Kerfuffles

The court’s favorable ruling in this case expands significantly the government’s “duty to assist” mentally ill veterans, such as Mr. Barrett.

I posted previously about the veterans’ case, “Disabled Veterans,” argued last spring by Mr. James R. Barney, of Finnegan Henderson, Washington DC, BARRETT v. DVA. According to Mr. Barney, as of 11 October 2006, the case has been decided and it is a very good result for the veteran. Perhaps it is not such a good result for the American taxpayers, and for that they can thank former President George H.W. Bush.

The United States Court of Appeals for the Federal Circuit has reversed and remanded the Veterans Court’s decision in Barrett v. DVA, which was handled pro bono by the Finnegan Henderson Law Firm at oral argument. This is an important veterans decision that significantly and positively affects the rights of veterans who are appealing adverse decisions from the Board of Veterans Appeals. In short, Mr. Barrett was seeking to establish equitable tolling based on mental incapacity in order to preserve his appeal, which had been dismissed for failure to timely file his NOA. He asked the Veterans Administration to provide a psychiatric examination to help him establish the strict criteria for proving equitable tolling. The VA refused to provide an examination, arguing that it had no duty to assist the veteran once his case was on appeal. The veteran appealed that decision to the United States Court of Appeals for the Federal Circuit.

The ruling of the U.S. Court of Appeals for the Federal Circuit, authored by Judge MAYER, is quite broad and will likely have an immediate and beneficial impact on mentally ill veterans, of whom there are many, who find themselves caught between the non-adversarial and adversarial systems of the appeals process. The following quote sums up the ruling:

“Here Barrett specifically requested a medical examination by DVA doctors to clarify the nature of his mental incapacity during the appeals period. Because such an exam will plainly assist in clarifying his entitlement to equitable tolling, is consistent with the kinds of evidence uniquely within the knowledge and competence of the government . . ., and ensure the reality and appearance of systemic fairness, the Secretary shall provide Barrett with his requested medical examination, as well as any other assistance deemed reasonably necessary by the Veterans Court.”

That is a good result for veterans.

[UPDATE: The case cited below has been decided as of 11 October 2006: “Good News for Disabled Vets.”]

The Revolution Continues:

The United States Court of Appeals for the Federal Circuit is now posting digital recordings of oral arguments on the Court’s Internet site at www.cafc.uscourts.gov/oralarguments. The following is a link to the oral argument in the recent case entitled Barrett v. Principi, which was before the Court of Appeals for the Federal Circuit on 11 July 2006. The oral argument can be heard from the Court’s website where it is posted: http://www.cafc.uscourts.gov/AudioFiles/05-7113.mp3

The issue in this case is whether the government had a duty to assist a mentally ill Vietnam veteran who failed to file a timely notice of appeal in order to keep his disability claim alive at the Veterans’ Court. The panel of three judges included Chief Judge Michel (the highest ranking judge on the Court), former Chief Judge Mayor (a West Point graduate) and Senior Judge Friedman, (possibly the longest sitting judge on the Court).

If the court rules in favor of Mr. Barrett, the government’s “duty to assist” mentally ill veterans, such as Mr. Barrett, would henceforth be significantly expanded.

The very competent and able attorney-litigator representing Vietnam veteran Barrett, is himself a veteran of the United States Navy, Mr. James R. Barney, of Finnegan Henderson, Washington DC.

President George Bush gives his State of the Union speech tonight, but it is the confirmation of Justice Samuel Alito which will really make not only his day, but will make his legacy. Justices Samuel Alito and John Roberts are the crowning glories of the presidency of George W. Bush. President Bush, if he were to do nothing more for the next three plus years, has extended his presidency’s influence far into the future of this nation with these two outstanding choices. Of Samuel Alito who was confirmed today, President George W. Bush said, “America is fortunate that this good and humble man is willing to serve.”

From Our Loving Friends - The Gay self-Haters.

According to James Joyner at “Outside the Beltway”, “Michael Rogers at BlogActive, which bills itself as ‘Real Truth, Direct Action, threatened last night to ‘out’ a married Republican Senator as homosexual if he voted to confirm Judge Alito.”

Joyner writes that the “BlogActive” site published this warning to the unnamed Senator: “Tomorrow you will decide if your political position is worth more than doing what is right for others like you. … Your fake marriage, by the way, will NOT protect you from the truth being told on this blog.”

Therefore, expect today to hear the name of a married Republican Senator slandered as a “homosexual”. What if no Republican Senator is outed today? Was Michael Rogers’ threat naught but idle bombast, not worth the spittle required to utter it? Or was it because Senator Lincoln Chafee of Rhode Island was the only Republican to vote No?

The real question is … who is truly more sick, demented and repugnant; a closeted homosexual, or a liberal Democrat self-hating gay? The legal question is … is blackmail of a United States Senator legal? If so, perhaps “BlogActive” will be getting a not so friendly visit from the FBI.

“And THAT is MY Opinion…” has the most descriptive blog posting of the Dems’ dilemma: It Must Really Suck To Be A Democrat. HA! There is a picture of this snickering dog, appropriately named, “Laughing at Lefties”, and the reasons for laughing are:

• Senate to Decide on Ending Alito Debate
• Efforts to Block Alito Vote Not Gaining Steam
• Republican-led Senate defeats bid to stop Alito
• Discussion at Democratic Underground -
  http://www.democraticunderground.com/discuss/

DU is on Def Con 5, they are imploding… They aren’t letting *lurkers* in to watch the slaughter, so much for Liberal *openness*…

No one has threatened suicide, yet, but many are threatening to leave the Dem party, register as Independents or, just not vote…

The following “great advice” is from Pat Cleary at Manufacturers’ Blog:

Senate Judiciary Committee To Vote on Alito Nomination

Today, the Senate Judiciary Committee is expected to vote on the nomination of Judge Alito to the US Supreme Court. Here’s a link to the full Judiciary Committee. Please phone, fax, or e-mail them and urge them to support his nomination.

Beginning tomorrow, his nomination should go to the floor of the Senate and debate will begin. For most of the past hundred Justices or so, debate is brief and more of a pro-forma exercise. Please click here to urge your Senators to have a quick up-or-down vote on Judge Alito. Even if they don’t support him, they ought to vote their conscience and move on. Delay is a way to postpone the inevitable, and is unfair to Judge Alito and the Constitutional process (anybody remember the Constitution….?) In fact, the latest poll shows that support for Judge Alito actually increased after his hearings, and his supporters now outnumber is opponents by almost 2-to-1.

This is the home stretch. If you care about legal reform, it begins at the top.

Does he love Princeton or does he hate it, as he has said in the past? Well, he was wearing a Princeton baseball cap, whatever that meant. “Bitter, Bruised and Broken” is how Flora McDonald at “United Conservatives of Virginia” describes Delaware’s Senator Joseph Biden after the Senate’s Judiciary hearings for Judge Samuel Alito. There is even proof in this funny picture (Joe Biden Offering Free Brain Transplant), posted at “End Clintonism Now.”

Biden was funny - much too funny to ever become “Mr. President”, but Uncle Teddy was a mean ole grouch. “Stop this donkey-&-elephant show” writes Colin McNickle in today’s “PITTSBURGH TRIBUNE-REVIEW“:

(Senator Ted) Kennedy huffed and puffed and reduced himself to wheezing when he couldn’t blow Alito’s house down. So he grabbed some straws in the martini cloakroom and resorted to the worst kind of smear imaginable over Alito’s “troubling” affiliation with that horrid — HORRID! — Princeton alumni club. Mr. Kennedy brought Alito’s wife to tears. You’re a big man, Teddy, in more ways than one.

Don’t laugh as Diane Feinstein Grills Alito on Rulings in Key Environmental Cases. You would hide your face in shame too, if you were a Democrat member of the Senate Judiciary Committee, having failed in your party’s proclaimed mission to destroy Judge Samuel Alito.

Enshrining Justice Harry Blackmun’s Legacy to His Nation

At “Choose Life” I encountered the following quotes from the Left’s legal scholars:

• “This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence….no legal rule or doctrine is safe from ad hoc nullification by this Court…in a case involving state regulations of abortion.” ~~Justice Sandra Day O’Connor, Thornburgh v. American College of Obstetricians and Gynecologists
• “Roe v. Wade…ventured too far in the change it ordered and presented an incomplete justification for its action.” ~~Justice Ruth Bader Ginsburg, North Carolina Law Review
• “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” ~~Laurence Tribe, Harvard Law Professor, Harvard Law Review
• Roe v. Wade is “a very bad decision…because it is not constitutional law and gives almost no sense of an obligation to try to be.” ~~John Hart Ely, Yale Law Professor, Yale Law Journal
• “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible…[it is] one of the most intellectually suspect constitutional decisions of the modern era.” ~~Edward Lazarus, former clerk to Justice Harry Blackmun (Author of Roe), FindLaw’s Writ
• “Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion.” ~~Benjamin Wittes, Washington Post Legal Affairs Editorial Writer, The Atlantic Monthly

Somehow, Kerfuffles has found herself upon the Democrats’ mailing list. Yes, it’s true that Barney Frank’s sister, Anne Lewis, has been spamming Kerfuffles in the hopes of receiving donations to beat back those “wascally wepublicans”. Here’s the latest about Justice Sunday and that extremist Senator, Rick Santorum:

Ed at Captain’s Quarters was there, blogging the event. (more…)