BeldarBlog

A few words about Justice O'Connor

Sandra Day O'Connor's resignation as an Associate Justice of the United States Supreme Court is not particularly a surprise. Press and pundits will focus mostly on the question of her successor, but as part of that they will discuss Justice O'Connor's particular role in the Court over the last 24 years.

When President Reagan appointed Justice O'Connor, I was nearing the end of my judicial clerkship for Judge Carolyn D. King on the Fifth Circuit. It was widely rumored that President Reagan was inclined to make history by appointing the first woman to the Supreme Court. And even though Judge King had been a Carter appointee to the Fifth Circuit and was only in her second year on that court's bench, her nomination had come about through the recommendation of a genuinely nonpartisan advisory panel; her Senate confirmation had been entirely routine; her father, as a Republican, had served as the New York Commissioner of Insurance, and she had other family connections to prominent Republicans; and there was only a very small handful of female U.S. Circuit Judges at that time. Then as now, it was common and logical for Presidents to look for Supreme Court nominees among the Circuit Judges of the U.S. Courts of Appeals. So Judge King's name was among those being floated as possible nominees, and I entertained brief fantasies about getting to tag along with her if she were elevated (having already collected a complete set of very polite letters rejecting my clerkship applications to the other then-existing members of the Supreme Court).

I remember being a little bit disappointed, then, for both Judge King and myself when President Reagan announced the O'Connor nomination, and my private comments then on the nomination were probably quite snarky. Although no one made a big deal of it at the time, new Justice O'Connor's prior record on the bench was, viewed objectively, very thin — comprising only a few years as an Arizona state-court trial judge and an even shorter stint on an intermediate-level Arizona state appellate court. To some extent, that thin judicial record was offset by her genuinely superb academic credentials (third in her class at Stanford Law) and the variety of her other legal experiences, which included both private practice and public service as a deputy county attorney and assistant state attorney general.

I find much to admire in her overall record as a Justice. And certainly Justice O'Connor has been a gracious, diligent, and dignified jurist who has entirely transcended what was, realistically, the "affirmative action" nature of her nomination at the time; for that, she's entitled to a great deal of credit. In hindsight, however, the most significant and predictive prior credential that Justice O'Connor brought to the Court was as a former Arizona state senator — and indeed, she was not just any state senator, but the majority leader of the Arizona state senate. As a Justice, she's been quirky and unpredictable — the pragmatic politician and compromiser, rather than a consistent bastion of any legal or philosophical principles. And thus I also find much in her overall record to fault.

If there are one or two such Justices on the Court at any given time, that may not be a bad thing. If there are three or more, though, the Court loses its effectiveness in leading the federal judiciary; it produces fractured results, splintered decisions, unpredictability, inconsistency, and philosophical muck. Congress can consistently create enough of that for all three branches of government combined, and that's where the pure politicians, the compromisers, ought to hold forth.

It's for that reason that I hope and trust Dubya will nominate a principled judicial conservative to succeed her — someone perhaps less "pragmatic" and "flexible" who will help stop the Court's current muddy drift. Intending no disrespect to any of them — for I do indeed genuinely respect all of the current Justices, including those with whom I almost always disagree — at this point, we need no more Souters, no more Kennedys, and no more O'Connors.

Senior pundit psychosis

Bill Safire is a very good writer, even when (in Prof. Reynolds' apt description) he's "guilty of tilting too much toward the home team." One way you can tell he's a good writer is that he can boil his arguments down into a succinct one-sentence paragraph for his lede. Thus, I can do a reasonably thorough fisking of his entire op-ed in yesterday's New York Times entitled "The Jailing of Judith Miller" by just dealing with that single crisply written, badly wrong paragraph:

The Supreme Court has just flinched from its responsibility to stop the unjust jailing of two journalists — not charged with any wrongdoing — by a runaway prosecutor who will go to any lengths to use the government's contempt power to force them to betray their confidential sources.

"The Supreme Court has just ...":  This part's okay.  The ruling in question (at page 10 of the linked .pdf file) indeed came from the Supreme Court on Monday — buried among dozens and dozens of other such rulings, all of them denials of petitions for writs of certiorari.

"... flinched from its responsibility to stop ...": Safire knows, I'm sure, that for this (and most other) types of cases being appealed from the federal circuit courts of appeals, the Supreme Court's jurisdiction is discretionary, not mandatory. The Supreme Court's "responsibility" is not to right every individual wrong; it cannot possibly hope to do that. Rather, the Supreme Court's "responsibility" is to avoid wasting its resources on cases that have been correctly decided under its existing precedents. The decision in question here was precisely such a case, as all three judges from the D.C. Circuit had agreed and, before them, the federal district judge had ruled. The accurate description of what the Court did on Monday has nothing to do with "flinching" unless you think that word includes the Court declining to overrule its own prior decisions via a case whose factual pattern presented a spectacularly inappropriate vehicle for doing so.

"... the unjust jailing of two journalists ...": Two journalists are indeed involved, and they will indeed go to jail now unless they very promptly "purge" themselves of civil contempt by complying with the federal courts' order. The keys to the jailhouse door are in their own hands. "Justice" is arguably in the eye of the beholder, of course; but if one accepts the proposition that long-standing law, consistently applied, leads to justice, then there is absolutely nothing unjust about these two journalists being required to abide by that law.

"... — not charged with any wrongdoing — ...": The two journalists have not been charged with any independent crime themselves, nor does it seem likely that they will be. They have been charged, and found guilty of, "civil contempt" — the willful and deliberate refusal to comply with a lawful order of a court that has jurisdiction over both them and the subject matter (here, a grand jury's deliberations and a federal prosecutor's efforts to gather evidence so that he and it can fulfill their joint duty to determine whether a criminal indictment should be returned). Most folks would characterize thumbing your nose at a lawful court order as "wrongdoing." So does the law, which is why it permits judges to punish that act by putting the nose-thumbers in jail and fining them.

"... by a runaway prosecutor ...": This characterization is so over-the-top that Ms. Miller's own lawyers never dared argue it, nor even suggest it. Rather, they conceded, as they or any student of the law must, that prosecutors should and do have broad discretion in investigating whether a crime has been committed. They could not prove that this prosecutor had strayed outside his discretion, nor even articulate a coherent argument to that effect. Making this argument would have amounted to lying to the Court; it would have been so badly wrong as to be unethical, and certainly would have destroyed any shred of credibility those lawyers might otherwise have hoped for, to the detriment of their client. Mr. Safire, as a nonlawyer pundit, is of course under no such constraints, and runs no such risks on a client's behalf.

"... who will go to any lengths to use the government's contempt power to force them ...": This is not only over-the-top rhetorically (and a very tired cliché unworthy of a wordsmith like Mr. Safire), but demonstrably untrue. This prosecutor has, in fact, demonstrated an abundant willingness to compromise, for that's exactly what he's done with all the press sources he's subpoenaed except for Judith Miller and Matt Cooper/Time. Everyone else quietly folded their tents and cut a deal; and indeed, the latest press reports suggest that Time, at least, is in the process of cutting a deal even now that will permit them to turn over notes in lieu (at least for now) of Mr. Cooper having to give live testimony. If the prosecutor can be faulted, it's for being a softie — for taking less than what every single court and every single judge who've ruled on this case have agreed that he and the grand jury are entitled to get.

"... to betray their confidential sources ...": Inherent in the concept of "betrayal" is the notion of choice. Neither these reporters nor their "confidential sources" could reasonably have believed that the reporters would have a choice to withhold evidence in response to a lawful subpoena issued in connection with a lawful grand jury investigation. The law has always been against them. Certainly Ms. Miller and Mr. Cooper have done all that any source might reasonably hope or expect them to do to protect that source's confidentiality — they've fought, kicked, screamed, and dragged their heels for months and months, at the cost of hundreds of thousands of dollars in legal fees, all the way to the Supreme Court in an attempt to change the law that has always been against them. Only if one adopts a lawless frame of reference can one argue that compliance with the federal courts' orders is a betrayal; it's a betrayal in exactly the same sense that a Mafia informant "betrays" his mob bosses, i.e., through submitting to the law. Maybe the guys at the NYT have been watching too many reruns of The Sopranos and they think that people who flout the law are the good guys now.

Bill Safire, I know you know better than this.

The rest of Mr. Safire's op-ed is likewise filled with fundamental misconceptions that simply ignore reality. For example, he claims that "[e]vidently no such serious crime took place," for which his supporting statement is that "the prosecutor, Patrick Fitzgerald, admits his investigation has been stalled since last October." Duh. The reason that the investigation has been stalled, Bill, is because that "go-to-any-lengths prosecutor" first exhausted every other alternative to forcing press sources to testify, giving Judy and Matt a degree of deference that the law does not require and that nobody else gets the benefit of. And ever since then (last October), Judy and Matt have literally stopped the show.

The point of a grand jury investigation is to find out whether there are grounds to believe that a serious crime took place. But Matt Cooper and Judith Miller have prevented this grand jury and this prosecutor from doing that. We won't actually know, of course, whether a serious crime has in fact been committed until after someone's been indicted, tried, convicted, and has exhausted any appeals. And it may be that the end of the process, in its natural progression, will come far sooner than that — if, for example, the prosecutor decides based on all of the evidence that he ought not ask for an indictment, or if the grand jury refuses his request to return one. But it's intellectually dishonest — way beneath someone like Bill Safire — to forget these most basic facts about how the criminal justice system has always, always worked.

From intellectual dishonesty, though, Mr. Safire progresses to just plain silly:

The judge should resist the prosecutor's pressure for coercive, lengthy and possibly dangerous confinement. Judy won't crack and should not be made to suffer.

Now that's a genuinely novel defense: it amounts to saying, "My friend Judy is such a scofflaw, so incorrigible — so far above the law — that she should be exempt from any consequence for breaking it." The ghost of Mr. Safire's old boss, Richard Nixon, is no doubt saying to himself, "Why didn't I think of that argument?" (Except, actually, he sorta did; it's just that he, unlike Mr. Safire, realized that when the Supremes ruled against him, the jig was up.)

It's one thing to argue that Congress should consider passing some sort of federal shield law. That's an argument I don't agree with, but I certainly would agree that it can be made in good faith by serious people (although I continue to think that this case is an incredibly, laughably weak example to advance in support of the need for such legislation). But when you argue that Judith Miller transcends the law, that she's entitled to ignore it, and that her personal beliefs allow her to do any damn thing she pleases in the holy name of journalism, lest she be subjected to "coercive" and "possibly dangerous" time in a federal pokey — well, that's not an argument that can be made in good faith by a serious person.

If you're consistently that disconnected from the real world, the docs tend to conclude that you're psychotic. And as much as I admire and respect Bill Safire, I have to conclude that on this issue, in this particular op-ed, he is psychotic. Fortunately, the only danger is to Mr. Safire's reputation. Still, I genuinely wish him a prompt and thorough recovery.

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UPDATE (Fri Jul 1 @ 9:20am):  Time Inc. has indeed agreed to hand over Cooper's notes. As of the moment, though, it appears that everyone at the NYT is still sharing Bill Safire's Kool-Aid.

A Denver Post editorial condemning Time Inc.'s decision inadvertantly gets something exactly right:

On Wednesday, outside court, Cooper told reporters that he hoped the magazine wouldn't turn over the requested documents. It was his word that was at stake. Shame on Time Inc.

That middle sentence is correct, although I'd edit it to say, "It was only his word that was at stake" — not the First Amendment, and not some legal right. Cooper and Miller gave their word to do something that the law does not permit. They've defied the law and done their best to try to change it, but they failed. Now their "word" must give way to the law. Shame on the Denver Post and the New York Times for failing to recognize as much.

When Alabama jurist Roy Moore refused to recognize and comply with a federal court order that was subject to no further appeals, then-state attorney general (now Eleventh Circuit Judge) Bill Pryor personally handled the disciplinary proceedings to remove him from the bench. But there is no such procedure to remove similarly defiant journalists or publishers from their positions.

There is, however, a jail cell allocated for Judith Miller. Perhaps she'll go the route of martyrdom with the NYT's support and encouragement. Perhaps Bill Safire and the Denver Post and others will continue to delude themselves, and continue to try to mislead the public by shouting "First Amendment!" Perhaps the District of Columbia federal detention facilities will become the "next Gitmo" or the next "gulag for our times" in their breathless nonsense.

My guess is that Floyd Abrams is tearing his hair in frustration this morning at his client's stupidity. (His cert petition was actually very good, and reflected a far better understanding of how to push the right buttons to get Supreme Court review granted than the parallel petition filed on behalf of Cooper and Time by their new lawyers, but the prosecutor's response skillfully defused even Abrams' attempts to make this case "cert-worthy.") At this point, though, I'm sure that Abrams' advice to Miller and the NYT has been that their choices are to comply; to try to cut a deal or to satisfy the prosecutor through partial compliance; or to defy outright the federal courts, with fines and jail time as the certain and immediate result. Having given that advice, Abrams will have left it to his clients to decide among these alternatives, as a lawyer must.

But I'll shed absolutely no tears for Judy in jail. If she continues to defy the courts — all of them, from the bottom to the top of the federal system now — she'll richly deserve to be there. I cannot but scoff at a scofflaw pretending to be a martyr.

How 'bout them Longhorns?

This is what the good folks of Austin will be seeing in the sky tonight:

Wish I could be there to see it, but I feel good just knowing it will be there. Congratulations to the Texas Longhorn baseball team — 2005 National Champions!