Friday, February 24, 2006

McDonnell as "Activist Judge"

Back in October, I wrote a post titled Choosing Your Lawyer: What You Should Ask the Candidates for Attorney General.

In the post, I suggested that you ask "How will the candidates interpret the law in official opinions they write as Attorney General? Will the candidates be "activists" or "strict constructionists?" I said "Just as it is important to know how a judge will apply the law and what regard he or she will have for past decisions, it is important to know how a candidate for the office of Attorney General will approach this quasi-judicial opinion writing function."

Well, today we learned for sure how McDonnell sees his role -- he's definitely an "activist" who will seek to use the opinion writing process for political ends.

Today, McDonnell issued opinion no. 05-094, in which he holds that the Governor does not have the legal authority to issue an executive order that includes sexual orientation in the state personnel policy against discrimination in public employment.

In January, Delegate Bob Marshall asked the AG for the opinion on the question whether, as the Commonwealth’s Chief Personnel Officer, the Governor can, by Executive Order, protect state employees from discrimination based on sexual orientation. The result today was an opinion clearly informed more by political considerations than sound legal research or reasoning.

Here's what EV's Board Chair and Executive Director had to say in a press release issued today:
“Governor Kaine is the Chief Personnel Officer of the Commonwealth and is granted broad constitutional and statutory rights to set policy for the employees he manages,” said Jay Squires, EV Board Chair and Richmond attorney. “McDonnell’s opinion finds that the Governor, like a locality under the Dillon Rule, only has the authority expressly conferred on him by the legislature. This interpretation is in conflict with generally accepted principles regarding the separation of powers of the legislative and executive branches of government, and flies in the face of years of precedent.”

“In one of his first official acts as Attorney General, McDonnell has shown that, in issuing official opinions from his office, he will be an ‘activist judge’ who will strain to reach legal conclusions that will please the most narrow-minded of the constituents to whom he must feel he owes last fall’s slim margin of victory,” said Dyana Mason, Equality Virginia Executive Director. “It is sad that in a state where 87% of voters support the right of gay men and lesbians to be free from discrimination based on sexual orientation, Attorney General McDonnell felt that he had to placate a small minority with this obviously result-oriented, political opinion.”

It is even sadder that the release of the opinion today was clearly timed so that it was after the Senate and House considered proposals to cut nondiscrimination language from the budget. Both houses argued that the budget language was “unnecessary” because it duplicated language in existing state and federal law, including the ExOrder.

And, in an even crueler twist, the opinion cites the close vote on SB 700 earlier in the session as evidence that the legislature has rejected protections for sexual orientation discrimination despite the fact that a major argument against the bill in the Senate committee was that the Executive Order and the budget already offered such protection.

Attorney General McDonnell set a bad precedent for his term as Attorney General today. He made clear that politics will dictate his legal analysis and opinions during his four years in office.

That’s a shame.

Thursday, February 09, 2006


So, I got tagged by the Blue Dog who got tagged by South of the James ... so not wanting to break the chain in this blogger's chain letter here's my 4x4:

Four jobs I've had
Sheepskin seller
College president

Four movies I can watch over and over
Gentleman's Agreement
Ocean's 11
Star Wars
Thelma and Louise

Four places I've lived
London, England
Key West, Florida
Schofield Barracks, HI
Annandale, Virginia

Four TV shows I love
Law and Order

Four places I've vacationed
Sail boat in the Grenadines
Vieques, PR
Vancouver, Canada
Green Valley, Utah

Four of my favorite dishes
Buz and Ned's ribs
Dim sum

Four sites I visit daily

Legislative Information
Bacon's Rebellion
Commonwealth Conservative
Washington Post

Four places that I'd rather be right now
Moon Beach on Vieques
Slopes or Red Fox Restaurant at Snowshoe
Hiking in the WindRiver Range near Jackson, Wyoming
Mango's in Key West, FLA talking with my friend TK at the bar

Four bloggers I'm tagging
Rita Ricks
Kenton Ngo
Ben Kyber
J Sarge

Finding the Positive

Today at the legislature something good happened. A group of students from Hampton University (down at the General Assembly to lobby for TAG grants and funding for some new fangled technology) sat in on the Senate General Laws committee where SB 700 was being debated.

SB 700 is the bill that would (finally) make explicit and codify the Commonwealth's policy against discrimination in the public workplace, prohibiting, among other things, discrimination based on sexual orientation.

The bill was superbly presented by its patrons, Senators Lucas and Locke and there was positive testimony on the bill by the Virginia Governmental Employees Association, the Virginia Education Association, People of Faith for Equality in Virginia, Equality Virginia and an individual state employee on the board of the VGEA. But, the fun didn't get started until the advocate for the Independent Baptists (arguing against the bill) got into a theological debate with Senator Yvonne Miller. (I could sell tickets to the replay). He was followed by an advocate for Concerned Women of America who described herself as having been "in homosexuality" in the past. From my perspective at least, it seemed that the longer that the opponents talked the closer our side got to getting the bill reported out of committee. Unfortunately, that was not to be, the bill failed to report by a vote of 6-8-1.

The good part was this .... after listening carefully to the presentation of the bill and the ensuing debate the students from Hampton adjourned to the lobby where I observed them engaged in an extended and very lively debate among themselves about the policy questions and arguments for and against the bill.

It was good to see the students excited about what was happening and engaged by the debate regardless of which side they were on.

As Larry Sabato often says, "politics is a good thing!" I think that the students from Hampton present today would agree.

Monday, February 06, 2006

If Only

Loved this headline in today's WAPO ...

"Handful of Races May Tip Control of Congress"

Perhaps if we took this literally and to heart, it would end all the immigrant bashing in DC and Richmond.

Just one of the promised "random thoughts."

Friday, February 03, 2006


There's a new voice in the blogosphere. Join me in welcoming Rita Ricks and her SpeaktoYourSpirit blog.Speak to Your Spirit: SISTERS, WE MUST FIND OUR VOICE!

Rita is a powerful force of nature. Her blog is worth a look.