BeldarBlog

Clarity about Gitmo and the law

I mostly stopped reading Andrew Sullivan several months ago, but this morning I was curious what he had to say about the London bombings. I didn't see anything on that topic that inspired any particularly strong reactions in me, but this item caught my eye for some reason:

FIXING GITMO: What Washington needs to do. Jon Rauch brings his usual clarity to the legal question, although I'm not as sanguine as he is about what may have happened during Gitmo interrogations.

So I followed the link to the online edition of the National Journal (admittedly not one of my regular reads) to see what struck Sully as "clarity" on the "legal question" about Gitmo. But I found it very hard to get beyond Mr. Rauch's first two paragraphs (boldface mine):

The Bush administration has been picking up, imprisoning, and interrogating people it regards as "enemy combatants" since the World Trade Center's twin towers fell. In this new kind of war, the administration said, many of America's most dangerous enemies are beyond the reach of conventional criminal law, and many are also too dangerous to release.

All true. The country faced an emergency after 9/11. So the administration unilaterally declared and exercised what amounts to selective martial law: the power to detain suspected enemies and hold them incommunicado, without meaningful access to courts or lawyers, for as long as they are deemed dangerous or able to provide useful intelligence. Two U.S. citizens were arrested and held in this way; hundreds of foreigners were sent to Guantanamo; more than 200 of them, according to the Pentagon, have since been released.

The language I've bolded above is the transition necessary for Mr. Rauch to avoid the correct observation in his first paragraph — that "many of America's most dangerous enemies are beyond the reach of conventional criminal law" — and it is in fact the necessary premise for the remainder of Mr. Rauch's essay. But it's not "clarity," legal or otherwise; it's a ridiculous and demonstrably false premise.

"Martial law" is something imposed by armies on a noncombatant civilian population. Nobody being detained at Gitmo even arguably fits that definition. Mr. Rauch's verbal sleight of hand — "what amounts to selective martial law" — isn't "clarity," but is rather a massive falsehood that becomes his excuse for a pious discussion of the Gitmo detainees as if they'd been placed there for, say, getting a bit too rowdy at an Iowa county fair.

Martial law isn't the legal basis for keeping POWs in captivity, and it isn't the basis for keeping irregular combatants (a/k/a "illegal" combatants because they're violating the "laws of civilized warfare" and can't qualify for the status of true POWs under those laws) in captivity either. No sort of law applicable to civilian noncombatants — whether martial law or regular criminal law — is the basis for detaining these men, and any arguments based on such a premise are offensively specious from the outset.

If you want some clarity — some genuinely elegant clarity — on this topic, Mr. Sullivan, read this short essay by Prof. Eugene Volokh. It's too tightly constructed, indeed seamless, to excerpt here in a way that does it justice, but it brings any reader to this absolutely inescapable conclusion (internal parenthetical omitted; bracketed portion mine):

[A]s a matter of law and of morality, it's perfectly proper to keep an enemy soldier [— whether he's been a lawful or unlawful combatant —] detained until he is no longer dangerous to us, even if that means he'll be locked up for the rest of his life. It's that; killing them on the battlefield; or letting them go so they can kill us.

Just read the whole thing. Afterwards, unless you're willfully blind to law, logic, and morality, you'll certainly understand why you needn't bother reading past the second paragraph of Mr. Rauch's essay.

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UPDATE (Sat Jul 9 @ 12:45pm): Via Prof. Volokh's trackbacks, I came across this reply to his essay by Hanno Kaiser. Mr. Kaiser has the impression that the Gitmo detainees were captured not as combatants on a battlefield, nor through an exercise of martial law, but as persons caught up in a "pocket of [American] executive or military power" that has since dissipated. Equally bogus; amazingly obtuse and otherworldly; something that could only be written by a man with absolutely no concept of what it's like for an American soldier to have an RPG fired at him on a battlefield.

Gonzales and recusal

(Initial disclaimer: I have zero inside information and don't wish to get into the speculation that's whipping around the cable news networks and the internet over whether Chief Justice Rehnquist and/or Associate Justices Stevens and Ginsburg might be about to resign.)

Ed Whelan has been writing a series of posts on NRO's Bench Memos blog to argue that a — or perhaps in his view "the" — key reason Dubya shouldn't nominate Attorney General Alberto Gonzales to a seat on the Supreme Court is that by virtue of his service as AG, Gonzales would have to recuse himself from many, many important cases in which he's been involved on behalf of the DoJ and the Bush Administration. His newest full-fledged op-ed on NRO, and a follow-up post on the blog, feature Mr. Whelan's fairly technical debate with an unnamed (but obviously very bright) correspondent over just how often a hypothetical Justice Gonzales would have to recuse himself under the relevant statute.

I'm not sure who has the better of the argument over the statute. And although I have some reservations about a Gonzales nomination and see no shortage of other appealing candidates, I definitely don't know as much about his heart and his mind and his character as Dubya does.  I actually give more than just lip service to the idea that a President (any President) ought to be given a whole lot of discretion in making these choices. Based on that, I'll enthusiastically support a Gonzales nomination if that's indeed who Dubya picks.

But I do have this to say in particular about Mr. Whelan's recusal arguments: Whether it's in a few pending and impending cases, or in a whole lot, it's reasonably certain that a Justice Gonzales would have to recuse himself in at least some cases. But this man (d/o/b 4 Aug 1955) is still a bit shy of fifty; it's not inconceivable or even unlikely that he could be on the Court for twenty, twenty-five, even thirty or more years. I'm not saying that potential recusal problems are absolutely meaningless. But they'd be in a limited number of cases, and the problems would essentially be gone in a couple or three years. Even if Mr. Whelan's interpretation of the statute is correct and the percentage during those two or three years is significant, making this a disqualifying factor all by itself would be very short-sighted.

Mr. Whelan's almost certainly a smarter lawyer than me, but I'm older than him. And as an old fogey, I confidently proclaim that what's on the Court's current plate, or what's likely to be added to it in the next year or two or three, just isn't what this is mostly about. Dubya's drafting for the franchise — not for the next couple of seasons — and you don't strike a long-term prospect from your draft list over a twisted ankle that might hobble him for a few games.

The London bombings

In the summer of 1981 at the end of my judicial clerkship, one of my departing co-clerks and I bummed around the UK for a few weeks. We rented a car, acclimated ourselves with some difficulty to driving on the left sides of the roads, and made a long, lazy loop from London to Cardiff to Inverness and back. Our car broke down in a village just north of the Scottish-English border where we spent a very pleasant weekend waiting for required repair parts. We strolled everywhere and nowhere in particular. We hung out; we chilled. We drank and made friends with the locals at the pub over which our modest bed-and-breakfast lodgings were located. I remember that we were hugely amused by the large variety of American country western songs on the pub's jukebox; but beer is indeed the universal solvent, and as Texans we both knew enough of those songs so that we could sing along quite a bit with the locals, which they found hugely amusing. Our car was duly fixed on the following Monday, and our trip resumed. But then years later, in 1988, I was horrified, made sick to my stomach, to hear that little town's name — Lockerbie — on the news when Pan Am Flight 103 was blown up over and crashed down into it.

I returned to Britain with my new bride on our honeymoon in 1985. Another rent car, another drive up through England and Scotland. We arrived in Edinburgh as a rainstorm was ending, and to my dying day I'll remember the perfect, perfectly rare, intense double-rainbow we saw hanging over High Street — as if not just Scotland and its people were welcoming us, but their magic was too.

I was back in London in 1990 to present for videotape depositions the top executives of a British client I was defending in a Texas lawsuit. A partner and I had arranged to combine some pleasure with business by bringing our wifes and scheduling an intervening weekend between the depo prep sessions and the depositions themselves. Thus it was that on Saturday, March 31, 1990, my wife and I decided to attend an afternoon matinee performance of Miss Saigon in the West End. Even in our crummy seats in the theater's very back row, we were suitably affected by the play's wonderful, loud, scary special effects — explosions, gunshots, smoke, crowds, marchers, the helicopter landing on the roof of the embassy — and swept up in the play's fabulous music and strong emotions. When the matinee ended around dusk, we exited the theater to find ourselves instantly engulfed, to our extreme bewilderment and considerable fear, in the largest and most violent riot to take place in modern times in Britain. (We later learned that they were called the Poll Tax Riots, and they became a major part in ending Maggie Thatcher's long tenure as Prime Minister.) Immediately outside the theater's doors, we were almost trampled by a crowd of shouting, running protesters; and when we looked back to see what they were running from, we saw a phalanx of riot-geared Bobbies advancing toward us shield-to-shield at a fast trot. So we ran too — past overturned, burning luxury cars and smashed shop windows, past bloody-nosed sign-holders sprawled in the street, through non-SFX smoke and debris. It just seemed so surreal, so very wrong — this chaos and violence in the stately, wonderful London we loved! In fact, it seemed far more unreal than the play we'd just seen, and we couldn't willingly suspend our disbelief for London. We moved at right angles to the crowds and eventually, after we got out of the riot area, we finally were able to hail and sink into the welcoming, reassuringly dull comfort of a London taxicab, and thence we safely returned to our very nice hotel in Mayfair. Over a room service supper, we watched the last throes of the riot simultaneously on the telly and through our room's windows overlooking Hyde Park.

I'm an clear-eyed but unabashed Anglophile. My respect and affection for the Brits is boundless. My gratitude and appreciation for the special relationship between our countries has grown throughout my life. Every trip I've made there, whether I've been in busy London or sleepy Lockerbie, it's felt like "home" in a way that no other country but my own has done. And so watching the televised coverage of the terrorist-created carnage there during the last two days, I've once again felt heartsick, and absolutely inadequate in trying to formulate my condolences, or to express my sorrow for the dead and injured, my admiration for the rescuers, my solidarity with the citizenry. But I had to at least try, and hence this post. Maybe it's unbecoming for a private citizen, a grown man in far-away Texas, to say to a whole 'nuther country and its people, "I love you, and I'm awfully sorry for what's just happened." But that's what I feel like saying, and there you have it.

Judy's jail

Am I the only one who's wondering — after reading this NYT description of Judith Miller's jail, her privileges to mingle, and the identity of her co-inmates — whether Zacarias Moussaoui is about to become her next "confidential source"?

Talk about your small worlds! I suppose if Moussaoui is looking for the one fellow inmate whom he's reasonably sure won't someday snitch him out, Judy might look pretty good right now. And from her perspective, you know what they say: "One [jail] door closes, another opens!"

And I appreciated this gripping crowd scene photo, also from the NYT:

I can't quite make out all of the text on this fellow's chest, but I believe it says something about "Niger," "yellowcake," and "this lousy t-shirt." Anyway, although I know that Bill Safire and the NYT have expressed worries for Ms. Miller's safety, I think they can now at least discount the risks of her being accidentally injured by the supportive mob streaming over the barricades.

This bit, from the same article, is also fairly amusing:

In remarks outside the courthouse on Wednesday, Floyd Abrams, another of her lawyers, hinted at a possible strategy in the coming weeks.

"At some point before the expiration of that four-month period," Mr. Abrams said, "a lawyer can go back to Judge Hogan and say: 'Blank period of time has passed. She has not revealed her source. There's no reason to think that she will. And so we ask you to free her now.' That is something that does come up routinely in civil contempt situations."

But Charles L. Babcock, a lawyer specializing in First Amendment issues with the Jackson Walker law firm in Dallas, said he was dubious about that strategy's chances of success, given Judge Hogan's rulings.

Mr. Babcock is indeed the local equivalent of Floyd Abrams, the Texas go-to guy and lawyer of choice for media organizations. He's not quoted directly, and I suspect that however he expressed his "dubiousness" to the NYT, he was extremely polite and deferential to Mr. Abrams. I'll try to restrain my own snark, and limit myself to observing that in my own humble opinion, for Mr. Abrams' pitch to be likely to work, he'd need to be able to truthfully replace his "blank period of time [having] passed" phrase with "Hell having now definitely frozen over." I'm not expecting Judge Hogan to be the first one to blink here.

A related point that I haven't seen mentioned in the MSM: It's true that the suspension of the contempt sanctions pending Ms. Miller's DC Circuit appeal and Supreme Court cert petition has effectively shortened her short-term potential jail time. But when this grand jury's term expires, another one will be empaneled immediately; that which has been presented to this grand jury will be available to the next; subpoenas that were issued for this grand jury but were never fully complied with can and almost certainly will be re-issued for the next; and Judge Hogan is absolutely entitled and quite certain to take into account Ms. Miller's defiance of him and this grand jury in considering a re-filed civil contempt charge in connection with the next. If she gets one at all, Ms. Miller's release from jail at the conclusion of the present grand jury's term may be a very short holiday indeed. I'm confident that Mr. Abrams has so advised Ms. Miller and her employer. There aren't table stakes; this is a game of no-limit poker, and Judge Hogan has the nearly unlimited chip stack that goes along with the robe and the gavel.

Is Judith Miller engaged in a noble act of civil disobedience?

Distinguished blogger and Wisconsin Law School Professor Ann Althouse wrote this today about Judith Miller's jailing:

I respect civil disobedience, defying the law for a cause. Part of it is accepting the consequences, as Judith Miller is doing. It's a very powerful image, a person going willingly to jail for a principle deeply believed in. It can work to produce a change in the law.

Of U.S. District Judge Thomas Hogan's comparison of Ms. Miller's conduct to that of a defiant child, Prof. Althouse wrote:

There being no federal journalist's privilege, the judge had to punish Miller, but he didn't have to say that. His effort to strip all dignity from her as she made her grand gesture backfired and made him look small.

I agree that some instances of civil disobedience can be admirable. Recall, for example, the image of the lone Chinese protester facing down the on-coming tank column in Tiananmen Square in 1989. But I respectfully and emphatically disagree that Ms. Miller is now engaged in a noble act of civil disobedience. Here's a (somewhat edited and inevitably expanded) reprint of my response in her blog's comments:

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Prof. Althouse, you wrote: "There being no federal journalist's privilege, the judge had to punish Miller ...."

Okay, then, you, I, Judge Hogan, and a unanimous three-judge panel of the DC Circuit are all on record as agreeing that Judith Miller is a scofflaw who has willfully defied a valid order of a proper court having jurisdiction over both her and the subject matter. (The en banc DC Circuit and Supreme Court also declined to make a contrary ruling, but let's give Ms. Miller the benefit of the doubt by recognizing those as rulings not on the merits.)

"[H]er grand gesture" is by definition one of defying the law. We agree on that, do we not? The issue then becomes whether this particular act of "civil disobedience" is or isn't praiseworthy, admirable, grand, principled, and cloaked with "dignity."

Every other reporter and press organization involved in this controversy has made the opposite decision to Ms. Miller's (as supported and subsidized by her employer, the NYT). None of them has joined in her "grand gesture"; whatever dignity she's exhibiting, they all lack; whatever principle she seeks to vindicate, they have proved themselves willing to sacrifice.

But the only principle that she can be trying to vindicate is her "right" — not a legal one, we all agree, for the law provides no such right — to ignore the release concededly granted by her source that frees her from her original promise of confidentiality, based on her sole, subjective determination that the release was coerced and invalid. Her case is not one in which she's protecting a confidential source who claims to want to be protected, but rather one in which, to the question "Should I reveal your identity?" Ms. Miller will not take "yes" for an answer.

Nevertheless, Prof. Althouse, you see in that defiance of the law, and that nonconformance with the actions of every other reporter and news organization involved, and that insistance on following her own assessment of someone else's free will over his/her own assessment, some sort of "dignity." If so, how is that "dignity" distinguishable from psychosis? Surely it is not the intensity of her subjective sincerity that gives her dignity, is it? Timothy McVeigh was almost certainly as subjectively sincere in his beliefs until the moment that the lethal chemicals flowed through his veins. Is her dignity the same as his?

Judge Hogan and the unanimous three-judge panel of the DC Circuit — including the sole judge thereupon who agreed that the federal courts ought to craft a shield law comparable to the statutes passed by many states — all agreed that the prosecution's showing of need and exhaustion of alternatives here would have been sufficient to overcome any qualified privilege. Does her dignity come, then, from submitting to incarceration in order to promote the creation of a new rule of law that would not have kept her out of jail?

We should admire someone who wants to change the law to create an absolute privilege, unique to news reporters (however defined), that can never be overcome no matter how essential the reporter's testimony may be, no matter what prior lengths the prosecution has gone to in exhausting other means, and with that same reporter being the sole and absolute judge of whether her source has been coerced in releasing her from her promise of confidentiality? Is that what you think the law should become, Prof. Althouse? For that is exactly what the law must change into, in order for Judith Miller's defiance of the current law to be "principled."

Having failed to persuade any of the dozens of federal judges who've looked at her contempt citation that Ms. Miller ought not be jailed, Ms. Miller's superb attorneys had just filed papers asking with a straight face that she serve her sentence at home. She asked to be grounded — a punishment that parents impose upon defiant and rulebreaking children. There is "dignity" in that?

Ms. Miller is in fact acting like a selfish, spoiled, petulant child. I can't quite blame the judge at whom her contempt has been focused for saying so. He could have said much worse, with absolute factual justification.

I see no legitimate principle at stake here; I see no dignity, nothing grand. I refuse to even impliedly condone her lawlessness, or to impliedly encourage others to emulate her defiance, by pretending that there's anything at all noble in what she's done or what she's doing. I respectfully dissent.

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UPDATE (Fri Jul 8 @ 2:30pm): Prof. Althouse has graciously pointed out in a comment on her own blog (which she also thoughtfully re-posted here in my own blog's comments) that, contrary to my original inference, she has not taken a position "on whether Judith Miller made the right call that this was a matter that justified civil disobedience or whether if there were a federal statutory reporter's privilege it ought to cover the situation in Miller's case." Fair enough, and much appreciated.

Beldar to Brian Williams: "Revolutionary" ≠ "terrorist"

I belatedly found, via a link from Will Collier, what Will correctly calls NBC News anchor Brian Williams' "rather pompous non-apology apology" for writing and broadcasting last week that "several U.S. presidents were at minimum revolutionaries, and probably were considered terrorists of their time by the Crown in England." Mr. Williams' self-defense/non-apology included this assertion:

While I insist that a re-reading of my question will prove that in no way was I calling the framers "terrorists" (for starters, the word did not exist 229 years ago), I regret that anyone thought that after a life spent reading and loving American history, I had suddenly changed my mind about the founders of our nation.

Actually, "for starters" without being way too cute about it, the words "terrorist" and "terrorism" may indeed not have existed 229 years ago, but they certainly did exist well over 200 years ago — and the people and practices those words described in their earliest uses were as ugly then as those people and practices are now:

Terrorism is not simply a modern phenomenon. Rather, the word, along with terrorist, first appears in English in 1795 in reference to the Jacobins of France. They ruled France in what was called the Reign of Terror from 1793-94. By 1798, the term was being applied generally to anyone who attempted to achieve political goals through violence and intimidation.

The word is thought to have been coined by the Jacobins themselves, but the French terrorisme is not recorded until 1798. If the Jacobins did coin it, they are the only ones to have used it self-referentially. The term has always had negative connotations since then.

One of the reasons that the Reign of Terror was indeed recognized at the time to be so terrible was its vivid contrast, both in methods and results, to the experience of the then-very-recent American Revolution that had originally inspired the French Revolution. The Columbia Encyclopedia tells us that the Reign of Terror was

characterized by a wave of executions of presumed enemies of the [French] state. Directed by the Committee of Public Safety, the Revolutionary government’s Terror was essentially a war dictatorship, instituted to rule the country in a national emergency....

Responsibility for the police measures taken during the [Reign of Terror] lay also with the Committee of General Security, which had control over the local committees formed to ferret out treason. The Law of Suspects (Sept. 17, 1793) defined those who could be arrested for "treasonable" activities; it was enforced by the Revolutionary Tribunal. Estimates vary as to the number of victims; thousands were guillotined, and over 200,000 were arrested. Representatives on mission, who were agents sent out by the Committee of Public Safety, had absolute power to enforce the terror, including the establishment of special courts.

The counterrevolutionary uprising in the Vendée (Oct.–Dec., 1793), which was suppressed with a heavy loss of life, and revolts against the Convention in Lyon and several other cities served as a backdrop to the intensification of the terror of Jan.–Mar., 1794. In Nantes mass drownings called noyades claimed at least 3,500 lives. In June, 1794, the Committee of Public Safety introduced a new law, which strengthened the power of the Revolutionary Tribunal; the court could return only verdicts of either acquittal or death. Executions increased greatly.

But Mr. Williams is also wrong about how the British Crown perceived the American revolutionaries. It's true, of course, that some of those fighting for American independence from Britain were rough and violent men. Tory colonists fled, or were sometimes roughly driven, into exile, and there were occasional incidents of violence against civilians by both sides or their sympathizers. The Brits had pioneered these rough practices in and after their own civil wars; no one (and certainly no Irishman) ever called Oliver Cromwell "Mr. Lord Protector Nice Guy"; and a sizeable chunk of the American colonists or their forebears had fled similar and worse practices under the British government. King George III famously accused the American people in general of such "knavery" that Britain might be better off without them, and his 1775 declaration of rebellion specifically accused the American revolutionaries of treason; rebellion; disturbance of the peace; making war against him; and the "obstruction" of, and the "oppression" of those carrying out, "lawful commerce" (that tea party business). But terrorism, by that or any other name? Nope.

Heck, Ben Franklin only broke familial relations with his Tory son, rather than trying to have him beheaded. Patrick Henry's cry was "Give me liberty or give me death!" rather than "Give them all death, the guilty and the innocent alike, slowly and painfully and publicly!" Nathan Hale wasn't quoted as saying, "I regret that I haven't killed thousands of innocent women and children for my country." George Washington was not Guy Fawkes, and although his artillery bombardment (partly directed by Alexander Hamilton) of British fortifications at Yorktown was indeed terrifying, those who marched out with Cornwallis were Redcoats, not civilians. Whatever his other personal failings, Thomas Jefferson had never murdered, raped, and pilaged his way through Canada. James Madison and James Monroe are rather more closely associated with the Bill of Rights than with jihad or fatwa. When John Adams, John Jay, and Ben Franklin signed the Treaty of Paris on America's behalf in 1783 to formally end the war, not one of them had explosive charges strapped around his waist; and his Britannic Majesty's express purpose in joining in that document was not to put a stop to anything remotely akin to "terrorism," but rather "to forget all past misunderstandings and differences that have unhappily interrupted the good correspondence and friendship which [Britain and the United States] mutually wish[ed] to restore, and to establish such a beneficial and satisfactory intercourse between the two countries upon the ground of reciprocal advantages and mutual convenience as may promote and secure to both perpetual peace and harmony."

If indeed Brian Williams' life has, as he claims, been "spent reading and loving American history," he should just have said:

I was badly wrong, and I'm very sorry for it. No U.S. President has ever been a "terrorist" even as that word came to be used shortly after the American Revolution. The British Crown considered the Founding Fathers to be revolutionaries and traitors, but never would have suggested that their primary means of trying to achieve political power was by the systematic and deliberate use of violence and threats of violence against civilians, because that was not even arguably true even from the British Crown's point of view.

While he was at it, he could also have mentioned that Gitmo also isn't the gulag of our times, I suppose.

But as it is, we're left with three possible conclusions, or some combination of them: Mr. Williams is indeed very stupid; or Mr. Williams lacks even a rudimentary understanding of morality and decency, right and wrong; or Mr. Williams was being less than fully truthful when he claimed to be a student of history. "Revolutionary" and "terrorist" are not now, and never have been, synonyms.

Women, judges, and women judges

Prof. Ann Althouse justifiably corrects NPR's Nina Totenburg for saying of the year 1981, when President Reagan appointed Sandra Day O'Connor to the Supreme Court, that "[t]here were very few women in law school." Prof. Althouse, herself a 1981 law school graduate, writes (emphasis hers):

It wasn't like: Wow, there's a woman on the Supreme Court — now, I see that women can go into the field of law!

I remember in 1981 saying to one of my many women lawprofs that I was interested in going into law teaching. One of the things she told me was that it used to help to be a woman, because law schools needed to increase the number of women on their faculties, but unfortunately I'd already missed that boat. That was too cynical, of course, but my point is that it was something you could say with a straight face in 1981, so let's not pretend O'Connor was a lone pioneer.

Still, it's sort of a question of what part of the snake's belly you focus on. Certainly, as Prof. Althouse points out, by 1981 women comprised a large percentage of law students and new lawyers, and a significant percentage of lawyers generally. But relative to those numbers, there were still comparatively few female partners at major law firms, female tenured law professors, and female trial and appellate judges — partly as a result of historical sexual discrimination, but also partly because those were (and are) not entry-level jobs.

During 1981, I was a law clerk for the second woman on the (old) Fifth Circuit, current Fifth Circuit Chief Judge Carolyn D. King, during her second year on the bench. Her single female predecessor, Phyllis A. Kravitch of Atlanta, had only a few months' seniority on her. The federal courts of appeals — usually considered to be the "farm teams" for the Supreme Court's bench — were definitely still "good ole boys' clubs" as of that time. Judge King, for example, was unusual because her previous practice experience was not in litigation, but in business and securities law, and that played a definite part in how the male judges of the Fifth Circuit perceived and related to her. But her two X-chromosomes were, frankly, a much bigger deal to many of those judges at the time, and some of them simply weren't quite sure how to deal with having these "lady judges" among them.

When rumors began to circulate that President Reagan was planning to appoint the Supreme Court's first female Associate Justice, both Judge Kravitch and Judge King were mentioned as potential nominees for the slot eventually filled with Sandra Day O'Connor; but like her, neither of them had been on any appellate bench for very long. And quite frankly, none of these three's then-existing judicial records — viewed objectively and without referrence to their sex — would have yet put them among the ranks of likely Supreme Court nominees.  Justice O'Connor was indeed an "affirmative action" nominee to the Court — the beneficiary of a sexual preference that was genuinely remedial in nature, redressing the then-still-lingering effects of past sexual discrimination. President Reagan squeezed the lump that was then just beginning to pass through the belly of the snake, and Justice O'Connor squirted ahead of some of her peers.

The times, though, were indeed a-changin'. I also began my first year of practice in late 1981 at Houston mega-firm Baker Botts, which (if I recall correctly) had three women among its 100+ partners at that time. During my first jury trial that year, I was allowed to tag along, literally carrying the briefcases of two of the firm's male Trial Department partners, for a way-off-the-record in-chambers conference with Judge W. Erwin "Red" James of the 127th District Court of Harris County. Judge James was then nearing the end of a long and distinguished legal career that he'd begun as a Roosevelt New Dealer, and he was the very personification of a "good ole boy." But he made a point of also inviting back to his chambers Baker Botts' sole female Trial Department partner, who'd been passing by his courtroom on other business.

Now, Judge James was famous among the local trial bar for starting every day's public docket call with some sort of joke — typically corny, but always G-rated. But he was also famous for telling some much more ribald and otherwise politically incorrect jokes and stories in chambers, and on this day he did not disappoint. And in the midst of the jokin', cussin', and tobacco-chewin', I remember being distinctly struck with the significance of this young woman trial lawyer being included — and not merely tolerated, but genuinely welcomed — as "one of the good ole boys" back in his chambers. I had a sudden realization that over the last 8-10 years, she'd earned her way onto Judge James' mental list of "hale fellows well met," with whom he was entirely comfortable swapping off-color jokes. But she was definitely still a pioneer — and not an affirmative-action appointee in her role, either.

I'm tickled pink that there's no longer any need for broad remedial sex-based affirmative action at any level of the legal profession. But that is a change that has occurred over the course of my own twenty-five year career, and it's indeed true that Justice O'Connor's appointment was a powerful symbolic step in that progress. It's fascinating — as history.

Historic symbols can indeed have lasting power for their inspirational value, and were Dubya to appoint the Court's first hispanic member to replace Justice O'Connor, I would not belittle those who would celebrate its symbolic significance. But I genuinely believe that America is well past the point when we need to speak of a "southern seat," or a "black or hispanic seat," or a "Jewish or Catholic seat" — or "women's seats" — on the Supreme Court. The "soft bigotry of low expectations" can be pernicious here too; and tokenism of any variety just sucks. Who Dubya picks is hugely important, but it's for the content of his or her (judicial) character, and not really for any other reason. I'm completely indifferent as to whether his nominee has a Y-chromosome or not, and I think most of America is too. We should actively strive to become studiously and equally indifferent as well with respect to the nominee's home-state affiliation, religion, race, and favorite breakfast cereal.

Judy to judge: "Okay, maybe you can ground me, BUT ..."

Some conventional wisdom among lawyers:

• Tread lightly when appearing again before a trial judge whose previous orders you've tried to appeal all the way to the Supreme Court.
• After nearly a year of outright defiance of that trial judge's orders, you're poorly positioned to plead for special favors.
• It's difficult to predict what particular arguments are likely to be most effective in persuading a federal district judge to a particular point of view, but it's easier — and always worth the effort — to try to spot and excise particular arguments that are likely to be not only ineffective but offensive.

But comes now scofflaw Judith Miller, whose supportive employer, the New York Times, writes this about her continued eagerness to defy both conventional wisdom and the combined federal trial and appellate courts:

[R]eporters [Judith Miler and Matt Cooper], who have consistently refused to testify about conversations with their sources, filed papers on Friday suggesting that they be sentenced to home confinement if incarceration is required. In the alternative, Ms. Miller asked to be sent to a federal prison camp in Danbury, Conn., and Mr. Cooper to one in Cumberland, Md.

Beldar's loose translation of Ms. Miller's plea into lay terms familiar to every parent:

Okay, so maybe I can be grounded. But I just do not understand why you can't get it through your pointy little judicial noggin that I am from the New York Times! And I don't know who you think you are, but if you're even thinking about orange jumpsuits and ankle manacles and a toilet in the same room in my suite that my bed is in — well, I have two words for you, buster: "No way!"

This leaves me thinking that Judge Thomas F. Hogan's ruling at tomorrow's hearing in this matter should consist of a combination of two words — "Yes, way!" — followed by a judicial index finger pointing first at the U.S. Marshals and then at Ms. Miller, followed by a judicial thumb gesturing back over his shoulder to the closest holding cell in the federal courthouse.

Special prosecutor Patrick J. Fitzgerald had a similar reaction to mine, but was much more wryly polite and less snarky:

Mr. Fitzgerald opposed those requests today, saying that the local jail in the District of Columbia "or some other nearby federal facility" would be more appropriate....

Mr. Fitzgerald, whose public filings to date have been restrained, was harshly critical of the legal position taken by Ms. Miller and of The New York Times's statements in support of her. His response to Mr. Cooper was barely 4 pages; to Ms. Miller, 21 pages....

... "Forced vacation at a comfortable home is not a compelling form of coercion," [Mr. Fitzgerald] wrote.

To which, Beldar replies with that hoary Latin legal phrase: "Bingo."

My niece Grace's wedding

My niece Grace — the lovely, charming, talented, and brilliant youngest daughter of Dr. & Mrs. James R. Dyer of Southlake, Texas — was married yesterday in Waco. Congratulations to the new Mr. & Mrs. Nathan Brown!

A very good time was had by all!

Grace is my brother Jim's youngest daughter. She'll be starting medical school this fall as Nathan finishes up his engineering degree, both at Texas A&M.

Below, the bride along with my four kids (left to right), Kevin, Sarah, Adam, and Molly, at the reception:

Grace again, flanked by my daughters Sarah (left) and Molly:

My four, below, in a rare dressed-up moment. Getting three out of four to smile real smiles is also extraordinary.

Would you perhaps have guessed that my brother is an orthodontist? Below (L to R) is Grace's older brother David and his wife Kate, and Grace's older sister Liana and her husband David:

My sister, Gwen Dyer Johnson, with her son Jeffrey, his lovely wife Leslie, and their newborn son Jared:

The parents of the bride — my older brother Jim and his incomparable wife Shelli:

         

Adam, demonstrating that he has managed to keep his sleeve out of the liquid chocolate fountain at the reception:

Below, Molly nibbles cheese while pondering whether Dad will ever be able to afford a wedding like this for her someday:

The happy couple, no doubt planning for the future.  Nathan is repeating to himself the ritual words that are the secret to a happy marriage: "Yes, dear."