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Thursday, May 31, 2007

Self-immolation on the witness chair via the power of the internet

Prof. Jonathan Adler and Hugh Hewitt both link to this story about a Boston pediatrician, Robert P. Lindeman, who, while a defendant in a malpractice case, blogged about his case — even during the trial. As he was undergoing cross-examination on the witness stand, the plaintiff's lawyer asked what probably sounded to the jury and everyone else in the courtroom like a pair of throw-away questions: Did he have a medical blog? Yes, he said. Did he blog under the pseudonym "Flea"? Um, well, yes. And then the plaintiff's lawyer moved on to other topics until they broke for the day.

But the very next morning, before Dr. Lindeman returned to the witness stand for further cross-examination, "he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement — case closed."

"drfleablog" has since had its content zapped, but according to the news report, at the time of the trial, it included such things as the inside advice that Dr. Lindeman had been given by a jury consultant, along with a whole host of other potentially embarrassing observations that doubtless would have been explored in vivid detail on the following day of his cross-examination:

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing....

Elizabeth N. Mulvey, the lawyer who represented Vinroy and Deborah Binns and unmasked Lindeman as Flea, said she laughed when she read a posting at the start of the trial in which Lindeman nicknamed her Carissa Lunt, noticed that she bit her fingernails and mused, "Wonder if she's a pillow biter, too?"

"Not too bright," sez Hewitt with considerable understatement. But Lindeman is described in the article as being "a graduate of Yale University and Columbia University's College of Physicians and Surgeons [who] is board-certified in general pediatrics and pediatric pulmonary medicine." And he's supposedly very media- and specifically internet media-savy, having "shared his medical views on local television news programs, on the 'Manic Mommies' podcast produced by two Ashland mothers, and in magazines." So amateur courthouse psychologist Beldar's differential diagnosis is: "Willful but subconscious self-destruction, possibly coupled and overlaid with a God-complex."

Next on the horizon: Med-mal insurers revise their policies to exclude coverage for liability established in whole or part from internet self-immolation!

(From the comments on Prof. Adler's post, I've learned that New York lawyer Eric Turkewitz has been blogging about this for some time and in considerable detail before the Boston newspaper's story; he, in turn, has a long list of other links. And someone else has posted a 105-page .pdf version of what was on the drfleablog site before its content was zapped.)


I've been sensitive since Day 1 of my blogging career, back in August 2003, about the possibility that something I write here could come back to bite me or my clients in court in one way or another. So far, it hasn't.

But this past February, as I was on the stand as a witness myself to prove up the attorneys' fee portion of my client's claims during a jury trial, I was asked a question on cross-examination drawn directly from my own professional website: "Is it really true that you sometimes charge your clients for time you spend just sitting around and thinking about their cases?"

"Well, yes!" I replied. And then I explained, using a slightly less polished version of what I'd written on the website itself:

Not all my time spent on behalf of clients is "doing." Some of it is "just thinking" — while sitting at a computer keyboard, pacing the hallways, or simply staring off into space. I don't charge for travel time, but a lot of my travel time is also "thinking time." (If I'm asleep on a plane or in a hotel room, my meter is not running.) Daydreaming about brilliant arguments that I ought to have made doesn't count. But composing and rehearsing for brilliant arguments that I'm planning to make does count. When I believe you've gotten good value for time I've spent "just thinking," I will indeed bill for it. You ought not want a lawyer who's incapable of — or even just resistant to, or under-acquainted with — reflective thought and planning.

The genesis of that paragraph goes back many, many years, to when I was learning the fine art of how to honestly describe the services I'd rendered in a way that would nevertheless help my clients understand their genuine value. It is both a blessing and a curse of my profession that services rendered in its practice can often be performed outside the office and outside the courtroom. I don't think I've ever written down on a fee statement, "Talked out loud in a forceful voice while pacing my back porch, frequently scaring the dog and occasionally annoying a neighbor or two — 1.25 hours." But I have written entries like, "Prepared, revised, and practiced closing argument — 1.25 hours." Or: "Dictated outline for evidentiary strategy for proving up affirmative defenses of laches and estoppel — 0.50 hours." And that may have been done into a Dictaphone clutched in my drivers-wheel hand on the long open road between Houston and Corpus Christi.

So having thought all that through in detail over many years, and having discussed it with colleagues and clients on many occasions, I was pretty well prepared to be cross-examined on any aspect of my billing philosophies — including on that one sentence taken out of context. Talking to several of the jurors afterwards, I was relieved, but not surprised, to confirm that they'd understood all that. That case turned out to have other problems, but my testimony on attorneys' fees wasn't one of them. And as it happens, that's pretty much all I can say here about that case, lest I potentially create problems elsewhere!

The moral, nevertheless, is this: While cross-examination under oath may famously be the most powerful engine ever devised for the ferreting out of reluctant truths, the internet is making it a potentially more powerful engine just about every day — especially when used against the blissfully unaware (or the self-deceiving). Caveat blogger!


UPDATE (Thu May 31 @ 2:10pm): Scrolling through the .pdf of Dr. Lindeman's blog, I'm alternately sympathetic, stunned, amused, impressed, and appalled. I see posts mentioning, for example, lawyer Turkewitz. This suggests something that ought to be obvious, but bears repeating: There's a whole, whole lot more to this story, from just about every angle, than I or any other fairly casual inquisitor is going to be able to find out from bopping around the internet over the course of an hour or two.

Therefore, a long string of caveats, which you may interpret as ass-covering on my part (he's now probably a public figure for NYT v. Sullivan purposes, but unlike him, I've never tried to hide my actual identity behind my blogging pseudonym); it might be that, but it is also an attempt on my part to be more fair: I have no basis for any opinion about Dr. Lindeman's competency as a physician; my "diagnosis" of his mental state is obviously unqualified and made for purposes of satire. My comments about the ill-advised nature of his blogging about his malpractice case are statements of opinion on my part, admittedly based on less than all of the facts and from an outsider's perspective, but they demonstrate the very strong negative initial reaction that I and, I think, most other experienced courtroom lawyers would have on the superficial question of whether it's a good idea for anyone to blog about pending litigation in which they're involved. When a litigant blogs about his case, he runs great risks of inadvertently waiving attorney-client and other important privileges (e.g., those regarding the work product of consulting, non-testifying experts like his jury consultant). When a litigant who's insured blogs about his case, he runs some risk of jeopardizing his own insurance coverage; the insurer may take the position that the insured is failing to cooperate in his defense. I have no clue, however, to what extent, if any, those issues are raised by the facts of Dr. Lindeman's lawsuit.

I'm quite sure that, for example, opposing counsel would have dearly loved for the jury to learn that Dr. Lindeman had referred to her in his blog as "Carissa Lunt" because that would tend to prejudice many people against him. But how much of what was written in his blog might have become admissible evidence for the jurors in his trial to hear as part of his cross-examination would depend on a whole lot of very specific fact-specific inquiries, including some that involve complicated balancing of interests, and neither you, I, nor anyone who wasn't there for pretty much the whole trial can make confident predictions as to how all that would have played out. And his blog, and the questioning about it, may or may not have had anything to do with the timing or the amount of the settlement, and settlements can be and frequently are made for reasons having little or nothing to do with the settling parties' legal liability or moral culpability.

Bottom line: To whatever extent Dr. Lindeman's story does or doesn't prove it, I'll stand by my general "moral of the story" stated above.

Posted by Beldar at 12:55 PM in Humor, Law (2007), Trial Lawyer War Stories, Weblogs | Permalink | Comments (9)

Wednesday, May 30, 2007

In John Edwards' America, it's okay to spend $225k for a new phone for your jet

Who cares about $400 haircuts in which the candidate was not "personally involved," when he's spending $225k — that's TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS (as we redundancy-prone lawyers are inclined to write) — on a new phone system for his campaign jet back in 2004? (h/t Redstate)

About $1.3 million was spent to reconfigure two jets before the general election. Kerry's primary campaign committee paid for most of the work.


It cost more than $900,000 to customize Kerry's Boeing 757, including $63,103 for campaign decals on the plane's exterior.

The price tag for reconfiguring Edwards' Boeing 727 was $300,738, including $224,894 for a new telephone system and $27,659 for decals.

I would guess that probably included some extras — caller-ID? one-touch dialing? or maybe faster-than-light intergalactic transmission capabilities?

Typical 'Airfone' on commercial airliner If it were a phone system designed to ensure constant and secure EMP-shielded encrypted world-wide communications from, say, the actual Vice President — instead of just a wanna-be — I can imagine that one might have to start spending some big bucks for jet-borne communication systems. But for a candidate, just during a campaign, just to make phone calls while on an airplane flying from place to place inside the United States?

How many zeros does a campaign expenditure have to have after it to get John Edwards' personal attention? How many zeros does a campaign expenditure have to have after it before we can conclude with absolute certainty that this guy lacks the degree of good judgment commonly shared by most American six-year-olds?

Posted by Beldar at 09:51 PM in 2008 Election | Permalink | Comments (1)

Saturday, May 26, 2007

WSJ mistakes Hillary's latest zigzag as being a meaningful, principled hard-left turn

Today's WSJ OpinionJournal features an editorial headlined "The end of Hillary as security hawk." I'm not sure if that's just headline-ese and the regular English language version would read, "The end of Hillary as a security hawk," or if they indeed meant to refer to her as, say, the most prominent "security hawk" of the Democratic Party. At any rate, the event being marked in the editorial, of course, is Sen. Clinton's vote this week against the supplemental war funding bill (ellipsis by the WSJ):

So all of the Iraq maneuvering was merely for show to appease the antiwar left that elected Democrats. Ms. Pelosi couldn't even deliver a majority of her own Members for the war spending bill, and she voted "no" herself. Thus she can claim to oppose the war but also sleep easily knowing that others voted to fund it. The troops will be funded because 194 Republicans joined 86 Democrats to support it. Two Republicans and 140 Democrats opposed it.

At least Majority Leader Reid voted for the bill, which passed 80-14 in the Senate. To his credit, so did Joe Biden. But the main story in that body was the "no" votes by Presidential candidates Chris Dodd, Barack Obama and Hillary Rodham Clinton. The vote won them praise from the likes of MoveOn.org, which threatened not to support anyone who voted for the bill. "Senators Obama, Clinton and Dodd stood up and did the right thing--voting down the President's war policy," said Eli Pariser, MoveOn's executive director. "They're showing real leadership toward ending the war, and MoveOn's members are grateful. This bold stand . . . won't soon be forgotten."

The WSJ's editorial board is undoubtedly correct that Sen. Clinton's vote was designed to keep her competitive with present and former Sens. Obama and Edwards for purposes of the Democratic primaries. But I think this editorial is short-sighted in its political handicapping. There's no doubt in my mind that Sen. Clinton will eagerly score cheap points with the Hard Left on occasions like this one — that is to say, when she can do so without any demonstrably adverse consequence for American military and security interests, as viewed through the eyes of moderates and conservatives. But she also will campaign hard during the primaries to grab every moderate Democratic vote, and the "pragmatist" votes from even the Hard Left, by painting Edwards and Obama as being unelectable in the general election because they will cut and run from Iraq immediately, without any regard for the military, geopolitical, or humanitarian consequences. Mark my words: The claws of that argument, largely sheathed now, will come out as the Democratic primary elections approach — and they'll be wielded occasionally by the candidate herself, but relentlessly through her proxies.

Then, if and when she has the Democratic nomination in hand, she can tack back hard enough further toward the right for the general election to ensure that she can hold her own party's centrists, avoid terrifying independents and left-leaning Republicans who might be inclined to sit this one out, and even pick up a few from those ranks who might be willing to cast a vote to punish the Republican nominee for Bush-43 Administration policies they've hated. And she would thus be the one potential nominee of the Democratic Party whose general election candidacy could conceivably weather a major change in the landscape like another 9/11-scale terrorist attack on American soil.

I think the WSJ's editorial board is just being naïve, however, if it genuinely meant to suggest that this vote actually represents some significant and even semi-permanent "turning point" in her overall political philosophy and career, or her position on national security/GWOT issues generally, or even in her position on the Iraq War specifically. I'm not much of a sailor, but if I can extend my shaky nautical analogy: They may think Hillary has actually come fully about to the hard left, when in reality she's just beating a course back and forth upwind against the currently prevailing squalls in the Democratic Party.

Hillary is Mrs. Captain Triangulator: If there's any politician in the Democratic Party who can nimbly tack left and right and at every angle in between to try to grab forward momentum from every passing gust of wind (and who's not prohibited from running for President by the Twenty-Fifth Amendment) — it's her. In that respect, she makes John Edwards — who's equally insincere, but in this election already committed to being a one-trick pony — look like the rankest of amateur sailors.

It's a strategy that will require a genuinely masterful political seamanship to pull off, but I think the harder part of it by far will be in the Democratic primaries. And were I a betting man, I'd bet against her getting the nomination right now, simply because I think there are too few Hard Left pragmatists and the rest of the Hard Left have driven the moderate Democrats from prominence and influence (in the same way the McGovern/post-Watergate Democrats did in 1972 and 1974). If Obama capsizes early, Edwards might still ride the Hard Left gusts in ahead of her. But if Obama stays upright, my money is still on him for the Democratic nomination. Those squalls are just blowing too hard right now, and he's got the sails to run with the wind.

And as a Republican, that's frankly what I hope will happen, because I'm convinced that on that point, Sen. Clinton is correct: Obama can be beaten in a general election precisely because he's not just weak, but absolutely hollow, on national security issues.

(Real sailors among my readers are welcome to sharpen or correct outright my feeble nautical metaphors here. I'm not sure of the terminology; I just know that the hard winds buffeting the Democratic Primary aren't representative of the wind pattern in the country at large, and I know that Hillary knows that too.)

Posted by Beldar at 02:01 PM in 2008 Election, Global War on Terror | Permalink | Comments (5)

Friday, May 25, 2007

The "David E. Kelley Contempt Fallacy": TV versus real-world contempt of court

I am not a junkie, but an unabashed fan, of TV lawyer shows, and I have been for a long, long time, all the way back to Perry Mason days. Producer/writer/creator (and Michelle Pfeiffer-spouse) David E. Kelley has been particularly productive and successful over the last several years, regularly "mining" his courtroom plot topics from today's headlines for his series of successful lawyers shows — "L.A. Law," "The Practice," "Ally McBeal," and "Boston Legal." He combines that topicality with crisp, hyper-condensed courtroom dialog — regularly pumping out profound, tear-jerking, or otherwise dramatic closing arguments that run no longer than two and a half minutes — and, of course, the sine qua non of modern television, oodles and scads of sex: Lawyers, clients, receptionists and secretaries, judges, bailiffs, even jurors — almost all gorgeous, and almost all in a state of perpetual, irresistible arousal. And I'm basically okay with that, for the most part. This is entertainment —  it's ultimately all about selling products made by the shows' sponsors — and as such, it's fantasy escapism. If it happens to educate lay folk about some bits and pieces of the legal system along the way, that's just gravy. If you don't like it, don't watch.

David E. Kelley and wife Michelle Pfeiffer (Lately Kelley's been having a particularly hard time distinguishing between law and politics, however. The latter seems to be completely engulfing the former, such that it's reasonably clear to me that the genuine consensus presidential nominee of the Democratic Party would be Alan Shore. Kelley would probably agree if asked, and would insist that Denny Crane ought to be the GOP nominee.)

What has always bothered me most about Kelley's lawyer shows, though, has been his willingness to script his protagonist lawyers as undertaking flagrantly unethical, illegal, and otherwise outrageous acts. I understand that he's caught between competing concerns: On the one hand he wants his characters to seem gritty and "real," and to show them as multi-dimensional and fallible humans who are frequently confronted by temptations to take short-cuts for the greater good. Many of his lawyers are charming rogues, and their charm comes from just how close they tend to walk to the borderline of impropriety. On the other hand: If Kelley were to portray the real-life consequences to lawyers who commit such actions with even one-fiftieth of the realism he cherishes in picking his plot topics, then all of his regular characters would have been disbarred, and probably imprisoned on multi-year felony sentences, within the first three or four episodes of each series.

Rarely, one of Kelley's lawyer-characters will get his hand slapped — meaning we're treated to another two minutes of the character behind bars for a supposed hour, a day, or maybe (worst case) a long weekend. Sometimes there are mutterings about "bar committees" who might consider license suspensions or revocations, but those always seem to remain comfortably offscreen and toothless. Sometimes the characters are "conflicted" over their own misconduct — anything from "Should I perhaps not have had wild sex with opposing counsel during the lunch hour before our closing arguments?" to "Maybe I ought not have compelled my client to plead guilty to manslaughter by threatening to break attorney-client privilege to reveal his true guilt for murder." Virtually never, however, do the consequences or even the self-doubts throw a ripple into the next week's episode.

Apart from the obvious ethical shenanigans and lapses, though — the ones where no doubt some story-board is entitled "Alan's Kinky Sex With Opposing Client" or "Arnie Ponders Whether to Help Murdering Divorcée Conceal Evidence" — I'm also troubled by the near-ubiquitous ridicule of the judiciary. Oh, occasionally you'll see the bright, hard-working, truth-seeking jurist — often as not, his or her delivery of the "just result" at the end is itself a plot twist, a surprise, since he/she seemed so close-minded and biased up until the last commercial break. But mostly the judges in these shows exist as comedic straight men whose principle function is to demonstrate through their own obtuseness the relative brilliance of Kelley's lawyer characters.


Whatever confusion and invalid stereotyping Kelley's shows may cause the general public on the subjects of lawyer sexuality and ethics, I've always presumed that most real-life practicing lawyers would, like me, just laugh off Kelley's portrayal of all his lawyer characters as having bulletproof law licenses. Lately, however, I've been hearing and reading anecdotal evidence to suggest that increasing numbers of real-life lawyers (and not just young pups!) seem to think that they might as well be characters in a David Kelley TV show, because they're behaving in real life, in real courts, as if they have the same immunity from bad consequences that Kelley and his screenwriters provide on TV.

Exhibit A is this exchange (h/t Althouse) from a real-life bankruptcy court hearing, involving a fifty-something partner who's the head of his highly respected multinational mega-firm's bankruptcy law department:

MR SMITH: How can you possibly assume, based on the evidentiary record before you, this transaction is likely to close?

THE COURT: Because I've previously ruled on a contract that has one condition and one condition only, and that's the approval of the CHOW application.

MR: SMITH: And is the Court — as part of that ruling have you established all the financial bona fides for all the documents sitting in escrow someplace so that all that has to happen is the State of Florida has to issue a decision and magically the documents are automatically disbursed and nothing else happens?

THE COURT: I believe that has all been done, but perhaps it has not. But the only condition to close and forfeiture of the deposit is the transfer of the — the approval of the CROW application.

MR. SMITH: I suggest to you with respect, Your Honor, that you're a few French fries short of a Happy Meal in terms of what's likely to take place.

THE COURT: Proceed, counsel.

I have no idea what this hearing was about. I don't know the lawyer, nor the judge, nor the issues. I don't know if the judge was right or wrong in her expectations about the likelihood of closing of whatever transaction was under contemplation. There may be extenuating circumstances; I hope, for Mr. Smith's sake, that there are. But it's transparently, undeniably clear to me from Mr. Smith's last line that he committed an act of contempt of court.

"I suggest" and "with respect" are, in this context, meaningless pieces of fluff, because what immediately followed was a juvenile, personal insult.

One wonders just what sounds there were in the courtroom between the delivery of the one-liner and the judge's direction for Mr. Smith to "proceed." I'm hoping there was shocked silence; I'm hoping that on the following page of the transcript, were it readily available, we'd see that Mr. Smith's very next words were a heartfelt apology. It appears that this real-life judge did not do what a David Kelley judge would have done, though, which would have been to have the bailiff cuff Mr. Smith and trundle him down to a dingy holding cell until after the commercial break. Instead, she apparently issued a notification for Mr. Smith to appear for a separate hearing — one that's likely to be tense, icy-calm, and very polite — to show cause why he ought not be suspended from further practice before that particular court.

Mr. Smith is from Chicago, and this hearing was in Florida; although not admitted to the Florida bar, he was apparently appearing there pursuant to a common arrangement through which he was given special permission for purposes of that particular case. But even the revocation of such a "pro hac vice" appearance before a distant state's courts can — and should — have consequences in the lawyer's home state: The results of this hearing, if they're negative, will undoubtedly be transmitted back to the Illinois bar, and that could potentially put Mr. Smith's home-state license to practice, in both the state and federal court systems, at risk too.

Trial lawyers quite literally have to tell trial judges from time to time that they're wrong, and trial judges generally understand that necessity. We typically do that through respectful objections and other arguments, both oral and written. And if we don't point out a trial judge's errors to him during the trial — while he can still correct them — we run a severe risk of waiving our right to ever complain about those errors on appeal. Making your client's best pitch, and preserving his appellate rights, are all part and parcel of what we have to do on an every-day basis, but we're expected to do so without delivering explicit insults to the judge's intelligence, sanity, or reasoning powers.

Very, very rarely — and hopefully with great solemnity, forethought, and examination of alternatives — a lawyer's legitimate performance of his sworn duty may require him to engage in conduct that some  particular judge, perhaps in error, believes to be contemptuous. (And yes, if you infer from that wording that I have a personal war story to tell, in some other post, on that subject, you'd be correct.) But I cannot conceive of circumstances that would justify this particularly flippant sort of insult. Indeed, if the judge was in error, and if it was a particularly grave and important error, that's all the more reason not to start into a Don Rickles impersonation.


Let me be very clear: despite the title of this post, I don't blame David Kelley for Mr. Smith's stunt, nor even for whatever gradual erosion his various TV series may have caused to the public perception of lawyers' ethics. He's peddling fiction, clearly labeled as such; and arguably his shows have been a net plus for the profession and for the public understanding of law and the legal system overall. Even though shows like "Boston Legal" consistently portray fictional lawyers misbehaving without consequence in fictional courts, that is no excuse whatsoever for real-world lawyers to misbehave in real-world courts. We must know better; and those among us who've become judges owe it to themselves, to the profession, and to the public to sharply rebuke those few who think themselves entitled to behave in real courtrooms like Alan Shore behaves in TV courtrooms.

I don't know how this particular episode will turn out, but Mr. Smith ought to be glad I'm not on an Illinois bar committee reviewing his license. I'm a traditionalist and a curmudgeon, but just based upon this transcript excerpt, I'd likely start off thinking along the lines of a ninety-day license suspension, then maybe dialing that up or down depending on the remaining circumstances (and in particular, the degree of contrition expressed). I'd also be inclined to specify some onerous and creative public service requirements for Mr. Smith's path back to practice, along these lines:

"Go buy the last season's DVDs from 'Boston Legal,' Mr. Smith, and review every episode to find every instance of even arguable lack of respect for the courts fictionally portrayed therein. For each such instance, write a complete analysis, including what punishment you think ought to have been administered, if any, to the offending lawyer(s). After submitting your collected results to this committee for our review and approval, you'll then spend 200 hours as a volunteer, speaking at any public or private high school that will permit you to do so, about careers in the law in general, about your own circumstances and the results of your TV research, and then in particular about how current popular media may be misleading the public as to what standards for ethical behavior are (and should be) still enforced in the real world."


UPDATE (Thu May 31 @ wee-small-hours): I just finished watching, via TiVo, the last episode of "Boston Legal" for this season, which ends with this exchange over cigars on the balcony:

ALAN: Does it bother you that we suborned perjury?

DENNY: Not a bit. You?

ALAN: Not really. I believe they're [i.e., the clients we've just gotten off are] innocent....

DENNY: To next season, my friend.

ALAN: I can't wait to see what we do next!

Kelley's scripts increasingly include these self-aware moments in which his actors "break down the fourth wall," and I suppose that's a good thing — especially when, as here, the characters they're playing have just done something totally beyond the pale. I suppose it's sort of like a broad wink from Kelley to the audience.

The problem, though, is that some significant portion of the audience won't catch the wink, and will blithely conclude that yes, indeed, criminal defense lawyers deliberately, knowingly, and unambiguously suborn perjury whenever it suits them, and then suffer no worse consequences than the cigar ashes that soil Denny Crane's trousers (if he's remembered them) while he and Alan Shore celebrate their latest victory. Next season may bring Denny deliberately murdering inconvenient witnesses, and Alan defending him on grounds that his Mad Cow disease was really the fault of the Bush Administration's mishandling of the pet food recall.

And some people will believe that, too.

Yes, I'll probably still watch next season too. But I'll feel increasingly guilty about it, I suspect, and — with apologies for the cliché — I'll remember this episode as the series' quadruple sumersault jumping of the shark.

P.S. (Thu May 31 @ 11:30am): Much more context about the "Happy Meal" insult in this Law.com report, which also reveals that attorney Smith's corporate client has now — unsurprisingly and quite appropriately — fired him, and that his law firm is making appropriately subdued noises. And there's another blog post about the incident, this one from Prof. Jonathan Adler, along with some impassioned and widely varying comments, over at The Volokh Conspiracy.

Posted by Beldar at 06:24 AM in Law (2007) | Permalink | Comments (17)

Saturday, May 19, 2007

McCain owes an apology Beldar opposes McCain's bid for GOP nomination

Mccain_nyp U.S. Senator John Cornyn (R-TX)'s skepticism about the pending "comprehensive immigration reform" legislation (a/k/a McCain-Kennedy) very closely mirrors my own and also, I believe, that of a good-sized majority of his other constituents in this largest Republican border state. As far as I'm concerned, Sen. Cornyn's earning his salary, and my vote if he runs for re-election, by voicing some very legitimate concerns over that proposed legislation.

So I take a quite bit of derivative personal offense when another senator — especially one from another Republican border state, and most especially from a senator who ought to be on best behavior lest his presidential campaign self-destruct over longstanding (and well-justified) "temperament issues" —  shouts "F**k you!" at Sen. Cornyn for representing me effectively:

Presidential hopeful John McCain - who has been dogged for years by questions about his volcanic temper - erupted in an angry, profanity-laced tirade at a fellow Republican senator, sources told The Post yesterday.

In a heated dispute over immigration-law overhaul, McCain screamed, "F- - - you!" at Texas Sen. John Cornyn, who had been raising concerns about the legislation.

"This is chickens- - - - stuff," McCain snapped at Cornyn, according to several people in the room off the Senate floor Thursday. "You've always been against this bill, and you're just trying to derail it."

Surprised by McCain's foul-mouthed broadside, Cornyn told him he was "out of line."

This isn't just an example of the New York Post blowing stuff out of proportion. Essentially the same story is reported by the WaPo (here   and here) and Fox News (via Allah on HotAir), too.

McCain's camp denied that he claimed superior knowledge of the bill but acknowledged that the two Republicans went at it. "These negotiations can be very tense, and there was a spirited exchange. That's it," said Brian Jones, McCain's presidential campaign spokesman.

Yeah, right. Is there supposed to be an excuse in there somewhere? Or is it the position of Sen. McCain that shouting "F*** you!" at a fellow senator in a crowded Senate meeting room is acceptable behavior?

It is emphatically not acceptable behavior. Sen. McCain owes Sen. Cornyn — and frankly, Sen. Cornyn's constituents, and his own — an immediate and unstinting public apology. Sen. McCain claims that this draft legislation is a "textbook example of how the congressional process was designed to work," but his own conduct is a textbook example of immature and irresponsible pique — ill-fitting a U.S. senator, and incomprehensibly inappropriate for a would-be U.S. president. He should be ashamed.


UPDATE (Sat May 19 @ 3:30pm): Prof. Althouse (h/t InstaPundit) has a contrary opinion:

This strikes me as babyish tattling. I want a President who says "f*ck you" and calls things that are chickens**t "chickens**t." Not where the kids can hear him, of course. But this was a closed meeting and Cornyn was apparently trying to disqualify his opinion because he dares to go off and run for President. McCain was entitled to push back. I say it's nothing.

I do not want an American president who cannot restrain himself from shouting "F*** you!" at his peers. Losing one's temper to the point of shouting profanity in the workplace is not something to encourage or trivialize in general. But doing so when one is in a job or profession or position that's supposed to involve dignity and sound judgment demonstrates a lack of dignity and a lack of judgment. I don't know Prof. Althouse personally, but it would surprise me if she shouts "F*** you!" at faculty colleagues, or would think "it's nothing" if they regularly did so at her.

Prof. Reynold's linking post to Prof. Althouse's opinion is titled "MCCAIN TALKS TOUGH, and that's okay." Well, sure, tough talk is sometimes actually vital. But this isn't "tough talk," it's rude talk. Private rude talk is one thing; even public rude talk may sometimes be excusable, depending on just how rude and what the circumstances are — but in these circumstances, it wasn't. I'm surprised that neither Sen. McCain, Prof. Althouse nor, apparently, Prof. Reynolds seem able to draw that simple, but very important, distinction.

I'm far less worried about McCain using this language "where the kids can hear him" than I am "where people actively interested in the business of the U.S. Senate can hear him"! Certainly all four of my teenagers have known these words for years and years, but they, at least, have the maturity to know when they ought not be used and the self-control to restrain their actions accordingly. I'm not worried that they'll be corrupted by McCain's profanity; rather, I'm worried that they'll lose respect for our national institutions and national leaders because someone like McCain seems to feel free to behave himself like a drunken hockey fan while on the job in the Capitol Building.


UPDATE (Sun May 21 @ 3:45pm): Prof. Althouse was gracious enough to leave an answer to a question — "How many times, Prof. Althouse, have you shouted "F*** you!" at a colleague with whom you disagreed in a meeting?" — that I left in her comments (ellipsis hers):

Never. But I'm amongst mild-mannered academics where repression and passive aggression prevails... and it's NOT pretty. The world of active politicians is very different.

I don't doubt her characterization of law school faculties as being bastions of passive-aggression, but I don't recall many of my own profs as having been repressed or mild-mannered. In any event, what would be aberrant, uncivil behavior at Wisconsin Law School ought certainly be considered the same within the chambers of what's supposed to be "the World's Greatest Deliberative Body."


UPDATE (Sun May 21 @ 4:45pm): Scott Johnson at PowerLine has a whole lot more about the background of McCain's outburst, and if his sources are accurate, McCain's misbehavior was far worse than previously revealed. Supposedly McCain was worried that delays during a Friday morning meeting to finalize the language of the immigration bill might cause him to miss a scheduled 1:30 p.m. press conference, at which he badly wanted to appear — in between campaign fund-raising trips — to claim credit.

With a dozen Senators, two Cabinet members (Chertoff and Gutierrez) and perhaps 15 staffers in the room discussing an unpublished documents exceeding 300 pages in length, it was slow going. Senator Cornyn, tacitly supported by Sen. Jon Kyl, pushed hard to streamline legal procedures to allow prompt deportation of illegals. Senator Kennedy resisted.

As the clock moved closer to 1:30 p.m., Senator McCain suddenly lost it. "This is chickens***," he told Senator Cornyn. "I think it would expedite things if you would just leave the room, Senator, so we can get along with finishing this up." Senator Cornyn responded: "Wait a minute. We’ve been meeting for three months on this in good faith, and now you parachute in here this morning and tell me to leave? I think you’re out of line."

Senator McCain responded: "F*** you! I know what is going on here. I know more about immigration than anybody in this room!” Other Senators moved in to calm things down, and the talks went on.

So my senator can't even be in the room, much less debate policy, if it threatens to delay John McCain's photo op?

I believe this is the point at which lefty bloggers would begin screaming "John McCain is trying to disenfranchise me!" I'm not that hysterical (and they routinely stretch the concept of "enfranchisement" beyond recognition). I'm sure that in a calm moment, Sen. McCain would agree that the voters of the State of Texas are just as entitled to have their views represented as are the voters of the State of Arizona.

The problem is: How often does John McCain have calm moments any more?

I'm now at the point where I'm obliged to say, per the just-revised heading to this post, that I've made a new personal decision. Previously, I haven't picked one candidate to formally support (mainly because I want to see if Fred Thompson enters the race). And in any event, my support or opposition to anyone is unlikely to much influence anyone's vote but my own. Nevertheless:

I now formally announce my opposition to John McCain's candidacy for the 2008 GOP presidential nomination. I would still probably hold my nose and vote for him in November 2008 if he became the GOP's nominee, because I don't believe in self-immolatory politics and the Democratic alternative will inevitably be worse on the issues most important to me. But I definitely do not want to see John McCain become the GOP nominee, and in the unlikely event that my vote still matters by the time of the Texas presidential primary elections, I'll definitely vote against him.

Some other bloggers, like Prof. Althouse, and some commenters here say this is a tempest in a teapot. I respectfully disagree. Character and temperament matter. His made him a war hero, for which he deserves respect, but they now make him an unattractive choice among the alternatives for the GOP nomination. I am convinced that the party and the nation can do much better.


UPDATE (Sun May 21 @ 9:45pm): In the comments below: Why this episode is not comparable to VPOTUS Cheney telling Sen. Leahy "go f*** yourself" on the Senate floor.

Posted by Beldar at 01:20 PM in 2008 Election, Politics (2007) | Permalink | Comments (34)

Wednesday, May 16, 2007

Post-second GOP debate notes

If "winning" means "making more progress than anyone else on stage toward becoming the GOP presidential nominee in 2008," then anyone who doubts that Rudy Guiliani won last night's debate is badly out of touch with reality.

One of the highlights of the debate came when Paul said the United States has been bombing Iraq for 10 years and doesn't understand how the Middle East operates.

"Right now, we're building an embassy in Iraq that is bigger than the Vatican. We're building 14 permanent bases. What would we say here if China was doing this in our country or in the Gulf of Mexico? We would be objecting," Paul said in explaining his opposition to going to war in Iraq.

"They are delighted that we're over there because Usama bin Laden has said, 'I'm glad you're over on our sand because we can target you so much easier.' They have already now since that time they've killed 3,400 of our men and I don't think it was necessary," he continued.

"That's really an extraordinary statement," Giuliani said, interrupting FOX News panelist Wendell Goler. "That's really an extraordinary statement, as someone who lived through the attack of Sept. 11, that we invited the attack because we were attacking Iraq. I don't think I have ever heard that before and I have heard some pretty absurd explanations for Sept. 11. I would ask the congressman withdraw that comment and tell us that he didn't really mean that."

Paul did not, eliciting a flurry of candidates seeking to get their 30 seconds to rebut him.

Ron Paul's lunacy (video here) was offensive and insulting, but eight other guys who'd like to be president stood there silently wondering whether they'd get a chance to respond, and if so, exactly how they'd phrase it. Giuliani didn't quite interrupt Paul's nutcase rant, but the very instant Paul finished — within milliseconds — Giuliani seized the floor to administer a well-deserved verbal spanking. It wasn't his turn. And his request to "make a comment about that" wasn't really a request, but just a brief half-apology for the fact that he was about to deliberately flout the normal debate format, pretty much regardless of what the moderators or anyone else had to say about who spoke next.

If you had eyes to see and ears to hear, you could tell that Rudy Giuliani simply could no longer stand silent on the same stage with a barking moonbat who blamed America for 9/11 — not even for another ten seconds, and certainly not until it was his next turn to talk. You don't see many "looks that could kill" on the stage of a presidential debate, but Giuliani's eyes — in contravention of Rosie O'Donnell physics — could absolutely have melted steel.

Mitt Romney's performance was otherwise pretty good last night, but the single moment I liked him the least was when he was pleading, "Let us all have 30 seconds to respond to that!" just before Wendell Goler abruptly changed the subject. Romney's plea came across as political calculation, a recognition that Giuliani had just scored a huge point — and of course, from a fairness analysis, Romney was absolutely right. What Giuliani did — grabbing the stage, making his point in a voice that would have caused even Chris Matthews to soil his pants rather than interrupt — was completely unfair, in terms of political niceties and good sportsmanship. And if it had come across as being a calculated political maneuver by Giuliani ("Hmm, wonder if I'll lose more votes by breaking the debate rules than I'll gain by flexing my anti-terrorism muscles? Gee, I wish we had focus-grouped this ...."), then Giuliani's rudeness might have ended up hurting him.

But it didn't come across as calculated. Giuliani's outburst came across as barely controlled outrage, combined with absolute and on-the-spot decisiveness. It came across as "I'm not going to even pretend to listen politely to that sort of crap, Congressman — not after having to breathe in smoky particles from the untimely corpses of 2752 of my constituents on that day." And just as the stunned, then suddenly gratified studio audience roared its approval, some few millions of Republican viewers watching this silly debate pumped their fists in the air and said, "Damned right, Rudy, damned right!"

I'm certainly not saying Giuliani wrapped up the nomination, nor even that this was a defining moment in the overall campaign. Fer pete's sake, we still don't even know for sure who all of the serious Republican candidates will be — although we certainly now know seven of them who were on that stage tonight who are not serious candidates. But nothing else that was said or done in this particular debate was remotely as important, or as revealing, as that one uncalculated outburst.

Can you remember how, in the fall of 2004, we were all holding our breath wondering if there would be another major domestic terror attack before the election? A near-miss, like the recent arrests at Fort Dix, grabs attention from those of us who are still sensitized, but that's an ever-decreasing number. In watching all this early campaigning for the 2008 election, though, I continually remind myself that a successful domestic terrorist attack — even if on the scale of the London or Madrid attacks instead of on the scale of 9/11 — could change everything for both political parties, and for every electoral race (not just the presidency), in a heartbeat. My continuing dread of such a wrenching change, plus the number of people across the political spectrum who seem to have returned to a pre-9/11 mentality, gives all of these proceedings an air of unreality to me — an air that is rarely pierced. What made Giuliani's outburst last night so significant, so electric, was that it reached out and yanked hard on those us who still "get" 9/11.

Secondary observations:

  • Major props to Fox News, whose handling of this debate was as professional, in the very best journalistic sense of that word, as MSNBC's handling of the previous one was amateurish.
  • Mitt Romney's second-worse moment was the "blue suit/black suit" analogy. It was weak to begin with, but Mitt already looks like he may have indeed spent too much time agonizing over blue suit/black suit decisions. He has to avoid obviously phony ploys like claiming to be a life-long hunter, and Mitt will never be Bubba, but he needs to avoid coming across as a metrosexual.
  • Romney's most effective moment — in terms of landing a solid blow on an opponent — was this line: "My fear is that McCain-Kennedy would do to immigration what McCain-Feingold has done to campaign finance and money in politics, and that’s bad." McCain snarled back with comments to the effect that Romney is a flip-flopper, but in defending himself on the substance of those issues, and in his idealistic but pre-9/11esque answers on the "enhanced interrogation" questions, I'm convinced that McCain hurt himself. Earth to Sen. McCain: Al-Qaeda is considerably less restrained by American self-restraint than even the North Vietnamese who tortured you were; if we're ever in a war against Belgium, we can reconsider those concerns. I'm now convinced that the chances of McCain winning the nomination are slim and none.
  • One function of these debates is identifying potential vice presidential nominees. If Arkansas had more electoral votes and if it were less likely that Hillary Clinton would be the Democratic nominee than it is, Mike Huckabee might be making progress in that regard. But it doesn't, and she still is, so he isn't a likely Veep choice for anyone. Nevertheless, the "beauty shop" line — in particular, the calculated choice of the term "beauty shop" instead of "barber" or "hair salon" or whatever — was just deliciously wicked. (I hope he asked forgiveness in his prayers last night, though, for his obvious lie after the debate when he denied that that was a pre-planned line.)
  • This video of non-debate participant Fred Thompson — especially the cigar — is equally as wicked, if you haven't seen it already. And check the time-stamp on this bit of online punditry published under the Thompson moniker. By contrast: What buzz did Newt get yesterday? If there was any, I missed it.

Big picture: I'm still leaning toward a remake repeat of the 1980 campaign, but with the Big-Papa Movie Star role going to Fred Thompson and the button-down Establishment CEO/Administrator role going to Romney (replacing, respectively, Reagan and G.H.W. Bush). And I want them to pre-announce some cabinet spots, to get the full benefit of bringing a "fresh team" while (selectively) reassuring voters of some continuity: Giuliani at Homeland Security, for example, and Ted Olson at Justice, but Rice (again) at State. Find a spot for Michael Steele, maybe Huckabee, and maybe Jeb Bush somewhere. Double-down by re-appointing Gates at Defense. Who else?

Posted by Beldar at 06:54 AM in 2008 Election | Permalink | Comments (8)

Thursday, May 03, 2007

Post-first GOP debate notes

It's obligatory — I distinctly recall reading it in the "Conservative Blogger E.U.L.A." — that I comment on tonight's debate among declared candidates for the Republican Party's presidential nomination.

  • I am highly confident that over 90% of all viewers who cast ballots for a Republican candidate within the last 30 years will all agree on one thing in particular about this debate: To call Chris Matthews a "total bozo" is an entirely inadequate insult for him, but a vicious slur against clowns throughout world history.
  • Neither Romney, Giuliani, nor McCain shot himself in the foot in any significant way, but as the least well-known of the three, Romney probably accomplished more than the other two.
  • This debate would have been more than twice as interesting if half as many candidates had appeared. Five should be the absolute outside limit. Thirty days ago, they should have mailed write-in ballots to each of the delegates from the last national party convention. Then they should have offered the top five vote-getters — whether they've declared themselves as candidates or not — slots in this debate. (Rinse and repeat about once every three months.) If one of the top five declines, don't add the sixth; just go with four.
  • I doubt that Fred Thompson was much intimidated by watching this.

Posted by Beldar at 10:11 PM in 2008 Election | Permalink | Comments (2)