Monday, April 19, 2004
US Supreme Court votes 9/0 to AFFIRM first Texas redistricting case, but the Houston Chronicle claims the Court "refused to hear" it
In the space of a two-sentence lede in a story tonight headlined "U.S. Supreme Court hands defeat to Texas Democrats," the Houston Chronicle's R.G. Ratcliffe managed both to demonstrate his liberal bias and to completely misreport what the Court did today about Texas redistricting:
The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership ran over them in a push to pass congressional redistricting last year.
The high court refused to hear a three-judge panel decision against Senate Democrats last year when they unsuccessfully sued to halt a redistricting debate.
"Ran over them"? And some people seriously ask, What liberal media bias?
If this were an op-ed, or even something labeled "news analysis," then that sort of value judgment might be acceptable. An equally slanted version of this sentence from the opposite (that is, conservative) perspective might read:
The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership finally rescued the principle of majority-vote representative democracy from legislative anarchy in their efforts to meet the Texas Legislature's constitutional duty to pass a congressional redistricting plan last year.
I think that's actually closer to the truth. But how about something that's factual without implying any value judgments or grinding any political axes, like this:
The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership overcame the Dems' lengthy procedural efforts to block a simple majority-rule vote in the Republican leadership's push to pass congressional redistricting last year.
Having demonstrated his obvious political bias in his choice of loaded language for his first sentence, however, Mr. Ratcliffe proceeded to completely misreport what the Supreme Court actually did!
Any first-year law student who's studied basic citation form or gotten a passing grade in his federal procedure class — and certainly any of the fine lawyers who are available, even eager, to help explain things to the Chronicle staff — would take one look at what the Court actually wrote today and immediately recognize that this language is emphatically not a "refus[al] to hear a three-judge panel decision against Senate Democrats last year":
Appeal — Summary Disposition
03-756 BARRIENTOS, GONZALO, ET AL. V. TEXAS, ET AL.
The judgment is affirmed.
This item was at the very top of today's list of decisions — all by its lonesome under a bold-face heading. You'd think that alone would give a reporter who gives a damn about getting his facts straight some sort of clue that Barrientos v. Texas wasn't a "usual sort of 'appeal'" — but that apparently didn't faze Mr. Ratcliffe for a moment.
Indeed, ff you scan down through the fifteen pages of other orders also issued today, you'll soon come to a long list of hundreds of ordinary (non-Voting Rights Act) cases that the Supremes did "refuse to hear" — that is, cases in which the Justices exercised their discretion to refuse to review those cases on their merits. All of those cases were effectively ended by the Supreme Court's denial of a petition to issue a "writ of certiorari" — that "writ" being the technical name of the type of Supreme Court order it issues when at least four Justices have agreed to hear what's commonly (if inaccurately) called an "appeal" from a lower court (usually one of the United States Courts of Appeals, a/k/a the "Circuit Courts" like the Fifth Circuit or the Ninth Circuit). Any first-year law student learns that "cert. denied" simply means that the Court refused to consider the merits of the court below's decision. A denial of certiorari therefore has utterly no precedential value; it doesn't mean the decision of the court below was right or wrong. It's not only mistaken, but unethical for a lawyer to suggest otherwise.
Unlike all those other cases resolved today, Barrientos v. Texas wasn't a discretionary appeal made through an application for a writ of certiorari, but — as I've repeatedly blogged before (in the most detail, with links to the statutes, here and here) — an "appeal as of right" from a Voting Rights Act three-judge panel, a type of decision that Congress, by statute, requires the Supreme Court to fully review on its merits. In other words, by statute, all nine Justices of the Supreme Court had to vote — not on the question of "Do we want to hear this?" but on the very different question of "Was the decision of the three-judge panel right or wrong on the merits?"
There were no dissents — the Dems couldn't pick up even a single vote. Instead, all nine Justices necessarily agreed not only that what the three-judge panel had written and ruled was proper and correct on the merits, but that there were no close questions at issue, and nothing to add to what the three-judge panel had already written. And in fact, from now on, any lawyer who refers to that three-judge panel's decision will have to include in his citation a special notation — aff'd mem., 541 U.S. ___ (2004) — because the Supreme Court has effectively adopted the three-judge panel's opinion as its own.
In the simplest possible words: The Supreme Court didn't decide not to "hear" this case. They had to consider it fully and on its merits. When they did so, they unanimously decided that the three-judge panel's decision was correct. That's what "summary disposition: affirmed" means in layman's terms. The Court thought this was a no-brainer. It's the Supreme Court equivalent of a prize fight — not one that's cancelled, but one that's a knockout in the first ten seconds of the first round.
Mr. Ratcliffe's misreporting of this basic, fundamental fact is all the more embarrassing when you look at other media reports. The Dallas Morning News and Washington Post managed to avoid this confusion, as did the Associated Press report reprinted in the Austin American-Statesman and the Fort Worth Star-Telegram.
I don't know where this story will be in the print edition of the Chronicle tomorrow (and indeed, the Chron is notorious for monkeying with its online links without leaving clear tracks when it's done so) — but as I write this, it's on the Chron website as the first of "Today's Top Stories." It's bad enough that this "news report" is obviously biased, but it's incalculably worse that it's just flat wrong on the core event it purports to have reported.
How very, very pathetic.
Update (Tues Apr 20 @ 5pm): No response from the Chron to my outraged email ... of course. Also, the Daily Texan joins the Chron in misreporting yesterday's result:
The U.S. Supreme Court declined on Monday to hear an appeal by 11 Texas Democratic senators challenging redistricting legislation that passed during last fall's special session.
Bob Richter, spokesman for House Speaker Tom Craddick, R-Midland, said the court's decision, which has the power of a ruling, reaffirms the redistricting effort.
Yes, it had the "power of a ruling" because it was a ruling. Duh.
Finally, my exchange of comments on Charles Kuffner's post about this decision is an excellent illustration of the Chron's habitual disrespect for the integrity of hyperlinks. Kuff's post and comments reveal that the Chron originally had posted the AP wire story on yesterday's decision, then replaced the AP version with Ratcliffe's article at the very same URL. Not only does this create confusion, but it proves that the Chron replaced a correct report about the decision with something contrary and incorrect. More's the pity.
Update (Tues Apr 20 @ 11pm): Prof. Hasen, whose post about yesterday's ruling I linked in a comment below, was kind enough, in response to an email from me, to link this post on his blog, and in his email reply to me to very impressively and definitively answered a question I'd posed to him regarding the precedential effect of summary affirmances. Per Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173 (1979) (internal citations omitted):
[T]he precedential effect of a summary affirmance can extend no farther than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment. Questions which "merely lurk in the record" are not resolved, and no resolution of them may be inferred.
This confirms that the summary affirmance yesterday in Barrientos isn't likely to affect Vieth or Jackson v. Perry. But it's still considerably more powerful than a "cert. denied" in the unlikely event that a future court should ever be called upon to consider something like the suspension of the "blocker bill" procedure during legislative redistricting.
Tuesday, April 06, 2004
Molly & Adam head for OotM World Finals
My two youngest, Molly (age 9) and Adam (age 11), have been working since late winter and throughout the spring with a team of five classmates (Maggie J., Evan L., Alex M., Allison O., and Allie R.) in this year's Odyssey of the Mind competition. This was Adam's and Molly's second year to compete on a team together. Their older siblings, Kevin and Sarah, also participated in this competition when they were in elementary school, and my ex coached a team a couple of years ago, so OotM is something of a family tradition.
As described on its handy website, OotM is
an international educational program that provides creative problem-solving opportunities for students from kindergarten through college. Kids apply their creativity to solve problems that range from building mechanical devices to presenting their own interpretation of literary classics. They then bring their solutions to competition on the local, state, and World level. Thousands of teams from throughout the U.S. and from about 25 other countries participate in the program....
Teams are scored for their long-term problem solution, how well they solve a “spontaneous” problem on the spot, and “Style” — the elaboration of their long-term problem solution.
Adam's and Molly's team chose this year to work on the "Envirover problem":
The team's problem is to build and drive a human-powered Envirover vehicle that will collect trash and deliver it to a Factory, where it will be used to manufacture a product of the team’s design. The team will present an original prototype of the product, then use the trash to produce five samples of the product. The team will also create and present a humorous sales pitch for its product that takes place in a store setting.
They and their teammates met many, many times to plan for and construct their prototype Envirover, develop the associated "sales pitch" skit (with appropriate costumes and props), and practice for the spontaneous problem. The competition isn't too intense — the teamwork and cooperation skills developed during the run-up is the main point of participating, at least for our family.
Their team has continually improved, however. Although they just squeaked through the Houston Regional competition (behind two other teams from their school) to qualify for last weekend's Texas Odyssey 2004 State Tournament, they ended up placing second in their division at State — thereby qualifying for the OotM 2004 World Finals to be held at the University of Maryland on May 29-June 1! Woohoo! Their mom will likely accompany them for the trip along with their older siblings, and hopefully they'll all be able to combine some DC-area sightseeing over a long weekend.
Obviously, I'm pretty tickled by their success. One of our family mantras — something I repeat just about every day — is "I'm proud of you all the time, even when you're sleeping, just for you being you." But whenever they do something especially praiseworthy — and certainly for results like these — I gladly get to say, "Wow, I'm extra proud of you today!"
Here are the two young competitors as they were climbing into the car on the way to school this morning, looking pretty tickled with themselves:
Friday, April 02, 2004
From today's Best of the Web Today column by James Taranto of the Wall Street Journal Online, regarding Markos Moulitsas Zuniga, a/k/a "kos":
Markos Moulitsas Zuniga, who runs the Angry Left Daily Kos blog, had this to say in a post yesterday about the murders of four American contractors who were helping to deliver food in Fallujah, Iraq:
Every death should be on the front page.
Let the people see what war is like. This isn't an Xbox game. There are real repercussions to Bush's folly.
That said, I feel nothing over the death of merceneries [sic]. They aren't in Iraq because of orders, or because they are there trying to help the people make Iraq a better place. They are there to wage war for profit. Screw them.
Zuniga has taken down the original post, but in a new post he acknowledges it and offers a partial retraction, which essentially amounts to saying he didn't actually "feel nothing"; in fact, he was angry at the victims. Blogger Michael Friedman has a screen shot of the original post.
My email today to Mr. Zuniga:
If you were firebombed, if your charred corpse were dragged from your flaming vehicle, if what was left of you were dragged through the streets by a chanting mob, if the hulk that was left were dangled from a bridge and made the object of world media scrutiny ....
I'd still mourn your death.
That having been said, I have no illusion that you are capable of being properly shamed for, or ashamed of, your post -- since not only deleted, but supplanted by a different one at its original URL (sleazy blogging ethics!) -- regarding the four American civilians slain this week in Iraq.
I write an obscure blog that reflects my own conservative leanings. I am proud to have regular readers whose views are consistently more liberal than mine. I enjoy the debate with them, and respect them and their opinions. I work as a lawyer in an small office where to the best of my knowledge, I'm the only Republican, but my discussions with co-workers about the political subjects on which we disagree are filled with mutual respect and goodwill. Certainly we influence each other, challenge each other, broaden each others' horizons. Smirk if you will at the cliche, but most of my best friends are liberals.
So I do not condemn you for your politics. You're entitled, of course, to hold and publish your views about them, about the War on Terror, about the whole variety of subjects on which you write.
But I condemn you for your lack of basic human decency.
"So I struck back," you wrote in your not-quite-an-apology post. Who were you possibly "striking back" against when you wrote of those dead Americans, "Screw them"?
Rationalizations and spin aren't appropriate for what you wrote, sir. An expression of shame, an acceptance of guilt, a sincere statement of repentance, a promise not to sink to such a vile level in the future — these would be good places to start.
But while I might hope to see that in your postings, I frankly don't expect to see it. You didn't "strike back," sir, you struck out. I cannot imagine that any decent, thoughtful human being — of whatever political persuasion — could still have any respect for you. I certainly do not.
It will be interesting to see which of the left-of-center bloggers who regularly read and link to Kos express agreement or disagreement with his position, and which just ignore it.
Indifference to human life is the very thing that Kos and others have accused the Bush Administration of. Demonstrating that same indifference when fellow Americans die while doing their job is inexcusable.
Kos has established himself as a young up-and-coming voice in the Democratic party, with the ear of Terry McAuliffe and frequent interactions with the party elite. With that role comes responsibility, and in insulting the men who died doing what they were trained to do he abused that responsibility. Kos seems to resent that these men were well paid, though it’s questionable whether even $150,000 to $200,000 is enough for what they were asked to do. (Do our soldiers deserve better pay? Undoubtedly. But why conflate the issue of low combat pay with these contractors doing their job?)
Kos owes his readers and the party an apology. A real apology, not the relativist rant that tried to attach proportional value to certain people’s deaths.
Bingo. Exactly right, and from the honorable Left.
Still waiting to hear from, oh, say Josh Marshall, Kevin Drum, and my good friends at Off-the-Kuff and Burnt Orange Report, among many others.
Update (Sat Apr 3 @ 11:30am): Mr. Zuniga's considered response to the controversy, in a new post entitled, "I took their best shot, and... that was it?":
So I said something pretty stupid last week. I served up the wingnuts a big, juicy softball. They went into a tizzy, led by Instapundit.
And for a while, I was actually pretty worried.
But the final tally was -- about 30 hate-filled emails, about 15,000 hate-filled visitors, and the pulling of three advertising spots that are going to be replaced in less than a week. (I had two emails today about people wanting to advertise despite the controversy.)
That was it. Oh, they're doing their best to turn me into the devil, and they're making racist comments about my heritage and family and threatening to kick my ass -- you know, typical right-wing s**t.
But if that's the best they can throw at me, I'll simply echo Kerry.
Bring it on.
For a while he was actually "pretty worried." Not "pretty ashamed" or "pretty regretful." He describes his remarks as "pretty stupid" because they were "a big, juicy softball" for "the wingnuts." I suppose mine, reprinted above, was one of the "30 hate-filled emails." But no worries! His lost advertisers are soon to be replaced!
This is borderline sociopathy, friends and neighbors. It's very, very disgusting, but ultimately very, very sad.
After a brawl in San Antonio, [James Bowie] complained that a friend had witnessed the fight without coming to his aid. "Why, Jim," the friend said (according to the recollection of a third party), "you were in the wrong." Bowie replied, "Don't you suppose I know that as well as you do? That's just why I needed a friend. If I had been in the right, I would have had plenty of them."
Mr. Zuniga is lucky to have some friends like Charles Kuffner. I hope that when and if I ever say something as stupid as Mr. Zuniga did, and am as stubborn about it afterwards as he has been, I have a friend or two like that to speak rationally on my behalf.