BeldarBlog

Obama, Sunstein, and "libertarian paternalism"

From a very scary hagiography in the New York Times Magazine:

Libertarian paternalists would have school cafeterias put the fruit before the fried chicken, because students are more likely to grab the first food they see. They support a change in Illinois law that asks drivers renewing their licenses to choose whether they want to be organ donors. The simple act of having to choose meant that more people signed up. Ideas like these, taking human idiosyncrasies into account, might revive an old technocratic hope: that society could be understood so perfectly that it might be improved. The elaboration of behavioral economics, which seeks to uncover the ways in which people are predictably irrational, “is the most exciting intellectual development of my lifetime,” Sunstein told me.

The title of the article is "Cass Sunstein Wants to Nudge Us." The word "nudge" in the title is an allusion to the title of a recent book that Sustein co-wrote. But you have to understand: by "nudge," Sunstein means "turning your life into something run the way he and his ilk think it should be run" — nothing less than that.

It is the nanny state. It is the statist impossible utopia that Barack Obama and folks like Sunstein have in their pointy heads as the America they want to build, as they systematically dismantle everything in the America that exists.

"Libertarian paternalism" is an oxymoron. What Sunstein and Obama are doing is just arrogant paternalism, period. Instead of anything remotely resembling real libertarianism, Sunstein is promoting the notion of government regulation so subtle, so perceptive, so ... well, just so damned clever that it won't really seem like much of a bother to do what Sunstein and Obama and the government want you to do. You'll think it's your own idea!

'Cause they're smarter than you and me, see? Get it? If you don't, then just keep clinging to your guns or religion or antipathy toward people who aren't like you or anti-immigrant sentiment or anti-trade sentiment. Something. You moron, why do you think you're even remotely qualified to run your own life? Sheesh.

[/sarcasm off] Seriously, folks, this article will tell you everything you need to know about why Cass Sunstein is my worst dread as a potential Obama SCOTUS nominee. I am so, so very glad that he's a pasty white guy!

Michael Douglas takes courageous stand: self-confessed convicted rapist Polanski really is — gasp! — a criminal!

Per an AP story of yesterday's date published in the Houston Chronicle (among other places):

Michael Douglas says he will not sign a petition in support of director Roman Polanski, who is under house arrest in Switzerland in connection with a 33-year-old sex scandal.

Douglas, whose "Wall Street: Money Never Sleeps" is screening at the Cannes Film Festival, told French radio it would be "unfair" for him to sign a petition for "somebody who did break the law."

Other filmmakers at the festival, including French New Wave director Jean-Luc Godard and actor-director Mathieu Amalric, have signed the petition, which is posted on a Web site overseen by renowned French philosopher Bernard-Henri Levy.

Polanski was taken into custody in September and is currently under house arrest in Geneva.

The interview aired hours before British actress Charlotte Lewis claimed at a news conference in Los Angeles that she was sexually abused by Polanski in 1982 when she was 16.

Polanski pleaded guilty in 1978 to unlawful sexual intercourse with a 13-year-old girl. But after a judge said he would renege on the plea bargain, Polanski fled to his native France. He has been a fugitive since then.

In the interview with RTL radio broadcast on Friday, Douglas said Polanski had been given "some bad advice" when the scandal broke.

Oh, what a beacon of moral clarity is Michael Douglas! How brave he is, to stand against the floods of Hollywood and wanna-be Hollywood glitteratti who've flocked to Polanski's defense.

Douglas has displayed — just barely — the minimal human decency not to lionize and make excuses for a confessed, convicted child rapist, one whom we now know to in fact have been a serial child rapist, and one whom we know is both unrepentant and intent on mocking America, its people, and the rule of law. It's terribly sad that Douglas' weak showing is about as much moral integrity as Hollywood is capable of displaying.

To influence SCOTUS, why would you turn to a law school dean?

I commend to your attention, and associate myself with the views expressed in, this post by Wisconsin Law Prof. Ann Althouse. Key bit (emphasis hers):

It seems that Kagan has been very good at influencing professors and that Obama read that (and his own direct contact with her) to mean that she'll be good at influencing Supreme Court Justices. That may be a poor inference. I think a law school dean is engaged in more of a social enterprise in bringing groups of people together. But the Justices — as the oral argument shows — deal in much more technical legal arguments. They may bend liberal or conservative, but the arguments need to be there.

But read the whole thing. You won't want to miss the info about Solicitor General Kagan's handful of appearances before the SCOTUS as an advocate.

Beldar's take on the current SCOTUS buzz

Another [senior administration official] said that there have been several meetings but that the White House has not much shared its point of view. Still, one outside source said the president's preference is less apparent than at the same point a year ago, just before he nominated Sotomayor. "Last time around, you knew Sotomayor was going to be the candidate," the person said. "She was such a home run on so many different counts.... I would say this one is much, much, much more difficult for them."

So reports the WaPo, in what I think was probably an unintentional episode of damning by faint praise.

The Hon. David Souter, retired Associate Justice, was reliably a Lefty vote, but he generally lacked any significant influence beyond his single vote. Justice Sotomayor was an almost perfect replacement for him — and by "perfect replacement" I mean "perfect match." She was picked on the sole basis of identity politics, and I suspect all that "wise Latina" superiority stuff has been politely ignored, but has not been quite forgotten, by her new peers.

Indeed, I have a comparatively higher opinion of each of the people supposedly on Obama's current short list than I do of Justice Sotomayor, and I think any of them would have a better shot than Justice Sotomayor at satisfying what ought to be a liberal Democratic president's strategic goals in making a SCOTUS appointment. That is to say, I think Obama essentially wasted his pick on Justice Sotomayor. And I think that any of the people now supposedly under consideration would have at least a chance of becoming a Justice with more influence than Souter wielded or Sotomayor is likely to wield. I doubt any of them would ever become as influential as was, say, Justice Brennan or even Justice Douglas, but they might manage, if they're fortunate, to mostly fill Justice Stevens' liberal shoes as someone who could definitely hold his or her own.

Of the names being floated, I think Judge Diane Wood of the Seventh Circuit is the most likely to be able to influence other votes, especially that of Justice Kennedy — albeit in directions I'd mostly rather not see those votes go. (I can't deny that part of me would also prefer to see Judge Wood get the pick because she and I both took the UT-Austin/Plan II to Texas Law School career path, but that's my own flawed version of "identity politics" talking.)

Both as a political conservative and an opponent of judicial activism, I'd be least concerned about Solicitor General (and former Harvard Law Dean) Elena Kagan — which is another way of saying I don't think she'd end up being very much more influential than Sotomayor and that she'd probably be less influential than almost any "average" liberal circuit judge. (That includes either Merrick Garland or Sidney Thomas, the two white male circuit judges whom Obama has given what I firmly believe are only "courtesy" interviews. He might pick someone white, but he won't pick someone white and male.) So I'm mostly rooting for Obama to pick Kagan.

For what it's worth, my worst-case scenario is still another Harvard product, Cass Sunstein. I actually think the sort of schmoozing, fund-raising, and deal-brokering that Kagan is supposed to have been good at when she was the dean at Harvard isn't likely to be nearly as effective at the SCOTUS. Sunstein is a genuine dynamo of ideas — many of them absolutely terrible — and I think his stature as an academic superstar is far more likely to impress Justice Kennedy than Kagan's status as a mere dean, which (after all) is an administrative job.

Were I a senator, I would probably vote against anyone Barack Obama nominated; he in particular, by his own votes against Dubya's Roberts and Alito SCOTUS nominations, forfeited the legitimacy from which he could have argued that a president ought to be able to get confirmation votes for well-qualified nominees regardless of partisan politics. But I wouldn't filibuster any of the four currently supposed to be the front-runners. I don't believe filibusters are appropriate for judicial nominations, and I'm not going to change that principled position (which I believe to be firmly rooted in the Constitution) to retaliate against Dems who've abused the filibuster during the Bush-43 and Bush-41 administrations.

I would try to make best possible use of her or his confirmation hearings to expose liberal positions taken by anyone who Obama might pick, but frankly, any Democratic nominee is going to follow the same playbook Sotomayor did — that is, dissemble about his/her own real views and pretend instead to be John Roberts.

All SCOTUS nominations are important, but comparatively, this one is not nearly as important as will be the nomination for Justice Scalia's successor. I'm therefore going to divert into a more productive use — specifically, good wishes for Justice Scalia's continued health and vigor and clear writing — some of the mental energy that I might otherwise expend worrying about this particular pick.

Headlines that seem to explain a lot

From the dead-trees version of today's Houston Chronicle, from page B5 on the continuation of an article from page B1:

It turns out that the lawyer in question wasn't speaking about himself, and that "Bustamante" is actually the client. I suppose I should have known that no lawyer would have been that honest about himself/herself. No word yet, though, on the mental acuity of the Chronicle editor who wrote this headline.

Is it legal to stamp "TAX CHEAT!" over Tim Geithner's signature on $1 bills?

Instapundit links a website named taxcheatstamps.com that includes a YouTube video of a Fox News segment about a fellow who was protesting TreasSec Tim Geithner's confirmation by stamping, in red ink, the words "TAX CHEAT!" over Geithner's signature on $1 bills.

The person being interviewed in the video is, I gather, named Michael Williams — and I assume he also runs the website and sells the stamps. He writes at the top of his webpage: "I'm being audited because this website pissed someone off," which almost counts as a warning and disclosure to consumers, but in the video clip, he gives his assurance that to the "best of [his] knowledge in [his] research," using such stamps for such a purpose is "not illegal," and that "it's only illegal to deface currency if you prevent it from being circulated or if you're trying to do it for the purposes of fraud." On an associated website with some other snarky protest stamps for sale, he writes that it's "probably not" illegal to deface currency with his stamps, but allows that "that's part of the risk of civil disobedience[,] right?" and warns customers to "[d]o it at your own risk." As support for his "probably not illegal" claim, he in turn links this page, which quotes the relevant statute but is remarkably light on legal reasoning or analysis. Overall, then, despite some mild reassurances, this is pretty much the opposite of an iron-clad guarantee that you won't be prosecuted and a promise to pay your legal fees if you are.

By linking Mr. Williams' site, I'm pretty sure Prof. Reynolds wasn't giving his own legal opinion to back up Mr. Williams' opinions, and I'm not sure what Mr. Williams' own legal qualifications may be. Were I asked for my opinion, however, I would warn that the legality of this practice is far from well-established or clear. I would warn that in the current political climate, there instead may be a legitimate, nontrivial risk that using these stamps on circulating American currency could result in prosecution and even conviction.

The relevant statute is 18 U.S.C. § 333, which provides:

Whoever mutilates, cuts, defaces, disfigures, or perforates, or unites or cements together, or does any other thing to any bank bill, draft, note, or other evidence of debt issued by any national banking association, or Federal Reserve bank, or the Federal Reserve System, with intent to render such bank bill, draft, note, or other evidence of debt unfit to be reissued, shall be fined under this title or imprisoned not more than six months, or both.

There's only one reported federal decision — Keese v. Zerbst, 88 F.2d 795 (10th Cir.), cert. denied, 301 U.S. 698 (1937) — which deals with this statute or its predecessors, and it's not really helpful since the court concluded that the defendant had been correctly indicted, tried, and convicted under the counterfeiting statute (and its more severe penalty), rather under this one. So there are no reported cases in which you can take comfort before starting your protest stamping.

Just looking at the text of the statute, I don't think there is any doubt that using these stamps — even if the read ink leaves Secretary Geithner's signature still legible — would qualify as "defac[ing or] disfigur[ing]" the bills. But I think Mr. Williams is also probably right, and that — properly construed to be given its least expansive interpretation — the "with intent to render [the instrument] unfit to be reissued" clause must be read to modify all of the previous language. Therefore the prosecution would have to prove that intent beyond a reasonable doubt as an element of the crime.

Any defendant would surely argue that instead, his intent was to make a political statement and protest, and that his action constituted symbolic speech protected by the First Amendment. At least superficially, those are attractive positions.

But what if the government adduces evidence — from, say, the responsible officials at the U.S. Mint — which unequivocally and persuasively establishes that the government considers currency that has been so stamped to have been rendered "unfit to be reissued" when it's passed through government hands? What if the rationale is politically neutral, and the government has a plausible and logical explanation for why it must destroy such bills, an explanation which doesn't depend on defending the bona fides of Secretary Geithner?

If so, the government would have its proof of the required consequence, and thereafter the government would only need to also show that the defendant — because he knew of that consequence and proceeded anyway — must have intended that the currency become "unfit to be reissued." The statute doesn't require, after all, that causing the currency to become "unfit to be reissued" be the sole intention behind the act. A prosecutor could persuasively argue, and a jury could well agree, that the defendant had both a legitimate intention to protest, and an illegal intention to cause the currency to be withdrawn from circulation.

Indeed, with a good processor, the wrong jury, and just a few bad breaks, the defendant's admitted desire to protest can be re-characterized as a desire to cause the government the expense and inconvenience (as well as perhaps embarrassment). At a minimum, the defendant — who'd probably have to take the stand in order to dispute the prosecutors' inferential arguments about his intent — would have a dangerous tightrope to walk on cross-examination.

As for the First Amendment defense, this might be considered "conduct" rather than "speech," the way a minority of the current SCOTUS considers flag-burning to be conduct (and hence something that may be regulated and prohibited) rather than speech.

Bottom line: There is more risk here than I would recommend that any client willingly undertake. There are plenty of other ways to protest that don't require you to essentially concede guilt on any elements of a federal crime. Some of those means of protest might actually be persuasive, which this isn't actually likely to be. So if you're inclined to protest, pick one of them instead.

Obama only pretends to re-write every state's domestic laws to benefit gays & lesbians

As I write this, the online version of today's Washington Post has the following breathtaking headline and subhead:

Same-sex partners given hospital visitation rights:
President Obama mandates hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney.

In the accompanying article, we read:

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.

The president directed the Department of Health and Human Services to prohibit discrimination in hospital visitation in a memo that was e-mailed to reporters Thursday night while he was at a fundraiser in Miami.

Administration officials and gay activists, who have been quietly working together on the issue, said the new rule will affect any hospital that receives Medicare or Medicaid funding, a move that covers the vast majority of the nation's health-care institutions. Obama's order will start a rule-making process at HHS that could take several months, officials said....

Obama's mandate is the latest attempt by his administration to advance the agenda of a constituency that strongly supported his presidential campaign.

At first glance, this appears to be lawmaking by executive order. Of executive orders, Clinton aide Paul Begala gave us this memorable quote in 1998: "Stroke of the pen, law of the land. Kinda cool." The reason the quote is memorable is its casual assumption — in two different senses of that word — of near-imperial power, power that's essentially independent of either chamber of Congress and, indeed, of the American people. 

Those with even a passing familiarity with the history of the civil rights movement will recall that Harry Truman's 1948 executive order desegregating the U.S. military preceded any significant congressional action on race relations by a decade or more. I expect we'll see today's announcement compared to that one.

But when one turns to the Obama White House's own website, and in particular to its "Presidential Actions" page, one finds that although there are other "executive orders" listed there which pertain to other matters, the new policy regarding gay rights and hospitals is labeled merely a "presidential memorandum," not an executive order. And when we turn to the memorandum itself, we find something considerably less impressive than that which the WaPo — and, dare I say? — the Administration's spinmeisters have jointly tried to project.

First, the memo directs the Secretary of Health and Human Services to

[i]nitiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.

Technically, then, this isn't a command, but a condition for funding: Were a hospital to decide to forgo Medicare and Medicaid funding, it could, if it wished, maintain visitation policies permitting only traditional visitor classifications that might exclude, for example, unmarried romantic partners of either sex or any sexual orientation. Most hospitals do accept that funding, and so will have to comply with the rules HHS attaches to that funding. But even so, this policy change doesn't protect only gays and lesbians, but rather empowers all hospital patients, whether gay or straight, at all federally funded hospitals.

Similarly, the second command in the memo directs HHS to

[e]nsure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care.

Again, this is a condition of funding, not a direct command. And again, it's directed not only to gays and lesbians, but to all patients, gay or straight, who've signed "advance directives" that give "patients' representatives" — gay or straight, family member or friend — the power to make medical decisions on their behalves. So what does it do, exactly? It says that HHS should make sure hospitals who receive federal funds comply with already existing federal regulations that respect state laws already on the books — laws that extend patient rights without reference to whether they or anyone else involved is gay or straight. This is supposed to qualify as a momentous step forward for gay rights?

The memo's third and final command is the only one specifically applicable to the gays and lesbians who are trumpeted as the beneficiaries of The One's actions — an entirely toothless requirement that the Secretary "[p]rovide additional recommendations to [Obama], within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families." Obama might as well have written: "Between now and the November elections, find me some other excuse to claim I've done something for gay rights."

Who can act on your behalf is, in general, not a question of federal law — not even the traditional kind of federal law where each chamber of Congress passes identical bills and the president then signed them. Instead, this is traditionally a matter of state law, an intersection of agency law and domestic/family law. That's why the (entirely laudatory) trend toward enforceable durable powers of attorney and health-care directives has come from the state legislatures, most of them enacting model legislation, but some of them experimenting with tweaks, in our "national laboratory" of continuing policy-making. In our system of federalism, writing or re-writing these kinds of laws is simply not part of the POTUS' job description. (Compare and contrast Truman's executive order on military desegregation, given to organizations over which he is constitutionally made commander in chief.) 

Indeed, doing what the WaPo's sub-headline suggests — simply "mandat[ing that] hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney" — would, in my humble opinion, be unconstitutional if attempted by executive order. It would be quite possibly beyond the combined constitutional power of Congress and president. But when we have a president who wants to take credit for causing the seas to recede, we ought not be surprised to see him claim to have similarly exerted his lordly powers over some bigoted local hospital administrators.

Lest you have any doubt that this is all smoke and mirrors — a manufactured event cynically designed by the Obama White House as a sop to those who are otherwise growing unsatisfied with a perceived lack of action on "gay rights issues" by The One — read the penultimate paragraph of the memorandum:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

This paragraph, friends and neighbors, is the equivalent of Emily Litella's closing lines to Chevy Chase in the old SNL "Weekend Update" skits: "Never mind."

And thus, in the giant Venn diagram of American politics, do two sets become ever more nearly exactly congruent: Those who support Obama, and those whom he's successfully duped.

I'm not against this very modest and mostly illusory policy tweak in favor of patient empowerment. I'm certainly not distressed that it benefits gay patients as well as straight ones. But I'm against charlatans. And Obama is one.

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UPDATE (Fri Apr 16 @ 10am): Regarding the specific impetus for this action, the WaPo article reports:

Officials said Obama had been moved by the story of a lesbian couple in Florida, Janice Langbehn and Lisa Pond, who were kept apart when Pond collapsed of a cerebral aneurysm in February 2007, dying hours later at a hospital without her partner and children by her side.

Obama called Langbehn on Thursday evening from Air Force One as he flew to Miami, White House officials said. In an interview, Langbehn praised the president for his actions.

"I kept saying it's not a gay right to hold someone's hand when they die, its a human right," she said, noting that she and Pond had been partners for almost 18 years. "Now to have the president call up and say he agrees with me, it's pretty amazing, and very humbling."

But as reported by the New York Times in its May 2009 article about Ms. Langbehn, the Miami hospital in question denied that the grounds on which it prevented Ms. Langbehn access were that she was insufficiently related to the late Ms. Pond. Rather, her attempts to join Ms. Pond were at least initially frustrated on the basis that no visitors should be permitted in the trauma emergency room where hospital personnel were trying to administer life-saving procedures upon Ms. Pond. Later, when Ms. Pond was moved to intensive care, Ms. Pond's adopted children were also prevented from visiting — not because they had been adopted by a lesbian, but because they were 14 or under. After it received a copy of the medical power of attorney authorizing Ms. Langbehn to receive information and made decisions on behalf of Ms. Pond, the hospital did consult with Ms. Langbehn regarding Ms. Pond's medical options, including the placement of a brain monitor and possible surgery; Ms. Langbehn did not allege that she would have made any different decisions had there been any more thorough consultation. The only indication of any specifically anti-gay bias appears to have been a stray comment by a social-worker to the effect that Florida was an "anti-gay state." In a supposedly similar case from Washington State, Sharon Reed was restricted in visiting her dying lesbian partner, Jo Ann Ritchie, on grounds that Ms. Reed's particular actions were interfering with a nurse's provision of medical care — not on grounds that Ms. Reed was a gay partner (instead of a straight spouse). Nothing in yesterday's memo requires, either directly or (through federal funding approval) indirectly, that hospitals permit unlimited visitation everywhere and at all times even to traditional opposite-sex spouses; if "immediate family members" are restricted, so too may be gay partners. And whether the visitation restrictions placed upon either Ms. Langbehn or Ms. Reed were or were not reasonable as a matter of medical judgment in their particular circumstances, nothing in yesterday's memo would have changed either of those results.

I don't doubt that there have been gay partners who've been discriminated against by hospitals against on the basis of their being gay. There are indeed anti-gay bigots, and some of them work in hospitals, and no doubt some of them have made arbitrary and unreasonable decisions regarding visitation rights based on their animus against gays. But more often, hospitals make their equally arbitrary and unreasonable decisions for other reasons having nothing to do with anyone's sexual orientation, simply because they're imperfect and fallible human institutions. And there are surely a vanishingly small number of hospitals with formal policies requiring, or even permitting, the denial of visitation rights to a gay partner when a straight spouse's visitation would be permitted. I very much doubt that yesterday's presidential memorandum, or the HHS rule-making process it directs, will end up changing much of anything at a practical level.

Press and public mostly still misunderstand issues in Keller judicial complaint

Regarding the Texas State Commission on Judicial Conduct's handling of the complaint made against Presiding Judge Sharon Keller in connection with the Michael Richard execution in 2007, Peggy Fikac of the Houston Chronicle's Austin bureau reported today on both sides' filing of formal objections to the findings of the special master who heard the evidence on the complaint, State District Judge David A. Berchelmann. Judge Berchelmann's report excoriated Richard's defense team but found that no formal sanctions should be imposed upon Judge Keller — the bottom-line result that the complaining team is still protesting to the full Commission. However, the findings also contained some language critical of Judge Keller, to which her legal team is objecting in turn.

As with so much of the previous reporting on this matter, Ms. Fikac's article is not exactly wrong, but neither is it quite right. Both the state and national press have done a completely inadequate job of grasping and explaining what the relevant issues actually were. Instead, they've been repeating a skewed spin on the case that's most damning to Judge Keller, but that's also quite misleading because it's based on the perpetuation of a mistake made by the defense team.

Short titles are hard for me. Thus, I first blogged about this case back on October 4, 2007, in a post entitled Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed? I followed that up with: More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution. In those posts, I speculated that this entire dispute arose from a mistaken assumption on the part of someone on the Richard defense team about what they were actually trying to do. The trial evidence ended up verifying my hunches pretty closely, but the case is still widely misunderstood on a fundamental basis. And ironically, the misunderstanding results in both Judge Keller and the Richard defense team coming off worse than either deserves!

Here's what I posted today as a comment to Ms. Fikac's article in the Chronicle:

I have not yet read a single comment, pro or con, from anyone who understands what this case was about.

And of course, you can't tell that from the article, either, since the press can't seem to grasp what happened.

Michael Richard's defense team — acting through a paralegal -- asked the wrong question altogether: Will you keep the courthouse open late?

There was never any reason to keep the courthouse open late, or even just the clerk's office open late. What the defense team needed to be doing — what its actual lawyers knew, but hadn't instructed their paralegal about — was arranging for the duty judge to accept an after-hours filing and hearing of an emergency matter. The applicable rule of Texas law permits these judges to do that — and it doesn't matter whether it's in a public building that's "open" or on the 50 yard line of Memorial Stadium.

The press — going along with Richard's defense team — wants to make out as though Judge Keller was asked, "Will you agree to rule on this after closing time?" Well, that wasn't at all what she was asked. To the question she was asked, she gave the correct answer: "We close at 5."

You may think — and the special master apparently thought — that she should have gone further and figured out WHY the paralegal was asking to "keep the courthouse open." Maybe you think she should have then volunteered some advice and suggested the RIGHT question. But consider this: Do you want Texas judges to get into the business of giving corrective legal advice every time they see a lawyer doing something stupid? In fact, the canons of judicial ethics prohibit that, and for very good reasons.

There's no suggestion that Michael Richard died any less painlessly than every other inmate executed in Texas for the last several years. The U.S. Supreme Court case that was the basis for Richard's stay motion ended up AFFIRMING the constitutionality of lethal injection protocols. The judicial system had spoken: Michael Richard was to die for his capital crime, and to die without further delay; he was deprived of an unjustified windfall of a few more months at most. I count that as not a big deal in the greater scheme of things.

Finally: Go read the special master's actual report: http://www.scjc.state.tx.us/pdf/skeller/MastersFindings.pdf ... His synthesis of the facts is quite good.

Here's a link to all of the filings connected to the complaint.

And finally, here's a link to DRJ's guest post at Patterico's when Judge Berchelmann's findings first came out last month. I left quite a few comments to that post, and they track my initial and considered reactions after reading the findings.