Our robed masters strike again

Yesterday, the Fourth Circuit Court of Appeals, sitting en banc, decided that Virginia’s statutory scheme of regulating and prosecuting “habitual drunkards” is unconstitutionally vague and violates the Eighth Amendment rights of alcoholics. The vote was 8-7.

All eight judges in the majority were nominated by Democratic presidents. One, Roger Gregory, was also nominated by a Republican. George W. Bush renominated Gregory, who wasn’t confirmed while Bill Clinton was president, as a act of good will towards Democrats. Senate Dems responded by serially blocking Bush’s appellate nominees.

Note to Republican presidents: Never extend the olive branch to Democrats.

Of the seven judges in the minority, six were nominated by Republican presidents. The exception was Albert Diaz, a rare Obama appointee who is sensible and non-doctrinaire.

In a blistering dissent, J. Harvie Wilkinson calls the decision “an assault upon the constitutional, democratic, and common law foundations of American civil and criminal law, and most importantly, to the judge’s place within it.” (Emphasis added)

I think he’s right. Our robed masters have struck again, and in stunning fashion.

Ed Whelan provides a good analysis of the case, Manning v. Caldwell, here. But do read Judge Wilkinson’s dissent, as well. Its harsh tone, fully deserved, prompted one of the two authors of the majority opinion to write a whiny concurrence to her own opinion, which the other author and a third judge signed.

A decade ago, the Fourth Circuit was probably the least left-leaning U.S. appellate court. A ruling like the one in Manning v. Caldwell would have been unthinkable then.

We can thank Lindsey Graham for the fact that the Fourth Circuit is now liberal. For no good reason, he blocked the nomination of Jim Haynes, a solid, well-qualified conservative. (George Bush also bears some responsibility because he renominated Gregory and didn’t move aggressively enough to remedy the damage Lindsey Graham caused).

For the final words, I’ll turn back to Judge Wilkinson:

This decision is an affront to our legal traditions. It leaves states less able to enact prophylactic civil laws and sanctions in order to forestall more serious crimes. It usurps the American Constitution in order to cement the states as subordinate entities in our federal structure, a result profoundly at odds with the vibrant federalism that was intended to define not only our young but our maturing Republic.

What’s more, the majority adopts the Eighth Amendment as its amendment du jour, pushing it into a supervisory role over substantive criminal law and into territory heretofore inhabited by other constitutional provisions.

Finally, the majority has, without even bothering to follow this court’s basic procedures, adopted a novel theory of civil vagueness, one that calls into question countless expressions in numerous civil laws. The effects of this position will long be felt, as all manner of words and phrases will be impugned for their alleged imprecision.

It is not often that a decision operates to visit structural and institutional damage in so many respects. Any one of these flaws would be serious. Altogether, they are more than severe. I only wish that my colleagues, in their rush to condemn Virginia for a policy they don’t prefer, stopped to consider that perhaps this law has endured for the benefit of the many victims of alcohol-fueled violence; victims who cannot easily make their voices heard, and who are all too often neglected in decisions like the one reached here.

(Emphasis added)

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