For the first time in my 36 years as a registered voter, I voted Tuesday as a registered Republican. The [...]]]> Okay, I’ve got a poli sci degree, I was a political reporter and I stay fairly up to date. But I evidently have grown or remain blindly (or perhaps happily) ignorant to much of politics.

For the first time in my 36 years as a registered voter, I voted Tuesday as a registered Republican. The reason was simple and certainly not nefarious or Machiavellian. For 24 years I’ve been lucky enough to practice law with Dave Knudson, who was seeking the Republican gubernatorial nomination. Although Dave left our firm at the end of last year to campaign full-time, he is undoubtedly one of the brightest and most astute people I’ve the pleasure to know. My personal experience working with Dave left no doubt about his ability to identify problems and find workable solutions, skills South Dakota desperately needs.

So although a lifelong registered Democrat, earlier this year I registered as a Republican to vote for him in the primary. Don’t be mistaken. Our politics are different and there are issues on which Dave and I disagree. Yet I have always known Dave to consider arguments from all sides. He investigates and considers issues before deciding. I realize many in the GOP may have considered Dave “too liberal.” Yet my still naive heart of hearts tells me we are in dire need of elected officials who base their decisions on considered evaluation, not playing to a particular constituency or the latest partisan bandwagon. Dave is one such person.

Even knowing little of state GOP politics, I figured Dennis Daugaard had the inside track. But to see the scope of his win and where Dave placed in the race seemed to prove that labels may still carry too much weight in political races. Or it could simply be that me voting for a candidate is a kiss of death. (I did not cast votes in the Congressional primary or the legislative races, only for candidates for two county offices I knew were imminently qualified for the position they were seeking — and one of them lost.)

I’ve known Scott Heidepriem longer than Dave. But despite that and the fact more of Scott’s views are probably closer to mine on many issues, I would have voted for Dave in the general election had he prevailed in the GOP primary. That’s how much respect I have for his talents and abilities. And while I don’t doubt that Dennis Daugaard is a good and qualified man, I believe the South Dakota GOP missed the boat yesterday.

There is silver lining for both me and the GOP. I am hopeful that once Dave has some deserved post-campaign R&R, I will again have the fortune of practicing law with him. And South Dakota Republicans need not worry about my name besmirching their rolls. My new change of registration goes out in today’s mail. And lest you think this was just a Democrat just having a bit of fun with the GOP, my disgust with the dominance of partisan politics in our country means I will now be a registered independent.

James F. Clarke, “Wanted, a Statesman!”, Old and New, Vol. 2

California’s FlashReport blog reports that when Republican John Eastman formally filed as a candidate for California Attorney General yesterday, the former law school dean listed his occupation, which will [...]]]> Seems a California man’s appointment as a special assistant attorney general by South Dakota AG Marty Jackley is causing a bit of stir in California politics.

California’s FlashReport blog reports that when Republican John Eastman formally filed as a candidate for California Attorney General yesterday, the former law school dean listed his occupation, which will appear on the ballot, as “assistant attorney general.” Eastman, though, is not employed by the California Attorney General’s Office. When asked about the designation, his campaign issued a “ballot designation worksheet” that said, “On February 23, 2010, I was appointed Special Assistant Attorney General by South Dakota Attorney General Marty J. Jackley to represent the state before the Supreme Court of the United States in Reisch v. Sisney, No. 09-953.” The campaign said that means “the ballot designation of Assistant Attorney General is literally accurate and is the most accurate description” of Eastman’s current principal profession and occupation.

Sisney, a South Dakota penitentiary inmate, sued the State seeking damages under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) for alleged interference with his ability to practice his Jewish faith. Both Sisney and the State have asked the Supreme Court to review the 8th Circuit Court of Appeals ruling in the case. The appeals involve issues regarding whether RLUIPA waives the state’s immunity from suit under the 11th Amendment to the U.S. Constitution and whether the RLUIPA violates that part of the federal constitution that limits Congressional spending to pay debts and “to provide for the common Defense and general Welfare of the United States.”

Eastman is listed as “counsel of record” on the cross-petition for review the State filed with the Supreme Court, even though it was filed February 9, two weeks before Eastman’s appointment. In the release from his campaign office, Eastman said he will be paid $20,000 for researching and writing that petition and a reply to any opposing brief. If the Supreme Court hears the case, Eastman said he will “expend significant effort” preparing and presenting the written and oral arguments and anticipates billing the state “at least an additional $100,000.”.

Why is the ballot designation such a big deal? According to FlashReport, if it is “upheld by a judge on the invariable court challenge, it will REALLY help Eastman.” None of the other GOP candidates apparently have the funds necessary to run statewide television ads, meaning having “assistant attorney general” printed on the ballot may be a powerful ad in and of itself.

SDCL § 1-11-5

For years we’ve heard the GOP rallying [...]]]> There’s been tons of commentary on Citizens United v. Federal Election Commission, in which the Supreme Court said the government can’t restrict corporations from spending money to support or oppose individual candidates in elections. Yet there’s been meager discussion on one issue the decision raises — judicial activism.

For years we’ve heard the GOP rallying cry that Democrats appoint activist judges. What is an activist judge? Here’s what the 2008 Republican platform said: “Judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public.” You don’t have to look much further than South Dakota’s own U.S. Sen. John Thune to find someone who loves to invoke that mantra.

He has a page on his website about the “issue” of judicial nominations, where he says, “I believe that [judicial] nominees should abide by and apply the rule of law, instead of becoming activist judges who try and create law.” When he voted to confirm U.S. Supreme Court Chief Justice John Roberts, a part of the Citizens United majority, he said that, “most importantly, [Roberts] is committed to applying the law as it is written, not according to his own opinions or philosophies.” In contrast, when he voted against Justice Sonia Sotomayor, who was in the minority in Citizens United, Thune did so in part because she didn’t appear to decide cases “based on precedent and fidelity to the law.”

Thus, Citizens United presents an intriguing juxtaposition. The five justices who voted to invalidate “the law as it is written” and to overrule prior precedent are all Republican appointees. Three of the four who felt stare decisis — the doctrine that courts will follow principles of law laid down in previous cases — mandated the opposite result were appointed by Democrat presidents. Not surprisingly, stare decisis was one of the battlegrounds in the Court. “The only relevant thing that has changed since [the overruled decisions] is the composition of this Court,” said Justice John Paul Stevens in dissent joined by Justices Ginsburg, Breyer and Sotomayor. Chief Justice Roberts, in turn, wrote a concurring opinion “to address the important principles of judicial restraint and stare decisis implicated in this case,” evidently wanting to show his court is not an activist court.

Despite how well the decision may fit the GOP’s “judicial activism” box, I haven’t seen Thune, GOP chairman Michael Steele or the state Republican Party decrying an “activist” Supreme Court. That reinforces the fact talk about activist judges is just so much hooey trotted out or ignored by politicians depending on who decided what issue. The term misrepresents the role of the judiciary. Even when a trial judge rules on the admissibility of evidence, he or she is “making law” for that particular case. The higher you go in the judicial hierarchy, the broader the impact of a ruling.

This doesn’t mean the law is immune from a judge’s legal outlook. Yet with rare exceptions, those views are reflected by the interpretive methodology upon which they rely (such as the originalism v. living Constitution debate in constitutional interpretation). So, the next time a politician or political party complains about activist judges, you’re simply hearing an epithet used by the addlebrained for a ruling they don’t like. Ignore that veneer and find out what reasoning led the court to its result. At least then any disagreement is based on reason, not artifice.

Marbury v. Madison (1803)

Palin is unquestionably the highest profile “author” to hit the local B&N. At least in my memory (which admittedly gets [...]]]> How pervasive is the power of politics? About as pervasive as you can get, as evidenced by word that Sarah Palin is going to be at the local B&N for a book-signing on December 6.

Palin is unquestionably the highest profile “author” to hit the local B&N. At least in my memory (which admittedly gets worse every day), the only other “names” to sign there in the recent past are Mike Farrell in June 2008, George McGovern (who I believe has appeared there a couple times) and Tom Daschle. I think the native son status of the latter two, though, might disqualify them to some extent.

So it takes a quasi-political promotion trip for B&N to get a bestselling author to the city for a signing. I wonder how many people who present books for her to sign will be clutching a receipt for their $8.98 copy from Walmart online?

Maureen Dowd, NYT, Sept. 10, 1995