It's . . . Agee

President Bush has nominated Virginia Supreme Court Justice G. Steven Agee for the seat vacated by Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit, following the failed nomination of Richmond lawyer Duncan Getchell. Unlike Getchell, Agee is on the list to which both Senators Webb and Warner agreed, of names for the position.

Justice Agee is from Salem, and he was a Republican legislator in the General Assembly and a lawyer with the Osterhoudt firm before he became a judge. Per Westlaw, Justice Agee argued a few cases before the Fourth Circuit, but his cases included Patterson v. Shumate, which he argued before the U.S. Supreme Court (and not on the side of Mr. Shumate).

Despite the increasing proximity to lame duck status for President Bush and his nominees, the Senate ought to move ahead with Agee's nomination, particularly since it will probably give Senator Webb's buddy, Governor Kaine, a chance to appoint another Democrat to the Virginia Supreme Court.

The Richmond paper has this story, noting that Webb and Warner both gave statements of approval. BLT has this post. Confirm Them has this post, with a few comments, including one that says: "Now nominate Lemons too, George. Cripes almighty. Unreal. Of course, he finally caves to the list when it'll do no good. As I've said many times before, Nixon, Truman & Harding just have to be shaking their heads that they can't play poker with this Administration."

The Roanoke paper has this lame article, which concludes inanely "Widener said he will step down once his successor is confirmed." Such may have been Judge Widener's intention, before his death in 2007.

Agee joins Robert Conrad, Steve Matthews, and Rod Rosenstein, the other three lawyers with pending nominations to the Fourth Circuit.

Wednesday with Judge Turk

I went to Roanoke today for a conference with Judge Turk, he was in good humor and there were no great issues at stake, and so it was a good day.

And, while I was there, I drove by that new museum, for the first time. What a spectacle it is.

Another book

I've been reading Lightning Man: The Accursed Life of Samuel F. B. Morse, which is full of interesting stuff.

Morse was a flighty, depressed and most often broke artist, deeply affected by religion, patriotism, and anti-European and anti-Catholic sentiment, who had little to do with his children. That's from the first third of the book.

He went to Naples, Italy, and complained about some disgusting cake the natives ate there, with tomatoes and little fishes and black pepper on top, which the author observes may have been the first American account in writing of anchovy pizza.

The idea of the electric telegraph occurred to him while crossing the Atlantic in 1832 with, among others, the American ambassador to France, Virginia's own William C. Rives, the brother of Alexander Rives, who (39 years later) became the judge of the U.S. District Court for the Western District of Virginia.

Trying to channel the spirit of an old Big Stone Gap lawyer

I've got a case where the dude I need to call is Joshua Fry Bullitt, Jr.

Unfortunately, he died in 1933.

I thought his story was pretty interesting, but as you can see, some others disagreed and tried to whack that article about him.

If you didn't know it, counting Bullitt there are 13 past presidents of The Virginia Bar Association on Wikipedia, including 9 former Virginia Supreme Court justices, 5 former members of the House of Delegates, 4 former members of the Senate of Virginia, 3 former members of the U.S. House of Representatives, 2 former members of the Confederate Congress, 1 former U.S. Senator, 1 former U.S. Attorney - and Bullitt.

The Larry Sabato of Pennsylvania

Up in Lancaster County, where I went to high school and worked one summer in a law firm, there is Franklin & Marshall College, which has its own Center for Politics and Public Affairs, headed by this guy. Instead of being called Larry, he is Terry - Terry Madonna, can that be his name, really?

I'd say he will be busy for the next two months until people get bored of talking about the primary in that particular Commonwealth, set for April 22.

More books read in 2008

1. The Colonel: The Life and Legend of Robert R. McCormick, 1880-1955, by Richard Norton Smith.

2. Mornings on Horseback: The Story of an Extraordinary Family, a Vanished Way of Life and the Unique Child Who Became Theodore Roosevelt, by David McCullough.

These are both interesting and fun reads, in this election year. McCormick was the oddball publisher of the Chicago Tribune, who never quite overcame his peculiar family life, while Roosevelt was just about as odd and equally affected by his family.

Also, I read from cover to cover (but for the poetry, AND including the sideways cartoons) the latest edition of Waldo's Own Virginia Quarterly Review, some 200 pages or more. Does that count on the 50-book challenge, I wonder?

I also read Victory Square, by Olen Steinhauer, which was a bit of a mistake, since it was the fifth in a series of five, not having read 1, 2, 3, and 4.

On the need for weaker medicine

I've been mulling over the 53 pages of the Virginia Supreme Court's decision in Jaynes v. Com.

There were two opinions. The majority opinion written by Justice Agee concluded that the spammer's conviction should be affirmed, for reasons including his lack of standing to complain about the potential overbreadth of the criminal statute. The dissent by Senior Justice Lacy concluded not only that the spammer could assert the First Amendment rights of others, but also that the statute was overbroad and unconstitutional as applied to those rights of others.

I think that the dissent makes some good points about standing, and that the majority's commercial/non-commercial distinction seems somewhat poorly-reasoned. Even so, the taboo against representational standing is much stronger across the board in Virginia jurisprudence than in federal court, and the majority's conclusion strikes me as consistent with that approach.

Moreover, the merits of the case strike me as indistinguishable from the Hicks case, where the U.S. Supreme Court held that "the Virginia Supreme Court should not have used the 'strong medicine' of overbreadth to invalidate the entire RRHA trespass policy." The dissent in the spam case would overprescribe the strong medicine once again.

Justice Lacy tries to wrap the flag around her First Amendment argument, pointing out that the Internet needs to be wide open because people use it for the classic kinds of political speech. Yeah, but spam strangles that speech. Half the unsolicited political e-mails I get are trapped by the spam filters, with the Viagra ads and the Nigerian investment offers.

Another LeClairRyan merger

Here it says that LeClairRyan is merging with Wright Robinson Osthimer & Tatum.

Just in case you were wondering if that sort of thing was still going on.

What did the ABA say about those other Fourth Circuit nominees?

It says here that the ABA gave the well-qualified rating to Fourth Circuit nominees Robert Conrad and Rod Rosenstein, but Steve Matthews got the dreaded "Q/NQ," as in there was a split vote, and the minority thought the rating should be "not qualified."

On Boucher, Superdelegate

This commentary by Paul Goldman reports that somebody has been complaining that Rick Boucher ought to vote for Clinton, since she carried the Ninth District.

Sure, as soon as Jennifer McClellan and the rest of the Virginia supers where Obama carried the vote change their endorsements - which they say they will not.

Is this one for Bill O'Reilly, Michael Savage, or Lou Dobbs?

The Bristol paper reports here that an illegal immigrant from Mexico was sentenced by Judge Lowe of the Washington County Circuit Court to 26 life terms in prison, one for each month that he molested a young girl.

The article does not say which Southwest Virginia employer or employers had been paying him, right here in Washington County.

Also today came published reports such as this one, indicating "Immigrants in California, including those without documents, are 'far less likely' than the native-born to end up incarcerated for crimes, according to a study released Monday by the Public Policy Institute of California."

That report is available here.

One for the Chamber of Commerce

Over the weekend, the Bristol did a front page story on the continued use of outhouses in Southwest Virginia.

I remember the outhouses that were on the farms where my dad grew up and where my mom grew up. The latter was referred to as Grandpa Conrad's "office."

Also, I recall there was one at the old band director's cabin, wherever that was, complete with instructions in the form of a bit of verse.

Matthews, you jerk

Last night, Chris Matthews slipped a cog and blistered some mild-mannered Texan standing in for the Obama campaign about what legislation has Obama gotten passed, ever in his life.

One answer is that Obama, having been a legislator for several years longer than has Ms. Clinton, got his fair share of bills passed in the Illinois state legislature, during the period when he was in the majority party and during which time he enjoyed a favorable relationship with the Senate leader, Emil Jones - or so said that Obama book by David Mendell I read earlier in the month.

As it says here on the Waldo-styled GovTrack website, "Hillary Clinton has sponsored 354 bills since Jan 22, 2001, of which 307 haven't made it out of committee (Extremely Poor) and 2 were successfully enacted (Average, relative to peers)."

Of course, seniority and majority have more to do with the outcome of the "Dance of Legislation" than anything else, and so it is unsurprising that so few bills sponsored by Ms. Clinton have passed.

On counting to 2

In U.S. v. Gardner, where the federal statute required 2 felony drug convictions for a life sentence, Chief Judge Jones counted only one, concluding among other things that the defendant's fake dope conviction did not count.

Don Shula's first coaching gig - 50 years ago in Charlottesville

Doug Doughty has this fun piece about the 50th anniversary of the employment of Don Shula as an assistant football coach at the University of Virginia in 1958, ten years before he went to the Super Bowl as coach of the Colts and fifteen years before his Miami team finished its undefeated season, about which team I have written here and elsewhere.

Should Virginia lawyers be subject to random audits of trust accounts?

This article in the Norfolk paper says that this year's VSB President Howard W. Martin, Jr., favors random audits of lawyer trust accounts in Virginia, as has been done in North Carolina for 23 years.

I'm in favor, on two conditions: (1) no dues increase, and (2) no discrimination against solos and very small firm lawyers (meaning firms smaller even than ours).

Lack of due diligence?

It has been reported here and elsewhere that Judge Kelley of the E.D. Va. is going to resign because: (1) federal judges spend much of their time dealing with icky criminal cases, and (2) partners in D.C. law firms get more money.

These obscure facts must have come as shocking revelations, whenever he discovered them during his brief tenure on the bench. I'm thinking Chief Justice Roberts should not have sent Kelley that copy of his year-end report.

More on the Exam Dream

Previously, I've written about The Exam Dream, my own personal version of which most commonly involves Lynda Butler, who at different points in her life taught first calculus and later the Rule Against Perpetuities, and such other and further details as Old Cabell Hall and no bluebook.

Now, she is the acting Dean of the Law School, as the result of the musical chairs since Gene Nichol quit. Whether this will have an effect on my subconscious, only time can tell.

The funny thing is, Professor Butler was not especially cruel or unusual way back when; in my last dealings with her, she liked my paper on impact fees, even though subsequent history has shown my "intermediate scrutiny" thesis based on Nollan v. California Coastal Commission to be mostly wrong, after the Supreme Court's 2005 decision in Lingle v. Chevron.

A few I missed

Overlawyered had this post on the Virginia law of sangria, now subject to an amendment as part of a broader fix of the ABC laws (and which our own Del. Johnson voted against) and this post about a lawsuit against a golf course in Virginia Beach, brought by a passing driver struck by an errant shot - plus a link to this Novak story that says Obama will pick Edwards as AG.

This Professor Berman post discusses an article about how the brunt of the crack cocaine resentencings will fall on Virginia. Related to that topic, the W.D. Va. has a new set of guidelines for handing such matters.

Pleaded v. pled

Last month, David Lat had this post, on the topic of which is the more correct usage, pleaded vs. pled, as the past tense of the verb, "to plead."

On the state court side, Westlaw gives the impression that Chief Justice Hassell, Justice Kinser, Justice Lemons, Chief Judge Felton, Judge Kelsey, Judge Humphreys, Judge McClanahan, and Senior Judge Coleman prefer "pled," but Judge Elder has more frequently used "pleaded," as did former Chief Justice Carrico.

The U.S. Supreme Court prefers "pleaded." Brian Garner says "pleaded" is more common.

The other day I got an opinion from the W.D. Va. that used both, and determined that the same judge has used both in 24 different opinions, which leads me to conclude that he would say the point is pointless - and not the first from me.