BeldarBlog

Beldar on Volokh on the Texas polygamy/child custody case

A few folks have asked me for my take on the Austin Court of Appeals' overturning this week of the state trial judge's interim child custody decision in the big Texas polygamy/child custody case. UCLA Law Prof. Eugene Volokh is one of the smartest law professors blogging today, and I agree with him probably 98% of the time. But in comments to this post of his (many of which he was kind enough to respond to in further comments), I disagree strongly with his conclusion that the appellate court was administering a "sharp rebuke." Perhaps you have to actively practice law regularly to have a clear sense when an appellate court is just saying "This side lost," and when it's saying, "Boy, howdy, this side needs a trip to the woodshed because it was way, way out of line, and let's include the trial judge in that whuppin' too." This was an example of the former in my judgment, whereas Prof. Volokh apparently reads it as an example of the latter.

Prof. Volokh and I also disagree very strongly on the significance of this ruling for the future. In both his original post and a subsequent one, Prof. Volokh suggests that the court of appeals has conclusively found a "violation" of the relevant law by the Texas Department of Family and Protective Services in seeking an order temporarily depriving the parents of custody. But to start with, the words "violate" and "violation" appear nowhere in the court of appeals' opinion. This appellate court mandamus proceeding determined whether the State is entitled to continue keeping the children, but that's decided on the basis of an entirely different subchapter of the Texas Family Code than would be at issue in deciding whether the State had an adequate basis to take them away in the first place. Those questions, and the legal standards for deciding them, are closely related. But they are not, as Prof. Volokh presumes, exactly identical.

Professor Volokh also ignores the fact that this was an interim appellate ruling on an interim trial court ruling. There is no conceivable way that this interim ruling could preordain the outcome of, for example, a separate damages lawsuit by the parents whose children have been temporarily separated from them. (At a minimum, for this ruling to be binding against the State in any separate lawsuit under the doctrine of "collateral estoppel" a/k/a "issue preclusion," it would have had to have come from a final judgment on the merits after all appeals have been exhausted.)

Ultimately I think the court of appeals reached the correct decision, given the state of the current record. There's just not the required "emergency" to justify taking those kids away from their parents on an across-the-board basis right now, without investigation and proof on a family-by-family, child-by-child basis. But that won't be nearly as important a factor in the ultimate decision in this case on the merits. I consider myself a civil libertarian. But I would have no trouble agreeing with the State here that it's contrary to the long-term best interests of the affected children to raise them in a tight, isolated culture whose entire premise is to evade state law, to secretly coerce pubescent minor girls into arranged marriages, and to indoctrinate both boys and girls into that culture. The State needs to prove that far more thoroughly, on a family by family and child by child basis. Ultimately the State's case is likely to rest on factual inferences drawn from circumstantial evidence — the patriarchs aren't ever going to admit to being serial sexual predators ruling over a fiefdom designed to ensure their continual supply of pubescent "wives" — so the State's eventual proof of those circumstances needs to be exhaustive.

Odds I would have given, and odds I won't take, on future terrorist attacks on American soil

There could be another one tomorrow. Or in three months and a few days, to commemorate the anniversary of the first one.

But there has not been a major terrorist attack, by al Qaeda or otherwise, on American soil during the roughly six and a three-quarter years since 9/11/01.

When Barack Obama and the Democrats tell you, again and again, as if it's an indisputable truism, that "George W. Bush's foreign policy and national security policy have been unmitigated disasters," that rather important fact — almost seven years since the last major terrorist attack on American soil! — is enough all by itself to refute their argument.

Indeed, if you had asked me in late September 2001 what the odds were that we could survive two full years without another major terrorist attack on American soil, I'd have given you poor odds (at least 10 to 1 that another attack would occur). If you'd asked what the odds were that we could survive another five full years without one, I'd have given you overwhelmingly grim odds (at least 50 to 1). Turns out, I would have been wrong.

But it just doesn't seem all that remarkable to us anymore that, hey, our office towers are pretty much not imploding in onto themselves and falling out of the sky. Our train stations aren't filling up with shrapnel or nerve gas. Our petrochemical refineries and nuclear power plants haven't been sabotaged. Only people who fail to remark on such things can also listen to Obama preach about "Bush's failures" without laughing.

It should seem remarkable. It genuinely is remarkable. Indeed, I encourage each of you to remark upon it, confidently, the next time someone like Obama says something so pathetically stupid about "George W. Bush's unmitigatedly disastrous foreign and national security policies."

Likewise, we Americans, even those of us who genuinely do cherish and honor our military forces, mostly tend to take for granted that they can whip anyone who will come out to fight them, any where and any time, and that we'll do so by margins so lopsided and decisive that they lack any comparison throughout the history of human warfare. But I don't think our potential enemies make that mistake.

Back in the late 1970s, immediately post-Vietnam, and even the 1980s, the leaders of a third-rate tin-pot dictatorship like Iran might have flattered themselves into thinking that they could at least give us a good fight. Desert Storm proved to the world, however, that anyone else giving us a "good fight" is an unlikely proposition, and Iraqi Freedom made it an absolutely preposterous one.

The practical limits to American military power are those which are self-imposed by our fundamental decency and sense of responsibility, and, frankly, by our own long-term self-interests: If we're going to topple a regime like Saddam's, we don't just walk away after the statues have been pulled down, or even after the war criminal trials have been concluded. Democrats are fond of quoting our own generals who say, "There is no military solution in Iraq." Well, of course there is: We could turn the entire country into a radioactive green-glass parking lot by noon tomorrow if we weren't self-constrained from doing so by other considerations. Short of that, we could — if we had the desire and political will — flood the country with sufficient occupation troops to turn it into a well-run prison camp; but we're self-constrained from doing that, too.  So we choose to consider and employ other alternatives, even ones that are messy and costly and slow.

But even if the Iraq War did nothing else (a proposition I reject), however, it emphatically demonstrated to every other country in the world that, in their dealings with the United States, there simply is no "military solution" which can favor them.

Consequently, when the leaders of the Iranians or the North Koreans or the Syrians or the Libyans (or for that matter, the Paskistanis or the Egyptians) send their proxies to sit across the table from Condi Rice and her own minions, there is never any "My daddy can beat up your daddy" subtext to the conversations. Everyone on the block knows that the results of any military conflict are preordained. They all watched the American Big Daddy thrash the stuffings out of the last other Daddy who chose to fight. And for the remainder of George W. Bush's term, there will be no doubt in their minds that similarly provoked, America could, and very well might, do the same to them. And so, currently, they act up and misbehave in direct proportion to their confidence that Dubya, if provoked by them, will be sufficiently restrained from undertaking any military solutions by a war-weary and often short-sighted Congress and public. (Do you think it was accidental that the Iranians seized and kidnapped British sailors and Marines from international waters in the Gulf last year, instead of American ones?)

The day Barack Obama takes over the White House, though, everything changes. Would Barack Obama — the candidate preferred, bought, and paid for by MoveOn.org, which opposed even the Afghanistan regime change — react surely and decisively to a challenge to American interests? I don't think he would — not unless he were absolutely convinced that failing to do so would result in his being immediately impeached in the House and successfully convicted in the Senate. I don't think foreign enemies of America believe he would, either. He might talk, and scold. But he'd include America itself in the scolding! (He'd especially, and conveniently, blame ... George W. Bush!)

The best I can say is that however gravely its international interests would be wounded, America, at considerable cost, would probably survive four years of an Obama presidency. We survived Jimmy Carter, an equally naïve buffoon. But if Obama wins, I won't give you even astronomical odds — not a thousand to one, not even a million to one — that there won't be another terrorist attack on America comparable to 9/11/01 during his four-year term of office.