February 25th, 2011

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"Better The Day of One's Death Than One's Birth"

"A good name is better than precious oil, and better the day of one's death than one's birth." -- Ecl. 7:1

One would be tempted to see that as a rather despairing quote for my birthday -- unless of course one knows of my affection for Kohelet (Ecclesiastes). As I have often said, I believe Kohelet is meant to be a profoundly life affirming book. As I was reading the Midrash Rabbah in preparation for giving a drash this week, I came upon the following in Shmot Rabbah 48:1 "And behold I call by name B'tsalel."

"A good name is better than precious oil." How so? For a drop of precious oil will only run so far, but a good name shall run until the end of days. (B'tsalel's name, because it is preserved in the Torah, lives forever.)
"Better the day of one's death than the day of one's birth." For the day of one's death is far greater than the day of one's birth. How can this be? For on the day of one's birth, one cannot know what one will achieve. But on the day of one's death, one's deeds will live forever. (I interpret this as meaning one's deeds will be recorded and judged by God and one's good deeds therefore will endure forever.)

I'm not a big one for birthdays, but it is a good time to reflect. At 43, I may have many years to go, or I may pass away at any moment. By actuarial tables, odds are good I am at about the half-point in my life. Hopefully, I am living a life that will provide me with a tally of deeds at the end that will be suitable for God to judge and remember for 1000 generations, rather than a tally to be remembered until the 4th generation. ("He remembers good for 1000 generations . . . and visits iniquity unto the fourth generation.")
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I have now read the Holder letter

OK, I'd love to see the actual legal analysis.

I'm now even more annoyed, as a lawyer who actually does federal litigation on a regular basis and where the Republican Administration routinely and sincerely believes that regulations that I believe are lawful and necessary violate the First and Fifth Amendments.

So because the Second Circuit has *no* standard for review the Administration is just going to abdicate the defense of a statute? Will this be valid for all cases of first impression? The question of establishment of a standard of review is one of the critical elements of the case.

Furthermore, even if it were established that strict scrutiny applied, it would be the obligation of the Administration to defend the law under that standard. It may not like it. But they have an obligation to do it.