BeldarBlog

One picture worth 1000 words about two leaders who've given their word to each other and the world

(Hat-tip Tim Blair; photo lifted from Kilabe's Hive.)

Eleventh Circuit protects your right to be blown to hell and back by terrorists

Orin Kerr of The Volokh Conspiracy — who even while a blogger, in or out of pajamas, is also an associate professor who teaches criminal law at George Washington University Law School and a former clerk for Justice Kennedy — points us all to the Eleventh Circuit's decision yesterday in Bourgeois v. Peters, which Prof. Kerr correctly describes as holding "that a city police policy requiring everyone attending a November 2002 protest against the 'School of the Americas' to pass through a metal detector violated the Fourth and First Amendments."  An Associated Press story on the decision appears here (hat-tip How Appealing.)

Beldar predicts that the en banc Eleventh Circuit will promptly agree to rehear this decision and, after oral argument before the full court, will reverse it.

The "School of the Americas" is now formally known as the "Western Hemisphere Institute for Security Cooperation"; housed at Fort Benning, Georgia, it's run by the U.S. Army to "train military leaders from throughout the Western Hemisphere in combat and various counterinsurgency techniques."  The plaintiff-appellants had unsuccessfully sought a preliminary and permanent injunction from the federal district court to bar the City of Columbus, Georgia, from requiring them and other protesters to pass through a magnetometer en route to the protest site outside Fort Benning's gates.  The Eleventh Circuit reversed and directed the district court to grant the requested injunction.

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The Eleventh Circuit panel comprised (former Chief) Judge Gerald B. Tjoflat and Judge Stanley F. Birch, Jr. of the Eleventh Circuit, along with Senior (and former Chief) Judge Alfred T. Goodwin of the Ninth Circuit, sitting "by designation" (essentially as a volunteer) — appointees of Presidents Ford, Bush-41, and Nixon respectively.  This is a distinguished panel, and it would be a mistake to presume, for example, that Judge Goodwin is a bomb-throwing liberal just because he's from the Ninth Circuit.  I'm unfamiliar with Judge Birch, but Judge Tjoflat was on the "old Fifth Circuit" when I clerked for Judge King during the final year before the "old Fifth" was split into the current Fifth and Eleventh Circuits, and one of my law school classmates clerked for Judge Goodwin on the Ninth; they're both solid and seasoned professionals, each of whom has doubtless decided thousands of Fourth Amendment cases over their long careers, and I'm sure they still draw very competent law clerks from top-ranked law schools. 

However, the composition of this panel is likely to work somewhat in favor of the Eleventh Circuit granting rehearing en banc:  Only active judges of the Eleventh Circuit sit on the en banc court, so Judge Goodwin will not have a vote.  The panel opinion will thus have to be "defended" before the en banc court by only Judges Tjoflat and Birch, and will start off with only their votes presumptively against rehearing en banc, as opposed to the usual three judges who'd presumably be doing so in the case of a unanimous circuit court panel opinion.

I'd expect the Justice Department to seek leave to file an amicus brief in support of the city defendant-appellees' certain motion for rehearing en banc, and I'm confident such a request would be granted.  The ramifications of this precedent are enormous on local, state, and national levels.  In fact, the three-judge panel might have been well served to have invited such an amicus brief on its own motion before deciding the case.

I'm by no means a specialist in either Fourth or First Amendment law — I know my readers must be tired of such disclaimers, and are wondering what the heck I am a specialist in! — and I'm unconstrained by the compulsion to write carefully, with reference to supporting Supreme Court precedents, that probably afflicts scholars and educators like Prof. Kerr.  So what follows are my reactions as "just one lawyer" and a former circuit court clerk who, once-upon-a-time, helped draft opinions like this one.  Citations to my legal commentary, after all, aren't in the form "2 BeldarBlog L. Rev. 1016 (2004)"; any old hyperlink will do, but my top-of-the-head views aren't likely to be impressive to any court or legal scholar.

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To begin with, this opinion looks to me like a good piece of research and writing, probably drafted in the first instance by one of Judge Tjoflat's law clerks, that may have suffered from a briefing imbalance.  I don't mean to slight the lawyers for the City of Columbus; I don't know whether the city defendants were represented by staff counsel or outside retained counsel; and I haven't read their brief, nor the district court's opinion, nor the briefing of the plaintiff-appellants.  But the opinion is replete with "gotchas" — points the defendant-appellees failed to introduce evidence for, and in some cases failed to raise altogether, before the district court, for example.  There are also hints, to my cynical eye, of a bright, very civil-rights-minded law clerk behind this opinion who's strayed a bit too far into the position of an advocate for the result he or she wanted to reach.  For example, the panel opinion states (at page 15 of the .pdf file) that "[t]he City's position would effectively eviscerate the Fourth Amendment."  That's the kind of rhetorical overkill that one sees all the time in briefs, but it's frankly over the top for a circuit court opinion.  Until yesterday, in fact, the district court's opinion was good and binding precedent throughout the Middle District of Georgia, and I don't recall reading of any gnashing of teeth and wailing that the Fourth Amendment had been effectively revoked across-the-board there.

And the panel opinion, while internally coherent, is light on its handling of crucial, possibly outcome-determinative threshold issues.  Is passing through a magnetometer en route to a public demonstration site, for instance, a "search" for purposes of the Fourth Amendment?  The panel opinion assumes that it is, and at least as characterized by the panel opinion, the city defendant-appellees' briefing appear to have conceded that characterization.  Maybe there's a Supreme Court precedent directly on point that so holds — I haven't cracked a book or made so much as a keystroke to do any independent research on the point, and it's been many years since I've handled a case with Fourth Amendment issues — but I'd expect to see that critical foundation for all the panel opinion's subsequent analysis to be firmly nailed down, whether raised by the parties in their briefing or not.

Similarly, there's no doubt but that the plaintiff-appellants were seeking to engage in speech and assembly that were directly expressing political protest, and that they were and are entitled to First Amendment protections to do so.  (It's speech that I don't personally agree with and assembly for a purpose I wouldn't care to participate in, but that's quite probably also true of the three judges on the panel, and it's quite beside the point.)  Yet the panel opinion treats the passage through a magnetometer en route to that protest, however, as tantamount to an absolute, unconditional denial of the protesters' rights to assemble and speak.  It's obviously not — and in fact, the protest actually did take place in both 2002 and 2003 despite the district court's refusal to enjoin against the use of the magnetometer.

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As Prof. Kerr's post points out, the panel opinion seemed to emphatically reject — curtly, in an almost offended manner — the suggestion by the district court and the city defendant-appellees that the case could be decided just by an invocation of 9/11.  Perhaps the manifest urgencies of our current national situation caused the city defendant-appellees and the district court to take some shortcuts in logic, citation of precedent, and development of a factual record.  But frankly, the panel opinion strikes me as a decision that would be just as wrong in peacetime or as of 9/10/01.  I don't disagree with this statement in the panel opinion (at page 16 of the .pdf file):

We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over.  September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.

But neither should a litigant's or a district court's shorthand and possibly sloppy reliance on "9/11" — as a catch-all justification for government safety measures designed to protect the public — justify sloppy and overbroad reasoning and writing by a circuit court of appeals panel. 

With due, and genuine, respect to the distinguished judges on this particular panel, I think that's what they're guilty of, and I expect the full Eleventh Circuit, sitting en banc, to promptly correct their well-intentioned mistake.

Update (Sun Oct 17 @ 9:32am):  Howard Bashman has helpfully pointed out to me via email that I erred in this post, as it was originally written, in describing Judge Tjoflat as a senior-status judge, when in fact he's still active-status and would therefore participate in en banc proceedings of the Eleventh Circuit.  I've revised the text above accordingly, with my thanks to Mr. Bashman for the catch.  As a practical matter, when the author of a challenged panel opinion is able to be involved in internal court discussions over whether to grant rehearing en banc, it effectively lowers the chance of rehearing en banc being granted.  I still think this one will be reheard, however.

There's one other possibility that I didn't mention in the original post — that the city defendant-appellees might seek, and get, rehearing before the three-judge panel itself.  One strategy for seeking such a rehearing, particularly with respect to the First Amendment portions of the panel opinion, would be to focus on the scope of the relief granted.  The panel opinion was concerned by the lack of objective standards for law enforcement officials to use in deciding whether or not to require clearance through metal detectors.  If the defendant-appellees succeeded in persuading the panel (or for that matter, the en banc court) that the panel opinion's Fourth Amendment analysis is wrong, it could argue that the injunction should be granted only provisionally, subject to reconsideration by the district court when and if such objective standards are drafted and applied.  That would considerably reduce the sweeping precedential effect of this opinion.

Update (Mon Oct 18 @ 3:10pm):  Prof. Volokh notes that the panel opinion cites and relies upon "Wikipedia, a free online collaborative encyclopedia, for information on the Department of Homeland Security Advisory System."  He thinks Wikipedia's pretty neat, but not a good source for judicial precedents to be based upon.  This strikes me as another indicator, frankly, that the result in this case was affected by a law clerk who's trying hard but using poor judgment.

Bribed, bought, coerced, or extorted?

Related news article here.  Reuters' caption for this photo: 

U.S. Secretary of Defense Donald Rumsfeld (L) pins a bronze star medal onto Macedonian Staff Sgt. Stojance Patarovski during a ceremony at the Macedonian Ministry of Defense in Skopje, Macedonia, October 11, 2004. Rumsfeld presented three Macedonian troops with medals for their service in Iraq. Patarovski was cited for his actions on June 19, 2003 that prevented enemy reinforcement that saved American lives.

So if it's your American son or daughter whose life has been saved by this warrior — a warrior whose flag you almost surely wouldn't recognize, and whose country you may not even be able to point to on the map, but who likely grew up amidst the terror of government sponsored ethnic cleansing — would this be a "so-called, phony" hero?  After all, he's now wearing a medal just like the one for which John Kerry threw his corresponding service ribbon over the Capitol fence in 1971.  Does he look bought?  Is that medal a bribe? 

Or is it instead something that his wife will bring out of a cherished place show to their grandchildren someday?  Is it something that she'll explain was a sacred symbol of appreciation from the powerful country whose soldiers their granddaddy fought beside, whose very mortal sons and daughters he risked his life to save?  Will she explain how their granddaddy fought for civilization, against barbarism, and for the honor of their new country as it sought to take a place among the world's peaceful and responsible civilized nations?

We can but guess, of course.  Maybe at the moment this picture was snapped, Stojance Patarovski was thinking, "Wrong war at the wrong place at the wrong time."  Maybe he was thinking, "I'm glad nobody asked me to be the last man to die for a mistake."  Maybe he was thinking, "Those guys who were shooting at me sure were a nuisance."

Or maybe he's thinking about his grandsons and granddaughters yet to be born, and what still must be done to build a world in which they can grow up safely.  What do you think?  If you think Sen. Kerry's right about this man, would you have the guts to tell Stojance Patarovski that to his face?

And how about this man:

Reuters' caption:

Captain Lim Ho-jin, a member of the South Korean Air Force to be sent to Iraq, meets his son during a send-off ceremony at the Seoul air base, October 11, 2004. About 150 members of the air force with C-130H transport planes will be deployed in Kuwait to help the reconstruction of Iraq.

What would you tell Captain Lim Ho-jin's son — that his daddy has been bribed, bought, coerced, or extorted?  Or that his daddy is a hero?

Morning stroll with my female housemate

No politics.  No law.  Just pictures with snarky captions.

More re Andrea Mackris' sexual harassment claims against Bill O'Reilly and Fox, and their preemptive extortion claims

Switching from presidential to sexual politics, I'll post a few comments to supplement those in my previous post about the litigation involving Fox News, Bill O'Reilly, and Andrea Mackris.

First and foremost:  Obviously, I have zero personal knowledge of any of the relevant facts, nor of the individuals directly involved, nor of their counsel.  I know nothing beyond what I've read in their respective complaints (here and here) and some media accounts, and all of that I take with a large grain of salt.  My previous and current comments are made solely as punditry from a lawyer unconnected with the case.  I'm by no means a full-time specialist in this complicated and fast-changing area of the law, although I have represented both defendants and plaintiffs on fairly similar claims in presuit negotiations, administrative proceedings, and lawsuits.  And I've not tried such a case myself to a conclusion before a judge or jury, but I'm generally aware of the statutes and caselaw, and of the range of outcomes from such cases around the country.

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John Derbyshire's post on NRO's "The Corner" blog is fairly typical of the skeptical reaction many folks, including some of my readers (via email), have had to Ms. Mackris' claims.  (Mr. Derbyshire refers to having read Ms. Mackris' "deposition," by which I think he means her unsworn complaint, rather than the transcript of an oral examination of her under oath.)  I've heard similar arguments on talk radio, and I'm sure there are scads of blog posts on this general topic that I frankly haven't bothered to look for.

The fact that Mr. O'Reilly is not alleged to have had literal, physical sexual contact with Ms. Mackris is indeed important, as are the facts that she apparently suffered no adverse career consequences, made no complaints to Fox's management, returned to work for Mr. O'Reilly after her stint at CNN, voluntarily accompanied him to dinner on many occasions, didn't hang up on the phone calls, and so forth.  The degree to which she expressly and impliedly objected to, tolerated, or invited Mr. O'Reilly's conduct is likely to be a key factual issue.  So, too, will be the issue of whether Ms. Mackris was "setting up" Mr. O'Reilly and Fox.  The defendants will argue that she invited, even planned, all this; she'll argue, no doubt, that she was coerced into acquiescence and participation through explicit or implicit threats to her continuing employment, career, and reputation.

At a minimum, all these facts have a huge effect on the potential damages that she could reasonably hope to obtain, whether from Mr. O'Reilly or the other defendants.

Some of these facts are also keenly relevant to various defendants' potential liability for any damages.  To oversimplify a bit, if Fox — as the employer of both Mr. O'Reilly and Ms. Mackris — indeed (as claimed) had in place extensive policies prohibiting sexual harassment and requiring its employees to report its occurrence, that may end up negating Fox's liability, either under a "hostile work environment" theory or a respondeat superior-type (employer being liable for its employees' acts in the course and scope of their employment) theory.  Plaintiffs in Ms. Mackris' position oftentimes argue, sometimes successfully, that such policies were pretextual and ineffective, and that employers, through officers and supervisors of the alleged offender, knew or should reasonably have known of on-going violations.  Again, this is all grist for the mill of the pretrial discovery process for both sides, and ultimately for the jury.  The various witnesses' credibility, tested against the jury's common sense, is key.

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The interests of an employer and its employee accused of sexual misconduct can often sharply diverge.  There's almost always at least a potential conflict of interest that legal counsel should explain fully to both; and quite often, there's an actual conflict of interest, with the employer not only distancing itself from its employee and his actions, but actively pointing the finger at the employee as having violated company policies and concealed his doing so.  Obviously it's in the interest of the plaintiff's counsel to be aware of the conflicts, and it's quite common for plaintiff's counsel to actively encourage them, especially when the employee is himself a "deep pocket."  Were I involved on the defense side of this case, I'd insist that Fox and Mr. O'Reilly have separate defense counsel of record — even if Fox, at least initially, may end up paying for Mr. O'Reilly's separate counsel, and even if all of the defendants hope and expect to cooperate closely and present coordinated defenses.

I stand by my earlier criticism of Fox's pre-emptive legal strike.  It bears all the hallmarks of clients who are letting short-term public relations considerations override long-term strategic and tactical legal judgments.

But I do not mean to imply by that criticism that I think Fox or Mr. O'Reilly should necessarily roll over and play dead — get out their checkbooks and write the eight-figure checks Ms. Mackis and her lawyer are demanding.  I seriously doubt that their inflated presuit demand constitutes criminal or civil extortion, strictly speaking, but that doesn't mean that the demand was reasonable, even if the quotations and conduct attributed to Mr. O'Reilly are factually accurate.  That there are counterpunches, and perhaps even knockout punches, that may be thrown still doesn't mean you should lead with your chin, and that's what I think Fox and Mr. O'Reilly have done here.

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Finally:  I've been fascinated with sexual harassment claims for almost as long as I've been fascinated with sex.  The seminal (don't snicker) book on the topic was Catherine MacKinnon's Sexual Harassment of Working Women in the late 1970s, on which I commissioned what turned out to be a very fine, substantive book review (briefly abstracted here) from UC-Berkeley Law Professor Herma Hill Kay when I was the book review editor of the Texas Law Review in 1980.  A quarter century later, there's often still a profound disconnect between folks' real-life experience and what happens in the courtroom on these matters.  "I see this every day" and "I've endured worse and never complained" and "Of course some co-workers are going to have romantic encounters" are heartfelt and widely shared sentiments.  Artful flirting is the seed for every romance, and there are huge risks, in and out of the workplace, for artless misinterpretations.  And political correctness can be, and often is, carried too far.

But sex, money, and power are potent motivators and, sometimes, weapons — sometimes weapons of mass confusion.  The same folks who'll make the above-listed sorts of arguments around the water cooler or calling in on a talk radio show often find themselves magically, mystically transformed when they're ushered into the cool marble sanctuaries of a courtroom, solemnly sworn to follow the court's instructions, and then set to deliberating on particular factual situations.  Very often the decisions in these cases — and as a result, the terms on which the vast majority of such cases are settled before trial — reflect not what actually is common in the workplace, but what we, collectively, as a society aspire to see in the future.

If the quotations and conduct attributed to Mr. O'Reilly are accurate (a huge if), and if he knew or should have known that they were unwelcome (another huge if, and one that seems to me to be more likely to be hotly disputed), then he's very likely — under current law, and by an average jury interpreting it — to be found liable for at least some amount of damages under one legal theory or another.   Even if his words and conduct were invited — even if she "set him up" — then he's at fault for "falling for it," for putting himself in a horribly embarrassing and likely a career-destroying situation.  Yes, workplace romances and sexual situations are dirt common in the real world in which we all live.  But whether this was one or not, there are, and there have been, terribly exploitative situations that the courts are now addressing.  Anyone in a supervisory position over a co-worker is playing with fire when he — or she — initiates or responds to sexual or romantic overtures.  If the quotations attributed to him are in fact on tape, then the question probably isn't whether Mr. O'Reilly's going to get burned, but rather, how badly, and who else will get burned with him.

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Update (Sat Oct 16th at 1:20pm):  A thoughtful emailer sent me these questions that I'll try to answer here, rather than in comments.

1 - Has there ever been a winning quid pro quo case where the sex was telephone sex?  I was thinking that Clinton's defenders supported the argument that what he engaged in with Lewinsky was not sex.  Telephone sex would seem to be one step further removed from whatever the definition of sex is.

I don't know if there's precedent on phone sex, but I can't see how it could be distinguished from other verbal harassment.  Sexual harassment laws prohibit more than just offensive physical touching.  But obviously, the type of conduct and its circumstances are going to be highly relevant to damages, and probably also to liability (e.g., if openly displayed in front of co-workers, it's more likely to support a hostile work environment claim because that will tend to show that the employer knew or should have known it was going on).

2 - her (repeatedly) stating that she answered/returned O'reilly's afer-hours calls to her cell phone, etc. because she thought they were work related.  Is this likely an attempt to transform acts that took place outside work into a work-related event?  I've never known a sexual harassment claim that targeted activity that took place solely outside the workplace and outside the work day - does there have to be some tie-in other than the fact that the complainant and respondent both work together?

I'm sure you're correct that Ms. Mackris will argue that the nature of her job had her "on call" outside normal office hours and outside the workplace.  Her position will certainly be that Bill O'Reilly and Fox expected her to be available for work-related phone calls that she accepted, only to learn to her chagrin that they were personally and sexually oriented.  My guess is that she'll be able to prove the former, probably through admissions from the defendants, but the latter will be a hotly contested issue of fact.  If, as she has claimed and will continue to claim, Mr. O'Reilly as her supervisor was trying to leverage his way into phone sex or more through explicit or implicit threats, the fact that his efforts took place outside normal business hours and outside the workplace isn't going to be an effective defense.  The defendants can be expected to dispute this vigorously, however, and they will indeed argue that the after-hours and non-workplace nature of the contacts is more consistent with consensual or invited activity.

3 - you make reference to whether he was set up.  I wondered the same thing when I read the complaint, but why would it matter?  Is there a entrapment defense in civil matters?

It's not entrapment as such, not in the same sense that term is used in criminal law as a defense.  But having sex (or sexual contact or conversations) with a co-worker isn't per se sexual harassment.  (It's just per se risky, especially if one's a supervisor and the other's a subordinate.)  If the quotations in Ms. Mackris' complaint are genuine, then the only way that I see for Mr. O'Reilly (as opposed to Fox and the other defendants, who are differently situated) to win an outright verdict of no liability would be to prove that the contacts and language were consensual and invited (even if not reciprocated), freely and without coercion — in which case it's not actionable.  If the jury concludes that her motive was to set up a bogus lawsuit, they may conclude as a subsidiary finding that she did consent to and invite the conduct.  Technically speaking, this wouldn't be an "affirmative defense," but rather evidence tending to negate a point on which the plaintiff has the burden of persuading the jury by a preponderance of the evidence. 

And even if the jury doesn't conclude that she was setting him up, but faults her for overreacting or harboring unreasonable and exaggerated fears of retaliation, this same evidence that's been offered in an attempt to circumstantially prove her consent may also affect the jury's liability findings on punitive damage questions, and also its setting of appropriate monetary awards for both "actual" damages (which includes "mental anguish") and punitive damages.  It's quite conceivable to me, for example, that a jury might end up holding Mr. O'Reilly liable, but award only very nominal damages — perhaps $1.  That's a classic way that juries communicate their disapproval of both sides' conduct (although it sometimes has an effect, unanticipated by the jury, of making the defendant liable for all of the plaintiff's attorneys' fees).

Hence her repeated allegations in the complaint — which she can be expected to repeat under oath — that she clearly and repeatedly communicated to Mr. O'Reilly that his conduct and language were unwanted.  If it were to turn out, for example, that Mr. O'Reilly said and did everything alleged, but that it was intermixed with her frequently saying, "Oh yeah, baby, I love it when you talk dirty to me, keep going, keep going!" — the jury would almost certainly conclude that the conduct and language wasn't unwanted harassment.  Of course, a scheming vixen (or were the roles reversed, Lothario) might well contrive to ensure that such encouragement didn't appear in any of the audiotapes, even if she gave such encouragement at other times or in other situations.  In short, it's an issue that's ripe for a proverbial swearing match.

This stuff isn't unique to civil law.  There are criminal law parallels in rape cases — just ask Kobe Bryant, or watch or read To Kill a Mockingbird.

The Kerry-Edwards campaign's references to Mary Cheney's sexuality

There is no shortage of material in John Kerry's background and that of his immediate family from which one could take cheap shots for political gain.  One could easily craft a comparably vile statement that Dubya could have made, himself or through surrogates.  Indeed, I've reluctantly done so in the extended portion of this post, but I frankly urge you not to read it unless you doubt that there are factual grounds on which such cheap shots could be based. 

I would never urge someone to base his or her vote on such cheap shots.   But the fact that Sen. Kerry, Sen. Edwards, and/or their campaign think Mary Cheney's sexuality is "fair game" to exploit is something that itself speaks to their character, or lack thereof, and that voters can and should consider.

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At the third debate, both candidates were asked about how their religious views affected them and their policies. Imagine if Dubya had said:

I respect Sen. Kerry's faith as a Roman Catholic.  I have no fault to find with the fact that he was a serial adulter while still technically married to his first wife, or that he divorced her while she was battling mental illness.  She supports his candidacy, they've both maintained their relationship with their daughters, and that's wonderful.  His church found it appropriate to grant him an annulment — a formal, retroactive declaration that Sen. Kerry's first marriage never existed in the eyes of the church — and even though his first wife strongly objects to Senator Kerry's and Mrs. Theresa Heinz Kerry's efforts to sanctify their own marriage at the expense of declaring Sen. Kerry's two daughters illegitimate, one has to admire their family's ability to get beyond that and continue their lives as a loving, mixed family.  Of course, only someone who's ashamed of his daughters' status as bastards would be reluctant to discuss that in a public forum, so I know the Senator would be willing to discuss that subject calmly, perhaps even eagerly, to illustrate how they've overcome the narrow-mindedness of such attitudes.  However, I do think that since I'm not of the Catholic faith myself, it would be inappropriate for me to weigh in on the assertions of various Catholic priests and bishops that Sen. Kerry should be refused holy communion because of his support for legalized infantcide through partial birth abortions and more generally his support for abortion-on-demand.

Would such a statement, however piously couched and with whatever disclaimers, nonetheless be an aggregation of vile, disgusting cheap shots?  Yeah, very definitely.  Would those cheap shots nevertheless be factually accurate?  Yeah, they are.  Have I known these bits for months and months, and previously declined to blog about them even briefly?  Of course.  Have Republican candidates and their proxies, including Karl Rove, made cheap shots in other campaigns?   Yes, of course; but Dubya hasn't, and he hasn't permitted his campaign to do so, and he and Vice President Cheney are who's on the ballot on Nov. 2.

Do I personally think that Sen. Kerry's failed first marriage and divorce, the subsequent annulment of it, and the intrinsic conflict between his and his church's positions on abortion are reasons not to vote for him?  No, I don't.  I'm a divorced father of four myself, and I absolutely, sincerely, and without any reservation applaud Sen. Kerry and his ex-wife for what appear to have been extraordinary and successful efforts to overcome the challenges they've faced on that score.  I strongly oppose discrimination on the basis of sexual preference, I have no opposition to gay marriage, I reluctantly support abortion rights in at least some circumstances, and I think the Catholic Church's official views on divorce are extreme, outdated, and sometimes quite cruel in their effect on parties (especially children) who bear no moral responsibility for a marriage's failure. 

But I acknowledge and respect the fact that other principled and intelligent individuals differ with my views on these topics; I have no desire to debate these topics with them or persuade them to my own point of view (hence my previous, and subsequent, decision not to blog about them); and I certainly accept the political reality that these issues can be exploited for disproportionate and cynical political gain among such persons.  They're relevant now only in passing, and not for anything these points say directly about Sen. Kerry, but only in response to the Kerry-Edwards campaign's repeated references to Mary Cheney's sexuality, as an example of that campaign's hypocrisy, cynicism, and political opportunism.  In other words, I'm willing to acknowledge a cheap shot when I see (or, here, reluctantly make) one.

Comments on this post are closed, and I'll not blog about these topics in the future.

Beldar confesses another VRWC link

I doubt there's room for it on the NYT's famous chart on the SwiftVets and those who've contributed financially to their campaign, but I hereby confess to another link to the Vast Right-Wing Conspiracy whose tentacles connect all the forces that seek Sen. Kerry's defeat in the upcoming election.

While I was an associate in the Trial Department of Houston's Baker Botts in the early and mid-1980s, I was among the many lawyers involved in representing Boone Pickens' Mesa Petroleum (and its various affiliates and deal partners) in a series of contested tender offers, including those for Gulf Oil, Phillips Petroleum, Unocal, and Newmont Mining.  I've got dozens of trial lawyer war stories to tell from those days, but one quick one pops to mind in this political season.

During the Phillips tender offer, Phillips' New York counsel thought that they'd dig around in hopes of finding that Mr. Pickens had tipped off his longtime friends and poker-playing buddies in Amarillo with inside information about various of his deals, and so they initiated a round of nonparty depositions to grill those poker buddies about their conversations with Mr. Pickens and their own market activities.  Mr. Pickens, of course, was and remains a controversial, almost mythical figure, but nobody has ever accused him of being pathologically stupid — which he'd have to have been to discuss his tender offer plans at a poker game.  Indeed, Mr. Pickens' friends unanimously and adamantly insisted that he had not only a good poker face, but well knew how to keep his secrets, and Phillips' counsel turned up not a shred of evidence to support their theories.  But they did manage to substantially annoy Mr. Pickens' friends and, of course, thereby to annoy Mr. Pickens through this harassment.  Accordingly, although I didn't directly represent Mr. Pickens' friends, my assigned job on that particular deal was to attend, monitor, and report nightly on these depositions by telephone directly to Mr. Pickens.  (I don't believe that I've ever met him in person.)

The Phillips deal took place during the 1984 Christmas season, and during a brief break in the depositions, I managed to get down from Amarillo to my dad's house in my hometown of Lamesa, a few hours' drive south.  Now, my dad's always been proud of my accomplishments, but he doesn't play the market and had only the vaguest understanding of what these tender offers were all about.  Millions, billions, arbs, investment bankers, Pac Man offers, white knights, poison pills — all Greek to my pa.  But I'm pretty sure that the most impressed he's ever been with my career doings was on that frostly Christmas Eve, when he picked up his home phone to find that Mr. Pickens was on the other end, returning my call to report on the prior morning's deposition.  "Was that really Boone Pickens calling you?" he wanted to know.  I assured my dad that it had been.  "And you gave him my phone number?"  Ayup.  "Well ... damn!  T. Boone Pickens calling my house on Christmas Eve! How about that!" was all my dad could say for about the next half hour. 

I rather doubt that my New York-based counterparts for Phillips had quite as merry Christmas Eve dinners in their Amarillo motel rooms.  The local folks there, although unfailingly polite, had pegged them as Yankee Grinches.  And while I don't know whether Santa left coal and switches in their stockings, they were a cheerless bunch as we resumed the depositions on Boxing Day.

Koppel vs. O'Neill: Nightline goes to Vietnam

I'm late in blogging about ABC News' "Nightline" segment this week on Kerry's Silver Star.  Despite helpful heads-ups from several emailers, I missed all but the tail end of the broadcast — Koppel's verbal firefight with John O'Neill — because I was watching the Astros lose.  However, I've read more than a dozen blog posts from both left- and right-leaning blogs — including Captain's Quarters, Tom Maguire, INDC Journal, Wizbang!, Patterico, PrestoPundit, Demosophia, Watcher of Weasels, Andrew Sullivan, Kevin Drum, Josh Marshall, and Linkmeister —  and the ABC News websight's version and John O'Neill's statement on the SwiftVets' website.  (If someone has a link to the full video somewhere, I'd appreciate a link.)

I don't fault, but rather commend, ABC News for attempting to do some original investigative journalism "on the scene."  But at least two initial points about that need to be emphasized. 

• Most importantly, while ABC News invested a great deal of time and money going to Vietnam, they've failed to exhaust, plumb, or even scratch the surface of trying to do any investigative reporting here in the United States.  It's not only that they've failed to interview pro-SwiftVets eyewitnesses, but also that they've also failed to interview pro-Kerry eyewitnesses — and no one, from either side of the debate, can seriously defend their failure to do that.  Indeed, they failed to review, summarize, or even reference what others have reported — including, notably, the eyewitness account given by their fellow mainstream media source, Chicago Tribune editor William B. Rood — and that's simply inexcusably sloppy.
• Next, ABC News made only passing and oblique references to the fact that their reporting from Vietnam was done at the pleasure of, through cooperation with, and subject to deliberately injected bias from, the Vietnamese government — indeed, with a "watcher" on the scene from that government who had the power to reward or retaliate against the individuals whom they interviewed.  John O'Neill's protests to Ted Koppel that ABC News' interviews took place in a "closed society" were way too mild.  The totalitarian government of Vietnam has a direct stake in the outcome of the upcoming U.S. presidential election:  Not only was John Kerry, their candidate of choice, the leading U.S. critic of America's participation in the war among all U.S. combat veterans, but he also has been, as a senator, the leading proponent of normalization and increased trade ties with Vietnam in the post-war era.  The North Vietnamese (with guidance from, and in cooperation with, the KGB) were incredibly clever at exploiting American anti-war sentiment — they got America out of Vietnam by using useful fools like John Kerry in the first place.  It's unfortunately not metaphoric to describe ABC News' interviewees — the supposedly disinterested peasants described so enthusiastically by Koppel — as "testifying at gunpoint."  That doesn't necessarily mean they were lying, but any remotely fairminded journalistic effort should have carefully considered that situation — and should have reported clearly on the bias it very likely injected into their efforts.

That noted, my main reaction to the ABC News reporting is one of continuing, mouth-foaming frustration.  ABC News made only the most clumsy efforts at doing what every lawyer is required to do for every single witness who testifies in court, and what every reporter should likewise do before reporting a purported witness' story:  laying a foundation to show personal knowledge.  ABC News' apparent standard:  If the government minder let them talk to someone who appeared to be ethnically Vietnamese and was within range of their cameras and microphones, then each such person's claim to have personal knowledge was accepted as gospel.  Yes, of course it's difficult — it requires persistence — to separately qualify each such witness.  But the facts that the events occurred long ago, that they took place during combat, that there are language barriers, that there is a government watcher present — all these factors counsel more careful qualification of the purported eyewitnesses, not less.

By every previous account — except the abbreviated ones in Kerry's Silver Star citation — there were two separate locations involved.  In the ABC News website version, there's but a single, fleeting reference to that critical fact.  At the initial, main ambush location, the Swift Boats offloaded dozens and dozens of Ruff Puff infantry to chase down and kill the enemy who were present, and the Swift Boats themselves expended an enormous amount of lethal ordnance.  That's where the enemy KIAs — other than Kerry's single prey — were reported.  It's extremely doubtful that even at that location, the American and South Vietnamese forces faced a numerically superior enemy or overwhelming incoming fire.  But unless every American eyewitness is lying through his teeth, at the second location — the only location where Kerry did anything arguably more valorous than what every man jack aboard every one of the (undecorated) officers and crew of the Swift Boats did — there were fewer enemy soldiers and considerably less enemy fire.  How many fewer enemy and how much less fire?  The ABC News reporting shed essentially no light on that subject because either through sloppy reporting or willful conflation, it didn't make the critical distinctions necessary to draw meaningful conclusions.

Andrew Sullivan calls this an "excellent reporting job."  Mr. Sullivan, other than the fact that it was done in a far-off country, can you point to a single aspect of this reporting that was "excellent," or even minimally competent?

Time-lines.  Maps and diagrams.  Lists of individual witnesses, thoroughly annotated to show their opportunities to observe, their qualifications to appreciate what was happening, and their possible biases.  Physical evidence (or reports thereof, like boat damage reports, ordnance expenditures).  If you're going to make any credible effort to "pierce the fog of war," that's how you have to go about it.  Compare, for example, the care and detail that's gone into reconstructions of what happened at Dealey Plaza on November 22, 1963 — not just in the years since, but in the days after.  Compare, for that matter, the kind of investigation that Hollywood writers dream up for any average episode of "Dragnet" or "CSI: Miami" or "Law and Order."  By any serious or responsible standard — journalistic standards, much less courtroom standards — this bit of reporting was a shallow, ridiculous joke of an effort. 

It makes me nauseous to think that an American presidential election might be influenced by such ham-handed hackery.  Any principled and half-competent cub reporter, any first-year law student, any backcountry magistrate, would be ashamed to turn in such an effort.

Best line I've heard today

"I know a commander in chief when I see one and there's only one on the ballot."

Retired Gen. Tommy Franks, campaigning for Dubya.

Beldar's take on the third presidential debate

Okay, I've got to admit that I'm so negative on John Kerry that I can't engage in much nuanced discussion of this debate.  The only thing I can say with lots of confidence is that at worst for Bush, this was a draw — and as with the prior debates, I think Kerry needed a Dubya screw-up to get a real surge. 

Trying to put aside my biases and be objective, I think it was a Dubya win.  My gosh, this man has grown in the presidency — and not just on foreign policy.  It's not so much that he's more polished than he was in 2000, but that there's more confidence and depth.  You may not agree with the decisions he's made and the priorities he's set, and you may hate him and his style.  But the debates confirm in spades what ought to be implicit from his performance in office, but what's more clearly on view in a setting like this — that this man is indeed up to the job of being President.  He's not a chimp; he's not a puppet of Karl Rove; he's not an accident of a Supreme Court vote.  He is the President of the United States.

The debates show that Kerry is up to debating.  I will certainly concede that the man talks a good game.  But it's almost all beautiful soap bubbles, and I'm not confident that I know what's at his core.  To the extent I think I know what's at his core, I dislike and distrust it.  He's a conflicted, blurry man — the only consistent bright gleam I see in his eyes is one of personal ambition, and around the edges of even that brightness is condescension and arrogance.  I do understand how my left-leaning friends can vote against Bush, for reasons of personality, policy, or both.  But I genuinely have trouble understanding how anyone can be enthusiastic about John Kerry.

Take-away lines from the transcript, one from Dubya, and one from Kerry that Dubya & Co. will exploit:  "A plan is not a litany of complaints."  And "I think it makes sense, I think most Americans in their guts know, that we ought to pass a sort of truth standard."  (Picture Chirac administering a lie detector test at the U.N., after he's graded the global test.)

CBS News should have just dropped any pretense of fairness and sent Dan Rather to moderate this damn thing.  The questions couldn't have been much more slanted if Michael Moore had been the moderator.

An aside, purely speculating, regarding Kerry's joke near the end: 

Well, I guess the president and you [referring to Bob Schieffer] and I are three examples of lucky people who married up. And some would say maybe me moreso than others. But I can take it.

In the next camera shot of Theresa, she looked like the furies of hell had swirled up inside her; she had the kind of grim smile a hungry tigress displays before she sinks a claw into a gazelle's liver.  And fer pete's sake, besides saying she was "strong," which Shieffer's question practically required him to say, and the crack about her being rich, Kerry couldn't come up with another thing to say specifically about THK, but instead transitioned into the story about his mother's deathbed.  As Roger L. Simon noted,

Why did Kerry's mother feel she had to remind him "Integrity! Integrity! Integrity!" from her hospital bed when he told her he was thinking of running for President? What did she know? My mother would have assumed I would have integrity in the same situation.

Looking at Kerry and THK together is like watching actors in an Edwardian stage play.  Looking at Dubya and Laura, you think, "Wow, what a lucky man he is to have her, and what a fabulous woman she is to believe in him so deeply."  I'm no psychologist, but my trial lawyer instincts, to the extent they operate in this weird context, tell me that a bunch of people who couldn't write three complete sentences on either candidate's domestic policies still came away from these debates with very strong impressions about their respective domestic households — and will only identify with, envy, or admire one of them.

Update (Wed Oct 13 @ 10:30pm):  Dave Kopel has a take similar to mine on NRO's The Corner:

With all due respect to my esteemed webmistress KJL, Kerry's "marrying up" line was a disaster. For the voters who are deciding on character rather than issues (many of the undecided and uninformed voters), the line was a stark reminder that Bush is still married to the girl of his youth, through all the ups and downs of his alcoholism and career. Bush did not "marry up"; he married down for the woman he loved. Kerry, in contrast, married up for his first wife, dropped her, and then married up big-time for his arrogant billionairess second wife. Which guy would you trust for steady leadership? ... Game, set, and match to GWB.

I agree, with the exception that I'd modify Dave's line about Laura to read "Bush did not 'marry up' in social class or wealth."  I suspect Dubya would be the first to agree that in terms of character and strength, he couldn't have made a better pick in the country than his blushing school librarian bride from Midland.

Update (Thu Oct 14 @ 1:20am):  Okay, if WaPo's Tom Shales says that Kerry won "very narrowly," and David Broder doesn't claim a Kerry win, and the LAT calls it a tie — that means Bush actually won.