BeldarBlog

Beldar's top ten prognostications for 2007

(1)  In 2007, Pres. Bush will exercise at least six vetoes, and possibly as many as two dozen. None of them will be overridden. Not a single piece of major domestic-policy legislation will be passed by both chambers and signed into law during 2007.

(2)  New Democratic majorities in the House and Senate will attempt to pass legislation relating to the Iraq conflict that is intended, through the power of the purse-strings and probably otherwise, to override presidential control of foreign policy and the president's role as commander-in-chief. They'll fail to maintain sufficient party discipline to pass any such legislation, but in failing they'll make as much noise as possible simply as a predicate for the 2008 elections. This will all transpire without regard to anything that actually does or doesn't happen on the ground in Iraq in 2007.

(3)  Japan will amend its constitution to permit a more robust military force in direct response to the perceived and very real threat from North Korea. Faced with a continuing messy refugee flow, a re-militarizing (and quickly nuclear-capable if it wants to be) Japan, and a nuclear-armed madman on its borders who's been lobbing missiles into Japanese airspace, China — with the prior knowledge and tacit approval of the United States, other NATO countries, Russia, Australia, Japan, and South Korea — will foment a successful and surprisingly bloodless coup d'état that replaces Kim Jong-Il with a new despot, someone nominally communist, actually (comparatively) progressive-capitalist, and willing (for a price measured in US$, not power) to abandon North Korea's nuclear ambitions. (The new despot, in turn, will begin accumulating large offshore bank accounts but nevertheless acquiesce in the beginning of negotiations that will lead to Korean re-unification in 2011.) Within hours of the coup, the U.S., South Korea, Japan, and their partners in another Coalition-of-the-Willing will announce that they are bypassing the UN to begin delivering massive humanitarian and economic assistance to North Korea. It will include hundreds of thousands of Chinese- and South Korean-manufactured personal computers and massive investments in Japanese- and American-supplied internet/cellphone infrastructure — the combined coup and reconstruction efforts eventually becoming known as the "Bread and Bytes Revolution."

(4)  Israel will conduct a sweeping series of devastating and surprisingly successful missile- and aircraft-strikes, combined with on-the-ground sabotage, with the purpose and effect of retarding the Iranian nuclear program for at least another five years. The Bush-43 administration will insist that this was Israel's unilateral decision, but will also candidly concede that the strikes were made with, and made more effective by, U.S. intelligence and military technology. The rest of the civilized world will pretend to be outraged, but secretly will breathe a sign of relief. Radical Islamic jihadists will adopt this action as their newest rallying cry against Israel, the U.S., and the West generally, but it won't make a damn bit of difference because they were going to find some such rallying cry anyway and they already have their volume knobs dialed up to eleven. Through brutal repression, Iran's "Supreme Leader" Ayatollah Ali Khamenei and President Mahmoud Ahmadinejad will hang onto power during the ensuing turmoil. Real reform won't reach Iran until after 2007, although the effects of 2007's events will then be recognized to have been a painful but necessary predicate for it when it finally comes.

(5)  The only prediction that I can make with any confidence about Iraq is that Dubya won't give in to those from either party who favor cutting and running, nor the ever-increasing MSM drumbeat and high-spin public opinion polling urging him to cut and run. He just won't — and despite their very best efforts, nobody will be able to make him. He will finish the 2007 calendar year without having lost a wink of sleep about his historically low polling numbers, instead confident that he's doing the right thing and that — based upon the only poll that counts, that being the one taken in the Electoral College in December 2004 (see Nos. 1 & 2 above) — his job description will still read "POTUS" until January 2009. (This certainty of American constitutional government, along with the equally certain excellence and creativity of our men and women in uniform, are the principal sources of such optimism about Iraq as I'm able to muster.)

(6)  There will be another vacancy on the SCOTUS.  Harriet Miers won't be nominated to fill it.  Because the vacancy will be in a seat previously held by a liberal or "swing-vote" Justice, Dubya will be obliged to accommodate the new Democratic majority in the Senate by naming someone unconventional who makes a poor target for their demagoguery and can therefore be confirmed, if only by a small margin: the Ninth Circuit's superb maverick, Alex Kozinski. BeldarBlog will actively support the nomination, as it will also support the nomination of the new Justice Kozinski's Ninth Circuit successor (and former law clerk), Eugene Volokh.

(7)  Some parts of the world will be warmer in 2007 than in 2006. Some will be colder. Global warming hysterics will continue to ignore the latter. Since the public has become largely innoculated against the Democratic Party's preferred political scare tactic of the last several decades — "The Republicans are going to take away your Social Security!" — global warming will instead become every Democratic candidate's new holy dogma and scare tactic of choice; heretics and even doubters will be excommunicated. Al Gore will not become a candidate himself, but other candidates will vie for him to make (strictly timed) opening remarks about global warming at their campaign rallies.

(8)  The 2007 calendar year will end with no clear front-runner for the 2008 Republican presidential nomination, but with a single clear and massively funded front-runner for the Democratic nomination — with respect to whom substantial portions of both the leading and trailing edges of the Democratic Party's bell-curve will already be falling into "buyer's remorse." Said Democratic front-runner as of year-end 2007 will nevertheless have only a one-in-three chance of actually securing the nomination. Chances exceed 90% that his/her own implosion, or failing that his/her chief remaining competitor's implosion, will be YouTube's most-watched video of February 2008.

(9)  Nothing very worthy or important will be produced by Hollywood in 2007, but campaign contributions and even more silly and ill-informed rhetoric will continue to gush from it. Heads of at least one television network, three major newspapers or news-magazines, and a major movie/multimedia conglomerate will be fired based on their frustrated board members' perceptions that they've failed to adapt sufficiently to the new internet age. Their replacements will be younger, hipper, and equally clueless. By year-end of 2007, the NYT still won't have learned a single damned thing.

(10)  Blog readership will continue to grow, as will the international public's reliance on unconventional media as sources of news and commentary. Blogs will be more important, with the exception of Tom DeLay's blog, which (like its namesake) will pretty much disappear from everyone's radar screens.

Comments are open: Feel free to disagree with my predictions or add your own!

Ex-judges as "friends of the court"

I've only worked on a few amicus curiae appellate briefs. That Latin phrase literally translates to "friend of the court." It generally "refers to someone [who, although] not a party to a case, [nevertheless] volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it."

But long ago, when I was a young associate at Baker Botts, I was instructed to show up at a rather odd hearing before then-state district judge (now federal district judge) Lynn N. Hughes that involved a piece of property in which our client, Rice University, had a potential interest.

"Be careful that you don't enter a formal appearance in the case on behalf of Rice as a party-litigant," I was firmly instructed by the partner who gave me the assignment: Rice didn't want to be perceived as, and in fact was not being, particularly eager or greedy, and neither did it want to align itself with or against any of the actual litigants.

"But how should I identify myself to Judge Hughes?" I asked.

"Think of something," was the answer, "Just don't enter a formal appearance that turns Rice into a named party or otherwise gets it stuck forever in this lawsuit."

This set me to gnawing my bottom lip as I trudged over to the courthouse. I spent a good ten minutes debating whether to sit inside or outside the rail (i.e., with the other lawyers or with the audience). I spent another five minutes wondering whether I should leave a business card with the court reporter (which is normally an essential courtesy), and if so, what I should write on it to indicate who I represented, and in what capacity.

I finally decided to sit inside the rail, and to hand over, but write nothing on, my card. I introduced myself to the other lawyers before the judge entered the courtroom, and I told them who I represented, but I didn't say anything about exactly why I was there.

The hearing began soon thereafter, and once the lawyers for the litigants had identified themselves on the record, I stood up and nodded to Judge Hughes — signaling (still without speaking on the record) that I wished to be recognized. (He knew my name from an unrelated case on which I'd recently appeared in his court.) "Mr. Dyer," he intoned, "do you represent a party to this matter?"

I'd decided that the best I could do in answering that question was to repeat pretty much what I'd been told: "No, your honor, but I'm here on behalf of Rice University, with instructions not to enter any appearance on its behalf as a party-litigant — neither as a plaintiff, a defendant, nor an intervenor. Rice's interest in these proceedings is indirect and contingent. But if it's possible, I'd like to have the opportunity to address the Court to a limited extent on matters that may particularly relate to Rice.

"I suppose," I finished up lamely, "I'm here in something somewhat akin to the status of an amicus curiae."

"Amicus curiae, hmmm?" said Judge Hughes, and he paused to ponder a moment. "Do any of the litigants have any objection to Mr. Dyer's request on behalf of Rice University?" he asked. None did.

"Well, Mr. Dyer," drawled Judge Hughes, "I never attended Rice, but I've always held it in high regard, and it's certainly one of our city's and our state's finest institutions of higher learning. I'll grant your request, and we'll leave your exact status here somewhat indefinite. You might manage to say something useful. But mostly, I find myself to be unexpectedly tickled pink just to learn that Rice University is indeed my particular friend, at least for the purposes of this case!"

"Oh, it is, Your Honor, it truly is!" I gushed relievedly — to loud guffaws from everyone else in the courtroom.

"Chums it is, then," said Judge Hughes with a grin. And I sat down, and made sure to keep my mouth firmly shut for at least the next hour of the proceedings.

*******

That anecdote is only mildly apropos given my main reason for posting here, which is essentially to reprint a comment I've left in response to a typically thoughtful series of posts over on the Volokh Conspiracy, including these two from Prof. Eugene Volokh. "Maybe I'm missing something," he writes, "but I just don't get the thinking behind the D.C. Circuit decision rejecting the retired federal judges' friend-of-the-court brief in one of the Guantanamo cases." (His co-blogger, Prof. Jonathan Adler, has also written about the ruling here and here, and their co-blogger Prof. Orin Kerr has written about it here.) Prof. Volokh further writes:

Of course, the reason that they are filing the brief is that they are hoping that their experience and past accomplishments will impress the judges and Justices who may consider the case, and will move those active judges to pay special attention to the arguments in the brief. (They may also hope that the public and the bar will pay such special attention as well.) But there seems to be nothing nefarious in that — the whole point of having amicus briefs be signed rather than anonymous is so that the court may consider, for whatever it's worth, the identity of those making the argument as well as the contents of the argument.

I don't disagree with that, nor with his analysis of the ethical advisory opinion briefly cited in the DC Circuit's order. But here (slightly edited) is the comment I left on his post (amidst many other very perceptive and well-written comments):

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

What's bogus is the notion that "retired judges" have an indirect interest comparable to, say, AARP, the ACLU or the National Association of Manufacturers. There's no such entity comprising, nor community of interest associated with, retired judges.

If some entity had hired all these former judges to sign off as co-counsel of record on an amicus brief, in which they were clearly appearing as ordinary advocates rather than pseudo-principals, that would have been another thing altogether. Whatever additional dignity their past histories might lend to their arguments would be implicit at most.

Instead, their brief's statement of interest claims that

[a]s former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation’s founding erodes the vital role of the judiciary in safeguarding the Rule of Law.

Which is to say, "Listen to us, 'cause we used to be judges and we oughta know." This was a stunt designed as much for media play as to impress any current judges on the DC Circuit — and indeed, in that latter respect it appears to have backfired rather badly, eh?

I think the DC Circuit was absolutely right. Nip this in the bud. Let judges join some special interest group if they wanna; or let them sign on to such an organization's proposed amicus brief with a simple "Esq." title if they want to return to legal practice as counsel of record. But per Chief Justice Roberts' observations about judges as "honest umpires," we don't want to invite all ex-Major League Baseball umps onto the playing field to critique and second-guess the officials whose current job it is to call the balls and strikes. They can doff their chest protectors and their uniforms and shout from the stands along with the rest of us.

Best of the Ford tributes

Of all the various tributes and remembrances I've read since President Ford's passing, Quang X. Pham's in today's WaPo is only one that taught me something about him that I didn't know, and I think overall it's the best. The by-line informs us that Mr. Pham "was born in Saigon [and] served as a Marine pilot in the Persian Gulf War." He was 10 in April 1975, when the last helicopters left the American embassy in the city and country of his birth, and he and his family were among the 130,000 "blessed South Vietnamese" (less than 1% of its population) whom the United States was able to relocate into "refugee camps across the United States."

Key graphs (italics mine; bracketed portions and second ellipsis in original):

In the end, after two decades of flailing diplomacy in that tiny peninsula, Gerald Ford dealt with the aftermath: empty guarantees made to an ally, promises he could not keep and a "peace with honor" that the congressional Watergate class would not enforce....

In a May 1975 article in the New York Times, Sen. Robert Byrd (D-W.Va.) commented that "barmaids, prostitutes and criminals" should be screened out as "excludable categories." Sen. Joe Biden (D-Del.) "charged that the [Ford] Administration had not informed Congress adequately about the number of refugees" — as if anyone actually knew during the chaotic evacuation. "I think the Vietnamese are better off in Vietnam," sniffed George McGovern in Newsweek.

At the time, unemployment in the United States hovered near double digits. Perhaps this had something to do with the anti-refugee emotion. In Larry Engelmann's "Tears Before the Rain: An Oral History of the Fall of South Vietnam," Julia Vadala Taft, head of the interagency task force for refugee resettlement, recalled such opposition. "The new governor of California, Jerry Brown, was very concerned about refugees settling in his state. Brown even attempted to prevent planes carrying refugees from landing at Travis Air Force Base near Sacramento.... The secretary of health and welfare, Mario Obledo, felt that this addition of a large minority group would be unwelcome in California. And he said that they already had a large population of Hispanics, Filipinos, blacks, and other minorities."

The refugees were extremely fortunate. Our biggest supporter, outside of Julia Taft, was the president of the United States. Even though he had described the Vietnam conflict as "a war that is finished as far as America is concerned," Ford's attention was now focused on the refugees. In May 1975 he visited the camps, and soon after refugees began leaving to start new lives across America. The government wanted to disperse the refugees to spread the cost among many states and communities. By Christmas of that year, all refugee camps had been closed, and the refugees were resettled in every state.

I am not aware of any other politicians, antiwar protesters, esteemed journalists or celebrities visiting Fort Chaffee, Ark., where my family was temporarily housed for two months. But Gerald Ford did.

The same supposedly compassionate doves, in other words, who'd opposed America's efforts on behalf of the South Vietnamese people wore their compassion on their sleeves, but quickly replaced that with armbands of bigotry and racism — while Jerry Ford, stymied and forced by Congress to watch as our nation broke its promises and abandoned an American ally, nevertheless did his own best to mitigate the harsh effects of that betrayal.

Mr. Pham doesn't use the phrase "cut and run." But see if you can read his op-ed without thinking of that phrase — and its likely consequences, and the parallels from Mr. Pham's history lesson and Jerry Ford's life — in the context of today's Iraq.

Ought John Edwards' career as a plaintiffs' personal injury lawyer disqualify him from being elected President?

My blogospheric friend and fellow legal professional Stephen Bainbridge writes (much more concisely than I'm about to) about John Edwards' formal announcement of his candidacy for the 2008 Democratic presidential nomination (links in original):

Back in 2004, I wrote that Edwards policies on corporate governance were "demonstrably wrong." I also criticized Edwards' impact on the economy as a trial lawyer. Given the deleterious effects the trial lawyer industry has had on the American economy, as ably demonstrated by the Manhattan Institute's Trial Lawyers Inc. project, I remain unconvinced that a trial lawyer ought to have much authority over the economy.

I would be loath to gainsay Professor Bainbridge on anything involving corporate governance, and this essay only addresses the remaining points in his post. And we agree, certainly, that neither of us would ever be able to support Edwards for high political office. But I get to that conclusion via a different logical path, and I respectfully disagree, albeit only in part, with that followed by Prof. B.

*******

I certainly agree with Prof. B that Edwards' specific career history as a lawyer is relevant to his fitness for public office. If he were shown to have been either incompetent or unethical as a lawyer, that would certainly be probative of his unfitness as a matter of personal character. But that would be true whether Edwards was a deal lawyer or a courtroom lawyer or any other kind of lawyer. (I argued in the 2004 election, for example, that John Kerry's comparatively dismal academic career and showing as a prosecutor before he turned to politics were among the many reasons to doubt his fitness for high office.)

And as always, I must voice my quibble over terminology: I believe what Prof. B objects to is not that Edwards is a lawyer who has frequently gone to trial (a category that includes, for example, prosecutors, criminal defense lawyers, personal injury defense lawyers, both sides in business litigation, and me), but rather, that Edwards is a lawyer who primarily represented plaintiffs in personal injury cases.

But that quibble aside, I also agree in general, at least on a macroscopic level and specifically at the margins, with most of Prof. B's and the Manhattan Institute's concerns about what the plaintiff's personal injury bar (many of whose members in fact do not frequently go to trial) may collectively have done, or be doing, or be likely to do, to our economy and our society. (I also think that it's dangerous and misleading to over-generalize on that topic. One of the reasons I like the writing of Walter Olson, Ted Frank, and their colleagues is that I believe they conscientiously try to avoid overgeneralizing, or at least to be very specific in their complaints — and they mostly succeed.)

I'm also at least somewhat inclined to think that because of the mode of most of our legal training, and for many of us the nature of our law practices, lawyers in general — not just plaintiffs' personal injury lawyers — may be more prone than those in other occupations to split hairs, play devil's advocate, rationalize, indulge in post hoc justifications, and fall prey to the perils of cultural relativity. All of which is to say, there are things about this profession that can often make it hard to maintain a principled, moral personal compass. Indeed, that may have proven true for some of the law school professors with whom Prof. B is familiar (although I'm confident that all of his own compasses are steadfast and true).

*******

So there is much upon which I think we probably agree. Where I part company with Prof. B, however, is over whether Edwards' career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.

It's perfectly possible, for example, for a lawyer to be polite, honest, and ethical; literate and well-educated; a fiscal conservative; a hawk on national defense and foreign policy; a libertarian on most issues involving personal liberty; a federalist; a textualist in statutory interpretation, an originalist in constitutional interpretation, and a proponent of judicial restraint; an opponent of both racism and racial preferences; a God-fearing Christian who nevertheless believes in evolution and the death penalty, but is horribly conflicted on the subject of abortion; and a lifelong Republican — and yet to have also represented plaintiffs in personal injury cases with some regularity. I know a few of those, and although plaintiffs' personal injury work has never been the bulk of my practice, I have from time to time been among that small but still significantly significant number. (That a huge portion of Angry Left Democratic candidates' funding comes from members of the plaintiffs' personal injury bar does not mean that all plaintiffs' personal injury lawyers support those candidates, no more than all members of the mainstream media do.)

And I'm not sure it's fair to use Edwards' membership in a subgroup of lawyers who may, in the aggregate, be bad for society or the economy, as a basis to extrapolate the kinds of national or international economic decisions he'd be likely to make as President. Lawyers who work on a contingent fee basis may indeed be keenly motivated by the prospect of sharing in their clients' recovery — again, that would describe me, from time to time, and it's the entire premise of the contingent fee system. But I don't think Edwards' decision-making as President would likely be motivated by personal greed for money, whatever his motivations have been during his career as a plaintiff's personal injury lawyer.

*******

Instead, I think John Edwards would be likely to make presidential decisions less through principle of any sort than through constant focus-grouping and opinion polling. He would be a weather-vane President — always acting with an eye toward satisfying his Angry Left base, yet usually also trying to fool the moderates in order to thereby ensure his re-election. His greed would be not for money — he has plenty — but instead for power, and for the means for obtaining and retaining it.

I'm not sure there is a genuine center to John Edwards: I'm confident that he can certainly be a persuasive advocate, but I'm not at all sure that he's capable of being a strong-willed principal.

I believe, in other words, that if elected, Edward would likely be a lot like a former President, William Jefferson Clinton, or another Presidential wannabe, Hillary Rodham Clinton — neither of whom have ever been plaintiffs' personal injury lawyers, but both of whom are lawyers, or were until Bubba had to surrender his license. Indeed, both Clintons have been law professors. And they're both capable of debating what the meaning of "is" is, or of rationalizing methods by which small change has become a small fortune in futures trading.

Abe Lincoln was, by all accounts, a first-rate trial lawyer whose cases included representation of plaintiffs suing to recover for personal injuries, and who often worked on a contingent-fee basis. But that doesn't mean that he had much in common with John Edwards, or with Bill or Hillary Clinton, in terms of any of their fitness to be President.

NYT blames Bush's Iraq policies for muting the "joy" over Saddam's execution

I'm sure that Dubya and his press office are long since used to their Catch-22 problems in dealing with mainstream media organizations like the New York Times, which will include in tomorrow's edition the following remarkable paragraphs (boldface mine) in a "news analysis" piece headlined "Joy of Capture Muted at End":

CRAWFORD, Tex., Dec. 29 — The capture of Saddam Hussein three years ago was a jubilant moment for the White House, hailed by President Bush in a televised address from the Cabinet Room. The execution of Mr. Hussein, though, seemed hardly to inspire the same sentiment.

Since his arrest on Dec. 13, 2003, Mr. Hussein has gradually faded from view, save for his courtroom outbursts and writings from prison. The growing chaos and violence in Iraq has steadily overshadowed the torturous rule of Mr. Hussein, who for more than two decades held a unique place in the politics and psyche of the United States, a symbol of the manifestation of evil in the Middle East.

Now, what could have been a triumphal bookend to the American invasion of Iraq has instead been dampened by the grim reality of conditions on the ground there....

A "triumphal bookend"? But for the "growing chaos and violence in Iraq" that the NYT would attribute to Dubya, we'd feel "joy" at this execution — "joy" that now must be muted?

When he was the governor of Texas, Dubya didn't have to worry about his press statements on the many, many executions he was asked to stay causing regional or sectarian violence between, say, Episcopalians in Austin and Baptists in Dallas. But he still knew how to behave in a dignified and solemn fashion with respect to solemn events that require dignity. That's exactly what he's done here, with a short and simple statement marking the occasion, but containing no "triumph" nor "joy" nor celebration of any sort.

As for the Catch-22: Can you imagine what the MSM and their favorites from the Angry Left would have done had Dubya, for example, high-fived Dick Cheney in public to celebrate Saddam's execution? Had the President invited a few key friends and generals over to watch the TV coverage? Or even had Mr. Bush called a simple press conference specifically occasioned by this event? "Ghoulish!" the NYT would have cried. "Unbefitting of an American president, but entirely in keeping with his record as one who presided over so many executions in Texas and then presided over the wanton slaughter of so many innocent civilians in Iraq!" we'd have heard from Nancy Pelosi or Harry Reid.

With respect to those whose hatred of the Bush-43 Administration drives and shapes their reaction to every current event, it's indeed true that no good deed by this President goes unpunished.

Meanwhile, the same NYT story contains a quote from a world-class ass-hat blow-hard:

Senator John Kerry, the Massachusetts Democrat who ran against Mr. Bush in 2004 and has become increasingly vocal in his criticism of the war, said executing Mr. Hussein was hardly worth the cost.

"To go to war to kill one guy? Please," said Mr. Kerry, who recently returned from a visit to Iraq....

Thus does the former prosecutor who bragged during the 2004 presidential campaign that he'd created "a victim's rights unit that was the first of its kind in Massachusetts and one of the first in the nation" honor the memory of hundreds of thousands of innocents slain by this monster.

U.S. federal court rejects silly legal argument to postpone Saddam's execution

Minutes ago, the Associated Press reported that

[a] U.S. judge refused to stop Saddam Hussein's execution Friday, rejecting a last-minute court challenge by the former Iraqi president.

"Petitioner Hussein's application for immediate, temporary stay of execution is denied," U.S. District Judge Colleen Kollar-Kotelly said after a hearing over the telephone with attorneys.

When I first heard that this application had been made to a federal court here in the U.S., I started imagining how I might have tried to frame it, were I one of Saddam's lawyers — not because I am, or want to be, or would ever agree to be, one of Saddam's lawyers, but because to analyze a legal argument, you have to put yourself in the shoes of each side's advocates. The best arguments I could imagine still wouldn't have had any ultimate merit, but I could at least imagine some lawyer arguing them without an extreme amount of embarrassed blushing.

Reading the press description of what they actually argued, though, I can't imagine how Saddam's lawyers' heads didn't explode:

Hussein's lawyers filed the court challenge late Friday night, giving the judge just hours to act before the execution was expected to be carried out.

Hussein's attorneys argued that because the former Iraqi president also faced a civil lawsuit in Washington, he had rights as a civil defendant that would be violated if he is executed. He has not received notice of those rights and the consequences that the lawsuit would have on his estate, his attorneys said.

Wow, that's thin: Don't let the Iraqis execute him, 'cause he's been sued in America!

The reek of last-minute forum-shopping alone would have prompted all but the most extreme and ideological federal judges to bounce this case. Kudos to Judge Colleen Kollar-Kotelly (who is, by the way, a Clinton appointee, but whose background includes three years as a lawyer in the Justice Department's criminal appellate section).

The occasion of this monster's execution is not an occasion for celebration. It's a moment to again mourn his innocent victims, who number at least into the hundreds of thousands, and to take grim satisfaction in the justice, however inadequate and imperfect, that is finally being accorded to their memories.

More about Tex Dyer and the USS Zeilin

This is one of those posts that I don't expect will be of general interest, but that I'm adding to my blog just because I want to memorialize some oral history from my family — specifically from my father — for my kids and, maybe, their kids someday.

Over the Christmas holiday just past, my four kids and I, along with my older sister and brother and their spouses, traveled to our hometown, tiny Lamesa in the Texas panhandle (about an hour's drive south of Lubbock). We were also celebrating the 84th birthday of my father on Christmas Eve.

During the course of the holiday weekend, my siblings and I prevailed upon my dad to tell us and my kids about his Navy days in World War II. I'd previously had a hard time getting him to open up about this — and indeed, he'd only done so at any length on one occasion, back when I was a high-school senior in 1974-1975.

This past weekend, though — assisted by a shoe-box full of photographs he'd saved from that period — he shared his memories from the war and the immediate post-war period.

To supplement the little bit that I could remember from what he'd told me all those years ago, I'd done considerable online research about his ship, the USS Zeilin, for a long blog post that I wrote during the run-up to the 2004 election. During my father's recollections last week, however, I learned that I'd been mistaken in my assumption that he'd graduated from the University of Texas and been commissioned from the NROTC program into active-duty Navy service in May 1944. And I'd also assumed, again mistakenly, that he had joined the Zeilin at San Francisco in October 1944. Instead, due to an accelerated program designed to pump out junior officers at a faster clip, he received both his B.A. and his Navy commission on the same day in early January 1944. And after processing into the Navy, via other means of transport through Australia, young "Tex Dyer" — immediately so nick-named because he was its only officer from Texas, but known as "JoDo" (for his initials, "J.D.") by his hometown friends in Lamesa — actually caught up to the Zeilin in March 1944.

Because of my mistaken assumptions, in describing the Pacific operations in which my dad took part, my earlier post mistakenly omitted several. I did describe the Zeilin's activities after October 1944 and then throughout 1945, which included the landings on Luzon in the Philippines, the subsequent kamikaze strike on the Zeilin, and its participation in landing reinforcements at Iwo Jima. But here's what I mistakenly left out, as taken from the Navy's official history of the "Mighty Z's" activities during the March-October 1944 period:

For the next three months [after February 1944 operations in the Marshall Islands], the southwestern Pacific once again became her theater of operations. She carried troops and supplies for units operating in the Solomon Islands and for MacArthur's forces, then leapfrogging up the back of the New Guinea bird. During those months, she visited Guadalcanal and Bougainville in the Solomons, Espiritu Santo, Milne Bay and Cape Sudest on New Guinea, and the newly conquered Admiralty Islands. On 10 May, she returned to Guadalcanal to prepare for the invasion of the Mariana Islands.

Zeilin departed the Solomons on 4 June as a unit of the Southern Attack Force (TF 53) whose specific target was to be Guam. The transport — with marines of the 1st Provisional Brigade embarked — arrived near the Marianas at mid-month and waited in an area 150 to 300 miles east of Guam for its assault scheduled for the 18th, three days following initial landings on Saipan. The operation, however, suffered two postponements: the first caused by the Battle of the Philippine Sea and the second by the unexpectedly bitter opposition which the Americans encountered on Saipan and Tinian. Part of the force was dispatched to Eniwetok to await the arrival of the 77th Division from Hawaii to bolster the Guam force. Zeilin and her marines, however, remained in the Marianas area for another five days as a floating reserve.

When it became apparent that the 1st Provisional Brigade was not needed to bolster the Saipan force, those transports too headed for Eniwetok, departing the Marianas area on 30 June and entering the lagoon at Eniwetok on 3 July. Fifteen days later, Zeilin left the lagoon, rendezvoused with the transports carrying the troops from Hawaii, and shaped a course for the Marianas. Zeilin arrived off Guam on 22 July, the day after the initial assault on that island. She remained in the area only four days — unloading marines, equipment, and supplies — and then departed the Marianas. After an overnight stop at Eniwetok on 29 and 30 July, she continued on to Pearl Harbor where she arrived on 7 August. The attack transport remained at the Hawaiian base for three days, then headed for the west coast. On the 18th, she arrived in San Francisco where a three-month's overhaul restored her to top fighting trim by the beginning of the last week in October.

I remembered from our discussions when I was in high school that my father had told me he'd commanded landing craft taking troops from the Zeilin ashore, so I pressed him last week to tell us more details about that duty. I finally pried out of him his memories of the Battle of Guam in July 1944, which were particularly vivid. During it, my dad was indeed in command of a "Landing Craft, Mechanized." But there were offshore coral reefs several hundred yards out from the beaches — where the U.S. forces had only been able to establish a 2-km. perimeter. Amphibious vehicles could negotiate the reefs, but the Marines and soldiers not in those generally had to wade or swim in — and to do so while under fire.

At one point, my father saw two wounded Marines in the water just inside the reefs, where his LCM couldn't go — and none of the enlisted men under his command could swim. An Eagle scout, my dad could swim, and so he dove off to try to help the Marines across the reef. One of them absolutely insisted that my dad take the other Marine first, and even though that Marine seemed to be more superficially wounded, my dad reluctantly was obliged to comply. He returned for the second Marine, but found — as my father told us last week with tears in his eyes — that "he hadn't made it."

That probably would have gotten John Kerry the Navy Cross or maybe the Congressional Medal of Honor. What it got my dad was a severe chewing out from the Zeilin's "old man," who was absolutely furious that my dad had left the boat under his command even momentarily. (You'll perhaps recall that Kerry's Silver Star came from an engagement in which he also left the boat he was commanding, with considerably less justification.) The Zeilin's captain was regular Navy from before the war, and he was, of course, technically right. But my dad wasn't reluctant to talk about this episode because he'd been scolded over it. Indeed, he told us that if he had it to do over again, he'd make the same decision: in his estimation, a Marine's life was well worth his being in the captain's doghouse for a few weeks. Rather, it was just difficult for him to talk about the Marine who'd died in the water while waiting for my dad to get back. "He was a real hero," my dad said, and he repeated again something I've heard him and many other veterans say: "The heroes were the ones who didn't come back."

While young "Tex" was in the doghouse and restricted to bridge duty, however, the captain figured out that as a "college man," in addition to serving from time to time as officer of the deck, my dad could also write up much better-than-average log entries and other reports. That was useful and important administrative work, but it also (perhaps only incidentally) had the effect of making the old man look good — especially to the independently-operating brass who were also aboard the Zeilin in its role as a relief flagship for the Commander Amphibious Force, Pacific Fleet. So even after the old man had forgiven my dad, he never returned my dad to commanding the landing craft, and the Zeilin's bridge was pretty much where my dad spent the rest of the war.

Indeed, that's where he was when the Zeilin was struck by the kamikaze on January 13, 1945, which I wrote about at some length in my earlier post. Dad said that it was hard to tell whether the suicide pilot was aiming for the Zeilin's bridge or its smokestack and engine room. But as it turned out (again quoting from the Navy's official report): "[The kamikaze's] right wing struck the port kingpost and boom serving [the] No. 6 hatch, while the fuselage swung inboard under the radio antenna and crashed the starboard side of the housetop." A one-inch twitch on that pilot's stick might have meant the difference between me being here to write this blog or not. In my last post, I quoted at length from an account written by a man serving on another ship in the convey, the USS Block Island, who was trying to shoot down the kamikaze when he saw it hit the Zeilin. I've since found another description of the effects of the attack — this one written by a sailor on board the destroyer USS Saufley:

After departing Lingayen to Leyte Gulf as a screening ships for the transports, we picked up one survivor from a suicide crash on USS Zeilin. This man was so badly burned that his flesh was falling away. His face looked like an overcooked marshmallow that had turned black. One of our men who saw him later had a breakdown. We had worked with USS Zeilin in other places and felt this as a personal loss.

Among the pictures my dad showed us was one taken of him a few days later, standing under the kamikaze's mangled propeller as mounted on a wall painted with markers for each of the Zeilin's engagements.

When I wrote my original post, I also hadn't realized that my dad — as one of the more junior officers, and thus one of the last to be released from active duty — had stayed with the Zeilin until early 1946, after it had transported American occupation troops from the Philippines to Korea, and then steamed through the Panama Canal en route to Hampton Roads, Virginia. While in the Canal Zone, my dad got to watch the N.Y. Yankees in a spring training exhibition game at Balboa Stadium featuring (the just returned from the service) Joltin' Joe DiMaggio.

Also among the pictures in the shoe-box was a 1946 picture of my dad in his dress whites, standing under the canopy in front of the Biltmore Hotel in New York with an absolutely gorgeous babe. (His younger sister, my aunt Tennie Marie, was then studying piano at Julliard and had set him up on a blind date.) "Wow!" said my 11-year-old daughter Molly when she saw this picture, "You were really handsome, G-Pa, before you got so old!" (That of course provoked a big laugh from everyone.)

My older brother's son David is finishing up at UT-San Antonio's dental school, and will begin his commitment with the U.S. Navy at the Marine Base in Twenty-Nine Palms, California, this summer. Similarly, my brother was an Air Force orthodontist stationed in Wiesbaden, West Germany, in the late 1970s. So overall, my family's pretty proud of its contributions to our armed forces over the years. As for my dad, he continues to insist that he was no hero in World War II — but that he certainly served with heroes. With each year that passes, fewer and fewer of them are left among us.

But among my own Christmas blessings this year was the fact that my kids got to hear from their G-Pa about his service to his country in a time of great peril. They got to see, and hear him reminisce, not just about battles, but also about pictures of him among a group of admiring junior NROTC cadets that he was responsible for training, and at his "ring ceremony" at U.T. when he was commissioned, and then among friends aboard the Zeilin — and even the touristy photos he took while he was in the Philippines (including a few of a water buffalo). One set of photos was of an equator-crossing ceremony held aboard the Zeilin that included sailors in ridiculous drag as King Neptune's mermaids; another showed him being hazed as a newbie making his first trip across the International Date Line. I think my kids got some sense of what this now-84-year-old man was like when he was just slightly older than they are now. And I believe he also sensed that, both during and after our discussions. My kids' and my and my siblings' respectful and deserved attention — plus the knowledge that his own history won't be lost when, someday, we lose him — certainly meant something very good to him as well. I'm a fortunate man to be his son.

Weasel 61

Don't miss Ben of Mesopotamia's very funny post about John ("Christmas in Cambodia") Kerry's real Christmas-season visit to Iraq.

While you're there, you may also be interested in this post, which reminds me of the "educational and motivational" bull-castrating antics of former Texas A&M and Mississippi State coach Jackie Sherrill.

Class and the absence thereof with respect to the late Pres. Gerald R. Ford

The first vote I ever cast in a presidential election was for Gerald R. Ford in 1976. He'll be remembered as an honest and decent man — a class act whose presidential skills, if not equal to those of Ronald Reagan, at least looked considerably better by the end of Jimmy Carter's disastrous presidency.

It's ironic, then, that Bob Woodward and the Washington Post, who played such a substantial part in the political demise of President Ford's predecessor, have chosen the occasion of his death to publish a remarkably classless front-page "news report" breathlessly entitled "Ford Disagreed with Bush About Invading Iraq."

Explains Woodward: "The [July 2004] Ford interview — and a subsequent lengthy conversation in 2005 — took place for a future book project, though he said his comments could be published at any time after his death." One wonders if Woodward got that permission through a candid and honest request, which would have gone like this:

"Hey, Mr. President, I know that to induce your cooperation, I told you these interviews were intended for a reflective and in-depth book I'm planning to write some years from now. But actually, within hours of your death and before you've even been laid to rest, my newspaper and I plan to quote selectively and sensationally from anything you tell me for the deliberate purpose of trying to make the incumbent president look bad — since after all, you won't be around to refute my spin then. With respect to anything remotely critical or negative that you say about Dubya or Cheney or Rumsfield, I'm going to make out like this was you entrusting me to deliver on your behalf some important posthumous political message — maybe even a warning from beyond the grave! — to the whole American public. We'll pick that time to 'break' this 'news story' because that will be the moment of maximum good feeling toward you in the public's sentiments, and thus your comments as spun by us will do the maximum amount of damage to the current administration. Oh, sure, we've talked here for several hours over the course of two separate interviews over two years. But I'm going to pick out the seven sentences I like best, edit out anything and everything else that might have provided any context, and then put up a transcript and audio recordings of just those seven sentences on the Washington Post website as 'support' for my 'revelation.' Is that plan okay with you?"

Woodward shows that he can also selectively ignore major elements of history:

In the end, though, it was Vietnam and the legacy of the retreat he presided over that troubled Ford. After Saigon fell in 1975 and the United States evacuated from Vietnam, Ford was often labeled the only American president to lose a war. The label always rankled.

"Well," he said, "I was mad as hell, to be honest with you, but I never publicly admitted it."

Why would President Ford have been "mad as hell"? That's obvious to anyone who knows that the proximate cause of the fall of the South Vietnamese government in April 1975 was the refusal of the post-Watergate radical-dove Congress to continue the economic and indirect military aid that President Ford had urgently requested. That refusal led directly to what was, in my view, not America losing a war, but America's most shameful betrayal ever of an ally — but however it's characterized, the blame for it cannot be laid at President Ford's feet.

I'd wager that Woodward knows those facts, and that he knows that most Americans of this era don't. But is Woodward's disingenuous misreading of history important? Only if you expect, as I do, that the new Democratic majorities in the House and Senate will begin trying to run American foreign policy in Iraq and elsewhere through similar hyper-management of the military's purse-strings.

I'd make a wish that someone, someday, would selectively spin-quote Woodward to promote some politically nasty purpose within hours of his death, whenever that happens. But that would accord Woodward a degree of implied respect that he's long since forfeited. Gerald Ford was a dedicated and noble public servant who deserves to be honored and mourned. Bob Woodward is a worm who would begin gnawing his corpse before it's even in the ground.

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

UPDATE (Thu Dec 28 @ 6pm): Bill Bennett posted a very, very different reaction to the Woodward article over on The Corner (ellipsis in original):

[J]ust how decent, how courageous, is what Jerry Ford did with Bob Woodward? He slams Bush & Cheney to Woodward in 2004, but asks Woodward not to print the interview until he's dead. If he felt so strongly about his words having a derogatory affect, how about telling Woodward not to run the interview until after Bush & Cheney are out of office? The effect of what Ford did is to protect himself, ensuring he can't be asked by others about his critiques, ensuring that there can be no dialogue. The way Ford does it with Woodward, he doesn't have to defend himself ... he simply drops it into Bob Woodward's tape recorder and lets the bomb go off when fully out of range himself.

It's hard for me to imagine that Mr. Bennett would reflexively assume that Bob Woodward's participation in this was benign, altruistic, and unspun, but that President Ford's intent was to throw bombs, via Woodward, at the Bush-43 administration after President Ford's death. I believe that peddling that notion was precisely Woodward's and the WaPo's intention, but I'm surprised that Mr. Bennett would be so completely fooled by it.

NRO's Jonah Goldberg, meanwhile, posted a link to a Thomas DeFrank piece in today's New York Daily News that, as Mr. Goldberg points out, is "a good deal more nuanced than the Woodward version." It includes this (first bracketed portion and boldface mine, second bracketed portion in original):

Ford was a few weeks shy of his 93rd birthday as we chatted [during a May 2006 interview] for about 45 minutes. He'd been visited by President Bush three weeks earlier and said he'd told Bush he supported the war in Iraq but that the 43rd President had erred by staking the invasion on weapons of mass destruction.

"Saddam Hussein was an evil person and there was justification to get rid of him," he observed, "but we shouldn't have put the basis on weapons of mass destruction. That was a bad mistake. Where does [Bush] get his advice?"

I suppose I'm one of the most consistent supporters of the Bush-43 administration left in America. I'm the sort of person who'd respond to the late President Ford's question, for example, by pointing out that concerns over WMD were legitimate, but in any event they were only one out of a long list of justifications offered by the Bush administration and the Congress for overturning Saddam's regime.

But if a newspaper reporter were, for some odd reason, to spend two hours interviewing me about events since January 2001, I'm quite certain that at the end of the interview, that reporter could — if he were unscrupulous — extract at least seven sentences that he could post in partial-transcript form, and on the basis of which he could run a story breathlessly headlined: "Beldar Bashes Bush!" That, of course, would not be a newsworthy headline, and the deception not worth the reporter's or his newspaper's efforts. Unfortunately for President Ford's posthumous reputation with people like Mr. Bennett, however, that sort of ghoulish spin apparently was considered worthwhile by Woodward and the WaPo.

Federal appellate panel rehearing vs. rehearing en banc

Linking TaxProf Blog and How Appealing, Prof. Jonathan Adler over on The Volokh Conspiracy writes (italics in original) that

[t]he U.S. Court of Appeals for the D.C. Circuit has granted the petition for rehearing in Murphy v. IRS. In Murphy, a unanimous three-judge panel held unconstitutional a provision of the Internal Revenue Code that taxed as income, compensation for personal injuries unrelated to lost wages or earnings. Note, this is not an en banc rehearing. Rather, the original three-judge panel will rehear the case.

Some of the comments pick up on Prof. Adler's distinction between panel rehearing and en banc rehearing, and pose some further questions about the difference between the two. I started to weigh in with a lengthy comment there, but decided to post here instead, since I've frequently blogged about en banc proceedings within the various federal courts of appeals, but I don't think I've ever written much specifically about panel rehearings.

When a three-judge panel of, say, the Fifth Circuit issues its opinion announcing its decision on any given appeal, the losing side has several options. It can ask for that three-judge panel to reconsider its decision via panel rehearing. It can also ask the entire membership of the Fifth Circuit to reconsider the three-judge panel's decision via rehearing en banc. In fact, the losing side can choose to do either, or both, but it can also choose to do neither: It can skip both of the panel and en banc rehearing steps, and jump straight to asking the Supreme Court to overturn the Fifth Circuit panel's ruling via a petition for a writ of certiorari.

Obviously, if a panel does agree to reconsider its original opinion, then its doing so may moot some or all of the issues that were raised in a simultaneously filed motion for rehearing en banc. Thus, if both a motion for panel rehearing and a motion for rehearing en banc have been filed, the Chief Judge of the Circuit will typically wait for the three judges on the panel to indicate whether they're going to grant or deny panel rehearing before polling all of the judges of the Circuit on the motion for rehearing en banc. And indeed, Prof. Caron's post points out that "[a]s a result of the [Murphy] panel's action [in granting the motion for panel rehearing], the D.C. Circuit dismissed the Government's en banc petition (filed 10/5/06) as moot."

It's fairly rare, however, for the litigants to persuade a three-judge panel to grant panel re-hearing.  Most of the time, the litigants have indeed already made their best arguments, and have made them as persuasively as they are able, before the release of the original panel opinion. Many litigants therefore don't even bother requesting panel rehearing, but simply ask for rehearing en banc — or (lances leveled straight at the windmill) they simply file their cert petitions.

Sometimes, though, a panel opinion will end up being decided on a factual or legal issue that may not have been fully briefed. When a panel has acted without the benefit of much briefing on a particular factual or legal point, its resulting opinion is comparatively more likely than otherwise to have bollixed something up. In those circumstances, the first time the point is thoroughly briefed by the parties may be during the motion for panel rehearing stage — and that briefing may indeed change the minds of the panel judges as to what the outcome should be. For example, a panel opinion might duck a procedural issue on the ground that one party waived the issue by failing to make a timely objection in the district court. If the losing side's motion for panel rehearing can point the panel to the place in the record where a timely objection was indeed made, then the panel may grant rehearing, delete the waiver analysis, and deal with the issue on its merits in a substituted opinion. Quite often in these situations, on rehearing the panel reaches the same ultimate result as it did originally, but it's simply "prettified" its original opinion — thereby making it somewhat less vulnerable to rehearing en banc or certiorari.

The best appellate advocates understand that panel rehearings have a slightly different set of dynamics than do en banc rehearings. Arguments relating to the record, for example, are generally far more appropriate to panel rehearing, as are arguments that the panel went off in an unexpected direction that wasn't adequately briefed. Arguments to the effect that the panel simply got the law wrong — notwithstanding thorough briefing on point by both sides before the panel made its ruling — are very unlikely to persuade the panel to reconsider, but they may have a better chance of attracting support from other Circuit Judges who weren't on that panel.

Thus, the tone of a motion for panel rehearing may be very solicitous, along the lines of, "Gosh, Your Honors, we're sorry, we just didn't know you would be interested in Issue X-and-such, but now that we know that, here's our position on that, and here's why you ought to want to grant panel rehearing to fix this problem in your original panel opinion (and by the way, here's why that means we win instead of we lose)." The underlying tone and subtext of a motion for rehearing en banc, however, is typically much more adversarial, along the lines of "Hey Fifth Circuit! Three of your colleagues just screwed the pooch very badly, so you need to unscrew it before we ask the Supremes to do so, 'cause they and the other Circuits are going to be pointing the finger at your Circuit and snickering behind your backs!" (Obviously, this sort of pitch has to be really sub-textual, and cloaked in appropriately respectful language, to have any chance at all of success. But that is the basic and essential pitch: "Y'all need to gang up and overrule three of your colleagues who've botched it.")

It's a mistake, however, to assume that the litigants and the three judges of the panel are the only players in panel rehearing dynamics. The possibility of rehearing en banc may make panel rehearing more likely in at least some cases. The litigants' counsel may be incapable of spotting, or at least persuasively articulating, some fundamental flaw in a panel opinion, and therefore may be unable on their own to persuade a panel to reconsider.  But "slip opinions" (the initial printed versions of opinions as released by the court clerk, before they're originally included in the long-term bound volumes of the Federal Reporter series) are typically reviewed by other judges of that Circuit who weren't on the original panel — and those other judges also have a long-term interest in the coherence of their Circuit's precedents. That can, in turn, indirectly lead to a panel opinion being withdrawn by the panel — sometimes even when no motion for panel rehearing has been filed!

The judge for whom I clerked, for example, had a particular expertise and interest in securities and bankruptcy law. If she saw that a panel opinion said something particularly stupid on one of those arcane topics — typically because of poor briefing by the litigants combined with a lack of deep experience on the subject on the part of the panel judges and their (neophyte) law clerks — she might pick up the phone or jot a short note to the author of the panel opinion suggesting that he or she re-think that particular portion of the opinion. The gentle and entirely implicit threat was that if the problem wasn't fixed, my judge might reluctantly and respectfully have to support en banc rehearing — perhaps by leading the charge within the full court to see the petition for en banc rehearing granted — to keep the panel opinion from becoming lasting, binding precedent. This process is a less confrontational means for each Circuit's most knowledgeable judges on particular subject areas to ensure that its precedents aren't muddled. Quite often the original panel members are grateful rather than defensive. (Indeed, if they'd only seen the flap coming in advance, they might have solicited the views of their Circuit's "resident expert" on that topic before releasing the original panel opinion to the public.)

I don't know enough about the Murphy case to make an intelligent guess as to which of these scenarios this grant of panel rehearing falls into, if any. And I certainly don't have anything interesting to say about the underlying tax law question.

Rather, my reason for blogging about this at all is as part of my continuing effort to demystify, and yet demonstrate the complexity of, decision-making within each of the various Circuits. The more you understand about how those appellate courts work, the more likely you are to conclude that the power to nominate Circuit Judges, and to confirm or block those nominees, ought to be an extremely important political consideration when you cast your own votes for President and for your state's senators.

What to give the person who has everything

My family is hard to buy Christmas presents for. Oh, not my kids — they're comparatively easy. But my dad, my brother and sister-in-law, and my sister and brother-in-law — they're hard to buy for, because like me, they pretty much have everything they really need.

But for me, and probably for most of you reading this blog, it's absolutely true that for the adult members of your close family, it really is the thought that counts.

So I've decided that this Christmas — and probably for every Christmas to come — I won't buy any more junk for my adult family members. I can better show them that I love them, and that I'm thankful for them, by showing thanks and love on their behalf to others who really, really need it.

This year, I've chosen to make donations on their behalf to the Intrepid Fallen Heroes Fund.

Originally, the Fund "provide[d] unrestricted grants to the families of military personnel who have given their lives in the current operations in defense of our country." But since the passage of legislation in 2005 that began more generously and appropriately compensating these families, the Fund has focused on

constructing a world-class state-of-the-art advanced training skills facility at Brooke Army Medical Center in San Antonio, Texas. The center will serve military personnel who have been catastrophically disabled in operations in Iraq and Afghanistan. The center will also serve military personnel and veterans severely injured in other operations and in the normal performance of their duties, combat and non-combat related.

The Fund has already raised $35 million for the facility itself — in part through generous gifts like those from the Michael & Susan Dell Foundation. Building on that success, now the Fund is

accepting donations to provide additional services to the patients who will be treated in the Center and their families. These services may include facilities for patients' children, additional medical equipment and supplies, medical research to improve the care of patients, or other areas relating to the Center's activities including the patients and their families. One hundred percent of the contributions will continue to go to these services, with nothing taken out for the Fund's administrative costs.

I like the fact that the Center for the Intrepid is in San Antonio, relatively close by, and in a local economy where a buck's investment goes a long way (and is likely to indirectly benefit other military families concentrated there). I like the fact that the Center will "be fully staffed and operated by [the] U.S. Army Medical Command with operational budget dollars." And I also like the fact that the new facility "will be built in conjunction with and attached directly to two 21-room Fisher Houses" — the work of another fabulous (and highly rated) charity "that enables family members to be close to a loved one at the most stressful time — during hospitalization for an illness, disease or injury."

Best of all, I like the fact that the Fund is listed among the top-rated military charities by the American Institute of Philanthropy, with an "A+" rating based on the percentage of contributions that actually go toward the Fund's purposes as compared to administrative and fund-raising expenses. The Fund's Board of Trustees, comprising a bunch of folks who've been very financially successful, "underwrites all administrative costs," which means they're actually doing something besides showing up for fancy dinners and getting their pictures in the newspapers. A round of applause for these fat cats, please!

There are, of course, many other worthy charities. The Intrepid Fallen Heroes Fund is just one of many military-related charities, and there are of course many other worthy special purpose-related charities (for example, still helping hurricane disaster victims) and general purpose charities.

As fortunate as my family and I are, however, I just can't bring myself to spend money at Christmas-time on another necktie or battery-operated whatzit or coffee-table book or, worst of all, something destined to gather dust at the back of a closet.

And hey — with online giving, you can click a link, maybe open a new browser window, and finish your hard-to-finish Christmas shopping in less than five minutes! Print out a page about the charity you've donated to, print out the email confirmation that will list in whose honor or memory your donation was made, and pop them in a Christmas card — and voilà, your gift-wrapping is also done! (Most charities, including the Intrepid Fallen Heroes Fund, will also send a confirmation card by regular mail ot your honoree, per your specifications.) Then sit back, give a hearty Ho-Ho-Ho! — and join me in counting our blessings.

Would you like to re-view your testimony from behind bars, counselor?

Some of my colleagues at the bar wonder why many members of the public hold us in low regard. I don't wonder, and stories like this one (hat-tip Howard Bashman) ought make it clear to them too (italics and boldface mine):

A Microsoft lawyer argued Tuesday that three expert witnesses should be barred from testifying in the Iowa class-action lawsuit against Microsoft because plaintiffs' lawyers have repeatedly failed to provide documents related to the witnesses' testimony.

....

Microsoft asked last summer for documents used by [the plaintiffs'] expert witnesses to arrive at the testimony they planned to give in the case.

Microsoft lawyer Steve Holley told the judge Tuesday afternoon that the plaintiffs' lawyers had used contorted language to keep from producing the documents.

Holley claimed that lawyers at the Minneapolis firm of Zelle Hoffmann had split the word review — into re-view — to create their interpretation that Microsoft was only seeking documents that the witnesses had looked at twice.

James Reece, a partner at Zelle Hoffmann, which is co-counsel with Des Moines lawyer Roxanne Conlin for the plaintiffs, admitted to Holley that expert witness Netz had suggested the unusual interpretation. Reece had adopted it until a second court order on Nov. 28 made it clear that Microsoft wanted all witness documents.

Reece spent more than an hour on the witness stand late Tuesday afternoon after the jury was sent home.

Gosh, for the sake of Mr. Reece and Ms. Conlin, I hope there's more to this story than the Des Moines Register reports in this article. For their sakes, I hope the Microsoft lawyer misunderstood the supposed "admission," or the reporter just heard all this wrong. Because if that's all there is, Mr. Reece and Ms. Conlin's clients are almost certainly looking at losing the "benefit" of those experts' testimony: the judge will exclude or at least severely limit their testimony as a discovery sanction, or he'd have the power even to dismiss the plaintiffs' claims outright. And those lawyers ought to be looking at serious, serious personal and professional sanctions — fines, maybe jail time, disciplinary and maybe bar licensure consequences, and probably malpractice claims.

Let's be frank: Reading the word "review" to mean "re-view" is no different than simply lying about what the testifying experts looked at.

And it's a stupid lie in which the lawyers absolutely, positively should have known they'd be caught, even if the "expert" who suggested it thought they could get away with it. Every lawyer who's set foot inside a courtroom ought to know, has to know, can't find any excuse for not knowing, that it's absolutely, positively routine — universal — to have to turn over to the other side everything that your testifying experts have "reviewed" in forming their opinions, whether the experts skimmed it once or studied it for months in a wall-sized blow-up.

Occasionally you'll get into spats over whether an expert has "considered" or "relied upon" something he didn't specifically "review" for purposes of that particular case. Sometimes an expert will say, "Oh, that's just common knowledge in my profession, I didn't have to 'review' anything to know that." The cross-examining lawyer might say, "Sez who?" And then there may be some probing of just how common that knowledge is, whether it's in introductory textbooks or taught in professional schools, and so forth.

But any piece of paper that passes through a testifying expert's hands specifically for the purposes of his engagement to give testimony in that particular case just has to be turned over. It's not a close question, it's not a judgment call for the lawyer to make, it's just a basic, basic rule of pretrial procedure in all civil cases in every state of the Union. (But not, oddly enough, in some supposedly "civil" countries where they still discourage pretrial discovery and encourage trials-by-ambush.) Knowledge of this fundamental procedural rule is a big key to all expert witness retention and use strategies in modern litigation. (I posted at great length on the subject of testifying versus consulting experts, and expert witnesses generally, here if you really want the details.)

The Register reporter may not have understood all this, because he seemed to think that the thoroughness of Microsoft's demands were unusual:

The fight over the expert witness documents is an indication of how seriously each side considers even minor nuances to be in this case, which lawyers have said could last as long as six months.

Uh, no. This is not about "minor nuances." What the other side's expert witnesses have "reviewed" in forming their opinions and preparing their testimony is absolutely crucial to preparing their cross-examination in just about every case. There may be times when my client can't afford to pay me to take an expert's oral deposition before trial — to "swab him out," as trial lawyers say, by examining him thoroughly about every thing the expert's looked at and considered — but you still want that material in-hand at the trial even if you're doing a hip-shot cold cross-examination, and you're entitled to it. The only thing that strikes me as odd about this story is that the Microsoft lawyers apparently didn't discover the deception — for that's what this was, if the newspaper story is accurate — until the trial was underway. (Normally I'd have expected this to come out during a well-conducted pretrial deposition, which is another reason it's such a stupid lie.)

Why is it important that the document turn-over be completely comprehensive? Some of what the expert has reviewed may well not be reliable: "So, Dr. Xanadu, in forming your opinion that Bill Gates deliberately engaged in predatory pricing, and that he had actual knowledge that he was in unarguable violation of the antitrust laws, and that he had an average of three wet dreams each week dreaming about how he was putting it to the little guy, you relied heavily on two cartoons printed in the National Enquirer and a press release from the North Korean Ministry of Trade, isn't that true? Indeed, when the court ordered you to produce every shred of evidence that formed a basis for your opinion, those were the only documents you could produce, correct?"

And what's not there may turn out to be the most important thing of all: "Isn't it true, Dr. Xanadu, that you formed and put into writing your opinion that Microsoft was engaged in predatory pricing without ever examining a single financial document showing Microsoft's profits and costs?" If the witness is allowed to answer, "Oh, no, hey, I actually did look at all their documents on profits and costs, here they are in my briefcase with my handwritten and dated notes on them to prove it, but I just didn't look at any of them twice, so we didn't produce them when you asked" — then that would pretty much encourage deception, wouldn't it?

This is just roll-on-the-floor funny to any trial lawyer who reads it. And unfortunately, it's the sort of thing that — justifiably — causes the public to ridicule lawyers. All I can say in our profession's defense is that, well, these guys are about as representative of our profession as would be a bank robber who claimed to be representative of his profession after asking the bank security guard to hold his gun for him while he loaded his briefcase with cash from the safe.

If ever a judge were tempted to use his gavel — specifically, to bonk a lawyer on the noggin! — it would be in a case like this one.

More on the California lethal injection case

Further to my post from the wee-small-hours last night about the decision of U.S. District Judge Fogel in the California lethal injection case: The promised post from Patterico analyzing the decision is here, and here, from yesterday, is Prof. Kerr's briefer post as well. And readers have left interesting comments on both posts.

Patterico read the opinion with a commendably closer eye to its procedural nuances than I did. I think he's absolutely right that Judge Fogel did, in effect, shift the burden onto California to prove that its execution procedures are constitutional, and that he drew impermissible inferences from the absence of certain evidence to suggest what that evidence might have been (always in a way that favored the opponents of California's system). The overall impression, when studied with more care than I gave the opinion on my first pass-through, is that Judge Fogel was in a rush to push certain changes to be made in the system — he thinks he'd make a pretty good prison reformer, which is fine, but he also thinks he is one, which isn't. He's a federal judge in a constitutional system in which the federal government's powers, including the federal judiciary's powers, are supposed to be limited. But he wouldn't let either procedural niceties (like who had the burden of proof) nor substantive law (like whether something does or doesn't violate the Eighth Amendment) get in the way of his result.

Patterico also had one strong reaction to the opinion that didn't strike me on my first pass. He's critical of the opinion for being written with an eye to being quoted in the media, basically on grounds that federal judges have no business making their opinions into a bully pulpit for anything. My initial reaction, by contrast, was that Judge Fogel could have made his critique of the California system, thus probably prompting reactive changes by the California prison administrators or legislature, without needing to go so far as holding that his criticisms were constitutional violations.

I suppose that I'm jaded, because on reflection, Patterico's clearly right: Opinions ought to be written to explain rulings to the litigants and to reviewing appellate courts, not as press releases or think-tank-like "white papers." I guess I'd already given up on that idealistic point of view, even if it's an ideal worth fighting to maintain, simply because I've seen so many other federal judges (and not all of them on the liberal political side) whose legal opinions have smacked more of punditry than of law.

And the fundamental problem with this ruling and this opinion is indeed that Judge Fogel has undertaken the roles of pundit, commentator, social worker, and prison administrator. Whether he's good or not in those roles isn't the point. And when he tries to undertake them, he trivializes, and worse, he fails to perform in, his real job — applying and defending the Constitution.

Beldar on Ponnuru on Crowley vs. Crichton

In a short post on The Corner entitled "Crowley vs. Crichton," Ramesh Ponnuru writes:

I'm on Crowley 's side, of course. But I am left wondering whether he is, in fact, an "heir to a pharmaceutical fortune."

I agree with Mr. Ponnuru more often than not, and I've read quite a few of Michael Crichton's books, so I followed the link. Unfortunately, I don't subscribe to The New Republic, and senior editor Michael Crowley's relevant essays there are hidden behind firewalls. (They aren't, however, necessarily hidden from Google's web crawlers — God bless them, the New Republic webmasters' ineptitude, and the Fair Use doctrine. And surely Mr. Crowley wouldn't want to deprive people of their opportunity to make up their own minds about his essays via Google's caches, would he?)

In particular, I've read Mr. Crichton's State of Fear, Mr. Crowley's review of which started this (to be blunt, which both participants have been) pissing match. I thought State of Fear was very, very intriguing — and mostly for its scientific value, rather than as literature. And on the subject of science, it's actually Dr. Crichton. His M.D. degree is from Harvard. His other credentials include service as a Visiting Lecturer in Anthropology at Cambridge University; as a post-doctoral fellow at the Salk Institute for Biological Sciences; and as a Visiting Writer at MIT. I'm unacquainted with Mr. Crowley's scientific training, but certainly none is suggested in his TNR bio.

Mr. Crowley's latest essay does quote a series of obvious shots — fairly characterizable as "below the belt," albeit also so exaggerated as to be obviously satirical — directed at him in Mr. Crichton's newest book, Next. But having now read Mr. Crowley's very nasty and very non-substantive review of State of Fear — a review that also isn't lacking for cheap shots, although they're generally not funny nor intended to be — I can see substantial justification for Mr. Crichton's ire.

Mr. Crowley's main criticism of the book, one to which he returns repeatedly in his review, is that President Bush has read it, and asked Mr. Crichton to visit him at the White House thereafter, which invitation Mr. Crichton failed to refuse. Ipso facto, Mr. Crichton is a Republican shill controlled by puppet strings leading to Karl Rove. Even worse, according to Mr. Crowley, is that Mr. Crichton fails to revere sufficiently either the New York Times, the rest of the mainstream media, or the portions of the scientific community who are hysterical on the subject of global warming. Oh, the horrors! Thou shalt honor thine eggheads!

But Mr. Crowley makes utterly no effort to tangle with any of the sources listed in State of Fear's very extensive, and entirely non-fictional, bibliography. Mr. Crichton's point in State of Fear is that we, collectively, including our scientists, don't and can't possibly (in any reasonably near term) know enough about our planet's weather and its history to be able to draw compelling scientific conclusions about global warming. I'm not going to try to summarize Mr. Crichton's data and arguments here. But they, and he, don't deserve the sort of ridicule and guilt-by-association techniques that Mr. Crowley directed at Mr. Crichton.

Perhaps Mr. Ponnuru's sensibilities are just easily offended. But if that were the case, and if he indeed read Mr. Crowley's book review that prompted Mr. Crichton's jabs, then one would expect Mr. Ponnuru to invoke a pox on both of their houses. If, by contrast, Mr. Ponnuru is "on Crowley's side" with respect to global warming, then I'm stunned, and seriously disappointed in Mr. Ponnuru.

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Update (Sat Dec 16 @ 9:45pm): Thank you, Mr. Ponnuru, for the response and the gracious link!

There are many good comments to this post already, and I encourage others.  Do, please, try to keep them PG-ish, and let's see if we can discuss with civility a pissing-match between literary figures that itself is uncivil (that having been a deliberate choice by Mr. Crichton, I believe for purposes of parody).

Q: At a Tangipahoa Parish school board meeting, what's the difference between a fragmentation grenade and a prayer?

A: The grenade was probably thrown by the United States Court of Appeals for the Fifth Circuit. (Metaphorically speaking, of course.)

I cannot possibly match the indefatigable Howard Bashman for pith and eloquence here (link and boldface in original):

Splintered three-judge Fifth Circuit panel holds that Tangipahoa Parish School Board cannot open its meetings using any of four specified prayers: [Friday's] decision consists of separate opinions from each of the three judges on the panel. At first blush, this case appears to be a likely candidate for rehearing en banc.

And "blush" is certainly the right word. I certainly agree with Howard as to the likelihood that the full Fifth Circuit, sitting "en banc," might review this decision. And it ought to.

*******

This case is an excellent example of how three smart circuit judges, each with smart law clerks and abundant resources for research and writing, are nevertheless thrown into near-total confusion by the mishmash of Supreme Court precedents on the First Amendment's guarantees of religious freedom. There's no possible way that I could summarize the substance of this 65-page three-sided decision, but to give you a hint of how fractured this ruling — and the law — are, here's Judge Rhesa Hawkins Barksdale's first three paragraphs (hyperlinks and bracketed portions mine):

This appeal presents an Establishment Clause issue of first impression in our circuit. The Tangipahoa Parish School Board, its Board members, and the Tangipahoa Parish School System’s superintendent (collectively, the Board) challenge a permanent injunction against the Board’s opening its meetings with prayer. Consistent with the long-standing rule of deciding a constitutional issue on its most narrow basis, the injunctive relief must be narrowed greatly. This disposition is reached through differing opinions by each panel member.

The Board’s having conceded the prayers are unconstitutional under the test employed in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), this opinion assumes, without deciding, that Marsh v. Chambers' legislative/deliberative-body exception applies. 463 U.S. 783 (1983). Under Marsh, the four prayers at issue are unconstitutional; the balance of the injunction is vacated. Applying a Lemon, rather than Marsh, analysis, Judge [Carl E.] Stewart concurs in these four prayers being unconstitutional, but would affirm the injunction. Judge [Edith Brown] Clement would vacate the injunction, opining the prayers at issue fit within Marsh’s ambit of protection.

As a result, the portion of the injunction relating to the four prayers in the parties’ joint stipulations is AFFIRMED; the remainder of the injunction is VACATED. This matter is REMANDED to the district court for entry of an injunction consistent with this opinion. AFFIRMED in PART; VACATED in PART; and REMANDED.

And I'll tell you, friends and neighbors, that if Judge Beldar had been on this panel too, there would have been four different opinions — but mine wouldn't have even tried to harmonize and homogenize and explain and rationalize a handful of Supreme Court decisions that clash like bagpipes, banjos, and bazookas.

Nobody was forced to pray. Nobody was forced to stay in the room while the prayers were said. Nobody was prevented from saying a different prayer. Anyone could have asked the meeting leaders to say (or permit them to say) a nondenominational prayer, or to say a non-Christian prayer, or to have a few moments of chanting or silent meditation (followed by tofu-smoothies or peyote buttons) from time to time. The fact that students could attend a meeting of grown up school board members doesn't make this case even remotely similar to the line of "prayer in the public schools" cases, all of which are premised on the (questionable) theory that by permitting voluntary prayers, schools (as agents of the government) are therefore implicitly compelling all students to join in them. Wherever the border is between the Establishment Clause and the Free Exercise Clause, then, I'd find this case to be squarely in the Free Exercise territory — meaning no First Amendment violation, and that in fact these prayers ought to be constitutionally protected.

Not that I expect the Supremes to agree. Nor do I expect the Fifth Circuit en banc to write it up the way Judge Beldar would, because to do so they'd have to go farther than "harmonizing" Supreme Court precedents. They'd have to start busting some up and throwing out others altogether. And no lower appellate court can do that, and they get their knuckles rapped when they try.

*******

You may recall Judge Clement's name being floated as a potential Supreme Court nominee last year. But other than that, I don't know much about any of these three judges in particular.

Stylistic clues suggest to me that there was some general consensus among at least two of the three judges after the oral argument, and that both Judge Barksdale and Judge Stewart attempted to write an opinion that would draw at least one other judge's concurrence. Judge Clement's opinion, by contrast, seems to have been written from the outset as a a dissent from the outcome, and from all but a small piece of either other judge's rationales.

However, I'll venture a confident guess, from what I know of the typical Fifth Circuit processes, that there was much correspondence, much suggestion of revisions, and many telephone calls that flew back and forth between these three judges' chambers before this decision was announced. Circuit judges in general write way fewer separate opinions than their brethren upstairs at the Supremes, and they genuinely try hard to avoid this kind of chaos where all three judges fly off in different directions. They also know that the poor district judges have to apply what comes down from the courts of appeals on a day-to-day basis — and a three-way split opinion like this one is worse-than-useless guidance for the district courts.

In fact, it would not surprise me a bit if this opinion — or rather, these opinions — were already made the subject of preliminary discussion among some or even all of the other Fifth Circuit judges about the possibility of en banc rehearing, even before the opinions were released. Three judges split this badly might well have already asked for some ideas from outside their own panel, and just as a "heads-up," panel members sometimes pre-circulate opinions in cases that they expect may become controversial.

In the usual situation, when it comes to consideration for en banc review, there are typically at least two judges who are defending an opinion in which both of them have joined — defending it by urging the full court that the case need not be reheard, and that their panel opinion should just be left alone. This is something poorly understood by most of the public and even by many lawyers: Whether just a two-judge majority or all three judges in a unanimous panel decision, those judges become, in effect, the strongest defenders of their work — and those two or three judges (and their staffs) can indeed turn into fierce and very capable advocates amongst their peers, more often than not becoming considerably more effective than the lawyers for the actual litigants! They're not doing anything even remotely unethical, because they're not advocating for one side or the other in the case. Rather, they're advocating particular legal arguments. But to the outside world, and especially to the losing litigants, that might seem a distinction without a difference.

Sometimes, because of that advocacy, coalitions among the judges on the merits begin to coalesce before a vote is taken on whether to rehear the case en banc. But quite often, even when they've been persuaded that a panel decision needs a closer look by the full court, or when they've instead voted against rehearing (but been outvoted), many judges are, quite appropriately, reluctant to begin committing to a position on the merits before the rehearing briefing and argument. Nevertheless, you still see that advocacy making a difference in the conferences after en banc oral arguments, and as proposed majority and dissenting opinions begin circulating afterwards.

Here, though, the three-way split among the panel's judges is likely to dilute the effectiveness of anyone's advocacy for any particular result on the merits, while simultaneously making some sort of en banc rehearing more likely. And it means that there's probably no "favorite" going into en banc proceedings, no position that already has substantial momentum.

*******

The chances for eventual Supreme Court review aren't nearly as good, though, to the extent that can be predicted at this point. For one thing, the en banc Fifth Circuit would keep trying to find some way to fry the dog's breakfast of Supreme Court precedents back into something that resembles an edible hash. What the en banc court produces might not be pretty, but it might not be sufficiently ugly that the Supreme Court would want to mess with it. Beyond that, though, Supreme Court Justices sometimes refuse to grant certiorari in cases in which they predict they're going to splinter badly themselves; you may not be able to get the necessary four votes to grant cert, in other words, unless at least four Justices think they'll probably be able to get five justices to at least mostly agree with each other.

And quite frankly, I'm concerned that if the Supreme did agree to hear this case, they'd end up making the Fifth Circuit panel's three-sided opinion look good in comparison. It wouldn't surprise me if the Supremes came up with seven or eight different opinions.

Lethal injections and the twitching, hyperactive Eighth Amendment

Saturday's WaPo reports that lethal injections as a capital punishment method are "on hold" in two states — California and Florida. It's a fact-filled article with a somewhat misleading lede:

Executions by lethal injection were suspended in Florida and ordered revamped in California on Friday, as the chemical method once billed as a more humane way of killing the condemned came under mounting scrutiny over the pain it may cause.

As the rest of the article reveals, that's a fair description of what's been going on in California, but not in Florida.

The concern in Florida arises from the botched placement of the IV line through which the lethal drugs were to be injected in a single execution: Instead of going into a vein as intended (whence they would have rapidly circulated throughout his body), the needle through which the chemical mix was pumped went into "the tissues of his arm" (presumably muscle tissues), which in turn required a second injection to induce the subject's death. This happens with unfortunate frequency at hospitals, clinics, and blood banks — it's just "a bad stick," and it reflects either (a) a bad technician, or (b) an unlucky attempt by a good technician, or (c) unusually difficult to locate and pierce veins, or (d) a very dull needle. (And a good one would have promptly realized that he missed the vein.) So there may be reason for Florida to examine whether it needs more capable people performing the lethal injection. But as Gov. Jeb Bush's quoted comments make reasonably clear, I don't think Florida is considering abandoning lethal injection, much less the death penalty generally.

The California situation, by contrast, is much more interesting because it's a direct challenge to the intended technique by which lethal injections are carried out in more than 30 states, including Texas. I haven't read the latest opinion from the San Jose-based federal judge in California that's based on the evidentiary hearings he's conducted [update: I've done so now, see below], but here's the WaPo description:

In the California case, attorneys for condemned murderer Michael A. Morales had argued that because inmates are paralyzed by the drugs, witnesses cannot be sure the convicts are unconscious when they are executed — meaning they may be in terrible pain. The court agreed in February and ordered corrections officials to either stop using the two drugs or provide doctors to ensure Morales was unconscious.

Two anesthesiologists agreed to observe, and Morales's execution was underway when, in a last-minute decision, the doctors backed out after an appeals court ruled they would have to step in if anything went wrong.

Since then, U.S. District Judge Jeremy D.] Fogel has held extensive hearings on how executions are conducted.

He ultimately found that executioners were not properly trained and made mistakes in administering the drugs and that California's execution chamber is poorly suited to its purpose.

The state's "implementation of lethal injection is broken, but it can be fixed," Fogel wrote.

The Houston Chronicle adds to the WaPo story with this bit of local information:

The announcements out of Florida and California bear no weight in Texas, according to Robert Black, spokesman for Gov. Rick Perry.

"Perry has no plans to announce a moratorium on the death penalty and executions," Black said Friday. "He believes it is administered fairly, justly and in accordance with the law."

Texas by far leads the nation in the number of executions carried out since the death penalty was reinstated in 1977. This year, 24 Texas inmates have been put to death.

*******

In trying to figure out what this all means, it's very important to distinguish between the various issues being raised.

It appears, for example, that in both California and Florida, there are concerns as to how capable the executioners are. That's an issue that's been a subject of more than passing interest for centuries — the best headsmen being prized for their ability to behead with a single blow, the scarcity of such headsmen leading to Dr. Guillotine's invention, and so forth. In crude terms I've lifted from products liability law, this could be likened to a "manufacturing defect" — and I suppose death penalty opponents who liken Texas in particular to a "death factory" might find that apt.

There's a separate question in California and elsewhere, however, as to whether the design of the procedure — even if performed skillfully and exactly as intended — is appropriate. That might be likened to the products liability concept of a "design defect."

(In products liability law, the engineers' placement and materials specifications for the Ford Pinto gas tank might be an example of a design defect. If, however, someone at the Ford plant forgot to fasten more than one of the four bolts intended to secure the gas tank as originally designed, causing the gas tank to detach and blow up after the car was driven 1300 miles, then that would be a manufacturing defect, one that typically would not affect all or even most Pinto buyers but only the unlucky buyer of that particular car. But if gas tanks need to be secured by twelve bolts and four is not enough to make gas tanks sufficiently safe for their intended use ("sufficiently" being a flexible standard that takes into account utility, cost, risks, etc.), then the lack of twelve bolts on the plans would be a design defect. Is it the guy with the drafting table and blueprints, or the guy with the power wrench that caused the problem? Catch on?)

For reasons of social policy, there are perfectly good reasons why responsible citizens should want to see these issues addressed. We ought to have capable, professional executioners. We ought to have procedures that — consistent with the reasons why lethal injection was adopted in the first place — are well-calculated to uniformly cause death without torture (i.e., the deliberate infliction of pain before death).

The California case in particular also raises questions of professional ethics. It's inappropriate to trivialize, for example, the concerns that a physician may have about administering lethal injections — and that, for at least some physicians and medical ethicists, is an issue not merely with capital punishment but with "assisted suicides" (a/k/a euthanasia). But there's no reason in principle why a system cannot be designed in which physicians', pharmacists', and or other scientists' input has been gathered and considered, but yet the actual performance of the execution is done by well-trained personnel who are not subject to those professions' ethical restraints.

All those questions are distinct, however, from the constitutional issue of whether lethal injection in particular, or the death penalty generally, constitutes "cruel and unusual punishment" across the board. You would have a very hard time persuading me, for example, that the California judge's concerns about the "suitability" of California's execution chambers could rise to a constitutional level unless they're akin to an Iron Maiden; that they may be cheerless and without lovely wallpaper, that the table may not be well-padded, or so forth ought not be of any constitutional significance whatsoever. The WaPo story has this quote:

"This demonstrates that there is no happy and kind and nice way to execute someone," said David Elliot, a spokesman for the National Coalition to Abolish the Death Penalty. "Execution is a messy business."

There's a guy who's never heard of a morphine or heroin overdose, I guess. But it's also a guy who's badly confused on the basic issues, because capital punishment isn't meant to be "happy and kind and nice." Capital murderers have uniformly not been "happy and kind and nice."

Unfortunately, recent Supreme Court precedents on what constitutes "evolving standards of decency" — the Court's touchstone for deciding what constitutes violations of the Eighth Amendment's prohibition against "cruel and unusual punishments" — are themselves cruel jokes. "Evolution" is not an appropriate term for a mushy standard that's flipped back and forth in a matter of a few years rather than over decades — as did the "constitutionality" of executing 17-year olds between Stanford v. Kentucky in 1989 and Roper v. Simmons in 2005. Even if you're an Al Gore-like proponent of a "living and breathing Constitution," you ought not be arguing that the Constitution is twitching and hyperactive.

I'd read the Eighth Amendment to permit any execution technique that isn't designed to cause, or administered so poorly as to in fact routinely cause, a temporally significant\note1/ amount of torture before death. Lethal injection, hanging, firing squads, the guillotine, the electric chair — properly designed and professionally applied, each of those methods produces instant death. (I'm less persuaded about the gas chamber, from what I know of it.)

Thus, I have no problem with commissions studying ways to handle the "design" and "manufacturing defect" problems, and ditto for the ethical problems.

But it's clear to me that whatever any commission or study concludes, the solution to the constitutional question begins at the White House, with its next stop being the floor of the United States Senate.

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Update (Sat Dec 16 @ 7:00 am): My friend Patterico has read the California opinion, and offers a brief preliminary comment that he's "not impressed." He promises a more in-depth treatment soon, and I'm keenly interested to see his take.

I've skimmed the opinion, and my initial impression is that the rulings it makes and the relief it orders aren't very consistent with the supposedly settled law it relies upon.

I've certainly seen lots, lots worse as far as wild and unrestrained judicial activism goes. And on close reading, it's clear that Judge Fogel's concern is, for the most part, with whether the actual set-up as typically used in California executions will reliably and verifiably ensure that subjects are indeed rendered unconscious before the lethal (and potentially very painful) chemicals are administered. In other words, using the terminology I offered above, he's looking at what he perceives to be design defects that would apply to all executions, and not mainly at manufacturing defects (deviations from what the system's designers intended).

But in a couple of instances, he seems to be trying to phrase manufacturing defects in terms that will make them into design defects — as, for example, when he criticizes the "screening of execution team members" on grounds that seem to me to be mostly particular to specific individuals, without any showing of even a theoretical or likely connection between those grounds and an actual failure of the system to work as intended.

Judge Fogel quite correctly says early in his opinion (citations omitted) that "binding precedent holds that the Eighth Amendment prohibits only 'the unnecessary and wanton infliction of pain,' and procedures that create an 'unnecessary risk' that such pain will be inflicted." But then he proceeds to make himself a micro-manager of the California prison system's procedures by interpreting "unnecessary risk" to the broadest extent imaginable.

I don't think, for example, that the Eighth Amendment requires the State of California to use graph paper instead of plain paper for their electrocardiogram (EKG) tracings — even if one can hypothesize that graph paper would be somewhat more helpful in trying to decide, after the fact, from a  particular subject's heart rate that he was or wasn't thoroughly anesthetized. If I were a California warden, or even a California legislator, might I think graph paper ought to be specified? Sure. But does the Eighth Amendment constitutionality of an entire execution system really turn on the difference between graph paper and plain paper in the machine that goes beep?

Or is the lighting in the death chamber really a matter that rises to constitutional import? 60 watt bulb — unconstitutional; 100 watt bulb — constitutional? Is that what the drafters of the Eighth Amendment intended? Or is that even what "evolving standards of decency" require? Surely even a living, breathing Constitution would sneeze at that question!

Bottom line: I'm not outraged — California can indeed probably address all of the picky points that Judge Fogel has raised, and Judge Fogel certainly didn't try to declare lethal injections, even with the current chemical mixtures intended to be used, as being always unconstitutional. And I'm sure he's a smart guy, and he certainly does appear to have worked hard to gather information — including by holding hearings at San Quentin. If his opinion were merely a report of recommendations to the California prison system, or if he was a person within that system responsible for reviewing its policies, procedures, and facilities, it would be fine. But as an example of proper application of constitutional principles to the big-picture subjects to which they ought to be applied, I'm not impressed with this opinion either.

And Judge Fogel probably could have achieved the exact same effect — that is, causing a series of small changes in the California system that collectively would probably improve it — by writing an opinion that simply cataloged the perceived deficiencies, thus high-lighting them for the press and for likely legislative or administrative correction. He didn't need to cloak each of the individual nit-picks with constitutional significance. And he certainly ought not have.

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\note1/  "Temporally significant" perhaps ought to be defined for this purpose as "the longest amount of time the killer spent in killing any of his victims." But I'd settle for a bright-line (if admittedly arbitrary) standard as short as 10 seconds, so long as it didn't change every time the Constitution (or Justice Kennedy) breathes.

I don't worry about the missiles

The discussion of the current risks of nuclear attack on the United States in this essay (hat-tip InstaPundit), written by the "former Editor in Chief of the Encyclopædia Britannica," is interesting — but not so much for its content as for what it ignores.

The essay has a snappy title — "How Likely Does It Have to Be?" — and it has a nice opening riff on "the post-Korea, pre-Cuban Missile Crisis days" when one could "dream up a [nuclear attack] dream that wasn't entirely a nightmare." But except for one brief reference to "non-state actor[s], i.e., terrorists," the author then goes on to discuss our risks from nuclear attack by nation-states — which of those nation-states are most risky and which of them have delivery systems (by which he only seems to mean missiles) that could hit the United States.

I don't mean to suggest that we're at zero risk of an open nuclear attack by a nation-state — although I think it's a whole lot more likely that North Korea would hit Tokyo, or Iran hit Tel Aviv, or Pakistan hit Delhi, than that any of those would lob a nuclear-tipped missile at the U.S. And the risks of the U.S. being attacked by Russia or China are vastly smaller, and the risks of our being attacked by Israel, India, Britain, or even France are negligible.

Moreover, with respect to any open attack by any nation-state, the risk is still greatly affected — reduced — by our retaliatory capacity. Our ability to turn another country's populated areas into a "green-glass parking lot" is mostly something that's referred to jokingly (albeit with black humor) or mockingly now. But yeah, we can still do that, in a matter of hours, to any country anywhere in the world. No country is remotely capable of even minimally interfering with our capacity to do that. And having now invaded two countries in response to 3000 American deaths on 9/11, any nation-state would be extremely fool-hardy to assume that we wouldn't respond to a nuclear attack on American soil with anything less than nuclear retaliation — if not necessarily to wipe out population centers, then certainly in a way to instantly, absolutely, positively decapitate the attacking country's entire leadership and government structure, along with its entire war-making and even defensive capacities (because we'd soon be patrolling the fringes of that green-glass parking lot with Marines in radiation suits, I expect).

I grew up in the "duck and cover" days, and I can actually (if barely) remember the Cuban Missile Crisis, but I just don't lose sleep any more about the risks of nuclear attacks via missiles from other nation-states.

As someone who lives (and has four kids who also live) in the fourth-most-populous city and third-most-populous county in the U.S., however, within a half-dozen miles from the world's largest petrochemical manufacturing area, the top American port for international commerce (second-largest overall nationally, 10th largest in the world), and the third-highest concentration of Fortune-500 headquarters in the world — I do worry about nukes in cargo containers routed through, say, Malaysia or Argentina or just about damn-near anywhere. I worry about trucks driving up from Juarez. And I worry about a frustrated Kim Jong-Il, who may or may not be able to get his atomic bombs to light off properly, and who may or may not be years away from having a missile that could hit Seattle, but who can certainly manage to hand off several kilograms of dirty-bomb material to non-state terrorists. And those terrorists already have plenty of plastic explosives to spray particles of plutonium over Houston or New York or San Francisco or Chicago or anywhere else. In fact, I worry about these things enough to make them the overriding factor in my voting in national elections.

With due respect to this author (who writes well and I'm sure must be an intelligent, serious person), anyone who doesn't worry more about that sort of nuclear attack on the U.S. needs to get serious about dusting the cobwebs off of his encyclopedias and his noggin.

Inside the robes

Every lawyer who has ever stood before a judge, in any capacity, has thought to him- or herself: "I could do that." Every single one.

To which the appropriate response is: "Yeah, but ...."

Three long war-stories follow, with associated musings.

*******

I've had quite a few nice desks and desk chairs in my career. But I've never had one with flags in back. I once had a corner office in a downtown Houston skyscraper, but I've never had a 20-foot-tall, 60-foot-wide expanse of white marble behind me while I sat on a dais in a cathedral built to the rule of law. I once had the extraordinary, thrilling privilege of being a trusted law clerk for someone whose signature could speak for a federal court of appeals, only a step below the U.S. Supreme Court, and whose writ ran from the far tip of Florida to El Paso, Texas — but my own signature has never been more than that of an advocate for a litigant. In my younger days, when I cut a much trimmer figure, I had a couple or three well-cut, well-made suit-and-tie ensembles. But no power tie I've ever worn implied a fraction of the power of a simple black robe woven from a cotton-polyester mix.

Let's suppose you're a new judge. You've raised your hand, you've sworn a simple oath. Before that, the voters of your county, or perhaps the senators of your state or of the United States, have thrust a thumb up or down while your name was the subject of deliberation. But in only a very few instances has that deliberation been truly deliberate, for to tell the simple truth, most judicial candidates or nominees are rubber-stamped once they've jumped the hurdles to get to the point of electoral or legislative confirmation.

"I could do that," think the lawyers appearing before them, "I could be rubber-stamped. Then I could just swear that oath — easy-peasy! And then when I crooked my finger, a sheriff's deputy with a pistol on his hip would put the cuffs on that lawyer or this litigant, and then (clank-clank!) take them right to jail.  Show me no contempt, baby! I'll teach you! ...."

Except it almost never, ever works that way. Oh, the deputy would indeed obey that instruction. But the brutal, cold fact of the matter is that except in the most exceptional of circumstances, you won't give that instruction. Because suddenly those flags behind your chair, that dais, the expanse of white marble or plain burled Texas oak, the gavel, the cotton-polyester robe — holy cow, how those things all can choke!

The pomp, the circumstance, the "Your Honors" and "May it please the Courts" — my gosh, even the fact that people capitalize the title of the office you hold! — all that settles around you, with decades and centuries of accrued, accreted, embedded responsibility.

What a serious, lonely business it is — being a judge.

*******

First war story:

I mentioned in a recent post how infrequently — meaning never — I've actually seen or heard a trial judge bang his or her gavel. The gavel, like the robes and the dais and the bailiff and the flags, all remain powerful and important and essential symbols of authority. The power they symbolize is indeed real, but the obvious displays of it are mostly left latent.

But some months ago, in chambers, during some slow moments in the fine grind of justice, I caught a local judge in a reflective mood. He started musing over how it had felt to him on one of those very, very rare occasions when he'd had to use a fraction of that latent, vast power — when he'd found his patience exhausted, his stamina stretched near to breaking, and the dignity of his office (not him, but his office) insulted beyond the bearable.

This judge has had his seat for a dozen years. Because of the nature of the court over which he presides, he sees the great unwashed masses, the busiest and often least-capable lawyers, and the constant press of high-volume, form-pleaded, and mass-produced justice every day of the week, fifty or so weeks out of every year. He's a patient man, and he normally runs his courtroom with the wit and flair of a confident circus ring-master. But this day, in chambers, with his guard down, he was musing — one professional to another, albeit only one of us had a black robe hanging from the hook leading to the courtroom — about an occasion a few weeks earlier that had marked the very first time in his judicial career he'd held someone in contempt of court. It gradually dawned on me that this judge was thinking aloud, second-guessing himself in my presence, as he tried to figure out how he might have handled things differently. I know that judges talk to each other about such things, but to be taken into his confidence, to be asked for my own opinion on that topic, was as high a complement as I've ever been paid. And as it turned out, after hearing the whole story, I had nothing constructive to tell him — except that I'd probably have laid some serious smack down a lot sooner than he had.

The universally true — yet still stunning — fact is that as a general rule, judges have more respect and respectful awe for their authority than anyone else has! For everyone else almost all of the time, it's theoretical authority. For them, though, they wear it with the robes, and it's as ever-present as the flags behind their chairs.

*******

"Ah," you say, "but power corrupts, and absolute power corrupts absolutely!" It wouldn't take you long, I'm sure, to find instances described in the pages of BeldarBlog in which judges and justices have been drunk on their own power, out of touch with reality, and profoundly unwise. And you'll readily find, among my pages and posts of judicial critiques, many more instances in which I think particular judges or panels of judges have simply gotten things badly wrong, despite the best of intentions.

Which is to say: They're human, inside the robes. They're imperfect, and most of them are acutely, intensely aware of that fact. Most of them spend a lot more time worrying about it, and trying to correct their imperfections, than most folks would ever imagine. And even the most high and mighty of them is still capable of being human.

*******

Second war story:

Twenty-five odd years ago, during my first year of practice when I was about 23 years old, I was waiting in the ante-room outside the office of the local federal judge who was reputed to be most habitually drunk on his own power and pomp, who looked like a central-casting example of the imperious judiciary, and who was known far and wide for flaying ill-prepared lawyers in open court. This was a routine pre-trial conference on routine scheduling matters in a routine case. But His Honor's secretary stood up from behind her own imposing desk, and came around to whisper in my ear, "Judge ___ wants to speak with you before he sees everyone else."

Say what?

She led me into the sanctum sanctorum, the judge's private office, where he sat in all his leonine glory. Consistent with his reputation, this judge wore his robes even in chambers, and I was pretty sure he had his suit-coat on underneath.

"Mr. Dyer," said this judge, "the clerk of my court has brought to my attention the fact that you've apparently neglected to return to him the signed and notarized oath form confirming your willingness to submit to the rules and requirements of the Bar of the Southern District of Texas. That being true, even though you've submitted the application and paid the fee and been approved by the Court and taken the verbal oath and gone through the installation ceremony, you're not, technically, authorized to appear before me here today on behalf of your client."

Oh ... my ... sweet ... Lord, I'm thinking during the space of the next three heartbeats, having left my poor client without counsel, I'm about to be thrown out of the courthouse into the street, whence word will rapidly spread to my law firm, whose partners will have someone new to sit in my office by noon tomorrow, undoubtedly someone who's not such a complete fool as I've been —

"You'll tend to that before today is done, won't you?" asked the judge. I gulped and nodded, too stricken to speak aloud.

And I suddenly I had this epiphany, this rush of realization: This sixty-something-year-old man, cloaked in the robes of a United States District Judge, almost glowing in all of the authority and power inherent in and implied by that title, a man who probably wore a necktie to dinner, a man whose grandchildren probably believed he sat at the right hand of God with lightning bolts clutched casually in his own right hand — this judge could still remember what it was like to have been a twenty-three year old lawyer who'd made a stupid personal blunder of no substantive consequence, but one that could be very, very embarrassing if not pardoned by an act of undeserved judicial grace.

He pressed the buzzer on his desk: "Send in the others," he commanded. In trooped a half-dozen other lawyers, each of whom was wondering what the hell the judge had wanted to talk to me about privately before he brought them all in. I could see the question in their eyes, their arched eyebrows, their puzzled glances as they arrayed themselves in the chairs around the judge's massive desk.

Oh, nothing important, I answered them in my head, He was just being a really decent, kind human being, cutting me a little slack that couldn't conceivably hurt you and your clients. Just about every stroke of his pen quite literally determined the fates of people and companies, the rich and the poor, the humble and the mighty — but he'd taken a moment out of his day to enforce the rules to which he was devoted in a kindly, compassionate, and private fashion for the benefit of a young lawyer entirely unknown to him except as an anonymous, fledgling brother at the bar.

I could have kissed him. But that would indeed have resulted in me being thrown in jail.

*******

Third war story:

One of the worst judges I've ever appeared before was one of the nicest people I've ever met.

It's part of the nature of a judge's job that he or she has to rule against someone in the course of ruling for someone else. More precisely, they're ruling against someone's position, someone's argument, someone's claim or defense. I've never seen a judge point a finger at a litigant or his/her lawyer and say, "Hey, buddy, you're a loser, get outta my court!" (I certainly have seen litigants and lawyers who deserved that, however.) But in any event, like the "honest umpire" of which Chief Justice John Roberts spoke during his confirmation hearings, judges are obliged by their job descriptions to call balls and strikes and, sometimes, call someone out and someone else safe at the plate.

But it's entirely possible to be a smart, hard-working, dedicated professional, and a compassionate, wise human being — and yet to lack, or find it hard to summon, the ability to tell people: "Tough luck, I've decided that you lose."

So it was that in the late fall of 1987, I was a Baker Botts senior associate sitting second-chair in a state-court securities fraud jury trial that had already run for six full weeks. The first-chair partner — a superb trial lawyer named Joe Cheavens — and I were very well prepared for the trial, and we had been  eager to see it move briskly. Our opposing counsel, by contrast, was very smart and exceedingly clever, but he and his team were not very well prepared when the trial started. With each passing week of trial, however, as our opponent fumbled around putting on his case, our amiable and indecisive judge gave him the time to figure out what his case ought to be, so that his lack of preparation was becoming less and less of a liability. And although she was certainly trying to be fair, the judge had already reversed herself on several key rulings, and then had reversed herself at least once and sometimes twice again on some of them. Our team was beginning to show serious bruises around the head and shoulders, and the trend was decidedly unfavorable.

Our corporate client's intentions and motivations in complicated past transactions were under scrutiny, so among the key witnesses at trial were the deal lawyers who had advised our client in those transactions. One such witness, fearing (with good reason) the possibility that his and his firm's actions might become the subject of later malpractice claims, brought along one of his partners — a "Litigator," a young woman probably five or so years senior to me — to sit in the audience to keep watch. And Joe Cheavens was indeed doing his considerable and very best to show that Mr. Deal-Lawyer had been conflicted, incompetent, or worse in his work for his former (and our current) client.

During a break in Mr. Deal-Lawyer's testimony, I looked out one of the tiny rectangular windows in the doors leading from the courtroom to the outer hallway, where I spied the "Litigator" sitting on a hallway bench. I noticed that she was engaged in earnest conversation — with two of our jurors.

Quick! Find the bailiff! Quick! Have the bailiff find the judge! Quick! Ask the judge to direct the bailiff to snag the "Litigator" away from those jurors and into the judge's chambers. Grab the court reporter, then grab opposing counsel, for a frantic huddle. "What on earth were you talking about with those jurors just now?" demanded the judge.

"Well," said the "Litigator," "the jurors all knew from the introductions Your Honor made that I was a litigation partner at Mr. [Deal-Lawyer]'s firm. And so one juror was just listening, but this other juror approached me with a legal problem he had. See, he's an officer in his Knights of Columbus chapter, and they'd contracted for a dance band to play at one of their functions, but then the band didn't show up. So he was asking me about the various elements of breach of contract, and fraud in the inducement, and measures of damages —"

"You're aware that those are all legal principles," interrupted the judge, "on which I'll be charging this jury in this case?"

"I ... I suppose so, but —"

"And in the midst of Mr. Cheavens' cross-examination intended to destroy the credibility of your partner Mr. Deal-Lawyer, you've seen fit to offer legal advice to two of our jurors on those very issues?" asked the judge.

"Well, then, I ... I guess I really shouldn't have done that." She sniffed. "And I guess that I really shouldn't have told that juror that because I'm a good Catholic like him, my firm and I would take on his Knights of Columbus chapter's case against the dance band as a pro bono matter, should I?" finished the "Litigator" (lamely).

Duh.

The mistrial motion, and the ruling granting it, were foregone conclusions. Of all the trial judges I've seen in my career, this judge had the worst judicial temperament — which is to say, the greatest reluctance to rule, and to declare one side or the other a winner and the other a loser — of any judge that I'd seen before or that I've seen since. But pushed by these extraordinary circumstances into making a definitive ruling, this good-hearted, intelligent, well-meaning, and unfortunately un-judicial woman nevertheless gathered her resolve and did that which her duty required.

She didn't grant the mistrial because she was afraid of being reversed by the appellate courts if she didn't. (Although she would have been.) She granted the motion because it was the right thing to do, even if it was an extremely difficult ruling to make. The weight of her robes — the weight of authority implied by those robes, the accumulated force of the system revering the rule of law of which she was an intrinsic part — compelled her to reach that result. "You've got to start over," she told the plaintiff's counsel — much against her personal preference, which was to avoid controversy and to avoid resolving controversies.

"But — but — but —" sputtered our opponent, who certainly knew how the trial had been trending, "it wasn't my fault!"

"That's true," said Her Honor.

"And that will mean six weeks of work, all that time, all those legal fees and expenses on both sides — all wasted!"

"That's true too," said Her Honor, "And I hate to say it, but: That's tough."

*******

What an incredible tightrope we ask our trial judges to walk! "Be firm," we insist, "but be unfailingly polite. And," we add, "give everyone a full, fair chance to be heard. But don't waste time." Uh-huh. "Show super-human dispassion," we insist, "but don't lose your humanity. Got all that?"

Thousands of men and women — folks who regularly step into their boxers or their knickers one leg at a time, who had to throw away a burnt piece of toast this morning because the toaster malfunctioned, whose kids broke their next-door-neighbors' window yesterday, and whose necks are developing skin rashes from those damned cotton-polyester robes — answered that call today. They will again tomorrow. And they will again the day after.

Oh, sure: Any ol' lawyer could do that.

But most of us — don't.

Gasped from Mass: "Et tu, Teddy?"

"I have no plans of supporting anyone else at this juncture. I'm also not going to just wait indefinitely until he's made a judgment or a decision."

Thus, as quoted in the Boston Globe (hat-tip K-Lo), did the senior Senator from Massachusetts land a torpedo below the waterline of the junior Senator from Massachusetts' swift boat. According to the Globe, "Kennedy said he has informed Kerry that he may get behind another Democrat for president," but of course, Teddy also reserves the right to vote for the latter-day JFK, even if he's now voting against him:

Later in the day, Kennedy's office issued a statement clarifying that Kennedy will support Kerry if he declares his presidential candidacy "in the near term," though Kennedy aides declined to define that schedule.

Such comments from aides sound a lot like lesser Roman senators offering Julius Caesar their soiled hankies as he bleeds out on the stone floor, don't they? Meanwhile, back to Brutus' remarks while the dagger was still fresh in hand (bracketed portion by the Globe, ellipsis mine):

Kennedy's praise for Obama and Clinton adds to the growing perception that the two are distinct front-runners for the Democrats' 2008 presidential nomination, with Kerry trailing along with a cluster of lesser-known governors and senators. If Kerry runs again, he'd have to break through a crowded field of emerging contenders, Kennedy said.

"You'd have to say that there's a number of people who are out there — Barack and Hillary, if Barack runs and Hillary runs — they're obviously very formidable figures," said Kennedy....

"They're obviously having a good deal of appeal, because I think that's what people want to hear about," he added. "They are ringing the bells, because they're talking about what people were, I think, concerned about during the course of the [congressional] election."

But surely, Senator Kennedy — consistent with the spin your aides are going to try to put on your comments later today — you'll be urging Sen. Kerry to jump into the race right away, won't you?

Quoth the Leviathan on that topic:

Kennedy acknowledged that Kerry has more flexibility to decide than some of the other candidates, because he has wide name recognition and a campaign war chest of $13 million. But Kennedy, a presidential contender himself in 1980, demurred when asked his advice for Kerry.

"I've known John long enough and been with him enough and he's a good enough friend — this is going to be something he's going to, you know, make up his own mind about," he said.

"A good enough friend." R.I.P., Kerry '08 Campaign — for there (if I may be allowed to switch my character allusions and revise their dialog just a bit) is your political epitaph, from one who came not to praise, but clearly to bury you.

Tom DeLay's blogroll

I think I'll eventually be able to overcome my disappointment at not being on Tom DeLay's blogroll (hat-tip OTB). Let's see: I learned he had a blogroll at 5:01 pm today. And I now (5:04 pm) seem to be over it. Yup.

As a believer in the two-party system, I've always been appreciative of Mr. DeLay's mostly behind-the-scenes effectiveness in enforcing party discipline. I thought his involvement in the Texas redistricting battles was an example of brutal but long-precedented hardball politics — and ultimately something that was driven by small-d democracy. (Red-state Texas was not going to retain a majority of Democratic Congressmen for much longer whether Tom DeLay had been involved or not.) I don't think he's been a productive public face for the Republican Party, though, nor an appropriately parsimonious steward of the public piggy-bank. We'll see how he turns out as a blogger.

I'm wondering if one or another of his less renowned co-bloggers actually compiled that blogroll, though. Somehow I have a fairly hard time picturing former Congressman DeLay actually reading Frank J at IMAO on a regular basis.

On the other hand — that could explain a lot.

Questions not to be read while imbibing fizzy drinks

Let's hope John Fund's readers aren't mid-swallow when they read the title of his essay in today's OpinionJournal: "Pelosi's Promise: Will the next speaker live up to her word and clean House?" The droll Mr. Fund had an answer already in mind when he, or someone, wrote that title, but read the whole thing.

I'm one of the five

Over on The Corner, John Derbyshire writes that

[i]f anyone deserves th[e] title [of "uberwonk"], it is surely NR's publisher Jack Fowler. At an editorial meeting this morning we were discussing the House of Representatives. The issue of cloture came up. Jack, briskly: "The House doesn't have a cloture rule."

I don't know about you, but I found this sensationally impressive. I mean, how many people — people not employed on Capitol Hill — know that? Five?

I don't doubt that Mr. Fowler and Mr. Derbyshire are both extremely knowledgeable, but the reason that the House of Representatives doesn't need a cloture rule is because it doesn't have rules that otherwise permit unlimited debate. Mr. Fowler probably was able to be particularly "brisk" on this topic because he knows that House leaders have long been able to make their members siddown and shaddup, but that that's not so in the Senate. Indeed, that's one of the fundamental historical differences between the two chambers, and a very large part of the reason why minorities in the Senate have been able to block legislation when comparable minorities in the House haven't.

I'm pretty sure that considerably more than five of my readers knew that, wonks or not.

Verdana and Georgia

If the print you're reading here seems a bit larger and/or otherwise easier to read than in the past, that's because I've changed my stylesheet to use Georgia instead of Times New Roman as the default serif typeface (for most long passages of text), and Verdana instead of Arial as the default sans-serif typeface (for titles and for most of the sidebar entries).

If you positively hate it, comments are open. But to my own increasingly far-sighted eyes, these typefaces (which are specifically designed for display on computer screens) seem a bit more friendly.

If the mantle of imperialism is thrust upon us

I've not written anything recently about Iraq. I've read a fair amount of commentary about the just-released report of the so-called "Iraq Study Group," but I want to actually read the report myself before commenting directly on it — and even then, I may well conclude that I don't have anything particularly profound to add to the zillion or so words either panning or praising the report that are already bouncing around the blogosphere.

But of all the current commentary I've read so far, I was most struck — which is to say, surprised by, impressed with, and left wondering about — Bing West's essay last week in The Atlantic Online entitled "Blind to Choice." (Hat-tip to Mickey Kaus.)

Mr. West was a Marine infantry officer in Vietnam and an Assistant Secretary of Defense in the Reagan administration, and you may have seen him as a "former-military talking-head" on Fox or PBS. I always take such figures' commentary with a grain of salt: Ex- and even current-military pundits may or may not know whereof they speak, and they may indeed have agendas (cough-cough) that don't precisely dovetail with those held by the occupants of the actual "boots on the ground" in Iraq or elsewhere. But I pay attention to Mr. West when I see him on TV, and I very much enjoyed his and Maj. Gen. Ray L. Smith's book The March Up: Taking Baghdad with the United States Marines as a "view from inside an M1A1"-version of the toppling of Saddam's regime. And Mr. West has a Marine's tendency to get to his point briskly — which he certainly does in last week's essay, and perhaps with a subtlety that Marine officers aren't often credited as having.

Mr. West begins the essay with some observations about how a few particular suggestions of the ISG's report are playing among the various military sources whose pulse he takes regularly — among them the suggestion that more American soldiers and Marines be embedded as advisers among Iraqi troops as part of the Iraqis' training. But then he makes a point that I hadn't ever considered (italics and bracketed portions mine):

... General John P. Abizaid, who has commanded the Central Command throughout the insurgency, has assured the Congress that Prime Minister Maliki will move against the Shiite militias by February, and will emerge as a real leader, backing his army. Currently, the [Iraqi] army has more allegiance to their [American] advisers than to their government. The advisers are the ones who drive to Baghdad and wrest pay and food provisions from recalcitrant government ministries.

So where are we headed? Down two tracks: the one is the development under American advisers of the Iraqi security forces; the other is the emergence of a responsible Iraqi government. It may be that Abizaid is correct that Maliki is on the verge of a character-altering epiphany. But if Maliki is incapable of moving against the militias or offering reasonable terms for reconciliation, President Bush will face the choice of sticking with a failed democracy the U.S. created, or tolerating a behind-the-scenes power play by a fed-up Iraqi military.

....

We must be prepared to let Maliki fail and not fail with him. We are training Iraqi troops to be the cement holding Iraq together in place of Americans. We should not be blind to the choice that opens.

That is scary stuff to contemplate. Our enemies already ridicule Iraq's fledgling government as being a creature of American making. Without "purple-finger legitimacy," a successor government led by colonels is certainly going to be even more vulnerable to that charge — and that's true whether we've merely stood by passively and allowed a coup to happen, or encouraged it softly, or facilitated it actively. Mr. West seems only to be urging us to start thinking about what our reaction should be if the Iraqi military were to mount a coup on its own. But then there's that final sentence: Is the real choice whether to support or not support the government-by-coup once it takes over? Or is the real choice just how passive we ought to be beforehand?

What we do or don't do now is obviously likely to have current consequences, but also consequences across decades. From everything I read or watch, in next-door Iran, the "revolutionary government" continues to be able to play on deep popular resentment of the 1953 CIA-planned and -facilitated takeover that put Mohammad Reza Pahlavi on the Peacock Throne as Shah more than a half-century ago. Similarly, no matter what good we did in South Vietnam over the following dozen years, the 1963 Diem coup gave the Communists there a propaganda weapon of enormous value. "Imperialism," "economic hegemony," "manipulation of American puppet/proxy states" — we've heard those themes  from our critics, both internal and external, about virtually every foreign policy action or inaction of the United States government since the American Revolution.

Of course, there's the possibility that the Bush administration could simply use suggestions like Mr. West's as an implied stick in its continuing dealings with the Maliki government. "Your colonels are muttering, and our colonels are pretty sympathetic. Are you sure you don't want to take on those militias more forcefully?"

Implied threats aside, however, there are strong, principled, perhaps even compelling arguments to be made that if push did indeed come to shove, even standing by idly during a military coup would be a rank betrayal of everything that's been said about America and its coalition allies bringing democracy to Iraq. Ironically, in this scenario, the so-called "realists" like Jim Baker might be the ones urging support for, or at least acquiescence in, a coup, while the "neo-cons" might be the ones to stand on principle (even if that means chaos).

The Hoover Institution's Shelby Steele, as someone unafraid to give the word "hegemony" a positive spin, made a related observation in last Friday's Wall Street Journal (italics mine):

Only reluctant superpowers go to war with a commitment to fight until they can escape. So today the talk is of "draw-downs," "redeployments," etc. But all these options are undermined by the fact that we simply have not won the war. We have not achieved hegemony in Iraq, so there is no umbrella of American power under which a new nation might find its own democratic personality, or learn to defend itself. We have failed to give "peace in the streets" to the people we are asking to embrace the moderations of democracy. Without American hegemony, these "draw-downs" and "redeployments" are acts of outrageous moral irresponsibility, because they cede hegemony to the forces of menace — the Sunni insurgency, the Shiite militia, the Islamic extremists, the wolfish ambitions of Iran. It was America's weak application of power that made space for these forces to begin with. To now shrink the American footprint further would likely offer the country up as a killing field and embolden Islamic radicals everywhere.

For every reason, from the humanitarian to the geopolitical to the military, Iraq is a war that America must win in the hegemonic, even colonial, sense. It is a test of our civilization's commitment to the good against the alluring notion of menace-as-power that has gripped so much of the Muslim world. Today America is a danger to the world in its own right, not because we are a powerful bully but because we don't fully accept who we are. We rush to war as a superpower protecting the world from menace, then leave the battle before winning as a show of what, humility? ...

If there's a coup in Iraq, the "No Blood for Oil!" hounds will redouble their baying domestically and abroad, no matter whether America has encouraged it, facilitated it, planned it, or merely failed to prevent it. "Bus**tler and Cheney" will get the blame among that crowd — and that's the only thing of which I'm absolutely certain.

So if the Maliki government fails, and if America is absolutely, positively going to take the blame for that no matter what we do or don't do — well, then, taking into account Mr. Steele's arguments, it may make sense to read Mr. West's essay as suggesting a broader choice than between acceptance or non-acceptance of a government change after the fact.

If the mantle of the imperialist and king-maker is thrust upon us no matter what, and if every alternative to refusing it is impossibly grim, then can we refuse it in good conscience?

I'm not quite prepared yet to argue that we should. But neither am I completely convinced that we shouldn't. So for putting me into active and thoughtful puzzlement, I'm grateful to Mr. West and Mr. Steele for their essays. And preparing to answer that question seems to me a tougher task than anything the ISG attempted, much less succeeded in doing.

Is that a Glock under your robe, Judge, or are you just glad to see me?

On May 29, 1979, as I was concluding my second year of law school, I had the good fortune to be an invitee in the chambers of one of the "Unlikely Heroes" and most legendary judges of the U.S. Court of Appeals for the Fifth Circuit, Irving L. Goldberg. I'd submitted an application to be among his law clerks for 1980-1981, and he'd graciously invited me to come in for an interview. As we were getting acquainted, he received a phone call — something urgent, I knew, because he'd told his receptionist to hold his calls while we were meeting — and I quickly gathered from hearing one side of his phone conversation that something exceptional, and exceptionally bad, had just happened. In short succession he got a half-dozen more calls, each very brief, and by the time he'd finished I had figured out what had happened.

I'd just observed the Fifth Circuit grapevine in action, and what had set it abuzz was that for the first time during the Twentieth Century, a federal judge had been assassinated outside his home — specifically U.S. District Judge John H. Wood, Jr. Judge Wood sat in San Antonio, part of the Western District of Texas, and appeals from his court went to the Fifth Circuit. The obvious concern sweeping the chambers of the judges of the Fifth Circuit was that the likely assassin had been provoked by one of Judge Wood's rulings or sentencings, most likely from a criminal case — and the odds seemed pretty high that a three-judge panel of the Fifth Circuit had also passed upon that litigant's appeal as well, perhaps making them targets too.

This was in an era when there were not so much as metal detectors at the entrance of most federal courthouses, including the one in Dallas — maybe not even a security guard visible (beyond the U.S. Marshals who came and went escorting prisoners). As I exited, though, I saw that the security status of the building had suddenly changed — Marshals with side-arms and in some cases shotguns were roaming the lobby, the stairwells, and such. They were, if anything, trying to be very conspicuous with their presence, and they were succeeding.

As things happened, my application with Judge Goldberg was still pending when I got an invitation to clerk for Fifth Circuit Judge Carolyn King in Houston, which I accepted immediately. (One doesn't apply to clerk for a judge whose offer one is unwilling to accept immediately.) Once during the year of my clerkship in 1980-1981, one of my co-clerks accidentally stepped on a floor switch tucked away beneath a table in our chambers library, and within about 90 seconds two Marshals with drawn weapons were there with us in the room. We were embarrassed, impressed, and comforted. But even then, security in the building was remarkably light — still no metal detector, and the small parking lot behind the building where the judges had reserved spots was unfenced, without a security camera. The judges had a private keyed elevator at the back entrance from that lot that their law clerks were also allowed to use, but that was as much for privacy as security, I think. Chambers doors were generally unlocked — no door-unlocking buzzers and intercoms — and clearly marked to show their occupants.

*******

Obviously things have changed since then — in society generally, but certainly in courthouses, both state and federal. And every judge I've ever met, at any level, has been quick to praise and express appreciation for their bailiffs and other courthouse security personnel.

But the bailiff may not be the only person in the courtroom who's packing heat. The National Law Journal has an article discussing judges who themselves carry guns (hat tip: InstaPundit):

Earlier this month, a Florida judge was ordered to accept mentoring after warning a defense attorney that he was "locked and loaded." In May, a judicial ethics committee of the New York State Unified Court System found that it was ethical for a judge to carry a pistol into his courtroom.

In Nevada, Oklahoma and Texas, incidences of violence in the past year have prompted new laws or solidified rules allowing judges to bring guns into courtrooms.

"Judges in our courthouse have been carrying guns almost all the time," said Cynthia Stevens Kent, a Texas judge in the 114th District Court, where a man in a family law case killed his ex-wife and son last year on the steps of a Tyler courthouse.

"We feel strongly about providing adequate security, but it comes down to personal responsibility. And you've got to take responsibility for your own safety," [Judge] Kent said.

I was unsurprised to read that Texas may be out front of many of its sister-states on the issue of judges bearing arms:

In Texas, which permits state judges to carry concealed handguns into courtrooms, a new law became effective that expands that right to include federal judges and district attorneys. The law followed the Tyler shooting.

"We believe each judge should be able to make sure he has a system of self-defense," said [Judge] Kent, who wears a shoulder harness and carries a gun at all times. "One of our biggest areas of target is when we're in the court making decisions."

Judge Kent also testified before Congress in 2005 on the subject of security in the judicial system, during which she pointed out that the threats aren't always just to the individual participants in that system:

As any person in America, it is my personal responsibility to use common sense in protecting myself against acts of violence. As a Texan, I take full advantage of my Constitutionally protected right to self defense. However, these threats are not just a personal threat against me and my family, these are acts of domestic terrorism and are meant to disrupt our judicial system and our civilization.

And in a comment that probably related to the controversy then on-going about U.S. Senator (and former trial and appellate judge and state attorney-general) John Cornyn supposedly "stirring up hatred against judges," Judge Kent stressed that this isn't, or shouldn't be, a partisan issue:

When judges are subject to threats, intimidation, and assault, our entire system of justice is under attack. Although free dialogue and public debate regarding judges is certainly important and constitutionally protected, responsible legislators and politicians should understand that when someone paints with a broad brush the simple country judges of America can be smeared with the partisan paint of the day. Inciting the public to distrust, disrespect, or threaten the members of the judicial system only invites anarchy. There are good and bad judges just as there are good and bad plumbers. However, keeping our judges secure and independent helps prevent justice from failing the designs of our founding fathers and the needs of 2005 America.

And on March 9, 2005, before her Congressional testimony, Judge Kent had a brief moment of scary fame on CNN:

COOPER: We take you back to Tyler, Texas now, where, on the 24th of February, the town square was turned into a war zone. A heavily armed man heads to the courthouse, where armed guards engage him in a fierce gun battle.

Sean Callebs takes us behind the headlines again, shows us what happened inside the courthouse as the battle began.

(BEGIN VIDEOTAPE)

CALLEBS (voice-over): This is Smith County Courthouse surveillance tape, deputies rushing to confront a gunman who has already killed. While the shootout played out in the town square, chaos on the second floor. A capital murder trial interrupted by the unmistakable pop of weapons firing.

UNIDENTIFIED MALE: Get down. Stay down.

CALLEBS: Deputies, guns drawn, prepare for the worst. In the back of the courtroom, Judge Cynthia Stevens Kent is ushered to safety. For the first time in recent years, the judge realizes she has left something important in her car.

JUDGE CYNTHIA STEVENS KENT: I carry a Smith and Wesson .38 revolver. A lot of the judges do carry personal protection. Of course, this is Texas, OK? And in Texas, I'm a Second Amendment gal. I like the revolver.

*******

I've been fortunate in my law practice in that with rare exceptions, the civil litigants with whom I've dealt have mostly been, well, civil, or at least non-violent. (Among the exceptions was the CEO of a publicly traded company who tried to take a swing at me in a videotaped oral deposition. His lawyer, a very petite woman who now is on the federal bench, literally grabbed him by the ankles and hauled him back across the conference table, plopped him back into his executive armchair, and rolled him out into the hallway.) Like many Texans, especially those raised in a rural or semi-rural setting, I've got some deer and quail hunting in my background, and some time at the firing ranges. I'm comfortable with guns, but I've never felt the professional need to carry one, notwithstanding this amusing conclusion to the NLJ article (emphasis mine):

On Jan. 1, Kansas plans to permit judges and whomever they designate to carry concealed firearms in the courtroom. Phillip Journey, the state senator who authored the bill and a practicing attorney, said he spent a decade seeking to overturn a blanket prohibition on firearms in the courthouse.

"If I had a judge's permission, I'd do it every day," he said of bringing a gun into the courtroom. "Guns are like lawyers: Better to have one and not need it than need one and not have it."

I have been compared to a "hired gun" before, but I think that was meant metaphorically.

While it's far from unknown, however, for disappointed litigants in both civil and criminal cases to blame the prosecutors and/or their own lawyers, us "hired guns" aren't typically the final decision-makers, and just by the nature of their job responsibilities, judges in general are at a higher risk. I don't very often have occasion to think about it, but when I do, my working assumption is that any judge I appear before might be packing. I certainly could picture the late Judge Goldberg, liberal but often libertarian and nobody's wimp, with an ankle holster. I probably couldn't have imagined my own judge carrying twenty-five years ago, but now? Maybe.

And I've appeared from time to time before state-court judges who not only were armed, but were not at all shy about ensuring that the lawyers who practiced before them knew about it. What good, after all, is a secret deterrent? The casual display of the weapon was typically done in chambers rather than in open court, and contrary to Blue-State assumptions about Texans, only very rarely included any fast-draw practice or shooting of tin cans off a fence.

But I'm always vaguely aware of — and every time I think of it, more than vaguely grateful for — the security personnel I deal with at the courthouse. I sometimes get funny looks, but always returned appreciation, when I say to the security guards as I'm going through the metal detectors, "Thank you for helping keep us safe." (Joke about them privately if you must, but the fact is that they do help.) And while I've appeared before some judges whose reversal rates in the appellate courts may suggest they're more prone than others to err, I've never been worried about one of them going postal.

New judges in both the state and federal courts typically get training now on "how to be a judge" — focusing on the administrative tasks, mostly, since they're presumed (rightly or wrongly) to already know quite a bit about courtroom practice and substantive law. But it wouldn't surprise me too much to see some ambitious Texas legislator introduce a bill to include target-range experience among that training, along with some tips on how, for instance, to keep the new bailiff on duty from mistaking the pistol-packing judge, perhaps not yet robed because she's merely en route to her chambers, from an ordinary litigant, witness, or lawyer. Risks are inherent in firearms, there's just no denying that. But risks are also inherent in courtrooms, and risks associated with firearms can be substantially minimized through training and forethought.

And if we can't presume that the person in the black robes is one of the "good guys" in addition to being one of the likely targets, then why are we letting them decide our fates in court?

Spitzer smile freezes as sharp-tongued Schumer slaps Rangel

If ever there were a photograph that deserves a caption contest, it's this one from a NYT story headlined "Spitzer Visits Capitol Hill With Long List." (The subhead should, I believe, say something about "naughty and nice" and "checking it twice.")

The NYT's actual caption is much, much more boring than the photo: "Eliot Spitzer, New York's governor-elect, middle, met with Representative Charles Rangel, right, and Senator Charles Schumer, at a breakfast with the New York congressional delegation."

I'm sure you can do better. Comments are open.

Leeches, stents, modern medicine, and lawsuits

"Weekend stent blogging" never quite caught on, but stories like this one in today's WaPo, headlined "New artery stents raise safety concerns," may change that:

A flurry of recent research has raised alarm about the safety of a new generation of stents that have quickly become the most commonly used devices for treating clogged arteries, creating widespread concern about how to care for millions of heart-disease patients.

The stents, tiny drug-secreting mesh tubes used to prop coronary arteries open, appear to carry a small but significantly increased risk of causing blood clots, compared with older "bare metal" versions. That may boost the patients' chances of suffering a heart attack or dying, according to the studies, including one released yesterday.

Two such "drug-eluting stents" have resided in a pair of my coronary arteries since last July. So I'm sort of reminded of the story about the guy who slips and falls from the observation deck of the Empire State Building. As he's falling, his cell phone rings. It's his best friend. "Can't talk long right now," says the fellow, "I just fell off the Empire State Building observation deck." In shocked tones, the friend blurts out, "Oh my God, how are you?!?" "Meh," answers the fellow, "So far, so good."

My ex is a physician, and I used to tease her by saying, "While my predecessors as lawyers were doing things like writing the Constitution and the Bill of Rights 200-plus years ago, yours were leeching George Washington to death!" Of course, now leeches are back in medical fashion, if not quite considered to be the panacea they were in Washington's time. This time there's hard science, a substantial body of medical evidence, supporting their use. But anyway, back to the WaPo story:

"This is a public health issue of great importance," the FDA's Daniel Schultz said yesterday. "Our goal is to provide the American public with a coherent, understandable explanation of the risks and benefits associated with these products."

The situation, which has triggered an intense, sometimes bitter debate among cardiologists, illustrates the potential dangers of assuming that new technologies are necessarily superior and of adopting them widely before long-term studies are done, experts said.

"Everybody wants to be perceived as doing the most modern thing for their patients and fear being labeled someone who is old-fashioned and not using the latest and greatest thing," said Spencer King of the American College of Cardiology.

I'm very, very well acquainted with the concept of "informed consent" as a medico-legal matter. (Great term, that: "medico-legal." Nobody really knows what it means, but it makes you sound more knowledgeable to say or write it.) And as they handed me the consent forms to sign, I remember thinking, while flat on my back in the cardiac intensive care unit at Methodist Hospital last year, "These forms pretty much boil down to 'The stuff that we're proposing to do to you might hurt or kill you, but we'll try not to, and if we don't do that stuff, you might be hurt or killed anyway.'" As my cardiologist was running a catheter from an incision in my groin up to my heart, I didn't ask him, "Hey, Doc? For these new drug-eluting stents, how many years of evidence from controlled studies are in yet as to whether they might be more likely than plain stents to cause clots later?" Pretty much whatever answer he might have given me then, I'd still have just asked, "So what would you do if you were me, Doc?" Based on what he knew then, he almost certainly would have said, "I'd want this stent." And that would have been plenty good enough for me.

I don't know what he'd say if asked that question today — which is to say, I have no idea if he's been in that recent "heated debate" among cardiologists, and if so, on which side. Another WaPo story reports that a just-released Duke University study "also showed a marked reduction in the need for repeat angioplasties among patients getting drug-eluting stents — one in 12, compared to one in five for those getting bare-metal stents." Hey, that sounds like a trade-off that might be worth taking, especially if (as seems also to be the case, emphasis on the word seems) the clot risk can be reduced through a medication called clopidogrel.

But I'm not a bit worried that a year ago, my cardiologist prescribed those stents for me based on some desire not to "be perceived as old-fashioned." Wow, that's an insulting notion, and I can't believe it could be even partly true in even a tiny fraction of situations; but I'm absolutely certain it wasn't true of my own cardiologist. Even with all of the science available to modern physicians — even the specialists at cutting-edge teaching hospitals — there's still an element of art in the practice of medicine. And certainly there are lots of judgment calls, in medicine just as in law, and the essence of being a professional means that people outside your profession have to rely upon and trust your judgment.

How much education would I have needed to make an intelligent decision without the benefit of my cardiologist's recommendations and judgment? I've got a decent education in science, and a pretty good understanding of medical language and concepts for a layman. But when I first heard them talking about this, I don't think I had any clue what a "stent" was, much less a "drug-eluting stent." Until they explained it a little, I thought they were saying "drug-eluding stint" — and I was wondering, What kind of time-frame are they talking about my having to dodge drugs during (and how, and why)?

Get away from me with your dirty paper cup full of meds, Nurse Ratched, at least for now! I'm embarked upon one of my drug-eluding stints!

So, Doc, if you're reading this by any chance, you can exhale now. At least one lawyer you installed drug-eluting stents into last year has pretty much admitted that if he keels over from a heart attack tomorrow, his survivors won't have a decent case against you. I trusted your judgment, and was, and am, damned grateful for the benefit of it, along with your technical skills.

Did I read those WaPo articles pretty carefully, knowing that this issue applies to hardware that, for me, is "hard-wear"? Oh, sure. Am I going to lose any sleep over it tonight? Naw. It's not something that would be productive to worry about right now.  And I'm almost certain that other factors that I can control — "Put down that cheeseburger, Beldar, and get back on the cross-country ski machine!" — are more likely to determine my future cardiac health.

Life is ultimately a terminal condition. But so far, so good.

Meanwhile, at Anniston Army Depot

On the home page of tomorrow's WaPo, I see a link reading "Military Equipment Wearing Out," and my first reaction is: "Well, duh!"

But it's actually a very good story, written about some very dedicated people in uniform who are very much "behind the scene," and a serious problem they're confronting to the best of their abilities.  This article reminds me of historical accounts I've read recently (sorry, I can't readily lay hands on a link to a source) which emphasized that besides the simple numerical superiority the U.S. had in World War II with, for example, our ubiquitous (if individually inferior) Sherman tanks, another little known advantage we had over the German army was our ability to to pull wrecked tanks off the front lines, refurbish them, and put them back into combat. (The German Tiger and King Tiger tanks, by contrast, were extremely difficult to recover, and once one was knocked out, it was probably lost forever to the German war effort, whereas three or four of the half-dozen Shermans it might take to knock out that Tiger would eventually be put back into service.)

John Milton wrote that "They also serve who only stand and wait," but the modern-day corollary to that might be, "They also serve who may be behind the front lines, but who bust their butts doing maintenance and upkeep and logistical support." Particularly in conflicts like those in Iraq or Afghanistan, where the "front lines" are fluid if nonexistent, some corporal in northeastern Alabama who's repairing and updating a Bradley Fighting Vehicle is contributing very, very directly to the war effort.

Surely we owe them, and the troops they're supporting, enough of our tax dollars so that their lives and their mission aren't compromised through lack of repairs, replacements, and upkeep.

One small step for a man ...

After a giant leap on July 20, 1969, mankind has mostly stood pretty still, looking around and even backtracking.

(And yes, Neil Armstrong actually did say "one small step for a man," which makes vastly more sense in context. Armstrong is a pragmatic, in some ways enigmatic fellow, but he's no dummy, and fully appreciated the significance of the moment. Modern voice-analysis software has confirmed that his "a" was indeed spoken, although inaudible over the moon-to-earth radio link.)

The space shuttle has certainly added lots to our scientific knowledge. The space station was a great idea that's been only poorly realized for the most part. But even the most enthusiastic supporters of those programs must concede that nothing has remotely matched the drama and excitement and enthusiasm that attended the first moon landing.

I was about to start the sixth grade, and I can remember that day vividly. As I watched on television with my family, I was surrounded by plastic scale models of the Eagle and the Columbia and the Saturn V, and I could describe for you in detail every stage of the Apollo 11 mission. Those men, and their predecessors in the space program, were the heroes of my childhood. I was a Sputnik baby, born a month after the space race began in 1957, and I could name every Mercury astronaut, and every Gemini astronaut too.

I cried for days over Apollo One. I was in the midst of a jury trial when the Challenger blew up on January 28, 1986. I heard about it over my lunch break, as I was eating a stale tuna-fish sandwich at the courthouse while preparing my closing argument, and wondered if I could manage to hold down that lunch and get through the day. And I was blogging on the morning of February 1, 2003, when the shuttle Columbia was destroyed during re-entry. Each of those setbacks hurt. But it never once seemed to me that they were good reasons, or any reasons at all, to give up on manned exploration of space.

My own four kids, by contrast, have only the vaguest of appreciation for our astronauts of today — notwithstanding having grown up in "Space City USA," home of NASA and Mission Control, the city whose name was the first word spoken from the surface of the moon, the city where John Kennedy first announced (in a speech that still reads awfully well today) that we would go to the moon in that decade, not because it was easy, but because it was hard. My kids read a fair amount of science fiction. But to them, it's little different from reading fantasy. Dragons, trolls, faster-than-light spaceships — all sort of alike in the category of speculative fiction, something entertaining but not something to which they directly relate. My kids have never tediously assembled plastic models of the shuttle or the space station, not because they lack imagination, but because our society hasn't sufficiently challenged and tantalized their imagination with tangible, current adventures in space.

Sure, there are lots of other things for governments, including ours, to spend money on. There always will be. But what kind of penny-pinching, short-sighted fool has such a limited imagination that he can't see the opportunities, the destiny here? I have no patience with such people, and I cannot identify with them at all.

So I'm pretty gung-ho about the newly announced NASA plans for a permanent moon colony and its eventual role as a way-station to Mars and beyond. In my "topics" choice for this post, I've included "politics" along with "current affairs" — but this ain't about politics, and it's really not even about what's current. I don't have a category set up for blog posts about "really important stuff connected with the destiny of our race," but this is all about the future, and it's really, really important — not so much for me or my own kids, but for theirs and their grandkids and their grandkids' grandkids.

If you are a commercial website guru ...

... who's looking for a client who's terribly, terribly in need of your services, contact Polar Fitness in Finland, www.polar.fi. I recently bought one of their heart-rate monitors to exercise with, and I like it pretty well. And they have what's supposed to be a website to permit you to upload data from the monitor to keep track of your exercising. But their website is the slowest piece of junk on the internet — like communicating with one of those old bulletin boards at 28k baud in 1992, or maybe worse. I think I'd actually read something about how slow the site is in a review before I bought the monitor, but I thought, "Naw, that's just someone with a slow internet connection." Nope. It is awful.

Now, I know that's not up to my usual standards of blog-worthiness, and I'm sorry for that. But sometimes ... you just have to rant. (InstaPundit does it all the time! Although he also sometimes raves.)

New professional address and website

Other than an occasional link back and forth, I don't generally use my blog to directly promote my business or vice-versa. But effective yesterday, I have both a new professional address and a new business website, dyerlegal.com. I'm still tweaking the website, so I'd be grateful to anyone who emails me with typos, problems accessing the site, and the like.

Lawyerus Politicus

Why is this man smiling?

Actually, "smiling" is an insufficient word. "Beaming," perhaps. Or "Filled with mirth, glee, and spectacular merriment" might do. But why? Sez the New York Times, in answer:

Moving swiftly in his efforts to change the culture of Albany, Governor-elect Eliot Spitzer said Thursday that he would unilaterally stop accepting campaign contributions greater than $10,000, which is less than a fifth of the $50,100 in individual donations currently allowed by state law.

Mr. Spitzer also said that from now on he would refuse to take advantage of several notorious loopholes in the state’s campaign finance laws that allow corporations and limited liability companies to circumvent donation limits by contributing through subsidiaries and other related entities.

Oh, that's nice. Mr. Spitzer, of whom I've written before in a post on "Spitzerism," is dropping the size of the contributions he'll accept from roughly 25 times the federal limit for individual campaign donations to merely roughly five times that limit. (The NYT gets the federal number wrong, I think, unless I'm badly misreading the Federal Election Commission's website. But the Times informs us that "New York’s current limit on single donations, $50,100 to candidates for statewide office for their primary and general elections, is the highest of any state that has contribution limits," which I'll assume is correct.)

My favorite line from the NYT's story on Mr. Spitzer's spiel is this one:

Mr. Spitzer announced a number of areas where he said he planned to hold his administration to a higher standard than the law demands.

"Not quite criminals!" Now there's a campaign slogan for re-election in 2010!

Mr. Spitzer is one of the most prominent members of the species Lawyerus Politico currently to be found in the United States. In his plumage and attention-attracting habits, this avis vulgaris puts my law school colleague Bill White, currently the Mayor of Houston, utterly to shame. But who better to creatively flout the spirit of campaign finance laws, while simultaneously trumpeting (now that he's elected) his voluntary ethical surpassing of the same, than the immediate past attorney-general of the State whose bar inspired national reverence fear contempt appreciation for the phrase "New York lawyer"?

The concluding paragraph of the NYT story is classic, probably without intending to be:

When Mr. Spitzer was asked if his decision to limit his contributions reflected confidence in his ability to be re-elected in four years against a candidate not bound by such self-imposed limits, or confidence that he would be able to persuade the Legislature to overhaul the state’s campaign finance laws, he said, “The logic is, this is the right thing to do to send a message that we meant what we said throughout this campaign, which is that we are going to change, in a fundamental way, the way government functions.”

Yes, indeed! Welcome, New York State government, to the "perpetual campaign," just as practiced by one current and one retired specimen of Lawyerus Politicus — both prominent examples of this (unfortunately all too common) species, they are! — your State's junior senator and her husband.