BeldarBlog

Senior pundit psychosis

Bill Safire is a very good writer, even when (in Prof. Reynolds' apt description) he's "guilty of tilting too much toward the home team." One way you can tell he's a good writer is that he can boil his arguments down into a succinct one-sentence paragraph for his lede. Thus, I can do a reasonably thorough fisking of his entire op-ed in yesterday's New York Times entitled "The Jailing of Judith Miller" by just dealing with that single crisply written, badly wrong paragraph:

The Supreme Court has just flinched from its responsibility to stop the unjust jailing of two journalists — not charged with any wrongdoing — by a runaway prosecutor who will go to any lengths to use the government's contempt power to force them to betray their confidential sources.

"The Supreme Court has just ...":  This part's okay.  The ruling in question (at page 10 of the linked .pdf file) indeed came from the Supreme Court on Monday — buried among dozens and dozens of other such rulings, all of them denials of petitions for writs of certiorari.

"... flinched from its responsibility to stop ...": Safire knows, I'm sure, that for this (and most other) types of cases being appealed from the federal circuit courts of appeals, the Supreme Court's jurisdiction is discretionary, not mandatory. The Supreme Court's "responsibility" is not to right every individual wrong; it cannot possibly hope to do that. Rather, the Supreme Court's "responsibility" is to avoid wasting its resources on cases that have been correctly decided under its existing precedents. The decision in question here was precisely such a case, as all three judges from the D.C. Circuit had agreed and, before them, the federal district judge had ruled. The accurate description of what the Court did on Monday has nothing to do with "flinching" unless you think that word includes the Court declining to overrule its own prior decisions via a case whose factual pattern presented a spectacularly inappropriate vehicle for doing so.

"... the unjust jailing of two journalists ...": Two journalists are indeed involved, and they will indeed go to jail now unless they very promptly "purge" themselves of civil contempt by complying with the federal courts' order. The keys to the jailhouse door are in their own hands. "Justice" is arguably in the eye of the beholder, of course; but if one accepts the proposition that long-standing law, consistently applied, leads to justice, then there is absolutely nothing unjust about these two journalists being required to abide by that law.

"... — not charged with any wrongdoing — ...": The two journalists have not been charged with any independent crime themselves, nor does it seem likely that they will be. They have been charged, and found guilty of, "civil contempt" — the willful and deliberate refusal to comply with a lawful order of a court that has jurisdiction over both them and the subject matter (here, a grand jury's deliberations and a federal prosecutor's efforts to gather evidence so that he and it can fulfill their joint duty to determine whether a criminal indictment should be returned). Most folks would characterize thumbing your nose at a lawful court order as "wrongdoing." So does the law, which is why it permits judges to punish that act by putting the nose-thumbers in jail and fining them.

"... by a runaway prosecutor ...": This characterization is so over-the-top that Ms. Miller's own lawyers never dared argue it, nor even suggest it. Rather, they conceded, as they or any student of the law must, that prosecutors should and do have broad discretion in investigating whether a crime has been committed. They could not prove that this prosecutor had strayed outside his discretion, nor even articulate a coherent argument to that effect. Making this argument would have amounted to lying to the Court; it would have been so badly wrong as to be unethical, and certainly would have destroyed any shred of credibility those lawyers might otherwise have hoped for, to the detriment of their client. Mr. Safire, as a nonlawyer pundit, is of course under no such constraints, and runs no such risks on a client's behalf.

"... who will go to any lengths to use the government's contempt power to force them ...": This is not only over-the-top rhetorically (and a very tired cliché unworthy of a wordsmith like Mr. Safire), but demonstrably untrue. This prosecutor has, in fact, demonstrated an abundant willingness to compromise, for that's exactly what he's done with all the press sources he's subpoenaed except for Judith Miller and Matt Cooper/Time. Everyone else quietly folded their tents and cut a deal; and indeed, the latest press reports suggest that Time, at least, is in the process of cutting a deal even now that will permit them to turn over notes in lieu (at least for now) of Mr. Cooper having to give live testimony. If the prosecutor can be faulted, it's for being a softie — for taking less than what every single court and every single judge who've ruled on this case have agreed that he and the grand jury are entitled to get.

"... to betray their confidential sources ...": Inherent in the concept of "betrayal" is the notion of choice. Neither these reporters nor their "confidential sources" could reasonably have believed that the reporters would have a choice to withhold evidence in response to a lawful subpoena issued in connection with a lawful grand jury investigation. The law has always been against them. Certainly Ms. Miller and Mr. Cooper have done all that any source might reasonably hope or expect them to do to protect that source's confidentiality — they've fought, kicked, screamed, and dragged their heels for months and months, at the cost of hundreds of thousands of dollars in legal fees, all the way to the Supreme Court in an attempt to change the law that has always been against them. Only if one adopts a lawless frame of reference can one argue that compliance with the federal courts' orders is a betrayal; it's a betrayal in exactly the same sense that a Mafia informant "betrays" his mob bosses, i.e., through submitting to the law. Maybe the guys at the NYT have been watching too many reruns of The Sopranos and they think that people who flout the law are the good guys now.

Bill Safire, I know you know better than this.

The rest of Mr. Safire's op-ed is likewise filled with fundamental misconceptions that simply ignore reality. For example, he claims that "[e]vidently no such serious crime took place," for which his supporting statement is that "the prosecutor, Patrick Fitzgerald, admits his investigation has been stalled since last October." Duh. The reason that the investigation has been stalled, Bill, is because that "go-to-any-lengths prosecutor" first exhausted every other alternative to forcing press sources to testify, giving Judy and Matt a degree of deference that the law does not require and that nobody else gets the benefit of. And ever since then (last October), Judy and Matt have literally stopped the show.

The point of a grand jury investigation is to find out whether there are grounds to believe that a serious crime took place. But Matt Cooper and Judith Miller have prevented this grand jury and this prosecutor from doing that. We won't actually know, of course, whether a serious crime has in fact been committed until after someone's been indicted, tried, convicted, and has exhausted any appeals. And it may be that the end of the process, in its natural progression, will come far sooner than that — if, for example, the prosecutor decides based on all of the evidence that he ought not ask for an indictment, or if the grand jury refuses his request to return one. But it's intellectually dishonest — way beneath someone like Bill Safire — to forget these most basic facts about how the criminal justice system has always, always worked.

From intellectual dishonesty, though, Mr. Safire progresses to just plain silly:

The judge should resist the prosecutor's pressure for coercive, lengthy and possibly dangerous confinement. Judy won't crack and should not be made to suffer.

Now that's a genuinely novel defense: it amounts to saying, "My friend Judy is such a scofflaw, so incorrigible — so far above the law — that she should be exempt from any consequence for breaking it." The ghost of Mr. Safire's old boss, Richard Nixon, is no doubt saying to himself, "Why didn't I think of that argument?" (Except, actually, he sorta did; it's just that he, unlike Mr. Safire, realized that when the Supremes ruled against him, the jig was up.)

It's one thing to argue that Congress should consider passing some sort of federal shield law. That's an argument I don't agree with, but I certainly would agree that it can be made in good faith by serious people (although I continue to think that this case is an incredibly, laughably weak example to advance in support of the need for such legislation). But when you argue that Judith Miller transcends the law, that she's entitled to ignore it, and that her personal beliefs allow her to do any damn thing she pleases in the holy name of journalism, lest she be subjected to "coercive" and "possibly dangerous" time in a federal pokey — well, that's not an argument that can be made in good faith by a serious person.

If you're consistently that disconnected from the real world, the docs tend to conclude that you're psychotic. And as much as I admire and respect Bill Safire, I have to conclude that on this issue, in this particular op-ed, he is psychotic. Fortunately, the only danger is to Mr. Safire's reputation. Still, I genuinely wish him a prompt and thorough recovery.

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UPDATE (Fri Jul 1 @ 9:20am):  Time Inc. has indeed agreed to hand over Cooper's notes. As of the moment, though, it appears that everyone at the NYT is still sharing Bill Safire's Kool-Aid.

A Denver Post editorial condemning Time Inc.'s decision inadvertantly gets something exactly right:

On Wednesday, outside court, Cooper told reporters that he hoped the magazine wouldn't turn over the requested documents. It was his word that was at stake. Shame on Time Inc.

That middle sentence is correct, although I'd edit it to say, "It was only his word that was at stake" — not the First Amendment, and not some legal right. Cooper and Miller gave their word to do something that the law does not permit. They've defied the law and done their best to try to change it, but they failed. Now their "word" must give way to the law. Shame on the Denver Post and the New York Times for failing to recognize as much.

When Alabama jurist Roy Moore refused to recognize and comply with a federal court order that was subject to no further appeals, then-state attorney general (now Eleventh Circuit Judge) Bill Pryor personally handled the disciplinary proceedings to remove him from the bench. But there is no such procedure to remove similarly defiant journalists or publishers from their positions.

There is, however, a jail cell allocated for Judith Miller. Perhaps she'll go the route of martyrdom with the NYT's support and encouragement. Perhaps Bill Safire and the Denver Post and others will continue to delude themselves, and continue to try to mislead the public by shouting "First Amendment!" Perhaps the District of Columbia federal detention facilities will become the "next Gitmo" or the next "gulag for our times" in their breathless nonsense.

My guess is that Floyd Abrams is tearing his hair in frustration this morning at his client's stupidity. (His cert petition was actually very good, and reflected a far better understanding of how to push the right buttons to get Supreme Court review granted than the parallel petition filed on behalf of Cooper and Time by their new lawyers, but the prosecutor's response skillfully defused even Abrams' attempts to make this case "cert-worthy.") At this point, though, I'm sure that Abrams' advice to Miller and the NYT has been that their choices are to comply; to try to cut a deal or to satisfy the prosecutor through partial compliance; or to defy outright the federal courts, with fines and jail time as the certain and immediate result. Having given that advice, Abrams will have left it to his clients to decide among these alternatives, as a lawyer must.

But I'll shed absolutely no tears for Judy in jail. If she continues to defy the courts — all of them, from the bottom to the top of the federal system now — she'll richly deserve to be there. I cannot but scoff at a scofflaw pretending to be a martyr.

How 'bout them Longhorns?

This is what the good folks of Austin will be seeing in the sky tonight:

Wish I could be there to see it, but I feel good just knowing it will be there. Congratulations to the Texas Longhorn baseball team — 2005 National Champions!

Beldar's tips on applying for judicial clerkships

Prof. Eugene Volokh has solicited knowledgeable comments and recommendations about the process of applying for judicial clerkships, and his readers have left some excellent ones there already. I started writing a comment there, but (as usual for me) it quickly grew to the point of being abusive of another blogger's bandwidth. So I've left a link there, and posted here instead with my own recommendations directed to law students who are considering applying for judicial clerkships.

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My perspective on this subject is as a practicing trial lawyer who was privileged to serve as a judicial clerk 24 years ago for United States Circuit Judge Carolyn D. King. She was then in her second year on the bench, but is now the Fifth Circuit's Chief Judge. (And yes, I'm really proud of her!)

I would expand considerably on Voiceguy's recommendation in the comments to Prof. Volokh's post that you make aggressive use of professors at your own law school. Don't just talk to your "key professors." Look at your law school's entire faculty roster and make a list of which faculty members were themselves law clerks, who they clerked for, and when. De-select from your resulting list those faculty members who clerked for judges to whom, for whatever reason, you'd never consider applying. Even if you haven't had a class with a given professor and he/she doesn't know you from Adam, this is a really good self-introductory line: "I'm applying for judicial clerkships and I wonder if I could make an appointment to talk to you in your office for a few minutes about your own clerkship with Judge ___ in 198__?" If you get an encouraging response, the follow-up line is, "Could I also show you my resume and cover letter to get some tips from you about how Judge ___ might react to them?" (You always, always want to leave a copy of your resume in the hands of as many potential references/relayers of side-channel information to judges as possible.)

Then, during your interview with your new contact person/info source, if you feel comfortable based on the quality of the feedback you're getting, follow up with: "Would you be uncomfortable if I mentioned in my cover letter that one of the reasons I'm applying to Judge ___ is because of the wonderful first-hand report of your clerkship that you've given me?" Lots of profs who'd be uncomfortable giving you permission to list them as full-fledged references — just because they don't know you well enough to have an informed opinion sufficient to actually vouch for you — will nevertheless be perfectly happy for you to simply mention their names as admirers of the judges for whom they clerked.

Another good question to ask in these pre-interview interviews with ex-clerks: "If for some reason you hadn't been able to clerk for Judge ____, who else would you have liked to clerk for?" Again, this can garner real information for you, and you can put in your cover letter to those judges, "Prof. ___ at my law school recommended that I consider applying to you, based on the respect he gained for you during his own clerkship with Judge ___."  Maybe that's trivial, but it's at least something else to take your submission out of the "mass-distributed form-letter application" stack.  It beats the heck out of "I got your name out of the list at the front of a recent volume of the Federal Reporter, Third Series," which is what many judges suspect has happened.

Run this same drill with lawyers at law firms you've worked for, or other practicing lawyers with whom you've had some nontrivial contact. (They're likely to be more flattered, and generous with their time, than law school profs.) See who's had clerkships and chat them up a bit, even if you didn't work directly with them. And you can use the same self-introductory and follow-up lines mentioned above.

These sorts of contacts can be genuinely educational for you. They're flattering to the people you're making the inquiries of. If you make a really good impression, they could lead to your contact person — who's likely to be rooting for you if for no other reason than you're at ___ Law School or you've worked at ___ Law Firm — placing an unsolicited phone call or dropping an unsolicited note in the mail to his/her judge, which absolutely, positively is likely to make your resume leap out of the judge's stack. And when you do get an interview with a judge, you'll have a ready-made answer for this common question: "Why did you apply to me/my court in particular?" (Although you probably should have included that info in your cover letter, this is still often a topic of follow-up discussion in interviews.)

I strongly concur with Prof. Volokh's commenters who've recommended that you consider applying to senior status judges. A law school classmate of mine clerked for a senior status Fifth Circuit judge down the hall from my own judge. Under then-existing Fifth Circuit internal procedures, his senior status meant that he ONLY heard cases that had made it to the oral argument calendar — and he didn't have to fool with summary calendar cases (which by definition tend to be more routine) at all. If his own judge ran out of work for him to do and he got bored, he'd walk up the hall and volunteer his services on a temporary basis to MY judge, who was delighted to have the help. The biggest downside re senior-status judges may be the increased risk that you'll have accepted a clerkship (and thereby dropped out of the market), only to find, when it comes time to serve it, the clerkship is no longer available (due to unplanned-for retirements or vacancies). The second biggest downside is that, depending on local procedures, senior-status judges may not participate in en banc proceedings, which are lots of fun for clerks. (One of the two opinions I'm most proud of assisting my judge on was an en banc securities law decision from the old Fifth Circuit, with 25 active-status judges participating; our chambers was at the center of the court politics over that case, and they were particularly interesting because the then-Chief Judge of the old Fifth had written the panel opinion that was being overturned by my judge's opinion for the en banc majority. That was just way cool for a 22-year-old kid from Lamesa, Texas.)

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One last point, for what it's worth: I acknowledge their arguments, and I appreciate that not everyone has a choice. But I've never been particularly persuaded by those who assert that "You'll learn more about the 'real world' in a trial court clerkship than in an appellate court clerkship." You'll have the rest of your career in the "real world." And while working for a trial judge might teach you how to be a trial judge, working with trial lawyers can definitely teach you how to be a trial lawyer.

But unless you end up as an appellate judge yourself someday, this post-graduation clerkship is going to be your only chance to get an appellate court clerk's unique and deep insights into how law gets made at an appellate-court level, not just by your judge but also by the judges with whom he/she works. At your appellate court clerkship's end, you'll not only understand the appellate process better, but you'll have learned a whole lot more law than you knew before — including all sorts of substantive law, plus appellate procedures, plus trial court procedural law (which you'll have to constantly look up just like the trial court clerks do). Writing (or helping write) opinions is fabulous practice for writing persuasive trial court briefs, and you'll have written (or helped write) more opinions than you would have had you clerked for a trial court. You'll have developed a keen appreciation for the need to preserve error in the record for appeal if you do end up becoming a trial lawyer; standards of review, both trial and appellate, will be second nature. You'll have learned how to draft proposed findings and conclusions that are more likely to be bulletproof on appeal; trial judges recognize these when they see them, and are genuinely grateful to get them, but their own clerks may be less well equipped to draft them. And even though your exposure to trial lawyers as an appellate clerk will have only been through reading transcripts rather than through personal observation, you'll have read a WHOLE lot of trial transcripts — probably a much bigger volume of Q&A than a trial court law clerk gets to read or watch live — from which you can steal (or learn to defend against) a lot of tips and tricks.

My own Fifth Circuit clerkship was in many ways the best and most valuable year of my career, and probably the best job I've ever had. And every day of my subsequent professional life, I've used the skills — particularly the writing skills, but others as well — that I honed during that wonderful year.

You know you're a wonk when ...

... as just happened to me, your TiVo decides (based on your recent viewing patterns) to record C-SPAN's coverage of the U.S. Senate among its "Suggestions."

Does Biden's plagiaristic past preempt his presidential prospects?

InstaPundit Glenn Reynolds writes today of Joe Biden's non-coy declaration of his intention to seek the Democratic Party's presidential nomination in 2008 (hyperlinks in original):

WITH JOE BIDEN RUNNING FOR PRESIDENT, we're likely to hear more about the rather lame plagiarism scandal that sunk him in 1988.

You can read a defense of Biden in that role, from my book (with Peter Morgan), The Appearance of Impropriety, if you like. I think that Biden was shafted by the Dukakis campaign, with help from the press, and that the whole flap was silly.

Lest you think Prof. Reynolds is a Biden supporter, I must also note that his post goes on to argue that Sen. Biden's candidacy "ought to have been sunk" based on substantive positions he's taken on legislation in the past and his performance as a senator. However, having not only read the chapter excerpt from his and Mr. Morgan's book that Prof. Reynolds links, but having actually bought and read the entire book, I felt semi-qualified to respond to his bit of instapunditry on the specific topic of Sen. Biden's plagiaristic history.

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To round out my research before counterposting, I turned to every blogger's best online friend. And in an ironic coincidence, I promptly found one online resource — an opinion piece written by a journalist-pundit whom I like and respect, and with whom I've occasionally traded emails — which appears to have incorporated, without attribution, a one-paragraph description of Sen. Biden's 1988 campaign implosion that appeared in a second online resource (apparently published some years earlier) almost word-for-word.

Was this more or less consequential than Sen. Biden's well-publicized lifting of campaign speech language from British Labor party leader Neil Kinnock and other, previous examples of Sen. Biden's "stressless scholarship"? I admit to a pre-existing bias, but I would still argue that it's substantially less consequential. In all likelihood, my pundit friend had begun his writing by gathering background facts on the internet; perhaps he cut-and-pasted the paragraph into his notes, lost track of the original source, and/or forgot that it was a direct cut-and-paste, rather than his own summarization, when that paragraph made its way into the factual predicate of his own opinion essay. The facts summarized in that paragraph are essentially undisputed; the language used is unremarkable, comprising crisp but not soaring prose. The essay ought to be judged based on the merit of the opinions expressed, and its writer isn't running for president.

And yet: That pundit's reputation and credibility will inevitably affect the way his opinions are received and perceived. His reputation and credibility are in part based upon his record for accuracy and integrity. So yes, he should have included an attribution, or else have been more careful not to lift even this noncontroversial material wholesale. It appears that he was, at a minimum, very sloppy on this occasion. And sloppy may be excusable, but it's still not good.

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I agree with a great deal of the Morgan-Reynolds book — a central premise of which is that the more-or-less continuous post-Watergate frenzy over public ethics has unjustly flattened the moral landscape and led to the trivialization of genuinely bad acts. I also agree — and it would be hard for anyone to dispute, I think — that Sen. Biden's 1988 campaign was the victim of the Dukakis campaign's very hardball primary politics. And even had he not been caught in them, Sen. Biden's  bad acts in lifting some moderately well-crafted phrases from Kinnock's campaign speeches into his own, or in lifting five pages from a law review article into his own law school class submission, or his exaggeration of his academic record weren't going to actually win him any elections, or confer any substantial advantage upon him as a politician. Yes, there's a pattern; but it's a pattern of small-scale thefts, not grand larceny. And I emphatically agree with Prof. Reynolds that Sen. Biden's substantive record and political positions more than suffice to make him an unattractive candidate (although in every instance, he's been pandering to a constituency who will almost by definition disagree with that assessment).

Still, I can't quite swallow Prof. Reynolds' near-dismissal in his post today of Sen. Biden's past pattern of plagiarism. Rather, I think that the pattern does indeed speak to Sen. Biden's fitness for high public office. But it's not relevant because it shows that he is irredeemably craven or immoral. No, the real problem with Biden is not the alleged sin but the obvious stupidity it bespoke.

That last sentence I've lifted almost verbatim from the Morgan-Reynolds book (at page 146), by the way. (The "bespoke" is my own; Glenn's rarely that stuffy.) And to make my rhetorical point — here, that Prof. Reynolds himself has previously recognized the same significance of the Biden plagiarism record for which I'm arguing here — I absolutely must include an attribution!

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When I include that attribution, a diligent scholar can learn that Messrs. Morgan and Reynolds were, in turn, only quoting — with full and footnoted attribution — a Chicago Tribune column from September 1987 by Jon Margolis entitled "For Joe Biden, as with Hart, It's the Stupidity that Hurts." That diligent scholar will further find that in my near-quote of the sentence in which Morgan and Reynolds quoted Mr. Margolis, I've omitted an important qualifier: The full sentence written by Morgan and Reynolds reads (anally compulsive bracketed comma mine, but double quotation marks and footnote superscript in original):

The real problem with Biden, we were told[,] "is not the alleged sin but the obvious stupidity."²¹

So in fact, the sentiment I've attributed to Prof. Reynolds — arguably inconsistent with his post today — isn't necessarily attributable to him or to Mr. Morgan, but to Mr. Margolis!

When writing about ideas, and in particular other people's ideas, then, proper attribution can become very important indeed — not just so that credit is given when due, but so that conflations or misstatements can be identified and exposed more readily. When Prof. Reynolds is writing — whether for his InstaPundit blog or his MSNBC column, or for a popular press book, or for a law review article — his intellectual honesty obliges him to compulsive attribution. And I feel the same compulsion to "show my own work" and distinguish it from others' work; as I've written before, I think this instinct and habit is commendably common among bloggers.\^*/

I don't expect politicians to necessarily share in that compulsion, much less to adhere meticulously to standards for academic publications. But I, and I think the American public, do insist that presidential-caliber politicians not be consistently, self-destructively stupid in the minor transgressions that we might otherwise forgive.

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\^*/Then why, you may ask, have I not linked the two online sources I referenced in the beginning of this essay? It's because I'm speculating, and not making an accusation; I could be mistaken; and I've emailed the pundit in question, with a link to this post, to point out the similarities in the language in case he has an explanation that hasn't occurred to me.

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UPDATE (Mon Jun 20 @ 5:20pm): The unnamed pundit referenced near the beginning of this essay responded promptly and graciously to my emailed inquiry. He acknowledged the irony not only of his own failure to credit his original source in writing about Biden's plagiarism, but additional irony from the fact that his source was someone with whom he was well acquainted and whom he'd have been very happy to credit. He agrees that he was indeed sloppy with respect to the paragraph in question, and I'm quite certain that his self-chastisement now that it's been brought privately to his attention will prompt him to avoid this particular sin in the future. Given all that and the inconsequential content of this particular paragraph, my own judgment is that no good purpose would be served by my being more specific as to names or providing direct links. If he should ever run for president, however ....

Having the guts to shut up

Knowing when to shut up takes excellent judgment, confidence in oneself, and confidence in the judge or jury before whom one is arguing.

But when one has those qualities and the guts to apply them, it's sublime. And the judges and juries are genuinely grateful.

Why'd some rabid Dems vote for Griffith, and "moderate" Dems against him?

Edward Whelan, writing on NRO's Bench Memos blog, points to peculiarities in the roll-call vote on the confirmation of Thomas Griffith to the United States Court of Appeals for the D.C. Circuit:

It should come as no surprise to learn that Bayh, Byrd, Johnson, Landrieu, and Salazar were on one side, and Biden, Dodd, Durbin, Levin, and Schumer on the other. But what was a surprise — to me, at least — is that the former set of five more moderate Democrats voted against Griffith’s nomination, and the latter set of five very liberal Democrats voted for the nomination.

I'm by no means "closer to the Griffith confirmation battle" than Ed, but I'm going to hazard a guess as to an explanation anyway.

The main objection to Mr. Griffith's nomination was his bar status — his arguable practicing of law in Utah without a proper license there, and his neglect in ensuring that subordinates had properly paid the fees to maintain his license in the D.C. Bar.  Although I was briefly on an unauthorized practice of law committee of the State Bar of Texas some years ago, I'm not a real expert in that subject. But from what I know of it and of Mr. Griffith's situation, I'm inclined to accept that since he wasn't regularly appearing in court in Utah, and since his "office practice" as an in-house university lawyer there was conducted along with licensed Utah lawyers, the first criticism isn't valid. I think the second is a far more troubling problem, however, given how long it persisted. It was a serious lapse in professional diligence on his part. But I think it's ultimately excusable in, and outweighed by, the context of his entire career and record, and I'd have voted to confirm him were I a senator.

Whether valid and outcome-determinative or not, however, these criticisms aren't issues of politics, ideology, and judicial philosophy, but of personal competence and professional character. If one credits Bayh, Byrd, Johnson, Landrieu, and Salazar with principled concern for personal competence and professional character, that could explain their votes.

No one, however, would ever be confused into believing that Biden, Dodd, Durbin, Levin, or Schumer care much about anything except their party's success on matters of politics and ideology. Their votes were cynically political, a recognition that the Griffith fight was a loser for their side; and as such, solely to reduce the public perception of monolithic Democratic opposition to Dubya's judicial nominees, they threw their votes to the "aye" side without regard to Mr. Griffith's individual merits and problems.

My instinct toward snark as a blogger counsels against ever ascribing principle to any political opponents. But that would explain the "moderate" Democrats' votes. Snarky instincts and my willingness to sometimes rise above them notwithstanding, however, you'll never persuade me that the normally rabid group came to a measured, sincere conclusion that Mr. Griffith is duly qualified and that they therefore should put aside partisan politics to confirm him. That a rabid dog didn't bite one potential victim does not mean the dog has been cured, even temporarily, of its rabies.

"If we gang-mimed the guy ..."

James Lileks is the snark-master. Good snark is built on extreme sarcasm that reveals underlying truths, though. And so, as part of a post in which "the true horror of American Torture has been revealed," Lileks correctly explains that 9/11's would-be-20th-hijacker Mohammed al Qahtani "was broken by the concise application of cultural insensitivity." Read the whole thing, but not while drinking any beverages capable of nasal irritation.

A critique of Justice Souter's Miller-El v. Dretke death penalty opinion (and a Beldar war story about picking juries)

I'll tell you what's wrong with the United State Supreme Court's 6/3 decision today in Miller-El v. Dretke. And if you understand how our state and federal trial and appellate courts are supposed to work, you'll see that it's wrong — regardless of whether you support or oppose the death penalty.

And, because I'm a crusty old trial-lawyer writing for a blog instead of a law review, I'll tell you a war story to help make my point.

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Thomas Joe Miller-El is black. He was convicted of capital murder by a Dallas County jury and sentenced to death. Today's majority opinion, written by Justice David Souter, held that he's entitled to federal habeas corpus relief — essentially a federal order commanding the State of Texas to either retry or release Mr. Miller-El — on grounds that the prosecutors impermissibly used racial discrimination in exercising their peremptory jury strikes, with the result that some black potential jurors weren't selected. The resulting jury that convicted and sentenced Mr. Miller-El comprised seven white females, two white males, and three other males who were, respectively, black, hispanic, and Filipino (although you must turn to Justice Thomas' dissent, in which Justice Scalia and Chief Justice Rehnquist joined, to find that out.)

Let me say up front that I do not know, one way or the other, whether these prosecutors in this particular case were or were not acting out of racial bias when they made their peremptory jury strikes. Plausible arguments can be made that they were — and such arguments fill almost all of Justice Souter's 33-page opinion. Plausible arguments can be made that they were not — and such arguments fill almost all of Justice Thomas' 36-page dissent. My criticism does not at all depend on which of those arguments is true, or more true, or more likely correct than the other, in this particular case.

Mr. Miller-El's arguments and Justice Souter's opinion were based on a 1986 Supreme Court decision about race and the jury selection process, Batson v. Kentucky. To say that Batson itself has spawned confusion and chaos — in both criminal and civil cases, state and federal, trial and appellate — would be a considerable understatement.

How bad is the mess? Well, I've read Batson, and I've read some (but only a fraction) of the appellate precedents that have tried to interpret and apply it. Yet I picked a jury in a civil case in Harris County District Court back in March — and I have absolutely no idea whether anything I did or didn't do in that jury selection, or that my opponent did or didn't do, violated Batson.

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That's because like every other trial lawyer, in deciding how to exercise peremptory strikes on my client's behalf, I relied in that case upon my observation and intuition and experience. But all of that was filtered through and undoubtedly affected to some extent by a whole bunch of stereotypes. Sex-based stereotypes; age-based stereotypes; class and occupational stereotypes; geographic stereotypes; religious stereotypes; grooming stereotypes. And yes, racial stereotypes.

I'm pretty sure my opposing counsel did too. But I don't even understand fully what stereotypes I used and how much weight I gave each of them, so I certainly can't claim to know that about my opposing counsel's exercise of discretion.

Now, in this particular trial, I was representing the plaintiff in a car-crash personal injury case. This was a very simple case. Neither side was using "jury consultants" or "shadow jurors"; we hadn't done any demographic studies or taken any polls or conducted any "focus groups." I've done those things in big cases, though, and I know that what they would have produced — while perhaps very impressive and polished — would ultimately have been a series of guesses and hunches, partly also based on stereotypes.

The way civil juries are selected in Houston, each side submits its list of peremptory strikes simultaneously, and the clerk seats the first twelve potential jurors who haven't been either excused for cause (by the judge) or stricken peremptorily (by either side). So it's quite common for there to be "double-strikes" — jurors whom neither side could persuade the judge to excuse (and may not even have attempted to do so), but whom both sides "spend a strike" on.

I used one of my side's strikes on a well-dressed white female bank manager because — according to the "conventional wisdom" and trial-lawyer lore and stereotypes — she was a "model defense juror" for a PI case. But I only had six strikes to use, and there were several other "model defense jurors" whom I didn't strike. So why her?

I just didn't like the way she looked at me. Sorry, that's the honest, best, and most complete answer I can give. Would she have turned out to be a "defense juror"? I have no idea, and neither does anyone else, including her.

It turned out, though, that my opposing counsel had also stricken her. "Why'd you strike Number 14?" I asked him. "She's a model defense juror!" I said.

"Yeah," he said, "but I just didn't like the way she looked at me."

One prospective juror in the front row was a tall young man, white, late twenties, with a long straggly beard and long hair down to the middle of his back. He was wearing a t-shirt, jeans, and sandals. Single, no religion listed. "Occupation: music sound engineer." Fidgety; wouldn't look at either lawyer or any of the parties, just stared at his lap. Very close-mouthed in response to questions. The instant short-hand reference my team used for him — sorry, this is crude and likely to offend some — was "Jesus." When going through the list with my team to pick our strikes, I said to them, "We don't need to spend any time talking about 'Jesus,' he's a certain defense strike, and based on his demographics and conventional wisdom, he's probably a pretty good plaintiff's juror anyway." So we skipped him.

My opponent didn't strike "Jesus," though, and he made it onto the jury. I asked my opponent, "Why didn't you strike 'Jesus'?" (My opponent instantly knew who I meant.)  "Dunno," he answered, "just a feeling."

"Jesus" became the jury's eventual foreman. Interviews with other jurors after the verdict suggest he was a big tort reformer, intensely skeptical of all personal injury plaintiffs, and very articulate in persuading the other jurors to return a damages verdict that I thought was shockingly tight-fisted by historical Harris County standards.

I didn't have any reason to think that the racial composition of the jury was going to be particularly important, given the parties and issues. But yeah, I factored that in, to some extent, in deciding how to exercise my strikes. How? I dunno, and I couldn't tell you if I tried. I'm certain that my opponent did too, but I can't tell you how, and doubt he could either.

So did race have any impact on this absolutely garden-variety civil trial? I dunno. I tend to think not, but I can't absolutely exclude that possibility. But nothing happened to tickle my radar; neither I nor my opposing counsel mentioned anything about the race of anyone to each other or the judge, much less trying to mount a "Batson-challenge" to each other's use of our peremptory strikes.

I can tell you that this jury was unique in my experience in one way, however: twelve eleven men ended up being seated.\^*/ I was happy with that at the time, based on the "conventional wisdom" that women can tend to be harder on, and less sympathetic to, other women — and my client was female. With this particular jury, though, the "conventional wisdom" didn't pan out — and maybe that particular piece of wisdom is just a load of crap.

Was I disappointed in this particular jury's verdict. Oh, yes, I was indeed — we won, expected to win, and deserved to win on liability, but I thought these jurors were really miserly (based on my wholly subjective comparison to jury verdicts in other cases I've either tried or seen tried). But were they "unfair"? I don't have any reason to think so. Was the trial fair? Oh, yes — it was a remarkably clean trial, with experienced lawyers on both sides who weren't trying to break any of the rules, and an experienced judge who appreciated that and therefore was able to let us try our cases pretty much the way we wanted to. The whole thing took a day and a half, start to finish. Neither side had any legal grounds for an appeal — not based on jury selection, or evidentiary rulings during the trial (there were only a couple of those that were even disputed, and we worked out compromises on both), or on the court's charge to the jury. I was disappointed with this result, but I certainly can't say that "justice was not done."

**********

I'm not saying that this trial I've just described was "typical" or in any way "uniform." I'm emphatically not denying that historically, trial lawyers everywhere, in both criminal and civil cases, have used and continue to use race and racial stereotypes. I'm not saying that Batson is "bad law," at least in principle. And I repeat, I don't know whether the prosecutors who handled Mr. Miller-El's case stepped over the appropriate line.

But I'm pretty sure they don't know for sure either — didn't at the time, don't know now. I'm quite sure that anyone who operates exclusively on the basis of racial stereotypes or any other "conventional wisdom" is going to do a lousy job of jury selection because whatever "art" is involved in exercising peremptory strikes requires more sensitivity and open-mindedness than that.  And my strong (albeit entirely subjective) sense and my personal experience over the last 25 years has been that those stereotypes have become less and less valuable as predictors of jury outcomes.

But back, at last, to Judge Souter and the proper role of the United States Supreme Court. That Court does not exist to right individual wrongs — not even in death penalty cases. Anyone who thinks that the Supreme Court could do that, or even approximate doing that, is a fool. The Supreme Court's job is to announce the rules for other judges, and for the lawyers who practice before them, to follow. And friends and neighbors, the Hon. David Souter's opinion for the Court in Miller-El v. Dretke completely fails in that regard.

The Supreme Court's decision today means a lot to Mr. Miller-El and his lawyers, I'm sure, and I don't mean to mock or belittle him or them. But no lawyer or judge reading that opinion is going to have a clue what it means for any other case. Any time an appellate decision contains long, long quotes from the trial transcript and not many case citations, that's a pretty good hint that the decision will be of little precedential value. And that's almost all Justice Souter's opinion is.

That's not the only problem, though. Mr. Miller-El's case has gone up and down through the Texas trial and appellate court system, and then through the federal district court and the Fifth Circuit. But now the Hon. David Souter — joined by five other Justices — has looked at the record (some of which the Texas state courts never saw), and he's come to the conclusion that these particular prosecutors stepped over the line, wherever it is. And to do so, he's engaged in juror-by-juror, question-by-question, line-by-line second-guessing of the prospective jurors, the prosecutors, and the trial judge! So we read, for instance, this:

[Potential juror] Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecution's explanations for the strike cannot be reasonably accepted.

Are you kidding me? Here's a Justice of the U.S. Supreme Court deciding — years after the fact and on a cold written record — that a prosecutor must have been lying about his intentions because he deviated from the "conventional wisdom." You're damned if you stereotype; and now, you're damned if you don't.

Leave aside the fact that Congress passed a law specifically designed to prohibit the federal courts (including the Supreme Court) from doing that sort of second-guessing. (This point, regarding the Antiterrorism and Effective Death Penalty Act of 1996, is in my view the strongest and most appropriate argument in Justice Thomas' dissent. I think Justice Thomas also couldn't resist the temptation to get into the "I saids" and "He saids" with Justice Souter, but that's just not what the Supreme Court is supposed to do.) Completely apart from that statute, if any federal court should be doing this second-guessing at all, it should be the federal district court, with the circuit courts available to correct those occasions when a federal district judge has gotten something conspicuously and obviously wrong. For the Hon. David Souter to reach into the maelstrom, pluck out one case, and say, "I've come to a different conclusion from reading this record" is a misuse of the Supreme Court's resources. It certainly encourages every litigant to seek Supreme Court review. It diminishes, or at least randomizes, the roles of the federal district courts and courts of appeals. It's bad policy — whether you're for or against the death penalty. It's the kind of confusion about the proper role of the Supreme Court that you might excuse in a former appellate court justice whose job has been to do that sort of fact-specific review of the record; but it's been a long time since Justice Souter was in that job, and with due respect, he needs to rise above that role.

**********

And so I find myself in the unusual position of saying something nice about Justice Stephen G. Breyer. Justice Breyer concurred in Justice Souter's opinion, but also wrote separately and fairly briefly. And I think he, at least, "gets it" — he understands that regardless of the Court's good intentions, Batson has been and continues to be a disaster:

... Miller-El's challenge has resulted in 17 years of largely unsuccessful and protracted litigation — including 8 different judicial proceedings and eight different judicial opinions, involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary.

(The six being, of course, Souter, Stevens, O'Connor, Kennedy, Ginsburg, and Breyer himself — all on the Supreme Court, so their six votes count more than the other 16 votes combined.) He continues:

The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge. ...

... [Among other problems,] Batson asks judges to engage in the awkward, sometime[s] hopeless, task of second-guessing a prosecutor's instinctive judgment — the underlying basis for which may be invisible even to the prosecutor exercising the challenge. ... In such circumstances, it may be impossible for trial courts to discern if a "seat of the pants" peremptory challenge reflects a "seat of the pants" racial stereotype.

Now, Justice Breyer has to be cute here, because he's just signed on to Justice Souter's opinion which purports to have done the "impossible" — and to have done it better, in some mysterious way, than all of the lower state and federal courts did. I'd rewrite that last sentence just to state the obvious — it is impossible to do with any precision or predictability whatsoever.

Justice Breyer's proposed solution is to eliminate peremptory challenges altogether — which would mark a very, very radical change in centuries-old jury trial practices, civil and criminal. I think that would be a serious mistake. It would amount to a statement that "this part of the art of practicing trial law has been abused by some practitioners (although we can't come up with any rules that would let everyone agree as to when) — so we're going to abolish this part of the art." I'd hate to see that happen, because I believe that as whimsical and subjective as jury selection is, it still contributes in a mostly-positive way to that fuzzy goal we call "justice."\^**/

No, I'd propose something quite different. I'd propose that we keep peremptory challenges, but that we leave the prevention of their abuse virtually entirely to trial judges. They have broad, enormous discretion in all sorts of other fuzzy, subjective areas, subject only to restricted review by appellate judges. It's a sad historic truth that some trial judges used to be racists too, and that they failed to follow their instincts or uphold our common national principles; and to the extent that Batson has moderated those excesses, that's some justification for its past transaction costs (in terms of uncertainty and confusion). But the Supreme Court can't — can't, not even if it wanted to, not even if you think it should — be relied upon to fix these problems individually, not even in death penalty cases. If anyone should be allowed to second-guess how trial lawyers use their peremptory challenges, it should be the trial judges who've seen the faces, heard the tones of voice, and assessed everything that's happened using all of the soft, squishy, and invaluable subjective experience that accrues from presiding over many, many trials.

You can't take "seat of the pants" decisions out of the practice of law, folks. But having the Hon. David Souter serve as "tailor-in-chief," picking at decades-old threads in the crotch of someone else's pants, hurts rather than helps the system.

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

\^*/Rereading this, I realized that I misremembered this detail. It was actually eleven men and one woman — still unique in my own experience.

U 2 can B smart if U read The New York Times Magazine

Jeffrey Rosen sports degrees from Harvard, Oxford, and Yale, and he's a tenured Professor of Law at The George Washington University Law School. His short biography on that law school's website reveals that he's the legal affairs editor of The New Republic, and he's a contributor to The New York Times Magazine, The Atlantic Monthly, and The New Yorker (where he has been a staff writer). Clearly, this is a man so smart that he can choose to work and write only for institutions that include a capitalized indefinite\^*/ article as part of their names. I almost feel like I should refer to him as "The Jeffrey Rosen."

Prof. Rosen's latest effort is in today's The New York Times Magazine. In an essay called "Center Court," Prof. Rosen takes this data for his premise:

An independent poll conducted by Quinnipiac University found that 55 percent of respondents thought the filibuster should be used to keep unfit judges off the bench, as opposed to 36 percent who thought it should not... [And i]n the days before [what Prof. Rosen earlier has described as "the compromise reached by a bipartisan group of senators last month that defused, or at least delayed, a showdown on judicial filibusters"], a CBS News poll found that 68 percent of respondents said that Congress ''does not have the same priorities for the country'' as they do. By contrast, the Quinnipiac poll found that a 44 percent plurality approved of the way the Supreme Court is handling its job.

Now, although I never have attended Harvard, Oxford, or Yale, I do claim to have heard of them before. But I'm certain that it must be some deficit in my own education which prompted my puzzlement over Quinnipiac University. The power of Google has permitted me to learn this morning that Quinnipiac is "a community of more than 8,000 students, faculty and staff located in Hamden, Connecticut." And in the case of CBS News' poll in particular, I'm reminded of a bit of wisdom that I'm told is a part of the core curriculum at Harvard, Oxford, and Yale: "Even a blind hog can sometimes find an acorn." So let us presume and stipulate for purposes of my own essay this afternoon, gentle readers, that Quinnipiac University and CBS News are both trusted and respected institutions whose polling results, as quoted and compared by Prof. Rosen, may safely be taken as gospel — a sound basis from which to draw profound conclusions about the current state of the American polity, including its public's opinions of and relations to various branches of its federal government.

For that is what Prof. Rosen has done. He writes (boldface mine):

[I]t would seem that, on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O'Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid. Congressional Republicans and Democrats are pandering to their bases, wooing conservative or liberal interest groups that care intensely about judicial nominations because they're upset about the current direction of the Supreme Court. Meanwhile, the country as a whole seems to be relatively happy with the court and appears to have no interest in paralyzing the federal government over a confirmation battle that would do little to affect the court's overall balance — a battle that is likely to take place this summer if Chief Justice William Rehnquist steps down.

How did we get to this odd moment in American history, when unelected Supreme Court justices are expressing the views of popular majorities more faithfully than the people's elected representatives?\^**/

And he restates his conclusion a few paragraphs later, in case you missed it the first time:

[T]he conservative interest groups have it exactly backward. Their standard charge is that unelected judges are thwarting the will of the people by overturning laws passed by elected representatives. But in our new topsy-turvy world, it's the elected representatives who are thwarting the will of the people, which is being channeled instead by unelected judges.

Well, golly. This struck me at first as more than just a little bit odd, momentary or not. As I once heard the Chancellor of Harvard University say (or maybe it was the Dean of the Yale Law School), "I never woulda thunk it!" But lookie at Prof. Rosen's proof, friends and neighbors: not one, but two — two! — polls. One of them has a "plurality" — and that sure sounds to me like a bunch.

(I'd have looked up that word "plurality" on Google, but I got distracted by a sidebar in Prof. Rosen's article that quotes the results of another poll, this one by some outfit called Gallup, which sez that 16% of the public trusts the Supreme Court "a great deal," and 25% trust it "quite a lot." Another 38% trust it "some," sez this Gallup group. And 19% of Americans trust the Supreme Court "very little to none." This got me all confused into thinking that if you take five average Americans, two will give the Supreme Court a thumbs-up, and three won't. But I apologize for this diversion. Math isn't my strong suit, and certainly the clever editors of The New York Times Magazine wouldn't print a poll showing that the, umm, biggest single chunk (whatever that's called) of Americans only trust the Supreme Court "some" — certainly not in the very same article where Prof. Rosen has already proved that the Supreme Court and the whole danged American public are purty much exactly on the same wavelength.)

But the really important thing that Prof. Rosen has taught me from this logical exercise, gentle readers, is how you can take these poll results from Quinnipiac and CBS News and use 'em to prove even more. Now, I'm not quite sure how he gets there — maybe the editors trimmed out the math part — but Prof. Rosen warns us that if "the president and Congress may try to push the courts toward the extreme right to please their base," then

the Supreme Court, over the long term, could become just as much in the thrall of ideological extremists as the White House and Congress. And then the views of a majority of the American public might not be represented by any of the three branches of the United States government — an alarming prospect for the world's leading democracy.

I'm going to step way out of line here and criticize Prof. Rosen for one thing: He's figured out and proved, it appears, that the White House and Congress are "in the thrall of ideological extremists" and that neither of them represent the views of a majority of the American public! Now that's big news, it seems to me! It ought to be up at the top of his article, I'd say. And I think the editors of The New York Times Magazine should have left in the math parts where Prof. Rosen proves that a majority of the American voters last Nov. 2004 actually voted for John Kerry and the Democrats.

That leads me to one last thing I need to explain, though, so that Prof. Rosen's points will all be clear to you. You may have heard, from time to time, people talk about "polls" meaning those places where people vote in elections to pick presidents and senators and congressmen and such. Those aren't the same kind of "polls" that Prof. Rosen's article is based on. He uses the ones that really count — the ones from CBS News and Quinnipiac University. Don't get confused by that. If you'd been to Harvard, Oxford, and Yale and were a Professor of Law and wrote for all those "The" publications, you'd understand pretty much automatically that those "vote"-kinda polls, where everyone who's registered can cast a ballot, don't matter. And if you pay attention to them, you'll just get all confused, and then you won't understand that Sandra Day O'Connor and The Jeffrey Rosen know what you're thinking even better than you do.

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

\^**/I don't want to give away here the surprise answer that Prof. Rosen's come up with to this question, but I'll give you a hint: It's mostly due to the efforts of a former exterminator from Sugarland, Texas. But don't worry, because The Terminator will save the day in the end.

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

UPDATE (Sun Jun 12 @ 4:30pm): Andy McCarthy makes the same points I did, and some more, but with way less snark.

Beldar predicts strange bedfellows will gang-rape insurance company

I'm a cynic. But when I read this story — about giant United Healthcare urging its insureds to "save money" by literally cutting their prescription pills in half, and handing out "pill-splitter" devices to help them do so — I instantly imagined the strange bedfellows that will surely be combining in the near future to eat up all those "savings" and probably more:

Drug companies and plaintiffs' personal injury lawyers, soon-to-be partners who are asking themselves "Could we really be this lucky?" and "Are they really that stupid?"

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

UPDATE (Fri Jun 10 @ 10:25pm): Plindrome's and Xrlq's comments below alert me that I needed to be more clear as to my reasoning and, unusually for me, less terse. (Also I failed to mention a couple of additional bedfellows who will join in the gang-bang.) Plindrom writes, "Actually it can be more economical to buy a stronger dose and split it down to what you need." This is basically United Healthcare's purported justification.

But the determination as to exactly "what you need" — and the determination of who should determine that — are what will spawn litigation.

The conventional wisdom — which drug companies, pharmacists, doctors, and plaintiffs' personal injury attorneys will point out in unison and in four-part harmony — is that "what you need" is something to be determined only by a combination of professionals with appropriate medical and pharmacological training, judgment, and expertise. And those determinations must be made selectively and individually, those professionals will all tell you, based on each individual patient's individual diagnosis and condition.

This is scientific and medical gospel. And it may even be true. Regardless, I think that it will be accepted by 98 out of 100 juries as being true, in general.

Under that gospel, you, I, your friend, and all other laymen lack the necessary training, expertise, and judgment. And United Healthcare, despite its employment of folks wearing both green eyeshades and white coats, most emphatically lacks both those qualifications and the required opportunity to assess individual patients' situations.

Moreover, United Healthcare has a financial incentive that may not, and often likely does not, correspond with its insureds' needs. United Healthcare's across-the-board uninformed and inappropriate medical advice to its insureds will inevitably be interpreted as having been intended to line its own corporate purse at the direct risk of its insureds' health. (The "we were going to pass the savings along to our insureds and their employers" defense, even if sincere, will play poorly.)

People who take medications presumably suffer from diseases and conditions that prompt them to do so. A very large number of people who are close to dying (or experiencing further morbidity or disability) are taking medications of one sort or another. These people and their families comprise the pool of potential future plaintiffs.

The doctors and pharmacists and drug company scientists will mount the witness stands to tell juries that yonder widow's poor dead husband needed precisely X amount of drug Y each 12 hours — not roughly 4X divided roughly by 4, more or less at random. They will explain that coated pills cut into pieces and stored in steamy medicine cabinets lose their potency or have other unintended and unpredictable reactions. They will explain that the handy-dandy pill-cutters handed out by United Healthcare aren't adequate substitutes for their FDA-mandated and -inspected manufacturing, measuring, and packaging processes. They will explain that they had good, indeed compelling, scientific reasons to formulate the dosages and schedules they did. They will explain how it was entirely foreseeable that some patients won't have secured their physicians' and pharmacists' cooperation in prescribing and dispensing jumbo-sized dosages before the patients started cutting pills into pieces, so that instead of getting even roughly the intended dosages they only ended up getting a fraction of the intended dosage. They will explain how it was likewise foreseeable that many patients wouldn't just cut up the specific pills suggested by United Healthcare, but would instead expand the practice to ultra-sensitive medications.

And these witnesses will patiently and persuasively tell those juries that United Healthcare's encouragement that these witnesses' patients (United Healthcares' insureds) become their own doctor-pharmacists instead caused them to become the proximate cause of their own deaths and/or disabilities — including yon widow's poor late husband, whose risk of heart attack (or stroke or whatever-he-just-died-of) absolutely skyrocketed when the decedent started cutting up his own pills over his kitchen table or bathroom sink.

In some number of cases, these accusations may indeed be justified.

And even in those instances where the witnesses are guessing, or even guessing wrongly, there will doubtless still be lawsuits brought. Ultimately, in a substantial percentage of those, United Healthcare will end up paying substantial amounts of money by way of judgments and settlements.

There will be no savings in the long run because United Healthcare is painting a bulls-eye target on its own chest, virtually inviting blame for everything that can, could, or does possibly go wrong with its insureds' medications and health. It has money, making it a juicy target. And it's just gored the respective oxen of doctors, pharmacists, and drug companies — all of whom make rather more sympathetic and persuasive witnesses that United Healthcare's own personnel, whether they're wearing green eyeshades or white coats.

Add lawyers into the mix. "Heck," the lawyers will say during their closing statements, "United Healthcare might just as well have shipped bulk chemicals and mixing vats to their insureds so they could compound their own medications. That would be about as safe, and would have saved even bigger bundles of money."

I repeat: Can United Healthcare really be this stupid?

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

UPDATE (Sat Jun 11 @ 6:10pm): A reader emailed me with this link to a post in March by my blogospheric friend Ted Frank at Overlawyered, which reports that at least one California lawsuit challenging something similar being done by Kaiser was summarily thrown out of court. It's altogether possible that this emboldened UHC. I'll do some more digging into that case and update again with my conclusions, if any.

Three-judge federal panel again tosses Dem complaints about 2003 Texas Redistricting

I. Introduction

When it comes to congressional redistricting law, as compared to someone like Rick Hasen — a law professor who studies and teaches the subject, and blogs about it as well — I am, admittedly, a dilettante. Put another way, neither side in the on-going legal struggles over Texas' congressional redistricting has been beating down my office door to hire me, and instead they've preferred, quite appropriately, to turn to genuine specialists in this arcane-but-important legal discipline.

But one of my goals as a lawyer-blogger has been to try to simplify — to translate, if you will — the legal concepts and events of that struggle into language that a diligent and well-educated nonlawyer can understand. I'm also a pundit, though, with a self-admitted political viewpoint; and I readily admit that my interpretation and commentary on those concepts and events reflects that viewpoint. In short, while I've been trying in my many, many posts on the 2003 Texas redistricting to give a layman-intelligible explanation of what's been going on in the court challenges to the 2003 Texas redistricting plan, I've also been arguing for the legal and practical fairness of that plan. I don't defend partisan gerrymandering as being a wonderful thing in the abstract; but given that it exists, I've been defending this particular exercise of it as being both fair and legal.

At the moment, I'm rubbing my eyes after reading 58 pages of very, very dense and very, very carefully crafted legal prose: yesterday's decision by the three-judge panel to whom the United States Supreme Court sent back the Texas redistricting case for reconsideration "in light of" the Supreme Court's 2004 decision in the Pennsylvania redistricting case, Vieth v. Jubilirer. It's tough sledding, folks — it presumes a whole lot of pre-existing knowledge on the part of its readers that, quite frankly, even most lawyers lack.

Now, I don't fault the judges for this, because a written opinion that was both comprehensive and user-friendly would have run into the thousands of pages, given the ground that this decision tries to cover. This is definitely MEGO-inducing ("mine eyes glazeth over") stuff. So it's also no surprise that the mainstream media — for example, the Associated Press, the Houston Chronicle, and the Dallas Morning News — don't tell their readers very much more that's obviously meaningful besides who won (the Republicans, again) and what both sides said about the result (Dems: "Just a way-station on the way back to the Supreme Court"; Republicans: "This ought to end it.") Prof. Hasen provides his initial short (but substantive) take — definitely better than the MSM's reporting — here, but it's still "inside baseball" that presumes a lot of pre-existing knowledge (and reasonably so, given his blog's intended audience of professionals).

So once again, while I invite you to read it for yourselves, I'll plunge into the dense prose to try to tell you what I believe has happened. And then I'll tell you what I think of it, and what I think is likely to happen next.

II. Who was on the three-judge panel, and what did it do?

Yesterday's decision was from the same three-judge panel that initially rejected the Dems' legal challenge to the 2003 Texas redistricting in a 127-page decision that I blogged about in January 2004: United States Circuit Judge Patrick E. Higginbotham  (appointed by Pres. Ford to the district court bench, elevated by Pres. Reagan to the Fifth Circuit), and United States District Judges Lee H. Rosenthal (appointed by Pres. G.H.W. Bush)\¹/ and T. John Ward (appointed by Pres. Clinton).\²/

Yesterday's result — Dems lose — was the same. But unlike the January 2004 result, yesterday's ruling was unanimous among all three judges on the panel. This time, however, the main opinion for the panel was specifically identified as being written by Judge Higginbotham. (I'd have guessed as much from its style; and I suspect that again it was largely his own initial drafting, rather than coming from his law clerks.) Judge Ward, who dissented in part from the January 2004 decision, this time concurred fully in the result, but again wrote a separate opinion expressing his own views.

III. What did the three-judge panel say?

Of the U.S. Supreme Court's decision in October 2004 to send this case back to the three-judge panel for further consideration, I wrote "it's a shallow, technical, procedural, and — in all probability — a purely temporary victory for the Dems that at best gives them one more bite at an apple they've already gone hungry on before." And as Prof. Hasen wrote then, and I agreed,

What is the lower court to do? The lower court [judges on the panel] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with.

But no one can fault this panel for failing to give it the old college try. "The light offered by Vieth is dim," writes Judge Higginbotham dryly, and with considerable understatement he notes that "the search for a core holding is elusive." Politely but accurately, he adds: "This observation is not a criticism, but a recognition that Vieth reflects the long and twisting historical narrative of political gerrymanders in the United States."

Next in Judge Higginbotham's opinion follow accurate descriptions of the various opinions from the fractured Vieth Court, and of the factual history in Texas of Democratic gerrymandering and Republican counter-gerrymandering as the parties have switched majority status over the last four decades. The context of the latter, though, can give the panel no help resolving the conflict and confusion within the former. The panel rejects — rightly and persuasively, I think — all of the suggested interpretations of Vieth and attempts to harmonize its conflicting approaches that were offered by the Dems. The panel opinion also has an interesting discussion of whether gerrymandering does or doesn't cause noncompetitive districts, but I think that's mostly an academic digression that's not key to any result that the panel reached.

So what "further consideration ... in the light of Vieth" could the panel give to its own January 2004 ruling upholding the 2003 Texas redistricting? Well, since Vieth produced no "core holding," the panel here ultimately resorts to the roughest — but in my view, the only appropriate — use of that precedent. In a nutshell: Since the partisan skew resulting from the Pennsylvania gerrymander was worse than the partisan skew resulting from the Texas gerrymander, and since the Supreme Court left the Pennsylvania gerrymander in place anyway, yesterday's opinion says this panel won't overturn the Texas gerrymander for being "too partisan." Here's the panel's own explanation:

In short, under the plan passed by the Pennsylvania General Assembly and upheld by the [Supreme] Court in Vieth, the party that garnered, on average, less than half the vote in statewide races was able to capture nearly two-thirds of Pennsylvania's congressional seats. In contrast, the plan passed by the Texas legislature resulted in the election of twenty-one Republicans and eleven Democrats to the House of Representatives in 2004, when the Republican Party carried 58% of the vote in statewide races and the Democratic Party carried 41% of the vote.

... [I]f the effects of the Pennsylvania plan did not provide a basis to find excessive partisanship in redistricting, it is hard to see how the effects of the Texas plan make it constitutionally offensive.

That's the nub of this 58-page decision, friends and neighbors.

The Dems, anticipating the likely result of this brutally simple comparison, had labored mightily to persuade the panel that the result of Vieth ought not dictate the results reached by this panel. But they utterly failed to persuade the panel to reconsider the original rejection of the Dems' "twice in one decade" argument from the Dems' first challenge to the 2003 Texas redistricting, which the Dems launched before the third legislative special session in 2003 had succeeded in passing a plan. This is no surprise: the Dems had no precedent for that argument then, and had none now either.

But the Dems, supported by an amicus group of "University Professors"\³/ had made another ingenious and ultimately disingenuous attempt to distinguish the Texas situation from Pennsylvania's. The "one person, one vote" ("OPOV" for short) line of Supreme Court cases, they argued, effectively prohibited the Texas Legislature from doing their mid-decade redistricting based on three-year-old results from the 2000 Census. The Dems knew, of course, that — as Judge Higginbotham's opinion also recognized — it would be impossible for Texas to duplicate the national Census mid-decade and solely within Texas, so the effect of this proposition would be to indirectly prohibit all mid-decade redistricting. But the Supreme Court has approved many redistrictings that were based on more than two-year-old Census data — specifically including redistrictings done by state legislatures wishing to replace (as here) an earlier-in-that-decade court-crafted map. And in fact, even if redistricting is done in an -01 year, the data from the previous year's Census will already be substantially inaccurate. Therefore, in the panel opinion for yesterday's majority, Judges Higginbotham and Rosenthal refuse to allow the perfect [i.e., mathematical precision based on absolutely current census data] to become the enemy (actually, the assassin) of the good [i.e., our system's deliberate historic choice to prefer that redistricting be done by (democratic) state legislatures rather than (un-democratic) three-judge federal court panels].\⁴/

Judge Ward's special concurrence buys into this pitch, but basically says that only the Supreme Court has the power to turn it into binding law. As such, I'm quite certain that it will be the cornerstone of the Dems' inevitable appeal back to the Supreme Court — which leads to my next topic.

IV. What will happen next?

The one thing that is absolutely certain is that the Dems will make good on their announced and inevitable intentions to appeal yesterday's ruling back to the Supreme Court. For obscure reasons unique to voting rights cases that I've explained before, the Supreme Court cannot just refuse to rule on the merits of that appeal by issuing one of its typical "cert denied" orders. But while it must (in theory) address the merits of yesterday's ruling, the Supreme Court need not grant oral argument or write a full-blown opinion (or more likely in any of these cases, set of opinions). And I predict that the Supreme Court will, in due course and in no particular hurry, summarily affirm yesterday's ruling without either entertaining oral argument or explaining their decision.

It's theoretically possible, of course, that the arguments of the amicus University Professors (as embraced by the Dems) will persuade the Supreme Court to hold oral arguments and to make new precedent. It's possible that by some sort of miracle, a coalition of at least five Justices (perhaps including one or more new Justices by then) will coalesce out of the chaos that ruled in Vieth. Impassioned briefs will indeed be written and filed (and impressive legal fees will indeed be charged and paid for them). But as Judge Higginbotham's opinion notes, the University Professors' argument "as presented comes unadorned with supporting case citations." This is a polite way of saying: "Cute, guys, but you're just makin' this stuff up as you go, and you can't point to any other court that's already done what you're asking us to do now." That doesn't bode very well for the Dems' chances in their next trip back to the Supreme Court.

Realistically — and on this, I think even the Dems' lawyers would agree, if you could ever get them to be privately candid on this subject — the Dems' chances have gone from "long-shot" to "moon-shot" status. The fat lady sang a long time ago in this opera, and all that's left are some assorted violas and bassoons still squawking because they won't/can't/don't want to admit that the conductor has already left the podium. The 2003 Texas redistricting map will almost certainly remain in place for the rest of this decade.

Gerrymandering causes perennial (or at least decennial) bloodbaths not just in Texas but elsewhere, so the Supreme Court will have many future occasions to reconsider Vieth and to provide something more coherent than its "dim light." But Beldar sez: Don't hold your breath for the next five years (unless you're working and getting paid by the hour to do so).

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\¹/Disclosure: As I've noted before, I practiced law with Lee Rosenthal for several years at Baker Botts in the 1980s; I like and admire her greatly; and I still consider her a friend (although we've had no social contact for many years, and I only rarely appear before her professionally these days).

\²/As I've also written before, I think it is facile, misleading, inaccurate, and insulting to suggest that the results of these cases correspond directly to whether the panels are composed of appointees of Republican or Democratic presidents. But those appointments are objective bits of information, and some folks insist on making arguments from them (nevertheless often misstating those objective facts in the process).

\³/The question "What left-wing domination in academe?" is even funnier, of course, than "What liberal bias in the mainstream media?"

\⁴/I recognize that in writing a sentence like this one, I'm utterly failing — alas and alack, mea culpa maxima! — in my goal of translating the panel's dense legal prose into clear lay language. At least my version is boiled down to one obscure paragraph, though, instead of filling multiple pages.

Hypothetical profiles in courage from the floor of the Senate

Sen. Patrick Leahy (D-VT) just mentioned "Profiles in Courage" while lamenting the time being spent in the Senate for debate on Dubya's political nominees. This prompts a flight of fantasy on my part.

From the Congressional Record (Neverland Edition) for Thursday, June 9, 2005:

THE PRESIDENT: The chair recognizes the Distinguished Senator from Nevada.

MR. REID: Mr. President, the Majority Leader and I had previously agreed to split between our respective parties the many hours of further debate permitted on the Senate floor for each of President Bush's judicial nominees.

However, the members of my party have unanimously decided to give up their opportunity to posture and preen for C-SPAN's cameras in an empty Senate Chamber. We will forego our right to indulge in windy rhetoric that will have no effect on the upcoming votes. We will forego the corresponding opportunity to parade video clips and transcripts of those speeches to the left-leaning special interest groups who support our re-election campaigns.

We therefore cede back to the Senate all of the unused time allocated to members of our party for further floor debate of these nominees, and ask for unanimous consent that the up-or-down votes be taken immediately and without further ado, so we can get on to other pressing matters of national interest.

THE PRESIDENT: Without objection, so ordered.

BeldarBlog: Your new home for outrageous political fantasies beyond the wildest dreams of any patriotic and practical American.

If an overdose of ironic disingenuousness could be fatal ...

... then Senate Assistant Minority Leader Dick Durbin (D-IL) would have fallen dead today on the floor of the United States Senate.

I know this is true because I just heard Sen. Durbin arguing against the confirmation of Eleventh Circuit judicial nominee Bill Pryor in large part on grounds that Judge Pryor (about whom I blogged at length in February 2004) shows insufficient respect for, and can't be trusted to follow, prior precedent of the federal appellate courts. As part of his speech, Sen. Durbin asserted that he and Sen. Kennedy both believe that Judge Pryor's temporary recess appointment was unconstitutional.

And I know this is true because I've also read Evans v. Stephens, 387 F.3d 1220, 1227 (11th Cir. 2004) (en banc), cert. denied, 125 S. Ct. 1640 (2005) [at page 16 of this .pdf file]:

We are not persuaded the President exceeded his constitutional authority in a way that causes Judge Pryor's judicial appointment to be invalid. We conclude that Judge Pryor may sit with this Court lawfully and act with all the powers of a United States Circuit Judge during his term of office.

Accord, United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962).

So who doesn't respect precedent? And who's misrepresenting and distorting federal constitutional law to advance a blatantly partisan agenda?

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UPDATE (Thu Jun 9 @ 12:50pm): And now I'm listening to Sen. Chuck Schumer (D-NY) pillory Judge Pryor for being the lone state attorney general to file an amicus brief challenging the constitutionality of the federal Violence Against Women Act. Oh, horrors! Judge Pryor must be in favor of wife-beating, suggests Sen. Schumer.

Except that the Supreme Court indeed held that act to be unconstitutional. United States v. Morrison, 529 U.S. 598 (2000). Bill Pryor was arguing against federal intrusion into criminal law matters traditionally the province of state governments — in other words, he was doing exactly the job that a state attorney general is ethically and duty-bound to do on behalf of his client (here, the State of Alabama) — and he was correct in his reading of the law, according to the Supreme Court.

So again, I ask: Who's distorting and disrespecting federal precedents to promote a partisan agenda?

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UPDATE (Thu Jun 9 @ 1:30pm): And now Teddy himself — about 90 seconds after insisting that Bill Pryor has no respect for previous federal judicial precedents — says that Dubya's recess appointment of Judge Pryor was "in all likelihood, an unconstitutional use of the recess appointment power." Why am I not surprised?

At 2:00pm: Now — after a half-hour of demagoguery and distortion of Bill Pryor's record — Teddy's blaming Dubya for tying up the Senate with controversial judicial nominees when the Senate should be doing other business. "Take pity on me, Your Honor, I'm an orphan!" cries the parenticidal boy. Oh, what a day for irony.

At: 3:25pm: 53-45 final vote to confirm Judge Pryor. Congratulations, sir!

Kranish and the Boston Globe should post Kerry's records for public review

Today's Boston Globe contains two articles by staff reporter Michael Kranish that discuss Navy records pertaining to Senator (and failed presidential candidate) John F. Kerry.  The articles say that the Globe obtained the records pursuant to a Standard Form 180, signed by Sen. Kerry, which named the Globe as the party to whom the records were to be directly released. In one article, Mr. Kranish asserts:

The lack of any substantive new material about Kerry's military career in the documents raises the question of why Kerry refused for so long to waive privacy restrictions. An earlier release of the full record might have helped his campaign because it contains a number of reports lauding his service. Indeed, one of the first actions of the group that came to be known as Swift Boat Veterans for Truth was to call on Kerry to sign a privacy waiver and release all of his military and medical records.

The second article focuses on Kerry's Yale undergraduate grades and concludes that Kerry was a "lackluster student" whose grade average was "virtually identical" to Dubya's. (Although in fact Kerry's grades appear to be slightly worse, both can fairly be characterized as "lackluster.")

Although both articles make interesting reading, I can't help feeling considerable skepticism about their conclusions.

Mr. Kranish and the Globe have indeed sometimes been critical of Sen. Kerry. But at other times — in particular with their trashy and unethical treatment of Captain George Elliott — they've skewed facts in ways that have been extremely beneficial to Sen. Kerry. And sometimes they've simply made incredible and inexcusable factual bloopers that likewise worked to Sen. Kerry's benefit — as, for example, in their biographical book "John F. Kerry: The Complete Biography by the Boston Globe Reporters Who Know Him Best," in which they described Sen. Kerry as "a man who was severely wounded in combat [and] who watched men under his command die." As I wrote last summer, the first statement is absolutely false. Kerry's wounds were trivial, but this egregious factual mistake about them wasn't. The second statement is unsupported and almost certainly an exaggeration.

Moreover, despite Mr. Kranish's subjective conclusion that the records he's reviewed contain no "substantive new material," his articles utterly fail to address, either in detail or in summary form, some of the most controversial questions about Sen. Kerry's war service — including in particular the questions regarding Sen. Kerry's discharge.

The Boston Globe should immediately post all the records, and the signed Standard Form 180, as .pdf scans on their website. Perhaps they already plan to do so, and simply haven't gotten the scans made yet. But even were there no past examples to create doubts about the Globe's and Mr. Kranish's objectivity and accuracy, those members of the public who are inclined to study the actual source documents — rather than accepting as gospel Mr. Kranish's pre-digested conclusions — should have the chance to do so.

If the Globe and Mr. Kranish feel themselves to be precluded from posting the source documents because of some lack of further authorization from Sen. Kerry or other privacy concerns, they should disclose the facts about that.

The Ra^thergate memos were only debunked when the public was able to examine them. Perhaps Mr. Kranish's and the Globe's analysis of the new records has been fair, balanced, accurate, and complete. But there's no excuse for preventing the public from seeing the source documents.

(Mr. Kranish's email address is [email protected], and the Globe's online feedback form can be accessed through this link. And there are many, many links to blogospheric reactions similar to mine at Michelle Malkin's, Captain Ed's, and Tom Maguire's blogs.)

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Update (Tue Jun 07 @ 7:30pm): Hugh Hewitt and N.Z. Bear also had reactions very similar to mine.

Joe Biden, useful fool for terrorists

Joe Biden is what passes for a "serious" Democrat these days among his party's leadership. I don't doubt his patriotism or intentions. But I often do doubt that he has the good judgment and intelligence of the average doorknob, and his comments yesterday provide good grounds for those doubts. As reported by the Washington Post:

A leading Senate Democrat said yesterday that the United States needs to move toward shutting down the military prison camp at Guantanamo Bay, Cuba.

"This has become the greatest propaganda tool that exists for recruiting of terrorists around the world. And it is unnecessary to be in that position," Sen. Joseph R. Biden Jr. (D-Del.) said on ABC's "This Week." ...

Biden, the top Democrat on the Senate Foreign Relations Committee, proposed that an independent commission investigate Guantanamo Bay and make recommendations.

"But the end result is, I think we should end up shutting it down, moving those prisoners," he said. "Those that we have reason to keep, keep. And those we don't, let go."

There are about 540 detainees at Guantanamo Bay. Some have been there more than three years without being charged with a crime. Most were captured on the battlefields of Afghanistan in 2001 and 2002.

Sen. Biden is correct in noting that America's detention of unlawful combatants at Guantanamo Bay is being used as a propaganda tool by America's enemies. One wonders, then, why he seems to be so eager to help them. Propaganda, by definition, has no moorings to the truth; it is a political tool used to promote specific ends without regard to the truth. "Move them," he says — as if that would solve anything.

The truth is that the terrorists will take any response made by the United States to their actions and twist it to suit their propagandizing purposes. And they can and do rely on those whose reflexive instinct is to "blame America first" to assist them.

The detainees at Gitmo are there because they were captured while engaging in war against the United States. Disdaining uniforms, disdaining all the rules and conventions of "civilized" warfare, they were bearing arms for the purpose of trying to kill American and coalition soldiers. We have ample "reason to keep" those individuals for the remainder of their natural lives or until the Global War on Terror has achieved enough success that they can be released without reason to believe that they'll return to their terrorism.

American political leaders like Sen. Biden who refuse to recognize these facts become the useful fools upon whom the terrorists base their best hopes for eroding America's willpower to protect itself and the civilized world. By speaking of the detainees like they were juvenile delinquents picked up for loitering on the mall parking lot, Sen. Biden fuels the very "perception that exists worldwide" which he purports to lament.

"Let [them] go," says Sen. Biden. In response to which suggestion, Beldar asks: "With or without the AK-47s and RPGs they were carrying when they were captured?"

"Cheap shot, Beldar!" those on the left might cry. "Biden said 'Those that we have reason to keep, keep,' not that we should let them all go!" Well, then, responds Beldar, Sen. Biden should say that participating in armed attempts to kill American and coalition soldiers on the battlefields of Afghanistan is ample reason to keep these detainees.

Change the "perception that exists worldwide," Senator, by focusing on the facts, not by closing Gitmo.

Belated self-congratulations; and an example of how "judicial conservatism" differs from "political conservatism"

In February of 2004, I posted (with my usual windy length) about the Fifth Circuit's then-pending consideration of an appeal brought by Ms. Norma McCorvey — perhaps the most well-known plaintiff in the last half century, albeit under the pseudonym "Jane Roe" in Roe v. Wade. Ms. McCorvey, having had a profound change in her personal convictions about abortion, sought to reopen her original case in hopes of reversing the Supreme Court's ruling. My liberal friends over at Burnt Orange Report were terribly concerned that she might win, based on what I thought was a misreading of the fact that the Fifth Circuit had scheduled oral argument on her appeal from the district court's dismissal of her case. They were particularly concerned — unjustifiably so, I thought — that a politically conservative judge like the Hon. Edith H. Jones of the Fifth Circuit might take this appeal as an opportunity to try to reverse (or at least undercut) the Supreme Court's opinion in Roe and its progeny.

Prof. Eugene Volokh's "Where are they now?" post today — inquiring about the later life of famous plaintiffs in constitutional cases — prompted me to follow up on Ms. McCorvey's appeal. And in doing so, I found that I'd missed it when the Fifth Circuit issued its ruling in August 2004 — there was very, very little coverage of the decision in the mainstream media, and only about 25 total "hits" appear on Lexis/Nexis for the ruling.  And I also missed it in February 2005 when the U.S. Supreme Court denied Ms. McCorvey's petition for a writ of certiorari, thereby leaving the Fifth Circuit's decision in place.  McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, 125 S. Ct. 1387 (2005). But I'll congratulate myself belatedly on having correctly predicted that the Fifth Circuit would (i) affirm the district court's dismissal of Ms. McCorvey's case, (ii) do so without oral argument, and (iii) do so in a unanimous panel opinion written by the very judge about whom my liberal friends were so concerned, Edith Jones.

The panel opinion relied on slightly different (but equally valid) grounds than those cited by the district judge — mootness (based on the challenged Texas statutes having been repealed) rather than simple untimeliness. And in fact, by basing its decision on mootness grounds, the Fifth Circuit panel avoided the arguable need to consider whether Ms. McCorvey's thirty-year delay in bringing her attempt to re-open her case was "unreasonable" given the facts and circumstances of her case, which in turn arguably would have required both the district court and the Fifth Circuit to perform "a substantive critique of Ms. McCorvey's claims." Judge Jones' opinion for the unanimous three-judge panel, then, is a model example of a key tenet of "judicial conservatism" — deciding an appeal on the narrowest possible grounds, and thereby avoiding unnecessary holdings.

As it happens, however, Judge Jones did take the opportunity to write a separate opinion — concurring with the result of her own opinion for the unanimous panel, but speaking only for herself and not for the other two judges (or for the Fifth Circuit as an institution) — which contains a stinging critique of the factual assumptions that the Supreme Court made in its Roe opinion. Judge Jones' name has sometimes been mentioned as a possible Supreme Court nominee (although less so in the recent past than previously). Were that to happen, she'd certainly be grilled by the pro-abortion forces in the Senate on this concurring opinion, just as (hopefully about-to-be-confirmed) Eleventh Circuit nominee Bill Pryor was grilled after labeling Roe "an abomination."

I haven't always been among Judge Jones' biggest fans, and my own views on abortion as a political and ethical matter, and on Roe v. Wade and its progeny as a matter of constitutional law, are fairly muddled and perhaps somewhat inconsistent. (It's not a topic I blog on much for that reason, and I'm not trying to encourage extended debate on the merits of the abortion issue in my comments, either.) But — like Judge Pryor's vigorous enforcement of the Supreme Court's Roe precedent when he was a state attorney general, despite his profound disagreement with that decision on both personal and legal grounds — this particular appeal, and Judge Jones' participation in it, is a fairly striking example of how a judicial conservative ought to behave when sitting on any of the Courts of Appeals, which lack the fundamental power to overrule any Supreme Court precedent. She could have grand-standed; instead, she cancelled oral argument, putting the case into a lower public profile. She voiced — in an appropriate manner — her legal reservations about the Roe precedent, but she did not permit those reservations to skew the results of the appeal.

I don't deny that there are politically conservative judges who may be judicial activists. But I'm an opponent of judicial activism — regardless of the politics that motivate it or the direction it skews. And to those who insist that all politically conservative judges must necessarily become judicial activists for conservative causes, this result is a pretty strong rebuttal. I've observed, and could probably readily also find examples of, judges whom I know to be politically liberal who've nevertheless adhered to their judicial conservativism, and have dutifully reached results thereunder with which they personally disagree. "I might well support the opposite result," judicial conservatives (of either liberal or conservative politics) will say, "were I a member of the state or federal legislatures, debating and making public policy on this issue." But a judicial conservative recognizes that he or she isn't a legislator. And he or she always remains aware of the respective level and functions of the court on which he or she sits: if a United States District Judge, for example, that role does not include overruling (or circumventing) precedent from the Circuit and Supreme Courts, or if a Circuit Judge, precedent from the Supreme Court.