By John M. Rogitz

I realize that government can walk and chew gum at the same time – they don’t need to focus 100% of their attention on the budget.  But seriously?

In case you missed it, here’s a rundown of the wastes of time and resources our California government has been engaged in lately.  As you might have guessed, none of these stories were reported by the MSM.

(1)  The California Air Resource Board has indicated that some clips on gas pump nozzles are to blame for 13 spraying incidents in the last few months.  Those clips allow you to go sit in your car while your gas pumps itself.  The spraying malfunctions can apparently cause fire hazards and pollute the air with gas vapor.

As a result, the Office of the State Fire Marshal has issued a mandate to thousands of gas stations forcing them to remove the allegedly defective latches found on about one third of all pumps by October 15.  The good news is that “safer” latches will be installed in the future.

Either way, preventing fire hazards sounds pretty reasonable, right?  Daniel Berlant of Cal Fire explains: “Before the gas nozzle is actually inserted into the gas tank, gasoline is freely sprayed both onto the customer and onto the ground.” 

As comedian Bill Engvall says, “Here’s your sign.”

Let me get this straight: Some moron tries to set the cruise control on the gas pump before the nozzle is actually inserted into the car and now everyone else, including small business owners, have to suffer?  That’s not a fire hazard, that’s an idiot hazard.  Everyone stay off the road when members of the California Air Resource Board are driving.

(2)  Assembly Bill 1060 is advancing in our legislature and aims to prevent the sale of alcohol at self-checkout lines at grocery stores.  Apparently it’s too easy for teens to buy alcohol because they can proceed through checkout without presenting ID.  What ever happened to hanging around outside until some one “cool” came along?

Regardless, teens and people “in an advanced state of intoxication” have been buying alcohol at these self-checkouts without proving that they’re 21 and sober.  The scam is that they simply scan a benign item and then put a six-pack in the bag instead of the scanned item.

Mind you, the Assembly isn’t banning self-checkouts all-together.  They’re just banning the sale of alcohol at them…sales which are already being avoided by fraudulently scanning other items.  Nice one.

This law will only hurt honest adults who are in a hurry to get to their cocktail party.  It doesn’t even remotely address the problem.  Thanks, California State Assembly.  “Here’s your sign.”

(3)  In a rare instance of self-restraint, a bill to ban the open-carry of unloaded weapons has failed in the Assembly, although it did pass in the Senate.  As San Diego’s ABC affiliate 10news.com summed up, “The bill, AB1934, would have made it a misdemeanor to openly carry a handgun in a public place. Current California law permits carrying a rifle or a handgun in a holster if it is not loaded.”

What was the motivation for such a law, you might ask?  10news.com has the answer to that, too: “Democratic Assemblywoman Lori Saldana of San Diego sought the bill after gun-rights groups held a series of demonstrations openly carrying unloaded weapons.”

That, my friends, is your modern Democratic party.  You simultaneously exercise two of your constitutional rights (freedom of assembly and the right to bear arms) in a manner that displeases Assemblywoman Lori Saldana and that’s it, you’re done.  A new law just for you.

That’s not a “Here’s your sign” situation.  That’s a “Kick intolerant politicians like Lori Saldana out of office” situation.

There you have it, folks.  An “In Case You Missed It” segment focused on the actions of our very own California government.  At least they won’t be able to do as much damage next week, they’re off on Monday.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

I’ll give Time writer Adam Cohen credit, he brought national attention to something that had escaped the MSM’s attention for two weeks. The 9th Circuit Court of Appeals handed down a ruling on August 12 essentially affirming the government’s ability to come on to your property a night, affix a GPS device to your vehicle and then track you without any sort of warrant.

Cohen’s write-up published by Time earlier this week has now led to a backlash against the 9th Circuit for allowing law enforcement to circumvent the Fourth Amendment. Thanks, Adam. I’m glad some one was paying attention.

The facts of the case at the heart of the controversy are as follows: Police snuck onto a suspected marijuana grower’s property in the middle of the night and attached a GPS tracking device to the underside of his car. Law enforcement then proceeded to track the suspect’s every move while building a case against him.

The 9th Circuit’s holding that the police did not need a warrant in that situation has two important legal implications. First, the police can enter the “curtilage” of your home without your permission because you have no reasonable expectation of privacy in the areas immediately surrounding your house. That is, unless you can afford to enclose your driveway and yard with a fence or barrier to give you that reasonable expectation. More on that caveat later.

Second, police can track you via GPS without a warrant because you have no reasonable expectation of privacy in activities outside your home because you are conducting those activities in public places. That shocks the conscience a bit too, doesn’t it? Another win for Big Brother.

Well, don’t worry dear readers. There’s disagreement among the Federal circuit courts on this issue. When that happens, the chance that the U.S. Supreme Court will review the issue goes way up. Another plus for those of us who value our Constitutional rights is that the 9th Circuit has the highest Supreme Court turnover rate of any of the circuits.

Regardless, I take issue with the tone of Mr. Cohen’s article. He praises one conservative while backhandedly disparaging the rest of us. Cohen applauds the author of the 9th Circuit’s dissenting opinion, which defends the Constitution against the usurping majority, but still finds it appropriate to debase conservative Chief Judge Alex Kozinski’s overall conservative philosophy.

Chief Judge Kozinski wrote a scathing dissent of the unconstitutional precedent set by the 9th Circuit’s majority. Judge Kozinski explained that the court’s decision implicates an inherent “cultural elitism” because judges can afford home security and fences to protect their driveways and create a reasonable expectation of privacy while the poor have no remedy to prevent police intrusion. Yet Cohen condescendingly wrote that Judge Kozinski “came across as a raging liberal” because Kozinski lamented the lack of diversity amongst judges, thereby implicitly suggesting that conservatives do not value diversity.

Apparently only liberals are allowed to fight for the little man. How biased and culturally elite is that?

Mr. Cohen proves that liberals are capable of offensive, belittling elitism too. Since the 9th Circuit’s liberal majority were the ones losing perspective, maybe Mr. Cohen should have been even more critical of those sharing his political philosophy and less critical of Judge Kozinski.

You ultimately did well, Adam Cohen…as unwittingly as it may have been. You exposed a bogus decision by the 9th Circuit, as well as your own intellectual sloppiness as a writer and the left’s general inability to recognize personal hypocrisy. Congrats.

COPYRIGHT 2010 JOHN M. ROGITZ

By “Leonid”

The Left, in its insensate perpetual rage over the culture wars, might find less spittle on its lips if it laid down, took an aspirin, and reflected as to what the real issue is.

Take abortion, which was never about a woman’s right to choose what to do with her body as an abstract proposition.  That was how the issue was framed by the Left, using the typical leftist tactic of changing the subject when the subject becomes incontrovertibly inconvenient to its libertine instincts.  A “woman’s right to choose” – who could refuse? – was borne out of desperation to avoid the question, when does a human life take on the dignity, the personhood that legally and morally estops others from taking its life? Because to consider the question meant having to consider the evidence, such as the remarkable humanity that emerges from a sonogram of an infant barely eight weeks old. And having considered the evidence, the implication of the choice crowd – that personhood depended upon the subjective decisions of individual mothers and, thus, was but a relative quality of humanity that depended not on the person in question but on the diktat of some other – would have been exposed for the logical absurdity it is.  It is for this reason that the Supreme Court’s usurpation of the issue, cloaked in the benighted sophistry of trimesters, did not end the battle but instead  ransformed it into a wound that has been festering for three decades now in the body politic.

The clock chimes, the world turns, a new issue emerges, but the cognitive dissonance of the Left remains.  Gay marriage is not about gay rights.  As a practical matter gays already have full civil rights accorded by both the state and by the private companies for which they work.  Indeed, gays enjoy heightened legal protection against discrimination relative to heterosexuals.

No, gay marriage is the pernicious endpoint of a continuum.  First, gays asked for tolerance, and society readily agreed. Live and let live.  Then, gays insisted on accepting homosexuality as a normal lifestyle.  Recalling that even the Greeks in their day recognized the strangeness, one might say queerness, of such uncritical acceptance (see Plato’s Symposium, for instance, and the casual observation of their near-contemporary, Paul, that the Greeks had received the consequences of their conduct in their own bodies), Americans reluctantly grew reluctant to continue the journey, although not so reluctant to actively push back against extreme homosexualism.

Against this backdrop came gay marriage, which is more than an insistence on the full acceptance of its normality.  What is now demanded is the sanctification of homosexuality through the very institution through which heterosexual sex is sanctified.  Homosexuality may be borne of an innate proclivity, just as pyromania and kleptomania are, although the science on this is anything but settled.  Regardless, homosexuality is defined by the act, not the urge.  A celibate priest may have urges but he is defined by the act of his celibacy; a pyromaniac who controls his urges is not regarded as a pyromaniac.  And so a homosexual, regardless of the impetus of his sexuality, is defined by the way he engages in sex, a way which has from time immemorial been regarded as deviant.  It is not unreasoning bigotry or religious fundamentalism that works against gay marriage.  It is the concept itself, the demand that buggery not simply be tolerated, or even accepted – but that it be sanctified, from which society innately, inherently, recoils.

By John M. Rogitz

Congress did something by virtually unanimous consent last week.  Can’t you just feel the mid-term love?

The Fair Sentencing Act of 2010 received unanimous approval by the Senate in March while only requiring an informal voice vote in the House last week.  The Act itself makes some significant changes to our current Federal drug laws.

First, it decreases the sentencing disparities between powder cocaine possession and crack cocaine possession.  Second, it dramatically increases the penalties for drug traffickers under new “aggravating factor” guidelines for things such as bribing government officials and maintaining drug manufacturing houses.  The Fair Sentencing Act also eliminates the five-year mandatory minimum for first-time offenders convicted of possessing crack cocaine.

In regards to the sentencing disparities, the coke-to-crack weight ratio for equivalent prison sentences will be reduced from 100:1 to 18:1.  In other words, possessing eighteen ounces of powder cocaine will carry roughly the same prison sentence as possessing one ounce of crack cocaine.  Thus, crack still carries heavier penalties under the new law but is no longer wildly out of proportion to its powder counterpart.

As far as I can tell, almost everyone is in agreement that eliminating the far more severe penalties for crack cocaine possession has been long overdue.  Moreover, the vast majority of Federal crack convictions occur against African Americans, leading some to conclude that the crafters of our previous Federal drug laws were racist.

While it is impossible to tell whether some members of Congress have had racist intentions in the past, it is indeed correct that there is a disproportionate crack conviction rate for African Americans.  According to the Telegraph, about 80 percent of all those convicted of crack offenses are black.

Whether you’re a libertarian or not, that is not a good statistic.  What’s the difference anyway?  Both drugs are cocaine-based.  To me they just seem to be different physical forms of the same drug.  Sure there may be some differing side effects on the human body, but saying that one is worse than the other is like saying light beer is better for your health.

In a statement issued by the White House, Drug Control Policy Director Gil Kerlikowske said there was no scientific basis for the difference in sentencing.  “By promoting laws and policies that treat all Americans equally, and by working to amend or end those that do not, we can only increase public confidence in the criminal justice system and help create a safer and healthier nation for us all,” Kerlikowske said.

Because everyone appears to be in violent agreement that we should reduce the sentencing differences between the two forms of cocaine, I only have a few observations aside from the Fair Sentencing Act having the intended effect of reducing the disproportionate impact on African Americans.

For one, this marks one of the few instances where President Obama will actually fulfill a campaign promise.  That may sound cynical, but it’s true.  He’s expected to sign the bill in to law later this week.

Second, it appears that the Act will reduce some of the costs associated with managing our vastly overcrowded Federal prison population.  Reducing costs?  Undoubtedly an unintended effect for our 111^th Congress.  Even so, some reduction in both spending and our prison populations is long overdue.

I’m sure there are some “tough-on-crime” social conservatives out there who will find a way to disagree with the Fair Sentencing Act, but it’s hard to argue that it doesn’t further justice and fairness in our Federal courts.  So there you have it, ladies and gentlemen.  Despite the heated debates on health care and Wall Street reform, Congress has finally found some common ground.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

Another circus has begun in the Senate, as has been customary for all modern Supreme Court nominees. With the Kagan hearings now underway, it’s important to understand exactly how judicial ethics will impact her responses.

As we saw last year with Justice Sotomayor, Senators get very frustrated when a nominee does not directly answer their questions. They like to pepper nominees with questions about how the nominee would rule on this issue or that issue, even though many of the Senators are lawyers who know judicial ethics prevent the nominee from answering.

The simple fact is that, whether you’re a “conservative” judge or a “liberal” judge, you are forbidden from commenting on possible legal matters that may come before the Court in the future. Judges are supposed to remain impartial and apply the law to the particular set of facts in any given case.

It is precisely because most legal controversies are highly fact specific that potential justices are forbidden from answering general questions. Kagan should not have to feel external pressure to rule one way or another in the future because she interpreted the Constitution to generally mean X, Y, and Z at her confirmation hearings.

The whole FDA thing from yesterday’s session is a prime example. Kagan said it would be ridiculous for the government to make a law requiring you to eat three fruits and three vegetables per day. What more do you want from her?

But no, Senator Coburn wanted her to interpret the Commerce Clause against that hypothetical law, completely absent any fact-pattern for a particular individual bringing suit. Yet the same conservative Senators that get frustrated with her inability to answer questions like that still want her to, as they repeatedly assert, “only apply the law to the facts.” You can’t have it both ways, guys.

Now this is not to trivialize the Senate hearings. Each nominee for such a distinguished and important position should be vetted. Indeed, the Framers intended that. But these hearings were never meant to include the political grandstanding that now defines them.

In actuality, the Framers wanted a president’s nominee to be approved in most circumstances.  As Hamilton says in Federalist Paper 76:

“It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination…the necessity of their [the Senate’s] concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity” [Emphasis added].

Elections have consequences.  As Federalist Paper 76 points out, the president should be allowed his choice if the individual is qualified.  The Senate confirmation was simply included in the Constitution to prevent unqualified nominees from taking the bench.

However, disagreeing with Kagan’s judicial philosophy does not make her unqualified. Making sure a candidate is qualified, as the Framers intended it, did not mean putting a nominee through weeks of rigorous confirmation hearings. It meant preventing Harriet Miers from becoming a Supreme Court Justice.

Do not interpret my position to mean that I am in favor of Kagan or her judicial activist philosophy. I’d much rather have another Justice Scalia or Justice Thomas. But McCain did not win the election and Kagan is indeed a bright and qualified individual.

Moreover, do not think I am laying blame wholly at the feet of Republicans for creating this circus. Both parties are to blame for what the Senate confirmation hearings have become. But the problem is that what they’ve become is exactly what the Framers did not want to happen.

In the context of why the Senate itself should not have the exclusive authority to nominate and confirm judicial appointments, Hamilton observed in Federalist Paper 76 that:

“Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice [of the assembly]…will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight.”

The Framers were indeed concerned with the type of political bargaining and grandstanding that too often consumes the legislature. The Senate confirmation hearings are yet another example of how our Federal government continues to transform into precisely what the Framers tried to prevent.

COPYRIGHT 2010 JOHN M. ROGITZ