Let me recommend Howard Bashman's post on the precedent issue at How Appealing, http://legalaffairs.org/howappealing/. (Scroll down to 8:01 pm 9/14/05 post.) He presents arguments for the following conclusion:
"In holding that the Ninth Circuit's Pledge of Allegiance ruling, even after being reversed by the U.S. Supreme Court, requires the U.S. District Court for the Eastern District of California to hold that recitation of the Pledge in public schools is unconstitutional, today's ruling is really, really wrong." Mark Scarberry Pepperdine -----Original Message----- From: Brad Pardee To: Law & Religion issues for Law Academics Sent: 9/14/2005 8:00 PM Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision I appreciate Art's clarification of what he meant. He's correct that I understood his saying the judge "wanted to do the right thing" as meaning that judge was acting based on his own understanding of right and wrong as opposed to what the law reads. I would think, though, that it would not speak well of him if he had felt a need to issue his decision in a certain way out of his concerns about the unpopularity of his decision. In that I am not a lawyer, much less a judge, perhaps I'm holding onto pollyanish expectations of the judicial branch, but it seems to me that accepting the mantle of a judge requires enough moral courage to do what your job requires of you, regardless of popular opinion. Again, not being a lawyer, I don't feel I'm in a position to accurately understand his motivations based on the quoted section of the opinion, so I will look forward to reading and learning from what I read here from the learned assemblage. Brad ----- Original Message ----- From: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> To: religionlaw@lists.ucla.edu <mailto:religionlaw@lists.ucla.edu> Sent: Wednesday, September 14, 2005 8:57 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Brad assumes that when I said the judge "wanted to do the right thing," I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree with him that a judge is not supposed to follow such a course. What I meant was that the judge may have wanted to do the legally right thing -- as I believe he did -- but may have felt the need to seek the shelter of the 9th Circuit's previous decision to reduce the heat that would (and surely will) come his way because he did a wildly unpopular thing. However, now that I've seen the judge's candid footnote, I agree with Anthony Picarello that he seems to have explained his own reasons pretty well. Art Spitzer <<ATT59383.txt>> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
