Monday, February 23, 2004
Beldar as Polonius: Roe redux in the Fifth Circuit
I did a frenzy of blogging over the weekend, most of it in comments elsewhere rather than on my own blog. What can I say? I like to argue, especially (but not always only) when the topic's something I think I know something about. Hence, when I saw a post over at Burnt Orange Report entitled "This is why the Circuit Courts Matter," it was like someone waving a stalk of corn under Bevo's nose. I like that blog and I like its bloggers, even though we're on opposite sides of the political spectrum. This particular post mentioned the Bill Pryor recess appointment to the Eleventh Circuit, which I'd just been blogging about myself, but its main focus was on the very curious story of how the then-pregnant and pseudonymous "Jane Roe" of Roe v. Wade fame is now trying to reopen her original case. The specific news item prompting the post was a report that the Fifth Circuit had agreed to hear oral argument on her appeal from the decision of the district judge who'd thrown her case out of court.
So I mustered up a small head of steam, adopted my most reasonable, mildly humorous tones, and waded into the comments on the post to explain that the Fifth Circuit's decision to hear oral argument really isn't as big a deal as the mainstream media has made it out to be. Unlike the Supremes, the Courts of Appeals don't get to pick and choose what cases they must resolve; they can't duck a ruling altogether. And while they can and do resolve a large percentage of their appeals without oral argument, there are all sorts of reasons why a case might get put on the oral argument calendar that have nothing to do with the likelihood that the Fifth Circuit is ultimately going to reverse the district court's decision.
And as comments, especially on political blogs, tend to do, things began to roll. I got into a bit of a debate. My one comment became three, then five, then I dunno, I've lost count. My arguing partner in the comments is convinced that the oral argument calendaring of the case isn't as meaningless as I'm insisting; he smells the proverbial Vast Right-Wing Conspiracy, perhaps as implemented by the Fifth Circuit's reputedly most conservative active-status judge, the Hon. Edith Jones. But by the end of the weekend, I felt like the commenting fever, at least on my part, had about run its course. By that point I was feeling a bit of a blogging hangover, so to speak, but not a bad one. I was thinking myself to have been a bit like Polonius in Hamlet (Act 2, Scene 1) when he's been dispensing all that good advice maybe a bit stuffy and pompous, but hey, I've got gray hair and I earned it, and Fifth Circuit procedures really are a subject I know something about from my clerkship days and as a practicing lawyer.
So I'm about to leave the office today and, as is not unusual on a weekday when 5:00pm has come and gone and the phones have quieted down, I flip through my Favorites to skim a few of the blogs I regularly read.
Suddenly, I'm not Polonius calmly dispensing sound advice! Instead, I'm what? what's that coming through the curtain?!? A blade? Or is it ... OMG, it's the amazing and seemingly omniscient Howard Bashman of How Appealing, who reports that the oral argument for the Roe redux appeal was calendared to be heard by a panel that included not only Judge Jones, but also controversial recess appointee Judge Charles Pickering, about whom I've also recently blogged!
As I drop to my metaphorical knees and clutch my chest, my eyes track down to Bashman's update. No, Judge Pickering now mysteriously appears to be off the panel, and ... and ...
What's this? Another update?!? Arrgh, the blade twists in my chest! According to the update, the Roe redux appeal has been de-calendared! And by order of the Hon. Edith Jones to boot, it seems! (Judge Jones' blade has even stricken the motions by "Concerned Law Professors" to file an amicus brief and participate in the argument, so I may not be the only wounded Polonius staggering around today.)
I thought my lengthy comments on Burnt Orange Report had covered, one way or another, just about every procedural possibility that could have occurred with the handling of this appeal. But no the one possibility that I hadn't discussed, or foreseen, was de-calendaring from the oral argument calendar. I confess that I'm entirely unfamiliar with this unusual process. I'm guessing that the amicus motions went to Judge Jones as the senior active-status judge on the panel that had been set to hear the oral argument, and I'm likewise guessing that in that capacity perhaps sua sponte? she had the ability to unilaterally de-calendar the case.
With considerable understatement perhaps he doesn't realize that I'm bleeding all over the floor here, me and the Concerned Law Professors! Bashman writes that "the plot thickens." Actually, perhaps it's not understatement, but altogether too much melodrama for those who're all too ready to believe that the VRWC has already largely succeeded in its plot to take over the courts, the government, the world!
Gasping, Beldar-Polonius crawls from behind the curtain as Bashman further solemnly intones, "Presumably the court will issue a ruling in the not too distant future on the merits of the appeal."
"Yes," I sputter, "presumably so!"
But Polonius, after all, was not the intended target of Hamlet's blade (Act 3, Scene 4), nor really even a rat, but just a bit player, a poor fool behind the curtain. And Hamlet ended in tragedy, its eponymous hero slain along with the wicked King. How shall this drama end? In tragedy or triumph, and for whom?
As Beldar-Polonius drags his stricken shape along the floors of Elsinore Castle or are these the marbled floors at 600 Camp Street in New Orleans? my eyes grow so dim, my metaphors so mixed! he mumbles to himself: "Wouldn't it be a cosmic hoot if (as seems likely) the removal of Roe redux from the oral argument calendar merely presaged the summary affirmance of the district court's opinion, without oral argument, rather than a vast right-wing conspiracy to overturn Roe? And if so, wouldn't it be ironic if that sword is in fact wielded by Judge Jones?"
Someone get me a few flights of angels to sing me to my rest. This is making my head hurt.
Other weblog posts, if any, whose authors have linked to Beldar as Polonius: Roe redux in the Fifth Circuit and sent a trackback ping are listed here:
Great post. I was one of those lunatics who finds the law interesting enough to follow your argument with the commenters at Burnt Orange Report, so I logged on to Beldar with bated breath.
In any case, any blogger who bandies Hamlet and adopts the persona of Polonius is worth reading.
We need more blogging "crusty trial lawyers."
Also, I saw in your "about me" section you were previously employed at Baker Botts, and I was wondering if you'd had a chance to read this, which I found exceedingly interesting.
Thanks for the kind words!
I did read that story in today's Chron, and found it fascinating! Not many people know of Judge Peter Gray or that the firm was originally "Gray, Baker & Botts." I have a vague recollection of having once learned that Gray was related by marriage to the firm's other founding partners, but I can't remember if it was to Judge Baker or to Colonel Botts. (I will also admit that I sometimes have to stop and think a minute, though, before I can remember which came first, "Judge Baker" or "Captain Baker," and how many generations each was removed from current partner James A. Baker III.) The whole subject of frontier lawyers in pre-Civil War Texas interests me, in fact, and its deep roots in, and close connection to, Houston's history were among many other factors that attracted me to Baker Botts after my judicial clerkship.
I had seen some news recently about the fact that "Jane Roe" (Norma McCorvey) will be getting her case heard in court, or something like that.
We need to have that decision overturned.
I haven't really read this entry, but I see Bill Pryor's appointment mentioned. I saw earlier today this World Net Daily news item about how the Pryor appointment has divided conservatives, since Pryor was the one who went against Judge Roy Moore. It is upsetting how some of the conservatives and neoconservatives have chosen to take a stance against the heroic Judge Moore. I inserted an update into one of my past blog entries (the one on the New Hampshire primary), linking to a World Net Daily article raising the possibility that Judge Moore may run for President in the 2004 general election, as the Constitution Party's nominee. It would be neat if someone challenges President Bush, who has been a disappointment to both fiscal and social conservatives.
When I have the Comments function open, as I've said before, dissenting viewpoints including both those from my political left and my political right are welcome so long as expressed with civility. Yours passes that test, Aakash, but barely. If you "haven't really read this entry" or, likely, my much longer one about the Bill Pryor recess appointment that I posted over the weekend your comments aren't likely to be apt or well-informed.
Intending no disrespect to your opinions, but lest someone infer otherwise from my silence, however, I want to point out that I, for one, do not view former Alabama Supreme Court Justice Roy Moore as "heroic" in any sense. There were reasonable arguments that could have been made in federal court to support the Ten Commandments display arguments that had a chance of winning under existing caselaw but Moore rejected then-Attorney General Bill Pryor's offer to do that. Instead, he insisted on hiring lawyers of his own who made outlandish, radical arguments that had no prospect of success but read great in the far-right press. Moore then defied a federal court order after having exhausted all his remedies through and including the US Supreme Court. I believe that pseudo-martyrdom was the precise result Moore desired. In my opinion, Moore made himself into a scofflaw and a demagogue, unfit to be a judge, and of questionable fitness even to remain a lawyer. I'd no more vote for Moore for President than I'd vote for the mayor of San Francisco.
With regard to Roe, my linked comments over on Burnt Orange Report expressed my opinion perhaps not so clearly expressed in my post here that as a matter of legal procedure, Ms. McCorvey's attempt to reopen her original case 30 years after it was decided by the Supreme Court is unquestionably untimely. Regardless of one's views on the abortion controversy or Roe, no serious lawyer can doubt that. The district court's dismissal of her effort should be, and I believe will be, affirmed by the Fifth Circuit, probably on the basis of the solid opinion written by the district judge.
(5) Jonathan Sadow made the following comment | Feb 28, 2004 2:47:13 AM | Permalink
Your experience with Burnt Orange Report has perhaps impressed upon you how rare honest debate with the Left is becoming in this country. They're letting their emotions inform their reason, with disastrous consequences to their arguments. Trying to engage in rational discourse soon deteriorates into an exercise of tossing pearls before swine. As you also discovered, when all else fails, they can appeal to the Vast Right-Wing Conspiracy to dispose of any facts that might inconvenience them. In fact, I'd say that the Democrats have the black helicopter crowd all sewn up in the next election....
Can you imagine what would happen if the 5th Circuit actually gave her relief? Obviously, the Supremes would knock that shizzle out of the park.
"Bush decries 'Nine Judicial Activists' for reversing Fifth Circuit ruling on abortion"
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