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Saturday, July 21, 2007

Photos from a July 4th trip to my home town

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

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

Windmills between Sterling City and Big Spring, Texas

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

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

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


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

Cotton fields southwest of Lamesa, Texas

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

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

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

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

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

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

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

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

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

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

A large owl just flew in my window ...

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

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


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

Thursday, July 19, 2007

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

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

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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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

As for the theoretical:

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

"Lying" is a very, very serious accusation.

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

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

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

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

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

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

Wednesday, July 18, 2007

Beldar on Mark Levin on Hillary Clinton and Jeri Thompson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, July 16, 2007

Beldar reviews Jan Crawford Greenburg's "Supreme Conflict"

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

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

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



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

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

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

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

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

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

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


Ms. Greenburg also writes (at page 279):

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

Terrorists and Wall Street lawyers

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

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

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

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

"Hott 4 Hill" video

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

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

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

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

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

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

Sunday, July 15, 2007

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

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

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

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

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

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

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

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

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

But I have to admit, I was disappointed.

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


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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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

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


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

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


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

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

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

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

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

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

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


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

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

Beldar & kids see "Transformers"

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

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

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

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

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

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

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

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

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

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

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

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

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

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