BeldarBlog

Price of passivity

Alas. My employer is pleased that I've been a more diligent lawyer since the election, but no doubt due to my less frequent posting since then, BeldarBlog's rank in TTLB's blogospheric ecosystem has slipped to "Marauding Marsupial" from "Large Mammal." I'm de-evolving! But there are clients with needs to be met, and Beldar has bills to pay and Christmas presents to buy for the little Coneheads — even if as a blogger I'm on my way back to an insignificant microbe.

Thanks to those of you who continue to drop by to encourage my longwinded ramblings!

Dubya at the diner

Try to imagine John F. Kerry in this picture. Any imaginable version would definitely call for a snarky caption.

Reuters' caption: "U.S. President George W. Bush shakes hands with diners at the Coffee Station restaurant near Bush's 1,600 acre ranch in Crawford, Texas, November 26, 2004. President Bush, first lady Laura Bush and the first lady's mother Jenna Welch enjoyed a post-Thanksgiving lunch at the small restaurant before returning to his ranch."

Note the "hat-hair" — Dubya's been wearin' his Stetson, but hung it up upon entering (probably on a deer-antlers hatrack). Grandson of a senator, son of a President, Yale College and Harvard Business School — but this is a man who's entirely comfortable, entirely at ease, meetin' and greetin' in a roadside diner. He wouldn't turn up his nose at a couple of scoops of cherry cobler served in an orange Melmac bowl, either. That his napkin was paper, and came from a stainless-steel dispenser next to the catsup bottle (note: Heinz), wouldn't bother this man a bit.

I know that drives my blue-state countrymen nuts. But it makes me feel like I understand this man, and that he understands me.

This past summer, I wished I'd had my digital camera with me while I was lunching at Otto's Bar-B-Que in Houston.  Poppy Bush was two tables away, surrounded by guys with radio earpieces and wearing windbreakers with bulges under 'em — eatin' sauce-drenched beef ribs with his fingers.  (Lotsa paper napkins came out of his stainless-steel tabletop dispenser that day.)

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Update (Sun Nov 27 @ 12:50pm): I have to admit that this photo of Dubya would be fair game for a snarky caption. Reuters' caption: "U.S. President George W. Bush walks to an APEC leaders group photo with Russian President Putin (R) in Los Naranjos courtyard in Santiago, November 21, 2004." Putin looks considerably more embarrassed.

Sorta brings to mind the photo of Calvin Coolidge wearing an Indian headdress:

Swift Boats of 2004

This is just cool:

Reuters' caption: "U.S. Marines and Iraqi Special Forces backed by members of Britain's Queen's Dragoon Guards launch a river boat raid on a suspected insurgent area, south of Baghdad, November 28, 2004."

In favor of "going nuclear" to end Senate filibusters on judicial nominees

Howard Bashman's How Appealing links to this provocative article in yesterday's Austin American-Statesman headlined "Senate Republicans threaten to go 'nuclear' to end judicial filibusters":

Senate Republicans, boldly confident after their Nov. 2 electoral success, are preparing to end months of frustrating delays over President Bush's judicial picks by hitting Democrats with their ultimate legislative weapon.

But the Republican threat to neuter long-cherished filibuster rules by steamrolling Democrats is risky — so potentially destructive that Capitol Hill calls it the "nuclear option." Democratic retaliation would be swift and long-lasting, raising the prospect of escalating clashes in a body that prides itself on gentility and cool judgment.

Even so, Republican leaders are signaling their intent to go nuclear in word and deed.

"We're going to use every tool we possibly can," said Senate Majority Leader Bill Frist, R-Tenn., who also unveiled a kinder, gentler phrase for the potential rules change: the "constitutional option."

"Republicans are loaded for bear, spoiling for a confrontation with Senate Democrats on judicial appointments," said Norm Ornstein, an expert on Congress for the conservative-leaning American Enterprise Institute. "For a lot of conservatives, this has really become an issue that leaves them passionate."

Democrats, with a new leader after the election defeat of Majority Leader Tom Daschle, D-S.D., have yet to form a filibuster strategy for the 109th Congress, which convenes in January. But early indications show continued passion for blocking nominees considered too conservative, including Texas Supreme Court Justice Priscilla Owen.

"I think they would be making a huge mistake to try to mess with the rules," said Sen. Harry Reid, D-Nev., who will replace Daschle as minority leader. "My position is this: 203 federal judges were approved — 203. Ten were turned down. Does that require any kind of a nuclear option? I would certainly think not."

Thus does Sen. Reid inherit the mantle of disinformation from Sen. Daschle.  Ten nominees weren't "turned down" — rather, they were refused an up-or-down vote that most or all of them would have won on the Senate floor under the majority-vote standard of the Constitution. So what is the "nuclear option," exactly?

The nuclear option would be a last resort if other measures fail, said Sen. John Cornyn, R-Texas, who will likely play a central role in the debate as a member of the Judiciary Committee and chairman of the Constitution subcommittee.

Cornyn argues that judicial filibusters unconstitutionally require a 60-vote supermajority to approve nominees, not the simple majority mandated in the Constitution.

Democrats "must stop not only for the good of the Senate but out of respect to the president, who received almost 60 million votes on November 2, and out of respect for the Constitution itself," Cornyn said. "No group of senators has the right, no minority has the right to tyrannize the majority of the Senate."

The nuclear option would begin with Frist taking the Senate floor to seek a ruling from the presiding officer, likely to be Vice President Dick Cheney in his role as Senate president, to determine whether judicial filibusters violate the Constitution.

Cheney's affirmative response would initiate a vote on changing the filibuster rule, which also would be subject to a filibuster unless Cheney overrules the Senate parliamentarian on whether normal debate rules apply. Then, only 51 votes would be needed for approval.

Another option includes changing Senate guidelines to disallow judicial filibusters, which also would require the Senate president to declare that normal filibuster rules do not apply, so 51 votes could prevail. Changing Senate rules should occur early in the session to gain legitimacy, some Republicans say, making this option potentially less appealing.

Either way, it would be pure power politics, leaving Democrats unable to respond. Other Senate rules, however, would give the minority party plenty of opportunity to express its anger [by jamming normal Senate processes on other legislation] in the months, and years, to follow.

So is this a good thing or not? Before considering that question, there are a couple of important points to consider, one of which this otherwise pretty good article doesn't sufficiently emphasize, and the other of which it doesn't mention at all:

• First, the point not mentioned: This constitutional drama, if it comes about, will almost certainly take place entirely within the United States Senate — without the meaningful involvement of the judicial branch. If the opponents of the "nuclear option" lose in the Senate, they'll surely bring a court challenge in federal district court. But that challenge will almost certainly be doomed to a swift procedural demise — a dismissal in the district court, affirmed in the court of appeals, and either cert denied or affirmed in the Supreme Court — on grounds that the internal functioning of the Senate is a "nonjusticiable political question" in which the federal courts will defer to the constitutional interpretation of the coequal branch of government as the superior maker and interpreter of its own rules.


• Second, the point insufficiently emphasized: The "nuclear option," if exercised, doesn't mean the complete end of the Senate's traditional filibuster practice. Rather, it would represent a constitutional response to the past term's historically unique use of the filibuster to categorically block an up-or-down Senate vote on a large handful of the President's judicial nominees. And its rationale — that this use of the filibuster to prevent the Senate from carrying out its constitutionally-mandated advice-and-consent procedure on such nominees is an unconstitutional application of the Senate's internal voting rules on extended debate and cloture to close that debate — does not extend to "garden variety" legislation, even very important and controversial legislation (e.g., on civil rights or abortion rights). The Senate precedent that would be established by the exercise of the "nuclear option" would be limited to judicial nominees.

There's no provision in the Constitution for filibusters, nor, indeed, for the long-standing Senate tradition of (relatively) unlimited debate. It's a tradition, not something that has the force of constitutional law, and it's been modified and restricted in the past — for example, by changes in Senate rules on the number of votes needed to "invoke cloture" (i.e., suspend debate and thus end a filibuster). The federal courts have, should, and will, give the Senate a large degree of independence in writing its own rules, changing them, and interpreting them — recognizing that how the Senate goes about interpreting and performing its own constitutional duties is something for it to decide, without intervention from the executive branch (or than through the Vice President's constitutional role of presiding over the Senate) or the judicial branch.

It is true that in historic practice, the Senate — as the "more deliberative" legislative chamber — has functioned as the political saucer to cool the political hot coffee of the House. That tradition has been an institutional check on the passage of controversial legislation. Whether one views that as a good thing or a bad thing oftentimes depends on one's views on the legislation at issue. But even if one believes that maintaining this institutional check is a desirable and important thing, that's not a good argument against the "nuclear option" with respect to the President's judicial nominees. The Constitution doesn't oblige the Senate, either expressly or impliedly, to bring every proposed bill to an up-or-down floor vote. But I believe that the Constitution's intent is that the Senate has an affirmative duty — and until this past term, the Senate's history has recognized that duty — to actually render its "advice and consent" on the President's judicial nominees.

The Democrats who've obstructed the President's judicial nominees have used the filibuster rules to impose, in effect, an extra-constitutional requirement that the President secure the support of 60 senators to even get an up-or-down floor vote on his judicial nominees. That, in my view, is the radical change that threatens the constitutional process — not the proposed "nuclear option." Sen. Dick Durbin (D-IL)'s recent explanation makes clear just how small a group of Democratic senators claim the right to frustrate the Constitution:

Unless and until every Democrat on the Judiciary Committee votes against a nominee there is no discussion of using a filibuster. What (former Minority Leader) Tom Daschle did and (Minority Leader) Harry Reid is likely to do is to take these issues to the full Democratic caucus and it makes a decision.

If a nominee has one or more Democrat voting for him, then it will not go to a caucus and there is a free vote. It (a filibustered nominee) happened to us 10 times in the last four years, that's out of more than 200 nominations.

In other words, every judicial nominee who's opposed by all of the Democrats on the Judiciary Committee will be filibustered, and that handful of senators will almost certainly ensure that each such nominee will never get an up-or-down vote on the Senate floor. The Democrats on the Judiciary Committee are essentially given a veto over a power delegated by the Constitution to the President, when the Constitution clearly intends that such a veto only be exerciseable by a majority vote of the entire Senate.

It's been given a rhetorically overblown nickname — chosen to suggest that it will blow the Senate apart in some sort of cataclysmic event.  But the only substantive result of having the Vice President rule "constitutionally out of order" the attempt to use the "normal" filibuster-and-cloture rules to block up-or-down floor votes on the President's judicial nominees will be that the Senate will do its constitutional duty: The Senate will indeed render its advice on — and will either consent to or (presumably, still, in some cases) refuse its consent for — the President's judicial nominees.

Yes, I recognize that someday the shoe may be on the other foot, and that then, to my political dismay, it may be a liberal Democratic President submitting judicial activist nominees for consideration by a less-than-60-member-majority of Democratic senators.  But the requirement that a judicial nominee gather an affirmative majority of Senators voting is still a significant institutional check on the President's power — and it's the precise check written into the Constitution, no more and no less.

On balance, I think that the (nonjudicial) precedent that would be set by the so-called "nuclear option" is one that would promote the intended and traditional functioning of our constitutional representative democracy. It isn't revolutionary in itself. Rather, it will lift the revolutionary stranglehold that's currently being used to to confer disproportionate power on a minority of obstructionist, hyperpartisan senators in an attempt to control the composition of the judicial branch in a counter-constitutional manner.

U14

Am I the only person who's sick to death of hearing and seeing the Apple iPod TV commercials in which U2 launches into some rousing song by counting off "Uno, dos, tres, catorce"?

One, two, three, fourteen?  Is there some meaning there I'm missing?  Or is this just really inane?  I suspect the latter.

About that Longhorn one-point safety

I don't do a lot of sports blogging as a rule. I'm a fan, but in moderation, and don't bring any particular knowledge or skills base to my sports blogging.  But today's Texas A&M versus Texas game may be an exception — one in which the game officials needed a lawyer on the spot to help persuade the ABC Sports commentators that the officials knew whereof they spoke.

As best I could tell, here's what happened:  Early in the second half, Texas blocked an Aggie punt, recovered it, and advanced it for a touchdown. Texas' regular placekicking holder was out with an injury; the backup holder bobbled the snap and Texas' placekicker muffed the Point-After-Touchdown kick, booting it through the offensive and defensive line into (but not all the way out of) the end zone. One of the Aggie defenders recovered the live ball — took possession of it, and advanced it out of the end-zone (trying for a two-point counter-conversion) — and then fumbled it back into the end-zone.  [Update (Sat Nov 27 @ 2:40am): But see the update below: The AP says the ball never quite made it to the A&M end-zone before being recovered by the A&M player who fumbled it into the end-zone.] Thereupon it was recovered, either by himself or by another Aggie, who was immediately tackled in the end-zone. The officials' ruling — to the complete perplexity of the ABC Sports broadcasters — was to award Texas a one-point safety, tying the score at 13-all.

A one-point safety?!? Now if that's not enough to send a lawyer-fan to his web browser, I dunno what is! And of course the place to go is the official NCAA website, specifically to the .pdf file containing the 2004 football rules.

There, on the 101st page of the .pdf file (internal numbering FR-100), we find Rule 8, entitled "Scoring," in which section 1 decrees:

Scoring Plays

ARTICLE 1. The point value of scoring plays shall be:

Touchdown		6 Points
Field Goal		3 Points
Safety (points awarded to opponent)		2 Points
Successful Try	Touchdown	2 Points
	Field Goal or Safety	1 Point

A "regular" PAT would be a "Field Goal" during the "Try Down" that comes after a touchdown (per Rule 8, Section 3), and a two-point conversion would be a "Touchdown" during the "Try Down." The one-point safety (which I've highlighted in red print in the table above) is an example of a "rouge" that occurs during the "Try Down."  Football.com helpfully explains about "rouges" in general:

A rouge is scored if the ball can not be returned out of the endzone. Fieldgoals are live and can be returned for a touchdown. Should the defending team not return the missed field goal out the end zone a single point is awarded to the kicking team.

For example: The first team kicks to the second team. A player on the second team attempts to catch the ball in his team's endzone, but fumbles the ball and is subsequently tackled. The other team scores a rouge, as the ball became dead in possession of a player in his own goal area.

[Update (Sat Nov. 27 @ 1:30am): But see Voice of Reason's comment below, justifiably quibbling with my use of the Canadian-rules term "rouge" for this situation, and my reply immediately below that comment, which contains more quotes from the official NCAA rules, secondary source and historical references, and contrasts with the NFL rules.]

Conclusion: Although it didn't figure in the final outcome ('Horns 26, Ags 13 — Hook 'em!), the refs got it right. And all the rest of us have learned something today!

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Update (Sat Nov. 27 @ 2:20am): Here's the AP's explanation, as carried in the Austin American-Statesman:

But Texas holder Matt Nordgren dropped the snap, Dusty Mangum kicked the ball into the line and it rolled away just shy of the goal line. In the ensuing scramble for the football, officials ruled that A&M had gained possession of the ball then fumbled it into the end zone.

A&M safety Jaxson Appel recovered the fumble just before several Texas defenders pounced on him.

Game officials conferred for about a minute before ruling that the Longhorns would get a point for downing Appel in the end zone. The mostly orange-clad crowd of 83,891 exploded into cheers once the scoreboard recorded the point, tying the game at 13-all.

But then the AP report cites the NCAA rule for regular 2-point safeties. Heh. I'll claim my post as another episode of blogospheric accuracy outdoing the mainstream media.

Happy Thanksgiving

Since the election, my blogging has been fitful as I've tried to catch up on work-related tasks that I'd deferred due to distraction. 

Yes, I have an opinion on Dan Rather's announced departure from the CBS News anchor chair, but I'm still too angry at CBS News for not firing the sum-bitch outright to spoil a nice Thanksgiving holiday by venting into the blogosphere.

But I'd be seriously remiss not to take this occasion to thank my readers who've continued to drop by looking for new content.  My list of things for which to be thankful today is a long one, but the opportunity to write here — and actually to be read, sometimes appreciatively — is certainly on that list.  Happy Thanksgiving to you all!

Showing up in court

Woody Allen — a source of many wryly wise sayings, despite the abominable wreck of his own personal life — famously quipped that "80 percent of life is showing up."

In litigation, the winning percentage for those who merely manage to show up is somewhat lower, but still substantial. A couple of the tick marks in my "wins" column as a young lawyer came from small claims court cases in which my corporate client — required by Texas law to appear through a lawyer and unable to appear "pro se" as a natural person might have — paid me to show up, and the person suing it didn't.

At that point in each case, I solemnly rose to my feet to make a "motion for entry of judgment nihil dicit" — which in one instance drew a chuckle from the judge and in the other, an uncomprehending stare. The Latin phrase "nihil dicit" — literally "he says nothing" — traditionally is used with reference to a judgment entered when the defendant fails to deny the plaintiff's claim, but can also be used, as best I was able to determine, when the plaintiff files a claim and then fails to appear to present it at trial. Perhaps the uncomprehending look was from a Justice of the Peace with superior Latin skills to my own meager ones, though; regardless, we both agreed that since I was there for the defendant and the plaintiff wasn't, the defendant should win with no further ado.

There are, of course, analogs in the criminal courts, as this story from today's Houston Chronicle indicates:

After demanding her day in court, Shannon Rechter decided not to show up.

The 38-year-old mother who claimed she was assaulted in the carpool line of a west Houston private school did not come to municipal court Wednesday morning for the scheduled trial of Sandra Chiang.

Chiang, a 40-year-old mother of two, was accused of slapping Rechter in the face for cutting in the carpool line on Dec. 13, 2003.

But without Rechter to testify, the misdemeanor assault charge was dismissed....

Rechter's absence came as a surprise after she had vigorously pursued the case by calling police, filing charges, frequently calling the city prosecutor's office and complaining that officials at the school did not take her claims seriously.

She said she gave up after another parent from school refused to testify on her behalf.

"Without a witness, I had no case," Rechter explained Wednesday afternoon, when reached by telephone.

Of course, at least in this particular courtroom, Ms. Rechter technically "had no case" either with or without supporting witnesses. Despite the Chronicle's misleading headline — "Plaintiff fails to show up for trial of carpool mom" — Ms. Rechter wasn't a "plaintiff," nor in charge of the case, but rather the "complaining witness" whose claims had prompted a (probably justifiably reluctant) prosecutor to press charges. The case belonged to the City of Houston, for an alleged offense against the peace and dignity of the City — not to Ms. Rechter.

What annoys most people about this story is the notion of going to court over a childish squabble that may or may not have involved physical contact, but in no one's version of events involved any damage more lasting than a briefly reddened cheek (perhaps from a slap, perhaps from anger). What particularly annoys me, though, is the notion that Ms. Rechter went so far out of her way to start the wheel of the criminal justice system rolling, and then hijacked the prosecutor's decision over whether to proceed. She wasted my tax dollars by treating the criminal justice system as if it were her own to control.  That's a poor lesson for a parent to teach her children.

NYPost gossips about possible Kerry defamation lawsuit against SwiftVets

Reader and frequent commenter "Raving Atheist" emailed me a link to a very amusing blurb written by Richard Johnson in the New York Post's "Page Six" column entitled "Kerry Fit to Sue 'Unfit' Author," which begins:

Liberal loser John Kerry might be planning to strike back at John O'Neill, the "Unfit for Command" author who claims some of the credit for Kerry's defeat, sources say.

In the book, published by Regnery not long before the election, O'Neill — who, like Kerry, commanded swift boats in Vietnam — attacked Kerry's war record and branded him a traitor.

(Another reader thoughtfully emailed me with this link to a NewsMax write-up on Johnson's blurb, but it doesn't add much to the NYPost's own gossip.)

I first wrote on the topic of the Kerry campaign's threats of a defamation lawsuit last August 11th, when The New Republic's Kenneth Baer argued (in an article that's now been moved to TNR's subscription-archive, but that I quoted extensively) that such a lawsuit would be well-founded. For reasons both legal and factual, I rather strongly disagreed, and for reasons entirely political, I thought that such a lawsuit would not possibly be filed during the campaign season. Nothing that happened later during the SwiftVets vs. Kerry saga in any way changed any of my original opinions as to the lack of legal and factual bases for such a lawsuit. But Mr. Johnson's unnamed source apparently thinks that the political dynamics no longer would prohibit such a case from being filed:

Now, "the Kerry camp is thinking about filing a libel lawsuit against Regnery and O'Neill," a source close to the candidate's inner circle tells PAGE SIX. "I don't know if they will actually go forward, but consideration is serious. If Kerry plans on running again in 2008 — and I'm hearing he will — it would make sense that he'd file the suit."

Kerry's rep, David Wade, said he hadn't heard about any proposed lawsuit, but promised to look into it.

Let's just say I'm not holding my breath waiting for this lawsuit to be filed. Nor, I strongly suspect, is SwiftVets' spokesman John O'Neill. According to Mr. Johnson's blurb,

O'Neill, who charged that Kerry faked his wounds and won his medals under false pretenses, says he won't write another book if Kerry runs in 2008, but will definitely campaign against him again.

That's actually a substantial overstatement of the SwiftVets' allegations — they never claimed that Kerry "faked his wounds." They did claim, however, that all three of Sen. Kerry's Purple Heart wounds (or four, if you count the bruised elbow) were trivial, and that two of the three Purple Hearts were undeserved because they resulted not from enemy action, nor even from someone else's "friendly fire" while there was incoming enemy fire, but rather from Kerry's own unintentional carelessness (on one occasion while firing a M-79 grenade launcher and on another when using a hand grenade to scatter a rice pile thought to be a Viet Cong food cache).

Regardless, however, if these or the SwiftVets' larger set of allegations were altogether false and groundless, they could have been exploded with a stroke of Sen. Kerry's pen on a Standard Form 180 — during his just-past campaign. The undisclosed military records still being withheld by the Navy Department, Sen. Kerry's and a crewman's wartime journals, and other documents that Sen. Kerry successfully stonewalled throughout the campaign would all become grist for the pretrial discovery mill in the early stages of any defamation case he ever files, however. I remain confident in my previous inference that if those documents were uniformly flattering to and supportive of Sen. Kerry, we'd have long since seen them, and in my further inference that because they aren't, we never will.

Beldar continues to confidently predict: Ain't gonna be no defamation lawsuit. If there is, I'll gladly eat Sen. Kerry's lucky CIA hat.

NYT's confusion on the basic concepts of government

According to an article in Monday's New York Times entitled "Southern Democrats' Decline Is Eroding the Political Center," those damn dumb conservative Texans have shot off one of Dubya's toes (boldface added):

This [dwindling in the number of remaining conservative southern Democrats] could also have important implications for Mr. Bush's domestic agenda. He needs bipartisan support to achieve major changes in Social Security, for example, but two Democrats considered most likely to work across party lines for entitlement "reform" will not be there: Mr. Breaux and Mr. Stenholm. Some Democrats on Capitol Hill said last week that the Republicans, who campaigned hard against Mr. Stenholm, had perversely cost themselves a potential ally.

Oh, dangnabbit! How will Denny Hastert and Tom DeLay ever get Nancy Pelosi and Lloyd Doggett and Sheila Jackson-Lee to vote for Dubya's programs now that Charlie Stenholm's not around to sweet-talk them into it?

Feh. The fact of the matter is that Charlie Stenholm couldn't sweet-talk any hard-left Dems into anything — past, present, or future. The real world doesn't work that way now, if it ever did. And on the few issues in which remaining "moderate" or so-called "conservative" Democrats in the House could be persuaded to vote with Dubya and the Republicans in the last term, they'll be just as persuadable again without Stenholm as a "bridge." As for his own vote, Stenholm sometimes, but far from reliably — whether because of his own views, or because his constituency was indeed solidly conservative — would vote with the Republicans. His successor, Randy Neugebauer, campaigned as both a conservative and a Republican who'd methodically support his party and its candidate for President.  This was a straightfoward case of voting for someone straightforward.

If there were any realistic chance that in the foreseeable future, the bulk of the Democratic Party might swing back toward the center — if there were a chance that it might regain control of the House, and if its moderate and so-called conservative elements were then in a position to actually dictate the Democratic Party's positions — then an old warhorse like Stenholm might have been a useful ally for Dubya and the Republicans. But that ain't gonna happen anytime soon, friends and neighbors, and the folks like Pelosi who actually do run the show within the currrent Democratic Party are no more sorry to see Stenholm leave than Tom DeLay is.

The fact of the matter is that the voters of Stenholm's district — as redrawn in 2003 to eliminate the gerrymandered advantages that kept him in office despite the state's growing Republican trend — replaced an unreliable conservative who was member of the minority party's increasingly irrelevant fringe with a reliable conservative who's a mainstream member of the majority party. They may drive pickup trucks in a cherry-red state, but as I see it, they seem to have a better handle on this "democracy" thing than the brilliant political reporters of the New York Times — who clearly think that political gamesmanship and duplicity is business as usual, and that straightforwardness is "perverse."