BeldarBlog

Thirty years of honestly demeaning myself at the bar

Section 82.037(a) of the Texas Government Code requires that "[e]ach person admitted to practice law shall, before receiving a license, take an oath that the person will: (1) support the constitutions of the United States and this state; (2) honestly demean himself in the practice of law; and (3) discharge the attorney's duty to his client to the best of the attorney's ability."

A lawyer for whom I have boundless respect and affection — United States Circuit Judge Carolyn D. King, for whom I had the privilege of clerking — administered that oath to me and my co-clerks thirty years ago today.

It's a peculiar oath, containing a subtle but ironic example of the word- and phrase-parsing skills required of lawyers: "demean" most commonly means "to lower in dignity, honor, or standing." Many laymen might experience the hearing or reading of this oath as an "Aha!" moment, as in: "Wow, that explains why all those lawyers have been making asses out of themselves, it's literally a sworn duty!"

But "demean" also means "to conduct or behave (oneself) in a specified manner" — as in "demeanor." And here, Texas law specifies the manner to be an "honest" one. I suppose it's theoretically possible to honestly make an ass of oneself, but law usually does not so obviously mock itself or its practitioners. Instead, the qualifier implies a legislative intent to use the word "demean" in this secondary, now near-archaic, sense.

Once that peculiarity has been spotted, properly masticated, and duly resolved, the oath itself becomes clear. Its actual application in the real world over the course of 30 years has proved to be anything but.

Nevertheless, I've done my best to keep it these thirty years, and shall for however many more are permitted me.

Last word (for now) about reading Ninth Circuit tea leaves associated with the stay ruling in Perry

I emailed Prof. Hasen after my last update to my long post from Monday and Tuesday in which I was trying to read tea leaves from the composition of the Ninth Circuit panel that stayed Judge Vaughn Walker's invalidation of California's Proposition 8. Prof. Hasen had been quoted in the press as saying that a new and different panel would definitely hear the appeal on its merits.

In his prompt and gracious email reply, he has confirmed to me that he was indeed relying in part on his personal experience from past appeals in the Ninth Circuit, and he pointed me to the Ninth Circuit's Standing Orders, which (he said) clearly distinguishes between "motions panels" and "merits panels."

The Standing Orders, which run to some 122 pages, is a set of procedures and rules distinct from and supplementary to the Federal Rules of Appellate Procedure and the Ninth Circuit's own local rules. In them, for example, are several references (e.g., sections 1.12 and 3.7) regarding how the Ninth Circuit handles "comeback cases," but they don't seem to speak specifically to this situation. Much of Chapter 6 of the Standing Orders relates specifically to motions and motions panels, however, and to the coordination of actions by the motions panels once a case has been assigned to a merits panel either for summary disposition or for oral argument.

I have not read the Standing Orders carefully, but I'm more than willing to defer to Prof. Hasen's reading of them and his personal experience. If I do understand them correctly, however, there either has been, or soon will be, a merits panel assigned to this case in connection with the briefing and December oral argument ordered by the motions panel. And from that moment on, that merits panel will have plenary (complete) authority over everything to do with the appeal (subject, of course, to eventual en banc and SCOTUS review). Prior motions panels will be out of the picture entirely (subject only to the possibility that one of those same judges may, by random assignment, end up on the merits panel too). And it's likely that neither the public nor the litigants will be told who's on the merits panel until shortly before the oral argument.

Thus endeth my tea leaf reading for now.

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As for the significance of the motions panel having granted the stay:

Prof. Hasen was also kind enough to point me by email to this later post of his on the American Constitution Society's blog. (The ACS has been described as "the left-leaning equivalent of the Federalist Society," for those of my readers not immediately familiar with it.) I agree with almost all of what he's written there, including his ultimate conclusion that "for those who want to predict what will happen in the appellate courts, there's really very little to go on so far." But I would quibble slightly with his downplaying of the role of probability of success on the merits. He writes:

[S]ome have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. [I'm one among many who've made that suggestion. — Beldar] Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Prof. Hasen's certainly right that maintenance of the status quo is, in theory, also a value that's supposed to be taken into account in deciding stay applications. Determination of whether and how much that particular factor counts in a given case often leads litigants to argue about what actually is the status quo. Here, it depends how far "ante" you go — do we count the days when the California Supreme Court had judicially imposed same-sex marriage, or do we only count the days after Prop 8, approved by the voters in reaction to that judicial action, re-imposed heterosexual marriage as the exclusive possibility?

Moreover, those seeking ssm by judicial decree — and I don't know if Prof. Hasen is among their number or not — always argue that the right of gays to marry is a "fundamental right," the abridgment of which is a particular tragedy, and the sort of right that federal courts ought to be most aggressive in protecting. Can you imagine that in weighing the factors for and against a stay application, a federal judge would give defining weight to maintaining the status quo over protecting a fundamental constitutional right that's being continuously abridged if, for example, the status quo consisted of California denying an opportunity to marry to everyone of Asian descent or of the Roman Catholic faith?

And I'm still entirely unimpressed with the argument that a Ninth Circuit stay is good news for all ssm-supporters because "an emergency stay request could have brought the issue to [presumed swing-Justice Kennedy] without giving him time for adequate reflection and rumination on the constitutional issues." That amounts to saying "Our position is weak right now but it might get better later, or better if we have lots more time and opportunity to talk Justice Kennedy into it." It amounts to a prediction by ssm-by-decree supporters that they think Kennedy's first instincts will be against them, a concession that they're fighting an uphill battle with the very Justice whose vote they most need.

But it's not as if same-sex marriage is an issue that Anthony Kennedy's never had to think about. Do we think he didn't bother to read Justice Scalia's dissent in Lawrence v. Texas, which explicitly predicted — as a reason against employing the substantive due process argument upon which Justice Kennedy's majority opinion was then relying — that the majority opinion in Lawrence would be used (as District Judge Walker has now done) as a ground to impose same-sex marriage by judicial decree?

As I've said before, concerns about how the presently composed SCOTUS will come down on these issues would have been a very good reason for Perry not to have been filed in the first place, because (from the viewpoint of ssm-supporters in general) it's created the worst possible setting — invalidating seven million fresh California votes on the subject — to impose same-sex marriage by judicial decree. Saying that another way: It's hard to imagine a more dramatic display of the anti-democratic nature of judicial activism.

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UPDATE (Thu Aug 19 @ 12:45 a.m.): By email, Prof. Hasen points out that even to the extent that the motions panel did base their stay ruling on their views as to probability of success, he's still disinclined to read anything into the motions panel decision because the merits will be decided by three altogether different judges. He'd also made that point in his ACL blog post that I linked and quoted above, and I readily concede it. Three new random new judges won't be bound by any precedential effect or law-of-the-case or anything else from the motions panel's ruling this week; when the members of the merits panel first begin forming definitive opinions on the merits, they'll presumably be approaching those issues afresh, working from newer and more thorough briefing. Thus when it comes to predicting what the merits panel might do, this ruling by the August 2010 motions panel has value only as a spot survey of three random Ninth Circuit judges, and then only to the extent that they gave weight to "probability of success" as one of several competing criteria (that include maintenance of the status quo).

Still, the stay opponents couldn't wrangle even a dissent, maybe even a special concurrence, from a panel with two Clinton nominees? On a civil rights case that's under a national microscope? When the district court had already refused a stay? Would many people have predicted that result last week, if all they'd known were the issues, the district court's ruling, and the political party of the presidents who appointed these judges?

I agree these are weak tea leaves, and I am admittedly quibbling by continuing to attribute a particular meaning to them. But to whatever extent this interim ruling does mean anything, I think it doesn't bode well for those who're hoping the Ninth Circuit will affirm court-imposed same-sex marriage. If I were in Olsen's or Boies' shoes — and I also readily concede that no one's actually asked me to fill them, and their team appears to be prepared to struggle on without my assistance — I'd consider the ruling a small piece of bad news that's somewhat troubling even beyond its immediate impact on same-sex partners eager to marry in California.

In same-sex marriage appeal, Ninth Circuit surprises Beldar with both composition of panel and results

[UPDATE (Wed Aug 18 @ 9:20 p.m.): Most of my speculation in this post is based on an apparently mistaken premise that I shared with other pundits who were speculating about the Perry case — viz, that the granting of emergency relief, like a stay pending appeal, by a Ninth Circuit motions panel would result in the merits of the appeal then being directed to that same panel. See my new post, which expand on the comments in the last updates below regarding Prof. Rick Hasen's comments in the press. — Beldar]

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Along with many other legal pundits, I had predicted — not here, but on August 8 and again on August 13 in comments over on Patterico's blog — that the Ninth Circuit would refuse to stay U.S. District Judge Vaughn R. Walker's decision striking down California's "Proposition 8" state constitutional amendment that re-established the exclusivity of opposite-sex marriage there.

Today the Ninth Circuit proved my prediction wrong in a remarkable page-and-a-half order, the operative language of which amounts to less than a dozen sentences — but each of them is significant.

My prediction was not based on my view of what ruling would have been proper under the law — and for the record, let me promptly confirm that I think a stay is entirely appropriate, and that in due course Judge Walker's decision should be reversed and rendered by the appellate courts — but rather upon my admittedly cynical expectations based on my perception of the politics of the particular Ninth Circuit judges who I expected to be on the three-judge panel that would rule on the appellants' stay application: U.S. Circuit Judges Kim McLain Wardlaw, Raymond C. Fisher, and Marsha Siegel Berzon, all Clinton appointees who hail, respectively, from Pasadena, Pasadena, and San Francisco.

Instead, the three-judge panel that actually issued today's ruling comprised U.S. Circuit Judges Edward Leavy, Michael Daly Hawkins, and Sidney Runyon Thomas.

My friend and California/Ninth Circuit practitioner Patterico points out to me by email that these three judges comprise the Ninth Circuit's standing motions panel for August 2010, having been "[pre-]assigned [by the Ninth Circuit Clerk's office, under the administration of the Chief Judge, Alex Kozinski,] to consider ready substantive motions matters" which arise during that month. Every circuit maintains such a panel — emergency motions like this are sometimes purely procedural, sometimes somewhat substantive, but generally amount to "judicial scut-work" most of the time — and the membership of such panels typically rotates automatically, with different members serving every month. (For posterity, since the current page on the Ninth Circuit website listing members of the motions panel for August 2010 will change next month, here's a link to a .pdf capture of that page as of tonight.)

My prior understanding, however, was that the Ninth Circuit — like the Fifth, when I clerked for one of its judges way back in 1980-1981 — would automatically bypass the rotating motions panel when there was a subsequent appeal or emergency motion from a case that had already been heard by a prior Ninth Circuit panel, even if that was just a prior motions panel (as opposed to a panel that had heard a full appeal on the merits from a district court final judgment). Judges Wardlaw, Fisher, and Berzon — who, I assume, were the three members of an earlier motions panel — had heard and denied the earlier stay application last December in connection with Judge Walker's original ruling permitting the trial to be televised. So my assumption (shared by many other legal pundits) was that those same three judges would hear this motion too.

Some other facts that may or may not be, or become, significant:

• Judges Leavy and Hawkins are senior status judges. Senior status judges normally don't participate in the internal debate or voting on whether a panel decision should be reheard by the full circuit sitting en banc, which can sometimes affect the internal court dynamics of an appeal as it works it way through the circuit-court level and before it's considered by the SCOTUS.


• Judge Leavy was appointed by President Reagan, and Judges Hawkins and Thomas were Clinton appointees, but I don't know much more about them than that and the other very basic information in the Federal Judicial Center's biographical database.


• Although the Ninth Circuit is headquartered in San Francisco and appeals from the four Californa federal districts make up the majority of Ninth Circuit cases, there are other western states in the circuit, with circuit judges appointed from each; somewhat improbably, however, none of the three judges on this panel lives in California: Judge Leavy lives in Portland, Judge Hawkins in Phoenix, and Judge Thomas in Billings. Before I learned that they're on the August motions panel, I wondered whether perhaps Wardlaw, Fisher, and Berzon had been disqualified or had recused themselves based on their California citizenship. (FWIW, I don't think such recusal/disqualification is required.)

In addition to staying the effect of Judge Walker's decision, the panel sua sponte — that is, on "its own motion," without anyone connected to the case asking it to — set the case for an expedited appeal, on an accelerated briefing schedule shorter than the default deadlines established by the Federal Rules of Appellate Procedure that had already been applied to this appeal. The panel also announced that no exceptions or extensions are likely to be granted. (This same panel would hear such procedural motions.) And the panel also directed that the appellants "include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing," thereby ensuring that the standing issues will be fully briefed by both sides as part of the consideration of the merits of the appeal.

I'm still looking into this, and will quite possibly have updates to this post depending on what I find.

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UPDATE (Tue Aug 17 @ 12:25 a.m.): This is from the Court Structure and Procedures preface to the Ninth Circuit Rules, under section E(4) on "Court Procedures for Processing and Hearing of Cases":

The only exception to the rule of random assignment of cases to panels is that a case heard by the Court on a prior appeal may be set before the same panel upon a later appeal. If the panel that originally heard the matter does not specify its intent to retain jurisdiction over any further appeal, the parties may file a motion to have the case heard by the original panel. Matters on remand from the United States Supreme Court are referred to the panel that previously heard the matter.

This sort of rule is common in both state and federal court systems, and it's intended to promote judicial economy by directing particular cases to judges who may already be "up to speed" on them. It's not unknown for such rules to generate some gamesmanship by the litigants, however, and more rarely, even by judges or clerks' office personnel. Typically if there's any question about how or whether such a rule applies in a given case, the clerk turns for an answer to the chief judge. And the administrative power to make such procedural rulings is, as a practical matter, an important adjunct of a chief judge's power as "first among equals" on any given court.

What's currently before the Ninth Circuit does have a different Ninth Circuit docket number (No. 10-16696) from the proceedings on the trial televising ruling (No. 09-17241), so it's possible that someone in Clerk Molly C. Dwyer's office either never considered directing this stay motion to the earlier panel, or else thought about it and concluded, "Nope, this is not a 'later appeal' from the 'same matter' within the meaning of the rule." Or the Ninth Circuit Clerk's office may have a standing, but (perhaps) unwritten, rule that prior decisions by mere motions panels don't count unless it's for another procedural motion that's from the same stage of an appeal (e.g., also from after a final judgment), such that a prior motions panel ruling from an emergency interlocutory appeal just doesn't qualify for the re-assignment rule.

On the Ninth Circuit's helpful web page accumulating filings from this case, I don't see any separate motion by the respondents (that is, the ssm-proponents who won before Judge Walker) asking for their opponents' stay motion to be assigned back to the same panel that had heard the earlier motions in connection with televising the trial. That might turn out to have been a tactical blunder by Olsen and Boies and their allies, perhaps based on their assumption that the Clerk would make that re-assignment automatically.

As for whether this same motions panel will — by virtue of having ruled on the stay application and, sua sponte, on the briefing schedule — will now be assigned the appeal on the merits, I just don't know the answer to that question. Before today, I would have said "yes" with some confidence. But if the Wardlaw-Fisher-Siegel panel didn't hear the stay application, I'm not sure whether the Leavy-Hawkins-Thomas panel will hear the merits, especially given that two members of the latter are senior status judges.

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UPDATE (Tue Aug 17 @ 12:55 a.m.): There was a tip-off as to who the panel would be: On Friday, August 13, there was a short order from the current motions panel — Leavy-Hawkins-Thomas — granting the appellants' motion for leave to exceed the normal page limitations in connection with their stay application. But it's Docket No. 14 in the Ninth Circuit's docket. Even with instantaneous service by email, Olsen, Boies et al. probably did not have had that order in-hand when they prepared and filed their response (which has Docket No. 9 and was e-filed on that same date). I haven't read them yet, but a word-search of the .pdf files indicates that the word "panel" doesn't appear in either their response or the responses filed by their allies fighting the stay (the City & County of San Francisco and, despicably, the California Attorney General).

Others (besides me and Patterico) who had speculated that the Wardlaw-Fisher-Berzon panel would hear the appeal on the merits include Orin Kerr at the Volokh Conspiracy and bmaz at Empty Wheel/Firedoglake. Prof. Kerr added a parenthetical edit, perhaps presciently: "(edit: just to be clear, I mean the Ninth Circuit merits panel, not the motions panel that will hear the stay denial in the next few days)." But if the above-quoted provision of the Ninth Circuit rules didn't even get this stay motion back to the Wardlaw-Fisher-Berzon panel, then why would it get the decision on the merits back to them? And will it even get the case back to the Leavy-Hawkins-Thomas panel?

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UPDATE (Tue Aug 17 @ 1:35 a.m.): The Advocate (h/t AllahPundit at Hot Air) quotes representatives from the California AG's office (heh) and the legal teams seeking to overturn the ssm-amendment as saying they won't ask the SCOTUS to overturn the stay. Presumably that also means they won't seek panel or en banc reconsideration of the stay at the Ninth Circuit level either. As for how it's being spun:

"We are very cognizant of the fact that many people wanted to get married as soon as possible, and that's why we so strongly opposed the stay," plaintiffs' attorney Ted Boutrous, who argued the case alongside lead attorneys Ted Olson and David Boies, told The Advocate. "But at the same time, had the stay not been entered, it may have been harder to get such an expedited briefing schedule in the case."

Another legal source, who declined to be named, said that had the ninth circuit ruled against a stay, an appeal by Prop. 8 supporters to the Supreme Court could have been harmful to Olson and Boies's highly strategical [sic] case. "When you have an important constitutional issue, as is the case here, you don’t want the first time it comes before the justices to be a high-pressure, high-speed situation," the source said. "You’d rather have it come on a full record and on a schedule where the court has time to consider the issues carefully.

"You don’t want this hitting their schedule when it's summer and they're on vacation," the source added.

The spin strikes me as spectacularly weak sauce: Yeah, if the stay had been denied, they might not have gotten an expedited briefing and argument schedule, but in the meantime, thousands of gays would have been getting married. Whether those marriages will later — after SCOTUS review — still be deemed valid can't possibly depend on whether they were entered into solely on the strength of Judge Walker's unstayed ruling or, instead, on the strength of a potential later affirmance of his ruling by the Ninth Circuit on the merits. Boutrous' suggestion that the stay somehow benefits gays wanting to get married in California is simply ridiculous, a particularly unpersuasive example of "well, we really sort of wanted to lose that motion, regardless of what our court filings said." Moreover, even in a "highly strategical case" (which I suppose is one in which you have to be extra careful not to misunderestimate your opponent), if you think that an appellate judge's first instinct would be to go with your side, then you quite possibly might prefer to present the issues to him for the first time in an emergency setting. And the "summer vacation" argument is childish. Whoever made those arguments, even for purposes of spin in the press, was very wise not to agree to be named.

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UPDATE (Tue Aug 17 @ 2:15 a.m.): Musing on the significance of the order's concluding sentence and case citation regarding standing, Allahpundit writes (links his):

As of an hour ago, the first weddings were set to start at 5 p.m. on Wednesday; now they won’t happen until December at the earliest, with no explanation given of how Walker erred. Presumably they figured there’s enough of a chance that Prop 8 supporters will win on appeal that they didn’t want to let marriages happen now, only to have to void them later. That’s the good news for gay-marriage opponents; the bad news is that two of the three judges here are Clinton appointees and they’re clearly quite interested in Walker’s argument that Prop 8 supporters lack standing to appeal his decision. Merely postponing the inevitable here?

But if we're debating which tea leaves are strongest and most reliable as predictors, I have a contrary take. The standing issue had already been raised and briefed (albeit in a comparative hurry) by both sides in the stay application and responses. Every appellant has the obligation to demonstrate to the appellate court that it has federal subject-matter jurisdiction and that the appeal meets the other "case or controversy" jurisprudential requirements like standing, ripeness, non-mootness, etc., so there is absolutely no chance that the appellants would have ignored those issues in this case. However, precisely because it's so basic, if even one judge on the panel requested a sentence like this one — even if he simply wanted that briefing in order to confirm his or her preliminary view that there is indeed standing — then whoever drafted the order for the panel certainly would have included it. The sentence requesting this briefing is not the sort of thing anyone would object to including in the order, in other words, and I really don't think it necessarily implies anything important as a result.

Far more importantly: Probability of success on the merits is explicitly made part of the standard of review for stay applications like this one. If you lack standing, your probability of success is zero. Probability of success on the merits is not determinative by itself, but it's very important — easily the single most important factor in most situations. Implicit in the unanimous ruling granting the stay, therefore, is that at least two judges are satisfied — at least for the present preliminary purposes, that being deciding an emergency stay motion — that there is adequate standing. They (or others) might come to a contrary decision later, but that's the decision of at least two of these judges, at least for today. If, by contrast, even two members of this motions panel really seriously thought that the opponents had already made a persuasive case that there's no standing, that should have resulted in the stay being denied. (If only one judge thought there's a serious doubt about standing, he/she might well have decided not to write that up now as a dissent to the stay ruling — such dissents are extremely rare at the circuit court level — but instead to kick that overt discussion on down the road to the panel proceedings on the merits, with the possibility that full briefing may persuade at least one of his/her panel-mates to agree there's no standing, or perhaps with the possibility that it will be an altogether new panel, with three entirely different members, who may hear the appeal on the merits.)

Also, Prof. William A. Jacobson at Le-gal In-sur-rec-tion speculates that the November election results and January office-taking of a new California governor and attorney general might affect the standing issue in a way that will help Prop 8 supporters. He might be right, but I haven't done enough to refresh my recollection and update my knowledge on standing to weigh in on that. When a governor or AG may decide to stop trying to defend the validity (under the federal constitution) of a state statute or state constitutional provision is an interesting mix of constitutional law, civics, and even legal ethics. I didn't disapprove, for example, of the Texas solicitor general's and attorney general's decision not to seek certiorari from the Fifth Circuit ruling striking down Texas' "five-dildo" rule, even though the Fifth Circuit had explicitly created a split between the circuits; but that was after full briefing and a decision on the merits by a Fifth Circuit panel, and after a motion for rehearing en banc had been denied. Morever, millions of Texans had not just voted to confirm the five-dildo rule!

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UPDATE (Tue Aug 17 @ 6:15 a.m.): From the NYT's article on the decision (boldface mine):

Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles, said the ruling "takes the heat off the Supreme Court," which was likely to have been asked for an emergency stay by those who support Proposition 8 if the Ninth Circuit had not acted.

But Mr. Hasen added that the stay’s putting a halt to any potential marriages did not mean that the Ninth Circuit would necessarily rule in favor of Proposition 8.

"I don’t think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits," he said. "It won’t be the same panel deciding the merits as decided the stay motion."

Mr. Hasen added he believed that even supporters of same-sex marriage could see the logic of extending a stay.

I hold Prof. Hasen in high regard, and having clerked for a judge on the Ninth Circuit, he has vastly more experience with that court than I have. (I've only appeared as counsel there once, and that was long ago.) I agree with his first observation, regarding Monday's panel ruling "tak[ing] the heat off the Supreme Court," although the SCOTUS is pretty much used to such heat and it naturally comes with their institutional responsibilities. I wish I knew the exact basis for his assertion that it "won't be the same panel," but I certainly can't dispute that conclusion. And I don't know what to make of his last comment: I think there are excellent reasons for proponents of same-sex marriage to have concluded that as a matter of long-term strategy, it was a mistake to even bring this case, in this fashion, from California at this particular time, in the immediate aftermath of the passage of Prop 8 and with the current composition of the SCOTUS. But (unless the NYT quoted Prof. Hasen out of context), why pretend that this is not a set-back, even a temporary one, for ssm-supporters?

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UPDATE (Tue Aug 17 @ 7:10 a.m.): Prof. Hasen's quoted at more length in the LAT (bracketed portion theirs):

Loyola Law School professor Richard Hasen said Monday's order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If the panel had refused to place a hold on Walker's ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."

Hasen said the hold "takes the heat" off Kennedy and takes the case "off the front burner for a while."

That makes more sense to me, although I'm not entirely persuaded. The change that ssm-by-judicial-decree supporters would need in the interim is not just another state or two moving into the (so-far quite short) ssm-permitted column, but instead in the occupancy of one of the SCOTUS seats held by Chief Justice Roberts and Justices Scalia, Thomas, Alito, and (possibly) Kennedy.

The LAT leaves unremarked — but I cannot — the cynicism that underlies all this punditry. I'm guilty of it too, but still: How and when, exactly, would the federal Constitution change between now and, say, the five or six months from now during which the Ninth Circuit's expedited proceedings will play out?

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UPDATE (Wed Aug 18 @ 9:20 p.m.): As I warned in my update at the top of this post, anyone reading it should also see my newer post for more on Prof. Hasen's statements about an entirely new panel hearing the merits, which I increasingly believe is likely to be the correct prediction.

The text of Beldar's email today to Michael Gerson

You wrote, "No child born in America can be judged unworthy by John Boehner, because each is his equal."

But no child born anywhere in the world has any better or worse basis to be "judged unworthy," either. Shall we just have done with it, then, and extend American citizenship to everyone born anywhere? Because that is where your logic inescapably runs.

A child didn't choose, or deserve, or not deserve, his parents either. His or her "inherent value" doesn't count for the selection of parents, either, but parents generally end up having an even bigger effect on us all than our citizenship. Sometimes life is unfair.

(Slightly edited for clarity.) If Mr. Gerson responds via email, then I'll bestir myself again to post about it.

Obama, Sunstein, and "libertarian paternalism"

From a very scary hagiography in the New York Times Magazine:

Libertarian paternalists would have school cafeterias put the fruit before the fried chicken, because students are more likely to grab the first food they see. They support a change in Illinois law that asks drivers renewing their licenses to choose whether they want to be organ donors. The simple act of having to choose meant that more people signed up. Ideas like these, taking human idiosyncrasies into account, might revive an old technocratic hope: that society could be understood so perfectly that it might be improved. The elaboration of behavioral economics, which seeks to uncover the ways in which people are predictably irrational, “is the most exciting intellectual development of my lifetime,” Sunstein told me.

The title of the article is "Cass Sunstein Wants to Nudge Us." The word "nudge" in the title is an allusion to the title of a recent book that Sustein co-wrote. But you have to understand: by "nudge," Sunstein means "turning your life into something run the way he and his ilk think it should be run" — nothing less than that.

It is the nanny state. It is the statist impossible utopia that Barack Obama and folks like Sunstein have in their pointy heads as the America they want to build, as they systematically dismantle everything in the America that exists.

"Libertarian paternalism" is an oxymoron. What Sunstein and Obama are doing is just arrogant paternalism, period. Instead of anything remotely resembling real libertarianism, Sunstein is promoting the notion of government regulation so subtle, so perceptive, so ... well, just so damned clever that it won't really seem like much of a bother to do what Sunstein and Obama and the government want you to do. You'll think it's your own idea!

'Cause they're smarter than you and me, see? Get it? If you don't, then just keep clinging to your guns or religion or antipathy toward people who aren't like you or anti-immigrant sentiment or anti-trade sentiment. Something. You moron, why do you think you're even remotely qualified to run your own life? Sheesh.

[/sarcasm off] Seriously, folks, this article will tell you everything you need to know about why Cass Sunstein is my worst dread as a potential Obama SCOTUS nominee. I am so, so very glad that he's a pasty white guy!

Michael Douglas takes courageous stand: self-confessed convicted rapist Polanski really is — gasp! — a criminal!

Per an AP story of yesterday's date published in the Houston Chronicle (among other places):

Michael Douglas says he will not sign a petition in support of director Roman Polanski, who is under house arrest in Switzerland in connection with a 33-year-old sex scandal.

Douglas, whose "Wall Street: Money Never Sleeps" is screening at the Cannes Film Festival, told French radio it would be "unfair" for him to sign a petition for "somebody who did break the law."

Other filmmakers at the festival, including French New Wave director Jean-Luc Godard and actor-director Mathieu Amalric, have signed the petition, which is posted on a Web site overseen by renowned French philosopher Bernard-Henri Levy.

Polanski was taken into custody in September and is currently under house arrest in Geneva.

The interview aired hours before British actress Charlotte Lewis claimed at a news conference in Los Angeles that she was sexually abused by Polanski in 1982 when she was 16.

Polanski pleaded guilty in 1978 to unlawful sexual intercourse with a 13-year-old girl. But after a judge said he would renege on the plea bargain, Polanski fled to his native France. He has been a fugitive since then.

In the interview with RTL radio broadcast on Friday, Douglas said Polanski had been given "some bad advice" when the scandal broke.

Oh, what a beacon of moral clarity is Michael Douglas! How brave he is, to stand against the floods of Hollywood and wanna-be Hollywood glitteratti who've flocked to Polanski's defense.

Douglas has displayed — just barely — the minimal human decency not to lionize and make excuses for a confessed, convicted child rapist, one whom we now know to in fact have been a serial child rapist, and one whom we know is both unrepentant and intent on mocking America, its people, and the rule of law. It's terribly sad that Douglas' weak showing is about as much moral integrity as Hollywood is capable of displaying.

To influence SCOTUS, why would you turn to a law school dean?

I commend to your attention, and associate myself with the views expressed in, this post by Wisconsin Law Prof. Ann Althouse. Key bit (emphasis hers):

It seems that Kagan has been very good at influencing professors and that Obama read that (and his own direct contact with her) to mean that she'll be good at influencing Supreme Court Justices. That may be a poor inference. I think a law school dean is engaged in more of a social enterprise in bringing groups of people together. But the Justices — as the oral argument shows — deal in much more technical legal arguments. They may bend liberal or conservative, but the arguments need to be there.

But read the whole thing. You won't want to miss the info about Solicitor General Kagan's handful of appearances before the SCOTUS as an advocate.

Beldar's take on the current SCOTUS buzz

Another [senior administration official] said that there have been several meetings but that the White House has not much shared its point of view. Still, one outside source said the president's preference is less apparent than at the same point a year ago, just before he nominated Sotomayor. "Last time around, you knew Sotomayor was going to be the candidate," the person said. "She was such a home run on so many different counts.... I would say this one is much, much, much more difficult for them."

So reports the WaPo, in what I think was probably an unintentional episode of damning by faint praise.

The Hon. David Souter, retired Associate Justice, was reliably a Lefty vote, but he generally lacked any significant influence beyond his single vote. Justice Sotomayor was an almost perfect replacement for him — and by "perfect replacement" I mean "perfect match." She was picked on the sole basis of identity politics, and I suspect all that "wise Latina" superiority stuff has been politely ignored, but has not been quite forgotten, by her new peers.

Indeed, I have a comparatively higher opinion of each of the people supposedly on Obama's current short list than I do of Justice Sotomayor, and I think any of them would have a better shot than Justice Sotomayor at satisfying what ought to be a liberal Democratic president's strategic goals in making a SCOTUS appointment. That is to say, I think Obama essentially wasted his pick on Justice Sotomayor. And I think that any of the people now supposedly under consideration would have at least a chance of becoming a Justice with more influence than Souter wielded or Sotomayor is likely to wield. I doubt any of them would ever become as influential as was, say, Justice Brennan or even Justice Douglas, but they might manage, if they're fortunate, to mostly fill Justice Stevens' liberal shoes as someone who could definitely hold his or her own.

Of the names being floated, I think Judge Diane Wood of the Seventh Circuit is the most likely to be able to influence other votes, especially that of Justice Kennedy — albeit in directions I'd mostly rather not see those votes go. (I can't deny that part of me would also prefer to see Judge Wood get the pick because she and I both took the UT-Austin/Plan II to Texas Law School career path, but that's my own flawed version of "identity politics" talking.)

Both as a political conservative and an opponent of judicial activism, I'd be least concerned about Solicitor General (and former Harvard Law Dean) Elena Kagan — which is another way of saying I don't think she'd end up being very much more influential than Sotomayor and that she'd probably be less influential than almost any "average" liberal circuit judge. (That includes either Merrick Garland or Sidney Thomas, the two white male circuit judges whom Obama has given what I firmly believe are only "courtesy" interviews. He might pick someone white, but he won't pick someone white and male.) So I'm mostly rooting for Obama to pick Kagan.

For what it's worth, my worst-case scenario is still another Harvard product, Cass Sunstein. I actually think the sort of schmoozing, fund-raising, and deal-brokering that Kagan is supposed to have been good at when she was the dean at Harvard isn't likely to be nearly as effective at the SCOTUS. Sunstein is a genuine dynamo of ideas — many of them absolutely terrible — and I think his stature as an academic superstar is far more likely to impress Justice Kennedy than Kagan's status as a mere dean, which (after all) is an administrative job.

Were I a senator, I would probably vote against anyone Barack Obama nominated; he in particular, by his own votes against Dubya's Roberts and Alito SCOTUS nominations, forfeited the legitimacy from which he could have argued that a president ought to be able to get confirmation votes for well-qualified nominees regardless of partisan politics. But I wouldn't filibuster any of the four currently supposed to be the front-runners. I don't believe filibusters are appropriate for judicial nominations, and I'm not going to change that principled position (which I believe to be firmly rooted in the Constitution) to retaliate against Dems who've abused the filibuster during the Bush-43 and Bush-41 administrations.

I would try to make best possible use of her or his confirmation hearings to expose liberal positions taken by anyone who Obama might pick, but frankly, any Democratic nominee is going to follow the same playbook Sotomayor did — that is, dissemble about his/her own real views and pretend instead to be John Roberts.

All SCOTUS nominations are important, but comparatively, this one is not nearly as important as will be the nomination for Justice Scalia's successor. I'm therefore going to divert into a more productive use — specifically, good wishes for Justice Scalia's continued health and vigor and clear writing — some of the mental energy that I might otherwise expend worrying about this particular pick.

Headlines that seem to explain a lot

From the dead-trees version of today's Houston Chronicle, from page B5 on the continuation of an article from page B1:

It turns out that the lawyer in question wasn't speaking about himself, and that "Bustamante" is actually the client. I suppose I should have known that no lawyer would have been that honest about himself/herself. No word yet, though, on the mental acuity of the Chronicle editor who wrote this headline.

Is it legal to stamp "TAX CHEAT!" over Tim Geithner's signature on $1 bills?

Instapundit links a website named taxcheatstamps.com that includes a YouTube video of a Fox News segment about a fellow who was protesting TreasSec Tim Geithner's confirmation by stamping, in red ink, the words "TAX CHEAT!" over Geithner's signature on $1 bills.

The person being interviewed in the video is, I gather, named Michael Williams — and I assume he also runs the website and sells the stamps. He writes at the top of his webpage: "I'm being audited because this website pissed someone off," which almost counts as a warning and disclosure to consumers, but in the video clip, he gives his assurance that to the "best of [his] knowledge in [his] research," using such stamps for such a purpose is "not illegal," and that "it's only illegal to deface currency if you prevent it from being circulated or if you're trying to do it for the purposes of fraud." On an associated website with some other snarky protest stamps for sale, he writes that it's "probably not" illegal to deface currency with his stamps, but allows that "that's part of the risk of civil disobedience[,] right?" and warns customers to "[d]o it at your own risk." As support for his "probably not illegal" claim, he in turn links this page, which quotes the relevant statute but is remarkably light on legal reasoning or analysis. Overall, then, despite some mild reassurances, this is pretty much the opposite of an iron-clad guarantee that you won't be prosecuted and a promise to pay your legal fees if you are.

By linking Mr. Williams' site, I'm pretty sure Prof. Reynolds wasn't giving his own legal opinion to back up Mr. Williams' opinions, and I'm not sure what Mr. Williams' own legal qualifications may be. Were I asked for my opinion, however, I would warn that the legality of this practice is far from well-established or clear. I would warn that in the current political climate, there instead may be a legitimate, nontrivial risk that using these stamps on circulating American currency could result in prosecution and even conviction.

The relevant statute is 18 U.S.C. § 333, which provides:

Whoever mutilates, cuts, defaces, disfigures, or perforates, or unites or cements together, or does any other thing to any bank bill, draft, note, or other evidence of debt issued by any national banking association, or Federal Reserve bank, or the Federal Reserve System, with intent to render such bank bill, draft, note, or other evidence of debt unfit to be reissued, shall be fined under this title or imprisoned not more than six months, or both.

There's only one reported federal decision — Keese v. Zerbst, 88 F.2d 795 (10th Cir.), cert. denied, 301 U.S. 698 (1937) — which deals with this statute or its predecessors, and it's not really helpful since the court concluded that the defendant had been correctly indicted, tried, and convicted under the counterfeiting statute (and its more severe penalty), rather under this one. So there are no reported cases in which you can take comfort before starting your protest stamping.

Just looking at the text of the statute, I don't think there is any doubt that using these stamps — even if the read ink leaves Secretary Geithner's signature still legible — would qualify as "defac[ing or] disfigur[ing]" the bills. But I think Mr. Williams is also probably right, and that — properly construed to be given its least expansive interpretation — the "with intent to render [the instrument] unfit to be reissued" clause must be read to modify all of the previous language. Therefore the prosecution would have to prove that intent beyond a reasonable doubt as an element of the crime.

Any defendant would surely argue that instead, his intent was to make a political statement and protest, and that his action constituted symbolic speech protected by the First Amendment. At least superficially, those are attractive positions.

But what if the government adduces evidence — from, say, the responsible officials at the U.S. Mint — which unequivocally and persuasively establishes that the government considers currency that has been so stamped to have been rendered "unfit to be reissued" when it's passed through government hands? What if the rationale is politically neutral, and the government has a plausible and logical explanation for why it must destroy such bills, an explanation which doesn't depend on defending the bona fides of Secretary Geithner?

If so, the government would have its proof of the required consequence, and thereafter the government would only need to also show that the defendant — because he knew of that consequence and proceeded anyway — must have intended that the currency become "unfit to be reissued." The statute doesn't require, after all, that causing the currency to become "unfit to be reissued" be the sole intention behind the act. A prosecutor could persuasively argue, and a jury could well agree, that the defendant had both a legitimate intention to protest, and an illegal intention to cause the currency to be withdrawn from circulation.

Indeed, with a good processor, the wrong jury, and just a few bad breaks, the defendant's admitted desire to protest can be re-characterized as a desire to cause the government the expense and inconvenience (as well as perhaps embarrassment). At a minimum, the defendant — who'd probably have to take the stand in order to dispute the prosecutors' inferential arguments about his intent — would have a dangerous tightrope to walk on cross-examination.

As for the First Amendment defense, this might be considered "conduct" rather than "speech," the way a minority of the current SCOTUS considers flag-burning to be conduct (and hence something that may be regulated and prohibited) rather than speech.

Bottom line: There is more risk here than I would recommend that any client willingly undertake. There are plenty of other ways to protest that don't require you to essentially concede guilt on any elements of a federal crime. Some of those means of protest might actually be persuasive, which this isn't actually likely to be. So if you're inclined to protest, pick one of them instead.

Obama only pretends to re-write every state's domestic laws to benefit gays & lesbians

As I write this, the online version of today's Washington Post has the following breathtaking headline and subhead:

Same-sex partners given hospital visitation rights:
President Obama mandates hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney.

In the accompanying article, we read:

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.

The president directed the Department of Health and Human Services to prohibit discrimination in hospital visitation in a memo that was e-mailed to reporters Thursday night while he was at a fundraiser in Miami.

Administration officials and gay activists, who have been quietly working together on the issue, said the new rule will affect any hospital that receives Medicare or Medicaid funding, a move that covers the vast majority of the nation's health-care institutions. Obama's order will start a rule-making process at HHS that could take several months, officials said....

Obama's mandate is the latest attempt by his administration to advance the agenda of a constituency that strongly supported his presidential campaign.

At first glance, this appears to be lawmaking by executive order. Of executive orders, Clinton aide Paul Begala gave us this memorable quote in 1998: "Stroke of the pen, law of the land. Kinda cool." The reason the quote is memorable is its casual assumption — in two different senses of that word — of near-imperial power, power that's essentially independent of either chamber of Congress and, indeed, of the American people. 

Those with even a passing familiarity with the history of the civil rights movement will recall that Harry Truman's 1948 executive order desegregating the U.S. military preceded any significant congressional action on race relations by a decade or more. I expect we'll see today's announcement compared to that one.

But when one turns to the Obama White House's own website, and in particular to its "Presidential Actions" page, one finds that although there are other "executive orders" listed there which pertain to other matters, the new policy regarding gay rights and hospitals is labeled merely a "presidential memorandum," not an executive order. And when we turn to the memorandum itself, we find something considerably less impressive than that which the WaPo — and, dare I say? — the Administration's spinmeisters have jointly tried to project.

First, the memo directs the Secretary of Health and Human Services to

[i]nitiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.

Technically, then, this isn't a command, but a condition for funding: Were a hospital to decide to forgo Medicare and Medicaid funding, it could, if it wished, maintain visitation policies permitting only traditional visitor classifications that might exclude, for example, unmarried romantic partners of either sex or any sexual orientation. Most hospitals do accept that funding, and so will have to comply with the rules HHS attaches to that funding. But even so, this policy change doesn't protect only gays and lesbians, but rather empowers all hospital patients, whether gay or straight, at all federally funded hospitals.

Similarly, the second command in the memo directs HHS to

[e]nsure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care.

Again, this is a condition of funding, not a direct command. And again, it's directed not only to gays and lesbians, but to all patients, gay or straight, who've signed "advance directives" that give "patients' representatives" — gay or straight, family member or friend — the power to make medical decisions on their behalves. So what does it do, exactly? It says that HHS should make sure hospitals who receive federal funds comply with already existing federal regulations that respect state laws already on the books — laws that extend patient rights without reference to whether they or anyone else involved is gay or straight. This is supposed to qualify as a momentous step forward for gay rights?

The memo's third and final command is the only one specifically applicable to the gays and lesbians who are trumpeted as the beneficiaries of The One's actions — an entirely toothless requirement that the Secretary "[p]rovide additional recommendations to [Obama], within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families." Obama might as well have written: "Between now and the November elections, find me some other excuse to claim I've done something for gay rights."

Who can act on your behalf is, in general, not a question of federal law — not even the traditional kind of federal law where each chamber of Congress passes identical bills and the president then signed them. Instead, this is traditionally a matter of state law, an intersection of agency law and domestic/family law. That's why the (entirely laudatory) trend toward enforceable durable powers of attorney and health-care directives has come from the state legislatures, most of them enacting model legislation, but some of them experimenting with tweaks, in our "national laboratory" of continuing policy-making. In our system of federalism, writing or re-writing these kinds of laws is simply not part of the POTUS' job description. (Compare and contrast Truman's executive order on military desegregation, given to organizations over which he is constitutionally made commander in chief.) 

Indeed, doing what the WaPo's sub-headline suggests — simply "mandat[ing that] hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney" — would, in my humble opinion, be unconstitutional if attempted by executive order. It would be quite possibly beyond the combined constitutional power of Congress and president. But when we have a president who wants to take credit for causing the seas to recede, we ought not be surprised to see him claim to have similarly exerted his lordly powers over some bigoted local hospital administrators.

Lest you have any doubt that this is all smoke and mirrors — a manufactured event cynically designed by the Obama White House as a sop to those who are otherwise growing unsatisfied with a perceived lack of action on "gay rights issues" by The One — read the penultimate paragraph of the memorandum:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

This paragraph, friends and neighbors, is the equivalent of Emily Litella's closing lines to Chevy Chase in the old SNL "Weekend Update" skits: "Never mind."

And thus, in the giant Venn diagram of American politics, do two sets become ever more nearly exactly congruent: Those who support Obama, and those whom he's successfully duped.

I'm not against this very modest and mostly illusory policy tweak in favor of patient empowerment. I'm certainly not distressed that it benefits gay patients as well as straight ones. But I'm against charlatans. And Obama is one.

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

UPDATE (Fri Apr 16 @ 10am): Regarding the specific impetus for this action, the WaPo article reports:

Officials said Obama had been moved by the story of a lesbian couple in Florida, Janice Langbehn and Lisa Pond, who were kept apart when Pond collapsed of a cerebral aneurysm in February 2007, dying hours later at a hospital without her partner and children by her side.

Obama called Langbehn on Thursday evening from Air Force One as he flew to Miami, White House officials said. In an interview, Langbehn praised the president for his actions.

"I kept saying it's not a gay right to hold someone's hand when they die, its a human right," she said, noting that she and Pond had been partners for almost 18 years. "Now to have the president call up and say he agrees with me, it's pretty amazing, and very humbling."

But as reported by the New York Times in its May 2009 article about Ms. Langbehn, the Miami hospital in question denied that the grounds on which it prevented Ms. Langbehn access were that she was insufficiently related to the late Ms. Pond. Rather, her attempts to join Ms. Pond were at least initially frustrated on the basis that no visitors should be permitted in the trauma emergency room where hospital personnel were trying to administer life-saving procedures upon Ms. Pond. Later, when Ms. Pond was moved to intensive care, Ms. Pond's adopted children were also prevented from visiting — not because they had been adopted by a lesbian, but because they were 14 or under. After it received a copy of the medical power of attorney authorizing Ms. Langbehn to receive information and made decisions on behalf of Ms. Pond, the hospital did consult with Ms. Langbehn regarding Ms. Pond's medical options, including the placement of a brain monitor and possible surgery; Ms. Langbehn did not allege that she would have made any different decisions had there been any more thorough consultation. The only indication of any specifically anti-gay bias appears to have been a stray comment by a social-worker to the effect that Florida was an "anti-gay state." In a supposedly similar case from Washington State, Sharon Reed was restricted in visiting her dying lesbian partner, Jo Ann Ritchie, on grounds that Ms. Reed's particular actions were interfering with a nurse's provision of medical care — not on grounds that Ms. Reed was a gay partner (instead of a straight spouse). Nothing in yesterday's memo requires, either directly or (through federal funding approval) indirectly, that hospitals permit unlimited visitation everywhere and at all times even to traditional opposite-sex spouses; if "immediate family members" are restricted, so too may be gay partners. And whether the visitation restrictions placed upon either Ms. Langbehn or Ms. Reed were or were not reasonable as a matter of medical judgment in their particular circumstances, nothing in yesterday's memo would have changed either of those results.

I don't doubt that there have been gay partners who've been discriminated against by hospitals against on the basis of their being gay. There are indeed anti-gay bigots, and some of them work in hospitals, and no doubt some of them have made arbitrary and unreasonable decisions regarding visitation rights based on their animus against gays. But more often, hospitals make their equally arbitrary and unreasonable decisions for other reasons having nothing to do with anyone's sexual orientation, simply because they're imperfect and fallible human institutions. And there are surely a vanishingly small number of hospitals with formal policies requiring, or even permitting, the denial of visitation rights to a gay partner when a straight spouse's visitation would be permitted. I very much doubt that yesterday's presidential memorandum, or the HHS rule-making process it directs, will end up changing much of anything at a practical level.

Press and public mostly still misunderstand issues in Keller judicial complaint

Regarding the Texas State Commission on Judicial Conduct's handling of the complaint made against Presiding Judge Sharon Keller in connection with the Michael Richard execution in 2007, Peggy Fikac of the Houston Chronicle's Austin bureau reported today on both sides' filing of formal objections to the findings of the special master who heard the evidence on the complaint, State District Judge David A. Berchelmann. Judge Berchelmann's report excoriated Richard's defense team but found that no formal sanctions should be imposed upon Judge Keller — the bottom-line result that the complaining team is still protesting to the full Commission. However, the findings also contained some language critical of Judge Keller, to which her legal team is objecting in turn.

As with so much of the previous reporting on this matter, Ms. Fikac's article is not exactly wrong, but neither is it quite right. Both the state and national press have done a completely inadequate job of grasping and explaining what the relevant issues actually were. Instead, they've been repeating a skewed spin on the case that's most damning to Judge Keller, but that's also quite misleading because it's based on the perpetuation of a mistake made by the defense team.

Short titles are hard for me. Thus, I first blogged about this case back on October 4, 2007, in a post entitled 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? I followed that up with: More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution. In those posts, I speculated that this entire dispute arose from a mistaken assumption on the part of someone on the Richard defense team about what they were actually trying to do. The trial evidence ended up verifying my hunches pretty closely, but the case is still widely misunderstood on a fundamental basis. And ironically, the misunderstanding results in both Judge Keller and the Richard defense team coming off worse than either deserves!

Here's what I posted today as a comment to Ms. Fikac's article in the Chronicle:

I have not yet read a single comment, pro or con, from anyone who understands what this case was about.

And of course, you can't tell that from the article, either, since the press can't seem to grasp what happened.

Michael Richard's defense team — acting through a paralegal -- asked the wrong question altogether: Will you keep the courthouse open late?

There was never any reason to keep the courthouse open late, or even just the clerk's office open late. What the defense team needed to be doing — what its actual lawyers knew, but hadn't instructed their paralegal about — was arranging for the duty judge to accept an after-hours filing and hearing of an emergency matter. The applicable rule of Texas law permits these judges to do that — and it doesn't matter whether it's in a public building that's "open" or on the 50 yard line of Memorial Stadium.

The press — going along with Richard's defense team — wants to make out as though Judge Keller was asked, "Will you agree to rule on this after closing time?" Well, that wasn't at all what she was asked. To the question she was asked, she gave the correct answer: "We close at 5."

You may think — and the special master apparently thought — that she should have gone further and figured out WHY the paralegal was asking to "keep the courthouse open." Maybe you think she should have then volunteered some advice and suggested the RIGHT question. But consider this: Do you want Texas judges to get into the business of giving corrective legal advice every time they see a lawyer doing something stupid? In fact, the canons of judicial ethics prohibit that, and for very good reasons.

There's no suggestion that Michael Richard died any less painlessly than every other inmate executed in Texas for the last several years. The U.S. Supreme Court case that was the basis for Richard's stay motion ended up AFFIRMING the constitutionality of lethal injection protocols. The judicial system had spoken: Michael Richard was to die for his capital crime, and to die without further delay; he was deprived of an unjustified windfall of a few more months at most. I count that as not a big deal in the greater scheme of things.

Finally: Go read the special master's actual report: http://www.scjc.state.tx.us/pdf/skeller/MastersFindings.pdf ... His synthesis of the facts is quite good.

Here's a link to all of the filings connected to the complaint.

And finally, here's a link to DRJ's guest post at Patterico's when Judge Berchelmann's findings first came out last month. I left quite a few comments to that post, and they track my initial and considered reactions after reading the findings.