As even casual readers have no doubt figured out, I view Virginia's new Attorney General, Ken Cuccinelli, as form of cancerous growth on the state. The question is one of how much damage he will be able to inflict on Virginia before he leaves office. While he's a darling among the insane tea party set, demographic growth in Virginia is in regions where Cuccinelli's extremism will be less likely to resonate, hence his political future is questionable in the longer term. Indeed, but for the success of Bob McDonnell's dishonest campaign in which he pretended to be a moderate and the debacle of the Creigh Deeds campaign, the Cooch might well not have been elected to the office of Attorney General. Something that Cuccinelli in his delusions of grandeur doesn't seem to grasp. Slate has a piece that looks at Cuccinelli's questionable legal quest to challenge health care reform, not to mention his larger agenda of turning Virginia back to a time which can best be described as a time when every white man had the right to own a black man and women and gays knew their place. Here are some highlights from Slate:*
Virginia's attorney general, Ken Cuccinelli II, is a man in a big, big hurry. . . His claim is that a federal statute is stepping all over a new Virginia law. But he knows he can't readily overcome the U.S. Constitution's supremacy clause, which expressly states that federal law shall be the "supreme Law of the Land."
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Virginia's Cuccinelli's legal claim, however, has come in for some extra-special scorn from legal scholars on both the right and the left. In a conference call with reporters this week, Erwin Chemerinsky—dean of the UC-Irvine School of Law—reiterated that as with the battle over desegregation in the '50s and '60s, "states can't just block the implementation of federal laws." Doug Kendall, founder of the Constitutional Accountability Center, says that of the two suits, "the Virginia law suit is even more problematic because the Virginia statute at the center of their suit is a ham-fisted attempt at nullification." . . . Not to mention that conservatives ranging from President Reagan's solicitor general, Charles Fried, to former federal appeals court judge Michael McConnell have blasted state laws that attempt to opt out of the health-reform law as legally "meaningless," "preposterous," and "absurd." As Fried told NPR's Nina Totenberg this week, it was earlier attempts at "so-called nullification" that led to the Civil War.
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So what do we make of Ken Cuccinelli, . . ? Cuccinelli has already enraged some Virginians by filing a lawsuit asking the EPA to reconsider regulating emissions. He also bolstered his image as the lawyer with the itchiest trigger finger in America by writing a letter directing all Virginia universities to remove language related to sexual orientation from their anti-discrimination policies. Following a massive campus backlash, Gov. Bob McDonnell issued a nonbiding "executive directive" to the state workforce reminding them that discriminating based on sexual orientation could get you fired. Cuccinelli either embarrassed his boss into offering a full-throated defense of gay rights in Virginia or is positioning himself as the wacky Tea Party foil to the governor's kinder, gentler conservative.
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Just as he wishes climate science to be untrue, he crosses his fingers and dreams that a state nullification statute will undo a federal law. It's bad enough when TV pundits proclaim that what case law and the Constitution say doesn't matter; the only important thing is what the public wants. But when attorneys general start to offer up such arguments in legal pleadings, it transcends legal activism and starts to look like pure ideological yearning. And that's a particularly cynical enterprise for someone who preaches fidelity to the law and constitution as written.
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