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FUMARE

Law, culture, and Catholicism...up in smoke!

Saturday, June 11, 2005

NOW v. Fumare? NOW's president responds...

It is extraordinary to see a party to a pending Supreme Court cert petition so insecure in its legal position that its chief executive feels the necessity to respond to a little Fumare blog entry posted by someone who -- it's worth noting -- was still in elementary school when NOW filed its lawsuit against Joe Scheidler, et al, 19 years and one day ago (happy anniversary, Ms. Gandy).

Not willing to let the truth get in the way of a last-ditch legal argument, NOW's retort is primarily a rehash of its response brief [PDF] in opposition to Scheidler's cert petition, and its rationalizations are soundly refuted by the Scheidler defendants' reply brief [PDF].

Far more interesting than what she says is what Ms. Gandy doesn't say in her retort. For example, she says nothing about Judge Diane Wood's membership or non-membership in NOW. (For those just joining us, Judge Wood authored the opinion that the Supreme Court reversed 8-1 in 2003, the unpublished order a year later in 2004 resuscitating the case, and the published opinion this year denying the petition for rehearing.) You'd think that if anyone other than the judge knows this information, Kim Gandy would. If Sullivan's Judicial Profiles: The Illinois Judicial Directory were somehow inaccurate (e.g., Judge Wood resigned her membership and just overlooked the annual update forms that Sullivan's sends year in and year out to all judges listed), and if Prof. Gaffney were wrong in relying on the Sullivan's directory, wouldn't Ms. Gandy have jumped at the chance to point out such an error? How is the fact that the judge who authored the 7th Circuit's opinions in NOW's favor is listed as a member of NOW helpful to Ms. Gandy's credibility or that of her organization and its position?

Nor does Ms. Gandy utter more than a passing reference to the RICO injunction issue that -- beyond a doubt -- the high Court would have addressed and resolved in 2003, having had the benefit of full briefing and oral argument on the issue, if the Justices even remotely contemplated the possibility that some sort of private RICO injunction might still be entered in this case.

Instead, Ms. Gandy grasps at one of the weakest straws in NOW's argument: the issues raised by Scheidler "are simply not ripe for Supreme Court review at this point." Wrong, Kim. However, but for the 7th Circuit, they would be moot.

Bottom line: no matter how hard NOW tries to parse the clear, unequivocal language of Chief Justice Rehnquist's opinion for the 8-1 majority in Scheidler II, it will be unable to explain away the unambiguous commands -- three "musts" reinforced by the powerful adverb "necessarily" -- that require an end to this chicanery. Don't just take this blogger's word for it, though. Read and decide for yourself what the Chief Justice meant by these words, the final sentences of his Scheidler II opinion:
Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated. We therefore need not address the second question presented–whether a private plaintiff in a civil RICO action is entitled to injunctive relief under 18 U.S.C. § 1964.
What is it about Chief Justice Rehnquist's successive phrases "must be reversed," "must also be reversed," and "must necessarily be vacated" that NOW and Ms. Gandy don't understand?

The only possible explanation is NOW's myopic zeal in intimidating and harrassing peaceful, non-violent abortion protesters. The unfortunate result? Now entering its 20th year, NOW's lawsuit continues to be rotten to the core, emitting a stench that undermines respect for law and the federal courts.

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