Tuesday, December 23, 2008

Rather seeks trial to promote his revisionist history, but the world still can't look to CBS News for the actual truth

Charles Johnson and Glenn Reynolds are not the only ones who are dismayed by the "revisionist history" being pushed by Dan Rather and uncritically repeated by National Public Radio.

I played a small but enthusiastic part as one of bloggers who were scrutinizing Dan Rather, "60 Minutes," and CBS News during the 2004 Rathergate controversy. As I reminisced earlier this fall:

CBS executive vice president Jonathan Klein had derided the bloggers who were writing daily about the forgeries and CBS News' then-still-ongoing efforts to defend the indefensible — famously saying that "you couldn't have a starker contrast between the multiple layers of checks and balances [at CBS News and "60 Minutes"], and a guy sitting in his living room in his pajamas writing what he thinks."

I was another one of those pajamas-wearing bloggers, and Hugh [Hewitt and others] appreciated the irony that CBS News had nevertheless thought enough of me some years earlier [when I was an associate at Houston-based Baker Botts] to employ me (without pajamas) as its own lead counsel before the U.S. Court of Appeals for the Fifth Circuit, when I successfully defended a summary judgment in CBS News' favor in a defamation lawsuit based on another of its national broadcasts.

But there's still more in my "small world of Rathergate" department: CBS News is now being defended in Dan Rather's lawsuit against it by Jim Quinn of New York-based Weil, Gotshal & Manges. I also practiced in the Houston office of that firm for four years, the last three of those (1988-1991) as Quinn's partner.

Although we were in the same practice area, represented some common clients, and consulted on a few matters, Quinn and I didn't ever work together closely or get to know one another well, and I left that firm in 1992 to return to a Texas-based firm with whose partners I had far more in common. So I have nothing even remotely resembling "inside information," nor continuing connections by which I might even accidentally blunder into any. And the coincidence that more than a decade later, one of Quinn's former partners in a national mega-firm later became a conservative blogger critical of both Rather and CBS News creates no conflict of interest for Quinn or WG&M.

Quinn's had some early success against Rather and his lawyers, and in a November 2008 NYT article, Quinn was quoted confidently talking a good game about his client's odds:

Jim Quinn, a lawyer at Weil, Gotshal & Manges who is representing CBS, said in an interview that whatever Mr. Rather had learned in the discovery process would not help his case. He said it was the network that had gained the most ground, especially in persuading the judge to dismiss five of the seven original claims by Mr. Rather, as well any claims against individual CBS executives. CBS is believed to be spending about as much on its defense as Mr. Rather is spending.

Mr. Quinn also said CBS would consider asking for a summary dismissal of the case, once the process of discovery had concluded. “Either on summary judgment or at trial, we feel very comfortable we’ll succeed,” he said. “We feel the case is meritless.”

And if I may lapse for a moment into the kind of crude language Texas courtroom veterans often use when referring to "New York litigators," Jim Quinn is no only-motion-practice silk-pants candy-ass. He's got his share of scars and the legal street-smarts that can only be acquired by actually trying a fair number of significant cases to a verdict.

The problem, though — as I noted at length when Rather first filed his case, here and here — is that Quinn's hands are effectively tied by the fact that his client was spectacularly gutless in its dealings with the psychotic prima donna who for so long occupied its anchor chair. Quinn's defense for CBS News won't be that Rather and Mapes and their entire team were incompetent, biased frauds who committed the worst kind of journalistic malpractice to change the outcome of a presidential election and then, when caught, tried to cover it up. CBS had ample, compelling, even glorious "good cause" to fire Rather no matter what time term remained on his contract or what other terms it contained to guarantee his preeminence at the network.

But CBS didn't do that. Instead, it convened the Thornburgh-Boccardi Panel, whose ultimate report was far from a bare-knuckled or clear-eyed assessment of the culpability of Rather and CBS News' top brass. CBS News eased Rather out, rather than immediately throwing his sorry butt on the street.

And now, instead of defending itself against Rather by using the awesome mechanisms of the law to prove, once and for all, the essential truths of Rathergate — including the indisputable fact that the Killian memos were pathetically obvious forgeries — CBS News' defense is not that Rather is a crazed scoundrel and a national disgrace, but that CBS fully performed its contractual obligations to Rather. Thus, Quinn was quoted saying in April 2008 that

the contract issue left [after the pretrial rulings dismissing most of Rather's claims] relates to "whether or not we 'benched' him and whether he had sufficient time on 60 Minutes and 60 Minutes II after he stepped down as the anchorperson."

"We obviously say we gave him all the time in the world," says Quinn.

So: No one can expect Quinn or his client to win this case via the righteous, straightforward path. CBS long since forfeited the absolute high ground, and it's left instead trying to stick to a comparative high ground, in which it must rely on establishing that Rather is merely being unreasonable and greedy (instead of crazed, corrupt, and paranoid).

This case may provide some fine moments of legal theater. But no one should labor under any misconceptions that it's even remotely about justice.

Posted by Beldar at 09:16 PM in Law (2008), Mainstream Media | Permalink | Comments (36)

Renewing Texas drivers licenses online

In consulting the Texas Department of Public Safety's website to find out the location of the nearest drivers license renewal office, I learned today that I, and many other Texans, are able to renew our drivers licenses entirely over the internet, paying by credit card and promising (via an online click) that we haven't incurred some new visual or other disability.

Being spared the inconvenience and indignity of appearing in person to renew my slightly-expired drivers license before embarking upon my annual year-end driving trek to the Panhandle was thus, to me, an unexpected Christmas present.

Thank you, Texas!

(In due course, during the new year, I'll probably ponder, and then grumble over, the marginally increased likelihood of unfit drivers who'd have flunked the in-person eye-test and stopped driving as a result — in particular if one such collides with my car. But having been spared today something I'd been dreading, I'm willing to let the gift horse's teeth go unchecked for the rest of 2008.)

Posted by Beldar at 04:50 PM in Law (2008), Web/Tech | Permalink | Comments (3)

Sunday, December 14, 2008

Beldar predicts that Blagojevich won't be impeached until convicted in court

This post may may make some people in Illinois mad at me. I'll have to risk it.

Prof. Ann Althouse is having fun ridiculing Illinois Attorney General Lisa Madigan's efforts both before the press and before the Illinois Supreme Court. Madigan is trying to persuade that court to effectively remove Gov. Rod Blagojevich from office based on an argument that he's "disabled" due to the allegations that have been made against him in the pending federal indictment being prosecuted by U.S. Attorney Patrick Fitzgerald. Earlier, Prof. Althouse wrote: "Given that ‘conviction on impeachment’ is one of the specified reasons for inability to serve, using this procedure as an alternative to the impeachment process looks like an abusive power grab." Prof. Glenn Reynolds adds: "I agree with Ann Althouse. The way you get rid of a crooked governor is via impeachment. Why play games here? If the case is so obvious, that shouldn’t take long."

I agree with both Prof. Althouse and Prof. Reynolds. Even though it would remove the reins of power from the hands of a crook, using the "disability" provision of the Illinois constitution in lieu of impeachment would be legally, politically, and intellectually illegitimate.

But picking up on Prof. Reynold's point about impeachment, the question about whether Blagojevich is "obviously crooked" becomes "obvious to whom?" and "under what standard of obviousness?"

That Blagojevich is a banal, petty crook has been "obvious" to anyone who cared to see such things long before he was indicted and arrested. Under a practical, common-sense standard, that should have been obvious to the voters of Illinois who nevertheless elected and then re-elected him.

But elections have consequences. Among them is the fact that once a crook is elected, constitutional niceties must be observed to remedy the situation.

With respect to Gov. Blagojevich's liberty, he's guaranteed all of the process due under federal law to anyone accused of such crimes, and Fitzgerald — who wants a conviction that will stand up against any appeals — will ensure that he gets it. But another consequence of Blogojevich's election is that the people of Illinois will have to be punished with him as their governor until political pressure can induce him to resign, or he's duly impeached and convicted by the Illinois legislature.

The people of New York elected as their governor a habitual liar and whore-monger, but he at least had the decency to resign when caught. The people of Illinois elected someone far worse, and one of the respects in which he is worse is that when confronted with his crime, he hasn't had the decency to resign.

To impeach and remove Blagojevich from office, the Illinois legislature would have to act without benefit of the actual proof of these allegations which Fitzgerald will use, in due course, in court. Legislators would have to display the political courage and common sense to say, in so many words: "Even though these are so far only alleged crimes rather than crimes proved in court to the satisfaction of a jury backstopped by trial and appellate courts, we are going to use the discretion granted us by the Illinois state constitution to accept a lower, lesser burden of persuasion and proof than do the federal courts in criminal matters, and we're going to hold Gov. Blagojevich responsible for these alleged crimes now." They will have to listen to Blagojevich's fervent, hypocritical pleas that he's presumed innocent until proven guilty, and then they will have to say boldly in response: "True, but that's in court, and this isn't a court. We're already sufficiently convinced that you're guilty."

The political legitimacy of such an impeachment would be, and should be, subject to close scrutiny — by the voters who will, in due course, consider whether they wish to re-elect legislators who voted for such an impeachment. For that is the procedural check on legislatures which abuse their impeachment powers — a theoretical check, but one sufficiently effective that their impeachment powers remain very rarely used, and almost never abused. (That's the realpolitik reason, and probably the only reason, why Nancy Pelosi hasn't tried to impeach Dubya, even with Democratic majorities in both the House and the Senate.)


The ability to discern right and wrong is so uncertain among the voting public of Illinois, however, that incumbent legislators can safely figure that they won't be punished at the polls if they join Blagojevich's pious pleas of "innocent until proven guilty." Indeed, they may still more fear a backlash (either at the polls or, more likely, from other corrupt Illinois politicians, of which there will be no shortage even when Blagojevich is history) from doing the right thing by voting for legislative impeachment and conviction.

Indeed, the harshest criticism that can be leveled at the people of Illinois is the old truism that people generally get the government they deserve. To get a government sufficiently principled that its legislators will have the courage to impeach and remove an elected governor who's not yet been convicted in court, the public must first have voted for honest legislators who act according to principle. I frankly doubt that enough of those have been elected in Illinois.

Thus, my prediction is that an insufficient number of Illinois state legislators will have the courage necessary to impeach Blagojevich before he's convicted in federal court. That's likely to be many months from now. And that, too, is a consequence of awful electoral decisions made by the people of Illinois. It's a pathetic, tragicomic circus, worthy of the ridicule of decent people when viewed from almost any angle.

Yes, it's terribly unfair to the minority of Illinois citizens who've been outvoted by peers who preferred the likes of Blagojevich and the ethically challenged legislators who won't yet impeach him. Those good people — who number in the millions, but not sufficient millions — have my sympathy and respect.

But everyone who voted for these clowns is going to be stuck with them, and they richly deserve the government they've got. For them, I have no sympathy and no respect.

Posted by Beldar at 03:21 PM in Current Affairs, Law (2008), Politics (2008) | Permalink | Comments (34)

Tuesday, December 09, 2008

Minnesota court of appeals affirms Craig conviction

I wrote quite a bit last year about Sen. Larry "Wide Stance" Craig (R-ID)'s pathetic attempts to withdraw his guilty plea for disorderly conduct in a Minneapolis-St. Paul airport restroom, and after reading the trial judge's opinion rejecting that attempt last October, I concluded that for purposes of any appeals, Sen. Craig was already toast. However, by continuing his appeals, Sen. Craig managed to stave off any Senate action to unseat him, and he's now served out all but the last few days of the balance of his term.

Thus, today's decision by the Minnesota Court of Appeals — which affirmed Sen. Craig's conviction and the trial court's refusal to reconsider it — is a belated epilogue to the melodrama of the Larry Craig story. Craig may, for appearances' sake, seek further review in the Minnesota Supreme Court or even the Supreme Court of the United States (since he insists that he, or the ACLU on his behalf, has raised federal constitutional issues). But today's decision — which the appellate court didn't even consider significant enough to warrant marking for publication in the bound volumes of appellate precedent — is plenty solid enough to survive further attacks, just as was the trial court's.

Were I to struggle to extend my metaphor from last October, then, I supposed I'd have to say that Sen. Craig is now merely stale crumbs of toast.


Previous posts on the Craig matter, oldest to most recent:

  1. The answer to the "Why was this a crime?" crowd on the Craig matter
  2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
  3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
  4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
  5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
  6. ACLU files silly brief in support of Craig's plea withdrawal
  7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
  8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
  9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
  10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea
  11. Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?
  12. Minnesota trial court rejects Craig's motion to withdraw guilty plea

Posted by Beldar at 01:03 PM in Law (2008), Politics (2008) | Permalink | Comments (7)

Sunday, November 09, 2008

No to Gorelick for AG

The Democratic Party's ethical standards have now plummeted significantly below those which prompted Louisiana Gov. Edwin Edwards to joke in 1983 that "The only way I can lose this election is if I'm caught in bed with either a dead girl or a live boy."

It appears that we have no example extreme enough to provide an answer yet to this critical question: How badly do you have to screw up to stop getting promoted, much less destroy your career, in the Democratic Party?

Oddly enough, one of the first series of posts I wrote when I began blogging in August 2003 was to defend Jamie Gorelick — a Clintonista liberal Democratic Washington lawyer — from charges that she was ethically disqualified to serve on the 9/11 Commission because the law firm she had just joined, then known as Wilmer, Cutler & Pickering, also had prominent Saudi clients (whom she did not personally represent, but some tiny percentage of whose fees would flow to her through the law firm partnership). I continue to believe that her law firm's Saudi clients were not a legitimate source of serious objection to her service on the 9/11 Commission.

Jamie Gorelick But I didn't know then — nobody much outside the Clinton Administration knew — that she had been the principal builder of the "wall" between domestic and foreign intelligence that, more than any other single factor, made possible the success of the 9/11 attacks. Now that was a huge, glaring, substantive, and disabling conflict of interest. And her decision on that matter while in office showed such incredibly bad judgment on a crucial matter of mixed legal and national security concerns that it ought to have disqualified her from ever serving in any future president's cabinet.

Then there's the little fact that from 1997 to 2003, she was the vice chairman of Fannie Mae.

And yet: The New York Times says Jamie Gorelick is under serious consideration to become Barack Obama's attorney general (h/t InstaPundit). The NYT allows how "Some conservative bloggers have already begun trying to derail Ms. Gorelick’s possible nomination as attorney general, pointing to her experiences at both Fannie Mae and the Sept. 11 commission." To that, my response is to jump up and down with both hands waving frantically as I shout, "Damned right we are! Damned right!"

Short of appointing an actual member of al Qaeda, I cannot imagine a more offensive symbolic repudiation of the Global War on Terror — nor a more enthusiastic embrace of the chronic mismanagement, cronyism, and graft which led to this fall's credit crisis — than the appointment of Jamie Gorelick as attorney general.

When Obama choose an amoral, souless Hard Left hitman like Rahm Emanuel to be his chief of staff, I was willing to grant that such is his right for such a position, and I didn't even grumble. Indeed, because Emanuel is likely to be effective in doing his principal's wishes, that simply means that Barack Obama himself can be held strictly accountable for his administration's successes and failures: Emanuel is a switchblade, and every political corpse he leaves behind him (some of whom will also be Democrats, although of which flavors we do not yet know) will be stacked in a large pile directly at Barack Obama's feet.

But the prospect of Jamie Gorelick heading up the Department of Justice is worth filibustering, if anything or anyone is. She's not "change you can believe in," she's "change guaranteed to cause even more cosmic calamities" because she's done that consistently in the past.

Posted by Beldar at 09:42 PM in Law (2008), Obama, Politics (2008) | Permalink | Comments (16)

Wednesday, November 05, 2008

A hiss for Prof. Philip Busse, and a cheer for old St. Olaf!

Sign-stealers of either party are criminals, and I was glad to see one such criminal who'd bragged of his crimes on the Huffpo actually pay a price.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Hoorah for St. Olaf College in Northfield, Minnesota, for demanding and getting the resignation of Philip Busse, a visiting professor who'd bragged online about stealing and destroying McCain campaign signs. "Busse likened his thefts to an act of civil disobedience and said that stealing the signs was 'one of the single most exhilarating and empowering political acts that I have ever done.'" Let's hope he'll have some time to contemplate his skewed values from the unemployment line, if not from the county jail. (H/t Power Line.)

(Yes, I'd say the same thing of someone who'd similarly bragged about stealing and destroying Obama signs. I just haven't seen any comparable reports of that having happened.)

— Beldar

Posted by Beldar at 05:35 AM in 2008 Election, Law (2008), Politics (2008) | Permalink | Comments (0) | TrackBack

ChiTrib's Kass seeks fresh answer to question whether Obama would fire U.S. Attorney Patrick Fitzgerald

Of everything I've written in the last couple of months, what I cross-posted at HH.com under this title is a post I think I might have occasion to refer back to again.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Chicago Tribune columnist John Kass asks a question that Hugh Hewitt has frequently asked here and on his radio show during the past few weeks: Would a new President Obama fire Patrick Fitzgerald, the U.S. Attorney who indicted and convicted Tony Rezko, and who's continuing his probe into related criminal activities in Obama's hometown? Kass writes (h/t InstaPundit; links in original):

Readers keep asking me the same question: Will the next president keep Patrick Fitzgerald as the U.S. attorney in Chicago?

I really can't say. What are political promises worth from politicians with debts to pay?

But here's what I do know. There is no story more important to the people of Chicago and of Illinois than the future of Fitzgerald, who has systematically hunted down the corruption.

Corruption the Chicago Way doesn't only waste money and burden taxpayers. This isn't only about isolated instances of graft and amusing, earthy rapscallions. That is a cartoon. The reality is that Illinois political corruption is an infection that spreads. The people either are numbed and deny it, or they feel pressured to suck up to their overlords. That's not American. That's positively Medieval.

That's how important this is. Both John McCain and Barack Obama have promised to keep Fitzgerald here.

"If we lose him, we lose everything," said a Chicago FBI agent wise in the ways of Chicago politics and its symbiosis with the Chicago mob. "I can't imagine it happening. He's the guy who pulls the trigger on all these investigations. If it happens, if they get rid of him, forget it."

Kass goes on to write in more detail about how definitive Sen. McCain has been in his commitment to keep Fitzgerald on the job, with quotes that leave no doubt and no wiggle-room.

Unfortunately, however, both of the links in the block-quote just above are busted as of when I write this, and I can't find on the Tribune or elsewhere (and neither do I recall having seen) any independent confirmation that Sen. Obama has ever made the promise which Kass attributes to him. Of the original making of that promise — which Kass clearly at least suspects that Obama might be pressured to break — Kass writes:

Back in March, Obama visited the Tribune's editorial board. He said that if elected president, he would keep Fitzgerald in place.

"I still think he's doing a good job," said Obama. "I think he has been aggressive in putting the city on notice and the state on notice that he takes issues of public corruption seriously."

I have no reason to doubt Kass' description. But the promise he describes appears to have been only verbal and before a small (albeit important) audience.

More significantly, that promise was made before Rezko was convicted on June 4, 2008. Rezko still hasn't been formally sentenced, and there are rumors that Rezko may be cooperating now with Fitzgerald in hopes of obtaining a more lenient sentence. Just last Thursday Fitzgerald's office announced the indictment of "William F. Cellini, an Illinois Republican Party leader, ... for his alleged role in the fraud scheme that led to the conviction of [Rezko.]" And Kass also makes the excellent point that there are other big political fish in Illinois besides Rezko — some of whom, like mayoral brother Bill Daley and U.S. Rep. Rahm Emanuel, might be potential Obama Administration appointees — who could find themselves in Fitzgerald's net, if he's allowed to continue casting it.

Thus, what Kass credits Obama as having said to the Tribune in March — before Obama even had the Democratic nomination wrapped up — is now so stale as to be long past the normal "expiration date" of anything said by the Obama campaign. This question needs a fresh answer, made on the record and without wiggle room.

Even with only a day left until the election, I have no doubt that word will get to Sen. Obama of Kass' column. But I will be stunned if Obama either answers it, or permits any reporter close enough access to even ask it. And without such a fresh answer, I suspect Sen. Obama's "promise" to the Tribune from last March isn't worth even as much as Mr. Kass' busted hyperlink.

— Beldar

Posted by Beldar at 05:19 AM in 2008 Election, Law (2008), Palin, Politics (2008), SCOTUS & federal courts | Permalink | Comments (0) | TrackBack

Obama's 30-minute ads bought not only with broken promises, but also with broken laws

October 29th having been a busy blogging day, which included a guest-post at HughHewitt.com decrying the fact that Obama was spending millions of dirty money on TV advertisements, I now feel free to confess that I slept through the Obama 30-minute infomercial. And although I'd recorded it on my digital video recorder, I ended up zapping it even before the election.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

The McCain-Palin campaign correctly points out that Sen. Barack Obama's "30-minute prime-time address [tonight will be] a 'gauzy, feel-good commercial' that was 'paid for with broken promises.'" But for Obama's undisputed and indisputable violation of his solemn oath to accept public campaign financing, there's no way he could have spent hundreds of millions of dollars, including this hugely expensive cross-network TV buy.

But "paid for with broken promises" is the most charitable characterization. The Obama-Biden campaign deliberately has solicited and received hundreds of thousands of credit card transactions of $250 or less, whose details the campaign won't make available for outside review even though in the aggregate they amount to hundreds of millions of dollars — via a fraud-friendly credit card system (a) which accepts transfers from untraceable pre-paid credit cards, and (b) whose basic anti-fraud measures have been deliberately crippled. The Obama-Biden campaign might just as well have set up dumpsters all over the world into which illegal donors could dump shopping bags full of cash donations made in unmarked small bills.

I suddenly had an epiphany. I know now exactly what happened after that bell over the door tinkled again while the jukebox was playing "Don't Stop Believin'" in the diner, just before the picture cut to black and the sound abruptly stopped: That was Barack Obama walking in the door — coming to hire Tony Soprano and his crew to run his internet finance operations.

If you watch the infomercial, ask yourself: How many minutes of it were bought with illegal money? A third of it? Half?

— Beldar

Posted by Beldar at 04:24 AM in 2008 Election, Law (2008), Mainstream Media, Obama, Politics (2008) | Permalink | Comments (0)

Obama campaign's deliberate invitation to pre-paid credit-card fraud is the sort of flesh-eating political bacteria that may doom any Obama presidency

On October 29, I had a guest-post at HH.com of which I was, and remain, very proud. Unfortunately, it raises questions that have not been answered since then.

Someone inside the Barack Obama campaign, high up enough to make important fund-raising decisions, made the deliberate call to turn off the standard anti-fraud protections for the credit card processing software on the campaign website.

That guy, or those guys, need to be in prison.

What did Barack Obama know, and when did he know it?


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Fully $100 million of the record-breaking $150 million that the Obama campaign collected in September alone came over the internet via credit card donations. The Obama campaign has deliberately turned off the anti-fraud mechanisms available for internet credit card transactions. They have no clue how many millions or tens of millions of dollars have been donated to them in violation of federal election law. And now it turns out that the Obama campaign cheerfully takes even contributions from untraceable pre-paid credit cards, a/k/a "the pseudo-credit cards you use when you want to conceal illegal activity."

This newest disclosure about the pre-paid credit cards, along with belated mainstream media confirmation of what the right hemisphere of the blogosphere has been screaming about for a week now (that someone in the Obama campaign deliberated turned off the normal default-value anti-fraud mechanisms that are standard for processing credit card charges among honest people), comes in Tuesday's Washington Post.

But it didn't even make the front page.  (It's buried on page A02; emphasis in quotes below mine.)

Sen. Barack Obama's presidential campaign is allowing donors to use largely untraceable prepaid credit cards that could potentially be used to evade limits on how much an individual is legally allowed to give or to mask a contributor's identity, campaign officials confirmed.

Faced with a huge influx of donations over the Internet, the campaign has also chosen not to use basic security measures to prevent potentially illegal or anonymous contributions from flowing into its accounts, aides acknowledged. Instead, the campaign is scrutinizing its books for improper donations after the money has been deposited.

The Obama organization said its extensive review has ensured that the campaign has refunded any improper contributions, and noted that Federal Election Commission rules do not require front-end screening of donations.

In recent weeks, questionable contributions have created headaches for Obama's accounting team as it has tried to explain why campaign finance filings have included itemized donations from individuals using fake names, such as Es Esh or Doodad Pro. Those revelations prompted conservative bloggers to further test Obama's finance vetting by giving money using the kind of prepaid cards that can be bought at a drugstore and cannot be traced to a donor.

The problem with such cards, campaign finance lawyers said, is that they make it impossible to tell whether foreign nationals, donors who have exceeded the limits, government contractors or others who are barred from giving to a federal campaign are making contributions.

"They have opened the floodgates to all this money coming in," said Sean Cairncross, chief counsel to the Republican National Committee. "I think they've made the determination that whatever money they have to refund on the back end doesn't outweigh the benefit of taking all this money upfront."

The Obama campaign has shattered presidential fundraising records, in part by capitalizing on the ease of online giving. Of the $150 million the senator from Illinois raised in September, nearly $100 million came in over the Internet .

Credit cards (Visa, MasterCard, American Express, or Discovery) are the only way you can donate to Barack Obama's campaign via his internet website.

The whole "back-end screening" farce is insulting to anyone with a second-grade education. The Obama campaign cannot possibly have any objective measurement to even roughly estimate how many mistakes and how many episodes of deliberate fraud they're catching versus how many they're simply missing, even if one is naive enough to presume their good-faith best efforts.

Moreover, everything the Obama campaign has yet said about this entire issue utterly ignores the key questions: (1) Who ordered the anti-fraud protections turned off? And (2) why hasn't Barack Obama already fired every such person, and exposed them for criminal prosecution as aiders and abettors of national and international campaign contribution fraud?

Juan Proano, whose technology firm handled online contributions for John Edwards's presidential primary campaign, and for John F. Kerry's presidential campaign and the Democratic National Committee in 2004, said it is possible to require donors' names and addresses to match those on their credit card accounts. But, he said, some campaigns are reluctant to impose that extra layer of security.

"Honestly, you want to have the least amount of hurdles in processing contributions quickly," Proano said.

Sen. John McCain's campaign has also had questionable donations slip through.

Dan Pfeiffer, Obama's communication's director, said that "no organization can fully insulate itself from these problems. The McCain campaign has accepted contributions from fraudulent contributors like 'A for You,' 'Adorable Manabat,' 'The Gun Shop,' and 'Jesus II' and hundreds of anonymous donors."

But R. Rebecca Donatelli, who handles online contributions for the McCain operation and the RNC, said security measures have been standard in the GOP nominee's fundraising efforts throughout the campaign. She said she was "flabbergasted" to learn that the Obama campaign accepts prepaid cards.

Those submitting phony names along with contributions to the McCain campaign have managed to trick the system despite the anti-fraud measures used by merchants, meaning, for example, that they've matched up legitimate addresses for the card-numbers being used. That necessarily limits the scale of the fraud.

But when you take the approach endorsed by Juan "Let the Crooks Donate Too!" Proano, with the "least amount of hurdles in processing contributions quickly," then you invite crime. You put up a neon sign saying "We Can't Catch You When You Cheat!"

Where is the principled, honest Democrat of national prominence who will step up to a public microphone and say — "Not me! I will no longer stand silent while my party's presidential nominee continues to shelter the person or people who made the decision to encourage this fraud!" (See my previous post on this subject, For what does it profit a man to gain the whole world, and forfeit his soul? Still no takers.)

This is beyond disgraceful. This is beyond being a mere matter for partisan criticism.

This isn't even a "cancer" on the Obama campaign, because even the worst cancers don't move this fast and aren't this virulent.

This is an infectious disease, an antibiotic-resistant acute contagion of corruption, a type of flesh-eating political bacteria that will — best case for Democrats, unless immediately disinfected starting today by their candidate himself — rob their would-be president elect of any political legitimacy even before Election Day, much less before the inauguration. In both scope and consequence, this bodes to make Watergate look like a playground fist-fight among kindergartners.

To paraphrase a young Tennessee lawyer named Fred Thompson who was then assisting Senator Howard Baker (R-TN) and the Senate Select Committee on Presidential Campaign Activities: What did the wanna-be president know, and when did he know it?

— Beldar

Posted by Beldar at 04:14 AM in 2008 Election, Law (2008), Mainstream Media, Obama, Politics (2008) | Permalink | Comments (0)

Tuesday, October 28, 2008

Palin's public call on Stevens to "do the right thing" may mean "publicly commit to resign if the trial judge upholds the jury's verdict"

My latest guest-post at HughHewitt.com hazards a guess as to what Alaska Gov. Sarah Palin is saying privately to just-convicted U.S. Senator Ted Stevens. It involves a resignation letter.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

I was amazed earlier this year, in trying to educate a friend about the record of Gov. Sarah Palin as a reformer who'd taken on her own party's most powerful politicians in Alaska, when he poked a finger in my chest and said, "Yeah, but what about Don Young and Ted Stevens?" He was referring to the remaining two senior and powerful members of the "Alaska GOP Troika" that had dominated Alaskan politics for many years before 2006. "They're still representing Alaska in Congress!"

I calmly pointed out to my friend that Gov. Palin had already defeated the third member of the Troika, former Gov. Frank Murkowski, in the 2006 GOP gubernatorial primary, and that she then went on to win the general election and take over the Governor's Mansion in Juneau. "She can only defeat them at the polls one at a time," I said, "because even as terrific and courageous a reformer as Sarah Palin is, they just won't let her run for Governor, Congressman, and both Senate seats all at once!"

Over a year ago, in September 2007 — long before he was indicted, or before she was on anyone's mind as a vice presidential nominee — Gov. Palin publicly called upon Sen. Stevens to come clean and explain for Alaskans in much more detail the series of transactions between him and an Alaska energy company, VECO, that had come into serious question. Relations between them have been cool and distant since then. And Gov. Palin has been very circumspect and scrupulously appropriate in declining comment on the charges against Stevens since his indictment.

In response to Sen. Stevens' conviction today on seven counts of making false statements on ethical disclosure forms, however, Gov. Palin has issued the following statement on the Alaska gubernatorial website:

October 27, 2008, Anchorage, Alaska – Governor Sarah Palin today released the following statement on the felony convictions of U.S. Senator Ted Stevens:

“This is a sad day for Alaska and for Senator Stevens and his family. The verdict shines a light on the corrupting influence of the big oil service company that was allowed to control too much of our state. That control was part of the culture of corruption I was elected to fight. And that fight must always move forward regardless of party or seniority or even past service.

“As Governor of the State of Alaska, I will carefully monitor this situation and take any appropriate action as needed. In the meantime, I ask the people of Alaska to join me in respecting the workings of our judicial system. I'm confident Senator Stevens will do what is right for the people of Alaska.”

Several points ought to be noted on this.

First, even though the jury has found Stevens guilty on all seven counts, that verdict has not yet been reflected in a formal judgment of conviction. (To answer the silly question posed by ABC News' Jake Tapper on his blog, that means that yes, Stevens can still vote for himself next week, but I don't think one vote is going to decide the election.) The trial has been anything but smooth, however, with prosecutors having to admit to repeated blunders throughout. So there are obvious and non-trivial grounds for Stevens' very capable legal team to urge in seeking a new trial rather than the entry of a judgment of conviction. (Please don't mis-read me here: I think it's more likely than not that the jury verdict will indeed be upheld, both by the trial judge and on appeal. And I'm personally unpersuaded by Stevens' defense and impressed by the evidence, at least as summarized by the press, which the prosecution presented. But I do believe in due process, and Stevens hasn't yet had all the legal process that's due to him under the Rule of Law.)

Second, keep in mind that these were convictions in federal court for violations of federal laws, but the Double Jeopardy Clause does not prevent Stevens from also being prosecuted for violations of Alaska state law based on the same or similar conduct. As such, it would still be inappropriate for Gov. Palin to be commenting in depth on the merits of Sen. Stevens' guilt or innocence under either state or federal laws: Doing so could jeopardize any future state prosecution of Sen. Stevens under Alaska state law.

Third, it's reasonable to assume that what Gov. Palin is saying to Sen. Stevens in private is more pointed than anything she's permitted to say for public consumption. And indeed, the last sentence in Gov. Palin's public press release today — "I'm confident that Senator Stevens will do what is right for the people of Alaska" — is what we might call "pregnant with implication." Here's my guess as to what Gov. Palin saying privately, because it's what I would say to him if I were in her position:

"Ted, for now, I'm going to continue to be restrained and appropriate in what I say in public. But you owe it to your party, and to the people who've voted for you in years past, not to take everything down with you in flames.

"Accordingly, now — before Election Day — you need to hand to me, as the Governor of Alaska, a formal, irrevocable letter of resignation which is automatically effective as of the instant that your post-verdict (pre-appellate) motion for new trial in the federal district court is denied (even though you may still have appellate avenues open at that point to challenge that judgment).

"Having made that commitment and signed that binding letter, Ted, then you can again ask the voters of Alaska to give you their votes — and they, in turn, can vote for you secure in the knowledge that one of either two things will happen: (a) The jury's verdict will be overturned, your presumption of innocence will be restored, and you'll have another day in court. Or else: (b) As Governor of Alaska, either I or perhaps Sean Parnell (as my successor) will appoint a qualified, honest Republican who will carry forward the Republican Party's best policies and ideals in the U.S. Senate seat you have occupied for so long."

With due respect to my friends at RedState.com, the response of principled conservatives to corruption in our own party ought to be to work to replace the corrupt actors with honest Republicans — not to endorse Democrats! Character is critical, but party policies are too, and we ought not throw the baby out with the dirty bathwater. Or to use a different metaphor: There are more ways to skin this cat, which I agree needs skinning, and there are better ways for Sen. Stevens and the voters of Alaska to "do the right thing" without handing the Democrats a larger legislative majority in 2009.

— Beldar

Posted by Beldar at 01:31 AM in 2008 Election, Law (2008), Palin, Politics (2008), SCOTUS & federal courts | Permalink | Comments (4)

Saturday, October 18, 2008

Docs opining on McCains' prognosis divide into two groups: Those who know what they're talking about, and those who're guessing

My latest guest-post at HughHewitt.com distinguishes between those doctors who've actually examined and treated John McCain, who say his prognosis from his 2000 cancer surgery is quite good, and those who are just guessing, who want to scare people into thinking that it's not. This brings out my cross-examination lust, which unfortunately is likely to go unsated.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar).

Like many courtroom lawyers, a large part of my professional life has involved questioning and cross-examining expert witnesses, and I've dealt more with physicians, by far, than with any other profession. During the first decade or so of my practice, anywhere from a third to a half of my cases involved either personal injuries or health insurance coverage matters (which typically involved cutting-edge medical procedures and/or drugs), and each such case typically had multiple physician witnesses. I'd guestimate that I've put questions to somewhere north of seventy-five different MDs at one time or another — ranging from country general practitioners to some of the world's finest research scientist/physicians. It's a challenge, one that takes both preparation and experience, and it can be a whole lot of fun.

Lawyers who regularly examine physicians have a couple of different terms of art to describe a certain kind of doctor. I'm referring specifically to the kind of doctor who hasn't actually ever examined the patient, and who sometimes hasn't even had personal access to all of the patient's medical records, test reports, and other data. Nevertheless, this kind of doctor will confidently stride into court, take a solemn oath, and then proceed to second-guess the patient's own highly qualified and well-credentialed doctors.

Typically these "experts" are testifying for money, so the rather obvious term of art courtroom lawyers use among themselves to describe such witnesses is a vulgar word meaning someone who sells him- or herself for money. (The word rhymes with "floor.")

But the doctors who are eager to spread alarm about John McCain's cancer prognosis, as quoted in Saturday's Washington Post, aren't giving their opinions for money, but instead out of other motivation. So for them, I'll use the second term of art that courtroom lawyers use to describe doctors who opine without having access to either patient or full records — a term which captures the joy we take in getting to cross-examine them:


[# More #] Jurors almost always immediately grasp that, when all other things are roughly equal, the doctor who hasn't actually examined the patient cannot be trusted, at least not in comparison to the doctor who has. When the non-treating but testifying physician hasn't even seen all the relevant records and data, then it becomes obvious even to the average ditch-digger that he's just making guesses, and not particularly well-educated guesses at that.

If you read the WaPo article carefully — and not just the headline ("Questions Linger About McCain's Prognosis After Skin Cancer," which of course is biased against McCain) — then even without the assistance of a cross-examining lawyer, you'll quickly come to a confident pair of conclusions yourself:

  • There are doctors who, in giving opinions about John McCain, actually have a basis to know what they're talking about, based on first-hand examinations of the patient and complete access to his medical records and tests and pathology slides and all the other relevant data. They all present a very favorable prognosis for McCain, especially given his long period without a recurrence of the skin cancer removed in 2000.

  • And then there are doctors who are guessing, based on assumptions stacked on second-hand reports, who haven't seen the patient or had access to all his records or the other data. Their conclusions are completely untrustworthy because they can be no better or more reliable than the quality of the input, which is what they've gotten second- or third-hand and at least partly through a media filter. And of course, they have no ethical duty to the actual patient, no responsibility to counterbalance their political or other biases. So they're free to imagine the worst, and then spread it across the internet and to any newspaper reporter who'll listen.

Pinatas. To steal a phrase from the SCTV "Farm Film Report" skits, they blow up REAL good!

In fact, I'd actually pay good money simply for the opportunity to cross-examine these particular bozos esteemed physicians in front of a jury. There's nothing like the professional satisfaction of watching a supposed "expert" witness leave the courtroom with the jury actually laughing out loud at them.

Look, none of us know how many days we have left. We live in a state of uncertain and indefinite grace. McCain, at least, comes from hearty stock (look at his mother, Roberta McCain, making campaign appearances in her 90s), and he's proven himself to be, quite literally, a survivor already on many occasions. I'm amused by the line I've heard him quoted as giving to reporters who've been interviewing him in flight when they were suddenly disturbed by turbulence: "I'm just not destined to die in an air crash," he says with a laugh (having survived not only the crash of his A-4 attack plane after being shot down over Hanoi, but a couple more equipment-failure crashes and a horrible fire when his plane was hit by an accidentally fired missile on the deck of an aircraft carrier).

And as for McCain's cancer, I figure McCain's sort of like the house that Garp and his pregnant wife are inspecting in both the book and movie, The World According to Garp. As they're talking to the real estate agent, a small plane crashes into it. Immediately the very risk-averse Garp says "We'll take it!" His wife looks at him in disbelief, but he gushes, "The chances of another plane hitting this house are incredibly small!" I know that's not the way medical pronoses work, and it's just my guess. But then again, it's not much more unreasonable a guess than those being made by the doctors who are giving contrary opinions to those of McCain's own treating physicians, because those long-distance docs haven't even seen the first plane hit the house, so to speak.

— Beldar

Posted by Beldar at 06:36 AM in 2008 Election, Law (2008), McCain, Politics (2008), Trial Lawyer War Stories | Permalink | Comments (2)

Friday, October 17, 2008

Today's SCOTUS ruling does NOT mean there's no voting fraud problem in Ohio

Today's SCOTUS ruling on the Ohio voting case is almost impenetrable. But I'm convinced it's an important case on an important subject, even though I think its moral is deeply concealed. It's not a statement that there's no voter fraud going on in Ohio, nor even a statement that clears the Democratic Secretary of State in Ohio, Jennifer Brunner, of complicity in that fraud. Rather, my guest-post on the decision at HughHewitt.com argues that it's a implied call for further Congressional reform of the Help America Vote Act from 2002, which fails to specify when, how, and on whose behalf the federal courts may and may not intervene to prevent dilution of voting power or abuses connected with the attempted exercise of voting rights.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

As a guest writer here during election season, I've usually stuck to politics. On my own blog, though, I often write about legal topics, and sometimes the intersection of legal and political topics. My goal is to explain some things that I think the media may have not explained very well, and to add context and opinion that's based on my own background as a former appellate court clerk and a practicing courtroom and appellate lawyer for the last 28 years. Tonight, I'll try to help you make sense of a ruling today by the United States Supreme Court in Brunner v. Ohio Republican Party, a voting rights case from Ohio that I doubt many people yet have a handle on, and that I don't think the media have been able to figure out at all.

In three sentences: (1) Today's ruling turned on important but esoteric legal principles that don't have much to do with voting rights in general or the situation on the ground in Ohio in particular, and it ought not be interpreted as the Supreme Court either rejecting or accepting the proposition that there's wide-spread and systematic voting fraud being undertaken there or anywhere else. (2) It does, however, emphasize that the Supreme Court thinks this is an important topic. And most importantly, (3) Congress desperately needs to further reform the voter fraud and voter registration laws to specify who may sue under them, when, how, and for what relief.


The Ohio case involves the Help America Vote Act (“HAVA”), a federal law passed in 2002 in the aftermath of the disputed presidential election and the Supreme Court's landmark 7/2 decision in Bush v. Gore that the Florida Supreme Court's erratic manipulation of the Florida recount violated the U.S. Constitution. That election year also generated complaints from each side that the other had engaged in variety of types of voting fraud or misconduct. The new law was intended both to remedy complaints that it was too hard to register and cast an effective vote, and that it was too easy to engage in voting fraud.

Thus, here's how today's big-picture legal dispute was described earlier this week by the intermediate appellate court, speaking through a nine-judge majority the full U.S. Court of Appeals for the Sixth Circuit (sitting "en banc," meaning with all fourteen of its active judges participating, rather than in a normal, randomly constituted panel of just three judges):

In one respect, [HAVA] makes it easier for individuals to cast ballots by establishing a vote-first-challenge-later approach to dealing with disputes about an individual’s eligibility to vote, the most obvious feature of which is the right to cast a provisional ballot when an election official questions an individual’s eligibility to vote. In another respect, the Act helps to ensure that those votes count, or to put it another way the Act helps to ensure that those votes are not diluted by guarding against voter fraud. The one goal complements the other: Enabling the casting of one vote does little good if another voter fraudulently cancels it out.

In an attempt to balance these interests, and to promote both without undercutting either, HAVA imposed certain federal requirements upon state government officials — and in Ohio, that meant the state's chief elections official (the Ohio Secretary of State) and its top official in charge of motor vehicle licensing (the head of Ohio’s Bureau of Motor Vehicles (“BMV”)). Specifically, HAVA requires that those two state officials match up the information in their respective state databases to look for evidence of potential fraud in voter registrations.

To comply with HAVA, the Ohio Secretary of State developed a procedure, documented in a written manual, regarding how this matching up was to be performed, and what ought to happen in the event that there was a discrepancy. But that was a Republican Secretary of State, J. Kenneth Blackwell. In January 2008, he was succeeded in office by a Democrat, Jennifer Brunner. And Ms. Brunner decided to "turn off" this portion of the manual, for reasons that haven't been thoroughly plumbed yet through this litigation or through any other means. As the en banc Sixth Circuit wrote:

The apparent “turn[ing] off” of this voter-registration-verification process, or at least the discovery that it had been turned off, prompted this dispute. For reasons that the record does not reveal and at a time the record does not reveal, the Secretary of State apparently chose to deactivate at least part of the process, if not all of the process, described in section 15.4 of her manual. In particular, she concedes that at some point she stopped communicating with the county boards about mismatches and stopped renewing validation requests with the BMV after obtaining a mismatch.

So the Ohio Republican Party and a Republican state representative sued Secretary Brunner in federal court, seeking a court order compelling her to comply with her obligations under HAVA by resuming the process of comparing the two data bases. The federal district judge who first heard their motion for an emergency order (called a "temporary restraining order" or "TRO") agreed that they were entitled to emergency relief and therefore entered a TRO on October 10, 2008. Secretary Brunner appealed, and a mere twelve hours or so later, a three-judge panel of the Sixth Circuit disagreed with the district judge. But then on October 14, 2008, the full Sixth Circuit overturned the decision of that three-judge panel and re-instated the TRO issued by the district judge. And it was that decision from the en banc court which was the subject of today's SCOTUS rulling — meaning that this temporary order traversed the entire federal judicial system within a mere seven days after the district court's initial ruling.

If we were scoring this as a tennis match, it would be a fast and furious series of exchanges: a hard service by the GOP and the district judge, a firm return volley by the Dems and the Sixth Circuit panel, a cross-court smash after rushing the net by the GOP and the en banc Sixth Circuit — followed by today's improbable lob and point from the Dems and the SCOTUS. Temporary, emergency orders like this one generally can't be appealed at all. They're intended to maintain the status quo long enough for both sides to get their ducks in order and to have a evidentiary hearing, with witnesses who can testify and then be cross-examined under oath, at which point the TRO may or may not be replaced by a preliminary injunction that will run until a full-blown trial on the merits (typically months later). So the only way the Dems were able to get this into the federal appellate courts to begin with was to persuade them that because the time between now and the election is so short, even a TRO like this one will effectively decide the whole controversy — too much else will happen before even a preliminary injunction evidentiary hearing can be held, too many bells will ring that can't be unrung, and if the appellate courts don't agree to hear the matter now, there will be no way for the losing side from the district court (here, the Dems) ever to get effective appellate review.

But while it's rare that anyone can persuade an intermediate appellate court like the Sixth Circuit to hear an appeal of a TRO, it's vastly more rare for a three-judge appellate panel from such a circuit court to be overturned and re-reviewed by the full circuit court sitting en banc. In the year I clerked on the old Fifth Circuit (1980-1981), which was then the largest circuit court in the country (stretching from Texas to Florida), I don't think that happened a single time in a civil case. That's why I thought this case would end at that level.

For the United States Supreme Court to intervene, however, and agree to overturn a ruling by a circuit court of appeals on a TRO, is spectacularly rare. The biggest surprise about today's ruling is that the SCOTUS involved itself at all. And the temptation from that is to assume that today's ruling must itself be of some cosmic significance — if not on the level of Bush v. Gore, nevertheless something awfully important about whether there actually is any voter fraud going on in Ohio, and whether the Democrat who's the Ohio Secretary of State is facilitating it by refusing to do her job.

However, one who gives in to that temptation, however, and who draws that particularly inference, would clearly be wrong. Today's ruling has a dramatic and fairly well concealed point to it, but it's not on that subject.


The en banc Sixth Circuit agreed with the panel that this was indeed one of those rare cases in which a TRO may properly be appealed, but it differed from the panel on what it described as the key legal issue presented by the case: "whether 42 U.S.C. [section] 15483(a)(5)(B)(i), together with other provisions of HAVA, require the Secretary to provide local election officials with meaningful access to mismatches identified in the [Statewide Voter Registration Database]," instead of just the theoretical (and practically useless) access that Secretary Brunner was actually providing.

The en banc Sixth Circuit believed that the answer to that question is clearly yes — meaning that in all probability, after a full development of the evidence and an eventual trial on the merits, the GOP would win its case. In the meantime, the effects of the TRO were limited and entirely beneficial, according to the en banc court (citations omitted):

At most, the identification of a mismatch allows a county board to investigate whether the mismatch has a legitimate explanation (say, a recent change of address). Nothing about this case or the relief plaintiffs seek will allow them to prevent a single voter from casting a ballot in the November election. At most, the relief could prompt an inquiry into the bona fides of an individual’s registration, and at most it could require an individual to cast a provisional ballot. At that point, the validity of the voter’s registration will be determined and, with it, the validity of his or her vote. That is not only sensible but it is also fair — and it also furthers both objectives of HAVA rather than just one of them.

The en banc Sixth Circuit went on to compare the respective risks of harm to either side from the temporary order. It found an urgent and compelling need to furnish county boards with meaningful information on non-matching registrations before absentee voting began, because otherwise the ability to segregate those votes for investigation would be forever lost. By contrast, it found unpersuasive Secretary Brunner's claims that having to do that which her predecessor had done would impose an incredible hardship and burden. And finally, the en banc Sixth Circuit rejected Secretary Brunner's arguments that the GOP had been guilty of "laches" — an equitable doctrine which basically says that if you've been tardy in asserting your rights, you may have forfeited them. This was all triggered, according to the en banc Sixth Circuit, no earlier than August 2008, when Secretary Brunner had decided to "allow simultaneous registration and voting for six days in Ohio in late September and early October." As for the "turning off" of the county board's cross-checking abilities, the court said that "[t]o this day, it remains unclear when the Secretary told the public that she had changed the office’s prior policy on implementing [section] 15483(a)(5)(B)(i), when she told the public why she made these changes and whether she has made additional changes to the policy since."

To sum up, then, the en banc Sixth Circuit agreed with the Ohio GOP that Secretary of State Brunner appeared to be violating her responsibilities under HAVA in a way that would interfere with local election boards' ability to identify potential instances of voter fraud. Did the Supreme Court disagree?

Nope. The Supreme Court neither agreed nor disagreed with that conclusion, because instead the Supreme Court indicated that this sort of case can't be brought in these circumstances by these sorts of plaintiffs.


It's common-place for Congress to pass laws that create certain duties and responsibilities for other people and entities, including state government officials. One of Congress' annoying habits, however, is that it quite often doesn't bother to say, one way or the other, whether ordinary citizens can go to court to force the intended target of those statutes to comply with their responsibilities. And Congress didn't say that one way or another about the specific database-comparing responsibilities created by HAVA for state election officials like Secretary Brunner. This, unfortunately, leaves the federal courts in the position of literally having to guess what they think Congress would have said, if Congress had thought about the issue and bothered to decide it.

The Ohio GOP here was proceeding under a very old and powerful civil rights statute, 28 U.S.C. section 1983, which allows lawsuits in the federal courts to be brought by people to redress the violation of rights which are secured to them under the Constitution or laws of the United States. But does HAVA give citizens, or groups of them like the Ohio GOP, or the Republican state representative who also was a plaintiff in the case, the sort of statutory right which may be protected under section 1983?

In other cases, the Supreme Court has prescribed a three-part test for making that determination. I will spare you the details, because in my judgment they're horribly boring and so muddy and subjective as to be almost arbitrary. Basically, it boils down to the en banc Sixth Circuit guessing one way as to how this complicated multi-part test would work out for this specific statutory responsibility of Secretary Brunner, and the SCOTUS today saying, "Nope! You guessed wrong!"

The Supreme Court's written ruling itself is barely more than a single page, and it's per curiam — "by the Court" — meaning that all of the Justices joined in it, but no single Justice took credit for writing it, and no Justices dissented or wrote separate opinions of any sort. So even though it's unusual for them to have acted in this sort of case at all, there's no sweeping rhetoric, no highly charged arguments, no sniping from Justice Scalia at Justice Breyer or vice versa.

As to whether Secretary Brunner is or isn't bungling her reponsibilities under HAVA, that gets precisely one sentence: "We express no opinion on the question whether HAVA is being properly implemented." In that one sentence, the SCOTUS, on behalf of the entire federal court system, did a three-step drop-back and punted the whole question of voting fraud deep somewhere well past whatever yard-line corresponds with November 4, 2008.

Instead, we get this: "Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [the disputed provision in HAVA] in an action brought by a private litigant to justify the issuance of a TRO." Translation: We think that if we thought about it longer and actually had a full trial on this case, we'd still probably think that this particular requirement of HAVA was not one of the sort that Congress intended private individuals to be able to sue state officials in order to enforce.

So: You're got a right to your vote. You have a right that your vote not be diluted. But you don't have a right to go to the federal courts to get them to stop the state officials who are deliberately screwing off on their job responsibilities (as defined by this particular section of this federal law) in ways likely (and likely intended) to dilute your vote through by voting fraud.

In law school, I was taught an ancient Latin phrase from the Roman civil law that has made its way to us through English common law: Ubi jus, ibi remedium. "For every right, there is a remedy." Today's short ruling from the SCOTUS turns that into: "For every right, there is a remedy (except for when they're messing with your vote in this particular way ... sucker!)." My Latin isn't nearly good enough to come up with a translation for that.


Political liberals are pointing out that many proponents of judicial conservatism — and I proudly count myself among that principled group — generally scorn courts who are too eager to find implied private rights of action that permit everyone and his dog (or polar bear) to race to federal court to "enforce" some "right." That's a very valid point, and I think it explains (a) why the SCOTUS agreed to rule on this temporary order at all, (b) why it ruled the way it did, and (c) why the order was so short, as well as unanimous and unsigned.

HAVA was the product of a great many political compromises, and especially given the incredible firestorm of controversy out of which it arose, it's remarkable that so many legislators were able to agree upon so much. Merely creating responsibilities for state officials, however, without providing a judicial mechanism for the oversight and enforcement of those responsibilities renders illusory the responsibilities themselves, and renders vulnerable the rights they're designed to protect. Voter registration and voter fraud are both incredibly important subjects, but they're subjects best addressed well before Election Day. And to obtain their political legitimacy with all participants regardless of their partisan affiliation, our society's rules on those subjects must be determined in the first instance legislatively — and those legislative determinations must include decisions on what role the courts should have in resolving these disputes, and when, and within what operating rules, the courts may act. Congress owes all of us — citizens and voters and partisans and courts alike — something better than to have to guess how multi-part tests under a super-broad and very vague civil rights law from 1871 ought to turn out in cases like this one.

Saying all that in so many words in the circumstances of this case, however, would have generated a fuss on the Court. The liberal block would have thought that constituted an implied agreement with the Sixth Circuit on the merits — i.e., that Secretary Brunner is deliberately screwing up by refusing to perform her HAVA job responsibilities. And the conservative block was content to leave that subject alone, and instead to make the implied point that "Yes, this stuff is important enough that we'll take it up even through an extremely rare appeal of a TRO, but we're not going to jump in with both feet until Congress has said we may and told us how."

Thus, even though I agree with the ruling, I'm unhappy with this result. Indeed, I'm unhappy with all the reports of voter fraud that I'm seeing every day. But we can't expect to fix these things on the brink of an election. Win or lose on November 4, further reforms of the laws regarding voter fraud have to be a top priority for the GOP on both a national and state basis.


UPDATE (Fri Oct 17 @ 11:10 p.m. CST): It's a mistake to assume that the views an advocate presents on behalf of a client exactly correspond to the advocate's own views. But it's still interesting — and arguably supportive of the political liberals' point mentioned above about judicial conservatives being hostile to implied private rights of action (or the enforceability of rights using section 1983, which is a close, but slightly different, inquiry) — to note that the key recent SCOTUS case relied upon by Secretary Brunner and the Dems and cited by the Court's per curiam opinion today, Gonzaga University v. Doe, 536 U.S. 273 (2002), was argued and won by one John G. Roberts, Jr. As I pointed out in a comment below, Chief Justice Roberts, since he was in the majority (which we know even though the opinion is per curiam because there are no dissents), had the power to assign the drafting of today's order. It strikes me as not unlikely, then — since he certainly would be "up" on these issues — that he may have assigned the drafting to himself, and that he may have been as influential in the Court's internal discussions as he presumably was in the briefing and argument of the Gonzaga case in 2002.

UPDATE (Sat Oct 18 @ 12:05 a.m. CST):Although HAVA is silent on whether citizens or citizen groups like the Ohio GOP could sue under section 1983 (a general civil-rights law), section 401 of HAVA, 42 U.S.C. section 15511, itself provides that "[t]he Attorney General [of the United States] may bring a civil action against any State or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other order) as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements under sections 301, 302, and 303." Section 303 is the section of HAVA that Secretary Brunner is flouting. Thus, the U.S. Department of Justice could, if it chose, refile these same claims on Monday morning, and we can be almost certain that the resulting TRO would be affirmed on its merits up through at least the en banc Sixth Circuit. I hope Attorney General Mukasey is looking at that possibility this weekend. And it's entirely appropriate for private citizens who are concerned by the SCOTUS ruling today to contact the DoJ to encourage them to take up the case.

Law professors Jonathan Adler and Rick Hassen have more links and observations about Friday's ruling that are worth a look, too. With due and genuine respect, however (because he is a genuine and knowledgeable specialist in election law, albeit a left-leaning one), Prof. Hassen's badly wrong in characterizing this as a decision based on purported foot-dragging by the GOP (which might bar its claims under the doctrine of "laches"). That argument was considered and rejected by the Sixth Circuit en banc, and not mentioned at all by Friday's per curiam decision.

— Beldar

Posted by Beldar at 10:01 PM in 2008 Election, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink | Comments (4)

Sunday, October 12, 2008

A reply to Prof. Post: It's nonsense to argue both that it was okay for Gov. Palin to actually fire Monegan, but that it wasn't okay for her to merely threaten to fire Monegan

Even very smart people sometimes miss the obvious, especially when there are politics involved. I'm sure he's a very smart person, but I think Temple law professor David Post wasn't thinking clearly when it comes to either the Branchflower Report or my first post about it at HughHewitt.com, and that's the point of my latest guest-post there.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar):

At page 69 of his bloated report, investigator Steve Branchflower squarely admitted — as he had to — that there is no doubt whatsoever that Gov. Palin acted within her legal rights to reassign Walt Monegan (rather than accept which, he resigned), even if that's characterized as her having fired him:

The governor may discharge department heads without cause. The constitution provides that department heads "serve at the pleasure of the governor." Alaska Constitution Article III, section 25; see also AS 39.05.030. Those who serve at the pleasure of their employers are subject to discharge at will. See Witt v. State Department of Corrections, 75 P.3d 1030, 1033 (Alaska 2003).

In light of this constitutional and statutory authority, it is clear that Governor Palin could fire Commissioner Walt Monegan at will, for almost any reason, or no reason at all.

Writing at the Volokh Conpsiracy, however, Professor David Post of Temple University’s Beasley School of Law summarily dismisses one of the main points made in my Friday evening post here, while ignoring all of my other points. On the one point of mine that Prof. Post chose to address — to the effect that the two main conclusions in the Branchflower Report are internally inconsistent — Prof. Post writes:

Bill Dyer’s report at Townhall.org (to which Jonathan Adler pointed in his original posting here) claims that the Report is fatally flawed with a central inconsistency: ...

Here's a note to Mr. Branchflower, who clearly is verbose, but obviously none too keen a scholar of logic: Gov. Palin's so-called "firing" of Monegan (it wasn't a firing, it was a re-assignment to other government duties that he resigned rather than accept) can't simultaneously be a violation of the Ethics Act and "a proper and lawful exercise of her constitutional and statutory authority." This, gentle readers, is a 263-page piece of political circus that actually explicitly refutes itself on its single most key page!

That doesn’t really make any sense. It is perfectly logical to conclude, as the Report does, that (a) the re-assignment of Monegan was lawful and consistent with the Ethics Act, and (b) other conduct of Gov. Palin was not lawful and consistent with the Ethics Act. This is hardly an “explicit refutation” or some kind of inconsistency.

Reduced to its nub (and setting aside the overstatement of the case against Gov. Palin that's inherent in this formulation), Prof. Post — like Branchflower — is thus in the position of arguing both that (a) it was perfectly okay for Gov. Palin to actually fire Monegan, but (b) it was not okay for Gov. Palin to threaten to fire Monegan.

Prof. Post gives no explanation for why that not a contradiction. And one need not be a law professor, or a lawyer, or even the sharpest tool in the shed, to see the absence of logic in that position. But let me play devil's advocate against myself. Let's focus for a moment solely on the only "other conduct" besides the actual reassignment of Monegan in which Gov. Palin, her husband, and her aides were alleged to have been involved.

All of it was, quite literally, just talk — oral and written talk, by Gov. Palin (in person or through emails), by First Dude Todd Palin, or by Gov. Palin's staff — which Gov. Palin's opponents (including Branchflower and, now apparently, Prof. Post) contend was intended to persuade or compel Monegan into taking some action with respect to Trooper Wooten.

Mere talk cannot be a violation of the Ethics Act, because by its clear and unambiguous terms, it may only be violated by an "effort to benefit a personal or financial interest through official action."

Ethics provisions like these aren't intended to be legislative enactments of mind or speech control. They're intended to control the actual — or at least the threatened — use of official power. If there's no use (or even threatened use) of official power, no taking (or even threatened taking) of official action, then there can't be an abuse of power.

And that's true even if we engage in the highly questionable supposition that merely gratifying one's purported desire for vengeance is a "personal interest" within the intention of the Alaska Legislature when it passed this statute. (Reading the statute that broadly would literally make it unethical for the governor to ever take any official action that left her pleased on her own behalf as a citizen; she'd be confined to only acting in ways that left her feeling at best neutral or unhappy in her private capacity. And that's just as silly, too.)

No, gentle readers, the only actual or threatened "official action" ever involved in this whole mess was the firing (or actually as it turned out, reassignment) of Monegan, allegedly because he wouldn't fire (or do something further involving) Wooten. And that action cannot simultaneously be both a "violation of the Ethics Act" and "a proper and lawful exercise of her constitutional and statutory authority."

This isn't hard. This isn't subtle. This isn't nuanced. This isn't something on which you have to let the "experts" — whether that's Branchflower, or Prof. Post, or me (since we all have exactly the same kind of law degrees) — do your thinking for you.

And I respectfully submit to you, for your own consideration, the proposition that this question is something on which you can reach the opposite conclusion only if, like Prof. Post, you just make an assertion that old Beldar here "doesn't really make any sense" — and then you quickly change the subject without bothering to deal with the specifics of what the "official action" (besides reassigning Monegan) could have been.


UPDATE (Sun Oct 12 @ 9:10 p.m. CST): A commenter at my own blog asks for an example of a "personal interest" of the sort that I think might be implicated by the Ethics Act in Alaska. Section 39.52.960(18) of the Alaska Statutes (most current version, as quoted at page 50 of the Branchflower Report) defines that term as meaning "an interest held or involvement by a public officer, or the officer's immediate family member or parent, including membership, in any organization, whether fraternal, nonprofit, for profit, charitable, or political, from which, or as a result of which, a person or organization receives a benefit." Notwithstanding that lengthy definition, I think that the terms "personal interest" and "benefit" have to be construed very narrowly indeed to be workable, but here's an obvious example of a discrete, objective, non-financial but cognizable interest that was probably the sort of thing the Alaska Legislature had in mind when they defined the statute to encompass official action that benefited either "personal or financial interest[s]": A governor issues an official pardon in her own favor to excuse himself or herself from felony criminal responsibility under a state law. That's going to be an extremely rare situation, and it's obviously not this one.

Also: A commenter here points out that "official action" is defined in section 39.52.960(14) of the Alaska Statutes to include "advice, participation, or assistance, including, for example, a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction, by a public officer." The commenter suggests that this permits "just talk" to be official action. I disagree that this makes all talk into "official action"; rather, what's key is that there be a specific action (or forebearance from acting) even if that action is performed by talking. Again, all that has ever been persuasively argued in the whole of Tasergate is that Gov. Palin impliedly threatened to take action against Monegan (firing or reassigning him) if he didn't act (critics say by firing, but that's their inference rather than anything Gov. Palin actually said) with respect to Wooten. Yes, the ethics statute — as substantially revised, broadened, and signed into law by Gov. Palin herself! — is intended to be broad. What it's intended to reach, however, is the exercise of power, through deeds or threats of deeds — and it's silly to say that it prohibits talking about a particular deed while not prohibiting the doing of that deed.

Finally: Branchflower only relied upon the first sentence of section 39.52.960(a), which contains the prohibition against "any effort to benefit a personal or financial interest through official action." As commenter Dan M notes on Prof. Post's post, that section goes on to recognize that "in a representative democracy, the representatives are drawn from society and, therefore, cannot and should not be without personal and financial interests in the decisions and policies of government." Moreover, under section 39.52.960(b), "there is no substantial impropriety if, as to a specific matter, a public officer's personal or financial interest in the matter is ... of a type that is possessed generally by the public or a large class of persons to which the public officer belongs." All Alaskans presumably share Gov. Palin's "personal interest" in not having child abusing law-breakers serve as state troopers. That should be the cue for good civil libertarians, including Prof. Post, to ask themselves: "Why are we lining up on the side of the trooper who drinks while driving his patrol car, illegally shot a moose while assigned to patrol fish and game violations, and Tasered his own 10-year-old stepson?" (I'll give them a hint: It starts with the letter "O.")

— Beldar

Posted by Beldar at 07:10 PM in 2008 Election, Law (2008), Palin, Politics (2008) | Permalink | Comments (11)

Friday, October 10, 2008

Branchflower report on Tasergate: Just one guy's opinion that contradicts itself and ignores the relevant facts and law

Give a lawyer a $100k budget and tell him to produce a political hatchet job, and what do you get? The 263-page piece of garbage now on the internet and in the hands of Alaska legislators called "The Branchflower Report." My take on it as the latest bit of political thuggery in Tasergate is now up as a guest-post on HughHewitt.com.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Democratic state senator and staunch Barack Obama supporter Hollis French of Alaska boasted in early September that he would provide an "October Surprise" which would upset the McCain-Palin campaign. Indeed, he originally planned to time it for October 31, four days before the election, for maximum impact, until other legislators forced him to abandon that particular strategy.

Today, however, in an episode of political theater that would make Josef Stalin blush, French gave it his very best shot: The investigator he hired and directed, Steve Branchflower, has labored mightily and given birth to a bloated and redundant 263-page report which boils down, for purposes of the ongoing presidential campaign, to two paragraphs that completely contradict one another. And the one of them that's unfavorable ignores the most important — indeed conclusive — evidence on point, but goes on to provide Branchflower's guess as to whether Gov. Palin has done anything improper.

Please understand this, if you take nothing else away from reading this post: The Branchflower Report is a series of guesses and insupportable conclusions drawn by exactly one guy, and it hasn't been approved or adopted or endorsed by so much as a single sub-committee of the Alaska Legislature, much less any kind of commission, court, jury, or other proper adjudicatory body. It contains no new bombshells in terms of factual revelations. Rather, it's just Steve Branchflower's opinion — after being hired and directed by one of Gov. Palin's most vocal opponents and one of Alaska's staunchest Obama supporters — that he thinks Gov. Palin had, at worst, mixed motives for an action that even Branchflower admits she unquestionably had both (a) the complete right to perform and (b) other very good reasons to perform.

Here are the two key "findings," however (from page 8 of the .pdf file; boldface mine):

Finding Number One

For the reasons explained in section IV of this report, I find that Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act. Alaska Statute 39.52.110(a) provides

The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust."

Finding Number Two

I find that, although Walt Monegan's refusal to fire Trooper Michael Wooten was not the sole reason he was fired by Governor Sarah Palin, it was likely a contributing factor to his termination as Commissioner of Public Safety. In spite of that, Governor Palin's firing of Commissioner Monegan was a proper and lawful exercise of her constitutional and statutory authority to hire and fire executive branch department heads.

Here's a note to Mr. Branchflower, who clearly is verbose, but obviously none too keen a scholar of logic: Gov. Palin's so-called "firing" of Monegan (it wasn't a firing, it was a re-assignment to other government duties that he resigned rather than accept) can't simultaneously be a violation of the Ethics Act and "a proper and lawful exercise of her constitutional and statutory authority." This, gentle readers, is a 263-page piece of political circus that actually explicitly refutes itself on its single most key page!

What's more incredible is that Branchflower utterly ignores the public admission made by Walt Monegan himself that ought to have ended this entire inquiry (boldface mine):

"For the record, no one ever said fire Wooten. Not the governor. Not Todd. Not any of the other staff," Monegan said Friday from Portland. "What they said directly was more along the lines of 'This isn't a person that we would want to be representing our state troopers.'"

That explains, of course, why it took a couple of weeks for Monegan to be persuaded that he'd been improperly "fired" (for supposedly refusing to fire Wooten) by an Alaska blogger, Andrew Halcro — a bitter loser whom Gov. Palin crushed in the 2006 Alaska gubernatorial race (he got less than 10% of the vote, proving that most Alaskans have long since figured out he's an untrustworthy windbag).

Instead, Branchflower has piled a guess (that the Palins wanted Wooten fired, rather than, for example, counseled, disciplined, or reassigned) on top of an inference (that when the Palins expressed concern to Monegan about Wooten, they were really threatening to fire Monegan if he didn't fire Wooten) on top of an innuendo (that Gov. Palin "fired" Monegan at least in part because of his failure to fire Wooten) — from which Branchflower then leaps to a legal conclusion: "abuse of authority." Branchflower reads the Ethics Act to prohibit any governmental action or decision made for justifiable reasons benefiting the State if that action or decision might also make a public official happy for any other reason. That would mean, of course, that governors must never act or decide in a way that makes them personally happy as a citizen, or as a wife or mother or daughter, and that they could only take actions or make decisions which left them feeling neutral or upset. This an incredibly shoddy tower of supposition, and a ridiculous misreading of the law.

Branchflower puts under a microscope every direct and indirect contact that can possibly be claimed to to come, directly or indirectly, from Gov. Palin or her husband, Todd. In none of them did either Sarah or Todd Palin demand or request that Wooten be fired. Some of them date back to before Gov. Palin was even a candidate for governor. All of them are equally well explained by legitimate concerns that Wooten was a potential threat to the Palin family (having already made death threats against Gov. Palin's father) and/or an embarrassment to the Alaska Department of Public Safety and the entire state law enforcement community. That the Palins also had strong — and entirely understandable! — negative feelings about Trooper Wooten does not make any of these communications remotely improper, much less illegal.

Nevertheless, Branchflower leaps to the personal conclusion (page 67 of the .pdf file) that "such claims of fear were not bona fide and were offered to provide cover for the Palins' real motivation: to get Trooper Wooten fired for personal family related reasons." Well, here's another memo to Mr. Branchflower: When the family is question is the family of the Governor of Alaska, and when her security detail is charged with protecting her from threats, and in the process of that, the security detail actively seeks out information as to who may have previously made death threats against the family, that's no longer solely a "personal family related reason." And when someone like Trooper Wooten threatens to bring ridicule and shame to the entire state of Alaska, that's no longer solely a "personal family related reason" either.

Branchflower, I'm told, is an attorney and a former prosecutor. If he thinks this kind of nonsense could support a conviction beyond a reasonable doubt, or even a finding of proof by a preponderance of the evidence, then he may be the worst lawyer I've ever encountered — and I've met a lot of awful ones in almost three decades before the bar.

More likely, however, Branchflower knows that his imaginary case will never be tested before any judge or jury — and instead, Branchflower's audience, and the audience of his political patron Sen. French, is a purely political one. They do not want you to read the 263 pages of his report, but I invite you to do so: By the end of it, you'll be thoroughly convinced that both Wooten and Monegan ought to have been fired! And if you're a person, as I am, who admires husbands and fathers who stand up for their families, you'll definitely want to shake First Dude Todd Palin's hand, and maybe even give him a (manly) bear-hug.

No, indeed, Sen. French and Mr. Branchflower dearly hope most Americans won't look past the headlines generated by this ridiculous farce of a report. French and Branchflower hope that Americans will be misled into thinking this report is from someone whose judgment or opinions actually count for something — instead of being from a hitman hired to complete a political hatchet job, as it actually is.

This report changes absolutely nothing, except that it will be manipulated politically by Obama supporters and Palin haters in an attempt to drive more potential voters into taking sides with Trooper Mike Wooten — a proven child abuser (Tasered his own 10-year-old stepson on a lark) who's been conclusively determined by his own department to have also engaged in drinking and driving in his squad car, and to have used a deadly firearm to violate the very fish-and-game laws he himself was specifically assigned to enforce. "It is nearly certain," wrote Col. Julia Grimes, then then Director of the Alaska State Troopers Division of the Alaska Department of Public Safety, "that a civilian investigated under similar circumstances would have received criminal sanctions." The only real question in Tasergate remains why Trooper Mike Wooten is still not only uncharged for his confessed crimes, but carrying a badge and gun to the continuing shame of the good and decent people of Alaska.


UPDATE (Fri Oct 10 @ 11:25 p.m. CST): Gov. Palin's office and the McCain-Palin campaign have each put out press releases making some of the same points I've made in this post. And Gov. Palin's lawyer has issued a five-page response to the Branchflower report which notes, among other things, that "[e]very prior reported Ethics Act violation involved financial motives and financial 'potential gain, or the avoidance of a potential loss.' ... Here, there is no accusation, no finding and no facts that money or financial gain to the governor was involved in the decision to replace Monegan."

Even the Anchorage Daily News is misrepresenting the meaning of this report: I just received an email update from it in which it claims that "Today Alaska legislators found Palin did abuse her power in the 'Troopergate' controversy." That's absolutely false — the Alaska Legislature is not in session, and all that happened today was that the 12-member Legislative Council that received the Branchflower Report voted unanimously to release its first volume (the 263-page .pdf file linked above) to the public. Several more volumes and hundreds more pages prepared by Branchflower still remain confidential — suggesting that Branchflower's selective quotations in the report may well have been "cherry-picked" or taken out of context — but the governor's office has itself posted quite a few more documents pertaining to the investigation on the internet, confirming Gov. Palin's repeated statements that she has nothing to hide in this entire matter.

— Beldar

Posted by Beldar at 09:57 PM in 2008 Election, Law (2008), Palin, Politics (2008) | Permalink | Comments (11)

More judicial tyranny from Obama-style judges: CT courts overturn state law to recognize gay marriage

My latest guest-post at HughHewitt.com criticizes activist judges on the Connecticut Supreme Court who've today imposed their own views over the will of the majority of their state's voters in the guise of interpreting their state constitution. I'm not against same-sex marriage, but I'm against imposing it on an unwilling majority of the public by judicial decree. And I'm very strongly against dishonest political candidates who say they oppose gay marriage, but will appoint activist judges who will issue such decrees.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

In Kerrigan v. Commissioner of Public Health, over the protests of three members of the court (as expressed in three dissenting opinions), a four-member majority of the Connecticut Supreme Court has overturned as "unconstitutional" a statutory system whose long-standing components were passed by Connecticut's lawmakers and signed into law by its governors over many years, and has instead decreed that henceforth in Connecticut, "same sex couples cannot be denied the freedom to marry." Here's the majority's own summary of its reasoning:

We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.

Because the court relied upon its interpretation of the equal protection provision in the Connecticut state constitution rather than upon the comparable provision in the Fourteenth Amendment to the United States Constitution, there is effectively no chance that the U.S. Supreme Court will review today's decision. That decision is now the law of Connecticut, subject only to being overturned by the Connecticut Supreme Court itself or by an amendment to the state constitution.

The judges who made up the majority in this ruling are precisely the kinds of judges whom Barack Obama and Joe Biden want to appoint the the federal bench. That's why Obama and Biden voted against confirmation of both Chief Justice John Roberts and Justice Sam Alito. Instead, they want judges who will make law from the bench — and especially laws on the most controversial subjects (like gay marriage) that couldn't possibly gather a majority vote in Congress and a presidential signature. It's worse than meaningless, but rather a complete fraud, for Obama and Biden to tell voters that they oppose gay marriage when they will appoint judges who will bring about gay marriage by judicial decree.

This decision will alarm and dismay two partially overlapping groups of people: (a) those who believe that recognition of single-sex marriage will ultimately destroy the traditional institution of marriage and foster other bad effects in society, and (b) those who decry unrestrained judicial activism as a tyrannical seizure of political power by rogue judges in a manner that undercuts the legislative and executive branches of government, thereby rendering impotent the political decisions made by democratic majorities.


Personally, although I understand and respect the views of those in the first group, I count myself only among the membership of the second. I think that government is much to blame for the often-tragic status of the traditional family in today's America, and there is much I would do to change those policies to promote stronger families. Were I a state legislator or governor, I would not cast my voe to deny gay couples the right to marry. But no combination of a state legislature and governor in America has yet agreed with that position.

Rather, the consistent decisions of those branches of state governments — which are regularly and directly elected by majorities of the voting public in their respective states — has been to adhere to the traditional definition of marriage as being between one man and one woman. And although I ultimately find them less persuasive, there are legitimate arguments to be made for that position that are not based on revulsion toward homosexuality or a desire to penalize homosexuals. I therefore would not demonize or seek to de-legitimize those who disagree with me on this issue. And I would continue to try to work toward obtaining majority support for what I believe to be pro-family changes in the law, and to persuade the majority to the view that pro-family isn't necessarily anti-gay.


But I'm very definitely a member of the second group: As a matter of constitutional law and basic principles of civil government, this is another well-intentioned but awful decision — one that may, ironically, end up frustrating rather than advancing the ultimate goal of its proponents. Using courts to cram this sort of policy down people's throats — without majority support, and in fact in defiance of majority opinion — is a very bad plan.

Those who follow, or much care about, the constitutional law here will quickly note that the Connecticut Supreme Court has played fast and loose with its equal protection clause. In equal protection analysis, the outcome is almost always determined by the framework in which the courts choose to analyze a government classification. If the government is classifying people on the basis of race, for example, long-standing precedent from both federal and state courts typically use a "strict scrutiny" approach, under which the government must offer up a "compelling purpose" to support its decision to treat people differently from one another because of their respective races.

Classifications based on other distinctions, however, traditionally were treated as valid so long as they have a "rational basis" — a vastly easier standard to satisfy. The state discriminates, for example, against the sightless when it requires people who get drivers licenses to pass a vision test. But because sightedness — unlike, for example, race — is not a classification that has traditionally been subjected to "strict scrutiny" analysis under the constitutional precedents interpreting state or federal equal protection guarantees, the state merely need show a rational reason for treating the sightless differently. They meet that requirement by showing that people who can't meet the vision requirements are more dangerous drivers. And as for whether someone with an uncorrected vision of 20/100 is or is not permitted to drive without corrective lenses, that sort of fine calibration of the state's classification system the courts generally leave to a combination of state legislatures and state agencies, upholding their decisions unless they are so genuinely arbitrary as to have no correlation to reality.

In same-sex marriage cases, therefore, the constitutional equal-protection decision often is compelled by the initial question: What kind of scrutiny will the courts apply to the state decision to deny marriage to same-sex couples? If that decision is subject to an ordinary level of scrutiny, then the state may meet the "rational relationship" test merely by asserting its belief, whether correct or not, that traditional marriages promote societal interests like child-rearing — and the courts won't further second-guess that assertion.

The Connecticut Supreme Court today, however, decided that the decision to deny the right to marry to same-sex couples ought to be judged by a an intermediate standard, a "heightened-scrutiny" analysis like that sometimes (but not consistently) used by the U.S. Supreme Court in cases involving gender discrimination. Many law review articles — containing hundreds of case citations and millions of words of argument — have been, and will continue to be, written on whether this is a legitimate approach as a matter of constitutional law.

Ultimately, however, the decision to apply this standard, and the results reached once a court decides to use it, has no greater constitutional legitimacy than the individual judges' own personal views on any given policy question. It boils down to saying, "On really controversial subjects that provoke the greatest passion among the voters, we judges are going to declare ourselves smarter and wiser than the legislature and the executive whom the voters have elected, and our decisions trump all of theirs." And thus is your democratic vote — and those of your representatives in the state and federal legislative and executive branches — cheapened, even eviscerated, by judicial tyrants.

— Beldar

Posted by Beldar at 06:14 PM in 2008 Election, Current Affairs, Law (2008), Obama, Politics (2008), SCOTUS & federal courts | Permalink | Comments (1)

Tuesday, October 07, 2008

SCOTUS decision applauded by Obama prompts federal judge to order release into our national capital of 17 Chinese Muslims captured in terrorist training camps in Afghanistan

We catch them in terrorist training camps in Afghanistan, where they'd gone to be taught with the cooperation and under the protection of the Taliban. Now, as laid out in my latest guest-post at HughHewitt.com, a federal court has said that because their home country, China, will imprison them if we return them there, we have to let them run loose in Washington, D.C., starting this Friday.

Barack Obama approves of the SCOTUS case which is compelling this result, Boumediene v. Bush.

This makes me heartsick. This makes me fear for America. The inexorable consequences of your vote on November 4 will either save or cost American lives, and not just of soldiers, but of innocent civilians.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Immediately after it was released this summer, Barack Obama applauded the U.S. Supreme Court's 5/4 decision in Boumediene v. Bush, which for the first time extended rights under the U.S. Constitution to foreigners captured and held abroad based on their activities abroad. To reach that result, the Supreme Court had to declare unconstitutional a statute passed by Congress with bipartisan support and signed into law by the president which gave these individuals substantive and procedural rights comparable or superior to those we give to our own sons and daughters in uniform. It also had to ignore and/or mischaracterize decades of prior federal precedents holding that such foreigners had no right to claim the U.S. Constitution's protections through a writ of habeas corpus — essentially extending the protections of the U.S. Constitution to the entire world.

Now as the inevitable consequence of that ruling, seventeen hard-core Islamic jihadists who'd come from their homes in China to train at terrorist camps in Afghanistan — captured there by our armed forces, and held since at Guantanamo Bay — are on the brink of being released this week, not for return to China, but into the general population of our nation's capital, Washington, D.C.:

A federal judge ordered the Bush administration Tuesday to immediately free 17 Chinese Muslims from Guantanamo Bay into the United States, rebuking the government in a landmark decision that could set the stage for the release of dozens other prisoners in Cuba.

U.S. District Judge Ricardo M. Urbina said it would be wrong for the government to continue holding the detainees, known as Uighurs (WEE'-gurz), who have been jailed for nearly seven years, since they are no longer considered enemy combatants. Over the objections of government lawyers who called them a security risk, Urbina ordered their release in Washington D.C. by Friday.

"Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful," Urbina said in a ruling that brought cheers and applause from a standing-room only courtroom filled with dozens of Uighurs and human rights activists.

One need not be a constitutional scholar to see the nonsensical premise to Judge Urbina's quoted sentence. He's talking about the United States Constitution. And he's extending its protections to foreigners. That is indeed the appalling logic of Boumediene, and that's why (as I've written often on my own blog) I'm convinced that decision easily ranks among the top five worst decisions in the history of the United States Supreme Court.

These are not "innocent civilians" swept up at random. Rather, they are hard men, Islamic fanatics who left China so they could train in the ways of terror under the approving eyes and example of the Taliban in training camps in Afghanistan. It may well be that these men's main intention once was to become terrorists against the Chinese government, and the Chinese government is indeed eager to "re-patriate" them, meaning to put them into Chinese prisons. But that they may be a danger to China does not mean that they're not also a danger to the United States!

Former federal anti-terrorist prosecutor Andrew McCarthy put this latest national peril into exactly the right context yesterday, apportioning blame appropriately between the courts and the lawyer-driven position of the Administration:

This is the very nightmare scenario I warned about. The courts' steps are outrageous, but predictable and inevitable. A lot of the blame here, however, goes to the administration and the military. They have long taken the position that radical Islamic ideology is not the problem, and that we need only worry about actively those taking up arms against the United States. They don't want us to talk about jihad — the better to keep us in the dark about jihadist ideology. Thus, the government rationalizes, the Uighurs are not a threat to us, only to the Chinese. That was all the daylight the judges need to say: OK, then release them in the U.S., since no other country — except China, where they'd be persecuted — will take them. The government's self-defeating argument is preposterous. Jihadists — and there is not question that the Uighurs are jihadists — do not recognize distinctions based on the Westphalia world of nation-states. In their view, it is Dar al Islam or Dar al Harb: i.e., you are either part of the realm of the Muslims or the realm of war, and the goal is to turn Dar al Harb into Dar al Islam by any means necessary. Releasing trained jihadists into the United States on the theory that their beef is with the Chinese and they have no problem with us would be a delusional act of suicide.

I agree with Mr. McCarthy that to some extent the Bush-43 Administration is to blame for caving in to the Hard Left's viewpoints. But you can guarantee that an Obama Administration will be (a) even more naive in the positions it takes in the courts and (b) absolutely certain to appoint even more expansionist judicial activists eager to extend new rights to our enemies at home and abroad.


UPDATE (Tue Oct 7 @ 7:35 p.m. CST): The White House has issued a statement deploring the decision, announcing that it will be appealed, and advising that "[c]onsistent with the safety of our citizens and the safety of the Uighurs themselves, the United States will continue working to find a country to which these men could be transferred."

Andrew McCarthy has more about the ruling here. Among other things, he notes that John McCain should point out that he — and the judges and prosecutors he would appoint — will refuse to go along with treating the global struggle against Islamic fanaticism as a mere law enforcement matter, whereas Barack Obama would be perfectly happy to just let the federal courts handle all this and return to that Clintonista-type 9/10/01-mentality.

— Beldar

Posted by Beldar at 04:48 PM in 2008 Election, Congress, Global War on Terror, Law (2008), McCain, Obama, SCOTUS & federal courts | Permalink | Comments (1)

Ayers to kids: "Kill your parents!" Ayers to courts:"Don't hold teen murderers responsible!"

Barack Obama chose to share a stage with Bill Ayers in 1997 in a juvenile justice-themed event promoted by Michelle Obama. The lovely Michelle was quoted in the press release as saying that the panelists were "experienced" with the criminal justice system, but it didn't mention that one of them was an unreformed, unrepentant would-be cop-killer and mass murderer, as I explained in another guest-post at HughHewitt.com yesterday.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

I hadn't seen before today the press release from the University of Chicago Chronicle that Hugh linked. It describes a joint public appearance on November 20, 1997, featuring then Illinois state senator Barack Obama and unrepentant Weather Underground terrorist Bill Ayers.

Obama is described as a state senator and "Senior Lecturer in the Law School, who is working to combat legislation that would put more juvenile offenders into the adult system." Ayers is described merely as the "author of 'A Kind and Just Parent: The Children of Juvenile Court' (Beacon Press, 1997)" who "spent a year observing the Cook County Temporary Juvenile Detention Center in Chicago." (The press-release's subhead says, "Author, former offender among speakers," but it's referring there to two different people — Ayers as the "author," and Alex Correa as "a reformed juvenile offender who spent seven years in Cook County Temporary Detention Center." Given his lack of remorse, no one could plausibly describe Ayers as "reformed.")

The press release also quotes none other than Sen. Obama's lovely wife, Michelle:

Michelle Obama, Associate Dean of Student Services and Director of the University Community Service Center, hopes bringing issues like this to campus will open a dialogue between members of the University community and the broader community.

"Students and faculty explore these issues in the classroom, but it is an internal conversation," Obama said. "We know that issues like juvenile justice impact the city of Chicago, this nation and — directly or indirectly — this campus. This panel gives students a chance to hear about the juvenile justice system not only on a theoretical level, but from the people who have experienced it."

That last sentence either represents sly and noxious irony or monumental cluelessness on the part of Michelle Obama because, of course, Ayers' experience with the justice system is most spectacularly as a criminal. I'd put my money on sly and noxious irony.

Liberals and conservatives can agree that the problems of juvenile crime and the juvenile justice system are serious and perplexing. But who in his or her right mind could look for solutions to, or even meaningful observations about, those problems from the likes of Bill Ayers?

From the 2001 Chicago Magazine article about Ayers and his wife and fellow terrorist Bernadine Dohrn entitled No Regrets that featured the photo of Ayers trampling the American flag (emphasis mine):

In 1969, [Ayers and Dorn] decided to "bring the war home" by staging a protest in Chicago during the trial of the "Chicago Eight" radicals accused of conspiring to cross state lines to incite a riot during the 1968 Democratic National Convention here. (Their conviction was later overturned.) "The Days of Rage," as the 1969 protest was called, brought several hundred members of the Weatherman — many of them attired for battle with helmets and weapons — to Lincoln Park. The tear-gassed marches, window smashing, and clashes with police lasted four days, during which 290 militants were arrested and 63 people were injured. Damage to windows, cars, and other property soared to hundreds of thousands of dollars. Around this time, Ayers summed up the Weatherman philosophy as "Kill all the rich people. Break up their cars and apartments. Bring the revolution home, kill your parents — that's where it's really at."

"The rhetoric was excessive because the times were excessive," says Ayers. "The war had escalated, so naturally the language escalated. No one thought I meant that literally."

"No one"? Not even those who know of his plot to explode a deadly nail bomb at a crowded dance on a New Jersey military base? It wasn't just the war or the anti-war rhetoric that had escalated, but the deadly violence of the anti-war terrorists he led. Oh, no — the only people who could possibly doubt the literalness of this twisted dollop of evil scum's advice to "kill your parents" are those who know nothing about Bill Ayers or his history.

Of course, letting teenage murderers escape responsibility for their crimes is perfectly consistent with Ayers' own motto, in which he describes the result of the criminal prosecution against him that was thrown out due to government errors:

"Guilty as hell, free as a bird — America is a great country."

— Beldar

Posted by Beldar at 12:47 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (0)

Saturday, October 04, 2008

Did someone feed Palin answers to give Cameron for the questions from Couric which she'd ducked?

In an afternoon guest-post at HughHewitt.com, I express an opinion contrary to my good friend Patterico's about whether Gov. Palin had answers for Katie Couric about what periodicals she reads and SCOTUS decisions she disagrees with, but chose not to share that info.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

My very good blogospheric friend and fellow Texas Law School alumnus Patrick Frey (a/k/a Patterico) — who is as perceptive a watchdog of the mainstream media, and especially of his current hometown paper, the Los Angeles Times, as has ever lived and breathed and blogged — is also never shy to express his sincere and natural skepticism about even conservative figures.

He proved this in a short post yesterday that he sardonically entitled Palin Knew the Answers, She Just Didn't Want to Say Them. In it, he expressed incredulity about Sarah Palin's post-debate explanations for some of the subjects on which she'd been non-responsive in her interviews with CBS News' Katie Couric. And the post is so short that I can't discuss it without quoting the whole thing, for which I think he'll forgive me this once (italics and link in original):

The New York Times’s Caucus Blog:

Ms. Palin explained that she stumbled in the Couric interviews not because she didnt know the answers, but that she was annoyed with the interview because she thought the questions did not focus enough on the qualities needed in a vice president. She promised to try to be patient in the future.

I’m looking for more genuineness and honesty. Instead I’m getting answers that I don’t believe.

One last thing you should know before I share my own take on this: Patterico has a diverse readership who conduct high-quality debates in his comments, and a short post like this may fairly be read as his gutsy invitation to readers to take issue with his opinion — and in this instance, many of them already have.

As for my take, it begins this way:

Patterico, my excellent friend, take a step back. Look at your own post. At the end of it, you express a terse opinion, which of course is your right and, indeed, the essence of punditry. Above that there are two sentences that you've quoted from elsewhere, and above that a short introduction to the block-quoted material, from which you quite properly hung your hyperlink.

So what jumps out at you about your own original post, my friend?

Would it be any more obvious to you if, instead of your opinion being founded on a single-sourced report from an NYT in-house blog — something subject to even less editorial control and discipline and ethics than the NYT's normal news reporting — this had come instead from the LAT? Are you entirely comfortable having formed your opinion based on "facts" or summaries of facts vouched for only by, and filtered through, the New York Times? Or are the alarm bells ringing yet?


If Patterico had gone to the NYT blog's own source before writing his post — not just the Fox News' report linked here and in the NYT blog piece, but also Fox News' very rough transcript, or to the video (which Fox has re-run incessantly since the interview) — he would have discovered that actually, Gov. Palin first gave a self-critical evaluation (using hindsight) of her overall performance in the Couric interviews. Then she gave more specific and very discrete explanations for her answers to Couric about (a) what publications she reads and (b) what SCOTUS decisions she disagrees with.

The NYT collapses all of that discussion into a single unflattering and implausible summary — one which, I respectfully submit, does not fairly match what Gov. Palin actually said.

Patterico, in an update to his original post, allows how more or better context might have been useful, but for that he went not back to the Fox News story or the transcript or the video, but a post from Jake Tapper from ABC News. That would be the same Jake Tapper who earlier this year uncritically reported that Gov. Palin was a member of the Alaska Independence Party without even bothering to check the conclusive and public voter registration records, a colossal mistake that ought to have gotten him and Elisabeth Bumiller of the NYT both fired. Tapper may be a nice guy, interesting to read, and this time he did indeed provide a lot more of Gov. Palin's explanation for her original non-answers and her present ones — but reliable on Sarah Palin matters? Not even close. Like me, Patterico cross-examines people for a living and knows the danger of double hearsay. Go to the source, my friend!

Specifically, in her own words (as established by the Fox News video), here is the general explanation as to why Gov. Palin thinks she came off poorly overall in the Couric interviews:

Well, OK. I'll tell you. Honestly. The Sarah Palin in those interviews is a little bit annoyed. Because it's like, no matter what you say, you're going to get clobbered. If you cease to answer a question, you're going to get clobbered on the answer. If you choose to try to pivot and go on to another subject that you believe that Americans want to hear about, you get clobbered for that, too.

But, in the Katie Couric interviews, I did feel that there were a lot of things that she was missing, in terms of an opportunity to ask what a V.P. candidate stands for. What the values are represented in our ticket.

I wanted to talk about Barack Obama increasing taxes, which would lead to filling jobs. I wanted to talk about his proposal to increase government spending by another trillion dollars. (AUDIO GAP) that he's made about the war that I think in my world — disqualify someone from consideration as the next commander in chief. Some of the comments that he's made about Afghanistan, what we're doing there, supposedly, just air raiding villages and killing civilians. That's reckless and I want to talk about things like that.

So, I guess I have to apologize for being a bit annoyed. But, that's also an indication of being outside of that Washington elite, outside of the media elite, also. And just getting to talk to Americans without the filters and let them know what we stand for.

Katie Couric is heir to Dan Rather's anchor chair at the same New York-based TV network which was willing to re-publish (and then defend) obviously forged documents in an attempt to destroy a national GOP candidate just four years ago. If for no other reason than that, It would have been appropriate for Gov. Palin to be guarded in her dealings with Ms. Couric.

It's also fair to say that by the latter stages of their interviews, Ms. Couric had indeed shown a distinct lack of interest in campaign policy issues. Can one seriously blame Gov. Palin for wondering whether Ms. Couric's near-exclusive focus was, instead, on making Gov. Palin look like an ignorant hayseed?


Reasonable minds might still differ about that, I suppose. So let's go on to Gov. Palin's more specific explanation for her evasive response on the questions about the specific publications she regularly reads:

So, my response to her. I guess it was kind of filtered. But, I was sort of taken aback, like, the suggestion was, you're way up there in a far away place in Alaska. You know, that there are publications in the rest of the world that are read by many. And I was taken aback by that because I don't know, the suggestion that this was a little bit of perhaps we're not in tune with the rest of the world.

I, for one, do not think it's entirely implausible that Gov. Palin might have thought she detected at least a hint of regional snobbery in Couric's question. Watching the interviews, I thought I detected quite a bit more than a hint, and of course, that didn't include anything Ms. Couric may have said off-camera or that ended up on the cutting room floor.

More to the point, it's entirely implausible that Gov. Palin genuinely doesn't know what newspapers and magazines she reads — or worse for her, but clearly insinuated both by Couric and by the NYT blog — that she really reads none. To believe that, we would have to reject outright the part of Kaylene Johnson's biography of Gov. Palin in which she describes an athletic yet bookish girl who grew up in a state where it's dark and freezing outside all day and all night for half the year (at page 21-22):

... From the time [Sarah Palin] was in elementary school, she consumed newspapers with a passion. "She read the paper from the very top left hand corner to the bottom right corner to the very last page," said [her sister] Molly. "She didn't want to miss a word. She didn't just read it — she knew every word she read and analyzed it."

Sarah preferred nonfiction to the Nancy Drew books that her classmates were reading. In junior high school, [her sister] Heather — a year older in school — often enlisted Sarah's help with book reports. "She was such a bookworm. Whenever I was assigned to read a book, she'd already read it," Heather said.

Sarah's thirst for knowledge was nurtured in a household that emphasized the importance of education. There was never any question that all the Heath kids would go to college. With her love for newspapers and current events, Sarah majored in journalism and minored in political science. Her brother, like their father, became a teacher. Heather works for an advertising firm. Molly is a dental hygienist.

Can one seriously credit Gov. Palin's entire family, in their interviews with Kaylene Johnson back in 2007, with fabricating all of this about Sarah being a bookworm who read newspapers cover to cover, even before there was an internet? Can we further assume that Sarah Palin doesn't read newspapers, but she did bother to earn a degree in journalism — just so that she could give a more plausible fabricated answer a week after a 2008 interview with Katie Couric in which she'd be asked about what newspapers she reads?


On the SCOTUS decisions, Gov. Palin flatly confessed that she had erred in permitting her caution and annoyance to cause her to clam up. Again from the transcript of the Cameron interview (two "(INAUDIBLE)" notations in the transcript replaced by me with her actual words, still in brackets, but based on my repeated listening to the video):

CAMERON: But, as a conservative, there are some in the Republican Party who would expect a vice presidential nominee to understand judicial conservatives and to have something that they might object to.

PALIN: And that's fair. Right. And on that one, truly I shouldn't have been so [flippant] and [just sort of brushed aside] that. Because that was an important question and I should have answered it.

And yes, I can cite a lot of cases that I absolutely disagree with the Supreme Court on.

At Mr. Cameron's invitation, she then proceeded to discuss three particular cases. One, the most recent Exxon Valdez decision, Gov. Palin had also discussed earlier this year, long before her selection by McCain, in a video that one of Patterico's guest bloggers posted earlier this week. But in the Cameron interview, Gof. Palin went on to discuss all three cases in terms that were absolutely accurate and rational. Besides the obvious Alaska connection on the Valdez case, she also described Kennedy v. Louisiana, as to which she expressed outrage that the SCOTUS had restricted states' rights to impose capital punishment for child rapes if they think that fitting, and Kelo v. City of New London, which she said she'd been aware of (and had disapproved of) ever since she handled eminent domain matters as a mayor.

Now, perhaps a non-lawyer being quizzed by Katie Couric about SCOTUS cases should throw caution to the wind and start rattling off names and holdings, dimly remembered or otherwise, of cases. And maybe she should have expected everyone to be as forgiving of her if she mixed two cases up, or muffed a name, in the same way that everyone ended up just laughing and saying, "Good old Joe!" when lawyer and con-law teacher Joe Biden preposterously told 70 million people on Thursday night that Article I of the Constitution is all about the Executive Branch.

But on the other hand, the great big TV networks and newspapers like the NYT made a big deal when Gov. Palin merely flubbed a general's rather unusual name during the Veep debate. It seems reasonably certain that they would have similarly exploited any mistake by Gov. Palin in a pre-debate discussion of SCOTUS precedents. Perhaps she should have overcome her concerns anyway, but based on what's actually happened since then, it's impossible to say that Gov. Palin's concerns didn't even exist at the time of the Couric interviews, and that she's just fabricated them later to cover for ignorance.

Moreover, it's entirely likely that as a former mayor and then governor of Alaska, she would know and have strong views about these three cases in particular. Now, I suppose it's possible that the handlers not only had to inject knowledge of these cases into her mushy brain, but also had to pick cases that she might plausibly have had occasion to learn of. And if we're going to suppose that without any proof, then it's certainly easy to further suppose that someone whispered all of these answers into Gov. Palin's ear just before her interview with Carl Cameron.

Indeed, if we're going that far, why not go ahead and presume that Gov. Palin had a hidden ear-piece during the Cameron interview, and that Karl Rove was next door with a walkie-talkie, like in "Mission: Impossible"? Once we're comfortably settled into a sort of Matthew "I'll believe absolutely anything (so long as it's bad) about Sarah Palin" Yglesias mode, there's just no limit to the unflattering things we can suppose about Gov. Palin.

But why get into that mode?

After a solid two weeks in which we read in the NYT and heard on the CBS Evening News that Gov. Palin is a complete ditz who can't string together two complete sentences, especially under pressure and on-camera, we saw those propositions dramatically disproved on national TV.

If I'm going to start drawing unsupported inferences, friends and neighbors, I prefer to do so based on what I've seen with my own eyes and heard with my own ears during the unfiltered debate — not some narrative that NYT or CBS News has been peddling in close synchronization with the Hard Left and Gov. Palin's political opponents. I prefer reasonable inferences, consistent with a popular and effective state governor's objective record of accomplishments, over wild and insulting speculation which, even if true, would still leave unexplained how Gov. Palin could perform at anything remotely like the level we watched on Thursday.

How about you?

— Beldar

Posted by Beldar at 08:09 PM in 2008 Election, Law (2008), Mainstream Media, McCain, Obama, Palin, Politics (2008), SCOTUS & federal courts | Permalink | Comments (3)

Wednesday, October 01, 2008

SCOTUS admits blunder on UCMJ, but says "Nevermind," and shows again how Obama's model judges pull constitutional law from thin air

When the Supreme Court is so wrong, I take small pleasure in being right in predicting that they'll perversely continue being wrong. But I nevertheless claim that credit in my latest guest-post at HughHewitt.com.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

On my own blog, I write a lot about politics, but also a fair amount about law — always with the intention of expressing my opinions in language that any well-educated layman can understand. On July 6, 2008, I wrote at my usual tedious length about the Supreme Court's embarrassing mistake in the case overturning Louisiana's capital sentence for a child rapist, Kennedy v. Louisiana, in which Justice Kennedy, writing for a five-Justice majority (which also included Justices Stevens, Souter, Ginsberg, and Breyer), insisted that neither any other state nor the federal government permitted the death penalty for child rapists. That was a major premise for their holding that "evolving standards of decency" under their "living, breathing" version of the Eighth Amendment no longer permitted Louisiana's death sentence for convicted child rapist Patrick Kennedy. And that statement was absolutely wrong: Congress and the president had recently acted to amend the Uniform Code of Military Justice to permit the death penalty for exactly that crime.

Even the editorial board of the Washington Post had urged the Supreme Court to grant rehearing in the case to address this enormous blunder. Here's what I predicted, however:

There assuredly will be a motion for rehearing filed, and even if there's not, the Court could consider reconsidering the case on its own, sua sponte. But only a naive wanker would expect the Emperor of America, Mr. Justice Anthony Kennedy, or any of the other four Justices who joined his opinion for the majority, to actually change their votes. At most, those five will permit limited supplemental briefing by both sides. There won't be additional oral argument. And in short order, Justice Kennedy will write a short supplemental opinion. It will announce the denial of rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Today the Supreme Court did exactly what I predicted.

What shocked me about the Supreme Court's blunder was that it demonstrated how little the Supreme Court knew about the Uniform Code of Military Justice. And yet in Boumediene v. Bush, those same five Justices had, just a month earlier, overturned as unconstitutional a provision of a law passed by Congress and signed by the president that restricted the availability of habeas corpus as a remedy to individuals detained at Guantanamo Bay Naval Station as enemy combatants. It did so, in large part, based on the notion that the alternative procedures crafted by Congress and approved by the president in the Military Commissions Act were constitutionally inadequate — even though those provisions were modeled upon, and provided procedural and substantive protections generally comparable to those which govern our military personnel under, the UCMJ.

In a sentence: In June the SCOTUS said UCMJ-based provisions are inadequate; in July the SCOTUS proved that it has no clue what the UCMJ actually says.

Now, I emphatically do not believe that one need be a lawyer to be qualified to be president or vice-president. That's why we've had an Attorney General and a Department of Justice [see update below] since the founding of the Republic. Indeed, the fact that neither John McCain nor Sarah Palin are lawyers themselves is a definite feature — not a bug — of the McCain-Palin ticket!

But both Barack Obama and Joe Biden are indeed lawyers, and Barack Obama frequently reminds us that he's even been a "professor of constitutional law" (which is a slight overstatement, but whatever). He immediately applauded the Boumediene decision:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

That was spectacularly clueless, and one of the many occasions on which Obama has demonstrated that for all his fine degrees from Columbia and Harvard Law, he's ignorant of world history. First, no one at Nuremberg was permitted to file a habeas corpus petition in the American courts. Second, the Military Commissions Act provides substantially greater procedural and substantive protection than what any of the Nuremberg defendants had.

Moral: A non-lawyer who will seek competent legal advice is far less dangerous than a lawyer who thinks he knows history and the law, but is demonstrably wrong about both. And every one of the SCOTUS justices whom Barack Obama has held up as "models" in the mold he's promised to appoint as president were among the majority who blundered in Kennedy v. Louisiana, and who pull their interpretations of the Constitution out of thin air to match their own sentiments.

Rights for foreigners accused of being terrorists that even our own service personnel don't get. A "living, breathing" Constitution whose answers, my friends, are blowin' in the wind. You do get an indirect vote on whether that's what you want — but you have to cast it through your choices for POTUS/VPOTUS and (even less directly) U.S. Senators. Judicial appointments are just one more issue on which this year's presidential election presents you with a stark, vivid choice.


UPDATE (Thu Oct 2 @ 2:22 a.m. CST): Proving my point about the dangers of lawyers who are convinced they know history that turns out to be just not quite so, an astute commenter on my own blog — a non-lawyer, in fact! — pointed out that although the Attorney General was indeed part of Washington's first cabinet, the Department of Justice as an institution only dates back to 1870. Mea culpa.

— Beldar

Posted by Beldar at 06:25 PM in 2008 Election, Congress, Global War on Terror, Law (2008), McCain, Obama, Palin, Politics (2008), SCOTUS & federal courts | Permalink | Comments (6)

Wednesday, September 24, 2008

Contra Bonnie Goldstein at Slate.com, Gov. Palin has never "admitted publicly" that any communications with Monegan were intended to "urge Wooten's firing"

Yes, I know, the titles are too, too long, but I have another early-morning guest-post about Sarah Palin up at HughHewitt.com.

Although of course most of it's unrelated to my guest posts there, yesterday Hugh's site got close to 120k visits or page views according to Sitemeter. That tells me folks are increasingly engaging in nitty-gritty details before the election. And that's a good thing for America, whatever happens.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

I've been a courtroom lawyer, an advocate in mostly civil but occasionally criminal trials, since 1981. Even before I started actually practicing, I learned that one way for the unscrupulous to railroad someone — to unfairly convict their target of something, to deny the target even a fair hearing — is simply to phrase all of the discussion in a way that presumes the target's guilt.

Because of that danger, the rules of evidence give defenders the right and the duty to object to the form of questions and accusations. And one very good ground for objection is that a question lacks an appropriate predicate — prior proof of the assumptions on which it's premised. Typically, the statement or question being objected to presumes something that's not only unproved, but actively being disputed.

In the court of public opinion, in which Hard Left opponents of Alaska Gov. Sarah Palin are trying to convict her of an abuse of power in the supposed "Tasergate" (a/k/a "Troopergate") scandal, I therefore object to the form of this accusation by Slate's Bonnie Goldstein in an article entitled Todd to Juneau: Drop Dead" (links in original):

Since July, the Alaska Senate Judiciary Committee has been looking into whether Gov. Sarah Palin fired Public Safety Commissioner Walt Monegan because he refused to fire her ex-brother-in-law, a state trooper named Mike Wooten. (Wooten's marriage to Palin's sister, Molly McCann, ended in an ugly divorce.) Two weeks before John McCain declared Palin his running mate, Palin admitted publicly that her husband, Todd, and members of Palin's staff had contacted Monegan and other public-safety officials about two dozen times to urge Wooten's firing.

The first sentence describes unproven allegations, and I have no quibble with it: It's not unfair or misleading to simply state what the allegations are in the course of discussing them. Nor do I quibble with the parenthetical sentence that follows.

But the final sentence — about the purported "public admission" as to the intention of anyone "to urge Wooten's firing" — is thoroughly objectionable. It's something that is not supported in any way by the source Ms. Goldstein linked (an article from the Anchorage Daily News). Nor has that intention been proved yet in any formal proceeding. And rather than having been "admitted publicly" by Gov. Palin, that intention is something that she has actually flatly denied repeatedly from the first days this dispute was fomented in the Alaska press by the blog speculations of the distant third-place finisher in the 2006 gubernatorial election, Andrew Halcro.

In fact, Bonnie Goldstein and Slate.com just made this so-called "admission" up out of thin air. And she and Slate.com have refused to correct it, notwithstanding my polite email to them on Monday evening pointing out her error. At that point, what could originally have been defended as an egregious but innocent mistake on their part became, at best, a knowing and continuing misrepresentation of objective fact — that being as to what's "admitted" and what's instead vigorously disputed.

I've written before on my own blog (here, here, and here, for example) at greater length about Tasergate, with gobs of hyperlinks and many direct quotes from original source documents. You may think you know what kind of misbehavior has been alleged, and what's been proved, about Trooper Wooten, but you probably don't yet know more than a fraction of it. But in any event, I assure you that with respect to Ms. Goldstein's and Slate.com's false description of a "public admission" by Gov. Palin, this isn't just quibbling about semantics. It's absolutely central to the charges against Gov. Palin.

Monegan himself has repeatedly admitted, in vivid language, that neither Gov. Palin, nor First Dude Todd Palin, nor anyone else ever told him, in so many words, that he (Monegan) should fire Wooten (boldface mine):

"For the record, no one ever said fire Wooten. Not the governor. Not Todd. Not any of the other staff," Monegan said Friday from Portland. "What they said directly was more along the lines of 'This isn't a person that we would want to be representing our state troopers.'"

Rather, at best, Monegan, child-abusing (but still employed) Trooper Wooten, and their backers are arguing that there was an implied order for Monegan to fire Wooten, ultimately backed up by an implied threat that if he didn't, Palin would fire Monegan.

In courtrooms, we generally call these sorts of implications "guessing," and judges regularly refuse to let witnesses even begin to travel down that path.

Oh, there may be exceptions. If the crime charged involves an alleged organized crime boss conveying a death threat to a juror, and the evidence is that he told the juror, "Vote to acquit or you'll sleep with the fishes," the courts would probably permit that testimony as tending to show that a death threat was actually conveyed and not just imagined by the juror — if, but only if, the prosecution first showed that there was circumstantial evidence through which a reasonable person under similar circumstances might reasonably perceive such a threat to be implied. There has to be at least some historical context. "Did you ever see the movie version of 'The Godfather'?" might thus be part of the predicate required to support the piling of such inferences on top of each other.

To prove abuse of power, Gov. Palin's opponents have to prove either the use or threatened use of power. They have to show the whole chain of causation, without skipping any steps. So can Monegan, or Wooten, or anyone else supporting either of them, or attacking Gov. Palin, produce any basis to show that anything Todd Palin, or Sarah Palin, or anyone on Sarah Palin's staff, ever said or wrote to Monegan about Wooten amounted to —

  • first, an order that Wooten be fired (rather than, say, reassigned to other duties, given remedial training and counseling, or given some other, lesser punishment); and

  • second, a threat that Monegan would be fired if he didn't fire Wooten?

So far, there has been no specific allegation to either effect — no showing of anyone else who'd been similarly threatened with firing or fired, nor any showing negating (or even remotely inconsistent with) any other explanations for what was written or said (like the ones Gov. Palin has actually tendered for her own emailed references to Wooten a full year or more before Monegan was offered a different government job).

So to the extent it's about misconduct on the part of Gov. Palin (as opposed to misconduct by Wooten or Monegan themselves), the whole of Tasergate is based on guesses stacked on inference stacked on innuendo. In that context, it's particularly important to be truthful and scrupulously accurate about what anyone has "admitted" — especially on something as important, and as slippery, as what anyone intended. Pundits may then argue what conclusions they want; but pundits who wish to be credible, and certainly anyone who wants to be considered a professional journalist, have a duty not to misrepresent what's actually being disputed.

As for the purported point of Ms. Goldstein's article — to discuss and attach .pdf scans of a letter sent by a lawyer explaining the eleven different reasons why Todd Palin would not be handing a legislative lynch mob more rope to hang him with by responding to an unenforceable and inappropriate subpoena — I encourage you to read both Ms. Goldstein's characterizations and then the letter itself. You can decide for yourself, or at least get an accurate impression as to what basis there is for disagreement about the subpoena, from the actual source document.

As you do, though, note Ms. Goldstein's sloppy-at-best construction when she says "An earlier claim by [attorney] Van Flein that the matter belongs before a personnel review board was rebuffed" — as if Van Flein's position were rebuffed by a court, or even a full legislative committee vote. (It was actually only "rebuffed" by the Democratic state senator who's leading the witchhunt and the investigator he's directing in his admitted attempt to produce an "October surprise"; in other words, the opposing parties disagree, and the matter hasn't yet actually been resolved.)

Notice, too, how Ms. Goldstein skips over the substance of the first ten objections — which might require her to, you know, actually look at a statute which says that only the Alaska Personnel Board has jurisdiction to consider abuse of power claims in state employment matters — so that she can mock Gov. Palin and her husband's legitimate point that between now and November 4th, they do have some other obligations on their calendar.

On the assertion as to what Gov. Palin has "admitted publicly" as to an intent to "urge Wooten's firing," though, the bottom line is this: Until she publishes a conspicuous correction, Ms. Goldstein is perilously close to, and perhaps across the line of, simply lying herself. In the interests of justice, I object. And for now, since we're operating in the court of public opinion, the only ruling on my objection will come from each of you.

— Beldar

Posted by Beldar at 05:18 AM in 2008 Election, Law (2008), McCain, Palin, Politics (2008) | Permalink | Comments (1)

Monday, September 08, 2008

NYT confirms startling detail about Palin child's name!

Yes, indeed, as I had speculated, the NYT has now definitively confirmed that infant Trig's second middle name — he's officially "Trig Paxson Van Palin" — was indeed intended as a pun on the name of the rock group Van Halen and its stars of that same surname, Eddie and Alex. That's some hard-hitting MSM reporting for you!

The world anxiously awaits Van Halen's infringement and take-down notice under the Digital Millennium Copyright Act.

Piper and Trig Palin

(Above: Piper Palin smooths her little brother Trig's hair while her mom gives her historic VP acceptance speech at the 2008 Republican National Convention.)

Posted by Beldar at 12:50 PM in Humor, Law (2008), Mainstream Media, Palin | Permalink | Comments (7)

Friday, September 05, 2008

Palin seeks truth from state agency with jurisdiction, refuses to cooperate with political hatchet job, in Tasergate non-scandal

A blogospheric friend sent me this link to an op-ed in the Anchorage Daily News, asking me for my thoughts on what a columnist there was describing as Gov. Palin "stonewalling" the state legislature's investigation into "Tasergate," a non-scandal I blogged about on the evening of August 29th, immediately after Sen. McCain's Veep choice was revealed. 

(I won't call it "Troopergate." For one thing, that's confusing, because there have been previous controversies called that, including one involving disgraced N.Y. ex-governor Eliot Spitzer. "Tasergate," however, properly reminds everyone that those who support the trooper in question, Mike Wooten, are necessarily lining up in favor of child abuse, commission of crimes with deadly weapons, cops drinking in their patrol cars, and cops making death threats. "Taser-Moose-Beer-Death-Threat-gate" would be better still, but it's just too long.)


Before I respond, let's recap certain things that tend to get lost in the telling — at least as told by Palin opponents, by some odd coincidence — but that are indisputable:

The first complaints by the Palin family about trooper Mike Wooten were made, and an official investigation was begun, in April 2005 — at which time Gov. Palin was still a private citizen, having already resigned from the Alaska Oil & Gas Conservation Commission, and long before she became a candidate for the 2006 gubernatorial race.

As a result of that investigation, Wooten was given only a slap on the hand as punishment — a ten-day suspension that was reduced to five days after Wooten's union protested. But the factual findings by Col. Julia Grimes, the then-Director of the Alaska State Troopers Division of the Alaska Department of Public Safety, were set out in a letter to Wooten dated March 1, 2006, which conclusively established certain factual findings that Wooten did not further challenge or appeal:

  • As a Taser instructor, Wooten had been "well trained in the application and risks associated with use of the weapon on a child." Nevertheless, as Wooten admitted during the investigation, he had used his Department-issued Taser on his own 10-year-old stepson Payton, an act that Col. Grimes said "demonstrated extremely poor judgment and a conscious choice to violate the department's standards of conduct."

  • As he eventually admitted (after first denying it), with full knowledge that his wife's hunting license was not transferable to himself, he illegally shot and killed a moose. "The fact that you are currently assigned as a wildlife crimes investigator," wrote Col. Grimes (italics hers), "exponentially exacerbates this violation as it is absolutely contrary to your current assignment." (So Wooten admitted to using a deadly weapon to commit a crime of the exact sort he was supposed to be preventing. I guess it's a good thing he wasn't then on assignment to any murder investigations, huh?)

  • Independent witnesses confirmed to Col. Grimes that in June or July of 2004, Wooten had pulled his police cruiser into their driveway, helped himself to a beer from the refrigerator in their garage, drank it, and then got and opened another beer before driving away, beer still in hand. This, wrote Col. Grimes, "not only exposed the Department to [criminal and civil] liability, but further demonstrate[d Wooten's] lack of judgment and a profound disrespect for the responsibilities of a law enforcement officer," putting "the integrity of every other State Trooper" into question.

  • Col. Grimes noted that Wooten's file already contained seven other documented instances of infractions of Department policies, ranging from "negligent damage to a state vehicle" to multiple dangerous violations of traffic laws to habitual tardiness and being absent without leave. "Your unacceptable conduct appears to have continued and even escalated," she wrote. This amounted to a "serious and concentrated pattern of unacceptable and at times, illegal activity occurring over a lengthy period, which establishes a course of conduct totally at odds with the ethics of our profession." Moreover, "[i]t is nearly certain," she wrote (boldface mine), "that a civilian investigated under similar circumstances would have received criminal sanctions."

According to a news report by Anchorage Daily News reporter Lisa Demer on July 27, 2008, the investigation also confirmed that in February 2005, Wooten had said in a telephone conversation with Sarah Palin's sister, Molly McCann — with Sarah Palin and her son Track also listening on a speakerphone — that if their father, Chuck Heath, helped Molly get a divorce lawyer, "he would eat a f**king lead bullet. I will shoot him." Demer's report goes on to say:

Wooten told troopers he never said anything like that about his father-in-law.

The investigation concluded he did. It wasn't a crime, because he didn't threaten Heath directly. But it did violate trooper policy, the investigation found.

Someone argued with me earlier that Trooper Wooten and Gov. Palin are both entitled to the "benefit of the doubt." That's incorrect. The allegations against Gov. Palin now are unproved claims made by Wooten (who we may reasonably presume is still angry at the Palin family), Walt Monegan (who lost his job as Alaska's Public Safety Commissioner), and Andrew Halcro (the rental car businessman who finished a distant third-place in 2006 behind Gov. Palin and former governor Tony Knowles, and who first raised on his blog, before Monegan had ever publicly suggested it, the possibility of a connection between Wooten and the Monegan firing). The facts about Wooten's misconduct as detailed in Col. Grimes' letter, by contrast, are beyond any dispute — and all that's left to wonder about is why in the hell this miscreant wasn't charged for the series of crimes to which he admitted, and why he is still carrying a badge and a gun!

But amazingly, Wooten still has his job. And if Gov. Palin somehow has conspired to fire him, she's done a damned poor job of it. Moreover, she's been amazingly lax as a vengeful conspirator, given that she waited until she was a year and a half into her term before making her decision to move Monegan to a different state agency.

[Update (Fri Sep 5 @ 6:00pm): A commenter reminded me to note that one of the emails from Gov. Palin to Monegan which supposedly "pressured" Monegan to fire Wooten was sent on February 7, 2007, not long after she'd spoken to Monegan of Wooten, for purposes of briefing her security detail, as being one person who might have grudges against her and who might intend her violence. Per a WaPo news report yesterday, the purpose of that email was to give Monegan permission to speak to the Alaska Legislature about a pending bill that would "require 99-year sentences for police officers found guilty of murder" — certainly relevant given that Wooten had made a death threat against Gov. Palin's father. The second email, sent on July 17, 2007, came "after the local newspaper publicized a legislative proposal that would keep guns out of the hands of the mentally ill." According to that email, Gov. Palin's "first thought about the bill ... 'went to my ex-brother-in-law, the trooper, who threatened to kill my dad yet was not even reprimanded by his bosses and still to this day carries a gun, of course.'" Gov. Palin's opponents would now convert that into an executive command from Palin that Monegan fire Wooten, with a further threat that she would fire Monegan if he didn't. — Beldar]

But did she ever actually threaten, or tell others to threaten, Monegan with firing if he didn't fire Wooten? She says she did not. And even Walt Monegan has repeatedly admitted that she did not!

"For the record, no one ever said fire Wooten. Not the governor. Not Todd. Not any of the other staff," Monegan said Friday from Portland. "What they said directly was more along the lines of 'This isn't a person that we would want to be representing our state troopers.'"

(Boldface mine.) Ladies and gentlemen, friends and neighbors, even if you're terribly, terribly fond of poor, poor Trooper Wooten and want some child-abusing drinking-while-driving death-threateners just like him for your own home-state troopers, this admission from Monegan should be the end of the story!

So far there is no evidence whatsoever, nor even a credible allegation, that anyone ever — even without Gov. Palin's knowledge, much less her approval — transmitted an implied order to fire Trooper Wooten, much less that she made even an implied threat to fire Monegan if he didn't. Prodded along by Andrew Halcro — Gov. Palin's defeated, bitter, spiteful, and trouble-making political rival — Monegan merely leaped to that pyramid of speculative conclusions after he'd already refused Gov. Palin's offer of a transfer to another government job.

And no one disputes, or can dispute, that under Alaska law, Gov. Palin was entitled to fire Monegan with or without cause, even with no more reason than that she just didn't like him or have confidence in his abilities. He was a purely political appointee who served, quite literally, at her whim.


So back to the question of the Alaska Legislature's committee investigation: On the same day the Alaska Legislature voted to authorize the investigation, Gov. Palin announced that she would cooperate without the necessity of a subpoena, and offered herself up for questioning as soon as that very same afternoon. Since then, however, Palin's foes in Alaska have turned this into a political witch hunt.

Democratic state senator Hollis French, who's managing the investigation, is already jumping to conclusions, muttering about "impeachment" to the press, and yet simultaneously he's short-circuited any kind of basic due process by refusing to share with Gov. Palin or her counsel the historical evidence (e.g., emails) that the Legislature's investigator is collecting to use against her! At least one Alaska legislator has already called for French to step down, citing his obvious bias. French has already boasted to ABC News of his desire to "release his final report by Oct. 31, four days before the November election," as an "October surprise" that's "likely to be damaging to the Governor's administration." Other legislators have since forced the deadline for the initial report to be moved up to October 10, but the investigator hired by committee is still pressing for legislative subpoenas to seven witnesses (not including Gov. Palin).

Gov. Palin has benefited from additional and better legal advice, and I suspect that she's now come to recognize that a show trial with the Legislature sitting as kangaroo court is not the appropriate place for an ethics violation to be investigated or resolved. She took the unusual step of filing a formal ethics complaint against herself! In her written statement explaining the filing, she explains that she has

initiated a proceeding before the state personnel board because that is the agency charged by law with addressing complaints about hiring and firing matters, and ethical issues in general, regarding the Governor. It is important to note that no one has actually filed a complaint against me, including Mr. Monegan, who would have had an obligation to notify the Personnel Board if he believed there had been misconduct in his replacement. Nevertheless, the people of Alaska — and of the nation — deserve to have a decision from the proper tribunal putting their minds at ease that suggestions of misconduct that have circulated on the Internet and in some media outlets are not true....

The private lawyer representing at least one supposedly key witness, suspended Palin aid Frank Bailey, has said that Bailey will cooperate with whoever ends up having jurisdiction over the investigation, but that he doesn't want his client to become a "political football." In that same September 4 news report, Gov. Palin's lawyer is quoted as saying that he's trying to get the jurisdictional question sorted out "this week" so that this doesn't end up delaying things past the November national election. And in case you wonder who's trying to advance the ball and who's trying to hide the ball, consider this paragraph from that same report (boldface mine):

Nicki Neal, director of the state Division of Personnel and Labor Relations, said Wednesday that the board will meet soon in executive session — closed to the public — to begin its work. Palin had asked for the ethics case to be open. Neal said she'll check into how that relates to the board meetings.

The McCain-Palin campaign has also put out a detailed four-page statement with their official position on this so-called "scandal."


So is Gov. Palin, as the Anchorage op-ed writer claimed, "stone-walling"? Only if the stone wall is supposed to be part of an executioner's platform, on which her opponents expect her to stretch her neck meekly for a political hatchet job.

As Gov. Palin has insisted since Halcro's ridiculous charges about Monegan first surfaced, she has nothing to hide. But she does have an interest in having her side of the story thoroughly aired, and in having a chance to confront and respond fairly to her accusers. When and if the state personnel board finds some sort of misconduct on her part, then the state legislature can consider whether they have any grounds for censure or impeachment.

Posted by Beldar at 04:39 PM in 2008 Election, Law (2008), McCain, Palin | Permalink | Comments (24)

Friday, August 29, 2008

Don't be misled into thinking that Gov. Palin has championed the same sort of "windfall profits taxes" on oil companies that Obama has

Stephen Spruiell was generous and self-critical enough to link today on The Corner a comment I wrote to one of my own Palin posts in which I took issue with a post by my excellent friend Ed Morrissey (formerly of Captain's Quarters) at Hot Air. Basically, I thought Ed (and, inferentially, Mr. Spruiell) had been taken in by a hatchet job from a Seattle newspaper which was carefully calculated to argue that Sarah Palin is a fan of windfall profits taxes on oil companies, just like Barack Obama.

That's not so. Palin has stood up to the major oil companies, and has made utterly transparent the State of Alaska's dealings with them, but she is neither in their pocket nor a rabble-rouser who unfairly demonizes them. She's dealt with them like a responsible public servant, not a class warrior. I'll reprint here the comment Mr. Spruiell kindly referenced, along with a subsequent one on the same post describing my emails to Ed (again, without blockquotes, and with slight editing):


What the article you linked to is discussing is a severance tax. State severance taxes charged on production of oil and gas and minerals are common throughout the United States. Also sometimes called "production taxes," they're charged by the state from beneath whose land valuable resources are extracted, and they're designed not to punish the energy companies, but to recompense the state for its loss of a non-replaceable resource — one that must be quantified and taxed upon removal, if it is ever to be taxed at all. Severance taxes are therefore based on production from within the state, not on profits earned by the company extracting that production — even though the production may be measured in, and the tax assessed upon, the market value or gross revenues (as measured in dollars) received for that production, rather than an "in kind" delivery to the state in barrels or cubic feet as such. See, e.g., Tex. Tax Code §§ 201.051 & 202.051 (Texas production taxes on gas and oil respectively).

Indeed, I once represented Conoco in a Houston lawsuit against Mobil over how to allocate the severance tax they jointly owed based on jointly owned oil and gas leases in Idaho. There's actually a fair amount of competing case-law from different states over whether severance taxes are more properly characterized as "property taxes" or "income taxes" — if for some reason (e.g., interpreting a sloppy contract) you have to put them into one of those two categories or the other. But in any event, severance taxes are in no way premised on the notion that energy companies are making unconscionable or excessive profits.

Alaska's previous version of its severance tax had been negotiated behind closed doors by defeated Gov. Frank Murkowski, a few top state legislators (some of whom are now in prison for corruption), and energy lobbyists. One of the campaign planks upon which Gov. Palin ran for office was replacing that tax with one negotiated in the open with full transparency; and the resulting tax was, indeed, slightly more favorable to the State of Alaska. The article you linked tells some of this anti-corruption history on the part of Gov. Palin. But just because the newspaper headline writers and some of the people the article quoted used the word "windfall," don't be fooled into thinking that the tax in question is the same thing Barack Obama and the Democrats are now promoting at a national level.

Rather, what Obama and the Dems are promoting is nothing less than selective government confiscation of the property of a particular industry, on the theory that such industry's profits are "excessive." That's a repugnant rabble-rousing scheme, populism turned into class warfare and carried to its excessive worst. It's completely unjustifiable either morally or economically. Its short-term victims are going to be energy-company shareholders (which include huge numbers of pension plans in which ordinary Americans have investments), but its long-term victims will be all Americans (who will suffer as our own energy companies are put at an increasing competitive disadvantage compared to others in the world, and whose national security interests will be further harmed as we become even more dependent on foreign sources of fossil-fuel energy).


I hadn't seen Cap'n Ed's post at Hot Air, but I've sent him the following email:


I’m pretty sure your post on Gov. Palin supposedly having supported a “windfall profits” tax in Alaska is badly misinformed. I think you’ve been suckered by taking the Seattle newspaper article at face value. I would not be surprised if this article is a plant by Dems who are terrified that McCain MIGHT pick Palin.

The tax in question is Alaska’s SEVERANCE tax, which is not a general corporate income tax, but a one-time tax that most states impose on the extraction of non-renewable resources that otherwise would escape taxation. I’m not an expert on tax law, but I have had a prior case involving state severance taxes, and I discuss the difference in a comment on my blog: link.

You also need to understand the context: The prior severance tax was negotiated behind closed doors between the three big oil companies who (to the exclusion of others) dominate existing production — ExxonMobil, BP, and ConocoPhillips — and the corrupt former legislators (some of whom are now in prison) and discredited administration of former Gov. Frank Murkowski (whom Palin defeated). Palin insisted on renegotiating the severance tax in open meetings with complete transparency. The result was indeed a slight increase — but only from a base rate of 22.5% to 25%. link

In other words, Palin brought SUNSHINE to the process. That did indeed upset those three big oil companies, who were happier in the dark. They’re also pissed because she’s championing an open-bidding process for a new natural gas pipeline that will bring affordable energy to Alaskans as well as making its natural gas reserves eventually available to the lower 48 states. (A Canadian-based company won that bid after ExxonMobil, BP, and ConocoPhillips refused to participate, but they’re promoting their own alternative deal. The Alaska legislature’s in special session to sort things out.)

Gov. Palin’s constituents, however, follow this stuff closely because it is so integral to the state’s entire budget and governing processes. Gov. Palin’s approval ratings are still at 80% as of the end of July.

The quote adding in royalty payments to the tax burden is extremely misleading. Producers pay royalty payments wherever they extract oil, gas & minerals. If you check, I think you’ll find that the royalty payments actually go to the federal government, not the Alaska state government, under the terms of the deal reached when Alaska became a state.

Costs of living are dramatically higher in Alaska than elsewhere. The local state tax burden is already comparatively low, however. Because of current energy prices — not specifically because of this modest increase in the severance tax — Alaska is in a position to rebate government money to its citizens. They’re choosing to do so by direct payments rather than cutting taxes. But since their entire state budget is already (and has long been) based on the development of Alaska’s energy reserves, it’s not at all fair to compare that rebate program to the confiscate-and-giveaway class warfare that Obama is proposing.

I write this to encourage you to actually research this more thoroughly, perhaps by contacting someone who IS a state tax expert and knows the state history better than I do. I don’t have time to do a more thorough analysis today or tomorrow, but if you choose not to, I’ll try to do so later this week. If you want to quote (with or without attribution) anything from this email in the meantime, feel free, but please be sure to include my statement that this is a “top of my head” reaction.

- Beldar

And I followed that with this email:


Re-reading what I just sent, I’m particularly uncertain about royalty rights. It may be that they’re divided in some proportion between the state and federal governments. So that paragraph in particular probably ought not be quoted without some further inquiry. But it is fair to say that oil companies pay royalties to SOMEONE on essentially all production, and it’s not fair to characterize those royalties as being part of anyone’s “windfall profits tax.”

- Beldar

What's next is from the description from the universally respected CCH looseleaf tax service, as linked in my first email, of the legislation in question:

The base tax rate is increased from 22.5% to 25% of the annual production tax value of taxable oil and gas. When a producer's average monthly production tax value per BTU equivalent barrel of taxable oil and gas is between $30 and $92.50, an additional tax of 0.4% is imposed on the difference between the average monthly production tax value and $30. Formerly, the additional tax was 0.25%. When a producer's average monthly production tax value exceeds $92.50, the additional tax is 0.1% of the difference between the monthly production tax value and $92.50. The new tax rates are effective July 1, 2007.

That's not remotely consistent with what the Seattle newspaper article says, but I'd put my money on CCH.

Posted by Beldar at 07:28 PM in 2008 Election, Energy, Law (2008), McCain, Palin, Politics (2008) | Permalink | Comments (2)

Saturday, August 23, 2008

Obama picks Veep nominee whose main claim to fame is being caught repeatedly as a plagiarist

Sen. Joe Biden (D-DE) As I post this, the NYT is announcing on its website that Barack Obama has chosen fellow senator Joe Biden as his running mate. If true, then Obama has apparently made NYT pundit David Brooks a happy man. He's certainly made me happier as a committed Obama opponent!

I'm pretty sure that David Brooks is a nice man. He is an articulate man. He can write and speak in complete sentences. Occasionally, he delivers some interesting punditry. But his op-ed earlier in today's NYT — Hoping It's Biden — is simply a monument to cluelessness.

Brooks writes that Biden "has disdain for privilege and for limousine liberals — the mark of an honest, working-class Democrat." Brooks digs the hole deeper in listing "honesty" as among Biden's useful attributes as an Obama running-mate (emphasis in original):

Honesty. Biden’s most notorious feature is his mouth. But in his youth, he had a stutter. As a freshman in high school he was exempted from public speaking because of his disability, and was ridiculed by teachers and peers. His nickname was Dash, because of his inability to finish a sentence.

He developed an odd smile as a way to relax his facial muscles (it still shows up while he’s speaking today) and he’s spent his adulthood making up for any comments that may have gone unmade during his youth.

Today, Biden’s conversational style is tiresome to some, but it has one outstanding feature. He is direct. No matter who you are, he tells you exactly what he thinks, before he tells it to you a second, third and fourth time.

Presidents need someone who will be relentlessly direct. Obama, who attracts worshippers, not just staff members, needs that more than most.

This is awful logic — in fact, it's not logic at all. I have no clue how Biden's high-school speech disability, or his resulting odd smile, relate to "honesty." This is just Brooks' babbling: Nothing in these paragraphs has anything to do with honesty.

Perhaps if Brooks wants to know about Biden's intrinsic honesty, and he won't read BeldarBlog on that subject, then he should at least read some of his employer's archives.

Let's start with the fact that Biden has admitted to conduct which proves that he was a very dishonest young man: He was caught in, and then confessed to, an episode of repeatedly plagiarizing from a law review article in a class paper he submitted as a first-year law student:

The file distributed by the Senator included a law school faculty report, dated Dec. 1, 1965, that concluded that Mr. Biden had ''used five pages from a published law review article without quotation or attribution'' and that he ought to be failed in the legal methods course for which he had submitted the 15-page paper.

Got that? Biden stole someone else's legal scholarship, and passed it off as his own. He's lucky he wasn't expelled outright, but the F he received in that course as part of the penalty for his misconduct doesn't explain by itself how he managed to graduate only 76th out of 85 in his law school class.

(John McCain also graduated near the bottom of his class from Annapolis, and that also reflected a middling academic performance brought further down by conduct demerits — but McCain's misbehavior mostly reflected his unwillingness to submit to Naval Academy hazing, and none of it involved cheating or any other violations of the Academy's famous Honor Code.)

Biden's law school cheating might be discounted if he'd learned his lesson and lived an exemplary, plagiarism-free life thereafter. But of course, he didn't. His own first run for the presidency exploded in 1987 when he was caught repeatedly plagiarizing again, and simultaneously caught on C-SPAN telling obvious lies about his academic record:

Mr. Biden's troubles began with the revelation in The New York Times and The Des Moines Register that he had used, without attribution, long portions of a moving address by the British Labor Party leader, Neil Kinnock. Later, it emerged that he had also used passages from the speeches of Robert F. Kennedy and Hubert H. Humphrey.

Then, it was revealed that Mr. Biden had been disciplined as a first-year law student for using portions of a law review article in a paper without proper attribution. Mr. Biden tried to put the charges behind him by admitting to mistakes at a news conference, but he was hit again by a Newsweek magazine report on a videotape of an appearance in New Hampshire in which he misstated several facts about his academic career.

The "misstated facts" included a claim that he'd graduated from law school in the top half of his academic class.

Brooks does mention the "plagiarism scandal" later in his op-ed, among the "lesser crises" that have marked Biden's career. But Brooks doesn't seem to grasp that plagiarism is dishonesty and theft; he cites this as an example, absolutely inexplicably, of Biden's "loyalty":

[T]here are moments when a president has to go into the cabinet room and announce a decision that nearly everyone else on his team disagrees with. In those moments, he needs a vice president who will provide absolute support. That sort of loyalty comes easiest to people who have been down themselves, and who had to rely on others in their own moments of need.

Yes, indeed, Biden has shown that he can "rely on others" — a law review author, Neil Kinnock, Hubert Humphrey, and Robert F. Kennedy among them — during his own "moments of need," but how is that a good thing? And what on earth does that have to do with the kind of loyalty he'd show as a vice president?

Obama is choosing Biden for foreign policy and national security gravitas, and Biden does have many years of experience on the Senate Foreign Relations Committee. But military acumen? Consider this, also revealed back in 1987:

The file also included Mr. Biden's transcript from his days as an undergraduate at the University of Delaware. In his first three semesters, his grades were C's or D's, with three exceptions: two A's in physical education courses, a B in a course on ''Great English Writers'' and an F in R.O.T.C. The grades improved somewhat later but were never exceptional.

Yeah, that's the way to counter a war hero like McCain — pick someone who flunked his course in the Reserve Officer Training Corps!

So what else besides lying, cheating, and flunking classes is Joe Biden famous for? Well, I guess he could point to his most conspicuous Senate accomplishment — championing legislation favored by his home-state's large concentration of credit card companies to make it significantly harder for Americans to discharge their debts through bankruptcy. I expect we won't be hearing much about that legislative accomplishment, though, from the Obama-Biden '08 campaign.

For the grumpy old man to win, Obama needs to make mistakes that reveal his inexperience and poor judgment. In picking Biden, Obama's just made another — a huge one whose importance will become increasingly clear as the campaign progresses.


UPDATE (Sun Aug 24 @ 12:40am): AllahPundit has the whole C-SPAN clip. In addition to claiming he has a higher IQ than the questioner (unprovable either way without getting test scores for them both) and lying outright about his law school class rank, Biden insisted that he had three degrees from college (when in fact he had only one, albeit that with a double-major). He claimed to have been recognized as the "outstanding student" in his college political science department, when in fact he had only been nominated for an award (which he didn't win). And Biden claimed to have had a full academic scholarship to law school, when he actually had only a half-scholarship based on financial need.

Posted by Beldar at 12:45 AM in 2008 Election, Law (2008), Mainstream Media, Obama, Politics (2008) | Permalink | Comments (9)

Friday, August 22, 2008

Obama's belatedly acknowledged case comment in the Harvard Law Review raises questions about his campaign's fundamental honesty

On June 23, 2008, prompted by what I thought was a poorly researched and incomplete article by Jeffrey Ressner and Ben Smith on the Politico website, I wrote a post entitled Why Didn't Obama Publish anything in the law journal he edited? The key passage from the Ressner and Smith article, at least for purposes of my own post, was this one:

One thing Obama did not do while with the review was publish any of his own work. Campaign spokesman Ben LaBolt said Obama didn't write any articles for the Review, though his two semesters at the helm did produce a wide range of edited case analyses and unsigned "notes" from Harvard students.

Although I have no first-hand knowledge of the Harvard Law Review's practices, either then or now, my own experiences as an editor at the Texas Law Review in the late 1970s made me intensely curious as to whether this statement was accurate, and if it was, how Obama had managed to become the president of the Harvard Law Review (a position elsewhere called editor-in-chief) without publishing anything of his own.

Now the same two reporters — albeit with their names in reverse order, if that means anything — have published an article entitled Exclusive: Obama's lost law review article. (Note to self: Next time I discover that I've screwed up big-time in a post, be sure to include the notation "Exclusive!" in the title of my correction.) From this article, it appears that the same Obama campaign spokesman, Ben LaBolt, has now confirmed that Obama authored a "case comment." It was published in volume 103 of the HRL, at page 823 of its January 1990 edition (which may or may not have actually been released during that month, since the actual publication dates of many law reviews sometimes run months behind their schedules). In it, Obama analyzed an Illinois Supreme Court case which held that a fetus has no tort rights to sue its mother for money damages for injuries sustained due to the mother's alleged negligence.

I've obtained a copy of the comment and I'll read it and the underlying case some time this weekend, after which I may or may not have substantive observations about them. For now, what's surprising — and frightening — to me is the Clintonesque word-parsing and dissembling that the Obama campaign has engaged in.

Even most lawyers — the large majority of whom manage to graduate from law school, pass the bar, and practice law without having been members or editors of student law reviews — probably don't distinguish closely between the various names that can be applied to what's published in those journals. And certainly the general public isn't likely to distinguish between faculty-written "articles" or student-written "case notes," "case comments," or simply "notes" — all of which are categories that the reviews sometimes use (albeit without a great deal of consistency from place to place or time to time).

In the parlance of TLR editors in the late 1970s, which is all I can speak to with authority, we considered a "case note" to be something very short, possibly no more than a couple of paragraphs, which described the ruling of a recent important appellate decision, without much analysis and without any reference to other cases or academic writing. It typically would have no footnotes or citations to anything but that one case. "Case comments" would still focus almost exclusively upon a single recent decision, but might be longer, include more analysis, and cite other cases or academic sources; that's how we'd have described what Obama apparently wrote. And "notes," in our usage, were wide-ranging pieces that might or might not have been inspired by one or more recent appellate decisions; they were intended to focus instead on a broad topic; and except for the fact that they were written by students and generally published in the middle of each printed journal issue, such "notes" were functionally indistinguishable, in scope and aspiration, from the "articles" that were written by faculty members (or, occasionally, judges or practitioners) and that tended to appear at the front of each printed journal issue. In earlier years, maintaining one's membership on the TLR required writing two case notes, or a case note and a case comment. But by the late 1970s, we'd abandoned those shorter pieces, and instead required each member to write at least one publishable-quality "note" to remain a member. And our student notes were attributed to their writers by name, in contrast to the Harvard tradition, which I presume is intended to imbue each student work with the institutional prestige of the entire journal.

For LaBolt and — by implication — his principal, Barack Obama, not to have been guilty of an intentional attempt at deception in their earlier communications, they must contend with a straight face that they believe the voting public to be intimately familiar with these sorts of distinctions, such that when they specifically denied that Obama had written and published any "articles" while president of the HLR, the voters would understand that to leave open the possibility that he'd written and published an unsigned "case comment" before he attained that official position. On this point, Smith and Ressner now write:

When Politico reporters working on a story about Obama's law review presidency earlier this year asked if he had written for the review, a spokesman responded accurately — but narrowly — that "as the president of the Law Review, Obama didn't write articles, he edited and reviewed them."

The case comment was published a month before he became president.

"Accurate"? At a minimum and at best for the campaign, LaBolt's earlier answer was nonresponsive to the question asked. And at a minimum and at best for the campaign, it was equally as misleading to the general public as was Bill Clinton's sworn insistence that "there is no sexual relationship" with Monica Lewinsky, a lie he later tried to defend by insisting that "It depends on what the meaning of 'is' is."

Even Obama apologist Noam Scheiber at The New Republic can't quite bring himself to swallow this dissembling:

I understand the impulse to sit on these old writings — you don't want every Jerome Corsi character out there combing over them for details they can grossly distort and package into a work of fiction. But at some point — and I think the Obama campaign got there in this case — the evasiveness gets out of proportion to the significance of the document and becomes a little self-defeating.

Only a true believer in The One could characterize his lying about his past — when the fact of his lying is capable of being proved both by documentary evidence and other witnesses with first-hand contradictory information — as only "a little self-defeating."

I have no hope or expectation that this particular attempted deception and concealment by the Obama campaign will affect many voters. Nor do I expect many voters to be swayed by the substance of what he's now finally admitted to having authored. But I remain hopeful, and cautiously optimistic, that the collective common sense of American voters may be swayed sufficiently at the margins by this and similar indicia of Obama's fundamental untrustworthiness. "Slick Barry" is at least as big a con man as "Slick Willie" ever was (and remains, for that matter).

Posted by Beldar at 09:02 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (4)

Sunday, July 06, 2008

The important point that Kennedy v. Louisiana proves about Boumediene v. Bush

This is a post in which I attempt to connect some dots between two awful Supreme Court decisions. As usual, I meander a bit en route. You can skip to the numbered paragraphs and the bold-faced stuff near the end if you grow impatient.


Friday night, on the anniversary of our nation's independence, I much enjoyed the televised presentation from Washington of the Marine Drum and Bugle Corps and the National Symphony playing a series of John Phillip Sousa marches. Some of them — "The Washington Post" and "Semper Fidelis," and of course "The Stars and Stripes Forever" — I still have (mostly) memorized from my trumpet-playing days in the Longhorn Band during college and law school. Thus, the fingers on my right hand twitched as I listened, and in my imagination at least, I could still hit and hold all the high notes, and my double- and triple-tonguing was immaculate. I'm a fan of many, many types of music, and that includes marches like Sousa's written for the classic military band.

Inevitably, I was reminded of the old cliché: "Military justice is to justice as military music is to music." Military music and military justice are splendid indeed, and their learned practitioners are certainly worthy  of respect. But they aren't to everyone's taste, and (to pick another artistic metaphor) they tend to be rendered on a more limited shape and size of canvas, using a more limited palette of colors. Sousa isn't famous for emotional violin solos or jammin' electric lead guitar riffs.


I'm reasonably certain that I never heard a single professor do much more than briefly mention the Uniform Code of Military Justice while I was at law school or taking my bar review course. I've never been in the military, and I lack the special legal training that military lawyers receive when they join any service's Judge Advocate General's corps. The bits and pieces I know come from a couple of real-life cases back in the early 1980s and the mid-1990s that required me to dip a civilian toe, as consulting civilian counsel, into the edges of those waters (to switch metaphors once again). One of those cases involved allegations that a male Army officer had raped a female Army officer, and the other involved a homicide among enlisted personnel that may or may not have been criminally culpable. Both cases potentially involved capital charges — indeed, the alleged rape case also involved allegations of oral sex, which was treated as "sodomy" under the UCMJ at the time and was also potentially a capital crime. Even all these years later, taste and privilege issues still prevent me from going into more detail about either case, even though each was among the most fascinating I've ever seen. But regarding military law in general and the UCMJ in particular, I'm perhaps a step ahead of the average American civilian courtroom lawyer or judge in that I'm quite confident about how little I know that I would indeed need to know to be an effective JAG lawyer on a regular basis.

I'm therefore completely unsurprised that in connection with the Supreme Court's decision late last month in Kennedy v. Louisiana, both sides, all the amicus briefs, and all nine Justices and their respective law clerks missed the 2006 passage of an amendment to the UCMJ which made child rape potentially a capital offense. Probably none of those lawyers themselves had been JAG lawyers, nor had they dealt with UCMJ capital cases, and they just didn't think to look at that unique and slightly obscure subset of American jurisprudence through which Congress directs our military forces how to maintain their own system of justice in parallel to the civilian justice system. Yes, someone should have thought of it; yes, it's embarrassing to them all that nobody did.

No less than the editorial board of the Washington Post now urges the SCOTUS to rehear the case (h/t InstaPundit):

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case — even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

There assuredly will be a motion for rehearing filed, and even if there's not, the Court could consider reconsidering the case on its own, sua sponte. But only a naïve wanker would expect the Emperor of America, Mr. Justice Anthony Kennedy, or any of the other four Justices who joined his opinion for the majority, to actually change their votes. At most, those five will permit limited supplemental briefing by both sides. There won't be additional oral argument. And in short order, Justice Kennedy will write a short supplemental opinion. It will announce the denial of rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Regular readers will know that I'm a strong proponent of the death penalty for appropriate cases. Were I a state legislator, however, I probably would not support its imposition for any sort of rape case. But nobody's elected me to a state legislature, and a majority of the state legislators of Louisiana, along with its then-governor, came down in favor of giving juries the option of imposing the death penalty for the most egregious child rapes. I condemn this Supreme Court ruling, as I have all of the Supreme Court's recent Eighth Amendment decisions that purport to be based on "evolving standards of decency." That entire line of cases is a transparent lie, and an example of the most pernicious sophistry that lawyers can create: How else but through double-talk and evil magic could the least representative branch of either the federal or state governments strip the most representative branches of their intrinsic power to weigh, and then determine, what community standards are to be, and whether and how they ought to "evolve"? (Insert obligatory references to Orwell and Goebbels here.)

In his confirmation hearings, Chief Justice John Roberts talked repeatedly of the importance of "judicial modesty." In this ruling, as in several others in the past few years, Anthony Kennedy has not only joined but led the liberal wing of the Court down paths of gross judicial immodesty. What was Roberts talking about? He was talking about the exact opposite of what Kennedy's busy doing.

The abundantly plain truth is that rulings like this one come from nothing more or less than Anthony Kennedy's sense of how things ought, in general, to be. He's acting as an emperor, not a judge. And the fig leaves of judicial reasoning in which he's surrounding his decrees become increasingly transparent with each such ruling.


Kennedy v. Louisiana is a clear example of the imperious judiciary, but in the big picture, it's not nearly as important as Justice Kennedy's travesty of a majority opinion this Term in Boumediene v. Bush. In that decison, with no directly supporting precedent and a trampling of such close precedent as was on point, Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer extended American constitutional rights to foreigners held by the American military on foreign soil who are alleged to have engaged in illegal warfare against America entirely from abroad. But even though it lacks international or national security significance in and of itself, Kennedy v. Louisiana does indeed prove an important point about Boumediene and the Justices who decided it — a point that I haven't seen anyone else note yet:

  1. It is impossible to dispute that during the course of this Term, Justice Kennedy and all eight of the other members of the SCOTUS were obliged, by the necessity of making a ruling in Boumediene, to consider the ins and outs, the nuts and bolts, and all of the pros and cons of the comprehensive statutory system — passed by majorities of both houses of Congress and then signed by the president — for the express purpose of providing both substantive and procedural justice to the detainees held at Gitmo and elsewhere during our nation's waging of the Global War on Terror.

  2. That system was expressly modeled upon, and in most of its substantive and procedural complexities it adheres to, the Uniform Code of Military Justice.

  3. Every member of the Court, and every one of their law clerks and staff members — including each of the five Justices in the Boumediene majority — have now been conclusively proven by their screw-up in Kennedy v. Louisiana to be utterly ignorant of even such important details about the UCMJ as what crimes under it are punishable by death.

Friends and neighbors, the same Justice Kennedy who's been shown a fool on UCMJ matters in the civilian Kennedy v. Louisiana case could not help but be equally a fool on remarkably similar matters in Boumediene v. Bush. Five of the same Justices who didn't know enough about the UCMJ to know that it currently allows for capital punishment for child rapes nevertheless felt righteously, omnipotently competent to plunge themselves and the rest of the civilian federal courts into overturning — and then taking over, via their habeas corpus powers — the UCMJ-based system for determining the fates of these military prisoners.

The emperor is not only naked — he's now shown himself to be capable of stupid and ugly acts, too.

Posted by Beldar at 05:47 PM in Global War on Terror, Law (2008), SCOTUS & federal courts | Permalink | Comments (10)

Friday, June 20, 2008

McClellan, Conyers, WaPo, and AP vie for prize for "Most Disingenuous" in Plamegate testimony and "news articles" that never mention the name "Armitage"

You're watching absolutely false conventional wisdom being repeated over and over again, folks, until only us few with more than 50 functioning neurons and the willpower to resist propaganda actually remember the truth.

Without a transcript, I can't be certain that no one mentioned Richard Armitage's name at any point during the hearing. But if neither Conyers, nor McClellan, nor anyone else did, that itself would have been newsworthy!

You cannot write this story with a shred of journalistic integrity without using the name "Armitage." It can't be done.Nevertheless, I firmly expect that by this time tomorrow, most or all of the other members of the mainstream media will have qualified for this particular "Most Disingenuous" prize along with the AP and WaPo.

Question for the weekend: Will Mr. Armitage write the AP and WaPo demanding a correction that gives him due and just credit as the leaker?

Posted by Beldar at 05:13 PM in Law (2008), Mainstream Media, Politics (2008) | Permalink | Comments (6)

Saturday, June 14, 2008

Boumediene isn't a rebuke to Bush, but a judicial grab of power over war from the Executive and Legislative Branches

Some people seem to think the current question about the detainees at Gitmo is whether Dubya can simply lock them up and throw away the key without ever giving any of them any sort of trial.

For example, in comments to my post from Thursday deploring the Supreme Court's decision in Boumediene v. Bush, one reader wrote:

The Supreme Court has simply said that we have to demonstrate that there is some legitimate reason for continuing to hold them now and you call that the worst Supreme Court decision ever??

Similarly, another reader commented:

One of the most conservative courts in history has simply said that Bush&Co. cannot abrogate the most fundamental part of the rule of law, the right to be charged with crimes instead of being held indefinitely, in presidential frat boi pique.

These comments are not just wrong, they are spectacularly wrong.  No one could possibly hold these views unless he or she is badly confused by a highly advanced stage of Bush Derangement Syndrome, or else he or she has been asleep for the last five years (and didn't bother to get even remotely up to speed on the prior Supreme Court decisions on Guantanamo Bay detainees).

These commenters seem to be unaware that, in direct response to earlier suggestions from the Supreme Court, a bipartisan majority of Congress carefully crafted a system that balanced national security concerns against the need to provide fair, just hearings for these detainees.  By no means did Congress rubber-stamp what the Bush-43 Administration suggested.

The resulting system closely resembled, and explicitly drew heavily from, the legal system already in place via the Uniform Code of Military Justice for our own servicemen and -women who are accused of crimes. The resulting statutes thus represented the will of the people as expressed through both of the elected branches of government, which — not coincidentally — are also the two branches of government given substantial responsibility by the Constitution with the declaring and conduct of war.

Nobody was going to be "held indefinitely" under this system. To the contrary, under the statutory provisions swept away as "unconstitutional" by the Court this week, the government most emphatically did have to prove a formal case to establish reasons why each detainee should continue to be held.

This is not a subject on which reasonable minds can differ. Anyone who refuses to acknowledge that Congress created, and the president signed, laws creating an elaborate system for trying these detainees is, to be very blunt about it, stuck on stupid.  Please, please, please quit mindlessly repeating the anti-Bush screed of the Hard Left from 2004 — get with the program and at least update your screed to the current version being preached by Bush-haters in 2008. Even then, you'd need to include in your screed the dozens of Democrats in both the House and the Senate who voted for the legislation declared unconstitutional this week.

Look, folks, this wasn't really about George W. Bush. He'll head back to Crawford in January, but this problem won't be remotely close to being resolved by then. Rather, this case is about whether, and to what extent, the federal courts can fly-speck and then overturn both the Executive and Legislative Branches on matters that are absolutely central to the prosecution of war by our military forces. If you can only see this through anti-Bush goggles, you're blinding yourself to what's important.


UPDATE (Mon Jun 16 @ 1:10pm): As to the two commenters whom I've blasted for misstating the fundamental issues in Boumediene, I'm not sure whether the following quote mitigates their offense or not. But it certainly proves that the Democratic nominee for president is at least equally clueless:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

Obama has no excuse for failing to know that the Military Commissions Act of 2006 in fact provides procedural and substantive protections to the Guantanamo detainees which meet or exceed those which were provided the Nuremberg defendants in their trials by the four-powers military commissions (in which the defendants were most emphatically not guaranteed any rights under the U.S. Constitution, either by habeas corpus petitions or otherwise). Obama voted against that legislation, but one can reasonably presume that he knew what was in it.

Thus, Obama's argument that the detainees would be denied "a day in court" under the MCA is shockingly stupid or shockingly disingenuous. My bet is on the latter: He wants people to be misled over the issues in this decision; he wants to dupe people into the same shallow, entirely erroneous point of view from which my commenters suffered. And the carefully considered statement on Obama's website supports my inference as to his intentions: "The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo — yet another failed policy supported by John McCain." If you cannot trust this man to even state the issues accurately, can you trust anything about him?

Posted by Beldar at 11:24 PM in Global War on Terror, Law (2008), SCOTUS & federal courts | Permalink | Comments (18)

Thursday, June 12, 2008

SCOTUS disgrace: Foreign terrorists captured abroad held to have same rights under U.S. Constitution as U.S. citizens

It's a sad, sad day for our country. A majority of the members of the United States Supreme Court have shown themselves unable to distinguish between an existential military struggle — quite literally, a war over the very existence of western civilization — and ordinary street crime committed by U.S. residents wholly within America. The obvious and inevitable consequence of today's Supreme Court decision will be that terrorist killers presently in captivity, captured at the cost of American soldiers' lives and limbs, will be released instead of punished, and they will return to killing both Americans and others again.

The Supreme Court ruled today that terrorists who are citizens of foreign countries, who have never set foot within the United States, and who have systematically forfeited all the protections of the organized laws of warfare that would entitle them to be treated as prisoners of war, are, when captured on foreign battlefields by the U.S. military, nevertheless entitled to access to the federal court system of the United States — in most essential respects, exactly as if they were lawful, taxpaying citizens born here, raised here, and arrested here by the domestic police for alleged crimes committed here.

If Osama bin Laden, wearing no uniform, surrounded by children as human shields, and in mid-stroke while he's sawing the head off a captured American nurse, is captured by American soldiers tomorrow in Pakistan or Afghanistan, then his rights to use the federal writ of habeas corpus to guarantee him the protections afforded by the United States Constitution will be, so far as I can determine, indistinguishable from my own if I were arrested at my home by the Houston Police Department on a warrant for overdue parking tickets.

The Supreme Court has so ordered notwithstanding the fact that the people's lawful representatives — through statutes passed by their Congress, and signed into law by their president — had otherwise decreed. Instead, five members of the Supreme Court have set themselves up above the rest of the people and government of the United States of America, and they have proclaimed that even acting together, the Congress and president lack the constitutional power to make other provisions for these foreign barbarians and monsters captured on foreign battlefields while trying to destroy America and everything related to it. In the measured words of Chief Justice Roberts' dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation.

And in the more fiery dissent from Justice Scalia:

THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires [i.e., beyond the Supreme Court's own power].

Make no mistake about it: This was a naked, arrogant power grab of wartime, war-fighting power by the liberal wing of the Supreme Court. This is Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer doing their dead-level best — not to protect you and me from the terrorists, but to protect the terrorists and to prevent Congress and the president from protecting you and me!

The readily foreseeable, and indeed inevitable consequence of this decision is that the United States government — when forced to fight a military war as if it were street crime, and when forbidden to punish war criminals unless it can comply with the full range of procedural safeguards from our domestic criminal justice system — will have to release captured terrorists who will then immediately return to killing. Their victims will be not just American soldiers, but innocent civilians of every nationality and religion (including Muslims). Again from Justice Scalia's dissent:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

This decision is a disgrace and a travesty. It's awful law and even more disastrous policy. It's the single worst decision of the United States Supreme Court in my lifetime, and quite arguably its worst in American history. It can't be sugar-coated. It can't be minimized. In all probability, it can only be thoroughly undone by a constitutional amendment, or by a pronounced change in the membership of the Court that will deprive the liberal wing of a crucial fifth vote in such cases and open the possibility of this decision being overruled.

(There is, still, a chance that Congress and the president could sidestep the decision by formally invoking the Suspension Clause based on the invasion of 9/11, and I think Pres. Bush should immediately propose such legislation, so that it becomes a campaign issue in November races for both Congress and POTUS if Congress doesn't promptly go along. But Congress and the president ought not have to "suspend" habeas corpus rights for foreign terrorists who never, ever in American history have been construed to have them in the first place.)

John McCain says he will appoint Supreme Court Justices in the mold of the four Justices who dissented. Barack Obama admits he will appoint more Supreme Court Justices in the mold of those in today's majority — which means Justices who are eager to seize this sort of power from the American people and their elected representatives, claiming a constitutional entitlement to run this country. There is no difference between the two candidates remotely as stark as this one, and I don't think there is any difference that is more important.

Our enemies will never defeat us. We have the power to defeat ourselves, however, and today's decision by the Supreme Court is a terrible, tragic step toward such a defeat. What will you do in November? Will you help accelerate these judicial power-grabs? Or will you help reverse them?

Posted by Beldar at 03:42 PM in 2008 Election, Global War on Terror, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink | Comments (49)

Sunday, June 08, 2008

Texas CPS workers interviewed on FLDS intervention

In a comment to my last post on the FLDS polygamy/child abuse controversy, regular reader and commenter DRJ left this link to a San Angelo newspaper's interview with some of the Children's Protective Services workers who were involved in the initial intervention at the Yearning for Zion ranch and who continue to be involved in the on-going investigation. Their viewpoints haven't much been heard, and I agree with her that they deserve to be, at least to the limited extent that they can speak out now without discussing individual pending cases. A sample:

"We have to back it up with fact," said special investigator Paul Dyer. "That's what we're doing. What you may read in the newspaper or see on the television — that's not necessarily supported by fact. Our investigation is and will be supported by fact."


For Dyer and fellow special investigator Eric Sanders — retired law enforcement officers who work on investigations and often serve as protection for female caseworkers — the wait that night was especially tense.

Jessop would allow only women into the compound. The men, waiting outside the gate with law enforcement and other CPS employees, slept in cars, walked outside and fidgeted while lightning flashed ominously in the black night.

Inside, according to Voss' testimony at an en masse hearing two weeks later and signed affidavits filed by CPS, the investigators ran into resistance — changing birthdates, coached answers, missing or shredded documents.

Distrust had already been high. The sect waited four hours before allowing law enforcement and CPS — which had a court order signed by 51st District Judge Barbara Walther — through the front gates, negotiating the terms of their entrance.

Even participating in such a negotiation was highly unusual, but the agency felt compelled to be as respectful as possible to the sect's wishes, [CPS investigator Ruby] Gutierrez said.

(The "Paul Dyer" referenced and quoted in the article is, so far as I know, no relation to me.)

DRJ had earlier linked an interesting article regarding Texas "Ranger Capt. Barry Caver, the lawman who led the Eldorado search, handled the Republic of Texas incident, and was the [very frustrated] Texas Ranger liaison with the federal agents in Waco." From that one:

Caver and the 22 other Company E Rangers in 43 [west Texas] counties ... had known for four years Eldorado would one day be trouble because of now-imprisoned polygamist leader Warren Jeffs' reputation.

"It was just a matter of when," he said. "We'd been trying to develop relationships with them so we would know who to talk to. But we had no idea how many were in there. We had thought maybe 150, not 600-700. It was overwhelming."

There are almost always at least two sides to every story. Here, there may be dozens and hundreds of sides. In due course, each of them should be heard, because every one of these children and families matter.

Posted by Beldar at 05:29 PM in Current Affairs, Law (2008) | Permalink | Comments (13)

Wednesday, June 04, 2008

Obama friend, client, contributor, and home-purchase benefactor Tony Rezko convicted on 16 of 24 corruption counts

Like this was a big surprise to anyone who's been paying attention:

Convicted fraud Tony Rezko (ChiTrib photo)A federal jury today convicted developer Antoin "Tony" Rezko of corruption charges for trading on his clout as a top adviser and fundraiser to Gov. Rod Blagojevich.

Rezko's guilty verdict on 16 of 24 corruption counts could have broad repercussions for Blagojevich, who made Rezko a central player in his cabinet. It could also prove a political liability for U.S. Sen. Barack Obama, who once counted Rezko as a friend and fundraiser, as the likely Democratic presidential nominee heads into the general election campaign against Republican John McCain.

Here's how the WaPo's David Ignatius charitably summarized the Rezko-Obama relationship in April (ellipsis by WaPo):

Obama met Rezko in the early 1990s as he was finishing up at Harvard Law School. Rezko was well connected in Chicago's African American community, in part because he had worked with Jabir Herbert Muhammad, the son of Nation of Islam founder Elijah Muhammad, when he was managing the career of boxer Muhammad Ali, according to a May 2005 profile in the Chicago Tribune.

Rezko moved into real estate and political fundraising, often a combustible combination in Chicago. Rezko offered Obama a job with his real estate company soon after they met, but Obama declined. When Obama decided to run for the state Senate in 1995, Rezko was his "first substantial contributor," according to the Tribune. That money relationship continued, with Rezko raising as much as $250,000 over the course of Obama's five Illinois races, reported the Chicago Sun-Times.

The friendship may have reflected the fact that both men were outsiders, trying to establish themselves in the rough-and-tumble world of Chicago. Obama told the Sun-Times last month: "My assessment of Tony Rezko was that he was an immigrant who had sort of pulled himself up by his bootstraps.... I think he saw me as somebody who had talent, but he was probably also intrigued by my international background."

Part of what Obama says he liked about Rezko was his graciousness: "He never asked me for anything."

The relationship became controversial because of the now-famous home-purchase deal: When Obama and his wife bought a $1.65 million house in Chicago in June 2005, Rezko's wife simultaneously bought the adjoining lot and later sold part of it to the Obamas so that they could have a bigger yard.

Obama conceded in an interview with the Chicago Tribune last month that in the real estate deal, "I made a mistake in not seeing the potential conflicts of interest or appearances of impropriety." He said of Rezko's motivation in the purchase of the adjoining lot, "He perhaps thought that this would strengthen our relationship. He could have even thought he was doing me a favor."

What's troubling about this story is that at the time Obama bought the house in June 2005, allegations had already surfaced about Rezko's alleged influence-peddling.

(Yeah, right: "He never asked me for anything," nyuk nyuk. Neither did Don Corleone, who instead said only, "Someday, and that day may never come, I'll call upon you to do a service for me. But, until that day, accept this justice as a gift on my daughter's wedding day." Graciousness, indeed.)

What's also "troubling" about this story is that Rezko's simultaneous purchase from the same sellers was at its full $650k asking price, whereas Obama got a $300k discount off the $1.95M asking price for his house. Oh, Rezko and the sellers of course deny that Rezko overpaid so Obama could underpay. (To admit that sort of oral quid pro quo almost certainly would have gotten everyone, including Obama, convicted of fraud in connection with the mortgage Rezko's wife took out.) But we're supposed to believe (as good little suckers) that the professional real estate mogul, the slumlord, couldn't manage to knock as much as $1000 of the asking price of the property his wife bought — indeed, doesn't even claim to have tried to — while clever, sophisticated Barack and Michelle simultaneously negotiated a $300k price drop from the very same sellers. Yeah, right.

Realistically, the whole set of transactions stink (look at the property layouts as shown in the video linked here) — and indeed, they smell exactly like a six-figure hidden cash contribution by a well-connected, now-convicted influence peddler directly to the Obama family. Note: two of Rezko's convictions are for money-laundering, a crime very typically committed through fraudulent, collusive, but hard-to-prove mis-evaluations of property values.

Ignatius also left out the part — famously used as a debate zinger by Hillary Clinton — about Obama's law firm defending slumlord Rezko in lawsuits against his slum-residing tenants. Doncha know Hill and Bill are cussin' the Rezko jury, though — not for their result as such, but for not reaching it before yesterday?

(Congrats, by the way, to U.S. Attorney Pat Fitzgerald and his staff. Righteous work, folks.)


UPDATE (Wed Jun 4 @ 8:25pm): And this is no surprise, either:

"I'm saddened by today's verdict," Obama said in a statement. "This isn't the Tony Rezko I knew, but now he has been convicted by a jury on multiple charges that once again shine a spotlight on the need for reform."

Fooled! Fooled once again! Golly, Sen. Obama, how good a judge of character do you claim to be? Is there anybody you've associated with for the last couple of decades who you actually do know?

Posted by Beldar at 05:42 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (17)

NYT: Obama stands "calm in the swirl of history"; also time-travels, but makes no time for clerkship and little time for practicing law

In a fawning news article by Michael Powell, the New York Times today describes Barack Obama as "a protean political figure, inspiring devotion in supporters who see him as a transformative leader even as he remains inscrutable to critics." The basic facts of his biography, however, such as they are, are apparently also inscrutable even to adoring reporters from the NYT.

In the article's fourth paragraph: "He turned down a prestigious federal appellate court clerkship while at Harvard to work as a community organizer." And then later, in more detail:

Abner J. Mikva, the former judge, asked Mr. Obama, fresh out of Harvard, to apply as his clerk. Mr. Obama declined, preferring to labor as a community organizer. But, characteristically, he later befriended the older man.

The problem with this is that Obama's "community organizer" days preceded his Harvard Law School days. And after graduating from Harvard Law, Obama went to work at least nominally as an associate attorney at the small Chicago law firm then known as "Davis, Miner, Barnhill & Gallard," with which he continued to be affiliated in a more limited capacity throughout his Illinois Legislature tenure up until his U.S. Senate run in 2004. [Update: But see my update below, re 1991-1993, during which it appears that Obama probably temporarily returned to activities that could qualify as a "community organizer" even after getting his law degree and law license. Mea culpa (although I had some help in making this mistake).]

I say "at least nominally" because that "law firm says Obama logged 3,723 billable hours during his tenure from 1993 to 2004, most of it during the first four years." Even Obama's civil rights or other "public interest" legal work would have been logged — such lawsuits always seek awards of attorneys' fees, and you can't get them unless you've logged the hours, even if your clients weren't paying you out of pocket. But that's fewer hours than would typically be logged in two years by almost any young associate at almost any big-city for-profit law firm. Supposedly Obama took time off to work on his first autobiography. But it's still hard to see how he can be described as ever having been more than a part-time, not-very-serious lawyer, at least based on those numbers and the very vague descriptions of his legal work provided in his books or in news articles like this one.

Look, it's not like the guy has held a whole lot of responsible jobs. That not even his hagiographers at the New York Times can keep them straight also suggests that there's also a lack of substance to the jobs Obama purports to have held. It's either that or, gosh, he's so "transformative" that he can time-travel.


There's also something a bit hinky about the judicial clerkship Obama so nobly turned down.

I do not doubt that Obama, as a magna cum laude graduate and president of the Harvard Law Review, could have landed a prestigious federal circuit court clerkship upon his graduation in 1991. Indeed, those credentials would typically lead to clerking for a prestigious circuit judge and, in the second year following graduation, a Supreme Court clerkship. And Judge Mikva, a Carter appointee from 1979, was by 1991 the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit. An opportunity to clerk for him would indeed have been much coveted.

But the normal protocol is that students make written applications for such judicial clerkships. The unwritten understanding is that law students aren't supposed to apply to any judge from whom they wouldn't immediately accept a position if tendered. (I.e., no student is supposed to answer "no" to a clerkship offer.) So did Obama apply, get an offer, and then turn Chief Judge Mikva down anyway? Or was Obama, as the first black president of the HLR, already such a rock-star in legal-academic circles that he received an unsolicited offer from Judge Mikva?

(A third possibility, I suppose, is that Judge Mikva had a "standing offer" to every year's HLR president. I've heard of such arrangements, but I don't know if Judge Mikva indulged in them; and my impression was even such judges who do have such arrangements still prefer that the students go through the formality of submitting an application.)

I don't doubt that Obama and Judge Mikva later became friends, since both were non-tenure track instructors at the University of Chicago Law School later in the decade. And Mikva was a very political lawyer who later served as White House Counsel for the Clinton Administration, so it's not inconceivable that he might have been more than casually receptive to career tracks like Obama's.

Perhaps my suspicions are unfounded, and they're just a product of my surprise that someone with law school credentials bespeaking extraordinary legal talent apparently chose never to use that talent in any really significant way. I'm personally unsympathetic to the notion that turning down the clerkship was so noble: I clerked for a federal circuit judge in 1980-1981, and without exception, every lawyer I know who served as a law clerk to a federal judge feels that he or she rendered a valuable public service by so doing, almost certainly greater in scope than what we could have done even at a "public interest" law firm. Given his political sympathies, the idea that he could have done more "good" working for a small Chicago firm during his first year out of law school than he could have while working for a liberal judge like Mikva is pretty hard to swallow. But suffice it to say that Obama's achievements as a practicing lawyer appear to be even thinner than his achievements as a state or federal legislator.


UPDATE (Wed Jun 4 @ 6:50pm): Or did the NYT get it right after all? I hate to make mistakes in posts, but when I do, I'd rather catch and admit them myself.

The descriptions I'd previously read of Obama working as a "community organizer," and certainly his experiences in that role as told in his first book, Dreams from My Father, all focus on 1985-1988. But Obama's Wikipedia entry currently says, of his immediate post-law school activities, only this: "Obama graduated with a J.D. magna cum laude from Harvard in 1991, then returned to Chicago where he headed a voter registration drive and began writing his first book, Dreams from My Father, a memoir published in 1995." In turn, it references this article from Chicago Magazine in January 1993 about his work in a voter registration drive in 1992. If that also counts as "community organizer" — and I suppose it could, since that job description could mean almost anything — then perhaps he returned to that vocation, briefly, after law school:

Carol Moseley Braun's upset primary victory over Alan Dixon last March [i.e., March of 1992] altered [Project Vote! founder Sandy] Newman's feelings. "It's not that I wanted to influence the Senate race," Newman says. "Project Vote! is nonpartisan, strictly nonpartisan. But we do focus our efforts on minority voters, and on states where we can explain to them why their vote will matter. Braun made that easier in Illinois." So Newman decided to open a Cook County Project Vote! office and went looking for someone to head it.

The name Barack Obama surfaced. "I was asking around among community activists in Chicago and around the country, and they kept mentioning him," Newman says. Obama by then was working with church and community leaders on the West Side, and he was writing a book that the publisher Simon & Schuster had contracted for while he was editor of the law review. He was 30 years old.

When Newman called, Obama agreed to put his other work aside. "I'm still not quite sure why," Newman says. ''This was not glamorous, high-paying work. But I am certainly grateful. He did one hell of a job."

In that case, it's the LAT instead of the NYT who's confused (and partly responsible for my confusion), because of this statement in its April story about Obama's work as a lawyer: "Obama arrived in Chicago in 1993 with a degree from Harvard Law School and was hired as a junior lawyer at the firm then known as Davis, Miner, Barnhill & Gallard."

The remainder of my confusion can be sourced to Obama's own biography page on his campaign website, which doesn't deign to use many actual dates: "He went on to earn his law degree from Harvard in 1991, where he became the first African-American president of the Harvard Law Review. Soon after, he returned to Chicago to practice as a civil rights lawyer and teach constitutional law." No mention there of a temporary return to "community organizer" status either.

I do know that Obama was licensed in Illinois in December 1991, from which we can confidently infer that he took and passed the summer 1991 bar exam. Beyond that, however, commenters are welcome to provide more info, especially if accompanied by links.

Posted by Beldar at 03:05 PM in 2008 Election, Law (2008), Mainstream Media, Obama, Politics (2008) | Permalink | Comments (6)

Thursday, May 29, 2008

Texas Supreme Court points to less disruptive protections available for FLDS children

This afternoon, the Texas Supreme Court denied a request made by the Texas Department of Family and Protective Services to overturn last week's ruling by the Austin Court of Appeals in the polygamy/child custody dispute involving the Fundamentalist Church of Jesus Christ of Latter Day Saints and their Yearning for Zion Ranch.

The mainstream media and some legal pundits and commenters (see, e.g., here) may play this as another big loss for the Department. But in fact, the Texas Supreme Court gave the Department (and the lower courts) some badly needed suggestions and guidance, and clearly signaled that more carefully tailored relief may still be appropriately granted at the trial court level even on this vastly incomplete record. And while it presumably needs to move swiftly, the Department does not necessarily have to immediately return all the children with no strings attached as the trial court considers those alternatives.

Smart people (including smart lawyers) of goodwill are finding themselves on opposite sides of these issues — as evidenced by the 53 comments so far on my previous post on the controversy. I'm going to pat myself on the back a bit, though, for predicting last weekend pretty much where the Texas Supreme Court would come out today:

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.

In a subsequent comment, I went further out on the limb: "I don't think the Texas Supreme Court will reverse the Austin Court of Appeals." And in another comment, I went even further and got more specific:

[N]otwithstanding the Austin Court of Appeals' mandamus ruling, there are still lots of options available to the Department and the trial court short of returning unencumbered custody of even the relators' children back to them. I think I've read (but can't immediately find a link to back up) that those particular children are being returned conditioned upon them not being returned to the compound, but instead with a requirement that the families reside under supervision in the San Antonio area. Depending on the degree of supervision, that might lessen the flight risk substantially.

Moreover, the Department may not, and ought not, treat the court of appeals' ruling as binding across the board to families who weren't relators. For those with pubescent female children, the Department might stand tough on the existing orders, and/or seek rehearing at the trial court level with more particularized evidence.

Now it turns out that a majority of the Texas Supreme Court sees the case pretty much the same way. A fairly short and sweet per curiam (i.e., unsigned) opinion for the court's majority holds:

Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted.

But that holding emphatically does not mean that there should be widespread cork-popping of non-alcoholic champagne at the FLDS compound tonight. Without pausing to start a new paragraph, the per curiam opinion plunges into a very overt, very clear suggestion — technically dicta, but as powerful as dicta ever gets! — as to what the Department and the trial court ought to do next (footnotes omitted; boldface mine):

The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The [district] court may make and modify temporary orders "for the safety and welfare of the child," including an order "restraining a party from removing the child beyond a geographical area identified by the court." The [district] court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.

While the district court must vacate the current temporary custody orders as directed by the court of appeals, [the district court] need not [vacate those temporary orders] without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR [suits affecting parent-child relationship] proceedings.

Although the SAPCRs involve important, fundamental issues concerning parental rights and the State’s interest in protecting children, it is premature for us to address those issues.

This is the Texas Supreme Court saying to both the Department and the trial judge: Your baby ducks aren't yet in a row. We understand that you have some pretty persuasive reasons for why that's so, but they still need to be in a row before we'll let you continue separating baby ducks from mommy ducks during the period between now and the final trial of this case. And you probably need more than one row, because not all the baby ducks are the same. So get busy. (And in the meantime, provided you're moving briskly, you don't have to immediately turn all of the baby ducks back over to the flock, especially if they're pubescent female ducks.)

Three members of the Texas Supreme Court wrote separately, concurring in part and dissenting in part, to basically emphasize what I think was the implicit (but clear) message of the majority's per curiam opinion. However, they think the Department has already made an adequate showing with respect to pubescent female children, and would have reversed the Austin Court of Appeals' mandamus order with respect to them. They also were very unsympathetic to the mothers' complaints about the lack of thoroughness in the proof presented to the trial court, given other evidence submitted by the Department as to the interference in its fact-gathering efforts. These three justices thought that such interference and noncooperation justified the Department and the trial court in failing to exhaust less severe remedies than splitting all the children from their parents and putting them into temporary foster care.

That, admittedly, is a minority position. It will function as a pat on the back to the Department and the trial judge, but that and $4.75 will buy them each a grande mocha latte at the Starbucks in San Angelo. Nevertheless, it certainly is a counter to those pundits who've characterized this raid and the aftermath in extreme terms, portraying it as basically a mass-kidnapping by a fascist, anti-religious, and completely inept state government.

As for me: Since it did what I predicted, you'll be unsurprised to hear that I think the Texas Supreme Court majority got it just about exactly right — including where it stopped writing. The only thing of which I'm absolutely sure is that nobody in the Texas Legislature, when they were revising the parts of the Texas Family Code that currently make up the chapters on emergency removals and SAPCRs, ever envisioned a proceeding of this scope. Nor were the Department, local and state law enforcement agencies, or the local trial courts remotely prepared to grapple with so many, to and for whom so much is so important.

That this has not been "pretty" so far, in the sense of being well organized and methodical, should surprise no one. Even competent, well-meaning professionals working at the limits of human capacity — on both sides! — have fallen, and are going to fall, far short of perfection as this sorts out. So let's try to limit the demonization and conspiracy theorizing, as well as the smugness (of which I've seen way too much in the blogosphere, including among legal pundits and commenters who damned well ought to know better).

Commenters: Your thoughts continue to be welcome, but please use extra efforts to be civil to one another and to avoid personal attacks. If you have a tie to the case, I encourage you to disclose that. (I have none.)


UPDATE (Thu May 29 @ 7:50pm): Sure enough, here's an example of well-meaning but utter bone-headedness by the Houston Chronicle in their lede on today's ruling:

The state illegally removed more than 400 children from their parents last month after raiding a polygamist sect's West Texas ranch, the Texas Supreme Court said today.

The decision was a stunning victory for a group of the mothers who were represented by legal aid attorneys in their challenge of the largest custody case in Texas history.

And it will make it much more difficult for child welfare authorities to continue their investigation into whether children were abused on the remote compound owned by members of a breakaway Mormon group known for its polygamist practices.

Three breathless paragraphs. All three are wrong.

Working backwards: As I've pointed out in the first part of this post, the main significance of the decision today, and the surprise if there was one, was in the Texas Supreme Court giving the Department and the trial court a roadmap about how to go about granting lesser, more carefully tailored relief.  That makes it rather easier for "child welfare authorities to continue their investigation." Indeed, the Supreme Court pointedly reminded the Department and the trial court that they have so-far-unused remedies for occasions upon which their investigations are interfered with.

This was a victory for the moms, but only a clear victory for the particular ones who were part of the mandamus proceedings, and even for them, it was hardly "stunning." I predicted it, for example, including to the extent that it would actually gratify the Department. Most other pundits and press who were making predictions were, to my knowledge, predicting that the Texas Supreme Court would indeed affirm. Moreover, given what else the Court said today, its ruling makes it rather less likely that even those moms will immediately get back their kids with no strings attached. It's a rather equivocal victory, I'd say, and maybe in the big picture not even that.

Finally, as I pointed out in my prior post, these decisions aren't on whether the seizures of the children were "legal" or "appropriate" or "in good faith" or anything else in the first place. They were on whether the Department has to return the children at the conclusion of the adversary hearing mandated by a completely different subchapter of the Texas Family Code. You can search all you want for the word "illegal" in today's per curiam opinion. It's not there. What the Texas Supreme Court actually said, correctly, is that it is "not inclined to disturb the court of appeals’ decision," which in turn was a decision that "the Department had failed to meet its burden of proof under section 262.201(b)(1)." Section 262.201 is entirely forward-looking, and entirely focused on the interim time period between the adversary hearing (which by statute had to begin within 14 days after the seizure) and a final trial on the merits. It's the "removal" of the children from their parents by the trial court in its orders at the conclusion of the adversary hearing that the Supreme Court found to "not [be] warranted."


UPDATE (Thu May 29 @ 8:22pm): InstaPundit Glenn Reynolds quotes an equally misleading headline from the Austin American-Statesman: "Court: Polygamist sect’s children must go home." Well, yeah, except that's not at all what the Texas Supreme Court actually said, or even very close. I hope he'll look more closely, because this is an interesting case that would benefit from more than just headline-depth analysis. (Especially when the headlines are misleading.)


UPDATE (Thu May 29 @ 10:45pm): This article in the Dallas Morning-News, by contrast, is a good piece of reporting.


UPDATE (Fri May 30 @ 12:35pm): As is unfortunately typical, the Houston Chronicle has now completely rewritten its original news story, and placed the new one at the same URL as what I linked earlier. (When, oh when, will the Chron realize that in the internet age, that sort of hiding the ball and erasing of tracks amounts to gutless, dishonest journalism? But it happens on a daily basis at the Chronicle — whereafter they hide their archived content behind a subscription-only firewall. These are the main reasons why I avoid linking or quoting my hometown newspaper whenever possible.)

The three lede paragraphs I quoted above have disappeared. And among the paragraphs (appropriately) added to the new version — without explanation or excuse for why it wasn't in the original:

It was not clear exactly when the children will be returned and restrictions can be placed on their living arrangements.

CPS attorneys will have to decide whether to go back to court to try to regain custody of some of the children, particularly the underage girls, whose safety has been at the heart of this case.


The court ordered District Judge Barbara Walther to withdraw her order giving the state custody of all the children, who are scattered around the state in group homes and shelters. But it noted that she can place conditions on their return, including requiring them to stay in West Texas and removing alleged abusers from their home.

University of Texas Law Professor Jack Sampson said the ruling gives Walther broad discretion to provide greater protections to teenage girls, and that she can make sure CPS has access to children who are returned to the ranch.

"She has the power to ensure that the kids aren't going back unmonitored," he said.

There's more along those same lines — at least at the moment I write this. (Who knows what will be at that URL this time tomorrow?) But it's not even certain that "returning to the ranch" is in the cards for any of these kids. If I were representing the Department, I'd certainly argue, at least with respect to families containing pubescent girls, that the girls' return to their mothers should be conditioned on the mothers living elsewhere than the ranch for now, and under fairly heavily supervised conditions to minimize the flight risk.

Posted by Beldar at 07:03 PM in Current Affairs, Law (2008) | Permalink | Comments (147)

Saturday, May 24, 2008

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.

Posted by Beldar at 03:31 AM in Current Affairs, Law (2008) | Permalink | Comments (55)

Wednesday, April 16, 2008

Beldar on Baze

Today, in Baze v. Rees, the SCOTUS rejected two capital defendants' challenge to Kentucky's use of the "three-drug cocktail" for administering its death penalty. The vote was seven to two — only Justices Ginsberg and Souter voted to reverse — but no more than three justices agreed on any single rationale for affirming the Kentucky Supreme Court's decision to permit the continued use of this procedure. Instead, the Court produced seven separate opinions spanning 97 pages; only Justices Souter and Kennedy did not write a separate opinion.

Prof. Orin Kerr, blogging at The Volokh Conspiracy, promises a detailed post later, but there are interesting comments already to his quicky preliminary post here. Beldar's own summary (admittedly guilty of over-generalization, for your convenience and my amusement):


Chief Justice Roberts and Justice Alito stayed true to their promises during their confirmation hearings to be respectful of precedent — too much so, on this occasion and in my opinion (given my disdain for the jumbled mess of the Court's recent Eighth Amendment rulings on "cruel and unusual punishment). Chief Justice Roberts' opinion, joined only by Justices Kennedy and Alito, insists that Courts are ill-equipped to evaluate medical issues — then proceeds to do exactly that, mostly by cherry-picking supporting findings and evidence from the record developed in the Kentucky state trial court. Any time you have the U.S. Supreme Court citing and discussing the substance of articles from medical journals like Lancet, it's gone astray — no proper interpretation of the United States Constitution can be found in medical journals.

Chief Justice Roberts and Justice Alito are still writing as if they were circuit judges who are painfully conscious of their lack of authority to modify or overturn Supreme Court precedents — even when it's abundantly clear that those precedents fatally conflict with one another and/or ought never have been decided that way to begin with. Thus we have Chief Justice Roberts winding and twisting through various previous (and incompatible) formulations of the legal tests to be applied to a case like this one, pretending to harmonize them into something coherent. It's a very workmanlike — or it would be, for a circuit judge wearing judicial handcuffs — and it leaves us with a sort of matrix, a check-list for lower courts to work through. Indeed, Justice Alito wrote separately just to emphasize how tough it will be for any future petitioner to successfully navigate the checklist all the way through to a successful ruling finding any particular method of execution unconstitutional.

Basically, behind all their "heavy burden" and "substantial (not theoretical) risk" qualifiers — beyond the boxes in the check-list for lower court opinion-drafting — Chief Justice Roberts and Justices Alito and Kennedy are saying: When and if a bunch of other states have actually adopted some obviously better method of execution, then and only then can those of you in the other states come back to us with these arguments about which is relatively more humane. But for now, and until then, Kentucky's system and anything that looks pretty much like it can proceed.

That's pragmatic. It avoids a sweeping cleanup of Eighth Amendment law that's badly needed, but that would be criticized from the left as conservative-policied judicial activism. But in this area of con-law, as with the Court's last few decades of precedent on affirmative action and abortion rights, the maze of precedents that Chief Justice Roberts and Justices Alito and Kennedy are trying to navigate is built on a rotten foundation. Maybe in their judgments this case wasn't "the" case to give the whole Eighth Amendment structure a good push and bring it crashing down; but I think it was.


Justice Thomas, characteristically for him, would rather frankly recognize that the emperor has had no clothes for a long time. He boils this down to: Is Kentucky using this system out of a deliberate intent to torture people in addition to killing them? The answer to that is no; and that, says he, should be the end of the issue, as far as the Eighth Amendment and the federal Constitution are concerned. He's absolutely right.

Justice Scalia joins Justice Thomas' opinion, but also writes separately just to snag and throw back a few foul balls that Justice Stevens had popped deep into the outfield. Justice Stevens — no surprise — thinks we ought to re-think the death penalty in its entirety, but he can't quite come up with a good reason to pretend that this particular three-drug cocktail is unconstitutional, so he votes to affirm anyway.

Justice Breyer is troubled, very troubled ... and about many things, indeed about just about everything. But he ultimately agrees with six of his fellows that the petitioners just haven't shown "enough" to establish that some additional safeguards or some different protocol would make a big difference. (Basically, he's not quite willing to endure the justifiable mockery that Justice Ginsberg will get from her view, described next.)

And finally, like the diligent ACLU lawyer she once was, doggedly committed and well-accustomed to trying to make a liberal silk purse out of any sow's ear she's presented with, Justice Ginsburg (joined by Justice Souter) says the Eighth Amendment absolutely requires executioners to tickle the condemned murderer's eyelashes to make sure he's really deeply unconscious. And they also have to call his name. (Probably tenderly, but that's just my interpretation.) Because he might just be dozing. I somehow missed the eyelash-tickling/dozing discussions in the Federalist Papers, but Justice Ginsberg's analysis is all part and parcel of the liberal theory of jurisprudence which believes in a "living, breathing, and even occasionally flinching-when-tickled Constitution."


I didn't make up that stuff about the eyelash tickling. But that's exactly the kind of constitutional analysis, and the kind of SCOTUS Justices, that the current Democratic presidential candidates want. Clinton-42 appointed Justice Ginsberg, and either a Pres. Clinton-44 or a Pres. Obama would appoint clones of her. So I ask you again, my gentle readers of the conservative persuasion: Do you still think that, consistent with your love of country and Constitution, you can afford to sit out the 2008 general election because you're disappointed with the GOP's nomination of John McCain?


There will certainly be new death warrants signed in Texas within the next few days, and executions will resume by the end of May or June. No matter how many different opinions the SCOTUS produced, the state trial and appellate courts, and the federal district and circuit courts, can all readily tell that the current freeze on executions has been lifted by a 7-to-2 vote. Lawyers for capital defendants will try to squeeze through the tiny notch that the Roberts and Alito opinions left open, but it's not going to happen — not until some substantial number of state legislatures, or Congress, come up with a better execution protocol.

And to be clear: I hope those legislatures will try to do exactly that. Despite my snark, this is a serious topic that raises hard and important questions of public policy. But not hard questions of constitutional law. Let the legislative committees commission and then examine their experts' reports; let the executive agencies refine their procedures. All that should go forward. But a mostly well-functioning method of execution — as an instrument of public justice in those states that have chosen the death penalty — ought not be halted because it's short of perfect, or because there are arguably better methods and protocols "out there" yet to be discovered, defined, and implemented.


Final question: Is this choice of quotation (and its unacknowledged black comedic pun) an example of Chief Justice Robert's dry wit? Or am I just being hypersensitive, as a sometimes defense lawyer whose clients once included the local electric utility?

By 1915, 11 other States had followed suit, motivated by the "well-grounded belief that electrocution is less painful and more humane than hanging." Malloy v. South Carolina, 237 U.S. 180, 185 (1915).

"Well-grounded"? Well, yes.


UPDATE (Wed Apr 16 @ 7:10pm): More punditry, including thoughtful comments, at Patterico's from his guest-bloggers Justin Levine and DRJ, and from TChris at TalkLeft.

UPDATE (Wed Apr 16 @ 9:20pm): Lots of well-chosen blockquotes at Althouse will give you more flavor in the various Justices' own words, but alas, Prof. A mostly withholds her own reactions (at least until she responds to some comments). And Dodd at OTB has an admirably concise scorecard if you got lost in my comparatively long-winded analysis.

UPDATE (Thu Apr 17 @ 2:22pm): Prof. Kerr has now posted his promised thoughts on the case, which include an apt comeback to Justice Stevens' claim that

the Supreme Court's decisions "retain[ing] the death penalty as a part of our law" have been "the product of habit and inattention." The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer.

Posted by Beldar at 05:24 PM in 2008 Election, Law (2008), SCOTUS & federal courts | Permalink | Comments (9)

Saturday, March 29, 2008

Obama's never been a "professor of law" nor any full-time or tenure-track legal educator

How big a deal is it that in speeches and in campaign literature, Sen. Barack Obama (D-IL) has identified himself from time to time as a "law professor" or even a "professor of law"?

It's not as big a deal as the Clinton campaign has made it. But it's a bigger deal than some poorly informed or outright dishonest Obama apologists have been trying to make it appear.


Here's the back-story:

During the past week, the Clinton campaign issued a press release in which it cited an April 2007 blog post from the National Journal's Hotline Blog and an August 2004 Chicago Sun-Times column by Lynn Sweet as proof that "Sen. Obama consistently and falsely claims that he was a law professor." According to the Clinton press release (bracketed portion by the Clinton campaign),

The Sun-Times reported that, "Several direct-mail pieces issued for Obama's primary [Senate] campaign said he was a law professor at the University of Chicago. He is not. He is a senior lecturer (now on leave) at the school. In academia, there is a vast difference between the two titles. Details matter." In academia, there's a significant difference: professors have tenure while lecturers do not.

TNR's Noam Scheiber writes that he doesn't "see the scandal" in Obama describing himself as a "professor."  But many — especially in the academic world — certainly would.

Indeed, it's amazing to me that with as many academics as abound in Democratic Party politics and punditry, neither campaign can get seem to get this stuff straight! The last sentence in the block quote just above did indeed appear in Sweet's column, but it's badly wrong, too: Whether in law schools or other college and university departments, there are zillions of "assistant professors" who don't have tenure, but they're typically on a tenure track in which they might eventually get tenure. When and if those assistant professors of law (or whatever) get tenure, they typically will become "associate professors of law," from which they might or might not progress to more senior tenured positions — e.g., "full" professors (typically designated just as "professor of law"), or perhaps full professors holding an endowed professorship or chair.

Obama has never, ever had any position in which the word "professor" was part of his job title — neither as an assistant professor, associate professor, nor full professor; and neither as a resident or a visiting professor; and neither as a clinical professor, adjunct professor, or mainstream academic professor.

Here's a carefully written, mostly accurate, but still misleading and pro-Obama-spun press release that the University of Chicago Law School has posted this week in response to the controversy:

The Law School has received many media requests about Barack Obama, especially about his status as "Senior Lecturer."

From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers have high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.

Mike Allen at Politico insists that this press release declares Obama's "claims [to be] semantically sound" and "vindicates" him.

But that's also a significant over-reading, at least in my opinion. Color me intensely skeptical, for example, as to whether, and by whom, "Senior Lecturers" are "considered to be members of the Law School faculty and are regarded as professors"; that careful qualifier, "although not full-time or tenure-track," is HUGELY significant in terms of how legal academics actually regard each others' status.

Maybe senior lecturers at Chicago get to sit in on faculty meetings; maybe they get to use the executive washrooms and lounges. But they assuredly don't get to cast votes, however, on grants of tenure or the like. The press release's careful wording strikes me as very analogous to saying, "In the military, non-commissioned officers are considered officers," or to saying, "In medicine, licensed residents are considered doctors." Both of those statements may be technically true. But they're certainly far from complete, and they certainly could obscure the real relationships between, say, sergeants and lieutenants, or between residents and attending physicians. Whether you're a grunt in the trenches, a patient on an operating room table, or a law graduate and wanna-be academic trying to decide whose butts to kiss first, you certainly do want to understand the details of this hierarchy.

Indeed, I am quite certain that a quick way to get oneself off a tenure track would be to even slightly or innocently misrepresent one's tenure or tenure-track status in any important context or setting. The "clinical instructor" or even "adjunct professor" who describes himself or herself simply as a "professor of law" (or even "law professor") on a formal résumé that finds its way back to the tenured faculty members is likely to instantly destroy his or her reputation for academic integrity and honesty, very likely ensuring that he or she never will be on a tenure track at that institution!

In fact, I very much wonder whether this undated press release would draw agreement from a majority of the tenured faculty members at Chicago. And I very much doubt that a comparable statement, made without reference to any current political wunderkinder, would draw agreement from most other law school faculties. Indeed, there's a slight, but significant, internal inconsistency in the press release: Despite the careful distinctions it goes on to draw for "Senior Lecturers," it nevertheless states flatly and boldly (and I suspect wrongly) at its beginning that "From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a [lower-case "p"] professor in the Law School"; but Obama only became a Senior Lecturer in 1996. Do most of the tenured faculty members at Chicago agree that all of their mere lecturers are entitled to represent themselves to the public as being "professors of law" or "law professors"? Where's a quote from the Dean? Where's a cross-reference to a pre-existing faculty rule or policy?


I don't doubt the press release's assertion that Obama had been repeatedly offered a full-time tenure-track position, almost certainly as an assistant professor. That's roughly analogous to being offered a job as an associate at a law firm, or a resident at a teaching hospital, and it's mostly significant for what it portends about future career prospects after many years of further hard work. But Obama didn't do, or commit to do, that hard work; he chose instead to keep "politician" as his main day job for the last several years.

The law school's website also reproduces a December 2007 Chicago Sun-Times article which suggests that as a classroom teacher, Obama was popular with his students. I don't doubt that — even if, perhaps, his classes didn't hold hands and sway rhythmically while chanting "Yes, we can!" Again, that's nice. But being liked doesn't entitle one to represent oneself as a "professor" when one's not.

It's also mildly significant in my view that Obama picked con-law as the subject on which he'd lecture. Con-law is sexy and fun, and it sounds great for purposes of becoming a politician. Certainly there are con-law profs who study it deeply and diligently. But con-law is also prone to being slippery and vague; if you're a bluffer, it's the kind of topic you'd pick to try to bluff on. I would frankly be far more impressed if Obama had lectured in a field that absolutely required deeper and more diligent, continuing study — say, tax or corporate governance or even torts. I therefore think Obama's subject to a legitimate charge of being an academic dilettante. There's not nearly as much evidence that Obama has ever been a serious legal scholar as there is to demonstrate that he has ever been a serious professional legislator, and his record as a legislator, either state or federal, is still ridiculously thin for a presidential candidate.

Even Lynn Sweet's latest critical blog post, written in response to the Chicago press release, misses the point. She writes:

The University of Chicago did Obama no favor by saying he was a law professor when he wasn’t. This parsing is not necessary. There is nothing degrading about being a senior lecturer and bringing to students the experience of a professional in the field.

Except that Obama couldn't be "bringing to students the experience of a professional in the field." Even in his very limited tenure as a practicing lawyer, there's no hint that his practice involved subtle, ethereal questions of constitutional law of the sort he likely taught about at Chicago. If he's ever tried and won a court case, constitutional or otherwise, I haven't seen any evidence of that. If he's ever argued an appeal, constitutional law or otherwise, I haven't seen any evidence of that either. As a lawyer, he seems mostly to have still been a "community organizer," which I interpret as being a proto-politician who likely writes lots of demand letters, who maybe files complaints and occasional lawsuits that he inevitably settles, and who spends at least as much time talking to power brokers and the press as to judges and juries.


The reason big academic institutions have all these titles is that that's how they keep score internally. The exact titles certainly do matter to them, and to those who are trying to figure out those institutions. And it's one thing for Scheiber or Allen to spin all this to make Obama's misappropriation of a title seem insignificant. But it's ridiculous — to and past the point of dishonesty — to try to compare or equate Obama's academic titles or service to those of serious legal academicians.

The most egregious example I've seen so far is from self-described University of Chicago PhD candidate (not law student) Chris McIntosh, posting at Talking Points Memo. McIntosh's post is entitled: Barack *is* a Law Professor: Clinton Smears Continue Unfounded. The factual part of that title is literally untrue, for whatever connections Obama did have with the faculty no longer exist. (McIntosh may not understand what the meaning of "is" is.) But McIntosh goes on to argue that Senior Lecturers teach "just as authoritatively as any other member of the faculty." Well, yes, the grades they hand out count the same way in students' GPAs as the grades handed out by full professors. But does anyone seriously think all, or most, or even very many "Senior Lecturers" are genuinely as "authoritative" as senior professors with endowed chairs in a particular subject? When I was in law school, I was intensely and continuously aware of which of my professors were mere tenure candidates and which, by contrast, were already tenured professors, especially if they were eminent national scholars who typically had quite literally "written the book" on the topics they taught.

McIntosh is also badly wrong when he states that the University of Chicago Law School has no "assistant professors." Here are three, just for example. The Chicago faculty does seem to have a shortage of "associate professors of law" right now (maybe they're out visiting other faculties?), and not very many plain old "professors of law" without endowments either (which speaks well of their fund-raising prowess). But I have no doubt that Chicago keeps score in pretty much the traditional ways common to the rest of American law schools; those titles count, and they're not casually handed out. McIntosh's grand finale, though, is actually a grand whopper:

There's one last irksome detail. Richard A. Posner? Legal icon, you might have heard of him? The one with about ten (no exaggeration) honorary doctorates? He still does not possess the professor title.

He's a Senior Lecturer. Still. I highly doubt anyone could credibly argue that he's not a law professor.

But of course, Posner had been granted tenure as an associate professor at Stanford Law School way back in 1968, and before becoming a United States Circuit Judge in 1981, he was the Lee and Brena Freeman Professor of Law at Chicago — not just a full-time faculty member, not just a tenured associate professor, not just a full professor, but a full professor with an endowed professorship. He's now "only" a Senior Lecturer because he's still a sitting circuit judge in his "day job"; voting on which visiting assistant professors and lecturers Chicago should accept next semester is presumably less important to him than voting on the cases before the Seventh Circuit.


Look, Obama has taught a few con-law classes at a very good law school. The students apparently liked him; he kept it up for several years. Nobody doubts that he's a smart guy, and he probably had the chops to have made a career as a legal academic, but he didn't go that route, and he won't, and it's entirely misleading to refer to him as a "law professor" when in fact all he ever was, was a part-time law teacher.

InstaPundit (a/k/a the very-much tenured Beauchamp Brogan Distinguished Professor of Law Glenn Harlan Reynolds at the University of Tennessee College of Law) writes: "I don't think that this dispute will swing many votes even within the legal academy," and that's probably true. I don't think this particular serial exaggeration on Obama's part is as troublesome as John Kerry's serial exaggeration of his combat record, but neither does it reflect well on the guy. He's not a completely empty suit, but neither are his credentials nearly as deep as he makes out.

For me, that simply reconfirms an assessment I came to long ago: Barack Obama is not someone I can trust.


UPDATE (Mon Mar 31 @ 8:58pm): The very-much tenured Robert W. & Irma Arthur-Bascom Professor of Law Ann Althouse was struck by the same mistake in the Clinton press release that I was (assistant professors are not tenured). Her conclusion (italics hers):

I think one ought to be careful about this. If your title was "lecturer" and you're applying for a job, you shouldn't say "I was a law professor." Even though it can be defended as not a lie, you're exaggerating and not being strictly scrupulous about the facts. And Clinton's press release didn't say this was a lie. It put it on a list of 10 "embellishments and misstatements." It's fair to say it's an embellishment.

To that, I simply add the obvious: Obama is applying for a job, albeit not for a position as a professor, but for one that requires more faith and trust in his integrity than any other job in the world. Even when Obama was only applying to the voters of Illinois for the job of junior U.S. senator from their state, he had no excuse for failing to get this exactly right on an absolutely consistent basis.

Posted by Beldar at 11:57 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (18)

Saturday, March 22, 2008

People who are too smart to find the word "arms" in the Second Amendment

I'll warn you up front: This is as harsh an assessment as I've ever written on this blog.

I know this guy has lots of credentials that are supposed to mean he's smart and well-educated.

But I've read this blog post about the pending Heller case before the Supreme Court about five times now. I cannot find in it a single sentence to confirm that the author actually does know the difference between a right directly and explicitly guaranteed in a constitution and a right created solely by legislative enactment, much less why that distinction might be important to a court. He seems to have missed the day in high school civics when the teacher explained that constitutions are supposed to be different and special.

He also writes, with a straight face:

How do we know that the Supreme Court is hypocritical?  Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members — as Heller seems to make (or will make) painfully clear.

That's demonstrably false. A twelve-year-old would guess, for example, that Justice Scalia, being a good law-and-order conservative jurist appointed by a Republican, would uphold stiff criminal sentences determined by law-and-order trial judges, and that he would affirm lower courts who've "thrown the book" at flag-burners.

By the time you're a professor at the University of Chicago Law School like Eric Posner, however, it's inexcusable to fail to know that Justice Scalia has consistently voted to preserve the right to jury trial and the right to engage in political protest of the sort typified by flag-burning. If what he teaches to his students is equally shallow as what he's written for this new national legal blog run by Slate, then this man should be fired as a law professor — immediately, tenure or not, for the University would certainly have cause. This kind of political drivel disguised as legal analysis insults the integrity of the Justices of the Court (all of them, not just the conservative block), along with the intelligence of the reader (any reader, of any stripe of legal or political philosophy).

In fairness, Posner was being as monumentally and inexplicably clueless in his post as Dahlia Lithwick had already been in her post-argument Heller post upon which he purported to be commenting. Summarizing Walter Dellinger's argument in support of the District of Columbia's handgun ban — the position I'm reasonably sure she personally thinks should prevail — she wrote:

The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, he says, it's at the "penumbra of the periphery" of the Constitution: in a shack behind the river where the other unenumerated rights huddle.

"The other unenumerated" rights?!? Whatever limits there may be to the constitutional right to keep and bear arms, no one who understands the meaning of the word "enumerated" can deny that this right is one (as opposed, for example, to the constitutional right to bedroom privacy, which assuredly is not enumerated anywhere in the Constitution).

Indeed, lots of us think the very fact that the right to keep and bear arms is specifically listed by name in the Constitution is pretty significant. But Lithwick writes as if it's moderately surprising that anyone has drawn the inference that the Second Amendment might even arguably relate to firearms, topside or bottom. And Posner writes as if it's utterly impossible that any members of the Supreme Court actually think the words in the Constitution count for anything, or that they might think it matters that they're in, you know, the Constitution and its Bill of Rights (as opposed to, say, in a Berkeley city ordinance).

Make no mistake: Posner and Lithwick badly want to de-legitimize judicial conservatives on the Court by equating their recognition of a personal Second Amendment right to previous acts, by liberal Justices, in "finding" constitutional rights like the "right" to an abortion. Thus can they claim that the conservatives are hypocrites, changing judicial philosophies willy-nilly to achieve their desired political results. But to make this argument track, Posner and Lithwick have to pretend that the Constitution is as silent about the right to keep and bear arms as it is about, for example, the "right" to an abortion. That's why Lithwick (falsely) suggests that Dellinger called the right to keep and bear arms an "unenumerated right," when the transcript shows that he made no such claim.

(By contrast, Dellinger himself, desiring to be treated as a serious advocate instead of a child, of course acknowledged the literal text of the Second Amendment, but (at page 27 of the transcript) tried to minimize the importance of the "keep and bear arms" language as being of secondary or tertiary importance as compared to the "well-ordered militia" language. He was emphatically not suggesting that the right to keep and bear arms was unenumerated or found only in the "penumbra" of literal language in the Constitution or Bill of Rights, like the "privacy" right "implied" by the Court out of thin air in Griswold.)

This is a level of stupidity that can only be explained by neurology, not law. It's like one of those syndromes that Oliver Sacks describes, where some sort of organic brain damage, some lesion, prevents a husband of many decades from being able to distinguish between his wife and his hat in his spoken language or even his internal mental conceptions. The notion that the Constitution's actual words might count is so contrary to Posner's and Lithwick's fundamental liberal mindsets that they go into verbal seizures, batted back to a pre-K level of understanding, just one step above drooling while chanting "Scalia ... very ... baaaad." Posner I don't know, but I can at least usually find some kernel of principled argument inside Lithwick's writings, typically buried deep under the snarky distortion that she intends to be funny, even when they swerve into the frankly dishonest. But not this time.

There are interesting arguments that can be made, and have been made, from time to time by supporters of gun control regulations. You won't find any of them in either of these two posts, however. Dahlia Lithwick and Eric Posner didn't just swing, miss, and strike out, they left their bats in the dugout and immediately wandered off from the batter's box into far, far left field, way outside the foul line and only barely still within the confines of the ballpark. I would offer a hefty wager that when this game is over, they'll still claim that it was rigged, and that their side wuz robbed. Then they'll turn, nod and gesture to their approving crowds, and bask in the roar of their righteous liberal approval.

Posted by Beldar at 01:27 AM in Law (2008), SCOTUS & federal courts | Permalink | Comments (7)

Thursday, March 20, 2008

Congrats to Mark Yudof

In the fall of 1977 and spring of 1978, Mark Yudof was my first-year section's Contracts professor at Texas Law School. I especially remember him for his very dry wit, and he was quite engaging — a raconteur of a professor, teaching with relish that most essential and transformative of first-year law school subjects.

He was famously, at least then (in those days not yet so wracked with political correctness), a cigar smoker — a habit that seemed entirely congruous with the bushy mustache he then sported. On the final day of class in the spring semester, before our final exam, the topic was to be one he'd skipped over earlier — the parol evidence rule. But by pre-agreement among a large majority of our roughly 90-person section, at precisely 10 minutes after the class began (as marked by one of those institutional wall-clocks at the front of the classroom whose minute-hands move in precise one-minute clicks), most of us pulled large cigars from our backpacks and began unwrapping them. (Indeed, most of them had been chosen solely for their size.) This was followed with conspicuous cutting, or biting off and spitting, of cigar ends, and much flaring of matches or lighters, and exaggerated puffing. In moments, a dense cloud of gray-blue smoke had enveloped the entire auditorium classroom.

Yudof, standing at the bottom of the class behind the lectern, had done a fine job of pretending to ignore the cigars for a full two or three minutes, but the volume of students' coughing and sputtering and, I think, the number of students whose complexions were trending seriously waxen-to-green, convinced him to give it up. "Okay, fine!" he declared, slamming shut his casebook. "But I can tell from here that they're very, very cheap cigars!"

That turned into the cue for most students to put their cigars out, and for the sets of double-doors at the top of both aisles to bang open. Down the steps of each aisle bumped a set of hand-dollies, which in turn carried a trashcan with a well-iced keg of Lone Star beer. "Don't think," shouted Yudof over the growing din of an early-morning party, as someone handed him the first beer, "that the parol evidence rule won't be on your exam!"

"Inadmissible!" someone shouted back, and "It'll be on the bar review course!" shouted someone else.

Mark Yudof Since then, I've had only occasional contacts with Mr. Yudof. During my second and third years of law school, he was among the faculty resources from whom I often solicited recommendations for book reviewers on behalf of the Texas Law Review, and I spoke with him briefly when he was among the academics hired to consult on the Pennzoil v. Texaco appeals in the mid-1980s. Yudof had risen to the deanship of Texas Law School for ten years, and thence to executive vice president and provost of the UT System, before spending a few years as president of the University of Minnesota in the late 1990s. He returned to become chancellor of the UT System in 2002, but he also has held the Charles Alan Wright Chair in Federal Courts at Texas Law School.

And now I read — with the pride natural, I think, to any of his many former students (because he kept up teaching law for many years in addition to his administrative duties) — that he's slated to become the president of the University of California System: "The UC regents' committee this afternoon recommended Yudof for the job overseeing the 10-campus system, which is widely considered as the nation's best collection of public research institutions." Well, I suppose that's so. But I do hope and trust that he will not take with him to California the UT Law charitable contributions mailing list!

I congratulate him, and wish him luck in his new position. He is a fine educator and scholar, one to whom I owe a long-standing debt of gratitude. I don't indulge in even the occasional cigar any more, but I will buy, and consume with due reverence, a six-pack of Lone Star long-necks to toast his success.

Posted by Beldar at 09:53 PM in Current Affairs, Law (2008), Trial Lawyer War Stories | Permalink | Comments (4)

Monday, March 17, 2008

Most frighteningly plausible fantasy I've read this month

On the Balkinization blog, Michael Stokes Paulsen posts the Opinion of the Court (written by Mr. Justice Kennedy, and joined by Justices Souter, Ginsburg, Breyer, and Clinton) in Spitzer v. United States. (H/t InstaPundit.)

The largest flight of fantasy is that the underlying conviction is for solicitation of prostitution, which, of course, is not ordinarily a federal crime. But perhaps that was what indeed was charged, with the United States as prosecution and now appearing as the respondent on appeal because the solicitation case was filed under District of Columbia Code § 22-2701 (and not in the New York state courts under New York State's laws against prostitution). Under this scenario, Spitzer was never charged with, or perhaps pleaded out to, a separate federal financial crime (e.g., structuring) or morals crime (e.g., Mann Act) in the federal courts for the Southern District of New York.

Even the list of Justices in the majority is chillingly plausible — and under more than one scenario. Obviously, "Justice Clinton" has been the successor to Mr. Justice Stevens. But is that "Mr. Justice Clinton," or "Madam Justice Clinton"? It could be the latter if President Obama was making good on the "Great Denver Convention Compromise of 2008," whereby the Clintons were promised his first (or perhaps first two?) SCOTUS appointments in exchange for Hillary releasing her delegates. Or it could be the former if President Clinton wanted to find some way to get Bill the hell out of 1600 Pennsylvania at least a few hours every week — and who knew he and Justice Scalia would become such card-playing buddies? Either Clinton would be a historic nomination, marking either the first Justice who'd failed the District of Columbia Bar Exam, or else the first Justice whose state law license had been suspended and who'd consequently resigned (under pressure of impending permanent disbarment) from the bar of the SCOTUS itself. Notwithstanding those disabilities, either could surely expect confirmation votes from every Democratic senator.

The single best and most terrifying sentence in the opinion is this one: "There is no persuasive basis for distinguishing the Lawrence Liberty here." Those of us who are critics of Lawrence v. Texas, and of the purported constitutional theory of "substantive due process" (an oxymoron) upon which it is founded, believe that precisely this same sentence could be used in comparable opinions justifying constitutional "rights" to damn near anything, so long as Justice Kennedy can be persuaded on any given day that it's part of the "sweet mystery of life."

Posted by Beldar at 03:16 PM in 2008 Election, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink | Comments (4)

Saturday, March 15, 2008

Why I'm unpersuaded by Obama's disavowal of Rev. Wright's political polemics from the pulpit


   Q   Mr. President, I want to, before I go into a new subject area, briefly go over something you were talking about with Mr. Bittman.

   The statement of your attorney, Mr. Bennett, at the Paula Jones deposition, "Counsel is fully aware" — it's page 54, line 5 — "Counsel is fully aware that Ms. Lewinsky has filed, has an affidavit which they are in possession of saying there is absolutely no sex of any kind in any manner, shape or form, with President Clinton."

   That statement is made by your attorney in front of Judge Susan Webber Wright, correct?

   A   That's correct.

   Q   That statement is a completely false statement. Whether or not Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement that there was "no sex of any kind in any manner, shape or form, with President Clinton," was an utterly false statement. Is that correct?

   A   It depends on what the meaning of the word "is" is. If the — if he — if "is" means is and never has been, that is not — that is one thing. If it means there is none, that was a completely true statement....

(From the Sworn Grand Jury Testimony of President William Jefferson Clinton on Monday, August 17, 1998, at pp. 57-58; emphasis mine.)

They teach you how to parse words at Texas Law School, where I went. They teach you how to parse words at Yale Law School, where Bill & Hillary Clinton went. And they teach you how to parse words at Harvard Law School, where Barack & Michelle Obama went.

The law schools at Harvard and Yale certainly cost more than I paid at Texas; maybe they teach you how to parse words better up there, I dunno. But there's one kind of word parsing used to obscure, and another type that's used to reveal, and my goal in this post is to do the latter because I think Barack Obama is engaged in the former.


I regret that this may give offense to the lawyers who questioned Bill Clinton before the grand jury, or in his original deposition in the underlying (heh! bad pun!) deposition in the Paula Jones sexual harassment case. But I remember thinking the first time I read that testimony, and as I watched Clinton's videotape from his grand jury testimony, that he was just running rings around them. Oh, what I'd have given for the chance to be among his inquisitors!

Of course the fact that he was running rings around them rather than giving them straight answers was, to many Americans, even more conclusive proof that Bill Clinton had much to hide, that he had lied, and that he was still lying, and that he will lie until the day he dies. But trust me: If there's ever a book published called "Great Moments in the Cross-Examination of Sitting Presidents," this exchange — the "it depends on what the meaning of 'is' is" exchange — will either be left out altogether, or else listed as a witness victory. Bill Clinton got away with the "meaning of "is" is" answer for lack of effective follow-up: there was none even attempted. And that, friends and neighbors, was not only a damned shame for the United States of America, but a damned shame for everyone who relishes a really good cross-examination and hates to see an important one blown.


Comes now, almost ten years later, would-be President Barack Obama, enveloped in a much smaller scandal, but one that certainly threatens to do him real and lasting political harm. His pastor's words, and his own words about his pastor's words, and the sincerity of his words about his pastor's words, are all at issue.

Rev. Jeremiah Wright The question is this: Is Barack Obama playing the American public for chumps, the same way Bill Clinton played these prosecutors? Is he parsing, playing word games, and — like Bill Clinton — telling what he believes to be literal truths, even though they're inconsistent with and being used to hide the whole truths?

Barack Obama's video statement today about his pastor, Rev. Jeremiah Wright, was crafted to sound unequivocal and direct. Here are all of the sentences of overt disavowal (taken from the published text version; emphasis mine):

Let me say at the outset that I vehemently disagree and strongly condemn the statements that have been the subject of this controversy. I categorically denounce any statement that disparages our great country or serves to divide us from our allies. I also believe that words that degrade individuals have no place in our public dialogue, whether it's on the campaign stump or in the pulpit. In sum, I reject outright the statements by Rev. Wright that are at issue.


The statements that Rev. Wright made that are the cause of this controversy were not statements I personally heard him preach while I sat in the pews of Trinity or heard him utter in private conversation. When these statements first came to my attention, it was at the beginning of my presidential campaign. I made it clear at the time that I strongly condemned his comments....

Let me repeat what I've said earlier. All of the statements that have been the subject of controversy are ones that I vehemently condemn. They in no way reflect my attitudes and directly contradict my profound love for this country.

Wow, that's stronger than train smoke! He vehemently disagrees, and strongly condemns; he categorically denounces and rejects outright. Then he gets vehement again, not just to disagree, but to condemn!

To which my response is:

Uh, Senator, that's great and all, and I want to be the first to give you an "Amen!" for your passion, but ... Would you tell us, please, exactly which statements you're talking about?

You see, we already have a definitional problem. We have a definitional problem, Senator, because you are already on record as saying: "I don't think my church is actually particularly controversial."

So what the heck do you mean when we ask, "Which statements do you condemn?" and you only reply, "The controversial ones!"

Do we have a controversy about the meaning of "controversial," Senator?


Surely there's a decently trained journalist out there who can pin Obama down on this — if not with the skill of a trained cross-examiner, then with at least the skill of, well, a decently trained journalist. And the way to do it is through what good trial lawyers refer to as the "hammer and tongs" method. You take your tongs, and you squeeze really tight to make sure the target doesn't slip away, and then you pound the hell out of it until it's flat. Then you re-heat it, turn it sideways, grab it tight in your tongs again, and start swinging the hammer again. When you're done, you know the mettle of what you've got.

(Good word that, "mettle," meaning "inherent quality of character and temperament," and frequently mistaken for "metal" in this context, which is close but gets you no cigar. Ah — damn, that makes me think of Bill Clinton again.)

It may well be, for example, that Sen. Obama strongly, categorically, and vehemently condemns and rejects outright the notion that HIV/AIDS is a CIA-spread disease meant particularly to afflict blacks. Okay, then. That's one statement down, and about four dozen left to examine.

Does Sen. Obama think God should damn America for "killing innocent people"? That probably is going to deserve some follow-up questions, because there's no doubt that America has killed innocent people, and there may be instances in which the Senator would find those killings to be culpable. So, Senator, tell us which ones, and why those are culpable, but others may not be, or may be less so.

Does Sen. Obama think God should damn America for for "treating our citizens as less than human"? No? Well, that, too is going to need some follow-up, because I'm very sure that Sen. Obama would agree that at least at some times, some elements of America, including various levels of its governmental authorities, have treated our own citizens as "less than human" — so let's get specific. And let's distinguish between past and present. Slavery, Jim Crow laws, those are givens. But how about events from his own life: Has he ever been treated as less than human by America? Have his wife or children?

Does Sen. Obama think God should damn America "for as long as she acts like she is God and she is supreme"? Whether God ought to damn America for it or not, would Sen. Obama care to give us some very specific examples of that?

Are those killed in Hiroshima and Nagasaki comparable to those killed on 9/11? Or is American culpability for their deaths comparable? Why, or why not?

Are three-strike laws racist in intent? In effect? How about building bigger prisons — has that been done with racist intentions? On whose part, exactly? The prison administrators? The state legislators? The voters who vote in favor of the bond elections? The jurors who've convicted all those prisoners? Or just the jurors who've convicted those black prisoners? Or just the white jurors who've convicted those black prisoners?


In fact, I'm certain that at some point, we can find political statements from Rev. Wright which you and I might consider "controversial" that Sen. Obama does not find controversial, and doesn't intend to condemn. Heck, a huge amount of what passes for orthodoxy in the Democratic Party — e.g., "Universal health care is a basic human right!" — I consider to be "controversial," and I'd bet the ranch that Sen. Obama doesn't condemn that kind of statement.

He hasn't condemned, and won't condemn, the man. But because Sen. Obama has now been passionate — while remaining oh-so-vague, ever-so-vague, about what he's actually condemning from among all the hodgepodge recent quotes from Rev. Wright — we actually have no clear idea where Sen. Obama draws the line between "controversial" and "non-controversial."

I don't have a problem, frankly, with the Obama family refusing to switch churches. I have a big problem, though, with Obama using clever rhetoric to match Bill Clinton for slipperiness in trying to dodge and defuse a political crisis. In fact, judging just by the events of this campaign season, it's clear to me that the pupil could teach the master a few parsing tricks.

Posted by Beldar at 11:18 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (9)

Friday, March 14, 2008

With "friends" like this on his defense team, no wonder Spitzer continues to be delusional

Today's New York Times reports that "[f]ederal prosecutors are investigating whether Gov. Eliot Spitzer used campaign funds in connection with his meetings with prostitutes, including payments for hotels or ground transportation."

The story is moderately interesting, if not surprising, insofar as it reports the basis for the feds' interest. But what I did find very surprising is the leaking about the case — some of which seems to be coming from the feds, but at least some of which is obviously being done by the Spitzer legal team or someone on their side — and in a bush-league way that also recklessly jeopardizes their ability to preserve attorney-client privilege for their most private conversations with their client!


It starts off pretty mildly, with this paragraph:

[Paul Weiss partner, Spitzer classmate, and defense attorney Michele] Hirshman spent several hours at the United States attorney’s office in Manhattan on Tuesday listening to evidence that prosecutors had amassed during their six-month inquiry. Ms. Hirshman, who was Mr. Spitzer’s deputy in the attorney general’s office, has also worked in the United States attorney’s office for the Southern District of New York. While in that office, her posts included service as the chief of the Public Corruption Unit.

"Hmm," I thought on reading that. "That must have been an interesting session." Most likely it was in the nature of an extreme professional courtesy — a constructive display of respect by current prosecutors for a former prosecutor, and a good example of the kind of "small world, isn't it?" personality lubricant that can indeed cause the wheels of justice to turn more smoothly, in the interests of both the public and the defendant. If the feds, to use a crude trial lawyer colloquialism, already have Spitzer "by the short hairs," then laying out their case to his lawyer (who, from that career history, one would expect to have the chops to evaluate that presentation appropriately) would certainly be likely to induce cooperation from his team. Compromises — be they plea bargains or be they shorter-term events like resignations — are more likely when most of the cards are on the table and each side can evaluate the strengths and weaknesses of its own case and its opponent's. In fact, there's a whole nuther NYT story today about just how use to Spitzer's defense the credibility of Ms. Ms. Hirshman may be.

These details struck me as something likely leaked by the prosecutors. It probably was intended to help explain, inferentially, the significance of Spitzer's resignation on Wednesday, and the U.S. Attorney's press release shortly thereafter confirming that there had been no deal reached — notwithstanding someone in the Spitzer camp's ridiculous bluster to the Wall Street Journal on Tuesday afternoon or evening to the effect that Spitzer was insisting upon an assurance that no charges would be filed in exchange for resigning.


But then the next paragraph in the NYT story is something that has to have come from the Spitzer camp, and it leaves me smacking palm to forehead and saying, "What can they possibly be thinking?"

A person with knowledge of [Hirshman's] meeting with Mr. Spitzer on Tuesday said that she had asked him whether he had ever used public money, or campaign money, in any visits with escorts, and that he said he had not.

Hello? Reckless waiver of attorney-client privilege, anyone? Either the NYT reporters completely fabricated this only partially attributed statement — which, despite all their bias and screw-ups from time to time, is not the sort of stunt NYT reporters typically pull — or someone who was high up enough to be in the room and listening to Spitzer's privileged discussions with Hirshman has just deliberately disclosed, directly or through an intermediary, the substance of their key communications to the entire world.

I don't care if he or she is a high-powered top-credentialed white collar criminal defense lawyer from a top-flight New York law firm, or a Harvard law grad who once practiced mergers and acquisitions law at another top-flight New York law firm (before going mommy/foundation/First Lady-track), or who else it might have been who was in that room who then became the source of this leak. Only a complete and utter fool of a lawyer would deliberately waive attorney-client privilege on this conversation, and then place in the hands of newspaper reporters the responsibility for keeping the prosecution from demonstrating and exploiting that waiver. Oh yeah, your Judith Miller-types may be willing to spend a few weeks in jail to protect the identities and details of their "confidential sources." And there are ways to leak more obliquely, to make the same point without purporting to disclose the exact substance of the privileged conversation directly from the defendant's own mouth. But as a criminal defense lawyer, or even just someone with access to the inside details of the criminal defense team, when it's your client's potential freedom or incarceration at risk, you cannot ethically — or even sanely — put your entire trust on someone like newspaper reporters who are outside your control!

If push comes to shove, if the feds decide they'd like to cross-examine, say, Ms. Hirshman on every other detail of that particular no-longer-privileged conversation with her client Eliot Spitzer, and to seize, examine, and photocopy her notes from it, then this news leak gets them at least half-way home in establishing a deliberate waiver, such that they could thereafter, for example, subpoena Ms. Hirshman to appear before a grand jury to compel her testimony and production of documents there. (And because the pending case was originally filed as a complaint against the call-girl ringleaders, not an indictment against either them or Spitzer, there's still a very good chance that a grand jury either is or will be gathering evidence.)

In fact, I doubt the feds will pursue that path. To thoroughly prove up the waiver, the feds would need to negate the possibility that the NYT reporters made this up, and probably to get the reporters to identify their source and repeat under oath what the source told them. But forcing the reporters to identify their confidential source and to testify about what he told them would require the feds to first jump through a huge set of hoops under DoJ regs that approximate state shield laws protecting this "reporter's confidential source privilege." They'd essentially have to show that the testimony they're seeking is essential and that there's no other way to get it, which is a deliberately hard showing to make. And frankly, it doesn't sound like they need a windfall from a blown privilege to continue staying eleven steps ahead of their opponents.

But this game by someone on the defense team, or maybe by the defendant himself — leaking to set up a news report that "We at the NYT have it on good authority from our confidential source on the defense team that the defendant has sworn up and down to his own lawyers that he's innocent" — is just reckless in the extreme. Reckless in the same way as ... Oh, gosh, let me struggle to find an apt comparison. How about: As reckless as a married, father-of-three, large-state governor pleading for the opportunity to have unprotected sex with someone he knows to be a prostitute?


But wait, there's more!

A person close to Mr. Spitzer said that prosecutors told Ms. Hirshman this week that they would be more inclined to pursue a criminal case against Mr. Spitzer if he remained governor because of the violation of public trust.

"The message was, 'We’d be less inclined to press a case if he’s just a private citizen,'" a friend of Mr. Spitzer's said in a telephone interview Wednesday night....

A friend of Mr. Spitzer’s, who spoke on condition of anonymity, reacted with fury at the news that prosecutors appeared to be widening their inquiry to include money spent on campaign trips that may have involved trysts with prostitutes.

"At some point, this becomes piling on," the friend said. The friend said that he would be stunned if "a judge or jury would convict a man for something like this. It's very low grade," adding, "Why would prosecutors pursue this?"

Are you following this? Spitzer camp leaks on Tuesday night to the WSJ that "He won't resign unless the feds agree there will be no charges." In the meantime the feds are showing Hirshman at least some, maybe a lot, of their hole cards. The Spitzer camp promptly capitulates on Wednesday morning, and he resigns without a deal. And then that night and the very next day, the Spitzer camp is repeatedly waiving attorney-client privilege while kvetching about how the prosecutors are being big meanies for "piling on"!?! Didn't they hear him say at his press conference that he's already begun to "atone" for his "private failings"? Why, how dare the feds continue to investigate whether Spitzer was stealing from his campaign treasury or his gubernatorial expense accounts to finance his whore-mongering! Piffle! What judge or jury could care about that?


Spitzer's own history as Attorney General was, of course, filled with selective and highly incriminating leaks of supposed "facts" that often amounted to no more than unproved, unprovable innuendo. And more often than not, even though nominally directed at large corporations or business interests, it was intensely personal — the criminal politics of personal destruction, one might say, designed to humiliate and then force highly symbolic corporate leaders, typically CEOs, from their positions. I suppose if that's your framework for thinking about "justice," then you might project that onto other, more legitimate prosecutors. "They've got my scalp," Spitzer (and wife? certainly someone else on his team) may be thinking, "Isn't it time for them to move on to their next target and their next press conference now? Whazamatter with these guys, don't they want to run for governor some day?"

My hunch is that there's an extreme amount of cognitive dissonance right now somewhere in the Spitzer team. My hunch is that the prosecutors' real attitude on the whole resignation issue was very much like how federal prosecutor WLS, commenting from the other side of the country at Patterico's this week, described what his own reaction would be to a demand by Spitzer that all charges be dropped in exchange for his resignation:

I'm sure the events of yesterday [i.e., Tuesday] were filled with efforts by his attorneys to get a deal, but what motivation is there for the feds to bargain with him about something that 1) they have no interest in and 2) he can’t hold onto anyway?

My response would have been "Your future as the governor of NY is between you and the voters of NY. Act as you think you must."

As for his future as a defendant, I’d have told him the offer is "Three level reduction and recommendation for bottom of the guidelines — just like everyone else — or I’ll see you in court."

He likely went behind closed doors and his former AUSA defense attorney told him "You’re screwed."

But if so, whoever's doing the current leaking and whining to the NYT nevertheless apparently chose to hear "You're screwed!" instead as: "They say they're thinking about cutting you some slack, Eliot, if you'll go ahead and resign without a deal." And now, in a high-society, candy-assed sort of way, Team Spitzer is feeling cheated, betrayed, very unfairly put upon, and highly miffed by this "very low grade" conduct of the prosecutors. (I'm sorry, I know calling someone "candy-assed" is crude, but I just can't think of any other adequate term to describe the kind of lawyers who'd whine that way themselves, or who would permit (ahem) "a friend" to do so on behalf of the team.)


So my question for today is this: Given that Eliot Spitzer is obviously delusional himself, does anyone on his team have a grip on reality? Do they understand the difference between (a) federal court criminal proceedings, (b) Upper East Side cocktail party conversation, and (c) kindergarten?

What's next — a Larry Craig-type "Well I said I was going to resign on this coming Monday, but now it's Monday and I'm not really going to resign, and nyah-nyah, you can't make me"?

Posted by Beldar at 05:18 AM in Law (2008), Politics (2008) | Permalink | Comments (4)

Wednesday, March 12, 2008

Spitzer's very guilty, but exactly of how much is still unclear

If you read this morning's Wall Street Journal, you'd come away with the impression that Eliot Spitzer spent a mere $19k on high-dollar hookers to get himself into his current troubles. Turn instead to the New York Post, and you'll see allegations that he blew at least $80k on a habit that went back 10 years.

These claims are not necessarily inconsistent. No one news source seems to have anything remotely approaching a comprehensive list of dates, transaction types, and amounts yet. And although I think so far most of my early hunches as this story broke have held up pretty well, some of my early assumptions from the affidavit attached to the feds' federal complaint against the Emperors Club call-girl ringleaders as to the specifics of Spitzer's attempts to avoid triggering the Treasury Department financial reporting regulations may have been wrong: That affidavit apparently focuses only on later transactions that Spitzer conducted in cash, whereas newer press reports suggest that it was actually Spizter's splitting of more than $10k in wire transfer payments into three smaller pieces that got him onto the feds' radar screens, and that are the likely basis for the possibility that Spitzer may be charged with "structuring" in a deliberate (and boneheaded, and hugely unsuccessful) attempt to avoid triggering those regulations.

Without more specifics, I don't think I or any other legal pundit can give any confident opinion right now about how the potential financial crime charges would play out in court. I will note, however, that if they were obviously bogus, Spitzer's extremely capable criminal defense lawyers would have told him over the weekend that they ought to fight, and his Monday press conference would have included a vow not to resign. Instead, Spitzer's lawyers are negotiating, while trying to do some counter-spin for public relations purposes in the meantime (which is how I read the WSJ article).

The Wall Street Journal story, though, suggests a breath-taking degree of arrogance on the part of Spitzer and his lawyers in their on-going negotiations about a possible plea deal:

Mr. Spitzer won't resign until he reaches an agreement with the government not to pursue charges, say those familiar with his legal team's thinking.

Any legal case could be significant for Mr. Spitzer's future. Whether or not he remains in politics, the 48-year-old Mr. Spitzer likely would lose his license to practice law if convicted of a felony.

This is definitely Through-the-Looking-Glass logic. Spitzer's liberal defenders, always eager to assume that any federal prosecution of a Democrat is a purely political act by the evil BusHitler Justice Department, are saying that the point of all this is to drive a rising-star Democrat out of office. Yet going out of office voluntarily is the sole penalty that Spitzer's lawyers seem willing for their client to pay!

This paragraph from the WSJ report simply made my jaw drop:

[Lead Spitzer defense counsel Michele] Hirshman — a former assistant U.S. attorney in Manhattan — also argued that if federal prosecutors brought charges against Mr. Spitzer, they would be required to similarly charge the nine other unnamed clients in a federal complaint unsealed last Thursday, to avoid what's known in legal circles as "selective prosecution." None of the other nine unnamed clients have been charged in the case.

Let me be unequivocal: Michele Hirshman or anyone who argues with a straight face that the feds' failure to prosecute Clients-1 to -8 and -10 is "selective prosecution" is either an idiot or a partisan hack who is deliberately trying to deceive and mislead you. If this is the best argument she's got, then Spitzer is indeed in a world of trouble. There has been no suggestion whatsoever that Clients-1 to -8 or -10 committed any federal offense — neither a federal financial crime (like structuring), nor a federal vice crime (like crossing interstate borders to promote prostitution). As far as anyone has shown so far, they're neither public officials who've volunteered to be held to a higher standard of conduct (much less former state vice prosecutors), nor anything else but "common johns." Whatever else Eliot Spitzer is now and has been for the last several years, he's not a "common john," and it was not being a "common john" that got him into all this.

Similarly, beware anyone who tries to sell you on the notion that this is a partisan investigation or potential prosecution. Yes, it's entirely true that the reason the Suspicious Activity Reports about Spitzer's financial maneuvering came to the particular attention of the feds was because he is a public official. That is a good thing: We want our law enforcers to be particularly on the lookout for public corruption. Do not let someone bamboozle you into taking the next step, though, which is to assume that the feds only look for Democrats who are guilty of public corruption. Nothing about this case yet can possibly support that premise, but without a shred of evidence it's already being peddled by hyper-partisans in the blogosphere.

The Wall Street Journal article suggests, for the first time among any of the news reports I've read, that the feds have also now explicitly threatened Spitzer with prosecution for non-financial crimes — perhaps under the Mann Act, perhaps under the Travel Act, perhaps wire or mail fraud. It is entirely correct to observe that the feds, in recent decades, have not generally prosecuted mere customers of interstate or international prostitution rings for those crimes. Rather, they've generally used those crimes to go after criminals who are in the business of, and profiting from, those interstate or international prostitution rings — just as they've already used them as the legal basis to bring the complaint against the Emperors Club ringleaders.

But the feds obviously think they've got a strong case from which they can prove at least one instance of "structuring." That was evidence left in their laps after they'd exonerated Spitzer of their original suspicions, i.e., that all these suspicious payments might be connected to bribery or blackmail or the like. If Spitzer is defiant — if he insists not only on getting no real meaningful judicial punishment, but on not even being charged with anything, all despite clear evidence (at least as the federal prosecutors view it) that he committed a federal financial crime in his desire to conceal and cover up his tawdry violations of state vice laws — then it's altogether expected and proper that the feds would react by piling on additional charges that are within their charging discretion. When the defendant is being defiant and petulant, it's not "prosecutorial abuse" or "selective prosecution" for the government to seek to throw the biggest book at the guy which is reasonably close to hand. And if that means Eliot Spitzer doesn't "catch all the breaks" that the feds generally extend to other whore-mongers who transport themselves and their paid sex companions across state lines in the pursuit of their habits, then that's his fault, not theirs.

(I say "tawdry" state-law vice crimes, but among the extreme ironies here is that Spitzer was viewed as an active co-participant in efforts within New York State to crack down on customers of the sex industry, and last year he signed into law a bill that increased "the penalty for patronizing a prostitute, a misdemeanor, to up to a year in jail, from a maximum of three months.")

And if Spitzer and his lawyers think it's only felony convictions that threaten his law license, they need to think again. Other crimes of moral turpitude can certainly do that. Maintaining a multi-thousand dollar account balance with an international prostitution ring, whether that's resulted in a felony conviction pursuant to a plea bargain or not, is likely to draw the attention of the New York bar officials.

Spitzer made his career in large measure by being a bully. He routinely used his power as a state attorney general — including highly skilled manipulation of the press — in an attempt to shame and overwhelm corporate CEOs into rapid capitulations, counting on their unwillingness to actually force him to prove his charges in court. Count me as one observer who is hoping that Spitzer's propensity for bullying torpedoes his plea negotiations, and that as a result, he refuses to resign, and he goes "all in" and calls the feds' bet. The history of those who've called such bets, thinking that the feds were really just bluffing, is not a pretty one.

Moreover: If the press reports are correct and it's actually Spitzer's wife who's urging him not to resign, then my sympathy for her has dropped to zero. We're talking cosmic, genuinely Clintonesque degrees of co-dependency and enabling here. I do pity their poor daughters for having two parents who are dangerously out of touch with reality.


UPDATE (Wed Mar 12 @ 10:50am): Spitzer just announced his resignation on TV. I haven't heard any details on whether he's reached a plea agreement.


UPDATE (Wed Mar 12 @ 11:42am): The website for the U.S. Attorney for the Southern District of New York has posted this terse statement:

In response to press speculation, MICHAEL J. GARCIA, the United States Attorney for the Southern District of New York, said: "There is no agreement between this Office and Governor Eliot Spitzer, relating to his resignation or any other matter."

I don't know if it was Ted Wells or someone else, but someone inside the Spitzer legal team forced their client into a major reality check some time after the team was spinning the WSJ reporters last night.

Posted by Beldar at 05:34 AM in Law (2008), Politics (2008) | Permalink | Comments (14)

Monday, March 10, 2008

Spitzer "casts himself not just as an enforcer of the law per se, but also as an enforcer of a broader social compact"

The quote in the title of this post comes from a 2005 article in the New York Times Sunday Magazine on "Spitzerism" as a law enforcement philosophy. It was written by The New Republic's Noam Scheiber. In response, I posted here to agree with Scheiber that Eliot Spitzer, a rising-star Democrat who was at that time New York State's showboat Attorney General, had certainly never acted as though he was constrained by mere "law per se." But I ridiculed Scheiber's contention that such "qualities" made Spitzer an attractive candidate for national office on a Democratic ticket. I pretty much want my prosecutors and attorneys general to stick to "law per se." It seemed to me that Scheiber's heroic notion of "Spitzerism" was pretty much a code word for "unscrupulous and overambitious prosecutor running amok (mostly against Republican targets)."

Today it was announced, however, that now-New York State Governor Eliot Spitzer, whose administration has already been tarnished by assorted scandals, was involved with (at least as a client of) a now-federally indicted international prostitution ring. His involvement with the ring was apparently sufficient that he had a credit balance on his account with them — the precise size, and the offset of which against new charges, he's apparently quoted (as "Client-9") arguing about by phone with the ring operators in an affidavit attached to the just-unsealed federal criminal complaint. It thus seems likely that Spitzer himself has, at a minimum, violated the "law per se" of New York and/or Washington, D.C. against contracting for sex from prostitutes, although he has not yet himself been charged with any crime.

N.Y. Gov. Eliot Spitzer and wife leaving press conference There's also a suggestion that he paid for a prostitute's train ticket to travel from New York to Washington for their tryst. So in addition to the underlying offense of violating state anti-prostitution laws, it's not inconceivable that Spitzer himself could be charged, either as a principal or co-conspirator, with violating the federal Mann Act and the federal wire fraud statute. As a former state attorney general and, before that, a prosecutor on the staff of Manhattan District Attorney Robert M. Morgenthau specializing in organized crime rings, he could not have been unaware of the likelihood of connections between an international prostitution ring like this one and other, more sinister organized crime operations. He could not have been unaware of the possibility that he might be subjected to blackmail attempts. The Governor of New York simply can't expect to be an "anonymous john."

Were I Czar, I would decriminalize the exchange of money for sexual favors among genuinely consenting adults. But I'm not, and the legislative bodies that make the laws applicable to Spitzer's conduct haven't decriminalized that conduct either. His transgressions occurred while he was an elected public official — indeed, the chief executive branch official of the State of New York, who had sworn an oath upon taking office to uphold and enforce the laws of that state.

He has not yet resigned; his very short afternoon news conference was just a vague announcement of unspecified failings and an apology, after which he took no questions. I don't interpret that as necessarily evidencing an intention to hunker down, Larry Craig-style, to try to ride out the storm. Rather, I note that unlike most vice cases (which typically are brought by state prosecutors in state courts solely under state law), this is a federal criminal case, in which Spitzer is at least a potential witness with respect to charges against the existing defendants. Perhaps the interstate nature of the ring explains the federal involvement by itself, but I wonder whether there's way more to this story — and specifically, to Spitzer's involvement in it — than his simply being an "ordinary client" of the ring. So far, the feds have spared him the indignity of a perp walk in cuffs, but that doesn't mean one's not coming. The New York Sun reported that these particular federal prosecutors are from a unit "specializing in government corruption cases". I speculate — and, in fairness, I emphasize that this is nothing more than my uninformed speculation, just a gut hunch — that there's another shoe (or boot or anvil) that we haven't heard drop yet.

Whether it's on the potential federal charges mentioned above, or something much less savory and much more culpable than money for sex across state lines, my guess is that Spitzer's lawyers are already in plea negotiations with the federal prosecutors, and that one component of a plea deal under discussion would include his resignation. Resigning, in other words, may be inevitable, but if he is himself a potential target of criminal prosecution and he announces it before plea negotiations are exhausted, it loses its value for that purpose. If, by contrast, he were relatively sure that he's not himself a potential target of prosecution, and he'd already made a decision to hunker down, I would have expected him to announce that today, to get it all over with at once before going "to the mattresses."

Spitzer's self-righteousness, egotism, and overweening ambition have earned him many enemies. Earlier today I heard legal pundit Greta Van Susteren on Fox News say something to the effect that Spitzer is "hated on Wall Street" because he's tried to "clean up the corruption there." But not all, nor even most, of Wall Street is involved in corruption, and Spitzer is hated by many who are themselves squeaky clean. He's been a class warrior, demonizing not just corrupt businessmen but businessmen and their businesses in general. Tonight, toasts will be drunk to his political demise, and cigars will be metaphorically lit from the bonfire of his career. It's hard for me to imagine that there are many fellows who are more deserving of that scorn and schadenfreude.


UPDATE (Mon Mar 10 @ 7:30pm): ABC News reports (h/t TPM) that the "federal investigation of a New York prostitution ring was triggered by Gov. Eliot Spitzer's suspicious money transfers, initially leading agents to believe Spitzer was hiding bribes, according to federal officials," and that Spitzer

is likely to be prosecuted under a relatively obscure statute called "structuring," according to a Justice Department official.

Structuring involves creating a series of financial movements designed to obscure the true purpose of the payments.

This suggests Spitzer was taking out big chunks of cash — consistent with the impressive fees reportedly charged by these high-dollar callgirls — in chunks of more than $5k but less than $10k in an attempt to avoid the paperwork that banks must file for large cash transactions. I've read elsewhere that Spitzer has family money, so that even on a public servant's salary, he probably could finance this habit without needing bribe money. Also per the same ABC News report:

It was only months later that the IRS and the FBI determined that Spitzer wasn't hiding bribes but payments to a company called QAT, what prosecutors say is a prostitution operation operating under the name of the Emperors Club.

That sounds pretty plausible to me. If there were no other organized crime connections, that's the kind of crime that might well result in a no-prison time recommendation and sentencing calculation for a first offender pleading guilty and cooperating. Various other press and blogospheric sources are now reporting that Spitzer is likely to formally resign tonight — and the time difference between his afternoon press conference, which was necessary to address an imminent NYT story, and a resignation tonight would represent about the right amount of time for the lawyers to sew up the paperwork for a formal plea agreement that includes his resignation.


UPDATE (Mon Mar 10 @ 9:30pm): The statute referenced in the ABC News report is almost certainly 31 U.S.C. § 5324. A quick Westlaw check suggests that it's never produced any reported decisions, which doesn't much surprise me. Certainly as a former prosecutor of organized crime defendants (including money launderers), Spitzer would have known that cash transactions trigger requirements for banks (under 31 U.S.C. § 5313(a), which (along with its implementing regulations, see, e.g., 31 C.F.R. §§ 103.18 & 103.22) require banks and other financial institutions to file "Suspicious Activity Reports" with the Treasury Department for suspicious transactions of $5k+, and for almost all currency transactions of $10k+. Without aggravation, it looks like the penalty tops out at 5 years plus a fine, but that would presumably be per count, and the nature of the crime suggests it was likely to have been repeated. That suggests to me that there is lots of room for prosecutorial discretion in charging, and likewise lots of flexibility on potential pleas.

I don't see any interpreting cases for section 5324 in a quick check of Westlaw (which doesn't surprise me), and I'm far from expert in this field of white collar criminal law — but Spitzer certainly may be deemed to be one, given his background of prosecuting money laundering! Anyway, as I read it, section 5324 basically makes it a crime to deliberately structure your transactions to avoid getting on those radar screens — intent being the key element of proof. Absent a confession, the prosecution would typically have to prove intent circumstantially, however. If there are financial records from which lots of large (but slightly under-limit) withdrawals correspond closely in time and cumulative amount to what the callgirl ring's receipts show from Spitzer, that would be a fairly compelling circumstantial case. To beat it, Spitzer would effectively have to come up with some other very convincing explanation for the size and purpose of the transactions.

Frankly, a "money laundering"-type charge would be far sexier, and far more likely to be actually charged in these circumstances, than a "mere" Mann Act or wire fraud charge predicated directly on the prostitution. That is, if that's the prospective charge, then it's much harder for Spitzer to defend — either in a court of law or the court of public opinion — on the basis that "this is all really only about consensual adult sex," or even "only about lying about sex."

Meanwhile, federal prosecutor WLS, guest-blogging at Patterico's and linking the same ABC News report, opines that "the facts suggest to me that Spitzer has received a target letter indicating that he is the target of a federal criminal investigation for his conduct." If so, he says, "his problems are a lot bigger than first seemed the case." Criminal defense lawyer and blogger Jeralyn Merritt at TalkLeft reports that Spitzer is  being represented by NYC mega-firm Paul, Weiss (not a big surprise), and that a NYC television station is reporting that Spitzer's resignation may come tomorrow. She and her commenters are also speculating on what kind of plea deal may be brewing. Among other things, she's curious about the fact that this was filed as a complaint, rather than an indictment from a grand jury, and there's some discussion in the comments about the specific regulations that might be implicated.


UPDATE (Tue Mar 11 @ 2:20am): So how important were these trysts to Gov. Spitzer? This paragraph, from Tuesday's WaPo, is equal parts funny and sad (emphasis mine):

Spitzer's travel schedule shows he spent the night of Feb. 13 in Washington to attend a congressional hearing the next day, Valentine's Day. Spitzer was not initially scheduled to appear at the hearing on the state of the bond industry, held by the Financial Services subcommittee on capital markets, insurance and government-sponsored enterprises. But committee staff members said Spitzer called to insist on coming to testify, and they ended up pushing back the New York insurance superintendent to make room for the governor's last-minute appearance.

What better alibi to prove the need for an overnight trip than a room full of bored Congressmen, aides, industry lobbyists, and the Congressional Record? Meanwhile, WaPo's Dana Milbank chips in for the First Lady of the Empire State:

The woman accused of running a prostitution ring allegedly patronized by Eliot Spitzer told one of her call girls that the New York governor had been known to "ask you to do things that, like, you might not think were safe."

But whatever Spitzer — or, in the language of a federal court filing, "Client-9" — did with a petite brunette nicknamed "Kristen" on the eve of Valentine's Day last month at Washington's Mayflower Hotel, it probably wasn't as monstrous as what he asked his wife to do yesterday.

In the grand tradition of Larry Craig, David Vitter and Jim McGreevey, Spitzer dragged his partner of 21 years before the television cameras at his offices in New York to announce that he was "disappointed" in himself for unspecified sins.

Despite more colorful speculation, my guess about the "not safe" past requests is that they were requests for unprotected ("bareback") sex without a condom. Smart call-girls — heck, smart anyone — should know better than that, and it fits the escort's quoted reply, but it's exactly the sort of thing a white-bread 48-year-old rich boy with a self-destructive streak might well demand. On the subject of his wife and daughters: I don't lack sympathy for them, particularly the daughters; but it's not the world who owes them an apology, it's Eliot Spitzer.

Posted by Beldar at 05:51 PM in Law (2008), Politics (2008) | Permalink | Comments (23)

Saturday, March 08, 2008

A peculiar and ostensibly conservative assessment of the Bush-43 Administration as a "failed presidency"

Having just praised a short article in the Weekly Standard's online version by Ed Whelan, I find myself reluctantly obliged to pan a very long one also published there by Jeffrey Bell, who's a visiting fellow at the Ethics and Public Policy Center (of which Mr. Whelan is president) and a principal at Capital City Partners (a Washington political consulting firm). Other blogospheric reactions to Mr. Bell's article that I've come across so far range from generally approving to skeptical to outraged to insulting.

Having entitled his article "The Politics of a Failed Presidency," Mr. Bell has certainly written ambitiously and comprehensively, albeit without subject headings or much else by way of obvious organizational structure. The individual sentences and paragraphs track nicely and the prose is serviceable, but this article badly needed a better or more aggressive editor. To his credit, though, Mr. Bell's premise is simple, and it's clearly stated in his article's very first sentence: "The failure of the Bush presidency is the dominant fact of American politics today."

But other than by repeated references to the most ephemeral standard — current public opinion poll ratings of the President — I think that Mr. Bell fails to make a persuasive factual case to support that premise. In a sentence: Mr. Bell sweats the small stuff to death, but he badly misses the big picture.

Thank goodness Dubya himself has mostly done the opposite.


To thoroughly Fisk this article, I'd need to duplicate, or exceed, Mr. Bell's article's own 9200-word length, which would get me down below a "forest/trees/twigs" level of detail to the microscopic level Mr. Bell sometimes embraces. With my customary brevity, however, I've managed to keep this down to a svelte 1800 words or so.

Not many Americans, present or future, would consider judging the basic success or failure of the Bush-43 Administration on such minutia, for instance, as its failure to stand up against gay rights advocacy groups to preserve the Ministerial Exemption to the CARE Act, and the allegedly consequent failure of the full Congress to pass Bush's faith-based initiatives program in full. Mr. Bell gives that argument eight terribly detailed (and, frankly, tedious) paragraphs running more than 700 words. (I'm still not quite sure I understand it, after three re-readings.) Okay, then, maybe that's a darned shame. But do you think anyone will remember it in 2020, much less 2050, in assessing the overall success or failure of the first American presidency of the 21st Century?

Perhaps it's no surprise that many of the Bush "failures" identified by Mr. Bell — a self-described conservative, Vietnam vet, one-time Senate opponent of Bill Bradley in New Jersey, former president of the Manhattan Institute, and senior consultant to the Gary Bauer campaign in 2000 — would nowhere appear on a list compiled by Democratic opponents of the Administration. Nor, for the same reason, are very many of Bush's "failures"  as perceived by Democrats included on Mr. Bell's list. But it is perhaps a surprise that some things which many other conservatives would assess as very conspicuous "failures" on the part of this president — his first-term embrace of protectionist steel tariffs, for example, or his nomination of Harriet Miers to the Supreme Court — utterly escape Mr. Bell's attention.

Even when Mr. Bell gives Dubya due credit for accomplishments that most conservatives, and even Bush opponents, would acknowledge, however, it's terse credit. A conspicuous example, dear to my own (and I'll wager to Mr. Whelan's) heart: "The nomination and confirmation of John Roberts and Samuel Alito to the U.S. Supreme Court in 2005 accomplished what Richard Nixon, Ronald Reagan, and George H.W. Bush all tried and failed to do: move the Supreme Court toward judicial restraint on social issues." Well, yeah! Mr. Bell throws in another couple of sentences on this subject, but maybe it's worth more than one paragraph in the "big picture," d'ya think?

And this is unfortunately typical through-out: Leading multinational coalitions in the rapid and low-casualty toppling of two of the world's regimes most hostile to the United States gets George W. Bush a couple or three passing references in Mr. Bell's analysis. Persuading Libya to drop its nuclear weapons program gets precisely one sentence, as does persuading Pakistan to shut down A.Q. Khan's nuclear proliferation ring.

In fact, were I to compile from Mr. Bell's article a bullet-point list of things he at least casually mentions that I, by contrast, consider to be significant achievements from the first seven years of the Bush-43 Administration, it would turn out to be a very long list indeed. He and I agree on many of the individual pieces of relevant evidence, in other words, but we definitely disagree about the weight to which those pieces, individually and especially cumulatively, should be accorded by the jury.


Mr. Bell is also a bit too willing to presume presidential power beyond that which practically exists. For example, there's a long segment which begins: "In retrospect, a fateful turning point for Bush's credibility was the elevation of Mahmoud Ahmadinejad to the presidency of Iran in June 2005." This is Dubya's fault? A turning point in Dubya's credibility? Nobody's happy that Iran is still a nuclear threat, not even France. But if one's going to point to that as evidence that the Bush-43 Administration is a "failed presidency," one's obliged to lay out a plausible scenario as to precisely what ought to have been done better and differently, and how it was in fact doable. Mr. Bell is merely grumpy on this topic, not constructive in his criticisms.

And despite his somewhat vague grumbling about it, I don't think Mr. Bell quite intended to lay responsibility for the SCOTUS' 2003 decision in Lawrence v. Texas at Dubya's feet — and that position would be rather hard to argue explicitly, since it predated either the Roberts or Alito nominations, and they both replaced Justices who declined to join in Justice Kennedy's opinion for the majority anyway. But Mr. Bell certainly faults the Bush-43 Administration for failing to exact more "decisive consequences" against the pro-gay marriage side after the 2004 election victory. Both Democratic candidates for 2008 purport to oppose gay marriage, and based on the just-finished oral arguments, many, and perhaps most, knowledgeable observers predict that the California Supreme Court — California, for pete's sake! — is about to refuse to follow the Massachusetts lead by ruling that the spate of gay marriages attempted by San Francisco city authorities in 2004 were invalid. The Bush-43 Administration made a reasoned decision that given the lack of extreme urgency and the other demands on its diminishing political capital, accomplishing more by way of federal action just wasn't in the cards, and therefore wasn't a top priority for the second term. I gather that Mr. Bell disagrees with that call — but in the big picture, is that a serious reason to describe the Administration as an overall failure?

In other parts of his article, for someone with his impressive track record in government service, political campaigning, and conservative policy circles, Mr. Bell is strikingly naïve. He writes, for example, of Bush having failed to make his highly significant and extraordinarily successful tax cuts "permanent" as being a major failure — exactly as if one Congress and president had the constitutional power to bind the taxation policies of a later Congress and president. Here's a clue: There's no such thing as a "permanent" tax cut, nor "permanent" tax increase for that matter. Using that word, just like scheduling the "expiration" of tax cuts, is at least 90% spin rather than substance. And even if a Republican majority Congress and Bush had successfully insisted on calling the Bush tax cuts "permanent" as of their initial passage, the next Democratic majority Congress and Democratic president would have been certain to try to roll them back anyway. (John McCain, to his credit, recognizes that it's silly to go along with the Democrats' talk of the "expiration" of the Bush tax cuts. What they promise, and what he's promising to oppose, is in sum and substance a Democratic tax increase, period.)


Finally: I don't know if this is a "bi-coastal conservative" problem, or if it's mere coincidence that Mr. Bell, Peggy Noonan, George Will, and the most anti-Dubya contributors to the National Review all just happen to live somewhere on either the east or west coasts (rather than on the Gulf coast or in the "heartland"). But some things that are absolutely colossal on my list of Bush accomplishments, Mr. Bell and those others tend to either short-shrift or else altogether ignore.

The voters who supported George W. Bush in 2000 desperately wanted a president who would, through his conduct over his entire term, repudiate and erase the sleazy sexual and ethical stains, metaphorical and unfortunately quite literal, that Bill Clinton had generated in the Oval Office. They wanted a president who made and stuck to decisions based on his own principled judgments, not focus groups and polls, and who would continue to do so even at the risk of extreme political unpopularity. They would accept a president who might not be a slick talker, so long as he knew what the meaning of "is" is. Those are all intangibles, but they're big issues on which George W. Bush has kept his promises. While delving deep into individual domestic policy programs, Mr. Bell seems largely oblivious to this very big picture, or at least to its due weight in a balanced consideration of the Administration's overall success or failure.

And altogether missing from Mr. Bell's article is an adequate recognition that notwithstanding the closeness of the 2000 election, nor everything subsequent to it (including the 9/11 attacks coming on "his watch" and then the failure to find WMD stockpiles in Iraq), Dubya won re-election in 2004 with the largest number of popular votes in American history — keeping John Kerry and his minions out of the White House. By most historians' measure, and by the public's too, getting re-elected is the single most significant indicator of a president's overall success or failure. Failing to get re-elected was easily the most significant aspect in which Bush-41's administration can be deemed to have been a "failure," precisely because it let the randy, slick-talking, dirty-dealing Democratic governor of a small southern state into 1600 Pennsylvania. The voters threw Poppy out, but they kept both Dubya and Reagan. And that's the bottom bottom-line.

Curiously, Mr. Bell acknowledges near the beginning of his article that candidates "for the Republican presidential nomination had to deal with the fact that in our polarized politics, Republican primary voters are still predominantly pro-Bush." But Mr. Bell doesn't mention the self-inflicted torpedo that did more than any other to sink the surge of the Huckabee campaign — Huckabee's description (taken directly from the DNC playbook and the pages of dKos) of the Bush-43 Administration's "arrogant" foreign policy and "bunker mentality." He should have; indeed, Gov. Huckabee's screed has more than a little in common with Mr. Bell's own. Mr. Bell is obviously a thoughtful man, and one with whom I agree on a great many important things. Perhaps, though, he ought to have given further thought, before committing himself to the notion of the utter "wreckage" of the Bush-43 presidency, to whether those Republican primary voters' grasp of the big picture might indeed be substantially better than his own.

And to the extent that this article might be read as a recommendation that Republican candidates in 2008, including but not limited to McCain, should aggressively characterize Dubya as a "wreck" or his administration as a "failed presidency," that's just awful advice for the general election too. In fairness, that's not the gist of Mr. Bell's actual advice to them, despite the title and premise of his article. (Instead, he cautions them to avoid getting trapped into a binary choice of embracing or repudiating the Bush legacy by trying to "break down such questions into specifics," after which they should "pivot as quickly as possible toward the future" while also blaming Democrats whenever possible.) But Mr. Bell might have gone farther to point out that aggressively trashing Dubya — as he'd just concluded doing! — won't be sufficient to win over any part of the Democratic base. They're already entirely committed, with all of the momentum of their Bush Derangement Syndrome, to the proposition that McCain is McSame. Nor is trashing Bush necessary to attract those independents who may indeed have voted for Bush but have since become impatient or disillusioned with him. Being "not-Bush" is enough for most of them, without McCain or other Republicans having to become the "anti-Bush."

Posted by Beldar at 11:43 PM in 2008 Election, Global War on Terror, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink | Comments (4)

Obama's potential judicial appointments

The rest of the article is definitely worth reading too, but in two concise paragraphs, Ed Whelan gives us the essential things we need to know about what kind of federal judges a President Obama would appoint (emphasis Ed's):

Although Obama has served in the Senate for barely three years, he has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators. Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito, and he even joined in the effort to filibuster the Alito nomination. In explaining his vote against Roberts, Obama opined that deciding the "truly difficult" cases requires resort to "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." In short, "the critical ingredient is supplied by what is in the judge's heart." No clearer prescription for lawless judicial activism is possible.

Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old — and that's the criterion by which I'll be selecting my judges." So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

If you like your constitutional law bold, sweeping, and thoroughly disconnected from anything actually written down in the Constitution or imagined by its Framers, then you'll like Pres. Obama's judicial picks. If you like your law served up by a court instead of by Congress or a state legislature, then you'll like Pres. Obama's judicial picks. If you want vast and mysterious power concentrated in a handful of unelected judges whose behind-closed-doors deliberations will turn their own policy preferences into holy writ, changeable only through constitutional amendment (or a thorough overhaul of SCOTUS membership and then its recent precedents), then you'll like Pres. Obama's judicial picks. If you see stare decisis as a ratchet wrench that only permits torque in the direction "lefty-loosey," then you'll like Pres. Obama's judicial picks. If you want federal courts to disrespect and ride roughshod over their state-court counterparts, then you'll like Pres. Obama's judicial picks. If you want a heavy thumb on the defendants' side of the scales of justice, with no counterbalance for victims' rights or the public interest, then you'll like Pres. Obama's judicial picks. If you want even our foreign policy and the Global War on Terror micromanaged by the federal judiciary, then you'll like Pres. Obama's judicial picks. If you want American law to kowtow to and adopt wholesale from judges and courts you've never even heard of that sit in Brussels, The Hague, or Geneva, then you'll like Pres. Obama's judicial picks.

And if you're not satisfied with a Constitution that (in the words of Justices O'Connor and Kennedy) merely treats "liberty" as "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," and if you're not even quite satisfied with a "living, breathing Constitution" — well then, by golly, you'll just love the rip-roarin', snot-snortin', tap-dancin' Constitution as imposed on us all by Pres. Obama's judicial picks. God save the United States from that "Honorable" Court.

Posted by Beldar at 01:46 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink | Comments (4)

Thursday, January 31, 2008

Benches, birds, and bees: Daddy, where do judges come from?

From a post today by the estimable Ramesh Ponnuru on The Corner, commenting on what kind of judges John McCain says he will appoint:

First, from an interview in the spring of 2007, on the type of judges he would look for: "I think it’s vital to strictly interpret the Constitution of the United States and have a record of that. Not just a statement of it, but a record of it." That would seem to preclude any Harriet Mierses — and any David Souters.

I'm concerned that both Mr. Ponnuru and Sen. McClain may be profoundly naïve here — almost like a well-meaning child who suggests that we address the problems of birth defects by instructing the storks at the zoo simply to "take those crippled babies back and bring us some new ones."

Taken literally, McCain's quoted statement is entirely impractical if applied to nominees for the United States District Courts. And if this criterion were used even just for the circuit courts of appeals and the Supreme Court, it would radically transform more than two hundred years of judicial selection-making by presidents of both parties. If you're concerned now about the closed-clubbish qualities of many judges, their lack of experience and contact with reality, and the tendencies toward a "secular religion of judges," just wait until this new lodestar for their selection is applied!

It's true that state-court judges frequently are confronted with, and make decisions based upon their interpretation of, the United States Constitution. State-court trial judges routinely consider both state- and federal-court precedents on Fourth Amendment issues in criminal court suppression hearings, or Fifth Amendment confrontation clause issues on ruling on objections to testimony. State-court trial judges with both civil and criminal dockets live and breathe the notions of Due Process, some of which may be grounded solely in state constitutions, but most of which is at least originally derived from and ultimately accountable under the federal Constitution. Likewise, the lawyers who practice in state criminal and civil courts must know of and work with federal constitutional law — sometimes a little, sometimes a lot; sometimes very general (as with due process), sometimes very specialized (as with eminent domain). And by any quantitative measure, and many qualitative ones too, most justice in the United States gets conducted in the state courts, and there are vastly more advocate and judicial man-hours devoted to that process than in the federal court system. Even though we don't write federal con-law opinions day-in and day out, we're not stupid; we actually include many of the best and the brightest and the most successful legal minds.

But as a general rule, although they make rulings and sign short orders stating those rulings, state-court trial judges around the country generate few written opinions, and in many states (including mine) they typically generate practically none. Lawyers who practice in both those state courts and their federal counterparts may generate a trail of memos, motions, and briefs — but those are works of advocacy, from which it's very dangerous to infer personal legal philosophies. Even state-court appellate judges (from whose ranks David Souter was drawn) write most of their opinions on issues of state law, not federal law, and of the federal law issues they deal with, only some of those are federal constitutional law issues.

McCain's criterion, as stated, de-selects from the outset something vastly more than 99% of all licensed lawyers, and probably more than 99% of all lawyers who've ever had an active advocacy practice, either state or federal, trial or appellate. That's an awful way to run a talent search!

Major-league baseball has long maintained farm teams. But they also draft players from college baseball teams, and even from high schools. If we go through the Hall of Fame and start automatically and retroactively disqualifying every player who didn't labor on a farm team for at least ten years before making it to The Show, how much less talented a group of athletes will be left?

Is no one to be eligible even for a federal district court appointment in a McCain administration unless they've first been a state-court appellate judge for a sufficiently long period as to have compiled a sizable body of written rulings based on federal constitutional law? Are no more federal judges at any level to be appointed from the ranks of practicing lawyers, either civil or criminal? No more law professors? No more former U.S. Attorneys, no more former Solicitors General? No more (gasp) former congressmen and senators? Must all federal circuit judges be drawn from the federal district court bench? Must all SCOTUS nominees come from the federal circuit courts?

Because that's not the way it's ever been, not since George Washington first started appointing federal judges.

Even John Roberts had a comparatively short list of federal constitutional law opinions that he'd written in his short stay on the federal court of appeals most likely to deal with them. Most of his career, and most of his career qualifications, came from his work as an advocate — albeit mostly in the federal rather than state-court system, and mostly at the appellate level. He would be the first to point out to you that he's never tried a jury case to a verdict. Do you want a federal bench, all of whose members must also admit to that?

Nor are problems of judicial activism limited to decisions involving the federal Constitution. To the contrary, it's the interpretation and expansion of federal statutes and even the federal common law that gives most knowledgeable conservatives heartburn.

This "cure" misunderstands the disease, and it just won't work. Anyone who takes it literally and seriously doesn't understand the system. Federal judges have never been brought by the "federal con-law opinion stork," and they never will be. This supposed criterion for federal judicial appointments is silly nonsense.

Posted by Beldar at 09:12 PM in 2008 Election, Law (2008), Politics (2008) | Permalink | Comments (3)

Tuesday, January 29, 2008

McCain, judicial nominations, sleeves, and warts

I don't much care about Wall Street Journal political reporter John Fund's report yesterday that's roiling the blogosphere and cable news talking head shows. Fund reported that Sen. John McCain "has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because 'he wore his conservatism on his sleeve.'"

Since Sen. McCain led a gang of other Republican renegade senators in deserting their party's sitting president and colluding with the opposition party to throw some of that president's pending judicial nominations down the toilet — jettisoning along with their confirmation chances the chance for a constitutional showdown that could have ended senatorial filibustering of judicial nominees — there is nothing that Sen. McCain can do, and certainly nothing he can say or write as a campaign promise, to restore his credibility with me on the subject of judicial appointments.

Oh, yes, he did vote to confirm Roberts and Alito. But could we possibly set a lower bar than that for someone who's supposed to be a leader of his party and a contender for the opportunity to fill as many as three SCOTUS seats in the next term?

There are a lot of good things that can be said about Sen. McCain by good conservatives — but not on this issue.

By taking the "constitutional option" (a/k/a "nuclear option" in Dem-speak) off the table, McCain and his fellow "maverick" GOP cronies doomed not only a handful of worthy circuit and district court nominees to non-confirmation, they ensured that the White House would thereafter dare not make any more controversial nominations to those vitally important lower courts. For "controversial nominations," read "demonstratedly and predictably conservative nominations just like Roberts and Alito would have been, but for the higher profile of SCOTUS nominations."

The only way that the Dems could justify stonewalling Dubya's circuit and district court nominations was that the stonewalling happens mostly out of sight, and rarely if ever makes a blip on the general public's radar screens. They couldn't get away with denying a floor vote to a SCOTUS nominee.  But John McCain led the deal that let the Dems guarantee that they could continue to exercise an effective veto on circuit and district court nominations for the remainder of George W. Bush's term, regardless of the outcome of the 2006 elections. The unquestionable result of the Gang of 14's "compromise," as brokered by John McCain, will be two-fold: There will be more judicial vacancies at the end of the Bush-43 term than there ought to be; and such district and circuit judges as have been nominated and confirmed by January 2009 will be mostly bland ones whom McCain's Democratic allies permitted to go through because the Dems couldn't dredge up or even manufacture remotely plausible objections. Some of them will nevertheless turn out to be very fine judges despite their lack of histories around which the Dems could weave their objections. But if your goal is conservative judges, giving the Dems a near-secret and unaccountable veto, which ie exactly what McCain did, is a very, very bad idea.

No sir, the day John McCain led the Gang of 14, he forfeited all of my trust — irrevocably — on judicial selection issues. No ma'am, I don't care what words he mouths now on that subject.

In fact, I'm slightly more inclined to believe Rudy Giuliani's promises about appointing conservative judges than McCain's. Sure, it's contrary to Giuliani's own stance on many social issues; and I'm far from entirely comfortable about Giuliani's campaign promises on this and other subjects. But at least Giuliani hasn't already betrayed this particular trust, and then equivocated about that betrayal. Whereas McCain, whether right or wrong on those social issues, has already shown himself to have no backbone, and to be a willing collaborator with the Dems, specifically when it comes to appointing judges at the circuit and district court levels. (Giuliani's own "collaborator" problems kick in on other issues, like gun control and immigration.)

To the limited extent that I care at all what McCain says now, the mere fact that McCain continues to defend the Gang of 14 deal out-shouts anything else he says. And saying now that he "fought for" the abandoned nominees is just a palpable lie. The way to fight for them was to continue at least threatening to use the "constitutional option." There was no other way to fight for them. There was no other way to even get their nominations to the floor for a vote! To even pretend that those abandoned nominees had a chance once the Gang of 14 struck its deal is comparable to the Brits and French saying in September 1939, "Well, we did still root for the Czechoslovaks after we forced them to give Hitler the Sudetenland last year. Gosh, we really thought they still had a good chance, but we just ran out of time. How could we know he'd go on to gobble up the rest of their country, and Poland too?"

Stepping back and looking at the big picture: Collaborating with the Dems to defeat the Bush Administration's most conservative circuit and district court judicial nominees isn't remotely the same as collaborating with the Viet Cong and North Vietnamese while American POWs (including McCain) were imprisoned. John McCain is not John Kerry, and the Dems are only misguided political enemies of the GOP and conservatism, not profound and literally mortal enemies of western civilization. And I'm sure that in his own mind, McCain has thoroughly rationalized what he did, just like he's rationalized (and now is soft-pedaling) his prior stands on campaign finance reform and immigration. I'm not one of those self-destructive conservative idiots who is going to sit out the 2008 election if McCain turns out to be the GOP nominee. Indeed, if he is nominated — which I still think is unlikely, but I no longer can rule out as a possibility — I'll support him, and defend him, and promote him, and vote for him against whoever the Dems nominate. I will accentuate the positive, for him or any other GOP nominee.

But just don't insult my intelligence by pretending that John McCain is a reliable conservative on the subject of judicial nominations. From the point of view of any knowledgeable conservative, this is one of the huge warts on this particular candidate. And he doesn't have to "wear" that particular lack of conservatism "on his sleeve," because it's a wart that's as plain as his nose. You can secure my enthusiastic agreement that the Democratic alternatives are uglier, that they're practically "all-wart." But quit trying to pull my leg about McCain and this particular subject, okay?

Maybe if McCain is making a SCOTUS nomination, he really will pick another Roberts or Alito. What concerns me, though, is that at best, he'll gladly let the Dems pressure him into packing the circuit and district courts with Kennedys, O'Connors, and occasional Souters. I have no doubt that John McCain would be willing to take on the Dems on matters of national security, even if it means a bloody, long-term dispute. But I also have no doubt that if pressed (and he will be), he would make his picks, and then cut quiet deals left and right, to avoid such fights over judicial nominees below the SCOTUS level. Since he's already abandoned conservative principles and cut a deal with the Dems on nominees to those courts even when the GOP controlled the Senate, why would he possibly stand up to them as president, especially if they continue to control the Senate?

Posted by Beldar at 07:43 AM in 2008 Election, Law (2008), McCain, Politics (2008), SCOTUS & federal courts | Permalink | Comments (7)

Saturday, January 05, 2008

"I will beat these people, just like I've been beating them for my whole life"

John Edwards in tonight's Democratic debate in New Hampshire (my transcription from TiVo, emphasis also mine), in an impassioned riff that's the very core of his stump speech:

I think what matters — we've had a lot of conversation about the first day in the White House. I think we ought to picture what that first day in the White House would be, for each of us. I'll just speak for myself. You know, I'm the candidate up here who's never taken a dime from a Washington lobbyist in my entire time in public life, or a dime from a special-interest PAC. The first day that I'm president of the United States, there will be no corporate lobbyists working in my White House. There will be no lobbyist who's lobbied for foreign governments.

And it's — this is a very personal cause for me, because I come from a family — my father's in the audience tonight — where my father worked for thirty-seven years in the mills. He didn't get a chance, like I did, to have a college education.  And this is a fight for the middle class and for families just like I grew up with. My grandmother, who helped raise me, had a fifth- or sixth-grade education, came from a family of sharecroppers. She worked in the mill every day so I could have the chances that I've had.

I spent twenty years fighting irresponsible corporations in courtrooms. I know what it takes to fight these people and win. But here's what I would want people to know.

What I want people to know is: This battle is deep inside me, and it is personal. And it matters, whether it's personal or not, because if it's either academic or political, when the tough fight comes, you'll walk away from it, you'll do what's political. This fight is deeply personal to me. I've been engaged in it my whole life, the fight for the middle class, the fight against powerful special interests. And it is a fight I will wage on behalf of the people as president of the United States....

This spiel presumes that everyone in the audience knows that Edwards, before being elected to the Senate, was a prominent and, by all accounts, very successful plaintiff's personal injury trial lawyer. That's certainly a reasonable presumption on his part, given his high degree of name recognition dating back to the 2004 election in which he was the Dems' Veep nominee.

This spiel also presumes that the substantial portion of the American public who thoroughly despise plaintiffs' personal injury trial lawyers as as class are already lost to him as potential voters. That's not Edwards' intended audience at all.

Instead, he's speaking to the (also very substantial) portion of the American public who are still capable of viewing plaintiffs' personal injury trial lawyers as champions of the downtrodden, the oppressed, and the victimized. And to that portion of the public — most of whom are Democrats or who at least lean Democratic, and who might therefore vote in the Democratic primaries — the subtext of Edwards' message is this:

Yes, I'm a newly rich man. I have a big house, and I can buy $400 haircuts without a second thought, and I can't remember the last time I sat in a center seat with my knees against my chest on a commercial airline flight. But that's because I am a gladiator, a champion, a warrior without compare — and I've wrested the fortune that permits me to own that big house and pay for those haircuts and airline flights from the greedy, blood-drenched fists of the robber-barons whose sole joys in life are to deny badly needed liver transplants to young girls who actually do have health insurance. And if you want to enjoy the sheer spectacle of me slaying the Big Insurance Companies, the Big Pharmaceutical Companies, and the Big Oil Companies from the White House (instead of just from the courtroom), give me your vote!

It's not exactly political jujutsu, because he's not speaking to the voters who detest plaintiffs' personal injury trial lawyers. He can't "flip" those people. He's not even trying (at least not now, not during primary season).

But it's certainly an example of exploiting — ruthlessly, shamelessly, aggressively, incessantly — the exact part of his career history that other voters than the ones he's trying to woo consider to be among his biggest liabilities.

Way back in December 2006, I wrote that Edwards' career as a plaintiffs' personal injury trial lawyer ought not automatically disqualify him from public office. Rather, I argued, qualities (or lack thereof) personal to him ought to compel that result.

But there's a reason that Gladiator won Oscars for Best Picture and Best Actor, after all! Edwards' exploitation of his past as a plaintiffs' personal injury lawyer is deliberate and, perhaps, very canny. As the 2008 presidential campaign has played out, it's become increasingly clear that that career history is not only fundamental to his personality, but to his basic campaign strategy.


So just how successful was John Edwards as a trial lawyer? Did he almost always win? Did he win most of the time? More than fifty percent of the time?

Nobody really knows, not with mathematical or statistical precision. Even John Edwards himself doesn't know, not in enough detail to answer those exact questions, as phrased.

Practicing law isn't like playing baseball. In baseball, every at-bat ends in an out or an on-base. Those are the only options, so it's very easy to do a nice, clean statistical analysis of a hitter's career at-bats. The on-base portion of the Venn diagram has "hits" and "walks" (including hit batsmen) and "errors" — again, clean, exclusive, and chartable on a sheet of graph paper (or its electronic equivalent). People can, and do, compare the statistics of baseball players not only from different teams, but different eras, and make rational arguments about who was great, who was merely good, who was average, and who was below-average in comparison to one another.

Edwards won some big jury verdicts. Those are indeed matters of public record. But those were, almost certainly, something under 20%, and probably under 10%, and maybe under 5%, and quite possibly under 2%, of the total cases he handled during his career.

Even a goodly chunk of the jury verdicts — the ones that got him big local headlines and corresponding respect among his peers in the North Carolina bar — ended up settling on appeal. And I would bet my ranch (well, anyway, the ranch I someday aspire to own) that just like every other plaintiffs' personal injury lawyer in the United States during the last half-century, the overwhelming, vast majority of his cases settled before trial.

Plaintiffs' personal injury lawyers have a truism: You don't make your fortune off the cases you try. You make your fortune off the cases you settle, based on the settlement amounts that are (in significant part) a function of the (vastly smaller) number of cases that you try.

Oh, don't misunderstand me: If you don't have a reputation gained by winning a sufficient number of high-profile cases, you're unlikely to be able to settle most of your cases for above-average amounts. And without that reputation, you won't attract very many, if any, of the cases whose fact-patterns can give rise to huge settlements. (Brain-damaged baby cases don't grow on trees! There's a competition for them!)

But by definition, settlements are "draws." They don't get counted up as "at-bats." They disappear down the memory hole, remembered only the individuals involved in each of them.

Whether a settlement is a "good settlement" or a "bad settlement," a "win" or a "loss," is a very, very subjective subject. It's not just common, but incredibly common, for the lawyers for both sides in a settlement to claim victory in their private discussions with their clients and/or their comments, if any, to the press. Yet it's not just common, but incredibly common, for the lawyers for both sides in a settlement to secretly believe, in their heart of hearts, that they lucked out, or squeaked by, or avoided disaster, or broke even.

Indeed, settlements aren't generally matters of public record. To the contrary, large and increasing percentages of them over the last half-century have been conditioned upon their terms remaining confidential — including settlements while appeals were pending, from those cases that have already gone to highly publicized verdicts. That conceals results that might otherwise have been deemed "victories" by other knowledgeable observers. But it also conceals results that might otherwise have been deemed "defeats," and nobody, not even the law firms and clients involved, can tell you with any precision at all how many of each category have been so consigned to secrecy.

As someone who's practiced on both sides of the personal injury bar in Texas for about as long as John Edwards practiced law on the plaintiffs' side in North Carolina, and from time to time in comparably sized cases to those he's associated with by reputation (albeit from the defense side in those), I will guarantee you this:

There does not live or breathe the plaintiffs' personal injury trial lawyer who has not wondered, agonized, paced the floor debating, and perhaps even vomited into the toilet wondering (to himself, to his spouse, maybe to a trusted partner), after the conclusion of a mediation that resulted in a settlement: "When the insurance company's adjuster or corporate representative boarded his flight back to ___, did he still have $___ thousand/hundred thousand/million dollars in 'settlement authority' that he ended up not having to agree to pay out? Did I leave big money on the table by settling, when I should have held out, maybe tried the case?" Because if he did ... then by one standard, the plaintiff's lawyer lost that case.


So: If you're trying to predict how often President Edwards will be able to sustain his veto overrides, or ram unwanted legislation down the throats of an objecting (a/k/a "powerful special interest"-toadying) set of Congress-critters, what inferences can you actually draw from his success as a courtroom lawyer "who's been winning" against "these people" for "all [his] life"?

You can't. Not if you know the truth about the nature of the career in which he was engaged before he entered politics. Not if you understand just how hard it is to compare trial lawyers in the same way that we compare, for example, baseball players or hedge fund managers. Nobody can either prove or disprove, objectively or statistically, Edwards' claim that he's been "beating these people." You can verify that he's gotten very rich by doing it — but that could just as well mean he's won big on one out of every 20 cases, not on 17 out of every 20.

If you're a Democrat, would you be satisfied with a President Edwards who wins (but wins big) only one out of every 20 times he's in a political battle? I rather think not. Hell, Nancy Pelosi and Harry Reid are already doing better than that.

You can only buy into John Edwards' inference — "I'll whip 'these people' as president just like I've whipped them as a hugely successful plaintiffs' personal injury trial lawyer" — if you're a bitter, class-resentful, and (most importantly) ignorant sucker.

And John Edwards is counting on enough Democrats to be suckers who will buy into that spiel so that he'll get their party's nomination. I still don't think that's likely to happen. But that is his fundamental pitch.

Posted by Beldar at 11:02 PM in 2008 Election, Law (2008), Politics (2008) | Permalink | Comments (18)