BeldarBlog

"Sotomayor & Associates" ... meh, who cares?

Nothing has happened since May 26 to make me change my initial take on Pres. Obama's nomination of U.S. Circuit Judge Sonia Sotomayor to fill Justice Souter's seat on the Supreme Court. (That take, in short, was this:  Obama would never nominate anyone of whom I approved, and Judge Sotomayor, if confirmed, will vote the same way as Souter has, but be no more effective than Souter was (and perhaps less so) at swaying the Court's swing vote, Kennedy, in close cases. Republicans should use every opportunity to demonstrate how disastrous it is for the country and the Constitution to have liberal Democrats like Obama in a position to pick politically liberal and judicially activist SCOTUS Justices. But expecting to defeat Sotomayor's nomination is unrealistic unless something big and new comes up from her past, and I'm very grateful Obama didn't nominate someone who'd be much more effective.)

Now it appears from a NYT story that between 1983 and 1986, on behalf of some friends or friends of friends, Sotomayor wrote a few wills, incorporated a few businesses, or helped skim the closing documents for a few condo sales under the exaggerated firm name of "Sotomayor & Associates" while she was really a full-time employee of the Manhattan D.A.'s office or another law firm.

I agree with my blogospheric friend and fellow lawyer Andrew McCarthy that it doesn't take a sophisticated legal analysis for anyone, lawyer or layman, to recognize that claiming to be "Sotomayor & Associates" — when you really don't have any associates — is stupid and misleading.  It ought not be done. (On this topic more generally, see also Eric Turkewitz, Jim Lindgren, Glenn Reynolds, John Steele, and the Washington Times,)

I very, very seriously doubt, however, that lawyer Sotomayor's transgression in exaggerating the size of her firm ever actually misled anyone. As small potatoes go, this one is pea-sized or smaller. And as misrepresentations with disastrous public consequences go, this one is utterly microscopic in comparison with, for example, almost any one of Obama's presidential campaign promises, or his own claims to have had significant experience to prepare him for that office.

(Personal disclosure: My own solo law firm — likewise an unincorporated sole proprietorship whose name is only a d/b/a (albeit one duly registered with Harris County) — is carefully designated "Law Office of William J. Dyer" on my letterhead, pleadings, website, and elsewhere to avoid implying more than one regular place of business, more than one lawyer, or any incorporated status that would potentially limit or complicate my personal liability for debts of the law practice. It's a traditional name, but terribly stuffy and boring. I'd rather simply use "Dyer Legal" to correspond with my business internet URL, but the State Bar of Texas — for reasons that are entirely opaque and directly contrary to the square holding (at footnote 12 & accompanying text) of at least one federal district court opinion adopted by the Fifth Circuit — considers that to be an impermissible "trade name" which might mislead the public into thinking that I'm making some representation about the quality of my legal services as compared to other lawyers, which Texas lawyers are forbidden to do. I think state bars in general, including my own, have historically done pathetically bad jobs of preventing genuinely misleading information about lawyers and their services from being spread in the marketplace. I also think that they've almost completely defaulted in their obligations to instead ensure that meaningful and accurate information — information which would help promote informed consumer decisions, and which would tend to drive out misinformation — is constantly available to the public in usable forms. There ought to be no commercial market for an advertising-sponsored legal information-gathering and -distributing service like Avvo.com, for example, because state bars, individually or (better) collectively, ought to have already done all that and more, and have done it much better, via the internet. Which is to say, on this set of legal ethics/public interest issues, I'm a self-interested, grumpy curmudgeon, but not entirely a traditionalist. I do care about these issues, in other words, but I don't think they matter much in the context of the Sotomayor nomination.)

Beldar's initial take on the Sotomayor nomination

Elections have consequences and, as he's prone to remind us, Obama won. I firmly believe that the President of the United States has the right to choose who he wants as his nominees to the Supreme Court, and that the Senate, in its advice and consent role, ought to confirm those nominees unless they're objectively unqualified. Of course that is not the rule Obama, Biden, or Clinton followed as senators; but notwithstanding their perfidy, and the fact that such perfidy is more typical of their party than of the GOP, I still think the GOP senators did the right thing when, for instance, the Senate approved President Clinton's nomination of Ruth Bader Ginsburg by a vote of 96 to 3 in 1993. And yes, of course John Roberts ought to have been confirmed as Chief Justice by at least that kind of margin, and yes the Dems who voted against him are unprincipled hyper-partisan bastards. So what else is new?

(An aside, apropos of very little: When I was puttering around my father's house during a visit to my hometown in January, I happened upon an unbound issue of the Texas Law Review — specifically, Volume 57, No. 6, dated August 1979. It was on my non-lawyer father's bookshelf — and it's certainly the only legal periodical to be found anywhere in the house — because it contains my one and only published law review article (or, more technically, my "student note" that I wrote as a second-year law student and new member of the Review). I hadn't looked at that issue, though, since some time in the early 1980s, and I had quite forgotten that one of the lead articles in that issue was entitled "Ratification of the Equal Rights Amendment: A Question of Time." The author? Ruth Bader Ginsburg, then a professor at Columbia Law School.)

In any event, there's never been any chance that President Obama would nominate a replacement for Associate Justice David Souter of whom I would thoroughly approve, or mostly approve, or even much like. Nor has there ever been a realistic chance that someone with the minimal objective qualifications could be effectively filibustered, much less defeated in an up-or-down confirmation vote, given the current composition of the Senate. As a practical matter, the most that conservative GOP senators could realistically hope for is to nudge whoever Obama nominated out onto some long and slender limbs during her confirmation hearings — possibly generating some pithy sound-bites that can legitimately become grist for the public mill when the GOP asks the American public again in 2010 and 2012, "Do you really want the Democrats to have such a free hand in putting this kind of person onto the federal bench?" And that's still a goal that's definitely worth pursuing, especially if the GOP members of the Judiciary Committee can treat their own rampant and chronic cases of "senatoritis" (that is, making speeches rather than actually asking pithy and comprehensible questions which will genuinely probe the nominee's beliefs and judicial temperament).

Based upon what I know of her so far, in U.S. Circuit Judge Sonya Sotomayor, Obama seems to have passed the "minimum objective qualifications" bar. This is no surprise, no more than the fact that this is a blatantly racist and sexist selection made to appease the Democratic Party's loathsome identity politics. However, Karl Rove made a good point on one of the Sunday talking head shows this weekend when he pointed out that the Obama Administration can't possibly have vetted her (or any of the other finalists) nearly as thoroughly as the Bush-43 Administration had vetted Roberts and Alito, so I reserve the right to change my opinion if some significant disqualifying facts pop out now that she's under everyone's microscope.

Beyond that, my main reaction to the Sotomayor nomination is actually a sigh of relief. This is guesswork on my part, mind you. But from what I know of them, my strong gut hunch is that either of the other two purported "finalists" whose names had been floated in the press — newly confirmed U.S. Solicitor General Elena Kagan or U.S. Circuit Judge Diane Wood of the Seventh Circuit — had significantly greater potential to become extremely effective in influencing Mr. Justice Anthony "Sweet Mystery of Life" Kennedy. (Indeed, the potential nominee I feared the most, and for that very reason, was Obama buddy Cass Sunstein, who I think would have absolutely owned Anthony Kennedy within his first six months on the Court.) Had Obama chosen someone likely to become particularly influential with Justice Kennedy, that could have made a significant, and oftentimes outcome-determinative, difference on some substantial portion of the very close decisions on the Court over the next several years, even if we assume that the new junior-most Justice will mostly vote as we expect Justice Souter would have done. I don't think Justice Souter has been especially effective in influencing Justice Kennedy, however, and I don't have any reason to believe that Judge Sotomayor, if confirmed to the SCOTUS, will be either.

Supermax prisons' no-escape record doesn't answer concerns about moving Gitmo terrorists onto U.S. soil

I'm already very tired of hearing the stupidest new talking point of the mainstream media: "Why worry about bringing terrorists from Gitmo to the mainland U.S., when we've never had a single escape from a federal 'Supermax' prison?" Duh. This is the sort of 9/10/01 thinking, the sort of "treat global terrorism like a domestic law enforcement problem," that is going to get people killed.

The risk isn't just, or even primarily, that the terrorists will escape, or that they'll misbehave while in custody, although those are indeed considerable risks that ought not be dismissed out of hand. Nor is the risk just, or even primarily, that being on U.S. soil will strengthen the prisoners' potential legal claims and defenses — although that's a considerable risk, too.

Rather, the most serious risk is that the same type of terrorist organization that mounted a simultaneous four-plane multi-state flying bomb assault on the Twin Towers and the Pentagon on 9/11/01 would welcome the opportunity to assault any holding facility on American soil, or whatever community was closest thereto, in an attempt to force the captured terrorists' release. Simply put, friends and neighbors: Any holding facility for radical Islamic terrorists on American soil would be a target and a potential "rescue mission" for which al Qaeda or its like would delightedly create dozens or hundreds of new "martyrs" from among their own ranks.

Right now — as has been continuously true since the first prisoners were shipped there after we began operating against the Taliban in Afghanistan — these terrorists' would-be "rescuers" can't assault Gitmo without first getting to Cuba and then defeating the U.S. Navy and Marine Corps at sea, on land, and in the air. That's not the kind of fight they want; those aren't the kind of logistical hurdles they can ever overcome. Keeping all the captured terrorists at Gitmo, in other words, has played directly to our strongest suit as a nation — our superb, unparalleled, and highly professional military strength as continuously projected in a place of our choosing without risk of collateral casualties among American civilians.

But once the scene shifts to American soil, we lose virtually all of that combination of power and flexibility, and surrender back to the terrorists all the advantages upon which they regularly depend. Getting into the U.S., or using "sleepers" already here? In a fight against some local sheriffs or prison guards armed mostly with revolvers and tasers (perhaps supplemented with shotguns or even a few assault rifles, but no heavy weaponry at all)? With the fighting to take place in or even near any American population center? Can the Obama Administration possibly be so stupid as to forfeit all of our own advantages, and give all of the terrorists' advantages back to them? Can they do that for no better reason than to placate the idiots on the Hard Left who still have failed to heed the warnings on those Viagra/Levitra commercials? (Their hard-ons for George W. Bush have lasted now for substantially more than four hours — indeed, for more than eight years! — but they're still not seeking immediate medical, which is to say, psychiatric, attention.) I'm very afraid that the Obama Administration's answer to these questions may remain: "Yes we can!" (Followed by, "Shut up! We won.")

If instead you distribute the current Gitmo prisoners among many American locations, you still forfeit all of the advantages of Gitmo, while simply multiplying the number of potential targets that we have to protect, and without significantly diminishing the potential propaganda rewards to their would-be terrorist rescuers from even a single assault. Their international publicity coup would be about the same — humiliating the "Great Satan" again on its own soil — whether they sprang two prisoners or two hundred. And for that matter, their PR purposes don't require them to actually succeed in the rescue attempt, just to get a lot of non-terrorists killed too.

As for why domestic history with merely criminal organizations isn't instructive: The Mafia, or the Colombian drug-lords, or whatever other allies there may be of those who've been successfully held in Supermax and other American civilian prisons, generally aren't willing to engage in mass suicides to free their incarcerated compadres. Nor are they inclined to try to kill thousands of American civilians in the process of effecting a rescue. "Terrorism" is a sideshow for them, a temporary and small-scale means to generate financial profit. And while they have money and access to at least paramilitary weapons, they don't have the kind of rogue state support (think Iran and potentially North Korea) that may be available to our enemies in the Global War on Terrorism — ummm, errr, Global War on Man-Caused Disaster-Creators.

Security for the terrorists now being held at Gitmo, in short, isn't just a question of "keeping them in." It's necessarily a question of keeping them where they can't get to others and others can't get to them — or anywhere remotely close to them.

Why I celebrate Chrysler's petition for Chapter 11 reorganization

Count me as one person entirely unsurprised to read that representatives of the Obama Administration were making outrageous and improper threats to the Chrysler bondholders whose refusal to capitulate ended up in Chrysler's Chapter 11 filing. White & Case bankruptcy lawyer Tom Lauria gave a radio interview to Detroit talk radio host Frank Beckman, portions of which are transcribed here, in which he said:

One of my clients was directly threatened by the White House and in essence compelled to withdraw its opposition to the deal under the threat that the full force of the White House Press Corps would destroy its reputation if it continued to fight. That’s how hard it is to stand on this side of the fence.

Beckman: Was that Perella Weinberg?

Lauria: That was Perella Weinberg.

And Obama himself actively participated in the shakedown:

Peter A. Weinberg and Joseph R. Perella are part of a band of Wall Street renegades — “a small group of speculators,” President Obama called them Thursday — who helped bankrupt Chrysler.

That, anyway, is the Washington line.

In fact, Mr. Weinberg and Mr. Perella, with sparkling Wall Street pedigrees, are the epitome of white-shoe investment bankers. And their boutique investment bank, a latecomer to Chrysler, played only a small role in the slow-motion wreck of the Detroit carmaker.

But now the two men, along with a handful of other financiers, are being blamed for precipitating the bankruptcy of an American icon. As Chrysler’s fate hung in the balance Wednesday night, this group refused to bend to the Obama administration and accept steep losses on their investments while more junior investors, including the United Automobile Workers union, were offered favorable terms.

In a rare flash of anger, the president scolded the group Thursday as Chrysler, its options exhausted, filed for bankruptcy protection. “I don’t stand with those who held out when everyone else is making sacrifices,” Mr. Obama said.

Chastened, and under intense pressure from the White House, the investment firm run by Mr. Weinberg and Mr. Perella, Perella Weinberg Partners, abruptly reversed course. In a terse statement issued shortly before 6 p.m. Thursday, Perella Weinberg Partners announced it would accept the government’s terms.

It was too late.

What made Perella Weinberg ultimately give in, when others like Oppenheimer Funds refused? One word: Vulnerability (emphasis mine):

Representatives for Perella Weinberg, which is advising the government on a wide range of banking issues, initially defended the firm’s decision to rebuff the government’s offer.

(Recall that I blogged on March 26 of this year about the odd fact that Obama's chief of staff, Rahm Emanuel, had earned somewhere between $16-$20 million in something between two and three years as an investment banker at Wasserstein Perella & Co. when the Clinton Administration went into exile in 2001, even though Emanuel had zero education, training, or experience as an investment banker or any sort of businessman. And yes — that's the same Perella; he'd moved on to Morgan Stanley by the time Emanuel was at Wasserstein Perella & Co., but it's such a small world, isn't it?)

Glenn Reynolds and Ed Morrissey note the White House press corps' silence — which might be read to imply acquiescence — about being used as part of this threat. And I agree that that's an interesting facet of the story.

The bigger story, however, is that the Obama administration is engaged in a colossal abuse of power whose magnitude far exceeds a mere subversion of the White House press corps. Barack Obama has become Guido, the thug who everyone knows has not only a nasty habit of, but a nasty taste for, breaking kneecaps. And the beneficiary of his current shakedowns are the United Auto Workers.

Obama is counting on the fact that many, probably most, Americans don't know or care about basic principles of corporate finance. But the fact is that all investments — stocks, bonds, notes, commercial paper, CDs, demand deposits, mutual fund shares, whatever — are legal contracts whose very nature is defined by the way they structure and allocate risk of default and prospect for profit.

On the simplest level, for example, in general, people who buy equity in a business, typically by purchasing shares of its common stock, have the greatest potential upside if the business is profitable because they're buying a percentage interest in it, and if the pie keeps getting larger, so too will their slice of the pie. Someone who instead merely loans money to that business — by buying, for example, notes or bonds or debentures that are, at bottom, fancy IOUs — generally forgoes that upside potential, and instead takes only a promise for repayment plus some specified and limited amount of interest. But in general, those who invest by loaning money to businesses also have less risk, because in bankruptcy proceedings — again, speaking on the broadest of terms, and as a general rule — creditors who are owed money by the bankrupt company's estate are ranked, and then paid or otherwise accommodated, before any equity owners (shareholders) get anything. And as a consequence, it's very typical for creditors to get pennies on the dollar, perhaps plus some shares of equity in a reorganized "new" post-bankruptcy company, while the shareholders have been wiped out completely.

And among creditors, there are also rankings. Those who've insisted upon and gotten collateral for their loans — making them "secured creditors" — generally forewent higher interest rates in exchange for the pledge of that collateral. Those who have no collateral, but merely a general, unsecured claim for repayment, are "unsecured creditors." They relied only on the company's general credit-worthiness and, to a lesser extent, the better treatment that even general unsecured creditors get in bankruptcy as compared to equity holders.

I repeat, this is all basic to the entire system of business investments. If these core principles are disturbed, there will be no more capital markets — no ability to buy shares of stock or corporate bonds, no way for growing companies to expand by selling equity or taking on debt.

What the Obama Administration has been trying to do, however, has been to cajole or — it's now becoming more clear — threaten people who carefully bargained for less risk, and who thereby had to settle for lower rewards all along, into voluntarily forfeiting the protections they bought and paid for in the event of the underlying business' insolvency. Primarily through Chrysler's pension and retiree health-care obligations, the UAW is a creditor of Chrysler, but one whose position is less favored by the bankruptcy laws than the investors (debt holders) represented by companies like Oppenheimer Funds or Perella Weinburg. Unlike the UAW, their clients negotiated, bought, and paid for the rights not to have to have to make the same "sacrifices" that equity holders or general unsecured creditors would be compelled to make under the bankruptcy laws. But Obama insists — on pain of presidential demonization and worse — that these so-called "renegades" and "speculators" (who've actually been guilty of nothing other than greater prudence) make those sacrifices anyway, and that they do so specifically in order to benefit the UAW!

This goes beyond populism or pro-unionism. Barack Obama is engaged in an assault on not just the entire system of business in the free world, but on the American rule of law upon which it is founded. And that, gentle readers, is why I celebrated Chrysler's Chapter 11 filing. Instead of backroom deals made through strong-arm tactics, whatever happens now will take place under the disinfecting sunlight of the United States Courts. And that will, in turn, help frustrate Barack Obama's scheme.

Oh, I fully expect that even in bankruptcy court, the Obama Administration will continue to work hard to tilt the playing field to favor the UAW and to disfavor everyone else. It will continue to at least try to call most of the shots as Chrysler struggles toward a reorganization plan. And it's not inconceivable to me that Obama will try to enlist Congress' cooperation — custom "tweaks" of the Bankruptcy Code — in an effort to do so.

But it's going to be harder for the Obama Administration to continue making these unconscionable threats now that there is at least some due process structure that must be followed. And while the federal government is frequently involved in one way or another in bankruptcy proceedings, I can confirm to you from personal experience that it doesn't always get its way there. (But that's a long story I'll save for another day.)

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UPDATE (Sat May 2 @ 8:00pm): As has often been disclosed elsewhere on this blog and on my professional website, although bankruptcy court litigation has been only an occasional part of my practice, I was a litigation partner at Weil, Gotshal & Manges from 1989-1991. WG&M has long represented General Motors; I did trivial amounts of work for GM when I was at WG&M; and WG&M will likely be its bankruptcy counsel when and if GM also files for Chapter 11 protection. Oppenhemier & Co. was also a WG&M client when I was there, and I represented it from time to time on non-bankruptcy related matters. But I don't currently represent anyone with an actual or potential interest in either the Chrysler or (potential) GM bankruptcies, and my current practice mainly focuses on representing small businesses — some of whom are debtors and some of whom are creditors, but all of whom respect and abide by the rule of law that Barack Obama is trying to undermine.

UPDATE (Sat May 2 @ 8:45pm): Count the usually sane Steven Pearlstein of the WaPo as one of those blood-thirsty fans who are cheering Guido the Kneecapper from the galleries (emphasis mine):

The creditors are right when they say that Obama offered a sweetheart deal to Chrysler's employees and retirees, who as unsecured creditors would have stood in line behind banks and hedge funds in a liquidation and would probably have received nothing. It's also true, as the unhappy creditors point out, that it was the above-market wages and benefits negotiated by the United Auto Workers that helped to bring Chrysler to the brink of bankruptcy in the first place.

But those arguments are really beside the point. If the U.S. government wants to lend billions of dollars to help save the jobs, pensions and health benefits of hundreds of thousands of workers, that is certainly its prerogative. And it doesn't have to extend the benefits of that bailout in equal measure to the banks and hedge funds that stupidly lent $6.9 billion to finance a highly leveraged buyout of a long-troubled automaker.

Shorter version: Screw the law, screw your contracts, screw what's fair and who's to blame — we won. Now Pappy Obama is gonna give and give to the UAW, using a combination of tax dollars (just a bit), deficit spending (quite a bit), and money that, by law and all the rules upon which our business system was built, should go to people who loaned money to Chrysler when no one else would, but on terms that were supposed to protect them from this kind of thuggery.

Disgusting. And tragic.

UPDATE (Sat May 2 @ 11:30pm): Megan McArdle asks a good question and makes a good point, but you'll have to decide for yourself whether they're naïve or merely rhetorical (h/t InstaPundit):

[W]hen did it become the government's job to intervene in the bankruptcy process to move junior creditors who belong to favored political constituencies to the front of the line? Leave aside the moral point that these people lent money under a given set of rules, and now the government wants to intervene in our extremely well-functioning (and generous) bankruptcy regime solely in order to save a favored Democratic interest group. [That's exactly the moral point Pearlstein, quoted above, honestly but eagerly discarded and then defecated upon. — Beldar]

No, leave that aside for the nonce, and let's pretend that the most important thing in the world, far more interesting than stupid concepts like the rule of law, is saving unions. What do you think this is going to do to the supply of credit for industries with powerful unions? My liberal readers who ardently desire a return to the days of potent private unions should ask themselves what might happen to the labor movement in this country if any shop that unionizes suddenly has to pay through the nose for credit. Ask yourself, indeed, what this might do to Chrysler, since this is unlikely to be the last time in the life of the firm that they need credit. Though it may well be the last time they get it, on anything other than usurious terms.

The reason I think they might be simply naïve is that unless the Obama Administration's desires and efforts are indeed checked by the disinfecting sunlight of the bankruptcy court and the rule of law, not even someone permitted (contrary to law) to lend money to Chrysler on usurious terms will do so. If the federal government can get away with stripping your creditors of all of their contractual protections — collateral-smatteral! hah! — to effect a massive transfer of wealth from them to the government's current favorites, then it doesn't matter if you're paying 50% or 150% interest per annum: No one will lend any money on any terms.

I'm wondering if Ms. McArdle (who I adore as a fine writer and a fine thinker, a libertarian economist of the first rank) is still laboring under the delusion that the Obama Administration gives a rat's patoot over the "long term" or the "integrity of the marketplace" or the "rule of law." Her point is entirely valid, just as it would have been entirely valid to lecture John Dillinger on how he and his loved ones would ultimately be better off living in a society whose would-be bank robbers restrained their inclinations and instead worked hard and invested for the long term. But valid doesn't mean effective, and that argument wouldn't have worked on Dillinger. It won't work on Guido the Kneecapper Obama either, because there are still massive amounts of loot yet to be redistributed from those who've earned it to those who merely want it (and can be relied upon to vote a straight Democratic ticket).

Doesn't Ms. McArdle understand? Obama won. If he and his friends at the UAW had any care for the long term and the national good, they wouldn't have methodically killed the golden goose that was supposed to fund all those pension and health care obligations in the first place.

NYT again misreports maximum potential penalty that could have been sought against surviving Somali pirate

U.S. Magistrate Judge Andrew J. Peck of the United States District Court for the Southern District of New York has ruled that the surviving Somali pirate captured by the U.S. Navy after attempting to hijack the M/V Maersk Alabama, Abduwali Abdukhadir Muse, will stand trial as an adult. In so doing, Judge Peck credited testimony yesterday from New York City Detective Frederick Galloway, who — according to the New York Times — "who went to Africa as part of an investigative team." Detective Galloway testified that

Mr. Muse, after giving different ages, said he had been untruthful, apologized and said he was “between 18 and 19.”

“He also said, ‘I’m sorry for lying to you,’” Detective Galloway testified. “He said, ‘When I pray again, I’ll ask Allah to forgive me for lying to you, and I won’t lie to you again.’”

Judge Peck rejected as "incredible" contrary testimony given by Muse's purported father (through an interpreter and via a telephone hookup to Somalia) to the effect that Muse is only 15 years old. As for suggestions that Muse was merely a passive follower of the other pirates, the NYT story reports:

Disputing his father’s portrayal of his son as an unwitting dupe, prosecutors say Mr. Muse conducted himself as the leader of the pirate gang, and was the first among them to climb aboard the Maersk Alabama on the morning of April 8 in the Indian Ocean off of Somalia.

He fired his gun at the captain, Richard Phillips, who was still on the bridge, and then entered the bridge with two other armed pirates, and demanded money, the complaint said.

In fact, the Department of Justice's sworn criminal complaint filed against Muse is considerably more damning as to Muse's overall role in these events than the NYT's summary. According to the complaint(caps in original):

MUSE entered the Bridge, and told the Captain to stop the ship. MUSE, who conducted himself as the leader of the Pirates, later demanded money from the Captain. MUSE and two other Pirates, each of whom was armed with a gun, then walked with the captain to a room on the Maersk Alabama that contained the ship's safe. The captain opened the safe and took out approximately $30,000 in cash. MUSE and the two other Pirates then took the cash.

And the complaint likewise disputes previous press suggestions that Muse had "effectively surrendered" by boarding the USS Bainbridge before Navy SEAL snipers shot and killed his co-conspirators (italics mine):

On April 12, 2009, MUSE requested and was permitted to board the USS Bainbridge. The other three Pirates continued to hold the Captain on the Life Boat. On the USS Bainbridge, MUSE continued to demand for himself and the other Pirates safe passage from the scene in exchange for the Captain's release. In addition, MUSE received medical treatment.

Muse wasn't surrendering, in other words, and hadn't "withdrawn from the conspiracy," but was instead continuing to convey threats that his co-conspirators would kill Captain Phillips unless all of the pirates, including Muse, were released and guaranteed their continued freedom.

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This NYT story — like every other mainstream media report I've seen since the attempted hijacking and hostage-taking — again incorrectly claims that life imprisonment is the most severe penalty available for any of the crimes with which Muse could be charged. As I wrote last week, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment." The statute doesn't require that the defendant himself have committed the homicide, nor that the victim of the homicide be one of the hostages. Rather, as with many state felony murder laws, all that section 1203(a) literally requires is that the hostage-taking have resulted in "the death of any person" for its violation to become a capital crime punishable by death. The criminal exposes himself to this penalty by taking part in a crime which ends up getting anyone killed as a result, even if it's an innocent bystander killed by accident, or even if it's one of his accomplices and co-conspirators who's killed in a justifiable homicide by law enforcement officers.

Hostage-taking in violation of section 1203(a) is indeed one of the five counts with which Muse has now been charged. However, the DoJ did not see fit to include in the charging language for that count an allegation that the hostage-taking resulted in the "death of any person," so Muse appears to be at risk for nothing worse than a life sentence as the case presently stands.

Section 1203(a) is not a complicated or long statute, and it's simply inconceivable that the prosecutors were unaware that it permits capital punishment when the hostage-taking has resulted in the "death of any person." So we must assume that the decision not to to charge the crime in a manner that would permit the death penalty under section 1203(a) was a deliberate one.

Such decisions fall within the general realm of "prosecutorial discretion." Because prosecutors are responsible not only to do what's right but to do justice, not every crime that could be charged should be charged. And one may argue with a perfectly straight face that Muse's relative youth (even if, by his own admission, he wasn't below the age of 18) and poverty-stricken life, plus the fact that only bad guys got killed, were enough in the way of mitigating factors to justify the prosecutors' decision not to seek the death penalty. Were I in their shoes, I probably would have been inclined instead to leave that to the jury to decide. But I am not accusing these prosecutors of having abused their discretion; and indeed, in other respects, the complaint is commendably robust.

But I do think that the mainstream media ought to truthfully report that the death penalty could indeed have been sought by the Obama Administration. This isn't quite the "Wag the Dog" scenario I've been predicting. But Obama's spinmeisters have been quite aggressive in seizing this as an example of "Obama as Tough Father Figure." It's bad practice, but unfortunately common (verging on universal), for the mainstream media to aid and abet Obama in such exaggerations, and this is simply another example of that.

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UPDATE (Wed Apr 22 @ 11:45am): It's hard to overcome the defendant's own confession as to his age in the best of circumstances, but from another report of yesterday's hearing, this time from the NY Daily News (h/t Althouse), we see that there were further problems with the defense team's contention that Muse is a minor (italics mine):

The judge called Muse's father, who said the suspect was his eldest son, born in November 1993, making him just 15.

Pressed further, the father said his fourth-born son was born in 1990 — and the judge ruled his testimony was not credible.

Muse's court-appointed lawyers said they will appeal the age ruling and also want to see if he's subject to Geneva Convention rules on international prisoners.

They said he was shackled and blindfolded for eight days and had not been given pain medication for his hand in 24 hours.

"He is extremely young, injured and terrified," said lawyer Deirdre von Dornum.

To which my first reaction is: Poor (probably intercontinental) wood-shedding of the father by defense lawyers? If your witness' story depends on the proposition that time flows backwards when you get close to the equator, he may have some credibility problems.

The initial "appeal" of the age ruling will be not to the Second Circuit, but rather to the United States District Judge under whose authority Magistrate Judge Peck is proceeding. Unless they can come up with a lot of new and better evidence to cast doubt on the defendant's admission to the NYC police detective, though, along with an explanation for why they didn't have that evidence yesterday (which may be less problematic, given the international nature of the case and their very recent engagement), defense lawyers are very unlikely to win that appeal. District judges tend to be pretty deferential to their magistrates' fact-findings.

Statements to the press like Ms. von Dornum's tend to blow up in lawyers' faces when the prosecution shows videotape of the "extremely young, injured and terrified" defendant threatening a hostage with an AK-47. By overplaying their hand, his lawyers are ultimately doing their client no favor. But a companion article, quoting a criminal defense lawyer not part of Muse's team, shows just how tone-deaf defense lawyers can be (italics mine):

"You've got an 18-year-old kid who has no education. He's as poor as they come, and he got caught up with these pirates," veteran defense lawyer Martin Geduldig said.

"In a sense, he's as much a victim as anybody else," said Geduldig, who is not involved in Muse's defense.

Friends and neighbors, any lawyer who makes that argument will forfeit all credibility with the jury and judge. If that's the best argument you've got, you should probably get your client's consent to plead him guilty on the best deal you can get, and then hope for whatever marginal sentencing leniency you may can find in the discretion of the court, if there's any to be found. Argue mitigating circumstances as hard as you can; but don't go over the top, which is where you are when you claim your client is "as much a victim" as the guy he shot at repeatedly, robbed at gunpoint, kidnapped and took hostage, beat up, and repeatedly threatened with death as part of a crime spree stopped only by the precision marksmanship of three Navy SEAL snipers.

UPDATE (Wed Apr 22 @ 1:30pm): And now the AP reports that Muse's mother insists that he's actually 16, but "'wise beyond his years' — a child who ignored other boys his age who tried to tease him and got lost in books instead." And the AP, once again, ignores the capital punishment angle.

Surviving Somali pirate captured by U.S. Navy should face death sentence under U.S. hostage-taking law

God bless the United States Navy! (H/t "Jack Dunphy" @ Patterico's.) And what a spectacular Easter blessing for the brave Captain Richard Phillips of the MV Maersk Alabama and his gallant crew and grateful family!

Three of the four pirates who were holding Captain Phillips on the Alabama's lifeboat were shot dead, apparently through the exceptional marksmanship and professionalism of Navy SEAL snipers.

As to the fourth pirate — who was aboard the U.S.S. Bainbridge trying to negotiate when his co-conspirators met their just deserts — news organizations including Fox News and the Associated Press are reporting that if brought to America and prosecuted under federal law, he faces a maximum potential sentence of life imprisonment.

I'm pretty sure that's just wrong. I think that if he's brought back to the U.S. for punishment under our criminal justice system, then the surviving pirate could be, and should be, charged with and found guilty of a capital crime punishable by death.

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It's true that federal laws against piracy — chief among them 18 U.S.C. § 1651 — prescribe life imprisonment as not only the maximum penalty, but the only penalty. But with respect to a federal conviction for hostage-taking, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment."

Congress' use of the word "results" means there must be a causal connection between the hostage-taking and the fatality, but it's a fairly loose one. There is no requirement that it be the defendant hostage-taker who directly inflicted any lethal injuries. And Congress could easily have limited the death penalty to situations where it was the hostage, or perhaps also law enforcement members or innocent bystanders, who were killed. But Congress didn't.

Instead, under the plain language of the statute, Congress instead chose to make the death penalty available when "the death of any person result[ed]" from the hostage-taking. Thus, even the death of one of the hostage-taker's fellow criminals satisfies the literal language of the statute.

I can't find any federal capital punishment appellate precedent directly on point under section 1203, and little precedent even from the federal trial court level. But as with "felony murder" capital punishment laws generally — under the Enmund/Tison standard — I believe that due process and other constitutional concerns are satisfied so long as the defendant is a "major participant" in the underlying felony (here, hostage-taking) and that underlying felony involved a "reckless indifference to human life" (a slam-dunk where the hostage-takers are threatening the hostage's death). There's no requirement that the prosecution show that the hostage-taking defendant had a specific mental intent to accomplish the death of any particular person when he committed the hostage-taking crime. Indeed, in contrast to some state "felony murder" capital punishment statutes, "foreseeability" of the death of the eventual decedent is not an element of this particular federal crime under section 1203(a), according to United States v. Straker, 567 F. Supp. 2d 174 (D.D.C. 2008).

And that should be no surprise to either pirates or decent folk: Hostage-taking, by its very nature, is a threat to kill innocents, and is likely to lead, one way or another, to the sudden and violent death of someone. It's only due to the skill of the SEALs — and, as I'm sure they'd be the first to acknowledge, the grace of God — that no one except pirates were killed or seriously injured. The pirates themselves did practically everything within their power to turn this into a fatal encounter for someone, and there's no doubt that all of them possessed sufficient murderous intentions to imbue them with capital culpability. Thus, in my opinion, even though it ultimately turned out that the only fatal shots were fired by Navy SEALs, that matters not for purposes of charging and convicting the surviving pirate of a capital offense.

I'd much rather see him swinging from the yardarms aboard the Bainbridge after a shipboard summary trial — or failing that, dropped off at Guantánamo as another of whatever the Obama Administration is now calling illegal enemy combatants — rather than afforded the due process which our federal courts accord to civilized human beings. But if the surviving pirate is indeed to be brought back to the U.S. and tried under our federal criminal law, then prosecutors at least ought to seek the most serious punishment for the most serious offense which applies to these facts under federal law.

*******

Chances that the Obama/Holder Justice Department will agree with me? I'd say less than 1%. My only question is whether the ACLU or some NYC white-shoe law firm (purportedly acting pro bono publico) has already filed a "Maxamed Doe" habeas corpus petition for the guy.

Finally, I endorse, recommend, and enthusiastically associate myself with (i.e., wish I had written) the following authors' recent essays on piracy and how the U.S. ought to respond to it (with 21st Century speed and firepower, but 18th and 19th Century principles): Andrew C. McCarthy at the National Review Online and Bret Stephens at the Wall Street Journal.

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UPDATE (Sun Apr 12 @ 7:15pm): Greyhawk at The Mudville Gazette, in the midst of some very perceptive comments about the media coverage of these events, refers to reports that the fourth and only surviving pirate might be (a) the one who was originally captured by the Maersk Alabama crewmen in re-taking the ship, (b) as young as sixteen years old, and/or (c) possibly cooperating with the Navy, rather than (as I'd heard) trying to negotiate on behalf of the other pirates. My comments about his culpability are based on the premise that he's an adult who was actively involved in plotting and executing the attempted piracy and the hostage-taking, and of course my only source for that premise is the admittedly sketchy and unreliable news reporting we've all been following. Even were he to be subjected to the traditional summary ship's-deck justice of decades' past, the sorts of circumstances suggested by Greyhawk, if they panned out, would be given due weight. I don't think this will turn out to be complicated or uncertain, and indeed, to the knowledgeable people already on the scene, these issues are almost certainly already crystal clear. But if my premises turn out to have been wrong, I of course reserve the right to reconsider my conclusions from them.

UPDATE (Sun Apr 12 @ 8:45pm): If you're wondering why I've been so churlish in not extending even a nod of appreciation to our Commander in Chief, read this paragraph tucked away near the end of the New York Times' account of the rescue:

The Defense Department twice asked Mr. Obama for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

Then tell me: When, exactly, during this entire episode was Captain Phillips' life not in imminent danger? Why did Barack Obama have to sleep on the decision whether to permit our military commanders on the scene to use their own judgment as to whether to kill pirates who had attacked an American vessel and were holding its captain hostage? If this paragraph from the NYT is correct, then even if our forces had clear shots at all of the pirates simultaneously prior to Saturday morning, they lacked Obama's permission to take them. And that is outrageous and, on the part of our nominal Commander in Chief, pathetic.

Yes, I suppose Obama could have been more pathetic — he could have refused permission altogether. But Obama obviously thinks he's our Defense Lawyer in Chief, maybe Defense Lawyer for the World. And that's not the job he's in — that's emphatically not the oath he took last January, and there are times, including this one, when it could be inconsistent with the oath he took last January. Obama's operating under a delusion that is very dangerous for America and the rest of the free world. Color me unsurprised but still disappointed.

UPDATE (Sun Apr 12 @ 10:25pm): The WaPo report leaves open the possibility that the fourth and surviving pirate was an adult (as judged at least by American law), but is equivocal about the degree of his relative culpability and cooperation:

Meanwhile, one of the pirates, estimated to be between 16 and 20 years old, asked to come aboard the Bainbridge to make a phone call. He had been stabbed in the hand during an altercation with the crew of the Maersk Alabama and also needed medical care. "He effectively gave himself up," said a senior military official. The Navy then allowed that pirate to speak with the others in hopes that he could persuade them to give up.

I disagree with the SCOTUS precedent that forbids imposition of capital sentences on Americans who were under 18 when they committed their crimes, at least when those defendants have been found as a matter of individual fact to have been sufficiently mature to justify being tried as adults. But if this individual isn't yet 18, there's no chance whatsoever that the Obama administration will seek to hold him responsible as an adult, regardless of any other facts. Whether charging this as a capital offense turns out to be justified on these particular facts for this particular individual, however, I still think the media is wrong in describing life imprisonment as the maximum possible sentence for his crimes. (And I still think treating this as an ordinary crime to be tried in our civilian courts is a mistake as well.)

UPDATE (Mon Apr 13 @ 2:45am): Someone is re-writing the first draft of history. The paragraph I quoted above from the NYT now reads (at the same URL, but with no acknowledgment of having been stealth edited)(additions in red, deletions in strikeout):

The Defense Department twice sought asked Mr. Obama’s for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

The other changes are minor, but the phrase "but only" has completely disappeared, which changes the emphasis significantly to make Pres. Obama seem less squeamish.

And in the Politico.com version, you can almost hear the chorus singing "Brave, Brave Sir Robin" in the background as they, umm, associate the POTUS' valor with that of the SEALs and Captain Phillips:

President Barack Obama issued a standing order to use force against pirates holding an American captain hostage — including giving a Navy commander the authority to act if he believed the captain’s life was in danger, two senior defense officials said Sunday night.

Aha. Now it's a "standing order." (¿Quien es mas macho: Barack Obama, Jack Lord, o Lloyd Bridges?) If, as the NYT insisted, Obama's permission was conditioned on the danger to Captain Phillips' life having been "imminent," Politico.com's reporters can't find the bandwidth to mention that. As for when the go-ahead was actually given, Politico.com, contra what the NYT still says, insists that "A timeline provided by the White House showed he issued the orders to use force at 8 p.m. Friday, and again at 9:20 a.m. Saturday, after new Navy forces moved on to the scene." Which would make the re-issued Saturday morning order sort of, ya know, redundant if the first order were both given on Friday night and really a "standing order." (This takes to new extremes — something under 14 hours — Jim Geraghty's frequent observation to the effect that every statement made by Barack Obama comes with an expiration date, because "standing orders" now have to be repeated at least twice a day.)

Keep in mind, friends and neighbors, that this was a five-day standoff. Whether we credit the NYT's version of events or Politico.com's, our military apparently only had shoot-to-kill authority for something under the last 24 hours of it. And that, I repeat, is simply pathetic.

UPDATE (Tue Apr 14 @ 4:35am): I have no basis to dispute or second-guess these statements from the Secretary of Defense, made on the record on Monday, as reported in the WaPo:

Defense Secretary Robert M. Gates said Monday that the Defense Department twice requested the authority to use deadly force because two groups of Special Operations Forces were involved in the operation. Each required its own sanction. He said that "the approval was given virtually immediately in both cases."

A senior administration official said that the president did not deny any operational request made to him and that he knew the broad outlines of the operation that the Navy had planned. The official said that "our people tried a variety of ways to resolve the situation peacefully, and the guidance all along was that the overriding interest was the captain's life."

Gates said the four pirates involved in taking Phillips hostage were 17 to 19 years old — "untrained teenagers with heavy weapons." The pirate whom Reza wounded in the hand asked the USS Bainbridge for medical attention, effectively surrendering.

That all the pirates were "teenagers" is sad, but not very exculpatory. I'd bet a large sum of money that each of them considered himself an adult before undertaking this piracy, whatever Western law might say for the ones not yet 18. They were engaged in a violent and dangerous crime using military weapons; the three who were slain certainly deserved what they got, but I'll reserve further judgment on the fourth for reasons I've explained earlier in this post or in comments below.

I'm still troubled and unsatisfied by the notion that it takes so many layers of approval, extending to the office of the POTUS, to provide our military forces on the scene — who were, after all, there patrolling for pirates whose routine method of operation is to seize and threaten hostages with execution — the very basic authority to kill any pirate whenever so doing will secure the release of a hostage. If the regular officers and crew of the Navy vessels in the area, including the Bainbridge, didn't already have the authority to do that, they ought not be there. But that is a systemic criticism, and one that may be leveled against American civilian leaders of both parties going back to at least the Bush-41 administration, when lawyers and concerns for civilian-style legalities began to infect every aspect of our efforts to fight both conventional military enemies and terrorists.

Bottom line: If Secretary Gates was being candid and thorough, that puts Obama in a better light than I gave him credit for earlier in this post. If Gates is engaging in spin, I have no way to tell that — and neither does anyone else, absent unfettered access and complete cooperation from Navy personnel who were on the scene but are not about to publicly second-guess the SecDef or the POTUS, whoever holds those offices. The possibility that Gates is being candid and the possibility that he's engaged in spin are not mutually exclusive. But in any event, with our ship recovered and Captain Phillips rescued, and with rare near-unanimity among Americans of every political stripe in celebrating the competency of our military forces and their performance, I'm not going to spend any more energy second-guessing Obama's personal performance on this episode.

There was nothing "culpable" about the 2003 Texas redistricting

I'm angered to read the following passage in a very silly and badly informed article called The End of Gerrymandering, and in particular, I'm dismayed to read it in the Weekly Standard:

But Republicans have not been without culpability, especially in recent years. The mainstream media has naturally sought to highlight this, especially the "DeLay Plan" to gerrymander Texas to the GOP's advantage mid-decade without even waiting for a new census. This occurred in 2003, when the Texas legislature, newly controlled in both houses by Republicans, redrew lines established by a court in 2001 after legislative deadlock. The gerrymander, which created several more GOP-leaning seats in the Texas delegation, ultimately was upheld by the U.S. Supreme Court. Incoming Obama chief of staff Rahm Emanuel, then chairman of the Democratic Congressional Campaign Committee, opined: "Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen. That's the gift that the Supreme Court and Tom DeLay have given us."

I have several questions for the authors, Christian Whiton and Larry Greenfield: Why do they think it was appropriate for the citizens of our nation's second most populous state — a state that has trended Republican since the early 1990s, and been solidly Republican for more than a decade — to continue to live with a pro-Democratic gerrymander from the 1990s that no longer remotely reflected Texas' majority-Republican status? Why should we have to continue to submit to a Congressional district map that was specifically designed to give, and in fact gave, Democrats a majority of Texas' seats in Congress when not a single Democrat could win election to a statewide post?  Why should we pretend that a three-judge federal court — one whose judges candidly and expressly recognized their own lack of political legitimacy, since it was comprised of unelected judges holding life tenure from the single branch of the state or federal government least responsive to small-d democracy — was entitled to have its decision (which made the least possible changes necessary to the 1990s pro-Democratic map to accommodate Texas' new seats due to the 2000 Census) written into stone?

Why, in short, are Christian Whiton and Larry Greenfield swallowing hook, line, and sinker the most incredibly misleading anti-democratic clap-trap of the disingenuous Hard Left (viz: Rahm Emanuel!), describing as "culpable" a readjustment of Texas' districts to closely reflect modern-day Texans' own voting patterns?

What Rahm Emanuel meant was that Tom DeLay and the Supreme Court had given lying Democrats like him a fact-pattern that they could continue to twist, in order to mislead people into thinking that a legitimate democratic process reflecting the wishes of a majority of Texas voters, as expressed through their elected state legislators and governor, was instead a racist and improper one.

I expect better of the Weekly Standard's editors than to print this kind of drivel. The byline tells us that "Christian Whiton is a State Department political appointee. Larry Greenfield serves on the Resolutions Committee of the California Republican Party. The views expressed are their own." But that frankly doesn't excuse the fact that this piece goes out of its way to insult the citizens of Texas and their duly elected state leaders.

Far outside the Beltway, here in Texas, we don't see a problem with our own elected officials — rather than even very good federal judges — drawing our Congressional district map. Culpable? No, that's democracy. That's why America has a Census every ten years, and that's why redistricting is supposed to be done by the combined action of state legislatures and state governors thereafter. Indeed, the voters of Texas reacted to the Dems' 2001 stonewalling in the state legislature by electing more Republicans, who as a result were able to break the Dems' attempts to stonewall and boycott in 2003. There's nothing wicked about voters punishing a party which was badly abusing even its minority status; rather, it's a text-book example of the success of representative democracy.

(The rest of the Whiton and Greenfield piece expounds the great virtues of the new system just passed into law for California that is supposed to make redistricting "nonpartisan." That's about as clever, and is about as likely to be effective, as passing a constitutional amendment requiring state legislators or state governors to be "wise." Redistricting is inherently a political exercise. Moreover, Supreme Court precedent and civil rights legislation, most prominently the Voting Rights Act of 1965, make it impossible for states to redistrict in a random, apolitical fashion anyway: Even if they try to avoid partisan issues, the law's assumptions (among them the repugnant proposition that only Democrats can represent blacks and hispanics) and repercussions will require them to consider the political effects of their actions. I have no confidence that the new California plan will work; indeed, California seems to me and many of my fellow Texans to be most useful as the political laboratory for testing out the most conspicuous failures that the other 49 states can then observe and avoid.  (See point #5 here.) But I wish them luck in what I nevertheless believe to be an impossible and unrealistic task, and I would thank those like Whiton and Greenfield who believe otherwise to withhold their insults to the State of Texas at least until the day — indeed the decade, or two — in which the new California plan has proven itself to be an even arguably viable alternative.)

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

Obama is at least badly misleading in minimizing the number of SCOTUS "hard cases" in which judicial philosophy is determinative

Obviously, the reason McCain-Palin lost was because I didn't blog on October 30th. I returned to duty on Halloween with a guest-post at HughHewitt.com about judges.

The election is over. This is still, however, problematic.

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[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)

Over at NRO's The Corner, Ed Whelan argues that in a televised interview yesterday with NBC News' Brian Williams, Sen. Barack Obama was "lying" when he claimed that differing judicial philosophies would only matter "less than one percent of real hard cases."

I've listened very carefully to the video clip — preparing my own transcription from it, which I reproduce just below, but you can also compare the Chicago Tribune's version if you'd like — and I can anticipate how the Obama campaign would respond to Ed's charge. I'm less certain than Ed that Obama was deliberately lying, but I'm certainly convinced that what Obama said was badly misleading.

(NB: I'm not 100% sure that the liniked video clip wasn't actually recorded substantially earlier in the campaign — although clearly (from the NBC News captions and text crawls) it was at least re-broadcast yesterday — because I can't find any reference to this interview on the MSNBC website, nor elsewhere besides the Tribune transcript I've linked. For what it's worth, the Tribune also reports the interview as having taken place yesterday. But if so, I don't have any good explanation — other than an odd and gross misspeaking — for Obama's closing words about Sen. McCain having the same sorts of conversations with potential Supreme Court Justices "if [McCain] ends up being the nominee.")

Here's my transcript:

WILLIAMS: Senator, a question about the Supreme Court. Everyone running for President always says, especially on the narrow issue of abortion rights, "No litmus test."

OBAMA: Right.

 

WILLIAMS: It's said on both sides of the issue. And if that's true, if you're not going to call a future Justice into the Oval Office, if you're successful in this endeavor, and bring up the subject, how then do you also avoid surprises? I don't think George H. W. Bush-41 ever dreamed that in Justice Souter, he was appointing a dependable liberal vote.

OBAMA: Right.

WILLIAMS: And Eisenhower for years called Justice Brennan his biggest mistake in office. Two surprises that just come to mind.

OBAMA: Right. Well, look, I think that what you can ask a judge is about their judicial philosophy. And as somebody who taught constitutional law for ten years, and who actually knows a lot of potential candidates for the Supreme Court on the right as well as on the left — because I've taught with them or interacted with them in some way — I can tell you that how a Justice approaches their job, how they describe the task of interpreting the Constitution, I think can tell you a lot.

And so my criteria, for example, would be, that if a Justice tells me that they only believe in the strict letter of the Constitution, that means that they probably don't believe in a right to privacy that may not be perfectly enumerated in the Constitution, but that, you know, I think is there. I mean, the right to marry who you please isn't in the Constitution. But I think that all of us assume that if a state decided to pass a law saying, "Brian, you can't marry the woman you love," that you'd think that was unconstitutional.

Well, where does that come from? I think that it comes from a right to privacy that may not be listed in the Constitution, but is implied by the structure of the Constitution.

So I can have that conversation with a judge. Now, a conservative who is listening to me right then says, "See, he wants to allow the court to legislate!" No, ninety-nine percent of cases, the Constitution is actually gonna be clear. Ninety-nine percent of cases, a statute or a Congressional intent is going to be clear. But there are going to be 1 percent, less than 1 percent, of real hard cases —

WILLIAMS: Second Amendment, last term —

OBAMA: Second Amendment, last term, is a great example, where the language of the Second Amendment is not perfectly clear. I believe that the Second Amendment is actually an individual right. I think that's the better argument.

And so, I can have those kinds of discussions with a Justice without getting to the particulars of, "Is Roe versus Wade, as currently outlined, exactly what you believe?" Or "Do you agree that the D.C. gun law should have been overturned?"

And I think Senator McCain, if he ends up being the nominee, could have those same conversations as well.

Of this, Ed writes (links in original):

As I explained months ago (when Obama used a figure of 95% for the same general proposition):

As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%. According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases. Indeed, last term, cases dividing 5-4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes — Breyer, Ginsburg, and Souter — agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.

Obama, far from being an idiot, is very intelligent. And, “as somebody who taught constitutional law for ten years” (as he tells us in the interview), he surely knows that what he is saying is false. In other words, the only plausible conclusion is that he’s lying — and he’s doing so in order to distract attention from the terrible impact that his appointment of hard-left judicial activists would have.

I can think of two ways that the Obama campaign might seek to rebut Ed's charge.

First, they might point to the vast number of decisions by the Supreme Court in which, in fact, there is no indication of disagreement among the nine Justices: the denial of petitions for writs of certiorari. That's the procedural mechanism by which the SCOTUS may mostly choose its own docket using its discretion pretty much however it sees fit. (There are only a very few types of cases in which the SCOTUS simply must hear cases on their merits, either because it has "original jurisdiction," as in lawsuits between States, or because Congress has granted litigants a nondiscretionary "appeal as of right," as in certain rulings from three-judge panels in Voting Rights Act cases.)

But if Obama intended to include all of those "cert petitions" into the mix for purposes of his 1% estimate, that's still extremely misleading: When each Justice votes to grant or deny each cert petition, he's not expressing an actual opinion on the merits of whether the lower court (typically either a state supreme court or one of the federal courts of appeals) was correct. Rather, the Justice is deciding whether that particular case is "cert-worthy" — worth taking up because, for example, there has been a split among the federal courts of appeals or an especially important issue is involved. There are hundreds and hundreds of cert petitions each year in which, for example, Justice Scalia may think that the lower court was right and Justice Stevens thinks that the lower court was wrong on the merits — but they both agree that the case isn't "cert-worthy," and so the losing side's petition asking the SCOTUS to grant a writ of certiorari (and thereby agree to hear the case) is denied.

Second and, I think more likely, the Obama campaign might argue that even though Brian Williams began the discussion by asking specifically about Supreme Court nominees, Obama was responding by describing all federal judicial appointments — intending to describe in his answer not just Supreme Court Justices, but federal district court and court of appeals judges as well. If one includes all of their cases, then there certainly are fewer "hard" cases in which judicial philosophy is likely to be critical. And that's evidenced by the relative infrequency of dissents among the three members of the appellate panels in which the federal courts of appeals typically hear cases. So if Obama had mentally shifted gears — if he'd switched, without indication, to discussion all of the federal judicial appointments a president gets to make, and not just SCOTUS appointments — then he may have been unclear and misleading, without necessarily telling a deliberate lie.

Whether Obama was knowingly lying or simply being obtuse, however, there's no real doubt that Ed's fundamental point is correct: At the Supreme Court level (and that's what Brian Williams was asking about), philosophical differences among potential appointees are going to be crucial in most cases — simply because by definition, the Supreme Court is the final forum in which the Constitution and laws of the United States are interpreted and applied, and because its docket consists almost entirely of the very hardest and most important cases from across the country. At a minimum, Obama is guilty of trying to underplay the importance of him making these picks as compared to John McCain. And thus, I agree that Obama was being very misleading in this interview.

(Jonathan Adler also has a very good article on NRO today about the potential importance of the next president's nominations for those lower courts, with which I agree entirely; I commend it to you wholeheartedly. What kind of judges the new president appoints to those courts arguably has a greater impact on folks' day-to-day lives than the SCOTUS appointees, and it certainly has a greater impact on federal court litigants. Prof. Adler argues, and I agree, that given the current membership on the SCOTUS and the current and likely vacancies in the lower courts, Obama, if elected, would probably have more influence on the lower courts than on the SCOTUS in his first term. In any event, those appointments are hugely important, even though the appointments themselves and the confirmation process for them often largely escapes public notice.)

A final point that disturbs me about this interview:

Sen. Obama is correct that by virtue of having attended Harvard Law School and been president of its law review, and then having been a part-time lecturer at another very good law school (the University of Chicago) for several years, he's rubbed elbows with a great many law professors with reputations vast and stellar. But with due respect to them, and to my host here (for Hugh Hewitt also teaches constitutional law), the very last thing that the United States Supreme Court needs is more law professors. And yet, as Sen. Obama's remark here confirms, law professors are almost certainly going to be the kind of SCOTUS Justices whom he would appoint.

Justice Alito, at least, had some experience as a trial court practitioner as an assistant U.S. Attorney early in his career. But other than him, there's no member of the Supreme Court with broad or deep experience in actually preparing and trying either civil or criminal cases. And while law professors-turned-SCOTUS-Justices may have gained some seasoning and real-world experience as judges on either the trial court bench or, more frequently, at the federal court of appeals level, that still leaves them many levels removed from the nitty-gritty day-to-day experience of the actual practicing lawyer.

Again and again, I read SCOTUS opinions written by brilliant just-graduated law clerks for smart Justices, in which it's painfully obvious that none of them have the slightest clue about, nor much interest in, what's happening in the real world. They create elaborate multi-part balancing tests and procedural gavottes with shifting burdens and subtle formulations — stuff that is worse than useless in the real world because it's not only impossible to implement, it's impossible to use as a basis for predicting how the SCOTUS will rule the next time an issue comes up. It's not too much to ask that at least one member of the U.S. Supreme Court actually have been a practicing lawyer representing private clients in real lawsuits that have actually gone through to verdict. But there's little doubt that in the Age of Obama, law professors would become the most elite of the new elites. And that should frighten anyone who has either common sense or a wallet.

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UPDATE (Fri Oct 31 @ 2:40 p.m. CST): Ed has posted a pair of updates (here and here) to his original post in which he elaborates and also responds to a post from Matthew Yglesias. Yglesias doesn't mention the word "certiorari" or directly reference "cert petitions," both of which are admittedly inside-baseball terms through which SCOTUS-watchers and legal pundits communicate, but he does argue that "the Supreme Court has absolute discretion over which cases to hear" (which is nearly, but not quite, correct), so it's clear that Yglesias is advancing the first defense I posited above. It's a weak defense for the reason I mentioned above: cert decisions are emphatically not decisions on the merits, they're screening decisions, and it's inapt for either Obama or Yglesias to suggest that they say much of anything about the importance of judicial philosophy or who's making judicial appointments. Treating Obama's percentage terms as being based on cert petitions, to state it another way, is to impute to Obama a very poor understanding of what the SCOTUS actually does, and I think the odds of Yglesias being right in that imputation are extremely remote.

Yglesias goes on to say:

Meanwhile, in his eagerness to call Obama a liar, Whelan is completely misrepresenting what Obama is saying — he’s not, at all, denying that judicial philosophy is important. He’s just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.

This is Yglesias making the second defense I suggested above, and I disagree with that one, too. Any reasonable member of the public watching the Brian Williams clip would conclude that Obama was indeed minimizing the importance of judicial philosophy, and specifically at the Supreme Court level.

As Ed and I both pointed out, Brian Williams was explicitly asking about appointment of SCOTUS Justices. I will admit that it's theoretically possible that Obama — mid-answer, and despite the clear question — spaced out and suddenly shifted from talking just about "hard cases" on the Supreme Court to talking about the entire federal judiciary's caseload. If so, however, Obama ought to have corrected himself by now in public, because he left his listeners believing that he was still answering Williams' question about the SCOTUS.

Moreoever, as Ed points out, the 99% figure is pretty close to the 95% figure he'd used in a previous interview with Wolf Blitzer on CNN and in a speech to the Planned Parenthood Action Fund when he was unquestionably talking only about the SCOTUS and its docket.

No, in my mind, there's no doubt that Obama was being misleading. The only question is whether — as Ed thinks — Obama knew exactly what he was doing and was conscious that what he was saying was false (Ed correctly chides me by email for calling this a "deliberate lie" in the opening paragraph of my original post, which was indeed both a redundancy and a misquote), or whether instead Obama was being unintentionally (but negligently) misleading because he was spacing out. If he was spacing out, it certainly was on a topic for which there's no very good excuse for him to have done that. And it certainly had the effect — which Ed believes to have been a deliberate purpose to begin with, consistent with his other speeches on the topic — of minimizing the difference between the voters' choice of Obama or McCain.

I can't entirely rule out the "spacing out" hypothesis, but it seems unlikely to me. I think it's more likely that Ed's probably right that Obama was just deliberately lying. In any event, however, on matters like this one, given that we're talking about a Harvard-trained lawyer and self-styled "law professor," his misleading of the public — whether deliberate or merely grossly negligent — is just about as culpable either way.

On almost all of the cases the SCOTUS chooses to hear, the difference in judicial philosophy between the kind of future Justices a President Obama is likely to pick and the kind a President McCain is likely to pick will be huge, and increasingly outcome determinative. Some of us are extremely distressed about having to rely on the none-too-reliable Mr. Justice Anthony "Sweet Mysteries of Life" Kennedy as the last semblance of a bulwark against unchecked judicial activism; we're none too thrilled about the idea of a President Obama replacing either Justices Stevens, Ginsburg, or Souter with younger clones likely to be on the bench for another two-to-three decades; and we're absolutely terrified at the thought that Obama might have a chance to replace Justice Scalia. We also know beyond any doubt that even though Obama may have met and worked with some conservative law professors, that ain't gonna be who he picks. He's likely to pick a Cass Sunstein — relying on GOP senators like John McCain to confirm based on objective credentials just like they did Ginsburg — but who's going to be as ideologically driven with a hard-leftist "positive rights"/activist agenda as Brennan and Marshall combined.

— Beldar

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.

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[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