian declaration that the cornucopia of new federal programs he proposed, as well as his intention to eradicate world poverty, wouldn’t “increase our deficit by a single dime.”  

Of course, he glossed over the inconvenient facts. He boasted about job creation, but didn’t mention that real unemployment is higher today than when he took office. He touted all those still undiscovered “clean energy” jobs without mentioning the tens of thousands of real jobs the Keystone Pipeline will create if he would simply allow it to be built. He sang of new energy development, but didn’t mention that new offshore leases for oil and natural gas drilling have declined a decimating 61% under his administration.  

He talked about “helping” to build “a thriving middle class,” but didn’t address how the middle class is actually faring under his economic stewardship. This is important – his deception must be addressed: under his leadership, middle class families have seen the average price per gallon of gas increase 96%, the average cost of family health care premiums rise 24%, the annual cost per household from federal regulations rise to over $15,000, and real median household income decline $4,520. If this is what happens when he “helps” the middle class, then please, Mr. President, we implore you to stop “helping” us....


...What is the true state of our union? Though this may sound harsh, I’ll speak the truth here. We are a country going bankrupt to fund a bloated, distant, and often corrupt federal government led by venal politicians more concerned with paying off their campaign cronies and consolidating their own power than in preserving the constitutional republic that so many have fought and died for (including our brave men and women in uniform who were barely mentioned last night)...

I sort of post this for old time's sake. I've been mostly disappointed with Sarah since the 2008 election. She grew from city councilwoman to mayor to governor like a natural. But she doesn't seem to have grown into presidential timber.

Posted by John Weidner at 8:17 AM | Comments (4)

February 17, 2013

"Pray for me, that I may not flee for fear of the wolves."

From the Catholic Herald, the British Catholic paper that's on the side of the good guys, Ten reasons to give thanks for Pope Benedict XVI :

The pontificate of Benedict XVI was full of surprises and on Monday he sprang the greatest one of all. His abdication - the first for almost 600 years - caught even the Vatican unawares. As we struggle to absorb the news, here are 10 reasons to give thanks for his papacy.

His steadfastness: In his inaugural homily Pope Benedict said: "Pray for me, that I may not flee for fear of the wolves." In 2010 there was a concerted media effort to force his resignation under the cover of the clerical abuse crisis. He held firm and it is only now, in a rare tranquil moment of his papacy, that he has chosen to resign.

His crystal-clear teaching: Even in his abdication Pope Benedict was teaching us. His lesson - that none of us should cling to power - was conveyed with characteristic force and clarity. He has left us with a rich body of teaching, contained not only within his homilies, encyclical and trilogy of books on Jesus, but also in his actions.

His reform of the liturgy: Pope Benedict's decision to lift restrictions on the older form of the Mass was historic. As well as rescuing the Extraordinary Form from oblivion, he has renewed the celebration of the Ordinary Form of the Mass in our parishes through the new English translation.

His programme of purification: From the Legionaries of Christ to Vatican finances, Benedict XVI has attempted to purify the Church of corruption. This concerted effort has barely registered in the media, but the Church will benefit from it for years to come....

There are a lot of other such things one could say... I've said a lot of them myself. We will never see a man like him again. He's probably the last important figure of European high culture. Europe is dying, but the Church is ever born anew.

Pope Benedict XVI
Posted by John Weidner at 6:14 PM

February 3, 2013

Sunday thought, a day late...

Father Dwight, Materialism, Manicheanism and the Matrix:

(This IS Sunday, to be sure, but I was writing this a day late a few weeks ago. That's my life lately. Running to catch up, never succeeding.)

...The paradox is that as our popular culture has become increasingly sensual, opulent and materialistic, our religion has become more barren, dumbed down and bland. This tendency for everything in church to be big and bland is not just that we’re trying to do religion on the cheap. We’re doing it on the cheap because there is a creeping Manicheanism in the church.

Manicheanism is the belief that the physical world is sinful. Our bodies are dirty and sinful. Sex is always dirty and sinful. Wealth is dirty and sinful. The material world is dirty and sinful. Manichee taught that we must rise above the physical and become spiritual. Underlying much of American Catholicism is this same belief–a kind of strange, below the radar Puritanism. We’re guilty of a subtle and weird form of hypocrisy. We load up our lives with as many rich and lush experiences as possible. Our homes are palaces. Our vacations are luxurious outlays of self indulgence. We spoil our kids, we spoil ourselves. The average suburban American middle class person eats and lives at a level of luxury and opulence a Roman emperor would be impressed with, but  when it comes to religion we do it on the cheap.

I don’t think this is simply because we are ungenerous, but because we really do think that somehow our religion is the  place where we “do austerity” for an hour every week because we have this idea that we should all be poor Franciscans, and that the Catholic religion is otherworldly and poor and that being Catholic means we should be against all that expensive stuff and against pleasure and so the church should be like a bare auditorium–just a place to meet in before we go out into the world.

So, on the one hand, we live like princes, but expect the Prince of Peace to live like a pauper. We distrust the physical aspect of our religion, and this is evidenced not just by the cheap, barren architecture, but also by the sentimental, tacky music, the polyester vestments, the fake electric candles and the felt banners with cliched slogans....

The Church should be sexy. Not in the sense of illicit pleasures, but in the way strong, handsome and lively people spread an aura of warmth and charm and delight. We are exceedingly lucky that our parish has none of those tacky things listed in the last paragraph. Still, there is a sense that life's really exciting and fizzy moments will happen elsewhere.

(Here's a shot of our church, St Dominic's, San Francisco. The Prince of Peace is not treated like a pauper here, but nothing like this could be built today. This is the main entrance, with the choir loft above.) St Dominic's Church, San Francisco


WORD NOTE: I think it should be Manichæism, not Manicheanism...

Posted by John Weidner at 6:43 PM | Comments (3)

February 2, 2013

Sometimes I think we should chisel Teddy off of Mt Rushmore...

This is a great piece I meant to blog long ago. From National Affairs, The Saviors of the Constitution:

...The truth, however, is more kind to the Tea Party. Hardly a symptom of hopeless confusion, the Tea Party's willingness to use the means of democracy to address the problem of democracy and its relationship to the Constitution is an important first step toward recovering that document from the Progressive opprobrium beneath which it has labored for more than a century. For as the Tea Party senses, Progressivism acquired for itself an unfair advantage when it linked the notion of constitutional legitimacy to the cause of unlimited government powers in the name of democracy.

There is another view of the Constitution -- a view closer to that of the founders, that arose in defense of the Constitution against the Progressives, and that finds no contradiction in the notion of a constitutionally limited or constrained democracy. It was articulated with great subtlety and depth a century before the Tea Party, in a debate that prefigured many of the issues that now confront our country.

The year 2012 marks the 100th anniversary of the American presidential election in which this very conflict of constitutional visions played a central role. And by revisiting the issues of the election of 1912 -- in particular the contest for the Republican presidential nomination between William Howard Taft and Theodore Roosevelt -- we may come to appreciate the coherence of a popular effort to restore limits on the popular will....


...Nothing illustrates Roosevelt's radical constitutional program better than his proposal for the recall of judicial decisions. Roosevelt was the foremost national champion of that idea, and he devoted almost a third of the "Charter" speech to it. When a judge decides "what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong," Roosevelt maintained. This form of recall -- applied in his initial formulation to the review of state supreme-court decisions -- would allow the people at large to override the "monstrous misconstruction of the Constitution into an instrument for the perpetuation of social and industrial wrong and for the oppression of the weak and helpless." Since the "power to interpret is the power to establish," Roosevelt argued, "if the people are not to be allowed finally to interpret the fundamental law, ours is not a popular government."

Roosevelt was fully aware that the power to recall judicial decisions in fact amounted to the power of a majority to change the fundamental meaning of the Constitution, circumventing the cumbersome amending procedures of Article V. "Whether [recall of decisions] is called a referendum to the people or whether it is called a shorter and simpler way of amending the Constitution, to my mind matters nothing," Roosevelt explained. "The essential thing is to get the power to the people." The reason, he added, was that the "people themselves must be the ultimate makers of their own Constitution."...

I'm sure I don't have to spell out what the problems are with that idea.

Posted by John Weidner at 4:12 PM