Kansas' Same Day Reversal

When I was an appellate clerk on the 8th Circuit, we decided the case of United States v. Bruguier, 703 F.3d 393 (8th Cir. 2012). The case involved the interpretation of a sexual assault statute applicable to Indian reservations, specifically, a provision that prohibited a person from "knowingly"

(2) engag[ing] in a sexual act with another person if that other person is — 

(A) incapable of apprising the nature of the conduct; or

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act....

The question was whether the "knowingly" requirement only applied to "engaging in a sexual act" (one had to know one was engaging in such an act) or also applied to the subsection (one had to know that the victim was incapable of consent). By a 2-1 vote, the court decided that the knowledge requirement only applied to the former, and therefore upheld Bruguier's conviction.

There's nothing remarkable about that -- except that on the same day, a different 8th Circuit panel considered the same issue and came to the exact opposite conclusion in United States v. Rouillard, 701 F.3d 861 (8th Cir. 2012). Two opinions, released on the same day, with contradictory legal rulings. It was, to say the least, unusual.

But it wasn't an accident. Under normal circumstances, a prior panel decision binds a later one. But once the judges become alerted that two different panels were considering an identical challenge at the same time (and coming to opposite conclusions), it seemed silly to determine the law based on who managed to rush their opinion out first. Instead, we released the opinions on the same day, with the understanding that the case would go en banc and be decided by the whole court.  Which we did -- and in a 6-5 vote (could it be any closer?), the court decided that knowingly applied to both sections of the law -- one could only be convicted of sexual assault under this section if you knew that you committing a sexual act and knew that the person was incapable of consent.

I didn't think that story could be topped. But the Kansas Supreme Court just outdid us -- releasing a constitutional ruling, and then overturning that ruling in the same day. The cases involved a Kansas statute which requires certain felons to register with the state -- including those who were convicted of crimes before the registration act was passed. The question was whether this was an ex post facto law. The first decision said yes. And then that decision was subsequently overruled the same day. Both rulings were by a 4-3 vote.

This bizarre circumstance occurred because of a vacancy on the Kansas Supreme Court. The first case was briefed and argued while the seat remained vacant, and the Court had tapped a district court judge to sit "by designation" to fill the slot. He was in the majority that determined that the registration law was unconstitutional. But the second case was argued after the vacancy had been filled, and that judge switched sides -- reversing the ruling that was handed down that day.

Putting aside whatever one thinks about the proper application of stare decisis in such a case (let alone the right legal outcome), this has to rank as one the more bizarre legal turns of events I've ever come across. At least our court's mutually-contradictory opinions were released by design. This, by contrast, gives off the feeling of complete arbitrariness.

Also in Feeling Good

Anti-abortion maniac Phil Kline lost again in Kansas. In a Kansas Republican primary, no less. Feddie's last minute appeal is not enough, given the Kansas GOP's fractured state between its moderates and its, well, its crazy people.

Chalk another point up for the moderate wing!

The Dangers of Thralldom

Covering the upcoming Virginia State House and Senate races, the Washington Post notes the importance of the northern Virginia suburban districts to whether or not the Republicans can maintain control of the legislature. The Republican incumbents are battling against the increased blue tint of their districts, as well as an overall purpling of the state at large. One problem these candidates have faced is that even more moderate voters know that, even if these particular Republicans are talking (even walking) the centrist talk, the Republican Party as a whole is still hanging out on the right wing of things, and that's a major turn-off.

The perils of being a moderate Republican are nothing new. But in certain states, like Virginia, there is another element in play that poses a particular danger to the Republican Party. Because the state has such a strong conservative tradition, the right-most flank of the Republican Party has entrenched itself as the power-brokers. They see themselves as the rightful arbiters of the direction and position of the Party. Even as the state is purpling, it's not a position they'll give up easily, and as a result it locks the GOP into a conservative posture that is no longer electorally tenable.

The sacrificial quality of the activist-conservative branch of the Virginia GOP already demonstrated itself in local primaries, driving out incumbents who weren't seen as sufficiently devoted to the cause and putting formerly safe districts into play.

"It's scary for us," said state Sen. Martin E. Williams (R-Newport News), who lost a primary battle this year to a conservative Republican and whose seat, as a result, is at risk of turning over to Democrats. "Certainly the perception in the public's eye is that we've narrowed our base so much that we can't claim a majority. We've got to appeal to a broader group of people than just people who will sign a no-tax pledge or be pro-life."

Elsewhere in Virginia, Republican leaders have been scrambling to handle two rogue lawmakers in their caucus who are accusing the state Democrats of ties to terrorism because of their relationship with some local Muslim community organizations. It's a low political slam, and one most observers think will backfire, but also the type of attack that resonates with the die-hards. The folks who come out to vote in Republican primaries eat that stuff up, but the independent voters who are becoming more and more important in Virginia read that sort of thing and just recoil. Another example is the machinations of the state Republican Central Committee to give conservative candidate Jim Gilmore the edge in the race to succeed retiring Senator John Warner (R), over the more moderate, but far more electable Rep. Tom Davis. This isn't the best example, because the Democratic candidate, Mark Warner would likely have thrashed both, but Davis at least could have made a solid race out of it. With Gilmore as the nominee, the seat is pretty much in the bag for the Democrats.

Virginia is not the only state where this dynamic is playing out. Out in Kansas, the Republican Party has been mired in a high profile civil war that has sent moderates fleeing to the Democrats en masse. Here, too, the problem was that the state Party was controlled by forces too conservative for its own constituents, much less the state at large. The state board of education had been buffeted by an intra-party spat over whether evolution should be taught in public schools, a battle won by pro-science forces in August of 2006. Meanwhile, a series of high profile defections, capped by former state party chairman Mark Parkinson, set the stage for a banner year for Democrats. Parkinson joined the ticket of incumbent Democratic Governor Kathleen Sebelius, who cruised to re-election and positioned herself as a possible 2008 Vice Presidential contender. Fellow turncoat Paul Morrison knocked off Republican Attorney General Phill Kline, who had gained notoriety by subpoenaing medical records of abortion clinic patients, ostensibly to check for evidence of child abuse. And, in one of the top upsets of the year, Democratic nominee Nancy Boyda bested 5-term Rep. Jim Ryun.

In Arizona, Republicans had to essentially abandon the erst-while competitive 8th District last cycle because local voters bucked the national party's preferred candidate to nominate Randy Graf, who was far too conservative to have a chance in the district. Gabrielle Giffords won the race in a landslide. In Colorado in 2002, Republican Bob Beauprez won control of the 7th District by less than 400 votes. Yet, when Beauprez left the seat open to run for governor in 2006, the GOP nominated uber-conservative Rick O'Donnell, who had previously advocated abolishing social security. Democrats won the seat back by nearly 25,000 votes.

In both these states, these strategic lapses came amid general Democratic progress. In Arizona, Democrats also knocked off incumbent J.D. Hayworth in the 5th District there, and are currently eying Rick Renzi's 1st District seat as particularly vulnerable. In Colorado, Democrats have become the dominant political force, capturing the Governor's mansion, both houses of the state legislature, and a Senate seat.

In all of these states, the Republican Party is tightly under the control of its most conservative branch, a wing that simply can no longer compete in general elections, but can still prevent any internal reform to reposition the Party in a more palatable light to their changing electorate. This is a very dangerous position for the Republicans to be in. It gives Democrats free reign to take over huge swaths of the American middle with virtually no substantive opposition. And as these voters continue to trend Democratic, the remaining Republican office-holders will list evermore right-ward, pushing more people away and giving Democrats an even greater advantage.

Brownback is Out

The conservative Kansas Senator is dropping his Presidential bid Friday, CNN reports.

This puts a whole new spin on his announcement of a resolution apologizing for slavery and Jim Crow. Possibly, it was a last ditch effort to give his campaign some momentum. But if that's the case, then I'd have expected him to wait at least a few more days to see if it caught. As it is, it looks he'll be pursuing the resolution even outside the context of a Presidential campaign, which in some ways is more impressive. Appealing to the Black vote might matter in a national election, but I hardly think its a big concern in a Kansas gubernatorial race (Brownback is targeting the governor's mansion in 2010).