BeldarBlog

Memo to Sen. Kerry

TO:	Sen. John F. Kerry
FROM:	William J. Dyer (a/k/a Beldar)
RE:	Limitations

Spectacular lawyer though you may (or may not) be in your own right, I know your staff includes some agile and diligent legal minds. Nevertheless, in the interests of fairness, I feel obliged to remind you of the fact that Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — which spent several weeks at No. 1 on the NYT Bestsellers List before last year's presidential election — was published on or about August 25, 2004, just over one year ago.

I'm quite sure you'll recall that many of your supporters, defenders, and admirers argued enthusiastically that fall, and even after the election, that you ought to sue Mr. O'Neill, Dr. Corsi, and their publisher, Regnery Publishing, Inc., for defamation — more specifically, for libel based on the book and slander based on their public comments in connection with it.

I'm less sure — but will nevertheless give you the benefit of the doubt — that you'll remember from law school and perhaps from your bar review course that defamation lawsuits are generally are based on state law, and that they are generally subject to state statutes of limitations, regardless of whether they are filed in state or federal court.

My concern, however, is that you may not be aware that most state statutes of limitations for defamation are quite short. In Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and you have your own regular place of business), those jurisdictions' respective statutes of limitations on defamation claims expire only one year after the alleged defamation is published.

Thus, in most of the logical, permissible, and likely venues in which you might have brought such a defamation lawsuit against Mr. O'Neill, Dr. Corsi, and Regnery Publishing, you've already allowed your potential claims to become time-barred, Sen. Kerry! D'oh! Why'd you let that happen?

There may be still be a few permissible venues — perhaps Massachusetts, which has a shamefully generous three-year statute of limitations for defamation — in which your sloth (or whatever else may explain your inaction to date) has not yet extinguished your potential claims.

Nevertheless, you're also doubtless aware that with each additional day that passes, the evidentiary trail grows colder; potential witnesses' memories fade; and the chances that jurors are likely to take your potential claims seriously continue to evaporate. There is no possible tactical or strategic benefit to your continuing to withhold your claims, and there are overwhelming downsides to doing so. Your delay is inexplicable if you believe your claims are meritorious.

On the other hand, regardless of limitations, truth is a defense to a defamation claim — whether that claim has been brought in days, weeks, months, years, or even decades after the alleged libel or slander is published. A defendant might even voluntarily choose to waive his or its limitations defenses. And even a defendant who has asserted an applicable statute of limitations as an affirmative defense may nevertheless choose, as a tactical preference, not to bring an early summary judgment motion. Indeed, some defendants may quite relish the opportunity to begin discovery on the merits, being delighted to finally have an opportunity to have subpoena power, oaths, and penalties of perjury to help them finally dig out the truth.

In fact, just based on my own personal experience with him, Senator, I'd sorta bet that John O'Neill would not only waive limitations, but even pay your filing fees for you!

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

The 2008 campaign season is right around the corner, Senator, and nobody is likely to forget the SwiftVets' allegations before then. If you believe that you have a legitimate defamation lawsuit, sir, you must use it or lose it. Put up or shut up. You snooze, you lose.

Tick-tock, Senator. Tick-tock!

Of farts and pop-ups: GlaxoSmithKline is conspiring to infect your PC with noxious adware

[Preliminary note: This is an angry consumer rant. It is based on demonstrable facts, but also contains what I believe to be well-informed and justified opinions. My readers may decide for themselves whether they agree with my opinion, for example, that GlaxoSmithKline is conspiring to infect consumers' PCs with noxious adware. But here's a word to GSK's legal staff: If you want to hash this out in court, my full professional contact information is linked from this website, and I'll be glad to meet you on the steps of either the Harris County Civil Courthouse or the U.S. District Court for the Southern District of Texas, Houston Division. If I can, I'll live-blog the whole deal. And let's also both invite the boys and girls from the mainstream media, shall we?]

After my cardiac adventure in July, I made some big changes in my diet. I was dismayed to learn, though, that a high-fiber diet rich in fruits and vegetables is also a diet likely to produce lots of flatulence. My new, healthy breakfasts of low-processed oatmeal, for example, were leading to bloated and embarrassment-risky mornings. As I looked for ways to manage this problem, my research quickly took me to the website — one I shan't link here, for reasons that will become obvious — of a fairly well-known over-the-counter product manufactured by mega-super international drug conglomerate GlaxoSmithKline. That product, "Beano®," is claimed to contain a "food enzyme from a natural source that works with your body’s digestion to break down the complex sugars in gassy foods[,] making them more digestible."

Well, that sounded promising, and I decided to give Beano a try. Now, ordinarily I'm not much of a coupon-clipper. But I'll bend over to pick up a dime on the ground, and if I'm planning to buy a product anyway, I'll usually clip a coupon for that product if I happen to see one. Thus I clicked the link on the Beano website that promised "$1 Off Coupon and Free Food Pyramid Partner Informational Card."

I'm also a firm believer that TANSTAAFL is one of the natural laws that drives the universe, however, and so I wasn't surprised or particularly dismayed to have to fill out an online survey before I got to the coupon. And yeah, although like everyone I'm up to my neck in email spam, I was willing to fork over an email address en route to the coupon too (although I was a bit miffed that there wasn't an obvious "spam opt-out" box to check). But on my first read-through, I didn't notice the statement reading "You may be prompted to download a small, free software application (called a Coupon Manager) to print," nor click the link to "Learn more about the Coupon Manager and the print process." Instead, I fired up my printer, clicked the "Print My Coupon" button, and expected my browser window to fill with a coupon that I could print out and take to the supermarket.

But no. Instead I found myself at a screen that said: "You need to activate your Coupon Manager. Please make sure your printer is on, and click 'Activate Now’ below. Your coupon will print automatically in about 30 seconds!" And being a typical consumer (which is to say, a vulnerable idiot), I clicked on the "Activate Now" button.

Thankfully, however, in one respect I'm not a typical consumer/vulnerable idiot. A few months ago, I'd finally taken up the suggestions of many friends and had (mostly) quit using Internet Explorer as my default web browser, switching instead to Mozilla Firefox mostly for its better security. And here, Firefox saved me: "To protect your computer, Firefox prevented this site (mn103.coolsavings.com) from installing software on your computer."

Having dodged a bullet, I began looking into who'd shot at me. In fairly short order, I learned that "Cool Savings" is a company that promulgates noxious adware — programs that stealthily infect your PC and that thereafter will pop up windows offering you products you've never expressed any interest whatsoever in buying. They're a zillion times worse than mere email spammers; they're more than simply annoying because they can slow down and eventually paralyze a PC. And they're deliberately designed to be difficult to get rid of.

Just a little bit of Googling took me to this address, where I learned that the specific bit of adware mischief I'd just avoided would have "display[ed] popup/popunder ads when the primary user interface is not visible or which do not appear to be assocaited with the product," and that it "[c]an't be uninstalled by Windows Add/Remove Programs and no uninstaller is provided with the application."

By this point I was more than mildly annoyed, so I began tracing my steps back and looking more closely at the disclosures/warnings — or lack thereof. Checking the "learn more" link I'd skipped earlier, I found this carefully crafted bit of pseudo-disclosure (boldface mine):

The Coupon Manager is a free application powered by CoolSavings, Inc. that securely prints GSK coupons. It helps us bring you high-quality coupons that scan at the register. It is not a trojan, virus, spywear [sic] or virus-delivery software. You will need to install the Coupon Manager to print the coupons. The first time you print a coupon, you will be given instructions on the downloading process....

CoolSavings is #1 coupon delivery Web site on the Internet and trusted partner of GSK.

This is called lying by hiding the important part of the truth. This "disclosure" makes it look like GlaxoSmithKline — a major multinational corporation whom millions of people quite literally trust with their lives when they take GSK medications — is assuring you that you're not screwing up your computer as a cost of printing out this lousy $1 coupon. And technically, the "Coupon Manager" may not be a piece of "trojan, virus, spywear [sic] or virus-delivery software." No, it's just noxious adware that will pester you from now until kingdom-come with pop-up windows containing offers to sell you products you've never expressed any interest in, and that you'll have a devil of a time scrubbing off your computer. To put it mildly, whatever "consent" Cool Savings and GSK obtain in connection with this disclosure is, in my considered opinion, completely invalid because it's not informed consent. To be minimally adequate as a basis for securing informed consent, the disclosures would need to contain the terms "adware," "pop-up windows," "unrelated products," "perpetuity," and "demons from hell." (Well, maybe not that last one, but certainly the first four.)

Now genuinely incensed, I emailed GlaxoSmithKline to complain, and to alert them that they were in bed with a company that promulgates noxious adware. Here's what I got back:

Dear Mr. Dyer,

We have received your e-mail message regarding Beano® Food Enzyme Dietary Supplement.

We're sorry to learn that you have been experiencing difficulty downloading the coupon.  You do not need to agree to future emails in order to receive the $1.00 coupon.

We are not sure why your coupon did not print for you but this is not the reason.

We do manage our coupons through a coupon manger, Cool Savings. It is not secretly installed as you must agree to have the program downloaded. We are sorry to hear that you do not care for our process. We will notify our technical support team of your comments.

We appreciate you as a Beano® customer and again apologize for any inconvenience you may have experienced.

We appreciate your taking the time to contact us.

Sincerely,

Sharon
GlaxoSmithKline Consumer Healthcare

Now I know that the scammers and the spammers, like the poor, will always be with us. I have no expectations from a company like "Cool Savings," other than a vague hope that some reasonably competent and responsible state attorney-general will put them out of business. But ladies and gentlemen, friends and neighbors, GlaxoSmithKline is "a leader in the worldwide consumer healthcare market" that has "nearly $5 billion in sales, over ten $100 million brands and [is] present in 130 markets." It claims that it "will promote [GSK's] products in line with high ethical, medical and scientific standards and will comply with all applicable laws and regulations." It claims that "[b]usiness ethics is the responsibility of everyone at GSK, not just senior managers," and further claims that "[i]nducements such as gifts or bribes are never acceptable under any circumstances." Yet GlaxoSmithKline knows that the company it's dealing with for these coupons will deliberately and surreptitiously infect your computer with noxious adware, and it falsely pretends that you've knowingly asked for it to do so! Moreover, GSK knows that its "free coupon" absolutely entails nonmonetary costs and inconvenience that its "trusted partner" has carefully failed to disclose.

Indeed — and in this paragraph I'm speculating and making what seem to me to be reasonable inferences, make no mistake — I'd bet dollars to donuts that GSK is getting fees from Cool Savings, quite possibly calculated on the basis of the number of computers thus infected. And I'd bet that Cool Savings, in turn, is buying the presumptive legitimacy of an internationally known company like GlaxoSmithKline precisely because that's the best way to sneak past consumers who'd otherwise never be stupid enough to "consent" to their abuse.

If GSK wanted to offer you a normal $1-off coupon that you could print from its website and take to the supermarket, it could do that with a simple .gif file. Instead, it appears, and it's my considered if subjective opinion, that GlaxoSmithKline has jumped in bed with whored itself out to knowingly become the "trusted partner of" a rip-off artist noxious adware company — not just to try to get you to buy Beano, but to get a cut of the rip-off artist's noxious adware company's sleazy profits. And that's way, way below the standards of professional or corporate ethics that I'd expect of a company in GlaxoSmithKline's position.

I can't speak for anyone else, but as for me: I'd rather fart.

(By the way, I emailed "Sharon" at GSK's Consumer Healthcare division to advise GSK that I intended to blog about this, with an offer to "print any additional comment or reaction or defense that you or anyone else from the company might wish to offer." No answer; but that offer still stands, and my Comments section is open, and I'll email her a link to this post. I'd be delighted to read and reprint here any attempted justification GSK might offer, and more than delighted to correct any factual errors, add any additional contextual facts, or pass along, when and if true, a report that GSK has come to its senses and mended its ways.)

--------------------

UPDATE (Sat Sep 17 @ 5:30pm): I'm amused to read of an anti-spyware/adware/malware company that purports to provide "secure content management products and solutions to 50% of the Global 100 corporations, and 40% of the Fortune 500 ... especially those with high volumes of electronic communications, or those for whom content has high value[, such as] GlaxoSmithKline." Whatcha bet that GSK tries very hard to keep Cool Savings' software the heck off its company PCs?

Chavez: Crazier than Dean or not?

Reading this story about Venezuelan president Hugo Chavez' insistence that the United States is planning to invade Venezuela (for its oil, of course), I was suddenly struck with a thought: Having Chavez as your president would probably be a lot like having Howard Dean for your president. I know there are many sane people in Venezuela, and hereby extend my sympathies to them.

Big Lizards live

One of the interesting things about writing a blog is that over time, you begin to recognize and appreciate your regular and semi-regular commenters, if you're fortunate enough to have any. You also nod and smile when you see their comments elsewhere, too. If the commenter's name or pen-name is memorable for some reason -- say, distinctively Welsh -- then that further helps connect the dots.

One of my own long-time favorite blog commenters, here and elsewhere, has been Dafydd ab Hugh, self-described as a "libertarian-conservative, anarcho-capitalist, erstwhile Discordian, secular, Darwinian, politically non-Euclidean science-fiction and fantasy writer" who says: "I'm not a conservative, but I caucus with them." It's perfectly obvious to anyone who's read even a few of Dafydd's comments that he's articulate and opinionated. Add in that he's guest-blogged prolifically and well in the recent past at Patterico's Pontifications and Captain's Quarters, and by that point it becomes unsurprising, even preordained-feeling, to learn that Dafydd has indeed started his own blog (and associated website).

The name of his new blog — Big Lizards — is something of a surprise, at least to me. But it's good that there are at least some small surprises as part of pleasant and not-unexpected news.

Sometimes little things say a lot. The small graphic at the top of Dafydd's sidebar, for example, tells me (as if I already didn't know it) that Dafydd is the kind of continuous student of history and the world with whom I can easily relate. I'm pretty sure, for example, that if he and I were listening to several other people conversing about what a "quagmire" our military has gotten into in Iraq, and how shocking our casualties are week after week, either he or I might interrupt to say something like this — "Yeah, but ... Cold Harbor" — and the other would nod and say, "Yeah, argument over." Some of the others listening might get the reference, but sadly, most probably wouldn't. Those who did would likewise recognize that the reference wasn't intended to minimize or trivialize our Iraq casualties — every one is absolutely tragic, and every one of them was a real mother's son or daughter whose comrades-in-arms and family and friends have been absolutely pole-axed by their loss. But if you don't have a broader perspective to put those casualties into, then you're not properly appreciating the significance of their lives either — how smart and incredible a job the current U.S. military is doing of protecting its own while getting some important things done, just for example, as compared to any remotely similar endeavors by any other military in the known history of the world — and you're therefore likely to make some really silly misjudgments in trying to assess what's going on both there and in the rest of the world. That's the kind of thing that Dafydd ab Hugh not only gets, but apparently (like most of the rest of us in the blogosphere) feels some sort of irresistible compulsion to discuss and write about in hopes of influencing peers and, perhaps, educating the educable.

And bless him, Dafydd's not another damned lawyer-blogger, who're proliferating like fleas. (Well, some would say ticks. No quibble here. Hey, even the ennobled John Roberts likes a good lawyer joke.)

Anyway, I'm quite confident in predicting that Big Lizards will be a big hit, and I congratulate Dafydd on its launch! Go have yourself a look, friends and neighbors.

How good was Judge John Roberts this week?

He was so good that:

• Hundreds of liberal law professors around the country are thinking to themselves: "Damn, if that conservative sumbitch had been in one of my classes, I'd have been forced to give his white male butt an 'A+' anyway. Damn!"

• Millions of hard-left Democrats are thinking to themselves: "Damn, I never believed that lucky Chimpy McBus**tler could find somebody that good. He gets all the big breaks — first 9/11, now this. Thank goodness there's probably not another one out there who'll be that good to put in the next spot. Surely we can get some traction next time!"

To which I have a two-syllable reaction: "Tee-hee."

Judge Roberts as Atticus Finch, and the Killer Question that was never pressed: "Would you have taken the Topeka Board of Education as your client?"

During the very last bit of questioning of Chief Justice-nominee John G. Roberts, Jr. on Thursday, it appeared to me that Sen. Richard Durbin (D-IL) had been fed by his staff what was intended to be a "killer question" that would finally trip Judge Roberts up — that would produce a sound bite and a headline under the cover of which Democratic senators could rally to purportedly justify votes against Judge Roberts' confirmation. I tend to think that what he did with that killer question was due to ineptitude — after all, this immediately followed Sen. Durbin's plea that the special counsel looking into prosecution of the purported theft of Senate Dems' computer files last year take a close "look at the precedent of the Paris Hilton case and see if he can perhaps protect our records as much as we want to protect that poor young lady's telephone records." But I can't rule out entirely an attack of at least subconscious conscience and ethics on Sen. Durbin's part. Anyway, for whatever reason, he muffed and muddied the delivery of the would-be killer question, and thereby missed a chance for effective demagoguery. From the transcript, here's how he started, promisingly enough:

DURBIN: If I could, I'd like to return to a discussion that we had yesterday about a very fundamental question. I asked you yesterday about a case that you handled as an attorney involving a large HMO, in which you advanced a very narrow reading of an Illinois state law.

Had your position prevailed, millions of American families stood the risk of losing coverage for their health insurance. You did not prevail, and as you mentioned, a closely divided court — which again underlines the importance of each new justice as we consider them — but your position did not prevail.

Let me read what you said to me in response. You said you'd told me you had no reservations about taking the case. And here's what you said, quote, My practice has been to take the cases that come to me and if the other side in that case had come to me first, I would have taken their side, end of quote.

I want to follow up on this.

Whether he himself or some clever aide had written it, up until at least this point, Sen. Durbin was sticking closely to his prepared script. And this was indeed an effective set-up, because it established nicely that at least in some circumstances, Judge Roberts had already acknowledged that he could and should answer hypothetical questions about what clients and cases he'd have taken as a practicing lawyer.

It may be that what Sen. Durbin actually said next was still in the script, but just less cleverly planned — and I'll get to what he actually did say in a moment. But first I'll tell you word for word, friends and neighbors, exactly the killer question that Sen. Durbin should have asked immediately after laying that predicate:

DURBIN: If the members of the Topeka Board of Education had come to you in the early 1950s and asked you to represent them in the Supreme Court against young Linda Brown and her family, would you have taken or refused that case?

The politically correct answer, of course, would be a simple "I would have refused it." But as I'll explain in a moment, I'm almost certain that's not the answer that Judge Roberts would have given. Instead, he would have told the truth. And that's why this might have become the "killer question" that none of the Democratic senators ever found.

If the question had been asked exactly this bluntly, after exactly the same set-up that Sen. Durbin had in fact already made, and if Judge Roberts had given any answer other than an unequivocal "I would have refused it," then the Dems would have either had a far, far better example of him being noncooperative and evasive than anything they actually got all week long, or else something better.

And indeed if Judge Roberts had answered (as I believe he would have) with something like "Yes, I would have taken the Board of Education's case, and let me tell you why ..." — well, then, there's your sound bite and your headline. And some very substantial part of the population of the United States — maybe not a majority, but numbering in the tens of millions — would have tuned out any follow-up explanation he might have tried to give. "He admitted he would have gladly fought for racial segregation," the Dems could have said — "Roll that clip again!" That wouldn't have prevented Judge Roberts from being confirmed, but it would have given the Dems cover for most of them to vote against him.

*******

This illustrates something good trial lawyers understand, but that apparently none of the Democratic senators do: The cross-examining questioner has an inherent advantage simply by virtue of always being able to frame the question (and the next question after that). The essence of brilliant cross-examination is using that advantage to maximize the probability of extracting from the witness' own mouth the specific statements you want — organized, sequenced, and phrased in just the way you carefully choose to present those statements, and without any context or adornment or distractions that you don't want emphasized.

When you are dealing with an honest adverse witness, even a very articulate and intelligent one, this advantage actually becomes all the more powerful. If you know the witness is honest, then you can predict with a high degree of certainty what he'll say. If you're confident that he will tell the truth, then you can afford to ask him very specific but non-leading questions that don't appear to suggest their own answers. You don't have to put words into the witness' mouth, and if you don't have to, you don't want to: When the devastating words come out of the witness' own mouth for the first time — as opposed to being something obtained by extracting the witness' grudging acknowledgment with something the cross-examiner has said — those words are at least twice as powerful and memorable. The best "Perry Mason moments" weren't when Perry just got the witness to answer "Yes, I did it!" to the question "You killed Col. Plum in the library with the candlestick, didn't you?!?" Rather, the best "Perry Mason moments" were when Perry had first done a careful set-up: "So the library lights went out? The dog was outside? The candlestick was in your hand? And Col. Plum, who'd stolen your dowery, had turned his back to you?" And then Perry asked the ultimate killer question: "And what if anything did you then do with that candlestick?" The witness always blurted out: "I can't take it anymore, I admit it, I killed Col. Plum in the library with the candlestick!" The difference is between your audience merely nodding at the former, and gasping at the latter. And once words which originated in the witness' own mouth have escaped into the open, they're impossible to put back, and almost impossible to avoid.

If your would-be killer question is long, or muddy, or has multiple parts, or has undefined, fuzzy terms — then you squander all of that natural advantage, and instead you give the witness the very tools he needs to survive your question. It's hard to push and hold the witness under the surface of the water with one hand when you're handing him a life preserver with the other.

Recall, for example, Sen. Schumer's futile attempt to grill Judge Roberts on whether he disagreed with Justice Thomas' statement in Lawrence v. Texas to the effect that "there is no general right to privacy." This was one of the relatively more artful attempts at cross-examination during the hearing; Sen. Schumer had set it up by first extracting and then reemphasizing Judge Roberts' testimony that he believes there is indeed a substantive "right to privacy" (of some sort) as a component to the "liberty interest" protected by the due process clause of the Fourteenth Amendment. And he would have been equally happy to get Judge Roberts either to say he agreed with Justice Thomas, or that he disagreed and that Justice Thomas was wrong. But when Sen. Schumer tried to bait the hook on his next question with a phrase that included an additional qualifier, Judge Roberts promptly spat out that hook; he objected and quibbled, entirely appropriately, over the qualifier "general." They then argued for four or five minutes about whether there's a distinction between a "right to privacy" and a "general right to privacy," with Judge Roberts insisting, perhaps plausibly, that even Justice Thomas would agree with the former but not the latter. Sen. Schumer lost all his momentum; nothing transpired that could make it into a sound bite or a headline; nothing made the audience gasp and sit up suddenly. He thought he'd found a "no-lose" question, but he couldn't quite pull it off. And the reason for that, at bottom, is because it wasn't a fair, straightforward question; that modifier, "general," was indeed important.

Thus, the killer question can't be an obvious rhetorical trick, a "when did you stop beating your wife?"-type question. Those insult your audience's intelligence. "Aha, then you admit that God could make a rock too heavy for even him to lift!" may be the sort of thing philosophers can argue about for centuries, but that kind of rhetorical trick makes little impact on the average observer. Worse, a good witness can often use those tricks to ju-jitsu you onto your back.

But when you've laid your proper predicate, and when your killer question is transcendentally, self-evidently, righteously clear, clean, and fair, then you'll either get the straightforward killer answer that you seek and expect, or else the witness will obviously look like a quibbler and a prevaricator. Sometimes you're just as happy with the latter, especially when you can highlight it. And quite often you can even get both, which is the best of all worlds! Provided that you have already built up some credibility with your audience as being a polite and fair questioner, then when the witness begins to quibble with your killer question, you can take the extraordinary step of interrupting — very politely but forcefully: "No, sir! Would you have taken the Board as your client or not? Yes or no?" Depending on how sympathetic and credible the witness is, you might even get away with one additional interruption: "— Excuse me, Judge Roberts, but my question calls for a 'yes' or 'no' answer. Please answer 'yes or 'no,' and then I'll give you all the time you want to try to explain that answer: Would you have taken the Topeka Board of Education as your client?"

Not to take anything away from Judge Roberts' brilliance as a judge, lawyer, and witness — fighting this guy even to a draw would have been a huge and improbable victory for the Democratic members of the Senate Judiciary Committee — but the Dems have this week proven themselves the Opportunity-Squandering Masters of the Universe. I don't believe a single one of them could make a decent living in a courtroom, unless it were as a janitor.

*******

I am almost 100 percent certain that Judge Roberts' truthful answer to that question, if it had been cleanly asked, in fact would have been, "Yes, I'd have taken the Topeka Board of Education as my client." That's based on what was actually said. But as you read the transcript, note how Sen. Durbin blows all of his natural advantages. He's long. He's fuzzy. He uses lots of qualifiers, and becomes progressively less, instead of more, specific. And worst of all, he starts with something substantially weaker than his killer question, which was indeed Brown v. Board of Education. Instead, he picked Romer v. Evans, a gay-rights case from Colorado on which roughly half the country disagrees with the Democratic Party line. Rather than alarming his own base, and perhaps alarming others outside it, by going straight to Brown, Sen. Durbin instead comforted Dubya's base by asking about whether Judge Roberts would just as gladly have helped out the anti-gay-rights forces in Romer! And thus, not only did Judge Roberts have no trouble deflecting Sen. Durbin's fumbling efforts with Romer, but he had a good head of steam to continue bulldozing Sen. Durbin when he finally, weakly and confusedly, sorta kinda got to Brown v. Board of Education:

You have taken some pride in the pro bono cases that you have taken, and I'm glad you have. I think that is part of being a professional, accepting pro bono cases.

You were asked the other day about your participation in the 1996 case of Romer v. Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans. You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation.

So I'll ask you, if the other side had come to you first and said, Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians, would you have taken the case?

ROBERTS: It's a hypothetical question.

Of course, I think I probably would have, Senator. I actually have done pro bono assistance for states on a regular basis through the National Association of Attorneys General. And, if I'm remembering right, the state would have been the other party in that case — I think that's right.

And, through the state and local legal center, I've participated in moot courts with the states on a regular basis.

And a big part of my practice was representing states. So, if a state — in that case, Colorado — had come to me and said, We have a case in the Supreme Court; would you defend it? I might — again, I can't answer without knowing the full details and all that, and I'd have to look at the legal issues. And I would not, and never have, presented legal arguments that I thought were not reasonable arguments. It doesn't necessarily mean they're going to prevail, and I've certainly lost my share of cases.

But it is not been my general view that I sit in judgment on clients when they come to me. I viewed that as the job of the court when I was a lawyer. And just as someone once said, you know, it's the guilty people who really need a good lawyer.

I also view that I don't evaluate whether I as a judge would agree with the particular position when somebody comes to me for what I did, which was provide legal advice and assistance, particularly before the Supreme Court.

DURBIN: I have a long series of hypotheticals I won't get into, such as, all right: Would you have represented the D.C. government against the welfare families? You took pride -- you spoke to me of your pride in representing the poor people in the District of Columbia on their welfare rights.

I could ask you whether you would have taken the side of the board of education in the Brown case. Would you have taken the side of the state of Virginia in Loving? I could have gone through all those hypotheticals.

The reference to the "long series of hypotheticals" is what makes me think that someone else wrote this for Durbin, and he muffed it. He came to the on-the-spot conclusion that this wasn't working. So what's he do? He stumbles around some more, and ultimately asks an off-the-cuff touchy-feely question — that is, he abandons his fastball and instead throws a floater belt-buckle high right down the center of the plate, which of course Judge Roberts crushes out of the ballpark:

And the purpose of my original question was this: All of us are trying to get down to, what are your core values. Where would you draw a line, saying, I do have principles and values. There are certain things I would not use my legal skills to do because they conflict with those values?

If this is just a process, a legal contest and you'll play for any team that asks you to play, it raises a question about where would you draw the line, if you would ever draw the line.

And I think that is why I've asked this question and I want to give you an opportunity now to tell us....

... As a lawyer, do you have standards and values as to the causes and beliefs that are so important to you where you would draw a line?

ROBERTS: Well, let me try to answer it this way, Senator.

People become lawyers for different reasons, all perfectly good and noble and legitimate.

People who are interested, for example, in protecting the environment often will go into the law and practice environmental law because they think that's an effective way to advance a cause in which they passionately believe.

People who are committed to the cause of civil rights may become lawyers and become civil rights lawyers and present and press those causes because they're causes in which they passionately believe.

I became a lawyer — or at least developed as a lawyer — because I believe in the rule of law.

The point I was trying to emphasize in my opening statement that all of these other areas —  you believe in civil rights, you believe in environmental protection — whatever the area might be — believe in rights for the disabled — you're not going to be able or effectively to vindicate those rights if you don't have a place that you can go where you know you're going to get a decision based on the rule of law. It was the point I was making with respect to the Soviet constitution: filled with wonderful sounding rights; absolutely meaningless because people who suffered under that system had no place they could go in court and say, My rights have been violated.

So that's why I became a lawyer, to promote and vindicate the rule of law.

Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust: I've defended corporations; I've sued corporations.

In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system.

I viewed that as — I appreciate that the some may say, Well, that sounds like you're a hired gun, to be disparaging. You're going to take the side of whomever comes in the door first.

I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.

That's why when the chief justice welcomes new members to the Supreme Court bar, he welcome welcomes them as members of the bar and officers of the court, because that is the important role that they play.

That has significance for what types of arguments they can present and how they can present them.

By the time they were done, Judge Roberts basically was Atticus Finch, and Sen. Durbin was just another doofus — someone more likely to be part of a lynch mob of one sort or another than a meaningful contributor to the justice system.

Of course, I happen to think Judge Roberts is a lot like Atticus Finch, and that Sen. Durbin is a doofus. My initial, cynical point in this post was to show how the Dems could have been more effective — not right, and in fact, I mean "effective" at demagoguery.

In fact, if I were asked, "Would you have undertaken the representation of the Topeka Board of Education, my answer — gasp! — would be "Yes, I would have, but let me tell you why." Yes, the Dems would definitely have gotten their headlines and sound-bite out of me if I'd been the nominee and they'd been clever with their questioning. Here's what I would have said after the "Yes, but" — in other words, what would have been relegated to 3:00 a.m. on C-SPAN2, and ultimately a trivia answer to the question "What ever became of that disastrous Beldar nomination to the Supreme Court?"

*******

I have to qualify my entire explanation by noting that there aren't many clients whose positions are so thoroughly repugnant and, yes, evil as were the segregationists. And even most of them were victims of thorough self-delusion; some of them were wrongly but sincerely convinced that their position was for the "good" of both races. I'm not trying to justify their position in the slightest, but rather to point out that in the real world, absolutely pure- and black-hearted clients aren't all that common. But let's stipulate, for purposes of this discussion and without any further back-and-forth, not only that the Board's position was wrong in hindsight, but that they should have known it was wrong then. And I also should note that some types of culpability spark such intense negative passion in some lawyers that regardless of their belief in "the system," they just can't bring themselves to undertake a particular representation. Somewhere, for example, there is a lawyer idealistic enough that he could undertake the representation of Osama bin Laden, but I'm not that guy. And there may be people who genuinely feel there's no meaningful distinction between Osama or Hitler on the one hand, and the Topeka Board of Education or George W. Bush on the other. Let's likewise stipulate that they're entitled to that viewpoint as well, and to self-select themselves out of the system. So we're talking now about the category of potential clients whom, roughly, one thoroughly disapproves of, condemns, and deplores on moral grounds, but with whom one can bring himself to converse and sit in the same room without an overwhelming and irresistible compulsion to initiate physical violence. Where those lines get drawn is very subjective and varies according to the individual lawyer, client, and issue.

Those qualifications made, I'd start my explanation proper by saying that in 1954, things were very different indeed. Society was different and the existing law was different. If someone asked me to take a case trying to justify racial segregation today, I'd absolutely refuse to do so, and indeed I'd kick them the hell out of my office. That's because under today's law, that would be a frivolous, even sanctionable position to take — entirely apart from it being morally repugnant.

But it was a morally repugnant position even while Plessy was still the law of the land. So why would I ever take a case defending a client whose position I found morally repugnant?

To begin answering that, I'd launch into my standard spiel about the huge and essential difference between the two crucial functions of a trial or appellate lawyer — first as a counselor, and only second as an advocate. I'd explain that if the Topeka Board of Education had hired me in 1954, I'd have taken the case in part so that I could do my very best — as a counselor behind closed doors and in the sanctity of attorney-client communications — to persuade them that they were wrong, badly wrong and ultimately shortsighted, regardless of the law, and that they ought to voluntarily desegregate.

Indeed, before accepting the engagement at all as either a counselor or an advocate, I'd have considered myself ethically bound to disclose to the Board that I found their position absolutely morally repugnant. I'd have pointed out to them the very significant likelihood that because of my strong personal convictions and emotions, my objectivity and judgment, and very likely my effectiveness, might be compromised in ways invisible to me and perhaps to them. I'd insist on a written waiver confirming that they'd received and understood that disclosure, and that they'd agreed to hire me anyway (in lieu, presumably, of a bigoted and therefore unconflicted but perhaps less effective lawyer).

But what if I'd gotten that waiver and then I'd nonetheless failed in my effort as a counselor to persuade the Board to give up the fight? Then yes: I'd have done my best — as that famous (among history-minded lawyers anyway) "Lawyer's Lawyer" and 1924 Democratic Party Presidential candidate John W. Davis in fact did — to justify the Board's position in court as an advocate. I'd have done my best for exactly the same reasons that Judge Roberts explained. I believe that public confidence is justifiably highest in the legal system, and that the system is most likely to most consistently produce actual justice, when the adversary process has been fully engaged in and the courts have been presented with the strongest possible arguments to be mustered for each side. I would have expected, and privately hoped, to lose, and I would have been unsurprised, and privately relieved, when that in fact happened. And by 1954, I would indeed have lost, and so would John Roberts, if either of us had been representing the Board. The Board deserved to lose, and by then that was going to happen regardless of how good the Board's lawyer was. I suspect, in fact, that John W. Davis — the ultra-"John Roberts" of his day in terms of being a frequent and successful Supreme Court appellate advocate — privately felt that way too.

*******

This notion of a moral, ethical lawyer willingly representing a repugnant, evil position is very difficult for many people to accept — including some very bright people who fully understand the arguments that such representation is necessary in the overall interests of justice. Perhaps the best way I've found to get the doubters to take a fresh look, though, is to slightly change the focus — and to do so in a way that might have also been illustrated by questioning of Chief Justice-nominee Roberts. What if the question had instead been this one:

DURBIN: Judge Roberts, if you had been the Chief Justice of the United States in 1954 instead of Earl Warren, would you have barred the Topeka Board of Education from participating in the proceedings in the Supreme Court, refused to read the briefs filed by its lawyers, and summarily ruled against the Board without ever giving its lawyers any opportunity to be heard?

When posed that way, I think the instinctive, intuitive answer of almost anyone who understands and respects the concepts of justice and the rule of law is to say: "Well, they deserved to lose alright, and maybe also to eventually rot in hell for at least a few centuries; but they also deserved to at least get to be heard by the Supreme Court before it fixed the law by overruling Plessy." And they're right — without guarantees of that access, that procedural fairness, there can be no substantive justice for anyone.

It's just, perhaps, that lawyers — jaded and cynical as we often are — understand from working inside the system that both in theory and in practice, having dedicated advocates representing both sides is just as essential as the judge letting both sides through the courthouse door in the first place. We understand that Thurgood Marshall's magnificent victory in Brown would have lacked much of its glory and legitimacy had it been over an adversary less skilled than John W. Davis; both men played an essential part, as, of course, did the Court. And sometimes — when, as counselors, we can't achieve a settlement or a plea bargain or some other non-adversarial resolution — then as advocates, we've just gotta "take one for the team" ("the team" meaning "the whole justice system") and do our best in what nevertheless turns out to be, and in the interests of justice should turn out to be, a losing effort.

Sometimes a lawyer genuinely does his best, but loses —  and doesn't, and shouldn't, lose any sleep over it.

Yet more about the first Vioxx verdict, and the law professors who hate it

I feel pretty much about this attack on the jury system by a law professor as I did about this one and this one, even though they're all from law professors I like and respect. As I wrote in the comments on one of the latter two  posts (and wrote about more generally here and here), I sure wish some of these law professors would come try some jury cases with me before they start making these blanket indictments of the jury system. But failing that, it's nice when they open up their blog posts' comments and are willing to swap and consider contrasting views (as Profs. Bainbridge and Ribstein have done, to their great credit).

I sorta think it'd be useful if, when law professors are forming their opinions, they'd at least take into account what real trial judges and real trial lawyers (from both sides of the docket) have observed in their personal experience with jury abilities. With due respect, I don't think you can learn a whole lot in general about juries just from law review articles, other law professors, or the popular press.

Prof. Bernstein, for example, writes of "how obvious it is that complicated scientific evidence presented orally in an adversarial system will inevitably be beyond the comprehension of many lay jurors." Well,  I'm sorry, but it's not obvious to me. It's not obvious to most of the trial judges and trial lawyers I've worked with for the last 25 years either.

And I'm not sure about Prof. Bernstein's personal experience, but I've actually tried jury cases with complicated evidence, scientific and otherwise. For example, representing several different insurance companies on the defense side, I tried a series of jury trials in the early 1980s in which jurors were required to assess the development of both legitimate and quack cancer drugs. The medical and scientific evidence was at least as complicated as in the Vioxx litigation; some of the best cancer researchers in the world testified. I won (or settled on very favorable terms) way more than my share of those cases, and after the one big one that I lost, I certainly didn't whine about that jury, much less jurors in general, being stupid. That jury wasn't stupid; in fact, they could (and did) chat knowledgeably with me after the case about placebo effects, the differences between Phase II and III clinical trials, tumors growing so fast they'd outstripped their blood supply, FDA "new drug application" stages, and all sorts of other things that they'd learned about from the evidence. Rather, they responded to a superior strategy for framing the issues effectively that my opponent had come up with for a retrial after I'd won that same case with the first jury. I actually convinced both juries on the science, but the second one concluded that the case was really more about insurance company business practices, and they were quite arguably correct about that. Still stings, but I learned from it, as did my client.

In all those cases, and in every other case I've tried that involved complicated medical, scientific, engineering, or technical information — which actually has been a large majority of the total number of cases I've tried — I've known better than to try to present my complicated evidence just "orally." I don't know where Prof. Bernstein got that idea; perhaps he just misspoke. But we always have documentary evidence, and when that's too voluminous, we also have summaries of the documentary evidence. In high-stakes cases, lawyers on both sides have budgets for audio-visuals, graphics, models, computer simulations, and the like that university and medical school professors can only dream of having.

Indeed, both sides in these complicated cases often use the very same professors to explain things to the jury as the universities and medical schools use to explain these things to med students and junior scientists. Now, I'll grant you that the med students and junior scientists may have higher average pre-existing levels of education in their specific fields. But there are some compensating factors. All 12 jurors get to collaborate when they take their "tests," and they're always "open book" and typically without time limits. By the end of a complicated case, they may well have spent as many hours being "educated" about the key topics as an academic would; their knowledge may not be as broad, but it's often quite deep. And almost every jury I've ever seen has had at least a handful of college graduates in some field, and they not only help in the education and explanation process, they also tend to be opinion leaders who sway other jurors' votes.

And certainly when a juror makes a statement after a trial like "We didn't know what the heck they [i.e., the drug company's experts, when one goes back and looks at the original quote] were talking about," I know better than to jump to the conclusion that that was because the jury was stupid or lazy. I'd rule out the possibility first that the defense team and/or its witnesses didn't do as good a job of teaching and communicating and explaining as the plaintiff's team did.

Prof. Bernstein, with due and genuine respect: Turn on your comments function, but better yet, open your mind. It's funny how the juries I've dealt with seem to be more open-minded and receptive to actual evidence than some law professors seem to be.

(I'll repeat here, for those who don't follow any of these links, that I don't know whether the recent Vioxx verdict from Angleton was or wasn't just and correct. But nothing I've read or heard yet about that verdict persuades me that it's even a persuasive data point in any attack on the jury system, much less some sort of conclusive anecdotal proof.)

Sharpened Sen. Feingold still misses the boat on judicial ethics

Yesterday I ruthlessly mocked Sen. Russ Feingold (D-WI) for insisting, during Tuesday's confirmation hearing, that Judge and Chief Justice-nominee John G. Roberts, Jr. discuss the specifics of a still-pending case called Hamdan v. Rumsfeld. Judge Roberts quite properly refused to do so, citing off the top of his head the exact provision of the Code of Judicial Conduct that forbade him from doing so, Canon 3A(6).

I've just now reviewed the transcript and my TiVo'd recording of their follow-up exchange on Wednesday afternoon, however. And I've got to give Sen. Feingold (or more likely some young lawyer on his or the Committee's staff) credit: They made a good attempt at circumventing Judge Roberts' objection by carefully constructing a new question about a similar-sounding Global War on Terror case about which Judge Roberts had also declined to opine on Tuesday — the Supreme Court's recent decision in Hamdi v. Rumsfeld.

In the resulting colloquy, Sen. Feingold refers to Justice Scalia having recused himself from the Newdow case on the Pledge of Allegiance, which was almost certainly based upon his having earlier made ill-advised public comments before a Knights of Columbus gathering about that specific case while it was still pending in the Ninth Circuit. The Hamdi (not "Hamdan") case being over, though, Hamdi is no longer "pending or impending," and hence it isn't covered by Canon 3A(6)'s literal terms. And so based on this distinction between Hamdi and Hamdan, Sen. Feingold made a considerably more subtle and artful effort to extract detailed opinions that might be a basis for the senators to intuit how a Chief Justice Roberts would rule in similar cases presenting conflicting GWOT and civil liberty issues. (Sen. Schumer later played a variation on the same theme in his "cone of silence" rant, although he carefully gave Judge Roberts' no opportunity to respond fully.) Here's the transcript from Wednesday afternoon's discussion between Sen. Feingold and Judge Roberts (boldface mine; paragraph breaks also revised by me; and one "inaudible" reference, and a couple of other mistranscriptions, corrected by me based on my TiVo'd video):

FEINGOLD: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court.

But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions. So your answer that you would apply that principle doesn't help me very much in understanding your view of this.

We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court.

Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech.

But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision.

So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.

They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process.

You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views.

The process of the opinion-writing — you can't — the opinion turns out, it doesn't write, you have to change the result. The discipline of writing helps lead you to the right result.

You're asking me for my views, you know, right here without going through any of that process.

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice. The people who would be arguing in that future case should not look at me and say, Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to.

They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing.

I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices — every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.

To which my reaction was: Oh, wow. What an incredible on-the-fly adjustment by Judge Roberts to an incredibly subtle shift in attack by Sen. Feingold! Explaining exactly why I had that reaction, though, is going to be difficult. Bear with me.

*******

Note that Judge Roberts' answer accepts the shift in Sen. Feingold's premise — and Judge Roberts no longer cited Canon 3A(6)'s prohibition against commenting on "pending or impending cases."

But there are other sources of judicial ethics in addition to the Code of Judicial Conduct, and the most prominent among them is Title 28, section 455(a) of the U.S. Code. It reads: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Back in October 2003, I wrote a really long and detailed post — complete with eleven footnotes in addition to my normal copious hyperlinks! — about Justice Scalia's decision to recuse himself in Newdow. My bottom-line conclusion was that he was right to do so, but that he'd done it on the basis of Canon 3A(6), and not on the basis of section 455(a). Then in March 2004, I wrote another, shorter post discussing Justice Scalia's refusal to recuse himself in the Cheney duck-hunting case. There I believed that Justice Scalia was again correct, and that he indirectly confirmed that his recusal in Newdow was indeed on the basis of Canon 3A(6).

*******

I believe that Judge Roberts' refusal to be drawn into a discussion of Hamdi — and indeed of many, many other recent cases, and not just cases but issues — is not based on Canon 3A(6). Sen. Feingold's attempt on Tuesday to quiz him about the still-pending case, Hamdan, was one of the rare occasions during the hearings when Judge Roberts has shown even a hint of irritation, and that's because Canon 3A(6) provides such a (comparatively) bright-line test for when a judge's comments become unethical. Asking Judge Roberts to violate Canon 3A(6) so blatantly was, frankly, insulting. But all of his other refusals to comment and opine — to pre-judge, preview, pre-commit, or even hint at that — have been much more good-natured and, by Judge Roberts' own frank admission, based on his subjective evaluation of the "likelihood" of his being asked to rule on substantially those same matters in the future (either on the Supreme Court or on his existing seat on the DC Circuit bench).

As my longer post explained (in way too much detail), section 455(a)'s "might reasonably be questioned" standard is awfully expansive on its face. But there are a series of cases interpreting it fairly narrowly, some of which I cited and discussed. And some of those cases draw the same distinction that Judge Roberts did yesterday — between what a judge says while on the bench versus what he says while off the bench. What he's said from the bench can almost never be grounds by itself for disqualification or recusal, even if — as is often true with long-tenured judges whose views are well-known and consistent — the judge's pre-existing views make his biases and prejudices for or against a particular legal position quite obvious. Here's how I summarized and paraphrased those cases (emphasis in original):

In every single case, there's a loser and a winner. In every single case, the loser can point to something that the trial judge said from the bench which demonstrated "hostility" toward him or his case — even if it's nothing more than saying, "You lose." And when a judge has been on either the trial or appellate bench a few years, the potential for that kind of showing of "bias" and "prejudice" grows at a steady, inexorable clip. If it were permitted for statements from the bench to be a basis for showing disqualifying bias, judges would become increasingly subject to disqualification as they became more experienced, and the judicial system would collapse under the weight of disqualification motions. Because of this distinction, then, between on- and off-the-bench statements of opinions in the caselaw regarding disqualification, not even desperate death penalty lawyers move to disqualify Justices Rehnquist, Scalia, or Thomas on the basis of prejudice, even though you could make quite an argument that their statements from the bench demonstrate a strong predisposition in those cases; nor do state attorneys-general move to disqualify Justices Stevens on opposite grounds of implacable hostility to the death penalty.

Statements made "from the bench" not only have the virtue of being public, but in general the rulings that they're made in connection with are themselves reviewable on their merits. If the ruling proves to have been badly wrong, it gets reversed on appeal; if the rationale announced in an appellate opinion can't stand the test of time, it gets overruled. They are therefore precisely the class of statements least likely to give rise to either the perception or fact of hidden and uncorrectably unfair results. In short, there's nothing "artificial" about the distinction between on-the-bench and off-the-bench expressions of opinion.

*******

As for the line-drawing that Judge Roberts has done: He's making subjective decisions, but well-informed ones, that some legal issues and no longer "pending or impending" cases can't become a basis for his impartiality to reasonably be questioned because those issues aren't going to come up in the future. No state legislature is likely to outlaw condom sales to married couples, so Griswold and the specific issues it raised are relatively safe.

Might his guesses turn out to be wrong someday, using hindsight then? Sure. But that's not what's important. The question is whether today, when he's engaging in the discussion, either he or the senators think those are "hot" issues. If an issue is stale and cold — if we all think now it's unlikely to come up again, regardless of whether it actually does — then either a threat or a promise regarding that issue, made now in connection with Judge Roberts' confirmation, would be valueless. Sort of like Justice Scalia wrote about the value of the opportunity to sit in a duck blind in the freezing rain with Dick Cheney, if someone thinks a future Chief Justice can "buy" his confirmation just by promising to protect condom sales to married couples, they're delusional; that's not a "reasonable" basis for questioning his future impartiality.

*******

And yet, as Sen. Schumer later pointed out, federal judges and justices do in fact quite often give lectures or make speeches or write books or law review articles in which they discuss hot legal issues — including issues very likely to come before the federal courts — in considerably more detail than Judge Roberts has done during his confirmation hearings. They may avoid making specific promises or predictions. And normally, they're extra careful to stay away from specific "pending or impending cases" and thus to comply with Canon 3A(6); Justice Scalia's slip on the Pledge case was a rare screwup, one that he later acknowledged. But even if they're not discussing specific "pending or impending" cases, those lectures and speeches are likewise "extra-judicial" statements; they're not subject to the same checks and transparency as rulings from the bench; and they certainly tend to reveal, and to foster public perceptions about, the judges' and justices' biases and prejudices. So why don't they prompt frequent disqualifications? What's the difference between those statements and a nominee's statements during a confirmation hearing?

Here, too, I think Judge Roberts put his finger directly on the key distinction: In the Senate Judiciary Committee's hearing room, a nominee is giving sworn testimony while he's essentially at the senators' mercy. And within the way those terms in section 455(a) have been interpreted (albeit in other contexts) in the caselaw, that makes it more "reasonable" to "question" a judge's impartiality based on what he says there.

First: Oaths matter — to judges, oaths matter a lot. The public correctly perceives that oaths matter to judges. And thus what a judge says under oath creates a bigger public shock wave simply because it's under oath.

Second: Context and location matter a lot too. Simply in terms of weight and importance, what a nominee says under oath to the Senate simply counts for more than what he could ever say at a Knights of Columbus patriotic celebration, a continuing legal education seminar, a law school alumni banquet, or a memorial service. What's said to the Senate should and does have a bigger impact on public perceptions of the integrity of the judiciary and the judicial process.

But third, and most importantly of all, was the point Judge Roberts made briefly in response to Sen. Feingold, and then elaborated upon (immediately after the "North by Northwest" reference) after Sen. Schumer's rant was done: With respect to federal judges (who, as Judge Roberts patiently explained to Sen. Biden, don't stand for election), and also with respect to other lawyers and academics commenting in  those other off-the-bench but still-public forums, there's no reason to suspect pandering. There are not obvious incentives and opportunities for the striking of unholy bargains. The judge or the professor or the lawyer might be opinionated; he might even be badly wrong; but it's not especially likely, or likely to be perceived, that he's been bought based on what he's said in those forums. But when Sen. Schumer or Sen. Specter, or for that matter Sen. Brownback, quiz Judge Roberts in detail about Roe v. Wade and abortion rights, then the moment Judge Roberts started answering in detail with anything that even remotely smacked of previews, forecasts, hints, predictions, or pre-commitments, the room would begin to stink of quid pro quo, of wink and nudge, and even of outright bribery.

Promises of future performance in exchange for present votes — well, that's a staple of politics, but it's the opposite of justice under the rule of law. It's corruption. And simply put, that puts the Senate Judiciary Committee's hearing room at the absolute far end of the spectrum from the bench, with the Kiwanas or the Yale commencement address somewhere in the middle. Even when not about a specific "pending or impending case," the very same comment about a legal issue that might not tip the section 455(a) scale over to recusal when made at a cocktail party or a bar convention absolutely might tip the scale over to recusal, then, when made under oath during a Senate confirmation hearing.

Judge Roberts gets this. Sen. Feingold and Schumer either don't or, more likely, pretends that they don't. But average Americans just don't want their Supreme Court Justices to have sold their souls or their future votes in exchange for that lifetime appointment — and it's ultimately not much more complicated than that.

Bashman et al. on Newdow I's precedential effect on the new Pledge case

Those who pay attention to such things are continually amazed at the energy and diligence of Howard Bashman, whose How Appealing blog is consistently a fabulous aggregation of up-to-the-minute links to important things legal. If I'm in the mood to blog on something legal but don't have an inspiration at the moment, I can usually find one by skimming Howard's site, and it's where I always turn first to get details on breaking legal news.

Some folks may not appreciate, though, that in addition to being a prodigious blogging aggregator, Howard is also a star appellate lawyer. My theory is that his instincts and habits on how to gather all those links effectively are directly informed by his knowledge of and curiosity about substantive law. That is, he couldn't be such a great aggregator and linker on legal topics without also being a darned smart lawyer. And the confirmation for my theory comes on those occasions when, rather than just passing along links and pithy summaries of their contents, Howard shares his own views.

This post is Howard's concise explanation of why the federal district judge from California who's just ruled the Pledge of Allegiance unconstitutional went badly, badly wrong in believing himself precedentially bound by the Ninth Circuit panel's decision on the merits in the earlier Newdow case that the Supreme Court reversed on procedural grounds. (The new one is also brought by Michael Newdow, and will inevitably be referred to as "Newdow II"). Regardless of how one comes out on on the merits — whether "under God" in the Pledge violates the First Amendment — I think Howard has convincingly established why the judge got this fairly important (in his view, purportedly outcome-determinative) procedural point wrong. The judge was effectively saying, "I have to strike down the Pledge because my hands are bound by the prior Ninth Circuit panel ruling." And that's just wrong. (Prof. Volokh reached the same conclusion yesterday as well, and so did Patterico and Xrlq, each of whom added many links and a dash of much-needed snark to the soup.)

Ultimately, I don't think this particular error by the federal district judge will make much difference. The way that it might matter would be if the Ninth Circuit were to get the case on appeal and say, "Well, the district judge erred in thinking himself bound by our prior panel opinion in Newdow I, so we're going to vacate and remand back to him to give him another chance to consider the issues after being disabused of the notion that his hands were tied." That happens fairly often when a district judge has made fact findings based on an erroneous interpretation of the law; the court of appeals isn't in the business of resolving factual disputes, and if the facts are indeed disputed and important, they want a district judge to be resolving those disputes after taking and considering evidence with the correct legal principles clearly in mind. But here, I suspect the Ninth Circuit will say, "Regardless of whether the district judge was mistaken in thinking his hands were tied, we're going to proceed on to a determination of the merits, and there's no need for a remand to reconsider his factual findings because the relevant facts are mostly undisputed anyway."

But perhaps the Ninth Circuit panel that gets this case will at least not repeat the district judge's mistake. Hopefully, it will not think its own hands are precedentially tied, and that it can take a fresh look at the legal issues.

Even then, however, I'm not sure it will matter. My prediction is that most randomly selected Ninth Circuit panels are likely to do again in Newdow II what the Newdow I panel did last time, regardless of whether the new panel thinks it's compelled to do that or whether instead it comes to that result after taking a fresh look. (I can't rule out the possibility, though, that if the randomly selected new panel happens to include a convergence of the most judicially conservative and intrepid judges on the Ninth Circuit, it might come out the other way and rule the Pledge constitutional. I just think those are longer odds in the Ninth than they would be in, say, the Fourth, Fifth, or Eleventh Circuits.) I also predict that the en banc Ninth Circuit will again refuse to get involved if the new panel again strikes down the Pledge. And then the Supremes will again take the case — but this time, they'll reach the merits and Justice Scalia will be back in the saddle (instead of having had to recuse himself for ill-considered public remarks about an impending case, as he did while Newdow I was coming up through the system).

Finally, Best of the Web's James Taranto — leading blogospheric chronicler of the "Roe Effect" — ought to be all over the fact that Newdow II is being brought in part purportedly on behalf of two minor children identified as "RoeChild-1" and "RoeChild-2." Those would go into the Oxymoronic Names Hall of Fame, since everyone knows that a "RoeChild" isn't a child at all, but an inconvenient piece of tissue no different than a diseased gallbladder or some liposuctioned fat cells. Perhaps RoeChild-1 and -2 reside and are being compelled to recite the Pledge in Erehwon, California.

Rair, roar, or rar?

Judge Roberts pronounces "certiorari" differently than I do. I've always said it so that the next to last syllable sounds like "roar" (rhyming with "door"). I've occasionally heard it pronounced "rar" (rhyming with "car"). But he says "rair" (rhyming with "hair").

I remember while I was in law school that I asked one of my hometown lawyer friends from Lamesa how to pronounce the last syllable in "res ipsa loquitur" — to rhyme with "door" or "pure" or perhaps "burr"? He scratched his chin for a moment, nodded sagely to me, and said, "Here on the prairies of West Texas, Dyer, we members of the local bar speak to one another of little else but that question."

But on the other hand, in favor of dead languages, I had occasion for the first time in my career last month to argue (in a written motion, not aloud) "Ubi jus, ibi remedium." And it worked!