State Power With A Friendly Face

And Also: BTC News outdoes itself with an extended piece on the fact that "The Bush administration and Republicans in general have made national security their defining theme since 911, but as is so often the case, the record belies the rhetoric." And, as reported by Mike Malloy and others, military use of white phosphorus as an "as an anti-personnel munition" is very troubling. When will a pic like this show up?

First Off: A few random legal related things. A good account of the problem with initiatives (all eight failed in CA -- will Gov. Arnold re-pay the state for the 60M?). Some good information (including a link to the quite well worth reading sermon) on the matter of a liberal church being targeted by the Bush Administration. And, some good stuff on/against the Alito Nomination, including the falsity of the "he's loyal to precedent" defense. Reports that even Sen. Schumer (D-NY) was buying the line aside.

State Sovereign Immunity With A Friendly Face: A case involving federal law protecting disabled prisoners suggests a possibility that state immunity from monetary damages (or immunity overall) when their own employees are involved can be tempered somewhat. My thought is the case will continue the recent trend of "not crazy" conservative jurisprudence in the area. To wit (as I noted on the Slate fray):

In one state sovereign immunity case, Justice Breyer wrote for an unanimous court that the state's claim was improper. But, the opinion started out by stating current precedent: state immunity does exist in various cases, even if the Constitution (esp. the 11A) does not literally say that. The case suggested the change of the law that began in real force in the mid-90s had become standardized.

This is true in as the edges are made less pointy. Thus, family medical leave suits against states are upheld (gender claims are easier to make) as are access to court claims (ditto). Now, we go back to the disabled: a class that cases a few years back suggested warrant less scrutiny. States have a broader right to discriminate, since they reasonably can treat the disabled differently. Unlike sex or race (and a few other classes), a lower test is in place.

But, note that word -- "reasonable." This might not require states in all cases -- akin to private employers -- be liable for not making accommodations for the disabled. But, sometimes (though a few justices may disagree in certain cases) even the lower test is violated. This might very well include in prisons, at least when tvs [reference to Slate article linked above] aren't involved. If the federal government can have a law requiring states to reasonably respect the religion rights of prisoners, they very well might also have one in cases like the one discussed in the article.

This suggests a leveling off -- state discretion will be respected more than in the past; in fact, the rule will be standard. But, it won't be complete; there will be some balance. Conservative result, but not "crazy" conservative. Get used to it libs ... it will be your new goal.

That is, "State Power With A Friendly Face." Talking about states ...

I wondered about that: "Corzine will have the power to appoint his Senate successor once he is inaugurated as New Jersey's chief executive on Jan. 17." Wouldn't it be in better taste to resign as senator before becoming governor (if this is possible?) and not have such power? But, then the governor's race was not known for its taste.