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Sunday, August 31, 2003

Let's compromise on the basis of 'you lose, we win'

From an editorial in today's Houston Chronicle entitled "Ample Exits:   Plenty of ways to end state's redistricting standoff":

The wayward senators say they will return to Texas if Dewhurst agrees to reinstate the Senate's traditional two-thirds rule, which for decades has applied to the Senate's most important legislation....

So far, litigation has solved nothing, but Gov. Perry could end the war single-handedly by promising not to add redistricting to the next special session. If Perry and U.S. House Majority Leader Tom DeLay really believe redistricting would benefit the citizens of Texas, however, the governor should have the next special session consider legislation to create a nonpartisan commission to redraw congressional district lines after the 2010 U.S. Census. The primary House sponsor is state Rep. Scott Hochberg, D-Houston. State Sen. Jeff Wentworth, R-San Antonio, filed similar legislation in the Senate. 

This makes my teeth hurt.  If I'm ever in a room together with a journalist who says Lt. Gov. Dewhurst has abolished or abandoned or changed a Senate rule in the redistricting fight, said journalist is likely going to show up at the nearest emergency room suffering from the adult equivalent of "shaken baby syndrome."  It's ... a ... LIE!

And the Chronicle's proposed compromise amounts to nothing more than "Dems win, Republicans lose."

As I've said several times before, I'm in favor of taking redistricting out of the hands of the Legislature and making it nonpartisan.  I don't know enough about Rep. Hochberg's or Sen. Wentworth's specific proposals to comment on either.

But I'm at a loss to understand how, on the one hand, the Chronicle can recognize that all gerrymandering is ugly, and on the other hand it suggests that we spend the next seven years and the next four Congressional elections under what's essentially a set of Congressional boundaries gerrymandered to be pro-Democrat based on the 1990 Census.

[sarcasm on] Uh-huh!  Right!  Oh yes, that's a sound basis for compromise!  Let's let the Dems retain a gerrymandered majority in the Texas delegation to the US House for the rest of this decade.  Let's ignore the 2002 election results, and let's ignore the fact that the Legislature — not the federal courts — are assigned the task of redistricting by the US Constitution as interpreted by the US Supreme Court.  By 2011, there will probably be a renewed appetite among Democratic legislators for another extended stay in New Mexico. [/sarcasm off]

Litigation actually is about to solve something.  When the Truant Texas Dems™ get poured out by the three-judge panel just convened in Barrientos v. Texas, their choices for how to proceed will be cut to exactly two:

  • Come home for a third special session with a majority-rule vote that they will lose; or

  • Stay outside the boundaries of the State of Texas until their legislative terms expire after the 2004 elections — and hope they can keep solidarity among at least eleven Democratic senators for this entire long exile. 

We're approaching the end-game either way, and the time for them to make a real compromise is fast slipping away from them.

Posted by Beldar at 03:51 PM in Texas Redistricting | Permalink | Comments (0)

When do 'mistakes favoring your side' become 'lies'? Tick-tock ...

A very slick website called "SaveTexasReps" collects pro-Truant Texas Dems™ info, editorials, and links.  I've emailed its webmaster, however, to point out that on one purely factual matter — the number of Republican-appointed judges on the three-judge panel who created the present Texas Congressional district map — it's dead-bang wrong.  This particular falsehood is extremely widespread — Sen. Leticia Van de Putte has frequently repeated it at press conferences, for instance. 

So the question is, do the Truant Texas Dems™ and their supporters give a damn about being factually accurate?  When confronted on a falsehood on a matter of objective, historically verifiable fact, will they acknowledge and fix the falsehood?  Or will they continue in repeating something that — after they've been put on notice — can then only be characterized as a deliberate lie?

From my email to the webmaster:

----------------------------------------------

From: William J Dyer
To: webmaster@savetexasreps.com
Sent: Sunday, August 31, 2003 3:14 AM
Subject: Notice of factual error on your website and request for correction & acknowledgement of same

Dear "SaveTexasReps.com" Webmaster,

Your website's homepage at http://savetexasreps.com/ contains this blurb:

These partisan special interests are trying to force the Texas Legislature to draw new congressional districts -- even though the current plan was devised by a panel of three Republican-appointed federal judges and has been approved by the Republican-dominated U.S. Supreme Court and ruled on by the Republican Texas Attorney General, who says that it can stay in place until 2010.

You are in error.  The Balderas v. Texas panel in 2001 that created the current Congressional district map consisted of one circuit judge appointed by a Republican President (Judge Higginbotham, appointed by Ford to the Northern District of Texas bench, and later elevated by Reagan to the Fifth Circuit) and two district judges appointed by a Democratic President (Eastern District of Texas Judges John H. Hannah, Jr. and T. John Ward, both appointed by President Clinton). 

I invite you to independently confirm these facts, or, if you'd like a shortcut, you can find links documenting these facts at this link.

Much of what is being said in the redistricting battle consists of opinions or metaphors or analogies, all subject to subjective interpretation and spin.  The composition of the Balderas panel, however, is a matter of verifiable and objective historical fact, about which there can be no reasonable doubt. 

The particular canard that appears on your website — and variations on it which claim that there were two Republican-appointed judges on the panel — have been widely spread in the press, on the internet, and even in press conferences by some of the Democratic Senators.

I request that you correct your error and — as would any good and ethical journalist — publish an acknowledgement of the correction that's at least as prominent as the original error.  If you decline to do so, it may suggest to fair-minded observers that telling the truth is a low priority on your website.

Best regards,

- William J. Dyer
a/k/a Beldar of BeldarBlog
http://beldar.blogs.com/beldarblog/

----------------------------------------------

UPDATE (Mon Sep 1):  I received this prompt reply by email from the webmaster:

From: Nathan Wilcox
To: William J Dyer
Sent: Sunday, August 31, 2003 3:38 AM
Subject: RE: Notice of factual error on your website and request for correction & acknowledgement of same

Thanks for the info, I'll research the issue and change if/when convinced that you are correct.

However, I'm not a journalist. SaveTexasReps is an openly partisan site, I'm not claiming to be objective, I'm a citizen expressing my own viewpoint.

thanks,
Nathan Wilcox
Save Texas Reps

Note the time — within minutes after my original email!  I was impressed, and surprised to find another holiday-weekend night-owl.

Mr. Wilcox' point about not being a journalist is a fair one.  The question, more fairly put, was whether he merely an honest and mistaken political webmaster, or a lying one.

Screen captureOver a full day later, the falsehood is still posted.  In fact, the same falsehood also appears on the "What's at Stake" and "Redistricting Primer" linked pages as well as the website's home page, by the way.

So now it would seem that the question is whether Mr. Wilcox is at best an honest, mistaken, and slow political webmaster, or instead a lying one.

And after some email exchange with him about a week ago, I'm still waiting for Dr. Josh Marshall to publicly correct his mistake in his article in The Forward in which he said the Balderas panel contained "two Republicans and one Democrat."  No one can say for certain whether any of these judges actually belong to either party, but one can say with absolute certainly which party the President who appointed them belonged to — which, it's clear from our email, is what he was trying to do when he made the mistake.  It appears I rather overestimated Dr. Marshall's integrity and attention to detail, which saddens me.

UPDATE (Thu Sep 4 @ 7:30pm):  A little after noon today, Mr. Wilcox emailed to advise me that his website has corrected its errors regarding the composition of the Balderas panel — "and rather quickly, I feel, considering the holiday weekend," said he.  One might quibble about that, given that during the same period he (or someone) managed to do more-frequent-than-daily updates of other parts of the website, send mass emails to their mailing list, and carry on with other activities.  One might also note that no acknowledgement of the errors or the corrections appears on the website, so those who have been misled by this falsehood in the past are likely to remain misled; this too says a great deal about one's passion for accuracy and ethics, or the lack thereof.  As he wrote, he is not a journalist, but rather a partisan; still, is it not possible to be partisan and concerned with accuracy?  But given that he did eventually make the corrections, I'll give him the benefit of concluding that he is an honest, mistaken, and slow partisan webmaster, rather than a deliberately lying one.

I've heard nothing from Dr. Marshall either, which truly does disappoint me.  I have no reason to believe that his was other than an honest mistake, made and repeated in good faith.  But he is a journalist, or holds himself out as one.  I had hoped for better of him.

Posted by Beldar at 03:19 AM in Texas Redistricting | Permalink | Comments (2)

Saturday, August 30, 2003

Blame-America-firsters react predictably to another soft-target tragedy in Iraq

Blogger Jeanne d'Arc at Body and Soul has a predictably left-of-center piece of America-blaming on the tragic bombing of the mosque in Najaf.   Tacitus' comments to her post have sparked a spirited discussion, of which I think he's got the better.  (His own blogpost, with a huge number of comments, is here.)  But I'm perhaps over-influenced by my shock that Jeanne still doesn't know who's to blame for the security breaches that led to the UN compound bombing almost two weeks ago.

UPDATE:  Add another left-of-center blog to my list of "those that appear to be open to civil discussion but actually can't tolerate any non-left opinions being expressed, especially ones with awkward facts."   For the sin of linking to a couple of my own prior posts rather than cutting and pasting the individual links contained therein, I've been labeled a "link whore" by Jeanne.  (This notwithstanding the fact that one of the links in my own piece was to the same NYT article that one of Jeanne's regular friends gently pointed out proved Jeanne wrong about the UN and American offers of security.)

She also apparently deleted a pair of comments I'd left on another post, and zapped the trackback I'd left on the bombing post.  I'm now told that indeed I'm not welcome on her blog because one of those comments asked if she'd considered and found a reason to reject three posts that I linked which contained reviews of three different books about the "werewolves" in post-WWII Germany; one of the reviews was in Free Republic, which Ms. d'Arc apparently regards as ... well, I dunno, something beyond the pale and worthy of immediate censorship regardless of content.  I wasn't endorsing either the review or the book being reviewed, but simply was asking if she was aware of them.  And the other comment she deleted contained links to an articles from the LA Times and Slate, those bastions of fascism! 

Such thin skin, such contempt for honest discussion.  And the fact that my ex-wife's name is "Jeanne" has nothing to do with my annoyance.  Really.  It doesn't.

UPDATE (Sun Aug 31):  Ms. d'Arc has also gone so far as to delete a comment from one reader who dared to suggest that I was being polite by merely linking back to my own lengthy blogs instead of cutting-and-pasting them in full into hers.  How someone who's left-of-center can be such a disgustingly enthusiastic censor is beyond me.  Ms. d'Arc has not, however, found the time to acknowledge that her original "rebuttal" to Tacitus' comment was just dead-bang wrong.

Posted by Beldar at 08:23 AM in Current Affairs, Weblogs | Permalink | Comments (0)

Colley-vorn-ya!

www.JoinArnold.com — the Schwarzenegger campaign’s official website – was formally launched on Friday.

Mr. & Mrs. Terminator
So says the press release on the website itself.

The site was surprisingly long in coming, given that Ahh-nuld already had the URL from his Prop 49 after-school initiative last year.  "Prior to today’s formal launch, more than 15 million people have visited JoinArnold.com."   

That's probably only slightly behind the number of hits on those websites that are hosting the full-frontal nude body-builder shot of Mr. S. from back in the 1970s.  (No, I'm not going to link them, but you can find them yourself without much trouble.)

Ahh-nuld's entry into the race was the inspiration for my very first political blogposting when I started up BeldarBlog three weeks ago.  (Has it only been that long?)  I'll miss the inspirational "demand more than just showing up" graphic that adorned the site when it was under construction.

The new site looks pretty slick.  I admit to some giggling when watching the linked TV commercial from the homepage:   the musical score is sort of like what I remember from Reagan's famous "Morning in America" ads, but with Ahh-nuld's heavy Teutonic accent, you expect it to be a little more Wagner-like and a little less John Williams-like. 

The one thing that struck me as odd on a quick tour of the site, though, is how little Maria shows up.  Maybe they're trying to keep her as the "anti-Hillary," out-of-sight, so as to avoid offending Republicans who are reminded every time they see her of her Kennedy-clan status. 

But I think that's a mistake — the ones who are likely to be turned off by that are aware of it anyway.  Making her more prominent would help combat the tabloid-trash that's floating up, plus possibly attract some cross-over Dem voters who see Maria's presence as a reassurance that Ahh-nuld's a RINO.

If I were running the campaign, I'd have a big picture of the two of them, looking gorgeous — maybe running together on the beach or through the redwoods or something else obviously Colley-vorn-yan — and then feature Maria's "no-Viagra-within-50-miles"  quote in a headline font right below it.

By the way — am I the only blogger who always cuts-and-pastes his surname, rather than trying to spell it?  I think probably not!

Posted by Beldar at 07:31 AM in Politics (2006 & earlier) | Permalink | Comments (0)

What Judge Kazen really said on Wednesday

I owe Southern District of Texas Chief Judge George Kazen an apology!

In my post on Wednesday about the hearing he conducted that morning, I said:

From the combined press reports of his comments, it looks as if Judge Kazen wandered a bit off the farm in his public policy critiques. But I'm not too torqued about that since that stuff was all dicta — not precedent, not binding on anyone, and not actually any of his business as a federal judge.

But I've now read the official 77-page transcript of the hearing, and all I can say is:   Mea culpa maxima, Judge Kazen!  I made the cardinal mistake of believing the popular press accounts of what you'd said!

For instance, Houston Chronicle reporter R.G. Ratcliffe, whom I mistakenly praised on Wednesday for the "best reporting of the day," had said this in the second sentence of his article:

U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money.

Pretty strong stuff!  The only problem is, Judge Kazen never said the key words "wrong" or "waste."  And what he did say, he expressly said speaking as a "private citizen," not as a judge.

In a BeldarBlog-scoops-the-world original, here's what Judge Kazen actually said:

[BY THE COURT:]  For example, I mean, the argument [by the Dems] that even thinking about redistricting [before the 2010 Census] is a voting rights violation strikes me as almost bizarre.  I mean, I — I would say that it's bad policy.  I mean, I think as — again, as a citizen, it's sort of like the California recall.  I mean, you have an election one year and then do it all over again the next year and waste a lot of time and money.  I mean, the reason people don't redistrict every other year is because it's a horrendously controversial task.  It's a cumbersome task.  It's an expensive proposition.  It generates litigation and so forth.  I think it's a bad idea, but — the idea that it's somehow — the mere thought of passing a bill is a voting rights violation, it seems to me, is — is odd.{1}

At the most, these few lines, taken out of context, possibly suggest that the Republican leaders of the state are engaging in "bad policy" that is a "bad idea"  in Judge Kazen's view "as a citizen," rather than as a judge.  But that's a far cry from a federal judge saying in his capacity as a federal judge that the Republican leaders' attempt to achieve a legislative redistricting for the first time since 1991 is "wrong" — which was the word Ratliffe's article used, as if it had been a combination indictment, conviction, and sentence from the bench.

What about the "waste of money" comment?  Again, that's a much stronger formulation than the actual words Judge Kazen used:

[BY THE COURT:]  But, Counsel, let me tell you something, and then we are probably just digressing.  And I — again, I'm speaking partly as a private citizen.  I mean, my — if I were a state senator, I might be doing the same thing.  I mean, I think it's not, by any stretch, the highest priority in the State of Texas.  I think if you asked a thousand people what's the biggest problem in the State of Texas, congressionally redistricting would be way down at the bottom.  I thought the State was virtually broke and, yet, they're spending all this money to do all this.

But the fact of the business is the — you know, in a legislative body, you know, you win some and you lose some.  I mean, it's not that the senators are not — I know they represent people. But if they're in the minority — let's leave the voting rights out of it.  If they're in the minority, they're going to lose some votes.  I mean, the democratic party in Washington loses all the time now.  And — and to say, well we — you know, we — but we can do all these things without any kind of sanctions because we're representing our people and, gee, if we show up, we're going to lose the vote, I mean, that's what the country — that's how the country works.

MR HICKS:  But that's not how —

THE COURT:  The majority — the majority wins, which is why it's important for people to go to the polls and wake up and decide who they want to be in — in power or not.  Because the majority generally wins in a — in a legislative body.{2}

If you read the entire transcript, it is absolutely clear that Judge Kazen was musing, thinking out loud, speculating — rather than trying to announce his formal assessment on any issue except for one, that being whether the Dems' lawsuit is so entirely frivolous that it doesn't even merit convening a three-judge court for the purpose of deciding whether to toss it out.   

And the lines I've quoted here are just about the only even semi-encouraging words that Judge Kazen had for the Dems in 77 pages of transcript.  Even they are surrounded by critical observations — in the first excerpt, Judge Kazen's skepticism of the Dems' claim that it's an automatic violation of the Voting Rights Act for the Republicans to try to pass any sort of redistricting bill at all before the 2010 Census, and in the second excerpt, Judge Kazen's skepticism that merely losing a majority-rule vote in the Legislature in and of itself qualifies as the abridgement of a protected minority voting right, even if the losing legislator or his constituents are members of a protected minority class.

I speculated from the press reports that Judge Kazen was looking for a way to throw some cold water on both sides to move them toward settlement.  It's much harder to draw that inference from the actual transcript.  Other than a throw-away compliment that the judge made regarding the quality of the Dems' briefing — the kind of solace you give to a lawyer when you're shooting him down in flames on the merits — there was essentially nothing in this hearing from which the Dems should have taken any comfort.

Ratcliffe wasn't alone in hearing what he wanted to hear, however.  Gary Susswein and Laylan Copelin, writing for the Austin American-Statesman, didn't use the sexed up words like "wrong" or "waste," but were equally guilty of taking isolated musings of the judge, speaking as a private citizen, and reporting them as if they were official judicial pronouncements:

Kazen was skeptical about the Democrats' legal argument, but he repeatedly said he sympathized with their political argument. He said it's bad public policy to redraw congressional boundaries this year, and he said it's not a priority for the state of Texas.

It's not part of a federal judge's job description to take sides as between two political parties, nor to substitute his own judgment for that of elected legislators on matters of state public policy.  But that's what the liberal press wants federal judges to do in this case, and like Sen. Van de Putte, their perception of events can obviously sometimes be skewed by that desire.

I should have known better, frankly, than to think that Judge Kazen would "wander off the farm."  At the most he can be gently faulted for musing aloud as a private citizen while he was on the bench, in the presence of reporters from the popular press, and "on the record."  For anyone who understands the process, his doing so was trivial, definitely a case of "no-harm, no-foul" with respect to the merits of anyone's claims or defenses in the lawsuit. 

I doubt that any of the lawyers present were as deluded as the reporters apparently were.  But I frankly, naively, expected better from experienced political reporters from a couple of the state's largest and most respected newspapers.  I dunno why, but I did.

---------------------------------

{1}"Transcript of Hearing Before the Honorable George P. Kazen, United States District Judge," dated August 27, 2003, reported by Leticia E. Verdin, Certified Shorthand Reporter, and filed on August 29, 2003, under Docket Entry No. 23 in Gonzalo Barrientos et al. v. The State of Texas et al., No. L-03-CV-113 in the United States District Court of the Southern District of Texas, Laredo Division, at page 12, lines 7-20.  The full transcript, in a .pdf file that's 2.6MB in size, can be downloaded via Pacer for about $7 if you have a Pacer account set up.

{2}Transcript at page 26, line 15, to page 27, line 19; emphasis added by BeldarBlog.

Posted by Beldar at 05:27 AM in Texas Redistricting | Permalink | Comments (1)

Friday, August 29, 2003

Sexist, anti-democratic MoveOn.org nears $1 million goal for "Defend Democracy in Texas" ad campaign

MoveOn.org's logoThe trademarked graphic for MoveOn.org is subtitled "Democracy in Action."

As its "Current Campaign," MoveOn.org now has its "Defend Democracy in Texas" program — to raise $1 million for an ad campaign to support the Truant Texas Dems™ — at the very top of its website's homepage.  This in turn links to a page with the familiar text entry fields for your MasterCard or Visa number — along with a bar graph which reveals that MoveOn's "progress thus far" toward their $1 million goal is "98.77 percent funded" as of the moment I'm posting this.

Besides being overtly sexist, however, their website demonstrates that the folks at MoveOn.org — if they really want to have anything to do with "Democracy in Action" — ought to spend some of that $1 million to buy a clue as to what constitutes small-d "democracy"!

Here's the homepage teaser designed to take you back to the page with the field for your credit card info:

Impeachment. The 2000 Election. The California Recall. The pattern is becoming clear:   there's a group of men in power who will do anything to consolidate that power, including undermining our democratic institutions. We've got to fight back. In Texas, they are fighting back. And while the world is focusing on the California mess, they are fighting alone. They need our help.

A partisan plan pushed by Karl Rove and Tom Delay [sic] will redistrict up to 7 Democrats out of Congress. Right now, 11 Democratic State Senators are hiding across state lines — with the Texas Governor calling for their arrest — to prevent this illegitimate plan from being strong-armed into law. They have put their reputations and careers on the line for all of us. Please help us launch a hard-hitting ad campaign to fight back in Texas.

(Emphasis added.)   It's not quite as dramatic as watching the numbers climb on a Jerry Lewis Telethon, but there probably will be some folks in Albuquerque punching their browser "reload" buttons on the page with the bar graph all weekend.  Sen. Gonzalo Barrientos and Sen. Eliot Shapleigh only raised $4200 at a fundraiser in Colorado on Thursday.  A Reuters report in the Houston Chronicle quotes MoveOn.org's "organizing director," Zack Exley, as saying that the "Defend Democracy in Texas" program is "the single biggest fund-raising campaign we have done on a single issue."  (Hat-tip to Votelaw for the link.)

Maybe if they get to $1 million, MoveOn.org can afford to fix the sentence fragment at the end of their bullet point list in the "letter" from Sen. Rodney Ellis that I Fisked on August 22nd.

But rather more seriously, does it strike anyone else as Orwellian when a campaign designed to thwart a majority-rule legislative vote is described as a campaign to "defend democracy"?  Or when the holding of a majority-rule legislative vote is described as "strong-arm[ing]" a plan into law?  Or that simply trying to achieve a Senate quorum — specifically for the purpose of discharging the responsibility for Congressional redistricting that the United States Constitution assigns to the democratically elected state legislative and executive branches, rather than to a panel of unelected federal judges — is described as "undermining our democratic institutions"?

Sen. Florence Shapiro (R-Addison)As for the "group of men who will do anything to consolidate that power":   Does it occur to the folks at MoveOn that there were a few women among the millions of Texas voters who in the 2002 elections gave the Republicans their first majorities in both chambers of the Texas Legislature since Reconstruction and denied the Democrats every one of Texas' 29 state-wide offices? 

And doesn't MoveOn.org owe an apology to Republican Texas Senators Jane Nelson and Florence Shapiro for implying that the votes they would cast on behalf of their constituents — votes favoring redistricting — somehow don't count? 

Sen. Jane Nelson (R-Grapevine)Senator Nelson happens to represent my older brother, a white male Republican orthodontist, a conservative born-again Christian who plays tennis pretty well.  He and my sister-in-law Shelli have raised three beautiful kids in the affluent suburbs mid-way between Dallas and Fort Worth, one of those places where Texas' population has just boomed since the 1990 census.  I know he's anathema to MoveOn.org, and it to him, but — well, he does pay his taxes, quite a bit more than I do, in fact, and even though we disagree sometimes, he and Shelli do agree with me and Sen. Nelson on the need for redistricting.  He'd like to see a little bit of small-d democracy on his behalf, notwithstanding all those disabilities.  Is it really unfair for him to expect that the State Senator who he helped elect will at least get a chance to cast a vote on this issue?

While they're at it, shouldn't MoveOn also apologize to the nineteen women serving as Republican State Reps — Betty Brown, Carter Casteel, Myra Crownover, Diane Delisi, Mary Denny, Peggy Hamric, Linda Harper-Brown, Suzanne Hupp, Elizabeth Jones, Lois Kolkhorst, Jodie Laubenberg, Geannie Morrison, Anna Mowery, Elvira Rayna, Debbie Riddle, Vicki Truitt, Arlene Wohlgemuth, Martha Wong, and Beverly Wooley?  Those are women whose votes for redistricting have also been thwarted by the House and Senate Democrats who've fled from Texas this summer for the sole purpose of protecting gerrymandered districts that are rigged to keep in office several white male incumbent Democratic Congressmen.

Rep. Martha Wong (R-Houston)I was one of the 53.1 percent of the voters — 24,524 people in State Representative District 134 — who elected former Houston City Councilwoman Martha Wong as a rookie to the Texas House in 2002.  She voted for redistricting.  Are she and her entire constituency part of the "group of men who will do anything to consolidate [their] power"? 

Or does Martha Wong — and do I and 24,523 other voters in District 134 — just not count at all when MoveOn.org defines small-d "democracy"?  Is this the "disenfranchisement of minorities" about which the Truant Texas Dems™ are prattling on?

Meanwhile, in the US House of Representatives, I'm represented by a white male Democrat, Rep. Chris Bell.  Rookie Bell succeeded Ken Bentsen, another Democrat, with 55 percent of the vote in 2002, and he's one of the white male incumbent Democrats whose seat was protected by the 2001 Balderas panel of judges, but now may be at risk in redistricting.  I guess he's one of Leticia's children, too, but all things considered, I'd be glad to see him lose his gerrymandered-to-stay-Democratic district.

I've said before, and I repeat, that this is indeed a fight about democracy.  It's just that MoveOn.org and the Truant Texas Dems™ are on the side against democracy.

Posted by Beldar at 10:22 PM in Texas Redistricting | Permalink | Comments (0)

Thursday, August 28, 2003

Beldar will likely vote 'Yes' on Prop 12, but for an odd reason

The Curmudgeonly Clerk has a very thorough and extremely useful post up that contains a huge amount of factual information, both pro and con — plus all the links you could ever want — regarding Proposition 12.  This is the proposed amendment to the Texas Constitution that would

allow the legislature to statutorily cap non-economic damages (i.e., non-compensatory damages) in civil suits. Proponents of the measure argue that out-of-control medical malpractice costs that drive away doctors require the measure's passage. The amendment's detractors accurately note that the proposal would give the state legislature a free hand to limit damages in all civil matters, not just healthcare-related suits.

I'm leaning toward voting 'yes' on Prop 12 — which may be somewhat self-destructive, since the firm to which I'm "of counsel" more frequently represents personal injury plaintiffs than personal injury defendants (or their insurers).  My reason for probably voting that way is also odd — a really wonky one that I haven't seen either side argue.

The anti-Prop 12 pitch

Welcome to another episode {note1} of "I knew them when ...":   For a short time in the early 1990s, I was a shareholder — essentially what's generally thought of and referred to as a "partner" — in the Houston office of Dallas-based Thompson & Knight, and one of my counterparts in the firm's Trial Department in Dallas was Deborah Hankinson, who thereafter served as one of the Associate Justices of the Dallas Court of Appeals and then the Texas Supreme Court.  She's now back in private practice, but her reputation as a pro-business, conservative Republican judge caused several folks to sit up and take notice when she became one of the highly visible leaders of the campaign to defeat Prop 12. 

Judge Hankinson has authored a sort of letter-brief/editorial arguing against Prop 12, and it reads very much like the Texas Supreme Court's opinion from Lucas v. United States, 757 S.W.2d 687 (Tex. 1988), in which then-Justice William Kilgarlin led the charge to declare unconstitutional a tort-reform "cap" on damages that the Texas Legislature had passed in 1977.  Nobody else could rouse the rabble with a good piece of populist demagoguery quite the way that Bill Kilgarlin could!

Prop 12 would basically amend the Texas Constitution to overrule Lucas, and Judge Hankinson thinks that would be a bad thing because it would upset the "separation of powers" balance by putting too much power into the hands of the Legislature, ostensibly at the expense of Texas courts and juries.

But Beldar thinks ...

With all due respect to Judge Hankinson and other opponents of Prop 12, however, I just think that's a completely bogus argument.  I thought so when Lucas was announced and I still think so now.  Nobody's being denied "access to the courts" — that's just a load of crap, a complete red herring argument, although it surely sounds good.  This sort of state-level substantive due process — reading substantive rights into provisions of the Texas Constitution that seem fair, as deemed by judges, never mind that they're nowhere written down — is as fundamentally unprincipled at the state level as it is at the federal level. 

Basically, for reasons you can read about in any high school civics book, I think that the legislative branch of government ought to be free to adjust our whole civil-law structure pretty much unimpeded by constitutional handcuffs.  For the exact same reasons that it's a good thing for the Legislature to be able to create statutory claims that didn't exist "at common law" — including such things as survivorship actions or consumer protection cases under the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA") — it's a good thing for the Legislature to be able to dial back on claims that first arose "at common law," including personal injury claims of all sorts.

Who do you want to trust to tweak these knobs?

I frankly don't know whether the specific caps contained in the Legislature's latest efforts at tort reform will or won't solve the "insurance rate and availability crisis" that's being bandied about as the chief reason for passing Prop 12.  I suspect the Legislature doesn't really know that either. 

But the Legislature is the right branch of government to make that decision in the first instance — to experiment and tinker and tweak the system.  If they screw it up worse, they can fix it.  That's why the DTPA's been amended so many times since it was originally passed in 1979, for instance — it's on the whole a far better piece of legislation after some unintended imbalances were fixed, and it still has ample teeth to serve its original purposes even though most of the amendments have been cutting back on its original strength.

For me, then, it comes down to a representative small-d democracy issue.  Those state senators and state reps  may in fact all be clowns, but they're our clowns.  Discipline for Legislators should come at the ballot box, rather than through clumsy constitutional handcuffs.  As a public policy matter, we're better off giving the Legislature broad authority, and then holding the Legislators accountable at the polls.  This beats either having the Supreme Court managing public policy through the meat-axe of declaring legislation unconstitutional, or having the public at large micro-manage things like tort reform in the guise of constitutional amendments.

Now, I know my position runs contrary to a long-standing and well-justified suspicion in Texas that the Legislature is an extremely dangerous thing.  Here's the oldest joke in Texas politics: 

"Say, do you know the most significant typographical error in Texas history?  Why, it was the accidental reversal of some numerals in the Texas Constitution — the Legislature is really only supposed to meet every 140 years for 2 days, and not the other way around!"

But in short, while Prop 12 is about separation of powers, it's an appropriate restoration of legislative prerogatives that simply undoes the power-grab by the then-populist Texas Supreme Court in Lucas.  Populism may have its place, but better that it be in the executive and legislative than the judicial chambers of state government.

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{note1}The next installment of this game is likely going to be a variation and elaboration on "I did blue-book cite-checks for Houston mayoral candidate Bill White back when I was a staffer and he was the editor-in-chief of the Texas Law Review."  He's a public figure now, so I guess I'm immune from whatever defamation claims he might bring against me unless he can prove both falsity and "actual malice."  Mwah-hah-hah!  That leaves lots and lots of room!

The alternative title of this game, of course, is "Famous people I've known along the way whose careers have far surpassed my own," but it's less fun to play when I call it that.

-----------------------------

UPDATE (Sat Sep 6 @ waytoolateatnight):    Walter Olson at Overlawyered has graciously linked to (and complimented) this post, but he has also gathered many other links to posts that discuss Prop 12, pro and con.  If you didn't get here via his post, you may well want to check out some of the other links he's collected!

Posted by Beldar at 10:12 PM in Politics (2006 & earlier) | Permalink | Comments (9)

Debridement

There are those who are cautioning against too much drama and realism in our remembrances as we approach the second anniversary of 9/11.  "Don't rip open the scabs," they say, "We need them to heal!"

They don't understand.  America is not yet in the process of genuine healing from the wounds of 9/11.

We're still undergoing debridement.

From the Merriam-Webster's Online Dictionary:

Main Entry: de·bride·ment
Pronunciation: di-'brEd-m&nt, dA-, -"mänt, dA-brEd-'män
Function: noun
Etymology: French débridement, from débrider to remove adhesions, literally, to unbridle, from Middle French desbrider, from des- de- + bride bridle, from Middle High German brIdel -- more at BRIDLE
Date: circa 1842
: the surgical removal of lacerated, devitalized, or contaminated tissue
- de·bride /di-'brEd, dA-/ transitive verb

Among the most severe pain known to humans is that experienced by third-degree burn victims as they undergo debridement of their blackened, burnt, stinking, crusted, oozing, infection-prone, necrotic skin. 

By definition, their burns have penetrated too deeply into the layers of the skin for the normal scabbing-over and healing processes to work.  Literally cutting away and stripping off the dead skin is the only route to recovery.  So before healthy, functional, ugly scar tissue can form, the rawest of flesh must be completely exposed and scrubbed clean.  Every nerve ending protests its agony; if no precautions are taken, patients have been known to bite through their tongues before passing out, even when heavily anesthetized and sedated.

Don't kid yourselves, folks:    Metaphorically, that's us.  We didn't get a national case of light sunburn.  We had the emotional equivalent of napalm sprayed on us, and the burns were third-degree.  Before we can heal, before those wounds can scar over, we have to finish our debridement.  There's no avoiding it, and ignoring or postponing it only makes it worse.

9/11 was a worse shock than Pearl Harbor.  It killed more Americans than D-Day, and in a fraction of the time.  We still take mournful note of those events each December 7th and June 6th, even those of us who were born well after World War II was over, even more than 50 years after those events.

Within 5 minutes after I watched the second jet hit the second tower, I was on the phone to my ex-wife to make arrangements to pick up our kids from school.  "This is going to be like when JFK was shot," I said.  She and I were first-graders when that happened, just old enough to be among Americans who remember that as a dividing event in our national history — a "where were you when you heard?" moment, a "nothing will ever be the same" moment.

It simply stuns and appalls me that so many have forgotten so much so quickly.  It seems at times that in the minds of most of our French and German and Belgian allies, for instance, 9/11 has already receded to about the same intellectual and emotional status as a really good Hollywood action movie, remembered two years later.  "Oh, yes!  What a show that was, I remember I felt like I was almost a part of it at the time!  Great cinema!  Such special effects!"

And the number of genuinely good Americans who've put back on their blinders — who've willed themselves to forget, and to think we're healed and that all is as it was — is tragic.

Forgetting ...   Is ...   Not ...   ACCEPTABLE!

Once a year, each anniversary — every 9/11 — we desperately need to remember as vividly as possible what happened:   How we felt; how stupidly innocent and trusting we were before; how devastated we were after.    How everything changed, and why — now — we finally "get it." 

Yes, of course it will hurt.  When you're doing debridement, it all hurts — except for the dead part.  Those of us who are still here to feel the hurt owe it to those who aren't — both to those who were killed on that day, and to those who've been killed since then as part of the long and far-from-complete war to avenge 9/11/01 and to prevent any more 9/11s.

And it's the job of the media, all media, to help us remember.

-----------------------------

(Hat-tip to an excellent post by susanna of the cut on the bias blog, which was the proximate inspiration I had for writing this post, although I've been thinking these thoughts for some time and will likely have more to say on the subject between now and 9/11/03.)

UPDATE (Sat Aug 30):  michele of a small victory has similar sentiments in a fine post entitled No Ordinary Day, chock-a-block with links and followed by some excellent comments.  (Hat-tip to boswell of American Digest for the link.)

Posted by Beldar at 07:10 PM in Current Affairs | Permalink | Comments (0)

Clueless in D.C.

Although the Texas press and the blogosphere are paying attention, the national conventional news outlets seem to be slipping into a stupor when it comes to Texas redistricting.

From the transcript of "Washington Week Online" printed in today's WaPo and listed as "Thursday, August 28, 2003; 2:00 PM":

San Francisco, Calif.: Please talk about the Texas redistricting and the threatened arrest of the fleeing Democrats. Why is this not getting the attention that the California recall debacle is receiving?

Gwen Ifill [Moderator, Managing Editor & PBS Anchor] Gwen Ifill: Eleven Senate Democrats are still holed up in Albuquerque, New Mexico, and the legislature has adjourned. So nothing new is actually happening in the Texas redistricting case. Meanwhile, in California, the country's most populous state, the voters are poised to throw the recently reelected governor out on his ear, possibly replacing him with a movie actor. You tell me which one of those stories sound more like news to you.

(Emphasis & bracketed portions added by BeldarBlog.)  Good catch, Gwen!  You've managed to completely miss yesterday's federal court hearing and ruling — the direct results of which may end up causing a several-vote swing in the composition of the 2004 US House of Representatives

I could find no mention of the hearing, in fact, anywhere in today's WaPo, or on the PBS/Newshour website, or even in today's edition of the nation's "newspaper of record," the NYT.  For that matter, I haven't seen the hearing mentioned on any major national blogs, left or right — which is grassy-knoll odd!

AP affiliates all over the world, however, do have a typically mangled version of the story (continuing to refer to Lt. Gov. Dewhurst as "dropping a rule that requires two-thirds of senators to agree to consider a bill," for instance).

Posted by Beldar at 06:30 PM in Texas Redistricting | Permalink | Comments (0)

Beldar's free, fair & balanced legal advice to Fox is vindicated!

Fully clothed: Fox News' lawyer, Dori Ann Hanswirth of Hogan & HartsonPositive correlation?  Yes!  Causal connection?  Well ... almost certainly not. 

(Although in skimming logs to see where my blog's referrals are coming from, I've been absolutely stunned at the large number of Google searches that have led folks here based on the phrases "Dori Ann Hanswirth" and/or "Hogan & Hartson."  Maybe if I use "Dori Ann Hanswirth NAKED" as a keyword ....)

Balance is Important in News, Hot Coffee, and LawBut after ignoring my first post with advice on its lawsuit against Al Franken and his publisher, Fox News has followed my advice in my second post.  WaPo reported today that "Fox dropped the suit Monday after a federal judge rejected its request for an injunction." 

The story also contains this jaw-dropper about Franken's book:

"Lies" contains lots of citations and statistics because Franken, during a fellowship this year at Harvard's Shorenstein press center, was given 14 research assistants to help him scour the media archives.

Posted by Beldar at 07:35 AM in Law (2006 & earlier) | Permalink | Comments (0)

Wednesday, August 27, 2003

The panel picked, Beldar makes a plea and a prediction

Plan1151CThe Fort Worth Star-Telegram (oddly enough picked up by out-of-state papers via Knight Ridder Newspapers before it's on the S-T's own website!) reports that the three-judge panel to hear the lawsuit brought by the Truant Texas Dems™ will consist of —

  • US District Judge George P. Kazen of Laredo, a Carter appointee who's the Chief Judge (based on seniority) of the Southern District of Texas;

  • US District Judge Lee H. Rosenthal of Houston, a GHW Bush appointee; and

  • US Circuit Judge Patrick E. Higginbotham of Dallas, a Ford appointee to the district court who was promoted by Reagan to the Fifth Circuit.

Judge Higginbotham was also on the Balderas v. Texas three-judge panel in 2001 which created "Plan 1151C," the Congressional district map that was used in the 2002 election and remains in effect today.  The panel was selected by Fifth Circuit Chief Judge Carolyn Dineen King of Houston, a Carter appointee.

The US Court of Appeals for the Fifth Circuit is headquartered in New Orleans, and press accounts often misleadingly make it sound as though all of its work takes place there; but its judges live in various cities scattered throughout Texas, Louisiana, and Mississippi, and in fact often hear oral argument on appeals in cities other than New Orleans.  This special three-judge panel could choose to meet in Laredo, but it wouldn't surprise me if for the convenience of all concerned, it decided to convene instead in Houston.

The case is styled Gonzolo Barrientos et al. v. the State of Texas et al., No. L:03CV113 in the United States District Court for the Southern District of Texas, Laredo Division.  The biographies for Judges King, Higginbotham, Rosenthal, and Kazen that I've linked are courtesy of the Federal Judicial Center website.

A nonpartisan panel of professionals

I don't know Judge Higginbotham or Judge Kazen personally.  But I had the privilege of working as a law clerk for Judge King during her second year on the bench in 1980-1981.  And from 1981-1987, before her appointment to the bench, Lee Rosenthal and I were colleagues at Baker & Botts.  My respect and admiration for both of them is boundless; they are among the smartest, hardest working, and most ethical lawyers I've ever met.  I'd willingly play high-stakes draw poker with either of them over the telephone, with either of them dealing.

JusticePeople will assume that these judges' personal politics match that of the Presidents who appointed them.  That may be the case, but it's not necessarily so — and more fundamentally, it's beside the point.  With respect to Judge King and Judge Rosenthal, I've seen them work, and I know their fundamental character.  I can say with 100 percent certainty that to the extent a human being can possibly compel herself to be strictly nonpartisan, each of them does so.  I'm reasonably confident that the same is true of Judge Higginbotham and Kazen.  These are professionals in the very best sense of that word, and the three judges on the panel will be keenly aware at all times of the highly circumscribed boundaries of their proper roles as this political drama plays out. 

In fact, if you were to suggest to me in person over a beer that, for instance, Judge King would ever stack the panel to make sure that Democrats fare better in this fight, I'd probably punch you in the nose before I could help myself — and ditto if you were to make the same sort of comment about Judge Rosenthal and the Republicans.

In theory this three-judge court can take evidence from fact and expert witnesses in a full-blown non-jury trial; it can make credibility evaluations, decide who's lying and who's telling the truth, accept or reject the opinions of the experts.  But frankly, in contrast to, say, the redistricting panel in Balderas — which actually had to create a map, which is a hugely fact-dependent and fact-intensive project! — the underlying facts (as opposed to the spin put on them) are probably going to be essentially undisputed for this case.  I'll be very surprised if the panel agrees to hear much, if any, live testimony. 

Dems face longshot odds

We already have what amounts more or less to an advisory opinion, albeit a preliminary one, from Judge Kazen that's only slightly less lopsided than the ruling on Fox News' request for an injunction against Al Franken.  The Austin American-Statesman quoted a remark from Judge Kazen that pretty well cuts to the heart of matters:

"The fact is, in a legislative body, you win some and you lose some. I know the senators represent people, but if they're in the minority, they're going to lose votes," he said. "That's how the country works. The majority wins."

My personal politics are obviously hostile to the Dems, but strictly on the undisputed facts and the applicable law, I also sincerely believe that there is no merit to the lawsuit brought by the Truant Texas Dems™. 

I'm not saying it's a foregone conclusion.  I don't expect an opinion that says, "There are hard cases and there are easy cases, and this is an easy case."  But notwithstanding the depth of political feeling on each side, based on a nonpartisan application of the law, this just isn't a very hard case to decide.  If I were a betting man with unlimited capital, I'd gladly give five to one odds against the Dems, or maybe better, to any and all takers.

If the Dems lose, they have a direct appeal to the US Supreme Court "as a matter of right" — meaning that unlike the overwhelming majority of other cases, the US Supreme Court more or less has to consider that appeal on its merits (and can't just "deny certiorari" to refuse to hear the appeal).  But all that's likely to produce is the notation "aff'd mem." — meaning "affirmed by memorandum," effectively adopting the three-judge panel's opinion without further discussion.  In my judgment, the odds of the US Supreme Court reversing this panel if it denies relief to the Dems are infinitesimally small.

The Republicans must be smelling victory, million-dollar ad campaign from MoveOn.org notwithstanding.  They have the high cards, frankly, and we're not far from the point where all the cards are going to be in-play, face-up, and on the table — meaning someone's going to rake in all the chips. 

Wanted:  Transcendent statesmanship

And so, paradoxically, this may be the best possible opportunity for a deal to be cut.  Winning in a bloodbath that leaves bitter enemies sucks, and martyrdom sucks even worse.  My personal hope is that someone from each side will undertake the role of statesman rather than politician.  I'd suggest that the structure ought to be an agreed map that is predicted to result in modest Republican gains, based on 2002 voting patterns — one that is likely to result in a change of three seats.  (Easier said than done, I know, if you're one of the gored white male Democratic incumbents — but guys, it's time for about three of you to "take one for the team"; cash in to become a lobbyist or a retired rancher or a professor at the LBJ School or something like that!)  Scratch the fines and penalties.  Hold a huge "welcome home" barbecue on the Capitol grounds, invite both the Aggie and Longhorn Bands to play, set up a vegetarian booth off to one side, and sell really cold beer for a nickel a cup.

But the most important part of a compromise should be this:     Announce a genuine, good-faith, bipartisan commitment to pass a reform bill in the next regular session that ends gerrymandering for good.  Become the first large state in the United States to do so.  End the circus, lead the way, and bask in the resultant respect that both parties could earn through transcending partisan politics.

Do I think this will happen?  Hell, no.  I think several of the Dems are too far out on a limb to back down, and there are too many Tom DeLay-haters egging them on into political suicide.  I predict the bloodbath end-game, frankly. 

And I'm likely to end up punching someone in the nose for insulting one of these judges, I guess, when they do their duty under the law and pour the Truant Texas Dems™ out of court.

-----------------

UPDATE (Fri Aug 29):   Charles Kuffner's left-of-center blog, Off the Kuff, gets some background facts about the new panel a bit garbled, but reports that "[o]n a side note, a good friend of mine spent a year clerking for Higginbotham and had nothing but praise for the man. Take that for what it's worth." 

Votelaw also has a couple of recent posts up about the current status of the fight (here and here).

Posted by Beldar at 11:07 PM in Texas Redistricting | Permalink | Comments (2)

Judge Kazen drops back 3 steps, stops to fuss, then punts Truant Texas Dems™ to 3-judge panel

I credit R.G. Ratliffe of the Houston Chronicle for the best reporting of the day on today's federal court proceedings in Laredo:

A federal judge told lawyers for runaway Democratic senators today that he believes their lawsuit seeking voting rights and free speech protections is all but totally frivolous, but he agreed to leave the final decision to a three-judge panel.

U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money. However, Kazen also criticized the Democratic senators for fleeing to Albuquerque, N.M., to break the Senate's quorum.

Judge Kazen's comments on the lack of merits of the legal claims made by the Truant Texas Dems™ aren't going to be binding on the three-judge panel.  Those comments should, however, have served as a reality check for the Dems — but they apparently didn't:      Senator Van de Putte was quoted from Albuquerque as saying:  “The judge says our case has merit, that's good for us!" 

Maybe she really does think Charlie Stenholm is one of her children, I dunno.

The Austin American-Statesman suggests that Sen. West took a breath from his misplaced rant against John Ashcroft long enough to voice a slightly more realistic assessment:     "Even if he said it was a 'shred of merit,' " said Sen. Royce West, D-Dallas, "it got us to the next phase."

From the combined press reports of his comments, it looks as if Judge Kazen wandered a bit off the farm in his public policy critiques.  [ed: I discovered later when I read the actual transcript that these press reports were wrong; see the quotes in my apology to Judge Kazen for this remark.] But I'm not too torqued about that since that stuff was all dicta — not precedent, not binding on anyone, and not actually any of his business as a federal judge. 

Other than that, however, I'd have done the same thing were I in his shoes.  In short, the judge made a decision that (1) made everyone sorta happy, (2) advanced the ball because it guarantees expedited resolution of this dispute at both a trial and appellate level, (3) gave him a chance to fuss at both sides (to try to encourage a compromise), and (4) CAN'T be reversed — very important from the standpoint of any trial court judge!

Houston's Charles Kuffner of Off the Kuff has a good set of quotes and links from other press coverage on today's hearing (it's also reprinted on Political State Report).   Byron L at Austin's Burnt Orange Report is also gearing up to follow this fight.

Houston Chronicle improves press coverage on background facts

I was very gratified to see that later in his article, Ratliffe of the Houston Chronicle finally got his basic background facts right about the "rule change" argument (although most of the other Texas newspapers and the AP continue to bungle this, as do most bloggers):

The 11 Democratic senators took off for Albuquerque on July 28 as the first special session ended and they learned Perry planned to call a second session immediately. Dewhurst already had announced plans to change Senate procedures so the Democrats could not block congressional redistricting in the second session.

The change in procedure amounted to dropping what has become known as the "two-thirds rule." So long as the procedure was in place, the 11 Democrats could block redistricting without having to break the Senate's quorum.

Under standard Senate procedure, a supermajority of the Senate's 31 members must give permission for a bill to be debated. The vote is required to take legislation out of its regular order on the calendar.

But Dewhurst announced that congressional redistricting would be the only thing on the calendar so a simple majority could pass it.

Would that the Texas press and the national wire services could have been this clear during the last month!

But still ...

I still have to quibble a bit.  Senate Rule 5.13 is still in place — it's not being "dropped."  It's just that by its terms it only ever comes into play when there's a proposal to take up a bill that's not at the top of the calendar, and that's not going to happen with redistricting in the third special session, nor would it have in the second (if the Senate had ever gotten a quorum). 

Am I being entirely too anal about this?  I really don't think so.  The public has an extremely strong sense of fair-play that ties directly into their perception as to whether "rules" are being "abandoned" or "changed" or "dropped."  Such public legitimacy as Dubya was able to scrape together out of Florida in 2000, for instance, was directly based on roughly half the country's perception that the Gore forces were "changing the rules" on the recount until they found some combination of chad-conditions and counties that would produce a different result. 

Frankly, Lt. Gov. Dewhurst and the Republican media consultants have done a crappy job of educating the press and the public on this — they've let the Dems mis-define the issue as being a "rules change" until just this week, when they finally began to snap to the importance of the verbal formulation when forced to do so by this lawsuit.

Posted by Beldar at 06:17 PM in Texas Redistricting | Permalink | Comments (0)

In friendly fire incident, Truant Texas Dems™ blast ruling made by Reno-era DOJ voting-rights head

The outrage of the Truant Texas Dems™ at Attorney General John Ashcroft and the "US Department of Injustice" for yesterday's ruling by the DOJ's Civil Rights Division was entirely predictable.

But in an apparent episode of "Ready, Fire, Aim!" they've managed to blast a career civil servant who was put into his sensitive executive position not by John Ashcroft, but by Janet Reno.

Oops.

The background:

Lt. Gov. David DewhurstBefore the second special session of the 78th Legislature, Lt. Gov. David Dewhurst announced that he would not follow the common practice of manipulating the written Texas Senate Rules in a manner that would allow a minority to deadlock the Texas Senate.  Specifically, he said he wouldn't follow the custom of putting a "blocker bill" — a piece of bogus pseudo-legislation rushed through the committee referral and reporting-out process, with no intention that it ever be passed — atop the Senate's legislative calendar. 

As I explained in my post last Sunday, when a "blocker bill" is atop the calendar, Texas Senate Rule 5.13 requires a two-thirds vote to consider any other bills "out of order" — meaning that as a practical matter, nothing can pass the Texas Senate without at least a two-thirds super-majority vote when the "blocker bill" manipulation has been performed. 

Given the inability of the 77th Legislature to agree on a redistricting bill in 2001, and the inability of the 78th Legislature to agree on one during its regular session or the first special session, Lt. Gov. Dewhurst decided that using a "blocker bill" in the second special session was simply a courtesy that the Senate could no longer afford.  Indeed, the Texas Senate has dispensed with using the "blocker bill" manipulation during redistricting in prior years when the Senate was controlled by a Democratic Lieutenant Governor and a Democratic majority. 

Thus, no written rules were changed or abolished or ignored; rather, the decision made was to enforce the rules exactly as written, without using the "blocker bill" technique to artificially manipulate the Senate calendar.

As reported Tuesday evening by the Austin American-Statesman, the Department of Justice has therefore promptly confirmed that the decision whether to use or not use the "blocker bill" practice is "an internal legislative parliamentary rule or practice — not a change affecting voting — and therefore is not subject to the preclearance requirement" of the Voting Rights Act of 1965.

The Truant Texas Dems™ immediately reacted with predictable outrage, according to that same news story:

Sen. Royce West, D-Dallas, said he was not surprised because Republicans run the "Department of Injustice."

"I was hopeful they would set aside partisan politics and hear input from us before making a decision," he said.

And they worked up even more condemnatory zeal, as reported in the El Paso Times:

"We are disappointed, but not surprised, by the abrupt action of a Bush-Ashcroft Justice Department that has consistently put politics above the voting rights of Americans," said Sen. Royce West, D-Dallas.

Sen. Royce West"We always assumed justice would have to be found in the courts, not a department inappropriately named Justice."

The Democrats' lawyer, Gerald Hebert, who is a former director of the Justice Department's Voting Rights Division, also blasted the decision [by] Attorney General John Ashcroft's office.

"The unusual expedited handling of this matter and the timing of their release of the letter confirms what many of us who have previously worked in DOJ have known for some time — that the Bush-Ashcroft Justice Department is the most politically corrupt ever to administer the Voting Rights Act," Hebert said.

And West is quoted in the Fort Worth Star-Telegram as saying, "The Ashcroft Justice Department has spared no injustice in its pursuit of an ideological, racist agenda. We call the president to get his right-wing troops under control now."

But about three minutes with Google reveals that lawyer Joseph D. Rich has been with the Justice Department since at least 1987, and that in February 2000 he was speaking on behalf of Clinton Administration Attorney General Janet Reno as the new "acting chief of the department's Voting Section" in approving "Arizona Democrats' plan to vote online in the March 11[, 2000] presidential primary."

D'oh!  For the second time this month, I find myself defending a Clinton Administration Justice Department official!  Who'da thunkit?

[sarcasm on]  I do sniff a whiff of potential scandal here, however.  Lawyer Hebert apparently was at DOJ not only during the early Clinton Administration, but also during the Reagan and GHW Bush Administrations.  It's not clear whether he had Mr. Rich's job during a Democratic or Republican regime.  Regardless, however, let's hope that before he started taking fees from the Truant Texas Dems™, he fully disclosed to them that he had worked during a substantial portion of his career for Ed Meese's DOJ. [/sarcasm off]

Posted by Beldar at 07:08 AM in Texas Redistricting | Permalink | Comments (2)

Tuesday, August 26, 2003

"Sleepless Summer Tour" produces hallucinations: Dean suffers partisan flashback attack

In an article entitled "Dean's Bush-bashing talk energizes Austin crowd," today's Austin American-Statesman reports Democratic presidential hopeful and former Vermont governor Howard Dean's comments after his speech yesterday:

After the speech, Dean told reporters that he's proud of the Democratic state senators who fled to New Mexico to block Republican efforts to draw new congressional districts. Dean referred to the redistricting effort as "this ridiculous nonsense of trying to steal an election."

This is definitely standard-issue Democratic Party agitprop — but it appears that Mr. Dean thinks he's in Florida in November 2000. 

Of course, in Vermont, it's pretty hard to gerrymander the single Congressional district, so perhaps that's the source of his confusion.

Posted by Beldar at 05:55 PM in Humor, Texas Redistricting | Permalink | Comments (0)

Poll shows Texans condemn Dems' flight from state, but lies leave some still confused about redistricting

The Scripps Howard Texas Poll released yesterday reflects a fair amount of confusion about reapportionment and redistricting.  On the one hand, there is an overwhelming disapproval of the Truant Texas Dems™ for fleeing to New Mexico:  "Only 29 percent of Texans agree with the Democrats' leaving the state to block redistricting." 

This surely reflects an intense public skepticism that fleeing the jurisdiction is a proper solution to any legislative problem.  The public expects to see Texas Senators at work in the Texas Senate — not dodging the sergeant-at-arms by fleeing to Albuquerque.

The Truant Texas Dems™ have to spin pretty hard to put a better face on this finding:

State Sen. Judith Zaffirini"We are very, very confident that people are opposed to redistricting," said state Sen. Judith Zaffirini from New Mexico. "I believe the people probably didn't understand the issue and why we left. It's a complex issue that is difficult to explain in sound bites. We didn't take this action on polls, but on principles."

I tend to believe, however, that such success as the Dems have had in making their PR campaign so far has been the result of three big lies they're repeating over and over — lies that do make good sound-bites:

  • The first lie is the claim that Texas has already had its normal redistricting for this decade. 

  • The second lie is the claim that the Republicans are "changing the rules" to try to pass redistricting in the Senate.

  • The third lie is the claim that this is a fight to protect minority voting rights (instead of to protect white male incumbent Democrats in the US House of Representatives).

The press has uncritically repeated these three lies until they've gotten some traction.  As a result, "[f]orty-six percent of Texans oppose the Legislature redrawing current congressional districts, while 40 percent support the effort." 

I'll bet those numbers would change dramatically if the poll asked the question this way: 

"Do you prefer that the Congressional district borders be drawn by the Texas Legislature as specified in the US Constitution, or by an unelected panel of three federal judges acting under the Voting Rights Act of 1965?"

And I'll bet the current two-to-one disapproval of the flight of the Truant Texas Dems™ would soar even higher if you polled on this question: 

"The Lt. Governor has decided to stop artificially manipulating the written Texas Senate Rules in a way that has permitted a minority of Senators to deadlock the Legislature.  Does this decision justify the actions of eleven Democratic state senators in leaving Texas to prevent the Senate from reaching a quorum?"

Because those are the real questions, friends and neighbors — they're just not the questions that the Democrats care to face up to, and they're not the questions that the press or the pollsters are asking.

UPDATE (Tues Aug 26):  Today's article in the Houston Chronicle entitled "Special legislative session ends without redistricting" almost gets it.  It refers to Lt. Gov. Dewhurst's announcement that he'd refuse to use a "blocker bill" to manipulate the Senate Rules as "doing away with a Senate procedure under which Democrats had enough votes to block redistricting."  That's not nearly so bad a lie as saying that Dewhurst "changed the rules," but it's still not right — calling the use of a "blocker bill" to manipulate the Senate calendar a "Senate procedure" still gives it more dignity than it deserves.  (The article also has a nice graphic with more details on the Scripps Howard poll.) 

The Austin American-Statesman actually comes quite close to getting it right about the non-rule, describing it thusly today: 

The Democrats object to Lt. Gov. David Dewhurst's decision to abandon a Senate tradition, dating to the 1950s, that requires two-thirds of the Senate to agree to debate a bill.

The same story notes that "Dewhurst, a Republican who presides over the Senate, has cited examples of his Democratic predecessors abandoning the tradition in past redistricting controversies."

The Associated Press, however, continues to give nationwide repetition of this particular lie by referring to the "two-thirds rule" as having been "dropped for the second special session."

I've also run across three political blogs that are further promulgating the "rules change" lie:

  • Political State Report ("The Justice Department dealt a blow to State Democrat’s legal hopes on Thursday by ruling that the Texas Senate had the authority to eliminate a rule requiring a two-thirds majority of senators to agree to any legislative measures.")

  • Votelaw ("the state has requested preclearance for the rule change (dropping the usual 2/3 requirement for consideration of a bill in the Senate"); and

  • Cogicophony: A Zoo of Thoughts ("Attempts were made to declare the abolition of the traditional 2/3rds rule as somehow unconstitutional").

The last of these had this to say, which I think is a fairly clear-eyed argument from a left-of-center point of view — a principled argument that doesn't try to pretend that gerrymandering is an exclusively Republican warcrime against humanity:

[The Scripps Howard Texas Poll is] split on party lines for the most part, and most people don’t want the congressional lines re-moved; they just don’t like what the Democrats tried to do to break it.

Let’s face it: neither do I. They shouldn’t have had to. It’s highly poisonous to the democratic process. But then, so is the redistricting. This is a lose-lose position for the Democrats in Texas, and they are definitely going to have to come back eventually. At this point, I say: come back, and spend the rest of the campaign season, once the redistricting is past, highlighting exactly how the Republicans decided to sacrifice representation in the state for representation nationally.

The author also argues that the Dems

are no more “avoiding their jobs” than anyone taking a principled stand of civil disobedience. It’s not avoidance, it’s an active decision that in “doing their job”, they’d actually end up not representing those who voted for them.

Again, a principled argument — but I can't equate ordinary civil disobedience to the deliberate sabotage of the Legislature's performance of a duty assigned to it by the US Constitution.

Also today, the San Antonio Express-News again repeats the "rule change" lie in the process of reporting that the DOJ has quite sensibly recognized that Lt. Gov. Dewhurst's announced intention to stop manipulating the rules as written isn't a change in voting procedures that would require preclearance under the Voting Rights Act of 1965:

The Texas secretary of state's office had asked the Justice Department whether Dewhurst's plan to change the rules needed to be cleared by the Justice Department, as Democrats have argued.

Joseph D. Rich, the chief of the voting section of the Justice Department's Civil Rights Division, said in a letter to the state agency released today that no preclearance was necessary.

“If and when a new redistricting plan is actually adopted by the Texas Legislature, signed into law by the governor, and submitted to the Attorney General for Section 5 review, the attorney general will review the entire proposed plan and the process by which it has been adopted, to ensure that the submitted changes have neither a discriminatory purpose nor a discriminatory effect,” the letter states.

Yup yup.  This letter also thus reconfirms — not that there was ever any doubt — that because of the Voting Rights Act of 1965 preclearance requirement, minorities need not fear that any redistricting plan which does eventually make it through the Legislature will affect their voting rights.  "Disenfranchising minorities" or even diluting minority voting rights is not what this fight is all about!

The Austin American-Statesman quotes another key paragraph from Rich's letter that hits the nail right on the head:

"Our analysis indicates that the practice in question is an internal legislative parliamentary rule or practice — not a change affecting voting — and therefore is not subject to the preclearance requirement," Joseph Rich, chief of the voting section in the Justice Department's civil rights division wrote to state officials.

UPDATE (Wed Aug 27):  WaPo avoids the "rule change" lie in a story that is factually accurate and that makes an obvious attempt to present some of the best arguments from each side.  Sadly, the cross-town rival WaTimes repeats the lie ("[t]hat two-thirds rule was dropped for the second special session").

The Houston Chronicle is still sadly confused, continuing to state as a fact that "Dewhurst announced that the two-thirds rule would not be in place for the second session."  It's ... a ... LIE!  Someone give me some carpet to chew while I ponder the fact that the liberal-leaning newspaper of Woodward & Bernstein can get this right, while the only-a-bit-left-of-center newspaper of Jesse Jones can't. 

This same Chronicle story also makes this boneheaded assertion:  "The divided [77th] Legislature did not pass a congressional district map [in 2001], so a three-judge federal court panel drew districts that protected incumbents of both parties and gave two new districts to Republicans."  Nuh-uh.  That's not at all what the panel opinion in Balderas said it was doing with the two new districts (although it did expressly concede that it was protecting incumbents, most of whom at the time were Dems).  The panel put the two new districts where there had been the greatest population growth since the 1990 Census — Harris and Dallas Counties — but did not do so with any intention to create "Republican" districts.  RTFO, gang!  This isn't rocket science, it's just politics.

Posted by Beldar at 07:08 AM in Texas Redistricting | Permalink | Comments (0)

Monday, August 25, 2003

You can fool some of the people all of the time, especially if they're reporters

From an AP story printed in today's Houston Chronicle:

In the first session that started June 30, 12 senators, including one Republican, opposed bringing up redistricting in the Senate. But in the second special session called July 28, the lieutenant governor removed a rule that requires two-thirds of senators to agree to take up a bill. That took away Democrats' blocking power, so they fled the state.

(Emphasis added.)  How a major newswire — along with the biggest daily newspaper in the state that's published in the nation's fourth largest city — can consistently swallow this claim is simply beyond my comprehension.  This isn't a fuzzy issue upon which reasonable minds can disagree.  It's a matter of straightforward fact, on which the AP, the Chronicle, and virtually all the other national and Texas media are repeating as gospel the outright lies told by the Truant Texas Dems™.

The Austin American-Statesman repeats the same lie:  "He [Lt. Gov. Dewhurst] decided to junk the Senate's longstanding rule requiring two-thirds of its members to agree to bring a bill up for debate, which is what provoked the 11 to leave."

And it's repeated again in another AP story reprinted far and wide, this one about whether the "average Texan" understands the issues:

In the first session, which began June 30, a dozen senators, including one Republican, opposed bringing up redistricting in the Senate.

Under Senate rules at the time, those numbers were enough to block consideration in the 31-member chamber.

But in the second special session called July 28, Republican Lt. Gov. David Dewhurst removed the two-thirds rule so Democrats no longer had that blocking power.

The average Texan would stand a better chance of understanding the issues if the news media weren't willing mouthpieces for the telling and retelling of this particular lie!

This is so very Orwellian.  It is an obvious — yet effective — ploy to play on Americans' instinctive sense of "fair-play," the notion that you shouldn't "change the rules mid-game."  But in Truant Texas Dem™-speak, "enforcing the rules as they're written" = "changing the rules" = "removing a rule."

Given the particular way I'm hard-wired, though, what I really want to do is not to punch each of the Truant Texas Dems™ in the nose, nor even shout at them.  No ...

What I really, really want is to quietly and methodically cross-examine them under oath.  Isn't that weird?  That's my natural reaction when I see someone telling huge lies.  I want each of them in the witness chair, one by one, and I'll start by asking permission to approach the first witness to hand her a copy of Beldar Exhibit A, the Rules of the Texas Senate.  And then someone's gonna be sweating some bullets.  Then someone's going to be ... vivisected.

Would that it could be.  Alas, it cannot, and I will only cross-examine Sophie — errrrr, Leticia, Gonzalo, and the gang in my fantasies.

But if you see me running naked and slobbering down the street, screaming and plucking out clumps of hair, this kind of story will likely be the explanation.  I sure hope that Judge Kazen in Laredo will speak out as clearly and forcefully on this matter as Judge Chin in New York did on Fox News' lawsuit against Al Franken.

Posted by Beldar at 06:48 PM in Texas Redistricting | Permalink | Comments (0)

Dog days of August

Things about which I'm either disinclined, or as yet too uninformed, to blog:

  • Kobe Bryant or his accuser
  • The nuclear threat posed by North Korea
  • The Middle East Roadmap
  • Online dating services
  • The openly gay Episcopal bishop
  • Paul Krugman
  • The Patriot Act and John Ashcroft
  • Judge Moore in Alabama and the Ten Commandments monument
  • Enron or Worldcom
  • The late Patrick Dennehy, the accused Carlton Dodson, Jr., or the Baylor athletics program
  • J-Lo or Ben Afflek

I'm remain convinced that Jamie Gorelick's conflict of interest is a fabulous topic, but I've run out of things to say about it, and (as others have already noted), both Republican and Democratic leaders have compelling reasons not to focus on it. 

If Fox News and its lawyers have a lick of sense, they'll slink away from their lawsuit against Al Franken and his publishers and never mention it again, but even if they don't, that's another topic on which I'm probably all blogged out.

I remain obsessed by the Texas reapportionment fight — I call it that because I've noticed that if you Google "Texas reapportionment," BeldarBlog is one of the top returns, because most everyone else calls it "redistricting."

I may eventually work up an opinion about the upcoming elections in Texas on a series of proposed amendments to the state constitution, the most controversial of which, Proposition 12, would authorize the Texas Legislature to cap non-economic damages (for instance, damages for pain & suffering) as a tort reform measure.  At this point, though, I'm ambivalent.

I may also get around to the subject of gay marriage eventually, but that's something I'm still conflicted about.  I have takes on Grutman and Lawrence, this summer's two big Supreme Court opinions, that I think are a bit novel, but ... old news, Beldar, old news.

I think I need a digital camera, so I can upload pix of my kids and my dog.  Seems to help inspire Lileks.

Posted by Beldar at 06:26 PM in Weblogs | Permalink | Comments (0)

Sunday, August 24, 2003

Albuquerque as Auschwitz: "Leticia's Choice"

Friday, Michael King of the left-leaning Austin Chronicle quoted Texas Senate Democratic Caucus Chairwoman Leticia Van de Putte, D-San Antonio, from her self-imposed exile with the other Truant Texas Dems™ in scenic Albuquerque:

State Sen. Letitia Van de PutteVan de Putte says the Republican senators insist on seeing this battle as simply a partisan issue between Democrats and Republicans, but in fact it's about voting rights and the people of Texas. "They say they want a 'fair' plan — but if it's such a fair plan, why do they have to change the rules to pass it? They say it's 'fair,' but at some point it's going to disenfranchise minorities — that's like asking me to choose which one of my children to give up."

Thus does Sen. Van de Putte cast herself in the role for which Meryl Streep won the 1982 Best Actress Academy Award in "Sophie's Choice," the screen adaptation of William Styron's Meryl Streep in 'Sophie's Choice'1979 National Book Award winning novel, in which the eponymous Sophie is forced by an SS stormtrooper on an Auschwitz rail siding to make a snap decision whether to send her young son or her young daughter to an immediate death in the gas chambers.

So what is Sen. Van de Putte describing as a "change [in] the rules"?  It's a decision announced by Texas Lt. Gov. David Dewhurst for the second special session of the 78th Legislature, one made in recognition of the fact that the 77th Legislature deadlocked on Congressional redistricting, as did the 78th Legislature in its regular session and first special session:  Lt. Gov. Dewhurst announced that he will enforce the Rules of the Texas Senate as they are actually written.  Sen. Van de Putte and the Truant Texas Dems™ are upset because Lt. Gov. Dewhurst is refusing to continue manipulating the written Senate rules in a way that would allow a minority of state senators to continue to deadlock the entire Senate. 

US Rep. Charlie Stenholm (D-Tex)Senator Van de Putte's "Sophie's Choice" analogy rapidly breaks down, unless she considers a handful of white, male incumbent Democratic Congressmen like Charlie Stenholm to be her children.  That's because this isn't a fight about "minority voting rights" or "disenfranchisement" — it's a fight about whether those white, male incumbent Democratic Congressmen will continue to hold their seats solely as the result of a Democratic gerrymander from back in 1991.

I'll explain in detail about the "rules change" in this post, plus report on an interesting email exchange I've had with Joshua Micah Marshall of Talking Points Memo since my last post.

Changing the rules?

Here are the actual facts about the purported "change [in] the rules," as summarized in the motion to dismiss that Texas Attorney General Greg Abbott has filed in Gonzalo Barrientos et al. v. the State of Texas et al., No. L:03CV113 in the US District Court for the Southern District of Texas, Laredo Division — the lawsuit brought by Sen. Van de Putte and her colleagues.  (I'd upload and link the 100+ page .pdf file but it's 6MB, sorry; if you really want it you can get it from PACER):

Under ordinary Texas Senate rules, Senators consider bills on the Senate floor in the order that they emerge from committee.  See Tex. S. Rule 5.12.  That is the Senate's regular order of business.  To debate a bill "out of its regular calendar order," the rules require that two-thirds of the Senators present must agree to suspend Rule 5.12 in order to consider the bill.  See Tex. S. Rule 5.13.

So those are the actual written rules.  Neither Lt. Gov. Dewhurst nor any other Texas Republican in the current redistricting battle has changed, or is proposing to change, those rules.  Instead, here's what's at issue:

In the past, an inconsequential bill has often — though not always — been filed by a Senator early in the legislative session.  The Lieutenant Governor may then refer it to a committee, so that it can be voted out by that committee and placed atop the Senate's intent calendar, which determines its order of business on the floor.  ... [H]aving such a bill at the top of the intent calendar forces lawmakers either (1) to vote out or otherwise dispose of the purported "blocker bill" or (2) to obtain support from two-thirds of the Chamber to suspend the regular order of business and take up another bill first.

Aha.  So when the Lt. Governor decides to create a "blocker bill," it's really not a serious bill.  It's a deliberately created clump of legislative debris — at its most, not a rule itself but simply a tradition that legislators will agree to more or less pretend is a real bill, solely to manipulate the way the legislative calendar progresses under the real, formal, written rules of the Texas Senate.

This tradition has not always been followed in the Texas Senate and, in fact, there have been numerous occasions when various Lieutenant Governors have declined to use a "blocker bill" during a Called Session.  Notably, the use of a "blocker bill" is not grounded in, much less mandated by, any constitutional or statutory provisions or rules enacted by the Texas Senate, nor is it used by the Texas House.  It is purely a legislative calendar-management tool used through the discretion of the Lieutenant Governor, committee members, and other Senators ....

So what's the Auschwitz-like horror that the Republicans are committing, the one that's forcing "Leticia's Choice"?  It's the purely discretionary decision by Lt. Gov. Dewhurst to not initiate the "traditional" process of circumventing the rules as they're written.

Dewhurst tells Leticia, 'No blocker bill this time!'My god!  That certainly makes me smell the plumes of human ash and greasy smoke wafting from the chimneys!  Can't you smell it too?  Man, that's gonna leave a stain — and they just finished refurbishing the Capitol Dome!

As I've pointed out repeatedly in my other recent blog posts (chronologically from oldest to most recent, here, here, and here), this is not a fight about minority voting rights.  That — like the assertion that the Republicans have "changed the rules" — is simply a bald-faced lie.

Josh likes judges making districts, but Beldar doesn't

After I posted my "Fisking" of a comparatively clear-eyed and truthful article by Talking Points Memo blogger Joshua Micah Marshall in Forward, I emailed Dr. Marshall* with a link to my post (since his website doesn't allow comments or trackbacks).  And I'm impressed and gratified that he's taken time to engage in some email dialog with me on this topic. 

In stark — but honorable — contrast to the hysterical rhetoric coming out of MoveOn.org and the mouths of Sen. Van de Putte and her fellow Truant Texas Dems™, Dr. Marshall continues to acknowledge that partisan gerrymandering is normal in politics. 

Instead, expanding on an assertion in his article, Dr. Marshall's main point in his emails to me was that state legislatures "often" stalemate on redistricting plans; when they do, courts must act, and it's "established practice" for them to do so; and that only once since the late 19th century (he mentions Washington State in 1953) has a state legislature undertaken to achieve a second redistricting in one decade, even when the first redistricting was done by a federal court rather than the legislature. 

Dr. Marshall was away from his office when he emailed and thus was unable to conveniently direct me to supporting sources for these factual assertions, but I'll take them on faith for purposes of argument, and quote instead my emailed response to this argument:

The difference between us on this is that you view the making of Congressional district maps by a panel of unelected federal judges — representatives of the least representative branch of either the state or federal governments — as normal, natural, healthy, expected, acceptable, and something entitled to reverence and deference until at least after the next Census.  I view it as something broken, diseased, anti-democratic, dysfunctional, something that is at best an emergency "work-around" when the normal constitutional process fails, and something to be superseded by constitutional democratic processes as quickly as possible when there has been a breakdown.

You view the 2002 election — in which a majority of Texans gave all the levers of democratic governance to the Republican Party for the first time since Reconstruction — as irrelevant to the issue of redistricting because of your respect for and deference to the 2001 Balderas decision, a deference based solely on "tradition" and nowhere commanded by any constitutional provision.  I view the 2002 election as the voters attempting to correct the stalemate from the 77th Legislature in 2001 — particularly when they rejected the strongest Democratic candidate on the ticket for the lieutenant-governorship.  The voters recognized that the George W. Bush-Bob Bullock partnership days were gone, and that divided government wasn't producing compromise but stalemate, so they tried to fix it.  How can you say with a straight face that their votes shouldn't matter at all for purposes of redistricting now, [and] that [instead] they're STUCK with a federal court district map that's essentially a 1991 pro-Democrat gerrymander based on 1990 Census data, until 2011?

I very much doubt whether in other contexts you're a fan of government-by-gridlock.  But your viewpoint here positively encourages legislators from the minority party to abdicate their constitutional duties.  In both politics and law, there is a tradition of principled dissent — of taking unpleasant medicine of the present while expressing one's opposition eloquently in hopes of effecting changes in the future.  Those who would stand on the floor of the Texas Senate and say, "This is a bad plan; this is overreaching in redistricting; the voters of Texas should punish the Republicans at the next election for this" have my respect.  Those who flee to destroy a quorum, to shut down the system, to pull the plug on the oven that bakes American apple pie, I don't respect at all.

I do wish that the Truant Texas Dems™ and MoveOn.org had Dr. Marshall's integrity.  Let them stand up and tell the voters, "We're making a stand for Texans' right to vote in Congressional districts drawn up by federal judges instead of by the Texas Legislature!"  Let's see how that theme actually plays in November 2004, or in the court of public opinion between now and then.

-----------

*I apologize for failing to note from his résumé that Josh Marshall holds a PhD in American History, and for my consequent failure to accord him the correct honorific.  I've also posted a correction on my earlier post to note that two of the Balderas panel judges were appointed by President Clinton; only one was appointed by a Republican President.

Posted by Beldar at 06:00 PM in Texas Redistricting | Permalink | Comments (0)

Saturday, August 23, 2003

From the party of the third part ...

Professor Eugene Volokh of The Volokh Conspiracy — commenting on an aside from Howard Bashman of How Appealinglaments the tendency of lawyers (including judges) to overuse definitional parentheticals:

Why do lawyers think it's helpful to have obvious parentheticals like this? If there is only one Chanthasouxat in the case, people will realize that Chanthasouxat refers to that Chanthasouxat. If there is more than one, then you shouldn't call either Chanthasouxat. Likewise, there were exactly two defendants in the cases being considered in the opinion; who else would "Defendants" refer to?

Sometimes, a parenthetical like this may be helpful, for instance when one is introducing an acronym that's common enough to be worth using, but not so common that it's obvious. But often — as here — the abbreviation (whether a last name or "defendants") is so utterly obvious that I just see no reason at all to include it.

A couple of explanations spring to mind.  Basically, what it boils down to is that lawyers either write that way trying to look smart, or else under the misimpression that they have to write that way to actually be smart.

One of my great surprises in law school from 1977-1980 was how very little specific instruction was given to legal draftsmanship.  There was some small-group instruction on basic legal citation form given to first-year students by third-year students, and one could perhaps intuit some principles from studying substantive law — particularly the two-semester first-year course in contracts.  My impression is that most law schools are trying harder to address this gap nowadays.  But no one ever sat me down and said, "Here's how you avoid ambiguities when drafting contracts," for instance.

In my last two years of law school, though, I was a member, and then an editor, of the Texas Law Review, which frankly transformed my writing style — mostly, but not wholly, for the better.  After graduation, I had the honor and privilege of clerking for a year for the Hon. Carolyn Dineen King, who is now the Chief Judge of the U.S. Court of Appeals for the Fifth Circuit.  Then, however, she was in just her second year on the bench and still relatively fresh from private practice as a business and securities lawyer.  My judicial clerkship — which amounted to a full-time writing job — greatly influenced my views on both law and legal writing.  And the third major influence has been my later career as a practicing trial lawyer.

Although I'm not a "deal lawyer," during most of my career I've handled lawsuits arising out of the transactional documents that deal lawyers write — commercial leases, employment agreements, licensing contracts, merger agreements, and so forth.  I have seen an imperfect but still very strong positive correlation between (a) the wealth and power of the client, (b) the prestige and billing rate of its lawyers, and (c) the length and complexity of its transactional documents. 

Judge FiendishI've also observed that deal lawyers are expected to anticipate and provide for every eventuality.  They write under the working premise that if ever litigation should spring from a document they have penned, they will be exposed to the world as a fraud, an utter personal and professional failure.  This concern makes them write every word in every line in every paragraph on every page of these documents to withstand intense scrutiny — with the most hostile of motives — by a hypothetical "Judge Fiendish" who sits as the Chief Justice on the Supreme Court of No Second Chances.

Some of this spills over into litigation-related writing as well, of course.  Judge King in particular was very keen that the opinions we helped her write be buttoned up and nailed down just as tightly as the transactional documents she'd dealt with every day as a deal lawyer.  Every party to every appeal, for instance, would be specifically referenced by both name and litigant-position precisely once, and thereafter solely by a defined term intended to be the best shorthand reminder for that party.  Beyond defining parties and terms, we obsessed more generally over the possibility that something we might help Judge King write would someday be found unclear or ambiguous by a future panel of "Judge Fiendishes." 

The natural consequence of this paranoia, however, is writing that quickly tends toward being turgid, stultifying, even constipated — along with an extremely unhealthy respect for and reliance upon "forms."  To her enormous credit, however — and perhaps in aid of my literary salvation — Judge King was aware of the tendency of this kind of punctiliousness to deaden the language of what we clerks helped her write.  Her passion was to get things right and clear, but subject to those requirements, she also encouraged us to try to find dryly colorful and evocative phrases.  "Tell a story," she'd urge us clerks, "An opinion has to tell a story to be readable!"  Probably my favorite sentence in an opinion that I contributed to writing was from her dissent in a Commerce Clause case involving a state-subsidized fruit market in Georgia which went something like this:  "With due respect to the majority, these tomatoes, potatoes, and peaches do not rise to the level of constitutional significance."  I probably walked around our chambers for a week inanely singing "tomatoes, potatoes, and peaches" to myself.

Even trial lawyers tend to rely too much on forms, and they are too willing to copy that which has worked in the past without looking closely at its actual clarity or other qualities.  The silliness of this was brought home to me once in a jury trial in which one of my colleagues had drafted the original answer of our client, the defendant.  We had a very old retired judge presiding over the trial — one who believed that "opening statements" were a newfangled waste of time, and who insisted instead that to acquaint the jury with our position in the case, I read aloud the written answer my colleague had filed.  My colleague had copied from a form that probably was written in about 1890.  Imagine, if you will, me standing in front of an absolutely perplexed jury, trying my dead level best to give a dramatic and persuasive reading to the following:

"Comes now ABC Corporation, the defendant in the above-captioned and -entitled cause, who, for answer to charges asserted against it in the original petition filed by the plaintiff herein, asserts its general denial of those charges, each and all, collectively and singularly, and wherefore, premises considered, the defendant further prays that upon formal hearing thereof at trial in a court of law, said charges and allegations shall be dismissed with prejudice, that judgment shall be entered in favor of the defendant, that the plaintiff shall take nothing and be sent hence without day, and for such other and further relief, at law or in equity, to which the defendant may show itself justly and equitably entitled."

Neither Lawrence Olivier, Kenneth Branagh, nor Mel Gibson could have made that soliloquy sing!  But I still see this sort of crap filed in court pleadings every day.

After that humiliation, I began writing things that, if so commanded by Judge Fiendish, I could read aloud to a jury.  "Comes now," "wherefore," and the like I've tried to banish from my vocabulary.  Today I'd write that same answer, with the exact same legal effect, as:

"ABC Corp. denies the claims asserted against it by XYZ Inc. and asks the court to enter judgment for ABC."

But to do that, you have to have confidence that your client won't freak out and say, "Hey, I could have written that!  And you're charging me how much per hour?"  In other words, you must have persuaded your client that you have something to offer in addition to your services as a shaman in, and speaker and interpreter of, the mystic received wisdom of the law.

Indeed, as I've grown into a crusty trial lawyer, I've taken more and more risks with my professional writing.  Last year I shocked some of my colleagues when I submitted a trial brief that called our opponent's brief "a tale full of sound and fury, signifying nothing."  Yes, there was a deliberate omission from the line as Macbeth delivered it, for while I was eager to attack their work, I did not want to attack them personally — and I thought the omission actually made the allusion more interesting anyway.  (This was written, by the way, in a "meta-brief™" — one composed in .html and given to the court and opposing counsel on a CD-ROM, with promiscuous hyperlinks to the full text of all cited cases and to .pdf scans of all of the relevant exhibits.  Bill Shakespeare and Clarence Darrow meet Bill Gates.)

All of which is to say that as I've grown in confidence, my goal has increasingly become effective communication, rather than slavish adherance to tradition and formalisms in the hope that they'll make me look, or be, smarter than I really am.

What I have not yet become, though — no surprise to those of you who've read to here! — is concise.  Concision is the hardest art; it requires the greatest effort and self-confidence.

And now I'm blogging!  Surely — for many reasons — 'nuff said, Beldar.  Hush.

Posted by Beldar at 05:28 PM in Law (2006 & earlier) | Permalink | Comments (1)

Friday, August 22, 2003

Toldja so, Fox

Tonight can't be a good night for Dori Ann Hanswirth, the Hogan & Hartson partner who is lead lawyer for Fox News in its uncommonly silly lawsuit against Al Franken.

To its credit, Fox News' own story on the beating it was handed in court today is pretty fair and balanced.  This quote pretty much sums it up:

"There are hard cases and there are easy cases," the judge said. "This is an easy case. This case is wholly without merit, both factually and legally."

Trial lawyers refer to this kind of whuppin' as "getting poured out" — a somewhat vulgar short-hand for the even more vulgar, "He got poured out in court today like piss out of a boot."  Dori Ann, your client deserved to get poured out today, and if you let your client appeal to the Second Circuit, it's just gonna be a bigger boot.

Ernie the Attorney's take is about the same as mine, with some comments.

Posted by Beldar at 11:55 PM in Law (2006 & earlier) | Permalink | Comments (0)

New PR campaign for Truant Texas Dems™ moves from "Stand and Fight!" to "Run Away and Tell Lies!"

One hundred and sixty-seven years ago, the Texians — the mixed Anglo and Hispanic inhabitants of what's now the Lone Star State, but was then part of the Mexican state of Coahuila y Tejas  — fought against a tyrannical dictator, Antonio López de Santa Anna Pérez de Lebrón.  The AlamoSanta Anna had stated that "Mexico was not ready for democracy" and then set about the systematic dismantling of rights guaranteed to the Texians under the Mexican Constitution of 1824.  One hundred and eighty-nine Texians made a stand to the death against Santa Anna's vastly larger army in a small church compound, the Mission San Antonio de Valero.  The bravery of those men and the common name for that church together gave rise to one of the most famous slogans of all times, shouted by the revenging Texian soldiers at the independence-winning Battle of San Jacinto six weeks later — "Remember the Alamo!"

Al Gore standing, fightingJust three years ago, Democratic presidential nominee Al Gore decided that his prior campaign slogan, "Practical Idealism," was losing out to Dubya's "Compassionate Conservatism," so he abandoned it for the eminently more chant-worthy "Stay and Fight!" — the motto which sustained his campaign not only through the 2000 presidential election, but also the recount fight in Florida afterwards.

Fast-forward to today:  The Truant Texas Dems™ — eleven Democratic state senators whose flight to New Mexico has stalemated the ongoing battle here over Congressional reapportionment — appeared to begin their fight with a very catchy slogan, one borrowed from "Monty Python and the Holy Grail" — Run awayEric Idle as Sir RobinUnfortunately, though, like King Arthur's friend Brave Sir Robin, the Truant Texas Dems™ found that they needed a band of bards to ... ummm ... supplement the slogan in a way that puts a better light on their brave acts. 

So the supporters of the Truant Texas Dems™ have decided to mount a new PR campaign — and they're apparently counting on their partisans' reflexive hatred of Tom DeLay to wash down the real whoppers that they have to tell in the process.  They desperately need those whoppers and that hatred to conceal the fact that just like Santa Anna, the Truant Texas Dems™ think Texas is not ready for democracy.  And worse, they think Texans can't even count to ten.

In the short history of BeldarBlog, I've already written twice about the ongoing Battle for Texas Reapportionment — "Hasta la vista for truant Texas Dems?" and "Wall Street Journal swallows truant Texas Dems' propaganda and misstates key facts about Congressional reapportionment."  I keep wishing that they'd either get one more state senator to flee the jurisdiction — Democratic state senator Ken Armbrister from Victoria has kept his dignity by refusing to flee — or that one would drop out.  "Eleven" is a hard number to coin good phrases about.  I'd much prefer either the "Truant Texas Ten" or the "Truant Texas Twelve," frankly. 

But I'll say this much for them — by enlisting some out-of-state talent, the Truant Texas Dems™ have dramatically improved on the drivel that has characterized their own whiny press conferences this summer.  Their team has been sharpening their themes and arguments — and indeed, as noted in the more recent of my two posts, they've managed to convince no less an authority than the Wall Street Journal that they "have a point" in their complaints.

Talking Points Memo's Joshua Micah Marshall finds it "truly remarkable" that MoveOn.org has raised something on the order of $600,000 — toward a desired goal of $1 million — "to defray the hotel and other expenses the pols are racking up during their sojourn in New Mexico (they're conducting state business there, essentially on their own dime) and mount a media campaign to help in their fight."  He adds his own contribution to the media campaign in the form of an article in Forward entitled "DeLay: Tammany on the Potomac." 

Alec Baldwin as Col. Wm. B. TravisAnd predictably, the MoveOn folks themselves have put up a slick bit of pseudo-factual arguments on their own website, variously referred to as a "letter" and an "email" from Democratic state senator Rodney Ellis "from 'exile' in New Mexico," followed by "complete background information on the situation." 

Before we decide whether the Texas Truant Dems™ more resemble Col. William Barrett Travis — we can assume the Dems prefer the 1987 made-for-TV movie with Alec Baldwin in this key role — or Brave Sir Robin, let's take a closer look at their arguments.

The Marshall Plan:  "We've already redistricted once this decade" and other lies

¶   Let's start with Mr. Marshall's article from Forward, simply because in it, he is honest enough to concede the key political truth of this whole melodrama:

From a distance, the Texas redistricting battle looks like garden-variety political hardball. After all, gerrymandering — the practice of redrawing electoral districts to advantage your own political party — may be inherently unfair. But it's also as American as apple pie. Every 10 years, Congress reapportions the number of seats each state gets in the House of Representatives, and each state takes the opportunity to redraw the boundaries of its congressional districts. That makes controlling the state government just after the decadal year (1990, 2000, 2010, etc.) extremely important since whichever party is in the saddle can then stack the deck in its own favor for the next 10 years.

The key, though, is that it happens only once every 10 years. Or at least that's how it worked until this year in Texas. There's no law preventing states from redrawing their district lines before every new election. But the 10-year rule has been established practice since the late 19th century. And, with the exception of maps thrown out because of federal voting rights violations, that precedent hasn't been violated in any of the 50 states for the past 50 years.

The practical reason for keeping to this rule is obvious: Redistricting is an inherently political and highly disruptive process that pulls the political craziness of Washington down into each state. Sticking to the once-a-decade ritual provides some measure of fairness and regularity to the process.

(Emphasis added.)  Yes!  There's a man who gets the basic concepts of representative democracy and apple pie! 

¶   This makes it all the sadder, though, when Mr. Marshall immediately begins to slip into serious distortions:

In 2001, Texas had divided government. And after the House and Senate failed to agree on a map, a panel of federal judges (two Republicans and one Democrat) stepped in to decide on a map. DeLay and his allies have argued that the Legislature, and not unelected judges, should choose a map. But courts always step in when state governments reach an impasse, and those maps are never revisited before the decade is out. At least not until now.

Liar, liar, pants on fire!  Back to civics class for you, Mr. Marshall! 

It's not just "Tom DeLay and his allies" who have argued that "the Legislature, and not unelected judges, should choose a map."  Rather, it's the US Constitution which provides for that, and it's those unelected judges who have protested the most loudly when they've been forced to do so.  Texas Attorney General Greg Abbott — yes, he's a Republican, like every other statewide office-holder in Texas, but by god if you're going to quibble effectively about any of this you better come up with a case citation or two, Mr. Marshall! — summarized the Constitutional starting point very nicely in his April 23rd opinion on redistricting:

The United States Constitution provides that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State," U.S. Const. amend. XIV, § 2, as determined by the decennial census, id. art. I, § 2, cl. 3.  The states have the primary duty and responsibility to redraw their congressional districts in compliance with the United States Constitution. See Growe v. Emison, 507 U.S. 25, 26 (1993). Article I, section 4 states explicitly that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ...." U.S. Const. art. I, § 4.

Attorney-General Abbott also nicely describes the reluctance of federal judges to substitute their judgments for that of state legislatures:

The United States Supreme Court has repeatedly stated that "legislative reapportionment is primarily a matter for legislative consideration and determination," Reynolds v. Sims, 377 U.S. 533, 586 (1964), because an elected legislature is the institution best positioned to reconcile conflicting goals in the people's name. Judicial relief in this area — when courts are forced to act in a pseudo-legislative capacity — should be exceedingly rare. When, however, a state legislature fails in its constitutional responsibility to redistrict timely according to federal constitutional requisites, and state courts subsequently fail to produce a valid plan, it throws to the federal courts "the unwelcome obligation of performing in the legislature's stead, while lacking the political authoritativeness that the legislature can bring to the task." Connor v. Finch, 431 U.S. 407, 415 (1977).

As a former law clerk for a Fifth Circuit judge, I'll throw in my personal two cents here:  All three of the judges who were on the Balderas v. Texas panel in 2001 would be profoundly, personally offended by Mr. Marshall's sleazy insinuation that because two of them [ed: see important correction below*] were appointed by Republican presidents, they leaned toward the Republican Party in the court-devised district map they were compelled by statute to write.  And if Mr. Marshall would bother to read what they wrote, surely it would make him ashamed of that insinuation — because nothing could be farther from the actual truth.

The 2000 Census gave Texas two new seats in the US House of Representatives, so two new districts had to be created.  Yes, the 77th Texas Legislature failed in its constitutional duty to do that in 2001, so the Balderas three-judge panel had to step in.  But it did so with extreme reluctance, and in a way that emphatically did not favor the Republican Party.  The panel first marked as untouchable the "existing Voting-Rights-Act-protected majority-minority districts" — that is, the panel gave automatic bulletproof status to black and Hispanic Democratic incumbents.  Based on that, it then carved out the two new districts where there'd been the most population growth, in Dallas and Harris Counties.   Finally, it "maintained intact the existing districts" drawn up in the pro-Democrat 1991 gerrymander, ensuring that minority populations were "neither enhanced nor diminished."  Where small boundary changes were needed to even out the numbers, they were done with a view toward "compactness and contiguity"; thus, two "patently irrational [district] shapes" that were "widely cited as the most extreme but successful [pro-Democrat] gerrymandering in the country" were altered, even though those changes were deemed unlikely to affect any district voting outcomes. 

As a "check against the outcome of [its] neutral principles,"  the panel reassured itself that its plan was unlikely to unseat any incumbents, and that the plan was "likely to produce a congressional delegation roughly proportional to the party voting breakdown across the state."  But this was indeed only a very "rough" proportionality because, as the panel pointed out, "any [court-drawn] plan necessarily begins with a Democratic bias due to the preservation of majority-minority districts, all of which contain a high percentage of Democratic voters."  In other words, the process started off with a heavy Democratic thumb on the scales as a result of the Voting Rights Act of 1965, and the final result very predictably reflected that.

The bottom-line result of the 77th Legislature's stalemate in 2001 and the Balderas panel's map was thus a sort of thick inertia, still rather heavily tilted to the Democrats' favor, through which the voters of Texas had to swim in the 2002 elections.  Most of the Republicans that had been disproportionately packed into fewer districts in 1991 stayed packed into those same districts, and even the white male Democratic incumbents kept the artificial protections created by the 1991 Democratic gerrymander.  The Balderas panel expressly avoided doing the kind of "bloodfeud" gerrymandering that state legislatures do — and that Mr. Marshall correctly describes as being as American as apple pie.

But the new Republican majorities in both chambers of the 78th Texas Legislature still haven't had their once-a-decade chance to bake an apple pie yet — or maybe, to extend the analogy a bit, to switch to cherry pie to accord with the changing taste of Texas voters.  That's the whole point of this fight.  Mr. Marshall's argument that the existing district map is the result of politics as normal, or anything that remotely represents small-d Democracy, is disgustingly false.

¶   So what other arguments does Mr. Marshall have?

Alternatively and more candidly, DeLay and Co. have argued that since Texas is now a Republican state, any legislative map that doesn't yield a majority of Republican congressmen is intrinsically unfair to the GOP. But even on its own terms, that argument doesn't add up either. As Democrats repeatedly point out, there are more than enough Republican majority districts to allow the GOP to dominate the state's congressional delegation as thoroughly as it does the rest of the state's politics. What stands in the way isn't gerrymandering, so much as incumbency. A handful of long-serving conservative Democrats like Charlie Stenholm continue to be re-elected by Republican-dominated districts.

Here Mr. Marshall has simply confused cause and effect.  The "handful of long-serving conservative Democrats like Charlie Stenholm" was re-elected only because the Republican majority of state-wide voters was still diluted in their districts in 2002.  Those are the exact seats that the Truant Texas Dems™ are now trying to hold on to in their flight to New Mexico — not the Congressional seats being held by blacks or Hispanics, but the ones being held by incumbent white males whom the Balderas panel of federal judges didn't want to disturb.  It's their pro-Democrat gerrymandered protection that the Texas Republicans are now trying to undo.  If they're really that popular, then Stenholm and his (white male incumbent) buddies will continue to buck the trend and will get enough ticket-splitting cross-over Republican voters to hang on.  But let's take away their gerrymandered above-the-mean-percentage of yellow-dog Democrats, undo the purposeful dilution of Republic votes left over from 1991, and then see, shall we?

¶   In his concluding paragraph, Mr. Marshall waxes eloquent:

But the slide to all-out political war illustrates a deeper point. Constitutions and laws dictate the basic structure of government: stuff that must always happen and things that can't ever be tolerated. But if that was all there was to the machinery of the state, it would constantly break down into confrontation or paralysis, as it is now in Texas. To compensate, the body politic, like a human body, is also made up of all manner of ligaments, cushioning cartilage and connective tissue that allow the system to function smoothly and last for years. Government screeches into crisis after crisis without some respect for precedent, established usage or just some sense of limits.

Well, yes.  Most voters would include among "things that can't ever be tolerated" their elected state senators fleeing the jurisdictional boundaries of the state to avoid a voting showdown, even one they're likely to lose.  We're indeed in a state of "confrontation [and] paralysis" in Texas, but I flatly reject the notion that "go along to get along" courtesies are more important than the Constitutional duty of the Legislature — not the federal courts! — to draw Congressional district boundaries.  If you'll check with some folks off the street who haven't been poisoned already with lies like "We've already done our once-a-decade redistricting!" — most folks' "sense of limits" would keep a state senator in the state, in the capital city, and at his job.  Instead, the Truant Texas Dems™ are in a state of (choose one):  (a) New Mexico, (b) Oklahoma, or (c) denial.

The Ellis/MoveOn Manifesto

As packaged by MoveOn.org, Senator Ellis' propaganda is about as slick as, but far less honest than, Mr. Marshall's article. 

¶   Let's start with the heart-wrenching opener:

I am writing to you from a hotel room in Albuquerque, New Mexico, where I and 10 of my colleagues in the Texas Senate have been forced to reside for the past 20 days. If we return to our homes, families, friends, and constituents, the Governor of Texas will have us arrested.

ARRESTED?  Oh my god!  And with what punishment, pray tell us?

You'll have to go back to Austin, Senator Ellis — Austin, still the paradise of the state, at least in the hearts of all UT grads like me, and a damn nice place to be in the opinions of about everyone who's been there.  They'll take you to the very stately and recently refurbished Texas Capitol Building, whose dome is even taller than the one over the US Capitol.  And there — you'll have to stay in  a closed room while everyone .... VOTES!  Why, you might even be punished with ... THE SOFT CUSHIONS or THE COMFY CHAIR while you're there!

Well, actually, you might also have to participate in some small-d democracy — which means you'll vote one way, and a majority of the other people in the same room will vote the other way, and your side will lose.  It's the certain knowledge of that which explains why the Truant Texas Dems™ ran away.  But it could be worse — it's likely to be more publicity for you, Senator, and far less boring for everyone else, than your average C-SPAN telecast. 

¶   What else is on your list, Senator?

The Republican redistricting effort shatters the tradition of performing redistricting only once a decade immediately after the Census — making redistricting a perpetual partisan process.

This is a bald-faced lie.  See above — the Texas Legislature has yet to complete one redistricting for the 2001-2010 decade.  There fortunately is not yet a "tradition" that ad hoc panels of three federal judges convened under the Voting Rights Act of 1965 shall excuse the Texas Legislature from ever again performing its duty under the US Constitution.

¶   Next?

It elevates partisan politics above minority voting rights, in contravention of the federal Voting Rights Act.

No, Senator, as you well know, when a redistricting plan finally does obtain a majority vote in both chambers of the Texas Legislature and the Governor's signature, that plan will still have to undergo pre-clearance with the Justice Department under the Voting Rights Act of 1965, and it's also certain to face private-party court challenges.  That's precisely why every redistricting plan under serious discussion goes well out of its way to avoid any dilution of minority voting rights.  Just tell the truth, Senator, and admit to the public that the only "racial discrimination" involved is your attempt to protect white male incumbent Democrats.

¶   How about this one?

Republican efforts to force a vote on this issue by changing the rules of legislative procedure threaten to undermine the rule of law in Texas.

Senator, there's a big difference between the "rule of law" and rules of courtesy.  What you're talking about is a rule of courtesy, a "good ole boys" tradition that does indeed encourage compromise and discourage extreme partisanship.  However, you had your chance to operate under those courtesies in the 77th Legislature, the regular session of the 78th Legislature, and the first special session this summer.  And you've abused those rules of courtesy to achieve a deadlock that's blocked the Legislature from doing its duty under the US Constitution.  If you want to know about the "rule of law" Senator, I really suggest you start with the US Constitution, which tells you that your butt ought to be in Austin instead of on the golf courses of Albuquerque.

¶   He's shocked, shocked:

Now Tom Delay [sic] has made it his priority to force the Republican-controlled Legislature to enact a new redistricting plan to increase the number of Republican-leaning Congressional districts.

Yes.  This is called "gerrymandering," but it's not just Representative DeLay's priority.  It's part of what Texas voters are conclusively presumed to have intended when, in our system of representative small-d democracy, they put all the levers of state government entirely into the hands of the Republican Party in the 2002 election.  Read Mr. Marshall's article, Senator, the part about apple pie ....  Oh, wait — you ought not need to do that, Senator, you were in the Legislature in 1991 when the Democrats crammed down the gerrymandered district map you're trying to preserve today!

¶   And the sky will surely fall:

If the Republicans succeed in redrawing the Texas Congressional lines to guarantee the election of five to seven more Republicans, it will ensure that Republicans hold the majority in the U.S. House of Representatives for the entire decade and will likely result in Tom Delay [sic] becoming Speaker of the House.

"Ensure" is a bit strong — not all gerrymanders work as planned.  But yes, that's rather the point of the process (although your numbers are probably high).  You're completely wrong, though, to speak of "the entire decade" — did you forget that we've already had one of the decade's five Congressional elections under essentially the same gerrymandered plan you voted for in 1991?  There's another Census in 2010, and whatever happens this year, the Texas Legislature that convenes in 2011 will again have to deal with redistricting.  Believe it or not about your fellow Texans, Senator, but just about all of us can count to ten.

As for the prospect of Tom DeLay becoming Speaker of the House, it makes a wonderful scare tactic, Senator, for those who substitute personal fears and hatreds for principled arguments.  But we both know that's not going to happen.  Congressman DeLay has his fans, but he also has "high negatives" sufficient to ensure that regardless of how much power he wields as House Majority Leader, he'll almost certainly never be the Speaker.

¶   Time to try again to "play the race card":

The Republican advantage would be gained by removing many African American and Hispanic voters from their current Congressional districts and "packing" them into a few districts that already have Democratic majorities. The voting power of these minority voters would be dramatically diluted by the Republican plan, in contravention of the federal Voting Rights Act. If the Republicans succeed, over 1.4 million African American and Hispanic voters will be harmed. It would be the largest disenfranchisement of minority voters since the Voting Rights Act was passed.

"Disenfranchisement" means preventing someone from voting altogether.  You don't mean that — although it's a great word to use when you're telling lies about redistricting, since it sounds so much worse than "diluting."  It conjures up vivid images from the civil rights struggles in the 1950s and 1960s that the Democratic Party very much wants to keep alive.  As propaganda, it's right up there with painting a Hitler moustache on Dubya's picture, Senator.

More fundamentally, it's rather beyond the power of the Texas Legislature to repeal the Voting Rights Act of 1965.  We're all still statutorily presumed to be bigots here in Texas, so regardless of actual intentions, any plan with even the unintended effect of significantly diluting the rights of minority voters will be tossed out by a three-judge panel in the proverbial New York minute.  The one thing everyone in this argument can be absolutely certain about is that there will be no fewer minority Congressmen when we're done.  If you really believed this argument, Senator, you'd take your medicine in Austin now, and then let the federal courts ride to the rescue of the "disenfranchised minority voters."

¶   Well, how about "It's just not done that way!" as an argument?

[R]edistricting has always been conducted immediately following the U.S. Census' decennial population reports. Tom Delay [sic] now proposes a new redistricting plan two years after the Census report simply because Republicans gained control over the Texas Legislature in 2002 and now have the power to enact a much more Republican-friendly plan than the one drawn by the federal courts two years ago. This is an unprecedented approach to redistricting, one that subordinates its original purpose of ensuring the principle of "one man, one vote" to the purpose of perpetual partisan politics. Redistricting, in this model, would never be a settled matter, and districts would constantly be in flux depending on the balance of political power in the Legislature.

There's nothing normal or desirable about redistricting being done by unelected federal judges.  There's nothing unprecedented about gerrymandering (although it's true that the Republicans haven't had a shot at it in Texas since Reconstruction days).  What's unprecedented is the idea that you have the right to run away to another state when you've been elected to sit in the Legislature of this one. 

"Perpetual partisan politics" over redistricting will indeed be at an end until 2011 — just as soon as you and your truant comrades go back to Austin, Senator.

¶   Can't we just all get along?

The Texas Legislature has traditionally been defined by a spirit of bipartisanship and cooperation. This issue has polarized the legislature in a way that threatens to destroy that tradition. The Republicans have effectively exiled their Democratic counterparts in a power play that makes our state look more like a banana republic than a dignified democracy.

Actually, the Texas Legislature wasn't bipartisan at all until recently — it was mono-partisan, filled with an overwhelming majority of Democrats.  Your "exile" is what now threatens to destroy whatever tradition of cooperation and dignity has been established, but that exile is entirely self-imposed, and it will end as soon as you show up for a vote. 

I do agree that state senators who tell obvious, palpable lies and who think their constituents can't count to ten do tend to make the state look like a banana republic.

¶   Okay, back to the "I am a Fugitive from a Chain Gang" approach:

The deployment of state law enforcement officials to apprehend boycotting legislators erodes the separation of powers between the executive and legislative branches of government, and diminishes legislators' ability to represent their constituents as they see fit. The unilateral Republican effort to penalize Democratic Senators and their staffs

Whoops, that argument ends in a sentence fragment, Senator.  You're not getting your money's worth from your propagandists if they leave sentence fragments mid-argument.  "Unilateral Republican effort" ... hmm, usually that's followed by something about Iraq.  Was your staff intending to work something about Iraq and quagmires into this piece, Senator?

Anyway, it's true enough that when you cross the border back into Texas, you're likely to have a respectful law enforcement escort.  As for their diminishing your ability to represent your constituents, though, that's just another damned lie.  Senator, quit painting an image of Sheriff Bubba standing over your desk in the Senate Chamber, ready to blow out your brains if you don't cast a vote in favor of a Republican-sponsored plan.  Every Republican in this state will be tickled to see you vote in whatever manner you think best represents your constituents — so long as you haven't fled the jurisdiction to break a quorum and prevent everyone else from voting.

Stand and fight, Senator!  Remember the Alamo!

-----------------------

*Correction (Mon Aug 25):  While reading through the "Killer D's" website, I saw this statement:  "In 2001, Texas Congressional districts were drawn by a panel of three Republican-appointed federal judges."  I'd read in Dr. Marshall's post and elsewhere, and I had repeated here, that there were two Republicans on the three-judge Balderas panel.  Actually, however, both of the district judges on the panelJohn H. Hannah, Jr. and T. John Wardwere appointed by President Clinton.  Only the circuit judge, Patrick E. Higginbotham — whose vote on this panel counted no more than that of the two district judges — was appointed by a Republican President.  (Ford appointed him to the district court bench, then Reagan promoted him to the Fifth Circuit.)  I'm admitted to practice in the Eastern District of Texas, where the case was filed, and I know or know of most of the district judges there — so I have no good excuse for not noticing this sooner.

As is typical in such cases, the Balderas opinion was written "per curiam," rather than as an opinion signed by one and concurred in by two others; so we don't know who was its principal author, nor even whether there was a principal author.  There was no dissent, and by writing "per curiam" the three judges deliberately spoke with one voice. 

I stand by my original point, however, which is that it's a mistake — and very insulting, actually — to suggest that the personal politics of any of these three judges played any conscious part in this decision.  Anyone reading their written opinion will immediately conclude that these three judges were being "judicial conservatives" — meaning that they were keenly aware of their unfitness for the task thrust upon them by a political breakdown, and they were determined to do the minimum necessary to permit the 2002 elections to go forward.  They expressly recognized that their minimalist approach had a pro-Democrat effect, but that wasn't an outcome they maneuvered to create, nor frankly one they tried to avoid. 

The only reason their party affiliation is relevant at all to this discussion — and I'm guessing that their personal party affiliations match that of the Presidents who appointed them, but even that is a wild guess (and I know of examples where it wouldn't be true) — is because it's another example of the kind of factual distortions upon which the Truant Texas Dems™ and their supporters have relied.

Posted by Beldar at 08:14 PM in Texas Redistricting | Permalink | Comments (2)

Thursday, August 21, 2003

NYT demonstrates that it's marginally less brain-dead than the UN, which vows to remain a "soft target"

After having gone out of its way yesterday to blame the Bush Administration repeatedly for failing to prevent Tuesday's truck-bomb terrorist attack on the UN headquarters in Baghdad — instead largely ignoring and burying the key evidence that the UN itself is to blame for the security lapse — the New York Times was comparatively responsible and realistic today.  It finally floated a mid-section (page A13) below-the-fold article, poignantly entitled "Questions Haunt a Saddened Annan."  The Times doesn't quite get around to saying who did the asking — one would rather doubt that it was a NYT reporter — but nonetheless reports that the question of "[w]ho should take responsibility for the security breach that enabled the bombing to happen" was one that "dogged a haggard Secretary General Kofi Annan from Stockholm to the doors of the United Nations headquarters building in New York," and that "[t]he report that officials of the Baghdad mission had rejected an offer of increased security from allied forces before the bombing caused great concern here."

Key UN officials, however, appear not only to still be in a state of denial, but a state of deliberate recklessness that makes Dubya's "bring 'em on" remark of a few weeks ago seem hyperprudent by contrast.  Dubya was baiting the honeytrap because he'd rather that radical terrorists, with AK-47s blazing furiously but impotently, mostly continue to hurl themselves in their pickup trucks at our M1A2 Abrams tanks in Iraq instead of patiently plotting to destroy civilian targets in the US. 

The UN, by contrast, seems to be insisting that it will remain an easy target in Iraq just because that's just what kind of fools they really want to be.  It's the international equivalent of taping a "Kick Me, I'm Stupid!" sign to your own back.

As more details have emerged, it became increasingly clear today that the vulnerability of the Baghdad UN headquarters compound can be traced directly to conscious decisions made by the UN itself — rather than to any specific failings of the Bush administration or the US-led forces occupying Iraq.  In today's WaPo, in an article entitled "U.S., U.N. Differ on Issue of Protection: Responsibility Over Site of Blast Disputed," we read that

[a] spokesman for the U.S. Central Command, Lt. Cmdr. Steven Franzoni, said a U.S. Army platoon was present inside the U.N. compound and was guarding the front entrance at the time of the attack. A platoon typically consists of about 40 infantry soldiers. But there were no U.S. troops along the roadway on the other side of the building, where the truck bomb exploded.

"At some level, the United States offered to do more but was told by U.N. officials that they'd prefer to remain separate and distinct," a defense official said. "So the U.N. contracted with a private firm to provide additional security."

As this article goes on to explain, however, the refusal by Annan and other top UN officials to concede that the UN itself was responsible for the security failure rests on the incredible notion that the US should have overridden the UN's wishes and provided more security anyway:

"I don't know if the United Nations did turn down an offer of protection, but if it did, it was not correct, and they should not have been allowed to turn it down," [UN Secretary General Kofi] Annan told reporters after returning to U.N. headquarters in New York.

(Emphasis added.)  "They?"  Who's this "they," Kemosabe?  (He means, "we, the UN.")  Continued the Secretary General of International Rationalizations and Denial:

"We all live in this city, and nobody tells you if you want police to patrol your neighborhood. They make the assessment that patrol and protection is needed, and it is done. And that's what should be done in Iraq."

Hrmpf.  Well, was the security breach the result of a lack of "patrolling" by US occupation forces?  That hypothesis is, if you'll forgive the phrase, exploded in another article in today's WaPo, this one entitled "U.N. Will Cut Staff, Up Security In Baghdad: Bomb Attack Shatters Workers' Sense of Safety."  This article contains more specific — and frankly, damning — concessions made by one who appears to have actually been on the scene in a position to know, Baghdad-based UN spokesman Salim Lone (who was also quoted in my blog yesterday):

Lone said U.N. workers wanted to appear close to the people they had come here to serve and hoped those people would provide a shield of goodwill.

As a result, many U.N. offices here are protected by little more than metal barriers and armed guards, a sharp — and intentional — contrast to the sandbags, barbed wire, armored vehicles and heavily armed troops that surround facilities occupied by U.S. and allied forces.

"We tried to be as accessible as possible," Lone said. "You always thought your best protection was the people, not the security measures. We did not want to be behind barbed wire and tanks. We would move freely without protection, without armored cars."

At U.N. headquarters, for example, the road on which the truck bomber traveled paralleled a new wall built around the compound. The road was unguarded and at one point passed no more than 20 feet from Vieira de Mello's corner office. It was there that the truck driver detonated the bomb that caused the huge explosion.

To a security specialist, this approach seemed pure folly. "There were no checkpoints, no guards at all. This was an open driveway. No security whatsoever," said Thomas Fuentes, the special agent who heads FBI operations in Iraq and is investigating the blast.

So have any lessons been learned yet?  There are mixed signals on that question.  The "U.S., U.N. Differ" article from the WaPo linked above concludes by quoting "Fred Eckhard, the chief U.N. spokesman," thusly: 

"We did not harden our headquarters location from a security point of view, because we didn't think it was necessary," Eckhard said. "As a result of the attack of yesterday, obviously, we're going to have to rethink."

But from the AP, as reported in the San Francisco Chronicle in an article headlined U.N. says will not increase Iraq security after bomb attack, death toll rises to 23":

Even as Washington showed reluctance to give the United Nations a stronger role in Iraq, the world body made it clear it wanted to keep its distance from the U.S.-led occupation.

Despite the bombing, the United Nations will not increase the number of U.S. soldiers standing guard outside its facilities from the dozen or so it had before the attack, said Ramiro Lopes da Silva, Iraq coordinator for U.N. humanitarian programs.

"It's not that we have anything against the Coalition forces, but you do realize the presence of Coalition forces does intimidate some of the people we need to speak to and work with," he told reporters at the blast site.

"We will always remain a soft target," he said. "We are conscious of that, but that is the way we operate. We are an open organization."

And an uncommonly sad and silly one.  A declaration like "[w]e will always remain a soft target" can't help but put one in mind of the Black Knight from Monty Python and the Holy Grail.  But he at least talked a good game.

UPDATE (Fri Aug 22):  Today's NYT shows some welcome investigative snap, given their incredibly poor start in reporting on this bombing, in a story entitled "Inquiry of U.N. Bombing Focuses on Possible Ties to Iraqi Guards."  The security lapses which led to this tragedy — far from being the fault of the American occupying forces, as first reflexively insinuated by the NYT and Kofi Annan — now appear to be even more tightly connected to the UN itself, and were very possibly the result of betrayal by the Iraqi "security forces" that the UN decided to use instead of accepting American offers for better compound security.  A "senior American official" in Baghdad is reported as saying that

all of the guards at the compound were agents of the Iraqi secret services, to whom they reported on United Nations activities before the war. The United Nations continued to employ them after the war was over, the official said.

The official said that when investigators began questioning the guards, two of them asserted that they were entitled to "diplomatic immunity" and refused to cooperate....

"We believe the U.N.'s security was seriously compromised," the official said, adding that "we have serious concerns about the placement of the vehicle" and the timing of the attack. The bomb exploded directly under the third-floor office of the United Nations coordinator for Iraq, Sergio Vieira de Mello, while he was meeting with a prominent American human rights advocate, Arthur C. Helton. Both men were killed, along with several top aides to Mr. Vieira de Mello.

(Link via InstaPundit.)

UPDATE (Mon Aug 25):  Ralph Peters in the NY Post nailed this topic shut on Saturday.  Not only did the UN turn down repeated US offers for security, but it was a retired US special forces officer working for the UN — whose pleas had been mostly overruled — who was responsible for construction of the wall that absorbed most of the blast.  Another American officer, recognizing the UN's vulnerability and obstinacy, managed to arrange for two full-blown medevac rehearsal drills at the compound in the weeks before the bombing, so that when the tragedy struck, we were at least prepared for how to handle the aftermath:  "[W]hen the U.N.'s own people lay bleeding, they were glad enough for our help. As one U.N. employee, speaking from inside the Baghdad compound, put it to me, 'It was a proud day for the U.S. Army.'" 

Yet the NYT, and pretty much everyone else in the world who sees through those same sort of spite-colored lenses, reflexively blamed the US first.  Our forces probably know that as a rule, no good deed goes unpunished; and these particular good deeds will likely go unnoticed or be quickly forgotten by much of the American public and most of the world.  But not by those of us whose admiration for our forces serving abroad continues to swell day after day.  (Hat tip to Andrew Olmstead at Winds of Change and Prof. Reynolds at InstaPundit.)

Posted by Beldar at 05:30 PM in Current Affairs | Permalink | Comments (0)

Wednesday, August 20, 2003

To slam Dubya for the bombing of the Baghdad UN headquarters, NYT buries the key fact on page A9, paragraph 11

The first two questions anyone asks himself upon learning of yesterday's deadly bombing of the U.N. Headquarters in Baghdad are, "How could this have happened and who's to blame?" Never fear: Our national paper of record, the stately Great Grey Lady, has the answer somewhere amidst all the news that's fit to print. But only if you're willing to really dig for it through all the rest of its anti-Administration coverage. The front page of the print version of today's New York Times offers two stories, a news piece entitled "Huge Suicide Blast Demolishes U.N. Headquarters in Baghdad; Top Aid Officials Among 17 Dead" and a "news analysis" piece entitled "Chaos as an Anti-U.S. Strategy." The first reports that
[t]he suicide bombing marked a brazen assault on the American occupation here, apparently calculated to destroy any sense of security for people charged with reviving Iraq in the aftermath of the war. If anarchy was the goal today, it was anarchy that unfolded.
It also reports that
the [U.N.] compound here is also one of the least fortified of its kind here, with neither tanks nor troops to protect it.
The latter article begins by opining that
[t]he bombing of the United Nations headquarters in Baghdad today provided grisly evidence of a new strategy by anti-American forces to depict the United States as unable to guarantee public order, as well as to frighten away relief organizations rebuilding Iraq.
Back on page A8, we find "Bush Condemns Iraq Bombing and Vows U.S. Will Persevere," which by its third paragraph reports that
[i]n political terms, the bombing provided Democrats with a new opportunity to criticize Mr. Bush for failing to anticipate the perils and difficulties of occupying and rebuilding Iraq.
This is followed immediately after by predictably condemnatory quotes from Democratic Senators Bob Graham and John Kerry. And of course when we flip back to the editorials on page A24, in "The Baghdad Bombing: A Mission Imperiled," we find this:
Terrorists aim not just at inflicting death and devastation. They also hope to poison the emotional and political climate around their targets.... The Bush administration has to commit sufficient additional resources and, if necessary, additional troops, to prevent that....
Yesterday's attack is described as "another sign that surly, chaotic postwar Iraq is becoming a magnet for terrorists," which in turn is described as "yet another consequence of the Iraq war that the Bush administration failed to anticipate." Damn dumb Dubya & Co., falling down on the job again! Idiotic cowboys! Is there any other possible conclusion you can reach from this coverage? Unless ... Unless you flip back to page A9 to the article entitled "The Scene: Amid Blood and Rubble, a Sense of Helplessness." This article is also filled with criticisms, such as the one attributed to "many" Iraqis that the bombing is "another sign of the poor job the occupation forces are doing providing security in a country they now nominally control." But there — tucked away nicely in the eleventh paragraph, without subheading or italics or boldface or sidebar ("too damn bad we don't have footnotes we could drop this into," you can almost hear the editors murmur) — we finally learn the key fact to answer the questions, "How could this have happened and who's to blame?"
After a bombing at the Jordanian Embassy last week, senior American officials warned that other soft targets might be next. But the United Nations deliberately avoided sealing itself off because it feared that such barriers would send the wrong message to Iraqis seeking help.
Also slipped into that story is an acknowledgement that "[t]he United Nations has been a target before. Three employees were killed over the last few months in various shooting attacks." But you have to leave altogether the bizarro-world of the NYT to learn from somewhere like the Associated Press, as printed in the Houston Chronicle, that
U.N. officials at the headquarters had refused heavy security — aside from the recently built concrete wall — because the United Nations "did not want a large American presence outside," said Salim Lone, the U.N. spokesman in Baghdad.
Oh. Well, about that condemnation of Dubya & Co. for failing to anticipate and guard against this attack: In the words of Emily Litella, "Never mind." Kofi Annan (AP photo)UPDATE (Weds Aug 20): See my Comments below. Don't miss the "money graf" in boldface from Kofi Annan, which pretty much 'splains everything having to do with Iraqi, Iraqis, the war, the UN, the "New-" and "Old-Europeans," the UK, the US, and the whole rest of the world since 9/11. I believe we've just been treated to the Grand Unified Theory of World Politics. UPDATE (Thurs Aug 21): Also check my new post to confirm that the NYT is marginally less braindead than the UN, based on today's news reports.

Posted by Beldar at 07:36 AM in Current Affairs | Permalink | Comments (11)

Tuesday, August 19, 2003

When "Aren't they cute?" becomes "Aren't they hot?"

Prompted by a cover photo on Rolling Stone's September issue, Daniel W. Drezner's blog asks, with tongue I think only partly in cheek:

Mary-Kate & Ashley OlsenWhy is it that some celebrities under the age of eighteen can be universally acknowledged as sexy, whereas if that adjective is assigned to other underage but physically mature stars, people start leveling accusations of perversion and lechery? Why was it so shocking for Britney Spears to start flaunting her sexuality, but everyone instantly accepted Anna Kournikova as a sex object?....

I ask because of the Olsen Twins. They're on the cover of the Rolling Stone in September. Their ever-closer 18th birthday has prompted some, er, obsessive web sites as well.

Drezner continues:

The wildly divergent reactions to the Olsens are on full display in the comments sections of [various blogs] — though, to be fair, much of the vitriol is devoted to whether Rolling Stone is now officially lame.... I fear that this issue could split the country.

Before this happens, I hope the blogosphere, using its collective, distributed nodes of intelligence, can determine why it's OK to admire the shapeliness of some 18-year olds but not others.

Reading through the links he offers, plus the various comments and trackbacks (here and here) to his own post, the "collected, distributed nodes of intelligence" of the blogosphere don't seem to have developed either a Anna Kournikovaconsensus or even a particularly enlightened response — although he's quite right that the reactions range from "Ewwww, this is weird!" and "Dude, I'm gonna hurl!", through "Well, they have turned out to be beautiful," and on to considerably more graphic and enthusiastic admiration.

For me, though, this is a vaguely nagging issue that I fear will get worse rather than better in the next half-dozen years.  I'm forty-five and single/divorced, but among my four kids are two preteen daughters, and I am far, far from having made the necessarily emotional adjustment to accept the inevitable fact that someday my daughters will begin dating.  In fact, I'm quite certain that the one thing that could instantly put my reptilian hindbrain in complete control would be someone, anyone, making any kind of sexual advance toward my daughters.  I say to you all — I hereby warn the world! — that I have a hard time imagining not becoming homicidal in any such scenario.  (This blog will be Prosecution Exhibit 11-B to show premeditation, probably.  Oh well.)

Yet I say this as a man who, as a teenaged boy, was once caught at a motel with his high-school girlfriend by her father — said father driving a pickup truck with the proverbial well-filled shotgun rack in the rear window.  We were not quite en flagrante delicto but were very close to it, and I only lived to tell the tale as a consequence of her brilliant improvisational acting.  It was very much a case of, "Who are you going to believe, Daddy? Me as your beloved daughter, or your own damned lying eyes?" 

Mariel Hemingway & Woody Allen in 'Manhattan'It seems inevitable that at some point as a man ages, the dilemma faced by Humbert Humbert, Issac Davis (Woody Allen's character in Manhattan), and Lester Burnham (Kevin Spacey's character in American Beauty) becomes less intellectual and remote.  Has there ever been a more ironic movie to rent and ponder than Manhattan, knowing what became of Woody Allen?  We're talking foreshadowing on a cosmic, embarrass-even-the-Greek-tragedians scale.  But when I rented it on DVD a few weeks ago, my reaction to the then-18-year-old (and now 41-year-old) Mariel Hemingway (who played Allen's high-school-student-turning-actress girlfriend, Tracy) was, "My god, isn't she just naturally, breathtakingly gorgeous?  How could any man of any age not be smitten with her?"  (She fully deserved her supporting-actress Academy Award nomination for that part, by the way, and it's still a great movie notwithstanding Allen's later ugly peccadillos.)

Britney SpearsYes, I'll admit I've felt the internal conflict between "Hand me that remote, sweetheart, so I can switch off that Britney Spears video" and "Hand me that remote, sweetheart, so I can turn up the sound and make sure we see the end of that Britney Spears video."

So I suffer from this huge emotional and hormonal disconnect.  I already am zealously overprotective of my own daughters and (at this point anyway) absolutely unable to conceive of them evolving into young adults with normal sexual instincts and interests.  Yet I know I still have within me the potential to become "no fool like an old fool" — although the actual prospect of ever acting on that impulse is, fortunately, very remote.  It's a comfort, I suppose, to know that it's a common suffering among men my age and older.  One can take solace in clichés, even the pathetic ones.

Mena Suvari from 'American Beauty'As far as the answer to Drezner's original question:  My own theory is that the collective visceral reaction of pop culture to these young starlets has a great deal to do with how famous they've been as children.  I'd bet that the people who were most shocked by Britney Spears were those who were aware of her as a "Mouseketeer" on the Disney Channel.  Likewise, those who watched whatever sitcom the Olsen twins were in acquired strong and lasting mental images of them as little girls, and it's the cognitive dissonance between that remembered image and the present sexy ones that create the discomfort and even revulsion. 

By contrast, Anna Kournikova and Mena Suvari and Mariel Hemingway weren't ever child stars; I'm sure they were cute little kids, but they were already The Olsen Twinshot (albeit very young and young-looking) when they first impinged on the public consciousness.   My having never seen much of the child-star Britney or the child-star Olsen twins would thus explain my lack of parental-type projections with respect to them.

Still, I'm not quite sure how embarrassed I'm supposed to be for thinking, as I look at the cusp-of-18 Olsen twins:  "Yep, they're hot."

Posted by Beldar at 11:53 PM in Current Affairs | Permalink | Comments (2)

Pssst! Fortinbras! Now's your chance to make a move!

STOCKHOLM (Reuters) - Sweden's armed forces will operate only during office hours for the rest of the year to cut costs, military headquarters said.

They also will cut fighter plane patrols to a minimum, keep navy ships in port, mothball armored vehicles and stop using large caliber live ammunition during exercises.
....
A parliamentary defense commission said in a recent report that the likelihood of Sweden facing a military threat in the foreseeable future was very small.

Posted by Beldar at 05:28 PM in Humor | Permalink | Comments (0)

Monday, August 18, 2003

Don't you dare threaten my outrage!

My post about the Jesus Castillo obscenity conviction from Dallas, along with comments I've left on several blogs and websites that seemed to be promulgating misinformation, have generated some interesting email.

The most gratifying have been along these lines:  "Thank you for shedding some light on this.  I feel better now that I know this isn't a terrible precedent stripping all comics of First Amendment protection."

But I've been surprised by a few emails that have almost nothing in common with each other except glowering hostility, very personally directed at me.  To these writers, it doesn't matter  that I'm a critic of Miller v. California, or that I see a silver lining through the cloud of this specific, not-very-cosmic misdemeanor prosecution.  All that matters is that I've gotten in the way of their outrage with some inconvenient facts.

I'm learning that there's no point in continuing to argue with those folks.

Posted by Beldar at 09:18 PM in Weblogs | Permalink | Comments (1)

Sunday, August 17, 2003

Wall Street Journal swallows truant Texas Dems' propaganda and misstates key facts about Congressional reapportionment

In an article misleadingly entitled "Incumbent Protection Racket" (but more aptly subtitled, and teased from the home page as, "The liberal media are shocked, shocked to find gerrymandering going on") in the Wall Street Journal's online opinion section, OpinionJournal, I read this today:

Democrats and the media are especially incensed by the GOP's current efforts to gerrymander Texas, and they have a point. The GOP is trying to redraw House seats for the second time this decade, when the tradition is only once after every Census. Angry Democrats in the legislature have now fled the state twice to prevent the quorum that Republicans need to push it through.

(Emphasis by BeldarBlog.) This just about knocked me out of my chair.  If in fact Texas Republicans were trying to complete a second gerrymandered redistricting in one decade, then yes, indeed, the Dems would have a reasonable political objection (although even that would be constitutionally permissible, and has been done in the past by the most aggressive partisan gerrymanderers).

But nothing could be farther from the actual truth

As recounted in a recent opinion from Texas Attorney General Greg Abbott, the actual fact is that

[t]he Seventy-seventh Legislature failed to enact a redistricting plan for the United States House of Representatives, and a three-judge federal court therefore created a plan used for the 2002 general election. See Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D. Tex. Nov. 14, 2002) (per curiam)[a three-judge panel under Voting Rights Act of 1965, with two district judges and one circuit judge sitting as a special trial court with original jurisdiction], aff'd mem., 122 S. Ct. 2583 (2002).

Each party blames the other for the failure to get a redistricting bill out of committee in the Texas Senate in 2001.  In 2002, however, the voters made changes that broke those deadlocks by electing — for the first time since Reconstruction — a majority of Republicans to the Texas Senate, along with a Republican Lt. Governor.  And based on undisputed caselaw quoted at more length in Attorney General Abbott's opinion,

Texas legislators are entirely free to replace the court-ordered plan in Balderas and, as the court urged in McConnell, "continue efforts to fulfill their constitutional duties" as elected representatives to enact a congressional redistricting plan that comports with section 5 of the Voting Rights Act.

In fact, in the granddaddy of reapportionment cases, in discussing how often state legislatures must redraw Congressional district boundaries to avoid falling into constitutional infirmity, the US Supreme Court held that "if reapportionment were accomplished with less frequency [than every 10 years], it would assuredly be constitutionally suspect."  Reynolds v. Sims, 377 U.S. 533, 584 (1964). 

The Balderas panel expressed clear-eyed recognition of how redistricting works in the real world:

[T]o state directly what is implicit in all that we have said:  political gerrymandering, a purely partisan exercise, is inappropriate for a federal court drawing a congressional redistricting map.  Even at the hands of a legislative body, political gerrymandering is much a bloodfeud, in which revenge is extracted by the majority against its rival.  We have left it to the political arena, as we must and wisely should.  We do so because our role is limited and not because we see gerrymandering as other than what it is:  an abuse of power that, at its core, evinces a fundamental mistrust of voters, serving the self-interest of the political parties at the expense of the public good.

(Slip op. at 10; emphasis by BeldarBlog)  That last bit is a rather wistful condemnation of politics-as-actually-practiced, and implicit in it is a suggestion that we'd be better off without gerrymandering.  That might be so, but forty-nine of the fifty states still leave reapportionment to the partisan process of state legislatures. 

Without any doubt whatsoever, what's happening now is the back-swing of a pendulum that Texas Democrats gave a huge push in 1990 with the express purpose of protecting their majority in Texas' Congressional delegation against their party's rapid erosion at the polls in Texas.  Even if you want to argue that we should stop these pendulum swings, no one can make a principled argument that the pendulum's current position is representative of the views of the majority of Texas voters.

Posted by Beldar at 08:08 PM in Texas Redistricting | Permalink | Comments (1)

Saturday, August 16, 2003

Electric heroes: a memoir

We haven't yet heard a definitive explanation for the power blackout that swept the Northeast and parts of the Upper Midwest this week.  Whenever someone pinpoints the immediate, precipitating cause, there will of course still be serious questions left to answer — Transmission toweralong the lines of, "But how could we have permitted a situation where that glitch resulted in all this?"  Eager pundits are already pointing to deregulation — in particular, (a) the separation of ownership between generating facilities and transmission lines, and (b) general market uncertainty that has deterred long-term capital investments into the nation's power generating and transmission infrastructure — as the explanation for our vulnerability to the rippling, cascading effects of whatever the original glitch was.  Personally, I'm not in a position to offer educated guesses about those topics.

These blackouts have, however, reminded me of past personal experience, on the basis of which I can make a fairly confident guess about who was not to blame for this — a low-profile set of workers whom we take entirely for granted, despite the fact that they put their lives at risk for you and for me on a daily basis.  Indeed, they face hazards that can be every bit as deadly and unforgiving as those which our soldiers and police and firefighters confront.  And they get no recognition for it, no credit other than a blue-collar wage and an intense, very quiet shared pride.

****

I had the privilege and the honor in my first few years of law practice to work at a firm that regularly represented the local electric utility here in Houston, then known as Houston Lighting & Power Co. — "HL&P" we called it, or simply "the Light Company."  Law firms value such clients highly because they always have need of good lawyers; their representation entails not only a large volume of work, but a broad variety, much of it very challenging and interesting; and they pay their bills promptly. 

On my first day as a practicing lawyer in fact, I was lucky enough to get to be the "third-chair lawyer" in the team defending the Light Company on a serious injury case, metaphorically "carrying the briefcases" of two much more senior lawyers at the firm who were doing the heavy lifting and skill work.  We lost — we fought a good fight, but we got whipped, and in hindsight the jury did almost exactly the right thing with its verdict in that particular case — and yet I learned more about my profession from that single two-week trial than I'd learned in all my courses in my last two years of law school put together, I think.

As my skills and experience grew, so did the responsibility with which I was entrusted, so that I found myself a few years later acting as the first-chair lawyer — albeit still with discreet supervision and backup from the firm's partners — in preparing for trial another very serious case against HL&P.  The case was brought by the widow of one of the Light Company's own long-time employees, a journeyman lineman in the Transmission Department who'd died in a horrible on-the-job incident.

That's probably not an immediately meaningful job title to most of you, is it? "Lineman"?  Isn't that a football player?  Maybe a judge in a tennis match?

****

This man had been one of an elite class of highly skilled tradesmen whose jobs exist in an eerie intersection between electrical engineering and circus acrobatics.  "High linemen," they're sometimes called, for their job is to construct, maintain, and repair the incredibly tall steel towers that carry electric power from the distant power plants to the cities.  They put the towers up, they take them down.  They fasten the insulators to the tower arms that hold up the long, thick loops of naked steel cable — "conductors," they call them — which carry "the juice," the current, the electricity. 

When the tropical storms and hurricanes that regularly lash the Texas Gulf Coast knock down transmission towers or lines, these men put them back up — usually working around-the-clock.  Their skills are so unique and rare, in fact, that they're sometimes "loaned out" to other power companies around the country — sent to the coasts of Alabama or Florida to deal with the aftermaths of hurricanes there, for instance, when the whims of weather and fate have steered one of those beasts north or east instead of west through the Gulf.

I knew almost nothing about these men or their work when I was assigned this particular case, but for reasons that were very much in dispute, this particular lineman either fell — or under one interpretation of the evidence, perhaps intentionally jumped — some 120 feet to his death from the cross-arm of a transmission tower on which his crew was performing routine maintenance.  Inexplicably, he was not "safetied off" — attached by a line from his body harness to the tower structure — in clear violation of the cardinal rule that he'd not only lived by every day of his career, but that he also helped train to apprentice linemen in the Light Company's safety training program.  Regardless of whether he, the Light Company, or anyone else was at fault, his widow automatically qualified for, and was receiving, the comparatively meager death benefits provided by the statutory worker's compensation scheme.  But she had also sued the Light Company, claiming that its work rules and practices were grossly negligent — in effect, that her husband had been killed because HL&P (through its safety and training staffs and its crew foremen) didn't give a damn about the safety of its workers.

So to defend this case properly, I had to learn all about how these men — they were only men, for at the time of this accident there were no women among these crews — did their jobs every day.  I had to learn their safety rules, their procedures, their habits, their routines — sometimes their superstitions.  I had to learn what made them tick.  Over a two-year period during the pretrial "discovery" phase of the case, I spent many hours with these men — educating myself, gathering documents and other information, and eventually presenting crewmember after crewmember for hostile cross-examination by the widow's counsel in pretrial oral depositions.

It made for odd friendships, for on the surface I had almost nothing in common with these men.  I was fresh from a post-graduate education; they generally had high-school educations at the most.  I aspired to management (partnership someday); they were loyal union men to the core.  I wore wingtips and conservative wool business suits, white cotton shirts, and burgundy silk neckties to work; they wore steel-toed boots and denim and leather.  After driving over paved streets to work, I parked in an underground garage; after driving over mud and brush to work, they parked in clear-cut rights-of-way amidst tall pine forests.  My lunches among my coworkers were generally at downtown Houston restaurants with white linen tablecloths; they lunched among their coworkers while sitting on pickup tailgates, eating sandwiches out of steel lunchboxes and drinking ice-water from massive orange plastic jugs. 

I worked high, high above ground level, in a gleaming, air-conditioned office tower made of steel, marble, and glass.  I strode across upon floors that alternated between carpet and polished hardwood, and when I reached out, I touched walls paneled in exotic woods and adorned with tasteful modern art.  They also worked high, high above ground level, but on gleaming skeletal steel towers with neither glass nor marble.  They clambered up narrow steel ladders and then inched across four-inch-wide "angle-iron" girders made slippery with rain or morning dew, and when they reached out, they touched either the open sky or heavy steel cables whose purpose was to carry enough electricity to power the nation's fourth largest city.

Transmission tower & linesBecause they were so well trained, they were able to work safely, routinely, under conditions that would terrify you or me.  Although they were keenly aware at every moment that a casual mistake could cause a death by falling or a death by electrocution in less time than you can scroll down this page, they "worked smart" by methodically adhering to rules designed to minimize and control their risks.  Their employer didn't ask them to violate those rules in order to get your power turned back on a half hour sooner, and in fact forbade them from doing that; and their safety rules quite correctly put a higher premium on these workers' lives than on your or my convenience. 

But they knew — you saw in their eyes when you talked to them — they knew how much our world depends upon, and almost always takes wholly for granted, the magic show that their work keeps running with extremely rare interruptions, 24/7/365.  Collectively, they ached with every minute the power was off in your house or mine. 

They had a strong sense of duty, and they had a natural dignity that was boundless.  They were modest men, but they had quiet pride by the mile.  Amongst each other, they were very, very funny.  They cussed a lot, and after work they'd go out together for a beer, or to hunt or play poker or catch an Astros game.  And they stuck up for one another.  You'd think twice about crossing any one of them.

I took the case seriously from the beginning because I was ambitious and eager and energetic and ethical, and this was among my firm's biggest and most important clients.  They took the case seriously from the beginning because one of their own had died in their midst, for reasons they couldn't quite explain or grasp, and they were being accused of having caused his death by their indifference. 

What I never expected, however, was how much I would come to admire and, eventually, to identify with these men, and as a result just how personally I would come to take the charges being made against them.

****

By the time of the trial, I was a tiger on their behalf.  I was filled with a cold, polite fury that these men — who all loved one another as brothers, and who had loved their dead coworker just as much — were being accused of causing his death, and not by being just sloppy and careless, but reckless and indifferent.  Never have I been more highly motivated than I was in this case and in this jury trial. 

I wanted them to be vindicated!  I wanted the jurors to share the silent tears my clients had already shed for this man, but then I wanted them to shake my clients' hands after the trial was over, and maybe hug them and tell them, "We know it wasn't your fault.  We know you loved him too."  Because that was the truth; they did.

By the time we'd finished all the evidence and the closing arguments, the objectivity I had left about this case would probably have left ample room to spare if stuffed into a matchbox.

And it was almost certainly in anticipation of that likelihood — and, frankly, to guard against some possible catastrophe in a potentially multi-million dollar case for one of our best clients — that my firm had prudently sent along a young partner, a lawyer of about ten more years' experience than I had, to look over my shoulder and "second-chair" me.  My counterpart on the widow's legal team had an experienced partner from her own firm there as well; if anything, her objectivity by that point was even less than mine, because the trial had gone well from my point of view and she was very frustrated, but every bit as devoted to her client.  And while my senior second chair shared my optimism, hers doubtless saw a looming probability that they were about to be, as trial lawyers indelicately phrase it, "poured out like piss out of a boot" — to lose the case and to get nothing, not a dime, for their client (or themselves, since they had the case on a contingent fee).

So while the jury was deliberating, those two senior lawyers disappeared into the snack bar, then made some phone calls.  They came back in a few minutes, all smiles and handshakes, to announce that they'd reached an agreement to settle the case.  (The terms were, and are, confidential, but I can say that the number crunchers back in the financial and legal departments of the Light Company were extremely well pleased.) 

The judge called the jury back from the jury room, told them that the parties had reached an agreed settlement, thanked them for their service, and sent them confusedly home.  In the hallway outside, several of them confirmed to me that in working their way through the list of questions they were to answer for their verdict, they'd already reached agreement on preliminary answers that would have resulted in a victory for my side.

So for about two or three days, I was absolutely furious with my more senior colleague.  I felt that I had been robbed of a jury verdict, a courtroom triumph that I damn well deserved!  And I felt like my clients — note here my identification with the individual linemen and their crew foreman, not their huge corporate employer — had been deprived of the vindication I sought on their behalf.

But after letting me cool down, my colleague took me to lunch to debrief and talk about the lessons I could learn from the case.  "Bill," he said, "I know you're disappointed that I settled the case out from under you.  But I want you to stop a minute and think like a human being instead of like an advocate."  He paused to let this sink in. 

"In the greater scheme of life, are you really furious that Mrs. ___ is getting the fairly modest amount of money that will be left to her after her lawyers' fees and expenses are extracted?  She's not getting a huge windfall.  Our client can afford it.  It all goes into the rate-base, and ultimately it will be paid in tiny, tiny increments by all the families for whom Mr. ___ helped keep the lights on during his twelve years with the company.  Can you not see the justice in that result, even if it wasn't the harsh and total victory you were gunning for?"

I was ashamed.  He was right, of course.  After all the storm and fury that the adversary system postulates will result in justice had cleared, justice — something genuinely fair — had been accomplished.

When this had soaked in, I arranged to meet again, one last time, with the crew.  Some of them had been disappointed when they'd heard of the settlement.  They wanted to know if the Company thought they'd screwed up, or if the Company had sold them out.  I reassured them, and I gave them the same explanation my colleague had given to me.  It was actually probably easier for them to grasp than it had been for me — they felt more natural sympathy for the widow of their dead coworker (whom I had seen only through the distorted prism of the adversary system).

****

Magic at our fingertipsSo when I hear about blackouts in Cleveland or New York, or on those blessedly rare occasions when they happen here, I think about that case, and that trial, and those men.  I think about how lucky I was to have had the chance to be their advocate, their lawyer.  I think about how much they taught me. 

And I think about how lucky we all are that our electric heroes are willing to climb into the sky every day, to build and maintain and fix the towers and the cables that tame the man-made lightning which makes our civilization work — to keep the magic turned on for you and for me.


© 2003 by William J. Dyer

Update (Tue Aug 19):  Lynne Kiesling's site, The Knowledge Problem, contains an impressive set of facts, opinions, and links about last week's blackout and the electrical energy situation in general, and she also has an interesting article that's just come out in Reason entitled "Rethink the Natural Monopoly Justification of Electricity Regulation." 

Posted by Beldar at 03:37 AM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink | Comments (0)

Friday, August 15, 2003

A corny Gipper story

Peter Robinson, blogging on The Corner, has been promoting his new book, "How Ronald Reagan Changed My Life."  He's been getting some very touching, spontaneous emails from others with their own stories, which prompted him to actively solicit more.  (He plans to print them and send them to the Reagan Library.)

For what it's worth, here's my own admittedly corny story that I emailed to him:

One fine clear and windy day in October 1980, I was a brand new lawyer who'd just started a clerkship for a federal judge in Houston.  Our chambers' windows on the eleventh floor in the federal courthouse looked down across Rusk Avenue at Tranquility Park, where a political rally for the Republican nominee in the upcoming presidential election was about to take place.  We all watched from our eagles' nest view, and the PA was loud enough that we could  follow what was going on.

A gleaming white stretch limousine pulled up — REALLY stretched, the biggest I'd ever seen in my life — and out of it, surrounded by his security detail, stepped the #1 hero of my childhood!  I thought he looked pretty good for his age.  He was a bit bowlegged, perhaps, and a bit stiff, but here in Texas we understand that when a man's spent a lot of time on horseback, that just happens.  Certainly I'd seen him whip enough badguys while on horseback, both on TV and in the movies, to understand. 

Another limousine pulled up — this one not nearly so impressive, just a plain black Lincoln Towncar, I think.  Its passenger exited and strode briskly across to join my hero in front of the microphones and the assembled press corps.  I didn't know nearly as much about this fellow, but — well, after all, he WAS Ronald Reagan, the Republican presidential nominee, and I was curious to hear what he'd have to say after my hero — Roy Rogers — introduced him.  (It struck me as perfectly natural at the time, though, that Roy had the bigger limo.)

Roy Rogers died in 1998 at the ripe old age of 86, having lived a full life as the King of the Cowboys.  But that day in 1980 was the first and last time I ever saw him in person, and while I always was and always will be a fan of his, I didn't fully appreciate that day that the man he was introducing would become one of the greatest heroes of my ADULT life.

I had the privilege of voting for Ronald Reagan twice, and I watched him rescue the United States in pretty much the same way Roy and Trigger always rescued Dale.  I watched President Reagan take on our villains, our demons — gas lines, striking air traffic controllers, high interest rates, high inflation, "stagflation," the nay-sayers who'd demoralized and downsized our military, the Evil Empire, and most important of all, a lack of national self-confidence and purpose — and whip 'em.  My gosh, how many bullets DID he have in that six-shooter?

When it comes to those two men I saw together at that 1980 rally, I'm not ashamed to say that I loved Roy Rogers, and I still love Ronald Reagan.  Roy Rogers' make-believe exploits thrilled me as a boy, but he also taught by example a code of honor that I and his other adolescent fans tried to live by.  Ronald Reagan thrilled me as a young man, and he taught me that the idealism I'd learned as a boy was justified, and that same code of honor will always be worth living by. 

Posted by Beldar at 12:06 AM in Politics (2006 & earlier) | Permalink | Comments (1)

Thursday, August 14, 2003

Big home lots in California?

In a fascinating article about Ahh-nuld's wife Maria, Time begins with this factoid:

Five years ago, when she gave the commencement speech at the College of the Holy Cross in Worcester, Mass., Maria Shriver relied on the usual bromides. "Gotta have laughter." "Pinpoint your passion." "Be willing to fail." But then she turned to the subject of sex, and brought the Catholic graduates to their feet. "Forgive me, Mommy," she said, and went on to argue that womankind's great contribution to civilization is "awesome creative sex." She later wrote a book outlining her philosophy of life, in which she felt compelled to reveal, "There's no Viagra within a 50-mile radius of our house."

(Emphasis added, but probably not needed.)

Fifty-mile radius?  We all know from mail-box spam that this can't be a Viagra availability or supply problem for the neighbors, if any.  So either they built on a very large, very private lot, or there may be some kind of persistent downwind industrial-strength pheromones situation here — the latter of which, I guess, might be a campaign asset. 

I hope that, as reported, Maria's very involved in campaign strategy.  And if they have a lick of sense, they'll work hard to get her into every public appearance and every photo and TV op they possibly can over the next two months.  There's probably three percent of the California electorate who'd say to themselves come voting day, "Well, if the niece of JFK and RFK is this enthusiastic about him, maybe I'll trust him too!"  And that might be enough for a margin of victory in this crazy race.

Fifty miles.  Measured radially. Wow.  Awesome, dude and dudette!

Posted by Beldar at 11:52 PM in Humor | Permalink | Comments (0)

"Sexed-up" evidence

I'm amused by the coverage of the "Blair vs. BBC" fight for public opinion that's going on in the UK now — in large part because of a difference it exposes between British English and American English.

The allegation being made against Tony Blair and his cabinet is that it "sexed up" the presentation of evidence about the justifications for war in Iraq.  I gather that "sexed up" isn't a new idiom in British English, but it pretty much is new to American ears.

Except maybe for that perverse sub-slice of Americans known as trial lawyers.

'No Sex Please, We're British' movie posterIt's sort of odd, because I know that one of the longest-running plays on the West End in London (1971-1987) was something called, "No Sex, Please, We're British."

For as long as I can remember, in my conversations with other trial lawyers — shop talk — one of the conversational shortcuts we've used to characterize evidence is "sexy."  And as with the British usage, apparently, this is true even for cases that have nothing to do with real sex.

  • Scenario No. 1:  MegaBlivit Corp. manufactures a blivit with a degree of metal brittleness that's twenty-five percent above the maximum limits set by the American National Standards Institute (ANSI), as a result of which one of its blivits shatters under stress on a cold day, causing the Wide Canyon Bridge to fall on top of Mr. Woebegone.

  • Scenario No. 2:  Fred Fastguy, CEO of MegaBlivit Corp., is worried that his company is about to lose the big Wide Canyon Bridge contract, so he sneaks into the science lab after hours and steals a memo from the locked desk drawer of one of the junior scientists — a memo that was written to inform management that the degree of brittleness in the metal used by MegaBlivit is way too high.  Then Fred shreds the memo and transfers the junior scientist to MegaBlivit's branch office in Paraguay.  One of MegaBlivit's blivits shatters under stress on a cold day, causing the Wide Canyon Bridge to fall on top of Mr. Woebegone.

If I'm representing Mr. Woebegone's family, I can probably win my lawsuit for them with the evidence described in Scenario No. 1.  But it's not sexy evidenceMegaBlivit Corp. I'd have to worry about the jury nodding off as I'm qualifying my expert witness to give testimony on metallurgy.  I'd have to really work hard to make the jury understand how every responsible blivit manufacturer is really careful about their testing because so much can go wrong if they screw up.  And nobody will ever offer my clients $250k for the movie rights to the story, or me $100k to be a "technical consultant" on the film.

If I manage to extract the evidence in Scenario No. 2, though, then I've got evidence that any trial lawyer would immediately recognize — and describe in conversations with other trial lawyers — as sexy!  Now any mullet of a trial lawyer can grab the jury's attention, promise them a drama with a villain and a victim, and probably get them to answer "Yes!" to all the questions that will end up resulting in a big punitive damages award on top of the regular (a/k/a "actual") damages they award.  In fact, even the regular damages are likely to be pumped up — even though Mr. Woebegone is no more dead in Scenario No. 2 than in Scenario No. 1.

Now the specific usage of "sexed up" to describe something that's been exaggerated — I can't claim to have heard that, even in trial lawyer bull-sessions.

But I suspect every American trial lawyer got a special grin when we heard of the liberated Iraqi who celebrated by shouting, "Democracy!  Whiskey!  Sexy!

Posted by Beldar at 10:29 PM in Law (2006 & earlier) | Permalink | Comments (0)

Free, fair, and balanced legal advice to Fox

I'm normally something of a fan of Fox News.  But as my revised masthead{note1} indicates, today BeldarBlog joins the growing number of blogs that seek to ... ummm, I guess the word I'm looking for is "ridicule" the lawsuit Fox News has chosen to file against Al Franken over his soon-to-be published book.

It's an uncommonly silly lawsuit.

(Bonus points for those who can cite the case and Supreme Court justice I just paraphrased.)

But we report, you decide:

I've always thought the "fair and balanced" slogan was a bit inapt anyway.  Maybe, instead, they should go with "Pleasantly slanted just enough to counter any one liberal network of your choice, you pick 'em."  After all, that's why I watch Fox from time to time in addition to CNN.  It's why I read the Wall Street Journal in addition to the Washington Post (among several others). 

If a newspaper or a TV network or a blog ever actually achieved the "fair and balanced" state of equilibrium, it'd be a statistical fluke with the half-life of one of those subatomic particles that only exists in a cyclotron.

We're each the product of our life experiences, and therefore bring biases to every new situation.  That can't be helped, although it can be acknowledged and, sometimes when need be, pointed out and moderated.  Al Franken's book Heck, when I'm trying to pick a jury, I start off knowing that there's zero possibility of getting jurors who are actually unbiased — there's no such thing!  All I can hope for are some whose biases aren't so strong that they'll tune out everything they hear from me, the judge, and the witness stand.  And then I hope that they'll do their best, and mostly succeed, at making their decision based on that, rather than based on their biases.

In a serious post recently, I had occasion to blog about the twin and different duties that a trial lawyer owes his clients — as a public advocate in court, and as a private counselor behind closed doors.  Protecting that important second function is, for example, why there's such a thing as attorney-client privilege.

And in my not-so-humble, admittedly biased, and very amused opinion, someone at whatever outside law firm is representing Fox must have seriously dropped the ball as a counselor. 

This case is borderline litigation abuse.  And strategically, it's colossally stupid.  Whoever signed the complaint that initiated this lawsuit should have Bill O'Reilly's allegedly infringed booksat down first with the decision-makers at Fox and had what trial lawyers (even the Jewish ones I know) call "the come-to-Jesus meeting": 

"Look, guys, I love you, you're a great client, I'm with you 100 percent, but I've been a lawyer for 23 years, and you hired me not just to kick the holy snot out of your opponent, but to keep you from stepping on your genitals.  This lawsuit would be a mistake from a legal and a marketing perspective.  Don't do it, please.  I refuse to be a party to this nonsense.  I hope you'll change your mind, but regardless, I'm not going to sign this pleading."

That's what I'd have told 'em anyway.  And I'm actually not fair and balanced, I'm as mean and as rock-ribbed conservative-bordering-on-crackpot as they come.  But it's still good advice.  And it's free!

******

UPDATE (Aug 15, 2003):

The complaint was filed by Hogan & Hartson in the state-court system of New York.  (The trial-level courts in New York are confusingly named "Supreme Courts" — OMG, I've just been hit with an inspiration for a Lanham Act lawsuit, if only I can persuade Chief Justice Rehnquist to hire me!  And if Bob Crane were still alive, maybe I could ... naw, guess not.)

Hogan & Hartson describes itself as a "the oldest and the largest major law firm based in Washington, D.C.," with close to 1000 lawyers scattered about offices all over the world.  The complaint is signed by one "Dori Ann Hanswirth," a partner in the firm's intellectual property section with a cum laude degree from Cardozo Law School in 1986 and a federal district court judicial clerkship among her accomplishments.

These facts, IMHO, make it all the more reprehensible for Fox to have filed this lawsuit, because this caliber of lawyer and law firm should know better.

The key allegation is that Franken and his publisher "seek to exploit Fox News' ["Fair & Balanced"] Trademark, confuse the public as to the origin of the book, and accordingly boost sales of the book," thereby raising legal claims for trademark infringement and unfair competition under the Lanham Act and New York state common law. 

Among Fox's commercial interests listed as being threatened by Franken's book are the Fox News coffee mugs bearing the slogan:  "Balance is Important in News and Hot Coffee."  So too in the practice of law, Dori Ann!

The best I can say about the rest of the complaint is that it appears to have been well proof-read.  I did not spot any spelling errors.  It does, however, contain quite a few gratuitous insults to Franken — describing him, for instance, as "shrill and unstable," "'a C-level political commentator' who is 'increasingly unfunny,'" and — this one's simply a chin-scratcher — "neither a journalist nor a television news personality."  Last time I checked, the requirements for calling oneself either a journalist or a television news personality are rather less rigorous than the requirements for calling oneself, say, a lawyer.  It's hard for me to imagine that Fox News can prove that allegation. 

The complaint also contains a few  instances that appear to be instances of what boxing commentators and trial lawyers call, "Leading with your chin":  for example, were I representing Franken, I'd be fairly eager to find out through pretrial discovery the identity of the "commentator" who "has referred to Franken as a 'parasite' for attempting to trade off of Fox News' brand and [Bill] O'Reilly's fame in the Preliminary Cover of his Book."  If this turns out to be, say, Sean Hannity, Fox's lawyers will have succeeded in being quite a bit funnier than Franken usually is — but rather without intending to.

This lawsuit bodes ill for Fox in so many different ways, it's hard to list them all.  Were I licensed in New York and had I signed this complaint, Al Franken in the sequel?I would be genuinely concerned that a wrathful court might sanction me — very likely by requiring me to pay Franken's legal fees out of my own pocket. 

But beyond that, Fox is very likely going to imbue Franken with a dignity that will sap its own and that he could never possibly achieve on his own.  The parallel would be if Ahh-nuld decided to concentrate his campaign rhetoric not on Gray Davis, but on Don Novello a/k/a "Father Guido Sarducci." 

Fox's lawyers are going to end up turning Franken into — dare I say it? — "Hogan's Hero"!  "Who told you Al Franken was a parasite?  Who?"  "I know nufff-ink!  I see nufff-ink!"

UPDATE (Fri Aug 22):  Fox lost round one in court.

--------------------

{note1} [I removed the "fair & balanced" phrase from my blog's subtitle in early September 2003, after the Fox lawsuit against Franken and his publishers was dismissed; the point of the parody had been made, and I don't in fact claim to be fair and balanced. — Beldar 9/9/03]

Posted by Beldar at 08:08 PM in Law (2006 & earlier) | Permalink | Comments (2)

Wednesday, August 13, 2003

Which headline has more sizzle: "Supreme Court strips porno-comics of First Amendment Protection" or "Man convicted because his lawyer failed to object"?

I'm very close to being an absolutist in interpreting the First Amendment as applied to prosecutions for obscenity.  The US Supreme Court isn't, though, and its precedents on obscenity are all over the lot.  Suffice it for purposes of this post to say, the Supreme Court still permits those prosecutions, and lower-court judges are bound to follow the High Nine's interpretation of the First Amendment.

So I'll not blog here about whether that's a good or a bad thing, because that's not what's got my goat today.  What's got my goat is a piece in Franklin Harris' Pop Culture Online" entitled "High court shuns comic speech case," which came to my attention courtesy of a link from Andrew Stuttaford on The Corner.

Are you familiar with the acronym from the technical world, "RTFM"?  ("Read the frinkin' manual" would be the polite translation.)  Let's try on "RTFO" — "read the frickin' opinion!" — for stories about court opinions, shall we?

Here's Mr. Stuttaford's summary:

In September, 1999 Jesus Castillo sold a copy of an 'adults only' comic book to an undercover cop who clearly had nothing better to do with his time. The cop was an adult and the comic book was stocked in an adult section of the store. 'Demon Beast Invasion: The Fallen' may or may not have had its artistic or other merits (part of its plot included women having sex with, um, trees), but that apparently did not worry the prosecuting attorney. He "didn't care what kind of testimony [was] out there" because the store was across from an elementary school and "comic books, traditionally ... are for kids" and that, apparently, was that.

A dumb jury agreed and now, apparently, so has the Supreme Court.

Ridiculous.

(Ellipsis & bracketed portion by Mr. Stuttaford.) Mr. Harris' piece is consistent with Mr. Stuttaford's summary, but far more florid.  It's breathlessly previewed from his homepage with this teaser, sure to strike woe into the hearts of all comic-book pornographers everywhere:

As of now, comic books are the only medium of artistic expression without the presumption of First Amendment protection. Why? Because comic books "are for kids."

He describes the fate of Ms. Castillo as a "sentence of 180 days in jail, a year of probation and a $4,000 fine."

So how big a story is this, exactly?  Let's start with the breathless references to the US Supreme Court.  Has the US Supreme Court said anything in this case about comics and the First Amendment? 

Well, umm, no.  The entire involvement of the US Supreme Court was to issue a one-line order on March 24, 2003, saying that Mr. Castillo's request for the US Supreme Court to hear the case on its merits — his "petition for a writ of certiorari," in lawspeak — was denied.  Does that mean the US Supreme Court agrees with everything the lower courts did?  Does it mean the US Supreme Court thinks the lower courts at least got to the right result and the conviction was fair?  Is there some new legal precedent that's the law of the land?  Well, no, no, and no.  As a legal precedent, "cert. denied" means absolutely nothing more than that the US Supreme Court refused to make any ruling on the case except a refusal to hear it.  No precedent, no national impact.  The Supreme Court issues tens of thousands of these each year because it only chooses to hear a tiny fraction of the cases brought to it.

So is this at least a case about a state-wide precedent from the highest Texas court for criminal cases, the Texas Court of Criminal Appeals?  Well, no — not that either, as it turns out.  Just like the US Supreme Court, the Texas Court of Criminal Appeals agrees to hear only a small percentage of the many cases brought to it from Texas' fourteen different Courts of Appeals.  It turned this one down on October 23, 2002 — again with a procedural device that conveys zero precedential authority to affect future cases.

So what's involved here is an opinion setting precedent from — and binding in the future only upon — the Dallas Court of Appeals (the fifth of the fourteen by district number).  I can practically hear all you porno-comic readers here with me in Houston breathing a huge sigh of relief already.

Still, poor Mr.  Castillo!  That's pretty harsh, isn't it?  Six months in jail, plus a year of probation, plus a $4000 fine?

Well, again, no.  Mr. Castillo's actual sentence was 180 days plus the $4000 fine, but the judge showed leniency and instead of sending him to jail, gave him a year probation (that's what "180 days in jail, probated for twelve months," means; "probated for" doesn't mean "plus").  So:  Zero jail time, assuming he behaves for the next year; if he violates the probation, then and only then he goes to jail for 180 days.  Being on probation's not a picnic, but it beats wearing an orange jumpsuit for the next half-year and having a girlfriend named Bubba.

Fairly stiff fine, wasn't it, though?  And the appellate court refused to disturb it when Castillo asked it to, right?  Well yes — but not necessarily because the Court agreed with the fine.  You see, Mr. Castillo's lawyer didn't ask for a court reporter to make a record of the sentencing in the trial court.  That being the case, there's no way he could show the appellate court that an objection to the size of the fine had been made to the trial judge — and you have to show that you tried to fix stuff in the trial court before the appellate court will fix things for you on appeal. 

Still doesn't Mr. Castillo have a felony conviction that will haunt him forever?  Nope.  This was a misdemeanor charge.  One year in jail was the maximum punishment Mr. Castillo could have gotten — not two, as Mr. Harris reported.  (Most places, misdemeanors are defined as crimes punishable by a year in jail or less, plus a fine.)

Well, okay, there's still that incredible constitutional ruling that stripped away the protection of the First Amendment from all comic books because they're just for kids, eh?  Surely that's worth making a big deal about!

Except ... that's not at all what the Dallas Court of Appeals actually said.  Not even close.  Nowhere does the opinion suggest that any different standard applies for comic books, or DVDs, or paper napkins, than for any other publication.  It gave the porno-comic at issue the exact same examination it would give to a hard-cover book, friends and neighbors, in terms of the analysis as to whether it was material that is "constitutionally obscene" under the relevant US Supreme Court decision, Miller v. California.  Again, I'm not going to argue that Miller or any other of the general precedent on obscenity is well-reasoned or clear or fair.  But this porno-comic wasn't given any lesser protection by virtue of it being a comic.

So how did the issue of kids come up?

In his sixth point of error, [Castillo] complains that the trial court erred in admitting testimony about the proximity of an elementary school to the comic book store.  [Castillo's lawyer] filed a motion in limine [a pretrial motion] seeking to preclude the State from "making any reference or allusion to the fact that Keith's Comics ... is in close proximity to a school." In a pretrial hearing on the motion, the defense argued that such evidence was irrelevant and its probative value, if any, was outweighed by its prejudicial effect.  The trial court denied the motion in limine.  When the evidence was adduced at trial through Reynerson [the arresting detective], [Castillo's lawyer] did not object.  It is well-settled that the denial of a motion in limine is not sufficient to preserve error for review, but rather there must be a proper objection to the proffered evidence.  By failing to object when the evidence was offered at trial, [Castillo's lawyer] failed to preserve his claim for review.

(Ellipsis in original, italics added by BeldarBlog, case citations omitted.)  What's that all mean?

It means that before the trial, Castillo's lawyer displayed the minimum sense that God gives to all mules and most defense lawyers.  He had figured out that in an obscenity case where the store was near a school, where the store was filled with "'action fantasy' comic books like 'Superman' and 'Batman,' and 'action figure-type figurines'" — but in the very same room also sold explicit porno-comics of babes having hot sex with tree limbs, plus "sodomy, masturbation, excretory functions, sadism, and masochism" — the prosecutor might want the jury to wonder whether some kid is going to wander in and see this stuff.  Yes, absolutely, that would be irrelevant and prejudicial, just like he said in his pretrial motion. 

So didn't he lose on this issue when the judge denied his pretrial motion?

Well, again ... no.  When a judge denies a motion in limine before the trial, it's the same as saying, "Make an objection to bring this to my attention later, when I know what the case is all about, and depending on the evidence then I'll make a decision."  This happens all the time, every day, to every trial lawyer in every kind of case, civil and criminal.  Judges don't like to pre-commit on one piece of evidence before they've heard any evidence, for understandable reasons.  In fact, usually lawyers expect to lose pretrial motions like this, but they file them anyway because they want to bring the hot topics to the judge's attention before the trial, so he'll be listening closely and thinking about it, waiting for that timely objection during the actual testimony before the jury.

So the first time the prosecutor started inching into his "kids" routine, what did Castillo's lawyer do?  Did he leap to his feet and say, "Your Honor, may I approach the bench?!?" like they do every Sunday night on "The Practice"?

No, he kept his mouth shut and his butt in his chair, and he let it all come into evidence without objection.  That, friends and neighbors, is what's called "a waiver."

Well.  Duh.  Was he asleep?  Was it a tactical decision that he figured would backfire on the prosecutor?  (We've all seen that on "The Practice" too, ya know — defense lawyer pulls the chestnuts out of the fire with a great closing argument that turns the tables on the really prejudicial evidence by appealing to the jury's own sense of what's relevant and what's mere grandstanding.)  I dunno.  Neither did the Dallas Court of Appeals.  All they know, and all I know, is that for whatever reason, the prosecutor got away with more than he should have because the defense lawyer didn't object.  Stuff like that happens.  Dog bites man, whadya gonna do?

There was, by the way, a dissent from one of the three judges on the Dallas Court of Appeals panel.  He thought the prosecution failed to present enough proof that Castillo actually knew what was in the porno-comic.  The jury, and the trial judge, and the other two appellate judges thought otherwise.  Eh.  I dunno, I haven't read the transcript of the entire trial, of course, but the testimony discussed in the majority and dissenting opinions doesn't leave me particularly outraged — not enough to jump to the conclusion that the jurors, the trial judge, and the two appellate judges in the majority were clearly and unequivocally wrong.  Judges, especially appellate judges, generally cut juries a lot of slack on this sort of factual issue.

Was perfect justice done (assuming that perfect justice is even possible under the current state of Supreme Court obscenity precedent)?  Again, I dunno; maybe not.  But ya know, if I spend a lot of time worrying about every absolutely routine probated misdemeanor conviction up in Dallas where there's no new precedent set, it makes me lose sleep, which makes me grumpy, and then I growl, and people won't smile at me in the elevator, and I have a hard time keeping up with important stuff — like significant court opinions that do make new law. 

Unfortunately, exploding myths and distortions like this takes scads of prose — a good sizzling set of lies can be much briefer.  I certainly don't fault Mr. Stuttaford, who probably took on faith what looked to be a credible report from Mr. Harris, who in turn probably believed what some of the people involved in the case, or who have an axe to grind, told him about it.

But golly gosh Jeebus, is it too much to hope that before everyone's knickers get all twisted over the death of the First Amendment (as applied to porno-comics), someone in the loop should actually RTFO?

*******

The formal legal citation for this case is Castillo v. State, 79 S.W.3d 817 (Tex. App. — Dallas 2002, pet'n denied),  cert. denied, __ U.S. __, 123 S. Ct. 1593 (2003), if you'd rather fetch it up on Westlaw or Lexis or (gasp!) drag volume 79 of the Southwestern Reporter, 3d Series off your bedroom bookshelf.

*******

Update (Tues. Aug. 14):

Mr. Harris' blog, Franklin's Findings, has a post which accurately asserts, with links, that "[o]utrage over the Jesus Castillo case is spreading to blogs left, right and points between."  Unfortunately, IMHO the outrage is the product of a profound misunderstanding of the case, for the reasons I posted above last night.

Mr. Harris was kind enough, however, to add an update with a link to my post from last night:

UPDATE: Houston attorney William J. Dyer, however, begs to disagree. I think he greatly overstates his case. For example, he makes much of the fact that it is unremarkable for the U.S. Supreme Court to refuse to hear a case -- a point I myself note in the second paragraph of my column. Also, he focuses exclusively on issues raised at the appellate level, while I and other critics of the decision have focused solely on the arguments presented at the trial phase.

Mr. Harris did indeed note in his original piece in his "Pop Culture Online" blog that the US Supreme Court's decision not to hear the case "is unsurprising, given how few cases the court agrees to review," but he followed that by claiming that

... it leaves a dangerous precedent unchallenged.

As of now, comic books are the only medium of artistic expression without the presumption of First Amendment protection. Why? Because comic books "are for kids."

And that's what's so badly wrong about his original article, and why all the "outrage" is unjustified:  There's no such "precedent" from the Castillo case

Decisions of state trial courts in Texas and most other states have zero precedential value.  They are not binding on, nor usually even persuasive to, any other trial judge.  When trial judges want to know what "the law" is, they look exclusively to the reported written opinions of appellate courts, starting with the lowest-level appellate courts (like the Dallas Court of Appeals that wrote Mr. Castillo's opinion) and proceeding up the chain (in this case, through the Texas Court of Criminal Appeals and US Supreme Court, neither of which agreed to reconsider the merits of the Dallas Court of Appeals' decision).

No lawyer from either side of any future case is likely to be citing the Dallas Court of Appeals' opinion in Castillo v. State as precedent on anything, nor is any trial judge likely to look to it as precedent, because the various rulings contained in that opinion are all settled law that simply track older, higher authorities than the Dallas Court of Appeals.  And they're certainly not going to cite it as precedent to say "The First Amendment doesn't protect comic books" — because it doesn't say that!  In fact, if anything, it strongly implies exactly the opposite, because the Dallas Court of Appeals used the exact same analysis for this comic book that it would use for any adult hardback book. 

So the only possible interest the trial court's rulings and the jury's decision in this case have is if, as Jim Henley from Unqualified Offerings has suggested be done, you're trying to figure out how to do a better job defending cases like this, as a purely practical and tactical matter, in the future.  Again, I've not read the entire trial transcript, and I obviously wasn't there, and I don't know the lawyers on either side.  The Dallas Observer ran an article, linked from Mr. Harris' original piece, which had this to say about Mr. Castillo's trial counsel:

Shunatona says he was picked to defend Keith's because he shops there. He admits reading Frank Miller's Dark Knight series instead of studying for the Bar exam. "I've had my kids in there," he says of the store. Shunatona is a former prosecutor with one obscenity case in his background, the prosecution of a dildo's owner. The outcome? "Actually, it was a hung jury," he says. (It's impossible not to laugh at him when he says this.)

But I don't mean to dump on Mr. Shunatona or to suggest that he necessarily dropped the ball.  Sometimes good lawyers lose cases, that's life — dog bites man, no news there.  Subjective factors like witness credibility can make a huge difference.  The difference between "competent and persuasive" on the one hand, and "arrogant and offensive" on the other, is purely subjective — and while one could guess from the outcome in this case that the jury had the former assessment of the police detective and the latter assessment of the college professor "expert witnesses," that'd be nothing more than a guess.

Let me venture a really contrarian opinion:  This case should be encouraging to those who disapprove of obscenity prosecutions in general.  Why?  Because to get a conviction, the Dallas County DA apparently concluded that she needed more than just what was in the comic book.  Even in conservative Dallas, Texas, she figured that she needed to get the jury's thinking out of "private activities of consenting adults"-mode and into "my god, what if my kid sees this on the way home from school"-mode. 

Paradoxically, as it happened, the prosecutor was able to use the fact that this comic book was on an "adults-only" shelf (albeit not in a separately access-controlled area), and that it had a front-cover label with "Warning! Absolutely not for children!" as evidence that was indeed relevant and admissible because it tended to show that Mr. Castillo, the store clerk, had knowledge of the obscene contents.  (Amazon has an enlargeable thumbnail of the book cover, as per Mr. Harris' link.)  Those facts also tended to make the jury worry about exposure to kids — even though this was not a prosecution for corrupting the morals of children, and no showing was ever made that a child had purchased or had seen this material. 

The proximity of an elementary school, by contrast, had no such relevance, and was purely an attempt to play to the jury's prejudices, which is why Mr. Castillo's lawyer made that specific objection; however, apparently the prosecutor got away with that bit of mischief during the trial based on Mr. Castillo's lawyer's failure to renew his pretrial objection.  Once it's in evidence, it's more or less fair game for the prosecutor to conflate various issues in closing argument — hence the "we all know comics are for kids" argument.  (Mr. Stuttaford, by email back to me, points out his concern with this prosecutorial overreaching, which I share, but would categorize as mild in comparison to other stuff that goes on daily in the real world; keeping that stuff in reasonable check is why God made defense lawyers.) 

So to repeat, the good news for fans of the First Amendment here is this:  To win this case, the prosecutor had to cheat (or pretty close to it) by injecting the issue of the material's possible exposure to children.  It  probably is true that comic books are more often likely to be subject to that tactic than XXX videos and DVDs and magazines commonly sold or rented in access-controlled areas.  So what's the moral, boys and girls?  Put your porno-comics back in the separate room, behind the magneto-controlled remote-activated locked door, along with your porno movies and mags — not in a place where jurors are likely to imagine little Timmy and Jill wandering in after school. 

"Ampersand" of Alas a Blog, who had previously blogged an eloquent piece to point out that there's less here than meets the eye and no need to panic, was also kind enough to link to and reference my post, and offers some thoughtful observations that might relate to future such prosecutions.  He also suggests, and I tend to agree, that those trying to "help" from out of state may have done more to harm than to help on a practical basis.  A follow-up Dallas Observer article reports that Mr. Castillo's $60,000 (*cough*gulp*cough!) in legal fees were paid by the "Massachusetts-based Comic Book Legal Defense Fund," and that his fine was paid "using money donated by shop customers and other local supporters"; that's very nice, but I strongly suspect that the net effect of their participation was to guarantee that the Dallas County DA's office took this case rather more seriously than it would otherwise.

But I tend to bristle when "Tom Tomorrow" of This Modern World badly misstates what happened in this case, and then concludes with:

Apologies to the decent, thoughtful, intelligent people who live in the Lone Star state — a category which actually includes several friends of mine — but these Texas pigstickers are really starting to get on my nerves.

That, friends and neighbors, is uninformed regional bigotry, for which Mr. Tomorrow's apology — essentially "Some of my best friends (believe it or not!) actually live amongst those savages!" — isn't quite adequate.  And widespread propagation of blatant misreporting about the facts and law in this case leads to more such bigoted and ill-informed spite, the likes of which one finds in the comments to Atrios' equally misleading post on Eschaton.

That's what gets my goat, down here in pigsticker land.  All I can say again is, when it comes to blogging about legal events:  RTFO!

*******

UPDATE (Fri Aug 15):  Professor Eugene Volokh of The Volokh Conspiracy — one of my absolute favorites and a role-model — blogged about this case today.  To his great credit, he not only corrected a serious misstatement about the case within an hour of receiving emails about it from me and another reader, but did so in a conspicuous manner.  He was also kind enough to link this post as part of the correction, so: Hello Volokh Co-Conspirators!

Jim Henley's Unqualified Offerings has another lengthy and thoughtful update post about the case, with another shorter one that references some of my updates.  His approach is as a nonlawyer who's a defender of comics and a foe of obscenity laws, and notwithstanding the explanations and comments from lawyers like me, he's understandably left in a state of concern — albeit hopefully a lesser one than when he was under the misimpression that this case represents some powerful legal precedent that will affect other, future cases.  His lingering unease is justified, however — yes, this could happen again, in Texas or just about anywhere else, so long as Miller v. California is the law of the land.  But one could hardly have picked a less appealing candidate than this case as a vehicle to persuade the US Supreme Court to make new law — not because poor Mr. Castillo isn't sympathetic, but because there are so many other explanations for his conviction in addition to the fundamental flaws in Miller's scheme for regulating obscenity under the First Amendment. 

*******

UPDATE (Sat Aug 16):  As indicated in the Trackback below, Amp has many more links, lots of which appear to go to discussions that get into the broader questions about obscenity generally.  I enjoy reading civil discussion of these issues — the one on Journalista! The Comics Journal Weblog being a very fine example (and one that was nice enough to link this post and express agreement with my distaste for some of the bigotry in other discussions, thank you Dirk Deppey).  Julian Sanchez' arguments in Notes from the Lounge are also quite eloquent, although I disagree with his argument that comics are being especially picked on.  It's disappointing that so many other defenders of the First Amendment, though, can't express their thoughts without profanity or very personal attacks, which simply reduce their credibility.

UPDATE (Mon Aug 18):  I'm disappointed to see that another of my heroes, Walter Olson of Overlawyered, has picked up this story in its original, overblown version as published by Mr. Harris and Mr. Henley, both of whom have — to their credit — posted later corrections (already linked above) that Mr. Olson apparently missed.  Updated update:  I am reassured, but unsurprised (given my confidence in his scrupulous attention to facts):  Like Professor Volokh, Mr. Olson issued a very thoughtful correction within a couple of hours after being contacted.  Thank you, sir.

Meanwhile, from far less reputable sources, the hysterical (in both senses of that word) propagation of misinformation continues.  By far the least accurate report I've seen yet about this case is a piece by Frank Beaton, a "local freelance writer" whose article about this case appears in something called "Las Vegas Citylife."   Other than the statement that he is "but a lowly journalist and not versed in matters of law," he appears to have gotten just about all his other significant facts wrong, and he manages to incorporate vulgar and ill-informed regional bigotry into both the article's title and concluding paragraph.

Posted by Beldar at 06:30 PM in Law (2006 & earlier) | Permalink | Comments (1)

I'm now, uh, crusty, not curmudgeonly

When I started this blog about a week ago, I subtitled it the "Online journal of a curmudgeonly trial lawyer and internet dilettante," and I privately congratulated myself on the choice of the word "curmudgeonly."  As I am myself in some ways, it is a bit of an anachronism.  It seemed to fit.

But I had a ghastly moment of realization tonight while browsing various websites. 

Some weeks ago I first learned of a blog that is being maintained anonymously by a young lawyer who's apparently clerking for an unspecified US District Judge here in Houston.  It's called "The Curmudgeonly Clerk," and its author is obviously very bright and energetic, a model blogger with a good legal mind.  I assume he or she is "young," because almost all clerks for federal judges are just out of law school, typically in their early to mid-20s.

When I clerked in that same building in a pre-PC era, the state of our technology was that we had two massive, brand-new "word-processors" — each about the size of a Volkswagen — on which the judge's and her three law clerks' written output was transcribed from longhand by two secretaries.  There was one dedicated Lexis/Nexis terminal in the building law library for the use of all the Houston-based district and circuit court judges and their clerks, but I was one of the very few who used it regularly.  We had telephones in chambers — but no fax machine.  I am reasonably sure that they'd run off all the carrier pigeons already.

So I suspect that, based on chronological age alone (independent of inclination and attitudes), I may be more accurate in describing myself as a "curmudgeon" than this judicial clerk.

Still, the name of his or her blog had slipped only my conscious mind.  Upon being reminded of it tonight, I immediately realized that I'd unintentionally semi-plagiarized it.

Since I practice in the federal courts here, presumably including before the same judge for whom "The Curmudgeonly Clerk" clerks, and since my blog is not anonymous, this isn't among the brighter things I've ever done.

Hence a new subtitle for BeldarBlog — and my apologies to the Curmudgeonly Clerk.

Posted by Beldar at 12:05 AM in Weblogs | Permalink | Comments (1)

Tuesday, August 12, 2003

Hasta la vista for truant Texas Dems?

I've already blogged (complete with .wav files) with my impressions of Arnold Schwarzenegger's race to replace Gray Davis as Governor of California.  But Ahh-nuld's new gubernatorial campaign website (still very much under construction at the same URL as his prior website for Proposition 49 last year) has a spiffy big heading with a nice pithy quote under a snazzy picture of him and Maria:

There comes a point when we the people must demand more of our elected officials than just showing up!

It's probably not meant to be an ironic statement, but you'll have to forgive Texas Republicans if we collapse into a fit of giggles when we read it.  Here's why:

For the first half of my life, Texas, like the rest of the "old south" states, was a "yeller-dog Democrat" state.  ("Why, I'd sooner vote fer a damned yeller dog than some gat-damned Republican!").  The Democratic primary was the only election that counted because the Democratic Party's nominees generally ran unopposed or with only token opposition. 

The shoe is now on the other foot, however.  Republicans now dominate this state nearly as thoroughly as the Democrats once did:

  • In the 2002 elections, Texas Democrats were unable to capture a single one of the twenty-nine state-wide offices. 

  • Texas voters re-elected in his own right Gov. Rick Perry — who'd become governor in 2001 as the successor-by-resignation to our state's presidential "favorite son," Dubya (pun intended).

  • Texas voters also took the lieutenant governorship — from which powerful office a minority party member could execute an extremely effective rear-guard stalemating action (if he so interpreted his mandate from the voters) — out of the hands of the Democrats. 

  • And even more significantly, Texas voters in 2002 gave majority control of both houses of the Texas Legislature to Republicans for the first time since Reconstruction.

  • A solid 56 percent of Texas voters chose the Republican candidate for the US House of Representatives in their respective districts in 2002.

  • And if you had any other doubts about how the Lone Star State is trending, Texas voters elected Republican John Cornyn to replace retiring icon Phil Gramm in the US Senate.  Cornyn joined Texas' second senator, Kay Bailey Hutchison, also a Republican.

So there is no way in which Texas voters could have sent a clearer message that they trust their Republican state executives and the Republican majority in the Legislature to perform all their constitutional tasks — and very high on that list, of course, is the duty to establish US Congressional district boundaries.

Elected from districts established by unelected federal judges acting in 2001 under the Voting Rights Act, however, the current Texas delegation to the US House of Representatives comprises 17 Democrats and 15 Republicans.  That 17/15 Democratic Congressional majority does not remotely reflect the will of the voters of this State as of today! 

The 2001 map imposed by court order was drawn with minimal changes from a 1991 map that was based on 1990 census data.  But even that 1991 map wasn't a fair one.  Rather, it was created at a time when Texas Democrats democracy vs anarchy were still clinging to small majorities in both legislative Houses as well as the lieutenant governorship, and they used that power to artificially manipulate district boundaries so as to pack more Republicans into fewer districts.  That in turn meant that there were more districts where Democrats could win because of the diluted Republican voting strength. 

Demographic changes since 1991 — as revealed by the 2000 census, which the US Constitution intended would be used by state legislatures to redraw fair congressional boundaries every ten years — have made the 1991 map even less fairly representative and more biased.  Thus, the current map is an obsolete and increasingly undemocratic vestige of cynical partisan gerrymandering — a remnant left from the glory-days of a party that a majority of the state's voters have thoroughly and repeatedly repudiated, an encrustation that smells worse and worse with each passing year.

But now, the attempts by Texas Republicans to do what they were elected to do — including to establish new and fair US Congressional boundaries — are being held hostage by a stomach-turning political stunt on the part of eleven anti-democratic Democratic state senators. 

Defying the second special session called by Gov. Perry to finish the task of redistricting, these eleven have fled to New Mexico for the admitted and sole purpose of thereby preventing a quorum in the Texas Senate — and thereby preventing a final vote on redistricting.  It's not just a case of "I've gonna take my ball and go home," it's a case of "I'm gonna steal your ball (and your ball and your ball) and make damn sure nobody can play at all!"

The Voting Rights Act of 1965 still applies to Texas.  If, for instance, the Republican majorities in the Texas Legislature passed and Gov. Perry signed legislation that created new district boundaries with the intent — or even the effect (since we're all still presumed by federal statute to be racial bigots here in Texas) — of unfairly diluting minority representation, then such a map would doubtless be thrown out promptly by the federal courts.

Actually, however, the various congressional maps that the legislators still in Austin are now debating continue the gerrymandered protection of the districts previously created as "minority strongholds" — meaning this isn't about unseating minority Democratic incumbents.  In fact, the maps that are being discussed do no more than make the ratio of seats thought likely to be won by Democrats roughly proportionate to the statewide percentages that Democratic candidates got in the 2002 elections — which will still mean a large plurality, but something less than a majority, of the Texas delegation to the US House of Representatives.

The truant Texas Dems fled to New Mexico to ensure that contrary to the expressed will of Texas voters, Texas' congressional district boundaries will retain their current manipulated shape so that incumbent white male Democrats remain over-represented in the Texas Congressional delegation

The closest to a principled defense mounted by the truants has been a press release arguing that "11 Republican Senators broke a quorum in 1993 to, ironically enough, stop a redistricting bill."  duty calls, run away! But look closely at the AP story appended to the bottom, or for that matter to the careful choice of words in the press release.  The Republican state senators didn't flee the state for weeks at a time — rather, they missed one quorum call, on one day, because they were in closed-door session in the Capitol building.  And the issue then wasn't gerrymandering US Congressional districts, but possibly reforming the badly broken system for partisan elections of Texas judges.

This is, very simply, a question of democracy versus anarchy.

Which finally brings me back to Arnold's website and the source of my giggles:  It remains to be seen whether Gov. Perry can somehow induce the truants to return to Texas with fines or court proceedings.  But I couldn't read Arnold's slogan without suddenly getting a mental image of The Terminator cruising into Albuquerque on a big chopper, shades reflecting the New Mexico desert sun, and rounding up our little lost lambs for us.  Would that it could be so.  After all:

Doesn't there come a time when we the people can demand of our elected officials that they at least show up?

Posted by Beldar at 10:35 PM in Texas Redistricting | Permalink | Comments (1)

Why good lawyers who are also good people must sometimes take on very bad clients (a reply to Mark A.R. Kleiman)

On a broader question than that of the particular ethical position of Ms. Gorelick and Wilmer, Cutler & Pickering (about which I've already blogged until I'm blue in the face), Blogger Mark A.R. Kleiman has a couple of interesting posts from last Thursday and Friday that criticize the firms who're representing the House of Saud against families of 9/11 victims.  They're followed by a post from Monday discussing whether universities that accept Saudi money are equally blameworthy, and they're all superbly written and argued, but my particular interest is with the law firms.   

As in one of my prior posts regarding Ms. Gorelick, full disclosure — and indeed, considerable residual pride — oblige me to point out again that from 1981-1987 I was an associate at Baker Botts, the firm that was the main subject of the Michael Isakoff & Mark Hosenball piece in Newsweek/MSNBC last April 16th regarding the representation of the Saudis in the 9/11 litigation.  I freely confess a strong continuing bias in favor of that firm and its lawyers; it was there I acquired the practical foundations for almost all that I now know about my profession.

Mr. Kleiman writes:

The decision to take a client shouldn't be, and isn't in fact, automatic. It's an exercise of judgment, for which lawyers ought to be held morally accountable. I'm virtually certain that none of the white-shoe firms defending the Saudis would have taken a case, civil or criminal, for one of the Mafia families. And I'm quite certain that the strong need, under the adversary system, for everyone to be represented in court does not keep those same firms from refusing clients who can't pay their bills.

I agree with your first two sentences, Mr. Kleiman, and I also agree that the firms listed in the Isakoff & Hosenball article, including Baker Botts and Wilmer Cutler, are indeed profit-making enterprises whose services are consistently of a quality that allows them to bill at the high end of the hourly rate spectra in the various cities where they practice.  They are also, however, among the firms that most actively encourage — and effectively subsidize out of their partners' profits — pro bono representation of clients who can't pay their bills. 

When I was at Baker Botts, for instance, because I had just come out of a judicial clerkship for a judge on the U.S. Court of Appeals for the Fifth Circuit, I volunteered to oversee a program under which that firm's trial lawyers accepted assignments to represent indigent criminal defendants in their Fifth Circuit appeals.  The firm's partners not only willingly, but enthusiastically wrote off millions of dollars in attorney-time on those cases — real money in opportunity costs, for we were turning away paying business.  The arrangement was also a public service inasmuch as the Fifth Circuit judges generally asked us to take especially challenging cases that raised difficult or novel legal issues, rather than run-of-the-mill ones, specifically so that the court would have the benefit of top-flight briefing to match that done by the state attorneys general who were on the other side. 

... [T]here must be some times when a lawyer shouldn't take a legally meritorious case. Perhaps defending the financiers of mass murder — the operators of a system of finance that is still educating the mass murderers of tomorrow in Wahhabbist madrassas — against a tort action by the relatives of the victims is different in some relevant way, but I'd like to hear someone explain precisely how, rather than just reciting mantras about how the adversary system magically leads to justice being done.

You assume here, of course, that the Saudis — all Saudis, in fact — are guilty.  I'm don't know enough about the particular individual defendants in these lawsuits to assess their comparative responsibility for the educational system you describe, but in general, I'm no friend of the Saudis either.  In fact, my personal biases against them are probably such that I'd be struck "for cause" from a panel of prospective jurors in one of these cases.  If it eventually turns out, however, that you and I are wrong in our biases and beliefs — neither of us having yet heard a speck of judge-validated evidence, mind you — then we should be ashamed, especially if we somehow discouraged or interfered in (or even just belittled and snickered at) the acquisition of competent counsel for persons later proved innocent.

Let's leave that possibility aside, though, for purposes of argument, and engage in the entirely bigoted presumption that all the Saudi defendants who've been sued are equally as culpable, legally and morally, as the 9/11 highjackers themselves and those who masterminded and directed their operations.  Even so, you're missing something, Mr. Kleiman, that is vitally important about the way the adversary system is supposed to function — and in my personal experience, actually does function with surprising regularity.

In both criminal and civil court proceedings, a defense lawyer has two related but distinct roles.  You've focused only on the more obvious one, that of courtroom advocate.  Yes indeed, in fulfilling that obligation to one's client and to the adversary system, one is expected to exert oneself vigorously and energetically within the bounds of the law, and equally so for clients both odious and beloved. 

Scales of JusticeBut there is a separate, less obvious function — indeed, one that's of necessity almost entirely hidden — which is to serve as the client's private counselor.  In this role, the lawyer assesses the evidence for and against his client, and provides the client with his best, unvarnished opinion as to the range of risks involved.  And very, very often — in both criminal and civil law — it is the most guilty, most odious client who most desperately needs that advice so that he can make an informed decision:  Do I pay to settle?  Do I take this plea bargain that's being offered?

If the question is, "What is the best and most efficient way for justice to be done for all involved in this lawsuit?" — and if your prejudice and mine about the Saudis is, in fact, well founded — then the best thing, believe it or not, is for the Saudis to have lawyers like Baker Botts or Wilmer Cutler representing them.  In their public role as advocates, they'll do whatever can be done to get their clients in the best possible posture, whether they're guilty/liable or not.  But in their private role as counselors, they'll be saying, "Here's what is going to happen in a trial.  Here is how a jury in Bexar County, Texas, is likely to react to these facts.  Here's what we estimate your odds are of getting a reverse-and-render on appeal."  And if the news is bad, these lawyers ought to have sufficient credibility with their clients that their clients will actually believe them, making them far more likely to act reasonably in order to avoid the consequences.

You don't want mullets from Dewey Cheatum & Howe representing the Saudis if they're guilty/liable, because that is going to prolong matters unnecessarily and probably make less likely a fair settlement short of trial. 

I am as jaded about my profession and about the American criminal and civil justice systems as anyone you'll find, Mr. Kleiman.  I am indeed a curmudgeon.

But two things I still genuinely believe in, 23 years into my practice, are the adversary system and the jury system.  Neither system is "magic" — I've seen and participated in specific cases where either or both have failed badly, shockingly, tragically — but my belief in them does indeed still constitute one of my "mantras."

I think that's probably true, too, of the lawyers your posts criticize.  You paint with an awfully broad brush, sir.  Again, I admit my bias in favor of some of those lawyers you've pilloried because I know them personally.  But subject as it is to my own biases, my opinion is that you've taken an easy, populist viewpoint that's given them far too little credit here for their ethics and integrity.

Having said all this, I come back, finally, to your original point:  Yes, judgment and discretion are indeed involved, the system is not automatic or self-executing, and one can indeed believe in and participate in the system while still turning away some clients on grounds of repugnancy.  I say again that I have a strong, personal bias toward believing in the complicity to some degree of the House of Saud in the events of 9/11; if offered their representation, I probably would turn it down. 

But the reason I would do so is because after an honest self-appraisal, I would likely conclude that I could not transcend my biases, and I could not do my best for them.  Apparently there are lawyers at Baker Botts — and at Wilmer Cutler; Jones Day; Ropes & Grey; White & Case; King & Spalding; Akin Gump; and Fulbright & Jaworski, fine firms all in my own first-hand experience! — who either lack my prejudices or else can transcend them.  As a supporter of "the system," I'm grateful for that.  Their efforts will be opposed and counterbalanced by capable lawyers on the other side — who also are serving both as public advocates and private counselors.  Now let justice be done.

UPDATE (Tues Aug 12):  Mr. (actually, it's probably "Professor," but his bio link on his website is broken and I can only go by his .edu email extension) Kleiman graciously posted a comment to one of my posts about Ms. Gorelick, and a more extensive reply on his own website.  He argues eloquently — but I continue to think, unrealistically — for an absolute standard that permits of no "informed waivers" of conflicts in organizations like the 9/11 Commission.  I'm disappointed, however, that he chose to not respond at all to this post  regarding his criticisms of the law firms representing the Saudis.

Posted by Beldar at 12:20 AM in Law (2006 & earlier) | Permalink | Comments (0)

Monday, August 11, 2003

In political shocker, Liberia's Pres. Taylor abdicates in favor of surprise successor!

(Compiled from international wire service reports issued by Royters, the Baghdad Broadcasting Co., and the Clinton News Network:)

Out with ex-Liberian President Charles TaylorAs rebels lay siege to Liberian capital Monrovia today, with U.S. warships hugging the West African country's coast, embattled President Charles Taylor fled into exile in Nigeria. 

"I am of course concerned for the future of my country," Taylor was quoted as saying at a surprise, impromptu press conference held on the jetway leading up to his chartered Air Nigeria jet, "which is why I have arranged for its smooth transition into the hands of a demonstrated political leader whose electoral popularity has almost rivaled my own." 

As the assembled reporters clamored for him to identify his mystery successor, however, Taylor would only smile and wave.  "You'll see soon enough," he chortled as he ducked into the jet's cabin, pulling the door behind him.

In with ex-California Governor Gray DavisMoments later, shocked correspondents from the international press were led to another chartered jet parked near the terminal building of Monrovia International Airport, from which emerged a figure familiar to at least many of the American journalists present:

"People of my new homeland, I have arrived!" announced ex-California Governor Gray Davis through the megaphone handed to him by a staffer.  "You need no longer fear power shortages, budget deficits, or any other of the troubles that have bedeviled you in the past!  Happy days are here again!"

A confidential source close to the new president revealed that frantic negotiations for the transition had begun within minutes after Austrian-born body-builder and actor Arnold Schwarzenegger had announced his candidacy in the upcoming California recall election on the Tonight Show with Jay Leno last Wednesday night.  "Taylor's guys drove a hard bargain," said this individual.  "We couldn't seal the deal until we agreed to give them the Blood Alley Bomber as part of the package."

The identity of the "Blood Alley Bomber" was withheld, but he is believed to be the California Highway Patrol sergeant who led the motorcade transporting Gov. Davis from Sacramento to Los Angeles late Saturday night.  The two unmarked cars in the motorcade were clocked at 94 m.p.h. along a stretch of State Highway 46 in northern San Luis Obispo County whose posted speed limit is 55 m.p.h. in a "double fines" zone.  The convey led a Templeton, CA-based CHP officer on a merry chase, without responding to his flashing red lights, for several minutes along a five-mile, two-lane stretch of highway known as "Blood Alley" because 29 people have died there in 19 crashes over the last five years.  Actor James Dean was killed on the same stretch in 1955.

"Taylor heard about this guy," said the confidential source, "and figured a get-away driver like that was worth his weight in smuggled diamonds.  Did I say diamonds?  I mean, uh — never mind."

Posted by Beldar at 08:55 PM in Humor | Permalink | Comments (0)

I must be doing something right(-wing?)

Last Friday afternoon, James Taranto of the Best of the Web Today was kind enough to quote from and link to my post on Ahh-nuld's entry into the California gubernatorial race, which tickled me pink. 

Then last night, after I'd posted my humble rebuttal to his editorial in Sunday's Washington Post, National Review Editor Rich Lowry linked to my piece on the National Review Online blog, "The Corner" — describing my piece as "a good representation of one sort of response" that he was getting to his editorial. 

Unless you follow the teachings of the "Al Gore & Maureen Dowd Academy of Journalistic Integrity," that's not quite the same as saying I wrote a "good ... response" — but it's sure better than a poke in the eye with the proverbial sharp stick!

I'm flattered, honored, and tickled pinker that Mr. Lowry bothered to read and link to what I'd written!  Posting to something from someone who disagrees with you displays honesty, class, and self-confidence — more principles that I'll try my best to live up to with BeldarBlog.

Various other folks have been kind enough to mention and link to BeldarBlog in its first week of operation.  The very generous Denise Howell at Bag and Baggage, for instance, posted that I have "Texas-sized rations of charm, humor, and wit to spare."  Woo-hoo!  I may start quoting and linking that in my "Yahoo Personals" ads!  (But then again, she also notes that she's never met me.  Hmmm.  On second thought, maybe no link, just the quote ....)

Meanwhile, back in sharp-stick territory, Eliot Gelwan's follow me here blog reproduced the same excerpt from my Ahh-nuld piece that Mr. Taranto had quoted — you know, the one about Osama bin Laden and bed-wetting — and said that it was "consistent with my [that is, Mr. Gelwan's] longstanding claim that Bush's inarticulateness has been a major part of his appeal to the idiot fringe of the Right."  Again, woo-hoo!  There's something we have bipartificial agreement on!  (I gather from Mr. Gelwan's very articulate blog that he'd identify himself as being on the political left.)

So I'm having much fun in the blogosphere.  Thank you to all who've posted, linked, emailed, or just read any of the stuff I've written.

I do sort of have a creepy feeling, though, that someone is silently watching me through the gaps between the circled wagons at Wilmer, Cutler & Pickering.  I'm sure it's just my imagination, though — probably just residue from the close call with the Hillary-channeling episode

Posted by Beldar at 07:21 PM in Weblogs | Permalink | Comments (0)

Sunday, August 10, 2003

Bloggers (except me) still demand Jamie Gorelick's resignation from the 9/11 Comm'n because Wilmer Cutler defends a Saudi prince

[Fri Aug 15 Update: Those coming here from InstaPundit's link may prefer to read this post last for continuity.  Oldest to newest, my three earlier substantive prior posts on this subject are as follows: first, second, and third.  Otherwise my references to "dog slobber" and "unicorns in Lafayette Park" may be a bit ... obscure.  Welcome to BeldarBlog. — The Proprietor]

Jamie GorelickDwight Meredith at P.L.A. has posted again about Ms. Gorelick and was kind enough to link and quote from my overlong first post on the subject.  He cites me as the contrarian example to the general proposition that "there is a consensus across the political spectrum that Ms. Gorelick should resign from the 9/11 commission," and indeed, so say the bloggers he's linked.

I persist in believing that "absolute purity" is an unrealistic and probably unattainable standard, but I guess it shouldn't surprise me that folks whose political starting point is on the left would be more idealistic about this than I am.  So here I stand — a voice in the wilderness, a lone conservative willing to defend a Clinton administration official from slings and arrows coming from both left and right, yet desperately trying not to channel the voice of Hillary.

Taking up my challenge to find some unicorns in Lafayette Park, Mr. Meredith nominates Gary Hart and Warren Rudman.  I'll agree that the latter is at least a hoss, and he might fit, if his law firm — Paul, Weiss, Rifkind, Wharton & Garrison LLP — doesn't represent any clients with vested interests in the Commission's potential findings.  But I'd frankly be fairly surprised if Paul Weiss doesn't have airlines and/or Middle Eastern governments somewhere on its client list too.

As for former Senator Hart, he's still listed as "of counsel" with Coudert Brothers — another big, international law firm, heavily into lobbying, which is likely to represent ... well, see the pattern developing here?  I know some have been heralding his political rehabilitation and return from exile, and his long suit as a Senator was indeed intelligence and foreign affairs.  But in contrast to either Ms. Gorelick or, say, Warren Rudman, if you ask ten people on the street whether they recognize the name "Gary Hart," I'll bet five or six of them would.  And what they remember about Hart was a lack of intelligence and a domestic affair, all embodied in that incredible photograph of him grinning for the reporters while sitting on the back of the good ship "Monkey Business" with Donna "Not-His-Wife" Rice on his lap.  I suppose the condition of his lap, occupied or otherwise, doesn't relate directly to the qualifications for this Commission that were specified in the enabling statute (which I linked to and quoted as part of the Correction at the end of my second post on Ms. Gorelick).  But like Dr. Kissinger — who, as I noted in my tedious third post on this subject, was Dubya's uninspired original choice to chair the Commission — Senator Hart still has "high negatives" in general, and he'd diminish, rather than add to, the Commission's credibility with a substantial segment of the public.

Mr. Meredith is right, however, to note that there's no reason whatsoever that any seat on the Commission, including the one presently occupied by Ms. Gorelick, must be occupied by a lawyer.  Hey, maybe that's how the Democratic pols in Congress could nip the Draft General Wesley Clark movement!

(PS: Sorry about not giving a permalink to Mr. Meredith's posts, but the archives for Blog*Spot seem to be busted.)

*****

UPDATE (Tues Aug 12):

Odd what does and doesn't turn up in one Google search that turns up in another — especially when it's from the Associated Press, which you'd expect would be pretty widely reprinted — but in an article that I just found whose main focus was on potential conflicts of 9/11 Commission members whose law firms represent airlines, there's this fairly interesting stuff:

Some say the same factors that produce potential conflicts may make the commissioners especially qualified.

Commissioner Jamie Gorelick said she is prepared to recuse herself if the commission explores actions made by the Justice or Defense departments while she worked for them.

But she added, "As I've said to the families (of victims), I come with broad and deep experience in the areas of law enforcement, defense and our intelligence community, which I think will be helpful to the commission."

I agree with her, but I still seem to be the only person commenting on this in the blogosphere who's willing to call dogslobber.  The perfect is the enemy of the good.

Tom Maguire at Just One Minute has a new post up cleverly entitled, "Ms. Gorelick And The 9/11 Commission - It's Not As Bad As You Thought...It's Worse."  As always, I appreciate his cross-link (although I was merely reporting and commenting on Dwight Meredith's suggestion of Warren Rudman as a possible replacement, not suggesting him myself, since ... well, dogslobber).

Update (Fri Aug 15):  Professor Glenn Reynolds a/k/a InstaPundit yesterday linked and quoted from Tom Maguire's Tuesday "Worse" post, and tonight Prof. Reynolds was also kind enough to link to this post to give some exposure to the "Jamie Is Not Necessarily an Unethical Slut" point of view (of which I seem to be the only proponent).  This proves that the InstaPundit is indeed fair and balanced.  Hello and welcome, InstaPundit readers.  Please accept my apologies that my arguments run so long and are so spread out, but such are the natures of lawyers and running debate. 

InstaPundit on EthicsI have not read Prof. Reynolds' book Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (written with Peter H. Morgan), but Prof. Reynolds blogs that in it,

we argue that appearance ethics are proper for people in judicial-style roles, but shouldn't be applied in political-style settings. So the question is, is the 9/11 inquiry commission essentially judicial (supposed to be independent, focused on facts, non-political) or is it political (involving accommodations between interest groups). It seems to me that it ought to be the former. Sounds like it's shaping up to be the latter.

This is an intriguing distinction — enough so that I may actually go buy the book tomorrow! — and it feeds nicely into one concern that I've had:  With respect to a Commission like this, where the entire American public is, in effect, Ms. Gorelick's "client," who if anyone should have standing to make the decision whether or not a potential conflict ought to be waived?  Arguably, no one can speak for everyone, which might be one reason for the distinction Mr. Morgan and Prof. Reynolds draw.

My initial reaction to this, though, is that it's still too idealistic and impractical an approach.  And the enabling legislation more or less anticipated this problem by requiring that membership on the Commission be divided equally between Republicans and Democrats, and that Congressional leaders from each party (and indeed, from each legislative chamber! although that level of detail may have been ignored in practice from what I can tell) would make these sorts of decisions as part of the selection process.  In this view, the Democratic leadership was speaking on behalf of its national constituency in deciding, "Is this a serious problem that should disqualify Ms. Gorelick, or is it just dog slobber?"

The idea that the Democrats who selected Ms. Gorelick were positioned to, and effectively did, make a knowing and informed waiver of her potential conflict is of course undone by the slight problem of timing:  When they picked her, she was still at Fannie Mae.  So then did Jamie Gorelick call her Democratic party sponsors, to seek their consent to the change in circumstances before she agreed to take the Wilmer Cutler job?  So one might hope, and if she did, and if they approved, then I'd have thought that decision would have been publicly announced with the same fanfare as her original appointment.  Here, as in most things political, any smell of cover-up attracts the conspiracy buzzards.  If Senator Daschle or Representative Pelosi have decided (as representatives of their national constituency) that it's in the nation's best interest to waive this conflict, they ought to be willing to run the Sunday-morning talk show gauntlet to explain why.

Posted by Beldar at 11:15 PM in Politics (2006 & earlier) | Permalink | Comments (3)

WaPo nails Gore

While some of the opinions expressed in this editorial in today's Washington Post about Mr. Gore and his August 7th speech are liberal (and therefore critical of Dubya), they're clear-eyed.  They're free from the mouth-frothing that's infected Al Gore, the editorial writers of the NYT, and more sadly, the supposed "news" writers of the NYT. 

But especially given their source, WaPo's observations about both Gore's speech and the Democratic party's increasing drift toward radicalism are ... surgically brutal, if that term makes any sense. 

I've watched the trailer from "The Passion," and I was impressed.  But whoever wrote this editorial could give Mel Gibson a few tips to make the crucifiction scenes even more realistic.

WaPo's never going to be "fair and balanced," but this is a good example of why I agree with others who've observed that WaPo is moving to supplant the NYT as the nation's "paper of record."

(See, I can too write a post that's less than 3000 words!)

*****

UPDATE:  Referring to the same Gore speech, Bob Herbert's opinion piece in Monday's NYT entitled "The Art of the False Impression" begins with a whine that "[i]n the superamplified media din created by the likes of Arnold and Kobe and Ben and Jen, it's very difficult for the former vice president, a certified square, to break into the national conversation."  Herbert doesn't really have a point to make after that except that we all ought to pay more attention to Mr. Gore, so he contents himself with summarizing and repeating Gore's speech.  Pretty sad, really.

Posted by Beldar at 10:40 PM in Politics (2006 & earlier) | Permalink | Comments (0)

Should you hire your lawyer based on a recommendation from the Man from U.N.C.L.E.?

There are now marketing firms that peddle slightly-customized television commercials using "professional acting talent" to law firms around the country — mostly to lawyers seeking to represent injury victims on personal injury claims.  From a recent report in Marcia Oddi's Indiana Law Blog and accompanying press coverage, I gather that the Indiana Supreme Court has just slapped down a small firm in Indianapolis who paid to broadcast some of the most ubiquitous of these ads — some I've also seen frequently in Houston, with only the firm name changed. 

Robert Vaughn a/k/a Napoleon SoloThese ads depict pretend-insurance adjusters talking tough about how they're going to walk all over some little guy who's just submitted a claim, then becoming panicky when they find out who his lawyers are — generally along the lines of "Oh my god, Dewey, Cheatum & Howe?  [insert cheesy sound effect here and have actor spill something]  We can't go to court, we've got to settle!  Get out the checkbook, fast!"  Then a mature, deep-voiced, handsome, and well-dressed actor — Robert Vaughn, vaguely still familiar to millions as "Napoleon Solo," the debonair spy in the 60s TV show "The Man from U.N.C.L.E." — chips in with his two cents:  "Tell the insurance company you mean business by hiring Dewey, Cheatum & Howe!  They go after your rights piece by piece by piece until you get every dollar you deserve!"  The impression is that these lawyers are likely to do to the insurance company what James Bond always does to S.P.E.C.T.R.E. unless they pay up, right now, no questions asked! 

In the ads, the insurance companies are eager to pay up regardless of the strength or weakness of any underlying evidence on damages or probable liability.  That's why the Indiana Supreme Court ruled that these ads violated the canons of ethics — they created unjustifiable expectations on the part of prospective clients that the advertising lawyers can always achieve a positive result based just on their reputation.  Or in other words, the central premise of the ads was misleading humbug — a lie, although the court didn't use that perfectly apt word.

For most of the last 20+ years, in addition to purely commercial litigation among businesses, some portion of my practice has included representing either insurance companies and self-insured businesses who are being sued, or injuried people who are doing the suing.  From personal experience on both sides, I can confirm to you that the reputation of the lawyers involved on each side does indeed count for a great deal in the very subjective evaluation of what a personal injury claim is "worth."

But the cruel, sad irony is, the lawyers you see advertising for PI cases on TV are, more often than not, lawyers whose actual reputations cut against their clients, at least in my personal experience.

UPDATE (Wed Aug 13):  Yet another fascinating blog that was introduced to me today by a follow-up post on Ms. Oddi's Indiana Law Blog is ethicalEsq?.  Its homepage is subtitled "advocating client-centered legal ethics," and its "about" page says, "The underlying question will always be whether a proposal, rule or action puts the client's interests first."  (This leaves me wondering if there's a competing school or doctrine of legal ethics that doesn't — but never mind that for now.)  The URL points to Harvard Law School, but it's apparently edited by a "retired attorney and mediator" from upstate NY, David Giacalone, with some other folks also helping out.  I'll definitely give the site a closer look later.

What came to my particular attention, though, is Mr. Giacolone's post today on the Indiana Supreme Court's decision on the "Man from U.N.C.L.E." TV advertisements:

With all due respect, this is just plain silly, highly insulting to consumers, and a waste of judicial resources.   The Federal Trade Commission knows a thing or two about misleading and deceptive ads.

Mr. Giacalone then assesses these ads as harmless on grounds that the ordinary consumer would would recognize them to be "obviously exaggerated or puffing representations," citing a Federal Trade Commission policy statement as a touchstone.  He concludes:

If courts and bar associations really want to help personal injury victims, they should start making sure that contingency fees are reasonable and that clients are fully informed about their right to negotiate over the percentage charged.   And, they should stop wasting their time fuming over ads that we all love to hate, but are all about familiarity and name recognition, not believable claims.

Clearly he comes at this issue from a different perspective than I do — one that is making me scratch my chin and mumble to myself a bit.  Two things occur to me off the top of my head:

  • I'm inclined to believe that courts and bar associations can and should employ a higher level of scrutiny than does the FTC because I'm inclined to believe there is a unique potential for deception, and a corresponding difficulty for a layman to evaluate and "comparison shop" in a meaningful way, when it comes to lawyer advertising.

  • I'm emphatically less confident than Mr. Giacalone that all lay consumers, or even most lay consumers, will recognize these ads as being obvious exaggerations.  To the contrary, I'm quite concerned that a substantial portion of the public may believe, "It must be true or they wouldn't let them say it on TV."  Even if only 10 percent of the public thinks that, in my judgment that's too many to ignore.

Mr. Giacalone appears to be keen on the notion that contingent fees should be the subject of more active negotiation.  This too is a proposition that makes me rub my chin and ponder — I'm not immediately certain that there are no downside risks to that proposition.  Depending on what further thoughts burble up from the thick mud of my subconscious, I may write more on this topic later. 

Posted by Beldar at 05:56 PM in Law (2006 & earlier) | Permalink | Comments (3)

Should Dubya lead from the front in the Culture War? (A rebuttal to Rich Lowry's WaPo editorial)

I'm a fan of Rich Lowry and his writing, and agree with him far more often than not.  But I respectfully  disagree with the prescription he urges in the conclusion of his opinion piece in the Sunday Outlook section of today's Washington Post entitled "In the Culture War, President Keeps His Distance."  In his wistful longing for Dubya to engage more directly on the hotbutton social issues currently being fought out in the Culture War's no-man's-land, Mr. Lowry is missing a very simple and preemptively important point — one that, fortunately, Dubya Rove & Co. not only "get," but live and breathe.

Lowry first begins with the familiar observation that "Bush is a polarizing figure in the culture war simply by virtue of who he is," and that

[h]e fires an implicit shot in the culture war every time he drops a syllable or hooks his thumbs, cowboy-style, in his jeans. This helps account for why he is so hated by elements of the left, as hated as Bill Clinton was by some conservatives. When he says "bring 'em on" of anti-American fighters in Iraq, his macho challenge makes his critics crazy.

This is, if anything, an understatement of the situation.  For the people who comprise what's coming to be commonly called "the Angry Left," the debate on every political issue now begins with the question, "What position is Bush taking on this subject — whatever he's for, we're against, period."  And anything else they say after that is just after-the-fact justification.  For these folks, their seething and reflexive white-hot hatred of Dubya has altogether displaced their capacity for reason and judgment.  That leaves what's left of the left in the Democratic Party — people like Joe Lieberman, for instance — frustrated and understandably fretsome.

The irony, of course, is that Dubya is not, and never has been, angry.  Lowry correctly describes him as "a pacifist at heart" on the Culture War issues — abortion, gay marriage, racial preferences — whose "heartfelt sentiments" and fresh and personal "sense of redemption" give him "a kind of supercharged tolerance" on these issues:  "For all his bellicosity abroad, Bush's message at home often is: Please, let's not fight." 

And this leaves Lowry frustrated:  "This is a loss for those of us who are conservatives. It means that, on important issues, a crucial player isn't fully engaged."  It makes those who enthusiastically take up the cudgels on these fights feel unsupported, says Lowry, and worse, "the effect of Bush's accommodationist tendencies on these issues is to leave them to the courts."  Lowry concludes by arguing, in effect, for the President to lead from the battle-front on these issues:

There's nothing wrong — nothing hateful — about open and passionate argument. Given the winning way his faith has influenced his political persona, President Bush is perfectly positioned to demonstrate this by example — that we can fight, but still love, that a "welcoming country" need not forfeit its right to govern itself.

Following this advice, however, would be perhaps the only thing that might put Howard Dean in the White House in January 2005.

Lowry does acknowledge — but only briefly — that in staying away from the front lines in these Culture War battles, the President is

reflecting not just his beliefs and his temperament — he fundamentally likes getting along with people — but an electoral strategy. Part of the point of compassionate conservatism is to avoid inflaming the other side, to keep the Democratic base relatively quiet in a kind of soothing voter suppression.

Well, yes.  Except that with respect to most of "the Democratic base," it's not working and won't work.  They won't be soothed, and any attempts to do so only further enrage them.  They're going to be "the Angry Left" whether Dubya takes a poke at them through the cage bars with a stick or not.

Mr. Lowry, the "electoral strategy" isn't about the Angry Left.  It's about not alienating any part of that particular slice of the electorate that voted twice for Ronald Reagan and for George H.W. Bush in 1988 — but then for Bill Clinton in 1992 and 1996 and for Al Gore in 2000.

We are each the product of our significant life experiences, and besides the personal redemption Dubya found through his religion, I believe that the other most profound experience in his pre-presidential life was watching his father's Presidency come to a crashing and premature end.  He was inside, but on the fringes and largely unable to affect that catastrophe.  But the pain and frustration he absorbed during it was, I believe, a large part of what fueled his resolve, his inner fire, to become a successful leader himself.  It carried him through two Texas gubernatorial races and a historic, eyelash-close Presidential race, right up through September 10, 2001. 

And the next morning, it was wholly displaced by an altogether different, more noble, and more powerful sense of mission and destiny as the Twin Towers collapsed into themselves in a storm of dust and incinerated innocents.

For George W. Bush, I believe, politics is not an end in and of itself, a career skill to be mastered and lived and breathed the way Bill Clinton or Tony Blair have done it.  For Dubya, politics is — and always has been, and always will be — nothing more than a means.  Getting elected in 2000 was just something that had to be done along the way toward exorcising the demons from November 1992. 

But getting re-elected in 2004 is something that now has to be done to continue the mission that enveloped him on 9/11.  Dubya doesn't care about staying President because he wants to be President, he cares about staying President so he can complete the process of transforming the world into a place where America is no longer vulnerable in the ways we were, when we were still innocent and when the towers stayed in the sky.  And so this President will ruthlessly suppress any temptation to fight fights that are likely to interfere with that next means, that election in 2004 — because he is so intent on fulfilling the end-goals of the mission that suffused him to his core on 9/11.

It's possible that after November 2004, with a second term secured, Dubya might move up to the front lines of the Culture Wars.  But frankly, I doubt it.  I don't think he sees "making all Americans moral" as part of the mission, or even as something that can be accomplished by the direct and intentional leadership of any  President.  He has, and he can, and he will continue to affect the morality of his countrymen, and to an extent people elsewhere in the world, on the margins — by personal example, and by consistently working the systemic levers like judicial nominations that the Constitution puts into the hands of the Executive.

But he's not the Pope of America, nor even of "the conservative movement."  He doesn't want to be, and I don't think he or any other President could or should be.  Those who are the every-day combatants in the culture wars — while I applaud them — ought not expect a General Bush to race to the front lines on a white charger with sword drawn, to lead them in smiting the unrighteous.  There's too much risk of that kind of leader getting shot off his horse.  Dubya intends to stay in the saddle — leading all of his countrymen on other, less metaphorical battlegrounds — all the way through January 2009.

Posted by Beldar at 01:30 PM in Politics (2006 & earlier) | Permalink | Comments (0)

Saturday, August 09, 2003

Channeling Dubya versus channeling Hillary; or, lawyers versus lab rats

In my first post about Jamie Gorelick, I was operating under the (since-corrected) misimpression that Dubya had picked Ms. Gorelick for the 9/11 Commission.  From press reports, I can't quite piece together exactly who from the Democratic powers-that-be in Congress designated her.  But given her past connections in the Clinton administration, it's not unreasonable to assume that Hillary at least checked off on the choice.

I originally imagined that it was Dubya leading the "here's full disclosure, now do you want to waive the potential conflict" speech to John Q. Public.  I support Dubya; I voted for him twice for Governor of Texas and once for President; I'm in shouting distance of his generation and I grew up about an hour's drive from Midland, Texas.  So it's no great leap for me to try to channel a bit of Dubya-speak, right down to the mock-mangled "bipartificial."

But I've been trying to imagine how Hillary would give that same speech, and — I'm sorry, I can't focus a coherent thought, I'm too busy trying to control my shivering and twitching.  It's too great a stretch.

I'm reminded of one of my favorite lawyer jokes: 

Q: Why is it that scientific labs are switching en masse from lab rats to lawyers for their experiments? 

A: Three reasons:  First, the lawyers are more plentiful.  Second, the lab techs don't get so attached to them.  And third, there are some things a lab rat just can't be persuaded to do.

But I can't persuade myself to channel Hillary.  I keep imagining that I'd lose control, and I hear the voice of Dana-Carvey-as-the-Church-Lady asking who it is that's inhabiting my body:  "Could it be ... SATAN?"  Not gonna do it.  Wouldn't be prudent.  Just can't go there.  Sorry.

Posted by Beldar at 08:00 PM in Humor | Permalink | Comments (0)

More factoids re Ms. Gorelick

I'm almost at the MEGO (my eyes glaze over) stage now, but here are a few more bits and pieces regarding Ms. Gorelick's alleged conflict of interest:

  • According to a press release dated May 14, 2003, Ms. Gorelick is new to Wilmer, Cutler & Pickering, having joined that firm effective July 1, 2003 — long after being appointed to the Commission, and indeed, after it was well into its work.  In fact, she announced her resignation from her previous job as Vice Chair of Fannie Mae back in January 2003 "to devote substantial time to the bipartisan national commission investigating the attacks of September 11, 2001 and to pursue other interests."  In deciding whether to bring in a lateral partner, big firms universally consider whether the "acquisition" will create new conflicts problems.  When exactly WC&P ran that drill isn't clear, but from their press release they obviously were aware of her pre-existing and ongoing participation in the Commission.  My gut tells me that sometime well prior to that May 14th press release, Ms. Gorelick and WC&P took a cold-eyed look at this whole conflicts question and decided to circle the wagons and weather all storms — as opposed to this being an "oopsies" moment for them.

  • Commission General Counsel Daniel Marcus "was for many years a partner in the Washington law firm of Wilmer, Cutler & Pickering, serving on the firm's Managment Committee from 1995 to 1998."  It's not farfetched to speculate that he might have had some role in putting Ms. Gorelick and his old firm together, but it's also entirely plausible that the connection was made independently.

  • Rather than presuming Ms. Gorelick's appointment was intended to permit her to be a continuing FOB or FOH ("Friend of Bill," "Friend of Hillary") on the Commission, Michel Chossudovsky speculates in the Online Journal that — based on Ms. Gorelick's "close working relationship with CIA Director George Tenet[, and] serv[ice] on the CIA's National Security Advisory Panel as well as on the President's Review of Intelligence" — she's intended instead to give the CIA its own "seat on the Commission" for whitewashing and coverup purposes.  This post gave me my "grassy knoll grin" for the day, thank you.

  • According to the AP on May 22, 2003: 

    To avoid the appearance of conflict of interest, three members of the 10-member commission – James R. Thompson, Gorelick and Ben-Veniste – will not participate in writing recommendations for commercial aviation, chairman Thomas H. Kean said. The three work for law firms that represent airlines.

    Eh.  These sort of half-measures satisfy no one and look more like a quasi-admission that something's wrong IMHO.

  • David Korn wrote this evaluation for The Nation on June 19, 2003: 

    It's a pretty typical composition for a Washington commission — mostly established and accomplished players, not mavericks, and several with strong ties to the current or previous Administrations — the targets, in a sense, of the commission. "It's been a problem throughout to get commissioners and staff who are truly independent," says Stephen Push, a co-founder of Families of September 11....  "This is what happens when you pick talented people with expertise in Washington," says one commission source. "Do you want people who have no experience at all?"

  • Per a Reuters report back on December 1, 2002:

    Former Democratic Sen. Mitchell, the commission vice chairman known for high-profile efforts to broker peace in the Middle East and Northern Ireland, said "yes, of course" he would drop clients that pose conflicts of interest at his New York law firm.

    "There are no conflicts to the best of my knowledge," he said. "But certainly, should someone that we, I personally or my law firm, is now representing that is a subject of this inquiry, then there would be no question about that.

    "Everyone should be assured that this is our highest priority. We will do whatever is necessary to conduct a very thorough investigation and to provide a report that can reassure the American people," Mitchell added. "And nothing will stand in the way of that."

    (Mitchell actually has been a partner in the Washington office of Baltimore-based Piper Rudnick since it merged with DC-based Verner, Liipfert, Bernhard, McPherson in September 2002.)  By December 11, 2002, however, Mitchell had withdrawn, as reported by CNN, to escape concerns about conflicts of interest:

    In a letter to congressional leaders, Mitchell said he stepped down because he does not want to sever ties with his law firm, which he said he had been urged to do to avoid a potential conflict of interest, and because the commission's work will take too much time.

    "Some have urged that I sever all ties to the law firm with which I am associated," Mitchell wrote. "Since I must work to support my family I cannot comply."

    The letter continued, "I take this action reluctantly, as I wanted very much to be a part of this important effort."

    Again, look at the timing:  With this history from Mitchell (and roughly simultaneous questions about conflicts on the part of Dr. Kissinger, the original nominee for Commission chair, before his withdrawal), I simply cannot believe that this issue is going to catch either Ms. Gorelick or WC&P by surprise.

*****

UPDATE (Sat. Aug 9th):

Add Andrew Stuttaford at National Review Online's The Corner blog to those calling for Gorelick's resignation on the basis of Mr. Meredith's original blog.  I don't expect to see this on the Sunday morning talk shows, but I do predict it will hit the mainstream press by Monday at the latest.

UPDATE (Sun. Aug 10):

  • Under the subheadline "Too Smart for Fannie?", a glowing, gossipy July 2003 "Capitol Comment" piece from Washingtonian Online, reporting on her move to WC&P, notes that Ms. Gorelick

    ... abruptly left the number-two job at the Justice Department near the start of Bill Clinton’s second term, enticed by a seven-figure salary as vice chair at Fannie Mae.

    The word around town was that Gorelick wanted to make some big money before returning to government service in an Al Gore administration.

    Considered by many to be the smartest young lawyer to arrive in Washington in many years, Radcliffe grad Gorelick had served as general counsel at Defense and made a name for herself as a star litigator. Her name was mentioned as a Secretary of Defense or Attorney General under President Gore.

    It goes on to report that "[a]t Wilmer Cutler, Gorelick is expected to work in the firm’s expanded corporate-fraud area, headed by former SEC enforcement chief Bill McLucas."

  • In addition to General Counsel Daniel Marcus, former WC&P partner Steve Dunne serves as the Commission's Deputy General Counsel, with another former WC&P lawyer, Dana Hyde, also on the staff as counsel.  Hyde's also described as a former special assistant to the deputy attorney general in the Clinton administration, which sounds like he/she may have worked for Gorelick then.

  • Both Ms. Gorelick and Lloyd Cutler were, or perhaps still are, members of The Constitution Project, "a bipartisan project that urges restraint in the constitutional amendment process."  (She's still listed on their website as being at Fannie Mae.)

Posted by Beldar at 06:41 PM in Politics (2006 & earlier) | Permalink | Comments (0)

Update re Jamie Gorelick's purported conflict of interest to serve on the 9/11 Commission

Since I first posted on this subject, Mr. Meredith has been kind enough to drop me a friendly email in which he mentioned that he may have some thoughts on my arguments that he'll post in detail when other commitments permit him the time.  I look forward to reading it!

Tom Maguire, who blogs Just One Minute very eloquently and effectively, also left a kind and perceptive comment here on BeldarBlog — my first! He also posted a consecutive pair of comments on Mr. Meredith's original post, and — best of all — a fine post on his own blog that pithily reviews both Mr. Meredith's and my own posts, and then provides considerable more factual information and some enlightened opinion about Ms. Gorelick.  He apologized for "soundbit[ing]" what he generously describes as my "long and entertaining post" (thanks!), but he did so very crisply and accurately.

More specifically, Mr. Maguire highlighted in considerable detail some of the other footprints that Ms. Gorelick has left behind in her prior practice in Washington.  These include a basis for various folks to allege that Ms. Gorelick was Hillary's "eyes and ears" in the Janet Reno Justice Department, corrupted the Flight 800 probe, and impeded attempts to investigate China's efforts to influence the 1996 election.  Mr. Maguire suggests, and I certainly agree, that these allegations ought to be taken with a grain or two of salt.  But I also agree that they are more grist for the mill of the conspiracy theorists and hyper-partisan spin artists of either political persuasion. 

As a lawyer, though, if you're running with the big dogs when the big dogs get into their biggest dogfights, you have to expect to get splattered with some dog slobber from time to time.  I don't yet see anything negative here about Ms. Gorelick that rises above the dog slobber category, frankly.

I do need to make some more self-disclosure, however, for you conspiracy theorists out in the blogosphere — and it sort of helps to illustrate my main argument, I hope: 

  • From 1981-1987 I was an associate in the trial department at what's now Baker Botts LLP in Houston, which I noticed, after I had made my original post, is the main subject of the Michael Isakoff & Mark Hosenball piece in Newsweek/MSNBC last April 16 that Mr. Meredith cited as his source to establish that WC&P represents Saudi Prince Mohammed al Faisal in litigation against 9/11 victims.  Former Secretary of State James A. Baker III is a Baker Botts partner (and the great-grandson of the "Baker" who founded it, IIRC).  Secretary Baker and the Baker Botts firm, including current trial department head Darryl Bristow — who's as capable and flamboyant a "real trial lawyer" as I've ever known, notwithstanding his taste for wearing French cuffs and handmade cowboy boots at the same time in court — were also prominent among Dubya's counsel in the Florida election litigation in 2000.  Before the Reagan administration, though, strict anti-nepotism rules kept Jim Baker from joining Baker Botts, so we never practiced together and I've never met him.  I remain, however, an unabashed fan of that firm, and I'm a friend to many of its lawyers who once were my colleagues and who more lately have sometimes been my esteemed opponents (including Bristow). 

  • Richard Ben-Veniste is  another well-credentialed Washington heavy-hitter and sometimes-described "Clintonista" Democrat who Dubya appointed to the Commision.  Sometime in 1988-1991, he and I overlapped on the partnership rolls of New York-based megafirm Weil, Gotshal & Manges — he in its Washington office and I in Houston.  I don't recall that he and I ever met, and he's now at the Washington office of Chicago-based Mayer, Brown, Rowe & Maw (against whose lawyers I've also appeared from time to time, and in fact am opposing now in a case pending in federal court in Chicago).
 

So it's a small, small world out there — top-flight lawyers and their clients and their law firms tend to have layered connections to each other that, in fact, remind me of the way hyperlinks connect everything on the Internet! 

My own tangential connections aptly demonstrate that in order to find lawyer-members for the 9/11 Commission with no connections to any major players, you'd have to either dip way too deep into the talent pool and/or go way outside the Beltway.  Doing either would, in my humble opinion, sap the credibility and likely effectiveness of the participants to an unacceptable degree, given what I believe to be the very remote and minimal substantive risks from any arguable conflict of interest on the part of Ms. Gorelick. 

Sophisticated consumers of legal services make reasoned decisions on whether to waive conflicts of interest, or instead to hire someone else altogether, every day in the business world.  They do so because in their nuanced, rational, but subjective assessments, they perceive that the lawyer or law firm with the alleged potential conflict will bring qualities to the representation that considerably outweigh the risks from the potential conflict.  My ultimate point here is that we, the American people, ought to try to be sophisticated enough and confident enough to make such a judgment here:  John Q. Public is better served by waiving Ms. Gorelick's potential conflict of interest than by losing the benefit of her participation on the 9/11 Commission.

As the information ably blogged by Mr. Maguire makes clear, for the Dubya Administration folks who were choosing members for the 9/11 Commission, the close partisan political connections of Ms. Gorelick and Mr. Ben-Veniste to the Democratic party and to the Bill-and-Hillary Show probably constituted far more substantial grounds to resist their selection.  And yet it's connections and experience of that sort and on that level which made them valuable candidates to begin with.  That's why a Vernon Jordan or a Bob Strauss or a Lloyd Cutler find themselves serving as confidential advisers to Presidents of both parties.  None of these folks are without a perceived or perceivable wart somewhere, so the (slightly mixed) metaphorical question becomes, "Do we cut off all their noses (with those perceivable warts) to spite the Nation's face?"

****

Correction:  "After further review," as they say in the NFL, I've learned that only the Commission chairmanship appointment was Dubya's to make.  The other nine members were chosen through a rather complicated bi-partisan process that involved leaders from both parties.  I don't know specifically who picked either Ms. Gorelick or Mr. Ben-Veniste, but I assume it was someone from the Democratic side of the aisles.  The enabling legislation also required that members can't be current government employees, and expressed the "the sense of Congress that individuals appointed to the Commission should be prominent United States citizens, with national recognition and significant depth of experience in such professions as governmental service, law enforcement, the armed services, law, public administration, intelligence gathering, commerce (including aviation matters), and foreign affairs."

Posted by Beldar at 02:58 PM in Politics (2006 & earlier) | Permalink | Comments (0)

Conflicting views about conflicts of interest

Professor Glenn Reynolds at the University of Tennessee Law School — a/k/a InstaPundit —  is another of the most respected bloggers around.  As I aspire to do here, he frequently comments on law, politics, and the intersection between them.  I usually find myself agreeing with him on the merits of issues, and certainly respect his sense for what's newsworthy. 

Moreover, conflicts of interest is a topic of particular interest to me — a topic that I've written and lectured about at continuing legal education seminars, thought about repeatedly in considering whether to accept engagements and in drafting engagement letters, and on a few occasions had to fight out with opposing counsel in pending litigation. 

So I was quick to click to follow the link to learn more after reading this short post on InstaPundit last night:

CONFLICT OF INTEREST IN THE 9/11 PANEL: And it's a doozy. Dwight Meredith is right: this is unacceptable.

Mr. Meredith's website, called "P.L.A.—a Journal of Politics, Law & Autism," is new to me, but my first reactions to it are quite positive and his positions indeed appear to be both cogently expressed and substantive.  I'm inclined to disagree somewhat with him (and therefore with Professor Reynolds) on the merits of this particular issue, though.

Their proposition is that it's wrong for a high-profile private-practice lawyer in Washington to be serving on the very impressively titled National Commission on Terrorist Attacks Upon The United States — an official government commission created after 9/11 — while the law firm in which that lawyer practices is simultaneously defending the Saudi government and/or members of the Saudi royal family in lawsuits brought by the families of 9/11 victims. 

Whether the Saudi government and royal family are culpable in the terrorist attacks of 9/11, and if so to what extent — acts of omission versus acts of commission, negligence and stupidity versus active cupidity, etc. — are topics of much current public debate.  They're also topics that are likely to become "outcome determinative" in private civil litigation like that referenced by Mr. Meredith.  Put less delicately, whether lawyers representing families of the 9/11 victims win their cases against the Saudis, or extract substantial cash payments from the Saudis as part of pretrial settlements, hinges on what they can prove about just how involved the Saudis were and how bad the Saudis' behavior was.

I'll ask my nonlawyer readers to simply take it on faith that from a legal standpoint, there is no doubt that there is at least a potential for conflicting interests somewhere in this situation.  Exactly where and to what extent — well, there's the rub.  But I'll spare myself and the world yet another exegesis of the relevant canons of ethics and interpretive caselaw here — this post will be long enough as it is, and I doubt that the canons or the caselaw form the basis for whatever disagreement exists between me and Mr. Meredith & Professor Reynolds.

Hypothetically, if my law firm and I were asked to undertake the representation of a 9/11 victim family in a lawsuit against the Saudis, before accepting the engagement we'd do an internal "conflicts check."  Conflicts checks are easy in tiny firms like the one I work at now, but they can be fiendishly hard in very large ones like those Mr. Meredith's post mentions.  In either a solo practice or an 800-lawyer international megafirm, though, the question that we must ask ourselves is basically this:  "Are we already representing (or have we in the past represented) some other client who might also have an interest in some of the same topics or matters?" 

If the answer is "yes" or even "maybe," then that will, at a minimum, oblige us to disclose fully the circumstances to the victim family, in which event the conversation might go like this: 

"Before you make a final decision on whether or not to hire us, Mr. & Mrs. Tearful, you need to know that four years ago, one of my partners in our firm's Detroit office represented a limited partnership whose majority interest was indirectly owned by a minor Saudi prince.  The case involved a slip-and-fall accident at a shopping mall owned by the limited partnership.  The case was settled out of court, and our firm hasn't represented him or any other Saudi princes since then, and we don't expect to in the future.  Nor does there seem to be any connection between the facts of that case — which involved split transmission fluid in the parking lot — and anything that could have led up to the tragedy of 9/11 that has so devastated your family.  We don't believe this past representation of the Saudi prince will affect our motivation if you do hire us to sue the Saudi government and royal family now, but our judgment on that subject could possibly be colored by our prior relationship.  You may want to get a second opinion before deciding on whether to hire us, in fact.  But if you decide that this isn't really any big deal and you'd still like us to be your lawyers, then we will need to include in our engagement letter a special paragraph for you to initial.  It will simply confirm in writing that we disclosed all this to you in advance, that you were aware of the theoretical potential that our past representation of the Saudi prince could, arguably, affect our future representation of your family; and that after a full, unpressured discussion and careful, independent consideration by you, you made a decision to waive that potential conflict of interest and to hire us despite it."

In this hypothetical situation, there would be no ethical impediment to my firm representing this family, if they made a well-informed decision after full disclosure that they wanted to waive any potential conflict of interest.  Nor, I submit, would there be anything objectionable to this independently of the canons of ethics — and I suspect Mr. Meredith & Professor Reynolds would agree, based on this particular hypothetical set of facts.

Of course, if you change the input you may change the output; different hypothetical facts might lead to a different result:

Mr. & Mrs. Tearful, thank you for coming in today.  Since our initial telephone call last week, I've done some checking, and I've learned — to my surprise and dismay — that one of my partners in our Washington office currently represents a man named Mohammed Mohammed ala Ishtar.  I don't know any of the details of that case, but apparently Mr. ala Ishtar is being held in detention in Guantanamo Bay, Cuba, after being apprehended in Iraq by our military forces there.  He's a Saudi national, the cousin of a minor prince in the Saudi royal family in fact, and he's expected to be charged on multiple counts of terrorism, including participation in a money-laundering scheme of some sort.  To represent him effectively, my partner in Washington may have to take positions in court about the relevant law — and maybe even the relevant facts — that would be inconsistent with the positions which would need to be taken by good lawyers representing people in your position.  So I'm afraid that our firm has to disqualify ourselves from further discussions about possibly representing your family on its claims from the 9/11 tragedy, Mr. & Mrs. Tearful.  You need lawyers who can represent you without any additional baggage, and try as we might, for this case we just can't be that kind of lawyers for you.  I'm very sorry, and I hope you'll understand."

On this different set of hypothetical facts, the conflict is probably still a "potential" one — we don't know for sure yet that Mr. ala Ishtar's case will end up being directly connected to Mr. & Mrs. Tearful's case — but I submit that an ethical lawyer would simply bow out without further ado (as in the conversation above), without even suggesting that Mr. & Mrs. Tearful consider hiring him with a waiver.  (Mr. ala Ishtar would also have to be consulted about a waiver, of course, which seems rather unlikely, even after a bullying "hard sale" that would end up invalidating the waiver.)

What Mr. Meredith and Professor Reynolds are pointing to here, though, doesn't resemble either of the hypothetical sets of facts I've proposed.  There's no suggestion that the loyalties of any lawyers representing 9/11 victims are being compromised here.  As best we know from the facts Mr. Meredith reports, those victims are being aggressively represented by independent lawyers — lawyers who aren't simultaneously trying to carry baggage for the Saudis, the US government, or anyone else with a stake in sorting out the 9/11 aftermath.

No, with one extremely remote exception (about which I'll say more at the end of this post), if there's anyone with standing to complain about a conflict of interest on the facts described by Mr. Meredith, it's either (a) the Saudis, or (b) the American public at large.  So let's look at those possibilities separately.

"Ah, Sheik Abdulla!  Welcome back to America, sir!  Can my secretary get you some sweetened tea?  No?  Very well, the first item on our agenda this morning is the new lawsuit you've asked us to handle on behalf of yourself and the royal family, the class action brought against you by families of victims killed on 9/11 in the aircrash on the Pentagon.  You're probably already aware, your Highness, that one of my partners at this firm was appointed last year by President Bush to be on an official comm— ... Oh, heh, of course, I'm sorry, forgive me for telling you what you clearly already knew.  Well, just as a formality, sir, I need for you to have your correspondence secretary execute this side-letter to our standing engagement letter, to confirm that you were advised of the theoretical possibility that, eheheh, for instance, my partner might have to sign on eventually to some report from the Commission that is less than 100 percent flattering to the House of Saud....  Eh-heh, no, I'm not expecting that either, sir, but you know, it's at least— ... Oh, no sir, my office was swept for bugs just yesterday, as usual!"

Short and sweet:  If the Saudis are at risk of being embarrassed or undercut or sold down the river by the lawyers Mr. Meredith points to, they're big boys, they are capable of evaluating that risk, and they're perfectly entitled to waive any conflicts of interest.  I think Mr. Meredith & Professor Reynolds would agree with this, too — they're not shedding tears for the Saudis, as I understand them.  (And frankly neither am I.)

No, the potential victims of any possible conflict of interest here aren't the 9/11 families or the Saudis.  If there's a potential victim, it's the public at large — in the sense that all of us are "clients," ultimately, of the Commission.  The specific concern must go something like this: 

Jamie Gorelick, formerly of the Clinton Justice Department but now a partner in the firm of Wilmer, Cutler & Pickering, is imputed by law to share in the representation of all of Wilmer, Cutler's clients, including their Saudi clients — regardless of whether she's personally knowledgeable about or involved in those matters.  As a partner, she shares (albeit if only by a fractional percentage point) in the profits that Wilmer, Cutler has earned and will earn from representing the Saudis.  Therefore, we must be concerned that she is biased in favor of the Saudis, that all her input into the Commission is going to be tainted, and that the Commission's final product will thereby be compromised.

Well, yeah.  That could happen, I guess.  I've never met Ms. Gorelick, wouldn't know her from Eve.  But I see from her résumé that she's also on the board of Schlumberger, which is an oilfield services company — oh my gawd, a French company at that!  I expect that Schlumberger probably has actual or potential contracts in Saudi Arabia or Iraq, too.  Might be some theoretical conflict that could arise from that relationship which would affect Ms. Gorelick's bona fides.  Now it's getting juicy, yeah.  Let's see here, she's also a "former winner of the American Jewish Committee’s Judge Learned Hand Award."  Hmm, that practically is the same as sleeping with Sharon, isn't it?  Now how's that cut in this quagmire?  OMG, she's been President of the DC Bar Association!?!  That's like the Inside-the-Beltway Lawyer Protection Association, we know without a doubt she's willing to sell her grandmother's soul to pad the fees of every shyster north of the Potomac!  Et cetera, et cetera.

Actually ... That's a pretty impressive résumé, looked at objectively.  I mean, she's probably a Democrat and a liberal, so she and I probably wouldn't get all gushy-friendly if we were parked next to each other at a dinner party, but — those are really good credentials, even for a high-powered shop like Wilmer, Cutler.  I think it's time for another chat:

Thanks for coming out to the ranch today, pawdner!  Helicopter ride okay?  John Q, I've been meaning to ask you & Mrs. Public out here for some time now.  Before we get our fingers all messy with the ribs they're bringing in now, though, let's talk for a minute about this 9/11 Commission I'm putting together...  Yes, you're right, we all want to get to the bottom of this mess, and I'm staking my Presidency on doing that as part of the overall War on Terrorism.  Now, when we were chattin' on the phone last week, I was tellin' you about this gal I've been thinkin' about addin' to the party — Gorelick?  Izzat her name?  Anyway, this gal has a batting average that A-Rod would die for.  Mover, shaker, and baker, baby.  She's flat-out connected.  Democratic-connected mostly, but we need to make this Commission bipartificial, doncha think?  There's one little problem, though.  Point oh-oh-six of her law firm's revenues this year is gonna come from the Saudis— ... Yes, I know, but there just aren't enough firms like ol' Lloyd Cutler's to keep every foreign satrap well represented.  And anyway, of that point oh-oh-six, something like eight-fifteenths of one percent of this Gorelick gal's income for next year can be traced back to the Sauds— ... Yup, I know that's still enough money to buy Rangers season tickets, but in the scheme of things, it's chump change for a gal like this, she's got more than that rattling around in her glovebox to pay tolls on the turnpike.  Now I think it's in the national interest for this Commission to not be full of no-names if we want the world to pay attention to what it comes up with, if anything — and the members need to be sharp folks with clout, folks who know how to dig skeletons out of closets, ya know.  So do I have your permission to waive this-here potential 'conflict of interest'?  Do we take this gal or whut?  Pass the sauce, please."

If I'm Mr. Public, I agree to waive this potential conflict of interest in the proverbial New York minute and get back to my ribs and cole slaw.

It's not like Ms. Gorelick has been made Sole Terrorism Czar; there are some other pretty high-powered folks looking over her shoulder.  Yes, there's some marginal, theoretical risk that even a lawyer with this background and these credentials will deliberately throw her ethics down the toilet and sell out her country to please one of her partner's clients.  It's slightly more likely that she'll be influenced on an innocent and subconscious level, and maybe that's a little bit troublesome.  Eh.  De minimus non curat lex.  (Roughly translated:  The Law don't sweat the small stuff.)

Friends and neighbors, I no more believe that there's a meaningful conflict of interest here than I believe that Gulf War II was all about Dick Cheney getting some contracts to put out oilwell fires for his old company after he'd divested all his options.  I'm not a fan of commissions in general, but I take on faith, and I indeed hope, that Ms. Gorelick and this Commission have gotten and will get meaningful cooperation from the government agencies they've dealt with.  More:  I pray this Commission's end product helps us avoid future disasters.  But I'm pretty sure that for them to have a fighting chance to do so, they're going to have to rely on people like Ms. Gorelick.   

Find me a lawyer in Washington who's absolutely pure, unencumbered by all conceivable potential conflicts of interest, remotely as well-qualified by education and experience as Ms. Gorelick, and beyond all plausible attacks by the conspiracy theorists, and I'll eat Dubya's sweaty Rangers baseball cap.  You're more likely to find a unicorn in Lafayette Park.

***

Final few footnotes (you can stop reading here unless you're really wonky):

(1) I'm not an expert on the subspecialty of legal ethics as they apply to government lawyers, but I tend to doubt they apply to volunteer (non-staff, that is) lawyer-members of ad hoc Presidential commissions like this one.  If I'm wrong, then in the immortal words of Emily Litella, "Never mind."

(2) Full disclosure:  As a very young lawyer, I too once represented Schlumberger from time to time.  I recall hearing of a colleague who, when appearing on its behalf in a rural East Texas courthouse, had the questionable judgment to correct the local judge's mispronunciation of our client's name:  "It's 'SLUM-ber-zhay,' Your Honor."  This tickled the judge, who immediately called a lunch recess so that, as he explained, he could go to the coffee shop across the street to "order up a ham-ber-zhay and fries."

(3) More disclosure: I interviewed for a summer job with Wilmer & Pickering (Lloyd Cutler was then at the White House with Jimmy Carter) in the fall of 1978 when I was a law student.  They liked me, I liked them, and they offered me a summer job, but I decided to work in other cities that summer and never applied there for a permanent job.  From everything I know of them, as a firm, their ethics are sparkling.  I will guaran-damn-tee you that their own internal conflicts checking methods are state-of-the-art because they see these kinds of issues daily.  They probably have an in-house committee that's considered this exact question, and/or they have hired some law school professor who specializes in ethics for a backup opinion.  I happen to think they're good folks, but even their worst enemies wouldn't accuse them of being casual or stupid about ethics.

(4) The aforementioned exception regarding whether victim families have standing to complain:  For purposes of being rigorously ethical, we have to "impute knowledge" aggressively.  That is, we have to presume that everything Ms. Gorelick's partners and associates know or learn from the Saudis, she also knows and has learned.  Everything she knows and learns as a member of the Commission, we likewise have to assume she'll tell to her partners and associates who are working directly with the Saudis, and we further have to assume that those partners and associates will spill their guts to their Saudi clients.  If the Saudis indirectly and prematurely learned through Ms. Gorelick's participation in the Commission of some fabulous, incredible "smoking gun" piece of evidence, the early knowledge of which affected what they did or refrained from doing in the lawsuits brought against them by 9/11 victims, then arguably those victims would be disadvantaged by the courts permitting their opponents, the Saudis, to continue with Wilmer, Cutler as their counsel.  I've seen motions to disqualify filed on slimmer grounds.  But they usually are, and should be, denied — the indisputable prejudice to the defendant from losing counsel of its choosing is held to outweigh this remote and theoretical risk.  I'll also bet Wilmer, Cutler has a "Chinese wall" in place — policies designed to prevent Ms. Gorelick's files on her Commission work, for instance, from being accidentally made available to the other WC&P lawyers who are actively working on the Saudi matters, and forbidding them from talking with each other about those cases.  We're into "angels on the head of a pin" territory here.

Posted by Beldar at 04:16 AM in Politics (2006 & earlier) | Permalink | Comments (5)

Friday, August 08, 2003

Warning: Overpressurized African nations may EXPLODE into litigation

Mr. Taranto's column today also links briefly to an article from the Beeb's online World News Edition that's entitled "Niger may sue over uranium slur."  Typically (given its rabid anti-American agenda), the BBC leaves the strong impression that the Bush administration was not merely duped by forged documents regarding Saddam's alleged efforts to buy Nigerian yellowcake uranium, but that the Bush administration actually was guilty of forging the documents itself!

This report is attributed to a local FM radio station in Tenere, Niger, that purports to have been quoting the "Chairman of the opposition Alliance for Democracy and Progress."  (I'm impressed by this careful multiple sourcing, aren't you?  In my profession, backwards as we are, we'd call this "quadruple hearsay" — something to which of course only a curmudgeon would object.) 

Specifically, the Beeb sez the radio station said the Chairman said this:

"'The US forged a letter on Niger's behalf .... this is a shame.'" 

(The elipsis here was apparently inserted by the Beeb ... or maybe by the FM radio station ... or maybe by the opposition leader? — anyway, not by BeldarBlog.  One wonders, too, if this is a "we just omitted some text" sort of elipsis or a "the Chairman made a dramatic pause" elipsis.  Oh well, some things are unknowable by mere mortals who don't carry press credentials bearing the emblem of HRH Elizabeth II.)   

Thus the Beeb breathlessly reports, and leaves unchallenged, this statement of fact.  Indeed, although it's not quite clear exactly what later statement by the US the Chairman alleges to have been untruthful and injurious to the reputation of Niger, this constrasting "truth" — i.e., that the US government itself was the forger — appears to be the central premise of the anticipated lawsuit, which is expected to result in "heavy damages." 

If the Beeb takes this threatened lawsuit seriously, shouldn't we?  Someone warn John Ashcroft, quick!

If it were true that someone in the American government actually was the forger, of course, that would be substantially more damning than anything previously charged by the Angry Left in connection with "the Yellowcakegate Scandal."  But on July 14, Slate's Jack Shafer summarized the progression of press speculation and investigation throughout the spring and summer regarding the identity of the forger(s) in part four of an enthusiastic multi-part inquiry as to "Whodunnit" — and came up with this conclusion: 

In the four months since the uranium documents were unmasked, the press has made only halting progress in identifying the counterfeiters, which may help explain why the documents seemed credible in the first place.

This, mind you, was based on the work of such media as The New Yorker, the Washington Post, the New York Times, the Los Angeles Times, and CNN — not exactly a list of Dubya's closest friends and allies.

Still more recently, for Newsweek's July 28 issue, Michael Isikoff and Evan Thomas traced the tale of the forged documents in some detail — at the conclusion of which they reported that 

[t]he FBI is investigating the whole affair, NEWSWEEK has learned, trying to determine if the documents were just a con job by a[n African] diplomat looking for some extra cash or a more serious attempt by Iraqi nationals to plant a story.

So it looks like the Beeb has scooped all these other news agencies!  Why, I'll bet it was Karl Rove who forged those documents using some scissors and that creaky old photocopier just outside Dubya's office!  I can't wait to hear in more detail how the opposition party chairman in Niger and the local FM radio station there outdid both Michael Isikoff and the FBI on this story!

But what really tickled me, frankly, was the Beeb's subheadline for this story, which reads:

The government of Niger is being pressurised to sue the US for damages over allegations that Iraq tried to buy uranium from the West African country.

Later, near the end of the story, the Beeb also reports that the "US was pressurising the West African country to keep quiet on the issue."

Double-Pressurizing!  (We're obliged to spell it with the "zed" here in the Colonies, of course.)  The perfect political strategy when merely pressuring African government leaders isn't enough!  This looks to be to be a perfect job for ...

pressure.jpg

The Farberware Programmable 8-Qt Pressure Cooker!  Never mind John Ashcroft, someone find out whether Martha Stewart is still out on bail!

It's good to know we can always trust the BBC for eloquence and accuracy, isn't it?  And who sez the English know nothing about good cooking?  The French have nothing over the Beeb when it comes to cooking the facts.

Posted by Beldar at 09:38 PM in Law (2006 & earlier) | Permalink | Comments (0)

TypePad quirks

Admittedly I lack a basis for comparison, but so far I'm generally well-pleased with the features and functionality of TypePad, the weblogging service I'm using for BeldarBlog.  It's a brand new product and indeed is still in its "preview release" stage, but it's well beyond the beta-ware stage.  Most hearteningly, their customer service folks have been very quick and responsive in my dealings with them so far!

The most annoying kink that I've become aware of is that for some unexplained reason and at unpredictable intervals, my publishing an edit or a new post will prompt the material in the right-hand column (the "sidebar") to suddenly drop all the way to the bottom of the webpage, directly below the main text column — but (here's the quirk!) only on some settings of the Text Size options offered by my Internet Explorer 6.0 browser!  Sometimes if I reset to, say, "Large" text size, the sidebar suddenly heals itself and jumps back into position; but ten hours and three posts later, "Large" text causes the bug and "Largest" seems to fix it.

Thus do the gods of Coding and the Internet get their jollies. I'm sure the TypePad folks will either fix the problem or tell me what I've been doing wrong that's caused it.  Meantime, if it matters to you whether you see the sidebar at the side or at the bottom, click the View link at the top of your IE browser window for the pull-down menu, scroll down to the Text Size side-menu choices, and then experiment a bit with different text sizes.

On which general subject (broadly construed):  Anyone with technical or aesthetic comments about this website is welcome to share your hints and opinions with me, either via the Comment function or email.  Thanks in advance!

*****

Update (Sunday, Aug 10 at 5pm):  Yay for Brenna at TypePad tech support!  She's provided me with a custom fix that seems to have solved this problem.  I'm not sure whether this is likely to affect other TypePad users on a random, ad-hoc basis or if instead the problem is something that TypePad's programmers can make some universal coding change to prevent for other users — although if I follow how the fix worked, I suspect the former (I think this is probably an Internet Explorer issue rather than something directly within TypePad's control).  Even so, when and if the problem pops up for a few folks, the tech support group will now know the diagnosis and the immediate remedy for those few individuals.

A+ to the TypePad folks on this, I'm impressed!

Update (Tues Sep 2): The cause of the problem had nothing to do with TypePad per se.  I had a long text string without any spaces or blanks or hyphens at which IE could break the line.  That freaked it its table layout and dumped what normally would have been the sidebar to the bottom.  Moral:  In TypePad or otherwise, avoid that sort of long string without breaks in it.

Posted by Beldar at 08:53 PM in Weblogs | Permalink | Comments (0)

Dammit Jim, I'm a curmudgeon, not a flying nun, but ...

It's hard for a brand-new blogger not to go all gushy, a lá Sally Fields at the Oscars, when given a favorable quotation and cross-link by James Taranto — the distinguished writer of Best of the Web Today, the every-weekday column in the Wall Street Journal's fine online opinion website. 

For at least the last year, Best of the Web Today has been the one online source of news and opinion that I've made a conscious effort never to miss, and there's no doubt that Mr. Taranto's among the most widely read and most influential conservative bloggers online today. 

His first posting in today's column — which describes the large, well-coordinated, and unconvincing reaction of the Angry Left folks at MoveOn.org to his description of them last Tuesday as being "pro-Saddam" and "far left" — is an excellent example of the fact that, of course, not everyone agrees with him.  But Mr. Taranto then proceeds — methodically, honestly, ethically, with cool argument and wit supported by hyperlinked cross-referenced sources! — to respond to the most cogent of their criticisms. 

That's how he has built and maintained his credibility.  It's the same thing all good political opinionbloggers do, wherever they reside within the political continuum of the blogosphere.

That's precisely why people bookmark his site, sign up for his email alerts, include his URL in their links lists, and — the essential culmination of all of the above — that's why people actually read what he writes! 

And I'm confident that must include a sizeable regular readership who seek out Mr. Taranto's columns precisely because they often tend to disagree with Mr. Taranto's opinions.  Those contrarian readers are intellectually curious enough, and openminded enough, and enjoy the debate enough when it's well-reasoned and well-supported, to invest that time — because even when they still disagree, they'll likely have been entertained and informed by the process. 

I also read Andrew Sullivan's Daily Dish methodically and regularly, for example, for exactly this same reason — even though my own personal politics prompt me to disagree with probably sixty percent of Mr. Sullivan's positions.  If he hasn't always persuaded me, he's nevertheless sharpened my own thinking.  And yes, sometimes — to my surprise, but with my grateful appreciation — Mr. Sullivan has persuaded me to change an opinion.  Isn't that the "BINGO"-moment any opinionblogger craves?

I'm working on a piece about the similarities I see between good bloggers and good trial lawyers (note: the latter is a term that I define somewhat unconventionally).  My basic theme is that to be effective as either, you must be willing and able to withstand — and then to respond in kind to — a devastating barrage of conflicting facts and opinions, delivered dynamically in near-realtime, in front of an audience whose decision-making and opinion-forming both you and your opponents are attempting to influence. 

Mr. Taranto is indeed effective at doing just that, on a national stage, and consistently over an impressive period of time. 

That's why — even notwithstanding some fairly funny and ... umm, not entirely unpersuasive criticism that bloggers as a species tend towards being altogether too fond of getting high from sniffing each others' fumes — I consider it a genuine honor for James Taranto to have linked to my humble post from last night on Ahh-nuld.  Thank you, sir.  I shall continue to try to live up to your good example in what I publish on BeldarBlog.

Posted by Beldar at 07:47 PM in Weblogs | Permalink | Comments (0)

Thursday, August 07, 2003

Ahh-nuld goes for Total Recall!

Matt Labash's very funny, informative, and prophetic piece in the Weekly Standard last October, "Muscular Republicanism," is the source of most of what I know about Arnold Schwarzenegger.  Labash was right on the money in predicting that "Ahh-nuld" would parlay his fame from such movies as Kindergarten Cop, through a no-lose high-profile state-wide political initiative to support after-school programs (the just-enacted Proposition 49), into a serious role as a predator stalking California governor Gray Davis.

Now the speculation has become true and The Terminator has officially announced for the race to replace Davis in the upcoming recall election.  I'm glad Schwarzenegger is now officially the running man for a number of reasons.

  • First, a purely selfish one:  Just as all the gag writers and editorial cartoonists in the world are celebrating a new mother-lode of material, I feel blessed to have such a rich source of inspiration for this, my virginal act of political weblogging.  Arnold, baby, you've just become my "first" — I'll remember you for it through the end of days.

  • Second, from what I know of what he's likely to "stand for," I think I'm likely to approve of and agree with his politics.  Yes, of course, I fear that to some extent Arnold's probably a RINO — Republican-in-name-only — but hey, he's running in the brightest of the "blue" states, and he'll need to pick up at least a few votes from both the People's Republic of Berkeley and the Bay-Area Insanity Collaborative.  Remember, we're talking about the state known to its 49 peers as "La-La Land."  This is the state where ex-governor, now-Oakland mayor Jerry "Moonbeam" Brown is approvingly described by the state's largest newspaper as a "master of political reinvention," a "strong mayor," an "aggressive, hands-on, budget-slic[er]," and a "focus[ed] leader" — and he's thought to have upgraded his lifestyle by moving into a "converted Sears Roebuck outlet on Telegraph Avenue." 

  • Third, any scenario in which Dubya carries CA in '04 — and yes, we are talking remote x 10E1032 scenarios, I grant you — has to start with a willing suspension of disbelief, some heavy-duty special effects, and some kind of Republican in the Sacramento Governor's Mansion.  More cynically (if realistically), the chaos factor that "Gov. Arnold" would inject into the fight for California's 55 presidential electors in '04 might oblige Howard Dean, or whoever else turns out to be the Democratic nominee, to spend tens of millions in campaign funds in re-securing what conventional wisdom deemed one of the Democrats' dead-bang-certain states.  Couple that with possible "Rudy Giuliani-for-Senate" upticket coattails and some 9/11 recollections to create a strong battle for New York's 31 electors — well, then you've got the DNC spending where it really doesn't want to, at the expense of places where it needs to.  This strategy comes directly from Tsun Tsu's The Art of Campaign Finance.

Beyond that, I think Conan-the-Republican actually has a decent chance.  Californians seem pretty convinced that Davis has given them a raw deal, and voters are already convinced that Davis is the villain of this story.  There seems to have been a rare celestial alignment of power-shortages and budget deficits — along with the bizarre self-cannibalizing tendencies of the political system dictated by the California state constitution — to make this race into a real rundown

Arnold doesn't need to spend a cent on name recognition.  But all candidates advertise whether they need to or not, and Arnold has a substantial enough personal fortune to make his pockets jingle all the way to the bank.  If inclined, he probably can break all state fund-raising records and Michael Huffington's US-Senate race spending record without even fully flexing his left bicep.  Or maybe he'll stay hungry, run a lean and mean campaign, and thereby prove that he actually is the right guy to take an eraser to those big deficits after all!

Moreover, as Dubya, Rove & Co. can confirm, it's a great blessing when your enemies start off underestimating you because they think the voters will think you're stupid — and even better when your enemies think you really are stupid!  Stupid Arnold ain't. 

Early indications are that most potential Republican competors (including the main recall instigator and previous Republican front-runner, U.S. Rep. Darrell Issa) are either stepping aside to make way for, Bumper Sticker or else stepping up to back, the Last Action Hero.  Meanwhile a few middle-profile Democrats (including the current Lt. Gov. and current Ins. Comm'r) are giving way to their panic and/or their natural cravings for power to jump into the race — thereby bidding fair to divide and dilute the natural Democratic Party majority. 

But — what ho! and why am I not surprised? — Davis' crack legal team is flooding the courts before a single ballot has been cast.  Indeed, they're repeatedly citing and relying heavily upon the US Supreme Court's 2000 decision in — excuse me, I'm overcome by a coughing fit — Bush v. Gore.  (Skip to page 24 of 91 in the long .pdf file.)  Plus, Davis lawyers' apparently also want to make sure that if a voter first decides not to "throw the bastard out" on the top part of the ballot, the same voter can still "vote the bastard back in" on the bottom part of the ballot.  So we've moved from "Let Every Vote Count" to "Let Every Vote for Me Count Twice."  Thus does California madness seek to trump Florida madness — except that so far, it seems  not to be going Gray's way.

In their own version of pre-emptive war, the Dems threatened to sic the tabloids on Arnold even before he announced.  As long as Mr. Freeze doesn't lose his cool in response to red heat from the press, though, I doubt many voters will be either surprised or very turned off to learn that in his younger days, Arnold toked on a doobie or three while pumping iron, or that he's pinched a few apparently-willing aspiring actress tushes.  Again, we're talking California, people! 

My suggestions, Junior, are that in dealing with your attackers, you mix some low-key humor with some quiet dignity; be forthright; and, above all, avoid anything that smacks of cover-up or true lies now.  And oh yeah — play it safe by making sure you're always wearing clean undies rather than going commando.  I wouldn't put it past the Davis campaign to hire the UC-Berkeley Calband Clarinets to have you "pantsed" — although if they stop to think about it, the Davis folks probably don't want to initiate those comparisons.

So can Danny DeVito's twin win?  The short answer seems to be:  Yes, it could happen.  In fact, in California and in this race, anything could happen — even without direct involvement by Industrial Light & Magic, or the San Andreas fault, or the U.S.S. Ronald Reagan.

In any event, we can count on some fine political entertainment and amusement — in and out of the blogosphere, and regardless of either the end result of this race or its collateral damage on others.  As political theatre goes, the idea of an Austrian-born Kennedy-clan-spouse body-builder-turned-actor becoming the Republican governor of California is actually both more plausible and more exhilarating than the flying scissors-kick that ex-wrestler and now ex-governor Jesse Ventura put on the State of Minnesota. 

After all, in the very worst case for Ahh-nuld — say, a blow-out loss to another candidate, or even Davis hanging on by the skin of his teeth somehow — the entire world (not just the California electorate) will all be poised to shout right along with the big guy as he winds up his Teutonic-accented concession speech:  "I'll be BAAAAACH!"

I'm also tickled by James Taranto's tongue-in-cheek suggestion in today's Best of the Web that we amend the Constitution to permit Schwarzenegger to run for President in '08 as Dubya's successor.  It drove the Angry Left nuts when Dubya baited the US military's honey-trap by telling would-be terrorists in Iraq to "bring 'em on" — Dubya's Texas drawl simply ruled when delivering that line.  But The Terminator can deliver not only an ominous accent but a physical presence that bodes major mayhem.  Certainly Dubya, Arnold, and Clint Eastwood-as-Dirty-Harry collectively comprise the "Axis of Righteous Über-Taunters," or at least the "Masters of Super-Menacing Sound-Bites."  I very much want our President to be someone who can, when appropriate, take a blunt, pithy, and aggressive phrase, and then deliver it into the CNN microphones in just the utterly convincing way that will turn it into the shrieking, bed-wetting  #1 cause of recurring nightmares for even non-English speakers like Osama bin Ladin.

(Alas, poor Slick Willy could never quite get Gary Cooper's accent, tone, or manner down, despite his assiduous 30x study of High Noon.  Either you've got it, or you just don't; and if Slick ever did have it, I suspect some combination of Yale Law School and Hillary drummed it out of him.  Compare and contrast ObL's likely visceral reactions to "I did not have sexual relations with that woman, Miss Lewinsky!" versus "Hasta la vista ... baby!")

Finally:  Anything that even somewhat diverts the Establishment Press from yellowcake uranium and daily sniping in Iraq — the Confusion-and-Despair NewsDiet — will be welcome this fall.  For the country, for our military men and women still in harm's way, and even for the Democrats themselves on a purely political basis (as Slick Willy, for one, has apparently figured out), these are genuinely unhealthy and unproductive things to dwell upon.  If Arnold's race can perform a Jedi mind trick on the press and the pundits — "Those are not the stories you're looking for, you can go about your business, move along!  Look, over there, isn't that The Terminator?" — well, then, hooray for Hollywood!

UPDATE (Tues Aug 12):  The URL for the link near the top for Proposition 49 has been, at least provisionally, converted into AS' gubernatorial campaign website (very much "under construction" as of the moment, understandably) and no longer discusses Prop 49.

Posted by Beldar at 11:12 PM in Politics (2006 & earlier) | Permalink | Comments (0)