BeldarBlog

New banner! Thanks, TypePad customer service!

The customer service people at

TypePad continue to amaze me.  This is what, my third or fourth unsolicited testimonial to them and their product?  As I've said before, the software is great as is; but it's improving rapidly; and best of all, by far, is the quick competence of the customer service crew, who I feel like I'm getting to know almost on a personal basis.

I decided I was tired of plain old text in the "banner" at the top of my blog.  I didn't know for sure what I wanted, but I wanted something new. 

TypePad makes posting a graphic for that purpose absolutely easy if you're using their many regular and highly customizable templates — check a box, navigate via a browse window to the graphic file you want to upload, click on the SAVE button. 

But I've long since gotten the tweakers' bug and have been messing with stuff which requires that I use "custom templates" — which are super-flexible, but require a bunch more patience, ingenuity, and/or programming skill.  Knowing some html is good, and I do; knowing some CSS (cascading style sheets, which is html on steroids) is better, and I don't (much, but I'm learning).  So switching to a graphic in one's banner with custom templates already in place is a leeee-dul bit trickier (although not nearly as hard in hindsight as I made it seem to be).

Anyway, to cut a long story short, about three exchanges with TypePad's cheerful customer service folks had me fixed up.  Voila, supra!  Super!  Did they say, "Hey, bozo, we're not your CSS instructors, go buy a book or take a course if you wanna be a website programmer"?  Nope.  Neither did they write the little bit of code I needed for me, either.  Instead, they gave me a couple of succinct pointers about how I could figure it out myself.  They taught me to fish instead of giving me a fish.  Or something.

I dunno whether I'll be as creative as Lileks is — he's got up a new banner graphic just about every week — but I might be, now that I know how it's done.  For the meantime, the planet graphic is something I picked because (1) it matches my color scheme, (2) it was easy to find, (3) it makes me think I'm seeming worldly (nyuk-nyuk-nyuk!), and (4) being that my blogging namesake is a conehead from Remulak, it seemed appropriate to start with a distant view of this crazy planet from some distance away, metaphorically, in the blogosphere.

Jeepers, Mrs. Wilson! Let's not all jump off into the deep end, okay?

I've just spent about three hours getting reasonably up to speed on the Robert Novak/Amb. & Mrs. Joseph Wilson/Tom Clancy affair that's been rocking the blogosphere today.  (Out of respect for statutes allegedly broken and confidences allegedly violated, I shall avoid using the maiden name of former Ambassador Wilson's wife, although I note that it appears to rhyme with "blame," "came," "dame," "fame," "flame," "game," "lame," "maim," "same," and "tame" — unless she gives it a French pronunciation, in which case I frankly don't give a damn.)

Tom Maguire has been blogging in Just One Minute about this story for some time, most recently here and here.  Daniel Drezner has moved from switching-party-level outrage to something less condemnatory and more openminded.  There are generally good-quality comments on their posts, and also on posts by Pejman Yousefzadeh (here and here, the latter of which includes quotes from and links to the relevant statutes, thank you!) in his blog, Pejmanesque.  Mark Kleiman is fairly hysterical repeatedly, and Kevin Drum of CalPundit is predictably witty and acidic and especially eager to quote Republicans who have been pottymouthed, but his comment sections go on and on without end, beyond what I am willing to parse or even wade through.  I no longer quote or link to, and rarely read, Josh Marshall, who I've concluded — based on his studied refusal to correct a significant and indisputable mistake about the recent history of Texas redistricting — lacks ethics and integrity; you can find him yourself if you wanna.  And don't forget Professor Reynolds at InstaPundit or the inestimable Jane Galt of the delightfully named Asymmetrical Information.  Finally, no round-up would be complete without Novak's latest ("There is no great crime here"), Amb. Wilson's backtracking ("I think I was probably carried away by the spirit of the moment. I don't have any knowledge that Karl Rove himself was either the leaker or the authorizer of the leak."), and Clifford May's argument that lotsa folks already knew of Mrs. Wilson's CIA connection before Novak ever published.

Whew!  Read all that and you'll know a lot about almost nothing.  Indeed, you'll see that some of the big news from yesterday or a few weeks ago (for example, Ambassador Wilson's rather premature and immature and unfounded reference to Karl Rove being "frogmarched out of the White House in handcuffs") has ... evanesced.  To say that there is conflicting information bouncing from the blogosphere to conventional media and back is a considerable understatement.

I have just three points to make at the moment (variations on comments I've left at various other blogs), and I'll try to be brief (by BeldarBlog standards):

1. The statute making it a crime to deliberately "out" a covert intelligence agent is important.  It's important that violators be caught and punished; but it's important that the innocent not be unjustly accused of violating it.  Broad-brush painting is extremely dangerous in this matter, especially now.

2. The fact that the CIA has asked DoJ to investigate emphatically does not mean — as Professor Kleiman among others asserts — that we can already "say with confidence that serious crimes against the national security were committed by at least two people."  The CIA unquestionably has a substantial interest in seeing that the statute is vigorously enforced, but that only means that it ought to report all plausible allegations of violation to DoJ — not that it should make any attempt to pass on the merits of such allegations itself!  The CIA has its own lawyers, yes, but their job is to keep the CIA from violating the laws (no simple or frivolous task); it does not have prosecutors.  CIA would be acting outside its mandate and competency if it were to dismiss any even remotely plausible allegations, and would be accused of cover-up by the very same people who are already calling for a special prosecutor.  DoJ, by contrast, exists for the exact purpose of gathering facts, analyzing and applying law to them, and prosecuting crimes if it finds probable cause to believe laws have been broken.  It has career prosecutors who have the trust of both Janet Reno and John Ashcroft, along with the experience and the security clearances to dig into this.  That CIA has referred this matter to DoJ means nothing more than that the rule of law is being pursued and enforced by the appropriate authorities, which is no small matter and a good thing in and of itself.  But as Prof. Kleiman might recall, there's also a role to be played by that other branch of government — you remember, the ones with the funny robes? — before anyone can conclude with reasonable confidence that someone, or anyone, is guilty of a crime!

3. The President ought not be "out in front" on this.  He has a role in setting and generally enforcing White House staff policy on leaks, it's true, and from all reports this administration has in general been the most leak-free and disciplined of any in recent history.  He also could have a role, hypothetically, in proposing further or amending legislation on this subject.  When and if anyone is convicted, finally, he may also have a role in reviewing any requests for executive clemency or pardons.  But there are extremely sound and long-recognized reasons for a President — any President — to avoid trying to do the DoJ's job for it, and to stay the hell out of an on-going DoJ investigation or prosecution.  Just as with the CIA and its lawyers, this would be outside his and his staff's field of competence and would inevitably look like a cover-up.  And a President has no business opining on any accused defendant's guilt or innocence before trial and the exhaustion of all appeals.  If you're such a Bush-hater, so committed a member of the Angry Left, that you believe seriously George W. Bush would approve of or condone this stuff, nothing he (or I or anyone else) could say or do now would convince you differently anyway.  And if instead you've got a clue about how Dubya actually feels on the subject of covert intelligence and the War on Terror, you don't need him holding a pep rally to be persuaded that he's already done what's appropriate — no more and no less — in terms of motivating DoJ's professionals in general.

I'll likely have more to say as things continue to develop.  What a surprise, eh?

No, it's not "Limbo!"

Raising the Bar begins today, thanks to the author of the Mellow-Drama blog, as a sort of Carnival of the Vanities/"best of the week's blawgs" for law and legal-related weblogs. 

The first week's listings are modest in number, perhaps reflecting the fact that most of the entries are self-nominated; as we all know, lawyers and law students are congenitally shy creatures.  However, I for one intend to participate weekly and will make an effort to try to nominate some of the folks who, for whatever reason, aren't self-nominating.

Shhhh! Truant Texas Dems™ tiptoe to US Supreme Court

I've previously expressed my opinion that the September 12th order of the three-judge panel in Barrientos v. Texas — the lawsuit filed in federal court in Laredo by the Truant Texas Dems™ (a/k/a "the Texas Eleven Ten") — is probably not a final, appealable order, but rather an interlocutory (mid-case) one.  I've also made clear my opinion that their chances of getting any relief in the US Supreme Court are slim and none, even if the order were appealable.  And in fact, the Dems may be doing their Republican opponents a favor by keeping the case open, since it might become a shortcut for the time-pressed GOP to get past inevitable lawsuits challenging whatever redistricting plan does emerge from the third special session, possibly sometime next week.

Nevertheless, lawyers for the Dems filed a three-page "Notice of Appeal" (60kb .pdf file) last Monday, September 22nd.

I'm surprised that they apparently did so with no fanfare:   I've seen no mention of this in the popular press or the blogosphere.  Nor is there any reference to it on, for example, the Texas Democratic Party website or the (re-named and regraphic'd, but not re-URL'd) Texas Ten website.  Given the eagerness with which the Dems' lawyers have sought out the TV cameras and newspaper reporters in the past, one wonders what accounts for this sudden shyness. 

Is it possible that they are capable of shame?

Why did Al Gore agree with Jack Kennedy on the Electoral College?

The single best book I've ever read about politics is probably Master of the Senate, Robert A. Caro's third volume in an anticipated four-part biography of Lyndon B. Johnson, which I recommend without hesitation to anyone regardless of personal politics.  However, I'm enjoying another recent biography that I'm about mid-way through — Robert Dallek's An Unfinished Life:   John F. Kennedy, 1917-1963.

One can't help but cross-reference anecdotes from this sort of biography against more current events, and this passage from Dallek's book retriggered a question that has lingered in my mind since the Presidential Election of 2000:

Jack certainly hoped that Profiles [in Courage, his Pulitzer Prize-winning book from 1956,] would identify him with uncompromising political responses to national dangers.  He yearned for a challenge that would give him an opportunity to act like a political hero.  The best he could find was a congressional proposal to reform the electoral system.  Jack took up the cudgels against what he described as "one of the most far-reaching — and I believe mistaken — schemes ever proposed to alter the American constitutional system.  No one knows with any certainty what will happen if our electoral system is totally revamped as proposed."  Jack emphasized how well the existing electoral system had worked to ensure the influence of the popular vote, the two-party system, and "the large-State-small-State checks-and-balances system."  The proposed amendment, which he feared could destabilize American politics at a time of grave foreign challenges, was nothing voters had demanded or even knew about.  Although Jack gave a lengthy, authoritative Senate speech that contributed to the defeat of the amendment, his opposition hardly registered on the press or the public; reform of the electoral college was an invisible controversy.

JFK, of course, ended up winning the Presidency in 1960 by a rat's whisker in the national popular vote — 113,000 votes more than Nixon out of the 68 million ballots cast — but by a far more comfortable 303-219 margin in the Electoral College.

I've often wondered, however, why Al Gore and his supporters did not mount a more sustained attack on the Electoral College after the 2000 election, when Gore won the popular vote but lost in the electoral vote.  I give Gore considerable credit for resisting this temptation.  Indeed, I recall both that he expressed support for the Electoral College system as he was finally conceding defeat, and that he behaved impeccably in performing his own role under the Twelfth Amendment as President of the Senate in opening all the certificates from the various states to permit the counting of the electoral votes that made Dubya the new President.

Still, given the intense personal venom of the Angry Left at Dubya and everything connected with his election in 2000, I'm frankly surprised that MoveOn.org or some other sloganeering and rabble-rousing organization hasn't targeted the Electoral College.  In this era of sound-bite politics, even moreso than when JFK was in the Senate, the reasons to support the Electoral College system of electing our Presidents are awfully complicated.  By contrast, there is exactly one extremely simple (if simplistic) reason to abolish it — that is, it's anti-democratic (small d), at least in a macroscopic sense. 

I certainly don't mean to rule out the possibility that Gore's support, like JFK's, was genuinely principled.  But I'm curious:   does anyone see any practical and pragmatic reasons why Gore and other liberals (with the exception of the Staten Island Democratic Association) haven't attacked the Electoral College system with great relish and vigor?

You'd rather Dubya watch Rather?

"It's incredible to think that the President of the United States gets his information in Reader's Digest format from people who work for him," according to a recent post from Linkmeister, who links to a transcript of Brit Hume's interview with Dubya on Monday night for Fox News and to a resulting editorial in Thursday's New York Times:

Mr. Bush and his aides also seem to go to great lengths to underline the degree to which the president closes himself off from the news media. In an interview with Fox News this week, the president said he learned most of what he needs to know from morning briefings by his national security adviser, Condoleezza Rice, and his chief of staff, Andrew Card.

As for newspapers, Mr. Bush said, "I glance at the headlines" but "rarely read the stories." The people who brief him on current events encounter many of the newsmakers personally, he said, and in any case "probably read the news themselves."

Some of this may be a pose that is designed to tweak the media by making the news appear to be below the president's notice. During the Iraqi invasion, when the rest of the nation was glued to TV, Mr. Bush's spokesman claimed that his boss had barely glanced at the pictures of what was going on.

But it is worrisome when one of the most incurious men ever to occupy the White House takes pains to insist that he gets his information on what the world is saying only in predigested bits from his appointees.

Professor Eugene Volokh has a post up debunking Slate's Jacob Weisberg's "Bushism of the Day" from the same interview, in which (mis)quotes the President as saying:

"I glance at the headlines just to kind of get a flavor for what's moving. I rarely read the stories, and get briefed by people who are probably read the news themselves."—Washington, D.C., Sept. 21, 2003

Of all the criticisms I've ever seen of Dubya, this is probably the absolute stupidest.

For some considerable period of history, the President of the United States — whether it's been George W. Bush or Bill Clinton or Franklin Roosevelt or Abraham Lincoln — has had the best information-gathering and -digesting resources available to him that our nation can provide.  Obviously those resources are far from perfect.  As the Times somewhat grudgingly concedes, they include actual news-makers in addition to news-gatherers. 

Card and Rice are just the conduits — not the selectors or pre-digesters of information themselves, for there are surely dozens of those just behind them, and literally tens of thousands of news- and information-gatherers behind those.  The President's "appointees" for that process, as the Times smugly refers to them, would include all of the CIA, the NSA, the DoD, the State Department and, for that matter, every other cabinet department.

The Times may think the national interest would be better served if Dubya kept a clippings notebook, or maybe some index cards that he could add to as he spent six hours a day working through newspapers and magazines.  "Oh, dang-nabbit! ... LAURA!  Could you please come alphabetize these cards for me?  Tony Blair's coming this afternoon, and Barney knocked over the dang box again!"

Or perhaps they'd rather see him hunched over a keyboard working his way through his daily blogroll.  Maybe they'd manage to set him up with an aggregator.  Let's see — should POTUS be reading CalPundit or Atrios to get his daily injection of spin from the left?  Can he also read Drudge?  InstaPundit? ... Mr. President, are you reading BeldarBlog?  [I'm standing and saluting my monitor as I type this!]

Actually, I can imagine Jimmy Carter scanning through a blogroll in the Oval Office.  And that characteristic  was one key explanation for why Jimmy Carter — a brilliant and caring and curious man — became the worst President of my lifetime, possibly the worst of all time.

So how would you rather the President of the United States spend his time?  Reading what the New York Times is speculating about, which is in turn based on what someone has leaked about what the CIA has just learned about the leadership of Iran?  Or reading what the Director of Central Intelligence has just written about what the CIA has just learned about the leadership of Iran? 

And maybe the President should've tuned in to the BBC to get Andrew Gilligan's take on how the Third Infantry Division was doing in its advance toward Baghdad, rather than relying on filtered information from Gen. Tommy Franks via Rumsfield.  Yeah, that's the ticket!

Let's just dump that Rice chick anyway.  PhD, schmee-H-dee.  Who should meet Dubya for his breakfast briefing every day?  Well, isn't it obvious?

Maureen Dowd.

Affirmative action as the "checker-shadow illusion" of racism

I really like the guys who write Burnt Orange Report because they're smart and articulate and passionate.  They're also reflexively liberal, but that's easy to understand and forgive since they're college students at my alma mater, UT-Austin a/k/a Sodom on the Colorado.

I've been pondering Byron L's post expressing his outrage at the bake sale run by a campus conseravtive group at SMU that charged white males $1 per cookie, while females only $0.75, hispanics $0.50, and blacks $0.25.  Bryon's conclusion, in a word:   "Racists."

To which my response is, "Yes, exactly.  That's the whole point.  Doncha get it?"

And what this in turn brought to mind is Edward H. Alderson's wonderful "Checker-Shadow" optical illusion — I'm posting a thumbnail here, but please click the thumbnail to see it full-size to get the full benefit of it.

Block A and Block B are identical.  But how you perceive them depends entirely on context, and unless you work very hard at freeing your mind from the handcuffs of context, you will see them as being different from one another.

Racism and "affirmative action" — as that latter phrase is now used{note1} — are Block A and Block B.  You can be fooled by context into thinking they're not, and once thoroughly fooled, you certainly can honestly believe and righteously argue that they're different. 

But.  They're.  Not.

And when you start making important, life-altering decisions based on the premise that Block A and Block B are different, or that racism and affirmative action are different, you're likely to go astray.  It may be entirely innocent and for the best of motivations.  But the choices you make that are based on that premise are likely to be morally flawed.

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{note1}IIRC, as originally used, "affirmative action" began as a label for the equitable relief ordered by courts as a means of remedying incidents of proven past discrimination that could be pegged to individual plaintiffs, individual defendants, and individual scenarios.  Herman Sweatt, for instance, was refused admittance to Texas Law School in 1946 solely because he was black.  The US Supreme Court ruling that required Texas Law School to admit him was "affirmative action," but he was the personal, individual target of proven past racism on the part of Texas Law School. 

I am just old enough that one of my law school professors in 1977-1978, the late Jerre Williams (later a judge on the Fifth Circuit), was one of the Texas Law School professors who'd been ordered to split his time between Townes Hall on the UT campus and a downtown Austin location in order to teach Herman Sweatt and a few other blacks at the newly established "law school for Negroes" in the late 1940s.  Professor Williams' opinion was that because of the student-faculty ratio, students at the new school quite arguably got a better than equal education to that they'd have received at Texas Law School, but of course, there was no comparison between the prestige that would attach to their degrees regardless of who taught them and what they'd learned.  Indeed, that was the basis for the US Supreme Court's decision that there was no way that "separate" could be "equal" as a practical matter:

In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.

And this decision was of course the last small step before the great leap, the conclusion that there was no way "separate" could be "equal" as a conceptual matter either — hence Brown v. Board of Education and the modern-day civil rights movement.

Fast-forward fifty-three years — a full half-century, and nearly three generations.  In this past year's Grutter v. Bollinger affirmative action case from Michigan Law School, by contrast, the "affirmative action" being upheld benefited individuals who are conclusively presumed by virtue of their race to need and deserve extra help from an institution with no history of racist discrimination against them or anyone else of their race.  The black graduate of Harvard College whose parents are PhD's with earnings in the top one percent of Americans is given automatic and very possibly conclusive preference that is denied to, for example, the daughter of Vietnamese refuges whose University of Houston night-school diploma was earned while working three part-time jobs.  I have no objection to genuinely remedial "affirmative action" as ordered in Sweatt v. Painter, but cannot justify "affirmative action" as practiced at Michigan Law School and approved in Grutter as being anything but racism.

Is the Ninth Circuit merely misunderstood?

The Curmudgeonly Clerk has excellent links —  but also excellent original discussion — pertaining to the question of whether the Ninth Circuit is really as errant and out of touch as its critics claim, and in particular whether statistics can contribute meaningfully in trying to answer that question.  As I mention in a comment there, I trust my subjective opinion over statistics on that subject, and I think the Ninth largely deserves its bum rap. 

But as I've posted here as well, I commend the Ninth Circuit for at least beginning to address the problem on both substantive and reputational levels in the Shelley en banc proceedings.

Liberal "self-doubt"

There is no shortage of commentary out there on The New Republic senior editor Jonathan Chait's screed, Mad About You:   The Case for Bush Hatred, which has this concluding paragraph:

To be a liberal today is to feel as though you've been transported into some alternative universe in which a transparently mediocre man is revered as a moral and strategic giant. You ask yourself why Bush is considered a great, or even a likeable, man. You wonder what it is you have been missing. Being a liberal, you probably subject yourself to frequent periods of self-doubt. But then you conclude that you're actually not missing anything at all. You decide Bush is a dullard lacking any moral constraints in his pursuit of partisan gain, loyal to no principle save the comfort of the very rich, unburdened by any thoughtful consideration of the national interest, and a man who, on those occasions when he actually does make a correct decision, does so almost by accident. 

I love that line:   "Being a liberal, you probably subject yourself to frequent periods of self-doubt." 

Translation:   "I shall stop for a moment to consider whether anyone with whom I disagree could possibly have an ounce of intelligence or integrity.  I shall ponder whether I could be wrong in any small particular.  Could it be that I have erred, that my magnificient intellectual prowess could have gone astray, that my sarcasm and hyperbole could be off target?" 

And the ready answer — oh painful soulsearching, oh razor-blades of self-doubt! — "Nawwwww, didn't think so.  Glad that's settled."

Friend Chait, I thank you for the hearty, if unintended, laugh your column has given me.

Lawyers who are unclear on the concept of "helping" their clients: Clarett v. NFL

In Friday's New York Times, you will find this article:

Alan C. Milstein has had his share of emotionally charged legal cases. There was the lawsuit he filed against the University of Pennsylvania on behalf of the family of a young woman who died after undergoing a gene therapy experiment. And there was the suit against the manufacturer of an anthrax vaccine after an American soldier who had received injections died.

These were tragic tales involving power and its use. In reciting them, Milstein makes what seems to be an unusual connection, comparing them to his current high-profile client: the suspended Ohio State running back Maurice Clarett.

Milstein's argument is that the NFL is breaking the law — illegally conspiring in an unreasonable restraint of trade — by refusing to draft football players who aren't yet old enough to buy a draft beer:

Milstein is suing pro football over its eligibility bylaws, which prohibit a player from entering the N.F.L. draft until he has been out of high school at least three years. Clarett, a sophomore who was suspended for the season by Ohio State for rules violations, is suing to become eligible for the league's draft next April.

If you are an utterly craven, utterly shallow, utterly shortsighted bastard who's wrapped up in your own reputation and income to the complete exclusion of your nominal clients' welfare, then you might manage to persuade yourself that you'd be "helping" the boy who is your own client, and other boys like him, by going to court to establish that physically advanced and talented 18 year old boys are eligible to become instant boy-millionaires.  You could perhaps continue to "help" your client by, say, introducing him to several bookies and a crack-cocaine dealer while you're at it.

But if, as a lawyer, you have any kind of a clue about what is in such a client's genuine best interest, you will instead tell him, "Son, you have just blown what is probably the best opportunity you could ever have hoped for to pursue a sports career because you thought none of the normal rules of life apply to you because you're already so special.  Even if I could win your case for you against the NFL, what you need is not a multi-million dollar sports contract.  You need to focus on continuing to attend school for the next year and perhaps getting a good part-time job in which you can prove to yourself and your team and the world that you can be a responsible grown-up.  At the end of which time, if you've stayed in shape, your team will probably take you back for a second chance that you might, by then, have earned."

Ask Spenser Haywood whether you need to be careful what you wish for.

Beldar is smug: Eleven-judge Ninth Circuit panel affirms district court in Shelley as standard of review proves outcome-determinative

The eleven-judge mini-en banc panel of the Ninth Circuit has issued a unanimous, thirteen-page per curiam opinion affirming the judgment of the district court — thereby overturning the result of the prior three-judge Ninth Circuit panel which had reversed the district court.  The California recall election will proceed as planned on October 7th.

How'd I do on my predictions?  Pardon me for feeling a bit smug.

In my original analysis of the three-judge panel's opinion, I discussed the standard of review that appellate courts are supposed to apply to appeals from decisions granting or denying preliminary injunctions.  I focused on one part of the standard that had been cited, but then ignored, by the three-judge panel opinion — the requirement that the appellate court not overturn a factual finding of the district court unless it could be shown to have been "clearly erroneous."  But I noted that by failing to make more explicit fact findings, the district court had hurt its chances of being sustained on appeal. 

The eleven-judge panel, however, simply shifted the standard of review up one notch to focus on a similar but closely related maxim — that a district court's decision to grant or deny a preliminary injunction will only be reversed if it can be shown to be an "abuse of discretion."  That's a level of analysis that includes both the district court's factual findings and its legal conclusions in one sweeping formulation.  By keeping the focus there, the eleven-judge panel simply swept over — with zero discussion — any disputes regarding the underlying facts of the case (including the district court's failure to more explicitly resolve those disputes).  This use of a very broad focus — this refusal to subdivide the district court's decision into its logical factual and legal subparts, which there is certainly supporting precedent for doing, and which is in fact the more common practice — was, shall we say, less than meticulous, almost to the point of being a deliberate blurring.  It's a bolder, blunter assertion of the appellate court's limited standard of review than I originally proposed.  But that's basically how the eleven-judge panel was able to replace the three-judge panel opinion's sixty-six pages with something about a fifth as long.

Metaphorically, if an appeal is the examination of the district court's decision under close magnification, then the "standard of review" is the lab manual that tells you how to adjust your microscope.  I criticized the three-judge panel opinion for cranking up the magnification so high that it was "finding facts" from the evidentiary record that the district court had never explicitly discussed.  The eleven-judge opinion, however, not only twirled the focus knob back up, it whirled over into a different set of lenses altogether — a very low-magnification scrutiny.  Instead of examining the whirls and curls and intricacies of the district court's fingerprints under a 300x lens, the eleven-judge panel took a glance under a 3x lens and said, "Yep, that's a fingerprint alrightee!"  And stopped. 

In short, I predicted that the standard of review would be important, and indeed, the selection of this level of review became, very simply, outcome-determinative. 

In my other predictions, made last night after the argument:

• I predicted that Chief Judge Schroeder would be in the majority; she was. 

• I predicted a large majority to affirm the district court, "perhaps even a unanimous one"; it was. 

• I predicted that she'd assign Judge Kozinski to write the opinion.  This we can't tell, since it was unsigned.  However, I am 99.99 percent certain that what was released this morning — the timing of the release already having been announced by a court spokesman last night — was drafted before the oral argument, most likely by whichever judge led the private charge within the court to get the three-judge panel opinion reheard.  Especially given the way he dominated the oral argument yesterday, I think it's a reasonable assumption that Judge Kozinski indeed was that mystery judge.

• I predicted that the three-judge panel's reliance on Bush v. Gore could be disavowed "in two paragraphs and a one-sentence quote:   'The question before the [Bush v. Gore Supreme] Court [was] not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.'"  I nailed it on the one-sentence quote, but the eleven-judge panel took only one paragraph to use it (page 8, 2d paragraph).

• I predicted that there would be very different language from that used by the three-judge panel on the "balancing of interests," and indeed there was ringing language (pp. 9-11) about the special reasons for not enjoining elections and the public interest in proceeding as scheduled by state election authorities, even on the two ballot propositions in addition to the gubernatorial recall.

I'll now venture a further, much easier and safer prediction:   the en banc Ninth Circuit having acted to clean up the ugly mess made by the three-judge panel, the Supreme Court will absolutely refuse to have anything to do with this case.

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UPDATE (Tue Sep 23 @ 6:30pm):   Rick Hasen's Election Law blog quotes in full an ACLU press release announcing that it won't seek Supreme Court review, which can't quite resist throwing in a gratuitous shot at Dubya at the end:

We will, however, press forward vigorously with our national campaign for election reform and will fight to ensure the fairness and accuracy of all voting procedures in every future election, including the 2004 Presidential contest.

(Cue the clip from Candidate Ahh-nold.)  Presumably the ACLU's jointly-represented coplaintiffs will follow suit (not to suggest that they're anything less than the completely independent, completely distinct entities they were presented as being for purposes of avoiding the defendants' claim preclusion issue, which the eleven judge mini-en banc panel ignored anyway). 

Hasen had filed an amicus brief supporting the ACLU's position, and his polite grumbling (here and here, whenever Blogspot gets its archives back online) — based on how the eleven-judge panel extended the "abuse of discretion standard" to insulate from review not only factual findings but legal conclusions "if the district court judge came close enough to getting the law right" — is frankly very well taken. 

What he's talking about is exactly what I meant when I referred to the eleven-judge panel's failure to subdivide its analysis between the factual and legal subparts of the district court's decision; normally fact findings are immune unless "clearly erroneous," but legal conclusions are reviewed "de novo," with no deference at all to the district judge's views on the law.  The distinction is based on the unarguable proposition that while the appellate court didn't get a chance to see the witnesses and sniff out the liars, it nonetheless is in as good a position as the trial judge to decide what the applicable law should be.  If you do that sort of divided analysis, the "abuse of discretion" standard becomes almost meaningless as a separate standard of review; or to the extent it has independent meaning, it's only with respect to the "balancing of interests" part of the inquiry.  What this opinion does arguably extends or reinvigorates the "abuse of discretion" standard into one that, as Hasen points out, gives the district judge the benefit of the doubt on legal as well as factual issues — "close enough for government work," as Judge Kozinski repeatedly joked during the oral argument. 

I doubt, however, that this opinion will end up being cited for that proposition; rather, I frankly think that the eleven-judge panel used this deliberate blurring of standards as a way to compensate for the district court's failure to make fact findings in this specific case, and had no intention of writing any "new law" on the standard of review for preliminary injunctions.  If so, the case may become a "nonprecedential precedent" — meaning that the next time a litigant says, "Well, you should affirm because the district court got the law pretty close to right," the Ninth Circuit will say, "Hey, boy!  This isn't horseshoes or hand grenades!"  In any event, to call the opinion's discussion of this issue "terse" would be a considerable understatement.

According to one of his law students who blogs, Professor Tribe apparently shares my strong hunch that the opinion was written before the oral argument, based on the timing of its release.  Call me a pragmatist, or call me a cynic, but even with only the few hours of hindsight we have since the decision was announced, this seems clear to me:

• A majority of the active judges of the Ninth Circuit found the three-judge panel opinion extremely embarrassing.

• Someone — my bet is Judge Kozinski — led an immediate private charge inside the full Ninth Circuit to get the decision reheard en banc before the parties had even put finger to keyboard to draft their motions for rehearing.

• For all practical purposes, the reversal of the panel was assured as of the moment the rehearing en banc was announced.

• Speed was of the essence.  It is almost inconceivable that the en banc court could have acted any more rapidly than it actually did on this case.

• The decision to allow TV coverage of the oral argument was the most obvious example yet of a federal court engaging in spin control — in a word, "showbiz"!  Chief Judge Schroeder, on her own initiative or with urging, recognized that the Ninth Circuit needs some good PR.  Cleaning up the original three-judge panel's mess after a highly publicized, nationally televised (but completely meaningless) oral argument — and doing so unanimously, expeditiously, and with a panel on which a majority of the judges had been appointed by Democratic Presidents — was an excellent way to counter some of the deservedly bad press the Ninth Circuit has gotten from its high reversal rate and its rulings in cases like the recent ones involving the Pledge of Allegiance and the "three strikes" law.

I do not make these remarks in a critical way.  It is altogether appropriate for Chief Judge Schroeder and her colleagues to be concerned about the reputation and dignity of the Ninth Circuit, and just as it is their duty to uphold that reputation and dignity, it is their duty to act in appropriate, if indirect, ways to restore what's been tarnished.  In fact, if I'm right, then this course of action is exactly the way for the Ninth Circuit to "talk" to the people about what it is doing — in contrast to less subtle and more unethical methods of trying to affect public opinion.

Under the big top in SVREP v. Shelley

I wasn't able to watch the live argument in today's rehearing by a mini-en banc eleven-judge panel of the Ninth Circuit in Southwest Voter Registration Education Project v. Shelley, but I just finished watching it via taped streaming video available from C-Span's website.  An email from reader A.J. Pate alerted me to watch for the most priceless moment, at the very end of the hour (somewhere around 1:06:40 on the RealPlayer counter). 

Earlier in the argument, ACLU attorney Mark Rosenbaum had obviously been frustrated when various judges' questions repeatedly diverted him from his persistent efforts to address the plaintiffs' allegations that punchcard voting machines violate the Voting Rights Act of 1965 — an alternative basis for injunctive relief that had been rejected by the district court and then largely ignored by the per curiam three-judge panel opinion.  He returned to the podium to use the little bit of time that had been left to him for his final rebuttal by his co-counsel Larry Tribe, but was told that he had only thirty seconds to speak "if he has something that he really needs to say."  Rosenbaum drew his first hearty laugh from the judges deliberately when he began by quipping, "I have three points, and I'll try to make them all at once."  But in his understandable rush after that, in trying to summarize evidence from the plaintiffs' expert on voting machine disparities, Rosenbaum had a classic Freudian slip of the tongue:

MR. ROSENBAUM:   What Dr. Brady did was, he took California precincts, and he took zero percent minority precincts and he took 100 percent minority precincts, and he asked, "Was there any difference here?"  And what he found, in terms of causation, what he found was that there was a three times disparity.  Then he looked — and this is at figure three — then he looked at those districts that had changed, changed from punch-card to other machines.  And he found — and this is at pages 165 and 167 of the record — that the disparity virtually disappeared.  That it completely examined [sic].  That is, Your Honor, the strongest case that has ever been in this circus — circuit — with this — [Interrupted by laughter]

CHIEF JUDGE SCHROEDER:   Perhaps you should just quit while you're ahead.

MR. ROSENBAUM:   Guess who's the biggest clown?  [continued laughter as he sits down]

From my personal experience — both from the year I spent clerking for a circuit judge and from the two dozen or so state and federal appeals I've been involved with since then — I believe that the importance of appellate oral arguments is highly overrated.  Written briefs win cases on appeal; a blunder or a concession at oral argument can possibly lose one, but otherwise oral presentations are unlikely to have significant impact.  Even the most articulate appellate advocates — and many would rank Tribe among them, although I thought he was pretty flat today — do a far better job of expressing complex thoughts in a compelling fashion in their writing than they can in the give and take of rapid-fire questions. 

The judges' questions and comments can sometimes give clues toward their leanings, but if there's any real persuasion being done on the day of oral argument, it's more likely to occur in the private conference among the judges afterwards — when one pithy sentence delivered by an esteemed judge who may have said nothing during the public argument may nevertheless have a decisive impact on any undecided colleagues.

I saw no case-losing blunders or concessions in today's arguments.  Judge Alex Kozinski was clearly the star of the hour; Chief Judge Mary Schroeder was surprisingly subdued.  Many have predicted that Judge Kozinski will lead the block of judges who vote to affirm the district court and allow the election to proceed on October 7th as scheduled.  He played the traditional game of asking a few "have you stopped beating your wife" questions to the lawyers representing the State and Intervenor Costa, but he really skewered Tribe and Rosenbaum.  In particular, Judge Kozinski and several other judges made a large to-do about the proper standard they should use to review the district court's ruling — grilling both sides as to whether, and to what extent, they are obliged to defer to the district judge.  (As I pointed out in my original post criticizing the merits of the Ninth Circuit panel's decision, it erred in giving no deference to the district court's factfinding and weighing of competing interests, but the district court also shot itself in the foot by failing to hold an evidentiary hearing or to make explicit findings of fact that would have to be upheld unless "clearly erroneous.")

For what it's worth, here are my predictions:

• Chief Judge Schroeder will be in the majority but will throw a large chunk of raw meat to conservative critics of her court by designating Judge Kozinski to write for a large majority on the eleven-judge panel — perhaps even a unanimous one — who vote to affirm the judgment of the district court. 

• Judge Kozinski will go out of his way to disavow the panel opinion's reliance on Bush v. Gore, which could be done in two paragraphs and a one-sentence quote:   "The question before the [Bush v. Gore Supreme] Court [was] not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." 

• He'll then hold that at some theoretical level of error, variations in accuracy of different voting systems can give rise to an equal protection violation; but that wherever that level is, it's far higher than what the plaintiffs in this case submitted proof to establish, especially since their evidence failed to consider the possibility of the error rate differential between different systems dropping after a possible recount for close elections. 

• He'll also include ringing language in the "balancing of interests" that must be done in injunction cases to repudiate the panel's meme of "we're federal judges, and the California Constitution can 'merely highlight' what's in the public interest of Californians."

And the election will proceed on October 7th as scheduled.

Photographic smears

A picture may indeed be worth a thousand words.  Or it might be visually stunning, attention-grabbing — and completely meaningless.

These two photos were taken in Waco on August 30, 2003, as Pres. Bush was meeting with girls from the Midway All-Stars softball team before boarding Air Force One to return to Washington. 

I saw the first of these two photos reproduced on left-leaning sites all over the blogosphere, usually with some insulting comment about Dubya.  The second, which was taken moments later, I just came across today for the first time. 

The contrast simply proves that when you are famous, then people take lots of pictures of you, and eventually someone will take a picture of you that makes you look cruel or wicked or stupid.  People who oppose you, and some who even hate you, want to smear your reputation, so they'll publish it far and wide.

Ted Barlow has a post up at Crooked Timber which claims that Matt Drudge and Robert Novak are attempting to smear new Democratic Presidential candidate Wesley Clark "on factually untrue grounds," and that as part of that effort, they're misusing a "shocking photo" in which then-General Clark and Bosnia Serb commander Gen. Ratko Mladic have traded uniform caps.  Specifically with respect to the photo (as opposed to the wisdom or judgment shown by the visit during which that photo was taken), I left this comment:

Whether Gen. Clark is more of an Eisenhower or a McClellan is still very much an open question, and one worthy of serious and thoughtful public debate. There are plenty of reasons not to take Gen. Clark terribly seriously as a presidential candidate, and even plenty of reasons to question Gen. Clark’s performance in the Balkins. But this photo isn’t one of them.

I'm almost speechless that Judge Pregerson isn't

This (no-cost registration req'd) — from today's LA Times about Southwest Voter Registration Education Project v. Shelley — made my jaw hit the floor:

The second round of arguments in the case [regarding the California gubernatorial recall election] will be heard Monday in San Francisco by a panel of 11 appeals court judges that is far more conservative than the group of three who ordered the election postponed. The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview.

And near the bottom of the same article:

"Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

Juxtapose those quotes with this one:

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

Canon 3A(6), Code of Conduct for United States Judges (emphasis added). 

Note 3 at the very bottom of this document confirms that this "Code governs the conduct of United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges."  (Emphasis added.)  And the official Commentary to Canon 3A(6) states:

The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A. This provision does not restrict comments about proceedings in which the judge is a litigant in a personal capacity, but in mandamus proceedings when the judge is a litigant in an official capacity, the judge should not comment beyond the record.

(Emphasis added.)  United States Circuit Judge Harry Pregerson of the US Court of Appeals for the Ninth Circuit sits in Los Angeles, California; is a member of the California bar; and served as a judge in the California state-court system before he was appointed to the federal district court bench by President Johnson in 1967.  A parallel proscription governs judges in the California state-court system:

A judge shall not make any public comment about a pending or impending proceeding in any court, and shall not make any nonpublic comment that might substantially interfere with a fair trial or hearing.... This Canon does not prohibit judges from making statements in the course of their official duties or from explaining for public information the procedures of the court, and does not apply to proceedings in which the judge is a litigant in a personal capacity.  Other than cases in which the judge has personally participated, this Canon does not prohibit judges from discussing in legal education programs and materials, cases and issues pending in appellate courts.  This educational exemption does not apply to cases over which the judge has presided or to comments or discussions that might interfere with a fair hearing of the case.

That's Canon 3B(9) of the California Code of Judicial Ethics (at pp. 12-13). 

Making comments like these about the likely disposition of an en banc rehearing and the composition of the en banc panel  to the LA Times is not remotely part of Judge Pregerson's "official duties."  Nor is a comment about the likely disposition of an appeal he just finished ruling upon "explaining for public information the procedures of the court."  Even if he's a voter, Judge Pregerson is not a "litigant in [his] personal capacity."

In short, this is a clear ethical violation — a stunning and simply indefensible one.  It is not a close call.  It would not be excused even if Judge Pregerson thought he was speaking anonymously or off the record.

It is just very badly wrong. 

No matter how much I personally agree or disagree with the panel opinion in the Shelley case (and I do strongly disagree with both its merits and the style in which it was written), my respect for the office Judge Pregerson holds and the bench upon which he sits simply makes me heartsick to read this.

I write and publish this conclusion with keen awareness of, but notwithstanding, my own general ethical obligation as a lawyer (albeit neither a member of the California bar nor that of the Ninth Circuit) to avoid bringing the judiciary into disrepute. Judge Pregerson's performing (and I use that word advisedly, in two different senses) in an extra-judicial capacity.  Nothing I or any other lawyer could say on the subject would be more than a gnat on a whale's back given what Judge Pregerson has just done.

(A sad hat-tip to Howard Bashman, who first noted this problem and has several related links about Judge Pregerson.)

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UPDATE (Sat Sep 20 @ 6pm):   Professor Eugene Volokh of The Volokh Conspiracy has also reported this story, generously including a link to BeldarBlog.  He concludes as I do that with respect to Canon 3A(6) of the Code of Conduct for United States Judges, judges "should follow the rules, and the rule here seems pretty dispositive."  While he finds it "hard to see the Pregerson statement as anything other than a Code of Conduct violation," he very charitably wonders "how important this provision (in its current breadth) is to the sound administration of justice" and suggests that Judge Pregerson's particular statement

does not seem to be particularly harmful on its own:   It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret.

But it seems to me that the likely harm — erosion of public trust and confidence in the courts, especially his own court — goes to the very core value that the rule is designed to protect.  Lawyers, reporters, and hotdog vendors can all speculate about the mini-en banc panel's composition and leanings.  But here's a judicial insider predicting, in essence, that his brothers on the bench will deliberately refuse to apply the US Constitution properly.  Everything he could possibly say is presumptively tainted by his exhaustive inside information about the case and the court.  His job duties can include neither cheerleader for, nor critic of, his own court and its judges with respect to a pending case — any pending case, much less one of overriding importance and public scrutiny like this one. 

Finally, one can only ignore the potential harm if one analogizes to the traditional defamation defense:   The defendant couldn't have been damaged because everyone already knew he was a damned horse-thief and a Communist anyway!  (Or an alien kitten eater ... whatever.)  I hate to think that as jaded and partisan and cynical as parts of the public are, the entire public is that way when it comes to our federal courts as an institution.  If they are, it's from the relentless assault on the court system's integrity that washes in and out through the popular press like waves on the beach.  And if so, friends and neighbors, this was no mere ripple or chest-high swell, but a tsunami.  [Prof. Volokh updates here re Mickey Kaus' defense of Judge Pregerson.]

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UPDATE (Sun Sep 21 @ 6am):   Hugh Hewitt posts on this matter in his (not permalinkable) September 20th column:

It is a shocking breach, but because Judge Pregerson is old, a veteran of unquestioned courage, and a liberal's liberal, it will go unsanctioned.  I refer readers who missed it to my WeeklyStandard.com column on Judge Pregerson from Thursday:   Judge Pregerson, like others on the Ninth Circuit, is not bound by the ordinary rules that apply to mere mortal citizens.

Mr. Hewitt is probably right, certainly at least with respect to public reprimand, and of course Judge Pregerson like all Article III judges has life tenure, subject only to the possibility of impeachment, which is certainly not going to happen.  One might hope that Ninth Circuit Chief Judge Mary M. Schroeder would take some private action.  And yet ...

By definition, the offense here was an exceedingly public one.  Private action, whether in the nature of counseling or wheedling or reprimand, does nothing to restore public trust in the ethics of the Ninth Circuit.  Indeed, uncertainty on the subject feeds the problem.  When you have such a clear and public violation, you ought to have a clear and public response.  Legal ethics, especially judicial ethics, ought to be scrupulously protected and enforced; episodes like this one just make them into mockeries. 

What Judge Pregerson has done is an assault on my profession.  How can any ethical lawyer not take it somewhat personally?

This whole episode leaves the bitter taste of ashes in my mouth.

During what remains of this weekend, I shall re-read the D.C. Circuit's 2001 decision in US v. Microsoft Corp., in which it concluded that US District Judge Thomas Penfield Jackson had violated Canon 3(A)(6) in conversations with the press regarding the remedy phase of the government's antitrust trial against Microsoft.  Microsoft succeeded in getting Judge Jackson disqualified from further proceedings, and the case went to a different district judge on remand.  (There's a theoretical chance, I suppose, that the issue of Judge Pregerson's disqualification might arise if the entire Ninth Circuit were to agree to re-rehear the mini-en banc eleven-judge panel's decision, but from what I've read, that's never happened and isn't likely to happen now.)  I also intend to read carefully, and think upon, 28 U.S.C. § 372(c).

UPDATE (Sun Sep 21 @ midnight):   I've discovered that 28 U.S.C. § 372(c) has been replaced by 28 U.S.C. §§ 351-364 as part of the Judicial Improvements Act of 2002.  However, I shall have no further public comment to make on this matter.  (Note:   I've edited this post since its original publication to change the reference to "Canon 3A(6)" instead of "Canon 3(A)(6)" in order to conform to the Commentary's format; and I've also switched the order of the discussion of the federal and state versions to lead with the former, since the latter probably hasn't applied directly to Judge Pregerson since he left the state-court bench.)

A shoe has yet to drop in Laredo, but another in Austin might echo there

Jim D of the Burnt Orange Report has the latest info on the redistricting map that's just come out of committee in the Texas Senate, along with some interesting comments about timing.

Meanwhile, I note that more than a week has passed since the Dems got poured out in Laredo, without the promised (and, in my judgment,
premature) Supreme Court appeal.

If I were a lawyer representing Plaintiffs Barrientos et al. in their Civil Rights Act lawsuit in Laredo, I'd advise them to withdraw their still-pending motion to amend their complaint, and certainly not to attempt a silly and hopeless Supreme Court appeal.  Why?

Because if I were Texas Attorney General Greg Abbott, the same afternoon that Gov. Perry signs whatever redistricting plan eventually passes, I'd use that pending lawsuit as a procedural vehicle to immediately file a counterclaim for declaratory judgment that there's no Voting Rights Act of 1965 violation — basically shortcutting the inevitable litigation by as much as a week or two, and taking advantage of a very smart,  pretty conservative, and obviously quick-moving three-judge panel that's already set up and ready to go.

How can our armed forces continually find such men and women?

According to news reports, because of Hurricane Isabel,

[a]t Arlington National Cemetery, soldiers who guard the Tomb of the Unknowns were given — for the first time ever — permission to abandon their posts and seek shelter, Superintendent John Metzler said. But they stood guard anyhow.

The answer to the title question, of course, is that they recruit in America.  And these men and women volunteer, and they serve, and they do these things because they're Americans.  They are simultaneously ordinary and extraordinary beyond belief.

Raising the Bar

Mellow-Drama is starting up a new project called "Raising the Bar" as a law-focused "Carnival of the Vanities."  Should be fun!  (Hat-tip to the Curmudgeonly Clerk!)

En banc granted in Shelley

No real surprise.  The language is probably standard.  That the rehearing was on the self-raised ("sua sponte") motion of one of the active judges of the Ninth Circuit was easy to infer from the clerk having contacted the parties Tuesday to ask their position on rehearing — that wouldn't likely have happened unless one judge was already ready to vote for rehearing. 

What I don't know is whether a majority had to agree to the order indefinitely staying the mandate before the rehearing had been approved, or if that's something that, say, the chief judge could do on her own.  Regardless, though, en banc courts of appeals generally don't grant rehearings to reaffirm what one of their three-judge panels have done.  By a substantial margin, the odds now favor the election taking place on October 7th as originally scheduled.

Predictably, Howard Bashman's How Appealing has all the good goop (here, here, here, here, and here, for instance) about who's on the less-than-full-court en banc panel (a bizarre practice) and what that's likely to mean.

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UPDATE (Sat Sep 20 @ 12:30am):   The NYT agrees with and quotes Mr. Bashman on the odds of reversal, and quotes Prof. Eugene Volokh (he of conspiracy fame) to boot.  Power to the blogosphere!  WaPo, by contrast, mostly quotes politicians.  Who ya gonna believe — bloggers on the one hand, or Gray Davis and Al Gore on the other?

Tea leaves in San Francisco

From the end of a short order filed Tuesday in the Shelley case to set a briefing schedule on the question of "whether or not this case should be reheard en banc":

Issuance of the mandate will be stayed pending further order of this Court.

The panel opinion (page 65) had already directed that the mandate (essentially the judgment of the court, as opposed to its written opinion) issue "forthwith" — meaning it thought its decision ought to become binding and effective before the normal amount of time for parties to seek en banc or Supreme Court review.  But the panel had also stayed the mandate for the lesser period of seven days "to allow the parties to seek further relief from this decision, if they so desire."  The effect of those two directions was to compress the timetable for further appeals. 

So the en banc court has already taken away this timing issue from the panel.  Hmmmm.

It could be that the full Ninth Circuit simply wanted to make sure it had beyond next Monday to vote on whether to rehear the case en banc.  But an indefinite stay of the panel's mandate is pretty strong stuff.  It's exactly what happens when a full court of appeals votes to rehear a panel opinion en banc. 

And I think that's what's going to happen here — very likely without further oral argument, probably without further briefing, and very possibly with a summary opinion from the en banc court early next week simply announcing that it's vacating the panel opinion, with a fuller written opinion to follow, so that everyone can continue making feverish preparations for the October 7th election.

Unrivaled judicial arrogance: Southwest Voter Registration Education Project v. Shelley

Even the LA Times (no-charge registration req'd) says the cure is worse than the disease.  That puts me with unaccustomed company, but I'll try to add to the stylistic criticisms that I blogged tentatively in the wee small hours yesterday to explain why I think the decision of a three-judge Ninth Circuit panel in the California recall case, Southwest Voter Registration Education Project v. Shelley, is so badly wrong. 

Bush v. Gore this ain't

In Wednesday's NYT, liberal Yale law professor (a redundancy) Bruce Ackerman, author of a book about the Supreme Court's 2000 decision in Bush v. Gore, urges the full Ninth Circuit to overturn the Shelley panel.  While I agree with Professor Ackerman's conclusion, and also with a similar op ed in the Wall Street Journal by Harvard Law Professor Einer Elhauge, I think Robert Alt had a much better explanation of why Bush v. Gore has been misinterpreted and misused by the Shelley panel:

Bush v. Gore was not about the use of punchcard ballots, even though Florida counties, like California, used both punchcards and optical-scan ballots. Rather, the Equal Protection claim in Bush v. Gore concerned the way in which the recount was implemented. The Court made clear that different counties could use different systems for carrying out elections, but they could not treat similar ballots differently:

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

Put simply, the Bush v. Gore ruling was not based on the fact that the counties used different voting systems. Rather, the Equal Protection claim rested on the fact that the Florida supreme court had forced a recall without providing safeguards — a brash act which led to similar punchcard ballots being counted differently even within the same county. It was this act of treating similar ballots differently which triggered the Equal Protection violation, not the fact that punchcards were used in one place and not in others.

I have nothing to add to this and doubt I could have said it as well.  But I do have two other substantial  criticisms of the Shelley panel's opinion.

Appellate courts aren't supposed to be factfinders

First, the Shelley panel acted as if it were the trial court — that is, as if it, and not the district court, had the duty to sort through the evidence and decide what facts would likely be established in a full-blown ultimate trial-on-the-merits in this case.  The panel therefore felt itself free to accept as factual the most extreme predictions of the witnesses who testified in the district court's proceedings — hence the startling, and almost certainly exaggerated, statement in the third sentence of the opinion that the "inherent defects in the [punch card] system are such that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all." 

In appeals from preliminary injunction hearings, appellate judges aren't free to substitute their own view of the facts for the findings of the district court unless the district court's factual findings were "clearly erroneous."{note1}  The Shelley panel cited this rule at page 15 of its opinion, but then refused to actually apply it — and indeed, clearly violated it.  References in the panel's discussion to the findings of fact made by the district court are extremely rare.  That in itself is a blatant tip-off that the panel is selectively picking and choosing evidence from the record without regard to whether the district judge found that evidence to be persuasive. 

But such few references as there are to the district court's factual findings indicate that the panel not only rejected them without cause, but then proceeded to build further inferences upon disputed factual assertions that were rejected by the district court.  At page 26, for instance, the panel simply dismisses the district judge's factual finding that voter education efforts could have the effect of lowering the error rate, saying "Plaintiffs effectively countered this unsupported assertion with statistical evidence."  Well, folks, I'm sorry, but if there's competing evidence, it's for the district court to resolve the conflict — it's not the court of appeals' job to decide whether the Plaintiffs "effectively countered" or not. 

My first hint that this was going on was on page six of the opinion when I read that "just as the black and white fava bean voting system of revolutionary times was replaced by paper balloting ...."  Eh?  This sounds like a law clerk who's been looking for his facts on Google, not from the trial court record.  And not too carefully, either:   fava beans were used for voting in ancient Greece.  But I seriously doubt that proof about fava beans, either classical or revolutionary, was anywhere amongst the evidence submitted in the district court. 

Another clue was when the author of the Shelley panel opinion used an out-of-context factual statement from another case as if it were evidence in this one:   "As the Supreme Court observed in Bush:   'This case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter.'"  Well, yes, that may have been among the findings of fact in the Bush case two years ago — but that's not part of the record in this case, and you just don't decide appeals by plucking facts hither and yon from other appellate decisions. 

Can you imagine reading this from an appellate court?

We note that in Smith v. State, there was evidence that the murder weapon used by the defendant in that case, a Smith & Wesson .45-caliber revolver, had a 'hair trigger.'  In this appeal brought by Defendant-Appellant Johnson, although there was no evidence introduced regarding pistols or triggers during his trial, we therefore conclude that all Smith & Wessons have hair triggers, that Johnson must have known of that, and that he therefore intended to kill his victim and accordingly deserves the gas chamber.

This is not the way appellate courts routinely do their business, thank goodness!  And the out-of-context, improper cross-use of facts in this manner further suggests an eagerness to overuse the Bush v. Gore opinion to the point of mis-use — perhaps out of a sense of partisan glee (as Dahlia Lithwick has suggested in Slate), rather than reverence for and adherence to legal precedent from the Supreme Court.

The circuit judge for whom I clerked often reminded us, "Yes, we're smart, boys and girls, but we didn't see the witnesses and we didn't hear the evidence.  The district judge is smart too, and he was at the trial!  Let him do his job, and make sure we stick to our own!"  Strict observance of and adherence to the different functions of trial courts and appellate courts is a hallmark not just of judicial conservatism, but of judicial professionalism — and that's a quality which is entirely missing from the Shelley opinion.

This lack of deference to the factfinding role of the trial court is an arrogant mistake, one that reveals a result-oriented panel.  And this in turn explains in part how the Shelley panel went so far wrong in the various "balancing tests" that injunction law prescribes.  If you slant the facts to accept the worst-case scenario offered up by one side, obviously it's going to skew any balancing exercise. 

I don't have access to the trial court's record, of course, nor have I seen whatever written findings of fact and conclusions of law the trial court issued.  But I suspect that the trial court concluded that the margin of error likely to occur with punch card machines — especially after the promised voter education campaign ("Here's how to avoid leaving hanging or dimpled chads") — was not significantly different than that which would be likely to occur with other methods, especially if those methods involved new technology being used for the first time.  (Prof. Eugene Volokh has pointed out the likelihood of problems with such other methods.) If that's the factual basis you're proceeding from, then the need for a mind-bogglingly disruptive injunction seems considerably less acute.

Constitutions do more than "highlight" the public interest for all-knowing federal courts to follow or not at their whim

Which leads me to my second main criticism:   the panel values its own views of what's important over that which the people of California — speaking through their most solemn and powerful legal voice, their state constitution — have declared to be important.

The panel pounces on the fact that as a result of a settlement in prior punchcard litigation, "the State has conceded the deficiencies in the systems and agreed to remedy the deficiencies by the next statewide election."   Well, yeah — and the deal cut to resolve that challenge was that in the meantime, punch cards would be okay.  Later in the opinion, the panel jumps through some hoops to declare that compromise meaningless, but first (at pp. 31-32), the panel decides that the schedule hardwired into the California Constitution just doesn't much matter:

The only potential justification [for proceeding as scheduled] is that the California Constitution requires that a recall election be held within sixty days of certification by the Secretary of State....  [But had] the recall petition been certified just a month and a half later than it was, the recall election would have been scheduled to take place not within sixty to eighty days as provided in the California Constitution, art. II, § 15(a), but instead in March 2004 under the California Constitution, art. II, § 15(b).

Well, yeah, and if frogs had wings they wouldn't bump their butts on the ground every time they jump.  Woulda, coulda, shoulda, mighta — but didn't.   Painting imaginary scenarios, and then saying, "Well, what we're ordering wouldn't be so different from that," isn't good judging.  But the panel's disdain for the actual doesn't stop there.

The panel has to let us know (at page 52) just how smart it is, and just how stupid the voters who approved this schedule as part of the California Constitution were:

The district court placed dispositive weight on the public interest in complying with state election law....  However, the district court erred in treating this state interest as if it were a large part of the public interest.  An abstract interest in strict compliance with the letter of state law is a strong state interest, but it is a less important public interest in the context of challenges to state law under the equal protection clause of the Fourteenth Amendment.  Of course, the public has an interest in lively public debate, being informed of political issues, orderly elections, speed in resolving challenges to officials, confidence in fair elections, and the like, and many state election laws are designed to promote these interests.... But it is the principles and spirit of these state laws, not necessarily the letter, that deserve weight in examining the public interest.

(Italics added by Beldar.) Beware!  Beware the lawyer — much less the judge — who denigrates the letter of the law!  Laws have letters.  Laws are written to be precise and meaningful and something people can rely upon, especially when they're put into constitutions.  Harvard's Larry Tribe, writing an op ed in the Wall Street Journal, calls the sixty-day requirement of the California Constitution  "a purely arbitrary, artificial deadline."  Well, yes, if you're a philosopher-king who's smarter than everyone else, I suppose all deadlines do seem arbitrary and artificial. That's one reason we don't have kings in this country — we have constitutions instead.

A bit later (at page 54), the Shelley panel finally confirms just how meaningless all that "letter of the law" stuff really is:

The appropriate examination of the public interest in this context will instead place heavy weight on the principles underlying state law.  Those principles of fair and efficient self governance belong in a court's assesment of the public interest regardless of the presence of state elections laws motivated by them.  State election law can merely highlight for a court which of those democratic principles the people of a State hold in particularly high regard.

(First italics by the Shelley panel, second italics added by Beldar.)  Hello?  "Can merely highlight"?!?  Are you listening out there, world?  Let me translate (megaphone please):

We federal judges know what you really want.  We federal judges know what you really need.  We federal judges know what you really meant.  We federal judges know what is really good for you!  When you say in your state constitution "sixty days," we know you didn't really mean sixty days.  You really meant "sixty days (unless three unelected guys with lifetime appointments decide six months would be better)."  Any statute you pass, any constitution you write, any petition you sign, any vote you cast — these, at best, are "merely highlights" for us to consider, for us to reject or follow at our whim.  All your base are belong to us!

Fetch these judges some litter-bearers, please, and have the slaves begin to peel some grapes!  They've shown us who's boss on the Left Coast, and it's definitely not the voters.

-------------
{note1}See, e.g., Vendo Co. v. Lektro Vend Corp., 433 U.S. 623, 662 (1977); Rucker v. Davis, 237 F.2d 1113, 1118 (9th Cir. 2001) (en banc), rev'd on other grounds, Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002); Valley v. Rapides Parish School Bd., 118 F.3d 1047, 1051 (5th Cir. 1997).

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UPDATE (Thu Sep 18 @ wee small hours):   I just found the district court's 29-page opinion, which I'll take a close look at tomorrow.  Dollars to donuts there are fact findings in it that the panel opinion ignored.

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UPDATE (Thu Sep 18 @ 8:30am):   It's a good thing no one took me up on my dollars and donuts bet.  The district court combined the plaintiffs' applications for temporary restraining order and for preliminary injunction into one proceeding and apparently made its decision without an evidentiary hearing.  Its opinion is, frankly, extremely disappointing.  It contains no explicit findings of fact, and indeed its discussion of the facts was substantially less detailed than that of the Ninth Circuit panel.  With all due respect, this district judge could use some pointers on "how to write decisions so as to avoid reversal" — it's something of an art form, but not that hard to master. 

That doesn't make what the panel did with the facts right, especially when it strayed outside the record of even the written evidence (affidavits/declarations and attachments) that were submitted in the trial court.  But the district court did neither the parties nor itself any favor by failing to hold an evidentiary hearing — even a highly compressed one- or two-day hearing would have been better.  This just isn't a "pure law" case, and it's bad lawyering and bad judging to try to decide facts without live testimony that's subject to cross-examination.

Senators on new meds?

It's hard to tell how things stand in the Texas Senate right now.  Tuesday was apparently a big improvement over Monday, according to the Austin American-Statesman:

And on the second day of the third special session, without the raucous crowd that a day earlier had egged one side on and aggravated the other, peace and love reigned in the Texas Senate.

Tuesday's outbreak of interparty peace, including movement toward dropping fines imposed on the Democrats during their 45-day boycott, shifted the focus to GOP intraparty fighting that could become the biggest obstacle to new congressional maps.

"I think they changed people's medicines last night," Sen. John Whitmire, D-Houston, joked after watching Monday's opening day mayhem melt into Tuesday's love fest.

But in press reports about today's action, there's no visible progress yet — either on solving the Midland vs. Lubbock issue that's blocking intra-Republican agreement on a map, or on the disposition of the fines and sanctions that are pending against the truant Dems.  As to the latter:   guys, I'm willing to negotiate on the royalty fee for the Beldar Peace Plan.  Try it, you'll like it!  Win-win deals are hard to find.

Meanwhile, an incredible story in the Laredo Morning Times has this report:

The Texas Ten are claiming they are the victims of "oppression," and are requesting an investigation by the Webb County District Attorney's Office.

District Attorney Joe Rubio confirmed Tuesday that he assigned two prosecutors to investigate alleged official oppression that could lead to criminal charges.

Rubio said the investigation stemmed from a request on the part of attorney Carlos Zaffirini, husband of state Senator Judith Zaffirini (D-Laredo) and hired counsel for the Texas Ten.

Apparently hell hath no fury like an SUV-driving senator scorned.  Let's hope DA Rubio was only humoring his powerful husband-and-wife constituents, and will have the good sense and integrity to treat this like your basic flying saucer abduction claim.

Also, the Houston Chronicle has published a hysterical (in both senses of that word) op-ed by one Glenn W. Smith, whom the Chron describes as a "consultant to MoveOn.org and The Rockridge Institute in Oakland."  Gasp, he's "currently writing a book detailing the ways our political practices are destroying freedom and democracy."  Mr. Smith is elsewhere described as "managing director/consultant" to Rockridge, which describes itself as a "progressive" thinktank made up of Berkeley and UC-Davis professors (fair and balanced, I'm sure); he may or may not still live in Austin, but he doesn't hesitate to speak for all Texans in calling for disruptive public demonstrations on the floor of the Texas Senate while it's in session.  He also can't tell the difference between majority-rule voting by (small-d) democratically elected legislators of both parties and "the Government of the Bully."  I'm pretty sure this is a guy I couldn't have a friendly beer with, and whether he's actually moved to California or not, we need this kind of commentary exactly as much as the Russian people needed the Kaiser to ship Lenin back to them in 1917 in the infamous sealed railway car.

Finally, with more of the "it's all about racism" meme that I've recently debunked:   MoveOn.org is now airing race-baiting TV commercials in Spanish, complete with ominous music, which claim that "George Bush and his friends in Texas want to take away the voting power of 1.4 million Hispanics and other minority voters.  And put us in Republican districts where our votes wouldn't matter."  Minority votes only matter if they're cast for Democrats, doncha know?  Could there be any more racist presumption?

Weblog ethics

When I first started blogging and was looking for pointers, I came upon a fine article about Weblog Ethics by Rebecca Blood, who blogs Rebecca's Pocket.  I've since seen many other favorable references to her suggested rules and commentary, which are republished from her book, The Weblog Handbook: Practical Advice on Creating and Maintaining Your Blog. 

I believe those rules are worthy of public endorsement — hence the small graphic (thank you, Rebecca!) near the bottom of my sidebar, "Blogging by the book," which is linked to her site's page on ethics.  Rebecca's commentary is definitely also worth reading, but the bare rules are:

1. Publish as fact only that which you believe to be true.

2. If material exists online, link to it when you reference it.

3. Publicly correct any misinformation.

4. Write each entry as if it could not be changed; add to, but do not rewrite or delete, any entry.

5. Disclose any conflict of interest.

6. Note questionable and biased sources.

I encourage other ethical bloggers to demonstrate their endorsement of these rules, perhaps by adding a linked button graphic to your sidebar or even just a text link.

Short rave about TypePad

TypePad has yet to disappoint me in any significant way.  Promised new features, like domain mapping, have appeared frequently and pretty much on-schedule.  There are many thoughtful features — for instance, the ability to turn comments and trackbacks on or off with respect to each single post — which you wouldn't ordinarily expect from a brand new service.  Their documentation is good and getting better.  It's still sometimes thin on advanced matters.  But that thinness is more than compensated for by fabulous, friendly, patient, personal, and quick Customer Support — which continues to be my favorite thing about TypePad.

New address ... beldar.org

BeldarBlog has a new address — www.beldar.org, or even just plain beldar.org — thanks to TypePad's new domain mapping feature.

However, you need not change your bookmark if you've got one already — the old address will still work, as should all the old links. 

The .com and .net suffixes were both already taken (by an ISP in Franklin, Virginia, of all things!), so I shall simply have to masquerade with .org — as if I were multiple and organized, even though I'm neither.  Although, in a sense, I suppose I have been assimilated into the blogosphere collective.  Resistance was futile.

If I were David Dewhurst looking at Judith Zaffirini's Grand Cherokee ...

Per the San Antonio Express-News:

[Lt. Gov. David] Dewhurst made two predictions [on Monday] — both of them untested.

Of the Senate he said: "This body will come together in very, very short order. This is the Texas Senate. We're proud of our ability to be able to work together."

And he warned that if Sen. Judith Zaffirini, D-Laredo, parks in the Capitol drive today, her vehicle will be towed.

Earlier, fellow Democrats Eddie Lucio of Brownsville and Eliot Shapleigh of El Paso joined Zaffirini in parking in their Capitol slots. They did so despite a decision by GOP senators in mid-August to yank the AWOL Democrats' parking privileges and fine them a total of $57,000 each, among other sanctions.

Sen. Zaffirini recently broke her shoulder while ice skating, and she has one arm suspended in a sling.  (The Dallas Morning-News reported that the "Texas redistricting battle has exacted a price from the Legislature and its members, but now there's a broken bone on the list."  What liberal media?)

So if I'm David Dewhurst, what I do is make plans to have her Jeep towed Tuesday.  Then — out of my own pocket — I hire a limo service, with both a driver and another guy in a uniform to stand at her parking space with a sign with her name.  The driver circles the Capitol grounds until the guy with the sign signals him via cell phone that she's coming, and they offer to take her anywhere she wants to go, including to get her Jeep out of impound.

Sens. Lucio and Shapleigh can walk.

Sadly, I've concluded that there's no hope for the Beldar Peace Plan.  The Dems don't want peace.  They want a media circus, as is evident by the stunt they orchestrated Monday on the Senate floor and in the Senate gallery.  Sen. Leticia Van de Putte — quoted as shouting "Thank you Texas!" from the Senate floor to cheering fans in the gallery, and also as singing "Nobody Knows the Troubles I've Seen" — can't decide if she's Meryl Streep in "Sophie's Choice", Rosa Parks, or one of the Dixie Chicks, but she clearly has no interest in being a state senator anymore.  She and her colleagues are bound and determined to make themselves into martyrs, and certainly some voters are bound and determined to see them that way.

Others will simply see them as losers — and very poor ones at that.

DANGER: law clerk's head in danger of exploding with sufficient force to trigger shift in San Andreas fault!

One of the things I'm proudest of in my legal career is the year I spent clerking for a judge on the United States Court of Appeals for the Fifth Circuit.  I have enormous respect for the US Courts of Appeals and their judges and clerks, and for the system of which they're a part.  But ....

I'm only on page 13 of the Ninth Circuit's opinion in Southwest Voter Registration Education Project v. Shelley — the ruling that, unless swiftly undone by the full Ninth Circuit sitting en banc (fat chance) or the US Supreme Court (semi-likely), will postpone the California recall election until March 2004.  It's a "per curiam" opinion, meaning issued jointly by the three judges on the Ninth Circuit panel, and it's possible that it was actually authored by one of those judges, I guess.  The writing style is a bit too hip, though, for most circuit judges — almost more appropriate to a blog or a campaign website than for inclusion in Federal Reporter, 3d Series.  From this and from some quirks in the citation form, I'd bet dollars to donuts this is the work of a very smart, very liberal, very out-of-touch-with-reality law clerk who's just joined the staff of one of these judges after a law school education that included law review service (and possibly editorship). 

I'd been toying with the flare pistol previously, but this sentence caused me to squeeze the trigger to send up a pretentiousness warning:

In this case, Plaintiffs allege that the fundamental right to have votes counted in the special recall election is infringed because the pre-scored punchcard voting systems used in some California counties are intractably afflicted with technologic dyscalculia.

In my personal opinion, any law clerk who'd write such a sentence should himself be sentenced — say, to picking strawberries as a migrant worker, or delivering refrigerators, or any other experience that would get him/her back into the real world amongst real people.

More on this court decision later, after I've finished reading and re-reading it in full a couple of times.

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UPDATE (Tues Sep 16 @ way-too-late):  Yeah, it's almost certainly a law clerk who wrote this. 

Most United States Circuit Judges recognize that under separation of powers, their role in prosecuting the nation's foreign policy is essentially nonexistent.  Yet here's another simply incredible paragraph, back on page 64:

       In addition to the public interest factors that we have discussed, we would be remiss if we did not observe that this is a critical time in our nation's history when we are attempting to persuade people of other nations of the value of free and open elections.  Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight.  A short postponement of the election will accomplish those aims and reinforce our national commitment to democracy.

This paragraph was written by someone who sees himself not only as Justice William Brennan reborn, but also as Sec-State Madeline Albright returned to office.  Politics and substantive law completely aside, just in terms of what sorts of things courts are supposed to concern themselves with and write about in their opinions, I'm pretty sure the judge for whom I clerked would have smacked me with the nearest lawbook if I'd ever handed her a draft opinion with something like this in it.  And I'd have deserved that, and worse.  What's remarkable to me, however, is that three US Circuit Judges permitted this to go out "per curiam," effectively adopting it as if they'd each penned every word themselves.

I'm pretty sure I've figured out where the Ninth Circuit went most badly wrong, and I'll probably start a new post with a more substantive critique of this opinion soon.

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UPDATE (Tue Sep 16 @ 11:15am):   The good grey New York Times of course thinks the "foreign relations" paragraph that struck me as so inappropriate was worth quoting — probably approvingly, but in any event without remarking on how exceptional such a statement is — in the third paragraph of their page-one story.

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UPDATE (Fri Sep 19 @7:30pm):   The Curmudgeonly Clerk has a fine discussion of law clerk influence and the limits thereto which I recommend highly, and to which I've added a comment of my own.

More weird Google searches that lead to BeldarBlog

Further to this post about the surprising search requests that have led people to BeldarBlog via Google and other search engines:   My first post about the Fox News lawsuit against Al Franken and his publisher pops up in the number two position on Google's list if you search on "Legal advice for Jesus."  Now, I'll admit to having a healthy ego as a lawyer, but I wouldn't presume ....

I'm number one, though, if your Google search is "olsen twins reptilian" — which leaves me wondering not only why would someone enter that weird search, but also why I've seen it several times now!

Google may not quite yet be omnipresent and omniscient, but it certainly works in mysterious ways, and the ways in which people use it and other search engines are even more mysterious.

What did the Barrientos panel do with the "redistricting twice in a decade" claim?

Greg V left a comment to my post on Friday's ruling in Barrientos v. Texas asking for my "take" on the Dems' claim that it is "illegal to redistrict mid-decade," or as they've also phrased it, "more than once in a decade."  Greg frames the issue nicely:

My first reading suggested to me that the judges would not rule on whether or not mid-decade redistricting was legal until the Texas legislature had actually redistricted. But I doubt federal judges are so cruel that they would have refused to take the opportunity to advise the parties in this case that whatever map is drawn will be thrown out.

My take is sufficiently long-winded that I decided to put it into a new post rather than replying fully in a comment.  Executive summary:   The Barrientos panel didn't discuss this claim at any length, but it clearly rejected that claim on its merits.  It's good propaganda, but utter nonsense as a formal legal claim.

Did the Barrientos panel reach the merits of the "twice in a decade" claim, or refuse to consider that claim as unripe?

In general, courts are reluctant to give "advisory opinions" and refuse to resolve controversies unless they are "ripe."  If looked at in isolation, the key phrase from the Barrientos panel opinion that I quoted yesterday — "what will directly affect the voters in this state is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate" — looks like it could be a determination that the issues urged by the Dems aren't yet ripe for consideration.  If what the panel intended to say was, "This dispute isn't ripe yet, come back later," then its ruling would have very, very limited precedential value.  It wouldn't be a ruling "on the merits," but rather a refusal to make such a ruling yet.

But looking at the entire opinion in context, I think it's fairly clear that the panel was not basing its ruling on the ripeness doctrine. 

The Barrientos panel opinion certainly acknowledges that this is one of the Dems' two main arguments:

The complaint primarily attacks two events:   first, the decision by the state legislature to consider congressional redistricting legislation this year, notwithstanding that a redistricting plan has already been implemented this decade; and second, the declaration by the Lieutenant Governor that redistricting legislation would be considered in a special session without adhering to the so-called "2/3rd Rule."...

(Italics added by Beldar.)  The original complaint filed by the Dems purported to state four separate "counts."  Count I claimed that the defendants violated the Voting Rights Act of 1965 by failing to obtain preclearance required under section 5 for both the "twice in a decade" redistricting and the  abandonment of the so-called "2/3rds Rule."  Count II claimed that both the "twice in a decade redistricting" and the abandonment of the so-called "2/3rds Rule" had a discriminatory intent or effect in violation of the Act.  Count III reframed the same claims as being state action that abridged the plaintiffs' constitutional rights in violation of 28 U.S.C. § 1983.  Count IV was a muddled mess, but dealt solely with the Republicans' attempt to persuade the Texas Supreme Court to force the Dems to return to Austin — which entire count was mooted by the Texas Supreme Court's refusal to do so.  The Dems also had asked permission to file an amended complaint that would add a Count V, complaining about the prospect of the Dems being arrested and fined for their quorum-breaking flight to New Mexico.

The State's motion to dismiss never urged "unripeness" as grounds for dismissal, but rather attacked the Dems' claims "on the merits."  And so, too, did the panel's opinion get to the "merits" — even though almost all of the discussion appears to relate more directly to the "2/3rds Rule" claim than the "twice in a decade claim."

Certainly the relief granted to the Republicans on page three of the panel opinion went to the merits of both the "2/3rds Rule" claim and the "twice in a decade" claim:

The motion to dismiss claims under the Voting Rights Act is GRANTED.  We also DISMISS claims under 28 U.S.C. § 1983, insofar as Plaintiffs claim that the State's decision to consider redistricting legislation and the failure to adhere to the "2/3rd Rule" violate the First, Fourteenth and Fifteenth Amendments to the United States Constitution.

(Italics added by Beldar.) This effectively disposed of Counts I, II, and III of the Dems' complaint, with Count IV being moot, and the as-yet-unfiled Count V left for future determination.

So yes, I think that the panel did deal with the "twice in a decade" claim, and did so with a dismissal "on the merits," rather than on grounds of unripeness. 

So why didn't the Barrientos panel discuss the "twice in a decade" claim at more length?

My conclusion is that the "twice in a decade" claim is so stupid that the author of the opinion either forgot to come back to it (and neither of the other two judges caught and pointed out the omission), or else deliberately decided it wasn't worth much explicit discussion in what was intended to be a brief, interim opinion.  Either way, the judges must have thought it was a "no-brainer" — a piece of garbage that, as it turned out, didn't quite get neatly swept up.

An additional reason that I strongly suspect this opinion was the personal handiwork of Judge Higginbotham is that it only cites one case — Presley v. Etowah County Commission, 502 U.S. 491 (1992) — as precedent.  That is a mark of a writer who is extremely confident that he's right on the law, and who feels no need to dress up his own writing with lots of citations in order to look confident.  And as the opinion recites, it is brief, and it obviously was prepared in a hurry to respond to the parties' needs.  If the panel in fact ends up exercising the opportunity it reserved to "issue a more detailed opinion hereafter, if appropriate," it probably will spend at least a few sentences separately addressing the "twice in a decade" claim.

But why is throwing out this claim such a "no-brainer"?

The "twice in a decade" claim makes a pretty good throw-away line in propaganda for the public's consumption because they can claim this is "unprecedented" and that there's a "plan already in place that has been declared legal."  But for this claim to have any merit as a legal argument, you have to presume that redistricting by a court is equivalent to — just as good as, just as legitimate as, and a completely acceptable substitute for — redistricting by a legislature.  That's just a laughable proposition to anyone who's read any of the Supreme Court's redistricting cases.  As I've blogged before, the federal judges themselves are intensely aware of the fact that the Civil Rights Act of 1965 requires them to intrude on a function that is intended, for excellent reasons, to be the province of state legislators.  They correctly view their role as being solely to determine whether constitutionally- and statutorily-protected voting rights have been violated, and if so, to do the minimum necessary to fix that problem, and then to get the hell out of Dodge. 

Sometimes fixing the problem requires them to actually write a new districting map — as was true in the case of the Balderas panel in 2001, which faced upcoming 2002 Congressional elections in which Texas had two new seats in the US House of Representatives for which the Texas Legislature had yet to create any districts whatsoever by the end of the 77th Texas Legislature.  The political process had deadlocked; the Governor had recognized that and announced that he wasn't going to call a useless special session; and so the three-judge panel had to find a place to stick two new districts and make the resulting necessary adjustments to equalize the populations of the others.  And that's what the panel did, but then it stopped — even though it recognized that the effect of stopping at that point had unintentionally but inevitably heavily favored the Dems — because it knew that a panel of three federal judges lacks the tools, the wisdom, and most of all the "political legitimacy" to do the kind of full-scale redistricting that legislatures do.

It seems to be true, as the Dems are asserting in both Texas and Colorado, that there's no direct historical precedent for a state legislature doing a full-scale redistricting in the same decade in which a federal court has previously done "some" redistricting.  So there is not a case that's directly on point to prove conclusively that it can be done — nor is there a case that's directly on point to prove that it can't be done. 

This was, however, one of the questions put to Texas Attorney General Greg Abbott last spring, and his formal written opinion concluded with no hesitation that

Texas legislators are entirely free to replace the court-ordered plan in Balderas and, as the court urged in McConnell, "continue efforts to fulfill their constitutional duties" as elected representatives to enact a congressional redistricting plan that comports with section 5 of the Voting Rights Act.

The Dems like — and have frequently cited (in a sort of telling of half-truths) — the other half of Attorney General Abbott's opinion, which was that if the Legislature didn't act, the map drawn by the Balderas panel would, by default, remain in effect until replaced by either a new legislatively or judicially drawn map, presumably after the 2010 Census.

But as to this part, they've yet to come up with any coherent argument to show that Attorney General Abbott is wrong and to support their "twice in a decade" claim than "it's never been done before."  That claim is given extremely shallow treatment in the Dems' court papers, with absolutely no citation to any case or statute or any other authority.  The Republicans court papers essentially ignored it as well.  And although the transcript from last week's hearing on September 11 isn't on file yet, I suspect that this claim also received minimal discussion at the hearing. 

Finally, although there's not any precedent directly on point, Attorney General Abbott's opinion cited and relied heavily on dicta — sort of an advisory opinion that wasn't directly necessary to the ruling but was thrown in anyway as part of a larger discussion — from the US Supreme Court's decision in Reynolds v. Sims, 377 U.S. 533 (1964), in which Alabama had gone six decades without a legislative redistricting:

Limitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system, although undoubtedly reapportioning no more frequently than every 10 years leads to some imbalance in the population of districts toward the end of the decennial period and also to the development of resistance to change on the part of some incumbent legislators. In substance, we do not regard the Equal Protection Clause as requiring daily, monthly, annual or biennial reapportionment, so long as a State has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation. And we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable. But if reapportionment were accomplished with less frequency, it would assuredly be constitutionally suspect.

377 U.S. at 583-84 (italics added by Beldar).  So in a case in which the Supreme Court directly held that once in 60 years isn't enough, and that less often than once in 10 years is "constitutionally suspect," the Supreme Court also strongly hinted that even legislative redistricting more than once in a decade would be okay.  If it would be okay for a legislature to itself redistrict more than once in a single decade, then surely — as in Texas and Colorado — it would be okay for a legislature to thoroughly redistrict after a three-judge panel had done minimal redistricting earlier in the same decade.

Terrorists spread hallucinogenic drugs through NYT ventilation system

There's no other explanation for this:

The other critical key to an exit strategy is to adopt a faster timetable for restoring Iraqi self-government.... To accomplish this delicate feat, the administration should consider working quietly with Iraq's neighbors, like Iran and Syria.

Will the sky fall now that Prop 12 has passed?

I've previously blogged at considerable length (including in several long comments) about why I intended to vote for Prop 12 in yesterday's statewide vote on several constitutional amendments.  Yes, I voted "for," as I had planned.

As I write this, the Texas Secretary of State's office is reporting that with 98.61% of the votes counted, it appears that Prop 12 will pass by a razor-thin margin with just under 51% of the vote.

So let's say you were one of the people who voted against Prop 12 for whatever reason.  How bothered should you be?  Let me put that question to you slightly differently: 

How bothered were you by the condition of Texas constitutional law regarding non-economic damages in 1987?  Did you lose any sleep back then? 

All that Prop 12 has done, folks, is return Texas constitutional law to where it stood before an outrageous decision by the Texas Supreme Court in 1988 called Lucas v. Unites States, 757 S.W.2d 687 (Tex. 1988), which declared unconstitutional some of the first legislative efforts at medical malpractice tort reform in 1977.  Chief Justice Tom Phillips wrote an eloquent, exhaustive dissent from that decision that he concluded with these words:

In declaring the [Legislature's 1977] medical malpractice caps unconstitutional, I believe the court has substituted its own policy judgment for that of the people acting through their duly elected representatives. The court has struck down a carefully crafted legislative response to a major social problem for no better reason than that it finds the scheme distasteful. Whether the malpractice caps are good social policy or not, I do not find them to be unconstitutional.

Now, as it happens, I know Chief Justice Phillips.  I had the privilege of taking over some of his docket at Baker Botts when then-Gov. Bill Clements first appointed him to the Harris County District Court bench in 1981.  I later appeared before him in a case that had my all-time favorite case-name, The Who v. John Doe (which probably should be the subject of a future blog, eh?).  Justice Phillips is a Republican, yes — but he's also a graduate of that national bastion of liberalism, Harvard Law School; a recent President of the National Conference of Chief Justices; and nobody's wild-eyed right-wing nut.  In 1988 he was still in the minority on a power-drunk, pro-plaintiff Texas Supreme Court that was an embarrassment to this state in the eyes of the entire nation — and that reputation came from cases like Lucas.

Prop 12 amounts to the citizens of Texas saying that Chief Justice Phillips was right.  It just cleaned up the load of manure Justice Kilgarlin had left behind in the Lucas opinion.  It just means that the Legislature can once again do what we elect our legislators to do — that is, to try to solve problems. 

In the last regular session of the Legislature, our legislators perceived that there's a problem, an imbalance, in the civil law system as it affects doctors and health-care providers.  And so they passed, and the governor signed, a tort reform statute that contains some caps on non-economic damage awards in personal injury lawsuits to try to fix the problem. 

Will it?  Well, I dunno, and neither do the members of the Legislature or Gov. Perry — and neither does anyone else who's been filling up your TV screen and mailbox and phone answering machine with Prop 12 propaganda, pro or con, for the last several weeks.

But now we'll see.  We'll try living under it a while, and we'll see whether the statute works as planned.  Or not.  If it doesn't — if it goes too far, and there are conspicuous examples in which the public is horrified because someone has only gotten  $750,000 for pain and suffering (plus his or her past and future economic damages like lost wages and medical expenses) — then a future session of the Legislature can make an appropriate adjustment.  Or if it doesn't help solve the problem as intended, then the Legislature can ditch it and try something else instead.  That's what we elect them to do.

All that Prop 12 has done is to put power back into the Legislature's hands that everyone always assumed was there before the 1988 decision in Lucas.  Unless you lost a great deal of sleep worrying about this in 1987, I suggest that you need not lose a lot of sleep worrying about this in 2003 either.

The Texas Eleven Ten

Texas State Sen. John Whitmire (D-Houston) continues to be listed as a named plaintiff in the lawsuit pending in Laredo notwithstanding the very nasty and very personal things that have been said against him by his colleagues.  Sometime recently, however, whoever is running the Texas Eleven website has quietly removed his name from the webpage that lists each state senator by name.  The site's URL and all references to the "Texas Eleven" remain unchanged.

Lawyers permit Ten Truant Texas Dems™ to run amok with (premature) Supreme Court appeal

The three-judge panel in Barrientos v. Texas issued a four-page order yesterday that granted no relief to the Ten Truant Texas Dems™.  It's short, it's sweet, and it's here for you to read in full-text (in a mere 149kb .pdf file).{note1}  It's not completely free of legalese, though, and I'll provide a translation and some commentary before I'm done with this post.

According to an article in today's Fort Worth Star-Telegram, the Dems are already vowing to appeal to the US Supreme Court.  Oh, I would dearly love to make a high-stakes bet with any and all takers on the likelihood of that succeeding!  I'll spot you 20 to 1 odds, in fact, and still count myself mean to be taking your money.  But as I'll also explain in this post, there are serious doubts that the panel's ruling yesterday is appealable yet.

Can the Dems appeal?

The Civil Rights Act of 1965 does offer the highly unusual opportunity for the losing side to take an automatic direct appeal "as of right" to the US Supreme Court — which is an appeal that the Supreme Court has to review "on the merits," even if it doesn't have to write a full opinion.  This extraordinary procedural right — allowing the losing side to bypass the Courts of Appeals entirely, and to force the US Supreme Court to look at the merits — is yet another reason why I find the Dems' race-baiting PR tactics so distasteful in this whole affair:   Minority voting rights are more effectively protected than virtually any other rights secured by the Constitution or laws of the United States!

But in these appeals, as in all others, you do have to let the "court below" — in this case, the special three-judge panel that ruled yesterday — finish what it's doing before you can ask the US Supreme Court to intervene.  And I have very serious doubts that the ruling on Friday was a "final decision" by the panel that even can be appealed.  Instead, it appears to be an "interlocutory order" — a mid-case ruling that isn't appealable.  Yesterday's ruling explains that the panel

promptly issued this brief opinion because of our understanding that another special session of the Texas legislature is imminent.  We reserve the opportunity to issue a more detailed opinion hereafter, if appropriate.

Translation:   "You've gotten a ruling and a quick explanation, but if you plan on making a fuss with the Supreme Court, we're going to write a small book to explain and justify what we've done.  You really don't want us to do that, do you?"

And also still pending before the three-judge court is the Dems' motion to amend their complaint to include issues relating to the threatened "arrest" of the senators and the imposition of fines and other penalties.  As to the former, the panel noted that issue "likely will become moot.  Indeed, the [senators'] fear of being coerced to appear at a legislative session is shifting to a fear of being prevented from appearing."  As to the latter, the panel noted that future developments might also moot that question, and that in any event "neither the facts nor the law on the issue of threatened monetary sanctions are sufficiently developed at this point to permit an informed decision."  Meaning, "come back when this stuff is more than a hypothetical threat." 

But the panel did not enter a final judgment of dismissal of all claims, which would be the normal means both to terminate fully the case before them and to make the panel's decision appealable.  So I think the Supreme Court will likely refuse to "note probable jurisdiction" — that is, will take a look at the Dems' attempt to appeal and say, "Eh — not yet."

Should the Dems appeal?

The fact that you can take an appeal to the US Supreme Court doesn't automatically mean that you should take it. 

Let's start with Common Sense on Appeals 101:   You don't appeal a decision unless you have a reasonable basis for believing that the lower court got something wrong.  You have to be able to say, "The three-judge panel went wrong when they decided _____," and then fill in that blank with something that won't make the Supreme Court explode with laughter.  With all due respect to the lawyers for the Ten Truant Texas Dems™ — and in my opinion, the respect they're due is dropping with just about every day that passes — they can't meet that test here. 

Here's the absolute nub of the panel's opinion:

[W]hat will directly affect the voters in this state is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate.

Until you can state a complete, logical sentence to refute that one, you don't have any business taking an appeal to the US Supreme Court.  Period, end of paragraph, end of story — saddle up and ride out of town on the dusty streets of Laredo, podners.

I've written before (for instance, here and here) about the two distinct duties that a trial lawyer owes his clients — the duty to be his clients' vigorous advocate in public (think Russell Crowe in Gladiator), and the duty to be his clients' wise counselor in private (think Yoda in The Empire Strikes Back or any other Star Wars movie except Clones, when he does his own gladiator routine).  Right now, Yoda should be shaking a long green finger and saying to Leticia and the gang, "Told you, I did!  Smite you head and shoulders with the 'Loser Stick,' that did I promise the judges would do!" 

No better fate is in store for this lawsuit in Washington than what it's already met in Laredo.  If, in the privacy of their conference room, any lawyer is giving different advice to the Dems, then I respectfully submit that said lawyer is being motivated by something other than following the law, and he's failing in his own duty to his client and to abide by the oath he took upon admission to the bar. 

If I were Emperor of the World, I'd make each of the Ten Truant Texas Dems™ write the following sentence on the blackboard 1000 times:

While the reach of the [Civil Rights] Act [of 1965] is broad, it is nevertheless still "an extraordinary departure from the traditional course of relations between the States and the Federal Government" ....

So said the panel yesterday, quoting from the US Supreme Court's decision in Presley v. Etowah County Commission, 502 U.S. 491, 500-01 (1992).{note2}  As I've repeatedly blogged, it's not normal for federal courts to second-guess state legislatures on redistricting — much less to micromanage the way they go about it!

C'mon guys.  Look at those special license plates on your own cars, the ones that say "Texas Legislator."  Does that give you a clue as to where you should be fighting these fights? 

Yes, you may lose when a vote is taken.  That's called democracy.  Make your best argument, take your lumps gracefully, and then start polishing up your speeches for the next general election, so you can take your arguments to the public by trying to persuade them to put the Democratic Party back in control of the Texas Legislature.  That's how the process is supposed to work, folks.

Leticia — listen to your inner Yoda, not to those lawyers from Washington that Martin Frost and his buddies have hired to represent you.  Hie thee back to Austin, madam.  Your duty is there.

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

{note1}The .pdf file that was earlier linked from Kronberg's Quorum Report is actually a page printed out from the computerized docket sheet for the case that contains a "minute entry" summarizing the court's ruling — which, while useful for some limited purposes, is not the ruling itself.

{note2}If you came to BeldarBlog looking for informed speculation and gossip, I'll try to deliver.  Yesterday's opinion was unanimous, with all three judges joining in it by name.  From quirks in the citation form, however, I am virtually certain that it wasn't written by US District Judge Lee H. Rosenthal.  In fact, I'm going to go out on a limb and speculate that it was written by US Circuit Judge Patrick E. Higginbotham — and by him personally, rather than being drafted in the first instance by one of his law clerks.  What tea leaves am I reading to divine these portents?  Very tiny tea leaves.  The "v." (abbreviation for "versus") in the middle of the case citations wasn't underscored, and the underscoring of the case citations is discontinuous (rather than underscoring the blank spaces within the case name).  Also, the citation form used throughout the opinion, while quite acceptable, was still not quite up to snuff under the hyperstrict and elitist rules prescribed and followed by law reviews.  Judge Rosenthal clerked for then-Fifth Circuit Chief Judge John R. Brown, and I know from that, and from my own history working with her as a colleague in the 1980s, that her citation form, and that which she'd permit from any of her law clerks, would be immaculate.  The discontinuous underscoring, by contrast, is something you commonly see among lawyers educated in the East or the Southeast, and it's a little bit anachronistic — but it's exactly what I'd expect Judge Higginbotham to use, given that his law degree was from the University of Alabama in 1961.  How's that for arcane?

UPDATE (Sun Sep 14 @ 12:30am):   Earlier yesterday, the Austin American-Statesman had quoted one of the Dems' lawyers, Renea Hicks, as saying "he would discuss appealing directly to the U.S. Supreme Court with his clients" — which made me wonder if the Star-Telegram had jumped the gun in its report.  But the San Antonio Express-News is also reporting that the Dems plan an appeal to the US Supreme Court now.  Neither the Star-Telegram nor the Express-News cite their source regarding the plan to appeal — so it's possible either that their information is newer, or perhaps that they talked to a different lawyer for the Dems.  My bet is on the latter, and that who they talked to was Washington-based Gerald Hebert, who still — and now more than ever — owes DOJ lawyer Joseph D. Rich an apology.

By the way, I noticed that I've previously neglected to source my point that the Ten Truant Texas Dems™ are being represented by lawyers hired not by themselves, but by Democratic Congressmen who're covering their own butts in this fight.  This came from early in part three of the five-part streaming video of an hour-long interview that the Houston Chronicle conducted with Sen. John Whitmire on September 3, linkable at least for a while longer from the repeating sidebar on Chronicle stories: 

Our lawyers had seriously misled us when they reported on Wednesday after court, "Hey, couldn't have gone better.  Y'all hang tough."  Now these, these lawyers are working for the Congressional delegation, but we didn't know any better until we read the Chronicle and other sources the next day.

Will the New York Times warn us about all the gin joints in all the towns in all the world?

So I'm reading today's New York Times at lunch — section B, "Weekend:   Movies, Performing Arts" — and in particular a very favorable review of "Lost in Translation," a new movie starring Bill Murray. 

The good grey Times tells me that Murray

plays a vodka-and-bitters version of himself and the persona that made him famous. His character, Bob, is an American movie star who is in Tokyo to participate in the celebrity not-so-secret shame: he's picking up a boatload of dough to perform in commercials for Suntory whiskey. He arrives in Japan just in time to gaze, slightly embarrassed, at the sullen billboards of himself that are starting to appear there.

Now with this, the Times' improbably named reviewer — "Elvis Mitchell," uh-uh-huh, huh, hey-yeah — has confused me a bit.  Is it vodka-and-bitters (presumably all shook up)?  Or is it whiskey?

I'm particularly confused because there really is a Japanese company named Suntory, and it really does sell whiskey, or "whisky" (as Scotch whisky-makers and -drinkers prefer to spell it).  I know this because I've seen the caption on the Suntory website page that reads, "Maturation warehouse at Yamazaki Distillery where barrels of molt whiskies, including the ones made in 1924, slumber for aging."  I've taken the free-sample tours at distilleries in the Scottish Highlands, Midlands, and Lowlands, and the overpowering smells of malted barley there I'll never forget.  But I've never had a molt whisky or a molt whiskey, so if I ever go to Japan I'm planning to try both.  (Probably not the 1924 one, though; I might like it too much and then go invade Manchuria.  Let's let that one keep slumbering.)

So anyway, this is a really flattering review, very effusive, and I've about decided that this is one I'll at least add to my Netflix list.  And so I get to the end of the review, and I'm about to flip the page when I read this:

"Lost in Translation" is rated R (Under 17 requires accompanying parent or adult guardian). It has sexual content as well as strong language and alcohol consumption.

Rated R for ... alcohol consumption?

Or is that "strong" intended to modify both "language" and "alcohol consumption"?  As in, "Hey kid, lemme see some ID!  ... What?  No ID?  Hey, youz geddowdahere then! This movie has strong alcohol consumption!  I'm talkin' EverClear-strength, baby, 180 proof!  Just watchin' it'll have a kid like you pukin' an' cryin' fer yer mama!"

A quick Google site-search of the Motion Picture Association of America website reveals no new ratings rules requiring that movie advertisements and disclaimers warn of "alcohol consumption."  Tucked away in the archives, there are some comments made by the MPAA on some proposed FCC regulatory amendments for satellite broadcasting in 1996 which proclaim that "MPA member companies distribute their programming in markets all around the world, conforming to non-discriminatory standards — whether those standards are motivated by public health policies, such as bans on depiction of alcohol consumption, or local cultural values with respect to sex or violence."  But it says nothing about new warnings for boozy scenes.  Which is comforting:   he's never invited me for one, but I've always thought that Jack Valenti would be a great guy to sit down and have a stiff drink with, or maybe two or three.  I'd really like to hear him tell some LBJ stories that I suspect go better with one or more tall whiskies — not much ice.

Now I'm beginning to wonder if I've violated the Kyoto Treaty or the Geneva Convention or something like that by snatching and republishing the photo in this post from the Times, which presumably got it from the film's distributor, Focus Features, which presumably has it copyrighted.  I'm pretty sure I'm okay with the copyright laws under "fair use," and I'm spending my own rather than leaching off the Times' bandwidth.  But should I have a new warning label for BeldarBlog?  I mean, that amber color in Murray's glass probably isn't from apple juice, is it?

"DANGER:  This blog features strong men taking strong measures to satisfy their strong thirst for strong drink!  STRONG alcohol consumption may be depicted here without prior warning or apology!

Still, what would we all do without (respectively) Hollywood to offend, and the New York Times to protect, our sensibilities?  I shall sleep more soundly tonight, boy, knowing that I won't accidentally stumble into a theater and be shocked — shocked! — to be caught unawares watching someone slam down a Miller Lite. 

And hey — maybe I could get the concession for the restickering project, adding the new warning labels to every DVD and videocasette for every film Humphrey Bogart, Cary Grant, and Clint Eastwood ever made!

It's all over but the shoutin' in Laredo

Or so sez the Associated Press, as reported in the Houston Chronicle:

A three-judge federal panel in West Texas today dismissed a lawsuit filed by senate Democrats hoping to derail a new round of redistricting in Texas.

The Democrats argued that Senate rule changes by Republicans to further the redistricting effort violated federal law.

The judges, who listened to two hours of oral arguments Thursday in Laredo, dismissed those claims but withheld a decision on an amended complaint of threats to arrest Democrats and require them to pay fees for their failure to appear at a special legislative session on redistricting.

Earth to Democratic state senators: Courts writing Congressional district maps is not "normal"

The press accounts of yesterday's hearing before the three-judge panel in Laredo in Barrientos v. Texas all suggest that there was little encouragement for the Ten Truant Texas Dems™ in the judges' questions or comments.  But one particular passage from the Dallas Morning News' story was shocking:

Earlier, some Democrats had expressed hope that Judge Higginbotham, an appointee of GOP President Ronald Reagan who helped craft the current congressional map two years ago, would look dimly upon Republicans trying to rewrite the plan.

But the only reference to the judge's role was when Mr. Smith, the Democrats' lawyer, jokingly offered, "It's such a good map, your honor." Judge Higginbotham laughed and muttered, "I don't think anybody liked that map."

If this wasn't just some kind of political spin — and it's hard to imagine why you'd "spin" to make yourself look this naïve — this betrays a stunning lack of understanding by the unnamed Democrats of their own role in the great constitutional scheme of things as compared to that of the federal courts. 

Earth to Leticia et al.:   It's not normal or desirable for federal courts to draw Congressional districts!  That job — with all its potential for bloodfeuding over gerrymandering and its unfortunate history in Texas and elsewhere as a means for odious racial discrimination — is still a function of state legislatures.  So says the US Constitution as interpreted by the US Supreme Court, and so said the three-judge panel in the 2001 Balderas decision (on which Judge Higginbotham also served).

The notion that Judge Higginbotham would have some sort of personal pride or nostalgia or preference for the map produced by the Balderas panel is simply absurd.  Anyone who actually has read the Balderas panel opinion has to know that.  Is it possible that during their month-long vacation in New Mexico, the Ten Truant Texas Dems™ didn't find time to read that short decision? 

How could they not understand that panels of federal judges who are forced to act when the Legislature defaults on its constitutional duty have no relish for that task?

The Balderas panel explicitly recognized that on redistricting matters, it, like all such three-judge panels, lacked "political legitimacy" as compared to the Texas Legislature.  Federal judges certainly understand that in a democracy, redistricting is supposed to be a democratic process — and of all branches of the state and federal governments, the federal courts are the least democratic by nature and the least well equipped to represent the diverse interests of the voting public. 

I can almost understand how a left-wing journalist like Dr. Josh Marshall — one who, despite reminders, is apparently too busy and/or too unconcerned about the truth to acknowledge or correct significant errors of basic historical fact in his public writings — might fail to grasp this.  Maybe he was absent the week they covered the separation of powers doctrine in high school civics, and maybe the course of studies which led to his PhD in American History sort of skipped the history of American politics and our federal-state system of government. 

But how is it possible that Texas state senators — part of the very mechanism of democracy entrusted with this solemn responsibility — could have failed to understand these fundamental truths before they rushed out of Texas and rushed back into federal court?

How strained shall be the quality of mercy shown the Ten Truant Texas Dems™?

This — from Charles Kuffner of Off the Kuff about what will happen to the fines and other penalties imposed on the Ten Truant Texas Dems™ (my nickname for them, of course, and not his) — I found very thought-provoking:

[M]y best guess is that the GOP will try to impose some sanctions, and the Democrats will tell them to go pound sand. Tactically, I'd guess the Democrats are hoping that the Republicans insist on fining them and restricting their access to supplies, conference rooms, parking lots, etc. It fits in well with their renegade-victim-of-oppression story line, and will serve as a continuing rallying point for them both in Texas and nationally. As such, the smartest thing the GOP can do is to be magnanimous and drop all of the punishments in the name of restoring harmony. The fate of redistricting is entirely in the GOP's control now, so it hardly costs them anything to let bygones be bygones, and it would take a lot of wind out of the Democrats' sails if they did so. I don't think anyone will be surprised to hear me say that I seriously doubt that Rick Perry is smart enough to advocate this. But hey, I could be wrong. Again, we'll know soon enough.

I make no prediction on what Gov. Perry or the other members of the state Republican leadership will actually do, nor any comment on their inate cleverness.  But otherwise I agree with Kuff's observations.  At least in the short term, it would be politically smart — canny, astute, shrewd, efficacious — for the Senate Republicans to forgive everything.

But would it be wise?  Would it be proper?  Would it be sacrificing an important principle for the sake of short-term political gains that will be outweighed by longer-term consequences?

It is important to consider what precedent will be set for the future — and to do so in a manner that is not driven by short-term questions of how being merciful or vengeful will play in the polls.  It is no hyperbole to say that we have had a constitutional crisis in Texas this summer.  This crisis resulted not only in hard feelings and hardball politics, but also demonstrated a paralyzing impotency in the mechanisms of state government — with a heavy resulting waste of both tangible economic capital for the entire State of Texas and metaphysical political capital for members of both parties.  Unless there is a wise and comprehensive course of action undertaken to achieve political closure now, then the bitterness of this summer's fight may make such walkouts and stalemates ever more likely in the future, rather than less.

But how can both sides back down gracefully, claim to have preserved their inconsistent sets of principles, and get on about the business of governing the State of Texas?  The dilemma is clear:

• On the one hand, there can be no doubt whatsoever that the "Texas 11" deliberately violated Texas Senate Rule 5.03, which provides that "[n]o member shall absent himself or herself from the sessions of the Senate without leave unless the member be sick or unable to attend."  I assume that this particular rule has been in place for a long, long time, and at the beginning of the 78th Texas Legislature, it was unanimously approved by both Republican and Democratic senators alike.  The Texas Senate Rules do not bless or allow for the possibility of civil disobedience by senators, no matter what principle is being "defended" by the destruction of a quorum.  This isn't going to change.  And it would be very bad policy to set a precedent for the future that this rule may be violated with impunity (besides the fact that such a precedent would require the Republicans to eat more crow now than they could stomach).

• And yet on the other hand:   As profoundly misguided as I think they are, and as knowingly sloppy with the truth as I think they've oftentimes been and continue to be, I do not doubt that the Democratic senators who fled the state were, ultimately, sincere in their beliefs.  Vengeance or retribution for its own sake would be worse than petty and politically stupid; it would be unjust if carried to extreme measures.  All that nonsense about "poll taxes" aside, it would be counterproductive to insist on any meaningful penalty that would inhibit a senator's or his staff's ability to perform their jobs.  And in the present circumstances (about which, see below), it would be cruel and unrealistic to try to enforce significant monetary penalties against any of these senators in their personal capacities.  (Some of our part-time legislators would likely be driven out of office, if not also to personal bankruptcy, by the fines that nominally are outstanding now.) 

How, then, to cut through this Gordian knot?  As always, with a bold stroke of a sharp, deftly wielded sword.

The vote to impose penalties and sanctions by a majority of the Texas state senators who remained at the Capitol for the second special session — the Republicans plus Ken Armbrister, but over his and Republican state senator Bill Ratliff's opposition — did indeed have an arguable basis in the Texas Constitution and the existing Texas Senate Rules, notwithstanding the absence of a quorum.  If push came to shove, in fact, I think they'd have the better of the argument, in a technical and legalistic sense.   

The only place where push could likely come to shove, though, would be in the Texas Senate, and not in the Texas courts.  As demonstrated by the dismissals of the Republicans' attempts to "mandamus" the missing Democratic senators in both a Travis County District Court and in the Texas Supreme Court (as an "original jurisdiction" proceeding), the Texas courts will have none of this fight; it's a classic example of something that is considered to be a "political question" that, under the doctrine of separation of powers, lacks "justiciability."{note1}  So as a practical matter, the Senate has plenty of running room and flexibility here to write its own ticket so long as it doesn't expressly violate any provisions of the Texas Constitution.

Even if authorized and justifiable, the voting of penalties and sanctions was unprecedented.  That doesn't mean it was wrong.  But it means that, arguably, it came as a big surprise, and an unfair one, even if it was technically justified.  The Republicans can concede this point without any loss of face.  Moreover, they can likewise concede that it's a fundamental notion of "due process of law" that before you can penalize an offender, he has to first have been given fair notice — via a statute or via caselaw — that what he's about to engage in will land him in the soup, and indeed, roughly how hot that soup might be!{note2}

So there's your principled, equitable basis to support an act of sublime mercy — not a pardon that forgives unconditionally, wipes out the offense, and implicitly approves the misconduct after the fact, but rather an amnesty that is a measured decision to forego prosecution just this once.  "Guys, we think what you did was wrong, and we know you don't agree with that; but we can both agree that this was a novel, unprecedented situation, and we can also all agree that it would be better form for the entire Senate to agree on when and how this kind of penalty ought to be assessed."

That's only half of what's needed, though.  As part of the same unanimous Senate resolution that grants an amnesty and sets aside all fines and penalties with respect to the just-concluded second special session of the 78th Legislature, there must also be the joint statement of the "sense of the Senate" that before the next regular session of the Texas Legislature in 2005, a bipartisan commission (comprising an equal number of Democrats and Republicans, with Lt. Gov. Dewhurst voting only if necessary to break a tie) should meet to draft and propose amendments to the existing Texas Senate Rules.  Those amendments would be designed to put teeth into Rule 5.03.  As such, the rules as amended should contain graduated, automatic penalties (not requiring a separate vote in the absence of a quorum) that become more and more severe, leading all the way up to — but stopping just short of — declaring a vacancy in the seat of the most extreme offenders.  Whether the Senate could engage in that ultimate sanction without violating the Texas Constitution is a question best left for the next extreme constitutional crisis, which hopefully will never come.

To invoke the nickname of a former Texas governor (a native of my hometown, by the way):   PRESTO!  We've achieved an act of bipartisan cooperation and statesmanship that jerks the bloodstained tablecloth off the table without upsetting any of the dishes.  We'll let tempers cool until the 78th Legislature and redistricting are firmly behind us all.  We'll pick cool heads for the intersession commission to launder the tablecloth and prescribe table manners for the future.  And best of all, we'll diminish the likelihood — without necessarily foreclosing it completely — of similar walkouts by either party in the future.

(As my royalty on this proposal when adopted, I ask merely for 0.001 percent of the gross state sales tax revenues for the next five years.  Think of it as an extremely modest contingent fee.)

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

{note1} There's well developed parallel federal caselaw on this, if not much Texas law for understandable reasons.  Compare, e.g., Nixon v. United States, 506 U.S. 224 (1993), with Powell v. McCormack, 395 U.S. 486 (1969).

{note2} See, e.g., Rogers v. Tennessee, 532 U.S. 451 (2001).

9/11

This project is worth some quiet time.

I also agree pretty much with VodkaPundit and Lileks.

My own thoughts on this anniversary are here.

It's all about making people think it's all about race: Fisking Michelle Goldberg's Salon article on Texas redistricting

Writing in the online magazine Salon, Michelle Goldberg has an article out entitled "The Texas stalemate: It's all about race."  (Subscription required, or you can watch a 30-second commercial for a "day-pass"; the one I saw consisted of an ACLU ad that factually misdepicted the USA Patriot Act).  It's subtitled "Few are saying it openly, but the DeLay-Rove power grab in Austin is all about keeping white control of an increasingly Hispanic state," and it's been cited as authoritative, conclusive proof of rampant racism in Texas by such sources as the San Francisco Bay View and left-wing blogger Atrios.  So what's Ms. Goldberg got to say about the Lone Star State from her home in New York?

Sept. 3, 2003  |  ALBUQUERQUE, N.M. — Exile in Albuquerque is not glamorous. The 11 Democratic Texas state senators who fled to New Mexico more than a month ago to block a Republican power grab spend most of their days and nights at a slightly shabby Marriott hotel in the city's grim, sprawling periphery....

To prevent the formation of a quorum in the Texas Senate, the Ten Truant Texas Dems™ had their choice of any place to stay in the world, so long as it was outside Texas.  Tom DeLay didn't pick Albuquerque, much less this particular Marriott.  But in fact, Texans have been escaping the summer heat to their vacation spots in New Mexico for decades.  Ms. Goldberg, I suggest you ask New Mexico Gov. Bill Richardson, a Democrat and a vocal supporter of the Truant Texans, whether he appreciates your characterization of his state's largest city as "grim" and "sprawling."

... While most press accounts cast them as opponents of a Republican plan to grab power by redrawing legislative districts, the lawmakers-in-exile here see something at once more subtle and more important:   the latest chapter in the South's long, ugly war over minority voting rights.

Yes, even though "subtle," this theme makes for much better talking points and fund-raising than saying, "We've fled the jurisdiction to protect white, male incumbent Democratic Congressmen who will likely lose their seats unless we can maintain the pro-Democratic gerrymander from 1991."  Never mind, of course, that it was the southern wing of the Democratic Party who was guilty of the minority voting rights violations that led to the Civil Rights Act of 1965.  The question is, having wrapped themselves in the banner of Martin Luther King, can these modern-day Democrats make the banner fit?

Nine of the 10 senators remaining in Albuquerque are black or Hispanic; the other one represents a district that is mainly minority. And within a few years, experts say, Texas will join California as a state where Latinos, African-Americans and other minorities will outnumber Anglos.

The second sentence is true, and explains why Texas Republicans are so enthusiastic about recruiting and supporting conservative Hispanic candidates (e.g., Orlando Sanchez in the current Houston mayoral race).  But that second sentence doesn't logically relate to the first. 

So what's the purpose of the first sentence?  Each of the Ten Truant Texas Dems™ was elected from a state senatorial district that has already been redistricted by court decision in 2001.  It's not their seats that are at risk, nor the state-senatorial voting rights of any of their constituents that is at issue in the present fight.  The only reason for mentioning the race or ethnicity of these senators is to raise a demonstrably false impression that the Republican desire to adjust Congressional districts is intended to discriminate against them on the basis of their race.  That's not particularly subtle.  And it can't possibly true.

"This is an effort to seriously gut minority voting rights," says Sen. Leticia Van De Putte, head of the Texas Democratic Senate delegation. "We could not protect our constituents without breaking quorum" and fleeing Texas to short-circuit the Republican plot.

With all due respect, Sen. Van de Putte — and I respect you every bit as much as I respect Meryl Streep — your constituents are the people who can choose to vote for you, or not; the boundaries of your senatorial district aren't affected here.  As for the choice of the term "plot" — well, that's a nice, loaded word that appeals to grassy-knoll enthusiasts everywhere.  But it's a pretty poor "plot" when the Governor calls three special sessions for the express purpose of adjusting Texas Congressional district boundaries to make our Congressional delegation reflect the broad and deep state-wide support Texans give to our favorite-son President and his party.  Can it be a "plot" when it's so poor a secret?

If the senators are stubborn, it's partly because they've come to see their stance against redistricting as a civil rights struggle, not a political quarrel. At first, it's difficult to see that the battle over Texas redistricting is all about race. Spurred by Texas powerhouse Tom DeLay, the majority leader in the U.S. House of Representatives, and by White House maestro Karl Rove, Texas Republicans are trying to ram through a redistricting proposal that would virtually ensure that Republicans would replace between five and seven white, moderate Democratic incumbents.

(Emphasis by Beldar.)  Or maybe it's hard to see that the battle is all about race because the battle is not all about race. 

The description here of the various redistricting proposals on the table isn't far off.  The Republicans' obvious and stated motive is indeed to replace "moderate Democratic incumbents."  Now, it's not an accident that they're targeting "white, moderate Democratic incumbents" rather than black or Hispanic ones.  Regardless of whether there was an intention to target black or Hispanic incumbents based on their race, even a negative effect on such incumbents would run afoul of the Voting Rights Act of 1965.  You remember that statute, the one with a conclusive and binding presumption (based on the actions of the 1960s-and-earlier southern Democrats) that all Texans are racists who are incapable of merely unintentionally diluting minority voting strength. 

No, minority incumbent Democrats like Sheila Jackson-Lee or Rubén Hinojosa have nothing to worry about in this fight because they are bulletproof — any threat to their majority-minority districts would be blown out of the water in a New York minute.  The DOJ and a three-judge federal panel (from which there's a direct appeal to the US Supreme Court) will review any new redistricting map that comes out of the 78th Texas Legislature, and they have an absolute trump card to protect against any harm to minority voting rights.  US District Judge George P. Kazen of Laredo — currently the Chief Judge of the Southern District of Texas and a Clinton appointee — went out of his way to point this rather important fact out on five separate occasions in the first hearing on the voting rights lawsuit brought by the Ten Truant Texas Dems™, along with an express plea to the media to point this out to the general public.  (The plea was, of course, ignored, since it doesn't fit with the agitprop coming from the Dem Senators themselves, nor from MoveOn.org or sympathizers like Ms. Goldberg.)

But the fact that Ms. Goldberg concedes here — that the current redistricting fight is about the seats of "white, moderate Democratic incumbents" — is the least widely known and most misunderstood fact of the whole fight.  And the very next sentence of her article is even more stunning:

The GOP proposal would redraw the state's legislative boundaries so that minorities are concentrated into a few districts, likely leading to a net increase in the number of minority members of Congress.

(Emphasis by Beldar.)  Hello?  Did you catch that?  The Ten Truant Texas Dems™ fled the state to prevent a net increase in the number of minority members of Congress.  Ms. Goldberg calls this the "great irony of this whole imbroglio," but perhaps it's not "an irony," but a central fact!  If it's merely an "irony," then yes, this must be a very subtle anti-minority plot indeed. 

How is it supposed to work?  "[T]he voting power of blacks and Latinos would likely be diluted in other districts, giving Republicans a net gain of as many as seven seats," says Ms. Goldberg, which is why

Texas Democrats insist that the Republican redistricting plan is a deviously clever update on the party's old-fashioned divide-and-conquer Southern strategy. The Republican plan, Democrats argue, would redraw the boundaries so that blocs of Hispanic and black voters would shift from districts where they've voted in coalitions with white Democrats and independents into solidly Republican suburban districts, where their influence will be almost meaningless.

Okay.  There's the nub of it.  The plot against minority voting rights has nothing to do with "majority-minority" districts, but boils down to redrawing boundaries where Democrats — white ones, black ones, Hispanic ones — are currently sufficiently concentrated that when they all join together, they can continue to elect "moderate white Democratic incumbents," if just barely.  Well how'd that situation come about?  By accident?

Hell, no!  The way those concentrations were achieved was by over-packing Republicans into an even smaller number of highly-concentrated Republican districts back in 1991 — which, amazingly enough, Ms. Goldberg also admits much later in her article, when she quotes Rob Richie, whom she identifies as the executive director of the nonprofit Center for Voting and Democracy: 

Texas Republicans have a point that the current congressional map doesn't reflect Texas' voting patterns, Richie says. More than 50 percent of Texans voted for Republican congressional representatives in the last election, but Republicans won just 15 seats, while Democrats took 17. (Of course, given the last presidential election, there's something audacious about Republicans arguing that the system is invalid because its party won the popular vote in Texas but lost the electoral vote.) The Democrats dominate, says Richie, because of the electoral maps that state Democrats drew in 1991.

A panel of Texas judges redrew those maps in 2001, after statehouse Republicans blocked passage of a new map drawn by Democrats, who were then a majority. Republicans defended those court-drawn maps, which gave their party two extra seats, from a challenge in U.S. Supreme Court brought by civil rights groups, who said the map was unfair to minorities. Nevertheless, that round of redistricting didn't reverse all the advantages Democrats had built into the system in 1991.

Indeed, Richie calls the Texas Democrats' 1991 maps the most effective gerrymandering of that decade in the nation....

We'll charitably pass by Ms. Goldberg's parenthetical non sequitur about "electoral votes," which play no part in Congressional or state elections; in 2000, Dubya won both the popular vote in Texas and (of course, therefore) its electoral votes, so I have no clue what "audacity" she's talking about. 

With respect to the other comments she attributes to Mr. Richie, though, the Balderas v. Texas decision in fact didn't reverse any of the advantages that the Democrats "built into the system in 1991" because the panel left untouched all majority-minority districts created in 1991 and then ensured that no incumbents were likely to be unseated — and there were still more incumbent Democrats than Republicans.  The Balderas panel recognized that what it was doing had a pro-Democratic effect, even though that effect wasn't intentional on its part.

So what's the beef?  C'mon, Michelle — get to the plot part!  How's it work?

In exchange for two new minority members of Congress, Democrats say, blacks and Hispanics would lose a handful of white members whose voting records are relatively well-ranked by civil rights groups.

Oh.  I see.  And it's just a coincidence that those same white Congressmen have a moderate-to-liberal record on all other issues?  Everyone knows that it's only the rankings of civil rights groups that count — it couldn't be possible that Texans would care whether, for instance, their Congressmen were supporting our native-son President on foreign policy issues after 9/11?  Or on tax cuts and other economic policy?

The argument that a handful of sympathetic white congressmen beats two minority representatives would sound grossly self-serving if put forth by the white congressmen themselves. But the main proponents of that argument are the Texas 11.

Again, we'll ignore the fact that they're down to ten.  But let's not ignore all the other facts.  Let's notice, for example, that just as Republican Majority Leader Tom DeLay and other national Republicans may be interested in the outcome of this battle, so too are the white incumbent Democratic Congressmen whose seats are on the line.  Was it coincidence that when Sen. John Whitmire returned to Houston last week, he was met at the airport by Congressman Gene Green?  Do you not think Congressman Martin Frost — the mastermind behind the 1991 pro-Democrat gerrymander — no longer cares about his own seat?  And is it a fluke that the lawyers representing the Ten Truant Texas Dems™ in their Laredo lawsuit were hired by the Democratic Congressional delegation, not by the Texas Senators themselves?

As we say in Texas, "I was born at night.  But not last night."

[B]y targeting white congressmen elected by coalitions of minorities and white Democrats, the Republicans have found a way to disenfranchise minorities without violating civil rights laws that prohibit states from gerrymandering electoral districts on racial lines.

"Disenfranchising minorities" is of course a nicely loaded term, but it literally means preventing someone from voting.  The Voting Rights Act of 1965 was passed because Southerners were "disenfranchising minorities" with "subtle plots" like lynching them when they tried to vote.  But that act also prohibits acts and practices that have the intent or the effect of substantially harming minority voting rights, and Ms. Goldberg accuses the Republicans of being "subtle" enough to avoid doing that.  So what we're left with is this argument:   Anything you do to disadvantage white incumbent Democratic Congressmen is a racist plot, because those white boys are friendly to minorities, and in fact they do a better job of representing minority points of view than would additional Congressmen who are actually minority members themselves.

Right.  Gotcha.  I have just experienced an epiphany as to the full meaning of the term "diversity."

But ... but ... Is there actually any evidence — you know, facts and stuff — that this is all racially motivated?  Well, sez Ms. Goldberg, you have to be "attuned to the signals":

One might think the senators were being oversensitive, even paranoid, if a key Republican operative hadn't confirmed their suspicions that Republicans, led by Rove and DeLay, are playing a devious race card.

In May, the Denver Post reported on GOP attack dog Grover Norquist's strategy, saying, "The GOP can live with urban liberals, such as [California Rep. Maxine] Waters; it's moderates such as [Texas Democratic Rep. Charlie] Stenholm who are its main target." If the Texas redistricting plan is adopted, Norquist was quoted saying, "it is exactly the Stenholms of the world who will disappear, the moderate Democrats. They will go so that no Texan need grow up thinking that being a Democrat is acceptable behavior."

For those attuned to the signals, Norquist's message was clear — redistricting would drive Southern whites out of the Democratic Party. In July, he went further, telling the New York Times that Sheila Jackson-Lee, a African-American congresswoman from Texas, "will be the spokesman for the Democratic Party."

"Basically you'll be labeled a nigger-lover if you're a Democrat," [Garnet] Coleman [a Democratic state representative from Houston] says of the Republican plan. "We've already been through those times. It's all part of the Southern strategy."

Aha.  Well, now it's clear.  If you're "attuned to the signals," you'll understand that the millions of Texas voters who voted Republican in 2002 — who put both chambers of the state legislature into Republican hands, along with both the governorship and lieutenant-governorship, for the first time since Reconstruction — were all actually mindless, thoughtless robots doing the bidding of Grover Norquist.  (Never mind that not one Texas voter in 20 or probably 50 could tell you who Grover Norquist is.)  And when Mr. Norquist says he's out to make the "moderate Democrats" like Charlie Stenholm disappear, it's not possible that it's Charlie Stenholm's voting record which he objects to.  No, it's that Charlie Stenholm is a friend to minorities, that's the only possible objection any Republican could have to him. 

So, you see, the proof is in the subtext of what Grover Norquist said, as quoted in a Colorado newspaper.  Yes indeedy, that is conclusive and indisputable proof that Texas redistricting is really about labeling white Democrats as ....

Well, I can't quite bring myself to type that odious phrase; it's bad enough to have cut-and-pasted it.  But you'll know what I meant — if you're "attuned to the signals."

"Our Senate colleagues, they think we did this for show. They're very uncomfortable every time we bring up the black or Hispanic issue," says Van De Putte. "But this is about the consolidation of power and trying to direct control of the U.S. House for the next 20 years."

Umm.  Sen. Van de Putte, it's actually about who Texas elects in the next four Congressional elections (2004, 2006, 2008, 2010) before the 2010 Census and another round of redistricting in 2011.  Maybe your colleagues are uncomfortable because they don't want to point out your math deficiencies.  Or maybe they're uncomfortable because you're accusing them — without evidence, and indeed contrary to the evidence! — of being racists.  That might do it.

No Republicans returned calls for this story. But the redistricting standoff comes at a time when blacks and Latinos are on track to become majorities in Texas, leading some Texas Democrats to believe Republicans are using redistricting to limit the effect of demographic changes. One exiled Democrat recalls the candid comment of a Republican colleague: "We have 10 years until Hispanics take over."

That's just delicious.  I've been meaning to explain, Ms. Goldberg, why I didn't return your call .... But, yup, you caught us, there's obviously no Republican anywhere who can refute what you've written.  And that line from an unidentified Democrat about an unidentified Republican ... man, that is powerful evidence.  Stronger'n train smoke.   That pretty well nails us, every one of us, on just about any issue for that matter, and at any time and place.  I don't understand why this little nugget wasn't a New York Times headline for six weeks running.

Ya know, I wonder now why Ms. Goldberg bothered to write this whole article.  Anyone who's "attuned to the signals" already knows that all Texas Republicans are hard-core racists.  That would run from Dubya down to the peach-fuzz-cheeked members of the Sam Houston State University Young Republicans.  And of course we can't leave out Presidential Counsel and former Texas Supreme Court Justice Alberto Gonzales (Hispanic) or current Texas Supreme Court Justices Dale Wainwright and Wallace Jefferson (both black).  I suspect Rep. Coleman can come up with some nice terms to describe them as well.

If you're sufficiently "attuned to the signals," you don't need or want facts — or screeds like Ms. Goldberg's — anyway.

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UPDATE (Sun Sep 14 @ 7:30pm):   Even when he or she disagrees with you, it's always flattering to have something you've written read closely and discussed at length by another blogger, especially one as articulate as Ginger Stampley, who blogs in the cleverly named Perverse Access Memory.  I appreciate her taking the time and trouble to write and to link here via a Trackback. 

Is it "all about race" if it's about white incumbents?

Ms. Stampley writes:

One of the things that amuses me about Beldar’s comments is that when it’s about white representatives, it’s not about race. I can’t decide whether this blind spot is deliberate or not. To Republican strategists, it’s never about race, except when somebody who isn’t white points out that white people are stomping their metaphorical dick and does something about it. Then it’s anti-white racism and reverse discrimination.

Of course, my original piece started with Ms. Goldberg's use of the phrase "it's all about race" — but I'll plead guilty to some imprecise language.  As I originally stated, it's no accident that the Congressional districts being most heavily targeted for change in the Republicans' proposed redistricting plans are those with Anglos incumbents, and to that extent, I agree that the Republicans' redistricting efforts are indeed "about race."  But that's not because of an intent to discriminate against any members of minority races, which was very clearly what Ms. Goldberg meant when she said that redistricting was "all about race." 

To the extent that the Republicans' redistricting proposals discriminate against Anglos, I actually do agree that is unfortunate — even though I don't have much personal sympathy for these "good ole [white] boys" as the victims of this reverse discrimination.  But it's a discrimination that is effectively mandated by the Voting Rights Act of 1965, which makes those districts the only ones that are "up for grabs," so to speak.  So what Ms. Stampley characterizes as a "blind spot," I'd characterize instead as recognizing the practical political realities imposed by the Act.

Is it all about making people believe "white = Republican"?

Ms. Stampley also asserts that "[t]he goal of Republican strategists in Texas is to make every Democratic face in the statehouse and in the Congress black or brown," and says that she doesn't "like the idea that white liberals have no place at the table in Texas. And that is a message of this redistricting effort:   White=Republican." 

I certainly agree that such a message would be profoundly offensive.  However, the only people I see who are trumpeting that message are Democrats like State Rep. Garnet Coleman, an example of whose extremely distasteful rhetoric is quoted in Ms. Goldberg's article. 

And it's quite odd to hear Dems make this "white flight" argument at the same time they're ridiculing past and persisting efforts by the Republicans to attract minority candidates and voters — especially Hispanics who tend to be conservative on "culture war" issues.  Again, consider the 2002 elections in which two black Republicans won seats on the Texas Supreme Court, and a Hispanic Republican candidate was favored by party officials (but lost, to their chagrin, in the primary).  That's supposed to send a message from the Republican Party that "white = Republican"?

Is it all about drawing up districts on the basis of race, or on the basis of voting patterns?

Ms. Stampley concedes that "yes, the Republican party will gladly take your money and your vote if you are black or brown."  I think she's right about that, and I'd add that the Republican party will gladly consider what Congressional district you should be included in based on how you and your neighbors are voting, without regard for whether you're black, brown, or any other color.

With all due respect, Ms. Stampley comes up with no more evidence — facts, examples, specifics other than innuendo and presumptions of bigotry — than Ms. Goldberg did.  Ms. Goldberg says you have to be "attuned to the signals"; Ms. Stampley says "it takes blinders to miss it."  Okay, maybe I'm not attuned and I'm wearing blinders.  So help me out:   point me to the evidence of racial discrimination.  Ms. Stampley mentions an effort to "get blacks in Ft. Bend County out of Tom DeLay’s district to keep it safe for him."  I don't know what specific proposals have been made with respect to Mr. DeLay's district, but if what Ms. Stampley says is so, then where's the evidence that it's those voters' race — as opposed to their liberal politics — that is the motivation?  To ask it a slightly different way, is there any evidence — not speculation, not innuendo, but actual evidence, either direct or circumstantial — that it's those voters' race, rather than their past voting patterns, that's motivating any changes that are being proposed with respect to the Congressional district they'll next vote in?

Direct evidence of public racism is, I'll admit, hard to find; a politician who harbors racist views would be stupid to reveal them by admission or by other direct evidence (Cruz Bustamante's "slips of the tongue" notwithstanding).  But if race really is driving the decisionmaking, and not voting histories, then you ought to be able to find some examples of folks whose districts are being switched in a way that is irrational, inefficient, and inexplicable on the basis of their voting histories.  When and if you find that, if those voters are also members of minority groups, then you'd have at least circumstantial evidence of racism.  So, are there any such examples?  If so, I've yet to see them documented.

Does it make political common sense for redistricting to be all about race or racism?

I don't doubt the sincerity of either Ms. Goldberg's or Ms. Stampley's beliefs that — evidence or the lack thereof notwithstanding — some or most of the Republicans pressing for redistricting are motivated by racism, or at a minimum are consciously taking advantage of others' racism.  But that's all they have — a sincere but essentially unsupported belief that someone else is a bigot. 

Neither I nor anyone else can directly disprove that.  All I can say with any certainty is that I'm a Republican who's pressing for redistricting too; I can see inside my own heart, and I'm very comfortable that racism isn't any part of my motivation. 

But I can make an argument based on reason and inference.  If your goal is to gerrymander for the purpose of undoing a previous gerrymander and to benefit your own party with the new one, then in counting and classifying the blips on the map that you're trying to draw Congressional district boundaries around, it would be entirely reasonable to consider those blips' voting histories and trends, and to aggregate them based on that.  You can say, "The blips in this precinct pretty much have been straight-ticket [Democrats/Republicans], whereas the blips in this precinct have been ticket-splitters tending toward [Democrats/Republicans] on national and statewide races, but toward [Republicans/Democrats] on more local races."  I believe that the Republicans who are drawing up various maps have that goal, and I presume that they're going about it in a reasonable and efficient manner — reasonable, at least, if you accept as a given that partisan gerrymandering is both legal and customary — so I infer that they're looking at those blips' voting histories and trends pretty much to the exclusion of any other data about them. 

If you had no data about voting histories and trends, but did have data about race, then perhaps it would be reasonable to use race as a proxy based on statistically significant correlations between race and voting histories and trends.  But we do have very particularized data on voting histories and trends on a precinct-by-precinct basis now, and by contrast, the race-based correlations are imperfect and quite probably growing weaker.  One could also presumably develop data about concentration of Chevrolets versus Fords versus Toyotas on a precinct-by-precinct basis, and there might be some correlation between that and voting patterns; but why would I use that data as a proxy either?  If your goal in politics is to get yourself and members of your party elected, then it doesn't make sense to base your redistricting decisions on race, no moreso than it would to base your decisions on voters' car brands or household income or SAT scores — if you're deciding based on any of those characteristics, you're passing up a more effective and direct means to your goal.

No one can dispute that in days past, there were Anglo legislators whose irrational, racist desire to suppress political participation by either blacks or Hispanics predominated over their desire to see themselves or members of their own political party elected.  I doubt if many lynching parties stopped to ask their victims whether they intended to vote Republican or Democrat, and their basis for selecting those victims was emphatically racial and racist. 

But with all due respect for the sincere contrary beliefs of Ms. Goldberg and Ms. Stampley, I have no reason to believe that many, if any, of today's Texas politicians are being driven by those ugly motives.  I'm loathe to make that presumption because I know it's false in my own case, and because I think better of the modern American character, and because I've seen no current evidence to support it, and because it runs contrary to political common sense and efficiency. 

So I continue to believe that Texas redistricting is not all about, or even mostly about, racism.  There's no good reason for it to be about that — unless your party is in the minority, and you're desperately looking for some basis, any basis, to win either a PR battle or one in the courts that you can't win through democratic means in the Legislature.

In memoriam: J. Michael Bradford (1952-2003)

According to press accounts (here and here), Mike Bradford — an acquaintance and contemporary of mine at Texas Law School in the late 1970s who later served as the United States Attorney for the Eastern District of Texas during the Clinton administration — apparently took his own life this week.  When I was a "freshlaw" at UT (what they call a "1-L" at many other schools), Mike was the first upperclassman I had many dealings with — and what he taught me then has influenced my practice of law on a near-daily basis ever since. 

I mourn his passing.

One of the traditions at Texas Law School, going back many decades and persisting still, is that volunteer third-year (senior) students serve as "Teaching Quizmasters" to instruct small groups of first-year students in a pass/fail course on legal writing and, in particular, on legal citation form. As an undergraduate, I had always been annoyed by what seemed to me to be overly picky and archaic rules for listing one's sources in formal research papers — "op. cit." and "ibid." and the like struck me as silly. So I was decidedly unenthused, bordering upon annoyed, when I learned that the law has its own system for citing to sources of all sorts — appellate court decisions, statutes, law review articles, treatises — and that it was considerably more complex and picky than the system used by nonlegal academics.

I was very fortunate, then, to have been assigned to a TQ named Mike Bradford — a tall, lanky third-year student whose patience, fortunately for me, seemed unlimited.  Mike introduced me to the "Bible of legal citation form," the so-called "Bluebook" — the Uniform System of Citation jointly published by the law reviews of Harvard, Columbia, Penn, and Yale Law Schools. And very gradually, under his tutelage, our group of first-year students began to appreciate the distinctions between, for instance, a citation that began with the "signal" called "see, e.g.," and one which began with just the signal "e.g.," or instead with "see also" or "but cf." — each of which tells the knowledgeable legal reader a little something different about what to expect if he goes to look up that particular source. 

Mike also began walking us through the Texas Law Review Manual on Style (a/k/a "the Whitebook"), which was a sort of "Strunk & White" for legal writing; and the Texas Rules of Form (a/k/a "the Greenbook"), which overlaid the Blue Book's citation rules with yet another set of citation rules peculiar to Texas.

Eventually, TQ Bradford not only managed to drag me through all this dry but essential ritual of written legal protocol — although "Legal Writing and Research" was a pass/fail course, no one was allowed to fail it — but he actually got most of it to sink in. Ever so slowly, he imbued in me a growing appreciation for the utility and — I know this sounds very wonkish to say — the elegance of the system:

• Yes, it does matter whether you include a parenthetical to indicate whether the Texas Supreme Court refused the application for writ of error on that opinion from the Eastland Court of Civil Appeals on the basis of "n.r.e." (no reversible error) or "w.o.j." (without jurisdiction). 
• No, you don't need to include the year that the decision was announced in the first "court-and-date" parenthetical in the citation, since it's the same year you're listing in the later part of the citation to demonstrate that the US Supreme Court denied certiorari; but if the cert. denied subsequent history was in the following year, then yes, you list both years. 
• Yes, it does matter whether you underscore that signal. Why?  [Deep sigh.]  Because if you don't, then professors and eventually lawyers and judges who are reading what you've written will conclude that you either don't know the rules or don't care about them, and they'll also conclude that you really are an ignorant hick from the prairies of West Texas who's better suited to cotton farming than arguing constitutional law!

And so forth. Of course, Mike never actually said anything to me about my being an ignorant hick from West Texas, and I don't know anything about his own background. But if, as I think likely, Mike was a Texas boy of modest means with the same kind of chip on his shoulder when he started law school that I had, he had probably figured out that fellows like us badly needed to learn this sort of stuff cold in order to compete with the Ivy Leaguers and the well-connected who populated the seas in which we were learning to swim. 

I realize now that compared to, say, medical school, law school has comparatively little "scut work" and rote memorization. But this was the worst of what we had, and it simply had to not only be gotten through, but absorbed. Fluency in these rules is essential, because a lack of it is the quickest way to destroy one's credibility as a legal writer. As I learned later, snobbish law clerks for appellate court judges, for instance, can be extremely harsh critics of such formalities, assessing disproportionate subjective consequences for a misplaced comma or an inappropriately omitted parenthetical.

Service as a TQ was a nice résumé credential and may even have earned the third-year student some minimal course credit. But it was a lot of work, of the most tedious sort. It was very definitely the performance of a service to the law school and the legal profession. It wasn't until my second year in law school — when I qualified for the staff of the Texas Law Review and became a mega-wonk on citation form myself — that I realized how good a job Mike Bradford had done with our group, and how much to his credit it was that he had demanded more of us than is typical in most pass-fail student-taught courses.

I bumped into Mike from time to time over the next twenty-five years when he was a state district judge in Jefferson County and then a U.S. Magistrate and eventually the U.S. Attorney for the Eastern District of Texas. Probably his most famous case as U.S. Attorney was when he successfully defended the government against the claims brought by family members of the Branch Davidians killed during the debacle outside Waco. I was certainly not a close friend of his — more likely in a courtroom crowd I was one of those noddingly familiar "Where do I know him from?" sort of faces to him.

But I'm grateful for what he did for me as my Teaching Quizmaster back in 1977-1978, and I admire his later contributions to our profession. I don't know what demons and nightmares may have led him to take his life, but I knew him well enough to be able to say with assurance that his premature death is a tragedy, and I wish it hadn't ended for him that way.

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UPDATE Sun Sep 14 @ 11:45pm:   The Beaumont Enterprise has a report on the funeral services here.

Third time's the charm on Texas redistricting

Last Friday, I predicted that Texas Gov. Rick Perry would call a third special session of the 78th Texas Legislature "for Monday, September 15."

Ta-da!  From today's Austin American-Statesman, we learn that "Republican Gov. Rick Perry has set high noon Monday for the start of the next legislative shootout over congressional boundary lines."

I'm patting myself on the back over getting this prediction right to the very day, but otherwise I'm in a sour mood — too sour to blog at any length tonight.  In fact, I'm going to stick the explanation for my mood into a "continuation," because I don't want to be reminded of it too frequently.

I'm too depressed after reading the back-and-forth sniping between Atrios and Tapped over "identity politics."  Specifically what depresses me is how, in the course of this "I'm holier than thou" pissing match between far left blogs, both sides can throw out casual accusations that everyone who supports legislative redistricting in Texas — what Atrios refers to as "the Texas redistrcting [sic] shenanigans" — is ipso facto a racist. 

Atrios tosses out a line like this:  "... in states like Texas and California where Fear of the Brown Horde is a steady theme of right wing politicians, it's odd to criticize the Brown Horde itself for uniting and standing up for itself."  No proof, no specific facts, no limit to the scope of who he's accusing, which at a minimum seems to include "[p]aranoid Texan politicians, from the House Majority Leader on down to the governor and the Texas Legislature." 

And nobody blogging or commenting on either website even blinks. 

Excuse me?  "Fear of the Brown Horde"?  As a "steady theme" of Texas Republicans?

This is so disgusting, I don't know how to even begin to address it.  It makes me angry, but it also makes me sad.  How can these people be so filled with spite and bile and corrosive venom?  I know that there are smart, articulate, and similarly delusional madmen at both far extremes of the political spectrum.  But the continuous smug condescension, the nonstop sarcasm, the casual bigotry that I read on Atrios' website literally sickens me.  If Atrios ever feels an instant of happiness or humor or love that's unconnected with insulting those who are even slightly to the political right of him, you couldn't tell it from reading his blog.  I can't imagine having a conversation with this fellow that wouldn't end with him literally spitting in my face. 

And yet he apparently has a huge following and commands the respect and admiration of a good chunk of the blogosphere.  About that, I'm just sad, not angry.

Well.  That's not at all what I meant to write about.

Mips! The stupidist thing I've blogged recently ...

Posting a comment to a post on CalPundit about Dubya's most recent speech, I managed to come up with this lovely sentence earlier this evening:

But you guys insist on painting Dubya as if he was Neville Churchill returning from Berlin with a promise of "Peace in Our Time," when the fact of the matter is that from 9/12 through the "end of major combat operations" speech on the deck of the Lincoln through last night, Dubya has consistently said this is a marathon, not a sprint.

Well.  I'm sure Neville Churchill had a good chat about that with Winston Chamberlain when he returned from Munich, too.

Texans 21, Dolphins 20!

Amazing!  What a great road win over a team expected to be a Super Bowl contender! 

The Texans showed remarkable poise in coming from behind, and the stats indicate that the win was no fluke:   more total offence, rushing, passing, first downs, and time of possession; fewer penalties; and no turnovers.  The defense held last season's NFL rushing champion, Ricky Williams, to 67 yards on 17 carries and forced three Miami turnovers.

Most incredibly (given last season), the Texans gave up no QB sacks!

Update (Sun Sep 7 @ 9pm):   I hate to be tetchy, but isn't this a backhanded insult? 

"The way we were playing today, it wouldn't have mattered who we played," [Dolphin head] coach Dave Wannstedt said. "We would have lost the game."

This definitely lowers my opinion of Coach Wannstedt.  And there's still more billboard material for the Texans:

Cornerback Sam Madison blamed himself and his teammates, instead of crediting the Texans.

"A lot of people put us on a pedestal and we didn't go out there and live up to that," Madison said. "We gave them one.... We could have played a peewee team and we still would have lost."

And from a story entitled "Miami talks trash, Texans laugh last":

A humble second-year franchise playing at highly touted Miami, the Houston Texans were the biggest underdogs of the NFL's opening weekend.

That made them mad. So did the Dolphins' trash-talking during pregame warmups.

"One of their players said, 'I'll see you after today's practice,"' Houston's Jabar Gaffney said. "That was their thinking — they were looking at us like this was just a little practice."

Trash talk before the game is one thing.  After you've been beaten fair and square, NFL protocol demands that you at least pretend to respect the victors, even if in your heart you think you lost because you stunk.

I expect the Dolphins will do better as the season progresses.  But yes, today, they did stink — and I'm not talking about their play on the field, but rather, their sportsmanship from the head coach down.

Ahoy matey! Hand over that Redistricting Treasure Map, or I'll have ye walkin' tha plank!

I'm glad that the three-judge panel convened for the Barrientos v. Texas litigation has ordered a prompt hearing for September 11th, although I wish they'd picked a different date.  In fact, I wish the panel had picked September 19th, which as we all know is Talk Like a Pirate Day:

THE CLERK:    Oyez, oyez, oyez!  The United States District Court for the Southern District of Texas, Laredo Division, is now in session, the Honorable Patrick E. Higginbotham, United States Circuit Judge, presiding, with the Honorable George P. Kazen, Chief Judge of the United States District Court, and the Honorable Lee H. Rosenthal, United States District Judge, also sitting!  God save the United States and this Honorable Court!

JUDGE HIGGINBOTHAM:   Be seated please.  As our sole matter on this afternoon's docket, we have a hearing on all pending motions in Gonzalo Barrientos et alia versus The State of Texas et alia, Number L-03-CV-113.  Counsel will please enter your appearances on the record.

MR. HICKS:   Arrrrrr!  Cap'n Renea Hicks here, m'lords an' m'lady, fer tha Demmercraddick Sennadors!

MR. CRUZ:   Solicitor-Gen'ral Ted Cruz at yer service, m'lords an' m'lady, fer tha Kingdo— errrrrr, fer tha State o' Texas, an' fer Guvner Perry, an' Leftenant-Guvner Dewhurst.

JUDGE HIGGINBOTHAM:   Very well, counsel.  We'll first hear from Mr. Cruz on behalf of the Crown.   Errr, the State.  Whatever.  Mr. Cruz?

MR. CRUZ:   Aye-aye, m'lord!  May it please the Court, the State o' Tex—

MR. HICKS:   Belay that order!  Avast, m'lords, beggin' yer pardon, m'lady, but ye ert ta hear me arguments first!  Tha Sennadors' motion fer a temp'rary restrain' order ert ta take precedence!

JUDGE HIGGINBOTHAM:   I see.  Mr. Cruz, what do you say to that.  Do you have a preference as to whether to speak first or second?

MR. CRUZ:   Aye, m'lord, 'tis nonsense fer yer worthies to spend yer time on tha motion fer a temp'rary restrain' order because once yer worthies have granted the State's motion to dismiss, that'll send yon motion fer temp'rary orders to the bottom o' Davy Jones' locker wif tha rest o' tha Sennadors' case.

[Brief conference off-the-record among the Judges]

JUDGE HIGGINBOTHAM:   Very well, Mr. Cruz, we agree.  Please proceed with argument on the State's motion to dismiss.

MR. CRUZ:   Har-har!  Aye-aye, m'lord!  The nub o' this matter, m'lords an' m'lady, is whut Leftenant-Guvner Dewhurst did when tha Good Ship Legislature hoisted anchor and set sail fer its Second Speshul Sesshun. 

Leftenant-Guvner Dewhurst announced to all the swabbies aboard that there'd be no more o' this molley-coddlin' an' fussin', but instead a steady course fer pure democracy, steady as she goes.  He announced that on this voyage, when he summon'd all hands on deck an' called fer a vote, he'd count hands — or hooks, as the case may be — and the side wif tha most will win. 

But tha Demmercraddick Sennadors, m'lords an' m'lady, began ta mutterin' about a mutiny!  They asked, "Whut about tha tradishun that two-thirds o' all hands aboard must agree first afore takin' any vote?" 

But tha Leftenant-Guvener answered 'em back sharply:   "Nay, ye scurvy dogs!" he said, "tha last voyage we took ye abused that tradishun an' kept us from ever gettin' outta port!"  Whereupon tha Demmercraddick Sennadors abandoned ship and skedaddled to the Land o' Enchantment, where they've been rousin' tha rabble and keepin' the ale-houses filled to the brims wif pieces o' eight.  An' instead o' sailin' on tha Good Ship Legislature as intended, they've brought this scurvy lawsuit claimin' that tha Leftenant-Guvner is disenfranchisin' them o' their votes! 

Why, nuffin' could be further from the troof, m'lords an' m'lady!  Leftenant-Guvner Dewhurst will gladly count their hands and hooks, if'n they'll only come back aboard when tha Guvner calls another muster!  M'lords, m'lady, the Crown— errr, the State submits that the Demmercraddick Sennadors ert ta be clapped in irons and returned to their stations aboard ship, an' their lawsuit sent into tha vasty deep.

JUDGE HIGGINBOTHAM:   Very well.  Mr. Hicks, we'll hear from you now.

MR. HICKS:   May it please yer lordships an' yer ladyship, I've ne'er heard such a load o' bilge an' hogwarsh in me whole seafarin'—

JUDGE ROSENTHAL:   Excuse me, Mr. Hicks, but ... is that a parrot on your shoulder?

THE PARROT:    Stand and fight!  Stand and fight!  Bwaaawk!

MR. HICKS:    Pay no attenshun to him, m'lady, he's been followin' me since tha Battle o' tha Caribbean three years ago this November.  Blimey!  Rum bird ...

JUDGE ROSENTHAL:   Very well, Mr. Hicks, proceed.

MR. HICKS:   Yo ho ho! Yer lordships, this is just tha first shot across tha bow o' democracy by Fleet Admiral Bush an' Commodore DeLay an' their whole evil navy, and a more rummy lot ye ne'er have seen!  Why, tha Demmercraddick Sennadors had no choice but ta slip off ta tha Land o' Enchantment!  If'n they'd stayed aboard ship after Leftenant-Guvner Dewhurst changed tha rules, then he wuz gonna keelhaul an' flog 'em!  In fact, that scallywag wuz about to hornswaggle all tha landlubbers o' Texas into—

JUDGE KAZAN:   Mr. Hicks, excuse me a moment, but let me see if I understand what you're asking this Court to do.  You want us to order Leften— errrrr, Lieutenant-Governor Dewhurst to see that a phony piece of legislation — a so-called "blocker bill" that nobody in the Senate actually supports — is the first bill referred to and then reported out of any Senate Committee, so that it can be placed atop the Senate Calendar?

JUDGE ROSENTHAL:   And that's so that under the rules as written, which Lieutenant-Governor Dewhurst is still enforcing as written, no other legislation — and especially no redistricting bill — can then even be considered, unless your pirates — errrrr, your clients, whose party has lost their majority in the Texas Senate, go along with it? 

JUDGE HIGGINBOTHAM:   So that what you're asking us to do is to issue orders that require the state's executive officers to continue a charade — an artificial manipulation of the Senate rules as they're actually written — in order to permit a legislative minority to continue to prevent the majority from ever being able to hold a Senate vote?

THE PARROT:    Let every vote count!  Bwaaaawk!  Stand and fight!  Stand and fight!

[The Parrot explodes in a cloud of feathers and smoke.  Mr. Hicks' co-counsel from Washington, Mr. Hebert, tucks his flintlock pistol back into his belt and resumes his seat.]

MR. HICKS:   Well, m'lord, ummm ... Ya see, m'lord, if'n Leftenant-Guvner Dewhurst weren't changin' tha rules mid-voyage, we—

JUDGE ROSENTHAL:   That's twice you've said that now, Mr. Hicks.  Would you be good enough to direct the Court by number to the rule that you say the Republicans have changed?

MR. HICKS:   Arrrrrrr!  Blast me own scurvy eyes, I saw it here somewheres this mornin' around seven bells.  Umm ... Errrrr ... M'lords, m'lady, can ye not see that poor, poor Repursen'tive Frost will see his Treasure Map from 1991 destroyed if'n ye permit tha majority to prevail in the Texas Senate?  Can ye not shed a tender tear fer Repursen'tive Frost and his brudders?

JUDGE HIGGINBOTHAM:   I believe we've heard enough.  Thank you counsel, we'll issue a decision shortly.

THE CLERK:   All rise!  Court is now adjourned!  Gangway, me hearties!

Articulate arguments from the left about redistricting

Time for kudos to those left-of-center bloggers whom Beldar has quickly come to respect, if not agree with, regarding the ongoing Texas redistricting fight.

Burnt Orange Report, run by three UT-Austin students, proves the point of my questionably-Churchilian quote about age and politics.  I enjoyed reading and commenting on several recent posts there about redistricting (here, here, and here, for instance).  I'd gladly stand any of these guys to a couple or three pitchers of beer and a platter of nachos.  Even when I think they're badly wrong, what I've read so far has been articulate and sincere.  Hook 'em!

Charles Kuffner's Off the Kuff also continues to impress me.  He's always on top of the newest news (for example, here and here), reasonably clear-eyed and non-foamy-mouthed in his analysis, and quite often very funny.  On the only occasion I've had to point out to him via email something I thought was factually off (having to do with the composition of the three-judge panel in the Gonzalo Barrientos v. Texas lawsuit now pending in Laredo), he responded graciously and quickly, and after confirming the facts, made a conspicuous correction with a polite acknowledgement -- in other words, he acted quickly and with impeccable ethics, which impressed the heck out of me.

Charles also re-posts (e.g., here and here) from his blog sometimes on Texas issues at Political State Report.  I've been rather less impressed with the commenters there -- much more an Atrios-like than a CalPundit-like place for a conservative blogger to play devil's advocate.  (Hmmm, if I publish a response there to something that Charles originally put on his blog, would that be a riposte to a re-post?)

And I'd enjoy seeing even more Texas coverage like this from Edward Still at Votelaw; I'm no specialist in voting rights litigation, but I gather he is, as well as being a fan of politics in general.

There are probably other such that I just haven't stumbled across yet.  I enjoy reading conflicting opinions on other blogs and websites, and enjoy debating folks here whose opinions vary from my own, provided they're reasonably civil.  Maybe one or two more of them will see the trackbacks and come here to help explain what the heck Rep. Martin Frost is telling the press!

Being long-winded (and since, to paraphrase Ronald Reagan in New Hampshire ca. 1980, I'm paying for this bandwidth!), I'll reprint here the comment I left on CalPundit's post about Blog Civility:

Zizka, my interpretation of Kevin Drum's original post here was that he doesn't intend this to be a "team huddle." There are certainly other blogger-hosts on both sides of the political spectrum who are running "team huddles," but they're frankly much less interesting places to visit regardless of one's own place along the spectrum.

I'm a fairly new blogger myself, and a fairly new visitor to this one. But it's clear at even a glance that there are some very bright people who visit and comment on this site -- in addition to the very bright person who writes it -- and that most of those people have personal politics that don't overlap my own. I nevertheless enjoy reading what they have to say. I'm frequently informed of new facts when I do so; I'm very, very often amused, even by things I don't agree with at all; I'm sometimes surprised to find agreement when I didn't expect it; I often admire the eloquence or creativity of someone who impresses but fails to persuade me; and I'm sometimes actually persuaded of something that I thought I never would be persuaded of.

If I leave a comment here, it's with the hope and intention of performing some of those same functions for other readers here, and also because it helps me clarify and sharpen my own thoughts and ideas.

Personal attacks contribute nothing toward any of these goals.

Demonstrating -- bragging -- that you have a closed mind isn't likely to help you persuade anyone who's persuadable.

Anyway -- Mr. Drum, thanks for the bipartisan welcome, which I believe to have been absolutely sincerely intended, and which I find admirable in itself. I embrace and endorse your ground rules and the motives behind them.

Reasons to choose life

A motto that I have framed upon my wall, drawn from Deuteronomy chapter 30, always reminds me of my kids, and vice versa:   "Before you this day is set good and evil, life and death.  Choose life, that you and your descendents might live."  Herewith, some specific reminders from today and this week:

This morning, before piling into my car so we could head for her school, my youngest daughter (age 8) spontaneously hugged me for at least a full minute.  I can still pick her up easily, but the day will soon come when I can't.  "Can you stop growing for a year please?" I managed not to say.

Earlier in the week, en route to said elementary school, my younger son (age 10) and I discussed at length his observations about the relationship between rarity and price-in-Neopoints of various items in the Neopets Virtual Pet online universe.  At a red light, I sketched an X and Y axis and elicited his answers to graph a simple supply and demand curve on a napkin.  He shrugged:   Well, duh, Dad, that's pretty obvious.

Today I picked up my older daughter (age 12) from her middle school, where she'd been on a "casting call-back" for the school's upcoming production of The Unsinkable Molly Brown, in which she's hoping for a modest speaking part; I, of course, think she's perfect for the lead.  (This will be her third musical, having had chorus parts in Fiddler on the Roof and Brigadoon the past two years.)  I was very relieved to see that not even the eighth-grade girls there had tongue studs, nor did they otherwise look remotely like the young actresses with digitally superimposed tongues in the new movie, "Thirteen."  I resisted the urge to extract again the ritual promise from my daughter that she won't even consider a tattoo of any sort until she's at least 30.

Then, for the first time ever, I was a passenger in my own automobile as it was being driven by my oldest son, a young man of 15 who's taking Driver's Ed.  I was calm, and limited myself to sidelong glances at him, and tried not to babble about my vivid memories from the night he was born.  He drove very cautiously; he's still blazing the neural pathways that connect hand and eye and foot and inner ear.   By Thanksgiving, when he's 16, I expect I'll have an impulse to make very different comments from the one I bit back today:   "You can go a bit faster now, son."

Can you not hear a loud hissing from the rapidly deflating prospects of the Ten Truant Texas Dems™?

On Tuesday, the defendants in Gonzalo Barrientos et al. v. State of Texas et al. — the lawsuit filed in federal court in Laredo by the Ten Truant Texas Dems™ — filed a very short motion asking for expedited consideration of the State's pending motion to dismiss the Dems' case. 

On Wednesday, the three-judge panel issued a notice that at 1:00 o'clock p.m. on Thursday, September 11, in Laredo (mips! I was hoping for Houston so I could go watch!), it will conduct a hearing on all pending motions.  This hearing will  presumably include both the State's motion to dismiss and the Dems' application for a Temporary Restraining Order to immunize them from "arrest" by the Senate's Sergeant at Arms if a third special session is called; the latter becomes moot if, as expected, the former is granted.   A ruling from the bench, followed by a short written opinion (either that same day or perhaps a day or two later), would not surprise me.

On the following Saturday, September 13, Texans go to the polls to vote on a series of proposed amendments to the Texas Constitution.  Unfortunately, none of these amendments authorizes the live, statewide telecasting of the handcuffing of, administration of sodium pentothal to, and vigorous cross-examination by a volunteer blogger of state legislators who've recently fled the jurisdiction to destroy legislative quorums.

I imagine that state Republican leaders are doing some serious head-knocking behind the scenes to achieve agreement between the House and Senate Republicans on a redistricting bill.  Democratic state senators Whitmire and Armbrister may also be a part of some of those discussions, and could quite conceivably play a nontrivial role in both negotiations and a third special session, which may well be called for Monday, September 15. 

By contrast, the Ten Truant Texas Dems™ have made themselves effectively irrelevant — and if they remain outside Texas for the third special session, they will quite literally have "disenfranchised" themselves.

Beldar asks a question

Friday's Fort Worth Star-Telegram has this quote from US Representative Martin Frost (D-Texas), one of Leticia's children:

"This is a national issue," said Frost, who saluted the Texas senators for their stand. "The Republicans are trying to overturn the results of the elections two years ago. This cannot be permitted to happen."

I assume he means the elections of 2002, since there were neither statewide nor national elections two years ago in 2001.  I assume he's not talking about the California recall election either, even if he thinks that it and the ongoing Texas redistricting fight are part of some sinister master plan. 

Please:    Would someone who's left-of-center — or at least very familiar with their arguments — leave a comment to identify for me (a) what "elections" Frost is referring to, and (b) in what sense the Republicans are attempting to "overturn" their results?

This is a sincere question.  I genuinely have no idea what point Rep. Frost is trying to make other than the sort of general "Republicans are bad" meme.  My best current guess as to the answer to part (a) is that he's referring to the election of 17 Democrats (including himself) as part of the Texas delegation to the US House of Representatives, but I'm not confident that is what he means, and whether it is or not, I have utterly no clue about part (b)'s intended meaning.

UPDATE (Sat Sep 6 @ 12:30pm):   Edward Still at Votelaw offers an articulate response to my question on his own blog.  He too assumes that Frost was referring to the 2002 Congressional elections, and has this to say:

The Republicans are seeking to "overturn" the elections by redrawing several congressional districts where the voters split their tickets and vote for Republican candidates most of the time, but continue to re-elect Democratic representatives.

One of the pithy little sayings about redistricting is that it is an opportunity for representatives to choose their voters. This applies to a body redistricting itself, but in this case it refers to the Republican Party — from Karl Rove and Tom DeLay to Rick Perry and David Dewhurst and the Republicans in the Legislature — to rejigger the election results till they get the "right" result.

I will admit that most redistricting has the goal of determining in advance the composition of the body to-be-elected. But usually we restrict ourselves to once a decade.

Overall, this is so commendably honest, it makes me want to give Mr. Still a big hug. 

I agree with him entirely that accomplishing a legislative redistricting once a decade is enough; it's just right, in fact.  We still haven't had ours in Texas yet for this decade.  Instead, we had a court-imposed redistricting that — for reasons I've previously blogged (here and here, for instance) — not only gave no opportunity for the new majority party in the state to express the democratic will of its people, but instead actually had the self-acknowledged effect of further entrenching incumbent Democrats who were artificially protected by the 1991 pre-Democrat gerrymander.  This is why I continue to insist that yes, this is a battle about democracy — but the Democrats are on the anti-democratic side of it.

I also expect that Mr. Still's polite formulation is about as good a job at defending Rep. Frost's word choice as can be done.  But it's still off the mark — trying to make square words fit in round holes, so to speak. 

The Republicans whom Mr. Still names — and add "Beldar" to that list, along with the millions of other Texans who voted in 2002 to put both legislative chambers and both top executive offices into Republican Party hands — are indeed trying to accomplish a different result for future elections "by redrawing several congressional districts where the voters split their tickets and vote for Republican candidates most of the time, but continue to re-elect Democratic representatives."  We're being very candid about it — we think that especially since 9/11 and the overt beginning of the War on Terror, Texans want a Congressional delegation that supports our native-son President — and the publicly announced goal of redistricting is to do that.  We'd probably reformulate the description to say that we're trying to redistribute loyal straight-ticket Republicans who were disproportionately packed into a few districts by the 1991 pro-Democrat gerrymander, but I don't even quibble much with Mr. Still's description of the means being used. 

I do, however, strongly object to Rep. Frost calling this the "overturning" of past elections.  That is simply an untruth — indeed, from someone as experienced and knowledgeable as he is, I have to conclude that the choice of those words makes it a lie.  And it's a particularly powerful one because it accuses the Republicans of trying to do something politically illegitimate, instead of politically routine.  Yes, redistricting a/k/a gerrymandering is indeed "rejiggering" something until you get the "'right' result."  But you aren't rejiggering the results of past elections, you're rejiggering district boundaries to try to get a different result in future elections.  The latter is (ugly) small-d democracy in action; the former is an anti-democratic coup d'état. 

Rep. Frost and MoveOn and the Ten Truant Texas Dems™ want Texas redistricting to be about coups d'état and "stolen" elections because it fits their overall theme against the Bush administration.  I understand the theme.  But to make it fit here in the Lone Star State, you have to tell lies, and that's simply shameful.

Ignoring Judge Kazen, MoveOn.org begins $1 million ad campaign based on racial scare tactics

Harvey Kronberg's Quorum Report has a link to a .pdf file with the first of MoveOn.org's print advertisements, due out in today's New York Times and paid for out of the $1 million that it recently raised over the Internet.  The ad is also up on MoveOn.org's own website now (warning: several large pix, not for the impatient or timid of bandwidth).

Contributors will be comforted to note that none of the $1 million has been spent on fixing the sentence fragment previously noted in BeldarBlog when I fisked the printed justifications for their sexist and anti-democratic "Defend Democracy in Texas" program.

No, the $1 million is apparently going into racial scare tactics which are calculated to create the sort of unjustified public alarm in the minority community that US District Judge George P. Kazen deliberately went out of his way to squelch at last week's hearing on the lawsuit brought by the Truant Texas Dems™ in federal court in Laredo.

The MoveOn.org print ad contains three paragraphs of hysterical text tied together with the subheadline, "It's the worst setback for minority voting rights in four decades."  News reports indicate that radio and TV ads to like effect ("accusing President Bush and other Republican leaders of trying to disenfranchise Hispanic voters, especially in the Texas redistricting fight") will also begin within the next two weeks.

Ahem.  Well, this is again rather curious logic.  It appears that the folks at MoveOn.org are keen on keeping the map drawn up by the Balderas v. Texas three-judge panel in 2001 (which essentially perpetuated the pro-Democratic gerrymander from 1991).  And they don't want to have a democratic vote in the Legislature determine redistricting in the manner intended by the US Constitution, as interpreted by the US Supreme Court.  And the "four decades" is a loose reference to the passage of the Voting Rights Act of 1965, it seems.

But their trust in the Voting Rights Act and the DOJ and the three-judge panels of the federal court and the Supreme Court that hears direct appeals from such panels' decisions seems to be ... rather selective.

MoveOn.org's ad campaign entirely ignores the fact that any redistricting bill will have to undergo preclearance under section 5 of the Voting Rights Act of 1965, and that if any redistricting bill has either the purpose or effect of harming minority voting rights, it will be blown out of the water in the proverbial New York minute.

Currently serving as Chief Judge of the Southern District of Texas, Judge Kazen is a Carter appointee before whom the Dems were thought to have a "home court advantage" (although I genuinely don't believe that mattered much, if at all).  At the August 27th hearing, he rejected the Dems' requests for immediate emergency injunctive relief, and expressed extreme skepticism as to whether they'd managed to state a viable claim that could survive a motion to dismiss.  He did, however, grant both sides' requests to ask Fifth Circuit Chief Judge Carolyn Dineen King to convene a three-judge panel under the Voting Rights Act of 1965 to make that decision. 

More significantly for present purposes, at this same hearing, Judge Kazen deliberately went out of his way  several times to reassure everyone concerned that minority voting rights will be protected when and if a redistricting plan is eventually passed.  He repeatedly directed these comments not just to the State of Texas and to the Truant Texas Dems™, but specifically to the members of the press who were present, with the obvious intention that his comments should be widely reported to the public.

However, the press has, of course, completely dropped that ball — thereby leaving the entire field in the battle for public opinion wide open for MoveOn.org's misleading and inflamatory ad campaign.

Here's what Judge Kazen said in open court last week:

[THE COURT:] I would stress again, and I think it's important, especially, for the media to understand, that — that if, in fact, a redistricting bill passes, then there's no question the voting act applies and there's no question that it has to be precleared and there's no question that it will be in litigation and there's no question that a three-judge court can say it violates minority rights.

(Official Transcript, page 12, line 21, to page 13, line 3.)  And again:

[THE COURT:] But if, indeed, a bill passes and if, indeed, it is as pernicious as it is feared [by the Dems], there are remedies.  There are at least two remedies.  And that's — it seems to me that that's the way it's supposed to be.

(Official Transcript, page 17, lines 16-20.)  And again:

[THE COURT:] And as I say, if then — I mean, look, I don't know when this is ever going to end.  As I say, if, in fact, some day a bill is passed, then a whole new round of money and time is going to be spent inevitably on a real voting rights case, which is — you know, whether the statute discriminates against minorities, but — so, you know, we're just somewhere along the way here.

(Official Transcript, page 32, lines 5-12.)  And again:

[THE COURT:] I would say — and I'm — and again, I'm not predicting anything, but I'm — I would say that if a three-judge panel decides that this [case as presently on file] is not a voting rights case and if DOJ has decided it's not a voting rights case, then it may be that people need to step back and take a deep breath and see where we are at that point.  Understanding, again, that — and I can't repeat this enough, especially for the news media, so that the people of Texas who care — I mean, they already care, will really understand, if and when a redistricting bill is passed, it will unquestionably be covered by the Voting Rights Act and it will unquestionably have to be precleared and it will unquestionably generate a lawsuit, and then all the business of charts and drafts and whose perspectives — and, you know, is it discriminatory and all that.  All that will do is generate this whole new round of litigation.  So that's there.  That protection is there.

(Official Transcript, page 35, line 15, to page 36, line 7.)  And still again (referring to the letter from the chief of the Voting Section in the Civil Rights Division of the Justice Department, which confirmed that  no preclearance was required for Lt. Gov. Dewhurst's decision to enforce the Texas Senate rules as written, rather than continuing to manipulate the Senate calendar in the second special session by using the "blocker bill" procedure to give a minority the power to deadlock the Senate):

THE COURT:  Okay.  Well, we'll put this in the record.  I note their [the DOJ's] conclusion, which is what we talked about.  If and when a new redistricting plan is actually adopted and submitted to the [US] Attorney General for review, the Attorney General will review it and the — well, he says, and the process by which it has been adopted to ensure that the submitted changes have neither a discriminatory purpose nor a discriminatory effect.

(Official Transcript, page 57, line 19, to page 58, line 2.)

Beldar's blunt translation of the subtext of all these extraordinary statements (that is, the private advice that I'd give the Dems as their counselor if, god forbid, I were their lawyer):   Quit scaring the public with this nonsense in the press about "disenfranchising minorities."  The Voting Rights Act of 1965 as enforced by the DOJ, a three-judge federal panel, and the US Supreme Court, will make very sure that doesn't happen.

Remember Landru!

The New York Times of course manages to completely miss the distinction between "rules" and "traditions," swallowing and then regurgitating the agitprop of the Truant Texas Dems™ by reporting in tomorrow's edition that

[b]ecause of quorum requirements and a longtime rule requiring a two-thirds majority to bring up a bill, the Republicans need two Democratic votes to move legislation.... After Democrats thwarted a first special session in June, Lt. Gov. David Dewhurst suspended the two-thirds rule, angering Democrats and prompting the flight.

(Say it with me, friends and neighbors:   It's ... a ... LIE!)

But I was more interested in two more minor bits from this story.  The first was the report that Sen. Whitmire is "known as Boogie from his avid partying in younger years."  My respect for him grows hourly by leaps and bounds.

The other was this quote, referring to Sen. Whitmire's status as the longest-tenured member of the current Texas Senate:   "As dean, I have a responsibility to protect the integrity of the body," he said.

These are wise words, for those who refuse to learn from history are doomed to repeat it.

Spinners spun by sharks, but transcript scrapes scales from Senator's sockets

Who ya gonna believe?  Your own lyin' eyes and a transcript, or your high-priced lawyer from Washington?

Texas Sen. John Whitmire (D-Houston) did something smart this past weekend:   He read the actual transcript of last week's hearing before US District Judge George P. Kazen in Laredo in the Voting Rights Act lawsuit in which Sen. Whitmire is one of the co-plaintiffs.

What can I say, Senator?  You coulda just read BeldarBlog on the Internet from Albuquerque!

My poor, loyal dog just thought I was having a heart attack.  She was switching into her "Lassie-go-get-help" barking and scratching-at-the-door mode because I was laughing so hard that I was doubled up and gasping for air. 

Here's the just-posted report from the Houston Chronicle that did it to me:

While in Houston, Whitmire read the transcript of a federal court hearing on the Democrats' voting rights lawsuit.

Though the Democrats portrayed U.S. District Judges George P. Kazen's decision last week to send the case to a three-judge panel as a victory, Whitmire found the transcript troubling.

In it, Kazen said the case had little merit.

But the Democrats' lawyers told their clients the news was good, Whitmire said.

"Somebody really did one on us," he said. "We were told in no uncertain terms to be optimistic."

Reporters were allowed to listen in on a teleconference call between the lawyers and the senators last week in which the lawyers gave a rosy view of the judge's statements. The lawyers and senators also talked behind closed doors.

Gerry Hebert, one of the lawyers, declined to respond to Whitmire's complaint.

I'm a frankly a little surprised that the press accounts hadn't tipped Sen. Whitmire off to begin with.   But Sen. Whitmire, despite being a lawyer himself, evidently got caught up in the enthusiasm of some lawyers trying to put the best face on a very bad situation. 

Of course, inviting reporters in to hear the post-hearing report from the Dems' lawyers was an extraordinary farce.  Doing so absolutely destroys attorney-client privilege, and thus ensures that you are not going to hear your trial lawyer's candid advice in his distinct capacity as your private counselor, but instead that you'll continue to hear your lawyer in full-blown (non-objective) advocate-mode.  Lawyer Hebert had already found his way to the TV cameras that morning to engage in a bit of the Politics of Personal Destruction with respect to one of his own (Janet Reno-promoted) successors at DOJ, so perhaps the spin RPMs were just too high to wind down from in whatever private discussions he and his fellow sharks had with the Truant Texas Dems™.

But once out of the New Mexico highlands — with the benefit of Houston's warm August breezes off the Gulf, lightly scented with the petrochemical perfume that means "home" and "commerce" to all of us who live here — apparently Sen. Whitmire had no trouble reading both the text and the subtext of Judge Kazen's comments in the full transcript from the hearing.  As I blogged last week after reading the same transcript, Judge Kazen's actual remarks were even less encouraging than the way they were reported in the popular press.  And as interpreted by anyone with much courtroom experience, the only question would be whether you'd pick the term "catastrophic" or "apocalyptic" as most apt to describe the subtext.

Meanwhile, in the "30 years in the Legislature but what have you done for me lately?" category, we have this report from tomorrow's Dallas Morning News:

Several Democrats ridiculed [Sen.] Whitmire at a news conference.

"We've had enough of powerful, special interests, and we've had enough of puppets and liars," said Sen. Judith Zaffirini, D-Laredo.

[Sen. Eliot] Shapleigh [(D-El Paso)] alluded to Democrats' suspicion that Mr. Whitmire stands to gain personally or politically from his move.

"I have no doubt that he will be rewarded upon his return to Austin by those whom he serves," Mr. Shapleigh said.

This reminds me of a crazed, frenzied animal gnawing off its own leg to escape the teeth of a steel trap.  Unfortunately, I'm pretty sure the Ten Truant Texas Dems™ (at last! my alliterative impulses are satisfied!) are gnawing off the wrong leg.