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Tuesday, July 31, 2007

Beldar on AG-AG

A fellow attorney, good friend, razor wit and intellect, committed Democrat, and thus frequent informal debating partner — one of the three lunch companions I wrote about in April, when he and I and a couple of other friends hazarded our predictions for the two major parties' 2008 presidential and vice presidential tickets — left the following comment for me this week on another post:

Beldar, I sense a groundswell. Your loyal readers demand to know what you think of the Fredo Gonzales mêlée. Is it perjury, political posturing, or both? What say you?

BTW, we're still very much on track for a Giuliani/Frist ticket in '08.

In reverse order: I think Giuliani is still quite possibly going to be the GOP nominee, but the main change since April is that I'm more certain that McCain won't be. I'm still sticking to my Thompson/Romney prediction, though, at least for now. And I continue to think Frist would bring little besides a theoretical and entirely unnecessary geographic balance to a Guiliani-headed ticket.

I have never written much about Attorney General Alberto R. Gonzales here. If you were to draw an inference from that, you'd probably be at least partly right, but probably only partly.


Attorney General Gonzales and I have some mutual friends at his former law firm, Houston-based Vinson & Elkins, and he and I were rough contemporaries as Houston lawyers at cross-town rival firms in the 1980s and early 1990s. But our practice areas did not overlap, and I never encountered him while he was in private practice. His Hispanic heritage may have made a few preferences available to him that plain old Albert Smith might not have gotten, but I'm relatively certain that on balance, those were far more than outweighed by lingering prejudices that he had to overcome. Beyond what I know or can infer from our common experiences, most of what I know about him comes from reading about him in his various public roles — as Texas Secretary of State, as an associate justice of the Texas Supreme Court, and as a lawyer and adviser in various capacities for first Governor and then President George W. Bush.

Essentially all observers would agree that Dubya values loyalty very highly, and most observers would agree that most of the time, Dubya returns loyalty to those who've been fiercely loyal to him. That AG-AG has generated that loyalty, and that he has maintained it over so many years and through so many different positions, is a remarkable accomplishment in and of itself. Whether, politically speaking, you are a friend or foe of the current occupant of the Oval Office, I think that any thoughtful American has to acknowledge that it is a rare and noteworthy thing to have inspired such long-lasting confidence and trust from any American president.

Nor can anyone plausibly deny that Mr. Gonzales is genuinely motivated by a desire to render public service. He's left quite literally millions of dollars of partnership earnings from Vinson & Elkins behind in exchange for roles with no job security and, quite often, very little visible power. By no one's definition is he a power-monger or an empire-builder. He's undertaken very hard jobs in very difficult times, and for the past several months he's been the Democrats' favorite bogey man and punching bag — to the point that they've virtually canonized John Ashcroft, who was AG-AG's predecessor both as Attorney General and as punching bag/bogey man.

Vast amounts of Alberto Gonzales' public service — all but the tip of the iceberg of it — have taken place out of public sight, and indeed, out of sight of high-placed observers. I place almost no trust in tales from leakers, but even the senior-most of them, or those journalists given privileged temporary seats near the workings of power, aren't truly positioned to assess the relative value, or lack thereof, of his advice and counsel and assistance to his principal, George W. Bush. Cabinet officers traditionally say, when asked if they plan to resign, that they serve "at the pleasure of the president." That is not an empty formal statement, but the quite literal and encompassing truth. And I genuinely respect and support the system by which 62 million popular votes and 286 electoral votes gave Dubya the authority to decide, subject to non-revocable Senate consent, who ought to be the Attorney General. Probably more than most pundits of either political persuasion, then, I genuinely mean it when I say that the fact that the POTUS hasn't fired him is a good and sufficient reason for AG-AG to continue as AG.

There is much about the man that I admire, and for which I think he gets insufficient credit.


Having written all that, and meant it, am I, personally, tickled pink with Alberto Gonzales' tenure and performance specifically as Attorney General of the United States? No, I'm not; to the contrary, I'm disappointed.

Perhaps because I'm a lawyer, my expectations for the holder of that cabinet post may be quite different than President Bush's. There are certainly other executive departments of comparable cosmic importance. Especially at times like the present, when we are at war or immersed in its functional equivalence, State and Defense and, now, Homeland Security are awfully important; Treasury is always important, if mystical; and none of the other departments are unimportant. And I'd have a hard time saying what makes, for example, a really first-rate Secretary of Transportation or Labor or Agriculture. But I have some affirmative expectations of U.S. Attorneys General, and some negative expectations as well.

Affirmatively, I expect a U.S. Attorney General to be a competent manager and CEO — the executive head of what effectively amounts to the world's oldest, largest, and by far most important law firm, serving the world's most powerful and needy client. The Department of Justice has enormous institutional momentum and tradition, and historically it has attracted some of the most talented and dedicated lawyers our nation could produce. I'm concerned that the recent recruitment and retention and promotion of talent from top to bottom in the DoJ may have suffered. But I confess that I lack the appropriate perspective and detailed information to draw confident conclusions about that. Let me just say that if AG Gonzales has been a brilliant and inspiring administrative leader, I'm unaware of evidence to show that.

Affirmatively, I also expect an Attorney General to be a loyal and effective advocate for his principal, the Chief Executive. There is no doubt of AG-AG's loyalty, nor that the substance of what he's been pitching corresponds precisely with what the Administration wants its Attorney General to pitch. And he has been persistent; a thinner-skinned man would have never taken the job, given the hostility he faced at his confirmation hearings (ostensibly due to his work as White House Counsel).That he perseveres in it despite near-universal criticism and considerable calumny is proof of astonishing personal strength.

Nor can there be any doubt that because of those substantive positions, because of the degree of political acrimony, and because of the violent times we're in, it would be extraordinarily hard for anyone to be a thoroughly successful advocate for the Bush-43 Administration before Congress or the mainstream media. To take the simplest example: Congress is rarely, even in wartime, going to want to accept any Attorney General's pro-Executive views on the relative powers among the branches of government. But right now, when the political opposition is more universally characterized by its rabid, personal hatred of George W. Bush than any other attribute, no spokesman for the Administration is going to get many pats on the back and hearty thanks from the likes of Sens. Reid, Leahy, Schumer, Durbin, or Kennedy. The mainstream media, in turn, love nothing better than a good circus, relish poking any presidential administration in the eye with a sharp stick as often as possible, and have their own philosophical disagreements with, and reflexive hostility for, Dubya and his minions in particular.

Nevertheless: AG-AG has been a weak, wishy-washy, inconsistent, stumbling, uncharismatic, inarticulate advocate. I know he has a lot on his plate. But every week, PBS and the commercial networks manage to pull talking head lawyers from the woodwork (well, actually, usually from the Reagan or Bush-41 Administrations) who do a far better job of articulating the Bush-43 Administration's case than it has done for itself. And I watched Fox News' Chris Wallace absolutely tongue-tie and humiliate Russ Feingold last Sunday morning, for example, on whether the Dems have any evidence at all to support the notion that some crime was committed in connection with the firings of the U.S. Attorneys. It's not like the Administration's opponents are intellectual supermen, and it's not like there aren't holes in many of their arguments, and it's not like the Administration is without ammo. But it needs a big gun to fire back. And as a public advocate for the Administration and its policies, AG-AG has been a low-caliber pop-gun.

Worse, he's been a pop-gunner who has far too often shot himself in the foot — which leads me to my negative expectations for anyone holding the role of Attorney General. If you are unprepared, if you are inarticulate, and if you are inconsistent, then you cannot project the probity and integrity that ought to be the shining, obvious, and unquestionable attributes of the Attorney General of the United States. The job position demands an occupant who will not appear to be either a liar or a fool, especially in (but not limited to) his dealings with Congress and the press. For the last several months, AG-AG has fallen short of that standard. Now, I can understand that an old coot like Sen. Arlen Specter might get confused and think someone's been lying when he really hasn't been. But when non-mavericks with no bone to pick like Sen. Jeff Sessions — himself once a prominent victim of a politicized bum rap, and one of the more astute questioners and oral advocates on the floor of the Senate or in committee — start voicing public doubts about you, then you are no longer even arguably serving as an effective advocate of the Administration of which you're a part.


Is Alberto M. Gonzales really a liar and a perjurer? Oh, please. John Hinderaker at Power Line — using as his primary factual source that bastion of conservatism, the New York Times — punctures that thin balloon here. (See also this post, which explains why the Power Line guys are less enthusiastic defenders of AG-AG than even I am, but why they still bother doing so; and this op-ed in the WaPo.)

Taking two steps back for perspective: This entire meme suffers very badly from the internal incongruity that has always affected the Hard Left in its relationship with George W. Bush and his minions: Either they're evil geniuses intent upon, and capable of, subverting the Rule of Law through their wicked schemes, or they're the Keystone Cops. But it's impossible for them to be both. By his own admission, AG-AG has made many mistakes and misstatements, and he's shown poor preparation and no polish. I'm sad to say that he's a Keystone Cop, and he's certainly fed his opponents massive amounts of ammunition as well as blowing off most of his own toes (pop-gun or not). The nature of the job requires him, or any Attorney General, to sometimes be less than forthcoming and perhaps even evasive. But I do think he's basically an honest Keystone Cop, to the extent a consistent tale can be assembled from his many lusterless performances as a congressional witness.

And here's the conclusion I'm most loathe to state, because it's the one that makes me the saddest: I don't think there would be any point at this juncture in replacing him, even though he's become a huge net negative for the Administration. Scanning the list of the 80 Attorneys General in the history of the United States, I don't see a single one whom I'm confident could thoroughly "rescue" this cabinet position for the balance of the Bush-43 Administration. It's unlikely, in fact, that Dubya could get a new AG confirmed who would be at all to his liking: He'd rather have someone loyal and ineffective, even if a negative on the Hill or with the media, than someone whom he doesn't trust and whose loyalty he can't count on to issue the orders that need to be issued day to day at the DoJ. And politically, he's already at rock bottom, so it's entirely possible that the Dems will overplay their hand in a way that would improve things for the Administration.

I think we're all pretty much stuck with AG-AG until January 2009 or the string breaks on his pop-gun.

Posted by Beldar at 05:55 PM in Law (2007), Politics (2007) | Permalink | Comments (10)

Friday, July 27, 2007

Army grounds immature "soldier-journalist" Beauchamp by taking away his toys

I've been following the story of Private Scott Thomas Beauchamp, of course, but mostly because I don't have any personal history in the military, I haven't felt like I had anything particularly interesting to contribute to the on-going discussion. Nevertheless, I simply want to highlight one paragraph from WaPo media reporter-extraordinaire Howard Kurtz' column today that pushed one of my laugh-out-loud buttons as a father of four teens (emphasis mine):

The [New Republic's] editor, Franklin Foer, disclosed in an interview that Beauchamp is married to a New Republic staffer, and that is "part of the reason why we found him to be a credible writer." Foer also said Beauchamp "has put himself in significant jeopardy" and "lost his lifeline to the rest of the world" because military officials have taken away his laptop, cellphone and e-mail privileges.

What Foer calls Beauchamp's "lifeline" is, of course, what Beauchamp may actually have already used to hang himself. I'm sure that Foer is correct in saying that Beauchamp has "put himself in significant jeopardy" with the Army, both formally and informally. And The New Republic and, presumably, his wife have been his eager enablers in that, albeit without directly sharing his risks. (They may, however, have their own.)

My guess — and it's a pretty wild one, much less well informed than any of the military bloggers who are watching this — is that the appropriate personnel in the First Infantry Division will fairly soon confirm that Beauchamp is guilty mostly of birthing execrable and quite literally incredible fiction in both prose and poetry. Very likely neither he nor his fellow soldiers did the bad acts about which he's written.

Once that's established, then — to the enormous credit of our military — there will be intelligent and passionate internal arguments over what punishment, if any, Beauchamp merits (beyond the scorn of every serious person, regardless of their politics). Our military leaders are still struggling to find the right balance in dealing with the new media age — a time when, for purposes of damage control during the assessment, taking away Beauchamp's cell phone and laptop may be more urgent than restricting him to quarters. I frankly don't have a firm opinion as to where they ought to come out in that balancing, either in general or, in particular, with respect to Beauchamp. (I do hope that if he continues trying to publish his writing, he will seek professional assistance, perhaps via the G.I. Bill, in obtaining some basic grammar, punctuation, and even capitalization training.)

But I'm glad he's been exposed, and I look forward to the rest of the truth coming out. In the meantime, all of my sympathies are — presumptively and probably permanently, or at least until I have better reason than the likes of Beauchamp's trashy writing to change my evaluation — with every member of the First Infantry Division except Scott Thomas Beauchamp. The Big Red One has certainly been made famous in not only news reports but in fictional (or fictionalized) print and film, but I don't think they've ever been quite so "fabled" as they are now, as a result of Beauchamp's smears. I believe they almost certainly deserve to be vindicated even from any whiff of "fake but accurate" that lingers about Beauchamp's shameful tall tales.

Posted by Beldar at 02:12 PM in Current Affairs, Global War on Terror, Mainstream Media, Weblogs | Permalink | Comments (11)

Tuesday, July 24, 2007

Why I think Obama won, and Hillary lost, the "YouTube" debate among the Democratic candidates

I watched most of the Democratic presidential candidates' debate on CNN tonight, the main point of which was to demonstrate, I think, that two guys from Tennessee wearing overalls and named Bubba and Dwayne can do at least as good a job of formulating questions for candidates as Chris Matthews. Two moments stood out for me, but I haven't read any other bloggers who've reacted to them in the same way I did, and at least one had a very different reaction to one sequence.


The first was in response to a question as to whether the candidates would be willing to forgo their salaries and work for only minimum wage if they were elected. Among the responses:

[CNN's Anderson] COOPER: Senator Dodd, would you work for the minimum wage?

DODD: I have two young daughters [and] I'm trying to educate them. I don't think I could live on the minimum wage, but I'm a strong advocate to seeing to it that we increase it at least to $9 or $10 to give people a chance out there to be able to provide for their families.

That seemed okay when he said it. But then, after both Edwards and Clinton gave short, affirmative responses to the question, Sen. Barack Obama weighed in (emphasis and bracketed portion mine, parentheticals in CNN's not-very-complete transcript):

OBAMA: Well, we can afford to work for the minimum wage because most folks on this stage have a lot of money. It's the folks ...

(APPLAUSE) [Dodd begins to interrupt, laughing, with a further objection, and camera switches back and forth between him and Obama]

... on that screen who deserve — you're doing all right, Chris, compared to, I promise you, the folks who are on that screen.



DODD: Not that well, I'll tell you, Barack.

OBAMA: I mean, we don't have -- we don't have Mitt Romney money, but...


But we could afford to do it for a few years. Most folks can't.

Now in fact, I'm perfectly willing to accept that Chris Dodd isn't a wealthy man and that he spends his salary as a Congressman on family expenses, including raising and educating his daughters. I think he was being nothing but truthful and straightforward in his response to the question. And as fat cats go, there were far richer targets on the stage all around him, certainly including Clinton and Edwards. But Dodd protesteth too much, and thus made himself the focus of Obama's comparison. And Dodd — silver-haired, prosperous looking, old, and translucently white-complected — looked at that moment exactly like a charicature of "politics as usual." (And, indeed, he is, even if he's not personally wealthy because of it.)

Obama was pointedly including himself among the "folks on this stage [who] have a lot of money," but he nevertheless used this question to set himself apart from the others and to align himself much more effectively with voters who care deeply about the minimum wage — which includes a whole lot of Democrats who are earning a whole lot more than the minimum wage. It was deft, and it was far more effective than John Edwards' blatant class-warfare "Two Americas" spiel.


Another question, addressed specifically to Sen. Clinton, was from a member of the military serving overseas:

QUESTION: Hello, my name is John McAlpin (ph). I'm a proud serving member of the United States military. I'm serving overseas.

This question is to Senator Hillary Clinton. The Arab states, Muslim nations, believe that women are second-class citizens. If you're president of the United States, how do you feel that you would even be taken seriously by these states in any kind of talks, negotiations, or any other diplomatic relations? I feel that is a legitimate question.

CLINTON: Thank you, John, and thank you for your service to our country.

You know, when I was first lady, I was privileged to represent our country in 82 countries. I have met with many officials in Arabic and Muslim countries. I have met with kings and presidents and prime ministers and sheiks and tribal leaders.

And certainly, in the last years during my time in the Senate, I have had many high-level meetings with presidents and prime ministers in Iraq, Afghanistan, Kuwait, Pakistan and many other countries.

I believe that there isn't much doubt in anyone's mind that I can be taken seriously.


I believe that other countries have had women presidents and women prime ministers. There are several serving now — in Germany, in Chile, in Liberia and elsewhere — and I have noticed that their compatriots on the world stage certainly take them seriously.

I think that it is...


CLINTON: It would be quite appropriate to have a woman president deal with the Arab and Muslim countries on behalf of the United States of America.


I absolutely agree that this was a legitimate question — and it's not a sexist one, even though it's a question about sexism. It was therefore entirely appropriate that Sen. Clinton try to answer it directly, rather than bristling at the fact that it was asked.

That said, however, in contrast to Prof. Althouse (see paragraph 19 of her post), I thought Hillary's answer was incredibly lame — and amazingly so, because you absolutely know that even if not many people have been gutsy enough to ask it this bluntly on the campaign trail, she must have been fielding this exact question and variations on it for months, even for years, in her debate preparations and focus groups.

Starting with a reference to visits she made as First Lady is, I am convinced, a careless use of that double-edged sword. None of those visits she made as First Lady were anything more than ceremonial. I don't doubt for a minute that during the Clinton-42 Administration, Hillary had enormous practical power; but it was mostly hidden after the health-care reform debacle, and it wasn't in an out-front role on foreign policy.

More significantly, though, referring to her history as First Lady in this context is entirely inconsistent with the message she ostensibly ought to be trying to give, which is that any female American President could and would and should be taken seriously by the rest of the world, including the sexists heads of other countries, precisely because she's the President of the United States of America! (Cue that vulgar but apt Track No. 3 from the South Park "Team America" movie!) And by failing to say all of that, or any of that, in so many words, she missed a huge opportunity to score points with American voters, of both genders, who are committed to the idea of gender equality.

If one is going to cite examples of notable national leaders who were effective notwithstanding their lack of a Y-chromosome, then then screamingly obvious example is former British Prime Minister Margaret ("The Iron Lady") Thatcher, followed (equally obviously) by Golda Meir and Indira Gandhi. Babbling about little-known women heads of state from Germany, Chile, or Liberia — Liberia?!? — cuts against her case, since none of those countries, whether headed by a male or a female, is going to be perceived by American voters as having a role remotely comparable to that of the United States in world affairs. For that matter, although Madeline Albright is despised (and rightly so) by conservatives, she's still a good Clintonista, and Hillary could have pointed out that both Albright and now Condi Rice have been the United States' top representatives to foreign governments for most of the last two decades, with neither of them having been obviously hindered by their gender.

Ultimately, Hillary took the question as being mostly about her personally, and what her answer boiled down to was her assertion that "there isn't much doubt in anyone's mind that I can be taken seriously." And that actually may be true, or partly true, at least with respect to at least some foreign leaders. An even more honest answer would have been: "Look, I'm renowned not only in the U.S. but across the world for my capacity to be vengeful, aggressive, brutal, and ruthless, and I'm already about ten times as intimidating to any foreign despot as John Edwards could be even if he shaved his head and got some tattoos." That's the kind of truthful answer she has to limit to the subtext, though, I guess. Her actual ending note — a variation on "that'll show 'em!" — is, of course, exactly the kind of stick-in-the-eye diplomacy of which she claims the Bush-43 Administration is endlessly guilty.

This was a question that begged for a thoughtful, articulate statement of principles. There are so many things she could have said about how we must not abandon our values just to gratify those cultures and countries who don't yet embrace sexual equality. This question was a medium-speed fastball right over the center of the plate — and she laid down a not-so-good bunt with it.


For most of the rest of the debate, Obama looked and sounded inexperienced, and Hillary played it safe. And by the conventional wisdom, on the scorecards of most political pundits, that means "Hillary won." But those two moments illustrate why I continue to believe that when the battle moves outside the realm of pundits, and when one escapes the cautious dynamics of the political movers and shakers and instead gets out among the actual primary voters, Obama is going to eventually kick her butt. Her implacable opponents from the Hard Left will unite with those who ignore Obama's lack of experience but ignite in the presence of his charisma. And that will give him, I still predict, the Democratic nomination, no matter what today's polls say.

Posted by Beldar at 01:32 AM in 2008 Election, Politics (2007) | Permalink | Comments (5)

Sunday, July 22, 2007

Beldar reviews J.K. Rowling's "Harry Potter and the Deathly Hallows"

"I couldn't put it down!" is supposed to be high praise for a book. Since the spells and curses and other magic of J.K. Rowling's fantasy world in the "Harry Potter" series are imaginary, I could indeed put down the seventh and final book in the series, Harry Potter and the Deathly Hallows.

But I chose not to (except for one night's sleep, a couple of meals, and one trip outside the house to convey my older daughter from a friend's house back to her mom's). That was partly motivated by my promise to pass my pre-ordered copy along promptly to my kids, but it was mostly motivated just by the fun I was having in the reading of it.

(Very mild spoilers ahead.)

Nothing and no one is perfect, including Rowling's characters and including her writing about them. But I have been a fan of the series of novels, and of the series of movies made from the novels, and I had high expectations for this one. Those expectations were satisfied.

Rowling did a remarkable job of weaving together not only the characters from the preceding books, but their plot lines, places, devices, and themes. I'd re-read the first five books before the sixth was released, and I've seen all of the five movies so far (all but the most recent one, more than once), so I'd describe myself as fairly well-steeped in Potter lore. All that is to say, I'm probably very much the type of reader to whom Rowling particularly targeted this final book, because I was prepared to appreciate the degree to which she was able to pluck threads from the previous books and draw them forward into the weave of this one.

And yet, to the further credit of this book, it contains its own goodly share of newness. One of the challenges of writing this book, I think, was to avoid simply churning out seven hundred plus pages of gathering anticipation for the inevitable final show-down between Harry and Voldemort. And, to borrow an image from another fantasy classic, it would have been easy for the plot line of Deathly Hallows to become as tired and tedious and unrelenting as Frodo's last several dozen miles en route to Mt. Doom. Rowling mostly avoided that danger in this book through fresh plot twists and, to be blunt, a bloody willingness to kill off at least one decidedly nontrivial character long before the climactic last few chapters; that done, all the other characters seemed genuinely at risk.

Some of the critiques I've seen of this book are apt and obvious. Rowling doesn't do teen romance very convincingly, for example. But I don't think she set about to, and she nevertheless does it well enough that clunkers generally don't shock us out of our willing suspension of disbelief for the story as a whole. And I know there are already critics who're compiling, or adding to, lists of continuity errors, or particularly improbable or incongruous properties of her magical world. To which my reply is: Even that sort of criticism is a compliment, because it presumes that someone is enough drawn into Potterworld to care. And people generally don't, and oughtn't, read magic and fantasy books with the same degree of concern about magic technologies, if that term will do, as they may expect from science fiction.

In the broadest terms, the series works because the books led me to care about the characters and what happened to them, and the whole progression entertained me. That's usually all I'm looking for when I plunk down the cash for a book — I certainly wasn't expecting "deep and profound life-changing effects" from a book about magic-wielding teens — and I therefore don't regret a dime spent buying, or a minute spent reading, any of the Harry Potter books. I congratulate Ms. Rowling on a fitting conclusion to the series. And if her bank vault at Gringotts Wizarding Bank (or Barclays or NatWest) is now filled to overflowing with gold galleons and treasures, I'm perfectly fine with that too.

Posted by Beldar at 08:35 PM in Books | Permalink | Comments (1)

Saturday, July 21, 2007

Photos from a July 4th trip to my home town

During the week of July 4th, I visited my father in my home town, Lamesa (pop. ~10k) — situated roughly mid-way between Lubbock and Midland at the bottom of the Texas panhandle. Here are three fairly unexceptional cell-phone pix from the trip, but they perhaps reveal something about where and how I was reared, and by whom.

En route, I was surprised and fascinated to see several dozen enormous power-generation windmills scattered along the tops of mesas along U.S. 87, just north of Sterling City on the way toward Big Spring. I tried to also take some video, but in the low resolution, even what seemed to me to be a very, very slow and steady hand-held pan ended up being too blurred to make out the blades turning. That's a shame, because they were a much more impressive sight in motion:

Windmills between Sterling City and Big Spring, Texas

When I drove past them in the dark on the return trip, I wondered whether each blade tip would have a warning light for aircraft, or whether each tower would be topped with a strobe. Apparently not; but there were some sort of arrays of large red lights that I think were around the base of each windmill. And all of them — at all of the dozens of windmills that would have been in sight of each other during daylight — pulsed on and off rhythmically and simultaneously. I suppose from the air, it would still be an obvious and impressive warning for pilots at night.

This is a pretty good place for windmills, I'd guess. One clue as to the population density: There's no cell phone service, from any carrier, for miles and miles. In fact, across much of west Texas, including in Lamesa, my Verizon service was absent, but usually I could at least "roam" via some other carrier. Not here — neither in daytime hours or at night.

After I reached Lamesa, I read that a group of farmers and ranchers closer to my home town are in the preliminary negotiation stage to lease their land for more of these towers to an affiliate of Florida Power & Light. If there's any local opposition, that wasn't obvious from the news article in the Lamesa Press-Reporter, and I doubt there is any. Lamesa doesn't have much in common with Nantucket, and Ted Kennedy would neither feel much at home there nor, frankly, be very welcome. The wind turbines, with their lease fees and additions to the property tax rolls, are.


My home town's name is an anglicization of "la mesa," Spanish for "the table," and the picture just below, which I took at the far southwest corner of the town (looking toward the northwest), will give you a pretty good idea of the consistent local topography which inspired that name.

Cotton fields southwest of Lamesa, Texas

The dark green in the fields are long, straight rows of very sturdy young cotton plants, the growing of which is still the mainstay of the Dawson County economy. They were each less than six inches tall, and each about that broad across, and normally they'd have been taller and broader by July 4th, but they've been held back by above-average rains this year. If they get a long enough growing season, though, with plenty of long, hot, sunny days and without an early freeze or too much late-season rain, it might turn out to be a good year. Either way, by December these fields will be stripped brown and bare, and they'll be much more bleak looking.

If you turn 90 degrees from the spot that last photograph was taken and walk about a half-mile north-northeast, then not far inside the city limits, at 311 Skyline Drive, you'll see a genuine oasis:

Street view of the Dyer house at 311 Skyline Drive, Lamesa, Texas

Until I was about eight years old, the land shown in this third photograph looked exactly like the land shown in the second. In other words, it was just another cotton field on the edge of town, owned by my grandfather, and divided among my father and his three siblings upon my grandmother's death. My father, like his father, was more of a merchant than a land-owner or a farmer, and he took over his father's hardware store after the Navy returned him to civilian life in 1946. The store moved from hardware into home furnishings and appliances by the 1960s and 1970s, and during the week my father sold Zenith TVs and Maytag washing machines, Frigidaire refrigerators and Sealy mattresses. He was the mayor for a couple of years when I was a toddler, and he served another year as the president of the Chamber of Commerce; he was also on various other committees and commissions promoting highways and water development and the like, and he was a leader both locally and regionally in Boy Scouts and the Lions Club.

But my father is also a man who loves trees. And on the weekends when I was still young, he started planting them in a serious way, and pursuant to a serious plan. Pecan, peach, apple, plum, oak, maple, cedar, and others — over the course of about ten or twelve years, he dug the holes for each of the saplings with a shovel, and he mounded the dirt beds partly with a hoe and partly by hand. My job during many of those years was to spend the required hours standing with a water hose, slowly filling up each bed and then moving to the next tree in the row, then the next row and the next.

Here's a photo not mine — from Google's satellite map images. I've marked the larger property in a yellow rectangle, and you can see the heavily treed portion as a dark green rectangle in its bottom left quarter. The points from which my two photos were taken are marked with red dots.

Southwest corner of Lamesa, Texas, marked to show Dyer property

Eventually, in the late 1970s (while I was in college), my dad and step-mom built their dream-house amidst those trees, on a spot that my dad had penciled into the plan from the beginning. You can't really see the house from the road, and that was very much his intention. It's a nice house, although it's far from the biggest or the fanciest in town. But there aren't many houses inside the city limits of Lamesa, Texas, that are completely blocked from view from the road just by trees, so that makes it pretty special.

And the inferences you'd probably naturally draw about my dad, just from comparing the second and third photographs here, and without reading anything else I've written about him in this post or elsewhere on my blog — well, then, you'd probably be mostly correct in those. These trees can tell you a lot about my dad if you also value trees. And if you can see flat, empty land, and have the vision to imagine it transformed. And if, whether you have it yourself or not, you can appreciate the patience required to see that through. Every time I drive to Lamesa, those trees remind me of things about my dad that I've never forgotten, but that I'm nonetheless glad to hear from them again.

Posted by Beldar at 06:29 PM in Family | Permalink | Comments (8)

A large owl just flew in my window ...

Well, actually, it wasn't an owl. But the postman did ring, and he handed me a box that only a very large, perhaps even magical owl could have carried, within which was a book containing seven hundred and fifty-nine numbered text pages. Huzzah!

Expect my review of Harry Potter and the Deathly Hallows here in due course, keeping in mind that it will be written from my perspective as a charter member of the "Republicans for Voldemort" movement.


Posted by Beldar at 11:04 AM in Books | Permalink | Comments (0)

Thursday, July 19, 2007

Do the views of a tangential client who represented 0.5% of Fred Thompson's law practice over two years more than a decade and a half ago disqualify him from the Presidency?

I've been "of counsel" to a couple of law firms, and a partner in a couple of other much larger ones. I've never been a single-issue voter. 

But presumably, some theoretical slice of the potential electorate, large or small, is considering whether to disqualify Fred Thompson from their presidential consideration based on lobbying work he apparently did for an abortion rights group in 1991-1992 while he was "of counsel" to a Washington, D.C. law firm.

If you're trying to assess the relative importance of that three hours of active "lobbying," plus another seventeen or so hours of other consultation during a two-year period — work likely amounting to something like 0.075% and of 0.425% respectively of Thompson's total law practice over that two-year period fifteen years ago — then I'd like to share some of my perspectives.

As hills of beans go, this is a very, very short stack.


First, in thorough and long-winded Beldar style, the background. This story has been bouncing around the mainstream media and the blogosphere intermittently this month, with about half of the furor centering on whether and when Fred Thompson could have acted a part in a cowboy movie.

On July 7, the Los Angeles Times breathlessly reported that Judith DeSarno, then the Executive Director of the National Family Planning and Reproductive Health Association, reported having hired Thompson as a lobbyist in 1991, during the Bush-41 Administration, to advise and represent it in connection with the possible withdrawl or relaxation of a so-called "gag rule" that barred abortion counseling at clinics that received federal money. The LAT published a two-page .pdf file, the second page of which (italics mine) summarized Ms. DeSarno's as having told an NFPRHA board of directors meeting on September 14, 1991, that

Congress was continuing to move forward on legislation affecting the gag rule. The Senate had approved the Labor/HHS appropriations bill by a vote of 78 to 22 but with a parental notification for minors abortion amendment that was very troubling. The bill would now move to a House/Senate conference committee. Judy reported that the Association had hired Fred Thompson, Esq., as counsel to aid us in discussions with the Administration. Negotiations are in progress between Senator Chafee and the White House to try and reach a compromise on the HHS regulations. NFPRHA has played an active, if behind the scenes, part in the negotiations along with PPFA.

She noted that because of the gag rule she had concentrated most of her time on governmental relations. However, since the last board meeting, she [also did some other stuff, including yada yada] ....

I mean no disrespect to Ms. DeSarno in noting that during quarterly board meetings of the sort being reported here, paid executive staff for interest groups like this one are doing their dead-level best to, among other things, justify their salaries and their existence to the board members who hire and theoretically supervise them. In a Washington board meeting of a Washington-based national abortion rights lobbying group, then, it's entirely unsurprising to see that Ms. DeSarno, the group's executive director, claimed to have spent "most of her time on governmental relations" during the preceding calendar quarter.  But let us not therefore jump to the conclusion that she spent most of the preceding calendar quarter, or much of it, or more than a tiny, tiny fraction of it, in consultations with Fred Thompson, Esq.

Rather, this one-sentence reference in these minutes was most likely present as part of the predicate paperwork necessary for the association to eventually cut Thompson's firm, Arent Fox, a check for its fees in due course. Executive directors who report, "I spent the last calendar quarter with not a damn soul on Capitol Hill bothering to return my phone calls, and I couldn't even figure out what staffers had responsibility for the language in the new appropriations bill dealing with the gag rule," don't generate warm fuzzies for their constituencies, and neither are they likely to get salary or expense account increases. So it's also reasonable to infer that Ms. DeSarno — among the champions of a liberal cause during a conservative presidential administration — was reporting to her similarly liberal board members and fellow staffers about what were, in effect, outreach efforts to negotiate with their natural enemies.

To do that, she didn't need a true believer or even a convert. Oh, no! She instead needed a conservative pro-life Republican — one who could tell her about other conservative pro-life Republicans. She didn't need someone who would make outright converts on the Hill on the Association's; that simply wasn't doable, not by anyone. She needed someone who help get her names, phone numbers, and some background information — and who maybe, if she were lucky, could help get a few of her phone calls returned by people connected with the conservative pro-life Republican administration then in power.

I mean, hell, NFPRHA could get free advice and favors and introductions from pro-choice Democratic lawyers by the handfuls. They'd do backflips for NFPRHA simply in exchange for an additional line on their résumés when they made their applications to the next Democratic administration, whenever that was going to come around. So why would NFPRHA agree to pay out good money (that might otherwise go to, I dunno, say, executive staff salaries or bonuses or expenses) to hire someone who already agreed with them?

I therefore start off being pretty skeptical about the idea that NFPRHA hiring Thompson even indirectly supports an inference that he supported their goals.


Nevertheless, the story's latest resurrection comes from a report in today's NYT:

Billing records show that former Senator Fred Thompson spent nearly 20 hours working as a lobbyist on behalf of a group seeking to ease restrictive federal rules on abortion counseling in the 1990s, even though he recently said he did not recall doing any work for the organization.

According to records from Arent Fox, the law firm based in Washington where Mr. Thompson worked part-time from 1991 to 1994, he charged the organization, the National Family Planning and Reproductive Health Association, about $5,000 for work he did in 1991 and 1992. The records show that Mr. Thompson, a probable Republican candidate for president in 2008, spent much of that time in telephone conferences with the president of the group, and on three occasions he reported lobbying administration officials on its behalf....

The billing records from Arent Fox show that Mr. Thompson, who charged about $250 an hour, spoke 22 times with Judith DeSarno, who was then president of the family planning group. In addition, he lobbied “administration officials” for a total of 3.3 hours, the records show, although they do not specify which officials he met with or what was said.

So what should we make of this? The first question probably ought to be: How significant a part of Thompson's legal practice was this engagement?

Well, that's just a matter of doing the math. Most full-time lawyers shoot for 2000 recordable hours (not all of which may be "billable") every year (representing 50 weeks at 40 hours per). If so, then over two years of Thompson's practice in 1991 and 1992, the three hours of actual lobbying amounted to 0.075% of his practice (3/4000 = 0.00075). It might well take three hours of phone inquiries simply to find out who was actually "carrying the ball" on the respective House and Senate committee staffs and within the key Congressional leaders' offices, simply so that he could point Ms. DeSarno in the right direction — because it was she, after all, who was spending "most of her time" lobbying for this organization.

And recall, too, that in politics, the Association's natural enemies among conservative lawmakers would nevertheless want to know who was whom at the Association, and what they had planned, and what their liberal allies on the Democratic side of the aisle had planned. The only way you get information is by trading information. So in the nature of things, some of the time Thompson spent in active lobbying was probably actually being helpful to conservative pro-life Republicans, even though NFPRHA was paying him by the hour. That's just the nature of the beast.

Remember also that at this time, Thompson wasn't a former senator yet, nor a very likely prospective one. He was another lawyer, one who'd had important staff positions at important moments in Congressional history (e.g., during Watergate, when his questions triggered the revelation of the secret White House taping system that brought down the Nixon presidency), and who'd been in a handful of movies and TV shows. But most of his actual law practice was still back in Tennessee, and it wasn't related to lobbying at all. Nevertheless, his inside the Beltway history would mean that he had useful context and information to share with someone like Ms. DeSarno, whose own natural contacts didn't include the conservative Republican side. And as someone with more information than clout, it makes perfect sense that the vast majority of the time Thompson billed to this matter was not for lobbying, but for other consultation — most likely meaning, here, client education.

But even those hours of non-lobbying consultation — let's round them up to 17 — still would have constituted only 0.425% of Thompson's career efforts during those two years. So what's the one thing we can conclude with near certainty from the NYT story and the newly found billing records? The twenty-hour total altogether was likely no more than one-half of one percent (0.5%) of Thompson's total legal work over 1991-1992.

Quantum physics, rocket science, and difficult related mathematical computations (like fractions) being beyond the ken of the average NYT reporter or editor, this percentage figure is missing from the NYT story.


So how much, if anything, does that half of one percent tell us about Thompson's own views on the National Family Planning and Reproductive Health Association? Can we draw any inferences at all, from the fact that he did this work, that he was sympathetic with their goals?

And the answer to that is: No, it would be highly unfair and misleading to try to draw that inference.

Let's start with the proposition that in general, it's unreasonable and unfair to impute to a lawyer the beliefs or attributes of his clients. Sen. Thompson made this point well in an op-ed he published via PowerLine, and I've also chipped in to make the same point at my usual ponderous length and with a personal war story recently.

Some pundits have suggested that that rationale is less persuasive with respect to lobbying clients than with respect to regular clients, but they've got it exactly backwards. When a lawyer undertakes to represent a party in court, he incurs certain ethical obligations to the tribunal as part of that representation. He may not knowingly, for example, put his client (or any other witness) on the stand to adduce testimony that he knows to be perjured. Similarly, a lawyer arguing in court (or in court papers) may not make an assertion of fact without having a good-faith basis to believe that there's a factual underpinning for it, and he may not misstate the existing status of the law in an attempt to mislead the tribunal.

But if Fred Thompson "lobbied" some Capitol Hill staffer to return a phone call from Judy DeSarno at the NFPRHA, that doesn't include any express or implied endorsement, nor any vetting, of anything that Ms. DeSarno might claim or say. And in Washington, D.C. — where even people who aren't obviously identified as selling a viewpoint of a political interest group are conclusively presumed, until otherwise proven beyond a reasonable doubt, to be peddling some idea for somebody, an introduction, or even a summarization of someone's (decidedly unsworn) talking points, is just about the farthest thing in the world from a binding personal endorsement.


Some pundits will nevertheless sputter: But surely the fact that Thompson would align himself with this sort of client, even for purposes of transmitting viewpoints he disagrees with, says something important about him and his lack of principles! But that's also a bogus argument that flies in the face of both theory and the reality on the ground.

As for the theoretical:

Someone thoroughly versed in our system of government, someone thoroughly committed to the Rule of Law and the marketplace of ideas, would have no hesitation in introducing, and then facilitating discussions between, someone whose goals and beliefs he absolutely rejects (on the one hand), and someone whose goals and beliefs he absolutely shares (on the other).

The public image of lobbyists as handing out favors and bags of ill-concealed bribes is odious and hard to combat; but the practical reality is that without some level of civil discussion between sharply opposing interest groups, no compromises would ever be possible, and neither side could ever win in whole or part on anything because the entire system would grind to a halt. Facilitating that dialog — and helping each side understand who the players are on the other side, what their hot-buttons are, what their core values are, and where there is and is not potential ground for compromise — isn't a "sell-out" of either side's position, and instead renders both sides a genuine service.

As for the reality on the ground, can we conclude at least that Thompson was willing to get "in bed" with the abortion rights crowd, at least briefly, based on this engagement?

I don't think so. If Thompson wanted to have an office in Washington, he was going to have to display some flexibility. Being inflexible would have made him essentially worthless to anyone in that town, including not only existing major law firms but himself.

According to an American Spectator article, during 1991-1992,

Thompson, was "of counsel" at the Arent Fox law firm in Washington, D.C. (meaning he was not a partner, but was provided an office for his use, in part because Thompson's own practice was based in Nashville, TN), and was used by the firm's partners as a "draw" for clients and potential clients, according to a source at the firm familiar with the arrangements with Thompson and others with the "of counsel" designation.

"You'd get partners walking people into Thompson's office all the time, none of whom had any business dealings with Thompson, because he wasn't a partner with the firm," says the firm source. "But having Thompson there during a Republican administration helped with business."

Arent Fox is a well-known, heavily Democrat firm with strong ties to the Clinton administration.

The only part of this quote I'm at all skeptical of is whether it's fair to tag Arent Fox as "heavily Democrat." It may well be, but that's actually beside the point. I remember interviewing with Arent Fox when I was a law student at Texas Law School in the fall of 1978 because I was considering spending a summer in D.C. and it was one of the D.C.-based firms large and powerful enough to recruit nationally from schools like UT-Law. The partner who came down to recruit stressed their substantive law practice (mostly in antitrust, if I recall correctly), but also was frank about their lobbying. He told me, in effect, that part of what they and other Washington powerhouse firms offered was the certainty that year-in, year-out — and regardless of whether a Democratic or Republican administration was currently in power — someone at their firm would know someone on the Hill or at the White House who would have something to do with just about any issue then being debated in the federal government.

That's the context which explains this comment, from today's NYT story:

The family planning association became a client of Arent Fox through Michael Barnes, a former Democratic congressman who was then a partner at the firm. The firm’s current chairman, Marc Fleischaker, said, "Regardless of whatever the political ramifications are, Fred was being a good colleague by helping out one of the firm’s partners."

That's a polite way of saying, "You're no damned good to us or yourself if you are only willing to represent the people who are already your friends, and you're also no damned good to us or yourself if you're unwilling to even talk to your friends when the firm's busy representing their political enemies."

So why the reference by Mr. Fleischaker to former Democratic congressman Barnes? Because it's a crucial fact in assessing Thompson's responsibility — or the lack thereof — for this particular engagement. Being "of counsel" meant that Thompson — despite his seniority and prior experience in Washington, which is what made him valuable to the firm — was nothing more than an at-will employee at Arent Fox. He didn't own a piece of the firm; he didn't get a slice of the pie at year-end when the profits were divided; and he had no role whatsoever in any firm management decisions. Obviously, Barnes was the partner-rainmaker who brought the Association in as a client — not Thompson. Barnes was presumably in the NFPRHA's corner any time. And it would have been Barnes' role — not Thompson's, nor any other non-partner's role — to have said, either, "No, our firm is not going to take on this client," or "Nope, this may be a regular client but we're not going to take on this particular matter for them." Any associate or "of counsel" who regularly refused to assist in representing clients whom the partners (like ex-Democratic congressman Barnes) brought in would quickly find themselves unemployed and, in Washington, unemployable.

Indeed — and this will cause mutterings, I know, from those of you who believe that all legal fees are shocking and outrageous — but Thompson's $250 billing rate as reported by the NYT would have been very, very modest compared to rates of major D.C. law firm partners back in 1991-1992. Barnes' or any other partner's time would probably have cost the Association at least twice as much. At a firm like Arent Fox, it might have been quite important to the firm overall to maintain a stable of clients like the NFPRHA — simply because access to, and knowledge about, special interest groups is the flip side of access to, and knowledge about, people in government. But this particular engagement, generating a mere $5k in revenues over two years, would have been at best a footnote to a line entry at the bottom of an appendix to an addendum in a supplementary table contained in an index of the firm's finances, if that. "Drop in the bucket" would seriously overstate the financial importance of this kind of engagement, in and of itself. Much less would the revenues from this engagement get Fred a bonus or a corner office; it would kinda sorta help pay the cost of the electricity he used and the floor space his (likely temporary) office in Washington took up.


To the very, very limited extent that there's actually a "story" here, in my judgment it relates solely to whether the Thompson proto-campaign was slow-footed or lacked candor in reacting to this. As my blogospheric friend Patterico notes, the appearance now of the billing records directly contradicts something that the LAT reported from the campaign earlier this month:

Thompson spokesman Mark Corallo adamantly denied that Thompson worked for the family planning group. "Fred Thompson did not lobby for this group, period," he said in an e-mail.

In a telephone interview, he added: "There's no documents to prove it, there's no billing records, and Thompson says he has no recollection of it, says it didn't happen." In a separate interview, John H. Sununu, the White House official whom the family planning group wanted to contact, said he had no memory of the lobbying and doubted it took place.

But Patterico and others have, from time to time, found occasions in which the LAT has been, shall we say, less than scrupulous in matching up its purported quotes with their fair contexts. When Corallo spoke, he may have been under the genuine impression that no billing records existed, perhaps after making inquiry. Or perhaps he said, or meant to say, or should have said, in the follow-up telephone interview (a notorious source of misquotes and context slippage) that he hadn't yet been shown any bills (which NFPRHA presumably would have had, just like their meeting minutes) or billing records to that point.

If it was indeed White House Chief of Staff Sununu (now famous mostly as the misguided mouthpiece through which Warren Rudman inflicted David Souter on Bush-41 as a SCOTUS nominee) who was the focus of discussions when Corallo made the purported quotes, then in that context, there may still be no conflict today, even after the billing records have appeared, because they certainly don't seem to support any suggestion of active lobbying at anything remotely approaching that high a level. What struck Fred as "lobbying" when he was filling out billing records (if he's who filled them out, which is also just a guess) may be different, in other words, from what Corallo thought he was being asked about or intended to be speaking about a decade and a half later on the phone with the LAT.

However, even if we assume that the LAT was absolutely fair and scrupulous — and truthfully, I don't know of a single damned reason why we should so assume, but let's do so anyway, for purposes of argument — I tend to agree with Ed Morrissey and John Hinderaker that the appearance of the billing records and the NYT's new story is still much ado about nothing much more than a possible mistake or loose misstatement by an ill-informed or insufficiently careful campaign spokeman.

Bluntly: The notion that Fred himself has been engaged in some sort of cover-up or duplicity here is an absolute non-starter — even if you're among the small segment of the population who believes that his half-a-percent one-off representation of this abortion rights group a decade and a half ago somehow affects his current fitness to be President. [UPDATE (Thu Jul 19 @ 11:55am): I'm sorry to see James Joyner among those who seem awfully quick to claim that Thompson himself has told a deliberate "lie," and with due respect, I don't think he's made out a basis for that claim.)]

I'm not sure this hill is even one bean tall. Actually, I tend to doubt it.


UPDATE (Thu Jul 19 @ 1:15pm): From my continuing civil discussion with Dr. Joyner in his comments, this from me there:

"Lying" is a very, very serious accusation.

Yet you're making guesses based on press summaries of documents we haven't seen, based on NYT reporting about them (and we all know the NYT never makes mistakes?), and comparisons of those against a mish-mash of written and oral statements by the candidate and others in a variety of settings and contexts (again, assuming scrupulous and thorough reporting).

Even the records themselves don't necessarily provide conclusive answers. I don't hold law firm billing records in quite the same regard that I do gospel, because I know just how often they're screwed up, or compiled second-hand by a secretary or a paralegal making guesses from inconclusive source documents (rather than reflecting personal knowledge).

Some of the terminology here is also incredibly slippery. If the context of Corallo's follow-up phone call with the LAT, for example, was about "lobbying" Sununu or other top officials, then that's something that might well have been categorically denied, truthfully and in good faith, and after checking with the candidate and doing some due diligence.

And yet that might have happened without anyone ever wondering, "Hmm, did perhaps a phone call ever get made to the second assistant junior staffer to find out if the conference committee had transmitted back to the Senate subcommittee the minority report on the supplemental HHS appropriations bill as amended?" Yet exactly that sort of phone call might have ended up as a 0.1 hour entry in Thompson's scribbled work records as "TC lobbying."

This whole episode makes me strongly suspect people are talking past each other. I want to see the records, but producing them may involve privilege issues on which NFPRHA's cooperation might be needed, and they may have reasons to be horsey about that.

Posted by Beldar at 10:26 AM in 2008 Election, Law (2007), Mainstream Media, Politics (2007) | Permalink | Comments (5)

Wednesday, July 18, 2007

Beldar on Mark Levin on Hillary Clinton and Jeri Thompson

I can't listen to Mark Levin's radio show. Completely apart from content, his voice affects me like fingernails on a chalkboard. But completely apart from his voice, he's just been too over-the-top, pretty much all the times I've tried listening. Him screeching "I'm sick of ___" will cause me to turn off the radio, whatever he's got in that blank at the moment.

So it is, too, with this op-ed from Monday on NRO entitled "Hillary Clinton, Trophy Wife." In it, he catalogs and links left-leaning mainstream media sources, including some I hadn't previously seen, who've made mocking and belitting comments about former Sen. Fred Thompson's wife Jeri as being a "trophy wife." And I have no problem with his conclusion:

The Left likes to lecture us about sexism and gender discrimination. But when it comes to Republican women, they’re all for a glass ceiling. The truth is that if Jeri Thompson was the wife of a leading liberal Democrat candidate, or spent her life working for liberal causes, they would fall all over her with adulation. They’d fawn over her good looks, grace, and charm. They’d praise her for balancing family and public life. The age difference between Fred Thompson (64) and Jeri Thompson (40) would go unmentioned — as it has with Chris Dodd and his young wife. And in the case of JFK, his marriage to the younger Jackie was said to be a huge asset. It unquestionably was.

The personal attacks on Jeri Thompson are meant to damage Fred Thompson’s undeclared presidential bid. They’re afraid of you, Fred! All the more reason to join the battle.

But he apparently can't resist going into attack mode himself, when he writes earlier in this same op-ed:

The ultimate exploiter of the "trophy" spouse would be Hillary Clinton. But for Bill Clinton, she would be a nobody. If Hillary was only a Rodham, she’d be just another Chicago liberal. She’s stood on Bill Clinton’s shoulders for three decades. In fact, she’s still relying on him to help deliver campaign contributions and the votes in early primary states like Iowa and New Hampshire. And that’s why she "stood by him" when he was accused of rape and other forms of criminal assault. It’s called power.

I'm very sure that Sen. Thompson and his wife would never, ever in a million years let this kind of attack slip from their lips, and it's just not very smart on Levin's part.

I am not a Hillary fan. There are no circumstances, including waterboarding, that could induce me to vote for her for anything. I think she's actually the potential Democratic nominee who'd be easiest to beat in a general election, but I don't favor giving her even a temporary amnesty from Republican criticism until after the primaries.

And yes, Hillary has exploited, and will continue to exploit, her husband's name, status, contacts, and popularity. She is at least as ruthless as Bill Clinton was in his pursuit of the presidency, and if only America could somehow harness her thirst for power and convert it into electricity, we'd solve our energy dependency overnight.

But it's stupid to underestimate her, and that's what Levin's characterization does. "Only another Chicago liberal?" Obviously, Levin has forgotten the superb political joke told about Hillary:

While on a tour bus campaigning in New Hampshire, Hillary and Bill Clinton are shaking hands with some of the workers at a truck stop where their bus is being refueled when Hillary recognizes one of the workers who's actually doing the fueling. She stops to chat with him while Bill's working the rest of the crowd, and Bill thinks she doesn't notice when he sneaks off to grab a plate of truck-stop nachos.

The pumper turns out to be "Chip" — a guy from her home town of Park Ridge, Illinois, and upon whom she'd actually had a crush on during seventh grade.

They laugh about old times for a minute or two, and then, as they watch Bill sneaking back onto the bus, Chip says, "Hey! I wonder what would have happened if that seventh-grade crush had ripened, and if you and I had ended up getting married, instead of you and Bill Clinton?"

"Oh, that's easy, Chip," replies Hillary. "I would still be touring New Hampshire in a campaign tour bus, but with you instead. You would be the ex-President of the United States. And instead of wiping melted nacho cheese off his chin, Bubba over there," she says, pointing at Bill, "would be wiping diesel off his hands after filling our tank."

Calling Hillary a "trophy wife" seriously misunderestimates her. And it's pointlessly, genuinely sexist, just like the attacks on Jeri Thompson.

There's no shortage of negative things to say about Hillary Clinton, and if you start making up stuff that lacks a factual basis — if you were to call her lazy or stupid, for example, or even politically inexperienced — you lose all credibility. You can quite appropriately point to her relationship and history with the forty-second POTUS as part of a legitimate critique. But calling her a "trophy wife" is just unjustified; that's not what she is, in any sense of that term. Levin should cut it out.

Posted by Beldar at 12:15 PM in 2008 Election, Humor, Politics (2007) | Permalink | Comments (18)

Monday, July 16, 2007

Beldar reviews Jan Crawford Greenburg's "Supreme Conflict"

I've read quite a few reviews of Jan Crawford Greenburg's book Supreme Conflict: The Insider Story of the Struggle for Control of the United States Supreme Court, and most have been very favorable, including some by reviewers whom I believe to be tough critics. And I actually bought the book some time last spring, within a few weeks of its late January 2007 release. But it's been sitting on an end-table next to my couch.

I just haven't been able to bring myself to read it before now because I knew it would rip open psychic wounds I still bear from the Harriet Miers nomination.

And it did. I'll review this book because it deserves it. But I'm also gonna close the comments on this post because I don't want someone to re-open mooted old fights in them based on what I say here.



One passage, though (at pp. 258-59, boldface mine), made me laugh aloud through some otherwise sad memories, when Crawford described discussions that were going on between the Federalist Society's Leonard Leo, general counsel Wendy Long of the Judicial Confirmation Network, Deputy White House Counsel William Kelley, and White House Counsel Miers. It was at a time when only Kelley, among that group, knew that Miers' name was under serious consideration to for the Sandra Day O'Connor seat (after John Roberts' nomination had been shifted to the Chief Justiceship upon William Rehnquist's death):

In that meeting with Leo and Long, Miers led the discussion, soliciting their views on what Bush should consider in making his decision. "What do you think is most important?" Miers asked at one point.

"Quality, quality. That's all that matters," said Long, whose Judicial Confirmation Network was formed to support Bush's judges and supported by the same donors that contributed to the Federalist Society.... "We can handle the rest if there is quality," Long said.

Miers and Kelley nodded in agreement. The discussion on nominees was brief. Most of the conversation focused on the strategy for getting Bush's nominee through the confirmation process and how to ensure the most widespread support against inevitable attacks by Democrats. Miers in particular was keen to tap into the grassroots groups and influential commentators outside the mainstream press. "I think the blogs will be really important," Miers said.

Later, Ms. Greenburg's book goes on to mention by name a great many of the pundits who opposed the Miers nomination, including David Frum and Ramesh Ponnuru at the National Review, Bill Kristol at the Weekly Standard, and David Brooks at the NYT. I don't know whether that's the sort of "bloggers" that Ms. Miers' mention of "the blogs" corresponded with; I'd instead characterize all of those as mainstream media columnists, even though (for example) Ponnuru contributes regularly to The Corner and Frum has his own kinda-sorta NRO blog. Certainly Ms. Greenburg could also have constructed a long list of more traditional (non-MSM columnist) bloggers who also lined up against the Miers nomination, and whose clamor is widely regarded as having also contributed to the nomination's withdrawal. But she doesn't name those names — much less compile the very short list (comprising mainly me and Hugh Hewitt, who's also of course not just a blogger) who aggressively supported the nomination.

But as she tells the inside story from the White House, it was Dubya alone who made the decision to pull the nomination, and he emphatically didn't give a furry rat's butt about the furor in either the conservative blogosphere or the broader conservative punditocracy at all. He was, according to Ms. Greenburg, persuaded solely and reluctantly by the reports from conservative senators and especially from her confirmation hearings prep team that in the three weeks available, she simply couldn't be adequately refreshed and/or re-educated in constitutional law to a degree sufficient to get her through the hearings.

That seems likely to me — meaning, in keeping with my understanding of Dubya's character and tendencies. And I guess it makes me feel marginally better. I might have been a dim and unsuccessful candle against a hurricane, but it wasn't the hurricane that ended up wrecking the ship, no matter how smug the hurricane was afterwards.


Ms. Greenburg also writes (at page 279):

... [T]he confirmation process had changed since Reagan nominated Justice O'Connor, who was no constitutional law expert herself. The hearings [during the Bush Administration] were so contentious and the questions so focused that nominees without a background in constitutional law — either an experienced judge or a Supreme Court advocate like [Miguel] Estrada or [Maureen] Mahoney — would have a very tough time of it. Gone were the days when a president could nominate a practicing lawyer like Lewis Powell or Byron White and watch him sail through.

And then again (at page 302), in one of the book's occasional examples when an editor could have profitably trimmed some redundancies:

Lawyers like Miers, who haven't spent their lives planning for a Supreme Court nomination, are expected to do the impossible. At one time, there was a place on the Supreme Court for lawyers like Miers, those with practical experience who handled witness interviews and managed law firms and ran bar associations. Lewis Powell was one before President Nixon nominated him. But those days are gone. The job interview is designed for the appeals court judge or the elite appellate lawyer — someone like a Roberts or an Alito.

I can't disagree with those paragraphs as being accurate and penetrating observations of the process at the time of the Miers nomination. But one of the great successes of Ms. Greenburg's book in my view is how vividly it communicates the extraordinary and unusual confluence of contributing factors during the Miers nomination — specifically, (1) the judicial rockstar John Roberts' confirmation hearings having just ended, (2) followed immediately by a soft-spoken and somewhat shy Powell-type practicing lawyer nominee (without a judicial or academic career), who (3) would be taking a "swing seat," combined with (4) harsh time pressures and (5) a president whose political capital was hemorrhaging madly due to a perceivedly bungled response to a uniquely catastrophic hurricane.

What she leaves out, but what I believe was also a huge factor, was (6) a large portion of the President's so-called conservative base (one over-represented on the coasts, inside the Beltway, and among the pundits and "opinion leaders" generally), that is, and actually always has been, deeply suspicious of his own commitment to transforming the Court, and his fitness for making sound judgments in pursuit of that goal. That George W. Bush knew Harriet Miers more thoroughly than almost any other President has known any other Supreme Court nominee counted for nothing in their eyes. Instead they insisted in pre-playing what they claimed would be the broad Democratic charge of "cronyism" based on that thorough personal knowledge. Instead, the Dems, who also reflexively hold Dubya in low regard (but take no effort to conceal that), would have been perfectly willing, even delighted, to let Miers sail through after first embarrassing her and Dubya just for giggles and grins and Bush-hater brownie points.

And thus, it's not entirely clear to me that if some of those factors were absent or even just diluted, the same results would be repeated. If, for example, you had a decidedly non-shy mid-40s female trial lawyer with a strong academic record from a top-25 law school (even if not Ivy League), a somewhat more prestigious judicial clerkship, and a deeper first-chair courtroom record (maybe including a stint as a state or federal trial judge) — one who had a little more time to study up and was, perhaps, both undistracted and a very quick study — who was replacing, say, Justice Scalia ....

Then maybe. I'm not giving up yet on my hopes of getting someone who's actually tried some jury trials and maybe presided over a few up there on the SCOTUS' loft bench.


My intense personal recollections of, and lingering painful emotional investments in, the Miers nomination notwithstanding: I very much enjoyed Ms. Greenburg's book.

It does leak a few minor state secrets — or at least, things roughly comparable to the breathless revelations of intra-Court confidences from Bob Woodward's and Scott Armstrong's "The Brethren" from some years back. And I remain skeptical of the degree to which Ms. Greenburg ascribes to contrasting personality types the various Justices' successes in persuading their fellows to join them on legal rulings. I seriously doubt, for example, that the course of the Nation's judicial history was as seriously affected as Ms. Greenburg suggests by a perceived slight Justice O'Connor received as a rookie Justice at the hands of Justice Brennan. I do not believe that the Supreme Court functions mostly on the principles of a junior high school cafeteria, with the cool kids all at one table on any given case. 

But most mainstream media legal analysts seem incapable of ever exhibiting anything deeper than a junior high-esque understanding of the Court. To them, the idea that Justice Scalia and Justice Ginsberg and their respective spouses can have been steadfast personal friends over many decades just does not compute; they think it's like those "lion and lamb" photographs in which the lion has secretly been shot with a tranquilizer rifle before the photo was snapped, and someone's putting one over on them.

Instead, to her credit, Ms. Greenburg doesn't rely solely, or even mostly, on such shallow psycho-babble, nor exclusively on frenzied interpretation of the number of exclamation points that Justice Blackmun added to the draft opinions from other Justices' chambers. She actually understands, and more amazingly, fairly consistently explains in laymen-accessible language, the substance of a great many issues that the Court's been dealing with over the last thirty years or so. She doesn't view everything through the prism of abortion rights cases (although, inevitably, that is her number one focal point). And she mostly gets the details right.

Without question — as many other reviewers have already noted — Ms. Greenburg takes enormous and, frankly, very courageous strides toward correcting huge injustices in the widespread misperceptions about Justice Thomas, even (and perhaps especially) within the legal community and the ranks of the well-educated and legally-observant laity. It would be the rare individual, lawyer or not, who reads this book without having his perceptions of that cryptic man much affected, and almost certainly for the better. And it's based on solid reporting about the merits of cases and his positions on them and intra-Court communications about them, not just anecdotes and homilies about how he grew up or how he relates on a personal basis to other Justices. The material about Justice Thomas would, all by itself, make this a book worth purchasing.

And best of all, though, from my viewpoint — because I didn't learn any law from reading her book, nor did I expect to, and I already knew the outlines of the changes in the Court's ideology and its members' drift patterns — Ms. Greenburg provides a whole host of genuinely vivid and consistently delightful personal details that aren't state secrets. Here's one, for example (from page 190), that just made me grin:

The morning of his interview with President Bush's selection team, Roberts went to work in his courthouse chambers downtown as usual. Later that day, he drove himself back up Massachusetts Avenue, past the big embassies that line the street, to Cheney's residence in northwest Washington. He got there forty-five minutes early, so he sat in his car until it was time to go in.

Now, see, that just dovetails so neatly with everything else I know of and about John Roberts (and with everything else Ms. Greenburg writes of him, too), that I can practically see him sitting calmly behind the wheel, checking his wristwatch but not very often and without any impatience — assured of not being late, gracious, and indeed grateful for the quiet chance to practice, sotto voce and into the sun visor, more of his anticipated answers to some of the Veep's anticipated questions. I know John Roberts has done that hundreds of times before oral arguments at which he's appeared as an advocate — maybe on a courthouse bench or in a back hallway, if not in his car. And reading that sort of simple detail, thinking of him gesturing into the steering wheel, re-confirms his humanity to me, and helps me relate to him in endearing and important ways.

I grade this book at a solid, unequivocal A. I don't think I've ever given that high a grade to any legal writer affiliated with any mainstream media outlet in the four years I've been blogging. I don't suggest you take its every word as gospel, nor that it be your only source of information and analysis about the modern Supreme Court. But I do recommend it, without any substantial reservation.

(Disclosure and shameless financial self-promotion: buying it via the Amazon link at the top of this post will cost you no more, and save Beldar a few pennies off his own next Amazon purchase, if you're persuaded even in part to buy the book based on this review.)

Posted by Beldar at 01:18 PM in Books, Law (2007) | Permalink | Comments (0)

Terrorists and Wall Street lawyers

Instapundit Glenn Reynolds writes this morning: "Hmm. Now there's a book that will never get written: What Terrorists Can Learn from Wall Street Law Firms."

It's not an idle suggestion, though. As I understand it, terrorists are skilled at creating corpses. In my personal experience, Wall Street law firms are also skilled in picking them clean.

(Just a joke. It's an unfair comparison, of course ... to the terrorists. Aha, another joke. Sorta.)

Posted by Beldar at 07:33 AM in Humor, Law (2007) | Permalink | Comments (0)

"Hott 4 Hill" video

Hott4hill Am I wrong in thinking that this very funny, sexy music video (h/t Xrlq), just like the Obama Girl video that inspired it, also ends up helping Obama?

Would it be possible to do a very funny, sexy video (either with or without music) that somehow helped Hillary?

Just askin'. (That video of her and Bill and the carrots, even apart from the scary "Sopranos" overtones, was mildly funny in a "heh, that's weird" sort of way, but overall it affected me about like a dose of potassium nitrate was once thought to affect men.)

Meanwhile, I gather that sometime Monday we'll see the debut of Obama Girl versus Giuliani Girl (although the "trailer" is already out ... at this rate VH-1 will be able to do a complete weekend on the "2008 Election Rock Videos" before election day).

UPDATE (Mon Jul 16 @ 7:00am): Sez the WaPo of the new "versus" video: "Unfortunately, the Republican candidate comes with some other negatives: 'It turns out,' says [Obama Girl a/k/a Temple University senior Leah] Kauffman, 'nothing rhymes with Giuliani.'" But here it is, complete with pillow fight (the mud-wrestling will have to wait until after Labor Day, surely).

Posted by Beldar at 01:12 AM in 2008 Election, Humor, Politics (2007) | Permalink | Comments (0)

Sunday, July 15, 2007

Beldar & kids see "Harry Potter and the Order of the Phoenix"

Refreshed by some quiet time since yesterday's movie, this morning my two sons and youngest daughter and I went to see Harry Potter and the Order of the Phoenix. (My older daughter, Sarah, had already seen it.)

(No spoilers follow, but there are some shocking off-set pix of the movie's stars!)

Our reactions were very mixed. Adam — who is the only one of our family who hasn't been devouring the books (he insists he'll read them all back to back when the final one comes out) — said he "liked it." But he refused to give a letter grade or more details. Kevin was much more enthusiastic, giving it a "B+ plus." I gave it a B-. But during the movie, I had to shush my younger daughter, Molly, who was grousing about how much had been stripped from the book. She gave it a C- that she insisted was very generous.

It just seemed more flat and generally less creative to me than the others. Just as an example: The credits are just reddish-purple letters that fade in and fade out against a parchment-white background. That's it; not even an interesting font. Oh, but when it gets to the cast list, it changes! To ... black lettering, with the same font and same background. There's no whimsy, no magic there at all. (I recall the credits from some of the previous films in the series as being delightful in and of themselves.)

And I thought some of the acting (or perhaps the directing of the acting) was a bit off, too. For example, what should have been a great line, taken (as I recall) directly from the book — after Hermione says what fun it was to break some rules, Ron gasps at her, "Who are you? And what have you done with Hermione Granger?" — didn't prompt a single audible laugh in the nearly-full theater we were in. I remember literally laughing out loud at that from the book.

I've read that this film's makers consciously tried to keep it short by modern standards (138 minutes), even though the books have each been trending increasingly longer. I'm all in favor of non-bloated films, but I think another thirty to forty-five minutes of this one might have added a whole lot of badly needed depth and context. As it was, well-known and much-loved characters — like Hagrid, Mad-Eye, and even Dumbledore — have so little screen time that one wonders whether the scriptwriters and film editors secretly hate them.

I even thought the musical score was dull — not inappropriate, just not ever really scary or twinkly or mystical or memorable or noticeable in any particular way.

Oh, it could have been much, much worse, I'm sure. And we're all the victims of high expectations, not only from the books but from the first four films in the series. I wouldn't have wanted to miss this one, and my kids have already established who gets first go at the seventh book when it comes out later this month — after me, of course, since I'm the one who's pre-ordered it.

But I have to admit, I was disappointed.

As for the promised shocking pix, they're from the Daily Mail, and they'd make a pretty good caption contest:


I suspect Daniel Radcliffe will shave for the "Half-Blood Prince," but I'm not sure if we'll ever know exactly whether Emma Watson's reactions to seeing this picture, besides shock, were favorable.


She, meanwhile, is reported to be the next featured "face" for Chanel:


If so, a grande old dame of fashion like Chanel signing her up as a spokes-model may be the marketing coup of the young Twenty-First Century. Not that I'm any expert or even very well informed about fashion or marketing. But it's obvious even to me that she's very classy and pretty, and as she approaches her 18th birthday, she's becoming increasingly hot — but in a rare sort of way that I suspect might provoke young women to say: "Yes, I might save up and then spend some serious money to look like that."

Posted by Beldar at 11:55 PM in Family, Film/TV/Stage | Permalink | Comments (3)

Video clip of Sen. Fred Thompson with wife Jeri and kids

You may or may not already seen this two minute 40 second video of a statement former Sen. Fred Thompson gave on June 14, 2007, to the National Right to Life conference, but I only came across it tonight. Nothing in it surprised or distressed me. I find myself warming more to this man with pretty much every additional exposure.

It starts off, however, with a short sequence in which Fred introduces his wife Jeri and their two young children, 4-year-old Heyden and infant Sammy. None of them speak, and they're quickly out of the shot — off, explains Fred, to a birthday party for one of Heyden's friends. But if you want to decide whether the age difference between Fred Thompson and his wife utterly creeps you out, to the point that you can't imagine yourself or anyone else voting for you, this video may be more useful to you for that purpose than the various still pix (for example, here, here, and here).

Would you think he's her father and their grandfather if you saw them all together at a restaurant? Yeah, probably; and the age difference is assuredly enough that he could be. But does he strike you like some sort of power-mad white slaver who's lured this poor young thing into his clutches so he can exploit her? I'm sure he likes showing her and the kids off; but did he marry her, and start a new family, primarily for the purpose of being able to show them off? That's not my reaction, as a male and father of four who's a little closer to her age than to his.

But decide for yourself. We're talking brain-stem reactions here, not cerebral cortex (except as it evaluates brain-stem reactions and then tries to crystal-ball some electoral projections based on them). 

Meanwhile, K-Lo at The Corner writes that when Mark Levin (who I cannot stand to listen to, sorry) asked as his first question of Sen. Thompson on Levin's radio show, "Is Hillary Clinton Bill Clinton's trophy wife?" the former senator, soon to be candidate, "wisely didn't answer, but used his good 'I thought I was the trophy husband' line." I wish I could take credit for inspiring that line, but I'm sure it occurred to Sen. & Mrs. Thompson long before I used it here.

Posted by Beldar at 10:36 PM in 2008 Election, Politics (2007) | Permalink | Comments (3)

Beldar's answer to Patterico's question about Husain v. Springer

My blogospheric friend Patterico, who was kind enough to link from his blog to my post from yesterday about the Second Circuit's decision in Husain v. Springer — and in particular about Chief Judge Dennis G. Jacobs' provocative dissenting opinion in which he proclaimed that he's not bothered to read his colleague Judge Guido Calabresi's opinion for the panel majority — asked this question in a comment (hyperlinks inserted by me):

Volokh thinks the majority opinion sets an important precedent. Beldar disagrees.

I'm wondering how to decide which of them is right. Any suggestions, Beldar?

Herewith, my reply. Of course, it's not short. Things are rarely short on BeldarBlog (hence the warning on the masthead).


Patterico, my friend, you could simply wait for the Federal Reporter, Third Series version to come out and see how many headnotes Thomson/West Publishing writes for it. Counting the number of headnotes is one rough way of measuring how much "law" a given written opinion stands for, although they don't put the really important headnotes in boldface or an extra-large font. One tends to generate one new headnote for every declarative sentence followed by a case citation, and it's entirely possible for an opinion to have lots of headnotes and yet not to have made any new law, or even to have repeated much law of much importance.


Prof. Volokh is a renowned (and properly so), tenured, and many-times published constitutional law professor whose specific expertise includes the First Amendment. I'm merely a solo practitioner in a general litigation practice whose last constitutional law credentials were a law school Am Jur award in that subject in 1979 and a successful Fifth Circuit appeal in 1983 upholding a summary judgment in favor of CBS News in a defamation case. So if you're deciding whose opinion is more likely to be correct based on the expertise, experience, and reputation of the person rendering it, Prof. V wins hands down.

On the other hand, you'd think that being such an expert, Prof. V might have been in a position to point to a few recent First Amendment cases and say, "Under the precedents set this past week in Husain v. Springer, these would all have come out the opposite way than they did." He hasn't done that; but perhaps he could, if someone asked him to.


One of my very first posts when I started this blog four years ago was about a Texas case that Prof. V read as a major cut-back in First Amendment protections for pornographic comic books, Castillo v. State, 79 S.W.3d 817 (Tex. App.—Dallas 2002, pet'n ref'd), cert. denied, 538 U.S. 924 (2003). I read that case as an aberration, in which an incompetent defense lawyer had let an aggressive prosecutor trample him, and in which the appellate court had made no new First Amendment law to speak of but rather merely held the defendant accountable for his lawyer's procedural lapses in failing to object.

Prof. V graciously corrected some factual errors he'd made in his original posting about the case, but we agreed to disagree over the case's precedential importance. In the four years since, it's been cited by other Texas courts a total of 10 times — and never in a case that contains the words "obscenity" or "First Amendment," but instead for its purely procedural holdings. If, nevertheless, as a result of that appellate opinion, there are either substantially fewer pornographic comic books available now in Texas or anywhere else, or substantially more comic book pornographers who've been convicted of obscenity, I'm unaware of that. So I tend to think that the passage of time has shown I had the better of the argument about that First Amendment case, anyway.


I suspect Prof. V would agree with me that there are less likely to be important future effects from that portion of the Husain v. Springer majority opinion discussing whether, for purposes of qualified immunity, the college president's actions were clearly illegal given the status of court precedents in 1997. Although I think that portion of the majority opinion is badly written, it's by far the most easily distinguishable in any future case.

We'd probably also agree that the most novel, and potentially sweeping precedent, has to do with the causal remoteness of the supposed chilling effect, which he (and the majority opinion) refer to as the college president having threatened the student editors' intended purposes for the election (as opposed, for example, to threatening to expel them, or to disband the paper, or impound its issues, or cut off its funding).

The majority opinion, though, doesn't itself treat its own holdings as being sweeping or revolutionary or precedent setting. It treats the "chill" as being more or less self-evident on these facts. Accordingly, I read the holding as being not very dangerous. In future cases, instead of a court saying, "Under the new rule of law proclaimed in Husain v. Springer, by which we are bound as a matter of precedent, we must ...," you'll instead have, at most, a court saying, "Under a similar set of facts in Husain v. Springer, the Second Circuit found ...."  The fact that no court — to Prof. V's experience or my own admittedly more limited experience — has been willing to find a "chill" on such weak facts before makes me doubt that many other courts will be eager to find such a chill on similarly (but distinguishably) weak facts again. And because it's fact-specific, I doubt many future courts will find themselves compelled to find such a chill on similarly weak facts. 

In other words, unless the future case is one of a university president "chilling" the First Amendment free expression rights of a college newspaper by having voided and then rescheduled a student election for what the court concludes was an invalid reading of university rules, I just don't think this case is going to have much persuasive power in any future First Amendment litigation. Outside the context of administration interference with college newspapers writing about student government elections, I doubt it will — or even could — have any relevance at all.

My suspicion, in other words, is that when Prof. V wrote that this might be a really important precedent, he actually meant that it pertains to a really important subject — the First Amendment.  But it's rather Chief Judge Jacobs' point — and I agree — that not every dispute that is characterized in a First Amendment analysis is necessarily an important case. This might make a great exam question for Prof. V's First Amendment classes. That doesn't mean it's an important question in real life.

Note that Judge Calabresi and Judge Walker didn't respond directly to the dissent. They did not, in other words, argue that, yes, this is an important case, or that it presented important undecided legal principles of first impression. They never address related questions like: Why was this case on the oral argument calendar? Why was this opinion designated for publication? Or most significantly: Why isn't this a case of de minimis non curat lex? And how (except in a scramble for court-awarded attorneys' fees) can it possibly justify the attentions of eight high-powered lawyers on the brief and the admittedly more limited resources of the federal judiciary — specifically, a federal magistrate, a federal district judge, and a panel of three federal circuit judges who, at $175k each/year, are badly underpaid in comparison to the market? Over a one-week delay in a student election that, when re-run, came out the same way? Over $2?

But now I'm basically re-arguing the point of my original post, which means I've run out of ideas to help you decide whether Prof. V on the one hand, or Prof. B and I on the other, have the better of the argument.


UPDATE (Mon Jul 16 @ 3:00pm): For an opposing assessment of the importance of the underlying litigation — including, if I understand it correctly, an argument (in comments) that Husain is really not much different in importance than the Supreme Court's decision in Rumsfeld v. Padilla — see S. COTUS' post at a blog called Appellate Law & Practice.

Posted by Beldar at 07:56 PM in Law (2007) | Permalink | Comments (6)

Beldar & kids see "Transformers"

Our intention yesterday was to do a traditional Saturday matinée double-feature, but after watching Transformers, my kids and I all sort of felt the need for some quiet time. There's certainly not any of that in this movie, which my four teens nevertheless unanimously labeled: "Awesome!"

(Mild spoilers ahead — as if anyone didn't already know that Optimus Prime ultimately kicks Megatron's robotic butt, duh.)

"How could it not be awesome?" demanded my 14-year-old, Adam. "It's, like — the Transformers, and in a movie!"

Megan Fox checking under Bumblebee's hoodThat wouldn't have quite been enough for me, by iteself. But I have to admit, I was considerably more entertained than I'd expected to be by a movie drawn from a cartoon series created to sell a line of toys. It wasn't just the two young hotties, Rachel Taylor and Megan Fox — although that didn't hurt, and of the movie's human characters, Ms. Fox' actually shows the most interesting transformation over the course of the movie. I will credit the movie for displaying an excellent sense of humor about itself.

And that's not just some built-in camp of the sort which characterized, for instance, 1993's Mighty Morphin' Power Rangers. Rather, it's a genuine recognition that this plot line — which features an old yellow Chevy Camaro named "Bumblebee" that frequently transforms into a protective 20-foot tall "autonomous robotic life form from the planet Cybertron," but only after picking its own new teen-aged owner (capably played by Shia LaBeouf) and giving the kid badly needed dating tips — just can't be taken too seriously. (Robot or not, my youngest daughter, Molly, got a bit teary-eyed when Bumblebee was being humiliated as a captive. That prompted her big sister, Sarah, to lean over and remind her, "It's just a movie." This is a compliment to the film, I think.)

Rachel TaylorWhat I particularly didn't expect, but am enough of a flag-waver to have thoroughly enjoyed, was the very prominent role played by an assortment of real-life high-tech deadly toys, ranging from the Air Force's new stealth air superiority fighter, the F-22 Raptor, through a variety of high-tech helicopters, to an AC-130U Spooky gunship heeling over to one side to let loose its 105mm howitzer and other flying artillery at the bad robots. Among the large cast is a team of Army Rangers (led by hunky TV star Josh Duhamel from NBC's "Las Vegas"; there's equal-opportunity eye candy in this movie for all you moms out there) who are superheroes in their own right.

I was full expecting the U.S. Secretary of Defense, played by Jon Voight, to turn out to be evil and corrupt. But perhaps in exchange for all the DoD cooperation the movie-makers got (and there was a lot, as prominently recapped early in the credits), or perhaps out of simple decency and moderation, the movie mostly avoids Hollywood's reflexive tendency to make America and its leaders into  outright villains. There's one fairly mild and indirect dig at Dubya, which I assume was required lest every Hollywood union boycott helping make the film altogether. But even Herbert Hoover comes off fairly well in this flick.

Josh Duhamel and Shia LaBeoufThis is definitely a movie made to be seen on the big screen, and unless you have the very best of the best state-of-the-art home theater, you wouldn't get a comparable experience. (The stadium-seating theater in which we watched a digital print was perfect.) Be prepared, though, because if your central nervous system is as old and creaky as mine, you often may not be able to keep up with all of the images and sounds blasting over you.

"I sometimes had a hard time telling which were the Autobots and which were the Decepticons," I complained afterwards.

"Gee, Dad," replied my son Kevin, "That was easy! The Decepticons were the ones who went out of their way to inflict collateral damage on the nearby civilian humans, whereas the Autobots were the ones always sidestepping around them. Remember the part where Megatron is lying on the ground among the humans they've knocked over, and he goes [very deep voice] 'Disgusting!' just before he flicks the guy 50 yards into a parked car?"

Optimus PrimeSo there's a helpful viewing tip for you.

Don't mistake my family's positive review as saying more than I intend: This is a profoundly silly movie. To say you have to "suspend disbelief" to enjoy it is a considerable understatement. But it is a silly, unbelievable movie that's very well done — one that revels in being over-the-top with its special effects (which are indeed amazing), but that also brings considerably more than just sfx to the party.

I have no doubt that it will be an international hit, either. Islamic jihadists and others who rant and rave about the filth and vacuity of American cultural imperialism will hate this very American movie — but I'll bet they'll secretly watch it too.

Posted by Beldar at 08:36 AM in Family, Film/TV/Stage | Permalink | Comments (0)

Saturday, July 14, 2007

Second Circuit Chief Judge Jacobs' dissent in Husain v. Springer: An opinion worth occupying the minds of people with consequential things to do, albeit arising from an appeal that otherwise shouldn't

First, a long war story. You can skip it (jump down to the first line of centered asterisks) without much consequence to your understanding of the rest of my post, if you'd rather.

In August 1980, during the first week of my year-long judicial clerkship, the United States Circuit Judge who'd hired me was hearing oral arguments at the Fifth Circuit's headquarters in New Orleans. I'd been told to report to her chambers in Houston, though, where a pair of her departing clerks would show me the ropes and get me started. Before the end of the first day, I was up to my elbows in a "screener" — a thin file pulled from the top of a stack of similarly thin files, all of which represented cases in which the staff lawyers from New Orleans had made an initial determination that the appeal could probably be disposed of as part of the Fifth Circuit's "summary calendar," without oral argument. Any judge could bounce a "screener" to the oral argument calendar, and that sometimes happened. But the staff lawyers, who in general had less responsibility than us law clerks but who didn't rotate out every year, had a good feel for the pulse of the then-massive circuit's caseload (appeals from six states, being handled by twenty-five circuit judges). My outgoing co-clerk, whom I'd worked with a year earlier when he was an editor and I was a member of the Texas Law Review, was indulging in a reasonable assumption that whatever he took off that stack to give to me would be a fairly simple case by Fifth Circuit standards, and thus a good way to get my feet wet in a new job.

Seven days and eighty hours later, I'd finished my forty-something page opus that comprehensively reviewed, and then reconciled into a definitive decision matrix, the existing Supreme Court and Fifth Circuit precedent on how to treat qualified immunity defenses to section 1983 and Bivens civil rights claims for purposes of summary judgment consideration. My co-clerk skimmed it, and then rolled his eyes. "She's going to think you're a total dork," he warned me. And he was right: she did, and I was.

The problem was that, in fact, the Fifth Circuit's caselaw (like most circuits') on those subjects was riddled with seeming contradictions back then. The boom in these sorts of cases was still pretty new, but there were already a lot of sloppy opinions out there. Indeed, the staff law clerk who'd marked this case as a "screener" had followed one trail of cases, but he or she had completely ignored a couple of competing trails that were arguably just as applicable and just as valid. The poor district judge and his law clerks had more or less shot up a flare-gun pleading for guidance. And with the absolute confidence that every newly graduated law review editor has — which is to say, the absolute confidence that he or she can discern every interesting cross-current in the law, and then write some dozens of pages of dense, heavily footnoted prose to re-channel them properly — I'd set about to "fix things."

My judge not only rolled her eyes, but audibly groaned when I handed her my work. "Opinions from screeners aren't supposed to look like this," she said. She hefted the manuscript, waggling it in the air between her thumb and index finger. "They ought not weigh this much, literally. Are you sure this couldn't be handled in about a fifth the space?"

I insisted that it could not, and so she read it. Then she started pulling books off the shelf to track through some of the precedential trails I'd laid out in opposition to one another. She moved from eye-rolls to more groans, with occasional sotto voce mutterings; but now it was the other cases she was frustrated with, not my draft opinion. Then we argued about my draft some more, and flagged some weak language, and started testing various hypotheticals against my (mostly procedural) decision matrix. This all took the better part of a day.

"Well," she finally concluded, "I think you're actually right. This is just tough sledding, and the district courts, who are seeing more of these cases every year, probably do need a road-map from us. This might even be the case to do it in. But you just can't make this much law with a screener. It's just not done. I've only been on the bench for a year, but even I know that." She sighed again. "I'm going to make a few revisions based on what we've looked at together, and then run this past the other two judges on our screening panel," she said, "just to ask them if I ought to send your draft opinion along with the file when the case gets bounced to a new panel on the oral argument calendar. I'd hate to see this much work go completely to waste."

I felt duly chastised and downcast.

The other two judges on the panel, however, had a different reaction. They also thought that the draft opinion — which was now genuinely a joint product of our chambers — had done about as good a job as could be done in reconciling the prior cases (short of the freedom to simply overrule prior precedent that only the SCOTUS or the full Fifth Circuit sitting en banc would have). But the gist of their further reaction was that while the precedents in this area were in an ugly mess, this screening panel was nevertheless as well-equipped to sort it all out as any oral argument panel would be. Moreover, not only our chambers, but now also the other two screening panel judges and their staffs had invested a lot of time in the case. All that would mostly be wasted if any of the three judges booted it to a random oral argument calendar panel. And they also pointed out that one of the parties was proceeding pro se; if the case went to the oral argument calendar, only one side would show up to argue through counsel, and we were already highly confident what that side's counsel would say.

There was some more very civil discussion back-and-forth between chambers over the substance and language of the opinion. But thus it was that the very first Fifth Circuit opinion I ever helped write clocked in at 27 pages as published in the Federal Reporter, Second Series, with 34 headnotes (but a mere 27 footnotes) — and with a partial dissent written by one of the circuit's most senior and respected judges. The first footnote read:

No party in this case requested oral argument, and no judge on the summary calendar panel determined that oral argument was necessary. In these circumstances, Fifth Circuit Local Rules 13.6.4 and 18.2 allow us to decide this case without oral argument, despite the fact that one member of the panel concurs in part and dissents in part.

I was, at least in part, redeemed. "But next time," my judge told me, "come get my specific okay before you invest 80 hours in a screener. Any screener. Okay, buster?"

(All the dialog in this war story is based on a loose paraphrase of my dim recollections — except that one word, "buster," which I'm pretty sure is an exact quote. Just another reason that clerkship was the best job I ever had, bar none.)


Fast-forward twenty-six years — during which period there have been lots and lots of circuit court published opinions on how one goes about evaluating qualified immunity defenses to section 1983 and Bivens claims in a summary judgment context. That's not to say that all of those reported cases are entirely consistent, or that applying all this vast body of case-law is a no-brainer for the lawyers and the judges at the trial court level. But no one can plausibly say, "We need a basic road map for how to handle these cases" anymore. Every circuit has long since been there and done that, many times.

Moreover, while some of the cases brought to the federal courts under the rubric of "Defending Our First Amendment Rights!" or "Vindicating the Rule of Law Under Our Constitution!" are genuinely important, a great many of them aren't worth the powder it would take to blow them to hell. We saw the Supreme Court tie itself in knots trying to decide during the Term just past, for example, whether the First Amendment was or wasn't violated when a school principal disciplined a high school student for displaying his "Bong Hits 4 Jesus" banner. The case was almost forced upon them by the Ninth Circuit, who'd concluded that the First Amendment might die tomorrow unless such banners are given constitutional protection by the federal courts. But it was still an eminently silly case.

Second Circuit Chief Judge Dennis G. Jacobs This summer, however, Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit — a Bush-41 appointee who'd been in private practice for a couple of decades before he was appointed in 1992 — found himself confronted with yet another footnote filled, forty-something paged manuscript, with yet another carefully nuanced treatise on the application of fine principles of constitutional law. Given his tenure, I'm sure he's participated in thousands of appellate decisions before, probably including dozens of appeals that turned on qualified immunity defenses. Some of them were probably important, and the next one that wanders up the appellate chain might be too.

But this latest one, Husain v. Springer, announced on Friday the 13th, just isn't. Instead, it's an over-lawyered pissing match — I'm sorry, I know that's a crude term, but there's no term so apt — over whether there were genuine issues of fact with respect to a qualified immunity defense asserted by a college president who'd ordered a re-run, one week later, of an arguably flawed (i.e., college rule-breaking) 1997 campus election at a Staten Island community college. The alleged harm? In the following year, a "chilled" student editorial board "decided to give their endorsement of the PSA [one slate of student candidates] less prominence than the newspaper’s endorsement of the Student Union slate [another slate of student candidates] had received in Spring 1997." (The editors indulged in this paranoid fantasy despite the fact that this same college president had overruled members of her own staff to ensure that their publication was not impounded, but instead released on the timetable they wanted, and even though the same 37 candidates whom the editors had endorsed for the original election also won in the rescheduled election a week later.) The college never restricted what the editors wrote, nor punished them afterwards for writing it. None of the candidates sued (or had reason to).

"She skeered us," was the student editors' basic claim, "even though she didn't actually do nuthin' to us." (Someone from the northeast will have to translate that into an appropriate Staten Island slacker dialect for me.)

The district court, after extended proceedings and with a thorough written opinion, had granted summary judgment denying any relief. The students, represented (probably pro bono, but possibly with an opportunity to recover legal fees) by a prominent national mega-firm (Akin Gump), appealed. But two judges on the Second Circuit panel — via a 44-page written opinion of U.S. Circuit Judge (and surprise! Clinton nominee! and double surprise! famous Yale Law School Professor Emeritus) Guido Calabresi — reversed in part and remanded for a full jury trial on the merits.


Friends and neighbors, I now give you the vivid prose of Chief Judge Jacobs — a man who is clearly tired of suffering fools gladly, and who is keenly aware that, as the chief judge of one of our nation's most important courts, he certainly has better things to do than to referee every grab and every fall from a college newspaper's 10-year-old self-important opinions about imaginary consequences from a wrestling match student government election from a Staten Island community college (citation omitted):

This is a case about nothing. Injunctive relief from the school’s election rules is now moot (if it was ever viable); and plaintiffs’ counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.

With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs’ fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit.


So who finds this dissent shocking?

Other present or former law professors like Judge Calabresi, I guess — including Profs. Eugene Volokh and Orin Kerr over at the Volokh Conspiracy. But they're not shocked because of Chief Judge Jacobs' characterization of the lack of merits to the student-plaintiffs' case. (Indeed, in a separate post, Prof. Volokh writes that the majority's opinion was "quite odd" and that he's "unaware of any First Amendment case that remotely reaches this sort of 'chill[ing of] speech'; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment." In other words, he suspects that Judge Calabresi is wrong on the merits.) Rather, these fine law professors are shocked by this (deliberately understated) admission from Chief Judge Jacobs at the beginning of his partial dissent:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.

I must digress a moment. If you read my blog regularly, you may fall prey to what I think might be called a "sampling error" bias. I hardly ever write about blog posts by law professors with whom I agree. And you might therefore stop taking me seriously when I insist that I like and admire and respect the law professors about whose posts I do write from time to time. I'm not being coy or disingenuous. I probably read 50 posts by Eugene Volokh or Orin Kerr that I wholeheartedly and unreservedly agree with for every one with which I disagree.

But this is one of those times when I fear they're both suffering that sort of academic-induced narcosis that leaves them just flat out of touch with the real world. That real world includes full-time practicing lawyers, and full-time trial and appellate judges (but not necessarily their clerks), most of whom would treat this case as a tempest in a teapot, which is exactly what Chief Judge Jacobs has done here.


Actually, however, I do agree that Chief Judge Jacobs' absolute refusal to even read Judge Calabresi's majority opinion is shocking. In fact, I'm quite sure that Chief Judge Jacobs intended for it to be provocative. He's pretty much saying, "I refuse to even read what my fellow judge has written about this appeal" — and well, that's indeed extraordinary. It's likely to generate controversy, with the effects of that controversy creating their own time demands, all of which is likely to become entirely disproportionate to the fifteen or twenty minutes Chief Judge Jacobs has saved for his schedule by ash-canning Judge Calabresi's majority opinion..

U.S. Circuit Judge Guido Calabresi Prof. Volokh and Prof. Kerr and various of their commenters were definitely provoked, but nevertheless seem to have missed Chief Judge Jacobs' point entirely. They seem to think this is equivalent to a judicial abdication by Chief Judge Jacobs, or to the doing by him of a deliberate injustice. "It's too bad that the dissenting judge didn't take the case more seriously," writes Prof. Volokh, because "I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny."

Meh. I agree that Judge Calabresi's opinion is wrong, but it looks to me like the majority opinion pretty much turns on the interpretation of City University of New York Bylaw § 15.2(d), on the subjective wobblies claimed by a bunch of student editors over a weird, probably unique set of actions by the college administration, and on the theoretical clarity (or lack thereof) of federal precedents on First Amendment free expression in a university setting as of a specific date in the late 1990s (since that's what the university president's "good faith," and therefore her potential liability, must be measured against, incredibly enough). That's not quite a blockbuster in terms of its precedential effect on other cases, regardless of whether Judge Calabresi's opinion got it exactly right or not quite right or mostly wrong.

More to the point, I disagree with Prof. Volokh's assertion that Chief Judge Jacobs' opinion doesn't take the case seriously. The professoriat may want Chief Judge Jacobs to say, "This appeal isn't worth my time, or any federal appellate judge's time, but nevertheless, here's exactly what I would say if it were worth my time" — and then to either fly-speck every debatable point in Judge Calabresi's opinion or else to concur in it. But he can't do the latter without contradicting the former, and it's the former point which he clearly thinks is more important here.

Chief Judge Jacobs certainly makes it very clear that the district judge got it more than adequately right, such that neither he nor his colleagues needed to write any more about this case. But his far more important point is that the whole damned case isn't worth the paper it will take to print Judge Calabresi's opinion on — much less the tens of thousands of dollars of additional legal fees that will almost certainly be sought, and possibly awarded (at the expense of the taxpayers of New York state) if the students win after a full trial on remand.

Chief Judge Jacobs carefully avoided directly faulting his brethren. But his deliberately provocative conduct was an indictment of more than just their majority opinion in this case — and of more than just the appellants in this case. Indeed, he might have quoted Churchill by writing: "This is the sort of bloody nonsense up with which I will not put!" Or he might have used the phrase "De minimis non curat lex," which I believe translates from Latin into "Get the hell out of my courtroom with that noise, you idiot!" (I'm not sure of the declinations on that translation, but it's a good enough rough approximation.)

This was, in effect, a judicial rallying cry — to district judges, to other circuit judges, even perhaps to SCOTUS justices. And it's a warning — not quite "Who dares disturb the great and powerful Oz?" but definitely something that ought to be heeded by litigants whose claims are, shall we say, lacking in anything but contrived and feigned real-world importance.

Note, however, that Chief Judge Jacobs didn't refuse to do his duty as a federal appellate judge. He presumably read the briefs and the trial court record. He attended oral argument. He participated in the post-argument conference(s). We don't know what, if any, unpublished communications were exchanged between him, Judge Calabresi, and the remaining judge on the panel, (former Second Circuit Chief) Judge John M. Walker, Jr. But these opinions aren't published until every judge on the panel is ready for them to be published based on having finished what he wanted to say to his brethren, whether face to face, on the phone, or in writing. It would have been improper for any of the judges to reverse the district judge based on arguments that hadn't been made in the district court and in the appellate briefs, so Chief Judge Jacobs necessarily had a pretty good idea of what Judge Calabresi's opinion could have said, had he taken the time to parse it. He cast his own vote. And his "admission" aside, it would indeed not surprise me if he skimmed it, and/or had a clerk read it closely — which is to say, he may purposefully have avoided quote-unquote "reading" it precisely so that he could make his rhetorical point as forcefully as possible.

I'm sure Profs. Volokh and Kerr would agree that appellate judges very commonly write dissents along the lines of, "For the reasons stated in the district court's opinion, I would not have reached the merits of the substantive First Amendment issues, and would instead have affirmed on the basis of that opinion's treatment of the qualified immunity issues." Chief Judge Jacobs actually did way more than that, and went through a brief discussion of why he believes the muddled state of First Amendment precedent as of 1997, when the university professor did her supposedly dastardly chilling, should have made it impossible for her to be found liable for a bad-faith violation of the students' rights.

Nevertheless, as Chief Judge Jacobs viewed it, in the circumstances of this case, his duty obliged him to resist the institutional inertia and the demands of silly plaintiff-appellants like these that he give their appeal more time than it possibly deserved. You don't win a pissing match by whirling about, adding your own piss stream to the mix, and then insisting that you're not getting as wet as the others, nor by admitting that you're wet while writing at length about how nice it would be if you were dry and how much you wish the other fellows would stop pissing. The only way to "win" a pissing match is just to jump the hell out of the spray. Only then does it make sense to comment on what you've just gotten out of. And that's what Chief Judge Jacobs did.

And the place he chose to draw the line was in reading yet another 40+ page manuscript, of the sort turned out year after year by, yes, law clerks just like the one I was in 1980-1981. Such a long opinion was barely defensible, and mostly regrettable, even back then. It's simply indefensible now, and from down here in the real world, I applaud Chief Judge Jacobs for saying so — even at the cost of what may have been some "collegiality" with his brethren.


UPDATE (Sat Jul 14 @ wee small hours): Prof. Bainbridge and I are in substantial accord, and both join in Chief Judge Jacobs' dissent, with due respect to Prof. Bainbridge's colleague Prof. Volokh. Ted Frank on Overlawyered cites Prof. B and Chief Judge Jacobs with approval, but he's pretty low-keyed in his mockery. Ted quotes another paragraph from the dissent that contains a phrase with a deliciously studied ambiguity (emphasis mine):

This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars.

And see also Above the Law, whose headline notes that Chief Judge Jacobs is obviously "not running for student body president," and whose text aptly urges you to read Chief Judge Jacobs' entire opinion so that you may "absorb the entire spectacle of a full-blown student government p*ssing match in which the stakes could hardly be lower." The comments there are pretty funny too.


UPDATE (Sun Jul 15 @ 8:00pm): Prof. Althouse has a short post up about the dissent, but doesn't seem to me to either directly approve or disapprove of it. I've also put up a new post in response to a comment below from my friend Patterico.

Posted by Beldar at 01:16 AM in Law (2007), Trial Lawyer War Stories | Permalink | Comments (12)

Friday, July 13, 2007

Dean Barnett fouls a pitch off his foot in trying to tag lawyers with their clients' views

Former Soxblogger Dean Barnett is a bright guy. None of us gets a hit with every at-bat, but Dean usually avoids fouling pitches painfully off his own feet — which makes it surprising to read something from him that's as profoundly misinformed or ill-conceived as this (emphasis mine):

This week, Fred’s non-campaign made a seamless transition from smooth to bumpy, and his team has looked decidedly not-ready-for-primetime. The story about who he represented as a lawyer and lobbyist resonates. The dodge that lawyers/lobbyists don’t need to share the views of their clients and shouldn’t be held responsible for them is a pile of hooey. Each lawyer, like every other member of society, is the conservator of his own talent. If a lawyer chooses to use his talents to try to spring Khalid Sheikh Muhammad, perhaps other lawyers will salute him and see nothing wrong with the effort. But I know and you know that said lawyer wouldn’t have much of a political career in front of him.

If I were a general contractor and profited from building a Planned Parenthood facility, I don’t imagine that fact would endear me to America’s conservative community. If I sought office as a conservative Republican, I would expect my primary opponent to make an issue of it. Lawyers want to play by a different set of rules, and in the eyes of their fellow members of the Bar, they do. But the rest of the country won’t buy it, nor should they.

Putting aside his criticisms of the Thompson organization's oblique responses to the underlying criticisms (which may or may not have been politically deft and astute), I hope that Dean's naïveté about the unfairness of painting lawyers with their clients' positions comes from the fact that he's never had legal troubles of his own, nor had to put himself in the position of those who do.

General contractors are honorable tradesmen, and I don't mean to disparage or understate the degree of judgment and skill that can distinguish one from another. Just like every other businessman, they certainly should operate within a framework of general business ethics. To my knowledge, however, they do not operate within a system of fiduciary responsibilities in which they agree to be bound to put their customers' interests ahead of their own. (That's one reason why they have "customers" instead of "clients," in the common vernacular.) When one chooses general contracting as a profession, one does not commit to help ensure that constitutionally adequate buildings are available even to the blackest and most evil members of society. Nor does the contractor appear as the public face of his customer, acting on his behalf, speaking out for him in public at the very time when the customer is under the most intense public scrutiny. And while a general contractor's work may determine whether your home or business falls down when the wind blows or leaks when the rain falls, it generally won't determine whether you spend years in prison or get a lethal injection. Dean's oversimplifications notwithstanding, there are excellent reasons why the rules are, and should be, different for lawyers and contractors.


Early in my career, I spent many hundreds of hours representing a convicted capital murderer — the getaway driver on an intended empty-home burglary gone bad in which, while he waited unknowingly outside, his fellow felons had executed a Montgomery County juvenile officer with his own gun in front of his wife and children. I undertook the case at the specific request of a Fifth Circuit judge who discerned, correctly, that the legal issues involved were very important ones, and that the state of the Fifth Circuit's precedents on them was badly muddled — all of which meant that for the good of the entire judicial system, this man needed a first-rate constitutional lawyer to advocate his position.

The work was entirely pro bono, and the firm with which I was then employed — Houston-based Baker Botts — cheerfully ate all of those lost billable hours, along with thousands of dollars in out-of-pocket expenses. My client wasn't as depraved as his accomplices, but neither was he anything approaching innocent; and under any view of the facts, he was vastly more culpable than someone arguing about what may or may not be discussed during counseling on contraceptives!

When I was done with his representation (after two Fifth Circuit decisions with an intervening evidentiary hearing in federal district court), I was proud of the commendation I received from the court and of the service that I had performed to the Rule of Law. I had done my duty to my client, but not out of love for or identification with my client, and certainly not because I approve of cop-killers. As it happened, he ended up serving something over six years, which I thought was at least roughly appropriate, and which the State agreed to accept in lieu of re-trying him when I succeeded in having his original conviction overturned. (Of my client's two cohorts, one was executed by lethal injection, and the other was slain in the midst of another violent crime.)

So tell me, Dean — does that case disqualify me from being a "good conservative"?


Just as we have ethical obligations to attempt to put personal feelings about a client aside, both for the good of that client and for the good of the system, lawyers also have ethical obligations to recognize that we are fallible human beings who sometimes will be unable to succeed in those attempts. If, through chance, I'd been personally acquainted with the slain juvenile officer or his family from the case I just described, then when the Fifth Circuit asked me to represent someone complicit in his execution, I'd very likely have had to decline — not because I lacked faith in the system, nor because I lacked the willingness to support it even at the cost of doing things unpleasant to me, but because I would have such a disabling conflict of interest that I could not expect myself to genuinely represent that particularly client diligently and ably. As it happened, I had no personal connection to his case; but I could still only take it because I was satisfied that I could control my personal reactions to his conduct and therefore I was satisfied that I would not unintentionally throw his case.

Drawing those lines requires a deep look by each lawyer into his own soul and character. I have colleagues whose personal histories or deeply held views are so intense that they could not, despite their best efforts, render diligent service to any defendant accused of a violent crime. Or maybe they hold such rabidly anti-abortion views that they also couldn't defend a general contractor in unrelated commercial litigation simply because that contractor had once built a building to house a Planned Parenthood clinic. I'm equally as loathe to second-guess those self-recusals as I am to second-guess someone for failing to self-recuse.


Most people as smart as Dean grasp all this without much trouble. You don't have to be a lawyer to understand it, and it's frankly disingenuous to suggest that this is all some lawyer game or professional conspiracy. If you think you can't understand these principles, then try to imagine yourself in the hot seat — falsely accused, say, of being a child molester — and then decide whether you want your field of potential legal advocates reduced to those who positively approve of child molestation. What Dean refers to as Fred's "much-discussed essay on PowerLine" includes Sen. Thompson's reference to past political opponents who've badly stubbed their toes by underestimating the voting public, or overestimating their own abilities to fool the public using this kind of argument.

If you genuinely believe in the system, then you must accept that it depends on both sides in any given dispute having the benefit of capable advocates who are representing their respective clients diligently within the bounds of the law and the canons of legal ethics. You cannot dispute that principle without endorsing mob justice — which is, all too often, injustice, and which is never justice under the Rule of Law.

Does Dean realize that his argument about Khalid Sheikh Muhammad would put him right at the front of any mob opposing the Rule of Law? Is that really where he wants to make his stand? Because that's also a popular position to take in the sharia "justice system"— at least in the version favored by Khalid Sheikh Muhammad and practiced in some parts of the Islamic world.

Quite frankly, Dean should know better than this, and I suspect that he actually does (and would so acknowledge were he to give it further thought). I'm absolutely certain that his blogging host for this particular post, Hugh Hewitt, not only fully understands these principles, but has lived them and (as an accomplished legal educator) could more vividly and concisely explain them to Dean than I have.


UPDATE (Fri Jul 13 @ 10:35pm): I'm disappointed to read that Ramesh Ponnuru thinks the argument that a lawyer ought not be tarred with his clients' views is a "very weak argument." I'm genuinely baffled how such smart, principled pundits can have such a poor grasp of the legal system's fundamental precepts, and I genuinely do believe the rank-and-file public aren't so likely to be confused.

If your legal career has been as the general counsel of the A.C.L.U., or if you chose to devote most of your private practice to representing accused Mafia mobsters, that would be one thing. But one client, on one representation? That's so unfair as to be silly.

Posted by Beldar at 03:18 PM in 2008 Election, Law (2007), Politics (2007) | Permalink | Comments (11)

Wednesday, July 11, 2007

R.I.P. Lady Bird Johnson, 1912-2007

My own feelings about fellow Texan and former President Lyndon B. Johnson have evolved and become quite a bit more complicated over time. After starting with very negative opinion, I've generally become more admiring and sympathetic, and more appreciative of his great qualities that so highlighted the depth of his tragic flaws. And you cannot be a well-informed Texan without understanding how his legacy has profoundly affected, and indeed still affects, this state. But as I've read more biographies and other books that have added to my knowledge of him, I've also became more and more of a fan of his wife — born Claudia Alta Taylor, but universally known as "Lady Bird" since long before she married. My admiration for her is unmixed with the negatives that must color my views of her husband.

She passed away, peacefully, today at her home in Austin at age 94.

I don't think it's sexist or demeaning to recognize that one may be ennobled by what one undergoes and contributes on behalf of a spouse. And as a spouse, as in all other respects, LBJ was, to put it mildly, a challenge and a handful. Most of the country, probably including their own two husbands, saw Lady Bird as a dull sparrow compared to swanlike, glamorous Jackie Kennedy. But that's a very shallow view, and in more meaningful terms than glamor — in terms of service, direct and particularly indirect, to one's country and civilization — Mrs. Johnson comes off the superior of the two with the perspective of time.

This quote from the Austin American-Statesman's very good report of her passing is pithy and apt:

"I was once asked to describe her in one phrase," Harry Middleton, former director of the LBJ Library and Museum, said in a 1995 interview about Mrs. Johnson. "And the phrase I came up with was 'grace and steel.'"

And I'll also steal and reprint here the Statesman's photograph, which resonates for any Texan who knows her story and has ever reveled in a springtime hike or drive among the roadside bluebonnets and other wildflowers.

Former First Lady Lady Bird Johnson

Posted by Beldar at 11:58 PM in Politics (2007) | Permalink | Comments (5)

NYT, predictably snotty and silly, weighs in on the "trophy wife" meme for Fred and Jeri Thompson

Ed Morrissey at Captain's Quarters and Joe Gandleman at The Moderate Voice had similarly derisive reactions to the NYT's July 8th story on former Sen. Fred Thompson's wife, Jeri Kehn Thompson — the alleged "trophy wife" about whom I've already blogged, with lots more pix, a couple of times last month (here and here). Quoth the one-time national newspaper of record:

... Is America ready for a president with a trophy wife?

The question may seem sexist, even crass, but serious people — as well as Mr. Thompson’s supporters — have been wrestling with the public reaction to Jeri Kehn Thompson, whose youthfulness, permanent tan and bleached blond hair present a contrast to the 64-year-old man who hopes to win the hearts of the conservative core of the Republican party. Will the so-called values voters accept this union?

Fred & Jeri Thompson with daughter Heyden (photo: Erik S. Lesser/World Picture Network) The question is sexist, and it is crass. And "serious people," including Mr. Thompson's supporters (or those who, like me, are leaning that direction) don't have much trouble recognizing tabloid journalism practices even when they gush from the pages of the New York Times.

Then, if we "serious people" have any sense of humor — which the candidate and his wife certainly do — we simply laugh and shake our heads at the hypocrisy and, frankly, the dinosaurishness of those other people who think this might actually be a substantial hindrance to Sen. Thompson's campaign.

Gandleman, calling this "smelly journalism," makes the point that ought to have been obvious to the NYT editors (caps his):

So the writer of the piece knows for A FACT that when Thompson married his present wife, she was picked as a "trophy?" There was no love involved? No relationship? No friendship? She didn’t share some of his values and dreams? ...

[T]his Times story has a basic assumption that neither the writer or the editor could prove — one that should have been edited out from the lead of the story.

But if that had happened, then the story wouldn’t have GRABBED THE READER. And that’s what’s more important than showing accuracy and fairness, isn’t it?

Morrissey infers a motive more political than simple capitalistic circulation-pumping:

All it indicates to me is that Pinch Sulzberger and his staff seem very worried about a Thompson campaign, so worried that they have already started attacking Fred's family rather than discuss his policy stands, contained in essays that he has published for months at Townhall and ABC. The caliber of these attacks show the quality of the opposition to Fred, and also give Fred some indirect credibility, as his opponents don't appear to have confidence that they can beat him on the issues.

They're both right.

As for me, I'm confident that somewhere on Hillary Clinton's nightstand is a list of "General Election Attack/Rebound Issues" that she constantly reminds herself to avoid raising herself, in lieu of properly insulated attacks to be made only by proxy. One of them, I'm sure, already has to do with Jeri Thompson — her hair color, her tan, her curves, and especially her age. It's part of the methodical nature of a Clinton campaign to leave no attack unmade, even if the number of voters who will potentially respond to the attack is fairly small, as I think is the case in 21C America with an attack based on an opponent having "married a 'trophy wife.'" Put another way: I think vast majority of people who are likely to be fixated on Fred Thompson's and his spouse's relative ages or looks in a negative way are people who have already decided to vote against the GOP nominee, whether that turns out to be Fred Thompson or someone else.

But surely someone on Hillary's staff has snapped to this reality and already pointed it out to her: The most potentially powerful way in which Jeri Thompson's looks and age might affect the 2008 presidential campaign is via a backlash against a candidate stupid enough to be caught trying to make them an issue — particularly if that's a candidate who is herself still more famous as a politician's wife than as a politician in her own right.

Posted by Beldar at 11:20 PM in 2008 Election, Mainstream Media, Politics (2007) | Permalink | Comments (0)

Tuesday, July 10, 2007

Richard Viguerie's back-handed endorsement of Fred Thompson

Some decent-sized and particularly annoying percentage of my email spam comes from Richard A. Viguerie, who's a prominent example of the species of self-appointed über-conservatives who claim a monopoly on being able to vet other conservatives. The only half-sentence of his new anti-Fred Thompson screed (h/t Ramesh Ponnuru) that you need to read is this one, which comes from somewhere in the middle (when he's actually looking at Thompson's voting record as a senator):

Fred Thompson’s record may appear to be "conservative," but only by comparison with Rudy Giuliani, John McCain, or Mitt Romney ....

One of those four men is going to be the Republican nominee for president in 2008. And I'm 98% sure that it won't be John McCain, so we're really only talking about three of them. For those of us conservatives who live in the real world (instead of Viguerie's paranoid fantasy world), we'll almost certainly be choosing among Rudy Giuliani, Mitt Romney, and Fred Thompson for the Republican nomination. The winner will be pitted against either Hillary Clinton, Barack Obama, or John Edwards. If the likes of Viguerie can't get their minds around that — if they can't recognize that this is a multiple-choice test with a limited number of options — then they've guaranteed that they'll never be more than irrelevant annoyances to the GOP and to national (i.e., non-academic, non-think-tank, and non-consultancy) political conservatism generally.

(It's not that I'm against all academic, think-tank, or consultant conservatives either. It's just that I recognize that they make up, oh, something like 0.00003% of American voters, or maybe 0.00006% of American conservatives.)

If you're wondering why I describe Viguerie as living in a paranoid fantasy-world, just note that his website — following the title of his latest book (currently ranked No. 51,059 on Amazon, only slightly above the hot-selling Amigurumi!: Super Happy Crochet Cute (Paperback)) — is www.conservativesbetrayed.com. If you're wondering how Viguerie became a spammer, recall that his background is actually as a political direct mail advertising salesman. And if you're wondering how Fred Thompson in particular got Viguerie's panties in such a wad, here's a broad hint, taken directly from Viguerie's rant:

Where are the long-time conservative activists today around Fred Thompson? Not campaign consultants who sell themselves to the highest bidder at campaign auctions. No, dedicated and recognized conservative thinkers and activists who will work only for truly conservative politicians.

Go ahead, try and name one. And if conservatives were not part of his inner circle before he started running for the presidency, we cannot expect him to have conservatives in his inner circle if he gets elected. And in politics, personnel is policy.

Translation: Fred hasn't sufficiently flattered, or better yet (from the latter's viewpoint) hired, Richard Viguerie or his "long-time conservative activist" buddies. Therefore, ipso facto, Fred isn't a "real conservative" (as defined by Richard Viguerie and his buddies). And I guess by that standard, as a mere blogger, I'm probably not "conservative enough" for Viguerie either. (I need a very, very small hankie to dry my tears that this realization prompted. Oh, wait ... never mind — those weren't tears, it was mist from the Diet Coke I just opened.)

By recognizing, in the sentence I've quoted at the beginning of this post, that Fred Thompson's record is more consistently conservative than Giuliani's, McCain's, or Romney's, Viguerie is actually giving Thompson a back-handed endorsement. But then, for those of us who've compared their records, it's not like we ever needed Viguerie to tell us that Thompson's record is more conservative.

And records aren't everything. Current positions and promises do matter. So, too, does electability and its necessary component, grace under sustained pressure. I'm still looking at all three of the realistic GOP contenders to evaluate those aspects of their candidacies. And that's particularly why I'm eager for Fred to formally declare and to put himself into the trenches and under the spotlights. If he meets my expectations and hopes on those non-record aspects, then his record is certainly conservative enough for me that I'd have no hesitation, and indeed that I'd have great enthusiasm, in voting for him over any of the potential Democratic nominees.

That's the real world, Mr. Viguerie. Now that I've pretty deliberately insulted you, would you take me off your email lists? Please?

Posted by Beldar at 07:50 PM in 2008 Election, Politics (2007) | Permalink | Comments (8)

Al Qaeda's plan to win the war by winning in the U.S. Capitol

Once again, as so often, I find myself on exactly the same wavelength as Andy McCarthy:

When you let them have Iraq, like we let them have Afghanistan in the 1990s, they tend to want Manhattan.

Please read the whole thing. Brother McCarthy — the former federal prosecutor who's successfully prosecuted Islamic terrorists, yet who articulates so well and consistently why the war on Islamic terrorism isn't a primarily a matter of criminal law — brings you the detailed and very specific al Qaeda quotes that need to be hurled into the teeth of Hillary Clinton, Nancy Pelosi, Harry Reid, and their ilk (bodadpaf) on the Capitol floor.

That's exactly where al Qaeda has always intended to win this war, and the only place where they can. Unfortunately, their chances there look better than ever — especially if, as also seems increasingly and distressingly likely, a large handful of congressional Republicans go along.

Posted by Beldar at 07:14 PM in Global War on Terror, Politics (2007) | Permalink | Comments (5)

The Bodadpaf (or: "Beldar's obligatory disclaimer about Dems' patriotism and foolishness")

I've written this, or words like it, many times before, but I'm just sick of having to say it again. So from now on, every time I otherwise would have written out the following, I'll just throw in a link to this post instead:

I'm not "questioning their patriotism." I'm not criticizing the Dems for being unpatriotic, much less accusing them of willful treason. Instead, I'm faulting the Dems* because they're reflexively America-blaming and Bush-hating, selfish, power-hungry, short-sighted, naïve, ignorant of history, and generally foolish beyond measuring — all of which makes them into useful fools who our enemies can easily exploit, and upon whom our enemies can (and expressly do) therefore rely. Although it is not the Dems' subjective intention to harm America or the rest of the civilized world, that will be the direct, inevitable, and profoundly foreseeable consequence of their actions. And when the next 9/11-scale event happens, they will not be excused of their moral and political responsibility for those consequences simply by virtue of the fact that they were "patriotic idiots" instead of "mere idiots."

Sadly, I fully expect this "Bodadpaf" to become my internally most-linked post ever.


*By "Dems" I mean the current Democratic Party leadership (Reid, Pelosi, Dean, etc.) and its current leading candidates for its presidential nomination (Clinton, Obama, and Edwards). I exclude past Democrats like Harry Truman, John Kennedy, and Scoop Jackson, and their  single prominent modern counterpart, Joe Lieberman.

Posted by Beldar at 07:09 PM in Global War on Terror, Politics (2007) | Permalink | Comments (5)

Wednesday, July 04, 2007

We are bloggers, hear us roar

On the subject of the power of conservative blogs, Patterico links and quotes the Wall Street Journal and Allah at Hot Air, before opining himself:

[W]ell-written and insightful blogs can have an influence beyond that reflected by our admittedly pathetic hit counts. Reporters and politicians’ staff members monitor the better blogs for an indication of how the public feels. People e-mail posts to friends and relatives. And because the Internet is everywhere, you never know whom you’re going to reach.

It would be foolhardy for blogs to take all the credit for any major political occurrence like the defeat of amnesty. But blogs’ significance should not be unduly downplayed, either.

Allah, in turn, had linked and paraphrased Dean Barnett before writing:

[R]ight-wing blog readership is so pitifully small that we can’t influence much of anything except when opinion is unusually and passionately united on an issue, in which case Republican legislators might note it as a sort of "early warning system" for how the base at large is going to react.

The metaphor I'd prefer, actually, is biology and in particular biofeedback. There, you have what is by number, volume, or mass a comparatively tiny number of comparatively complex molecules that trigger, suppress, and otherwise affect one another — all of which, collectively, end up having a huge role in determining the actions of the major systems that collectively make up the organism. And it's a very distributed process. It's hard to say, "Here are the individual molecules that generated that allergic reaction that caused me to sneeze so violently that I ruptured a cervical disk." A lot of other things also go into the total causation of that ruptured cervical disk, too, but we may have a place in the causal chain whose importance is indeed disproportionate to our size and number.

Call us irritants, accelerants, catalysts, messenger RNA, or whatever. But ignore us, collectively, at your peril. Because when the circumstances line up just right and the chain reactions start to cascade, we can induce sneezing, spasming, nausea, confusion, headache, muscle ache, diarrhea, vomiting, and erections that last more than four hours.

(I'm talking to you, Dan Rather, you pathetic metaphor-mixing has-been. And are you listening, John ("my candidacy is toast but I can't admit it yet") McCain?)

Posted by Beldar at 02:35 AM in Weblogs | Permalink | Comments (4)

Tuesday, July 03, 2007

You know you are suffering from Bush Derangement Syndrome

... when you become incensed that he says this:

"I rule nothing in or nothing out," Bush said when asked about whether he might pardon Libby before leaving office in January 2009.

You and I, gentle readers and fellow pundits, can speculate and prognosticate and ruminate to our hearts' content, and no one seriously accuses us of trying to subvert the justice system, implement a coup d'etat, or take over the world on the basis of our carefully structured analyses spun from pundit-sugar.

But that's exactly what Dubya was suspected and explicitly accused of during the four years before the commutation decision, during all of which time he refused to rule anything in or out. It's exactly what Dubya was accused of when he made the commutation decision yesterday. And it's what he's being accused of now that he is, once again, refusing to rule anything in or out as of today for the future.

At least ever since there were rather severe consequences to the phrase "Who will rid me of this meddlesome priest?" in 1170, chief executives have tried to be more discrete.

Posted by Beldar at 05:08 PM in Law (2007) | Permalink | Comments (4)

80,277 reasons why Sandy seriously ought not fret so much about whether the Libby commutation threatens the Republic (or even The New Republic)

I've blogged before about Sanford V. Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at my alma mater, Texas Law School. I had the privilege of editing a book review that he wrote for the Texas Law Review, and he was my legal ethics professor during what was my last year, and his first year, at UT-Law in 1980. He's appeared most notably in the meta-pages of BeldarBlog in October 2005 as a soundly defeated courtroom foe of the supposedly constitutionally inadequate Harriet Miers. He's also a frequent blogger at Balkinization, a very fine and rabidly progressive law profs' blog that I peruse whenever I'm feeling either in need of comparative evidence of my own intellectual adequacy (rare) or sleepless (somewhat more common). I genuinely like and admire Prof. Levinson, who I almost feel like I could call "Sandy" in person and without rebuke.

I wish, therefore, that I could have the chance to buy, and then split with him, a pitcher of Lone Star over at the Posse East this afternoon, so we could talk over his current anxiety.

You see, writing in The New Republic Online (not firewalled, hurrah! h/t Ramesh Ponnuru, who reads TNR so I don't have to), Prof. Levinson found himself so very fretful about the Libby commutation that he couldn't "restrain [him]self" from, well, fretting pretty much all over his op-ed there — but to my astonishment, he doesn't lay all the blame on the obvious whipping boy, i.e., the current occupant of 1600 Pennsylvania. There's another, very surprising villain who's implicated here, says he:

No one should doubt that we are in a constitutional crisis. And part of the crisis can be found within the Constitution itself.

The snarky reply to this is, of course:  America under constitutional siege by its own Constitution — Day 80,277!

Prof. Levinson allows how Pres. Clinton's pardoning of Marc Rich was, "[a]s with so much of the Clinton presidency, ... tawdry but unthreatening to a Republican Form of Government." Well, okay, I'll buy that, as long as we're sticking to things that are provably corrupt. That's a good suggestion; let's not go speculating about presidential motives. But how, then, can he write in the next sentence, of Dubya: "Mr. Bush's commutation, is such a threat, unless, of course, one defines a 'Republican Form of Government' as 'Government by the Republican Party.'" And with what proof, with what evidence for this sweeping condemnation? Well, that would be what they taught me at Texas Law School to call "sweeping, wild-ass speculation":

The best explanation of the pardon is not compassion but, rather, fear that Mr. Libby might be tempted to provide more information about the cabal to turn the presidency (and vice-presidency) into "regal," if not out-and-out dictatorial, authorities totally independent from any scrutiny or accountability.

You see, in America, we don't need M1A2 tanks on the Mall to let us know there's a coup d'etat in progress. We can know it's true simply because we read it in the words of blogging liberal law professors.

Okay, here's the deal: I'll pledge 1000 hours of my time to lead the drive to endow a new super-duper $50M chair at Texas Law School. The sole condition is that the Law School faculty en masse, and the chair's holder in particular, must pre-commit that if the chair's holder ever accuses an American president — any American president — of being an "out-and-out dictatorial [authority] totally indepedent from any scrutiny or accountability,' then he (the professor) must go live and teach for a year in any country whose name ends in the syllable "-stan."

But in fairness, as constitutional crisis-mongers go, Prof. Levinson's reaction is actually comparatively restrained, and maybe he thought better of his excessive fretting after a night's sleep or a morning nap. In comments, he writes:

As crises go, the Libby pardon may not count very high on the Richter Scale, but even minor earthquakes are nonetheless evidence of trauma and, on occasion, signal the likely occurrence of something much more major.

Still: A minor earthquakes? Earthquakes? Is Prof. Levinson's promised next paper with Prof. Balkin going to be called, "Tectonic Faults in the Constitutional Seascape of the Pardons Clause"? Man! I want to get in on the bidding for the movie rights to that one! ("And featuring Academy Award-winner Al Gore in a double-role as 'Gouverneur Morris' and 'Professor Richter'!")

Prof. Levinson, I know, already had his poly-sci PhD and had just finished law school for his JD in 1973-1974, when America actually was on the brink of a constitutional crisis. I was reading the UPI news feed into the microphone as a DJ at radio station KPET-AM in Lamesa on the day Nixon boarded Marine One for the last time in August 1974. And I certainly haven't forgotten that time, nor the Supreme Court decisions and grand jury proceedings and congressional impeachment hearings that all led up to it. And who can forget Florida 2000? Then, too, good arguments could be made that we were on the brink of a constitutional crisis.

Nowadays, I throw the term "crisis" around pretty lightly. I was in the drive-through lane at Whataburger's last night and dropped a dime I needed to be able to provide exact change for my grilled chicken sandwich, and that was a crisis, I thought at that moment. (A "grilled chicken sandwich/exact change crisis," to be precise.)

But ... "constitutional crisis"? Doesn't that call for an incredulously interjected "Seriously?" from each of his students, like the interns do on Gray's Anatomy? Shouldn't a distinguished law professor be a little more discriminating about the use of that term? With all due and genuine respect to Prof. Levinson, I seriously tend to think so.


UPDATE (Wed Jul 4 @ 1:35am): Prof. Levinson reconfirmed my clear recollections of his warmth, humor, and good manners in the following email exchange with me (republished here with his permission):

----- Original Message -----
From: Bill Dyer
To: Sanford Levinson
Sent: Tue Jul 03 16:28:13 2007
Subject: New offer for a UT-Law endowed chair -- seriously!

Prof. Levinson,

I don’t subscribe to TNR so I can’t comment on your op-ed (if that’s what it should be called) there. But here’s a link to my own blog post about whether the Libby commutation is (or isn’t) a constitutional crisis.


Best regards from your former student,

- Bill Dyer a/k/a Beldar

----- Original Message -----
From: Sanford Levinson
Sent: Tuesday, July 03, 2007 5:21 PM
To: Bill Dyer
Subject: Re: New offer for a UT-Law endowed chair -- seriously!

I could take refuge in the fact that the title was given my piece by the New Repoulic, but that would require ignoring the fact that I did indeed use the term.  "Crisis" is probably hyperbolic, but my main point was that this was precisely the kind of (ab)use of the pardon power that George Mason and Luther Martin feared in 1787.  And who knows what further indictments (and pardons) are going to come before 2009?

All the best,


----- Original Message -----
From: Bill Dyer
To: Sanford Levinson
Sent: Tue Jul 03 17:32:13 2007
Subject: RE: New offer for a UT-Law endowed chair -- seriously!

IF you attribute to Dubya the motive you did, THEN it is exactly the sort of abuse.

If you read what he wrote and credit that instead, then it’s the sort of use envisioned by the Founders.

We can surely agree that this is in the eye of the beholder, or at least a highly subjective question of motive about which partisans are unlikely to agree.

But thanks for the prompt reply!  I won’t quote your email without permission, but feel free to post, now or whenever, in my humble blog’s comments. Or if you’d prefer, I’d always be glad to reprint your written reaction from an email in my blog text if (but only if) you gave permission. (I did that recently in a very civil dialog with Marty Lederman on executive privilege … I’m about to re-engage with him, I hope, on the subject of Cheney and the executive order on classified materials, oh joy!)

- Beldar

----- Original Message -----
From: Sanford Levinson
Sent: Tuesday, July 03, 2007 6:46 PM
To: Bill Dyer
Subject: Re: New offer for a UT-Law endowed chair -- seriously!

I agree with you that much depends on how one assesses W's motive (and takes his statement seriously, though even then it's hard to see that any jail time at all is "excessive," especially given the Supreme Court decision a few weeks ago.

Feel free to use my reply however you wish.

All the best,


Posted by Beldar at 03:54 PM in Humor, Law (2007) | Permalink | Comments (9)

On Libby's sentence enhancement based on unproved crimes

It's now a moot issue, and I'm far from an expert on sentencing. Given the commutation of Libby's sentence, I now no longer intend to do the sort of research and preparation that I had planned for this post. But I do want to write briefly (by my warped standards) about the problem I have with Libby's 30-month prison sentence that President Bush just commuted. So consider what follows to be an admittedly half-baked opinion.

The subtitle of this post could be: "No sentence enhancement was appropriate unless Fitz at least had a legitimate 'Drat that Libby!' shout."

(Note: The premise for this whole post, necessarily for purposes of argument, is that Libby is guilty. You can't talk about sentencing meaningfully otherwise. It's just a premise, though, and just an assumption arguendo; don't read it into me saying I'm 100% persuaded of Libby's guilt, because I'm neither 100% persuaded of his guilt or of his innocence.)


Post-Booker, we're still not quite certain if the U.S. Supreme Court has finished shaking up the constitutional outlines of sentencing law. Scooter Libby's sentence is now guaranteed not to make any new precedents on that. Except for the commutation of his prison sentence, though, it might have. The sentencing guidelines under which Libby's 30-month sentence was determined permitted Judge Walton to take into account, in connection specifically with the obstruction of justice count, unproved and possibly unprovable crimes under the Espionage Act and the Intelligence Identities Protection Act. As best I understand the current state of sentencing law, that's probably okay, so long as it's not mandatory but discretionary on the part of the sentencing judge.

I understand, and agree with, the particular rationale behind permitting an unproved crime to be used as enhancement for obstruction of justice. Otherwise, you would have the effect of effectively rewarding those who've successfully obstructed an investigation into, for instance, an IIPA violation.


To illustrate the general point, look with me at a couple of hypotheticals.

Suppose Scooter Libby's obstruction of justice had been, for example, destroying unique and irreplaceable documents from the National Archive, of which there are no completely identical copies, and without which we are unable to inquire into the identities, actions, and motivations of co-conspirators at whose behest he was acting. Suppose he'd filched a copy of a memorandum on the margins of which his co-conspirator had made an incredible handwritten admission: "Good thing the press never looked into this, because this happened during was the week I accepted a bribe from those Saudi princes." Sure, there are other copies of that memorandum in the Archives — but none of them had that one hand-written tidbit, and Libby has now stolen and destroyed the version that did have the handwriting. Assume further that without that unique document, we now can't even figure out who the co-conspirator was, much less prove his guilt through such an unqualified admission. So in this hypothetical, we assume that we have a genuine case of international espionage, bribery, and treason which is therefore unable to be prosecuted — but all that Libby can be convicted of is obstructing justice when he  stole and destroyed the memo. (Assume with me that without the destroyed memo, there's also not enough corroborating evidence for a conspiracy charge.)

In those circumstances, would it be fair to enhance Libby's obstruction of justice sentence by considering the serious nature of the crimes whose investigation and prosecution he successfully obstructed? Sure, I have no problem with that. Indeed, we definitely ought not let such deviousness go unpunished, especially when, by the success of the devious acts, we may never know the whole scope of what additional crimes were committed or by whom.

Or let's take the same hypothetical, but change one fact: Contrary to Libby's expectation, FBI agents found the remains of the acid-stained document, and FBI forensic scientists have been able to make out the handwritten language. Same obstruction of justice, in other words — and it might very well have worked! But this time it didn't. Assume that Bill Clinton Mr. X was caught and duly punished for bribery, espionage, and treason, despite Scooter's obstruction. Once again, on this hypothetical, I have no problem enhancing Libby's obstruction sentence based on the unproved crimes, based on his clever-but-failed obstruction scheme.


Here, though, the prosecution has not been able, as far as I understand, to articulate a causal chain in which anything that Libby did actually did obstruct Fitzgerald's investigation, or even a plausible chain of events by which it could ever have been expected by Libby or by anyone else to do so. There wasn't anything to his obstruction, in other words, than telling a story that would conflict with someone else's story. Nothing was permanently hidden; no path of inquiry was blocked. For Libby's feeble obstruction to have succeeded in hiding another crime, or preventing its investigation and proof, the FBI and Fitz would have had to be completely vegetative.

In first my hypothetical above, at some point during his investigation, Fitzgerald shouts, 'Drat that Libby! Now that he's poured acid on the only copy of the memo with the handwritten notes, we'll never know who Mr. X was!" Or in the second hypothetical: "Drat that Libby, Mr. X might have gotten off but for the competency of our investigation!"

So what's the "Drat" shout that Fitzgerald could make about anything Libby did here? What even hypothetical evidence did Fitz forever lose based on the sand that he claims Libby tried to throw in his eyes?

All this is to say: When an obstructer of justice has been so painfully inept at it as Libby turned out to be, or ever even boded likely to be (from this kind of conduct) I think it may indeed be an abuse of discretion for the unproved crimes to be considered for purposes of sentence enhancement.

Judge Walton would probably say to this argument that he didn't enhance Libby's sentence nearly as much as the guidelines would have authorized him to do, given the nature of these specific unproved crimes. But unless you can articulate how the prosecution actually was ever at any risk of being prejudiced on these facts, I can't see that any enhancement at all is appropriate.

"Well," Fitz might say, "We had to spin their wheels longer to clear up the confusion that Libby created." Fine, that's true. But that's built into the penalties for garden-variety obstruction, un-enhanced.

"Well," Fitz might say, "Libby didn't know that we had identified Armitage as the first leaker, and he thought he might have been the only leaker, and so he was protecting himself from a potential espionage or IIPA charge by concealing his status as a co-leaker (but not first leaker)." Okay, that's fine too — but if so, that was an awfully stupid, naïve plan, and it certainly didn't prevent you from developing other evidence from the witnesses who Libby did admit to speaking with that Libby was a co-leaker, and it certainly didn't interfere with your ability to charge and try to prove all of the other elements of those crimes if you thought such crimes were indeed committed. So tell me what you could have been expected to actually miss, Mr. Fitzgerald, from the sand that Mr. Libby threw in your eyes?

This just seems to me to have been a spectacularly bad case for enhancement on its facts. It was the weakest part of Fitz' closing argument on obstruction, too, but you don't have to have had a clever, sensible, easily understandable and plausibly successful obstruction plan to be convicted for obstruction.


A few points in closing about Mr. Fitzgerald: Saying that I think there's a hole in Fitz' argument on enhancement that Judge Walton ought to have seen, or a hole in Judge Walton's sentencing explanation on enhancement that an appellate court ought to have seen, is not at all the same thing as saying that "Fitz = Nifong!" or that "Fitz and Reggie are proceeding in bad faith!" or that "This is a partisan witch-hunt!" I expect every prosecutor to argue for the outside limits on sentencing most of the time, especially when the defendant hasn't shown contrition. And when trial judges explain what they've decided, that necessarily reads like they're defending themselves against being reversed on appeal, and that's okay too.

I also disagreed with Team Fitz, Judge Walton, and the D.C. Circuit on whether Team Libby had raised a "genuine question" for purposes of bail pending appeal. But that doesn't mean anyone involved is a Nazi.

I'm not surprised that Fitz continues to defend his now-mooted position on sentencing, either. I do think, however, that he probably spoke unnecessarily and unwisely in issuing a press statement quibbling with Dubya's commutation statement:

We fully recognize that the Constitution provides that commutation decisions are a  matter of presidential prerogative and we do not comment on the exercise of that prerogative. 

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.”   The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country.  In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws.  It is fundamental to the rule of law that all citizens stand before the bar of justice as equals.  That principle guided the judge during both the trial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process.

Dubya's description of the sentence as "excessive" certainly wasn't an evaluation of the sentencing guidelines or their use here. He's not looking at it from the standpoint of a sentencing judge or an appellate panel, but from the point of view of a President, and he's entitled to consider additional and different factors.

Fitz is an advocate doing his job — and the way the system works is that someone else has the job of advocating the opposing position just as fiercely. The problem with this particular statement, though, is that arguing with the President in the press isn't really part of Fitz' job. Since all of the imprisonment issues are now permanently mooted, there's no more need for him to be arguing about the prison sentence in court either. Arguing about it anywhere now comes across as being political, instead of just being a vigorous advocate. Doing so isn't bad faith; I think it's just a garden-variety error in judgment, albeit on a brightly lit high stage. As with his mistaken accusation of Libby as being the "first leaker" in the indictment press conference, he's made another misstep outside the courtroom — one that contrasts so vividly with his successful footwork inside them. He should continue to let his court filings do his talking.

Posted by Beldar at 04:18 AM in Law (2007) | Permalink | Comments (9)

Beldar on the blogosphere's reactions to the Libby commutation

My own extended remarks now posted, I'll comment on just a few other posts with reactions to the Libby commutation that catch my eye.

Emptywheel at The Next Hurrah posts that "George Bush obstructs justice." This is true if, but only if, your concept of "justice" involves a Constitution that excludes the pardon power. Otherwise, it's just loose and over-the-top rhetoric.

Ed Morrissey at Captain's Quarters posts that Dubya was "Splitting the Baby," and writes that "like Solomon, Bush will probably find neither side satisfied." But he thinks the decision "strikes a balance that few will appreciate now, but later will accept as wise, as far as it goes." I wouldn't have used this metaphor, but I don't disagree with Ed's comments.

Jeff Goldstein thinks that Dubya should have just gone the whole nine yards at one fell swoop:

[I]f the President was going to take the kind of sustained heat he’s about to get from the press and Congressional Democrats, anyway — and believe me, they’ll be falling over themselves to get in front of a camera to talk about the Republican culture of corruption — he should have just done the right thing and pardoned Libby completely.

That's rather the point, though: Dubya obviously didn't think that pardoning Libby completely was the "right thing." I take the President at his word that he believes the appeals process should play out, and that implies pretty strongly, I think, that he's willing to accept its final results as being, well — final.

Volokh conspirator Prof. Orin Kerr (with whom chief conspirator Eugene Volokh concurs) finds "Bush's action very troubling because of the obvious special treatment Libby received. President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail." And, consistent with that, Bush didn't commute Paris Hilton's sentence either, did he? The thing is, for all of Paris Hilton's celebrity, her traffic offenses and jail time were run-of-the-mill. So what kind of case, Prof. Kerr, would it be okay to get the President's specific and unusual attention, if not Scooter Libby's?

Writing on the HuffPo, Jeralyn Merritt asserts that "Hypocrisy, Thy Name is Bush," taking Dubya to task more for varying from his previous statements that he'd let the system play out than (at least in this post) the merits of the decision. "Bush's arrogance is apparent from the extent to which Scooter's clemency decision departs from Justice Department guidelines on pardons and clemency," she continues, which generally provide that requests aren't accepted until your appeals are exhausted and you're serving your sentence. That's true, and a very powerful argument — if (but only if) you're the sort of person who's into what I'd call "footnote justice." That's someone who thinks that departmental regulations from the C.F.R. are holy writ, and the Constitution isn't. It's certainly true that this departed from the "ordinary course" routine "pardons and clemency" process that tens of thousands of convicted criminals try to employ. But this decision wasn't made on the basis of an application from Libby's lawyers to the DoJ anyway! I don't think even Jeralyn would argue that this is an "ordinary case" in any respect. Is Dubya supposed to be among the handful of politically, governmentally aware adults in the U.S. who is immune to interest in this case?

Meanwhile back at TalkLeft, her co-blogger Big Tent Democrat draws the obvious conclusion from this event using razor-sharp logic: "Will our Democratic representatives wake up and understand NOW that he will never end the war in Iraq — that only a Congress that says no to funding the Debacle past a date certain can end the war? I doubt it." I doubt it too, Big Tent. The President's position on the war is just too obscure to top congressional Dems, notwithstanding this latest, abundantly clear war message from the White House.

It's "an excellent resolution," writes Power Line's John Hinderaker, that "will go over well with the party's conservative base and will contribute, to some degree, to a restoration of Bush's standing with conservatives." I hope in later posts John and his co-bloggers will expand on this. It's a long time until January 2009, and conservative self-immolation out of dissatisfaction with George W. Bush for that long a period is definitely not productive.

Kevin Drum writes:

The only thing I didn't foresee was that Mr. Principle would carefully read the polling tea leaves and commute only part of Libby's sentence so that he could pretend this was some kind of deeply profound Solomonic judgment, not just a craven favor for a friend. His statement along these lines is enough to make one ill. Ugh.

That's so shallow. How can an intelligent left-leaning pundit discuss the distinction between outright pardon and commutation, and still refuse to even acknowledge the possibility that it's a reverence for justice which has caused President Bush to deliberately allow the appeal to go forward, with the serious possibility that the conviction will be affirmed? Reading "polling tea leaves" would have dictated either a full pardon or no relief at all.

It's like the Hard Left's outrage dials only have one setting — 11.

My friend Patterico isn't pleased — and it would be the rare current prosecutor who would be, I suppose:  "You do the crime, you do the time. The jury said Scooter Libby did the crime. He should do the time." He thinks Republicans will be "slaughtered" in the 2008 election because of this, and that's certainly what the Dems will try to do. "This particular convicted felon wasn’t worth it," he writes.

I appreciate this viewpoint, and Patterico and I have been among a pretty small minority of conservative bloggers who've been supportive of Fitzgerald and skeptical of those who argue that the whole Libby prosecution is bunk. I suspect that my friend would agree with me that if we start applying a relativistic approach — comparing Libby with, say, Sandy Berger — the Libby commutation would look better. But he'd also certainly argue that a relativistic approach is improper, and I tend to agree with that; and he'd argue that Berger going unpunished doesn't justify others going unpunished, and I definitely agree with that.

Indeed, if I keep hypothesizing Patterico's arguments, I may talk myself into his position here.

What he and I — and, with respect, you too, gentle readers — all lack is what I'll call the "sweaty shirtsleeves perspective" that Dubya has. If there is a basis for showing mercy, for indulging in an act of "constitutional grace," for Scooter Libby, it is because of the public service he's rendered during his career — not for reasons particular to this prosecution. Critics see it as cronyism, but in fact, no one is better qualified to judge the value of Libby's public service than President Bush. Huge, huge portions of what Scooter Libby did as a key inside figure in implementing the Administration's response to 9/11 and global terrorism is still highly classified. But the President knows on a first-hand basis what the man contributed, what its value has been, and under what critical and pressure-filled circumstances he served. And as it happens, George W. Bush is the one person in whom the Constitution entrusts the power to weigh that public service against the serious crimes of which Libby stands convicted. And he clearly thinks "this particular convicted felon" is deserving, even though there will be a political price to pay.

Patterico may doubt his wisdom, but in this instance, I doubt he doubts Dubya's sincerity. To the extent I have a basis to judge, I can't disagree with the judgment President Bush has reached, and I think in fact that I actually do agree.

Finally, Dr. James Joyner at Outside the Beltway shows a deft touch at punditry through music video link-posting, which I'll repeat:

The more I know, the less I understand.
All the things I thought I'd figured out
I have to learn again.
Ive been trying to get down
To the heart of the matter,
But everything changes
And my friends seem to scatter.
But I think its about forgiveness,
Even if, even if
You don't love me anymore.

Posted by Beldar at 01:01 AM in Law (2007) | Permalink | Comments (3)

Monday, July 02, 2007

On prediction for Dubya's Libby commutation, Beldar shoots — and he scores!

It would appear that my crystal ball is better for predicting behavior from Dubya than from the D.C. Circuit.

Beldar (writing as Dubya), on June 7, 2007:

Without undermining our law enforcement system, the Constitution gives every President the power and the responsibility to weigh competing considerations, including very subjective ones, to ensure that genuine justice is done even in individual cases. And it is in fulfillment of that responsibility that I exercise that power today to commute Mr. Libby's 30-month prison sentence — while deliberately leaving in place, at least for the present, his conviction and the remainder of his sentence, including the very substantial monetary fines and two years of supervised release.

I do so without prejudging or even making any implied comment on how his ongoing appeal should turn out, and I do so without endorsing any of the conduct that the jury found to be blameworthy. I do so knowing that in the tragic story of Scooter Libby — as already written, and as yet to be finished until his appeals are done — there is already an ample deterrent to any public official who may ever be tempted to commit perjury or obstruct justice, so that this act of mercy will in no way encourage future lawlessness.

And finally, I do so knowing that reasonable men and women of decency and good will might reach a contrary conclusion to the one I have reached, or that they might have continued to reserve judgment until after Mr. Libby's appeals had been completed, even if that meant he would serve prison time on a conviction and sentence that might ultimately be overturned. I respect those views, but I cannot substitute them for my own. It would be easier, frankly, to permit Scooter Libby to simply go to prison, but I believe it would be wrong, and that it would be an injustice, and that my responsibilities under Article II, Section 2 of the Constitution in this particular case require me to take the opposite course to this limited extent.

So I act now with grave purpose, and with a humble acknowledgment of the imperfections of our species, and with thanks for the grace we enjoy as citizens under the Constitution and laws of these United States of America.

Dubya (writing as President George. W. Bush), today:

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.

The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.

I still like my version better, but his will do. I do especially wish he'd used the words "mercy" and "grace" — because that's what this decision was all about.


Some pundits had suggested that Dubya ought to issue a "respite" — that is, an executive stay pending appeal, simply keeping Libby out of prison pending the resolution of his appeal, but leaving open the possibility that he'd still have to do prison time if the appeal is unsuccessful. This appealed to me when I first heard it suggested because it's so tightly tailored.

But it would have generated political consequences for Dubya almost as great as an outright commutation, and would have left open the possibility that Dubya would have to reconsider a commutation or outright pardon on a later date.

One thing is certain: Today's commutation ends presidential involvement in this case. If Libby's appeal fails, there is essentially no chance that Dubya will pardon him outright. So from the presidential perspective, today's result provides total political closure — although it emphatically and pointedly does not provide total legal closure from Libby's or Fitzgerald's point of view!


Some pundits will be disappointed that Dubya did not pardon Libby altogether. That would have abruptly ended the ongoing appeals process. It would have left Libby free from any further official consequences, without the $250k fine or even the disabilities that attend a felony conviction. But if you are a Libby advocate or sympathizer (I'd say I'm the latter but not the former), and that is your view, then think twice, and thrice.

A full pardon also would have left Libby with the full stain of the conviction in the public eye. Something that has been little commented upon — except, perhaps, in the bowels of the comments at Just One Minute or several left-leaning blogs that have followed the case far more closely than I have — is just what Libby's best-case and lesser options are from the appellate process.

  • Odious comparisons between Fitzgerald and Nifong notwithstanding, there is zero chance that Libby would ever be affirmatively cleared and proclaimed innocent by the prosecutor here.

  • That leaves as Libby's very best-case appellate option one that is still so unlikely as to be a near-impossibility: a ruling by the appellate court that there was insufficient evidence for any rational jury to have convicted. That would be the equivalent of an appellate directed verdict in Libby's favor, and it would firmly establish him as being "not guilty" in the eyes of the law. On the rare occasions when this happens, retrial is barred by the double-jeopardy clause of the Constitution. I would guess that that happens in well under one percent of appeals, and it's not going to happen here; his lawyers may not even make the argument on a perfunctory basis. "Rational jury" for purposes of this appellate test means one that's presumed to have resolved all of the credibility issues against the defendant, and to have drawn all possible inferences from circumstantial evidence against him. When that hard standard is rigorously applied, it's abundantly clear that a "rational jury" could have found sufficient evidence to establish proof beyond a reasonable doubt on every element of the crimes of which Libby was convicted. Fitz had a check-mark in every box, in other words, and a jury could have bought that even if you, as an observer, personally found some of the check-marks unpersuasive.

  • The next best result, and, realistically, the best result Team Libby could ever have hoped for, or may still hope for on appeal, would be an appellate ruling that the trial was materially unfair in some respect that requires the conviction to be reversed — because, for example, Judge Walton erred and abused his discretion in refusing to allow Libby's memory expert — combined with a favorable ruling on Libby's challenge to Fitzgerald's appointment. That one-two appellate punch would have require the conviction to be vacated (including incarceration, fine, and felon's status), and it would have at least partially bleached the public stain of the original conviction. But it would have also effectively barred a retrial, because the double-jeopardy clause would prevent the required re-indictment by either a regular DoJ prosecutor (acting without the odd appointment that Fitz had) or a 28 C.F.R. part 600 "special counsel" from outside the DoJ altogether. That scenario — the conviction reversed, the first jury's results thrown into doubt, but no second trial — is still available to Libby after today's presidential commutation, but it would not have been available after a pardon. The commutation, in other words, still leaves Libby his best chance for at least a partial public vindication.

  • If Team Libby wins only on the appointments issue, though — and especially if the D.C. Circuit goes on to reach, and rejects, his other arguments (which it also might just skip as being unnecessary for it to reach) — Libby could end up with his conviction overturned, facing no retrial, but still painted in the public's eyes as someone found guilty and then sprung on the most ethereal of technicalities (leaving his moral guilt undiminished and essentially unquestioned).

  • It's also possible that Team Libby will lose on the appointments argument, but win on some other one. That would result in a reversal of the conviction and a remand back to federal district court for a new trial, with both Fitz and Judge Walton reprising their roles. Maybe in a retrial, Libby would take the witness stand — his decision not to do so in the original trial having been inexplicable to me if he genuinely believes himself not to be guilty. But because of the presidential commutation, of course, the worst Libby would be looking at on retrial would be a re-conviction plus a re-imposition of the fine, probation, and felony disabilities.

  • Or it's possible — although I think this unlikely — that Libby might lose on his appointments challenge, win on some other argument, win a new trial as a result — but that Fitzgerald, in the exercise of prosecutorial discretion, might choose not to press forward with a new trial, but would instead agree to simply dismiss the indictments. It's also possible, but I think it's unlikely, that a reversal might trigger a plea agreement — some compromise that would leave Libby with a felony conviction and probation, but perhaps without the fines. I judge these two scenarios as unlikely precisely because Libby has such strong motivations, presidential commutation notwithstanding, to continue to try to clear his name, and because Fitz recognizes his own important role in vindicating the principles that those who lie during investigations or obstruct justice must be held legally accountable for that.


"Mr. Fitzgerald is a highly qualified, professional prosecutor who carried out his responsibilities as charged." Fifteen words for which Patrick Fitzgerald would probably not trade a year's salary. I think they were appropriate. His job's not over, though.


Some politicians ought to be glad that God does not, in fact, smite politicians who tell colossal lies with bolts of lightning:

House Judiciary Committee Chairman John Conyers, Jr. (D-Mi.) released a statement saying that "until now, it appeared that the President merely turned a blind eye to a high ranking administration official leaking classified information. The President's action today makes it clear that he condones such activity. This decision is inconsistent with the rule of law and sends a horrible signal to the American people and our intelligence operatives who place their lives at risk everyday."

This is phony on so many levels that it leaves me dizzy. Perhaps Rep. Conyers would like the nation's chief executive to start routinely speaking out on all pending federal prosecutions — starting with U.S. Rep. William Jefferson's (D-LA) pending bribery case — so no one will think he's "turning a blind eye" to government corruption? Shall we just have the president phone up the jurors during the trial to tell them how to vote? It's not that I expect the Dems to give Dubya any credit for not issuing an outright pardon. I just expect them to tell more nuanced, sophisticated lies than this.

Rather than "mak[ing] it clear that he condones such activity," the commutation, as opposed to an outright pardon, makes it clear to anyone with the honest eyes to see it that President Bush is indeed committed to the rule of law, and that that is precisely why he's allowing the appeals process to continue (and, potentially, the fine, probation, and felony disabilities to stand). This is an act of limited presidential mercy. Only a demagogue can transform that into "condoning." Or maybe Rep. Conyers would like to be "condoned" himself by the destruction of his career, a felony conviction, two years of probation, and a quarter-million dollar fine (not to mention what's probably a seven-figure legal bill)?

I'm proud of the President. I think he did the right thing, and he did it at exactly the right time.

Bill Kristol, you misunderestimated our man again, and you should have known better. Oh, ye of little faith, wherefore didst thou doubt? (I'm using that New Testament quote for its literary and political-faith, not religious, meanings.)

But I still want to see how Libby's appeal plays out! Indeed, it's genuinely important that we all see how it does. The DoJ needs to know, for example, whether it can skip 28 C.F.R. part 600 and repeat the Fitzgerald appointment precedent (using a DoJ insider from out-of-town) in future cases. But far more importantly, we need the appellate courts to either validate or invalidate the fairness of Libby's trial. If, as I suspect is still the most likely result, Libby's appeal fails, then that will indeed send an important, and salutary, message to everyone, and especially to current and future high government officials who may be tempted to lie or obstruct justice.


UPDATE (Tue Jul 3 @ 2:25am): I just read one comment over on Tom Maguire's blog which claims that the commutation "adds insult to injury by admitting the President accepts Libby's guilt." That is ridiculous. Neither the commutation nor the president's statement say that. To the contrary, both address only the sentence, and they leave Libby free to continue trying to challenge the conviction.

Statements this off-base make me wonder if there ought not to be an additional diagnosis to go along with "Bush Derangement Syndrome" — I'm just not sure whether it ought to be called "Plame Derangement Syndome," "Libby Derangement Syndrome," or "Fitzgerald Derangement Syndrome."

All of these may now be valid grounds to bar one's execution, by the way — and that fact triggers, in some, "Justice Kennedy Derangement Syndrome" (which requires the longish name to distinguish it from "Teddy Kennedy Derangement Syndrome.")

Posted by Beldar at 11:01 PM in Law (2007) | Permalink | Comments (8)

I was wrong: D.C. Circuit panel denies Libby's application for release pending appeal

Special counsel Patrick Fitzgerald continues his unbeaten streak in the Libby case, and I have been proved flatly wrong in my prediction that the D.C. Circuit would grant Libby bail pending appeal:

A federal appeals court ruled today that I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, must report to prison shortly to begin serving his 30-month sentence for lying to federal investigators about his role in leaking a CIA officer's identity.

In a one-paragraph order, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit denied Libby's request to remain free while he appeals his conviction for perjury and obstruction of justice.

The judges said that Libby's appeal does not raise "a substantial question" close enough that it is likely his conviction will be overturned.

Libby's lawyers can, and probably will, ask the full D.C. Circuit to rehear that decision en banc, and/or ask the member of the Supreme Court with responsibility for emergency matters out of the D.C. Circuit — that being Chief Justice John Roberts — to overturn the panel's decision. The odds of getting that relief from either are very, very remote.

Posted by Beldar at 12:43 PM in Law (2007) | Permalink | Comments (13)