BeldarBlog

Jindal's prescription for the GOP

From his interview with Fox News' Chris Wallace on Fox News Sunday this morning, Gov.-elect Bobby Jindal:

WALLACE: We've got about 45 seconds left. There's a lot of talk — and I don't know whether you like it or hate it — that you're a new GOP rock star. What lesson do you think your party should learn from your campaign and your success in Louisiana?

JINDAL: Well, my primary obligation is obviously to Louisiana. But I think the reason Republicans did so poorly in 2006 wasn't that the country stopped being conservative, it was that the party stopped being conservative. It's not enough to want power for the sake of wanting power. We waged here a principled campaign against corruption, against out of control spending [and] pledged to cut taxes. I think as the Republican Party gets [back] to its principled roots, it'll see more enthusiasm among voters. Voters don't want you to pretend to be an imitation of your opponents. They want you to stick to your principles, and to be honest — even if you disagree with a voter, tell 'em where you stand. So if we'll get back to our roots — against the earmarks, the pork barrel spending, the bridges to nowhere — if we will get back to not just covering up corruption, but standing for the strongest ethical standards, I think the voters will reward that.

Jindal is a rock star. He's got his work cut out for him in Louisiana. But if he can do a good job there, his future political potential is boundless.

And I entirely agree with what he said in this answer, but I would go farther: It's not enough to put thin Republican clothes on Democratic memes.

To take one of the three most conspicuous domestic policy examples (tax reform and social security reform being the other two): We already can be absolutely certain that the Democratic candidate in 2008 will be pushing for a radical change in our national health-care system. And in percentage of voter terms, almost no one in America is satisfied with the current system (including me). Even though improvements can still be made, the quality and availability of health care (as distinct from health care insurance coverage) in the United States is by far the best that it's been at any time or any place in the history of the world. But our system of linking health insurance coverage to employment through (mostly large) businesses has effectively unlinked the entire system from market economics — and efforts to combat that problem via "managed care" have generally resembled the Soviet Union's management of its steel industry circa 1953.

Radical change is needed — but not to a single-payer government (or government micro-directed) system like the Dems want. Nobody — not even Bill or Hillary Clinton — is smarter than the market. Merely tacking on symbolic tax deductions or even tax credits to a program claimed to "expand personal choices" isn't going to remotely address the enormous economic distortions already built into the existing system — in which economic decisions and the resulting "marketplace" are continuously distorted by decisions made by insurance-covered patients and their doctors (mostly, really by the doctors) without any regard for those decisions' cost-to-benefit ratio.

Simply put, the existing system can't be fixed; it must be replaced. And that is going to mean (in the short term) the literal destruction of vast economic domains belonging to those whose livelihoods are tied up in the maintenance of the existing system. Decoupling insurance coverage from employment is actually a far more bold proposition than anything Hillary or the other Dems are proposing — but it's a return to a traditional Republican and conservative value, i.e., the paramount importance of individual decision-making in a genuinely free market environment.

Review: "Dan in Real Life"

Last night my four kids and I, joined by Kevin's two college roommates (Steve and Calvin), had a fine Mexican dinner, and then we all went to a late-night showing of Steve Carrell's latest romantic comedy, Dan in Real Life.

Verdict: Spicy and satisfying. (That was the meal.) Sweet and funny, albeit awfully predictable. (That was the movie.)

As compared to The 40 Year Old Virgin, Carrell dials his performance down a couple of notches on the pathetically dorky-intensity dial — to good effect in my opinion (as another dorky 40-something guy trying to identify with him). In this one, Carrell plays Dan Burns, the single father of three (predictably precocious and adorable) teen girls, so presumably he's already had sex before the movie begins — but that's also (predictably) many years in the past, and he's (predictably) still pining for the (predictably) beloved and deceased (not just divorced, which would have complicated things) wife.

As Dan's new love interest Marie, Juliette Binoche provides further evidence for Beldar's Theory of Accents, which holds that Americans universally find members of the opposite sex who have English, Scottish, Irish, or French accents to be more attractive and interesting. But her performance and Carrell's are nicely matched and mutually convincing. The rest of the large ensemble cast (mostly Dan's large extended family, spouses, and kids) also contribute solid performances in their supporting roles.

(Below, left to right, after the movie: Kevin's roommates at U of H, Calvin and Steve, then Adam, Sarah, Molly, and Kevin.)

The movie has only one car crash; its single chase scene fizzles; everyone alive at the beginning of the movie is alive at the end. If you described this movie as "low key," you might be over-hyping it. And I doubt that any of us will remember this movie in anything other than vague terms in five years. Frankly, you probably won't suffer much by waiting for it on cable/satellite or DVD.

But given the convivial company I was amongst, and given our agreeable post-meal mood, the movie was entertaining roughly in proportion to the ticket prices, and I don't regret picking it among the available options.

Slamming doors and bad, awful days

One of the many amazing, ceaselessly interesting things about being a parent is this: Your children will sometimes remember things that you intended for them to remember, even when you've forgotten.

On Monday of this week, my youngest daughter Molly, a seventh-grader, had what my family calls a "bad, awful day" at school. (The phrase is from a Sesame Street book, Grover's Bad, Awful Day. Some small portion of you readers are nodding right now, saying to yourselves, "Oh, yeah, that's the one where Grover stepped in the chewing gum, lost his rubber rain-boot, et cetera." Yes, that's the one. It's easy to confuse with the one in which Ernie and Bert are so angry at each other for not meeting under the statue in the park to fly kites.) When I picked her up from school and took her to her mom's house, Molly stormed off to her room, slamming the door in her older sister Sarah's face. "Molly Grace Dyer!" yelled Sarah Kathleen Dyer through the door, "Don't you know how dangerous it is to slam doors?"

"Dangerous?" I asked, genuinely perplexed.

This prompted Sarah to recall aloud at some length an incident when she (Sarah) was a much, much younger child — maybe three or four years old at the most, and thus an incident from at least a dozen years ago, in a previous century. Like my other three children, Sarah is, has always been, and will always be a passionate person. And as a toddler she was much inclined to slam doors.

So it was that the particular incident she related this week was one in which, after one such slamming, I'd fetched from our refrigerator's meat drawer an uncooked hot dog wiener that I'd first put into a Glad bag, and that I'd then stuck halfway through the crack between her bedroom door and its door-frame when the door was half-way opened. "Here, Sarah," I'd pronounced with parental tendentiousness, "is what can happen when you slam doors!" And then I'd slammed her bedroom door on that bagged hot dog wiener — BANG! "That could be your mother's finger!" I'd said, with utmost seriousness, while scooping the shredded meat byproducts out of the baggie and dropping them dramatically, in severed and exploded pieces, onto the doorway floor.

Toddler Sarah's powers of imagination were such that she already did not need further ketchup-based special effects to complete the lesson. She burst into tears, launched herself face-down onto her bed — and rarely, if ever, slammed her bedroom door again (at least until she was fifteen, and since then she's done it only carefully, for effect).

I had completely forgotten this entire incident. It took my nearly fifty-year-old neural pathways a full half hour or more to summon back all the details. And yet, Sarah's much younger, crisper, and more capable neural pathways brought it back in an instant. And she told it to her sister.

Slamming doors can be dangerous. And I am genuinely and continually awed by the power of entirely oral familial histories.

And by my children.

Why Mike Huckabee could be on the 2008 GOP ticket

I still plan to blog at greater length, later this week, about my most-current views of the race for the 2008 GOP presidential nomination. But here's a teaser:

I'm now convinced that the party needs former Arkansas governor Mike Huckabee to be in one of the top two slots (the only remaining questions being, which one, and with whom).

An entirely sufficient reason: Having this ordained Baptist minister on the ticket is likely to make humorless lefties' heads explode.

Evidence: This post, from the normally good-humored Jeralyn Merritt, entitled "Huckabee: No Health Care for Dirty Hippies," and the forty-two comments prior to mine — none of which could recognize a terrific joke by Gov. Huckabee during Sunday's GOP debate in Florida that even the New York Times' debate transcriber caught.

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

UPDATE (Wed. Dec. 5 @ 8:30 pm): In the weeks since this post was written, I've continued, by and large, to be impressed by Huckabee's campaign skills. And I still would consider him for the second spot on the GOP's 2008 ticket. Enough serious questions have been raised about him, though — in particular, regarding his collaboration with tax-and-spend Democrats and soft-heartedness with pardons as governor, and regarding his lack of experience but worse, interest in serious foreign policy ideas — that I have grown unenthusiastic about him as a prospective top-ticket nominee. I've changed the title of this post from "needs to be on the 2008 GOP ticket" to "could be on the 2008 GOP ticket."

There are ways in which I continue to be dissatisfied with Romney, Giuliani, and Thompson in small to medium-sized measures, and with McCain in several large ones. But I am definitely, positively never going to be one of those "I'd rather stay home" Republicans come either primary or general election days. And, probably, around New Year's, I'll announce my own considered preference for the nomination.

"Don't Tase me, bro!" incident report due today

I haven't previously been able to find any sort of update on the disposition of the criminal charges that were filed against University of Florida student Andrew Meyer after he resisted arrest while being removed from a John Kerry rally. However, the UF student newspaper, The Alligator, reported on Monday that "[t]he investigation by the Florida Department of Law Enforcement into [Meyer's Tasering] is complete, but the report isn't available to the public yet." A university spokesman is credited with predicting that the 300-page report will be made public today (Wednesday).

As for the criminal charges, the article says: "The State Attorney's Office will make the final judgment on Meyer's criminal charges after it reviews the department's findings." Although cryptic, this suggests to me that the charges may have been put on hold pending the release of this report by agreement of everyone concerned. If the report is critical of the campus police's reaction, however, that conceivably might trigger a voluntary reduction or even a dismissal of the charges.

I continue to predict that the use of the Taser will be found to have been appropriate, and that at least the resisting arrest charge will be deemed appropriate for the prosecution to pursue. But I presume that short of a complete voluntary dismissal by the prosecution, "final judgment" will actually be made by a judge or a jury, either pursuant to a plea bargain or the results of a trial.

In the meantime, a Palm Beach newspaper reports that sales of "Don't Tase Me, Bro" merchandise (sporting graphics like the one I've reprinted here from Cafe Express) continue to be "shockingly profitable."

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

UPDATE (Thu Oct 25 @ 6:20pm): My thanks to commenter rfy for a link to the report, which is actually only 17 pages (presumably the 300 estimate included backup documentation). My prediction was correct:

The report found that the event organizers were within their rights and had ample justification in ordering Meyer to be removed, and that the campus police made reasonable choices in dealing with Meyer's resistance, including in the use of the Taser in "drive-stun" mode (using direct contact, rather than firing the prongs). It provides more detail than I'd previously read about Meyer's previous campus disruptions, along with further circumstantial evidence that he intended to provoke this incident and arrest.

According to the UF student newspaper, "Eddie King and Nicole Lynn Mallo — the two officers who were suspended with pay after the event — are back on duty, UF President Bernie Machen wrote in an e-mailed statement." My guess is that they'll get a fresh round of applause the next time they walk into the campus police station.

This report, of course, will be dismissed by Meyer's defenders on grounds that it's biased as coming from another law enforcement source, and it should indeed be read with awareness of that fact. But that doesn't mean it's wrong, and I don't think it is.

My guess is that Meyer is going to have to do some non-trivial jail time if he wants to plead out; and if he rolls the dice and insists on a jury trial, my prediction is that he's quite likely to be convicted on the "resisting arrest with violence" felony charge, which could mean serious prison time.

Were I Meyer's lawyer, I'd do my best to establish whatever credibility I could for my client's and my willingness to go to trial, and then leverage from that the best plea agreement I could get. I'd try to trade public service and acts of contrition for as much jail time as I could, and I'd try to negotiate for flex-time service that would permit Meyer to serve his sentence on weekends or holidays so that he could stay in school. That done, I might not Taser young Meyer in my private counseling on whether to take that best offer from the prosecutors, but I would indulge in every bit of verbal arm-twisting and brow-beating that I could manage. My guess is that Meyer and his parents would then fire me and get new counsel who's less candid and more publicity-hungry — someone who'll be happy for the TV time as Meyer's led back in handcuffs after the guilty verdict, at which point the lawyer can shake his fist and valiantly vow to appeal "Against These Fascists All the Way to the U.S. Supreme Court!"

Posthumous MoH awardee Lt. Michael P. Murphy, USN: "An iron-souled warrior of colossal and almost unbelievable courage in the face of the enemy"

Even if you believe that George W. Bush is the devil incarnate, it will not hurt you to read this transcript of his remarks as he awarded a posthumous Congressional Medal of Honor to Lieutenant Michael P. Murphy, U.S. Navy.

    

I would never suggest that America has a monopoly on heroes. But if you're an American, it should make you proud to live in a country that can still rear the likes of such warriors as this. If you're as sentimental as I am, it will definitely choke you up. Here's just a part:

On June 28th, 2005, Michael would give his life for these ideals [love of country and devotion to his colleagues]. While conducting surveillance on a mountain ridge in Afghanistan, he and three fellow SEALs were surrounded by a much larger enemy force. Their only escape was down the side of a mountain — and the SEALs launched a valiant counterattack while cascading from cliff to cliff. But as the enemy closed in, Michael recognized that the survival of his men depended on calling back to the base for reinforcements. With complete disregard for his own life, he moved into a clearing where his phone would get reception. He made the call, and Michael then fell under heavy fire. Yet his grace and upbringing never deserted him. Though severely wounded, he said "thank you" before hanging up, and returned to the fight — before losing his life.

Unfortunately, the helicopter carrying the reinforcements never reached the scene. It crashed after being struck by a rocket-propelled grenade. And in the end, more Americans died in Afghanistan on June 28th, 2005 than on any other day since the beginning of Operation Enduring Freedom. This day of tragedy also has the sad distinction of being the deadliest for Navy Special Warfare forces since World War II.

One of Michael's fellow SEALs did make it off the mountain ridge — he was one of Michael's closest friends. Petty Officer Marcus Luttrell of Texas, author of a riveting book called "Lone Survivor," put it this way: "Mikey was the best officer I ever knew, an iron-souled warrior of colossal and almost unbelievable courage in the face of the enemy."

For his courage, we award Lieutenant Michael Murphy the first Medal of Honor for combat in Afghanistan. And with this medal, we acknowledge a debt that will not diminish with time — and can never be repaid.

And if you have any religious impulses at all, it will definitely prompt you to say a prayer for the brave and worthy soul of Lt. Michael Murphy, and for his family, friends, comrades, and country.

Blogging forecast

Sometimes things get busy in real life, and one who wants to be able to continue to pay his very reasonable TypePad subscription fees must pay attention to professional obligations, even at the risk of slightly disappointing those who may have cruised by looking for a new blog post or two.

I had a working lunch today with a former colleague, current client, principled Democrat, and good friend — all rolled into one. He said he'd looked in vain for my post about the Congressional Dems' recent attempts to perform in accordance with their mandate from the 2006 elections — i.e., to really get tough with the Ottoman Empire — but he said he'd concluded that I'd found that too easy a target to justify my time. The truth is, though, that I've spent a lot of time pondering how to help him navigate his company's fortunes through some treacherous rapids, leaving me little time for avocations like music and reading, and none lately for blogging. 

But I'm not planning another sabbatical. Thanks for your patience while for a time, I write directly to various of the esteemed judges of the Harris County District Courts in matters of weight and consequence to my beloved clients — instead of to you, gentle and faithful blog readers.

What the public needs to know in forming an opinion on whether U.S. District Judge Sam Kent ought to be impeached

I had intended not to blog about the formal reprimand and admonishment delivered on Sep. 28, 2007, by the Fifth Circuit Judicial Council to U.S. District Judge Samuel B. Kent of Galveston, and I had said as much in response to a question from a regular reader in the comments on another post.

But I've changed my mind because of what I perceive to have been a serious campaign of distortion in other publicity about Judge Kent by people who do, or at least should, know better. They say Congress ought to commence an impeachment investigation — but they're not telling you something very important that you ought to know in forming your own opinion on that subject.

*******

The Council comprises Fifth Circuit Chief Judge Edith H. Jones, plus nine other Circuit Judges and nine District Judges, all from the three states that make up the Fifth Circuit (TX, LA, and MS). On the basis of a Special Investigative Committee's investigation of a sexual harassment complaint against Judge Kent made by a court employee — which investigation included the taking of sworn testimony from from the complaintant and other fact witnesses, and in which Judge Kent was represented by counsel — the Council reprimanded Judge Kent "for the conduct that the [Committee's] report describes," the details of which are not in the public record. It also admonished Judge Kent "that his actions described in the report violated the mandates of the Canons of the Code of Conduct for United States Judges and are deemed prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice." The Council "concluded these proceedings because appropriate remedial action had been taken, including but not limited to [Judge Kent's] four-month leave of absence from the bench, reassignment of the Galveston/Houston docket and other measures." The nature of the "other measures" has not been made public, but a fair bet would be that they include sensitivity training; they may or may not include a private apology to the complainant or others. The Council's decision also doesn't foreclose independent civil or criminal proceedings arising out of the same conduct.

Since then, however, there has been a steady drumbeat of self-reinforcing and unrelentingly negative publicity about the reprimand from the Houston Chronicle in a series of news articles mostly written by Harvey Rice and Lise Olsen (e.g., on Oct. 4, Oct. 5, and Oct. 7) and op-eds by columnist Rick Casey (on Oct. 2 and Oct. 3). There have also been a series of six posts on The Volokh Conspiracy (on Sep. 28, Sep. 30, Sep. 30, Oct. 2, Oct. 3, and Oct. 8), the last five by Assistant Law Prof. Ilya Somin of George Mason University's School of Law, who in 2001-2002 clerked for Fifth Circuit Judge Jerry E. Smith of Houston (one of the 19 District and Circuit Judges on the Council).* The consistent theme being promoted by all of these articles, op eds, and last five blog posts is that the Council's punishment was inadequate and that Congress ought to consider impeaching Judge Kent.

I've known Judge Kent by reputation since he was a practicing lawyer at one of Galveston's most prestigious firms, but I can't recall ever having met him, and neither can I recall ever appearing before him; I can't rule out the possibility that I have, but if so, it was on nothing substantial. I know absolutely nothing about this investigation beyond what I've read in the Council's order and the press. I refuse to gossip about the facts underlying the complaint and reprimand myself, and I'll summarily delete gossip (whether about Judge Kent or the complaintant) left in the comments to this post. This isn't about gossip.

Through an entirely unrelated matter from another state, federal circuit, and Judicial Council, I did have occasion a couple of years ago to become very familiar with the structure and workings of the existing system for the making and handling of complaints against federal judges. As a complete bystander to a federal case, having no personal interest other than as a citizen and a member of several unrelated federal bars and the Texas bar, I filed such a complaint, and then appealed the initial determination on it by that federal circuit's chief judge to its judicial council. I ended up being satisfied with the results, which were never made public, and which I won't go into here.

But thus it was, for example, that I knew beyond any doubt that Chronicle columnist Rick Casey was committing a libel when he falsely claimed in his October 3rd column that the Council's decision conclusively established Judge Kent's guilt under a state criminal statute forbidding sexual harassment by a public official "acting under color of his office." Surely even a clown like Casey should have been able to figure out that the Judicial Council wasn't attempting to determine whether any state or federal statutes had been violated, didn't make any findings "beyond a reasonable doubt," and while permitting Judge Kent's limited participation through his counsel nevertheless didn't afford Judge Kent the basic procedural safeguards (like the ability to confront and cross-examine his accuser in public) that are core rights of the criminal justice system.

*******

Apart from Casey's rants, it seemed to me that there was an important aspect to these proceedings which was being ignored in the Chronicle's stories and Prof. Somin's posts. Against my original intention, I started leaving politely protesting comments in Prof. Somin's posts, which he proceeded to utterly ignore. My frustration grew, as did my conviction that either Prof. Somin didn't know what he was talking about, or that he was deliberately obscuring that important aspect for some reason. Finally, by standing atop, and perhaps crossing over, the borderline between civility and rudeness, I was able to provoke a few responses from him in the comments to his Oct. 8th post. (I'll let you, gentle readers, decide what conclusions if any you want to draw about Prof. Somin from those, and about how well or poorly he was able to defend his positions.)

So what's the important aspect? It's highlighted by this quotation from Prof. Somin in the Chronicle's most recent news article (on Oct. 7th) banging the impeachment drum:

Ilya Somin, a law professor at George Washington University who clerked at the 5th Circuit, noted that federal judges have limited abilities to discipline a colleague: They can reprimand and reassign cases, but they cannot take away his salary or force him out.

Somin said the public record on Kent's "long history of ethical problems" is significant enough that Congress should look into it.

Similarly, Prof. Somin had written repeatedly to that same effect in his own blog posts (and in his comments in response to other readers than me), portraying the Council as effectively toothless, with impeachment being the obvious remedy that is justified, but one utterly beyond the Council's power to accomplish or address.

And that, friends and neighbors, is — to use an esoteric, technical legal term of art — an absolute load of crap.

*******

What I'm about to tell you — what Prof. Somin and the Houston Chronicle have systematically failed to acknowledge — is taken directly from Chapter 16 of Title 28 of the United States Code.

This Council was not toothless. Rather, through the Judicial Improvements Act of 2002 (which in turn was a revision of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980), Congress recognized that there's no one better suited, at least in the first instance, than the Chief Judges of each Circuit, their respective Judicial Councils, and the Judicial Conference to determine when a federal judge is so badly misbehaving as to warrant impeachment.

Therefore, Congress deliberately charged Judicial Councils including this one with the statutory obligation to consider whether to recommend the impeachment of judges like Judge Kent. And if the Council decided that impeachment was warranted, the Council could have made a referral to the Judicial Conference of the United States, per 28 U.S.C. § 354(b), with a determination that there are grounds for Congressional impeachment, upon the basis of which the Conference could send the complaint on to the Congress per 28 U.S.C. § 355.

Instead, by a majority vote, and without a single written dissent, the Council concluded that lesser penalties and remedies were indeed adequate. Nineteen federal judges — who've worked elbow to elbow with Judge Kent for years and who've had access to sworn testimony that neither you, I, Prof. Somin, nor the Chronicle's reporters have seen — are thus on record, after having been tasked to make that determination by Congress, as saying that impeachment is not justified here.

Indeed, there were a whole range of harsher penalties short of recommending impeachment that the Council also could have crafted, but declined to impose. The Council could have provided for a longer suspension. At least a couple of cases suggest that suspensions of up to fifteen years might be permissible without creating "quasi-impeachment" problems. See McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135, 165 & n.18 (D.D.C. 199) (rejecting separation of powers arguments, confirming Congressional power to delegate investigation and imposition of sanctions less severe than impeachment to the Conference, and rejecting "temporary impeachment" characterization of sanction that included one-year suspension from receiving new cases), aff'd in part & vacated in part for mootness, 264 F.3d 52 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002). There's also little question but that the Council's order could have been drafted in much harsher terms without revealing any specific details of the complaint. And the Council could have formally (and publicly) requested, per 28 U.S.C. § 354(a)(2)(B)(ii), that Judge Kent voluntarily retire. While that wouldn't have been binding upon him, it's simply ridiculous to dispute — as Prof. Somin did in response to my pointing this option out — that such a request by the Council would have a devastating effect on sitting federal judge, especially if made as part of a public reprimand.

Prof. Somin also argued that "Issuing a recommendation [to commence impeachment proceedings] that Congress has no obligation to follow is not that powerful a sanction." My response:

[A] complaint that survives the three-step screening process (Chief Judge, Council, Conference) is indeed very likely to get the serious attention of the House Judiciary Committee; indeed, in most instances when a complaint gets that far, the Conference will be passing along a documented, pre-digested case for impeachment that's ready for a committee vote without much further ado.

*******

Whether Prof. Somin knew of (and simply avoided mentioning in all five of his original posts) the Council's statutory responsibility to consider impeachment or not, and the Council's refusal to make such a recommendation in this instance, my email exchange with Chronicle reporters Rice and Olsen confirms that they knew about it. Mr. Rice claimed this wasn't worth mentioning because the legal experts they'd consulted think that judges all protect each other and aren't likely to actually use these powers. To which my response is: Ask impeached former U.S. District Judge (now despicable Congressman) Alcee L. Hastings, whose impeachment by the House and conviction by the Senate took place on the basis of the Judicial Conference's recommendation even after Hastings had been acquitted of corruption by a hometown jury. Mr. Rice correctly noted that Justice Breyer has recommended further revisions to the existing system in a 2006 report prompted by allegations against U.S. District Judge Manuel Real from California. There, however, the House jumped the gun and started hearings before the Judicial Council had completed its work, but then shelved the entire matter in deference to the Council. If anything, all that ought to make it more imperative to report fully on how the current system has handled Kent's situation.

Ms. Olsen, in turn, asserted that this informational nugget was in one of their earlier drafts, but ended up, due to space limitations, on the editor's floor. I have no reason to doubt that, but one wonders about the editorial judgment — and perhaps the bias against judges nominated by a Republican president — of an editor who found room to instead advise Chronicle readers that Judge Kent "has decided cases as diverse as whether a local tavern owner could legally sell brews as 'Star Bocks' — despite a challenge from the soundalike Seattle coffee giant." Let's see: The Starbucks sentence, or one reading (per my suggestion): "Nineteen federal judges who've had access to the relevant sworn testimony  concluded — without anyone writing a dissenting opinion — that he ought not be impeached, in a system in which Congress has expressly set things up for them to make that decision as an initial matter." Yeah, I'm goin' with the public's need to know about Starbucks!

(In subsequent emails, to her considerable credit, Ms. Olsen was very gracious: "Your points are good ones — I also think this would make a good op-ed — a more intellectual treatment of the options. If you're up for it, I'd encourage you to write it." I may give this a try, although it will frankly be hard for me to boil my indignation down to fit the Chronicle's op-ed length requirements.)

*******

Personally, I'm disinclined to second-guess the Council's decision. My own experience both pressing and defending sexual harassment claims has convinced me that they're rarely clear-cut; that credibility determinations are crucial; and that political correctness can acquire a life of its own which, in turn, can ruin actual lives of both accusers and the accused. But I'll wrap up here (boldface mine) with the last comment I left on Prof. Somin's last post, in response to someone who argued: "This isn't just smoke, it's also obviously fire: we just haven't been able to see the fire."

I'm not contending there's "no fire." And the public reprimand will likely affect Judge Kent's standing and public image for the rest of his career, short or long, on or off the bench; I have no reason to think that unjust.

Nor do I dispute that Congress has the right to consider impeachment — notwithstanding the absence of a recommendation that they do so from the people whom Congress has entrusted, in the first instance, with the responsibility to investigate such complaints and to calibrate appropriate remedies and sanctions.

But I do think it's dishonest for anyone who understands (or who should, by virtue of his profession, understand) the nature of the process to fail to acknowledge that lack of a recommendation.

Feel free to say "I think the Council let him off too easy and Congress should impeach him." But be honest, and say simultaneously, "Of course, the Council saw the evidence, and I haven't, and the Council is who Congress designated to handle these complaints and to either make an impeachment recommendation or not, and it didn't."

And then people can who are still forming their own opinions can decide how much to give yours, or Prof. Somin's, versus the majority vote (without written dissent) of the 19 federal district and circuit judges on the Council (including the one for whom Prof. Somin clerked).

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

UPDATE (Tue Oct 23 @ 1:25am): Prof. Somin has belatedly replied to this post. His conclusion: "In sum, Beldar's post distorts 1) the applicable law on impeachment, 2) a judicial opinion, and 3) my posts. That's a pretty neat trifecta." As I said in a comment there, however, I'm content for now with what I've already written.

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

UPDATE (Tue Oct 23 @ 2:30pm): Um-kay, this has gnawed on me enough now that I will make some specific responses, more to vent my own annoyance rather than in the expectation that more than maybe 10 people will be continuing to follow this debate.

In claiming that I misrepresented the "applicable law on impeachment," Prof. Somin wrote:

The federal statute that Beldar claims imposed a "statutory obligation to consider whether to recommend the impeachment of judges like Judge Kent" does no such thing. It merely says that the Council "may, in its discretion" (emphasis added) refer the matter to the Judicial Conference of the United States for consideration of the impeachment option (the Conference can in turn refer the matter to Congress). The Fifth Circuit Judicial Council is not required to consider the impeachment option and we have no proof that it did so in this case.

But when a complaint has survived the initial screen and the Chief Judge has referred it to the Council, the statute does, however, oblige the Council to consider and investigate the complaint — repeatedly using the word "shall" (emphasis mine throughout) in sections 353(a) & (c). Afterwards, if the Council does not dismiss the complaint, then section 354(a) (1)(C) requires that the Council "shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit." Under section 354(b)(2), if the Council has determined "that a judge appointed to hold office during good behavior may have engaged in conduct ... (A) which might constitute one or more grounds for impeachment under article II of the Constitution," then "the judicial council shall promptly certify such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States." And then under section 355(b)(1), '[i]f the Judicial Conference concurs in the determination of the judicial council, or makes its own determination, that consideration of impeachment may be warranted, it shall so certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers to be necessary."

Here, we know the Council fulfilled its statutory duty to consider the complaint; found it to have at least some merit; and ordered some remedies. We don't know whether the Council took a formal vote on recommending impeachment, nor even whether they specifically discussed that particular remedy. We don't know whether the complainant even suggested it, nor whether anyone on the Council brought it up sua sponte. But it seems extremely improbable to me that the Council authorized some remedies without at least considering the others specifically listed in the statute; and it seems absolutely impossible to me that everyone on the Council was unaware of the existence of the remedy. Of course both the Council and the Conference have discretion under the statute to decline to find that impeachment is warranted. But they may not both (a) conclude that there has been conduct which "might constitute one or more grounds for impeachment" and (b) yet still refuse to forward that recommendation. I think it's absolutely fanciful for Prof. Somin to suggest that while executing their duty under the statute, the Council members deliberately blinded themselves to the impeachment recommendation alternative in order to evade all those "shalls" that would have followed as a result.

In his latest post, Prof. Somin also writes:

In such difficult internal matters as the disciplining of other judges, a judicial conference [sic] is likely to act on a consensus model of decisionmaking. The reprimand issued to Kent (which is a very unusual step in itself) may have been the lowest common denominator that all nineteen Fifth Circuit Council judges could agree on.

     ... [T]he reprimand is a committee document that probably represents the lowest common denominator that 19 people of very different ideologies and temperaments could agree to.

I absolutely agree that reprimands are unusual, but I emphatically disagree with what I interpret as Prof. Somin's suggestion that a judicial counsel is likely to "act on a consensus model of decisionmaking" to the point that it not only rejects harsh alternatives favored by some members, but also suppresses those members' opinions. Getting 19 federal judges to agree on anything is like trying to herd cats. I suppose it's possible that here, as few as ten actually agreed on the remedies contained in Chief Judge Jones' order (and she may not even have been among that ten). But not a single judge went on record, either with or without a separate opinion, in dissent. It at least impliedly insults the members of this Judicial Council to suggest (as I think Prof. Somin effectively has done; again, that's my inference, not his direct words) that for reasons of collegiality or self-interest or otherwise, they all agreed to dispense "lowest common denominator" justice. And we have as a recent, prominent counter-example the Ninth Circuit Judicial Council's consideration of complaints against U.S. District Judge Manuel Real, which resulted in Judge Alex Kozinski issuing a written dissent urging harsher sanctions (but still not urging impeachment). Indeed, in addition to Judge Kozinski's "withering dissent" in that case (which I would also characterize as "brilliant" and "compelling"; Prof. Volokh called it "powerful"), "B. Lynn Winmill, an Idaho district court judge, issued a separate dissent, while David Ezra, a district judge from Hawaii, wrote a concurring and dissenting opinion." That Ninth Circuit Judicial Council was only about half the size of the Fifth Circuit Judicial Council that voted on Judge Kent's punishment — it had only five circuit judges and five district judges in addition to the Ninth Circuit's Chief Judge — and yet it produced four separate written opinions!

In claiming that I misrepresented a judicial opinion, Prof. Somin wrote:

     Beldar further asserts that the Council could have suspended Judge Kent for "up to 15 years" of its own initiative. That extreme claim strikes me as in obvious tension with the Constitution's mandate that judges serve for life unless impeached and removed by Congress. If other judges could suspend a federal judge for as long as 15 years, they could effectively negate his or her lifetime appointment simply by issuing two such suspensions (or even just one, if the judge in question were old enough). It'll take a lot more than a partially vacated district court opinion (the only authority cited by Beldar to support this extreme proposition) to convince me that he is right on this point. Indeed, looking up that opinion, I found that it says nothing of the kind, but instead merely notes that some other judges believe that a 15 year suspension is beyond the power of a judicial conference for precisely the kinds of reasons that I noted above. The opinion states that:

Some jurists have expressed concern that suspension might become equivalent to removal if it extended for an inordinate amount of time, see e.g., Hastings I, 770 F.2d at 1108-09 (Edwards, J., concurring) (using fifteen years as the benchmark), but a one-year suspension does not implicate these concerns." McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135, 165 & n.18 (D.D.C. 1999), aff'd in part & vacated in part for mootness, 264 F.3d 52 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002)) [Note: The McBryde opinion is slightly misleading when it cites Judge Edwards as stating that fifteen years is "the benchmark." Edwards' wrote that 15 years is beyond a judicial conference's power, but did NOT conclude that any suspension of less than 15 years is permissible].

     Even the one year suspension that the district court decision approved may be constitutionally suspect, though I won't argue the issue here.

I've quoted that exactly as it appeared, but with due respect, Prof. Somin's quotation structure is a bit confusing. It appears to me that his block quote should have ended just before the word "McBryde," and that everything else (starting with the citation to the McBryde case) is his own writing.

The background to this, however, is that in several of his five previous posts, Prof. Somin had asserted his "tension" argument without ever citing any precedents. There is at least one published opinion directly rejecting his arguments — the McBryde case — and affirming a one-year suspension (albeit only from hearing new cases). Now, that holding does only have the authority of a federal district court because the one-year suspension was over, and that issue had become moot by the time the D.C. Circuit ruled on Judge McBryde's challenges. But that's exactly how I cited the case; in other words, I gave my readers not only the district court's ruling, but the information indicating the limits of that ruling's precedential effect. As to the fifteen years, Prof. Somin is simply wrong when he says that I "assert[ed] that the Council could have suspended Judge Kent for 'up to 15 years' of its own initiative." Instead, what I said was that this Council could have chosen a suspension longer than the four months they did specify, which is patently a correct description of the statute, and then I explicitly flagged the dicta: "At least a couple of cases suggest that suspensions of up to fifteen years might be permissible without creating 'quasi-impeachment' problems."

As between Prof. Somin and me, one of us wrote five posts without making any mention of a federal precedent directly on  point on Prof. Somin's "tension" argument. The other of us found and correctly cited one federal precedent that rejects his "tension" argument, while being careful to note that the 15 year figure was a "suggestion," i.e., dicta, and not a holding. Maybe Prof. Somin's correct; maybe McBryde is wrong; maybe Chapter 16 suspensions are unconstitutional; maybe Congress was violating separation of powers doctrine when it delegated that power under the statute; maybe the 19 federal judges on the Judicial Council that suspended Judge Kent for four months were acting unconstitutionally too. I'll readily grant that it's a pretty interesting question, even if the "early returns" (a majority of both houses of Congress, the president, and every one of the federal judges who've so far either expressly or impliedly considered the issue) seem pretty lopsidedly against Prof. Somin. But in failing to cite McBryde at all, for whatever value it may have, in any of his first five posts, I hope Prof. Somin was just being sloppy, and not intellectually dishonest.

Finally, in claiming that I misrepresented his posts, Prof. Somin wrote:

Finally, Beldar mispresents [sic] me as claiming that impeachment is the only and "obvious remedy" for Kent's misconduct. As I explained time and time again in my posts, all I advocate is that "Congress should investigate the issue and give the possibility of impeachment serious consideration" (a direct quote from my first and most detailed post on the subject).

Near the beginning of my original post, I wrote that "[t]he consistent theme being promoted by all of these articles, op eds, and blog posts, is that the Council's punishment was inadequate and that Congress ought to consider impeaching Judge Kent." That seems to me to be exactly what Prof. Somin now says he's been saying, not what he now says I said he said. And note Prof. Somin's careful placement of quote marks in that first sentence I've quoted just above. In fact, I never accused Prof. Somin of saying that impeachment is the "only" remedy for Kent's misconduct, neither using that word nor others with the same gist. Instead, in the passage containing the "obvious remedy" phrase, I quoted the Chronicle article's quotation of Prof. Somin as saying that "the public record on Kent's 'long history of ethical problems' is significant enough that Congress should look into it." (Re-emphasizing what Prof. Somin now says he's been saying, not what he now says I said he said.) And I then said:

Similarly, Prof. Somin had written repeatedly to that same effect in his own blog posts (and in his comments in response to other readers than me), portraying the Council as effectively toothless, with impeachment being the obvious remedy that is justified, but one utterly beyond the Council's power to accomplish or address.

"Portray[al]" and "obviously" are flags to indicate my subjective characterizations, and they include my inferences as to Prof. Somin's motivations and intentions. To the extent that Prof. Somin has intended, in what's now seven separate posts, to only recommend that Congress investigate, and to the extent that he intended to express or even imply no opinion on impeachment itself, then my portrayal and my inference as to what's "obvious" would be inaccurate. Indeed, maybe you, gentle readers, read those six posts as being Prof. Somin urging that Congress investigate and consider impeachment for the purpose of clearing Judge Kent's name. But I think that's silly. He certainly hasn't admitted it in so many words, but the subjective inference which I draw instead (continuing with my politically incorrect "drumbeat" metaphor) is that Prof. Somin, for some reason, is out for Judge Kent's scalp — at least a public investigation, and at least the possibility of impeachment thereafter. If your own interpretation of Prof. Somin's intentions is more benign, such is your right, too.

Review: Stuart Taylor, Jr. and KC Johnson's "Until Proven Innocent"

I should know better than to start a new book after midnight even on a weekend, but upon finishing what I'd been reading last night, I picked up Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, intending to read a chapter or two.

I put it down about twelve hours later to begin typing this review.

I know there are a couple of other books that had already come out this summer about the outrageously fraudulent rape prosecution against three Duke lacrosse players between March 2006 and April 2007. But large chunks of what I already thought I knew about the case came came from my occasional visits over the past year and a half to Dr. KC Johnson's Durham-in-Wonderland blog or, more recently, Johnson's and co-author Stuart Taylor, Jr.'s series of guest posts on The Volokh Conspiracy. I was impressed by their writing there, and by some other reviews I'd read of this book (including Jeralyn Merritt's and Ed Whelan's). So when I received a review copy, it went to the top of my "read-next" stack.

If you care about colleges, or college athletics, or justice and the criminal justice system, or political correctness, or rape and sexual assaults, or race relations, or mainstream media blindness — or any combination thereof — this is an important and worthwhile book. In it you will find much that is educational, shocking, funny, revolting, pathetic, outrageous, courageous, smarmy, and fascinating. It is a genuinely compelling story that, as I read it, frequently alarmed my poor dog (me laughing, me shouting in disbelief, me slamming the book down and then pacing and muttering for five minutes, me getting all choked up with empathy, me racing over to the computer to Google something or someone, me laughing again, and so forth).

*******

The book is far from perfect. The prose is always workmanlike or better, but at least in this first printing the book shows signs of needing a better copy-editor. The first fifty pages occasionally read like the paragraphs were shoveled into position to form a roughly chronological introduction — perhaps because they were drawn in whole or part from blog posts or other writings? or they're new and were whipped up in a comparative hurry? — but without being knitted together very well. But that smooths out as the authors and/or editors hit their respective strides. There were also a distracting number of small proofreading or editing errors (unnecessary commas, unmatched parentheses, and such). My review copy came with a multi-page press release that included a seven-page "dramatis personae" list that I found essential, and that ought to be included in later printings. The index looks awfully thin for the number of text pages and their average indexable facts per page (which is very high). There are neither footnotes nor endnotes (although I would wager that a very large percentage of the source materials are either posted on or hyperlinked from Dr. Johnson's blog). But in context, these are mere nits.

I already knew enough about the case to have drawn confident conclusions about the now-disbarred, disgraced, and genuinely criminally conspiratorial prosecutor, Michael Nifong. If this book hastens by even a day the badly needed criminal prosecution of that man for conspiracy to obstruct justice and other serious felonies, the authors will have done the world in general, and my profession in particular, a great service. He's done one day of jail time for criminal contempt-of-court, and is now a probably judgment-proof defendant in the federal civil rights lawsuit just filed by the three accused players. But the man needs to be prosecuted fairly and aggressively, with all of the scruples minded and due process provided that he honored only in the breach as a prosecutor himself, but with a tenth the pretrial publicity and ten times the vigor he employed. In painting him, this book creates a coherent and thorough narrative that should nauseate anyone who loves the concept of justice. (I had to rinse my mouth after reading that Nifong claims his favorite book is Harper Lee's To Kill a Mockingbird.)

I was also generally acquainted with the despicable performance of the Duke administration, a large vocal minority of the Duke faculty (the "Gang of 88"), and the mainstream media throughout the affair, but the book provides, literally and metaphorically, chapter and verse on their sins of commission and omission. There are many goats, but a surprising and encouraging number of heroes too. (Where, oh where, though, was the rest of the Duke Law faculty besides the conspicuously heroic James E. Coleman, Jr. during all of this? They sat by essentially silent, it would appear, neither reminding their main-campus colleagues of the basic civil liberties they're charged with teaching to law students nor uttering a peep as Nifong proceeded to make mockery of those liberties. For shame, for shame.)

I knew in general that the defendants and their teammates had been badly abused but had kept their heads high and fought back honorably and doggedly. I had no sense before picking up this book, though, of any of the athletes' personal circumstances or characters. The book remedies that deficit, and in the process explodes some stereotypes about them. It also provides a series of vivid vignettes of the various defense lawyers and their complementary strengths and efforts.

*******

But I'll tell you what choked me up, that I did not at all expect to be choked up by: It was the description of, and the quotes from, the women who knew these young men. Their moms and kid sisters. Their classmates among the student body generally, and in particular in the student government and student newspaper (both of which put their "adult" counterparts to shame with their maturity and open-mindedness). And especially their counterparts on the Duke women's lacrosse team (and their coach, Kerstin Kimel), who were themselves formidable NCAA Division I national competitors. They weren't girlfriends or  groupies, but respectful peers who would probably have been among the least tolerant fellow-students imaginable if the male players had indeed been the racist, misogynistic, violent bullies that the prosecution, the PC crowd, and the media insisted on painting them as. Instead:

While the three defendants had been in exile, Yani Newton and her teammates had been advancing to the semifinals of the national championship. In the ACC tournament, all the players had worn blue shoelaces to show solidarity with the men's team. While preparing for the trip to the Final Four in Boston, Coach Kerstin Kimel mentioned to a Herald-Sun reporter, in an off-the-record conversation, that the players might wear "innocent" armbands. By the time the team got to Massachusetts, the tentative plan was all over the news — and was being assailed as scandalous.

The players and coaches discussed the issue before the May 26 semifinal game against Northwestern. Given all the attention, Kimel said, the players could wear the armbands if they wanted but should not if it would be a distraction from the game. Most players settled on armbands displaying the lacrosse-team numbers of Dave [Evans], Reade [Seligmann], and Collin [Finnerty]: 6, 13, and 45, respectively. A few stuck with "Innocent." Midfielder Rachel Sanford wore that message on a headband right across her forehead.

The women lost a heartbreaker in the semifinal, 11-10, in overtime. But many in the media, and on Duke's faculty, were less interested in the game than in trashing the Duke women for having the gall to resist the media-faculty rush to judgment against their friends.

I can just imagine a helmeted, pad-wearing, stick-wielding Ms. Sanford scowling at her opponents from beneath that headband. I would not have wanted to be between her and her team's goal that day.

Allow me to wax old-fartish for a moment (as if I ever don't). Consciously or not, highly motivated, over-achieving college-age young women — despite their own tendencies to be young and irresponsible while they're young and irresponsible — start looking at the boys around them with a critical eye, searching in them to see not just what they are, but the men they are poised to become. Yet for speaking out against the notion that these particular young men were animals that needed caging or tranquilizing or castrating, they were called "stupid, spoiled little girls" (and worse). It was the sudden shock of imagining the male players through the tear-filled eyes of their female classmates — who knew better, who were watching these young men's futures being destroyed, and yet who could do nothing to stop it — that actually yanked my own parental-type reactions into gear.

*******

Co-author Stuart Taylor, Jr. has a law degree from Harvard and spent three years at a superb D.C. firm, Wilmer Cutler & Pickering, and he and Johnson had close cooperation from the defense lawyer teams. As a consequence, there are no significant blunders in their understanding or explaining of the various legal principles and events, and in fact I think they do a commendable job of keeping everything broadly accessible to well-educated non-lawyer readers. In general, they display a solid grasp of prosecutorial responsibilities and ethics. Once or twice, though, I thought their enthusiasm and, well, advocacy for the students and against their foes led them astray.

For example, they do a splendid job of explaining why Nifong's application for a court order compelling all 46 lacrosse team members to surrender DNA samples for testing almost certainly lacked probable cause (some team members had not only not been at the party, but had been in other towns on the night in question, and at least two non-athletes were at the party but not named in the application). They conclusively demonstrate that the application was based on flagrant misstatements and exaggerations of the evidence the prosecutors then had in hand. And from all that, they correctly argue that the order was an unconstitutional intrusion on the players' Fourth Amendment rights. That should be enough, but Taylor and Johnson then proceed to run through all the exculpatory evidence that Nifong's team already had in hand yet didn't mention in their application.

That's a step too far: While obliged to disclose exculpatory evidence, a district attorney isn't ethically obliged to then marshal it against his own arguments in the most persuasive fashion. Part of the exquisite tension inherent in the role of prosecuting arises from prosecutors' obligation to accommodate simultaneous and conflicting roles as evaluators of evidence (to decide whether justice will be served if charges are pursued) and vigorous advocates for the State. The authors clearly understand how badly Nifong abused the first role, and that the second role didn't excuse him in that. But occasionally they seem less than crystal clear on how ethical prosecutors avoid Nifong's abuses while remaining effective advocates.

Similarly, of their three "big picture" wrap-up chapters — on the frequency of prosecutorial abuse generally, age-old tensions in rape law as exacerbated by feminist trends, and the disturbing PC paralysis and intolerance within the academy — it's the first one that I find least perceptive or persuasive. The authors seem ignorant, for example, of the fact that many capital defendants who've been removed from death row or even released from prison don't necessarily receive that relief because they've been proven innocent like the Duke lacrosse players were, but because their convictions and/or sentences have been overturned and, for whatever reason, the state is not quite able to re-establish their guilt beyond a reasonable doubt. (Lots of people who "walk" because their convictions are overturned are not necessarily "innocent.") Nor do I think it's practical to import the British practice of the same barristers prosecuting one week, then defending during the next. And if their assumption is that the British criminal justice system otherwise provides procedural or substantive safeguards for criminal defendants that are better than America's counterparts, they're sadly mistaken.

But overall, this is not just an important book, but a good book. Its authors should be proud of their work. And the rest of us should continue to ponder the lessons the book teaches on a wide variety of topics.

Congratulations to new Fifth Circuit Judge Jennifer Elrod of Houston

I was tickled pink to read (h/t Mary Flood) that by a voice vote late Thursday, the United States Senate confirmed President Bush's nomination of Jennifer Elrod, previously the presiding judge of the 190th Civil District Court in Harris County, to the United States Court of Appeals for the Fifth Circuit.

I tried a week-long jury trial before Judge Elrod in 2006. It was a reasonably complicated commercial case, portions of which she had resolved through partial summary judgment, and the remainder of which she properly submitted to the jury, which returned a verdict in my client's favor. I did not agree with all of her rulings, and indeed, portions of the case are still pending on appeal, and I'm trying to get some of those rulings overturned. I would have blogged previously in support of her pending Fifth Circuit nomination but for the chance that had she not been confirmed, such might have been construed as "sucking up" in the event I'm back in the 190th Civil District Court in that case on remand next year.

But "agreeing with Beldar 100% of the time" is not part of my standard for evaluating a judge's competency (which is good, because I've never yet met such a judge). "Giving Beldar and his client a fair shot when he's before you" is part of my standard, however. And in every instance during that trial, and during its extensive pre- and post-trial proceedings, Judge Elrod carefully and thoroughly considered my and my opponents' written and oral arguments. She displayed a thorough command of trial procedure and the rules of evidence during the trial. Before, during, and after the trial, Judge Elrod's rulings were timely and clear. She works hard. She presided over her court without undue pomp, but with unfailing courtesy and dignity — the sort that can aptly be called "Southern courtly manners" — and with a sure and firm hand. She showed herself to be simultaneously disinterested (she's unbiased) and interested (she paid attention). And she'd know and appreciate the difference between those two words: I have no doubts about her intellectual chops.

The broad and deep experience that Judge Elrod will bring from a big-firm civil litigation practice, and then from the civil trial courts of the nation's fourth largest city, will become a valuable resource for the entire Fifth Circuit. Nan Aron, president of the hard Left "Alliance for Justice" (a/k/a Alliance Against Republican Presidents' Nominees) organization, could find no more persuasive criticism of Dubya's nomination of Judge Elrod than to claim that "[b]y her own admission, Jennifer Elrod has never written a judicial opinion." That's either badly confused, or an outright lie, or more likely an outright lie designed to badly confuse Aron's readers: Trial court judges, of course, generally don't write appellate opinions, and the overwhelming practice in Texas state trial courts is that trial judges review, sometimes revise, but generally sign their names exclusively to orders and judgments prepared by counsel for the litigants. But three mouse clicks away on my own hard drive, I can find multiple examples of detailed written orders that Judge Elrod authored as a trial judge, typically because she was crafting, on her own initiative, a result that wasn't exactly what either side had proposed, or because she wasn't quite satisfied with what either side's counsel had submitted, or simply because her doing the drafting would advance the case in the most expeditious fashion. All of which is to say, she's done more judicial writing than her current job description requires or typically involves, not less.

Will she be a judicial conservative on the federal bench? I think so, based on personal observation of the way she behaved as a trial judge. My case posed no great policy questions and didn't require statutory interpretation. But watching a judge deal with counsel, and then with a jury, over significant periods of time tells one quite a bit about how the judge sees his or her own role in the system. And the best short-hand way I can describe Judge Elrod's judicial demeanor and temperament and self-concept would be "John Roberts-like," which will make perfect sense to those of you who watched much of Chief Justice Roberts' confirmation hearings (and is about the highest compliment I can bestow to a judge, for that matter).

She also reminds me quite a bit of another judge of my acquaintance whose track record went from Baylor to Harvard to Baker Botts to the Harris County District Courts and then beyond: the Hon. Thomas R. Phillips, long-time and recently retired Chief Justice of the Texas Supreme Court, who probably did more than anyone else to restore judicial conservatism and consequent national respect to that bench.

I had been concerned that Democrats might nevertheless try to run the clock out on her nomination. They did not, and to that extent, I will give them due credit for doing their jobs.

Congratulations, Judge Elrod. I wish you a long and productive career on the federal bench.

More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution

After writing my post yesterday, I sent the following email to Austin American-Statesman reporter Chuck Lindell, whose news story Wednesday had been picked up by the AP and others:

Mr. Lindell:

Re your report in Wednesday’s Statesman about the handling of the stay of execution application in the Michael Richard case, you might be interested in some reactions from both left and right among legal bloggers.  You’ll find links and my own take at my blog.

I look forward to your follow-up reporting, but would also appreciate any supplementation you might make or comments you might have via email, either for attribution or not as you prefer.

- Bill Dyer a/k/a Beldar

I received this gracious and self-explanatory reply this morning:

I can answer one of your questions — about the presence of Ed Marty in the story.

The request to remain open past 5 was made to the clerk's office. The clerk asked Marty for an opinion. Marty consulted with Judge Keller, and Marty delivered the news back to the clerk, who called [Texas Defender Service]. In the constraints of space and time (not getting sci-fi on you, but space in the paper and time on deadline) that progression got crunched.

If communication broke down somewhere along that path, it's as yet unexplained.

Also: The term "keep the court open" was used by TDS, so I used it. They also said they asked the court if they would accept a filing after 5 p.m.

I do not know if the term "emergency filing" was used, and (frankly) I did not realize there could be a difference between asking to stay open and asking to accept a late/emergency filing, so I didn't push TDS for a very specific accounting of what they requested.

I can try to answer any specific questions you may have. Feel free to post what you'd like. It's all information, and I'm in the information biz, as we say. One of the pitfalls of writing for a general audience is the omission of minor details that are major details to people who practice law.

Oh, and no more of this "mr. lindell" — I'm Chuck.

Thank you, Chuck! I hereby nominate you for the "2007 Most Cooperative MSM Reporter Conspicuously Lacking Any Chip On His Shoulder When It Comes to Bloggers Award"!

I've also received a reply email tonight from University of Houston Law Professor David R. Dow — who was among the lawyers representing Richard and who's among the most active and widely-quoted scholar-practitioners involved in Texas death penalty defenses and appeals — graciously consenting to my request for a telephone interview. He's traveling over the weekend, and I hope to catch up with him by phone at his convenience as early as Monday morning.

This interstitial information in Chuck Lindell's email response, like that in today's very interesting Houston Chronicle story, nevertheless still leaves me wondering whether Texas Court of Criminal Appeals Presiding Judge Sharon Keller actually made a knowing and deliberate decision to prevent Richard's defense team from filing an emergency stay application outside regular court hours, or whether instead this was a communications breakdown — and if it was the latter, exactly how it happened.

I genuinely would like to know — and not because I've got any stake in defending Judge Keller in particular, nor because I want to divert blame onto anyone on the defense team.

Indeed, I'm yet to be convinced that "blame" is the right word with respect to anyone involved. It bears repeating that everyone in this situation, both at the Texas Court of Criminal Appeals and on the defense team, was necessarily acting under enormous time pressures — caught between an unpredicted SCOTUS cert grant from the Baze case from Kentucky and the Richard execution scheduled for that very same night. There are many ridiculous last-minute stay applications filed without any good excuse for why their arguments couldn't have been raised earlier — but this was emphatically not such a case. The Baze cert grant was indeed a big deal in terms of shifting the balance of factors that courts use to consider those applications in death cases, regardless of whether Baze eventually does or doesn't end up prompting a revamp of execution technology and practices.

That the Richard defense team was able to generate a same-day reaction at all is to their enormous credit; and I didn't previously know that the Texas Court of Criminal Appeals in fact routinely makes detailed preparations in anticipation of last-minute applications in connection with all executions (although I'm not terribly surprised to learn that). At the beginning of my career — not so many years ago — in a pre-fax machine, pre-internet, pre-24/7/365 news environment, assembling a stay application on this sort of time-table, and getting it considered on its merits by not only the Texas Court of Criminal Appeals but then the SCOTUS within a matter of hours after a cert-granted announcement, would have been thought a wild fantasy. Yet today we're seriously asking ourselves if it's a tragedy that all that couldn't be accomplished within those same few hours.

And in terms of the prejudice from the failure to get a consideration of the stay application on its merits, I suppose things certainly could also have been worse: If there were serious alternative grounds for the stay besides the cert grant in Baze, I'm unaware of that; in prior proceedings, Richard almost certainly got full and due consideration on the merits of any other defenses he might have had. The only real consequence was that Richard was executed using the same three-drug "lethal cocktail" that Texas and other states have used in hundreds of executions; and there's no reason to think that Richard's executioners missed his vein and pumped the mix into his muscle mass (as apparently happened in a recent Florida execution, with disturbing results).

But anyone who values due process — and especially the awesome solemnity and responsibility that ought to attend legal proceedings in all capital cases, whether one supports or opposes the death penalty — nevertheless has to be concerned over this situation. There may be important lessons to be learned for at least some, and perhaps many, of the court and defense team personnel involved in this and similar cases. Moreover, in a system in which the AEDPA requires exhaustive presentation of grounds first to state courts before federal courts will consider intervening, the quality of practical access to those state courts is important.

And there may be other systemic implications that merit consideration by the Texas legislature and Texas' highest courts in contexts not limited to death cases: Our federal courts, for example, now almost universally accept — and are coming close to mandating — internet/email filings, whereas the Texas state trial and appellate court systems almost universally forbid them. One can be, like me, a skeptic about the notion of a "living, breathing Constitution" without necessarily also being a Luddite. And when it comes to deciding what "process" is "due," instances like this one should probably prompt us to reconsider whether digital/cyberspace-processes are being short-changed or prohibited without particularly good reason.

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

Previous posts on the Richard stay application matter, oldest to most recent:

1. Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed?

Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed?

From the right, DRJ at Patterico's Pontifications titles her post "We Close at 5." From the left, Jeralyn Merritt at TalkLeft titles her post TX Judge Closes Courthouse, Prevents Death Appeal.

I like and respect both of these lawyer-bloggers, so I paid close attention when both of them pronounced themselves appalled by linked and quoted* reports of the Texas Court of Criminal Appeals' handling last week of an emergency application for a stay of execution in the case of capital murderer Michael Richard. Jeralyn linked an AP report as reprinted in the Houston Chronicle, and DRJ linked essentially the same AP report as it ran in the Dallas Examiner. The AP report, in turn, appears to rely exclusively on an article from yesterday's Austin American-Statesman, so that's what I'll quote from at length:

The Chi ruling [announcing that the Texas Court of Criminal Appeals was staying Heliberto Chi's execution based on the U.S. Supreme Court's having agreed to hear a Kentucky case, Baze v. Rees, challenging the constitutionality of the three-drug "lethal injection cocktail" used in both states,] came as new details emerged about the Texas court's refusal to stay open past 5 p.m. on Sept. 25 so lawyers could file an appeal on behalf of death row inmate Michael Richard. The Supreme Court had accepted the lethal injection case earlier that day, and Richard's lawyers argued that the extra time was needed to respond to the new circumstances and to address computer problems that delayed the printing of Richard's motion.

Richard was executed later than night, and news of the court's refusal appeared in newspapers, and critical editorials, around the world.

Last week, court personnel declined to say who made the decision to close at 5 p.m.

It was revealed Tuesday that the decision was made by Presiding Judge Sharon Keller without consulting any of the court's eight other judges or later informing them about the decision — including Judge Cheryl Johnson, who was assigned to handle any late motions in Richard's case.

Johnson, who learned about the request to stay open past 5 p.m. in an Austin American-Statesman story, said her first reaction to the news was "utter dismay."

"And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

Johnson said she would have accepted the brief for consideration by the court. "Sure," she said. "I mean, this is a death case."

Judge Cathy Cochran said the Richard case raised troubling questions.

"First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?" Cochran said. "Our courts should be open to always redress a true wrong, and as speedily as possible. That's what courts exist for."

At least three judges were working late in the courthouse that evening, and others were available by phone if needed, court personnel said.

None of the judges was informed of Richard's request by Keller or by the court's general counsel, Edward Marty, who had consulted with Keller on the request.

Keller defended her actions, saying she was relating the court's longstanding practice to close on time.

"I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given," Keller said. "And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure.

"And given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," Keller said.

[Executive director of the Texas Defender Service Andrea] Keilen, whose organization also handled Richard's appeal, said court clerks were informed about the computer problems.

The clerk's office, asked whether Keller was told of the malfunction, referred questions to Judge Tom Price, who is in charge of court personnel. Price did not respond, and calls to other judges were not returned Tuesday.

"I’m a stickler for law and order but not this kind," writes DRJ. "Outrageous," comments a self-identified former prosecutor at TalkLeft. "Keller's move is ... perilously close to simple murder," accuses another.

So what was my first reaction when I heard this? It was this: "Did they really ask to keep the courthouse open? Or did they instead ask to arrange for an after-hours emergency filing?" Because in deciding whether there was a significant malfunction here, and if so, who was to blame and in what degree, there may be a big difference between those two questions.

*******

Regular readers will know that it's hard for me to express an opinion on something without telling a Beldar war story, and a couple came to mind when I read of this controversy. You can skip them if you're impatient. I've mentioned one of them already in the comments over on Patterico's:

I am a strong proponent of capital punishment. I have been a frequent defender of the Texas judicial system’s administration of the state’s capital punishment laws.

But I was also once a federal appellate court clerk who, from time to time, was “on call” to handle emergency (read: “last minute”) filings in capital cases. And from time to time in that capacity, I had to take extraordinary steps to track down and get in touch with my own judge or one of her fellow judges after hours or on court holidays. I once read an emergency motion aloud over the phone to a Fifth Circuit judge who was standing in his fishing waders on the porch of his East Texas fishing cabin. We hadn’t expected to have to do that, but we’d made plans so that we could if the need arose, and it did; and the judge made a ruling on the merits, which I relayed to a designated deputy clerk of the Fifth Circuit in New Orleans, and thence to the litigants.

I also made a comment there regarding the scope of the potential blunder, if there was one in this instance:

As far as how big a deal this is, overall and in the big picture: Keep in mind that there is no suggestion that because of this communications problem, an "innocent man" was wrongly executed. And there’s no suggestion that Richard’s execution was any more or less painful than any of hundreds of others than have taken place over many years in Texas and many other states.

*******

But this episode also causes me to flash back to Christmas of 1982, when I was a young associate at Baker Botts. On December 21 of that year, our client Burlington Northern had announced a surprise hostile tender offer for some, but not all, of the stock of El Paso Gas Company. The offer was frankly timed to coincide with the holiday season in hopes that might prevent the target from reacting as swiftly and effectively as it otherwise might. But El Paso Gas found a home-town state-court judge who issued an ex parte temporary restraining order ("TRO" for short) purporting to enjoin Burlington's tender offer altogether and — in a nice piece of legal jujutsu — El Paso Gas got that state-court TRO on the morning of Christmas Eve.

Now, we had anticipated just such a lawsuit, and we were fully prepared to dash into federal court to ask a federal judge to enjoin the state-court judge from enforcing such a TRO. In fact, we already had our counter-suit papers (including our TRO motion) drawn up, with just a few blanks remaining to be filled in. And we'd put El Paso Gas' counsel on notice of our representation, meaning that they ought not to have been able to get their state-court TRO without our our first being notified and given an opportunity to appear at least by telephone to contest it. (Their lawyers kind of ignored those ethical rules; funny how situational ethics may become when your largest client is at risk of being swallowed by another company.) And we had frankly expected that El Paso Gas wouldn't be able to get a hearing on their TRO until after Christmas anyway. But instead, suddenly the holidays were working against us.

Thus it came to pass that on Christmas Eve afternoon, I found myself standing on the tarmac outside a private aviation hangar at Houston's Hobby Airport with one of my mentors, the late and truly great John L. Jeffers, Jr. (of whom I've written before, at greatest length here in a post about his triumphs in Pennzoil v. Texaco). None of the commercial flights could get us to El Paso as quickly as we needed to be there, so John had just used his Amex Gold Card to spot-charter a Lear.

And not very long afterwards, a law clerk for U.S. District Judge Harry L. Hudspeth had unlocked the courthouse doors for us, and then proceeded to usher me and John into Judge Hudspeth's chambers library. Judge Hudspeth sat at the end of the conference table in the center of the room, and standing and sitting all along one side of the table were our opposing counsel — at least a dozen of them, as I recall, both from the local firm and from their New York tender offer defense specialists. John and I sat down opposite, with lots of space to spare. ("Looks like you're one wise man short," cracked one of our opponents in a stage whisper. I think that was one of the New York guys.)

There was no heat on in the building, and the City of El Paso was enduring one of its rare, but occasionally brutal, spells of genuine winter weather, so everyone was wearing their overcoats, and many of us were wearing gloves. I could see the moisture condense from Judge Hudspeth's breath as he said, "So, gentlemen, I've read your emergency papers. Let's talk first about Younger v. Harris abstention." And that was my cue to start talking, because the reason Jeffers had brought me along was to argue all of the procedural issues (including abstention).

A few hours later, John and I were back on the Lear, headed for Houston and home. I think Christmas technically came some time while we were in the air, but we may have flown into it as we changed time zones heading back east. I do recall, vaguely, that there was a surprising amount of cold champagne on such a small jet, but it was all gone by the time we landed: We'd prevailed on our emergency TRO and persuaded Judge Hudspeth to order the state-court judge to back off. El Paso Gas' remaining resistance collapsed during the first week in January 1983, some golden parachutes got ratified, and the hostile tender offer turned into a friendly one (that nevertheless generated a SCOTUS opinion a few years later, Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985), with which I had no involvement whatsoever.)

So why — besides the fact that this was one of the quickest, most brutal, and generally coolest and most successful courthouse victories I've ever been associated with in a ginormous case — did this particular war story come to mind?

Because as John was hiring the Lear back in Houston, I'd been on the phone to personnel in the office of the U.S. District Clerk for the Western District of Texas, El Paso Division — which was scheduled to close at noon for the holiday. And I wasn't asking them to "keep the courthouse open." I was asking to arrange an emergency after-hours filing and hearing. It took some persuasion, but I explained how the state-court order was restraining something over $600 million in interstate securities transactions that we believed were protected under federal law, and how the injection of even a few days delay into a tender offer could become outcome-determinative in the marketplace. Eventually, with my arguments being relayed to Judge Hudspeth (probably initially through one of his law clerks at an emergency contact number), in other words, I persuaded them that there was a really good reason why they had to hear us late on Christmas Eve afternoon. Not "life or death," but really important. So they did.

But they didn't keep the whole courthouse open. They didn't need to. Once Judge Hudspeth agreed to hear us, we could have held the hearing anywhere — the El Paso Airport Hilton, the judge's basement recreation room, or on the 50-yard-line of the Sun Bowl. He picked his chambers library, presumably because it was convenient for him, and possibly because it was slightly warmer than the marble-floored courtroom.

*******

So, back to the subject of Michael Richard's emergency application for a stay of execution. I intend to blog further about the merits of the Baze v. Rees case now pending before the SCOTUS. For now, however, let's assume that the grant of certiorari in that case (i.e., the Supreme Court's agreement to hear it) is, by itself, a strong enough reason to justify a temporary freeze on executions here in Texas. That's probably true, although it's not a slam-dunk: The Supreme Court hasn't ordered other states, or even Kentucky, to hold off on lethal executions while Baze is pending, and it's refused to consider many other challenges to lethal injection in the past. But death cases are, indeed, special; stays are sometimes appropriate in them even if there's a low probability of a change in the law, precisely because executions are irreversible.

As Texas Court of Criminal Appeals Judge Cheryl Johnson is quoted as saying, at the very minimum, she "would have accepted the brief for consideration by the court" — on its merits, even if it had been presented after hours and outside normal channels. I'm reasonably sure, in fact, that precisely because the volume of capital convictions and executions has been so much larger in Texas than in any other state, her court probably has more experience in handling emergency applications for stays in capital cases than any other court in the country save, perhaps, for the SCOTUS. And some portion of those will have come outside regular business hours. Indeed, emergency stay applications are so common — not common-place, but common and important — that the judges of the Texas Court of Criminal Appeals have apparently pre-assigned those cases to their individual members so that such applications can be reviewed in the first instance by someone already familiar with the background of the case.

So what did happen here?

I don't think we can tell, yet, nor even draw any confident inferences based on the public reporting so far. But if I were forced to make a wager right now, my wager would be that there was a communications mix-up. That someone downstream — either on the defense team, or else in a subordinate role at the Court of Criminal Appeals — didn't get word to Presiding Judge Keller that this inquiry involved an emergency application for a stay of execution in a capital case in which the execution was to take place that very night.

Presiding Judge Keller's quoted explanation only makes sense if she didn't understand herself to be making a judicial ruling, but to have been asked what was basically an administrative question. Someone — and right now, we don't know who — told her "that the defendant had asked us to stay open." The term "the defendant" can refer to a side generically; it's unclear whether Judge Keller was told, or otherwise knew, who this defendant was, or that he was a capital murder defendant.

And more significantly, "asked [the court] to stay open" is not a phrase I would have expected to be used in connection with an emergency application for a stay of execution. Rather, it's the kind of thing I'd expect someone to use if the speaker were not familiar with the procedural lingo here — perhaps the kind of thing that might be asked, innocently and in good faith, but with tragic consequences, by a paralegal or clerk or secretary or volunteer who'd been tasked by a harried lawyer to "contact the Court of Criminal Appeals and see if we can file after 5:00 o'clock, dammit, we're not going to have the computer glitch fixed before then." It's easy for me to imagine someone on the defense team, acting under incredible time pressures, making that kind of verbal fumble out of inexperience.

But if that phrase were heard by a judge who didn't know that it was from a capital case with an execution set for that night, that judge might well think: "Oh well, sounds like someone's going to be missing a filing deadline, looks like we'll have to be considering a motion to excuse that after the fact in a few days; for their sake, I hope they have a good excuse, but if they're not giving us one now, there's no good reason for me to keep the whole courthouse open and the whole staff here." Because this court, like all trial and appellate courts, deals with blown deadlines all the time; some have big consequences, but most don't.

In short, if it's a life or death situation, most judges would expect that when they ask "Why keep the courthouse open?", someone would say, "Because this is an application to stay an execution that's going to happen tonight, and it's quite literally a life or death situation!"

*******

One of the commenters at TalkLeft (who already had a low opinion of Presiding Judge Keller) thinks that a communications snafu somewhere downstream of Presiding Judge Keller wouldn't explain the quotes from the other judges. About that, I replied:

The other judges' comments certainly indicate dismay and anger.  You're inferring, though, that it's directed at Presiding Judge Keller.  Maybe it is.  Or maybe they're expressing their frustration over a communications breakdown that's attributable to someone else.  I don't think you can tell that from what's been reported so far.

....

Judge Johnson is quoted as saying: "And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings." Well, yeah, but ... asked by whom? Asked by Presiding Judge Keller? Asked by someone downstream in the clerk's staff? Or asked by Richard's lawyers?

What I actually find more troubling than the quotes from the other judges is the obscure involvement of "the court's general counsel, Edward Marty, who had consulted with Keller on the request." How did he get in this loop, unless he happened to be who answered the phone to begin with?

*******

Maybe in refusing to jump to the conclusion obviously intended by the American-Statesman writer, I'm putting too much weight on how odd "keep the courthouse open" sounds to my jaded ear. If it indeed turns out that Presiding Judge Keller's refusal of the request to "keep the courthouse open" was made by her with full appreciation of the fact that it would effectively block an after-hours emergency stay application for an execution scheduled for that night, then I, too, will join DRJ and Jeralyn in being appalled, shocked, and dismayed.

But Presiding Judge Keller has been on the Texas Court of Criminal Appeals since 1994. I've got to think she's considered many, many dozens of emergency stay applications outside of regular court hours in the past. Death penalty opponents who paint that court as being populated by ghouls and demons are, quite simply, full of crap; you may not agree with its results, but they are in business to render justice as they understand that term based on their own precedents and those from the SCOTUS. Why, after all of these years, would she pick the day of a potentially monumental SCOTUS cert grant to gratuitously slam the door in a stay applicant's face?

I want to know more. But for now, I'm unwilling to jump to the single one of several possible explanations for this which presumes either bad faith or incompetence on the part of this or, frankly, any other judge.

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

UPDATE (Fri Oct 5 @ 5:00pm): Today's Houston Chronicle has a very interesting follow-up story that nevertheless leaves unanswered many of the basic factual questions that I think must be addressed before one can be confident that one has an understanding of what actually happened with the Richard stay application — much less why those things happened, who was responsible, and in what degree. The citizen-journalist bug having bitten me again, I've emailed University of Houston Law Professor David Dow with a request for a telephone or email interview, and I'll certainly post again if he gives me a favorable reply.

Minnesota trial court rejects Craig's motion to withdraw guilty plea

Sen. Larry Craig's motion to withdraw his guilty plea has been denied. Here's Judge Charles A. Porter's 27-page order, along with the Metropolitan Airport Commission's one-page press release. I'll have more analysis after reviewing the order.

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

UPDATE (Thu Oct 4 @ 2:40 pm): I've now read the order. Craig is toast.

This is an order written by a judge who is very experienced; who knew that what he was writing is likely to be appealed; and who was therefore being very thorough and very careful to do everything possible to make his ruling bulletproof on appeal. He's almost certainly succeeded.

For example, Judge Porter's order recites (page 2 of the .pdf) that Craig "concedes for the purposes of this motion that the facts contained in the Complaint and in the affidavits and statements of the two Metropolitan Airport Commission ("MAC") Police Department officers are true." That is undoubtedly based on a concession sought and obtained by Judge Porter from Craig's counsel during the oral argument. It's the kind of thing that is incredibly important for purposes of a future appeal — but of course, none of the news media who covered the hearing bothered to mention it. The practical effect is that the prosecution's version of the facts hasn't been challenged at all. And any reviewing appellate court won't even consider any contrary factual arguments.

Similarly, the opinion recites (page 7 of the .pdf file) that Craig's lawyers conceded "that when he accepted the guilty plea, Judge Larson had access to the official court file, which included the Complaint." That's doubtless another concession extracted during the oral argument, and it further bolsters the factual worst-case scenario against Craig, while simultaneously expanding and maximizing the fact pattern from which Judge Larson could have found a basis to conclude that the disorderly conduct statute had indeed been violated. This concession renders moot, in other words, any argument that Craig's lawyers made to the effect that there was an inadequate showing in the written motion to accept his guilty plea, by itself, of facts tending to show a violation of the statute.

Mind you, I'm not faulting Craig's lawyers for making these concessions. As a practical matter, they had to do so if they were to maintain any credibility whatsoever. My point is that by nailing these points down,  first at the hearing and then again in the written order, Judge Porter was adding Kevlar to his ultimate ruling for appellate purposes — anticipating, and then pre-negating, what otherwise might have turned into appellate arguments for Craig.

On two subsidiary points on which he had discretionary rulings to make, Judge Porter actually ruled against the prosecution: First, he refused to reject Craig's motion in its entirety as being untimely; and second, he refused to strike the profoundly silly amicus brief filed by the ACLU. Contrary rulings would have given Craig (or the ACLU) something to complain about in an appeal. But they're deprived now of those arguments, and Judge Porter has also demonstrated that he wasn't just blindly following the prosecution's lead or wholly unreceptive to opposing positions. And yet these subsidiary rulings didn't affect Judge Porter's ultimate ruling in rejecting Craig's motion to withdraw his guilty plea. Though timely, Judge Porter concluded that Craig's motion lacked merit; and he spent a page near the end (page 26 of the .pdf) explaining why the ACLU's arguments also lacked merit.

The rest of the opinion just methodically examines and then demolishes every one of Craig's sprawling, sometimes conflicting arguments — often displaying a light sense of irony in the process. For example, after quoting from the petition to enter a guilty plea that prosecutor Renz prepared for Craig's review and signature, Judge Porter examines Craig's argument that his "guilty plea lacked a sufficient factual basis" (page 12 of the .pdf; emphasis mine):

This factual basis contains the requisite date, location, and elements of the offense, but clearly does not describe, in detail, the conduct that substantively supports each element of the offense. The Defendant argues that because the factual basis in the petition lacks detail, he was therefore not aware of the facts  underlying his conduct coinciding with the elements of the offense, or more importantly, that he was not admitting to having engaged in that conduct. This is illogical. The Defendant admits in his post-conviction affidavit that he pled [guilty] in haste in an effort to avoid the public disclosure of the very facts which he now maintains should have been painstakingly detailed in the petition and therefore of record memorializing his admission to specific facts. This Court believes that the Defendant's plea had a more than sufficient factual basis on the face of the petition.

In effect, this is chiding Craig (my paraphrase, not a quote): "Don't be faulting the prosecutor or the court for not rubbing your face in all the sordid details of your crime, Sen. Craig! We were cutting you some slack." But the opinion then proceeds to go through the rest of the conduct in all its detail as revealed in the complaint, lest there be any doubt.

And of course, by the end, there's really not. There never really has been — except in the minds of well-meaning civil libertarians whose zeal to protect gay rights blinded them to the simpler reality that, whether intended as part of a gay cruising ritual or not, an airport traveler's protracted staring into someone else's bathroom stall, and then poking his hand and foot into it to wave at and then rub against that stall's occupant, is just not acceptable conduct in a public restroom.

The opinion also includes an exoneration of both Sgt. Karsnia and prosecutor Renz from any blame or overreaching. It quite appropriately puts all of the responsibility — first for the crime, and then for the guilty plea — directly where it should be, which is to say, directly on Sen. Larry Craig.

What's missing from the opinion? The same damn thing that was missing — inexplicably to me — from Craig's lawyers' written papers: A focused discussion of Minnesota Rule of Criminal Procedure 15.02(3), as made applicable to mail-in pleas by Rule 15.03. In fact, there's no mention of either rule. That may well reflect the absolutely lousy job that Craig's lawyers did of pointing out that these proceedings didn't strictly comply with those rules. But as a result, what I and other legal pundits thought was Craig's very best argument isn't addressed at all. An appellate court would probably conclude, if asked, that Craig has waived that argument by failing to make it more clearly.

And now it simply remains to see whether Sen. Craig plans to become a professional pariah. His chances of successfully appealing this ruling are somewhere below 1% in my opinion; this motion was a farce, but an appeal from this ruling would be nothing but tragic. Will he add "oath-breaker" to his record by continuing to disregard his pledge to resign?

Just quit, Larry. For the sake of your family, if for no one else. Just ... quit.

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

UPDATE (Thu Oct 4 @ 5:10 pm): He says he's staying through the end of his current term (January 2009). As part of the press release, he says: "I am innocent of the charges against me. I continue to work with my legal team to explore my additional legal options."

Bring on the Senate hearings. Roll in the klieg lights. It looks as though columnist Dan Popkey was right in predicting that Craig actually wanted to lose this ruling because it would permit him to continue appeals through the end of his term while avoiding an actual trial. So: The Senate should force that trial upon him, in the context of an ethics hearing. Those proceedings are likely to be many times more nasty than a criminal trial anyway. Heat the tar, gather the feathers, and strike up the band, boys, the circus is coming to town.

A lawmaker who is a convicted lawbreaker says the law's rulings don't apply to him, and such a man can't be permitted to remain in office.

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

UPDATE (Fri Oct 5 @ 3:15 pm): James Joyner very ably fisks Craig's "not gunna resign nyah-nyah" press release.

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea
11. Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?

Should the C-in-C be able to distinguish hostile from friendly fire?

Sen. Joe Biden (D-DE), in the opening paragraphs of a Wednesday WaPo op-ed entitled "Federalism, Not Partition":

The Bush administration and Iraqi Prime Minister Nouri al-Maliki greeted last week's Senate vote on Iraq policy — based on a plan we proposed in 2006 — with misrepresentations and untruths. Seventy-five senators, including 26 Republicans, voted to promote a political settlement based on decentralized power-sharing. It was a life raft for an Iraq policy that is adrift.

Instead, Maliki and the administration — through our embassy in Baghdad — distorted the Biden-Brownback amendment beyond recognition, charging that we seek to "partition or divide Iraq by intimidation, force or other means."

Yes, damn those Republicans and their Iraqi stooges, always making their misrepresentations and untruths! Why, here's one:

Today, I joined with many of my colleagues in voting for Senator Biden’s plan — slightly different that he’d been presenting it, but still the basic structure was to move toward what is a de facto partition if the Iraqi people and government so choose.

Ah, except that was Sen. Hillary Clinton (D-NY), speaking at the September 27th debate among Democratic presidential hopefuls, standing about ten yards away from Sen. Biden. Now, I know Old Joe is Slow, but is his eyesight and hearing so bad that he really couldn't recognize Hillary's rather distinctive appearance and voice on the stage with him? He thought she was a Republican?

Well, at least Sen. Biden didst protesteth Hillary's misrepresentation and untruth, thusly:

BIDEN:  What we voted on was not partition.  I don’t want anybody thinking it was partition.  And it’s the only time we got 26 Republicans to reject the president’s policies.

KUCINICH:  You’re splitting...

RUSSERT:  All right, fine.

KUCINICH:  ... Iraq up.

RUSSERT:  Fine.  Fine.

KUCINICH:  That’s what it does.

Yes, that was noted hard-line Republican Dennis Kucinich, on that same stage on the same night, busily engaging — right to Sen. Biden's face! — in more Republican misrepresentations and untruths.

In fairness, Biden's op-ed also notes that "our plan is not partition, though even some supporters and the media mistakenly call it that." He simply expects the Iraqis and their struggling government to make more sophisticated and nuanced political distinctions than, say, a political neophyte like Hillary Clinton can manage to make.

Seriously, true federalism is a luxury — a finely calibrated system that the fledgling American states weren't able to embrace until years after they'd secured their own independence and a relatively stable (if highly unsatisfactory) sort-of central government under the Articles of Confederation. Even in the most enlightened American political debates today — e.g., that which recently went on between Sen. Fred Thompson and National Review pundit Ramesh Ponnuru — highly educated thinkers can have trouble reaching agreement on whether particular policies do or don't represent "true federalism." (With due respect to Ramesh, Fred kicked his butt in that argument, even though Ramesh is a very smart man.)

Encouraging the Iraqis out onto a tightrope that looks, tastes, and feels like "partition" — but that Sen. Biden (and, with equal blameworthiness, Sen. Brownback (R-KS)) insist on calling a fine-tuning of Iraqi "federalism" — is either a very foolish or very cynical approach. But Biden, of course, will always blame Dubya even for what Biden perceives to be the "shortcomings" in understanding on the parts of Hillary Clinton or Dennis Kucinich.

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

UPDATE (Wed Oct 3 @ 6:00am): Here's a not-bad ABC News piece on just what the "Biden-Brownback Amendment" is, and what it means. Biden wants to claim that this is some sort of triumph on his part — that he's engineered a long-sought "defeat" for the White House that marks some sort of significant new direction in Iraq. And that's just baloney.

This was a vague, non-binding sense of the Senate resolution that could be read to say nothing more than that the U.S. and other countries ought to respect and encourage the existing Iraqi federal system as part of the maturation of that nascent government. Nobody at the White House or anywhere else has a problem with that.

I'm dismayed, though, that Sen. Kay Bailey Hutchinson (R-TX) and quite a few other Republican senators voted for this amendment because of the surrounding context, which is quite unhelpful. Biden, Brownback, and others have been making vague and exceedingly ill-informed noises for months and months to the effect that (my paraphrase, not a direct quote) "This Iraq mess is likely going to end up in a three-way partition between the Sunnis, the Shiites, and the Kurds." At a minimum, the kind of "federalism" that Biden seems to have in mind is something that's a partition in all but name. In his op-ed, Biden writes,

[W]e are not trying to impose our plan. If the Iraqis don't want it, they won't and shouldn't take it, as the Senate amendment makes clear. But Iraqis and the White House might consider the facts. Iraq's constitution already provides for a federal system. As for the regions forming along sectarian lines, the constitution leaves the choice to the people of its 18 provinces.

So Biden clearly doesn't have in mind the kind of large-set federalism we have in the United States, with 50 "laboratories of democracy" coexisting and interacting with one another and with a robust and unified central federal government. He's not thinking in terms of the existing 18 provinces remaining the active elements of federal interaction, he's thinking in terms of only three. And that history and context, of course, is why — contrary to what Biden insisted at the debate and repeats in his op-ed — people like Hillary Clinton and Dennis Kucinich will take one look at this and immediately understand, "Ah, sure: This is about partition."

In another ill-advised Dallas Morning News op-ed from last March, Sen. Hutchison effectively endorsed partition. She wrote:

Such a plan would create at least three separate, semiautonomous regions in which local law enforcement, commerce, security and education would be managed by local authorities. A limited central government would be responsible for ensuring an equitable division of oil revenue, conducting foreign policy and protecting national security....

An international peacekeeping force would need to be utilized. Much as the long-term success in Bosnia has depended on the involvement of peacekeeping efforts by NATO and the European Union, long-term success in Iraq will require the involvement of many nations. Regional neighbors with a large stake in a peaceful outcome could make a major contribution to a successful transition in Iraq.

I'm sorry, Sen. Hutchinson, but this is the kind of drivel that I'd expect from John Kerry. "Let's all have an international conference and this will just sort itself out!" The only way that this makes sense is if the second paragraph I've quoted is a disguised code for, "We're going to keep sufficient American combat troops there that we'll be able to prop up the so-called Iraqi central government forever." Many of the "regional neighbors" — among them Iran, Syria, and Turkey — have their own agendas, and not even Turkey can be counted upon to always work with us to ensure a "peaceful outcome." Indeed, Iran and Syria both have vested interests in continuing the bloodshed. If the only thing the Iraqi central government is doing is dividing up national loot and "conducting foreign policy" (a/k/a hosting the American embassy), there's no reason for anyone to continue to pretend that there is an "Iraq." This only makes sense as a recipe for either overt American imperialism or failure.

Things may yet someday come to a partition. But there are a large number of reasons why that would be an awkward, unfortunate, and profoundly dangerous result. Because Slow Joe is looking for easy solutions in Iraq that redound to his political credit in D.C., he's overlooking or under-appreciating those risks (which include handing a huge victory to Iran on a silver platter and creating an enormous rift that could potentially lead to military conflict involving America's strategic ally Turkey). Ultimately, "Biden-Brownback" — toothless though it is — can't be seen as anything but indirect promotion of partition. And the U.S. Congress, in the guise of Slow Joe Biden, ought not be in the business of promoting that result, directly or indirectly.

Biden, though, wants to have his cake and eat it too. He — and here again, he's joined by the earnest but thoroughly naïve Sam Brownback — wants to claim some broad bipartisan achievement by the Congress in bringing about a change in course. But they know they wouldn't have picked up all of those Republican votes if they were candid about their real intended direction — toward not genuine federalism, but effective partition. So that's why you have the silly spectacle of Biden writing an op-ed insisting that what's really important is the fig leaf, and that all the naked partition ambition behind it should be ignored — and then blaming Dubya when members of his own party refuse to play along.

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

UPDATE (Thu Oct 4 @ 9:30am): In this WaPo op-ed, David Ignatius seems to be saying the same thing I've been trying to say, with some additional supporting historical details.

Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?

It's October 1st, and Sen. Larry Craig's self-imposed resignation deadline has passed without his formal resignation being tendered. Dan Popkey, a columnist for the homestate newspaper whose investigation Craig claims "panicked" him into pleading guilty, the Idaho Statesman, hypothesizes today that the senator may have a new plan — one that not only anticipates, but depends upon Craig losing last Wednesday's trial court hearing on his motion to withdraw his guilty plea (boldface mine):

On Sept. 1, Sen. Larry Craig told Idaho and the world he intended to resign Sept. 30. That's today. Instead, Craig says he plans to stay "for now." ...

... Now, Idaho Republican leaders tell me they've come to believe Craig will likely complete his term in January 2009.

"'‘For now' is permanent," said one. "He ain't leaving."

....

Craig has about $500,000 in the bank for his 2008 re-election campaign. He is authorized to use that to pay lawyers.

....

Craig's bid to complete his term would be best served by heading off a trial. A trial would mean testimony from the arresting officer and experts on the culture of anonymous homosexual sex. That's not something Craig, his family, Idahoans or the GOP want to endure.

So far, Craig's strategy is working. Minnesota's Fourth District Judge Charles Porter was skeptical of the arguments of Craig's lawyers. If Porter rules against Craig, as most legal experts expect, Craig won't face a jury anytime soon.

Porter might surprise us and set a trial date in coming months. But the likely scenario is Craig will head to the Minnesota Court of Appeals. He can expect oral argument within two or three months after filing his challenge to an unsatisfactory ruling. An appellate decision would come within another 90 days, extending Craig's battle to spring.

Next step: the Minnesota Supreme Court, with arguments to come two or three months after a second appeal. The average time between argument and a decision is 4 months. That gets Craig to term's end in January 2009.

Well. That certainly would explain the abysmal quality of Craig's legal team's strategy, tactics, and written work product so far: Maybe their instructions were to get in there and throw the game!

*******

As of today, as on every day since his guilty plea was accepted on August 8, 2007, in the eyes of the law, Craig is a convicted criminal — one conclusively proved by his own admissions to have committed the misdemeanor disorderly conduct offense alleged in the complaint against him. Unless Judge Porter permits him to withdraw his plea, Craig will remain a convicted criminal — subject only to the shall and successively diminishing chances of Judge Porter's decision being reversed on appeal.

I don't know whether Judge Porter will issue a written opinion, or simply issue a thumbs up-or-down ruling granting or denying Craig's motion. But if — as seems likely, given his taking the motion under advisement at the hearing, and waiting until some time this week to announce his decision — Judge Porter both denies the motion and issues an opinion explaining that ruling, the opinion is almost certain to contain language affirming that Craig's guilty plea (and waiver of associated rights as part thereof) was voluntary and uncoerced. In any event, if Craig's planning on "hanging tough" and "holding out," he has to anticipate doing so not only in the face of a continuing legal adjudication of guilt, but also in the face of Judge Porter's public re-affirmation of Craig's guilty plea (either implicitly or explicitly).

It's unlikely that Craig's misdemeanor crime (involving no abuse of his office), his breaking of his pledge to resign, or his general hypocrisy — even when taken collectively — are adequate grounds for his formal impeachment and removal from office. So in that very important sense, it doesn't matter what Judge Porter, the Minnesota Court of Appeals, or the Minnesota Supreme Court ultimately do with Craig's conviction, nor when they do it.

However, for purposes of the entry of a judgment of conviction, the Constitution presumes that everyone's innocent until proven guilty. That presumption of innocence is one of the rights that Craig waived when he entered his guilty plea. And with the waiver of that legal right, Craig also forfeited any moral right to ask his colleagues and constituents to reserve or withhold their own judgments. Asking them to withhold their political judgment for a month, while he asked for a mulligan at the trial court level, was damned presumptuous of him. Asking them to withhold their political judgment for many months, while he exhausts further appeals, would be outrageous, and indeed, insulting.

If Craig insists on staying even if Judge Porter rules against his plea withdrawal motion, the pendency of further appeals ought furnish him with zero political cover. The Constitution may grant Sen. Craig the effective opportunity to make a mockery of his own office, and to poke his thumb repeatedly in the eyes of everyone around him — and that's what he'll be doing if he stays on despite an unfavorable ruling this week. But that doesn't mean anyone whom he's thus abusing has to be nice, or polite, or even minimally respectful to him in return.

Whoever among his senate colleagues is presently shaking his hand and encouraging him, even by acting as though his continued presence is "normal" — and I'm looking directly at you, Sen. Specter, you great sanctimonious buffoon, but also at you, Senators Crapo, Smith, and Lott — is doing neither Craig, his constituents, nor his party any favors at all. You're not even being his "friend" by helping him block out reality; you're just enabling more bad behavior that will ultimately heighten and prolong his disgrace. And even if it's likely to result in no more than a public censure, the Senate should definitely proceed with its threatened open ethics hearing (complete with klieg lights, C-SPAN, and vigorous inquiries into "patterns" of misbehavior), and his office space should be relocated to a post office somewhere in central Virginia or Maryland.

Right now, I mostly still pity the man. Is he going to deliberately earn our contempt as well?

I hope columnist Popkey is wrong, and that "for now" really does mean "for now while my motion is still pending at the trial court level, which will be the immediate end of it when and if my pending motion is denied."

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea

Memorandum to Sally Quinn

TO:	Sally Quinn
FROM:	Beldar
DATE:	October 1, 2007
RE:	Vice President Cheney

Sally, it's been three full months now since the WaPo's "blockbuster series" about him, but your big scoop — that senior Republicans were plotting ways to force Vice-President Dick Cheney's immediate resignation, in favor of former Sen. Fred Thompson — hasn't come true yet.

Do you think it's time to consider a retraction? Or would you rather wait until January 2009?