BeldarBlog

Roberts; Miller; DeLay

I can't not post on a day that has so much law-related stuff in the news:

• By far the most consequential news was also the most expected — that we have a new Chief Justice of the United States, the Hon. John G. Roberts, Jr. The 78 confirmation votes he received in the Senate was consistent with my prediction ("more than 70 votes" but "I don’t think he’ll break 85"). Yeah, it's a triumph for the Bush Administration, but more importantly by far, it's a triumph for the rule of law, in general and as applied, in our nation.

• Judith Miller, her employer, and their allies are spinning desperately to make her look anything north of stupid today, and it's just not working. Another victory for the rule of law, another defeat for self-important and self-deluded scofflaws. The funniest lines I've read so far about her capitulation come from her near-maniacal supporters at Editor & Publisher:

  It's even possible that it was Fitzgerald who ultimately "cracked," eager to produce indictments but with the grand jury session wrapping up without Miller's key testimony on Libby. Or, on the contrary, Miller might have finally blinked, fearing that the prosecutor would extend the life of the grand jury, leaving her behind bars for many more months.

  Yeah, right. Mr. Fitzgerald's an utter wreck, just begging Ms. Miller to let up on him. Whoever on the "E&P Staff" wrote that stinker has either punctured his/her cheek with his/her tongue or is living blissfully in Bizarro World; my money's on the latter. The second funniest bit: Despite being in one but not the other continuously since July 6th, Judy still doesn't know the difference between "jail" and "prison."

• The fact that Travis County District Attorney Ronnie Earle is well documented as a prosecutorial over-reacher, a hyper-partisan loose cannon (almost as dangerous to himself and members of his own party as to opponents), a grandstander, a frequent magnificent loser at the courthouse, and one of the biggest horse's asses in the history of Texas does not mean that Tom DeLay is necessarily innocent. But neither does the fact that Tom Delay has been indicted mean that he's guilty. I am not among Rep. DeLay's fans, but I do think he's entitled to his presumption of innocence.

Neighborhood report

Weiss and I just returned from a long, looping walk through my neighborhood. I took along the digital camera, but saw nothing more exciting than a shrub and its 3-1/2-foot clay pot overturned. Lots of neighbors raking yards, scraping tape off windows, etc. Dusk traffic on Southwest Freeway and its access roads looked typical for a Sunday evening in both directions. I did pass by three or four gas stations, a couple of which were open to sell sundries, but none of which had gas to pump. But otherwise things seemed remarkably normal.

"Roberts 2008" presidential campaign kicks off in Newsweek

I was indeed ready for some comic relief from Rita, and (via Howard Bashman's How Appealing) I've found it in this irredeemably silly bit from Newsweek's Eleanor Clift:

Roberts has led such a charmed life that heading the Supreme Court may not be the end of the road for him. Sid Davis, former Washington bureau chief for NBC news, has a recurring dream that Roberts will become president someday. This is the scenario: Roberts looks like William Holden, a Hollywood leading man when Ronald Reagan was still a B actor. A son of privilege with a Kennedyesque family, he recalls the heady days of Camelot. He’s a man of great intellect, and in about 10 years time, maybe longer, he’ll be bored with the high court, and a Republican Party starved for charisma will draft him to run for president. “I’ve been floating the idea and people think I’m nuts, but I don’t think I’m nuts,” says Davis.

I suppose the reference to NBC's Sid Davis as having come up with this nonsense was intended to make Ms. Clift look less silly than if she'd originated it. And I think there are indeed many in the mainstream media who — like their allies on the Democratic side of the aisle in the Senate — are utterly flummoxed by how thoroughly, and with what apparent ease, Chief Justice-presumptive John G. Roberts, Jr. has demolished the reflexive anti-Dubya efforts to oppose his nomination. I suppose it ought not be a surprise, then, when they engage in fabulous and implausible speculation that John Roberts might therefore similarly slay any type of opposition he might meet for any governmental position.

Still, that Ms. Clift and her editors at Newsweek could devote bandwidth to this sort of fantasy is an indicator of how thoroughly they perceive the Supreme Court and the rule of law to be just another variety of political game. John Roberts' career has been that of a secular monk dedicated to the study and preservation of pure law at its most highly distilled and refined level. It was his absolute dedication to and mastery of that realm which enabled him to shrug off every political entreaty or demand thrown at him by any senator. But members of the mainstream media are like ex-jock football commentators being asked to speak intelligently on, say, architecture or origami.

How long will it be before the mainstream media begin labeling Supreme Court Justices like they do senators — "Chief Justice John G. Roberts, Jr. (R-IN)"? How long before they start running breathless Justice-by-Justice opinion polling: "An exclusive new MSNBC/WaPo poll reveals that if a Senate confirmation hearing were held tomorrow, Associate Justice Clarence Thomas would lose by a better than two-to-one margin to either Harvard Law's Professor Larry Tribe or Boston Legal's Alan Shore (as played by James Spader)!" Mr. Spader is approximately as likely a Supreme Court candidate as Judge Roberts is a presidential candidate.

Return from Rita: The Plan

Well, at least it's simple (click for full-size):

I have no expectation whatsoever that a significant percentage of the estimated 2.5 million people who've evacuated Houston will actually adhere to this plan. And I just love that orange area marked "Pending" — yeah, as if. They shoulda just marked that: "Purty Soon Now, Just Don't Y'all All Hurry." [Edit: Yes, I realize the orange area represents Rita's landfall path that suffered the most damage, with consequent longer delays in restoration of power, water, etc. I apologize if this remark seemed insensitive; I meant not to minimize the effects of Rita, but to express my view that those affected are nevertheless going to be eager to get home, to get about putting things right. — Beldar]

Nevertheless, in these particular circumstances, it's not a bad thing for the authorities to announce some kind of plan — not out of an expectation that it will be followed scrupulously, but simply in order to impress upon a substantial fraction of the folks returning that there are good reasons why not everyone ought to try to return all at once.

My guess, however, is that that impression was already conveyed — rather forcefully and more effectively than any PR campaign could do — by the outbound gridlock.

Nevertheless, asking Houstonians to wait for very long before getting back to their miscellaneous affairs — business, recreational, and otherwise — is a lost cause. This is a city noted and notable for its "industry" — and I don't mean just the corporate type. This place has get-on-with-it, get-ahead, time's-awastin' just-do-it energy. It's a city that can't sit still. Outside my house, the low 24/7/365 hum of the Southwest Freeway, about six blocks away, has already returned. This place is just ridiculously alive. And that's kinda cool.

More on the Rita gridlock and gas shortages

Ken Hoffman's humor column in the Houston Chronicle that I quoted in my last post goes on to make an excellent point about the excesses of local TV news coverage as contributing to the evac gridlock, with which I generally agree:

When this is over, and everybody's home, two things need to be investigated and corrected: Houston's evacuation plans — and television news' role in making us all crazy this past week.

Mr. Hoffman followed up on this point with some humorous examples of broadcast news overkill. I respectfully submit, however, that his own employer also needs to do some of the same soul-searching that he recommends for the broadcast media.

The problem wasn't just the unrelenting breathlessness of the media coverage (print or broadcast), or even mainly that. The problem was with the inaccuracies, omissions, and misjudgments in the reporting.

Just about every Rita-related print story (online or on dead trees) and radio or TV broadcast on Wednesday and Thursday needed to make it absolutely clear that city and county authorities in Houston were not calling for a mass, total evacuation. Yes, the media needed to be talking about evacuation, because people in the mandatory evac zones, and others elsewhere with special vulnerabilities, definitely needed to know that they were being urged to evacuate. But the media also needed to be responsible and accurate in reporting who weren't being urged by officials to evacuate. (That, by the way, is different than saying "urged to stay put" — which would also have been inaccurate, because until the gridlock got awful and the storm got close, authorities weren't urging folks outside the evac zones to stay put either.) In my humble opinion, both print and broadcast media mostly failed that test.

The map graphic showing the mandatory evacuation zones (a slightly edited version of which I posted Thursday evening) needed to be the most prominent image of the Hurricane Rita coverage — instead of being something that you could maybe find if you were a genuine internet dilettante with an Adobe Acrobat-enabled browser and a broadband connection who was willing to drill down through some online links. On a 1-to-10 scale: Importance of that map = 10. Importance of continuous display of TV anchors' fearless faces = zero.

The Katrina experience, plus the media hype and especially its inaccuracies, were the dual proximate causes of the gridlock and the resulting gas shortage. And even in immediate hindsight, it seems fairly obvious that it was only by the grace of God (and, or perhaps through, a high-pressure system that steered Rita to the east) that the gridlock and gas shortages didn't cost the Houston area lots more property damage, injury, and loss of life. We can't control the sequencing of the next few hurricanes, nor am I suggesting that any outside authorities try to control what the media do next time. But if the blogosphere can be a gadfly to nag the mainstream media into being more responsible, that is a worthwhile thing to do.

Teats on a boar hog

My apologies for the rude title. But my nomination for the single best Hurricane Rita quip goes to the Chronicle's Ken Hoffman:

And how come fuel trucks couldn't make it to Houston, but Tom DeLay and Sheila Jackson Lee had no problem getting here? The wrong bags of gas got through.

Preach it, brother! I'd a whole lot rather listen to the second assistant deputy chief fire marshall for Hedwig Village at a Hurricane Rita press conference than to any CongressCritter of either party.

The CongressCritters ought to have to wear placards around their necks — or maybe better yet, those sashes, like beauty pageant contestants wear — labeled with phrases like:

• "Useless Panderer"

• "Only Here for the Graft"

• "Harbors Delusions of Relevance" or

• "Do You KNOW Who I Am? (And why should anyone care right now?)"

Even granting that the feds have a role to play, it's not these feds. This is so not their show. Hie thee back to the Beltway (and I don't mean the Sam Houston Tollway), ye CongressCritters!

(Hat tip to Kevin Whited and his co-bloggers at blogHouston.net, whose skewers runneth over with crackling roasted CongressCritter meat as part of some very fine Rita coverage.)

Just Rita, during Rita

Friday Sep 23 @ 4:05pm: My previous post, about Rita and gridlock, has gotten overlong, so I'm starting this one to record anything semi-profound or -amusing that occurs to me during Rita itself. Maybe nothing will; don't assume if I'm silent that it's because I've lost power. It's conceivable that if I do lose power (which I think more probable than not), I may still be able to update the blog a bit, at least as long as my laptop batteries and a dial-up phone connection last.

Right now, there's naught more troubling than a brisk wind and some cloudy skies outside, and I only heard the first rumblings of distant thunder a few minutes ago. My neighborhood has been very quiet all day; I don't know how many have evac'd or whether they're (like me) just sitting tight indoors.

Friday Sep 23 @ 6:00pm: Not much change outside yet as compared to 4pm. Just spent a few minutes chatting with Hugh Hewitt again on his radio show, and made a point to say some positive things about some of the remarkable, brave, and generous episodes among my fellow citizens that I've heard or read about. It is possible to spot the silver lining even before the storm cloud passes over, if you look for it.

Local TV news weathermen are reporting that the storm track is now tending even further to the east, suggesting landfall further from Galveston, closer to and possibly even on the other side of the TX-LA border. I'm not wishing ill on the folks in Lake Charles and its environs, and I hope they've been making appropriate preparations as well. But landfall further east in turn suggests considerably less danger to the Houston area from winds, although coastal areas will still be at risk for storm surge and everyone's at risk to varying degrees from flooding. One good thing is that the last several weeks have been comparatively dry here, meaning there may be less runoff than there would be otherwise.

Gosh, won't we be lucky if it turns out that looking back someday, the gridlock will be most Houstonians' worst memory of Rita?

Only in the midst of excitement like this would I fail to roast NRO editor Rich Lowry for an eyebrow-raiser like this one today: "I didn't realize Houston is the fourth largest city in the country. Yes, I need to get off the East Coast more." There's got to be a great zinger waiting to be flung back at him for that, but I'm too distracted to think of it today.

Friday Sep 23 @ 6:30pm: Winds are now more than brisk — definitely gusty. Still no rain in my neighborhood, though.

Friday Sep 23 @ 7:30pm: First light rain, winds actually calmer now.

Friday Sep 23 @ 8:45pm: Gusty winds. Sprinkling. Lucky so far.

Friday Sep 23 @ 10:15pm: Riveting journalism, this isn't. Still gusty winds — looks to me like a solid layer of high-level clouds, below which scattered lower-level clouds are racing, well defined by the city's lights. The amount of precipitation is what my baseball coaches used to call "just the birds spittin'" (when they wanted to keep playing, anyway). If it were 100 years ago, before modern weather forecasting and satellites and news broadcasts, I think I'd have had the sense from watching this that there is something big out there somewhere, but that we're still on the margins of it. I wouldn't have mistaken it for an ordinary night, but given how long the wind's been gusting and the clouds racing without much otherwise, at least here, to show for that, I think I'd be wondering whether — and hoping that — we'd dodged a bullet.

If this becomes the most boring post I ever write, that'll be okay.

Friday Sep 23 @ 11:55pm: Continuous low overcast now, and still gusty, but still no rain to speak of. I might actually try to sleep tonight, we'll see.

Saturday Sep 24 @ 1:15am: Sprinkling, continuous strong wind (although nothing to write home about). But I'm still not sleepy.

Saturday Sep 24 @ 2:15am: A bit more rain, and continuing stiff wind. But so far the rain has been light and slow enough to soak in, with almost no run-off. I've lost a few small branches (not limbs) off a few of my trees, and I'm sure there are some limbs down elsewhere in the city with these winds. But so far, so good. A semi-empirical indicator: my satellite TV reception is still strong.

Saturday Sep 24 @ 3:45am: A photo just taken from inside my garage with the garage door up and the camera on a mini-tripod sitting on the trunk lid of my car:

The office tower in the background is at the intersection of U.S. 59-South and Fondren, a few blocks away, which will give you some idea of how light the rain is and how good, considering, overall visibility is. It's still windy, but not too bad; it's still sprinkling, occasionally turning to light rain for a few minutes. But there's essentially no standing water, nor run-off in the street gutters. (The pavement on the far side of the street isn't under water; it's just damp, but the slight angle sloping away from the center crown makes it look slightly darker.) There's not much lightning, and no thunder to speak of. No sirens; not much noise except the wind in the trees. Obviously we still have power, phone, etc. in my neighborhood.

Saturday Sep 24 @ 12:05pm: Statistics and generalizations are meaningless when your viewpoint is from a particular place, time, and situation. Thus, if you had a relative on the nursing home evac bus that caught on fire, then this was a catastrophic hurricane. If a tree crashed into your living room and your roof blew off, then this was a devastating hurricane. If your power is out and you had some windows broken by flying debris, or if you had a nasty gridlock experience in evacuating, then this was a very annoying hurricane.

But at this point, it appears that the net physical effect of the hurricane on my house is a couple of dozen very small branches scattered around my front and back yard. I never lost power, phone, DSL, or satellite TV reception. My dog never got her feet wet. My ex and our kids are similarly unaffected. So we've been very, very fortunate. And my sense is that our experience has been very common, probably even typical, for Houstonians.

Unfortunately that probably can't be said by folks from Jefferson County and far-western Louisiana. But even with respect to them, it would seem that things could have been far, far worse overall.

Mayor Bill White and Harris County Judge Robert Eckels are on TV now urging those who evacuated not to return "unless it's in accordance with the instructions of local officials" so that "emergency supply providers" and others involved in urgent rescue, restoratoin, and reconstruction activities can get back and get their jobs done. They're asking employers not to require non-critical employees to return to work on Monday or Tuesday. Law enforcement is being watchful and there will be no tolerance for looting. No school at least on Monday, maybe longer. [Update: HISD and most nearby school districts have confirmed they'll be closed at least through Tuesday.] No guarantee of gas for those returning yet. Bottom line: Sit tight, count your blessings.
 

Rita and gridlock

A (slightly edited) email I just sent to NRO's Jonah Goldberg, who's presenting "competing views" about the gridlock and gas shortages as folks have been evacuating from the Houston area as Hurricane Rita approaches:

My preliminary impression, In a nutshell: Don't blame Bush, state, or local officials for the evac gridlock. Blame Katrina and the local news media.

Katrina + news media hysteria = lots of folks in non-flood-prone areas of Houston, who otherwise would have hunkered down altogether or at least waited until tomorrow to evac, instead hitting the road yesterday afternoon, last night, and today = avoidable degree of gridlock.

IMHO, local media have done a very bad job of distinguishing between "mandatory evacuation" areas (truly coastal counties, storm-surge areas) and elsewhere. Some of the adjacent coastal county officials are already bitching (publicly and unproductively) at Houston/Harris County officials for "ignoring the plan," which was to get the coastal zones evac'd first. Since so many Houstonians are also on the road ("early," in the view of those adjacent county folks), congestion is much worse for everyone. But I think the "fault" for that, if fault there be, can be laid more at the feet of the breathless media rather than Houston/Harris County officials. And ordinary folks are hyper-receptive to the hype because of Katrina.

If folks have actually LISTENED to what Mayor Bill White has been saying on TV, he's only been twisting arms for the mandatory evac zone folks to leave, plus those otherwise at high risk (e.g., hospital/nursing homes, those in mobile homes, those in houses repeatedly flooded by bayous in past storms). But I'm inferring that Mayor White — a friend of mine from law school, who'd probably like to be Sen. or Gov. White someday if a Democrat can ever get elected again in a state-wide Texas race — doesn't want to DISCOURAGE rank-and-file Houstonians from evacuating either. So neither he nor the Harris County officials have been explicitly calling for high-ground Houstonians to sit tight for now. And thus, when amplified by the media megaphones and imprecision in the media's reporting, Mayor White saying anything at all about evacuation by anyone comes across to most people like "RUN FOR YOUR LIVES!"

TxDoT was slow in getting the interstates set up for contra-flow on the normally in-bound lanes. My guess is that they underestimated how quickly inlanders would start evac'g and how quickly the gridlock would therefore develop. But if that's blameworthy, it's probably only so as a failure to anticipate just how much Katrina and the media hysteria would affect local attitudes. The gas shortage problem is almost entirely a function of the gridlock.

There's essentially nothing on the local media to remind folks that, for example, Houston isn't dependent on vulnerable levees, below sea level, and in between a huge lake and the Mississippi. The man-on-the-street interviews with those planning to stay are always spun to make them look crazy.

How the actual storm will turn out remains to be seen. And Nature may prove me wrong. Maybe by this time next week, everyone will be agreed that there ought to have been a complete, total evacuation covering all of Houston/Harris County.

But so far, IMHO, it's mostly been a perfect [media] storm. Sheesh, does everybody on the TV news want to be the next Dan Rather?

(FWIW, Weiss and I are hunkered down, at home with my emergency supplies and a full tank of gas. I've seen three major hurricanes since I moved to Houston, plus a buncha lesser but still impressive tropical storms, and I *DO* respect Mother Nature. But I'd rather be emailing you from my living room right now than out-of-gas on a gridlocked interstate, and I think I have a rational basis for concluding that I'm also safer here. My ex, who lives nearby and has our four kids with her, independently came to the same conclusion, and I certainly won't leave town while they're still here. So wish us all luck.)

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UPDATE (Thu Sep 22 @ 7:50pm): I'm not exactly on pins and needles — we're still quite a while from landfall, wherever Rita comes ashore, and I've got to save some adrenaline for later! — but I'm fairly focused on family, friends, neighbors, and my own situation at the moment. So when the phone rang a few minutes ago, it took me a good fifteen seconds, and several patient repetitions from the person on the other end of the line, before I snapped to who was calling — Generalissimo Duane (a/k/a Radio Blogger), inviting me to do an impromptu voice appearance on Hugh Hewitt's show! Lotsa fun talking with Hugh, as always — he never asks exactly what I expect him to ask. Hugh was kind enough to have me back after a station break, and I was only a little freaked out when I realized that the "on-hold" music I was hearing during the break was the theme from HBO's "Six Feet Under." Quirky, but not predictive, I hope.

According to the local NBC affiliate's website:

Officials said that residents not in evacuation zones should no longer evacuate.

"Given the conditions of the roads, and the changes in the storm, if you have not left (by 7 p.m. Thursday), the time for leaving your home, if you're not in the A or the B zone, the time for leaving your home has passed," [Harris County Judge Robert] Eckels said.

That's consistent with something Hugh told me he'd heard (or read) that the Mayor had just announced.

I'm well outside the mandatory evacuation zones:

So if you're in the City of Houston/Harris County, unless you're in a special risk category or have other exceptional circumstances, you're probably better off hunkering down at this point.

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UPDATE (Fri Sep 23 @ 1:00am): Here's an example of what I'm talking about, this time with the Houston Chronicle as the offender:

For the most part, the officials didn't offer much analysis of what might have gone wrong. They focused instead on the scramble to keep thousands of motorists from what Mayor Bill White called a potential "death trap" should the storm strike while they were stranded on the road.

That "death trap" quote has been given huge prominence, and I'm absolutely certain Mayor White regrets ever letting it slip through his lips. But it's being way overstressed and ripped wildly out of context. Here's how it's reported by the Dallas Morning News, which is considerably better:

"If the hurricane comes in at a certain angle," said Houston Mayor Bill White, "being on the highway is a death trap."

Later, he expressed confidence that traffic would be cleared in time

But even in this latter example, the media have highlighted one speculative phrase about a worst-case scenario — a phrase that creates sensation and sells papers, I guess, but that is not at all indicative of the main thrust of what Mayor White's been saying.

Yeah, if Rita makes a hard left turn, and its eye rips up the Ship Channel and then does a ballet dance right up Interstate 45 — maybe pausing to make a circuit or two of Loop 610 — and yeah, if people are still stuck on those interstates more than 24 hours from now, at 4:00 a.m. Saturday, which is the current prediction for landfall, then that could be very ugly. But what gets the lede: "Mayor calmly reassures residents that help is en route to stranded motorists, vows no one will be left on the roadways, major freeway evacuation routes now flowing freely"? No, his "death trap" line.

That, in my book, is simply irresponsible journalism. It causes undue panic. And panic can make things worse, even get people killed.

My fellow Houston law-blogger Tom Kirkendall writes:

[M]y sense of what what has made this evacuation so arduous is the large number of people evacuating who do not live in the mandatory evacuation areas. I agree that most folks are much better off battening down the hatches and staying put, but it's hard to criticize folks — particularly those who do not have a safe haven to ride out the storm — for wanting to get the hell out. The number of non-mandatory evacuees surprised governmental officials, so they were a bit slow in getting all freeway lanes going in the same direction to accomodate the evacuees. But given how well those officials have handled preparations for this storm generally, in addition to how well they performed in connection with accomodating the Katrina evacuees, I'm more than willing to cut them some slack for making a few misjudgments.

Yup, ditto that.

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UPDATE (Fri Sep 23 @ 3:35pm): Thanks to those who've linked this post. Among them have been Jesse Taylor at Pandagon and Houston Chronicle Sci Guy Eric Berger. Here's a (slightly edited) reprint of a comment I left in response to Mr. Berger's post:

Eric, thanks for the link and the quote. Those who follow the link will see that I have a more specific observation: That the media (including, unfortunately, the Chronicle) did an inconsistent and often very poor job of transmitting what public officials were saying about evacuation.

My intent when I first posted late yesterday was as much to inform — that's why I included a map graphic showing the evacuation zones, which I've seen much too infrequently on TV or in the Chronicle's online coverage -- as to criticize. And to the extent I was criticizing, or am here, it's with the hope of prompting changes now, in the short term.

The "staged evacuation plan" became almost meaningless when the media was giving the misimpression (my exaggeration, but only a little) that Mayor White and County Judge Eckels were screaming "Everyone flee for your lives!" That's not what they were saying, nor even a close paraphrase; and it's actually contrary to what they were saying (although the public had to read or listen very carefully to figure that out).

It certainly was appropriate for the media to inform people in the mandatory evac zones, or otherwise at special risk, that officials were calling for them to get out. But that should have been combined, in my humble opinion, with a frequent, deliberate repetition of information (a) about where the evac zones actually are, and that (b) officials had not called for a mass, simultaneous evacuation of all of Houston and Harris County.

Journalists, whether print or electronic (for that matter, including even bloggers), can't be "responsible" if they're not being "accurate." And with due respect, the fact that Rita was originally expected to be a Cat 5 storm and to track right over Houston doesn't excuse inaccuracies; that the storm has lessened and changed course just means that the consequences of those inaccuracies might not be so terrible (and let's hope that's the case). I hope we're both in a position to continue this civil debate Sunday!

Eric posted a very civil reply, but within a few more comments he was being taken to task by another commenter for "link[ing] to such a blantantly partisan blog (Beldar), even if it is on a relatively neutral subject. Scrolling down, it seems like a waste to give that breathless blogger the time of day." Likewise, Mr. Taylor perceived my post to be claiming that the Rita gridlock was "the liberal media's fault." My (slightly edited reply) on his blog:

Mr. Taylor, thanks for the link to my post, and this opportunity to leave a reply comment. I am indeed a conservative blogger, and I'm frequently a critic of what I perceive to be liberal political bias in the media. In this case, however, while I have fault to find with the media, it's pretty much unrelated to politics. My reference to Dan Rather was likewise not political (this time), but rather to his early career hurricane coverage that got him network notice.

To the very, very limited extent that politics has anything to do with this, in fact, my post was intended in part to defend Houston's mayor, Bill White — a prominent Democrat elected in a mostly nonpartisan city election whom I know well, and consider a friend, from attending Texas Law School with him in the late 1970s. I think neither he nor (Republican, not that that's significant here) Harris County Judge Robert Eckels are guilty of messing up the "phased evacuation by zone" plan, as they're being accused of having done by some officials from coastal counties whose evacuations were complicated by the gridlock. I think they were reasonably clear in only urging folks in the mandatory evacuation zones to flee. But media exaggeration and misreporting of their remarks, plus understandably heightened fears after Katrina, resulted in a far greater number of folks on the freeways than there needed to be or than anyone ever expected.

(As I write this comment, by the way, Mayor White's holding a televised press conference, and virtually the first words out of his mouth were (my close quote): "Now's not the time to be moving, now's the time to be taking shelter.")

I really, really don't think this is, or ought to be, about politics, nor (contrary to Mr. Taylor's other suggestion in his post) much about race either.

Again with the French Fry Case! (This time Nat Hentoff puts words in Judge Roberts' mouth)

One of Prof. Althouse's commenters provided a link to another article decrying Judge John G. Roberts, Jr.'s opinion in the famous French Fry Case, Hedgepeth — this one by Nat Hentoff in the Village Voice.  Dated September 9th, the article is already badly out of date. (That is, it comes from an ancient time when hard-left Democrats were confident that they could embarrass Judge Roberts and the Bush Administration during his Senate confirmation hearings.) And like Dahlia Lithwick, Peter Rubin, and many others before him, Hentoff could only make Judge Roberts' opinion look bad by falsely attributing to Judge Roberts ugly stuff that they'd made up themselves.

Here's how Hentoff misrepresents the record (ellipsis, italics, and all bracketed portions by Hentoff):

Here is what Judge Roberts said in his decision: "No one is very happy about the events that led to this litigation." Indeed, he added, this 12-year-old girl "was transported in the windowless rear compartment of a police vehicle to a juvenile processing center.... The child was frightened, embarrassed and crying throughout the ordeal."

However, righteously said John Roberts, revealing the core of his humanity under his black robe: "[The arrest advanced] the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts."

On Fox News Channel's July 20 Special Report With Brit Hume, Harvard law professor Laurence Tribe — whose books on constitutional law have often been quoted in Supreme Court decisions — addressed John Roberts's disposition of this flagrant criminal act by 12-year-old Ansche Hedgepeth:

"Saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn't that [decision by John Roberts] violate [the child's] liberty?"

He was referring to the essential constitutional interest in personal liberty that is particularly embedded in the Bill of Rights. Without those 10 amendments, the Constitution would not have been ratified.

Tribe went on to say, "The country needs to know, not how he will rule in particular cases — God knows, in the next 30 years, cases we can't even dream of will come before him — but what will be his starting premises about the Constitution?" (Emphasis added.)

As Tribe put it, "If you're a minor, one french fry and you're busted, [for the judge to show no discretion] needs some explanation."

Roberts gave his explanation in his decision. Ansche Hedgepeth was a delinquent! She and her parents must be taught a lesson about our immutable rule of law. "The question before us," Roberts wrote for the D.C. Circuit Court of Appeals, "is not whether these [Metro system] policies were a bad idea but whether they violated" the Constitution. "We conclude they did not."

Mr. Hentoff is obviously a student of the Maureen Dowd School of Journalistic Accuracy and Ethics. That is to say, at least in this article, Nat Hentoff told lies in print by doctoring his quotes and by fabricating much of what he didn't put inside quote marks.

The sentence that Judge Roberts actually wrote (at page 12 of the .pdf file) was this: "We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts." Hentoff butchers and misrepresents that sentence in several different ways.

First, Hentoff deletes the initial clause of the sentence, the reference to "rationally related," and substitutes for it instead his own phrase, "The arrest advanced ...." Hentoff apparently isn't a lawyer — his Doctorate of Laws from Northeastern University is merely honorary — but he writes frequently on legal matters and is billed as an "expert on the Bill of Rights, the Supreme Court, student rights and education." If so, or if he actually read the rest of Hedgepeth, he'd know that the "rational relationship" language he casually deleted was the key to the entire holding in Part III of the opinion and, indeed, dictated the result. That the Hedgepeth family's claims had to be reviewed under the "rational relationship" test rather than under some more equal protection strict scrutiny was virtually outcome-determinative. Perhaps that's a bit deeper into the law than Hentoff or the Village Voice chose to wander; well, if so, that's fine, but you ought to write about jazz clubs or some other topic altogether. If you're going to write honestly about law, lawyers, judges, opinions, and constitutional law, though, you can't just excise the most important parts.

But having excised the key to the opinion's equal protection holding altogether, Hentoff proceeds to twist Judge Roberts' words, and then simply fabricates others. Judge Roberts never wrote that Ansche Hedgepeth "was a delinquent!" or that "[s]he and her parents must be taught a lesson about our immutable rule of law." And not only did Judge Roberts not write that, nor anything that could be fairly summarized or paraphrased by those words, but those words are antithetical to what he did write. When a minor breaks the law, by definition that is a "delinquent act," and it was impossible to discuss the case at all without discussing the policy choice — created not by Judge Roberts, but by the District of Columbia statute and Metro's enforcement policies — to make juvenile french fry eating a crime requiring arrest. But rather than calling Ansche Hedgepeth "a delinquent," Judge Roberts' opinion actually refers to her by either neutral or sympathetic terms, and his deliberate inclusion of details of her arrest clearly reflect his recognition that she's been a victim (albeit a technically guilty one) of a stupid law and enforcement policy (albeit not unconstitutional ones). "Flagrant criminal act" is Hentoff's characterization, not John Roberts'.

Indeeed, from its opening sentences, Judge Roberts' opinion drips with disapproval and disagreement with the D.C. statute and Metro's policies for enforcing it. He writes:

The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.

This is probably as close to mocking someone as John Roberts has ever done from the bench. Yet is is Hentoff who seeks to portray — falsely, recklessly, outrageously — Judge Roberts as being the sort of "adult who make[s] young girls cry," and enjoys it. We could call Mr. Hentoff's style "mocking as a mockery of the truth."

Hentoff even uses bracketed insertions to distort Larry Tribe's statements! From the context, it's obvious that "why didn't that violate liberty?" referred not to Judge Roberts' opinion (which, by the way, affirmed the district judge's ruling and was joined in fully by the other two DC Circuit judges on the panel), but to Ansche Hedgepeth's arrest. Mr. Hentoff's bracketed insertions would only make sense if Prof. Tribe was saying Judge Roberts was the defendant in the lawsuit, and even Prof. Tribe isn't usually that confused.

(As for the merits of Prof. Tribe's statements: Supreme Court precedents from 1975 and 2001 cited by Judge Roberts (at page 12 of the .pdf file) show that "[t]he law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest[, and t]hat is true even with respect to minor offenses." These comments thus fall into the class of arguments Prof. Tribe feels free to make on TV, but knows better than to ever put in his books or articles, much less argue in court, because they're absolutely foreclosed by the caselaw. To observers more knowledgeable about the law than cable news hosts, such arguments make him look either very stupid or simply dishonest. I, for one, don't think he's stupid.)

Mr. Hentoff, Prof. Tribe, Ms. Lithwick, Mr. Rubin, and others from the left would prefer to have a Supreme Court that decides cases based upon its Justices' feelings. That's pretty much the whole point of Mr. Hentoff's article. Well, okay — I think that's ridiculous, but it's one point of view, and they're entitled to it. They're entitled to oppose Judge Roberts' nomination on the basis that he's made it absolutely clear, by his words and his deeds, that that's not the kind of judge he's been nor Chief Justice he'll be.

But what Mr. Hentoff and his friends are not entitled to do, friends and neighbors, is to misquote, misrepresent, and outright fabricate Judge Roberts' words — to not only unfairly impute repugnant, ugly feelings to John G. Roberts, Jr., but then to argue that those ugly feelings, rather than the law, have been the secret basis for his judicial decisions! It's not enough for them to oppose Judge Roberts' nomination on grounds that he's a judicial conservative who upholds, and decides cases based on, the rule of law. No, they've got to demonize Judge Roberts. Peter Rubin wanted to use the Hedgepeth case to imply that Judge Roberts is a closet racist, and now Nat Hentoff wants to use it to make him into a malicious child-hating bastard. Well, friends and neighbors, that's too vile a tactic even for their allies among the Senate Democrats to use. Not even Chuck Schumer or Dick Durbin would stoop that low. Such a malicious attack in a televised hearing against a man of such obvious decency would have blown up in their faces big-time — and that's why, I think, we didn't hear any mention of the Hedgepeth case from them in last week's hearings.

NYT opposes Roberts solely because he won't precommit to votes they'd prefer

It's a very high threshold to cross, but I do believe that this is the most stunningly disingenuous editorial I've ever read in the New York Times. The Times editorialists acknowledge that —

• "John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week";

• even "[w]eighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval";

• "few lawyers in America can compete with Mr. Roberts in professional accomplishments";

• "[i]f the test were legal skill alone, Mr. Roberts would certainly pass"; and that

• "[i]f he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice."

And those concessions — all of them blindingly obvious and indisputable — ought to be enough for any President's Chief Justice nominee to be confirmed. But of course, the present President is George W. Bush's nominee, and the shorter and more honest version of this editorial would have read: "Any nominee from this President for anything must be defeated."

Here's the crux of the Times' lie: "[I]n many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach." If you substituted "commitments as to how he'd vote" for "solid indication of his legal approach," this would be a true statement, and the former is in fact the only thing the Times cares about. The only thing remotely close to a principled reason to oppose the Roberts nomination that the Times advances is his refusal to precommit that on the merits of the most controversial and divisive cases the Court may face, he'll vote for the results the NYT prefers. That's as good as their argument gets, folks.

Well, okay then. If that's the standard, then the Supreme Court is solely a creature of politics. Let's just drop any pretense that we value "the rule of law" or "judicial independence" or "appearance of impartiality and propriety." Let's rename the Supreme Court and call it the "Supreme Soviet" instead. If that's the standard, then with respect to those vacancies that occur when the President and the Senate are controlled by the same party, the Senate will rubber-stamp every nominee; and with respect to those vacancies that occur when different parties control the White House and the Senate, the Senate's role will vanish entirely, and the President will keep the Court functioning solely through his power to make recess appointments that bypass the Senate. If that's the standard, then we've all been wasting our time on these confirmation hearings, and Dubya ought to just go ahead and recess-appoint, oh, say, Karl Rove as Chief Justice the next time the Senators leave town. (There's no constitutional requirement that the Chief Justice be a lawyer, after all.)

The only way a person of even marginal political intelligence could write an editorial like this would be if he's absolutely certain that he could immediately thereafter retreat behind anonymous storm- and logic-proof shutters, from which he's free to pretend that no counter-arguments exist. A three-minute debate would explode this point of view with a violence that would put the Hindenburg disaster to shame. I really do prefer my bomb-throwing revolutionaries without the hypocritical pretense of commitment to principles like "rule of law" and "judicial independence." Give me a Mark Tushnet who straightforwardly says (my paraphrase) "Dems, vote against this guy just because he's Dubya's nominee and you're against Dubya" over the polished, disgusting liars of the New York Times.

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UPDATE (Sun Sep 18 @ 1:00pm): I hasten to add that this nonsense from Phyllis Schlafly is every bit as disgusting to me as the NYT's editorial:

As John Roberts sailed through his confirmation hearings, conservatives stepped up pressure on George W. Bush to choose his next Supreme Court nominee more squarely in the strict-constructionist, Antonin Scalia mold. Another Roberts, according to conservative activist Phyllis Schlafly, would be "a betrayal." Why? Because Roberts left it unclear whether he would uphold Roe v. Wade, and Schlafly and others want a sure vote to reverse it.

From the right or the left, anyone who thinks Roe v. Wade is the only important issue the Supreme Court may face is an idiot. And anyone who thinks judges and justices ought to be picked and confirmed based on their precommitments to vote particular ways in particular cases doesn't understand — and hence is an implied enemy of and/or danger to — the rule of law.

Also, this   editorial from the Washington Post is about as vivid a contrast to the NYT editorial as one could imagine two consistently left-leaning newspapers producing. Key sentences:

[O]n a number of important issues, Judge Roberts seems likely to take positions that we will not support.... These [issues on which he may vote against the way we'd like] are all risks, but they are risks the public incurred in reelecting President Bush.

That almost gets it just right; my only quibble is that the word "risks" imputes a from-the-left frame of reference to the American public that I don't think can be justified, given the result of that election. But otherwise, the WaPo editorial reads like something written by grown-ups who understand the basic premises of both politics and justice. The NYT editorial reads like something written by teenagers who lack that understanding of either, and who're trying very hard, but without success, to hide the fact that they're still mid-tantrum over the last election.

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UPDATE (Sun Sep 18 @ 2:15pm): In her very good post contrasting the two editorials, Prof. Althouse makes some of the same points I've offered here — for example, that "The Times doesn't even face up to the issue of the illegitimacy of binding the nominee to particular outcomes" — along with the very interesting observation that none of the senators ever questioned Judge Roberts about the famous French Fry Case, Hedgepeth. She offers an interesting guess as to why, and I offer a different (and more self-important) guess in her comments.

Memo to Sen. Kerry

TO:	Sen. John F. Kerry
FROM:	William J. Dyer (a/k/a Beldar)
RE:	Limitations

Spectacular lawyer though you may (or may not) be in your own right, I know your staff includes some agile and diligent legal minds. Nevertheless, in the interests of fairness, I feel obliged to remind you of the fact that Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — which spent several weeks at No. 1 on the NYT Bestsellers List before last year's presidential election — was published on or about August 25, 2004, just over one year ago.

I'm quite sure you'll recall that many of your supporters, defenders, and admirers argued enthusiastically that fall, and even after the election, that you ought to sue Mr. O'Neill, Dr. Corsi, and their publisher, Regnery Publishing, Inc., for defamation — more specifically, for libel based on the book and slander based on their public comments in connection with it.

I'm less sure — but will nevertheless give you the benefit of the doubt — that you'll remember from law school and perhaps from your bar review course that defamation lawsuits are generally are based on state law, and that they are generally subject to state statutes of limitations, regardless of whether they are filed in state or federal court.

My concern, however, is that you may not be aware that most state statutes of limitations for defamation are quite short. In Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and you have your own regular place of business), those jurisdictions' respective statutes of limitations on defamation claims expire only one year after the alleged defamation is published.

Thus, in most of the logical, permissible, and likely venues in which you might have brought such a defamation lawsuit against Mr. O'Neill, Dr. Corsi, and Regnery Publishing, you've already allowed your potential claims to become time-barred, Sen. Kerry! D'oh! Why'd you let that happen?

There may be still be a few permissible venues — perhaps Massachusetts, which has a shamefully generous three-year statute of limitations for defamation — in which your sloth (or whatever else may explain your inaction to date) has not yet extinguished your potential claims.

Nevertheless, you're also doubtless aware that with each additional day that passes, the evidentiary trail grows colder; potential witnesses' memories fade; and the chances that jurors are likely to take your potential claims seriously continue to evaporate. There is no possible tactical or strategic benefit to your continuing to withhold your claims, and there are overwhelming downsides to doing so. Your delay is inexplicable if you believe your claims are meritorious.

On the other hand, regardless of limitations, truth is a defense to a defamation claim — whether that claim has been brought in days, weeks, months, years, or even decades after the alleged libel or slander is published. A defendant might even voluntarily choose to waive his or its limitations defenses. And even a defendant who has asserted an applicable statute of limitations as an affirmative defense may nevertheless choose, as a tactical preference, not to bring an early summary judgment motion. Indeed, some defendants may quite relish the opportunity to begin discovery on the merits, being delighted to finally have an opportunity to have subpoena power, oaths, and penalties of perjury to help them finally dig out the truth.

In fact, just based on my own personal experience with him, Senator, I'd sorta bet that John O'Neill would not only waive limitations, but even pay your filing fees for you!

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

The 2008 campaign season is right around the corner, Senator, and nobody is likely to forget the SwiftVets' allegations before then. If you believe that you have a legitimate defamation lawsuit, sir, you must use it or lose it. Put up or shut up. You snooze, you lose.

Tick-tock, Senator. Tick-tock!

Of farts and pop-ups: GlaxoSmithKline is conspiring to infect your PC with noxious adware

[Preliminary note: This is an angry consumer rant. It is based on demonstrable facts, but also contains what I believe to be well-informed and justified opinions. My readers may decide for themselves whether they agree with my opinion, for example, that GlaxoSmithKline is conspiring to infect consumers' PCs with noxious adware. But here's a word to GSK's legal staff: If you want to hash this out in court, my full professional contact information is linked from this website, and I'll be glad to meet you on the steps of either the Harris County Civil Courthouse or the U.S. District Court for the Southern District of Texas, Houston Division. If I can, I'll live-blog the whole deal. And let's also both invite the boys and girls from the mainstream media, shall we?]

After my cardiac adventure in July, I made some big changes in my diet. I was dismayed to learn, though, that a high-fiber diet rich in fruits and vegetables is also a diet likely to produce lots of flatulence. My new, healthy breakfasts of low-processed oatmeal, for example, were leading to bloated and embarrassment-risky mornings. As I looked for ways to manage this problem, my research quickly took me to the website — one I shan't link here, for reasons that will become obvious — of a fairly well-known over-the-counter product manufactured by mega-super international drug conglomerate GlaxoSmithKline. That product, "Beano®," is claimed to contain a "food enzyme from a natural source that works with your body’s digestion to break down the complex sugars in gassy foods[,] making them more digestible."

Well, that sounded promising, and I decided to give Beano a try. Now, ordinarily I'm not much of a coupon-clipper. But I'll bend over to pick up a dime on the ground, and if I'm planning to buy a product anyway, I'll usually clip a coupon for that product if I happen to see one. Thus I clicked the link on the Beano website that promised "$1 Off Coupon and Free Food Pyramid Partner Informational Card."

I'm also a firm believer that TANSTAAFL is one of the natural laws that drives the universe, however, and so I wasn't surprised or particularly dismayed to have to fill out an online survey before I got to the coupon. And yeah, although like everyone I'm up to my neck in email spam, I was willing to fork over an email address en route to the coupon too (although I was a bit miffed that there wasn't an obvious "spam opt-out" box to check). But on my first read-through, I didn't notice the statement reading "You may be prompted to download a small, free software application (called a Coupon Manager) to print," nor click the link to "Learn more about the Coupon Manager and the print process." Instead, I fired up my printer, clicked the "Print My Coupon" button, and expected my browser window to fill with a coupon that I could print out and take to the supermarket.

But no. Instead I found myself at a screen that said: "You need to activate your Coupon Manager. Please make sure your printer is on, and click 'Activate Now’ below. Your coupon will print automatically in about 30 seconds!" And being a typical consumer (which is to say, a vulnerable idiot), I clicked on the "Activate Now" button.

Thankfully, however, in one respect I'm not a typical consumer/vulnerable idiot. A few months ago, I'd finally taken up the suggestions of many friends and had (mostly) quit using Internet Explorer as my default web browser, switching instead to Mozilla Firefox mostly for its better security. And here, Firefox saved me: "To protect your computer, Firefox prevented this site (mn103.coolsavings.com) from installing software on your computer."

Having dodged a bullet, I began looking into who'd shot at me. In fairly short order, I learned that "Cool Savings" is a company that promulgates noxious adware — programs that stealthily infect your PC and that thereafter will pop up windows offering you products you've never expressed any interest whatsoever in buying. They're a zillion times worse than mere email spammers; they're more than simply annoying because they can slow down and eventually paralyze a PC. And they're deliberately designed to be difficult to get rid of.

Just a little bit of Googling took me to this address, where I learned that the specific bit of adware mischief I'd just avoided would have "display[ed] popup/popunder ads when the primary user interface is not visible or which do not appear to be assocaited with the product," and that it "[c]an't be uninstalled by Windows Add/Remove Programs and no uninstaller is provided with the application."

By this point I was more than mildly annoyed, so I began tracing my steps back and looking more closely at the disclosures/warnings — or lack thereof. Checking the "learn more" link I'd skipped earlier, I found this carefully crafted bit of pseudo-disclosure (boldface mine):

The Coupon Manager is a free application powered by CoolSavings, Inc. that securely prints GSK coupons. It helps us bring you high-quality coupons that scan at the register. It is not a trojan, virus, spywear [sic] or virus-delivery software. You will need to install the Coupon Manager to print the coupons. The first time you print a coupon, you will be given instructions on the downloading process....

CoolSavings is #1 coupon delivery Web site on the Internet and trusted partner of GSK.

This is called lying by hiding the important part of the truth. This "disclosure" makes it look like GlaxoSmithKline — a major multinational corporation whom millions of people quite literally trust with their lives when they take GSK medications — is assuring you that you're not screwing up your computer as a cost of printing out this lousy $1 coupon. And technically, the "Coupon Manager" may not be a piece of "trojan, virus, spywear [sic] or virus-delivery software." No, it's just noxious adware that will pester you from now until kingdom-come with pop-up windows containing offers to sell you products you've never expressed any interest in, and that you'll have a devil of a time scrubbing off your computer. To put it mildly, whatever "consent" Cool Savings and GSK obtain in connection with this disclosure is, in my considered opinion, completely invalid because it's not informed consent. To be minimally adequate as a basis for securing informed consent, the disclosures would need to contain the terms "adware," "pop-up windows," "unrelated products," "perpetuity," and "demons from hell." (Well, maybe not that last one, but certainly the first four.)

Now genuinely incensed, I emailed GlaxoSmithKline to complain, and to alert them that they were in bed with a company that promulgates noxious adware. Here's what I got back:

Dear Mr. Dyer,

We have received your e-mail message regarding Beano® Food Enzyme Dietary Supplement.

We're sorry to learn that you have been experiencing difficulty downloading the coupon.  You do not need to agree to future emails in order to receive the $1.00 coupon.

We are not sure why your coupon did not print for you but this is not the reason.

We do manage our coupons through a coupon manger, Cool Savings. It is not secretly installed as you must agree to have the program downloaded. We are sorry to hear that you do not care for our process. We will notify our technical support team of your comments.

We appreciate you as a Beano® customer and again apologize for any inconvenience you may have experienced.

We appreciate your taking the time to contact us.

Sincerely,

Sharon
GlaxoSmithKline Consumer Healthcare

Now I know that the scammers and the spammers, like the poor, will always be with us. I have no expectations from a company like "Cool Savings," other than a vague hope that some reasonably competent and responsible state attorney-general will put them out of business. But ladies and gentlemen, friends and neighbors, GlaxoSmithKline is "a leader in the worldwide consumer healthcare market" that has "nearly $5 billion in sales, over ten $100 million brands and [is] present in 130 markets." It claims that it "will promote [GSK's] products in line with high ethical, medical and scientific standards and will comply with all applicable laws and regulations." It claims that "[b]usiness ethics is the responsibility of everyone at GSK, not just senior managers," and further claims that "[i]nducements such as gifts or bribes are never acceptable under any circumstances." Yet GlaxoSmithKline knows that the company it's dealing with for these coupons will deliberately and surreptitiously infect your computer with noxious adware, and it falsely pretends that you've knowingly asked for it to do so! Moreover, GSK knows that its "free coupon" absolutely entails nonmonetary costs and inconvenience that its "trusted partner" has carefully failed to disclose.

Indeed — and in this paragraph I'm speculating and making what seem to me to be reasonable inferences, make no mistake — I'd bet dollars to donuts that GSK is getting fees from Cool Savings, quite possibly calculated on the basis of the number of computers thus infected. And I'd bet that Cool Savings, in turn, is buying the presumptive legitimacy of an internationally known company like GlaxoSmithKline precisely because that's the best way to sneak past consumers who'd otherwise never be stupid enough to "consent" to their abuse.

If GSK wanted to offer you a normal $1-off coupon that you could print from its website and take to the supermarket, it could do that with a simple .gif file. Instead, it appears, and it's my considered if subjective opinion, that GlaxoSmithKline has jumped in bed with whored itself out to knowingly become the "trusted partner of" a rip-off artist noxious adware company — not just to try to get you to buy Beano, but to get a cut of the rip-off artist's noxious adware company's sleazy profits. And that's way, way below the standards of professional or corporate ethics that I'd expect of a company in GlaxoSmithKline's position.

I can't speak for anyone else, but as for me: I'd rather fart.

(By the way, I emailed "Sharon" at GSK's Consumer Healthcare division to advise GSK that I intended to blog about this, with an offer to "print any additional comment or reaction or defense that you or anyone else from the company might wish to offer." No answer; but that offer still stands, and my Comments section is open, and I'll email her a link to this post. I'd be delighted to read and reprint here any attempted justification GSK might offer, and more than delighted to correct any factual errors, add any additional contextual facts, or pass along, when and if true, a report that GSK has come to its senses and mended its ways.)

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

UPDATE (Sat Sep 17 @ 5:30pm): I'm amused to read of an anti-spyware/adware/malware company that purports to provide "secure content management products and solutions to 50% of the Global 100 corporations, and 40% of the Fortune 500 ... especially those with high volumes of electronic communications, or those for whom content has high value[, such as] GlaxoSmithKline." Whatcha bet that GSK tries very hard to keep Cool Savings' software the heck off its company PCs?

Chavez: Crazier than Dean or not?

Reading this story about Venezuelan president Hugo Chavez' insistence that the United States is planning to invade Venezuela (for its oil, of course), I was suddenly struck with a thought: Having Chavez as your president would probably be a lot like having Howard Dean for your president. I know there are many sane people in Venezuela, and hereby extend my sympathies to them.

Big Lizards live

One of the interesting things about writing a blog is that over time, you begin to recognize and appreciate your regular and semi-regular commenters, if you're fortunate enough to have any. You also nod and smile when you see their comments elsewhere, too. If the commenter's name or pen-name is memorable for some reason -- say, distinctively Welsh -- then that further helps connect the dots.

One of my own long-time favorite blog commenters, here and elsewhere, has been Dafydd ab Hugh, self-described as a "libertarian-conservative, anarcho-capitalist, erstwhile Discordian, secular, Darwinian, politically non-Euclidean science-fiction and fantasy writer" who says: "I'm not a conservative, but I caucus with them." It's perfectly obvious to anyone who's read even a few of Dafydd's comments that he's articulate and opinionated. Add in that he's guest-blogged prolifically and well in the recent past at Patterico's Pontifications and Captain's Quarters, and by that point it becomes unsurprising, even preordained-feeling, to learn that Dafydd has indeed started his own blog (and associated website).

The name of his new blog — Big Lizards — is something of a surprise, at least to me. But it's good that there are at least some small surprises as part of pleasant and not-unexpected news.

Sometimes little things say a lot. The small graphic at the top of Dafydd's sidebar, for example, tells me (as if I already didn't know it) that Dafydd is the kind of continuous student of history and the world with whom I can easily relate. I'm pretty sure, for example, that if he and I were listening to several other people conversing about what a "quagmire" our military has gotten into in Iraq, and how shocking our casualties are week after week, either he or I might interrupt to say something like this — "Yeah, but ... Cold Harbor" — and the other would nod and say, "Yeah, argument over." Some of the others listening might get the reference, but sadly, most probably wouldn't. Those who did would likewise recognize that the reference wasn't intended to minimize or trivialize our Iraq casualties — every one is absolutely tragic, and every one of them was a real mother's son or daughter whose comrades-in-arms and family and friends have been absolutely pole-axed by their loss. But if you don't have a broader perspective to put those casualties into, then you're not properly appreciating the significance of their lives either — how smart and incredible a job the current U.S. military is doing of protecting its own while getting some important things done, just for example, as compared to any remotely similar endeavors by any other military in the known history of the world — and you're therefore likely to make some really silly misjudgments in trying to assess what's going on both there and in the rest of the world. That's the kind of thing that Dafydd ab Hugh not only gets, but apparently (like most of the rest of us in the blogosphere) feels some sort of irresistible compulsion to discuss and write about in hopes of influencing peers and, perhaps, educating the educable.

And bless him, Dafydd's not another damned lawyer-blogger, who're proliferating like fleas. (Well, some would say ticks. No quibble here. Hey, even the ennobled John Roberts likes a good lawyer joke.)

Anyway, I'm quite confident in predicting that Big Lizards will be a big hit, and I congratulate Dafydd on its launch! Go have yourself a look, friends and neighbors.

How good was Judge John Roberts this week?

He was so good that:

• Hundreds of liberal law professors around the country are thinking to themselves: "Damn, if that conservative sumbitch had been in one of my classes, I'd have been forced to give his white male butt an 'A+' anyway. Damn!"

• Millions of hard-left Democrats are thinking to themselves: "Damn, I never believed that lucky Chimpy McBus**tler could find somebody that good. He gets all the big breaks — first 9/11, now this. Thank goodness there's probably not another one out there who'll be that good to put in the next spot. Surely we can get some traction next time!"

To which I have a two-syllable reaction: "Tee-hee."

Judge Roberts as Atticus Finch, and the Killer Question that was never pressed: "Would you have taken the Topeka Board of Education as your client?"

During the very last bit of questioning of Chief Justice-nominee John G. Roberts, Jr. on Thursday, it appeared to me that Sen. Richard Durbin (D-IL) had been fed by his staff what was intended to be a "killer question" that would finally trip Judge Roberts up — that would produce a sound bite and a headline under the cover of which Democratic senators could rally to purportedly justify votes against Judge Roberts' confirmation. I tend to think that what he did with that killer question was due to ineptitude — after all, this immediately followed Sen. Durbin's plea that the special counsel looking into prosecution of the purported theft of Senate Dems' computer files last year take a close "look at the precedent of the Paris Hilton case and see if he can perhaps protect our records as much as we want to protect that poor young lady's telephone records." But I can't rule out entirely an attack of at least subconscious conscience and ethics on Sen. Durbin's part. Anyway, for whatever reason, he muffed and muddied the delivery of the would-be killer question, and thereby missed a chance for effective demagoguery. From the transcript, here's how he started, promisingly enough:

DURBIN: If I could, I'd like to return to a discussion that we had yesterday about a very fundamental question. I asked you yesterday about a case that you handled as an attorney involving a large HMO, in which you advanced a very narrow reading of an Illinois state law.

Had your position prevailed, millions of American families stood the risk of losing coverage for their health insurance. You did not prevail, and as you mentioned, a closely divided court — which again underlines the importance of each new justice as we consider them — but your position did not prevail.

Let me read what you said to me in response. You said you'd told me you had no reservations about taking the case. And here's what you said, quote, My practice has been to take the cases that come to me and if the other side in that case had come to me first, I would have taken their side, end of quote.

I want to follow up on this.

Whether he himself or some clever aide had written it, up until at least this point, Sen. Durbin was sticking closely to his prepared script. And this was indeed an effective set-up, because it established nicely that at least in some circumstances, Judge Roberts had already acknowledged that he could and should answer hypothetical questions about what clients and cases he'd have taken as a practicing lawyer.

It may be that what Sen. Durbin actually said next was still in the script, but just less cleverly planned — and I'll get to what he actually did say in a moment. But first I'll tell you word for word, friends and neighbors, exactly the killer question that Sen. Durbin should have asked immediately after laying that predicate:

DURBIN: If the members of the Topeka Board of Education had come to you in the early 1950s and asked you to represent them in the Supreme Court against young Linda Brown and her family, would you have taken or refused that case?

The politically correct answer, of course, would be a simple "I would have refused it." But as I'll explain in a moment, I'm almost certain that's not the answer that Judge Roberts would have given. Instead, he would have told the truth. And that's why this might have become the "killer question" that none of the Democratic senators ever found.

If the question had been asked exactly this bluntly, after exactly the same set-up that Sen. Durbin had in fact already made, and if Judge Roberts had given any answer other than an unequivocal "I would have refused it," then the Dems would have either had a far, far better example of him being noncooperative and evasive than anything they actually got all week long, or else something better.

And indeed if Judge Roberts had answered (as I believe he would have) with something like "Yes, I would have taken the Board of Education's case, and let me tell you why ..." — well, then, there's your sound bite and your headline. And some very substantial part of the population of the United States — maybe not a majority, but numbering in the tens of millions — would have tuned out any follow-up explanation he might have tried to give. "He admitted he would have gladly fought for racial segregation," the Dems could have said — "Roll that clip again!" That wouldn't have prevented Judge Roberts from being confirmed, but it would have given the Dems cover for most of them to vote against him.

*******

This illustrates something good trial lawyers understand, but that apparently none of the Democratic senators do: The cross-examining questioner has an inherent advantage simply by virtue of always being able to frame the question (and the next question after that). The essence of brilliant cross-examination is using that advantage to maximize the probability of extracting from the witness' own mouth the specific statements you want — organized, sequenced, and phrased in just the way you carefully choose to present those statements, and without any context or adornment or distractions that you don't want emphasized.

When you are dealing with an honest adverse witness, even a very articulate and intelligent one, this advantage actually becomes all the more powerful. If you know the witness is honest, then you can predict with a high degree of certainty what he'll say. If you're confident that he will tell the truth, then you can afford to ask him very specific but non-leading questions that don't appear to suggest their own answers. You don't have to put words into the witness' mouth, and if you don't have to, you don't want to: When the devastating words come out of the witness' own mouth for the first time — as opposed to being something obtained by extracting the witness' grudging acknowledgment with something the cross-examiner has said — those words are at least twice as powerful and memorable. The best "Perry Mason moments" weren't when Perry just got the witness to answer "Yes, I did it!" to the question "You killed Col. Plum in the library with the candlestick, didn't you?!?" Rather, the best "Perry Mason moments" were when Perry had first done a careful set-up: "So the library lights went out? The dog was outside? The candlestick was in your hand? And Col. Plum, who'd stolen your dowery, had turned his back to you?" And then Perry asked the ultimate killer question: "And what if anything did you then do with that candlestick?" The witness always blurted out: "I can't take it anymore, I admit it, I killed Col. Plum in the library with the candlestick!" The difference is between your audience merely nodding at the former, and gasping at the latter. And once words which originated in the witness' own mouth have escaped into the open, they're impossible to put back, and almost impossible to avoid.

If your would-be killer question is long, or muddy, or has multiple parts, or has undefined, fuzzy terms — then you squander all of that natural advantage, and instead you give the witness the very tools he needs to survive your question. It's hard to push and hold the witness under the surface of the water with one hand when you're handing him a life preserver with the other.

Recall, for example, Sen. Schumer's futile attempt to grill Judge Roberts on whether he disagreed with Justice Thomas' statement in Lawrence v. Texas to the effect that "there is no general right to privacy." This was one of the relatively more artful attempts at cross-examination during the hearing; Sen. Schumer had set it up by first extracting and then reemphasizing Judge Roberts' testimony that he believes there is indeed a substantive "right to privacy" (of some sort) as a component to the "liberty interest" protected by the due process clause of the Fourteenth Amendment. And he would have been equally happy to get Judge Roberts either to say he agreed with Justice Thomas, or that he disagreed and that Justice Thomas was wrong. But when Sen. Schumer tried to bait the hook on his next question with a phrase that included an additional qualifier, Judge Roberts promptly spat out that hook; he objected and quibbled, entirely appropriately, over the qualifier "general." They then argued for four or five minutes about whether there's a distinction between a "right to privacy" and a "general right to privacy," with Judge Roberts insisting, perhaps plausibly, that even Justice Thomas would agree with the former but not the latter. Sen. Schumer lost all his momentum; nothing transpired that could make it into a sound bite or a headline; nothing made the audience gasp and sit up suddenly. He thought he'd found a "no-lose" question, but he couldn't quite pull it off. And the reason for that, at bottom, is because it wasn't a fair, straightforward question; that modifier, "general," was indeed important.

Thus, the killer question can't be an obvious rhetorical trick, a "when did you stop beating your wife?"-type question. Those insult your audience's intelligence. "Aha, then you admit that God could make a rock too heavy for even him to lift!" may be the sort of thing philosophers can argue about for centuries, but that kind of rhetorical trick makes little impact on the average observer. Worse, a good witness can often use those tricks to ju-jitsu you onto your back.

But when you've laid your proper predicate, and when your killer question is transcendentally, self-evidently, righteously clear, clean, and fair, then you'll either get the straightforward killer answer that you seek and expect, or else the witness will obviously look like a quibbler and a prevaricator. Sometimes you're just as happy with the latter, especially when you can highlight it. And quite often you can even get both, which is the best of all worlds! Provided that you have already built up some credibility with your audience as being a polite and fair questioner, then when the witness begins to quibble with your killer question, you can take the extraordinary step of interrupting — very politely but forcefully: "No, sir! Would you have taken the Board as your client or not? Yes or no?" Depending on how sympathetic and credible the witness is, you might even get away with one additional interruption: "— Excuse me, Judge Roberts, but my question calls for a 'yes' or 'no' answer. Please answer 'yes or 'no,' and then I'll give you all the time you want to try to explain that answer: Would you have taken the Topeka Board of Education as your client?"

Not to take anything away from Judge Roberts' brilliance as a judge, lawyer, and witness — fighting this guy even to a draw would have been a huge and improbable victory for the Democratic members of the Senate Judiciary Committee — but the Dems have this week proven themselves the Opportunity-Squandering Masters of the Universe. I don't believe a single one of them could make a decent living in a courtroom, unless it were as a janitor.

*******

I am almost 100 percent certain that Judge Roberts' truthful answer to that question, if it had been cleanly asked, in fact would have been, "Yes, I'd have taken the Topeka Board of Education as my client." That's based on what was actually said. But as you read the transcript, note how Sen. Durbin blows all of his natural advantages. He's long. He's fuzzy. He uses lots of qualifiers, and becomes progressively less, instead of more, specific. And worst of all, he starts with something substantially weaker than his killer question, which was indeed Brown v. Board of Education. Instead, he picked Romer v. Evans, a gay-rights case from Colorado on which roughly half the country disagrees with the Democratic Party line. Rather than alarming his own base, and perhaps alarming others outside it, by going straight to Brown, Sen. Durbin instead comforted Dubya's base by asking about whether Judge Roberts would just as gladly have helped out the anti-gay-rights forces in Romer! And thus, not only did Judge Roberts have no trouble deflecting Sen. Durbin's fumbling efforts with Romer, but he had a good head of steam to continue bulldozing Sen. Durbin when he finally, weakly and confusedly, sorta kinda got to Brown v. Board of Education:

You have taken some pride in the pro bono cases that you have taken, and I'm glad you have. I think that is part of being a professional, accepting pro bono cases.

You were asked the other day about your participation in the 1996 case of Romer v. Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans. You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation.

So I'll ask you, if the other side had come to you first and said, Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians, would you have taken the case?

ROBERTS: It's a hypothetical question.

Of course, I think I probably would have, Senator. I actually have done pro bono assistance for states on a regular basis through the National Association of Attorneys General. And, if I'm remembering right, the state would have been the other party in that case — I think that's right.

And, through the state and local legal center, I've participated in moot courts with the states on a regular basis.

And a big part of my practice was representing states. So, if a state — in that case, Colorado — had come to me and said, We have a case in the Supreme Court; would you defend it? I might — again, I can't answer without knowing the full details and all that, and I'd have to look at the legal issues. And I would not, and never have, presented legal arguments that I thought were not reasonable arguments. It doesn't necessarily mean they're going to prevail, and I've certainly lost my share of cases.

But it is not been my general view that I sit in judgment on clients when they come to me. I viewed that as the job of the court when I was a lawyer. And just as someone once said, you know, it's the guilty people who really need a good lawyer.

I also view that I don't evaluate whether I as a judge would agree with the particular position when somebody comes to me for what I did, which was provide legal advice and assistance, particularly before the Supreme Court.

DURBIN: I have a long series of hypotheticals I won't get into, such as, all right: Would you have represented the D.C. government against the welfare families? You took pride -- you spoke to me of your pride in representing the poor people in the District of Columbia on their welfare rights.

I could ask you whether you would have taken the side of the board of education in the Brown case. Would you have taken the side of the state of Virginia in Loving? I could have gone through all those hypotheticals.

The reference to the "long series of hypotheticals" is what makes me think that someone else wrote this for Durbin, and he muffed it. He came to the on-the-spot conclusion that this wasn't working. So what's he do? He stumbles around some more, and ultimately asks an off-the-cuff touchy-feely question — that is, he abandons his fastball and instead throws a floater belt-buckle high right down the center of the plate, which of course Judge Roberts crushes out of the ballpark:

And the purpose of my original question was this: All of us are trying to get down to, what are your core values. Where would you draw a line, saying, I do have principles and values. There are certain things I would not use my legal skills to do because they conflict with those values?

If this is just a process, a legal contest and you'll play for any team that asks you to play, it raises a question about where would you draw the line, if you would ever draw the line.

And I think that is why I've asked this question and I want to give you an opportunity now to tell us....

... As a lawyer, do you have standards and values as to the causes and beliefs that are so important to you where you would draw a line?

ROBERTS: Well, let me try to answer it this way, Senator.

People become lawyers for different reasons, all perfectly good and noble and legitimate.

People who are interested, for example, in protecting the environment often will go into the law and practice environmental law because they think that's an effective way to advance a cause in which they passionately believe.

People who are committed to the cause of civil rights may become lawyers and become civil rights lawyers and present and press those causes because they're causes in which they passionately believe.

I became a lawyer — or at least developed as a lawyer — because I believe in the rule of law.

The point I was trying to emphasize in my opening statement that all of these other areas —  you believe in civil rights, you believe in environmental protection — whatever the area might be — believe in rights for the disabled — you're not going to be able or effectively to vindicate those rights if you don't have a place that you can go where you know you're going to get a decision based on the rule of law. It was the point I was making with respect to the Soviet constitution: filled with wonderful sounding rights; absolutely meaningless because people who suffered under that system had no place they could go in court and say, My rights have been violated.

So that's why I became a lawyer, to promote and vindicate the rule of law.

Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust: I've defended corporations; I've sued corporations.

In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system.

I viewed that as — I appreciate that the some may say, Well, that sounds like you're a hired gun, to be disparaging. You're going to take the side of whomever comes in the door first.

I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.

That's why when the chief justice welcomes new members to the Supreme Court bar, he welcome welcomes them as members of the bar and officers of the court, because that is the important role that they play.

That has significance for what types of arguments they can present and how they can present them.

By the time they were done, Judge Roberts basically was Atticus Finch, and Sen. Durbin was just another doofus — someone more likely to be part of a lynch mob of one sort or another than a meaningful contributor to the justice system.

Of course, I happen to think Judge Roberts is a lot like Atticus Finch, and that Sen. Durbin is a doofus. My initial, cynical point in this post was to show how the Dems could have been more effective — not right, and in fact, I mean "effective" at demagoguery.

In fact, if I were asked, "Would you have undertaken the representation of the Topeka Board of Education, my answer — gasp! — would be "Yes, I would have, but let me tell you why." Yes, the Dems would definitely have gotten their headlines and sound-bite out of me if I'd been the nominee and they'd been clever with their questioning. Here's what I would have said after the "Yes, but" — in other words, what would have been relegated to 3:00 a.m. on C-SPAN2, and ultimately a trivia answer to the question "What ever became of that disastrous Beldar nomination to the Supreme Court?"

*******

I have to qualify my entire explanation by noting that there aren't many clients whose positions are so thoroughly repugnant and, yes, evil as were the segregationists. And even most of them were victims of thorough self-delusion; some of them were wrongly but sincerely convinced that their position was for the "good" of both races. I'm not trying to justify their position in the slightest, but rather to point out that in the real world, absolutely pure- and black-hearted clients aren't all that common. But let's stipulate, for purposes of this discussion and without any further back-and-forth, not only that the Board's position was wrong in hindsight, but that they should have known it was wrong then. And I also should note that some types of culpability spark such intense negative passion in some lawyers that regardless of their belief in "the system," they just can't bring themselves to undertake a particular representation. Somewhere, for example, there is a lawyer idealistic enough that he could undertake the representation of Osama bin Laden, but I'm not that guy. And there may be people who genuinely feel there's no meaningful distinction between Osama or Hitler on the one hand, and the Topeka Board of Education or George W. Bush on the other. Let's likewise stipulate that they're entitled to that viewpoint as well, and to self-select themselves out of the system. So we're talking now about the category of potential clients whom, roughly, one thoroughly disapproves of, condemns, and deplores on moral grounds, but with whom one can bring himself to converse and sit in the same room without an overwhelming and irresistible compulsion to initiate physical violence. Where those lines get drawn is very subjective and varies according to the individual lawyer, client, and issue.

Those qualifications made, I'd start my explanation proper by saying that in 1954, things were very different indeed. Society was different and the existing law was different. If someone asked me to take a case trying to justify racial segregation today, I'd absolutely refuse to do so, and indeed I'd kick them the hell out of my office. That's because under today's law, that would be a frivolous, even sanctionable position to take — entirely apart from it being morally repugnant.

But it was a morally repugnant position even while Plessy was still the law of the land. So why would I ever take a case defending a client whose position I found morally repugnant?

To begin answering that, I'd launch into my standard spiel about the huge and essential difference between the two crucial functions of a trial or appellate lawyer — first as a counselor, and only second as an advocate. I'd explain that if the Topeka Board of Education had hired me in 1954, I'd have taken the case in part so that I could do my very best — as a counselor behind closed doors and in the sanctity of attorney-client communications — to persuade them that they were wrong, badly wrong and ultimately shortsighted, regardless of the law, and that they ought to voluntarily desegregate.

Indeed, before accepting the engagement at all as either a counselor or an advocate, I'd have considered myself ethically bound to disclose to the Board that I found their position absolutely morally repugnant. I'd have pointed out to them the very significant likelihood that because of my strong personal convictions and emotions, my objectivity and judgment, and very likely my effectiveness, might be compromised in ways invisible to me and perhaps to them. I'd insist on a written waiver confirming that they'd received and understood that disclosure, and that they'd agreed to hire me anyway (in lieu, presumably, of a bigoted and therefore unconflicted but perhaps less effective lawyer).

But what if I'd gotten that waiver and then I'd nonetheless failed in my effort as a counselor to persuade the Board to give up the fight? Then yes: I'd have done my best — as that famous (among history-minded lawyers anyway) "Lawyer's Lawyer" and 1924 Democratic Party Presidential candidate John W. Davis in fact did — to justify the Board's position in court as an advocate. I'd have done my best for exactly the same reasons that Judge Roberts explained. I believe that public confidence is justifiably highest in the legal system, and that the system is most likely to most consistently produce actual justice, when the adversary process has been fully engaged in and the courts have been presented with the strongest possible arguments to be mustered for each side. I would have expected, and privately hoped, to lose, and I would have been unsurprised, and privately relieved, when that in fact happened. And by 1954, I would indeed have lost, and so would John Roberts, if either of us had been representing the Board. The Board deserved to lose, and by then that was going to happen regardless of how good the Board's lawyer was. I suspect, in fact, that John W. Davis — the ultra-"John Roberts" of his day in terms of being a frequent and successful Supreme Court appellate advocate — privately felt that way too.

*******

This notion of a moral, ethical lawyer willingly representing a repugnant, evil position is very difficult for many people to accept — including some very bright people who fully understand the arguments that such representation is necessary in the overall interests of justice. Perhaps the best way I've found to get the doubters to take a fresh look, though, is to slightly change the focus — and to do so in a way that might have also been illustrated by questioning of Chief Justice-nominee Roberts. What if the question had instead been this one:

DURBIN: Judge Roberts, if you had been the Chief Justice of the United States in 1954 instead of Earl Warren, would you have barred the Topeka Board of Education from participating in the proceedings in the Supreme Court, refused to read the briefs filed by its lawyers, and summarily ruled against the Board without ever giving its lawyers any opportunity to be heard?

When posed that way, I think the instinctive, intuitive answer of almost anyone who understands and respects the concepts of justice and the rule of law is to say: "Well, they deserved to lose alright, and maybe also to eventually rot in hell for at least a few centuries; but they also deserved to at least get to be heard by the Supreme Court before it fixed the law by overruling Plessy." And they're right — without guarantees of that access, that procedural fairness, there can be no substantive justice for anyone.

It's just, perhaps, that lawyers — jaded and cynical as we often are — understand from working inside the system that both in theory and in practice, having dedicated advocates representing both sides is just as essential as the judge letting both sides through the courthouse door in the first place. We understand that Thurgood Marshall's magnificent victory in Brown would have lacked much of its glory and legitimacy had it been over an adversary less skilled than John W. Davis; both men played an essential part, as, of course, did the Court. And sometimes — when, as counselors, we can't achieve a settlement or a plea bargain or some other non-adversarial resolution — then as advocates, we've just gotta "take one for the team" ("the team" meaning "the whole justice system") and do our best in what nevertheless turns out to be, and in the interests of justice should turn out to be, a losing effort.

Sometimes a lawyer genuinely does his best, but loses —  and doesn't, and shouldn't, lose any sleep over it.

Yet more about the first Vioxx verdict, and the law professors who hate it

I feel pretty much about this attack on the jury system by a law professor as I did about this one and this one, even though they're all from law professors I like and respect. As I wrote in the comments on one of the latter two  posts (and wrote about more generally here and here), I sure wish some of these law professors would come try some jury cases with me before they start making these blanket indictments of the jury system. But failing that, it's nice when they open up their blog posts' comments and are willing to swap and consider contrasting views (as Profs. Bainbridge and Ribstein have done, to their great credit).

I sorta think it'd be useful if, when law professors are forming their opinions, they'd at least take into account what real trial judges and real trial lawyers (from both sides of the docket) have observed in their personal experience with jury abilities. With due respect, I don't think you can learn a whole lot in general about juries just from law review articles, other law professors, or the popular press.

Prof. Bernstein, for example, writes of "how obvious it is that complicated scientific evidence presented orally in an adversarial system will inevitably be beyond the comprehension of many lay jurors." Well,  I'm sorry, but it's not obvious to me. It's not obvious to most of the trial judges and trial lawyers I've worked with for the last 25 years either.

And I'm not sure about Prof. Bernstein's personal experience, but I've actually tried jury cases with complicated evidence, scientific and otherwise. For example, representing several different insurance companies on the defense side, I tried a series of jury trials in the early 1980s in which jurors were required to assess the development of both legitimate and quack cancer drugs. The medical and scientific evidence was at least as complicated as in the Vioxx litigation; some of the best cancer researchers in the world testified. I won (or settled on very favorable terms) way more than my share of those cases, and after the one big one that I lost, I certainly didn't whine about that jury, much less jurors in general, being stupid. That jury wasn't stupid; in fact, they could (and did) chat knowledgeably with me after the case about placebo effects, the differences between Phase II and III clinical trials, tumors growing so fast they'd outstripped their blood supply, FDA "new drug application" stages, and all sorts of other things that they'd learned about from the evidence. Rather, they responded to a superior strategy for framing the issues effectively that my opponent had come up with for a retrial after I'd won that same case with the first jury. I actually convinced both juries on the science, but the second one concluded that the case was really more about insurance company business practices, and they were quite arguably correct about that. Still stings, but I learned from it, as did my client.

In all those cases, and in every other case I've tried that involved complicated medical, scientific, engineering, or technical information — which actually has been a large majority of the total number of cases I've tried — I've known better than to try to present my complicated evidence just "orally." I don't know where Prof. Bernstein got that idea; perhaps he just misspoke. But we always have documentary evidence, and when that's too voluminous, we also have summaries of the documentary evidence. In high-stakes cases, lawyers on both sides have budgets for audio-visuals, graphics, models, computer simulations, and the like that university and medical school professors can only dream of having.

Indeed, both sides in these complicated cases often use the very same professors to explain things to the jury as the universities and medical schools use to explain these things to med students and junior scientists. Now, I'll grant you that the med students and junior scientists may have higher average pre-existing levels of education in their specific fields. But there are some compensating factors. All 12 jurors get to collaborate when they take their "tests," and they're always "open book" and typically without time limits. By the end of a complicated case, they may well have spent as many hours being "educated" about the key topics as an academic would; their knowledge may not be as broad, but it's often quite deep. And almost every jury I've ever seen has had at least a handful of college graduates in some field, and they not only help in the education and explanation process, they also tend to be opinion leaders who sway other jurors' votes.

And certainly when a juror makes a statement after a trial like "We didn't know what the heck they [i.e., the drug company's experts, when one goes back and looks at the original quote] were talking about," I know better than to jump to the conclusion that that was because the jury was stupid or lazy. I'd rule out the possibility first that the defense team and/or its witnesses didn't do as good a job of teaching and communicating and explaining as the plaintiff's team did.

Prof. Bernstein, with due and genuine respect: Turn on your comments function, but better yet, open your mind. It's funny how the juries I've dealt with seem to be more open-minded and receptive to actual evidence than some law professors seem to be.

(I'll repeat here, for those who don't follow any of these links, that I don't know whether the recent Vioxx verdict from Angleton was or wasn't just and correct. But nothing I've read or heard yet about that verdict persuades me that it's even a persuasive data point in any attack on the jury system, much less some sort of conclusive anecdotal proof.)

Sharpened Sen. Feingold still misses the boat on judicial ethics

Yesterday I ruthlessly mocked Sen. Russ Feingold (D-WI) for insisting, during Tuesday's confirmation hearing, that Judge and Chief Justice-nominee John G. Roberts, Jr. discuss the specifics of a still-pending case called Hamdan v. Rumsfeld. Judge Roberts quite properly refused to do so, citing off the top of his head the exact provision of the Code of Judicial Conduct that forbade him from doing so, Canon 3A(6).

I've just now reviewed the transcript and my TiVo'd recording of their follow-up exchange on Wednesday afternoon, however. And I've got to give Sen. Feingold (or more likely some young lawyer on his or the Committee's staff) credit: They made a good attempt at circumventing Judge Roberts' objection by carefully constructing a new question about a similar-sounding Global War on Terror case about which Judge Roberts had also declined to opine on Tuesday — the Supreme Court's recent decision in Hamdi v. Rumsfeld.

In the resulting colloquy, Sen. Feingold refers to Justice Scalia having recused himself from the Newdow case on the Pledge of Allegiance, which was almost certainly based upon his having earlier made ill-advised public comments before a Knights of Columbus gathering about that specific case while it was still pending in the Ninth Circuit. The Hamdi (not "Hamdan") case being over, though, Hamdi is no longer "pending or impending," and hence it isn't covered by Canon 3A(6)'s literal terms. And so based on this distinction between Hamdi and Hamdan, Sen. Feingold made a considerably more subtle and artful effort to extract detailed opinions that might be a basis for the senators to intuit how a Chief Justice Roberts would rule in similar cases presenting conflicting GWOT and civil liberty issues. (Sen. Schumer later played a variation on the same theme in his "cone of silence" rant, although he carefully gave Judge Roberts' no opportunity to respond fully.) Here's the transcript from Wednesday afternoon's discussion between Sen. Feingold and Judge Roberts (boldface mine; paragraph breaks also revised by me; and one "inaudible" reference, and a couple of other mistranscriptions, corrected by me based on my TiVo'd video):

FEINGOLD: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court.

But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions. So your answer that you would apply that principle doesn't help me very much in understanding your view of this.

We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court.

Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech.

But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision.

So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.

They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process.

You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views.

The process of the opinion-writing — you can't — the opinion turns out, it doesn't write, you have to change the result. The discipline of writing helps lead you to the right result.

You're asking me for my views, you know, right here without going through any of that process.

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice. The people who would be arguing in that future case should not look at me and say, Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to.

They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing.

I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices — every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.

To which my reaction was: Oh, wow. What an incredible on-the-fly adjustment by Judge Roberts to an incredibly subtle shift in attack by Sen. Feingold! Explaining exactly why I had that reaction, though, is going to be difficult. Bear with me.

*******

Note that Judge Roberts' answer accepts the shift in Sen. Feingold's premise — and Judge Roberts no longer cited Canon 3A(6)'s prohibition against commenting on "pending or impending cases."

But there are other sources of judicial ethics in addition to the Code of Judicial Conduct, and the most prominent among them is Title 28, section 455(a) of the U.S. Code. It reads: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Back in October 2003, I wrote a really long and detailed post — complete with eleven footnotes in addition to my normal copious hyperlinks! — about Justice Scalia's decision to recuse himself in Newdow. My bottom-line conclusion was that he was right to do so, but that he'd done it on the basis of Canon 3A(6), and not on the basis of section 455(a). Then in March 2004, I wrote another, shorter post discussing Justice Scalia's refusal to recuse himself in the Cheney duck-hunting case. There I believed that Justice Scalia was again correct, and that he indirectly confirmed that his recusal in Newdow was indeed on the basis of Canon 3A(6).

*******

I believe that Judge Roberts' refusal to be drawn into a discussion of Hamdi — and indeed of many, many other recent cases, and not just cases but issues — is not based on Canon 3A(6). Sen. Feingold's attempt on Tuesday to quiz him about the still-pending case, Hamdan, was one of the rare occasions during the hearings when Judge Roberts has shown even a hint of irritation, and that's because Canon 3A(6) provides such a (comparatively) bright-line test for when a judge's comments become unethical. Asking Judge Roberts to violate Canon 3A(6) so blatantly was, frankly, insulting. But all of his other refusals to comment and opine — to pre-judge, preview, pre-commit, or even hint at that — have been much more good-natured and, by Judge Roberts' own frank admission, based on his subjective evaluation of the "likelihood" of his being asked to rule on substantially those same matters in the future (either on the Supreme Court or on his existing seat on the DC Circuit bench).

As my longer post explained (in way too much detail), section 455(a)'s "might reasonably be questioned" standard is awfully expansive on its face. But there are a series of cases interpreting it fairly narrowly, some of which I cited and discussed. And some of those cases draw the same distinction that Judge Roberts did yesterday — between what a judge says while on the bench versus what he says while off the bench. What he's said from the bench can almost never be grounds by itself for disqualification or recusal, even if — as is often true with long-tenured judges whose views are well-known and consistent — the judge's pre-existing views make his biases and prejudices for or against a particular legal position quite obvious. Here's how I summarized and paraphrased those cases (emphasis in original):

In every single case, there's a loser and a winner. In every single case, the loser can point to something that the trial judge said from the bench which demonstrated "hostility" toward him or his case — even if it's nothing more than saying, "You lose." And when a judge has been on either the trial or appellate bench a few years, the potential for that kind of showing of "bias" and "prejudice" grows at a steady, inexorable clip. If it were permitted for statements from the bench to be a basis for showing disqualifying bias, judges would become increasingly subject to disqualification as they became more experienced, and the judicial system would collapse under the weight of disqualification motions. Because of this distinction, then, between on- and off-the-bench statements of opinions in the caselaw regarding disqualification, not even desperate death penalty lawyers move to disqualify Justices Rehnquist, Scalia, or Thomas on the basis of prejudice, even though you could make quite an argument that their statements from the bench demonstrate a strong predisposition in those cases; nor do state attorneys-general move to disqualify Justices Stevens on opposite grounds of implacable hostility to the death penalty.

Statements made "from the bench" not only have the virtue of being public, but in general the rulings that they're made in connection with are themselves reviewable on their merits. If the ruling proves to have been badly wrong, it gets reversed on appeal; if the rationale announced in an appellate opinion can't stand the test of time, it gets overruled. They are therefore precisely the class of statements least likely to give rise to either the perception or fact of hidden and uncorrectably unfair results. In short, there's nothing "artificial" about the distinction between on-the-bench and off-the-bench expressions of opinion.

*******

As for the line-drawing that Judge Roberts has done: He's making subjective decisions, but well-informed ones, that some legal issues and no longer "pending or impending" cases can't become a basis for his impartiality to reasonably be questioned because those issues aren't going to come up in the future. No state legislature is likely to outlaw condom sales to married couples, so Griswold and the specific issues it raised are relatively safe.

Might his guesses turn out to be wrong someday, using hindsight then? Sure. But that's not what's important. The question is whether today, when he's engaging in the discussion, either he or the senators think those are "hot" issues. If an issue is stale and cold — if we all think now it's unlikely to come up again, regardless of whether it actually does — then either a threat or a promise regarding that issue, made now in connection with Judge Roberts' confirmation, would be valueless. Sort of like Justice Scalia wrote about the value of the opportunity to sit in a duck blind in the freezing rain with Dick Cheney, if someone thinks a future Chief Justice can "buy" his confirmation just by promising to protect condom sales to married couples, they're delusional; that's not a "reasonable" basis for questioning his future impartiality.

*******

And yet, as Sen. Schumer later pointed out, federal judges and justices do in fact quite often give lectures or make speeches or write books or law review articles in which they discuss hot legal issues — including issues very likely to come before the federal courts — in considerably more detail than Judge Roberts has done during his confirmation hearings. They may avoid making specific promises or predictions. And normally, they're extra careful to stay away from specific "pending or impending cases" and thus to comply with Canon 3A(6); Justice Scalia's slip on the Pledge case was a rare screwup, one that he later acknowledged. But even if they're not discussing specific "pending or impending" cases, those lectures and speeches are likewise "extra-judicial" statements; they're not subject to the same checks and transparency as rulings from the bench; and they certainly tend to reveal, and to foster public perceptions about, the judges' and justices' biases and prejudices. So why don't they prompt frequent disqualifications? What's the difference between those statements and a nominee's statements during a confirmation hearing?

Here, too, I think Judge Roberts put his finger directly on the key distinction: In the Senate Judiciary Committee's hearing room, a nominee is giving sworn testimony while he's essentially at the senators' mercy. And within the way those terms in section 455(a) have been interpreted (albeit in other contexts) in the caselaw, that makes it more "reasonable" to "question" a judge's impartiality based on what he says there.

First: Oaths matter — to judges, oaths matter a lot. The public correctly perceives that oaths matter to judges. And thus what a judge says under oath creates a bigger public shock wave simply because it's under oath.

Second: Context and location matter a lot too. Simply in terms of weight and importance, what a nominee says under oath to the Senate simply counts for more than what he could ever say at a Knights of Columbus patriotic celebration, a continuing legal education seminar, a law school alumni banquet, or a memorial service. What's said to the Senate should and does have a bigger impact on public perceptions of the integrity of the judiciary and the judicial process.

But third, and most importantly of all, was the point Judge Roberts made briefly in response to Sen. Feingold, and then elaborated upon (immediately after the "North by Northwest" reference) after Sen. Schumer's rant was done: With respect to federal judges (who, as Judge Roberts patiently explained to Sen. Biden, don't stand for election), and also with respect to other lawyers and academics commenting in  those other off-the-bench but still-public forums, there's no reason to suspect pandering. There are not obvious incentives and opportunities for the striking of unholy bargains. The judge or the professor or the lawyer might be opinionated; he might even be badly wrong; but it's not especially likely, or likely to be perceived, that he's been bought based on what he's said in those forums. But when Sen. Schumer or Sen. Specter, or for that matter Sen. Brownback, quiz Judge Roberts in detail about Roe v. Wade and abortion rights, then the moment Judge Roberts started answering in detail with anything that even remotely smacked of previews, forecasts, hints, predictions, or pre-commitments, the room would begin to stink of quid pro quo, of wink and nudge, and even of outright bribery.

Promises of future performance in exchange for present votes — well, that's a staple of politics, but it's the opposite of justice under the rule of law. It's corruption. And simply put, that puts the Senate Judiciary Committee's hearing room at the absolute far end of the spectrum from the bench, with the Kiwanas or the Yale commencement address somewhere in the middle. Even when not about a specific "pending or impending case," the very same comment about a legal issue that might not tip the section 455(a) scale over to recusal when made at a cocktail party or a bar convention absolutely might tip the scale over to recusal, then, when made under oath during a Senate confirmation hearing.

Judge Roberts gets this. Sen. Feingold and Schumer either don't or, more likely, pretends that they don't. But average Americans just don't want their Supreme Court Justices to have sold their souls or their future votes in exchange for that lifetime appointment — and it's ultimately not much more complicated than that.

Bashman et al. on Newdow I's precedential effect on the new Pledge case

Those who pay attention to such things are continually amazed at the energy and diligence of Howard Bashman, whose How Appealing blog is consistently a fabulous aggregation of up-to-the-minute links to important things legal. If I'm in the mood to blog on something legal but don't have an inspiration at the moment, I can usually find one by skimming Howard's site, and it's where I always turn first to get details on breaking legal news.

Some folks may not appreciate, though, that in addition to being a prodigious blogging aggregator, Howard is also a star appellate lawyer. My theory is that his instincts and habits on how to gather all those links effectively are directly informed by his knowledge of and curiosity about substantive law. That is, he couldn't be such a great aggregator and linker on legal topics without also being a darned smart lawyer. And the confirmation for my theory comes on those occasions when, rather than just passing along links and pithy summaries of their contents, Howard shares his own views.

This post is Howard's concise explanation of why the federal district judge from California who's just ruled the Pledge of Allegiance unconstitutional went badly, badly wrong in believing himself precedentially bound by the Ninth Circuit panel's decision on the merits in the earlier Newdow case that the Supreme Court reversed on procedural grounds. (The new one is also brought by Michael Newdow, and will inevitably be referred to as "Newdow II"). Regardless of how one comes out on on the merits — whether "under God" in the Pledge violates the First Amendment — I think Howard has convincingly established why the judge got this fairly important (in his view, purportedly outcome-determinative) procedural point wrong. The judge was effectively saying, "I have to strike down the Pledge because my hands are bound by the prior Ninth Circuit panel ruling." And that's just wrong. (Prof. Volokh reached the same conclusion yesterday as well, and so did Patterico and Xrlq, each of whom added many links and a dash of much-needed snark to the soup.)

Ultimately, I don't think this particular error by the federal district judge will make much difference. The way that it might matter would be if the Ninth Circuit were to get the case on appeal and say, "Well, the district judge erred in thinking himself bound by our prior panel opinion in Newdow I, so we're going to vacate and remand back to him to give him another chance to consider the issues after being disabused of the notion that his hands were tied." That happens fairly often when a district judge has made fact findings based on an erroneous interpretation of the law; the court of appeals isn't in the business of resolving factual disputes, and if the facts are indeed disputed and important, they want a district judge to be resolving those disputes after taking and considering evidence with the correct legal principles clearly in mind. But here, I suspect the Ninth Circuit will say, "Regardless of whether the district judge was mistaken in thinking his hands were tied, we're going to proceed on to a determination of the merits, and there's no need for a remand to reconsider his factual findings because the relevant facts are mostly undisputed anyway."

But perhaps the Ninth Circuit panel that gets this case will at least not repeat the district judge's mistake. Hopefully, it will not think its own hands are precedentially tied, and that it can take a fresh look at the legal issues.

Even then, however, I'm not sure it will matter. My prediction is that most randomly selected Ninth Circuit panels are likely to do again in Newdow II what the Newdow I panel did last time, regardless of whether the new panel thinks it's compelled to do that or whether instead it comes to that result after taking a fresh look. (I can't rule out the possibility, though, that if the randomly selected new panel happens to include a convergence of the most judicially conservative and intrepid judges on the Ninth Circuit, it might come out the other way and rule the Pledge constitutional. I just think those are longer odds in the Ninth than they would be in, say, the Fourth, Fifth, or Eleventh Circuits.) I also predict that the en banc Ninth Circuit will again refuse to get involved if the new panel again strikes down the Pledge. And then the Supremes will again take the case — but this time, they'll reach the merits and Justice Scalia will be back in the saddle (instead of having had to recuse himself for ill-considered public remarks about an impending case, as he did while Newdow I was coming up through the system).

Finally, Best of the Web's James Taranto — leading blogospheric chronicler of the "Roe Effect" — ought to be all over the fact that Newdow II is being brought in part purportedly on behalf of two minor children identified as "RoeChild-1" and "RoeChild-2." Those would go into the Oxymoronic Names Hall of Fame, since everyone knows that a "RoeChild" isn't a child at all, but an inconvenient piece of tissue no different than a diseased gallbladder or some liposuctioned fat cells. Perhaps RoeChild-1 and -2 reside and are being compelled to recite the Pledge in Erehwon, California.

Rair, roar, or rar?

Judge Roberts pronounces "certiorari" differently than I do. I've always said it so that the next to last syllable sounds like "roar" (rhyming with "door"). I've occasionally heard it pronounced "rar" (rhyming with "car"). But he says "rair" (rhyming with "hair").

I remember while I was in law school that I asked one of my hometown lawyer friends from Lamesa how to pronounce the last syllable in "res ipsa loquitur" — to rhyme with "door" or "pure" or perhaps "burr"? He scratched his chin for a moment, nodded sagely to me, and said, "Here on the prairies of West Texas, Dyer, we members of the local bar speak to one another of little else but that question."

But on the other hand, in favor of dead languages, I had occasion for the first time in my career last month to argue (in a written motion, not aloud) "Ubi jus, ibi remedium." And it worked!

Lunch-sputteringly funny

Wish I'd thought of this after reading this. I'll never think of Griswold in the same way again.

Shorter, more truthful, Russ Feingold

Beldar's quasi-fictional paraphrase of Sen. Russell Feingold's questioning on Tuesday of Chief Justice nominee John G. Roberts, Jr. and his answers, if Sen. Feingold had been temporarily stricken with the magic that affected Jim Carey's lawyer-character in the 1997 movie Liar Liar:

Mr. FEINGOLD: I demand that you immediately violate the absolutely clear, unconditional prohibition in section 3A(6) of the Code of Conduct for United States Judges by commenting here on the merits of actual, specific cases and motions that are still pending before you as a judge.

Judge ROBERTS: I can't. That would be unethical.

Mr. FEINGOLD: But I wrote you a letter telling you in advance that I was going to demand that you be unethical. So c'mon, now, be unethical! Chop-chop! Break the most basic rules designed to promote judicial impartiality and public confidence in the judiciary, right here for C-SPAN's cameras!

Judge ROBERTS: No, sir, I won't.

Mr. FEINGOLD: In the name of my most loudly barking moonbat constituents and contributors, I order you to trash your ethics! Regardless of my smarmy façade of mock-respect, I'm going to persist in asking these questions that, if you did answer them, would demonstrate beyond any doubt that you're unfit to be any kind of judge anywhere.

Judge ROBERTS: With due respect, no.

Mr. FEINGOLD: I'm hugely surprised and disappointed that you won't comply with my demand that you commit an offense which would immediately and appropriately prompt the U.S. Judicial Conference to sanction you, and probably prompt us here in the United States Senate to convene a hearing to impeach and remove you from your present office. But I'll move on (continuing to speak incredibly swiftly, because I want to squeeze in the largest number of similarly chickensh*t argumentative questions that will possibly fit in between my smirks for the camera).

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UPDATE (Wed Sep 14 @ 9:00am): I've quoted the lengthy actual transcript segment that I'm parodying above in the first comment below. Friends and neighbors, please understand this, which I'd hate to see get excused or confused by my parody above: It is not remotely a "close question" whether it would have been an ethical violation had Judge Roberts answered these questions, and Sen. Russell Feingold knows that just as well as he knows how to find the TV cameras.

The third hyperlink in my parody post above (repeated here) is to a very detailed post I wrote back in 2003, when U.S. Circuit Judge Harry Pregerson of the Ninth Circuit violated the same provision of the Code by commenting to a newspaper reporter about the then-pending rehearing en banc that eventually reversed a Ninth Circuit panel he'd been on, thereby allowing the California recall election that put Gov. Ahh-nold into office. That post also includes hyperlinks to discussions by other legal scholars, including Eugene Volokh, Hugh Hewitt, and Howard Bashman, of Judge Pregerson's inexplicable conduct. Recall also that the federal district judge who presided over the initial trial of the government's antitrust lawsuit against Microsoft was publicly rebuked and disqualified from further proceedings on remand for violating this rule. There are implementing federal statutes involved; there is interpretive precedent confirming that violation of this provision may be entirely adequate constitutional grounds for the Judicial Conference to strip a sitting judge of his/her power, and even revoke his/her pension, and that a violation may indeed be a sufficient constitutional basis for Senate impeachment despite federal judges' normal expectation of life tenure.

The underlying matter that Sens. Feingold and Schumer are fussing about is something that I'm certain has been routine and unchallenged with respect to dozens of past Supreme Court nominees by Presidents from both parties; heck, Justices Douglas and Fortas were practically cabinet members before, during, and after their appointments, going way beyond job interviews! If the Administration is guilty of some impropriety by interviewing him, then so is every Democratic senator with whom he's had private "courtesy interviews," including, I think, every Democratic member of the Judiciary Committee.

If Sens. Feingold and Schumer genuinely believe that Judge Roberts breached some other ethical canon by cooperating with Administration interviews for a potential Supreme Court opening while he was still a sitting judge hearing cases involving the United States as a party (which I'd guess is, oh, maybe 95 percent of the DC Circuit's docket!), then they have at least two remedies. First, they could file a formal complaint with the Chief Judge of the DC Circuit. Second, they could attempt to institute impeachment proceedings in the Senate. Neither of those things will ever happen, because their entire insinuation that there was any ethical impropriety by Judge Roberts is absolutely bogus. I have zero doubt that the Chief Judge of the DC Circuit would immediately dismiss any formal complaint as frivolous, and that by the end of the second press conference, any Senate impeachment proceedings would be blatantly obvious as an unprincipled witchhunt that would have put even that other senator from Wisconsin (whose name starts with a "Mc" and ends with a "Carthy") to shame. So instead, Sen. Feingold just engages in this cheap, smarmy, and insulting conduct — repeatedly asking questions and making insinuations that, if done in a court proceeding, would have landed him in jail for contempt and possibly have threatened his own law license.

But even if we give Sens. Feingold and Schumer the benefit of the doubt on their original accusation — that is, regardless of whether Judge Roberts shouldn't have participated in the interviews, or should thereafter have recused himself from all cases in which the United States was a party — there is absolutely no possible doubt that Judge Roberts discussing that subject in response to Sen. Feingold's questions about a specific case would be a clear violation of Canon 3A(6).

So yes, there is something unethical going on in these proceedings — but it's Sen. Russell Feingold who's doing it, not him who's exposing it. Parody aside, "disgust" is far too mild a word for my reaction.

"Super-stare decisis": "a term that hasn't found its way into the Supreme Court opinions yet"

Yup, America now has proof that Mrs. Roberts didn't raise no fool, and her boy John saw Sen. Specter's big question a'comin' long before today's confirmation hearing session.

Sen. Specter confirmed that his earlier coinage, "super-precedent," was indeed drawn from Fourth Circuit Judge Michael Luttig's solo opinion in the Richmond Medical Center case, as I'd speculated here and here. When Sen. Specter reared back, wound up, and threw his best pitch — "Do you think, um, that the cases which have followed, um, Roe fall into the category of a 'super-stare decisis' designation?" — Judge Roberts' eyes veritably twinkled and the corners of his mouth quirked up just a bit, but he just politely put out his bat and let the ball rocket back off it, thence smashing Sen. Specter's foot and skipping on through the gap between first and second for a solid single: "Well, it's a term that hasn't found its way into the Supreme Court opinions yet," quoth the nominee gently.

The remainder of Judge Roberts' answer then essentially ignored this bastard formulation of Sen. Specter. That is to say, Judge Roberts didn't go for extra bases, as he might have with a follow-up like this: "If I were to try to create such a new concept of 'super-stare decisis,' I'd have to persuade the other Justices to at least partially overrule all of the existing precedent on precedent to the effect that any precedent may, under proper circumstances, be reconsidered and, when appropriate, overruled. If you want to make some decision absolutely immune from being overruled, Senator, the way to do that is with an amendment to the Constitution. Have at it."

I'm enjoying watching the re-broadcast of today's proceedings — not because I expect to learn anything significant about Judge Roberts, the senators, or the law, but because it's just a joy, from a purely professional standpoint, to see him perform. To thoroughly mix my sports metaphors, it's like watching a bullfight with a dozen bulls in the ring at once, with the world's best matador deftly avoiding them.  And these guys just keep going for the cape, going for the cape. [Edit: See update below — Beldar] You can almost hear Judge Roberts thinking to himself after each answer, "¡Olé!" Often the great beasts will thunder past Judge Roberts' nimble answer and mumble on for another thirty or forty seconds with their internal momentum, but then they stumble to a stop without actually asking another question. At that point Judge Roberts maintains his polite smile and keeps his mouth closed, until they rumble back around, work up another gallop, and manage to squeeze out another question (typically mangled and on an altogether different topic). Whereupon again: ¡Olé!

The bullfight metaphor breaks down in that Judge Roberts isn't likely to administer a killing blow to any of the bulls distinguished members of the Senate Committee on the Judiciary. He'll just let them exhaust themselves. Eventually they'll stop bouncing off each other and the walls, and they'll collapse into the dust, with their eyes crossed, their muzzles flecked with foam, and their shoulders covered with sheets of sweat. Panting, they'll nod their massive, weary heads as their own aides whisper to them, "Brilliant, Senator, you were simply brilliant." And El Matador will walk out of the arena slowly, his back straight and head high, nodding discretely to the large majority of the crowd who're showering him with well-earned roses, cheers, and applause. His modest, dark uniform will still be pristine, and like magic he'll avoid stepping in any of the heaps of manure scattered around the arena. ¡Magnifico!

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UPDATE (Wed Sep 14 @ 1:30am): To be both more accurate and more true to the matador metaphor, rather than saying "the world's best matador deftly avoiding them," I should instead have said "deftly engaging them while always dancing clear of their horns." He's not necessarily side-stepping; his answers always, always evidence his comprehension of the question, and his answers always engage the question to at least some degree. The cape always touches the charging bull; and he's never running to hide behind the wooden barriers. Indeed, that's why his performance reminds me particularly of a matador: he has the confidence and the mental agility to let the bulls get close enough that he can feel their snorting breath as they thunder past, but no matter how hard they try, they always miss him by just an inch or two. And it's such an elegant dance! Doubtless from his hours and hours over years and years of preparing for and subjecting himself to judicial questioning in oral argument (by and large from much smarter folks than these senators!), he's developed the ability to speak fluently, in well-composed, verbally punctuated paragraphs; he almost never stumbles or stutters; he's never at a loss. Everyone in the room knows he's the smartest guy there — but he's not acting like he knows that.

Law prof Tushnet tells Dem senators to reject every SCOTUS nominee who doesn't share their "vision of the Constitution"

In the fall of 1977 when I was a first-year student at Texas Law School, among my teachers was Mark V. Tushnet, who was then visiting from, if I recall correctly, Wisconsin Law School. The subject he was teaching my section — federal civil procedure — had none of the sex or romance of, say, torts and contracts. He was fairly new to his calling then, and obviously still quite nervous as a lecturer. And to say that his and my politics diverged is a considerable understatement. I was among the more skeptical in our class about, for example, the proposition that the class action certification provisions of Federal Rule of Civil Procedure 23 were being interpreted by the federal courts with the purpose and effect of protecting entrenched interests in their continued oppression of the proletariat.\^*/ But at the end of the day I had indeed learned a fair amount about the pros and cons, the ins and outs, of Rule 23 — which was the point. Politics aside, Prof. Tushnet was obviously very bright and dedicated, and quite personable, and I liked him as a teacher and ultimately did well in his class. During the following two years, I was involved in editing a book review that he wrote for the Texas Law Review, and I came to like and respect him, his thinking, and his writing even more.

Prof. Tushnet's career has prospered, and he's now at Georgetown Law Center. I doubt that anyone has ever accused him of over-concision, however; he and I have this in common. And I was not surprised when I learned that he's among the law professors who blogs at Balkinization. (But even as a blogger, he's a more disciplined writer than I am. He'd never mix metaphors as badly as I'm about to, for instance.)

Just now, I happened upon Prof. Tushnet's post straight-forwardly entitled "Why Democratic Senators Should Vote 'No' on Roberts." I enjoyed reading it — I give Prof. Tushnet generally high marks for intellectual honesty — but it's a whole lot of words just to say, in the end, that Democratic senators should vote against John G. Roberts, Jr.'s nomination to be Chief Justice because of his "vision of the Constitution."

Prof. Tushnet clearly believes that Judge Roberts has a different "vision of the Constitution" than most of the Democratic senators do, and I'm pretty sure he's right about that. Indeed, I not only agree, I'm actually very, very thankful for that. I think that when Judge Roberts is confirmed, he'll continue to treat the Constitution as a constitution. This prospect makes me happy, and it's one big reason I voted for Dubya. By contrast, I think that the Democratic Party and most of its senators have a "vision of the Constitution" that's sort of like the holodecks on the later-model Starship Enterprises. And wow — they can dial up versions of constitutional reality that don't have much in common with the one I live in. That prospect scares me, and it makes me unhappy, and it's one big reason why I voted against John Kerry. How about you, America? (America, via electoral votes, nodded its agreement with me on constitutional holodeckism last November, as I recall. Well, maybe not in those words.)

Still, it's kind of refreshing to read a liberal Democrat just come out and say, more or less: Vote against any and every nominee who doesn't think the Constitution is made of Silly Putty, just 'cause you're Democrats, and us liberal Democrats like our Constitution to be Silly Putty. Or at least to have a high coefficient of silliputtiness.

(Griswold v. Connecticut was, of course, the most famous constitutional silliputtiness case; I didn't learn about that until con law in the spring 1978 semester, though. Latextual rather than textual analysis of the Constitution, so to speak; one size stretches to fit all, and then we cover the result with a precedential fig leaf, nyuk-nyuk. Oh yeah, the constitutional silliputtiness coefficient approached 1.0 in that case, that's what my engineering friends would say.)

I'm also bemused to read a half-sentence like this one dropped in among otherwise mostly straight-forward and articulate argument by an incredibly smart and well-educated guy (boldface mine):

The Constitution makes the Senate a co-equal partner in the judicial selection process, and Senators are entitled to canvass exactly the same range of considerations the President did, including the nominee's vision of the Constitution....

Now, the second part of that statement is probably something most folks can agree on (if "entitled" means "can get away with"). But the first part of that statement is something you can only believe if you've already dialed up the holodeck to display something other than our Constitution. That's because our Constitution doesn't say that the Senate and the President are co-equal partners in picking federal judges. It instead gives each of them very distinct and different responsibilities. And if you actually look right there at Article II — that's the one about the President, there being a whole 'nuther article each for the legislative and judicial branches — it says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" our federal judges. This isn't advanced constitutional law; this is junior high school civics, and I'm awfully bemused at how even a super-smart law professor can write a sentence like that without catching fire or being struck by lightning or even raising an eyebrow among his colleagues.

When you fire up the holodeck or start kneading the Silly Putty, you can construct arguments that would almost get you there. They're not even very complicated arguments, they basically come down to: "Well, the Senate can be a bunch of snots who withhold their consent forever, even if they turn blue and even if the government collapses, 'cause the President can't make them consent. So since they have a blocking position, he has to get their consent, and that sorta makes them co-equal partners." Well, yeah. I do remember a variation on this argument from junior high civics — all that checks and balances stuff. But as I recall, Mom didn't buy that co-equal partner stuff when I tried using the "God made me a partner with you when he gave me the power to hold my breath 'til I turn blue"-argument. But she was no constitutional scholar. So riddle me this, Prof. Tushnet: If they were really co-equal partners, then couldn't the Senate could nominate and Dubya consent? And couldn't Dubya enact laws and Congress veto 'em? Golly, I don't think that's how the Constitution reads even when you twirl the holodeck dials all the way over so far that "Larry Tribe" pops up in the "Chief Justice" window!

(Now, the managing-editor personalities among you will note that I didn't use quote marks around the terms "holodeck" and "Silly Putty" in this post when I was paraphrasing Prof. Tushnet's arguments. That was on purpose, because Prof. Tushnet didn't use the terms "Silly Putty" or "holodeck" in what he wrote. He'd probably huff and puff about how his Constitution actually does have the same words as mine, and it's just that his has penumbras, and that it lives and breathes and stuff. But I think if he gets to say "co-equal partners" with a straight face, then I get to say "Silly Putty" and "holodeck." And then we both oughta wink at each other, and then, if I had the chance, I'd definitely buy him a beer to laugh over about it all.)

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\^*/In response to a comment below, I've added this footnote (at about 11:30am on Sun Sep 11) to expressly disclaim any intention of name-calling! (On double-checking, I also edited the original post to remove a reference to an article of his that I thought I'd helped edit for the TLR; there was only the book review, which I added a link to.) If the commenter inferred some sort of name-calling from my reference to "the proletariat" above, I'd note that Prof. Tushnet has certainly written a lot about Marxism and the law — for example, a 1978 article entitled "A Marxist Analysis of American Law," published in a journal called Marxist Perspectives. I don't claim to know if he himself was, or is now, a Marxist. His present law school indeed describes Prof. Tushnet's "approach [a]s decidedly deconstructive rather than Marxist," but in an accompanying interview he himself explains (emphasis mine) that the

[c]ritical legal studies [approach], at least in the form it took in the 1970s, is generally labeled a deconstructive critique of rights which challenges Warren Court liberalism from the left. Within it, there is an argument that, whatever analysis you might make of any court decision, in observing the system you see a tilt in favor of those in power.

As I thought was otherwise clear from the context, based on my personal experience with him twenty-five years or so ago, I think he's a perfectly grand fellow. He wasn't trying to convert me or subvert the country or sell our nuclear secrets to the Commies. But I doubt that he'd quibble over being tagged with a "hard-left" label then or now, at least as to his personal politics. And I absolutely meant what I said about being wiling to buy him a beer.

[At 12:15pm:] Oh gosh, now I'm updating my footnotes. I swear, sometimes I think I could indeed have been wonky enough to become a law prof myself. But anyway, in flipping through the Georgetown Law Center website, I came upon lovely pictures of the motto carved on the front of its library: "Law is but the means — Justice is the end." That in turn reminded me of the motto carved on the Main Building at UT-Austin: "Ye shall know the Truth and the Truth shall make you free." Which in turn reminded me of the gonzo students known as the "Arts and Sausages Party" who successfully took over and (for a time) abolished the student government at UT-Austin in the late 1970s. Their campaign platform, which Prof. Tushnet doubtless would have appreciated, included a plank calling for the sandblasting of that motto and its replacement with "Money Talks."

John Roberts as counselor

In today's edition, WaPo staff writer Michael Grunwald has a well-written and extremely interesting front-page article about Chief Justice nominee John G. Roberts, Jr.'s unusual law practice. I was particularly struck by the first two and a half paragraphs, which express thoughts I've also had (but not yet blogged about at any length):

John G. Roberts Jr. built a golden reputation as a "lawyer's lawyer" without doing most of the things that lawyers do. He never filed a lawsuit, addressed a jury, cross-examined a witness, took a deposition or negotiated a deal. He never advised a client on a tax return, a plea bargain, a restraining order, a will or a divorce. If he ever got into a confrontation with opposing counsel, no one seems to remember it.

That is because Roberts has spent most of his career as a star — by all accounts, a superstar — in the most rarified constellation of the legal galaxy, the exclusive club of Supreme Court appellate specialists. Now that Roberts has been nominated to sit on the court as its leader instead of standing before it as an advocate, his 17-year membership in that genteel, apolitical, almost academic club of overachievers may reveal more about his legal mind than his six-year stint as a brash, young Reagan administration aide or his two-year tenure as a federal judge.

There are 1 million lawyers in America, but only about two dozen Supreme Court specialists, nearly all white, nearly all male, nearly all based in Washington. They include staunch Republicans such as former solicitor general Theodore B. Olson and staunch Democrats such as former solicitor general Seth P. Waxman, but most of them will represent almost anyone with a case before the court ....

I absolutely, positively agree that Judge Roberts' practice as a high-level appellate advocate, both with the Solicitor General's office and in private practice, was indeed an extremely unusual one. The numbers go substantially above "two dozen" when one expands the focus to "appellate specialists" more generally — it's quite typical for middle- and large-sized law firms to have a few such lawyers, and some of them have distinct appellate advocacy departments. The difference between what they do and what the Supreme Court specialists like John Roberts do is one of degree, not of kind. Yet even their practices are fairly obscure to the general public. And if your ideas of what lawyers do on a day-to-day basis come from watching L.A. Law or The Practice or Perry Mason, or if your personal acquaintances and experiences with lawyers have been with generalists, or deal lawyers, or litigators (or the more rare category, genuine trial lawyers), then you probably don't have a very clear idea of what Judge Roberts' career has been like. Mr. Grunwald's article is a fine primer in that regard.

And indeed, if John G. Roberts, Jr.'s career had been entirely limited to being an private-practice appellate advocate, I'd be considerably less enthusiastic about him as a Chief Justice nominee. Law students often participate in "moot court" competitions, which are pretend oral appellate arguments; they're fun and useful, but even most law students quickly realize that they're pretty severely filtered from what most people, and even most lawyers, experience as the "real world."

But I think there's an important point that Mr. Grunwald's article fails to make, and at the end of this passage actually gets sort of wrong (boldface mine):

In 1989, Roberts joined the solicitor general's office, a way station for almost every prominent Supreme Court specialist, offering unparalleled opportunities for bright, young lawyers to gain court experience. It is a hardworking office with an old-fashioned culture of professionalism, where lawyers tend to believe there is a right answer to legal questions based on statutory interpretation, and still wear morning coats and ascots when appearing before the court. "Politics" is a dirty word on the Justice Department's fifth floor, and while Roberts served as Solicitor General Kenneth W. Starr's "political deputy," and once signed a department brief that described Roe v. Wade as "wrongly decided," his colleagues do not recall a politically charged atmosphere in the office.

"It was more of a scholastic atmosphere," recalls Maureen Mahoney, now a Supreme Court specialist at Latham & Watkins. "We had lawyers all across the political spectrum, and I don't think anyone would say John had an ideological agenda."

President George H.W. Bush tried to put Roberts on the bench in 1992, but his nomination languished in the Democratic-controlled Senate, then stalled after President Bill Clinton's election. So Roberts returned to Hogan & Hartson. Its Supreme Court practice — like most Supreme Court practices — was essentially a for-profit version of the solicitor general's office, without the costumes.

Now, I haven't worked in the Solicitor General's office, nor practiced at Hogan & Hartson. So I'm not speaking at all from first-hand experience. But I am quite certain that the last sentence of this passage is pretty badly wrong, or at least misleading, in a way that somewhat (and probably unintentionally) slights Judge Roberts' qualifications to become Chief Justice.

Mr. Grunwald's article focuses almost solely on the role such lawyers play in public — in what they write in briefs, in what they say during oral arguments — as advocates. And that's only part of the job. The rest of the job is to be a counselor. And that's true whether one's client is Toyota or the Sierra Club or the United States of America: They all need counseling as well as advocacy.

An advocate's job is to pummel the other side, to advance his clients' positions, to zealously represent them (within the bounds of the law) against all of their adversaries. And the "hired gun" metaphor, which Mr. Grunwald's article aptly employs, fits that part of the practice.

But what if the client wants to know, "Is it worth spending $80,000 on this appeal because of its potential precedential effects on my industry, or should I settle the case now while I can do so for $20,000?" What if the client wants to know, "What are the upsides in trying to get other members of my industry to get interested in this appeal, perhaps interested enough to file an amicus brief? And what are the downsides of that?" What if the client wants to know, "Say we make this argument on appeal, win with it, and we get the new trial we've asked for; how's our position that we've taken in the appellate court going to constrain us when we're back at the trial court level?" What if the choice is between filling the appellate court's page limitation with eight additional but weaker arguments, versus spending the last twelve pages going into more depth on your main argument?

These are all questions that require the appellate lawyer to function as a private, confidential counselor. They involve decisions that clients ought to understand and have input into. They're questions that require not the advocate's combativeness, single-mindedness, and glibness, but the counselor's reflection, wisdom, and judgment.

Indeed, one of the reservations I have about appellate specialty boutiques — not just individual lawyers, but entire small law firms who do nothing but appellate work — is that they may lose perspectives from outside the appellate court experience that may nonetheless be important in representing clients within it. Just as I'm a better trial lawyer because I've got some experience (from my clerkship and from handling a couple dozen appeals) in how important it is to create a proper appellate record, for example, I'm also a better appellate lawyer because I've tried a bunch of cases to a jury verdict or a bench decision, and hence, for example, can more clearly envision and construct a comprehensive strategy that includes pretrial discovery, trial, appeals, and even retrials. Reflection, wisdom, and judgment, in other words, are a function not just of the depth of one's experience, but its breadth. And someone who never does anyhing other than file briefs and argue before the Supreme Court is engaged in a very narrow practice indeed — which may sharpen advocacy skills at the expense of some counseling skills.

John Roberts may not have ever tried a first-chair jury case, nor even been among counsel of record in any kind of case that's gone through to a trial court decision on the merits. But I noted somewhere, as I was reading about his private practice, that he'd made a point to work on at least a few trial court matters; and Mr. Grunwald repeats what I'd read elsewhere about his insistence on personally reviewing trial court records and his inclination to visit in person some of the locations that were involved in the appeals he's handled. Well, that's very good for him, I thought, and good for the Nation! What I infer from that, with considerable confidence, is that John Roberts was aware of, and consciously trying to combat, the tendencies to become isolated, overspecialized, and, well, other-worldly if all a lawyer ever deals with is appeals.

And indeed, I strongly suspect that the biggest single difference between John Roberts' private practice as an appellate advocate and his time in the SG's office was that the counselor role was far more important while he was at the Solicitor General's office, as compared to his private appellate advocacy practice. This is the most important thing that Mr. Grunwald's article mostly misses. Besides writing (or editing and revising) briefs and arguing cases, the SG's office gives crucial, confidential advice on all sorts of incredibly important litigation involving every branch of the federal government. Yes, advising Toyota about potential industry-wide ramifications from a case involving one manufacturing plant's compliance with the Americans With Disabilities Act requires reflection, wisdom, and judgment. But those qualities are even more important when advising, say (hypothetically), the Department of Labor that even though there's currently a split between the Eleventh and Ninth Circuits on the interpretation of a particular statute, it would be in the government's overall long-term interest to not apply for certiorari on cases presently pending in either of those two Circuits, and instead to focus on yet a third case percolating its way up through the federal district court in Colorado through the Tenth Circuit — and that that's the specific case you want to use to bring the issue before the Supreme Court.

Indeed, the SG's specific mandate is to see the big picture — especially in ways that, for example, other government lawyers working directly for specific departments on a day-to-day basis may lack the objectivity to see. And in that counselor's role, the SG and his staff may find themselves mediating, or resolving conflicts among, different departments and interests within the federal government. It may thus be that significant past responsibility in the Solicitor General's office is a particularly important qualification for a Chief Justice nominee, given the special expectations and responsibilities of that job.

Bluntly put, being among the chief counselors on litigation matters for the entire federal government is just a big damn deal, irrespective of the fact that it also gets you lots of Supreme Court oral arguments. What the SG decides not to do is sometimes more important than what any other government lawyer can do or decide to do. And with all due respect to Hogan & Hartson and its clientele, having been Deputy Solicitor General is a considerably better qualification for a seat on the Supreme Court than "just" having been even a very elite private hired gun.

This may sound like quibbling. Probably it is. But the skill-sets one uses, refines, and polishes as a counselor don't entirely overlap with the skill sets of an advocate, or vice versa. And thus, while I think that Mr. Grunwald's article is indeed illuminating, I think it probably gives short shrift to Judge Roberts' overall qualifications because it focuses essentially exclusively on his role as an appellate advocate. A great deal of the wisdom, experience, and judgment that I believe suits Judge Roberts for the Supreme Court comes instead from his experience as a counselor — both while performing that role at the SG's office and then in private practice, and while performing it in the considerably less adversarial (or at least, less rule-bound) environs in the office of counsel for the President. And the combination of experiences — especially when one also factors in a not-insignificant couple of years on the highest-profile federal court of appeals — makes him a far more compelling nominee than even Mr. Grunwald's generally quite accurate and quite flattering article reveals.

As 9/11 becomes history instead of memory

For the most part, I find the "two Americas" meme, as preached by last year's vice presidential nominee John Edwards for instance, unpersuasive verging on repulsive. And then there's the old joke about there being two kinds of people — those who insist on dividing people into arbitrary groups, and those who don't. But then I read something like this in Sunday's WaPo:

Despite [various] initiatives [to commemorate the anniversary], some historians predict that popular culture eventually will file Sept. 11 in the same category as Memorial Day, Labor Day and Presidents' Day, holidays laden with a significance and gravitas that were slowly blanched by time.

For a date so freighted with emotion, images and pain, the diluting of the 9/11 anniversary seems impossible to fathom, especially in such places as Washington and New York. But historians said that decades from now, Sept. 11 might take on a different dimension. In other words, Sept. 11 eventually might become another holiday on which many Americans grill hot dogs, go to sales or spend a long weekend at a quaint bed-and-breakfast....

[But o]thers said they find a more striking parallel between Sept. 11 and Dec. 7, 1941, the date of the Pearl Harbor attack.

Count me among the "others," then. Proudly, insistently, and defiantly so. Enough so to spend an hour or two writing a screed like this one, just because four years ago today, three thousand of my fellow Americans were murdered by some of the most evil bastards ever to draw breath.

*********

The other night I stayed up way too late watching, back to back, the two recent National Geographic TV specials, Inside 9/11. I'll freely concede that as I've gotten older, I've become more sentimental, and I knew from the subject matter in general and from some reviews I'd read of these two specials that they'd probably upset me — again.

But ... yeah, they did. They really did. I basically spent two, maybe two and a half hours, alternately weeping and (quite literally) shaking my fist and shouting at the TV. (It was another of those occasions that confused the heck out of my poor dog, Weiss, who always thinks I'm mad at her or upset about something she did.)

Now, some folks never got upset in the same way I did four years ago, and that I still am. On the afternoon of 9/11/01, they were already talking about whether "we deserved it," or "we brought it on ourselves," or "when you look at it from their point of view, it's justified." They're hopeless — as impervious to facts, rational argument, or morality as a doorknob, and as just predictably likely to poke through the sheetrock after repeated violent banging if not properly restrained. Yeah, I'd defend to the death their right to be idiots in a free America. But they're not likely to be reading my blog anyway. Let's call them the 9/11 Hotdog Grillers.

But then there's a certain sort of person who was genuinely outraged about 9/11 on 9/11/01, and on 9/11/02, and maybe on 9/11/03, but who'd begun to have pretty mixed and conflicted feelings by 9/11/04. And now on 9/11/05, they're no longer outraged. Maybe they're merely ... annoyed, disapproving ... miffed about 9/11/01. Of them — the "Coalition of the Now-Merely-Miffed," let's call them — I think to myself, "Maybe if I could strap folks into comfy theater seats and make them ('Clockwork Orange'-fashion, if necessary) watch these TV specials, they'd get properly angry again." Maybe they'd stop drifting into the 9/11 Hotdog Griller camp, if only they could be properly (re-)educated. And if that involves some of those eyelid clamps ....

But no. That's an unworthy impulse, too. We just don't do re-education camps here.

*********

I was born in 1957. Nobody I know, nobody I'm related to, was killed on 12/7/41, and by far my closest connection to the war into which America was plunged on that day — my dad — was still years away from being in combat himself then. What I know of Pearl Harbor Day and of World War II is mostly from books. 12/7/41 is all history, no memory, for me and my entire generation, and every generation that has or will come after mine.

But I do know quite a bit of history. I studied it in school (effectively minoring in it as an undergrad), and I've read all sorts of history books regularly, almost compulsively, during my whole life. And ya know what? 12/7/41 does make me mad! Not nearly as mad as I still am about 9/11, which I remember. But mad. And I guess that since I don't have any of the personal memories to go with 12/7/41, I don't particularly get mad at the Japanese. No, what makes me mad is contemporary people who don't know, don't care about, distort, and/or ignore history like 12/7/41.

And those are the same people who — as their personal memories of 9/11/01 fade, or become overlaid with others or tangled up with their domestic politics or whatever — will end up treating 9/11 as a day to grill hot dogs. I do regret — not despair over, but regret — that the Coalition of the Now-Merely-Miffed is almost certainly a growing one, whereas my own Coalition of the Weeping Shouting Fist-Shaking Dog-Confusers is probably shrinking. But thems the facts, as they stand now. Time only moves one direction, so the direct memories of 9/11/01 are indeed inevitably going to become less of a factor for America and Americans.

If it takes me fifteen or twenty minutes to explain to a teenaged granddaughter someday why 9/11/01 was a big deal, that will be pretty neat, in fact. It will speak well for the world she lives in then if 9/11 is only history —  history that's not like any of her own memories that she can directly relate to — by then.

*********

But of course, the incredibly cosmically ironic thing is this: If the 9/11 Hotdog Grillers, as they're joined by more and more drifting over from the Coalition of the Now-Merely-Miffed, get control and power, then the odds of more 9/11/01- and 12/7/41-type events will just skyrocket. It's not their doing that we're (in some sense) celebrating four years without "another 9/11" here in the United States, and celebrating that even the wicked bastards' very best shots at civilization elsewhere in the meantime have been, comparatively, impotent. "Comparatively impotent" is, I guess, an offensive term if you or a member of your family was shredded on a Madrid train or in a London Underground station. And I'm not saying that the 9/11 Hotdog Grillers are unpatriotic or that they're in bed with al Queda (even though they chortle during the months when U.S. casualty figures in Iraq are up from the month before).

I'm just saying that they're ignorant of history and therefore lack the survival instincts of a planarian worm trying to avoid an electrode. I just hope that they're not indirectly essential to the survival of the species by guaranteeing more cataclysmic events that will, in turn, keep a sufficient percentage of the populace sufficiently in power often enough to keep the wicked bastard population from exploding, or even (God forbid) winning. Because the one thing that could make 9/11 suddenly more significant and powerful and emotional, that could drive people back out of the Coalition of the Now-Merely-Miffed and back among us Dog-Confusers, would be another, or (God forbid) a series of other, 9/11-type events.

'Horns 25, Buckeyes 22

With due and genuine respect to my blogospheric friend Hugh Hewitt — who's as loyal a Buckeye football fan as Ohio State University could ever want — and to the Buckeye players and staff, who played hard and well and again showed themselves to be an extremely classy institution ...

But how 'bout them Longhorns?!?

Wow, that was a fun football game to watch! And for an early season game, even between the No. 2- and 4-ranked teams, it was exceptionally well played overall by both teams. My quick post-game thoughts and TiVo-assisted armchair quarterbacking:

 

1. Texas' overall talent may make the 'Horns a genuine challenger for the national title, but the 'Horns special teams have got to improve, dramatically and fast. That there were no missed extra points tonight was the minimum acceptable improvement from last week — one that could have been outcome-determinative in a close game like this one. It looks like David Pino has earned another start as the PAT and FG placekicker. But Ohio State enjoyed superb field position almost all night long, mostly due to kickoff and punt runbacks.

2. Bless his heart, but it's time to drop Selvin Young off the first team. His durability is still suspect, and he's in a butter-fingered slump; and it may be a moot point if Young's injuries would sideline him anyway. But regardless, Jamaal Charles ought to be the starting running back next game.

3. Texas' bend-but-rarely-break defense won this game. Ohio State will make lots of big plays this year against less talented, less quick defenses.  As brilliant as Vince Young often was, though, the defense's holding the Buckeyes to a school-record number of field goals, especially after Longhorn offensive miscues, was the difference tonight. And nobody realized it at the time, but the key play of the game turned out to be the deflected second-down pass with 5:45 left in the 4th quarter — completed, but for a four-yard loss from the Texas 29 to the Texas 33-yardline. It ended up being just enough to throw off-target, barely wide-right, OSU's final (and would-have-been clinching) long field goal attempt two plays later.

4. The record Ohio State crowd — 105,565 — was impressive even by Texas standards, and the Buckeye fans deserve plaudits along with their team.

5. But bigger plaudits to the Showband of the Southwest, the University of Texas Longhorn Band. There's of course no way in the world to overcome the kind of (legitimate) homefield advantage that Ohio State had tonight. But former Longhorn head coach Darryl K. Royal got it exactly right back in (if I recall correctly) about 1968, after a road loss before frenzied fans at Texas Tech, when he said that in a hostile stadium like that one, the Longhorn Band is worth seven points. That was one of the last times the team traveled to a big game without the Band, but I was sure glad the Band was in Columbus tonight — especially early in the second half. (My theory is that the LHB is most important just after a huge Longhorns screwup that would otherwise, in the face of the energy surge from a huge, hostile crowd, be overwhelmingly demoralizing. The sound of "Texas Fight" and those LHB drum cadences remind you of who you are, of where you're from, and of the days you've seen and will see again, back at DKR-Memorial Stadium, where the huge crowd is adoring.)

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UPDATE (Sun Sep 11 @ 9:15am): John Bridges on one of the Austin American-Statesman's blogs reports  that

[a]fter all the brutality on the field tonight, the Ohio State band capped it all off with a classy move.

The stands were empty of Buckeye fans — only the celebrating Horn folks remained — when the Buckeye band launched into a version of "Texas Fight."

Nice way to honor the team that handed Ohio State its first home nonconference loss in 15 years and its first home night-game loss ever.

I agree, and I'm not surprised. OSU's band has always had a great national reputation among folks who follow such things; when I was in the Longhorn Band back from 1975-1980, we considered the Buckeye band to be among our national peers. My guess is that this was a more likely intended as a gesture of mutual respect and friendship to the Longhorn Band in particular as than as a tribute specifically to the Longhorn football team. But however it was intended, it was indeed classy. And unlike the spontaneous Rice band, the MOB, who might be bold enough to improvise a public performance without sheet music distributed in advance, it's very unlikely that the OSU band would undertake a gesture like this one if it had not been specifically planned and prepared for in advance (and they probably were planning to make it either "win or lose"). I hope OSU brings its band to DKR-Memorial Stadium when they complete the home-and-home series next year.

Remembering the Chief

WaPo's national staff writer who covers the Supreme Court, Charles Lane, has written a touching, poignant report on yesterday's funeral of our late Chief Justice of the United States headlined "Rehnquist Eulogies Look Beyond Bench." It reminds us that our history — in this instance, our national legal history — is made not by gods or titans, but by flesh-and-blood men and women. Thus the same man who proudly and creditably bore the title of "Chief Justice of the United States," and led both our highest single court and entire federal courts system, also proudly and creditably bore, from time to time, titles like "father" and "grandfather"; "mentor" and "neighbor"; "fellow-congregant" and "poker buddy"; and even, once, "busboy" and "fruit-picker." The same man who revitalized federalism, and who presided over the Senate impeachment trial of a President, also apparently made a mean bologna jelly and mayonnaise sandwich.

In the end, his body's fate will be the same as all our bodies' fates. I hesitate to credit John Dean as a reliable source, but his recently much-repeated story about Nixon referring to "that clown" in the Hush Puppies, pink shirt, and clashing psychedelic tie — "Renchburg" or "Rensler," "an excellent man" whom Nixon "knew well" before nominating him to the Supreme Court — reminded me of Hamlet's graveyard musings just before the bit about the skull of poor Yorick, the jester whom he knew:

There's another: why may not that be the skull of a
lawyer? Where be his quiddities now, his quillets,
his cases, his tenures, and his tricks? why does he
suffer this rude knave now to knock him about the
sconce with a dirty shovel, and will not tell him of
his action of battery? Hum! This fellow might be
in's time a great buyer of land, with his statutes,
his recognizances, his fines, his double vouchers,
his recoveries: is this the fine of his fines, and
the recovery of his recoveries, to have his fine
pate full of fine dirt? will his vouchers vouch him
no more of his purchases, and double ones too, than
the length and breadth of a pair of indentures? The
very conveyances of his lands will hardly lie in
this box; and must the inheritor himself have no more, ha?

He was "the Chief," yet but a man. Yet that he was but a man makes his achievements in life, both grand and small, all the more admirable. And while we all must suffer the likelihood that some rude knave may knock our remains about with a dirty shovel and that our fine pates will end up full of fine dirt, we can yet honor his accomplishments during a life well lived, and his memory thereafter. I certainly do.

Katrina

I know something of hurricanes. The day after I moved to Houston in August 1980, Hurricane Allen hit. Three years later, at 6:30pm on the afternoon of an August Thursday at whose midnight Hurricane Alicia's eye passed over downtown Houston, I was among two lawyers, one judge, one bailiff, and twelve very panicked jurors left in the Harris County Civil Courts Building. But despite hurricanes and sometimes-worse (mere) tropical storms, Houston, my home for 25 years, has been lucky lately; our worst over that period has been nowhere near as bad as Katrina, but bad enough that this city, to its enormous credit, has been among the most empathetic and proactively supportive of our neighbors to the east along the Gulf Coast.

New Orleans, to many, is Mardi Gras, the Big Easy, the good times rollin' on. To me, though, since my judicial clerkship, it's always been, first and foremost, the headquarters city of the United States Court of Appeals for the Fifth Circuit. Reputation and party atmosphere aside, I've always been aware that N'walins has its very solid, almost hidden core of people who work hard for a living and get things done. "Getting things done" might mean processing an appeal, or getting a crew boat out to an offshore rig, or delivering a taxi-load from the airport to the Royal Sonesta, or teaching a third-grade science class, or picking out a sweet blues line on a tarnished but well-maintained Bb trumpet — work, art, and joy being mutually exclusive in none of those occupations.

My blogospheric friend Ernie the Attorney is one such, one of many. Breathless cable news coverage can give a sense of their loss, but only poorly hints at their subtle, powerful resiliency. A year, or certainly three years from now, though, that's what the world will think of when it thinks back to Katrina: Not just the loss and death and pain, but the recovery, the rebuilding, and the protracted indestructable courage that will — by God's grace, man's sweat, and one-muddy-bucket at-a-time — turn out to be greater, more magnificent, even than Nature. Ernie, bless his soul, is starting to be heartened. And he's one of tens, maybe probably hundreds, of thousands who will remake New Orleans and Gulf-Coast Louisiana and Mississippi. I'm awed by Nature, but I'm more awed by all my neighbors.

They'll be back. Don't bet against 'em.

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UPDATE (Wed Sep 7 @ 8:47am): This post was written partly as a rebuttal to and protest against articles like this one by Noemie Emery in the online Daily Standard. I'm a reflexive Houston-booster, and agree with most of the nice things she says about this city; and it may be true that on a comparative basis, New Orleans is relatively less meritocratic and dynamic, or more corrupt, than Houston. But that's absolutely the wrong focus to have right now, and it's terribly misleading because it only pays attention to fractional percentages at the margins. Katrina didn't just hit the margins — it hit everyone in New Orleans, although with varying widely impacts. The rain fell on the just and the unjust. The rich and the poor, the black and the white and the brown, the lazy and the industrious, the young and the old, the newcomers and the oldtimers have all been affected. And maybe at the margins some of those groups, some easy stereotypees, have performed or appear differently than their counterparts in other cities might have. But most of the people there — whether they evacuated or not — are just like most of the people here or in Anaheim or Anahuac or Annapolis or Albany. And it wasn't the looters or the whiners or the other cable-TV-news attention grabbers who kept the place going to begin with, or who'll mostly (with some help) put the place back together, or who'll deserve the credit when they do. To those who're drawing sweeping conclusions or issuing broad indictments to the effect that Katrina has shown that N'walins was or is part of the "Third World," my response is: You're a sucker for the most superficial appearances, my friends, and you're insulting and misunderestimating a whole bunch of people who have been hurt, are still hurtin', deserve better from you, and will prove you wrong over time.

Specter again floats the notion that Roe is a "superprecedent"

Back on July 24th, I posted at some length on an NYT op-ed by the Chairman of the Senate Judiciary Committee, Sen. Arlen Specter (R-PA), in which he'd used a term entirely unfamiliar to me — "superprecedents." Others in the blogosphere also weighed in with the results of their own inquiries and research, most of which I believe ended up being linked either in my post and its update or else in its comments. Although the term "superprecedents" was apparently used in a different context and with a clearly different meaning in some law review articles in past years, the closest precedent (so to speak) for the use of the term — at least in the sense that Sen. Specter seemed to be using it — appeared to be a very brief reference in a separate opinion in Richmond Medical Center for Women v. Gilmore, 219 F.3d 376 (4th Cir. 1998), written by Fourth Circuit Judge (and oft-rumored potential SCOTUS nominee) Michael Luttig.

In explaining why he was voting to dissolve a previously issued stay pending appeal in one of the partial birth abortion cases, Judge Luttig speculated that the Supreme Court perhaps "intended its decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy." (Boldface mine, not Judge Luttig's.) My reaction, both then and now, was that if Sen. Specter thought Judge Luttig's reference to "super-stare decisis" somehow was announcing a new legal doctrine that would limit the Supreme Court's ability to reconsider and potentially to overrule either Casey or Roe v. Wade, he was asking an awfully slender reed — an almost off-hand reference by a single judge not yet even nominated to serve upon, much less speaking for, the Supreme Court — to bear an enormous weight.

But whatever he actually meant, I was relatively certain that Sen. Specter was very deliberately and calculatedly using the NYT op-ed to lay groundwork for some position he intended to take, or argument he intended to make, during Judge John G. Roberts, Jr.'s Senate confirmation hearings. And an article in tomorrow's WaPo now confirms that much:

There are advantages to being Senate Judiciary Committee chairman, and Arlen Specter used them yesterday [i.e., Tuesday, Sep. 6th] to sit down with the man nominated to be chief justice of the United States and to quiz him about abortion, consensus-building and other topics....

"I talked to him about consensus-building," the senator said. "He said that was something that he thought was important" and will be a priority if he is confirmed.

Specter said he also told Roberts that the 1973 landmark abortion rights case Roe v. Wade has been followed by 38 Supreme Court rulings meant to refine or clarify its guidelines, and he asked, "Is Roe a super-precedent?"

And the nominee's reply? "He didn't say," Specter said. Even a committee chairmanship, it seems, has its limits.

This article will apparently be buried back on page A09 of tomorrow's WaPo print edition, and the reference to Roe as a "superprecedent" is tucked in at its end. But my overwhelmingly strong hunch is that this is more deliberate preparation by Sen. Specter — another step in a comprehensive plan he's methodically attempting to execute. But a plan for what?

Now, it's entirely possible, and indeed quite likely, that before his meeting today with Sen. Specter, Judge Roberts had read Sen. Specter's NYT op-ed from July. If, as many have suggested, he's retained his "managing editor-type personality" from his Harvard Law Review days, I'd not be surprised if Judge Roberts cocked an eyebrow — bemused, perplexed, or otherwise — when he saw Sen. Specter's reference to "superprecedents" then. And there's been speculation in the blogosphere that Judge Roberts is himself a reader of blogs, and my previous post did draw some links and commentary from blogs with wider readership than mine usually has. In any event, Judge Roberts might have seen this informal interview question from Sen. Specter coming. And perhaps Judge Roberts wasn't stumped, but was rather being cagey and playing his cards close to the vest in not giving Sen. Specter an answer yet — or at least not giving him an answer intended by one or both of them for quotation and attribution. Nevertheless, the gun having been brandished in Act I, and now having been discharged into the air (but without appreciable effect) in Act II, I think it's pretty certain that Sen. Specter will shoot it off again in Act III — that is, some time next week in the Judiciary Committee hearings.

I'm quite certain that Judge Roberts is too diplomatic to say then, in public anyway, what I said in my first post — which basically was "Did you just make that up, Arlen? What've you been smokin', Senator?" I'm almost as certain that Judge Roberts will resist any attempt — whether from Sen. Specter on the Republican side of the aisle, or from the Leahy-Kennedy-Schumer-Biden wing on the other side — to get Judge Roberts to pre-commit as to how he'll vote when and if Roe, Casey, or any other particular precedents are reconsidered.

What I can't predict is whether Judge Roberts will "play along" with Sen. Specter and pretend that this particular term, or the vague concept that Sen. Specter seems to have associated with it in his own mind, is something that's actually been recognized in prior caselaw of the United States Supreme Court. I'm not suggesting that Judge Roberts be insulting or rude; but I frankly hope he doesn't go very far in humoring Sen. Specter. Because the straightforward, honest, and indisputable fact is that there's no Supreme Court precedent on "superprecedents." And I would be enormously surprised — stunned, shocked, dumbfounded — if Judge Roberts doesn't already know that to an absolute certainty.

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UPDATE (Wed Sep 7 @ 9:45am): Terry Eastland recently anticipated Sen. Specter's continuing use of the term "superprecedents" in the Weekly Standard; his terrific piece is subscription-only, but an online teaser appears here. [Edit: Full version's now online and free, here.]

Hon. William H. Rehnquist, 1924-2005

I'm genuinely saddened to hear of the passing of the Chief Justice of the United States, William H. Rehnquist. He was a credit to his country and his profession, and it's altogether fitting and in keeping with his character that he died in office rather than in retirement. Rest in peace, sir.

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UPDATE (Sun Sep 4 @ 1:00am): Re-posting a couple of comments I've left on Prof. Althouse's post about Chief Justice Rehnquist's passing:

Decklin asked, "[W]hat happens now while we have eight justices? Does Roberts still replace O'Connor?

Short answer: Yes, Roberts will still probably replace O'Connor, and business will probably continue as usual; the temporary vacancy in the Chief Justice's spot is unlikely to be outcome-determinative in any particular case.

Long answer:

There is now a vacancy in the office of Chief Justice of the United States, and there are only eight members of the Supreme Court. Until the President nominates and the Senate confirms a new Chief Justice, the Supreme Court (which is currently in recess until the beginning of the October 2005 Term) will continue to operate with only eight (Associate) Justices.

Justice O'Connor is, technically, still one of those eight. Her resignation does not become effective until the Senate confirms her successor. DC Circuit Judge John Roberts is the nominee to be her successor, and unless his nomination is withdrawn by President Bush, it's reasonable to presume that the Senate will continue to deliberate on that nomination and that in due course he will be confirmed, upon which event he'll take Justice O'Connor's place among the eight Associate Justices.

It's possible, but I think fairly unlikely, that President Bush might withdraw Judge Roberts' nomination to be Justice O'Connor's successor and instead nominate him to become the new Chief Justice. Regardless, however, Justice O'Connor will continue to serve until the successor to her seat (whether Judge Roberts or someone else) is confirmed by the Senate.

I expect that President Bush will nominate a proposed new Chief Justice within the next two weeks, but it's highly unlikely that such a nominee would be confirmed by the Senate in time to be sworn in before the beginning of the Supreme Court's new term in October 2005. In all probability, the Supreme Court (with either Justice O'Connor or with new-Justice Roberts as her successor) will begin its proceedings in October with only eight members.

Senior-most Associate Justice Stevens will preside over the Court's activities until a new Chief Justice is nominated and confirmed. That's really not a very big deal; he still gets only one vote, plus the right to assign the initial drafting of proposed majority opinions on those particular cases in which he's voted with the tentative majority, but that very, very rarely affects the actual outcome of individual cases. (Indeed, Justice Stevens has already had that privilege for many years in those cases in which he was, but Chief Justice Rehnquist was not, among the tentative-majority during the preliminary post-argument vote.) Justice Stevens' temporary presidence will be mostly symbolic and procedural (and I have no doubt that he'll handle those functions superbly and noncontroversially).

If the Senate does not act promptly to confirm whomever President Bush nominates to succeed the late Chief Justice Rehnquist, Pres. Bush might well use his constitutional power to make a "recess appointment" during the next Senate recess (e.g., over the Thanksgiving holiday). The recess appointee would immediately be sworn in and begin acting as Chief Justice, subject to either later confirmation or expiration of his/her recess appointment (at year-end 2006, I think?). My guess is that the Administration will push hard to have a new Chief Justice confirmed before year-end 2005, however, and will only go the "recess appointment" route if there's a filibuster; the possibility of a recess appointment (and Pres. Bush's demonstrated willingness to use his recess appointment power, e.g., with Circuit Judges Pryor and Pickering) may make a filibuster somewhat less likely. That Chief Justice Rehnquist has been so reliably "conservative" perhaps makes a knock-down drag-out full-court filibustering fight over his successor less likely than if, for example, we were looking at replacing Justice Stevens.

When there is a 4-4 voting split on the Court with only 8 Justices participating in the vote on a particular case, the procedural effect of that tie vote is to automatically affirm the decision of the lower court (typically one of the federal [circuit] courts of appeals or a state supreme court). There's considerable informal precedent from past decades, however, for cases that are split 4-4 at the internal conference after oral argument (or, sometimes, other especially important close votes, e.g., tentative 5-3 splits) to instead be re-calendared to be re-argued and finally decided later in the term, or in the following term, when the Court is back to its full complement of nine members. It's therefore fairly unlikely that the vacancy created by Chief Justice Rehnquist's death in office will cause some extraordinary shift in precedent.

Jamie wrote, "Roberts is going to suffer for this."

Actually, I think not. My (very subjective) perception is that the poitical left is pretty frustrated with their inability to get any traction in opposing Judge Roberts' nomination. Whether Dubya decides to (a) elevate Scalia or Thomas to CJ and nominate a new Associate Justice, or (b) simply to nominate an entirely new face as CJ, or (c) even to transform Roberts' nomination to the CJ spot instead of O'Connors', there will inevitably be a new face for the opposition to shoot at. I don't think any of the other potential nominees (at least those discussed before Roberts' nomination came out) have anywhere close to the amount of Teflon sheathing that Roberts has proven to have. So I suspect that the new face, whoever that turns out to be, is who will "suffer," and that the net result of Chief Justice Rehnquist's death may be that Judge Roberts' nomination indeed turns into a complete cakewalk.