# Dewey! Minty! Come a runnin'!! **URL:** \ **Category:** The BBQ Pit\ **Created:** [April 11, 2003, 2:01am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942 "2003-04-11T02:01:28Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Tejota](https://avatars.discourse-cdn.com/v4/letter/t/958977/32.png) [@Tejota](https://boards.straightdope.com/u/Tejota)\ **Post date:** [April 11, 2003, 10:27pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/101 "2003-04-11T22:27:48Z")
> [@](#): > > **Dewey** > including utilizing the appeals process when they feel they have a strong chance for victory. Nope. This is where you are wrong. He lost the first round. He could have walked away. If he didn’t want to win, he _would have_ walked away. There is nothing unethical about fighting the good fight at loosing. But stepping up to the plate an **optional** second time is choice, not ethics. The AG’s office simply doesn’t have the resources to try ever case to the fullest extent. Choosing whether or not to appeal a loss is precisely the sort of discretion we expect of the AG’s office. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 11, 2003, 10:29pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/102 "2003-04-11T22:29:37Z")
> [@](#): > > \*Originally posted by Tuckerfan \* > **Oh, come on, why should we accept legal advice from a guy who took his name from a Three Stooges gag? 😉** Hey, the Stooges are the fount of all wisdom. Or something. \*\* > [@](#): > > Since we’ve got the legalbeagles here, I’d like to ask what they believe is going to happen with this case as it wends its way through the courts? What’s SCOTUS going to say about it if the case actually makes it that far? (Or is it bad form to armchair lawyer?) Could you guys give us a brief summary of how you’d handle the cases if you arguing them (preferrably from both sides)? \*\* FWIW, here is a link to the [11th Circuit decision](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=11th&navby=case&no=9910798OPN) that reversed and remanded the case back to trial in the first place. That’s a good place to start. I may post more later after I’ve had some time to read it. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 11, 2003, 10:38pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/103 "2003-04-11T22:38:53Z")
> [@](#): > > \*Originally posted by Sauron \* > \*\*You’ve got to be kidding. The AG of Texas, the highest law enforcement officer in that state, routinely and publically encourages the police **not** to enforce some laws? How can he do that and not get disbarred? \*\* **Sauron** , you’re missing a point. His job, as regards constitutionality, is to enforce the law, not “the law **s**.” > [@](#): > > This Constitution…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (U.S. Constitution, Art VI, par. 2) If Alabama adopted a statute providing that the official faith of the State of Alabama shall be the Southern Baptist Convention, it would be Pryor’s sworn duty to inform the D.A.'s and police of Alabama that anyone attempting to enforce that statute will be prosecuted under section 4 of the U.S.C (not sure which title). That’s an extreme example, but if the Alabama Legislature passes a law that, interpreted one way, could infringe on, e.g., freedom of speech or assembly, his job is to define how to enforce it so that it does not so infringe. (E.g., time, place, and manner regulations that do permit legitimate public speech and assembly are legitimate, content-based regulations, or rules that people can gather to protest statutes only between the hours of 3:00 and 6:00 AM on Tuesday mornings, are not.) ---
**Author:** ![Mockingbird](https://avatars.discourse-cdn.com/v4/letter/m/c68b51/32.png) [@Mockingbird](https://boards.straightdope.com/u/Mockingbird)\ **Post date:** [April 11, 2003, 10:40pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/104 "2003-04-11T22:40:46Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*Cite for the propositon that a person has been executed who was actually innocent? > > I’m aware of many cases where prisoners have been spared the death penalty on various grounds – some more compelling than others. That would seem to indicate the appeals process works. But you’re saying more than that – you’re saying people have actually been executed. Do you have hard evidence for that proposition, or is it just your gut feeling? \*\* The appeals process works? _Sure it does._. Look up the information on Latherial Boyd who was put on death row in Illinois. Also check out: [http://archive.aclu.org/news/w072297b.html](http://archive.aclu.org/news/w072297b.html) [http://www.afsc.org/pwork/0499/049906.htm](http://www.afsc.org/pwork/0499/049906.htm) I am quite surprised by the perception that you seem to feel no innocent men or women have been executed. Can you support that belief? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 11, 2003, 10:42pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/105 "2003-04-11T22:42:38Z")
> [@](#): > > \*Originally posted by Tejota \* > \*\*Nope. This is where you are wrong. He lost the first round. He could have walked away. If he didn’t want to win, he _would have_ walked away. > > There is nothing unethical about fighting the good fight at loosing. But stepping up to the plate an **optional** second time is choice, not ethics. The AG’s office simply doesn’t have the resources to try ever case to the fullest extent. Choosing whether or not to appeal a loss is precisely the sort of discretion we expect of the AG’s office. \*\* You’re the one who’s wrong. Sorry. This isn’t a matter of what the AG wants personally – it’s a matter of what is in the best interests of his client, in this case the state of Alabama. The state has an interest in defending its laws from constitutional challenge. It would be half-assed for their counsel to turn down an appeal if they have a colorable chance at victory, just as it would be half-assed for a criminal defense attorney to refuse to appeal a guilty verdict that he felt could be overturned. In the private sector, that kind of thing can get a lawyer sued for malpractice. I should also note that he didn’t “lose the first round.” He won it. He went to the 11th Circuit and got the case reversed and remanded for a new trial (to the same judge, as it happens). And after briefly skimming that 11th Circuit decision, there is a very good chance he will win the second round, too. In this instance, Pryor is fulfilling his duties to his client. ---
**Author:** ![Sofa\_King](https://avatars.discourse-cdn.com/v4/letter/s/58956e/32.png) [@Sofa\_King](https://boards.straightdope.com/u/Sofa_King)\ **Post date:** [April 11, 2003, 10:43pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/106 "2003-04-11T22:43:09Z")
**Sauron** , thank you for pointing out that interpretive error on my part about Justice Moore. I apologize for that. However, the article above which I cited also states: > [@](#): > > Carol Faulkenberry, a member of the Alabama Freethought Society that had challenged Moore in the original Ten Commandments suit," warned that “referring the matter to Pryor is a joke in view of the fact that he once appeared at a massive rally in support of Moore, and his public position that the reason why he became a lawyer in the first place was to fight the ACLU.” And in fact, I searched the Alabama AG’s website, news services, Google, etc. without finding a single reference to charges being brought against the Justice by Pryor in the nearly four years since that recommendation was made. I call that refusal to prosecute, but will gladly retract that statement if someone can show me an outcome of the AG’s promise to “handle it the way I handle any other referred case” other than complete inaction. I suspect a contradiction in the AG’s promise to “vigorously defend” the Justice’s statue when compared with four years of inactivity against alleged improprieties on the part of the Justice himself, and that was what I intended to show. Regarding the streamlining of the death penalty, Pryor [specifically proposed](http://www.fdp.dk/act/no_lawyers.php) this, according to the New York Times: > [@](#): > > Attorney General Bill Pryor of Alabama said he saw no need for the state to pay for death penalty appeals beyond the first when there is no right to them. Mr. Pryor said the state should increase the money paid to trial lawyers for indigent defendants. If a defendant gets a fair trial, he said, there should be no need for several rounds of appeals. Now, this isn’t a direct quote, but I suggest that the above paragraph paraphrases something Pryor said. I’ll also point out that the last sentence in that paragraph is, according to my mere paralegal expertise, rather obvious by itself. But taken as a complete statement, it _almost_ sounds as if the AG is trying to say that paying more money to trial lawyers somehow adds credibility to a decision against someone facing death row, and justifies not giving the defendant the right to further appeals if he or she can’t afford it. I’m _sure_ that’s not what the AG actually said, because if he did, it’s completely fucking insane. I really do think Pryor is trying to do his job as he sees fit. He seems pretty good at it, too. I don’t see it his way. I’m not trying to impugn his character, I’m just pointing out what he is done which I _personally_ find to be a little bit scary. “Scary” can be perfectly legal, as I learn more and more every day in this wonderful age in which we live. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 11, 2003, 10:46pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/107 "2003-04-11T22:46:51Z")
> [@](#): > > \*Originally posted by Mockingbird \* > \*\*I am quite surprised by the perception that you seem to feel no innocent men or women have been executed. Can you support that belief? \*\* I don’t have to. You’re the one making the claim, so it is up to you to back it up. And proving a negative is absurd anyway. So tell us: what innocent prisoners have been actually executed? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 11, 2003, 11:05pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/108 "2003-04-11T23:05:00Z")
Thats kind of a last-ditch, legalistic defense, **Dewey**. As I’m sure you know, its kind of unlikely that anyone is going to go to court to prove a dead man isn’t guilty of a crime. So you’re on pretty safe ground there. (Can that even happen? Isn’t that what you scoundrels mean by “moot”?) But lets reverse the question: we know a whole bunch of people were wrongfully convicted. Happily, they were released before thier situation became fatal. Nonetheless, an appalling injustice has been done. Personally, I cannot _imagine_ the suffering to ones self and one’s family, Bad enough when you’re actually guilty of something. But you wish us to accept that because _some_ miscarriages of justice have been reversed, that must be taken as proof that _all_ such miscarriages have been reversed. This is Faith That Surpasseth All Understanding. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 12, 2003, 3:38am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/109 "2003-04-12T03:38:52Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*But you wish us to accept that because _some_ miscarriages of justice have been reversed, that must be taken as proof that _all_ such miscarriages have been reversed. \*\* I have said no such thing. The fact that some prisoners have been freed is not proof that all prisoners who should be freed have been, and I never, ever made such an absurd claim. I have simply said that the assertion that guilty people have been executed is, at best, unproven. And as for my “legalistic defense:” who said I required proof to be by judicial decree? Surely if someone’s been wrongly executed, some enterprising investigative journalist or academic researcher can compile a case demonstrating that fact. ---
**Author:** ![OxyMoron](https://avatars.discourse-cdn.com/v4/letter/o/e9a140/32.png) [@OxyMoron](https://boards.straightdope.com/u/OxyMoron)\ **Post date:** [April 12, 2003, 4:15am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/110 "2003-04-12T04:15:57Z")
I would add that wrongfully convicted /= factually innocent. Under our constitutional system, there are any number of bases upon which a defendant may be found to have been wrongfully convicted, and yet be guilty as the day is long. The Rehnquist court has been narrowing these somewhat, but they’re still there. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 12, 2003, 4:59am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/111 "2003-04-12T04:59:31Z")
The three rational government interests claimed by Alabama: (1) banning the public display of obscene material (2) banning “the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relationships,” (3) banning the commerce in obscene material. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 12, 2003, 5:06am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/112 "2003-04-12T05:06:33Z")
> [@](#): > > Alabama argues “a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate legislative interest in discouraging prurient interests in autonomous sex” Translation: The state has an interest in discouraging women from having orgasms on their own. > [@](#): > > and that “it is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.” Health? hahahahahahaha! If I were working on the case I’d probably bring in volumes and volumes of research showing that masturbation is not detrimental to ones health. Morality? When the fuck will these people learn that crime and sin should not always be synonymous? What kind of vaporous standard is this? I think voting Republican is immoral, but it certainly isn’t illegal. ---
**Author:** ![Mockingbird](https://avatars.discourse-cdn.com/v4/letter/m/c68b51/32.png) [@Mockingbird](https://boards.straightdope.com/u/Mockingbird)\ **Post date:** [April 12, 2003, 5:21am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/113 "2003-04-12T05:21:40Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*I don’t have to. You’re the one making the claim, so it is up to you to back it up. And proving a negative is absurd anyway. So tell us: what innocent prisoners have been actually executed? \*\* I brought forth data supporting the basis of my thought. And as I have brought it, YES you have to. It is not a negative. We are talking about human lives. This is not simply a cerebral debate, but an important issue about the value of life and the fallibility of a legal system that has assigning death as an option. ---
**Author:** ![Mandelstam](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Mandelstam](https://boards.straightdope.com/u/Mandelstam)\ **Post date:** [April 12, 2003, 6:03am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/114 "2003-04-12T06:03:53Z")
**Dewey Cheatem Undhow** : _I’ve read the links in the OP and the links from **DDG** ’s post and I see nothing remotely resembling what you describe."_ Telling reporters that he is “happy with the ruling” does not sound to me like the expression of a man with a clothespin firmly clasped to nose. It’s very simple: Alabama’s law prohibits consenting adults from purchasing harmless accessories to be used in the privacy of their own homes. Pryor has publicly said that he is “happy” to see that law law upheld. That should be sufficient evidence for anyone to see that either he agrees with the law personally, or he’s courting the religious-right constituency that does. _“The seat is in the 11th Circuit, so as a practical matter the judge has to come from Alabama, Florida or Georgia (the senators from those states would almost certainly put a “hold” on any nominee not from the area). The retiring judge he would be replacing, Emmett Ripley Cox, is also from Alabama, so there is naturally a strong desire to seat a fellow Alabaman. As the AG of his state, Pryor certainly has extensive legal experience of the kind typically valued in appellate court nominees. And there are assuredly political reasons: Pryor is presumably a Republican with strong ties to the party establishment in the state.”_ This is all smoke and mirrors. Unless you are trying to tell me that there is no other qualified lawyer in any of these states–including Alabama–who doesn’t have this type of profile, we still have to come back to the fact that Bush makes this choice freely. I’m sure if Bill Clinton or Al Gore were making this nomination we’d end up with a rather different Alabamian, Georgian, or Floridian. _“There may well be better candidates for the job from Alabama. But given Pryor’s position, he is an unsurprising nominee for the open seat.”_ Fair enough–I don’t dispute it. I simply wish to add: given Bush’s need to court the religious right, it is unsurprising that he would nominate an AG willing and ready to fight to uphold the government’s right to tell you what you can do in your bedroom. It’s as simple as that. Bush scores points with his base whenever he make this kind of nomination: whether it’s by narrowing the scope of civil rights legislation, or limiting access to abortion, or, in this case, precluding a woman’s right to choose something of a different order ;). _“By the way, Pryor isn’t a lawyer in the AG’s office – he’s the AG. I very much doubt that he’s the one actually appearing in court.”_ And that should make a difference, why? _“If Bush had selected a candidate who was a former criminal defense attorney who said he would “vigorously” defend a mass murderer, would you take that as evidence that Bush had some connection to the moral worldview of mass murderers?”_ Of course not. I would take it as evidence that Bush believed in the presumption of innocence and other lynchpins of our liberal legal system. Your analogy is deeply flawed since the right to a good legal defense and a fair trial, no matter how heinous the crime of which one is accused, is an uncontroversial doctrine, as American as apple pie. Do you really expect us to accept a parallel between “innocent before proven guilty” and a ban on sex toys? _Oh, I agree it may be bad politics. There are any number of Democrats who are willing to scream “Bush is nominating a dildo-hater” to score political points (just as, to be fair, there are any number of Republicans who would have been willing to scream “Clinton is nominating a gun-banner” for the same reason). Important points about a lawyer’s ethical obligations are easily lost in the political sturm and drang – just look at the majority of posters in this very thread."_ Oh, I see. So judicial nominations aren’t ever (or even primarily) about politics but are actually about purely ethical obligations to the law. So I guess right about now you’ll be changing your moniker from **Dewey Cheatem Undhow** to **Butter Doesn’t Melt in his Mouth**. To wit: _of course it’s about politics._ And the politics in question are Bush’s: his desire to keep his political base as happy as possible. And the truth is that he seems entirely unambivalent about doing so. Because, contrary to his pre-election reputation as a “moderate” conservative, the man in is, IMO, a true believer. I just love it when East Coast republicans of the type I imagine you to be are this dishonest with yourselves about such issues. Admit it: Bush in particular and the Republican party in general depend on voters like the good old boys and gals in Alabama who think that vibrators are manufactured by Satan himself. An honest pragmatist or cynic would just admit that this is the price that socially liberal Republicans have to pay if they way to advance their economic and foreign policy agendas. _“I’d like to believe that, on this message board in particular, that substantive points would eventually win out over heated political rhetoric.”_ Yeah, I’d like to believe that too. But a “see no evil” posture towards the repressive sexual morality of one’s own political allies is hardly the stuff of which “substantive points” are made. ---
**Author:** ![Mandelstam](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Mandelstam](https://boards.straightdope.com/u/Mandelstam)\ **Post date:** [April 12, 2003, 6:06am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/115 "2003-04-12T06:06:34Z")
Ugh! Bad typo day: “the price that socially liberal Republicans have to pay if they _want_ to advance their economic and foreign policy agendas.” ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 12, 2003, 8:14am UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/116 "2003-04-12T08:14:23Z")
Can the State pass anything it wants to on the basis of “morality”? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 12, 2003, 1:36pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/117 "2003-04-12T13:36:57Z")
> [@](#): > > \*Originally posted by Mandelstam \* > \*\*Telling reporters that he is “happy with the ruling” does not sound to me like the expression of a man with a clothespin firmly clasped to nose. It’s very simple: Alabama’s law prohibits consenting adults from purchasing harmless accessories to be used in the privacy of their own homes. Pryor has publicly said that he is “happy” to see that law law upheld. That should be sufficient evidence for anyone to see that either he agrees with the law personally, or he’s courting the religious-right constituency that does. \*\* God, what an utter crock of bullshit. Every lawyer is generally happy when they get a favorable ruling from an appellate court; it means they won, for Christ’s sake. I mean, really, what do you expect him to say? “I won, and that pisses me off?” Don’t be absurd. That quip is the kind of bland statement EVERY lawyer gives to the press when he scores a legal victory. Christ, do you think criminal defense attorneys are “happy” to see violent criminals returned to the street when they express pleasure at a favorable ruling? \*\* > [@](#): > > This is all smoke and mirrors. Unless you are trying to tell me that there is no other qualified lawyer in any of these states–including Alabama–who doesn’t have this type of profile, we still have to come back to the fact that Bush makes this choice freely. I’m sure if Bill Clinton or Al Gore were making this nomination we’d end up with a rather different Alabamian, Georgian, or Floridian.\*\* Oh, I’m sure if Clinton or Gore were making this nomination that the nominee would have strong ties to the Alabaman Democratic Party rather than the Republican party. That would shut Mr. Pryor right out. But the other factors I discussed would certainly remain valid. And I’m not saying that “no other lawyer” fits that profile – I’m saying that that combination of factors narrows the pool of candidates considerably. \*\* > [@](#): > > And that should make a difference, why?\*\* It doesn’t. The post I was responding to was worded such that it appeard the poster believed Pryor was a lawyer within the AG’s office rather than the AG himself. I was just giving the poster an FYI. \*\* > [@](#): > > Of course not. I would take it as evidence that Bush believed in the presumption of innocence and other lynchpins of our liberal legal system. Your analogy is deeply flawed since the right to a good legal defense and a fair trial, no matter how heinous the crime of which one is accused, is an uncontroversial doctrine, as American as apple pie. Do you really expect us to accept a parallel between “innocent before proven guilty” and a ban on sex toys? \*\* The notion that a lawyer has to give an vigorous defense on behalf of his client is an equally uncontroversial doctrine in the realm of attorney professional ethics. In filing his appeal, Pryor is doing what a good lawyer does – seeking to vindicate the position of his client. \*\* > [@](#): > > Oh, I see. So judicial nominations aren’t ever (or even primarily) about politics but are actually about purely ethical obligations to the law. So I guess right about now you’ll be changing your moniker from **Dewey Cheatem Undhow** to **Butter Doesn’t Melt in his Mouth**.\*\* Oh, I agree there are ample politics surrounding judicial nominations. I don’t think I ever said anything to the contrary. All I’m trying to do is distinguish the meaningless, baseless, heated political rhetoric from actual substantive criticisms. The notion that filing this particular appeal is a proper source of criticism is simply wrong. Not that I expect the knee-jerkers to listen to reason.\*\* > [@](#): > > I just love it when East Coast republicans of the type I imagine you to be are this dishonest with yourselves about such issues. \*\* Don’t ever fucking associate me with Rockefeller Republicanism again. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 12, 2003, 1:54pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/118 "2003-04-12T13:54:36Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*The three rational government interests claimed by Alabama: > > (1) banning the public display of obscene material > > (2) banning “the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relationships,” > > (3) banning the commerce in obscene material. \*\* **Blalron** , you’re overlooking a key point – Alabama _won_ the rational basis argument in the 11th Circuit. Challenging a law on rational basis grounds is generally an exercise in futility. All the state has to do is set forth a reason for its law that isn’t completely insane, and by “insane” I mean the law would have to be completely unrelated to the stated goal of the legislation. If Alabama decided to ban three-story buildings as a means of reducing the number of sex shops, that might fail the rational basis test. Maybe. Protecting or promoting local views on morality are in fact one of the bases a state can assert as “rational” in defending a particular piece of legislation. Those bases will survive the rational basis test, even though they may not survive constitutional challenge on other grounds. At the 11th Circuit, Alabama won the rational basis argument and the facial invalidity based on right to privacy grounds argument. They tied on an “as-applied” argument also based on privacy grounds – the 11th Circuit felt there weren’t sufficient facts in the record to make a determination on that claim and sent it back to the district court for such findings. ---
**Author:** ![Mandelstam](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Mandelstam](https://boards.straightdope.com/u/Mandelstam)\ **Post date:** [April 12, 2003, 2:57pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/119 "2003-04-12T14:57:19Z")
**DCU** : _“Don’t ever fucking associate me with Rockefeller Republicanism again.”_ Well if you want to be characterized precisely, you’ll have to be more specific than that. This is what Woodward and Bernstein would call “a non-denial denial” ;). I take you to be someone who supports the main prongs of the Republican economic and foreign policy agenda but draws the line at sexual repression and other incursions on privacy. Is that incorrect? Assuming it is correct: are you or aren’t you ready to concede that Bush in particular, and the Repubican party in general, relies upon a religious-right base that is _eager to tell the rest of us what we can and can’t do in the bedroom_ (not to mention how often to pray, whether or not to believe in god, etc. etc.). Once you make that concession it’s impossible to ignore the fact that _this kind of judicial nomination comes directly out of that political obligation._ It is, in other words, one of many juicy Bush bones tossed to the religious right. Alabama has plenty of Republican moderates who are party loyalists: _Bush just doesn’t like nominating or appointing moderate Republicans for almost any position_. He _loves_ to court the far right flank of his party, and _he doesn’t draw the line at regulation of sexual morality._ (All of which suggests to me that he himself is on board; though that’s not important to my argument.) The rest of your position is a lot of huffing and puffing about how much autonomy an AG does or doesn’t have to take up a negative ruling or not. But the bottom line is that, in Pryor’s case, we can only speculate based on the facts. And the facts are 1) he took it up this issue and 2) there is no evidence of a clothespin to the nose. Since not even you deny that _every_ AG has at least _some_ autonomy to pick and choose, I repeat that your entire argument, such as it is, rests on the _hypothesis_ that Pryor himself isn’t either a) personally happy with the sex-toy ban, b) happy to court those who are, or c) both. But for that fairly limp hypothesis, we’ve just got another far right judicial nominee from President Bush, and one who, in this instance, has a record of willingness to defend Puritanical incursions on sexual morality. Well isn’t that a surprise. :rolleyes: ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 12, 2003, 3:33pm UTC](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942/120 "2003-04-12T15:33:15Z")
> [@](#): > > \*Originally posted by Mandelstam \* > \*\*The rest of your position is a lot of huffing and puffing about how much autonomy an AG does or doesn’t have to take up a negative ruling or not. But the bottom line is that, in Pryor’s case, we can only speculate based on the facts. And the facts are 1) he took it up this issue and 2) there is no evidence of a clothespin to the nose. \*\* It would be unethical of him _not_ to take up the issue, and you have sent forth no evidence of his personal opinion of the statute. Expressing pleasure at a courtroom victory is not the same as expressing a love of the statute. N.B.: I am not saying, and have not said, that Pryor _isn’t_ a member of the religious right. He may well be. He may well adore this statue and think it the finest bit of public policy ever put into motion by the state of Alabama. But his appeal of a ruling on this statute is not, standing alone, evidence of that fact. I would expect the same conduct of any AG, regardless of their personal political viewpoints. I also note that in this instance it appears Mr. Pryor has the better of the legal argument. He won at the 11th Circuit on two of the three arguments presented, and basically tied on the third argument (the appeals court needed more facts and thus remanded for same). I’m hearing a lot of bleating in this thread about how awful it is that Mr. Pryor appealed the district court ruling. What I’m _not_ hearing, tellingly, are serious-minded arguments as to why the state of Alabama is wrong in its legal analysis. [Previous page](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942.md?page=5) [Next page](https://boards.straightdope.com/t/dewey-minty-come-a-runnin/167942.md?page=7)