BeldarBlog

Federal courtrooms as Sherwood Forest

Imagine that you're a trustee. (You've never heard a fairy tale start with that line, I'll bet. But this isn't a fairy tale, so bear with me.) The trust to which you owe fiduciary duties owns, and has rented out, a house, so you're effectively acting as that property's landlord on behalf of the trust. You must act prudently, lest you become personally liable yourself to the trust for mismanagement. You can't just make decisions based on a lark.

Imagine further that the house was rented to a husband and wife (and indeed, the trust is connected to the husband's family). But they're getting a divorce. The wife has kept possession of the property, but neither she nor her husband nor anyone else have paid you (as trustee) any rent for months. On behalf of the trust, you reluctantly start the mechanisms for evicting the wife. But at the last possible moment, the eviction is blocked when the wife files for personal bankruptcy.

So now you've got to get the approval of the bankruptcy court to regain possession of the property. You ask the bankruptcy court to lift the "automatic stay" that blocked the eviction proceedings. That kind of request is one of the absolutely routine (if sad) proceedings that bankruptcy courts handle in large volume, day in and day out, and you're going strictly by the book. And as per that routine, the federal bankruptcy judge agrees with you, rules for the trust, and orders the wife to leave the property.

But bankruptcy judges are subject to supervision from federal district judges. And suddenly, to your complete surprise, one of those federal district judges yanks your case out of bankruptcy court, and pulls it instead into his federal district court. He hasn't been randomly picked out of all the federal district judges in that district (which is one way the federal courts prevent corruption and misconduct); instead, he's picked himself. And for reasons he won't explain, he orders that the wife can stay in the house. Indefinitely. Rent-free.

Imagine further that every other lawyer and judge who looks at this situation agrees that what this particular federal district judge has done is simply incomprehensible. And it looks really fishy, because there's a connection between him and the wife: She'd been prosecuted in his court for fraud, but she'd pleaded guilty and the federal district judge had put her on probation. And he'd been meeting personally with her, supervising her probation. That by itself is pretty rare, but it's something this judge has done before with other probationers. And this wife, well, she's cute — "waif-like," everyone says. (I'm thinking Kate Mossish, without the cocaine and the heroin, one hopes; or maybe Nicole Kidmanesque; or Keira Knightlyescent, if she's really young.) Now don't jump to conclusions — nobody can prove, and nobody even claims to have a solid basis to claim, that there's an additional personal, much less sexual, relationship between them beyond "judge/probationer." But the federal district judge admits that it was through his supervision of her probation that her circumstances with the house and the eviction proceedings somehow came to his attention. Exactly how is disputed, but it's also clear that it wasn't through any normal means. The lawyer you've hired to represent you and the trust was kept entirely in the dark about it, for example. The proper motions weren't filed, bonds weren't posted, certified letters weren't sent, notices weren't given, magic words and incantations weren't uttered, and rules weren't followed. They just weren't, not even sorta-kinda. None of them.

Yet this federal district judge continues to block your every effort to regain possession of the house for the trust. He won't give a reason why other than "Because I said so." And the wife just keeps living in the house — absolutely rent-free! — for seventeen more months. Eventually, some judges from the court of appeals — the next level up from the district courts — start looking at this pretty hard and asking some embarrassing questions. So the federal district judge finally punts the case over to another federal district judge (but it's one he's hand-picked). And finally, finally, the court of appeals issues an extraordinary order to make the wife leave the house.

But on behalf of the trust, by now you've run up tens of thousands of dollars in legal fees and expenses that the wife will never pay. The trust has lost about $35,000 more in rental income that will never be recovered. That is, the wife's gotten that much value from the trust — absolutely for free. But her bizarre protector, the federal district judge, refuses to admit any wrongdoing, except maybe (he says through his own lawyer!) that he ought to have done a better job of preventing "miscommunications." He can't offer any legal justification for what he's done — "not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg."

Now imagine further that when you've used the legal and appropriate mechanisms for pointing out and challenging judicial misconduct, the chief judge of that court of appeals dismisses your complaint — twice. She won't even dig into the other fishy facts to sort out the ones that are in dispute. She doesn't bring all this to the attention of the House of Representatives, so they can consider whether to begin impeachment proceedings against this federal district judge. She won't make the federal district judge reimburse the trust. She doesn't suspend him or dock his pay. She doesn't even make him apologize. The chief judge and her fellow federal judges have the legal power to do those things, to police their own ranks; indeed, they have the responsibility and the duty to do them when appropriate. But when you try to appeal her ruling, the majority of a Judicial Council comprising five other circuit judges and five other district judges votes — over one and a half dissents — to uphold what the chief judge has done. And now you're done; you have no further appeal, you can't go to the Supreme Court. You're at the absolute end of the line.

Now imagine that you've just told this outrageous tale of woe to me, and that you ask me: "Beldar, what do you think?"

I'd say to you: "Friend, I think you must live within the jurisdiction of the United States Court of Appeals for the Ninth Circuit."

I'd say: "I'm glad there's at least one judge who was on that Judicial Council who's brave enough to publish his blistering thirty-nine page dissent, just to tell your sad tale to the public." Indeed, that judge  is absolutely correct when he writes:

Congress has surely not made us the most powerful judges in the world so that we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it.

And likewise when he writes:

A federal courtroom is not Sherwood Forest; a judge may not take property from one party and give it to another, except by following the established rules of civil procedure.

And then I'd say: "But I think there are quite a few other judges out there who must not understand the incredible damage that this sort of mess does to our judicial system. And that makes me really sad, and really worried too."

Nobody in this tale lives happily ever after.

(Hat-tip to Patterico, who in turn credits Jonathan S. Haas.) UPDATE (Sun Oct 2 @ 11:30am): A reader emailed me to point out that Denise Howell (who also blogs at Bag and Baggage and originated the term "blawg") waxes poetic over one aspect of this dissent over at Corante. (I didn't follow all the links, but did the one about the thong.) And Howard Bashman (who is many things but not likely waif-like) also has the story (plus a link to a 2004 LAT writeup at an earlier stage of the case, if you want to know the federal district judge's name); Howard confirms that this dissent appears to be the first judicial use of "blawg." We have nowhere to go but up, it seems — oh, how I aspire to someday approach the credibility, or even the popularlity, of a bankruptcy treatise! — but from tiny acorns do mighty oaks grow in Sherwood Forest and legal precedent.

I blush ...

... at the last sentence of this post. Thank you, Mr. Ponnuru.

But it is true that I'm available, even to Dick Morris, at a much lower hourly rate than Dick Morris.

WTG Kuff

To anyone who says that the right hemisphere of the blogosphere has any sort of monopoly on well-tempered, humorous, eloquent, and intellectually honest political argument: You're badly wrong, and as proof, I refer you to Houstonian Charles Kuffner's excellent blog, Off the Kuff.

I came upon Kuff's blog almost at the same time I started blogging. He immediately gained my respect during the civil and honest debate we carried on, both here and on his blog and in our respective comments sections, during the Texas Redistricting wars. His blogging ethics are impeccable. In fact, I'd gladly claim Kuff as a role-model, for I admire his ability to combine passion, good taste, and receptivity to contrary arguments. He's prolific, but way less wordy than I am. And he thereby justifiably attracts links from other good bloggers (not limited to those left of center) and a consistently high caliber of commenters (again, not limited to those left of center).

Kuff is an all-around class act and a genuinely nice guy. It's a slight misnomer — his blog's regular content includes yet also wanders far from our home city into state, national, and international matters (not limited to politics) — but Charles well deserves his recent recognition by the Houston Press as Houston's "Best Local Blog" again this year. I fully concur.

Blessed are the peacemakers

Tom Kirkendall has a post up that starts with a link to and quotes from some very good reporting by the Houston Chronicle's Todd Ackerman. And then — as the best bloggers do — Tom adds considerable value with further links, facts, and perspective. The subject is the apparent settlement of one of the most scary and unproductive spats imaginable in Houston: a nasty schism (bordering-on-bloodbath) among key institutional players at the Texas Medical Center, including Baylor College of Medicine, The Methodist Hospital, and St. Luke's Episcopal Hospital.

My ex trained at Baylor (one of two major medical schools at the TMC, and unaffiliated with Waco's Baylor University for many decades), and she then taught in the basic sciences (pre-clinical) curriculum there for several years, so I've had a more than casual interest in reading about this spat as it's developed. (Indeed, when I was all wired up in The Methodist's ER in July, I had a way more than casual interest in it!) And in the past, some of the rivalries and internal competition within the Medical Center — most famously, the DeBakey-Cooley/Baylor-UT feuds — have ended up motivating all parties to improve themselves. But as it's unfolded and grown, this dispute has become the kind of slow-motion train wreck that any knowledgeable Houston-booster just absolutely hated to watch. It did not look to me like any of the institutions involved were likely to come out better in the end, and all of them seemed to be at serious risk.

Apparently the catalyst for the compromise has been Texas Attorney General Greg Abbott. I'm impressed and grateful, but entirely unsurprised. I've been distantly acquainted with AG Abbott since he was in private practice, and I also had the pleasure to appear before him when he was a state trial judge. He's a smart, energetic guy. I suspect that just as when he was a trial judge, his role as AG gave him the credibility and tools with which he could aggressively lead the parties to water and make them stay put a while, even if he couldn't legally force them to drink. Using those tools creatively and patiently is an art, not a science. And we're talking here about egos that (with considerable justification) match or exceed those found on Wall Street, Capitol Hill, or Turtle Bay — nobody fights like doctors can fight when they get their dander up.

Bravo, Mr. Attorney General! You've rendered a genuine and indisputable public service to the City of Houston and the State of Texas.

By their front-page composition

... ye shall know them.

Miller & lawyer to Libby & lawyer: You incompetent idiots, why didn't you save me from my folly?

Paul Mirengoff at Power Line has this bit as part of a hugely intriguing post mostly about other things that I'm not yet prepared to blog about:

One thing seems clear in all of this — Miller's lawyer Robert Bennett is way out of line as he makes the rounds of the talk shows suggesting that Scooter Libby should have called Judith Miller earlier to personally assure her that she had his permission to testify. For example, he told Wolf Blitzer:

Mr. Libby knew where Judy was. He had her phone number. They knew each other. There was no secret where she was. So I find it amazing that somebody would suggest that Judy would unnecessarily spend 85 days in jail.

Paul's comments thereafter are right on point — read the whole thing — but I want to add one additional wrinkle to them: Bennett's comment ignores the fact that his client's previous position was extremely insulting to both Scooter Libby and his lawyers.

Hypothetically, if I'm representing Scooter Libby, then among my jobs as his counselor is to help him make informed, rational decisions that are in his own personal best interests. I don't let Scooter Libby, for example, make, and then publicly repeat, a broad waiver of his "rights" (really, expectations) as a confidential source unless I'm absolutely certain that Mr. Libby (who's unlikely to be a fool himself, having risen to the position of chief of staff to the Vice President of the United States) has indeed had a full and ample opportunity to consider all the pros and cons, all the upsides and downsides, of that decision. I play devil's advocate with him; I help him explore best- and worst-case scenarios; I help identify all his alternatives, so that he can exercise his informed judgment according to his free will. That's my job as his lawyer.

I also make sure he doesn't make, and then publicly repeat, a broad waiver of his "rights" as a confidential source unless I've also made my own independent determination that he also has the full capacity to make an informed decision and exercise his free will. If I suspect, for example, that he's suffering from temporary insanity, or under the influence of LSD, or mentally retarded, or under hypnosis, or has an improvised explosive device wired to his waist and Karl Rove's holding the detonator — in short, if I have any reason to believe, or even suspect, that my client might be unable to discern and act in his own rational self-interest, then I call a halt to the proceedings and I take appropriate action.

But comes now Judith Miller of the New York-bleeping-Times, who goes prominently on record as saying, in so many words: "Never mind what my source says. I — the journalist, the goddess of the press — have the sole and absolute right to decide whether my source's waiver was or was not 'coerced.'" Because that was and still is Judith Miller's very clear position — not just that there had to be a waiver, and that it had to be voluntary and uncoerced, but that only she could decide whether it was voluntary or coerced.

(Leave aside for the moment that her apparent standard for "coercion" and "voluntariness" is unique, arbitrary, and absolutely contrary to law. The fact that Mr. Libby's waiver may have been motivated, in whole or in part, by a desire to avoid some bad consequence, e.g., being fired, does not invalidate his decision. If that were true, there could never be a valid guilty plea, for instance. If that were true, you could freely breach every contract by claiming, "Oh, well, I was coerced into breaking my promise because I suddenly realized it would be disadvantageous to me to keep it.")

Just on its face, that's an incredibly insulting position to take. That's equivalent to Judith Miller saying: "Scooter Libby is drunk, retarded, or otherwise incapable of making a rational, binding decision on his own, and his lawyer is too damned stupid, unethical, and unprofessional to recognize that and do anything about it. Whatever they say, it doesn't count." In fact, it's hard for me to imagine a more self-righteously patronizing and repugnant position that she could have taken.

And now she blames Libby and his lawyers for not going out of their way to explain to her that she was acting stupidly?

Please. Bring me the world's smallest violin.

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

UPDATE (Sat Oct 1 @ 1:00pm): In a new post, Paul was kind enough to link this one, and he and John Hinderaker both make some persuasive points about how bizarre it is for Ms. Miller and her lawyers to fault Mr. Libby and his. And in the blogosphere-scoops-MSM fashion they so frequently display, the Power Line guys have somehow obtained, and posted, photocopies of three amazing letters written, respectively, by Scooter Libby to Judith Miller (c/o her lawyer Robert Bennett); by Mr. Libby's lawyer Joseph Tate to Special Prosecutor Patrick Fitzgerald; and by another of Judith Miller's lawyers, Floyd Abrams, back to Mr. Tate. [Update to update, Sun Oct 2 @ 12:45pm: Tom Maguire, in comments below, pointed out that the NYT has also posted the letters (in a single .pdf file that I find more easily readable). Tom's latest post on all this is here.]

The latter two letters basically read like overgrown kindergarteners screaming "Did not! Did too!" at each other. To put it mildly, Mr. Tate and Mr. Abrams can't agree at all on what each said to the other a year ago, and so each is now engaged in some major (and unfortunately all too typical for lawyers) posturing. Letters like these are what lawyers write to each other when there's no judge to hear and sustain each others' objections, so there's no restriction on their inclinations to engage in hissy fits (at way over $600/hour for guys in this league).

But the most amazing lines are Mr. Libby's, at the end of his remarkably gentle, eloquent, personal, and even poetic plea for Judith Miller to come to her senses and accept his waiver:

You went into jail in the summer. It is fall now. You will have stories to cover — Iraqi elections and suicide bombers, biological threats and the Iranian nuclear program. Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work — and life.

Until then, you will remain in my thoughts and prayers.

With admiration,

/s/
Lewis Libby

Anyone with both a working brain and a working heart — that is to say, anyone who hasn't had the former hypertrophied and the latter atrophied by law school — has to have a powerful reaction to lines like these. Mr. Libby comes out of the exchange looking like the only decent human being among them — someone who's not only entirely unafraid that he's going to be prosecuted, but also genuinely respectful and fond of another person (even though she is in a profession that oftentimes makes her his own professional adversary).

Back to the — excuse me for the blunt language, but again, this is the way trial lawyers speak among each other — pissing match between Messrs. Bennett, Tate, and Abrams:

I don't care who said what to whom on the phone a year ago. I have no opinion whose version of events is closest to the truth. It doesn't matter. There was no doubt whatsoever that on its face, the written waiver that Mr. Libby had given was legally adequate and effective to release Judith Miller, Matt Cooper, and every other reporter he'd ever spoken with from any continuing obligation to maintain Mr. Libby's confidentiality as one of their sources. At that point, given that Mr. Libby is an adult and was represented by his own counsel, all of these reporters' second-guessing should have stopped. If Mr. Libby was under pressure to grant a waiver, or to decline to assert his Fifth Amendment rights against self-incrimination — either because of an explicit statement that he'd acted otherwise, he'd be fired by the President, or because of his fear that he'd lose political credibility, or for whatever other reason — then that was between him, his employer, their respective lawyers, and (perhaps) the Special Prosecutor.

I repeat, were I in the position of Mr. Libby's lawyer, the very instant Ms. Miller or her lawyers started sputtering about whether Mr. Libby had been "coerced" or whether his waiver was "voluntary," my immediate and very vehement reaction would have been to say (probably in an uncomfortably loud voice): "Who the bleepedy-bleep do you think you are to try to second-guess the legal advice and representation I've given my client, and his considered decisions on the basis of my confidential counsel to him?!? My client decided to talk to Ms. Miller, sure, but he damned sure didn't give her a veto power over every major decision he'd make for the rest of his life! You have no standing here. Get over yourselves, please!"

Regular readers will know that I'm generally a big fan of Floyd Abrams. But in the end, I'm not a fan of how he or his co-counsel or their client have handled this. They've been sanctimonious, presumptuous, self-righteous, insulting, and, ultimately, silly and stupid. From day one through today, everything they've done has been premised on the notion that Judith Miller is above and beyond the law, acting on another plane than the rest of us mere mortals. And I am 100 percent convinced that Ms. Miller and her own lawyers collectively bear 100 percent of the responsibility for every minute Judith Miller spent in jail — and that every such minute was a total waste, the only result of which has been to substantially delay the doing of justice, whatever that turns out to be, in L'Affair Plame.

Roberts; Miller; DeLay

I can't not post on a day that has so much law-related stuff in the news:

• By far the most consequential news was also the most expected — that we have a new Chief Justice of the United States, the Hon. John G. Roberts, Jr. The 78 confirmation votes he received in the Senate was consistent with my prediction ("more than 70 votes" but "I don’t think he’ll break 85"). Yeah, it's a triumph for the Bush Administration, but more importantly by far, it's a triumph for the rule of law, in general and as applied, in our nation.

• Judith Miller, her employer, and their allies are spinning desperately to make her look anything north of stupid today, and it's just not working. Another victory for the rule of law, another defeat for self-important and self-deluded scofflaws. The funniest lines I've read so far about her capitulation come from her near-maniacal supporters at Editor & Publisher:

  It's even possible that it was Fitzgerald who ultimately "cracked," eager to produce indictments but with the grand jury session wrapping up without Miller's key testimony on Libby. Or, on the contrary, Miller might have finally blinked, fearing that the prosecutor would extend the life of the grand jury, leaving her behind bars for many more months.

  Yeah, right. Mr. Fitzgerald's an utter wreck, just begging Ms. Miller to let up on him. Whoever on the "E&P Staff" wrote that stinker has either punctured his/her cheek with his/her tongue or is living blissfully in Bizarro World; my money's on the latter. The second funniest bit: Despite being in one but not the other continuously since July 6th, Judy still doesn't know the difference between "jail" and "prison."

• The fact that Travis County District Attorney Ronnie Earle is well documented as a prosecutorial over-reacher, a hyper-partisan loose cannon (almost as dangerous to himself and members of his own party as to opponents), a grandstander, a frequent magnificent loser at the courthouse, and one of the biggest horse's asses in the history of Texas does not mean that Tom DeLay is necessarily innocent. But neither does the fact that Tom Delay has been indicted mean that he's guilty. I am not among Rep. DeLay's fans, but I do think he's entitled to his presumption of innocence.

Neighborhood report

Weiss and I just returned from a long, looping walk through my neighborhood. I took along the digital camera, but saw nothing more exciting than a shrub and its 3-1/2-foot clay pot overturned. Lots of neighbors raking yards, scraping tape off windows, etc. Dusk traffic on Southwest Freeway and its access roads looked typical for a Sunday evening in both directions. I did pass by three or four gas stations, a couple of which were open to sell sundries, but none of which had gas to pump. But otherwise things seemed remarkably normal.

"Roberts 2008" presidential campaign kicks off in Newsweek

I was indeed ready for some comic relief from Rita, and (via Howard Bashman's How Appealing) I've found it in this irredeemably silly bit from Newsweek's Eleanor Clift:

Roberts has led such a charmed life that heading the Supreme Court may not be the end of the road for him. Sid Davis, former Washington bureau chief for NBC news, has a recurring dream that Roberts will become president someday. This is the scenario: Roberts looks like William Holden, a Hollywood leading man when Ronald Reagan was still a B actor. A son of privilege with a Kennedyesque family, he recalls the heady days of Camelot. He’s a man of great intellect, and in about 10 years time, maybe longer, he’ll be bored with the high court, and a Republican Party starved for charisma will draft him to run for president. “I’ve been floating the idea and people think I’m nuts, but I don’t think I’m nuts,” says Davis.

I suppose the reference to NBC's Sid Davis as having come up with this nonsense was intended to make Ms. Clift look less silly than if she'd originated it. And I think there are indeed many in the mainstream media who — like their allies on the Democratic side of the aisle in the Senate — are utterly flummoxed by how thoroughly, and with what apparent ease, Chief Justice-presumptive John G. Roberts, Jr. has demolished the reflexive anti-Dubya efforts to oppose his nomination. I suppose it ought not be a surprise, then, when they engage in fabulous and implausible speculation that John Roberts might therefore similarly slay any type of opposition he might meet for any governmental position.

Still, that Ms. Clift and her editors at Newsweek could devote bandwidth to this sort of fantasy is an indicator of how thoroughly they perceive the Supreme Court and the rule of law to be just another variety of political game. John Roberts' career has been that of a secular monk dedicated to the study and preservation of pure law at its most highly distilled and refined level. It was his absolute dedication to and mastery of that realm which enabled him to shrug off every political entreaty or demand thrown at him by any senator. But members of the mainstream media are like ex-jock football commentators being asked to speak intelligently on, say, architecture or origami.

How long will it be before the mainstream media begin labeling Supreme Court Justices like they do senators — "Chief Justice John G. Roberts, Jr. (R-IN)"? How long before they start running breathless Justice-by-Justice opinion polling: "An exclusive new MSNBC/WaPo poll reveals that if a Senate confirmation hearing were held tomorrow, Associate Justice Clarence Thomas would lose by a better than two-to-one margin to either Harvard Law's Professor Larry Tribe or Boston Legal's Alan Shore (as played by James Spader)!" Mr. Spader is approximately as likely a Supreme Court candidate as Judge Roberts is a presidential candidate.

Return from Rita: The Plan

Well, at least it's simple (click for full-size):

I have no expectation whatsoever that a significant percentage of the estimated 2.5 million people who've evacuated Houston will actually adhere to this plan. And I just love that orange area marked "Pending" — yeah, as if. They shoulda just marked that: "Purty Soon Now, Just Don't Y'all All Hurry." [Edit: Yes, I realize the orange area represents Rita's landfall path that suffered the most damage, with consequent longer delays in restoration of power, water, etc. I apologize if this remark seemed insensitive; I meant not to minimize the effects of Rita, but to express my view that those affected are nevertheless going to be eager to get home, to get about putting things right. — Beldar]

Nevertheless, in these particular circumstances, it's not a bad thing for the authorities to announce some kind of plan — not out of an expectation that it will be followed scrupulously, but simply in order to impress upon a substantial fraction of the folks returning that there are good reasons why not everyone ought to try to return all at once.

My guess, however, is that that impression was already conveyed — rather forcefully and more effectively than any PR campaign could do — by the outbound gridlock.

Nevertheless, asking Houstonians to wait for very long before getting back to their miscellaneous affairs — business, recreational, and otherwise — is a lost cause. This is a city noted and notable for its "industry" — and I don't mean just the corporate type. This place has get-on-with-it, get-ahead, time's-awastin' just-do-it energy. It's a city that can't sit still. Outside my house, the low 24/7/365 hum of the Southwest Freeway, about six blocks away, has already returned. This place is just ridiculously alive. And that's kinda cool.