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.

Tagged

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
Lifeguard
Waitress
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
24
Lost
Smallville
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
Paella
BLT

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.

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."

Speak to Your Spirit: SISTERS, WE MUST FIND OUR VOICE!

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.

Couldn't Have Said It Better

Marc Fisher on his Raw Fisher blog, concluding a riff on the ability of Virginia legislators to drift from libertarian to dictatorial citing the marriage amendment as an example: "Sadly, the legislators in Richmond act not according to any set of logical principles, but according to their own drifting and kneejerk conglomerations of bias, whim and momentary passions."

And, for some, I would add to bias, whim and passion their mistaken (?check Craddock, Black, Marrs, now Staton) belief that certain votes are "required" to get reelected even if they don't personally believe in what they are voting for.

Stephen Carter in his book "Integrity" describes unintegrity as doing something that you know to be wrong and argues that lack of consistency can be a hallmark of lack of integrity.

Shannon Valentine won a special election in Falwell's home town although she was attacked for making clear that she opposes the current proposed marriage amendment because it goes too far. She was clear and consistent and voters confirmed that they liked her authenticity.

Something to think about.

Fisher is not the only blogger to express doubts about the marriage amendment... see

I'm Not Emeril

Raising Kaine

Virginia Centrist


Madisonian at Sic Semper Tyrannis

South of the James

I'm sure there are more....

Perhaps we could have a whole blog carnival limited to posts on the marriage amendment ....

Bacon's Rebellion: "Blogging on the Hustings"

Here's Jim Bacon's take on the Marc Fisher piece on Virginia bloggers...

Bacon's Rebellion: "Blogging on the Hustings"

Bloggers Examined; Found Interesting

Washington Post Columnist, Marc Fisher examines the Virginia political blogosphere in the February/March American Journalism Review. In "Blogging on the Hustings," Fisher describes Virginia's political bloggers as "cacophonous" and "significant." He's right on both accounts.

We're a noisy bunch, mostly civil, but not always. And, many among us have contributed significantly to the art and war of politics.

For my part, I'm flattered to be quoted ... okay about being the only woman quoted but not so sure how I feel about being the designated "old" voice in the crowd, though.

Waldo has a good commentary on the commentary up on his blog. His conclusion: we have reason to be proud of being in the Virginia political blogosphere.

I think he's right.

Standing Up Against Discrimination in Public Employment

Here is the text of Senator Louise Lucas' floor speech about SB 700 (on which she and Senator Mamie Locke are co-chief patrons), the bill to end discrimination against state and local employees (including teachers) based on race, gender, national origin, religion, disability, veteran status, etc and sexual orientation:

In 1970, Governor Linwood Holton established a tradition that our chief executives have followed since; his first official act as Governor was the issuance of an executive order promising state employees equal opportunity and protection from discrimination in the workplace.

35 years later, Governor Warner concluded his term by signing an executive order extending this protection to discrimination based on sexual orientation -- a promise of opportunity continued in Governor Kaine’s first executive order on Equal Opportunity issued the day he was sworn in as Virginia’s 70th Governor – a promise also extended by Governor Kaine’s order to Virginia’s veterans.

Despite this long history of executive action, this legislature has never acted to incorporate in the Code of Virginia an explicit and comprehensive ban on discrimination in public employment. Private companies seeking to contract with the Commonwealth are required by law not to discriminate in employment. Constitutional officers are prohibited by law from discriminating in employment. Localities have permission to adopt anti-discrimination ordinances applicable to private employers but are not required by state law to guarantee their employees a workplace free of discrimination. School divisions and localities are required to afford employees the right to grieve discrimination, but are not affirmatively prohibited from discriminating.

It is time for legislative action. We can start by adopting the language in Governor Warner’s budget that will protect state employees from discrimination. But we need to go beyond that.

It is time for this legislature to make the Commonwealth’s equal opportunity policy clear and applicable equally to all public employees.

No state, local or public school employee should have reason to doubt our commitment to equal opportunity in employment for all regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related conditions, age, marital status, disability, sexual orientation, or veteran status.

That is why Senator Locke and I will introduce today a bill that compliments and builds on Warner’s and Kaine’s executive actions and makes equal opportunity a matter of legislative enactment as well as executive action.

And, yes, this bill would include sexual orientation in our statement of the Commonwealth’s nondiscrimination policy. Protecting Virginia’s gay, lesbian, bi-sexual and transgender public employees from discrimination is not a radical idea.

 We are far behind private sector employers in adopting such a nondiscrimination policy.

 Jerry Falwell has said that protection from employment and housing discrimination is not a special right but a basic human right.

 A poll by a bi-partisan polling team recently found that, even among Virginia voters who would vote for a marriage amendment, 86% said gays and lesbians should have the right to work for the government and 63% said that they should have the right to teach in public schools.

 And, 24 of the 40 Senators in this body and 60 of the members of the body at the other end of the hall have said that they don’t discriminate hiring in their offices.

We invite you to join us in making equal opportunity in employment the law for all Virginia public employees.

So far, 9 Senators (including Locke and Lucas) have signed on.

If your Senator is not on the list, call the Senator and tell him or her you'd like to see his or her name on the list of co-patrons for SB 700.

If we can't convince them to be sensible when it comes to the so-called marriage amendment, perhaps we can convince them to do what's right when it comes to employment discrimination.

As Senator Lucas says, there's nothing "radical" about it.

The Definition of Juvenile

What do college freshmen who sit outside the cafeteria line and hold up rating cards for young women as they exit the line with their trays and Not Larry Sabato have in common?

They define juvenile, i.e., "displaying or suggesting a lack of maturity."

At the risk of being accused of lacking a sense of humor, I have to say that the NLS contest to rate the "hottest" woman candidate or wife of a candidate is demeaning.

The contest equates the women leaders who run for office with the supporting cast of spouses who help men run and reduces both to unwilling beauty queens. The contest diminishes the victories of successful candidates like Anne Crockett-Starke. And, the contest illustrates the double-binds that women who seek to lead confront. Can one be both feminine and competent? See, Women and Leadership: Beyond the Double Binds by Kathleen Hall Jamieson for more on this subject.

Virginia is in the bottom ten of all states in the percentage of women in our legislature. In part, this is because of the double standard women confront when they seek to serve us as part-time citizen legislators. If they are single, they must put up with rumors about their sexuality. If they are attractive, they must put up with rumors about who they are sleeping with. If they have small children, they are attacked for putting themselves first and worst.

Men, e.g., Mark Earley and Bob Marshall, have large families with small children that they left to serve in the legislature without criticism. Yet, Eileen Filler-Corn met a barrage of negative sniping when she sought election to the House of Delegates because she had two school age children at home.

Men don't have to put up with stuff like the NLS contest, or the ongoing running commentary women face regarding their looks, clothing choices, hairstyles, etc., as a price of public service.

No wonder more men than women indicate an interest in running for office. See, Fox, Gender, Political Ambition and the Decision Not to Run for Office at page 5.

Bottom line here for me ...

Grow up, NLS.

Picture This

Delegate Cole has introduced a bill that would make it legal for a law enforcement officer carrying a concealed weapon to drink alcohol in a restaurant or club but only if he is actually on duty.

Here's what the amended "guns in bars" law would say if Cole's bill is passed:

J3. No person who carries a concealed handgun onto the premises of any restaurant or club as defined in § 4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board under Title 4.1 of the Code of Virginia may consume an alcoholic beverage while on the premises; however, nothing herein regarding the consumption of alcohol shall apply to a federal, state, or local law-enforcement officer while actually engaged in the performance of his official duties.

I suppose this is somehow meant to make it legal for undercover police officers to drink while working a case without disarming or violating the law. But, it seems weird that we're passing a law to make it legal for police officers to drink on the job while carrying a concealed gun.

"Time and the Art of Living" 3

The new year approaches. Limitless possibilities; things left undone. A beginning; an ending.

Grudin on past and future:

III.20 The past is like the body of time, the future is like its soul. Our sense of the past is voluminous, corporeal, complex; but our sense of the future should hold innocently and simply, like stellar spectrum, the full quality of our spirit and will.

May the new year replenish your spirit and reenergize your will.

"Time and the Art of Living" 2

The holiday season... time with family ... thoughts about past time ... hope for time yet to come.

Not much time for blogging. So, over the next week or so, I've decided to share more from Robert Grudin's book, "Time and the Art of Living."

As we think about the year past, what we did and might have done, it's important to remember that balance is an important aspect of success in life and in managing time.

Grudin on Achievement and Time:

IX.29 The mind which can totally and inanely forget its work and obligations is often also the mind which can, at the proper time, give them the fullest attention. People of this bent know not only the value of concentration but also the secret resource of fallowness. They protect their fragile hours of productivity with down pillows of oblivion.

I hope that you find some "down pillows of oblivion" on which to rest in the week ahead and beyond.

Questions for the New Attorney General

Richmond's new ezine for women published a revised version of my blog post on questions for the Virginia Attorney General in the December 2005 edition now available online.

Bacon's Rebellion: Blog the Budget! Executive Offices

Over on Bacon's Rebellion, Jim's asking folks to "blog the budget." Shaun Kenney suggests that we all play "adopt-a-budget" and see if we can find the fat.

I don't know if you'd call it fat or not, but, as noted in my comment on the Executive Office budget, the request for an additional position and more money for the Division of Debt Collection in the Office of the Attorney General deserves a very careful look by the money committees and the new Attorney General.

Congresswoman Davis Rewrites Dictionary; Makes Include and Exclude Synonyms

It seems to me that Virginia Congresswoman Jo Ann Davis and others on the anti-holiday bandwagon have merged the meanings of "include" and "exclude" in their efforts to put the "Christ" back in Christmas.

Those of us who use Happy Holidays as a greeting do so to "include," that is, to "accommodate, add, admit, allow for, append, bear, build, build in, carry, combine, comprehend, comprise, consist of, constitute, contain, count, cover, embody, embrace, encircle, enclose, encompass, entail, enter, have, hold, implicate, incorporate, inject, insert, interject, interpolate, introduce, number, number among, receive, subsume, take in, teem with, or work in" everyone who is celebrating this time of year regardless of what they are celebrating.

We are not trying to "exclude" or "ban, bar, bate, blackball, blacklist, block, bounce, boycott, close out, count out, debar, disallow, drive out, eject, eliminate, embargo, estop, evict, except, expel, force out, ignore, interdict, keep out, leave out, lock out, obviate, occlude, omit, ostracize, oust, pass over, preclude, prevent, prohibit, proscribe, put out, refuse, refuse admittance, reject, remove, repudiate, rule out, set aside, shut out, sideline, suspend, throw out, veto, or ward off" Christians who are celebrating Christmas.

No matter what the good Congresswoman says, I'm going to continue to see include and exclude as antonyms, and I'm going to include everyone in my holiday greetings.

And, what's this thing these folks have about the Christmas tree anyway...the history of Christmas trees as a Christian symbol is relatively recent, promoted actively in the US only since the late 1800's and not "universal" as a tradition until the 1920's. A bit of history:

The Egyptians were part of a long line of cultures that treasured and worshipped evergreens. When the winter solstice arrive, they brought green date palm leaves into their homes to symbolize life's triumph over death.

The Romans celebrated the winter solstice with a fest called Saturnalia in honor of Saturnus, the god of agriculture. They decorated their houses with greens and lights and exchanged gifts. They gave coins for prosperity, pastries for happiness, and lamps to light one's journey through life.

Centuries ago in Great Britain, woods priests called Druids used evergreens during mysterious winter solstice rituals. The Druids used holly and mistletoe as symbols of eternal life, and place evergreen branches over doors to keep away evil spirits.

Late in the Middle Ages, Germans and Scandinavians placed evergreen trees inside their homes or just outside their doors to show their hope in the forthcoming spring. Our modern Christmas tree evolved from these early traditions.

Legend has it that Martin Luther began the tradition of decorating trees to celebrate Christmas. One crisp Christmas Eve, about the year 1500, he was walking through snow-covered woods and was struck by the beauty of a group of small evergreens. Their branches, dusted with snow, shimmered in the moonlight. When he got home, he set up a little fir tree indoors so he could share this story with his children. He decorated it with candles, which he lighted in honor of Christ's birth.

The Christmas tree tradition most likely came to the United States with Hessian troops during the American Revolution, or with German immigrants to Pennsylvania and Ohio, adds Robson.

But the custom spread slowly. The Puritans banned Christmas in New England. Even as late as 1851, a Cleveland minister nearly lost his job because he allowed a tree in his church. Schools in Boston stayed open on Christmas Day through 1870, and sometimes expelled students who stayed home.

The Christmas tree market was born in 1851 when Catskill farmer Mark Carr hauled two ox sleds of evergreens into New York City and sold them all. By 1900, one in five American families had a Christmas tree, and 20 years later, the custom was nearly universal.

What's the big deal about including everyone in the magic of the season by calling the tree a holiday tree?

Sometimes me thinks that the gentlelady doth protest too much.

Ten Keys Revisited

The Sunday before the election, I wrote my analysis of how I thought Sabato's "Ten Keys to the Governor's Mansion" were playing out in the 2005 election cycle.

We haven't yet had the benefit of Sabato's thinking, but I thought I should keep myself honest by looking back at what I said and seeing whether it makes sense viewed in hindsight.

Here's what I see:

On turnout, I was wrong that lower turnout would deliver the election to Kilgore. Kaine won despite the fact that turnout was lower than 2001's 46%. The conventional wisdom (R's do better when turnout is low)was wrong in Kaine's election. The turnout among black voters turns out to have been close to the 15% that Warner did, so the makeup of the lower turnout looks like it was unchanged or tending D compared to 2001.

The "prevailing conditions" (Warner/Virginia heading in the right direction) factor looks to have had a stronger influence on the election that I thought it did. I said it favored Kaine, clearly it was very favorable.

As to the rest of the 10 keys:

1) Economy (Then, neutral; Now, neutral to advantage D)
Dissatisfaction with the economy in some rural parts of the state (like Henry County) helped Kaine, not Kilgore. Overall, though, I still think it was a Neutral factor overall in the election. I do think voters thought that Kaine could do a better job delivering on the issue since more jobs and the economy voters voted for him.

2)Party Unity (then, advantage D; now advantage D)
Turned out to be the advantage for Kaine that I thought it would be.

3) Scandal (then, advantage D; now advantage D)
Turned out to undercut Kilgore as I projected.

4) Campaign Operations (then advantage R; now neutral to advantage D)
Kaine's folks ran a great and technically advanced campaign. The vaunted R machine wasn't. I called this an advantage for R's. Looks like this should have been neutral at best, perhaps even advantage D's.

5) Campaign Money (then advantage R; now advantage R)
Kilgore had the advantage. It didn't end up helping him.

6) Candidate Personality (then neutral; now advantage D)
I called this neutral, probably because I know both guys and think both are genuinely likeable people. However, the Kilgore his campaign presented was not likeable, and the Kaine his campaign ultimately presented was authentic and likeable.
This should have been advantage Kaine.

7) Prior Office Experience (then advantage R; now neutral)
Kilgore did little with his experience, and he wasn't able to get traction on the negatives associated with Kaine's tenure as mayor. I gave the advantage to Kilgore, turned out to be neutral at best.

8) Retrospective Judgment of Previous Governor (then advantage D; now advantage D)
Warner's high positives made this a very strong advantage for Kaine. I got this one right.

9) Presidential popularity (then, advantage D; now advantage D)
I called this one right, too. Bush was a drag on Kilgore's candidacy.

10) Special issues and dominant circumstances (then advantage R; now neutral to advantage D)
Immigration turned out not to have the intensity Kilgore clearly hoped it would. Transportation, which Kilgore should have been able to work to advantage, didn't help him. Kaine's decision to focus on growth and transportation late in the campaign clearly boosted turnout and his vote totals in the exurbs. I called this advantage R. I might have been right in the abstract, but Kaine's team clearly turned this negative into a positive.

Warner Steps Up on Workplace Discrimination

On Friday, Virginia Governor Mark Warner stepped up to the issue of workplace discrimination against gays and lesbians and did the right thing. As the chief personnel officer of the Commonwealth, he included a provision in the state budget he proposed that makes clear that Virginia's equal opportunity policy covers sexual orientation. Then, he reissued his own executive order No. 1 to declare that Virginia's "firm and unwavering policy ... to assure equal opportunity in all facets of state government" forbids discrimination based on sexual orientation.

According to the HRC, Virginia joins 25 other states and 420 of the Fortune 500 companies that have nondiscrimination policies.

In a competitive employment environment, Warner's policy decision makes good sense for Virginia and Virginia taxpayers who want the best and the brightest working in state government and at our public colleges and universities.

The Richmond Times Dispatch reports today that a fight (led by who else? Bob Marshall) is already brewing on this small step forward for fairness.

But, really, how controversial can this be when, as the TD reports, Speaker of the House Bill Howell is "among 84 Republican and Democratic legislators who signed a pledge with Equality Virginia, a gay-rights lobbying organization that pressed Warner for the ban, to prohibit discrimination in their offices."

Tim Kaine's spokeswoman has said that Kaine's Executive Order 1 will continue to prohibit discrimination in state government based on sexual orientation.

People of right reason should get ready to respond, though, when Marhall and others try to strip the langugage from the budget bill and pass legislation to prohibit the Governor from extending this protection to workers by Executive Order.

The Data Confirms Common Sense Analysis of the Election Results

Jeff Schapiro's column today revealing some of the Kaine post-election poll results confirms what those not playing Republican bubble boy know by intuition, talking with folks, listening to what non-wonks have to say ...

independents and moderates made the difference in the governor's race.

And, they really didn't like the negative ads used by Kilgore (especially the death penalty ads).

Can we revisit whether negative campaigning "works"?

Gratitude

Interesting word gratitude.

If you look it up in Roget's Thesaurus, you find synomyms that carry both a sense of blessing and an implied quid pro quo.

Benediction, grace, tribute, appreciation and, perhaps, recognition ... things given without expectation.

Acknowledgement, thanks, response, obligation, requital ... offered in return for a thing received or expected.

As I count my blessings tomorrow and think about what it means to be grateful ... to give thanks ... to express gratitude ... I'll be thinking about when and why I've been thankful without expectation or without receiving something ...

when gratitude has been a benediction or grace...

offered freely ...

without gain expected or received.

And, if I can find an image/memory/feeling of that time, I hope that I can hold on to it and find ways to connect with it again and again ... living in gratitude for its own sake without obligation or requital.

Happy Thanksgiving