BeldarBlog

I'm almost speechless that Judge Pregerson isn't

This (no-cost registration req'd) — from today's LA Times about Southwest Voter Registration Education Project v. Shelley — made my jaw hit the floor:

The second round of arguments in the case [regarding the California gubernatorial recall election] will be heard Monday in San Francisco by a panel of 11 appeals court judges that is far more conservative than the group of three who ordered the election postponed. The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview.

And near the bottom of the same article:

"Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

Juxtapose those quotes with this one:

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

Canon 3A(6), Code of Conduct for United States Judges (emphasis added). 

Note 3 at the very bottom of this document confirms that this "Code governs the conduct of United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges."  (Emphasis added.)  And the official Commentary to Canon 3A(6) states:

The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A. This provision does not restrict comments about proceedings in which the judge is a litigant in a personal capacity, but in mandamus proceedings when the judge is a litigant in an official capacity, the judge should not comment beyond the record.

(Emphasis added.)  United States Circuit Judge Harry Pregerson of the US Court of Appeals for the Ninth Circuit sits in Los Angeles, California; is a member of the California bar; and served as a judge in the California state-court system before he was appointed to the federal district court bench by President Johnson in 1967.  A parallel proscription governs judges in the California state-court system:

A judge shall not make any public comment about a pending or impending proceeding in any court, and shall not make any nonpublic comment that might substantially interfere with a fair trial or hearing.... This Canon does not prohibit judges from making statements in the course of their official duties or from explaining for public information the procedures of the court, and does not apply to proceedings in which the judge is a litigant in a personal capacity.  Other than cases in which the judge has personally participated, this Canon does not prohibit judges from discussing in legal education programs and materials, cases and issues pending in appellate courts.  This educational exemption does not apply to cases over which the judge has presided or to comments or discussions that might interfere with a fair hearing of the case.

That's Canon 3B(9) of the California Code of Judicial Ethics (at pp. 12-13). 

Making comments like these about the likely disposition of an en banc rehearing and the composition of the en banc panel  to the LA Times is not remotely part of Judge Pregerson's "official duties."  Nor is a comment about the likely disposition of an appeal he just finished ruling upon "explaining for public information the procedures of the court."  Even if he's a voter, Judge Pregerson is not a "litigant in [his] personal capacity."

In short, this is a clear ethical violation — a stunning and simply indefensible one.  It is not a close call.  It would not be excused even if Judge Pregerson thought he was speaking anonymously or off the record.

It is just very badly wrong. 

No matter how much I personally agree or disagree with the panel opinion in the Shelley case (and I do strongly disagree with both its merits and the style in which it was written), my respect for the office Judge Pregerson holds and the bench upon which he sits simply makes me heartsick to read this.

I write and publish this conclusion with keen awareness of, but notwithstanding, my own general ethical obligation as a lawyer (albeit neither a member of the California bar nor that of the Ninth Circuit) to avoid bringing the judiciary into disrepute. Judge Pregerson's performing (and I use that word advisedly, in two different senses) in an extra-judicial capacity.  Nothing I or any other lawyer could say on the subject would be more than a gnat on a whale's back given what Judge Pregerson has just done.

(A sad hat-tip to Howard Bashman, who first noted this problem and has several related links about Judge Pregerson.)

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UPDATE (Sat Sep 20 @ 6pm):   Professor Eugene Volokh of The Volokh Conspiracy has also reported this story, generously including a link to BeldarBlog.  He concludes as I do that with respect to Canon 3A(6) of the Code of Conduct for United States Judges, judges "should follow the rules, and the rule here seems pretty dispositive."  While he finds it "hard to see the Pregerson statement as anything other than a Code of Conduct violation," he very charitably wonders "how important this provision (in its current breadth) is to the sound administration of justice" and suggests that Judge Pregerson's particular statement

does not seem to be particularly harmful on its own:   It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret.

But it seems to me that the likely harm — erosion of public trust and confidence in the courts, especially his own court — goes to the very core value that the rule is designed to protect.  Lawyers, reporters, and hotdog vendors can all speculate about the mini-en banc panel's composition and leanings.  But here's a judicial insider predicting, in essence, that his brothers on the bench will deliberately refuse to apply the US Constitution properly.  Everything he could possibly say is presumptively tainted by his exhaustive inside information about the case and the court.  His job duties can include neither cheerleader for, nor critic of, his own court and its judges with respect to a pending case — any pending case, much less one of overriding importance and public scrutiny like this one. 

Finally, one can only ignore the potential harm if one analogizes to the traditional defamation defense:   The defendant couldn't have been damaged because everyone already knew he was a damned horse-thief and a Communist anyway!  (Or an alien kitten eater ... whatever.)  I hate to think that as jaded and partisan and cynical as parts of the public are, the entire public is that way when it comes to our federal courts as an institution.  If they are, it's from the relentless assault on the court system's integrity that washes in and out through the popular press like waves on the beach.  And if so, friends and neighbors, this was no mere ripple or chest-high swell, but a tsunami.  [Prof. Volokh updates here re Mickey Kaus' defense of Judge Pregerson.]

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UPDATE (Sun Sep 21 @ 6am):   Hugh Hewitt posts on this matter in his (not permalinkable) September 20th column:

It is a shocking breach, but because Judge Pregerson is old, a veteran of unquestioned courage, and a liberal's liberal, it will go unsanctioned.  I refer readers who missed it to my WeeklyStandard.com column on Judge Pregerson from Thursday:   Judge Pregerson, like others on the Ninth Circuit, is not bound by the ordinary rules that apply to mere mortal citizens.

Mr. Hewitt is probably right, certainly at least with respect to public reprimand, and of course Judge Pregerson like all Article III judges has life tenure, subject only to the possibility of impeachment, which is certainly not going to happen.  One might hope that Ninth Circuit Chief Judge Mary M. Schroeder would take some private action.  And yet ...

By definition, the offense here was an exceedingly public one.  Private action, whether in the nature of counseling or wheedling or reprimand, does nothing to restore public trust in the ethics of the Ninth Circuit.  Indeed, uncertainty on the subject feeds the problem.  When you have such a clear and public violation, you ought to have a clear and public response.  Legal ethics, especially judicial ethics, ought to be scrupulously protected and enforced; episodes like this one just make them into mockeries. 

What Judge Pregerson has done is an assault on my profession.  How can any ethical lawyer not take it somewhat personally?

This whole episode leaves the bitter taste of ashes in my mouth.

During what remains of this weekend, I shall re-read the D.C. Circuit's 2001 decision in US v. Microsoft Corp., in which it concluded that US District Judge Thomas Penfield Jackson had violated Canon 3(A)(6) in conversations with the press regarding the remedy phase of the government's antitrust trial against Microsoft.  Microsoft succeeded in getting Judge Jackson disqualified from further proceedings, and the case went to a different district judge on remand.  (There's a theoretical chance, I suppose, that the issue of Judge Pregerson's disqualification might arise if the entire Ninth Circuit were to agree to re-rehear the mini-en banc eleven-judge panel's decision, but from what I've read, that's never happened and isn't likely to happen now.)  I also intend to read carefully, and think upon, 28 U.S.C. § 372(c).

UPDATE (Sun Sep 21 @ midnight):   I've discovered that 28 U.S.C. § 372(c) has been replaced by 28 U.S.C. §§ 351-364 as part of the Judicial Improvements Act of 2002.  However, I shall have no further public comment to make on this matter.  (Note:   I've edited this post since its original publication to change the reference to "Canon 3A(6)" instead of "Canon 3(A)(6)" in order to conform to the Commentary's format; and I've also switched the order of the discussion of the federal and state versions to lead with the former, since the latter probably hasn't applied directly to Judge Pregerson since he left the state-court bench.)

A shoe has yet to drop in Laredo, but another in Austin might echo there

Jim D of the Burnt Orange Report has the latest info on the redistricting map that's just come out of committee in the Texas Senate, along with some interesting comments about timing.

Meanwhile, I note that more than a week has passed since the Dems got poured out in Laredo, without the promised (and, in my judgment,
premature) Supreme Court appeal.

If I were a lawyer representing Plaintiffs Barrientos et al. in their Civil Rights Act lawsuit in Laredo, I'd advise them to withdraw their still-pending motion to amend their complaint, and certainly not to attempt a silly and hopeless Supreme Court appeal.  Why?

Because if I were Texas Attorney General Greg Abbott, the same afternoon that Gov. Perry signs whatever redistricting plan eventually passes, I'd use that pending lawsuit as a procedural vehicle to immediately file a counterclaim for declaratory judgment that there's no Voting Rights Act of 1965 violation — basically shortcutting the inevitable litigation by as much as a week or two, and taking advantage of a very smart,  pretty conservative, and obviously quick-moving three-judge panel that's already set up and ready to go.

How can our armed forces continually find such men and women?

According to news reports, because of Hurricane Isabel,

[a]t Arlington National Cemetery, soldiers who guard the Tomb of the Unknowns were given — for the first time ever — permission to abandon their posts and seek shelter, Superintendent John Metzler said. But they stood guard anyhow.

The answer to the title question, of course, is that they recruit in America.  And these men and women volunteer, and they serve, and they do these things because they're Americans.  They are simultaneously ordinary and extraordinary beyond belief.

Raising the Bar

Mellow-Drama is starting up a new project called "Raising the Bar" as a law-focused "Carnival of the Vanities."  Should be fun!  (Hat-tip to the Curmudgeonly Clerk!)

En banc granted in Shelley

No real surprise.  The language is probably standard.  That the rehearing was on the self-raised ("sua sponte") motion of one of the active judges of the Ninth Circuit was easy to infer from the clerk having contacted the parties Tuesday to ask their position on rehearing — that wouldn't likely have happened unless one judge was already ready to vote for rehearing. 

What I don't know is whether a majority had to agree to the order indefinitely staying the mandate before the rehearing had been approved, or if that's something that, say, the chief judge could do on her own.  Regardless, though, en banc courts of appeals generally don't grant rehearings to reaffirm what one of their three-judge panels have done.  By a substantial margin, the odds now favor the election taking place on October 7th as originally scheduled.

Predictably, Howard Bashman's How Appealing has all the good goop (here, here, here, here, and here, for instance) about who's on the less-than-full-court en banc panel (a bizarre practice) and what that's likely to mean.

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UPDATE (Sat Sep 20 @ 12:30am):   The NYT agrees with and quotes Mr. Bashman on the odds of reversal, and quotes Prof. Eugene Volokh (he of conspiracy fame) to boot.  Power to the blogosphere!  WaPo, by contrast, mostly quotes politicians.  Who ya gonna believe — bloggers on the one hand, or Gray Davis and Al Gore on the other?

Tea leaves in San Francisco

From the end of a short order filed Tuesday in the Shelley case to set a briefing schedule on the question of "whether or not this case should be reheard en banc":

Issuance of the mandate will be stayed pending further order of this Court.

The panel opinion (page 65) had already directed that the mandate (essentially the judgment of the court, as opposed to its written opinion) issue "forthwith" — meaning it thought its decision ought to become binding and effective before the normal amount of time for parties to seek en banc or Supreme Court review.  But the panel had also stayed the mandate for the lesser period of seven days "to allow the parties to seek further relief from this decision, if they so desire."  The effect of those two directions was to compress the timetable for further appeals. 

So the en banc court has already taken away this timing issue from the panel.  Hmmmm.

It could be that the full Ninth Circuit simply wanted to make sure it had beyond next Monday to vote on whether to rehear the case en banc.  But an indefinite stay of the panel's mandate is pretty strong stuff.  It's exactly what happens when a full court of appeals votes to rehear a panel opinion en banc. 

And I think that's what's going to happen here — very likely without further oral argument, probably without further briefing, and very possibly with a summary opinion from the en banc court early next week simply announcing that it's vacating the panel opinion, with a fuller written opinion to follow, so that everyone can continue making feverish preparations for the October 7th election.

Unrivaled judicial arrogance: Southwest Voter Registration Education Project v. Shelley

Even the LA Times (no-charge registration req'd) says the cure is worse than the disease.  That puts me with unaccustomed company, but I'll try to add to the stylistic criticisms that I blogged tentatively in the wee small hours yesterday to explain why I think the decision of a three-judge Ninth Circuit panel in the California recall case, Southwest Voter Registration Education Project v. Shelley, is so badly wrong. 

Bush v. Gore this ain't

In Wednesday's NYT, liberal Yale law professor (a redundancy) Bruce Ackerman, author of a book about the Supreme Court's 2000 decision in Bush v. Gore, urges the full Ninth Circuit to overturn the Shelley panel.  While I agree with Professor Ackerman's conclusion, and also with a similar op ed in the Wall Street Journal by Harvard Law Professor Einer Elhauge, I think Robert Alt had a much better explanation of why Bush v. Gore has been misinterpreted and misused by the Shelley panel:

Bush v. Gore was not about the use of punchcard ballots, even though Florida counties, like California, used both punchcards and optical-scan ballots. Rather, the Equal Protection claim in Bush v. Gore concerned the way in which the recount was implemented. The Court made clear that different counties could use different systems for carrying out elections, but they could not treat similar ballots differently:

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

Put simply, the Bush v. Gore ruling was not based on the fact that the counties used different voting systems. Rather, the Equal Protection claim rested on the fact that the Florida supreme court had forced a recall without providing safeguards — a brash act which led to similar punchcard ballots being counted differently even within the same county. It was this act of treating similar ballots differently which triggered the Equal Protection violation, not the fact that punchcards were used in one place and not in others.

I have nothing to add to this and doubt I could have said it as well.  But I do have two other substantial  criticisms of the Shelley panel's opinion.

Appellate courts aren't supposed to be factfinders

First, the Shelley panel acted as if it were the trial court — that is, as if it, and not the district court, had the duty to sort through the evidence and decide what facts would likely be established in a full-blown ultimate trial-on-the-merits in this case.  The panel therefore felt itself free to accept as factual the most extreme predictions of the witnesses who testified in the district court's proceedings — hence the startling, and almost certainly exaggerated, statement in the third sentence of the opinion that the "inherent defects in the [punch card] system are such that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all." 

In appeals from preliminary injunction hearings, appellate judges aren't free to substitute their own view of the facts for the findings of the district court unless the district court's factual findings were "clearly erroneous."{note1}  The Shelley panel cited this rule at page 15 of its opinion, but then refused to actually apply it — and indeed, clearly violated it.  References in the panel's discussion to the findings of fact made by the district court are extremely rare.  That in itself is a blatant tip-off that the panel is selectively picking and choosing evidence from the record without regard to whether the district judge found that evidence to be persuasive. 

But such few references as there are to the district court's factual findings indicate that the panel not only rejected them without cause, but then proceeded to build further inferences upon disputed factual assertions that were rejected by the district court.  At page 26, for instance, the panel simply dismisses the district judge's factual finding that voter education efforts could have the effect of lowering the error rate, saying "Plaintiffs effectively countered this unsupported assertion with statistical evidence."  Well, folks, I'm sorry, but if there's competing evidence, it's for the district court to resolve the conflict — it's not the court of appeals' job to decide whether the Plaintiffs "effectively countered" or not. 

My first hint that this was going on was on page six of the opinion when I read that "just as the black and white fava bean voting system of revolutionary times was replaced by paper balloting ...."  Eh?  This sounds like a law clerk who's been looking for his facts on Google, not from the trial court record.  And not too carefully, either:   fava beans were used for voting in ancient Greece.  But I seriously doubt that proof about fava beans, either classical or revolutionary, was anywhere amongst the evidence submitted in the district court. 

Another clue was when the author of the Shelley panel opinion used an out-of-context factual statement from another case as if it were evidence in this one:   "As the Supreme Court observed in Bush:   'This case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter.'"  Well, yes, that may have been among the findings of fact in the Bush case two years ago — but that's not part of the record in this case, and you just don't decide appeals by plucking facts hither and yon from other appellate decisions. 

Can you imagine reading this from an appellate court?

We note that in Smith v. State, there was evidence that the murder weapon used by the defendant in that case, a Smith & Wesson .45-caliber revolver, had a 'hair trigger.'  In this appeal brought by Defendant-Appellant Johnson, although there was no evidence introduced regarding pistols or triggers during his trial, we therefore conclude that all Smith & Wessons have hair triggers, that Johnson must have known of that, and that he therefore intended to kill his victim and accordingly deserves the gas chamber.

This is not the way appellate courts routinely do their business, thank goodness!  And the out-of-context, improper cross-use of facts in this manner further suggests an eagerness to overuse the Bush v. Gore opinion to the point of mis-use — perhaps out of a sense of partisan glee (as Dahlia Lithwick has suggested in Slate), rather than reverence for and adherence to legal precedent from the Supreme Court.

The circuit judge for whom I clerked often reminded us, "Yes, we're smart, boys and girls, but we didn't see the witnesses and we didn't hear the evidence.  The district judge is smart too, and he was at the trial!  Let him do his job, and make sure we stick to our own!"  Strict observance of and adherence to the different functions of trial courts and appellate courts is a hallmark not just of judicial conservatism, but of judicial professionalism — and that's a quality which is entirely missing from the Shelley opinion.

This lack of deference to the factfinding role of the trial court is an arrogant mistake, one that reveals a result-oriented panel.  And this in turn explains in part how the Shelley panel went so far wrong in the various "balancing tests" that injunction law prescribes.  If you slant the facts to accept the worst-case scenario offered up by one side, obviously it's going to skew any balancing exercise. 

I don't have access to the trial court's record, of course, nor have I seen whatever written findings of fact and conclusions of law the trial court issued.  But I suspect that the trial court concluded that the margin of error likely to occur with punch card machines — especially after the promised voter education campaign ("Here's how to avoid leaving hanging or dimpled chads") — was not significantly different than that which would be likely to occur with other methods, especially if those methods involved new technology being used for the first time.  (Prof. Eugene Volokh has pointed out the likelihood of problems with such other methods.) If that's the factual basis you're proceeding from, then the need for a mind-bogglingly disruptive injunction seems considerably less acute.

Constitutions do more than "highlight" the public interest for all-knowing federal courts to follow or not at their whim

Which leads me to my second main criticism:   the panel values its own views of what's important over that which the people of California — speaking through their most solemn and powerful legal voice, their state constitution — have declared to be important.

The panel pounces on the fact that as a result of a settlement in prior punchcard litigation, "the State has conceded the deficiencies in the systems and agreed to remedy the deficiencies by the next statewide election."   Well, yeah — and the deal cut to resolve that challenge was that in the meantime, punch cards would be okay.  Later in the opinion, the panel jumps through some hoops to declare that compromise meaningless, but first (at pp. 31-32), the panel decides that the schedule hardwired into the California Constitution just doesn't much matter:

The only potential justification [for proceeding as scheduled] is that the California Constitution requires that a recall election be held within sixty days of certification by the Secretary of State....  [But had] the recall petition been certified just a month and a half later than it was, the recall election would have been scheduled to take place not within sixty to eighty days as provided in the California Constitution, art. II, § 15(a), but instead in March 2004 under the California Constitution, art. II, § 15(b).

Well, yeah, and if frogs had wings they wouldn't bump their butts on the ground every time they jump.  Woulda, coulda, shoulda, mighta — but didn't.   Painting imaginary scenarios, and then saying, "Well, what we're ordering wouldn't be so different from that," isn't good judging.  But the panel's disdain for the actual doesn't stop there.

The panel has to let us know (at page 52) just how smart it is, and just how stupid the voters who approved this schedule as part of the California Constitution were:

The district court placed dispositive weight on the public interest in complying with state election law....  However, the district court erred in treating this state interest as if it were a large part of the public interest.  An abstract interest in strict compliance with the letter of state law is a strong state interest, but it is a less important public interest in the context of challenges to state law under the equal protection clause of the Fourteenth Amendment.  Of course, the public has an interest in lively public debate, being informed of political issues, orderly elections, speed in resolving challenges to officials, confidence in fair elections, and the like, and many state election laws are designed to promote these interests.... But it is the principles and spirit of these state laws, not necessarily the letter, that deserve weight in examining the public interest.

(Italics added by Beldar.) Beware!  Beware the lawyer — much less the judge — who denigrates the letter of the law!  Laws have letters.  Laws are written to be precise and meaningful and something people can rely upon, especially when they're put into constitutions.  Harvard's Larry Tribe, writing an op ed in the Wall Street Journal, calls the sixty-day requirement of the California Constitution  "a purely arbitrary, artificial deadline."  Well, yes, if you're a philosopher-king who's smarter than everyone else, I suppose all deadlines do seem arbitrary and artificial. That's one reason we don't have kings in this country — we have constitutions instead.

A bit later (at page 54), the Shelley panel finally confirms just how meaningless all that "letter of the law" stuff really is:

The appropriate examination of the public interest in this context will instead place heavy weight on the principles underlying state law.  Those principles of fair and efficient self governance belong in a court's assesment of the public interest regardless of the presence of state elections laws motivated by them.  State election law can merely highlight for a court which of those democratic principles the people of a State hold in particularly high regard.

(First italics by the Shelley panel, second italics added by Beldar.)  Hello?  "Can merely highlight"?!?  Are you listening out there, world?  Let me translate (megaphone please):

We federal judges know what you really want.  We federal judges know what you really need.  We federal judges know what you really meant.  We federal judges know what is really good for you!  When you say in your state constitution "sixty days," we know you didn't really mean sixty days.  You really meant "sixty days (unless three unelected guys with lifetime appointments decide six months would be better)."  Any statute you pass, any constitution you write, any petition you sign, any vote you cast — these, at best, are "merely highlights" for us to consider, for us to reject or follow at our whim.  All your base are belong to us!

Fetch these judges some litter-bearers, please, and have the slaves begin to peel some grapes!  They've shown us who's boss on the Left Coast, and it's definitely not the voters.

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{note1}See, e.g., Vendo Co. v. Lektro Vend Corp., 433 U.S. 623, 662 (1977); Rucker v. Davis, 237 F.2d 1113, 1118 (9th Cir. 2001) (en banc), rev'd on other grounds, Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002); Valley v. Rapides Parish School Bd., 118 F.3d 1047, 1051 (5th Cir. 1997).

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UPDATE (Thu Sep 18 @ wee small hours):   I just found the district court's 29-page opinion, which I'll take a close look at tomorrow.  Dollars to donuts there are fact findings in it that the panel opinion ignored.

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UPDATE (Thu Sep 18 @ 8:30am):   It's a good thing no one took me up on my dollars and donuts bet.  The district court combined the plaintiffs' applications for temporary restraining order and for preliminary injunction into one proceeding and apparently made its decision without an evidentiary hearing.  Its opinion is, frankly, extremely disappointing.  It contains no explicit findings of fact, and indeed its discussion of the facts was substantially less detailed than that of the Ninth Circuit panel.  With all due respect, this district judge could use some pointers on "how to write decisions so as to avoid reversal" — it's something of an art form, but not that hard to master. 

That doesn't make what the panel did with the facts right, especially when it strayed outside the record of even the written evidence (affidavits/declarations and attachments) that were submitted in the trial court.  But the district court did neither the parties nor itself any favor by failing to hold an evidentiary hearing — even a highly compressed one- or two-day hearing would have been better.  This just isn't a "pure law" case, and it's bad lawyering and bad judging to try to decide facts without live testimony that's subject to cross-examination.

Senators on new meds?

It's hard to tell how things stand in the Texas Senate right now.  Tuesday was apparently a big improvement over Monday, according to the Austin American-Statesman:

And on the second day of the third special session, without the raucous crowd that a day earlier had egged one side on and aggravated the other, peace and love reigned in the Texas Senate.

Tuesday's outbreak of interparty peace, including movement toward dropping fines imposed on the Democrats during their 45-day boycott, shifted the focus to GOP intraparty fighting that could become the biggest obstacle to new congressional maps.

"I think they changed people's medicines last night," Sen. John Whitmire, D-Houston, joked after watching Monday's opening day mayhem melt into Tuesday's love fest.

But in press reports about today's action, there's no visible progress yet — either on solving the Midland vs. Lubbock issue that's blocking intra-Republican agreement on a map, or on the disposition of the fines and sanctions that are pending against the truant Dems.  As to the latter:   guys, I'm willing to negotiate on the royalty fee for the Beldar Peace Plan.  Try it, you'll like it!  Win-win deals are hard to find.

Meanwhile, an incredible story in the Laredo Morning Times has this report:

The Texas Ten are claiming they are the victims of "oppression," and are requesting an investigation by the Webb County District Attorney's Office.

District Attorney Joe Rubio confirmed Tuesday that he assigned two prosecutors to investigate alleged official oppression that could lead to criminal charges.

Rubio said the investigation stemmed from a request on the part of attorney Carlos Zaffirini, husband of state Senator Judith Zaffirini (D-Laredo) and hired counsel for the Texas Ten.

Apparently hell hath no fury like an SUV-driving senator scorned.  Let's hope DA Rubio was only humoring his powerful husband-and-wife constituents, and will have the good sense and integrity to treat this like your basic flying saucer abduction claim.

Also, the Houston Chronicle has published a hysterical (in both senses of that word) op-ed by one Glenn W. Smith, whom the Chron describes as a "consultant to MoveOn.org and The Rockridge Institute in Oakland."  Gasp, he's "currently writing a book detailing the ways our political practices are destroying freedom and democracy."  Mr. Smith is elsewhere described as "managing director/consultant" to Rockridge, which describes itself as a "progressive" thinktank made up of Berkeley and UC-Davis professors (fair and balanced, I'm sure); he may or may not still live in Austin, but he doesn't hesitate to speak for all Texans in calling for disruptive public demonstrations on the floor of the Texas Senate while it's in session.  He also can't tell the difference between majority-rule voting by (small-d) democratically elected legislators of both parties and "the Government of the Bully."  I'm pretty sure this is a guy I couldn't have a friendly beer with, and whether he's actually moved to California or not, we need this kind of commentary exactly as much as the Russian people needed the Kaiser to ship Lenin back to them in 1917 in the infamous sealed railway car.

Finally, with more of the "it's all about racism" meme that I've recently debunked:   MoveOn.org is now airing race-baiting TV commercials in Spanish, complete with ominous music, which claim that "George Bush and his friends in Texas want to take away the voting power of 1.4 million Hispanics and other minority voters.  And put us in Republican districts where our votes wouldn't matter."  Minority votes only matter if they're cast for Democrats, doncha know?  Could there be any more racist presumption?

Weblog ethics

When I first started blogging and was looking for pointers, I came upon a fine article about Weblog Ethics by Rebecca Blood, who blogs Rebecca's Pocket.  I've since seen many other favorable references to her suggested rules and commentary, which are republished from her book, The Weblog Handbook: Practical Advice on Creating and Maintaining Your Blog. 

I believe those rules are worthy of public endorsement — hence the small graphic (thank you, Rebecca!) near the bottom of my sidebar, "Blogging by the book," which is linked to her site's page on ethics.  Rebecca's commentary is definitely also worth reading, but the bare rules are:

1. Publish as fact only that which you believe to be true.

2. If material exists online, link to it when you reference it.

3. Publicly correct any misinformation.

4. Write each entry as if it could not be changed; add to, but do not rewrite or delete, any entry.

5. Disclose any conflict of interest.

6. Note questionable and biased sources.

I encourage other ethical bloggers to demonstrate their endorsement of these rules, perhaps by adding a linked button graphic to your sidebar or even just a text link.

Short rave about TypePad

TypePad has yet to disappoint me in any significant way.  Promised new features, like domain mapping, have appeared frequently and pretty much on-schedule.  There are many thoughtful features — for instance, the ability to turn comments and trackbacks on or off with respect to each single post — which you wouldn't ordinarily expect from a brand new service.  Their documentation is good and getting better.  It's still sometimes thin on advanced matters.  But that thinness is more than compensated for by fabulous, friendly, patient, personal, and quick Customer Support — which continues to be my favorite thing about TypePad.