« July 1, 2007 - July 7, 2007 | Main | July 15, 2007 - July 21, 2007 »

Saturday, July 14, 2007

Second Circuit Chief Judge Jacobs' dissent in Husain v. Springer: An opinion worth occupying the minds of people with consequential things to do, albeit arising from an appeal that otherwise shouldn't

First, a long war story. You can skip it (jump down to the first line of centered asterisks) without much consequence to your understanding of the rest of my post, if you'd rather.

In August 1980, during the first week of my year-long judicial clerkship, the United States Circuit Judge who'd hired me was hearing oral arguments at the Fifth Circuit's headquarters in New Orleans. I'd been told to report to her chambers in Houston, though, where a pair of her departing clerks would show me the ropes and get me started. Before the end of the first day, I was up to my elbows in a "screener" — a thin file pulled from the top of a stack of similarly thin files, all of which represented cases in which the staff lawyers from New Orleans had made an initial determination that the appeal could probably be disposed of as part of the Fifth Circuit's "summary calendar," without oral argument. Any judge could bounce a "screener" to the oral argument calendar, and that sometimes happened. But the staff lawyers, who in general had less responsibility than us law clerks but who didn't rotate out every year, had a good feel for the pulse of the then-massive circuit's caseload (appeals from six states, being handled by twenty-five circuit judges). My outgoing co-clerk, whom I'd worked with a year earlier when he was an editor and I was a member of the Texas Law Review, was indulging in a reasonable assumption that whatever he took off that stack to give to me would be a fairly simple case by Fifth Circuit standards, and thus a good way to get my feet wet in a new job.

Seven days and eighty hours later, I'd finished my forty-something page opus that comprehensively reviewed, and then reconciled into a definitive decision matrix, the existing Supreme Court and Fifth Circuit precedent on how to treat qualified immunity defenses to section 1983 and Bivens civil rights claims for purposes of summary judgment consideration. My co-clerk skimmed it, and then rolled his eyes. "She's going to think you're a total dork," he warned me. And he was right: she did, and I was.

The problem was that, in fact, the Fifth Circuit's caselaw (like most circuits') on those subjects was riddled with seeming contradictions back then. The boom in these sorts of cases was still pretty new, but there were already a lot of sloppy opinions out there. Indeed, the staff law clerk who'd marked this case as a "screener" had followed one trail of cases, but he or she had completely ignored a couple of competing trails that were arguably just as applicable and just as valid. The poor district judge and his law clerks had more or less shot up a flare-gun pleading for guidance. And with the absolute confidence that every newly graduated law review editor has — which is to say, the absolute confidence that he or she can discern every interesting cross-current in the law, and then write some dozens of pages of dense, heavily footnoted prose to re-channel them properly — I'd set about to "fix things."

My judge not only rolled her eyes, but audibly groaned when I handed her my work. "Opinions from screeners aren't supposed to look like this," she said. She hefted the manuscript, waggling it in the air between her thumb and index finger. "They ought not weigh this much, literally. Are you sure this couldn't be handled in about a fifth the space?"

I insisted that it could not, and so she read it. Then she started pulling books off the shelf to track through some of the precedential trails I'd laid out in opposition to one another. She moved from eye-rolls to more groans, with occasional sotto voce mutterings; but now it was the other cases she was frustrated with, not my draft opinion. Then we argued about my draft some more, and flagged some weak language, and started testing various hypotheticals against my (mostly procedural) decision matrix. This all took the better part of a day.

"Well," she finally concluded, "I think you're actually right. This is just tough sledding, and the district courts, who are seeing more of these cases every year, probably do need a road-map from us. This might even be the case to do it in. But you just can't make this much law with a screener. It's just not done. I've only been on the bench for a year, but even I know that." She sighed again. "I'm going to make a few revisions based on what we've looked at together, and then run this past the other two judges on our screening panel," she said, "just to ask them if I ought to send your draft opinion along with the file when the case gets bounced to a new panel on the oral argument calendar. I'd hate to see this much work go completely to waste."

I felt duly chastised and downcast.

The other two judges on the panel, however, had a different reaction. They also thought that the draft opinion — which was now genuinely a joint product of our chambers — had done about as good a job as could be done in reconciling the prior cases (short of the freedom to simply overrule prior precedent that only the SCOTUS or the full Fifth Circuit sitting en banc would have). But the gist of their further reaction was that while the precedents in this area were in an ugly mess, this screening panel was nevertheless as well-equipped to sort it all out as any oral argument panel would be. Moreover, not only our chambers, but now also the other two screening panel judges and their staffs had invested a lot of time in the case. All that would mostly be wasted if any of the three judges booted it to a random oral argument calendar panel. And they also pointed out that one of the parties was proceeding pro se; if the case went to the oral argument calendar, only one side would show up to argue through counsel, and we were already highly confident what that side's counsel would say.

There was some more very civil discussion back-and-forth between chambers over the substance and language of the opinion. But thus it was that the very first Fifth Circuit opinion I ever helped write clocked in at 27 pages as published in the Federal Reporter, Second Series, with 34 headnotes (but a mere 27 footnotes) — and with a partial dissent written by one of the circuit's most senior and respected judges. The first footnote read:

No party in this case requested oral argument, and no judge on the summary calendar panel determined that oral argument was necessary. In these circumstances, Fifth Circuit Local Rules 13.6.4 and 18.2 allow us to decide this case without oral argument, despite the fact that one member of the panel concurs in part and dissents in part.

I was, at least in part, redeemed. "But next time," my judge told me, "come get my specific okay before you invest 80 hours in a screener. Any screener. Okay, buster?"

(All the dialog in this war story is based on a loose paraphrase of my dim recollections — except that one word, "buster," which I'm pretty sure is an exact quote. Just another reason that clerkship was the best job I ever had, bar none.)

*******

Fast-forward twenty-six years — during which period there have been lots and lots of circuit court published opinions on how one goes about evaluating qualified immunity defenses to section 1983 and Bivens claims in a summary judgment context. That's not to say that all of those reported cases are entirely consistent, or that applying all this vast body of case-law is a no-brainer for the lawyers and the judges at the trial court level. But no one can plausibly say, "We need a basic road map for how to handle these cases" anymore. Every circuit has long since been there and done that, many times.

Moreover, while some of the cases brought to the federal courts under the rubric of "Defending Our First Amendment Rights!" or "Vindicating the Rule of Law Under Our Constitution!" are genuinely important, a great many of them aren't worth the powder it would take to blow them to hell. We saw the Supreme Court tie itself in knots trying to decide during the Term just past, for example, whether the First Amendment was or wasn't violated when a school principal disciplined a high school student for displaying his "Bong Hits 4 Jesus" banner. The case was almost forced upon them by the Ninth Circuit, who'd concluded that the First Amendment might die tomorrow unless such banners are given constitutional protection by the federal courts. But it was still an eminently silly case.

Second Circuit Chief Judge Dennis G. Jacobs This summer, however, Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit — a Bush-41 appointee who'd been in private practice for a couple of decades before he was appointed in 1992 — found himself confronted with yet another footnote filled, forty-something paged manuscript, with yet another carefully nuanced treatise on the application of fine principles of constitutional law. Given his tenure, I'm sure he's participated in thousands of appellate decisions before, probably including dozens of appeals that turned on qualified immunity defenses. Some of them were probably important, and the next one that wanders up the appellate chain might be too.

But this latest one, Husain v. Springer, announced on Friday the 13th, just isn't. Instead, it's an over-lawyered pissing match — I'm sorry, I know that's a crude term, but there's no term so apt — over whether there were genuine issues of fact with respect to a qualified immunity defense asserted by a college president who'd ordered a re-run, one week later, of an arguably flawed (i.e., college rule-breaking) 1997 campus election at a Staten Island community college. The alleged harm? In the following year, a "chilled" student editorial board "decided to give their endorsement of the PSA [one slate of student candidates] less prominence than the newspaper’s endorsement of the Student Union slate [another slate of student candidates] had received in Spring 1997." (The editors indulged in this paranoid fantasy despite the fact that this same college president had overruled members of her own staff to ensure that their publication was not impounded, but instead released on the timetable they wanted, and even though the same 37 candidates whom the editors had endorsed for the original election also won in the rescheduled election a week later.) The college never restricted what the editors wrote, nor punished them afterwards for writing it. None of the candidates sued (or had reason to).

"She skeered us," was the student editors' basic claim, "even though she didn't actually do nuthin' to us." (Someone from the northeast will have to translate that into an appropriate Staten Island slacker dialect for me.)

The district court, after extended proceedings and with a thorough written opinion, had granted summary judgment denying any relief. The students, represented (probably pro bono, but possibly with an opportunity to recover legal fees) by a prominent national mega-firm (Akin Gump), appealed. But two judges on the Second Circuit panel — via a 44-page written opinion of U.S. Circuit Judge (and surprise! Clinton nominee! and double surprise! famous Yale Law School Professor Emeritus) Guido Calabresi — reversed in part and remanded for a full jury trial on the merits.

*******

Friends and neighbors, I now give you the vivid prose of Chief Judge Jacobs — a man who is clearly tired of suffering fools gladly, and who is keenly aware that, as the chief judge of one of our nation's most important courts, he certainly has better things to do than to referee every grab and every fall from a college newspaper's 10-year-old self-important opinions about imaginary consequences from a wrestling match student government election from a Staten Island community college (citation omitted):

This is a case about nothing. Injunctive relief from the school’s election rules is now moot (if it was ever viable); and plaintiffs’ counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.

With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs’ fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit.

*******

So who finds this dissent shocking?

Other present or former law professors like Judge Calabresi, I guess — including Profs. Eugene Volokh and Orin Kerr over at the Volokh Conspiracy. But they're not shocked because of Chief Judge Jacobs' characterization of the lack of merits to the student-plaintiffs' case. (Indeed, in a separate post, Prof. Volokh writes that the majority's opinion was "quite odd" and that he's "unaware of any First Amendment case that remotely reaches this sort of 'chill[ing of] speech'; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment." In other words, he suspects that Judge Calabresi is wrong on the merits.) Rather, these fine law professors are shocked by this (deliberately understated) admission from Chief Judge Jacobs at the beginning of his partial dissent:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.

I must digress a moment. If you read my blog regularly, you may fall prey to what I think might be called a "sampling error" bias. I hardly ever write about blog posts by law professors with whom I agree. And you might therefore stop taking me seriously when I insist that I like and admire and respect the law professors about whose posts I do write from time to time. I'm not being coy or disingenuous. I probably read 50 posts by Eugene Volokh or Orin Kerr that I wholeheartedly and unreservedly agree with for every one with which I disagree.

But this is one of those times when I fear they're both suffering that sort of academic-induced narcosis that leaves them just flat out of touch with the real world. That real world includes full-time practicing lawyers, and full-time trial and appellate judges (but not necessarily their clerks), most of whom would treat this case as a tempest in a teapot, which is exactly what Chief Judge Jacobs has done here.

*******

Actually, however, I do agree that Chief Judge Jacobs' absolute refusal to even read Judge Calabresi's majority opinion is shocking. In fact, I'm quite sure that Chief Judge Jacobs intended for it to be provocative. He's pretty much saying, "I refuse to even read what my fellow judge has written about this appeal" — and well, that's indeed extraordinary. It's likely to generate controversy, with the effects of that controversy creating their own time demands, all of which is likely to become entirely disproportionate to the fifteen or twenty minutes Chief Judge Jacobs has saved for his schedule by ash-canning Judge Calabresi's majority opinion..

U.S. Circuit Judge Guido Calabresi Prof. Volokh and Prof. Kerr and various of their commenters were definitely provoked, but nevertheless seem to have missed Chief Judge Jacobs' point entirely. They seem to think this is equivalent to a judicial abdication by Chief Judge Jacobs, or to the doing by him of a deliberate injustice. "It's too bad that the dissenting judge didn't take the case more seriously," writes Prof. Volokh, because "I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny."

Meh. I agree that Judge Calabresi's opinion is wrong, but it looks to me like the majority opinion pretty much turns on the interpretation of City University of New York Bylaw § 15.2(d), on the subjective wobblies claimed by a bunch of student editors over a weird, probably unique set of actions by the college administration, and on the theoretical clarity (or lack thereof) of federal precedents on First Amendment free expression in a university setting as of a specific date in the late 1990s (since that's what the university president's "good faith," and therefore her potential liability, must be measured against, incredibly enough). That's not quite a blockbuster in terms of its precedential effect on other cases, regardless of whether Judge Calabresi's opinion got it exactly right or not quite right or mostly wrong.

More to the point, I disagree with Prof. Volokh's assertion that Chief Judge Jacobs' opinion doesn't take the case seriously. The professoriat may want Chief Judge Jacobs to say, "This appeal isn't worth my time, or any federal appellate judge's time, but nevertheless, here's exactly what I would say if it were worth my time" — and then to either fly-speck every debatable point in Judge Calabresi's opinion or else to concur in it. But he can't do the latter without contradicting the former, and it's the former point which he clearly thinks is more important here.

Chief Judge Jacobs certainly makes it very clear that the district judge got it more than adequately right, such that neither he nor his colleagues needed to write any more about this case. But his far more important point is that the whole damned case isn't worth the paper it will take to print Judge Calabresi's opinion on — much less the tens of thousands of dollars of additional legal fees that will almost certainly be sought, and possibly awarded (at the expense of the taxpayers of New York state) if the students win after a full trial on remand.

Chief Judge Jacobs carefully avoided directly faulting his brethren. But his deliberately provocative conduct was an indictment of more than just their majority opinion in this case — and of more than just the appellants in this case. Indeed, he might have quoted Churchill by writing: "This is the sort of bloody nonsense up with which I will not put!" Or he might have used the phrase "De minimis non curat lex," which I believe translates from Latin into "Get the hell out of my courtroom with that noise, you idiot!" (I'm not sure of the declinations on that translation, but it's a good enough rough approximation.)

This was, in effect, a judicial rallying cry — to district judges, to other circuit judges, even perhaps to SCOTUS justices. And it's a warning — not quite "Who dares disturb the great and powerful Oz?" but definitely something that ought to be heeded by litigants whose claims are, shall we say, lacking in anything but contrived and feigned real-world importance.

Note, however, that Chief Judge Jacobs didn't refuse to do his duty as a federal appellate judge. He presumably read the briefs and the trial court record. He attended oral argument. He participated in the post-argument conference(s). We don't know what, if any, unpublished communications were exchanged between him, Judge Calabresi, and the remaining judge on the panel, (former Second Circuit Chief) Judge John M. Walker, Jr. But these opinions aren't published until every judge on the panel is ready for them to be published based on having finished what he wanted to say to his brethren, whether face to face, on the phone, or in writing. It would have been improper for any of the judges to reverse the district judge based on arguments that hadn't been made in the district court and in the appellate briefs, so Chief Judge Jacobs necessarily had a pretty good idea of what Judge Calabresi's opinion could have said, had he taken the time to parse it. He cast his own vote. And his "admission" aside, it would indeed not surprise me if he skimmed it, and/or had a clerk read it closely — which is to say, he may purposefully have avoided quote-unquote "reading" it precisely so that he could make his rhetorical point as forcefully as possible.

I'm sure Profs. Volokh and Kerr would agree that appellate judges very commonly write dissents along the lines of, "For the reasons stated in the district court's opinion, I would not have reached the merits of the substantive First Amendment issues, and would instead have affirmed on the basis of that opinion's treatment of the qualified immunity issues." Chief Judge Jacobs actually did way more than that, and went through a brief discussion of why he believes the muddled state of First Amendment precedent as of 1997, when the university professor did her supposedly dastardly chilling, should have made it impossible for her to be found liable for a bad-faith violation of the students' rights.

Nevertheless, as Chief Judge Jacobs viewed it, in the circumstances of this case, his duty obliged him to resist the institutional inertia and the demands of silly plaintiff-appellants like these that he give their appeal more time than it possibly deserved. You don't win a pissing match by whirling about, adding your own piss stream to the mix, and then insisting that you're not getting as wet as the others, nor by admitting that you're wet while writing at length about how nice it would be if you were dry and how much you wish the other fellows would stop pissing. The only way to "win" a pissing match is just to jump the hell out of the spray. Only then does it make sense to comment on what you've just gotten out of. And that's what Chief Judge Jacobs did.

And the place he chose to draw the line was in reading yet another 40+ page manuscript, of the sort turned out year after year by, yes, law clerks just like the one I was in 1980-1981. Such a long opinion was barely defensible, and mostly regrettable, even back then. It's simply indefensible now, and from down here in the real world, I applaud Chief Judge Jacobs for saying so — even at the cost of what may have been some "collegiality" with his brethren.

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

UPDATE (Sat Jul 14 @ wee small hours): Prof. Bainbridge and I are in substantial accord, and both join in Chief Judge Jacobs' dissent, with due respect to Prof. Bainbridge's colleague Prof. Volokh. Ted Frank on Overlawyered cites Prof. B and Chief Judge Jacobs with approval, but he's pretty low-keyed in his mockery. Ted quotes another paragraph from the dissent that contains a phrase with a deliciously studied ambiguity (emphasis mine):

This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars.

And see also Above the Law, whose headline notes that Chief Judge Jacobs is obviously "not running for student body president," and whose text aptly urges you to read Chief Judge Jacobs' entire opinion so that you may "absorb the entire spectacle of a full-blown student government p*ssing match in which the stakes could hardly be lower." The comments there are pretty funny too.

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

UPDATE (Sun Jul 15 @ 8:00pm): Prof. Althouse has a short post up about the dissent, but doesn't seem to me to either directly approve or disapprove of it. I've also put up a new post in response to a comment below from my friend Patterico.

Posted by Beldar at 01:16 AM in Law (2007), Trial Lawyer War Stories | Permalink | Comments (12)

Friday, July 13, 2007

Dean Barnett fouls a pitch off his foot in trying to tag lawyers with their clients' views

Former Soxblogger Dean Barnett is a bright guy. None of us gets a hit with every at-bat, but Dean usually avoids fouling pitches painfully off his own feet — which makes it surprising to read something from him that's as profoundly misinformed or ill-conceived as this (emphasis mine):

This week, Fred’s non-campaign made a seamless transition from smooth to bumpy, and his team has looked decidedly not-ready-for-primetime. The story about who he represented as a lawyer and lobbyist resonates. The dodge that lawyers/lobbyists don’t need to share the views of their clients and shouldn’t be held responsible for them is a pile of hooey. Each lawyer, like every other member of society, is the conservator of his own talent. If a lawyer chooses to use his talents to try to spring Khalid Sheikh Muhammad, perhaps other lawyers will salute him and see nothing wrong with the effort. But I know and you know that said lawyer wouldn’t have much of a political career in front of him.

If I were a general contractor and profited from building a Planned Parenthood facility, I don’t imagine that fact would endear me to America’s conservative community. If I sought office as a conservative Republican, I would expect my primary opponent to make an issue of it. Lawyers want to play by a different set of rules, and in the eyes of their fellow members of the Bar, they do. But the rest of the country won’t buy it, nor should they.

Putting aside his criticisms of the Thompson organization's oblique responses to the underlying criticisms (which may or may not have been politically deft and astute), I hope that Dean's naïveté about the unfairness of painting lawyers with their clients' positions comes from the fact that he's never had legal troubles of his own, nor had to put himself in the position of those who do.

General contractors are honorable tradesmen, and I don't mean to disparage or understate the degree of judgment and skill that can distinguish one from another. Just like every other businessman, they certainly should operate within a framework of general business ethics. To my knowledge, however, they do not operate within a system of fiduciary responsibilities in which they agree to be bound to put their customers' interests ahead of their own. (That's one reason why they have "customers" instead of "clients," in the common vernacular.) When one chooses general contracting as a profession, one does not commit to help ensure that constitutionally adequate buildings are available even to the blackest and most evil members of society. Nor does the contractor appear as the public face of his customer, acting on his behalf, speaking out for him in public at the very time when the customer is under the most intense public scrutiny. And while a general contractor's work may determine whether your home or business falls down when the wind blows or leaks when the rain falls, it generally won't determine whether you spend years in prison or get a lethal injection. Dean's oversimplifications notwithstanding, there are excellent reasons why the rules are, and should be, different for lawyers and contractors.

*******

Early in my career, I spent many hundreds of hours representing a convicted capital murderer — the getaway driver on an intended empty-home burglary gone bad in which, while he waited unknowingly outside, his fellow felons had executed a Montgomery County juvenile officer with his own gun in front of his wife and children. I undertook the case at the specific request of a Fifth Circuit judge who discerned, correctly, that the legal issues involved were very important ones, and that the state of the Fifth Circuit's precedents on them was badly muddled — all of which meant that for the good of the entire judicial system, this man needed a first-rate constitutional lawyer to advocate his position.

The work was entirely pro bono, and the firm with which I was then employed — Houston-based Baker Botts — cheerfully ate all of those lost billable hours, along with thousands of dollars in out-of-pocket expenses. My client wasn't as depraved as his accomplices, but neither was he anything approaching innocent; and under any view of the facts, he was vastly more culpable than someone arguing about what may or may not be discussed during counseling on contraceptives!

When I was done with his representation (after two Fifth Circuit decisions with an intervening evidentiary hearing in federal district court), I was proud of the commendation I received from the court and of the service that I had performed to the Rule of Law. I had done my duty to my client, but not out of love for or identification with my client, and certainly not because I approve of cop-killers. As it happened, he ended up serving something over six years, which I thought was at least roughly appropriate, and which the State agreed to accept in lieu of re-trying him when I succeeded in having his original conviction overturned. (Of my client's two cohorts, one was executed by lethal injection, and the other was slain in the midst of another violent crime.)

So tell me, Dean — does that case disqualify me from being a "good conservative"?

*******

Just as we have ethical obligations to attempt to put personal feelings about a client aside, both for the good of that client and for the good of the system, lawyers also have ethical obligations to recognize that we are fallible human beings who sometimes will be unable to succeed in those attempts. If, through chance, I'd been personally acquainted with the slain juvenile officer or his family from the case I just described, then when the Fifth Circuit asked me to represent someone complicit in his execution, I'd very likely have had to decline — not because I lacked faith in the system, nor because I lacked the willingness to support it even at the cost of doing things unpleasant to me, but because I would have such a disabling conflict of interest that I could not expect myself to genuinely represent that particularly client diligently and ably. As it happened, I had no personal connection to his case; but I could still only take it because I was satisfied that I could control my personal reactions to his conduct and therefore I was satisfied that I would not unintentionally throw his case.

Drawing those lines requires a deep look by each lawyer into his own soul and character. I have colleagues whose personal histories or deeply held views are so intense that they could not, despite their best efforts, render diligent service to any defendant accused of a violent crime. Or maybe they hold such rabidly anti-abortion views that they also couldn't defend a general contractor in unrelated commercial litigation simply because that contractor had once built a building to house a Planned Parenthood clinic. I'm equally as loathe to second-guess those self-recusals as I am to second-guess someone for failing to self-recuse.

*******

Most people as smart as Dean grasp all this without much trouble. You don't have to be a lawyer to understand it, and it's frankly disingenuous to suggest that this is all some lawyer game or professional conspiracy. If you think you can't understand these principles, then try to imagine yourself in the hot seat — falsely accused, say, of being a child molester — and then decide whether you want your field of potential legal advocates reduced to those who positively approve of child molestation. What Dean refers to as Fred's "much-discussed essay on PowerLine" includes Sen. Thompson's reference to past political opponents who've badly stubbed their toes by underestimating the voting public, or overestimating their own abilities to fool the public using this kind of argument.

If you genuinely believe in the system, then you must accept that it depends on both sides in any given dispute having the benefit of capable advocates who are representing their respective clients diligently within the bounds of the law and the canons of legal ethics. You cannot dispute that principle without endorsing mob justice — which is, all too often, injustice, and which is never justice under the Rule of Law.

Does Dean realize that his argument about Khalid Sheikh Muhammad would put him right at the front of any mob opposing the Rule of Law? Is that really where he wants to make his stand? Because that's also a popular position to take in the sharia "justice system"— at least in the version favored by Khalid Sheikh Muhammad and practiced in some parts of the Islamic world.

Quite frankly, Dean should know better than this, and I suspect that he actually does (and would so acknowledge were he to give it further thought). I'm absolutely certain that his blogging host for this particular post, Hugh Hewitt, not only fully understands these principles, but has lived them and (as an accomplished legal educator) could more vividly and concisely explain them to Dean than I have.

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

UPDATE (Fri Jul 13 @ 10:35pm): I'm disappointed to read that Ramesh Ponnuru thinks the argument that a lawyer ought not be tarred with his clients' views is a "very weak argument." I'm genuinely baffled how such smart, principled pundits can have such a poor grasp of the legal system's fundamental precepts, and I genuinely do believe the rank-and-file public aren't so likely to be confused.

If your legal career has been as the general counsel of the A.C.L.U., or if you chose to devote most of your private practice to representing accused Mafia mobsters, that would be one thing. But one client, on one representation? That's so unfair as to be silly.

Posted by Beldar at 03:18 PM in 2008 Election, Law (2007), Politics (2007) | Permalink | Comments (11)

Wednesday, July 11, 2007

R.I.P. Lady Bird Johnson, 1912-2007

My own feelings about fellow Texan and former President Lyndon B. Johnson have evolved and become quite a bit more complicated over time. After starting with very negative opinion, I've generally become more admiring and sympathetic, and more appreciative of his great qualities that so highlighted the depth of his tragic flaws. And you cannot be a well-informed Texan without understanding how his legacy has profoundly affected, and indeed still affects, this state. But as I've read more biographies and other books that have added to my knowledge of him, I've also became more and more of a fan of his wife — born Claudia Alta Taylor, but universally known as "Lady Bird" since long before she married. My admiration for her is unmixed with the negatives that must color my views of her husband.

She passed away, peacefully, today at her home in Austin at age 94.

I don't think it's sexist or demeaning to recognize that one may be ennobled by what one undergoes and contributes on behalf of a spouse. And as a spouse, as in all other respects, LBJ was, to put it mildly, a challenge and a handful. Most of the country, probably including their own two husbands, saw Lady Bird as a dull sparrow compared to swanlike, glamorous Jackie Kennedy. But that's a very shallow view, and in more meaningful terms than glamor — in terms of service, direct and particularly indirect, to one's country and civilization — Mrs. Johnson comes off the superior of the two with the perspective of time.

This quote from the Austin American-Statesman's very good report of her passing is pithy and apt:

"I was once asked to describe her in one phrase," Harry Middleton, former director of the LBJ Library and Museum, said in a 1995 interview about Mrs. Johnson. "And the phrase I came up with was 'grace and steel.'"

And I'll also steal and reprint here the Statesman's photograph, which resonates for any Texan who knows her story and has ever reveled in a springtime hike or drive among the roadside bluebonnets and other wildflowers.

Former First Lady Lady Bird Johnson

Posted by Beldar at 11:58 PM in Politics (2007) | Permalink | Comments (5)

NYT, predictably snotty and silly, weighs in on the "trophy wife" meme for Fred and Jeri Thompson

Ed Morrissey at Captain's Quarters and Joe Gandleman at The Moderate Voice had similarly derisive reactions to the NYT's July 8th story on former Sen. Fred Thompson's wife, Jeri Kehn Thompson — the alleged "trophy wife" about whom I've already blogged, with lots more pix, a couple of times last month (here and here). Quoth the one-time national newspaper of record:

... Is America ready for a president with a trophy wife?

The question may seem sexist, even crass, but serious people — as well as Mr. Thompson’s supporters — have been wrestling with the public reaction to Jeri Kehn Thompson, whose youthfulness, permanent tan and bleached blond hair present a contrast to the 64-year-old man who hopes to win the hearts of the conservative core of the Republican party. Will the so-called values voters accept this union?

Fred & Jeri Thompson with daughter Heyden (photo: Erik S. Lesser/World Picture Network) The question is sexist, and it is crass. And "serious people," including Mr. Thompson's supporters (or those who, like me, are leaning that direction) don't have much trouble recognizing tabloid journalism practices even when they gush from the pages of the New York Times.

Then, if we "serious people" have any sense of humor — which the candidate and his wife certainly do — we simply laugh and shake our heads at the hypocrisy and, frankly, the dinosaurishness of those other people who think this might actually be a substantial hindrance to Sen. Thompson's campaign.

Gandleman, calling this "smelly journalism," makes the point that ought to have been obvious to the NYT editors (caps his):

So the writer of the piece knows for A FACT that when Thompson married his present wife, she was picked as a "trophy?" There was no love involved? No relationship? No friendship? She didn’t share some of his values and dreams? ...

[T]his Times story has a basic assumption that neither the writer or the editor could prove — one that should have been edited out from the lead of the story.

But if that had happened, then the story wouldn’t have GRABBED THE READER. And that’s what’s more important than showing accuracy and fairness, isn’t it?

Morrissey infers a motive more political than simple capitalistic circulation-pumping:

All it indicates to me is that Pinch Sulzberger and his staff seem very worried about a Thompson campaign, so worried that they have already started attacking Fred's family rather than discuss his policy stands, contained in essays that he has published for months at Townhall and ABC. The caliber of these attacks show the quality of the opposition to Fred, and also give Fred some indirect credibility, as his opponents don't appear to have confidence that they can beat him on the issues.

They're both right.

As for me, I'm confident that somewhere on Hillary Clinton's nightstand is a list of "General Election Attack/Rebound Issues" that she constantly reminds herself to avoid raising herself, in lieu of properly insulated attacks to be made only by proxy. One of them, I'm sure, already has to do with Jeri Thompson — her hair color, her tan, her curves, and especially her age. It's part of the methodical nature of a Clinton campaign to leave no attack unmade, even if the number of voters who will potentially respond to the attack is fairly small, as I think is the case in 21C America with an attack based on an opponent having "married a 'trophy wife.'" Put another way: I think vast majority of people who are likely to be fixated on Fred Thompson's and his spouse's relative ages or looks in a negative way are people who have already decided to vote against the GOP nominee, whether that turns out to be Fred Thompson or someone else.

But surely someone on Hillary's staff has snapped to this reality and already pointed it out to her: The most potentially powerful way in which Jeri Thompson's looks and age might affect the 2008 presidential campaign is via a backlash against a candidate stupid enough to be caught trying to make them an issue — particularly if that's a candidate who is herself still more famous as a politician's wife than as a politician in her own right.

Posted by Beldar at 11:20 PM in 2008 Election, Mainstream Media, Politics (2007) | Permalink | Comments (0)

Tuesday, July 10, 2007

Richard Viguerie's back-handed endorsement of Fred Thompson

Some decent-sized and particularly annoying percentage of my email spam comes from Richard A. Viguerie, who's a prominent example of the species of self-appointed über-conservatives who claim a monopoly on being able to vet other conservatives. The only half-sentence of his new anti-Fred Thompson screed (h/t Ramesh Ponnuru) that you need to read is this one, which comes from somewhere in the middle (when he's actually looking at Thompson's voting record as a senator):

Fred Thompson’s record may appear to be "conservative," but only by comparison with Rudy Giuliani, John McCain, or Mitt Romney ....

One of those four men is going to be the Republican nominee for president in 2008. And I'm 98% sure that it won't be John McCain, so we're really only talking about three of them. For those of us conservatives who live in the real world (instead of Viguerie's paranoid fantasy world), we'll almost certainly be choosing among Rudy Giuliani, Mitt Romney, and Fred Thompson for the Republican nomination. The winner will be pitted against either Hillary Clinton, Barack Obama, or John Edwards. If the likes of Viguerie can't get their minds around that — if they can't recognize that this is a multiple-choice test with a limited number of options — then they've guaranteed that they'll never be more than irrelevant annoyances to the GOP and to national (i.e., non-academic, non-think-tank, and non-consultancy) political conservatism generally.

(It's not that I'm against all academic, think-tank, or consultant conservatives either. It's just that I recognize that they make up, oh, something like 0.00003% of American voters, or maybe 0.00006% of American conservatives.)

If you're wondering why I describe Viguerie as living in a paranoid fantasy-world, just note that his website — following the title of his latest book (currently ranked No. 51,059 on Amazon, only slightly above the hot-selling Amigurumi!: Super Happy Crochet Cute (Paperback)) — is www.conservativesbetrayed.com. If you're wondering how Viguerie became a spammer, recall that his background is actually as a political direct mail advertising salesman. And if you're wondering how Fred Thompson in particular got Viguerie's panties in such a wad, here's a broad hint, taken directly from Viguerie's rant:

Where are the long-time conservative activists today around Fred Thompson? Not campaign consultants who sell themselves to the highest bidder at campaign auctions. No, dedicated and recognized conservative thinkers and activists who will work only for truly conservative politicians.

Go ahead, try and name one. And if conservatives were not part of his inner circle before he started running for the presidency, we cannot expect him to have conservatives in his inner circle if he gets elected. And in politics, personnel is policy.

Translation: Fred hasn't sufficiently flattered, or better yet (from the latter's viewpoint) hired, Richard Viguerie or his "long-time conservative activist" buddies. Therefore, ipso facto, Fred isn't a "real conservative" (as defined by Richard Viguerie and his buddies). And I guess by that standard, as a mere blogger, I'm probably not "conservative enough" for Viguerie either. (I need a very, very small hankie to dry my tears that this realization prompted. Oh, wait ... never mind — those weren't tears, it was mist from the Diet Coke I just opened.)

By recognizing, in the sentence I've quoted at the beginning of this post, that Fred Thompson's record is more consistently conservative than Giuliani's, McCain's, or Romney's, Viguerie is actually giving Thompson a back-handed endorsement. But then, for those of us who've compared their records, it's not like we ever needed Viguerie to tell us that Thompson's record is more conservative.

And records aren't everything. Current positions and promises do matter. So, too, does electability and its necessary component, grace under sustained pressure. I'm still looking at all three of the realistic GOP contenders to evaluate those aspects of their candidacies. And that's particularly why I'm eager for Fred to formally declare and to put himself into the trenches and under the spotlights. If he meets my expectations and hopes on those non-record aspects, then his record is certainly conservative enough for me that I'd have no hesitation, and indeed that I'd have great enthusiasm, in voting for him over any of the potential Democratic nominees.

That's the real world, Mr. Viguerie. Now that I've pretty deliberately insulted you, would you take me off your email lists? Please?

Posted by Beldar at 07:50 PM in 2008 Election, Politics (2007) | Permalink | Comments (8)

Al Qaeda's plan to win the war by winning in the U.S. Capitol

Once again, as so often, I find myself on exactly the same wavelength as Andy McCarthy:

When you let them have Iraq, like we let them have Afghanistan in the 1990s, they tend to want Manhattan.

Please read the whole thing. Brother McCarthy — the former federal prosecutor who's successfully prosecuted Islamic terrorists, yet who articulates so well and consistently why the war on Islamic terrorism isn't a primarily a matter of criminal law — brings you the detailed and very specific al Qaeda quotes that need to be hurled into the teeth of Hillary Clinton, Nancy Pelosi, Harry Reid, and their ilk (bodadpaf) on the Capitol floor.

That's exactly where al Qaeda has always intended to win this war, and the only place where they can. Unfortunately, their chances there look better than ever — especially if, as also seems increasingly and distressingly likely, a large handful of congressional Republicans go along.

Posted by Beldar at 07:14 PM in Global War on Terror, Politics (2007) | Permalink | Comments (5)

The Bodadpaf (or: "Beldar's obligatory disclaimer about Dems' patriotism and foolishness")

I've written this, or words like it, many times before, but I'm just sick of having to say it again. So from now on, every time I otherwise would have written out the following, I'll just throw in a link to this post instead:

I'm not "questioning their patriotism." I'm not criticizing the Dems for being unpatriotic, much less accusing them of willful treason. Instead, I'm faulting the Dems* because they're reflexively America-blaming and Bush-hating, selfish, power-hungry, short-sighted, naïve, ignorant of history, and generally foolish beyond measuring — all of which makes them into useful fools who our enemies can easily exploit, and upon whom our enemies can (and expressly do) therefore rely. Although it is not the Dems' subjective intention to harm America or the rest of the civilized world, that will be the direct, inevitable, and profoundly foreseeable consequence of their actions. And when the next 9/11-scale event happens, they will not be excused of their moral and political responsibility for those consequences simply by virtue of the fact that they were "patriotic idiots" instead of "mere idiots."

Sadly, I fully expect this "Bodadpaf" to become my internally most-linked post ever.

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

*By "Dems" I mean the current Democratic Party leadership (Reid, Pelosi, Dean, etc.) and its current leading candidates for its presidential nomination (Clinton, Obama, and Edwards). I exclude past Democrats like Harry Truman, John Kennedy, and Scoop Jackson, and their  single prominent modern counterpart, Joe Lieberman.

Posted by Beldar at 07:09 PM in Global War on Terror, Politics (2007) | Permalink | Comments (5)