BeldarBlog

In 2011, Obama freed NSA from restraints on domestic spying that Dubya requested in 2008

You will search this WaPo story, entitled "Obama administration had restrictions on NSA reversed in 2011," without success for any mention of the Forty-Third President of the United States of America, even though his administration did not depart the White House until January 20, 2009. And yet:

The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.

In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinion by U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.

I think my post's headline above ought to have been the Washington Post's headline too — but surely somewhere in this report, they ought to have at least acknowledged the contrasting positions of the only two post-9/11 administrations.

Reactions upon reading today's court ruling against Apple in the ebook price-fixing conspiracy case

I ought to have simply done this as a blog post to begin with, but:

When I started reading U.S. District Judge Denise Cote's written opinion in United States v. Apple Inc. this evening, I originally only intended to post a link to the opinion, with a very short comment, on Facebook, mostly for a few of my legally-inclined friends. But then I started leaving comments on my FB post, and it turned into a sort of "live-blogging" as I worked through the opinion.

Eventually I decided I ought to re-post it all here for a broader audience, with apologies for the disjointed format:

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Apple lost in court in New York today on the ebook antitrust case brought jointly by the Justice Department and several states (including Texas). U.S. District Judge Denise Cote's opinion is 160 pages (double-spaced), so it will take me a while to read it. But from the summary of findings (beginning on page 9 of the .pdf file), it looks like a major defeat for Apple. This paragraph (from page 11) seems key in my initial skim:

Apple and the Publisher Defendants shared one overarching interest — that there be no price competition at the retail level. Apple did not want to compete with Amazon (or any other e-book retailer) on price; and the Publisher Defendants wanted to end Amazon’s $9.99 pricing and increase significantly the prevailing price point for e-books. With a full appreciation of each other’s interests, Apple and the Publisher Defendants agreed to work together to eliminate retail price competition in the e-book market and raise the price of e-books above $9.99."

Here's a link if you're interested:

http://www.justice.gov/atr/cases/f299200/299275.pdf

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I hadn't realized that 38 different states had joined in this litigation, but I'm pleased to see that the Texas and Connecticut attorneys general were "liason counsel for the plaintiff states" (i.e., carried the ball and probably did most of the work for all the other state plaintiffs).

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The financial impact on Apple is uncertain, but treble damages loom: "The Plaintiffs have shown that Apple conspired to raise the retail price of e-books and that they are entitled to injunctive relief. A trial on damages will follow." And at that trial the question won't be whether Apple has to pay — today's ruling effectively decides that against Apple — but just how much, and to whom.

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No jury was involved in this, by the way. By consent of all parties, there was a bench trial in which Judge Cote served as factfinder in lieu of a jury.

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CEO Les Moonves of CBS (which owns Simon & Schuster, one of the defendants who settled before trial) is pegged as a major conspirator. I remember him from Rathergate.

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In footnote 38 on page 71, Judge Cote labels Apple Sr VP Eddy Cue's trial testimony as not being "credible" — which is the polite way to say she thinks Cue was lying under oath on at least some points. The factual recital is just brutal. Apple comes across as the proverbial 800 pound gorilla who bullied not only the consuming public and Amazon (which was fighting to keep ebook prices low), but Apple's fellow conspirators, five of the six big publishing companies. Appellate courts are particularly reluctant to overturn credibility determinations by the factfinder, whether that's been a judge or a jury. Apple's going to have a hard time digging its way out of the hole it's dug for itself.

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From pp. 85-86 of the .pdf file:

On January 27, Jobs launched the iPad. As part of a beautifully orchestrated presentation, he also introduced the iPad’s e-reader capability and the iBookstore. He proudly displayed the names and logos of each Publisher Defendant whose books would populate the iBookstore. To show the ease with which an iTunes customer could buy a book, standing in front of a giant screen displaying his own iPad’s screen, Jobs browsed through his iBooks “bookshelf,” clicked on the “store” button in the upper corner of his e-book shelf display, watched the shelf seamlessly flip to the iBookstore, and purchased one of Hachette’s NYT Bestsellers, Edward M. Kennedy’s memoir, True Compass, for $14.99. With one tap, the e-book was downloaded, and its cover appeared on Jobs’s bookshelf, ready to be opened and read.

When asked by a reporter later that day why people would pay $14.99 in the iBookstore to purchase an e-book that was selling at Amazon for $9.99, Jobs told a reporter, “Well, that won’t be the case.” When the reporter sought to clarify, “You mean you won’t be 14.99 or they won’t be 9.99?” Jobs paused, and with a knowing nod responded, “The price will be the same,” and explained that “Publishers are actually withholding their books from Amazon because they are not happy.” With that statement, Jobs acknowledged his understanding that the Publisher Defendants would now wrest control of pricing from Amazon and raise e-book prices, and that Apple would not have to face any competition from Amazon on price.

The import of Jobs’s statement was obvious. On January 29, the General Counsel of [Simon & Schuster] wrote to [the CEO of S&S, Carolyn] Reidy that she “cannot believe that Jobs made the statement” and considered it “[i]ncredibly stupid.”

Yeah, I agree that it was incredibly stupid. And arrogant. Jobs was bragging in public about the price-fixing conspiracy that his company had organized and executed to fix ebook prices. The reason the publishers were threatening to withhold their books from Amazon altogether was because that was the key term in the conspiracy that Apple was proposing. Unless Amazon agreed to knuckle under to the "agency pricing" model that Apple wanted (because it would eliminate retail price competition in ebooks, to Apple's benefit, and let Apple compete with Amazon on the basis of hardware, never price) — Amazon wouldn't be able to sell ebooks at any price.

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This whole fact pattern would never make a good exam question in an antitrust course in law school. It's way too easy. There's an arsenal of smoking guns. It's like no one at Apple ever heard of the Sherman Act.

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Maybe you aren't an ebook buyer, and because you only buy paper books, you think this conspiracy didn't affect you. Nope (p. 95): "The Publisher Defendants raised more than the prices of just New Release e-books. The prices of some of their New Release hardcover books were also raised in order to move the e-book version into a correspondingly higher price tier."

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From p. 103, Jobs is quoted as making the following brag — actually, a stunning admission to which he was blinded by his egotism — to his biographer:

Amazon screwed it up. It paid the wholesale price for some books, but started selling them below cost at $9.99. The publishers hated that — they thought it would trash their ability to sell hardcover books at $28. So before Apple even got on the scene, some booksellers were starting to withhold books from Amazon. So we told the publishers, “We’ll go to the agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that’s what you want anyway.” But we also asked for a guarantee that if anybody else is selling the books cheaper than we are, then we can sell them at the lower price too. So they went to Amazon and said, “You’re going to sign an agency contract or we’re not going to give you the books.”

Yes, the customer pays a little more, but that's what you want anyway — if you're running a conspiracy to eliminate market competition via illegal price-fixing agreements, that is indeed exactly what you want.

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Key finding (from page 120, citation omitted):

In sum, the Plaintiffs have shown not just by a preponderance of the evidence, but through compelling direct and circumstantial evidence that Apple participated in and facilitated a horizontal price-fixing conspiracy. As a result, they have proven a per se violation of the Sherman Act. If it were necessary to analyze this evidence under the rule of reason, however, the Plaintiffs would also prevail.

That's a "belt and suspenders" finding: Judge Cote thinks (and I agree) that this is a "per se" case because of the type of conspiracies and restraints involved and where the players all were in the various supply chains. But she's also saying that even if she's wrong about that point, and even if Apple gets the benefit of the more flexible "rule of reason" standard instead of the "per se" standard, Apple would still lose.

That makes it much harder for Apple to win on appeal.

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This is just a methodical thrashing. In every appeal, the first thing the appellate judges (and their law clerks) read is the district judge's opinion. After reading this one, I think almost any appellate judge is going to be favorably impressed with its comprehensiveness and clarity. It's the kind of opinion after which you exhale and say, "Whew! That's going to be hard to fault in any significant way."

Apple is going to have a very tough row to hoe on appeal. I think they're well and truly hosed in this case, although it's not likely to threaten their existence as a company or even delay the next iPhone-whatever.

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Footnote 63 (at p. 135) is quite droll, as antitrust humor goes:

Apple uses the term 'competitive' to convey that it wanted its prices to be the lowest in the marketplace, not to convey that it wanted prices arrived at through the process of competition.

That means: "We want all the business, but at a higher, fixed price."

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In footnote 66 on p. 143, Judge Cote labels individual Apple and Publisher Defendant executives as "noteworthy for their lack of credibility" — which I would paraphrase as meaning they're "liars lying under oath and they can't be believed."

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Okay, finished. The last 30+ pages are devoted to anticipating every argument Apple can be expected to make on appeal and methodically rebutting or undercutting each of them. Judge Cote is a Clinton appointee who's senior status, so she has a lot of experience; and she's clearly learned how to write opinions in a way that make them particularly hard to reverse. The smartest and best federal district judges are usually the best advocates for why their own written decisions ought be upheld — they try to anticipate how the appeal is likely to proceed, and to make their decisions as nearly "bulletproof on appeal" as possible (which is to say, clear, well-reasoned, and correct). And this may be a candidate for the Second Circuit to "affirm on the basis of the district court's opinion" — basically the appellate court, instead of writing its own opinion, just saying, "Yeah, what she said." It's a very high compliment to a district judge when that happens in an important case.

Beldar's instant analysis of today's SCOTUS ruling in Fisher v. University of Texas

You will see lots of press today about the United States Supreme Court's decision this morning in Fisher v. University of Texas at Austin, which was widely anticipated to be the biggest development in affirmative action law since Grutter v. Bollinger and Gratz v. Bollinger, the University of Michigan cases from 2003.

A lot of that press commentary will be wrong, and quite a bit of it will be both wrong and biased.

I therefore submit to you this quote, which comes not from the majority opinion itself, but from the official court syllabus. It's dense stuff, but those of my readers with legal training can figure out exactly what happened just from this paragraph-plus-one-sentence (citations omitted):

... The [federal appellate courts] must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor “was made in good faith.” It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption. It thus undertook the narrow tailoring requirement with a “degree of deference” to the school. These expressions of the controlling standard are at odds with Grutter [v. Bolliger]’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’” Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here. The [Supreme] Court vacates the Fifth Circuit’s judgment. But fairness to the litigants and the courts that heard the case requires that it be remanded [i.e., sent back to the lower courts] so that the admissions process can be considered and judged under a correct analysis. In determining whether summary judgment in the University’s favor was appropriate, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

For those of you who lack legal training, I will now give you my hipshot reaction. Others will and do disagree, and your mileage may vary. (Mixed metaphor warning! Beware!)

This is, in both form and substance, a loss for the University of Texas in this case, and for those who support race-based preferences more generally. But it is a mostly-procedural loss, not a blockbuster opinion. It is a signal of things to come, but not an earthquake.

Instead of announcing some big new substantive rule that will turn all affirmative action law on its head, the majority chose to emphasize the way the ballgame was supposed to be refereed by the district and circuit courts. My rough paraphrase: "You ignored the rules we told you about before, so go back and do it the right way, paying attention to those rules and leaving tracks showing you did so." And that's very, very different from saying, "We're changing all the rules!"

And the majority's choice to play small-ball rather than swing for the fences is also probably why it's a seven/one decision, with only Justice Ginsburg dissenting (very briefly and somewhat mildly). I seriously doubt we'd have seen Justices Breyer and Sotomayor going along with a more substantive and sweeping ruling.

My hunch is that this limited-scope decision is largely Chief Justice Roberts' doing, part of a deliberate strategy being played out over years and, indeed, presidencies. The narrower, more procedural ruling certainly was likely to have been more useful in keeping Justice Kennedy aligned with the Chief and Justices Scalia, Thomas, and Alito; or, stated the other way, Justice Kennedy might have been more likely to bolt if the other conservatives all wanted to go the route recommended by Justice Thomas (overruling Grutter outright).

But my guess — utter speculation, mind you — is that the Chief was content to use this case as an intermediate step, a signal of a greater SCOTUS skepticism about racial preferences, but something that still measures pretty far down on the jurisprudential Richter scale.

Note well that Justice Kagan's recusal turns into a non-event with the 7/1 margin. By assigning this opinion to Justice Kennedy to write (even with a narrower, more procedural ruling), the Chief has pulled Justice Kennedy a bit farther into the conservative camp on this particular issue. And if the next case breaks back down into a more traditional and predictable 5/4 split (with Justice Kagan joining Justices Ginsburg, Breyer, and Sotomayor in upholding racial preferences), there will nevertheless be a clear, single majority opinion with strong precedential value (at least relative to the kind of split decision mess we've so often seen on these cases, Bakke being the poster child for SCOTUS dysfunction).

Beldar muses on John Edwards' fate while the jury is out

The press reports I've read regarding closing arguments today in John Edwards' criminal trial are unremarkable. The arguments might have been brilliant in person, but at least as filtered through the press they simply re-hashed themes and arguments and evidence that have been discussed before. So my interest turned to other, more technical matters that I actually think may be more important than the closing arguments themselves.

Unfortunately, I can't yet find a written version of the court's charge to John Edwards' jury earlier today — neither on PACER, nor elsewhere on the net. The charge will contain Judge Eagles' formal questions of, and instructions to, the jury, as delivered by her to them in writing and as read by her in open court before the jurors begin their deliberations. The charge is of crucial importance in every trial, but especially in a case like this one in which so many of the facts were essentially undisputed. The prosecution and Edwards' defense team certainly put very different characterizations on those facts. But when the jury tries to sort out which side's characterization is correct, the jurors inevitably will look to the judge's instructions and questions for their guidance.

However, the newest document that's up tonight on PACER — Edwards' lawyers' objections to the draft charge that was circulated after the charge conference yesterday — implies pretty strongly that Edwards' lawyers didn't get the instruction they wanted on what I believe to be the key legal issue in the case: whether to qualify as a "campaign contribution," something must be intended solely to promote a campaign. I don't know if Judge Eagles instead gave the jury the instruction requested by the prosecutors, which would have explicitly said that they could find Edwards guilty even if the conspirators had multiple purposes — in other words, even if Edwards, Bunny, Young, et al. intended to deceive both the American public at large and Elizabeth Edwards in particular. But I agree that that's the proper interpretation of the statute, so it wouldn't surprise me if Judge Eagles gave the jury the instruction as proposed by the prosecution, or something very close to it.

The other alternative is that she submitted neither side's requested instruction on this issue, but I think that would run a legitimate risk of juror confusion and misinterpretation. That's another way of saying: If she gives no instruction at all on this topic, that would permit the defense team to argue to the jury as if they had gotten the interpretation of the statute, and the resulting instruction, that they wanted, but that the judge has refused; and I think that would be improper.

If the prosecution did in fact get the instruction they wanted, or something pretty close, on this key point, then I think Edwards' conviction on at least some counts is likely. But of course, I'm basing that on an incomplete and subjective set of reports about the evidence, which I haven't actually seen or heard or read; and one can never be certain what any given jury will do. Until this particular jury returns its verdict, Edwards remains entitled to his constitutional presumption of innocence like anyone else; but barring a hung jury, that presumption is about to be replaced by a verdict one way or another.

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UPDATE (Fri May 18 @ 5:45pm): Here, from PACER, are the Final Jury Instructions as read aloud and given in writing by Judge Eagles to John Edwards' jury yesterday. The key instruction, in my opinion, is this one (starting at page 8 of the .pdf file)(boldface mine):

... Whether the money Ms. Mellon provided to Mr. Young through Mr. Huffman was provided by Ms. Mellon for the purpose of influencing an election is a factual question you will decide from the credible evidence. You will consider any evidence about the intent, motivation, and goals of Ms. Mellon, evidence about the statements made surrounding the solicitation and acceptance of the money, how the money was actually spent, and other evidence of all the surrounding circumstances, and determine whether this money was given by Ms. Mellon for the purpose of influencing an election.

The government does not have to prove that the sole or only purpose of the money was to influence the election. People rarely act with a single purpose in mind. On the other hand, if the donor would have made the gift or payment notwithstanding the election, it does not become a contribution merely because the gift or payment might have some impact on the election. Nor does it become a contribution just because the donor knew it might have some influence on the election and found that acceptable, if the donor’s real purpose was personal or otherwise unrelated to the election. In other words, the government has to prove that Ms. Mellon had a real purpose or an intended purpose to influence an election in making the gift or payment. If her real purpose was personal or otherwise not for the purpose of influencing the election, or if you cannot say what the purpose was beyond a reasonable doubt, then that would not be sufficient to satisfy this element. If you find beyond a reasonable doubt that one of her purposes was to influence an election, then that would be sufficient.

The government does not have to prove that Ms. Mellon had any intent or knowledge as to exactly how the money would be spent, or that the money was in fact spent on the campaign, or that it would have been legal or illegal for the campaign to spend the money the way the money was in fact spent. While you may consider how the money was spent as part of your consideration of whether the money was provided for the purpose of influencing an election, it is not an element of the offense that the money be spent on purposes related to the election.

This, like similar instructions Judge Eagles has given in connection with later counts of the indictment, is close enough to what the prosecution requested that they are undoubtedly very happy with Judge Eagles' interpretation of the campaign finance statute — and I agree with the prosecutors that this is the correct interpretation of the statute. And this is exactly the opposite of what Edwards' lawyers had requested, which was an instruction that the intent had to be solely to influence an election.

In fact, I commend the entire document to you if you really want to know what the case is about.

Edwards' defense team might want to reconsider their reliance on a Clintonesque "It's all just about sex" defense

John Edwards has always tried to emulate, and out-do, that other smooth-talking, good-looking Democratic politician from the South, Bill Clinton. Edwards has certainly fallen short of Clinton's achievements — most conspicuously in failing to win the White House. As for Edwards' foibles and failings, I suppose that the consensus of history will decide, someday, whether sexually exploiting a White House intern, and lying about that to the American people and the First Lady, is worse than having an affair and fathering a child with a campaign groupie, and lying about that to the American people and the would-be First Lady (who's also dying of cancer).

But John Edwards' urgent problem is not the eventual judgment of history, but the impending judgment of the U.S. District Court for the Middle District of North Carolina. And his defense lawyers would do well to keep that always in mind as they ponder the appropriateness and likely effectiveness of a defense strategy consciously constructed to parallel Bill Clinton's defense in L'affaire Lewinsky.

Clinton was tried primarily in the court of public opinion. Oh, yes, he certainly was impeached in the House of Representatives, and he was nominally "tried and acquitted" in the resulting Senate proceeding over whether he ought also be removed from office. But there is not much resemblance between even the formal "rules" that governed the impeachment proceedings against Clinton and those which are governing Edwards' criminal trial. And Edwards' trial in North Carolina has taken place within a structure, a setting, that has little in common with Capitol Hill. The key participants in Edwards' trial are ordinary, "real-life" participants in our criminal justice system, with the most significant of them being chosen as a cross-section of the voting public — not big-shots from our political system.

Then-Chief Justice William Rehnquist did a fine and fair-minded job of presiding over Clinton's Senate "trial," using his exalted position atop the judicial branch to keep order inside the Senate chamber during the formal proceedings. But nothing could give even the Chief Justice remotely the same practical authority or influence over the U.S. Senators who decided Clinton's fate that U.S. District Judge Catherine Eagles will necessarily have over the jurors who decide John Edwards' fate.

When Clinton's supporters argued — within the House and Senate proceedings, but mostly, incessantly, and desperately in every channel of public conversation outside the Capitol Dome — that his prosecution was "all about sex," there was no one to overrule them, to correct them, to re-focus the inquiry.

But whenever John Edwards' team finishes his defense — and it's still essentially certain that defense will not include Edwards waiving his Fifth Amendment rights and taking the stand on his own behalf — Judge Eagles will give the jury a set of written instructions and questions comprising the "charge of the court" and their required verdict form. Although she will doubtless give Edwards' lawyers great latitude to argue, if they wish, that Edwards' prosecution is "all about sex," or "all about politics," or "all about ____ (fill in the blank)," nevertheless, when all the lawyers are done, the jury will be obliged to answer the questions posed by Judge Eagles.

And at that point, Edwards' lawyers simply won't any longer be able to distract attention from those questions and that verdict form any longer. Judge Eagles' questions will be lifted in large part from the text of the relevant statutes. And those questions are therefore guaranteed to be about violations of the federal campaign finance laws — not about sex, not about politics.

Edwards' lawyers can puff and huff about sex and politics all day long, but it's the jury's eventual answers to those specific questions which will decide their client's fate.

Being tried in the court of public opinion, rather than in a U.S. District Court, was an enormous advantage to Bill Clinton because a "misdirection defense" works quite well in a court with no rules, no boundaries, and no effective judge to control the proceedings and define the issues. I doubt that a "misdirection defense" is likely to be as effective in Judge Eagles' courtroom. But I suppose it's the best semblance of a defense they can put together for this toxic scoundrel.

Silky Pony & co-star negotiate return of sex tapes

I, for one, am relieved by this news: "Sex tape of John Edwards [&] mistress to be destroyed within 30 days after lawsuit settlement."

My relief flows from the general proposition that it's a good thing to reduce, when possible, the total number of things in the universe which, if seen by me by accident, might make me want to stab myself in both eyeballs with knitting needles.

The first version of the story I'd read, from TheHill.com, reported that "all copies of the tape will be destroyed within 30 days." If accomplished, that would be a rare exception to the general rule of thumb about sex videos in the digital/internet age.

But if you read to the end of the AP story, you'll find that "[i]n the settlement, the Youngs pledged to seek the destruction of any copies of the sex tape that may now be in the possession of the federal government." Meaning there are such, and meaning that the feds haven't yet made any such commitment. Nor, likely, could they — not while six felony and misdemeanor campaign finance charges are still pending against Edwards in connection with his co-star.

Just in case, I'm going to avoid acquiring knitting needles.

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UPDATE (Fri Feb 24 @ wee-smalls): Local press coverage indicates that we'll certainly hear and see more about the sex tape:

Hunter sued Young after Young's tell-all book published in February 2010 described the tape. The 21-page consent judgment and permanent injunction does carve out a notable exception to the disclosure injunction: items already sold by the Youngs as part of a movie deal based on the book.

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"Ms. Hunter was demanding money up until very recently," said Robert Elliot, the Youngs' attorney....

This makes it sound like a financial wash, a walk-away deal where neither side paid any cash to the other. As for what's coming soon to your local motion picture theaters — or, maybe, not?

Information about the sex tape and the list known as "The Slut Club," as described in "The Politician," were specifically exempted from the non-publication order. The Youngs had sold the rights to the tape to Aaron Sorkin of Colvin Road Entertainment as part of movie deal for Young's story and book, according to the agreement, and Elliot said that anything said in the book is fair game.

However, in the agreement filed Thursday, Hunter explicitly retained the right to take the Youngs to court again with regard to the movie if more information stemming from the property returned to her is publicized.

Conspiracy theorists will immediately seize upon Aaron Sorkin's close ties to the Democratic Party and draw enthusiastic inferences and conclusions therefrom. But the Sorkin connection is actually old news. The old saying was that "Politics is show-business for ugly people" — but now it's just all an ugly blur, isn't it, even though some very pretty people are involved?

Is it okay for Obama to tell voters that Obamacare's individual mandate is not a tax, while telling the federal courts that it is?

I have been following the ongoing litigation about the constitutionality of Obamacare, and I have very strong opinions about it. But I haven't written much about it here because there are so very many other conservative and libertarian law-bloggers who are doing such a good job — including many of them who are directly involved in the litigation — that I haven't felt I had anything novel or useful to add. However, I was much struck by the concluding paragraphs of Wisconsin conlaw professor Ann Althouse's post today entitled "The Obama Administration clearly states that the individual mandate is not a tax" (all emphasis hers):

Well, I suppose it depends on what the meaning of the word "tax" is. It's one thing for the purpose of political argument: Democrats in Congress didn't want to call it a tax when they were jamming it through, and Obama doesn't want to call it a tax now as he's promoting a budget with no new taxes for those making less than $250,000 a year. But for the purposes of legal argument, you might want to characterize it as a tax. The serious question is whether the Supreme Court will accept that characterization for the purpose of upholding the law, even though for political purposes the word was not — and is not — used.

And the answer to that question depends on whether the Justices think that analysis of the political dynamics matters in the interpretation of the scope of Congress's enumerated powers. Whatever the vigor of the Court's role here — and obviously much is left to Congress's political will — it is crucial for the people — exercising their political pressure on the Congress that works its political will — to see what is happening. Even in the thrall of judicial restraint, the Court should reject an argument based fooling the people about what Congress is doing. The people are especially vigilant about new taxes, so denying that something is a tax is an important maneuver in the political arena. If that move is made to ward off public outrage, it should not be easy to turn around win the favor of judges by calling it what you did not dare tell the people it was.

As I said in a comment to her post (reprinted here without blockquoting, slightly edited and expanded here for clarity):

Every statute passed by Congress and signed by the POTUS (or passed over his veto) must be justifiable by some provision of the United States Constitution. That is essential to the maintenance of our Republic as a government of limited, enumerated powers — a government subordinate to, not the dictator over, its people.

Flacks for the Obama Administration, including many lefty lawyers and law professors, would love to persuade you, the people, that they're entitled to rely on one part of the Constitution, the taxing and spending clause, as a justification for Obamacare while they're arguing in the federal courts over its constitutionality, and yet to deny elsewhere that Obamacare involves any "taxes."

"This is complicated lawyer-stuff that only us high priests of penumbras and the living, breathing Constitution can possibly comprehend," they suggest. "Go back to your circuses — look, look, they're handing out more free bread! FREE BREAD!"

(Or maybe just free condoms and birth control pills.)

Democrats are the masters of cognitive dissonance. That's not in dispute and won't change. What might change — as between November 2008 and November 2012 — is the number of rubes who remain enthralled by their shameless hoaxes.

In 9/0 ruling, SCOTUS smacks down 3-judge federal court that redrew Texas' Congressional districts; stresses state government's superior role over federal courts in determining the interests of Texas citizens

I've just read today's unanimous, per curiam (unsigned) opinion by the United States Supreme Court in Perry v. Perez. The media reports I've read so far are, unsurprisingly, either clueless or filled with Democratic Party spin (but I repeat myself), and they're working hard to paint this as some kind of "split" or "mixed" result in which the SCOTUS produced something for both sides to like and both sides to hate.

That's wrong. This is an amazing decision that, fairly interpreted, was a brutal smack-down of a special three-judge federal district court. And the smack-down was delivered because that court had thoroughly ignored the wishes of the voters of Texas — as expressed by their duly elected representatives in the Texas House, the Texas Senate, and the Governor's Mansion — about how to redraw Texas' electoral maps to accommodate the 2010 Census results, in which four additional seats in Congress were apportioned to Texas.

This whole area of the law is highly technical, with a complicated and sometimes internally inconsistent set of judicial, legislative, and historic precedents involved. So even though this opinion is comparatively short and clearly written, it's rough sledding for most non-lawyers to follow, especially when one starts getting into the tall grass of mandatory direct SCOTUS jurisdiction, Section 5 preclearance requirements of the Voting Rights Act of 1965, and relative standards of proof in preliminary injunction hearings. But here's how the opinion tees up the stakes and the big-picture issues:

[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment....

(Even casual students of voting rights cases like me can appreciate the ironic understatement of that last sentence. Indeed, it's been so hard to find "neutral legal principles" that even the Supreme Court has frequently fragmented into multiple small voting blocs in these cases, quite commonly failing to produce any single written opinion that speaks for a majority of the Court. This is the kind of droll observation that John Roberts, as Chief Justice, can put in without it bugging any of the left-leaning Justices enough that they ask him to take it out, and one or two of them aren't completely humorless anyway.)

The Supreme Court continues:

... Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan — even one that was itself unenforceable — “to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”

So you don't throw out democracy and mount a judicial coup d'état just because some small part of a redistricting map is, or might be, problematic. Instead, to paraphrase today's opinion, what the Legislature passes and the Governor signs — what Texas' own duly elected government does for itself in the exercise of its solemn duties under both the state and federal constitutions — should, as much as possible, trump federal judges who think it's their job to just dive in and fix whatever they think they can improve upon.

After more analysis along these same lines, we get to the meat of the decision, which also conveys the smack-down (citations omitted, boldface, highlighting & first bracketed portion mine):

In this case, the District Court [that comprehensively redrew the Texas Legislature's map] stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

Wait, wait ... You don't think that's a smack-down? You expected maybe something snarky, maybe something like Justice Beldar would have written?

Actually, the dry and unemotional language used here again makes me think that Chief Justice Roberts is the likely unacknowledged author. Regardless, here's my translation, in plain English and without the restraint with which judges talk about each others' screw-ups in print:

Whoa! Just WHOA now! Just who do you three judges on the special district court think you are? Who made you the boss of the Texas state government and Texas voters? You're not!

And you may think that you have some judicial Magic 8-Ball which tells you what's best for the citizens of Texas, but we have these Constitutions — one federal, one state — which actually limit your whole role in this fight to way, way, way less than you guys think you're supposed to be doing. So cut it out, right now!"

The rest of the opinion mostly comprises specific examples of things the three-judge special district court got absolutely wrong because they thought, at least in this particular case, that they were philosopher-princes who rule the cosmos instead of federal judges. (Umm, again, that's Justice Beldar's characterization, not from the per curiam opinion itself.)

So this case is already going back, in a big hurry ("judgment shall issue forthwith," sez the SCOTUS, so no motions for rehearing or such), to the special three-judge district court. Their job — now that their attitudes (and legal standards) have been appropriately readjusted — will be to take the map passed by the Legislature and signed into law by the Governor, and to then make the absolute minimum number of changes that are absolutely necessary to fix, temporarily (for 2012 only), only those specific things that the plaintiffs in the case actually demonstrate to be pretty darned likely to be found illegal or unconstitutional.

That's likely to end up looking an awful lot, then, like what the Legislature passed. And that means the Democrats have lost this round in Texas for all practical purposes.

But do you want to know what actually got my motor racing the most when I read through this per curiam opinion? It was this (bracketed portions mine):

This Court recently noted [in the Northwest Austin MUD No. 1 v. Holder case, a 2009 Roberts opinion,] the “serious constitutional questions” raised by [Voting Rights Act] §5’s intrusion on state sovereignty. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.

Friends and neighbors, that's what my tenth grade English teacher at Lamesa High School, Mrs. Koger, trained me to recognize as "dramatic foreshadowing." And since I would very much like to see the SCOTUS agree that it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist, I'm very eager to see this play out.

The four liberal Justices likely read that same paragraph, though, and thought (to themselves; they wouldn't quibble about this with the Chief, or decline to concur over it): "Yeah, we'll just see about that when the time comes." But the Beldar SCOTUS Tea-Leaf-o-Matic™ says Chief Justice Roberts is signaling that he has the votes for what will be a monumental decision in American constitutional law and, indeed, American history.

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UPDATE (Fri Jan 20 @ 10:30pm): The PBS NewsHour actually does a pretty good job reporting this story, in large part because they interviewed and relied upon election law expert Rick Hasen. Prof. Hasen has been very gracious in some previous blog discussions with me about Texas redistricting. He's a reliable leftie, but he's wicked smart, and he tries to be (and mostly succeeds in being) intellectually honest (even when he's wrong). Prof. Hasen also picked up on the broader Voting Rights Act implications. The NewsHour headline (which Prof. Hasen links and republishes without demurrer on his own blog): "Supreme Court Ruling on Texas Electoral Maps 'Huge Setback' for Democrats." And yes, that's exactly right.

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UPDATE (Sat Jan 21 @ 3:10pm): The Wall Street Journal's editorial page also mostly gets this story right, including the implications for future litigation on the continuing constitutionality of Section 5, in "Holder's Texas Defeat: The Supremes deliver a unanimous drubbing on redistricting." (But you won't learn anything there I didn't already say here; and the Journal's admirably concise telling leaves out some details I tend to savor.)

A lot of the other commentary I'm reading about this decision completely misses the parts of the opinion in which the SCOTUS stressed that there can't be any map re-drawing without the required evidentiary showing of a legal violation to justify it. Even some conservative bloggers I've read seem to be assuming that the three-judge court can still produce, if it's so inclined, another map that suits the Democrats better than what the Legislature passed and the Governor signed.

That is emphatically wrong. For that to happen, at least two of the judges of the three-judge special court would have to publicly defy the SCOTUS. The last time something like that happened on a really important case was in 2000, when the Florida Supreme Court pointedly ignored the SCOTUS after the SCOTUS had already said, "Hey, you can't do that, so cut that out, and don't make us come down there and smack you!" The Florida court's institutional reputation has still not recovered, and the reputations of the individual judges who'd led the defiance simply vaporized because they were exposed as lawless partisan hacks. 

No, sir or ma'am, these three judges will indeed now understand that every single alteration they make from the Texas Legislature's map is going to be scrutinized under a SCOTUS microscope. Indeed, they've been given a list of specific (and otherwise likely) screw-ups that they have been publicly warned not to repeat. And the whole point of this unanimous, per curiam opinion was to send an unambiguous set of directives: There are no concurrences or dissents to muddy the water, and these three judges now know that what they did the first time couldn't find a single supporter on the SCOTUS. Repeat: these judges couldn't get so much as a kind word even from Justice Ginsburg, the long-time general counsel of the ACLU, on this one. That's such a harsh reality that it can't escape notice.

So these three judges would have to be utter fools to defy the Supreme Court. As I wrote in a comment below, there's no shame in being reversed, nor even in being reversed by a unanimous SCOTUS. There is, though, shame in being reversed twice in the same case on the same issues; and these three judges are going to take lots of care to see that doesn't happen.

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UPDATE (Sat Jan 21 @ ~5:00pm): This post is a fine example of why I complimented Prof. Rick Hasen for trying to maintain his intellectual honesty despite his partisanship. He admits to having "gotten a fair bit of pushback that the outcome after remand is far less certain" after his description of yesterday's decision as a "big win for Republicans." But he gives three reasons for why he "think[s] it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now." (By "good," Prof. Hasen means, "pro-Democrat.")

His first and third points, I've already made here. He's correct that it's the Texas Legislature's maps, "(rather than starting from scratch maps) which will govern what the final maps look like." He's also correct that "The three-judge court is likely to be chastened by the unanimous Supreme Court decision."

His second point amplifies on something I've noted in a way that I think is also probably correct (emphasis mine):

In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.

I'm sure Prof. Hasen would protest and disagree, but I respectfully submit that that paragraph contains an inescapable but implicit acknowledgement that what this is all about is partisan politics, not remedying of racial discrimination. And its premise is that only Democrats can reflect the views of minority voters — an offensive and, indeed, a racist premise. (Again, he would protest and disagree.) But as always, the Dems want to win in federal court what they can't win at the electoral polls. They haven't won a state-wide race in Texas since 1994, and they've lost their majorities in both chambers of the Legislature, because Texas voters have rejected them — repeatedly, comprehensively, at every level and despite all their class- and race-warfare. The likely composition of the Texas Congressional delegation in January 2013 will now, correctly and fairly and legally, reflect that rejection.

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UPDATE (Sun Jan 22 @ ~5:40pm): I thank Prof. Hasen for this gracious cross-link to this post. (I'd sent him an email "ping" as a courtesy since I don't think his blog uses trackbacks and his comments are disabled.) In it, he writes (briefly, and not tendentiously but, I hope, with good humor):

For the record, I hardly think it racist to note that minorities, especially African Americans (but aside from Cuban-Americans in Florida) tend to vote for Democrats by very lopsided margins.

To which I'd respond, not quite as concisely:

Of course it's not racist to merely note it, especially as history. But it's a racist judgment (i.e., an act; I'm not indicting people but rather conduct and decisions) to assume or presume that so it must always remain. And partisan race-based politics is an illegitimate basis to strip state legislatures (and, ultimately, their constituents) of their constitutional rights and obligations to redistrict. In Chief Justice Roberts' inarguable formulation: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

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UPDATE (Sun Jan 22 @ 8:10pm): Concision is definitely something I lack, but I haven't vented about this for a few years. So, expressed slightly differently:

1. Democrats believe as a matter of political faith that, by definition, their party includes no racists and can commit no racist acts; rather, Democrats are merely people who insist that government, and especially the federal courts, trample democracy to reorder society (including Texas' Congressional districts) in order to dictate winners and losers on the basis of skin color. Nuance: I learnt it from that "Animal Farm" book ("four legs good!").

2. (a) Partisan gerrymandering is one of democracy's most unappealing, raw aspects. Democracy itself is a terrible system of government with many historically demonstrable failings, redeemed only by the fact that it's nevertheless the least worst form of government ever yet invented and implemented.

(b) The Democrats are complaining bitterly that in the Texas redistricting, Republicans discriminated against Democrats and in favor of Republicans. Well, duh. That's not disputed; that is the essence of gerrymandering, which is about sorting voters into districts based on how those voters are likely to vote. Every alternative to gerrymandering comes at a cost to small-d democracy; I haven't yet seen one which was worth that, and I don't believe any such alternative exists. The Founders' decision to put the responsibility for redistricting at the most organic, grass-roots level of government, the state legislatures, was indeed a choice of the least-worst alternative.

(c) However, proof that Republicans simply discriminated against Democrats also wins them no relief in federal court. So Democrats have to engage in this fiction that by discriminating against Democrats, the Republican majorities in both chambers of the Texas Legislature and the Texas Governor were all actually discriminating against racial minorities.

(d) That's counter-factual; the Democrats claimed that in 2003-2004 too, and were ultimately laughed out of court because all they had to support those claims was wild speculation and innuendo.

(e) In fact, neither Republicans nor Democrats have any need to discriminate anymore on the basis of so crude and statistically inaccurate metric as race. They can draw more useful, better-gerrymandered maps using other, much more precise data on who's likely to vote Democratic and who's likely to vote GOP.

(f) Nevertheless, absent actual evidence of discrimination on the basis of race (which doesn't exist, because that's not what's been happening), the Democrats' proof of an alleged voting rights violation depends entirely on their ability to win a purely legal argument (unmoored from evidence) that conflates "Democrat" with "racial minority." Without that presumption and assumption, their legal position falls to pieces, and is exposed as an accusation that Republicans are (gasp!) political.

Federal courts refuse to hear challenge to Obama's Libyan intervention, but Congress should push back — with the power of the purse — over Obama's new Ugandan adventure

In a post about the Obama Administration's ridiculously stupid efforts to argue that the "kinetic military action" in Libya didn't trigger the War Powers Resolution and its associated reporting requirements and deadlines, I had this to say on May 21, 2011, immediately after "the day under 50 U.S.C. § 1544(b) by which Obama had to "terminate any [such] use of United States Armed Forces" if the War Powers Resolution were constitutional and enforceable:

I don't want to get into a protracted discussion on this post (or in its comments) about the constitutionality of the War Powers Resolution. However, the expiration of this deadline is essentially certain to cause someone, somewhere, to jump into federal court asking for an injunction.

I am 100% certain that when that happens, there will be very technical, very tedious, and very fundamental preliminary motions. There will be challenges to standing — the right to bring suit by a particular person or entity, and/or the capacity in which that's being done. There will be challenges as to ripeness — whether this is something that has to be decided now at all, much less on an emergency injunction basis. And most of all, there will be challenges to justiciability — whether this is even the kind of dispute that the federal courts are in business to be deciding, and in particular whether this is the sort of "political question" that the federal courts are supposed to refuse to get involved in.

So as you're imagining the whole range of potential scenarios that could unfold from this — to the continuing chagrin of Barack Obama, progressive superhero who's now committed a set of unforced, imbecilic, spectacularly ironic mistakes on Libya — consider this one, because it might well happen:

Congress: Hey SCOTUS, make him stop it! Make him follow the law we passed to tell him how to do his Commander-in-Chief gig! Order those ships to come home and those planes to stop flying right now!

POTUS: No, no, SCOTUS, that's my gig alone, and neither you nor Congress can tell me how to do it.

SCOTUS: We're just not going to talk about this subject. Go away.

[Courthouse door slams closed; POTUS and Congress trudge away, grumbling and snarling at one another. Exeunt all.]

I actually think that's the single most likely scenario, if it were pressed that far by the appropriate principals — who themselves may be precisely the ones who refuse to seek judicial involvement, because Congress has an interest in leaving this entirely unresolved, too.

Today — on the very day the non-war war finally achieved the laudable (and bizarrely denied) goal of regime change via decapitation — in proceedings styled Kucinich v. Obama, it has turned out that my predictions about how the federal courts would refuse to even hear such a challenge were proved absolutely correct. From the Blog of Legal Times (link in original; hat-tip Above the Law and WSJ Law Blog):

A federal judge in Washington has dismissed a suit challenging the Obama administration's legal justification for military action against targets in Libya.

The suit, filed by a bipartisan group of congressmen in June in U.S. District Court for the District of Columbia, sought a ruling that the U.S. military strikes are unconstitutional without a congressional declaration of war....

Responding to the suit, the U.S. Justice Department said the claims raise political questions that federal district judges are not authorized to entertain and that the plaintiffs do not have standing to sue in the first place.

Walton agreed, ruling that the lawmakers do not have standing. He rejected the alleged injury the lawmakers claimed—that they have been deprived the ability to vote on a war declaration.

In a footnote, Walton questioned the plaintiffs’ decision to sue given legal precedent, he said, that didn't bode well for the members of Congress.

“While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” Walton said.

Take a step back. Pretend we don't have "Republican" and "Democrat" labels here, or even "conservative" and "liberal" labels, and that we're just looking at this solely as a test of power between the respective branches of the federal government.

Looking at it as part of that big picture, today's ruling granting the Administration's motion to dismiss made no new law at all: It didn't weigh or decide any facts at all; it didn't endorse Obama's argument that the War Powers Resolution wasn't implicated. It just announced that this handful of Congressmen lacked standing "either in their capacity as Members of the House of Representatives or because of their status as taxpayers" to challenge Obama's actions in federal court, even if the court assumed that all the facts they alleged were absolutely true.

This exact result was a predictable outcome, one that I (and many others) had in fact predicted — so predictable that the federal district judge who first heard it became rather grumpy about having to waste his time on it. (Indeed, one of the prior precedents on which Judge Walton relied was a 2002 case in which this same lead plaintiff, Congressman Dennis Kucinich, had tried to sue President George W. Bush over the U.S. withdrawal from the 1972 ABM Treaty without Congressional approval.) But is either today's court result or Kadafi's death likely to result in a new extra-legal precedent, an unenforceable but nevertheless notable practical precedent in the grand interplay of constitutional checks and balances in the 21st Century?

Naw, not so much. The mild and short-lived court scuffle between Obama and a handful of Congressmen here was just an isolated example of something we already knew:

If Congress, acting as Congress (as opposed to acting through its individual members who're trying to be litigants in court), declines to exercise the express powers granted Congress by the Constitution — chief among them, the power of the purse — to protect other express privileges and responsibilities also conferred upon Congress by the Constitution, including the exclusive power to "declare war," then we're not seeing an actual constitutional confrontation.

With the opposition to Obama's Libyan adventure, then, in Obama's silly efforts to claim the War Powers Resolution didn't really apply, in the resulting Congressional grumbling, and in this lawsuit, we've only seen a kabuki show intended to fool the easily fooled. Obama calculated that he could get away with something like the Libyan adventure — and this time, Congress has clearly let him. That is the only important take-away message.

*******

But as I've said here earlier this week, I do not think Congress should continue to let Obama get away with sending American ground forces into conflict in Uganda with neither Congressional approval nor even the merest hint of a shadow of a whisper of a threat (imminent or even just gathering) to significant American strategic interests. Such interests do not exist in Uganda. No, this particular frolicsome detour — which is indeed likely to become extremely "kinetic" at some times and places (since that's part of what Special Ops guys are known for, after all, and they're being sent specifically to catch and kill tyrants) — cannot possibly be justified under any theory other than that America is the world's policeman.

If the GOP and those Dems who opposed the Libyan adventure voted together, they could certainly override even a presidential veto of legislation defunding this sub-Saharan Africa adventure. And the GOP by itself, with its majority in the House, could certainly refuse to include funding for it in their next appropriations bill.

This is a confrontation that needs to be had. Even though the scale and risks and expenses of the sub-Saharan Africa adventure may be smaller than what we're doing in Iraq, Afghanistan, or even Libya, the Uganda operation pits the Executive's and the Legislature's respective responsibilities and powers against one another far more vividly: This isn't a Cold War-era "proxy war" like that conducted over Nicaragua in opposition to the Soviet Union's challenge to the Monroe Doctrine and American interests close to home. No one in Uganda is pursuing WMD capabilities or harboring and supporting terrorists; it has no oil wealth or other strategically important position or resources. It has nothing at all, in fact, except some very bad African men who are regularly and enthusiastically killing and terrorizing other Africans.

If Barack Obama wants to host a telethon to raise private contributions to help the victims, that would be peachy. If he wants to propose sanctions or other legislation, or encourage Congressional resolutions on relevant topics, or even to try to gather support from our allies and other countries whose interests are more directly involved, or who simply share our humanitarian concerns, I'll not say a word of criticism. And I am, in general, a strong supporter of a strong Executive Branch, with a great deal of practical and implied power to respond to emergencies, conduct American foreign policy, and direct the U.S. military as Commander-in-Chief both in and out of war.

But this is too much. This is genuinely unprecedented, and the practical precedent it threatens to set is a bad one. The GOP presidential candidates need to start talking about this, because it's a mark of how fundamentally flippant Barack Obama is when it comes to his execution of his Oath of Office and the Constitution. But Congress needs to push back, current electoral politics notwithstanding, because all of its members, Republican and Democrat, have an institutional duty to respect and preserve Congress' proper role in our system of checks and balances.

Fools, lawyers, and Johnny Reid Edwards

Slate's Brian Palmer asks, in his "Ask the Explainer" column, If John Edwards Were To Represent Himself, Would He Have a Fool for a Client? And then Palmer spends some 600-odd words to say "maybe yes, maybe no." For example:

As with so much in the world of lawyering, there are arguments for and against attorneys representing themselves, but little data.

If you ever are in serious need of a lawyer, may a merciful God spare you from one who bases your defense on "data" in the sense that Palmer means that word.

I will admit that it would be absolutely in character for John Edwards to try to represent himself — except that he has never shown an ounce of courage in connection with this affair. The kind of guts it takes to argue to a jury on behalf of a personal injury client^* is nothing compared to the kind of guts the same lawyer would need to represent himself in a criminal case like this. That's why I think he not only won't represent himself, but he'll plead out even if it means jail time. (He'll be looking for the comparatively light, safe, friendly, and shower-monitored confines of one of the nicest federal pokeys, and he might get that.)

But let me give a much shorter, much wiser, and much more unequivocal answer to Palmer's question:

Yes!

With due respect to Palmer and anyone he consulted, every pro-self representation argument Palmer mentions is trivial, and laughably so, compared to the monumental detriment Edwards would incur from losing the specialized experience and, especially, objectivity of a seasoned criminal defense lawyer. It is not a close call. 

And Palmer underestimates — massively — the degree of difference between a civil personal injury law practice in the state courts and the defense of a criminal election-law finance prosecution in federal court. Not only would the lawyer have a fool for a client, he would be committing obvious malpractice on behalf of the fool. And I say this as someone who's had at least as much civil trial experience as Edwards himself, although I don't have anything like his personal fortune to show for it. I keep a carefully considered criminal defense lawyer (and good friend) on my speed-dial at all times, and I'd frankly advise anyone who thinks he or she has much to lose from a criminal prosecution, and everyone who ever is likely to be within six feet of an alcoholic beverage within 12 hours of driving, do the same. It costs you nothing to be prepared, and the most valuable words in the English language may be "I decline to answer until I've had advice from legal counsel, may I please contact counsel now?" — even if you are innocent as the driven snow.

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^* Arguing for a personal injury plaintiff is, by the way, something which I've had occasions to do myself, although much less often than I've been on the defense side. But it's something for which I have a healthy respect when it's done well and ethically. I'm not passing judgment here on whether Edwards' past arguments meet that standard, and I would never presume to do so without, at a minimum, reading the full trial transcripts of his past cases. Those who would, without investigation, jump to conclusions about Edwards' record as a practicing lawyer may be showing insufficient respect to North Carolina defense lawyers, jurors, and trial and appellate judges. I despise the guy, but don't quote me snippets about channeling spirits of departed children or whatever during closing argument. He may have done over-the-top things that you guess the jury bought when it shouldn't have, when in fact it was something else entirely that resulted in the jury's decision; they might even have agreed with you about Edwards. My point is that I don't know, and I doubt you do either. By contrast, I'm confident that I have an ample basis to support my opinions of Edwards as a husband, a man, and a so-called public servant.

Beldar on Katyal's quip to the Eleventh Circuit

Ann Althouse posted today about a first-hand report by Volokh Conspirator Sasha Volokh about a quip made at today's oral argument of the Eleventh Circuit case on Obamacare. The quip was from Acting Solicitor General Neal Katyal, who said, on behalf of the government in defending the constitutionality of the statute, that the individual mandate provisions of Obamacare “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

Prof. Volohk caught Prof. Althouse's eye with Prof. Volohk's own counter-quip about Katyal's quip — a pretty obscure one about Lockner v. New York from long ago. I approve of legal humor, obscure or ribald, on blogs.

But I'll share here (slightly edited but not blockquoted) the comment I left on Prof. Althouse's blog:

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As for oral arguments, speaking as a former Fifth Circuit clerk who watched lots, and who's since had a handful of chances to make them, there are exactly two rules about jokes:

1. If one of the judges makes a joke, it's always funny.


2. If one of the lawyers makes a joke, it's always wrong.

As an appellate advocate, you're trying to project the image of an earnest scholar of the law who's trying to help the court do its duty and write good precedent. (Precedent which will also — Quel miracle! — help your client.) You aren't trying to be Jon Stewart.

Lawyers who crack wise in appellate oral arguments are servicing their egos and dis-serving their clients, in my humble opinion.

This goes for smart-assedness in court in general, and it's a lesson I was taught in my first big first-chair jury trial, long, long ago.

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UPDATE (Thu Jun 9 @ wee-smalls): I just found out that Katyal is Jeffrey Rosen's brother-in-law. (Excuse me, that would be "The Jeffrey Rosen.") The universe is sometimes surprisingly orderly that way, I guess. But believe it or not, I'm actually planning (and have long procrastinated actually writing) something fairly complimentary of The Jeffrey, and so perhaps seeing his name again will remind me to do so.

Beldar still opposes filibusters of judicial nominees by either party

Were I a U.S. senator, I would have voted against, and spoken out in bitter and profound opposition to, the confirmation of Berkeley Law Prof. Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.

I nevertheless join my good friend Hugh Hewitt, for essentially the same reasons he states, and that I've blogged about before: We both regret the "new norm" under which GOP senators — in explicit payback for past and vastly more egregious abuses by Dems — have filibustered a judicial nominee to prevent the Senate from giving an up or down vote as part of its constitutional "advice and consent" responsibilities.

I'm not angry at my home-state senator, John Cornyn, for going along with Minority Leader McConnell on this. (Sen. Hutchison is shown as "not voting," but I haven't looked into why.) I certainly would have encouraged, and participated actively in, using the Senate debate to express opposition to this nomination, because it's one that only a fraction of the American people will ever focus upon either way, and that's a damned shame: A shockingly bad nominee like Prof. Liu ought be hung around Obama's neck for November 2012 to illustrate the likely consequences to the federal bench of returning Obama to office.

Yes, giving someone like Prof. Liu life tenure on a federal appellate bench is a very stiff price to pay to vindicate this principle. But it's the price built into the constitutional system: Elections have consequences. So after very thorough debate, I would ultimately have voted for cloture were I in Sen. Hutchison's or Sen. Cornyn's shoes. The Senate's obligation is to serve the Constitution and, through it, the senators' constituents (collectively, "We the People") — and that remains true even when the urge, and the practical political need, is to dish out some pay-back.

I therefore also agree with Hugh that "the senior members of [both parties in] the Senate ought to meet to consider a formal rule change that will return the body to its long-established practice of giving all judicial nominees who emerge with a recommendation of confirmation from the Judiciary Committee an up-or-down vote." Do your damn jobs, folks.

Beldar quibbles with McCarthy to show that Holder's conflicts are even worse than McCarthy's revealed

Andrew C. McCarthy led the team of federal prosecutors who obtained convictions in 1995 against Sheik Omar Abdel Rahman (a/k/a "the Blind Sheik") and eleven others in connection with the 1993 World Trade Center bombing. Since he left the Justice Department in 2003, he's been among the most articulate critics of those who'd respond to international terrorism as if it were merely a civilian criminal offense. As someone who's actually done as well as can be done in such cases in our civilian criminal courts, I accord him credibility on this topic that's roughly the size, shape, and mass of the Rock of Gibraltar. I rarely find myself disagreeing with what he's written as a contributor to National Review and other conservative outlets.

I agree entirely, for example, with Mr. McCarthy's verbal thrashing of Attorney General Eric Holder in an NRO column from yesterday entitled Holder vs. Holder. In it, Mr. McCarthy explains why Eric Holder is a particularly leaky vessel into which to entrust the profound obligation of serving as chief counsel for the United States of America, and in particular why that's so when it comes to prosecuting/fighting the Global War on Terrorism (a term that Holder himself, like his master at the White House, has disavowed).

My one quibble is with a shortcut that Mr. McCarthy has taken in this opinion article — one which I think actually detracts from its overall persuasiveness.

Mr. McCarthy begins thusly:

Why does the Obama Justice Department seem to have trouble mounting a full-throated, compelling legal defense of Osama bin Laden’s killing? The problem for Eric Holder the attorney general could be Eric Holder the private attorney.

In 2004, Mr. Holder chose to file an amicus brief on behalf of Jose Padilla, the al-Qaeda terrorist sent to our country by bin Laden and Khalid Sheikh Mohammed to carry out a post-9/11 second wave of attacks. In the brief, Holder argued that a commander-in-chief lacks the constitutional authority to do what his boss, the current commander-in-chief, has just done: determine the parameters of the battlefield. By Holder’s lights — at least when the president is not named Obama — an al-Qaeda terrorist must be treated as a criminal defendant, not an enemy combatant, unless he is encountered on a traditional battlefield.

It would be useful if staffers at congressional oversight hearings passed around copies of Holder’s Padilla brief. It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.

I have a problem with that line of argument. It's wrong, and dangerous, to presume that a lawyer privately supports every element of every cause, or every aspect of every defendant, whom he champions in court. And I know Mr. McCarthy knows this principle, and I believe he likely believes in it. Mr. McCarthy went around this hurdle — ignored it — when it's fairly easily overcome in this specific case, however:

Holder didn't take on Padilla as a paying client because he (Holder), like every lawyer, needs to put bread on his family's table. Holder didn't in fact represent Padilla at all, and the Second Circuit brief to which Mr. McCarthy refers wasn't filed by Mr. Holder in his capacity as a lawyer, pro bono or otherwise, for anyone. Holder wasn't among counsel of record in the case.

Rather, Holder — with Janet Reno and two other former Clinton Administration lawyers — were themselves the "amici curiae," literally "friends of the court," who sought and received permission to address the Second Circuit on legal issues relating to Padilla's pending appeal. The lawyers who actually signed and filed the brief, acting in the role as counsel to the "amici curiae" including Holder, were from Arnold & Porter — one of the main (but mainly friendly) cross-town rivals of the Washington, D.C. firm at which Holder was then employed, Covington & Burling.

So attributing the views in this brief to Holder personally is entirely appropriate: The "mouthpieces" who may or may not have agreed with the "clients' position," but who figuratively and literally "signed off" on the brief, were the Arnold & Porter lawyers. Holder, although he had no stake in the case other than as a bystander and "friend of the court," was himself their client. Holder wasn't insisting on being heard by the Second Circuit through counsel because he was at the same risk of imprisonment or death that Padilla himself was in. Rather, Eric Holder, as a private lawyer whose only special credibility arose from his past government service, went out of his way to align himself with Padilla not as an advocate, but as a fellow principal interested in the same matters (albeit in the limited capacity of an amicus). 

It's thus entirely fair — and indeed, much more fair than with other legal briefs in which Holder was merely a paid, or even volunteer, advocate for some client — to attribute the views in this amicus brief to Holder personally. Once the A&P lawyers agreed to represent these "amici curiae," the A&P lawyers were obliged to diligently advocate for Holder's (and his felllow amici curiae's) interests. They spoke not for themselves, but for Eric Holder — and it is to him that their arguments and positions must be attributed. Otherwise, the clients upon whose behalf the brief was filed lacked any authority even as a "friend of the court" to be heard at all.

Holder can't, in other words, hide behind the usual — and oftentimes entirely legitimate — beard that "I was only representing my client's interests, and I don't necessarily agree personally with everything I said on the client's behalf." Rather, everything said in the amicus brief in the Padilla case was said specifically on behalf of Holder; he was the client of the lawyers who wrote and filed it.

Holder's own law degree and licensure and experience is also important, however, because it utterly deprives him of any possibility of saying now, "Oh, I really didn't grasp all the implications of the legal arguments my lawyers from Arnold & Porter were making on my behalf." Even moreso than the average client who lacks legal training and skills, it's not just a conclusive legal presumption that the Arnold & Porter lawyers were fairly and accurately representing Holder's views, it's a practical fact. It's simply inconceivable that this brief could have been filed without Holder (and Reno and the other two Clintonista lawyers) having a chance to review and participate substantively in the editing of its contents.

I suspect Mr. McCarthy would agree with all this, and perhaps he omitted it in the interests of concission. I lack his gift for that, but I also have a very strong attachment to the underlying general rule that for the Rule of Law to function, the lawyers participating in its administration must be free from the strictures that would come from attributing personally to them every principle or cause they've supported as an advocate.

Is Barack Obama one of America's 50 most influential lawyers?

InstaPundit Glenn Reynolds has a polite and useful practice of acknowledging some of the "review copies" of books that have been sent to him, even if he hasn't yet read them, with his short "In the Mail" posts. These usually consist of no more than the author's name and the book's name, typically with an Amazon link (which, altogether appropriately, rebates a small percentage of all purchases back to him through the Amazon Associates program). I think it's fair to infer from such posts that Prof. Reynolds' interest has been piqued by each of the books he so lists, whether or not he ends up reading them. But I certainly don't interpret him to be endorsing all these books, or even necessarily recommending them; when he does want to recommend or endorse something, he's pretty clear about that.

Today he has such a link for a paperback by Ross Guberman called Point Made: How to Write Like the Nation's Top Advocates. Like any adversary-practice lawyer with the requisite healthy ego for that job, my first reaction upon reading that title was, of course: "It's not the 'Nation's Top Advocates' unless it includes me."

My own hypertrophied ego aside, however, I was nevertheless highly amused to read this sentence in Amazon's "Product Description" for this book:

The author takes an empirical approach, drawing heavily on the writings of the nation's 50 most influential lawyers, including Barack Obama, John Roberts, Elena Kagan, Ted Olson, and David Boies.

One of these things is not like the other things. One of these things just doesn't belong.

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Even Elena Kagan — who I thought was a disastrously poor oral advocate during her short tenure as Solicitor General — has at least made an undeniably successful career as a lawyer. David Boies, Ted Olson, and John Roberts are all "lawyer's lawyers," meaning that anyone who knows a damn thing about the practice of law, and in particular the practice of appellate advocacy (a fairly narrow sub-discipline), will indeed recognize them as fine examples from whom much about the art of advocacy can be learned.

And there's no doubt that Barack Obama — merely by virtue of the office he holds — is one of the 50, or five, most influential people in the world. But he certainly didn't get that job because of his excellence and abilities as a lawyer practicing law.

Indeed, the very best that could ever be claimed for Barack Obama's legal practice is that it was short, sporadic, undistinguished, and unmarred by the drive for either billable hours or courtroom success that most new "litigators" are expected to demonstrate. From his spot as "president" (effectively editor-in-chief) of the Harvard Law Review, he could certainly have found prestigious judicial clerkships and a prime job with almost any law firm in the country. He chose instead to blow off judicial clerkships, to spend the year after graduation writing his book and working on a voter registration project, and then finally to join a small Chicago firm of some local political influence but no national prominence. There, by all reports he alternated between "civil rights" legal work (broadly defined, e.g., protecting apartment dwellers' "civil rights" not to live amongst asbestos contamination) and much better-paying work representing slumlords like Tony Rezko. Indeed, Obama's current Wikipedia entry sums up his career as a practicing lawyer in a single sentence that's quite comprehensive and, if anything, a bit generous: "In 1993 he joined Davis, Miner, Barnhill & Galland, a 13-attorney law firm specializing in civil rights litigation and neighborhood economic development, where he was an associate for three years from 1993 to 1996, then of counsel from 1996 to 2004, with his law license becoming inactive in 2002."

Based on my Westlaw search of federal libraries, Barack Obama was listed as appellate counsel of record in precisely one federal appellate decision, in which he represented ACORN (yes, that ACORN) in supporting Ohio's "motor voter" law — a matter that's almost as much political as legal — and while he might well have written part or all of that brief, he wasn't even the first-chair lawyer on the case. That hardly puts him in the company of John Roberts, Ted Olson, or David Boies as an appellate advocate. Rather, it puts him in the company of about 10,000 other schlubs who've dipped a toe in appellate waters and found them too cold, the competition too intense, and the judges too demanding of excellence.

I will grant that Obama was apparently quite popular as a part-time lecturer in constitutional law seminars at Chicago Law School. But that, even added to his law practice, wouldn't make him one of the 50 most influential lawyers in the city of Chicago — much less in the whole country.

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I haven't bought, and obviously haven't read, Mr. Guberman's book. I wonder, though, if it doesn't rely on Barack Obama's political speeches, rather than anything he's ever written or said specifically as a practicing lawyer. [This bit of speculation was in error; please read the "Update" below. — Beldar] Because I'm here to tell you, ladies and gentlemen, friends and neighbors: When I die, if I ever make it to heaven and the Good Lord gives me some choice over leisure activities, among my top five would be trying any sort of lawsuit, representing any sort of client, in a jury trial on neutral territory against Barack Obama. Somewhere in my top ten would be arguing any appeal against Barack Obama.

I would be less keen to face him in a duel of teleprompters, especially if he still gets to have the flags and the "Hail to the Chief" and Nancy Pelosi's Botoxed grin in the background. But if Barack Obama is one of the nation's top 50 most influential lawyers based on his lawyering, his advocacy for a client in any sort of court setting, I will eat my much dog-eared copy of the Bluebook.

So let it be understood: Barack Obama is one of the nation's fifty most influential lawyers in exactly the same sense as he's one of the nation's fifty most influential basketball players: He's a President of the United States who happened to dabble in basketball and lawyering.

And frankly, I haven't seen any accomplishments from his legal practice that can rival his occasional three-pointer on the basketball courts.

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UPDATE (Sun Feb 20 @ 11:50pm): I'm pleased to report that the author of the book in question, Ross Guberman, has answered the rhetorical question I asked in this post — and my speculation that he'd relied upon one of Obama's political speeches was flat-out wrong. By his express permission, here verbatim is his considered response, which he sent me as part of a genuinely sparkling and civil email exchange (embedded link his):

Dear Mr. Dyer,

 

Thank you for mentioning my book today and for sharing your thoughts on my inclusion of Obama as one of the 50 most influential advocates.

 

I found your objection to be reasonable, so I thought I'd explain my thinking a bit.

 

I agree that Obama had a short and thin legal career. But he did sign a cert petition in an important Voting Rights Act case (Tyus v. Bosely), and so I thought my readers might be interested in seeing a few excerpts from the brief as an example of the President's legal work in his academic specialty.

 

Like any author, of course, I hope your own readers will buy my book and judge for themselves! Nearly all of the other people whose work I include have had more traditional legal careers.

Now I am indeed eager to read the book, not least because I've found so few samples of Obama's work product as a practicing lawyer online. Mr. Guberman has promised to send me a review copy — thus have I leveraged myself unabashedly into the same privileged position as Prof. Reynolds, at least in this one very small particular — and I've promised to read it with the intention of writing a review here in due course. Stay tuned!

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.

*******

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]

******

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.

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.

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.

"Sotomayor & Associates" ... meh, who cares?

Nothing has happened since May 26 to make me change my initial take on Pres. Obama's nomination of U.S. Circuit Judge Sonia Sotomayor to fill Justice Souter's seat on the Supreme Court. (That take, in short, was this:  Obama would never nominate anyone of whom I approved, and Judge Sotomayor, if confirmed, will vote the same way as Souter has, but be no more effective than Souter was (and perhaps less so) at swaying the Court's swing vote, Kennedy, in close cases. Republicans should use every opportunity to demonstrate how disastrous it is for the country and the Constitution to have liberal Democrats like Obama in a position to pick politically liberal and judicially activist SCOTUS Justices. But expecting to defeat Sotomayor's nomination is unrealistic unless something big and new comes up from her past, and I'm very grateful Obama didn't nominate someone who'd be much more effective.)

Now it appears from a NYT story that between 1983 and 1986, on behalf of some friends or friends of friends, Sotomayor wrote a few wills, incorporated a few businesses, or helped skim the closing documents for a few condo sales under the exaggerated firm name of "Sotomayor & Associates" while she was really a full-time employee of the Manhattan D.A.'s office or another law firm.

I agree with my blogospheric friend and fellow lawyer Andrew McCarthy that it doesn't take a sophisticated legal analysis for anyone, lawyer or layman, to recognize that claiming to be "Sotomayor & Associates" — when you really don't have any associates — is stupid and misleading.  It ought not be done. (On this topic more generally, see also Eric Turkewitz, Jim Lindgren, Glenn Reynolds, John Steele, and the Washington Times,)

I very, very seriously doubt, however, that lawyer Sotomayor's transgression in exaggerating the size of her firm ever actually misled anyone. As small potatoes go, this one is pea-sized or smaller. And as misrepresentations with disastrous public consequences go, this one is utterly microscopic in comparison with, for example, almost any one of Obama's presidential campaign promises, or his own claims to have had significant experience to prepare him for that office.

(Personal disclosure: My own solo law firm — likewise an unincorporated sole proprietorship whose name is only a d/b/a (albeit one duly registered with Harris County) — is carefully designated "Law Office of William J. Dyer" on my letterhead, pleadings, website, and elsewhere to avoid implying more than one regular place of business, more than one lawyer, or any incorporated status that would potentially limit or complicate my personal liability for debts of the law practice. It's a traditional name, but terribly stuffy and boring. I'd rather simply use "Dyer Legal" to correspond with my business internet URL, but the State Bar of Texas — for reasons that are entirely opaque and directly contrary to the square holding (at footnote 12 & accompanying text) of at least one federal district court opinion adopted by the Fifth Circuit — considers that to be an impermissible "trade name" which might mislead the public into thinking that I'm making some representation about the quality of my legal services as compared to other lawyers, which Texas lawyers are forbidden to do. I think state bars in general, including my own, have historically done pathetically bad jobs of preventing genuinely misleading information about lawyers and their services from being spread in the marketplace. I also think that they've almost completely defaulted in their obligations to instead ensure that meaningful and accurate information — information which would help promote informed consumer decisions, and which would tend to drive out misinformation — is constantly available to the public in usable forms. There ought to be no commercial market for an advertising-sponsored legal information-gathering and -distributing service like Avvo.com, for example, because state bars, individually or (better) collectively, ought to have already done all that and more, and have done it much better, via the internet. Which is to say, on this set of legal ethics/public interest issues, I'm a self-interested, grumpy curmudgeon, but not entirely a traditionalist. I do care about these issues, in other words, but I don't think they matter much in the context of the Sotomayor nomination.)

Beldar's initial take on the Sotomayor nomination

Elections have consequences and, as he's prone to remind us, Obama won. I firmly believe that the President of the United States has the right to choose who he wants as his nominees to the Supreme Court, and that the Senate, in its advice and consent role, ought to confirm those nominees unless they're objectively unqualified. Of course that is not the rule Obama, Biden, or Clinton followed as senators; but notwithstanding their perfidy, and the fact that such perfidy is more typical of their party than of the GOP, I still think the GOP senators did the right thing when, for instance, the Senate approved President Clinton's nomination of Ruth Bader Ginsburg by a vote of 96 to 3 in 1993. And yes, of course John Roberts ought to have been confirmed as Chief Justice by at least that kind of margin, and yes the Dems who voted against him are unprincipled hyper-partisan bastards. So what else is new?

(An aside, apropos of very little: When I was puttering around my father's house during a visit to my hometown in January, I happened upon an unbound issue of the Texas Law Review — specifically, Volume 57, No. 6, dated August 1979. It was on my non-lawyer father's bookshelf — and it's certainly the only legal periodical to be found anywhere in the house — because it contains my one and only published law review article (or, more technically, my "student note" that I wrote as a second-year law student and new member of the Review). I hadn't looked at that issue, though, since some time in the early 1980s, and I had quite forgotten that one of the lead articles in that issue was entitled "Ratification of the Equal Rights Amendment: A Question of Time." The author? Ruth Bader Ginsburg, then a professor at Columbia Law School.)

In any event, there's never been any chance that President Obama would nominate a replacement for Associate Justice David Souter of whom I would thoroughly approve, or mostly approve, or even much like. Nor has there ever been a realistic chance that someone with the minimal objective qualifications could be effectively filibustered, much less defeated in an up-or-down confirmation vote, given the current composition of the Senate. As a practical matter, the most that conservative GOP senators could realistically hope for is to nudge whoever Obama nominated out onto some long and slender limbs during her confirmation hearings — possibly generating some pithy sound-bites that can legitimately become grist for the public mill when the GOP asks the American public again in 2010 and 2012, "Do you really want the Democrats to have such a free hand in putting this kind of person onto the federal bench?" And that's still a goal that's definitely worth pursuing, especially if the GOP members of the Judiciary Committee can treat their own rampant and chronic cases of "senatoritis" (that is, making speeches rather than actually asking pithy and comprehensible questions which will genuinely probe the nominee's beliefs and judicial temperament).

Based upon what I know of her so far, in U.S. Circuit Judge Sonya Sotomayor, Obama seems to have passed the "minimum objective qualifications" bar. This is no surprise, no more than the fact that this is a blatantly racist and sexist selection made to appease the Democratic Party's loathsome identity politics. However, Karl Rove made a good point on one of the Sunday talking head shows this weekend when he pointed out that the Obama Administration can't possibly have vetted her (or any of the other finalists) nearly as thoroughly as the Bush-43 Administration had vetted Roberts and Alito, so I reserve the right to change my opinion if some significant disqualifying facts pop out now that she's under everyone's microscope.

Beyond that, my main reaction to the Sotomayor nomination is actually a sigh of relief. This is guesswork on my part, mind you. But from what I know of them, my strong gut hunch is that either of the other two purported "finalists" whose names had been floated in the press — newly confirmed U.S. Solicitor General Elena Kagan or U.S. Circuit Judge Diane Wood of the Seventh Circuit — had significantly greater potential to become extremely effective in influencing Mr. Justice Anthony "Sweet Mystery of Life" Kennedy. (Indeed, the potential nominee I feared the most, and for that very reason, was Obama buddy Cass Sunstein, who I think would have absolutely owned Anthony Kennedy within his first six months on the Court.) Had Obama chosen someone likely to become particularly influential with Justice Kennedy, that could have made a significant, and oftentimes outcome-determinative, difference on some substantial portion of the very close decisions on the Court over the next several years, even if we assume that the new junior-most Justice will mostly vote as we expect Justice Souter would have done. I don't think Justice Souter has been especially effective in influencing Justice Kennedy, however, and I don't have any reason to believe that Judge Sotomayor, if confirmed to the SCOTUS, will be either.

Supermax prisons' no-escape record doesn't answer concerns about moving Gitmo terrorists onto U.S. soil

I'm already very tired of hearing the stupidest new talking point of the mainstream media: "Why worry about bringing terrorists from Gitmo to the mainland U.S., when we've never had a single escape from a federal 'Supermax' prison?" Duh. This is the sort of 9/10/01 thinking, the sort of "treat global terrorism like a domestic law enforcement problem," that is going to get people killed.

The risk isn't just, or even primarily, that the terrorists will escape, or that they'll misbehave while in custody, although those are indeed considerable risks that ought not be dismissed out of hand. Nor is the risk just, or even primarily, that being on U.S. soil will strengthen the prisoners' potential legal claims and defenses — although that's a considerable risk, too.

Rather, the most serious risk is that the same type of terrorist organization that mounted a simultaneous four-plane multi-state flying bomb assault on the Twin Towers and the Pentagon on 9/11/01 would welcome the opportunity to assault any holding facility on American soil, or whatever community was closest thereto, in an attempt to force the captured terrorists' release. Simply put, friends and neighbors: Any holding facility for radical Islamic terrorists on American soil would be a target and a potential "rescue mission" for which al Qaeda or its like would delightedly create dozens or hundreds of new "martyrs" from among their own ranks.

Right now — as has been continuously true since the first prisoners were shipped there after we began operating against the Taliban in Afghanistan — these terrorists' would-be "rescuers" can't assault Gitmo without first getting to Cuba and then defeating the U.S. Navy and Marine Corps at sea, on land, and in the air. That's not the kind of fight they want; those aren't the kind of logistical hurdles they can ever overcome. Keeping all the captured terrorists at Gitmo, in other words, has played directly to our strongest suit as a nation — our superb, unparalleled, and highly professional military strength as continuously projected in a place of our choosing without risk of collateral casualties among American civilians.

But once the scene shifts to American soil, we lose virtually all of that combination of power and flexibility, and surrender back to the terrorists all the advantages upon which they regularly depend. Getting into the U.S., or using "sleepers" already here? In a fight against some local sheriffs or prison guards armed mostly with revolvers and tasers (perhaps supplemented with shotguns or even a few assault rifles, but no heavy weaponry at all)? With the fighting to take place in or even near any American population center? Can the Obama Administration possibly be so stupid as to forfeit all of our own advantages, and give all of the terrorists' advantages back to them? Can they do that for no better reason than to placate the idiots on the Hard Left who still have failed to heed the warnings on those Viagra/Levitra commercials? (Their hard-ons for George W. Bush have lasted now for substantially more than four hours — indeed, for more than eight years! — but they're still not seeking immediate medical, which is to say, psychiatric, attention.) I'm very afraid that the Obama Administration's answer to these questions may remain: "Yes we can!" (Followed by, "Shut up! We won.")

If instead you distribute the current Gitmo prisoners among many American locations, you still forfeit all of the advantages of Gitmo, while simply multiplying the number of potential targets that we have to protect, and without significantly diminishing the potential propaganda rewards to their would-be terrorist rescuers from even a single assault. Their international publicity coup would be about the same — humiliating the "Great Satan" again on its own soil — whether they sprang two prisoners or two hundred. And for that matter, their PR purposes don't require them to actually succeed in the rescue attempt, just to get a lot of non-terrorists killed too.

As for why domestic history with merely criminal organizations isn't instructive: The Mafia, or the Colombian drug-lords, or whatever other allies there may be of those who've been successfully held in Supermax and other American civilian prisons, generally aren't willing to engage in mass suicides to free their incarcerated compadres. Nor are they inclined to try to kill thousands of American civilians in the process of effecting a rescue. "Terrorism" is a sideshow for them, a temporary and small-scale means to generate financial profit. And while they have money and access to at least paramilitary weapons, they don't have the kind of rogue state support (think Iran and potentially North Korea) that may be available to our enemies in the Global War on Terrorism — ummm, errr, Global War on Man-Caused Disaster-Creators.

Security for the terrorists now being held at Gitmo, in short, isn't just a question of "keeping them in." It's necessarily a question of keeping them where they can't get to others and others can't get to them — or anywhere remotely close to them.

Why I celebrate Chrysler's petition for Chapter 11 reorganization

Count me as one person entirely unsurprised to read that representatives of the Obama Administration were making outrageous and improper threats to the Chrysler bondholders whose refusal to capitulate ended up in Chrysler's Chapter 11 filing. White & Case bankruptcy lawyer Tom Lauria gave a radio interview to Detroit talk radio host Frank Beckman, portions of which are transcribed here, in which he said:

One of my clients was directly threatened by the White House and in essence compelled to withdraw its opposition to the deal under the threat that the full force of the White House Press Corps would destroy its reputation if it continued to fight. That’s how hard it is to stand on this side of the fence.

Beckman: Was that Perella Weinberg?

Lauria: That was Perella Weinberg.

And Obama himself actively participated in the shakedown:

Peter A. Weinberg and Joseph R. Perella are part of a band of Wall Street renegades — “a small group of speculators,” President Obama called them Thursday — who helped bankrupt Chrysler.

That, anyway, is the Washington line.

In fact, Mr. Weinberg and Mr. Perella, with sparkling Wall Street pedigrees, are the epitome of white-shoe investment bankers. And their boutique investment bank, a latecomer to Chrysler, played only a small role in the slow-motion wreck of the Detroit carmaker.

But now the two men, along with a handful of other financiers, are being blamed for precipitating the bankruptcy of an American icon. As Chrysler’s fate hung in the balance Wednesday night, this group refused to bend to the Obama administration and accept steep losses on their investments while more junior investors, including the United Automobile Workers union, were offered favorable terms.

In a rare flash of anger, the president scolded the group Thursday as Chrysler, its options exhausted, filed for bankruptcy protection. “I don’t stand with those who held out when everyone else is making sacrifices,” Mr. Obama said.

Chastened, and under intense pressure from the White House, the investment firm run by Mr. Weinberg and Mr. Perella, Perella Weinberg Partners, abruptly reversed course. In a terse statement issued shortly before 6 p.m. Thursday, Perella Weinberg Partners announced it would accept the government’s terms.

It was too late.

What made Perella Weinberg ultimately give in, when others like Oppenheimer Funds refused? One word: Vulnerability (emphasis mine):

Representatives for Perella Weinberg, which is advising the government on a wide range of banking issues, initially defended the firm’s decision to rebuff the government’s offer.

(Recall that I blogged on March 26 of this year about the odd fact that Obama's chief of staff, Rahm Emanuel, had earned somewhere between $16-$20 million in something between two and three years as an investment banker at Wasserstein Perella & Co. when the Clinton Administration went into exile in 2001, even though Emanuel had zero education, training, or experience as an investment banker or any sort of businessman. And yes — that's the same Perella; he'd moved on to Morgan Stanley by the time Emanuel was at Wasserstein Perella & Co., but it's such a small world, isn't it?)

Glenn Reynolds and Ed Morrissey note the White House press corps' silence — which might be read to imply acquiescence — about being used as part of this threat. And I agree that that's an interesting facet of the story.

The bigger story, however, is that the Obama administration is engaged in a colossal abuse of power whose magnitude far exceeds a mere subversion of the White House press corps. Barack Obama has become Guido, the thug who everyone knows has not only a nasty habit of, but a nasty taste for, breaking kneecaps. And the beneficiary of his current shakedowns are the United Auto Workers.

Obama is counting on the fact that many, probably most, Americans don't know or care about basic principles of corporate finance. But the fact is that all investments — stocks, bonds, notes, commercial paper, CDs, demand deposits, mutual fund shares, whatever — are legal contracts whose very nature is defined by the way they structure and allocate risk of default and prospect for profit.

On the simplest level, for example, in general, people who buy equity in a business, typically by purchasing shares of its common stock, have the greatest potential upside if the business is profitable because they're buying a percentage interest in it, and if the pie keeps getting larger, so too will their slice of the pie. Someone who instead merely loans money to that business — by buying, for example, notes or bonds or debentures that are, at bottom, fancy IOUs — generally forgoes that upside potential, and instead takes only a promise for repayment plus some specified and limited amount of interest. But in general, those who invest by loaning money to businesses also have less risk, because in bankruptcy proceedings — again, speaking on the broadest of terms, and as a general rule — creditors who are owed money by the bankrupt company's estate are ranked, and then paid or otherwise accommodated, before any equity owners (shareholders) get anything. And as a consequence, it's very typical for creditors to get pennies on the dollar, perhaps plus some shares of equity in a reorganized "new" post-bankruptcy company, while the shareholders have been wiped out completely.

And among creditors, there are also rankings. Those who've insisted upon and gotten collateral for their loans — making them "secured creditors" — generally forewent higher interest rates in exchange for the pledge of that collateral. Those who have no collateral, but merely a general, unsecured claim for repayment, are "unsecured creditors." They relied only on the company's general credit-worthiness and, to a lesser extent, the better treatment that even general unsecured creditors get in bankruptcy as compared to equity holders.

I repeat, this is all basic to the entire system of business investments. If these core principles are disturbed, there will be no more capital markets — no ability to buy shares of stock or corporate bonds, no way for growing companies to expand by selling equity or taking on debt.

What the Obama Administration has been trying to do, however, has been to cajole or — it's now becoming more clear — threaten people who carefully bargained for less risk, and who thereby had to settle for lower rewards all along, into voluntarily forfeiting the protections they bought and paid for in the event of the underlying business' insolvency. Primarily through Chrysler's pension and retiree health-care obligations, the UAW is a creditor of Chrysler, but one whose position is less favored by the bankruptcy laws than the investors (debt holders) represented by companies like Oppenheimer Funds or Perella Weinburg. Unlike the UAW, their clients negotiated, bought, and paid for the rights not to have to have to make the same "sacrifices" that equity holders or general unsecured creditors would be compelled to make under the bankruptcy laws. But Obama insists — on pain of presidential demonization and worse — that these so-called "renegades" and "speculators" (who've actually been guilty of nothing other than greater prudence) make those sacrifices anyway, and that they do so specifically in order to benefit the UAW!

This goes beyond populism or pro-unionism. Barack Obama is engaged in an assault on not just the entire system of business in the free world, but on the American rule of law upon which it is founded. And that, gentle readers, is why I celebrated Chrysler's Chapter 11 filing. Instead of backroom deals made through strong-arm tactics, whatever happens now will take place under the disinfecting sunlight of the United States Courts. And that will, in turn, help frustrate Barack Obama's scheme.

Oh, I fully expect that even in bankruptcy court, the Obama Administration will continue to work hard to tilt the playing field to favor the UAW and to disfavor everyone else. It will continue to at least try to call most of the shots as Chrysler struggles toward a reorganization plan. And it's not inconceivable to me that Obama will try to enlist Congress' cooperation — custom "tweaks" of the Bankruptcy Code — in an effort to do so.

But it's going to be harder for the Obama Administration to continue making these unconscionable threats now that there is at least some due process structure that must be followed. And while the federal government is frequently involved in one way or another in bankruptcy proceedings, I can confirm to you from personal experience that it doesn't always get its way there. (But that's a long story I'll save for another day.)

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UPDATE (Sat May 2 @ 8:00pm): As has often been disclosed elsewhere on this blog and on my professional website, although bankruptcy court litigation has been only an occasional part of my practice, I was a litigation partner at Weil, Gotshal & Manges from 1989-1991. WG&M has long represented General Motors; I did trivial amounts of work for GM when I was at WG&M; and WG&M will likely be its bankruptcy counsel when and if GM also files for Chapter 11 protection. Oppenhemier & Co. was also a WG&M client when I was there, and I represented it from time to time on non-bankruptcy related matters. But I don't currently represent anyone with an actual or potential interest in either the Chrysler or (potential) GM bankruptcies, and my current practice mainly focuses on representing small businesses — some of whom are debtors and some of whom are creditors, but all of whom respect and abide by the rule of law that Barack Obama is trying to undermine.

UPDATE (Sat May 2 @ 8:45pm): Count the usually sane Steven Pearlstein of the WaPo as one of those blood-thirsty fans who are cheering Guido the Kneecapper from the galleries (emphasis mine):

The creditors are right when they say that Obama offered a sweetheart deal to Chrysler's employees and retirees, who as unsecured creditors would have stood in line behind banks and hedge funds in a liquidation and would probably have received nothing. It's also true, as the unhappy creditors point out, that it was the above-market wages and benefits negotiated by the United Auto Workers that helped to bring Chrysler to the brink of bankruptcy in the first place.

But those arguments are really beside the point. If the U.S. government wants to lend billions of dollars to help save the jobs, pensions and health benefits of hundreds of thousands of workers, that is certainly its prerogative. And it doesn't have to extend the benefits of that bailout in equal measure to the banks and hedge funds that stupidly lent $6.9 billion to finance a highly leveraged buyout of a long-troubled automaker.

Shorter version: Screw the law, screw your contracts, screw what's fair and who's to blame — we won. Now Pappy Obama is gonna give and give to the UAW, using a combination of tax dollars (just a bit), deficit spending (quite a bit), and money that, by law and all the rules upon which our business system was built, should go to people who loaned money to Chrysler when no one else would, but on terms that were supposed to protect them from this kind of thuggery.

Disgusting. And tragic.

UPDATE (Sat May 2 @ 11:30pm): Megan McArdle asks a good question and makes a good point, but you'll have to decide for yourself whether they're naïve or merely rhetorical (h/t InstaPundit):

[W]hen did it become the government's job to intervene in the bankruptcy process to move junior creditors who belong to favored political constituencies to the front of the line? Leave aside the moral point that these people lent money under a given set of rules, and now the government wants to intervene in our extremely well-functioning (and generous) bankruptcy regime solely in order to save a favored Democratic interest group. [That's exactly the moral point Pearlstein, quoted above, honestly but eagerly discarded and then defecated upon. — Beldar]

No, leave that aside for the nonce, and let's pretend that the most important thing in the world, far more interesting than stupid concepts like the rule of law, is saving unions. What do you think this is going to do to the supply of credit for industries with powerful unions? My liberal readers who ardently desire a return to the days of potent private unions should ask themselves what might happen to the labor movement in this country if any shop that unionizes suddenly has to pay through the nose for credit. Ask yourself, indeed, what this might do to Chrysler, since this is unlikely to be the last time in the life of the firm that they need credit. Though it may well be the last time they get it, on anything other than usurious terms.

The reason I think they might be simply naïve is that unless the Obama Administration's desires and efforts are indeed checked by the disinfecting sunlight of the bankruptcy court and the rule of law, not even someone permitted (contrary to law) to lend money to Chrysler on usurious terms will do so. If the federal government can get away with stripping your creditors of all of their contractual protections — collateral-smatteral! hah! — to effect a massive transfer of wealth from them to the government's current favorites, then it doesn't matter if you're paying 50% or 150% interest per annum: No one will lend any money on any terms.

I'm wondering if Ms. McArdle (who I adore as a fine writer and a fine thinker, a libertarian economist of the first rank) is still laboring under the delusion that the Obama Administration gives a rat's patoot over the "long term" or the "integrity of the marketplace" or the "rule of law." Her point is entirely valid, just as it would have been entirely valid to lecture John Dillinger on how he and his loved ones would ultimately be better off living in a society whose would-be bank robbers restrained their inclinations and instead worked hard and invested for the long term. But valid doesn't mean effective, and that argument wouldn't have worked on Dillinger. It won't work on Guido the Kneecapper Obama either, because there are still massive amounts of loot yet to be redistributed from those who've earned it to those who merely want it (and can be relied upon to vote a straight Democratic ticket).

Doesn't Ms. McArdle understand? Obama won. If he and his friends at the UAW had any care for the long term and the national good, they wouldn't have methodically killed the golden goose that was supposed to fund all those pension and health care obligations in the first place.

NYT again misreports maximum potential penalty that could have been sought against surviving Somali pirate

U.S. Magistrate Judge Andrew J. Peck of the United States District Court for the Southern District of New York has ruled that the surviving Somali pirate captured by the U.S. Navy after attempting to hijack the M/V Maersk Alabama, Abduwali Abdukhadir Muse, will stand trial as an adult. In so doing, Judge Peck credited testimony yesterday from New York City Detective Frederick Galloway, who — according to the New York Times — "who went to Africa as part of an investigative team." Detective Galloway testified that

Mr. Muse, after giving different ages, said he had been untruthful, apologized and said he was “between 18 and 19.”

“He also said, ‘I’m sorry for lying to you,’” Detective Galloway testified. “He said, ‘When I pray again, I’ll ask Allah to forgive me for lying to you, and I won’t lie to you again.’”

Judge Peck rejected as "incredible" contrary testimony given by Muse's purported father (through an interpreter and via a telephone hookup to Somalia) to the effect that Muse is only 15 years old. As for suggestions that Muse was merely a passive follower of the other pirates, the NYT story reports:

Disputing his father’s portrayal of his son as an unwitting dupe, prosecutors say Mr. Muse conducted himself as the leader of the pirate gang, and was the first among them to climb aboard the Maersk Alabama on the morning of April 8 in the Indian Ocean off of Somalia.

He fired his gun at the captain, Richard Phillips, who was still on the bridge, and then entered the bridge with two other armed pirates, and demanded money, the complaint said.

In fact, the Department of Justice's sworn criminal complaint filed against Muse is considerably more damning as to Muse's overall role in these events than the NYT's summary. According to the complaint(caps in original):

MUSE entered the Bridge, and told the Captain to stop the ship. MUSE, who conducted himself as the leader of the Pirates, later demanded money from the Captain. MUSE and two other Pirates, each of whom was armed with a gun, then walked with the captain to a room on the Maersk Alabama that contained the ship's safe. The captain opened the safe and took out approximately $30,000 in cash. MUSE and the two other Pirates then took the cash.

And the complaint likewise disputes previous press suggestions that Muse had "effectively surrendered" by boarding the USS Bainbridge before Navy SEAL snipers shot and killed his co-conspirators (italics mine):

On April 12, 2009, MUSE requested and was permitted to board the USS Bainbridge. The other three Pirates continued to hold the Captain on the Life Boat. On the USS Bainbridge, MUSE continued to demand for himself and the other Pirates safe passage from the scene in exchange for the Captain's release. In addition, MUSE received medical treatment.

Muse wasn't surrendering, in other words, and hadn't "withdrawn from the conspiracy," but was instead continuing to convey threats that his co-conspirators would kill Captain Phillips unless all of the pirates, including Muse, were released and guaranteed their continued freedom.

*******

This NYT story — like every other mainstream media report I've seen since the attempted hijacking and hostage-taking — again incorrectly claims that life imprisonment is the most severe penalty available for any of the crimes with which Muse could be charged. As I wrote last week, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment." The statute doesn't require that the defendant himself have committed the homicide, nor that the victim of the homicide be one of the hostages. Rather, as with many state felony murder laws, all that section 1203(a) literally requires is that the hostage-taking have resulted in "the death of any person" for its violation to become a capital crime punishable by death. The criminal exposes himself to this penalty by taking part in a crime which ends up getting anyone killed as a result, even if it's an innocent bystander killed by accident, or even if it's one of his accomplices and co-conspirators who's killed in a justifiable homicide by law enforcement officers.

Hostage-taking in violation of section 1203(a) is indeed one of the five counts with which Muse has now been charged. However, the DoJ did not see fit to include in the charging language for that count an allegation that the hostage-taking resulted in the "death of any person," so Muse appears to be at risk for nothing worse than a life sentence as the case presently stands.

Section 1203(a) is not a complicated or long statute, and it's simply inconceivable that the prosecutors were unaware that it permits capital punishment when the hostage-taking has resulted in the "death of any person." So we must assume that the decision not to to charge the crime in a manner that would permit the death penalty under section 1203(a) was a deliberate one.

Such decisions fall within the general realm of "prosecutorial discretion." Because prosecutors are responsible not only to do what's right but to do justice, not every crime that could be charged should be charged. And one may argue with a perfectly straight face that Muse's relative youth (even if, by his own admission, he wasn't below the age of 18) and poverty-stricken life, plus the fact that only bad guys got killed, were enough in the way of mitigating factors to justify the prosecutors' decision not to seek the death penalty. Were I in their shoes, I probably would have been inclined instead to leave that to the jury to decide. But I am not accusing these prosecutors of having abused their discretion; and indeed, in other respects, the complaint is commendably robust.

But I do think that the mainstream media ought to truthfully report that the death penalty could indeed have been sought by the Obama Administration. This isn't quite the "Wag the Dog" scenario I've been predicting. But Obama's spinmeisters have been quite aggressive in seizing this as an example of "Obama as Tough Father Figure." It's bad practice, but unfortunately common (verging on universal), for the mainstream media to aid and abet Obama in such exaggerations, and this is simply another example of that.

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UPDATE (Wed Apr 22 @ 11:45am): It's hard to overcome the defendant's own confession as to his age in the best of circumstances, but from another report of yesterday's hearing, this time from the NY Daily News (h/t Althouse), we see that there were further problems with the defense team's contention that Muse is a minor (italics mine):

The judge called Muse's father, who said the suspect was his eldest son, born in November 1993, making him just 15.

Pressed further, the father said his fourth-born son was born in 1990 — and the judge ruled his testimony was not credible.

Muse's court-appointed lawyers said they will appeal the age ruling and also want to see if he's subject to Geneva Convention rules on international prisoners.

They said he was shackled and blindfolded for eight days and had not been given pain medication for his hand in 24 hours.

"He is extremely young, injured and terrified," said lawyer Deirdre von Dornum.

To which my first reaction is: Poor (probably intercontinental) wood-shedding of the father by defense lawyers? If your witness' story depends on the proposition that time flows backwards when you get close to the equator, he may have some credibility problems.

The initial "appeal" of the age ruling will be not to the Second Circuit, but rather to the United States District Judge under whose authority Magistrate Judge Peck is proceeding. Unless they can come up with a lot of new and better evidence to cast doubt on the defendant's admission to the NYC police detective, though, along with an explanation for why they didn't have that evidence yesterday (which may be less problematic, given the international nature of the case and their very recent engagement), defense lawyers are very unlikely to win that appeal. District judges tend to be pretty deferential to their magistrates' fact-findings.

Statements to the press like Ms. von Dornum's tend to blow up in lawyers' faces when the prosecution shows videotape of the "extremely young, injured and terrified" defendant threatening a hostage with an AK-47. By overplaying their hand, his lawyers are ultimately doing their client no favor. But a companion article, quoting a criminal defense lawyer not part of Muse's team, shows just how tone-deaf defense lawyers can be (italics mine):

"You've got an 18-year-old kid who has no education. He's as poor as they come, and he got caught up with these pirates," veteran defense lawyer Martin Geduldig said.

"In a sense, he's as much a victim as anybody else," said Geduldig, who is not involved in Muse's defense.

Friends and neighbors, any lawyer who makes that argument will forfeit all credibility with the jury and judge. If that's the best argument you've got, you should probably get your client's consent to plead him guilty on the best deal you can get, and then hope for whatever marginal sentencing leniency you may can find in the discretion of the court, if there's any to be found. Argue mitigating circumstances as hard as you can; but don't go over the top, which is where you are when you claim your client is "as much a victim" as the guy he shot at repeatedly, robbed at gunpoint, kidnapped and took hostage, beat up, and repeatedly threatened with death as part of a crime spree stopped only by the precision marksmanship of three Navy SEAL snipers.

UPDATE (Wed Apr 22 @ 1:30pm): And now the AP reports that Muse's mother insists that he's actually 16, but "'wise beyond his years' — a child who ignored other boys his age who tried to tease him and got lost in books instead." And the AP, once again, ignores the capital punishment angle.

Surviving Somali pirate captured by U.S. Navy should face death sentence under U.S. hostage-taking law

God bless the United States Navy! (H/t "Jack Dunphy" @ Patterico's.) And what a spectacular Easter blessing for the brave Captain Richard Phillips of the MV Maersk Alabama and his gallant crew and grateful family!

Three of the four pirates who were holding Captain Phillips on the Alabama's lifeboat were shot dead, apparently through the exceptional marksmanship and professionalism of Navy SEAL snipers.

As to the fourth pirate — who was aboard the U.S.S. Bainbridge trying to negotiate when his co-conspirators met their just deserts — news organizations including Fox News and the Associated Press are reporting that if brought to America and prosecuted under federal law, he faces a maximum potential sentence of life imprisonment.

I'm pretty sure that's just wrong. I think that if he's brought back to the U.S. for punishment under our criminal justice system, then the surviving pirate could be, and should be, charged with and found guilty of a capital crime punishable by death.

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It's true that federal laws against piracy — chief among them 18 U.S.C. § 1651 — prescribe life imprisonment as not only the maximum penalty, but the only penalty. But with respect to a federal conviction for hostage-taking, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment."

Congress' use of the word "results" means there must be a causal connection between the hostage-taking and the fatality, but it's a fairly loose one. There is no requirement that it be the defendant hostage-taker who directly inflicted any lethal injuries. And Congress could easily have limited the death penalty to situations where it was the hostage, or perhaps also law enforcement members or innocent bystanders, who were killed. But Congress didn't.

Instead, under the plain language of the statute, Congress instead chose to make the death penalty available when "the death of any person result[ed]" from the hostage-taking. Thus, even the death of one of the hostage-taker's fellow criminals satisfies the literal language of the statute.

I can't find any federal capital punishment appellate precedent directly on point under section 1203, and little precedent even from the federal trial court level. But as with "felony murder" capital punishment laws generally — under the Enmund/Tison standard — I believe that due process and other constitutional concerns are satisfied so long as the defendant is a "major participant" in the underlying felony (here, hostage-taking) and that underlying felony involved a "reckless indifference to human life" (a slam-dunk where the hostage-takers are threatening the hostage's death). There's no requirement that the prosecution show that the hostage-taking defendant had a specific mental intent to accomplish the death of any particular person when he committed the hostage-taking crime. Indeed, in contrast to some state "felony murder" capital punishment statutes, "foreseeability" of the death of the eventual decedent is not an element of this particular federal crime under section 1203(a), according to United States v. Straker, 567 F. Supp. 2d 174 (D.D.C. 2008).

And that should be no surprise to either pirates or decent folk: Hostage-taking, by its very nature, is a threat to kill innocents, and is likely to lead, one way or another, to the sudden and violent death of someone. It's only due to the skill of the SEALs — and, as I'm sure they'd be the first to acknowledge, the grace of God — that no one except pirates were killed or seriously injured. The pirates themselves did practically everything within their power to turn this into a fatal encounter for someone, and there's no doubt that all of them possessed sufficient murderous intentions to imbue them with capital culpability. Thus, in my opinion, even though it ultimately turned out that the only fatal shots were fired by Navy SEALs, that matters not for purposes of charging and convicting the surviving pirate of a capital offense.

I'd much rather see him swinging from the yardarms aboard the Bainbridge after a shipboard summary trial — or failing that, dropped off at Guantánamo as another of whatever the Obama Administration is now calling illegal enemy combatants — rather than afforded the due process which our federal courts accord to civilized human beings. But if the surviving pirate is indeed to be brought back to the U.S. and tried under our federal criminal law, then prosecutors at least ought to seek the most serious punishment for the most serious offense which applies to these facts under federal law.

*******

Chances that the Obama/Holder Justice Department will agree with me? I'd say less than 1%. My only question is whether the ACLU or some NYC white-shoe law firm (purportedly acting pro bono publico) has already filed a "Maxamed Doe" habeas corpus petition for the guy.

Finally, I endorse, recommend, and enthusiastically associate myself with (i.e., wish I had written) the following authors' recent essays on piracy and how the U.S. ought to respond to it (with 21st Century speed and firepower, but 18th and 19th Century principles): Andrew C. McCarthy at the National Review Online and Bret Stephens at the Wall Street Journal.

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UPDATE (Sun Apr 12 @ 7:15pm): Greyhawk at The Mudville Gazette, in the midst of some very perceptive comments about the media coverage of these events, refers to reports that the fourth and only surviving pirate might be (a) the one who was originally captured by the Maersk Alabama crewmen in re-taking the ship, (b) as young as sixteen years old, and/or (c) possibly cooperating with the Navy, rather than (as I'd heard) trying to negotiate on behalf of the other pirates. My comments about his culpability are based on the premise that he's an adult who was actively involved in plotting and executing the attempted piracy and the hostage-taking, and of course my only source for that premise is the admittedly sketchy and unreliable news reporting we've all been following. Even were he to be subjected to the traditional summary ship's-deck justice of decades' past, the sorts of circumstances suggested by Greyhawk, if they panned out, would be given due weight. I don't think this will turn out to be complicated or uncertain, and indeed, to the knowledgeable people already on the scene, these issues are almost certainly already crystal clear. But if my premises turn out to have been wrong, I of course reserve the right to reconsider my conclusions from them.

UPDATE (Sun Apr 12 @ 8:45pm): If you're wondering why I've been so churlish in not extending even a nod of appreciation to our Commander in Chief, read this paragraph tucked away near the end of the New York Times' account of the rescue:

The Defense Department twice asked Mr. Obama for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

Then tell me: When, exactly, during this entire episode was Captain Phillips' life not in imminent danger? Why did Barack Obama have to sleep on the decision whether to permit our military commanders on the scene to use their own judgment as to whether to kill pirates who had attacked an American vessel and were holding its captain hostage? If this paragraph from the NYT is correct, then even if our forces had clear shots at all of the pirates simultaneously prior to Saturday morning, they lacked Obama's permission to take them. And that is outrageous and, on the part of our nominal Commander in Chief, pathetic.

Yes, I suppose Obama could have been more pathetic — he could have refused permission altogether. But Obama obviously thinks he's our Defense Lawyer in Chief, maybe Defense Lawyer for the World. And that's not the job he's in — that's emphatically not the oath he took last January, and there are times, including this one, when it could be inconsistent with the oath he took last January. Obama's operating under a delusion that is very dangerous for America and the rest of the free world. Color me unsurprised but still disappointed.

UPDATE (Sun Apr 12 @ 10:25pm): The WaPo report leaves open the possibility that the fourth and surviving pirate was an adult (as judged at least by American law), but is equivocal about the degree of his relative culpability and cooperation:

Meanwhile, one of the pirates, estimated to be between 16 and 20 years old, asked to come aboard the Bainbridge to make a phone call. He had been stabbed in the hand during an altercation with the crew of the Maersk Alabama and also needed medical care. "He effectively gave himself up," said a senior military official. The Navy then allowed that pirate to speak with the others in hopes that he could persuade them to give up.

I disagree with the SCOTUS precedent that forbids imposition of capital sentences on Americans who were under 18 when they committed their crimes, at least when those defendants have been found as a matter of individual fact to have been sufficiently mature to justify being tried as adults. But if this individual isn't yet 18, there's no chance whatsoever that the Obama administration will seek to hold him responsible as an adult, regardless of any other facts. Whether charging this as a capital offense turns out to be justified on these particular facts for this particular individual, however, I still think the media is wrong in describing life imprisonment as the maximum possible sentence for his crimes. (And I still think treating this as an ordinary crime to be tried in our civilian courts is a mistake as well.)

UPDATE (Mon Apr 13 @ 2:45am): Someone is re-writing the first draft of history. The paragraph I quoted above from the NYT now reads (at the same URL, but with no acknowledgment of having been stealth edited)(additions in red, deletions in strikeout):

The Defense Department twice sought asked Mr. Obama’s for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

The other changes are minor, but the phrase "but only" has completely disappeared, which changes the emphasis significantly to make Pres. Obama seem less squeamish.

And in the Politico.com version, you can almost hear the chorus singing "Brave, Brave Sir Robin" in the background as they, umm, associate the POTUS' valor with that of the SEALs and Captain Phillips:

President Barack Obama issued a standing order to use force against pirates holding an American captain hostage — including giving a Navy commander the authority to act if he believed the captain’s life was in danger, two senior defense officials said Sunday night.

Aha. Now it's a "standing order." (¿Quien es mas macho: Barack Obama, Jack Lord, o Lloyd Bridges?) If, as the NYT insisted, Obama's permission was conditioned on the danger to Captain Phillips' life having been "imminent," Politico.com's reporters can't find the bandwidth to mention that. As for when the go-ahead was actually given, Politico.com, contra what the NYT still says, insists that "A timeline provided by the White House showed he issued the orders to use force at 8 p.m. Friday, and again at 9:20 a.m. Saturday, after new Navy forces moved on to the scene." Which would make the re-issued Saturday morning order sort of, ya know, redundant if the first order were both given on Friday night and really a "standing order." (This takes to new extremes — something under 14 hours — Jim Geraghty's frequent observation to the effect that every statement made by Barack Obama comes with an expiration date, because "standing orders" now have to be repeated at least twice a day.)

Keep in mind, friends and neighbors, that this was a five-day standoff. Whether we credit the NYT's version of events or Politico.com's, our military apparently only had shoot-to-kill authority for something under the last 24 hours of it. And that, I repeat, is simply pathetic.

UPDATE (Tue Apr 14 @ 4:35am): I have no basis to dispute or second-guess these statements from the Secretary of Defense, made on the record on Monday, as reported in the WaPo:

Defense Secretary Robert M. Gates said Monday that the Defense Department twice requested the authority to use deadly force because two groups of Special Operations Forces were involved in the operation. Each required its own sanction. He said that "the approval was given virtually immediately in both cases."

A senior administration official said that the president did not deny any operational request made to him and that he knew the broad outlines of the operation that the Navy had planned. The official said that "our people tried a variety of ways to resolve the situation peacefully, and the guidance all along was that the overriding interest was the captain's life."

Gates said the four pirates involved in taking Phillips hostage were 17 to 19 years old — "untrained teenagers with heavy weapons." The pirate whom Reza wounded in the hand asked the USS Bainbridge for medical attention, effectively surrendering.

That all the pirates were "teenagers" is sad, but not very exculpatory. I'd bet a large sum of money that each of them considered himself an adult before undertaking this piracy, whatever Western law might say for the ones not yet 18. They were engaged in a violent and dangerous crime using military weapons; the three who were slain certainly deserved what they got, but I'll reserve further judgment on the fourth for reasons I've explained earlier in this post or in comments below.

I'm still troubled and unsatisfied by the notion that it takes so many layers of approval, extending to the office of the POTUS, to provide our military forces on the scene — who were, after all, there patrolling for pirates whose routine method of operation is to seize and threaten hostages with execution — the very basic authority to kill any pirate whenever so doing will secure the release of a hostage. If the regular officers and crew of the Navy vessels in the area, including the Bainbridge, didn't already have the authority to do that, they ought not be there. But that is a systemic criticism, and one that may be leveled against American civilian leaders of both parties going back to at least the Bush-41 administration, when lawyers and concerns for civilian-style legalities began to infect every aspect of our efforts to fight both conventional military enemies and terrorists.

Bottom line: If Secretary Gates was being candid and thorough, that puts Obama in a better light than I gave him credit for earlier in this post. If Gates is engaging in spin, I have no way to tell that — and neither does anyone else, absent unfettered access and complete cooperation from Navy personnel who were on the scene but are not about to publicly second-guess the SecDef or the POTUS, whoever holds those offices. The possibility that Gates is being candid and the possibility that he's engaged in spin are not mutually exclusive. But in any event, with our ship recovered and Captain Phillips rescued, and with rare near-unanimity among Americans of every political stripe in celebrating the competency of our military forces and their performance, I'm not going to spend any more energy second-guessing Obama's personal performance on this episode.

There was nothing "culpable" about the 2003 Texas redistricting

I'm angered to read the following passage in a very silly and badly informed article called The End of Gerrymandering, and in particular, I'm dismayed to read it in the Weekly Standard:

But Republicans have not been without culpability, especially in recent years. The mainstream media has naturally sought to highlight this, especially the "DeLay Plan" to gerrymander Texas to the GOP's advantage mid-decade without even waiting for a new census. This occurred in 2003, when the Texas legislature, newly controlled in both houses by Republicans, redrew lines established by a court in 2001 after legislative deadlock. The gerrymander, which created several more GOP-leaning seats in the Texas delegation, ultimately was upheld by the U.S. Supreme Court. Incoming Obama chief of staff Rahm Emanuel, then chairman of the Democratic Congressional Campaign Committee, opined: "Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen. That's the gift that the Supreme Court and Tom DeLay have given us."

I have several questions for the authors, Christian Whiton and Larry Greenfield: Why do they think it was appropriate for the citizens of our nation's second most populous state — a state that has trended Republican since the early 1990s, and been solidly Republican for more than a decade — to continue to live with a pro-Democratic gerrymander from the 1990s that no longer remotely reflected Texas' majority-Republican status? Why should we have to continue to submit to a Congressional district map that was specifically designed to give, and in fact gave, Democrats a majority of Texas' seats in Congress when not a single Democrat could win election to a statewide post?  Why should we pretend that a three-judge federal court — one whose judges candidly and expressly recognized their own lack of political legitimacy, since it was comprised of unelected judges holding life tenure from the single branch of the state or federal government least responsive to small-d democracy — was entitled to have its decision (which made the least possible changes necessary to the 1990s pro-Democratic map to accommodate Texas' new seats due to the 2000 Census) written into stone?

Why, in short, are Christian Whiton and Larry Greenfield swallowing hook, line, and sinker the most incredibly misleading anti-democratic clap-trap of the disingenuous Hard Left (viz: Rahm Emanuel!), describing as "culpable" a readjustment of Texas' districts to closely reflect modern-day Texans' own voting patterns?

What Rahm Emanuel meant was that Tom DeLay and the Supreme Court had given lying Democrats like him a fact-pattern that they could continue to twist, in order to mislead people into thinking that a legitimate democratic process reflecting the wishes of a majority of Texas voters, as expressed through their elected state legislators and governor, was instead a racist and improper one.

I expect better of the Weekly Standard's editors than to print this kind of drivel. The byline tells us that "Christian Whiton is a State Department political appointee. Larry Greenfield serves on the Resolutions Committee of the California Republican Party. The views expressed are their own." But that frankly doesn't excuse the fact that this piece goes out of its way to insult the citizens of Texas and their duly elected state leaders.

Far outside the Beltway, here in Texas, we don't see a problem with our own elected officials — rather than even very good federal judges — drawing our Congressional district map. Culpable? No, that's democracy. That's why America has a Census every ten years, and that's why redistricting is supposed to be done by the combined action of state legislatures and state governors thereafter. Indeed, the voters of Texas reacted to the Dems' 2001 stonewalling in the state legislature by electing more Republicans, who as a result were able to break the Dems' attempts to stonewall and boycott in 2003. There's nothing wicked about voters punishing a party which was badly abusing even its minority status; rather, it's a text-book example of the success of representative democracy.

(The rest of the Whiton and Greenfield piece expounds the great virtues of the new system just passed into law for California that is supposed to make redistricting "nonpartisan." That's about as clever, and is about as likely to be effective, as passing a constitutional amendment requiring state legislators or state governors to be "wise." Redistricting is inherently a political exercise. Moreover, Supreme Court precedent and civil rights legislation, most prominently the Voting Rights Act of 1965, make it impossible for states to redistrict in a random, apolitical fashion anyway: Even if they try to avoid partisan issues, the law's assumptions (among them the repugnant proposition that only Democrats can represent blacks and hispanics) and repercussions will require them to consider the political effects of their actions. I have no confidence that the new California plan will work; indeed, California seems to me and many of my fellow Texans to be most useful as the political laboratory for testing out the most conspicuous failures that the other 49 states can then observe and avoid.  (See point #5 here.) But I wish them luck in what I nevertheless believe to be an impossible and unrealistic task, and I would thank those like Whiton and Greenfield who believe otherwise to withhold their insults to the State of Texas at least until the day — indeed the decade, or two — in which the new California plan has proven itself to be an even arguably viable alternative.)

ChiTrib's Kass seeks fresh answer to question whether Obama would fire U.S. Attorney Patrick Fitzgerald

Of everything I've written in the last couple of months, what I cross-posted at HH.com under this title is a post I think I might have occasion to refer back to again.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Chicago Tribune columnist John Kass asks a question that Hugh Hewitt has frequently asked here and on his radio show during the past few weeks: Would a new President Obama fire Patrick Fitzgerald, the U.S. Attorney who indicted and convicted Tony Rezko, and who's continuing his probe into related criminal activities in Obama's hometown? Kass writes (h/t InstaPundit; links in original):

Readers keep asking me the same question: Will the next president keep Patrick Fitzgerald as the U.S. attorney in Chicago?

I really can't say. What are political promises worth from politicians with debts to pay?

But here's what I do know. There is no story more important to the people of Chicago and of Illinois than the future of Fitzgerald, who has systematically hunted down the corruption.

Corruption the Chicago Way doesn't only waste money and burden taxpayers. This isn't only about isolated instances of graft and amusing, earthy rapscallions. That is a cartoon. The reality is that Illinois political corruption is an infection that spreads. The people either are numbed and deny it, or they feel pressured to suck up to their overlords. That's not American. That's positively Medieval.

That's how important this is. Both John McCain and Barack Obama have promised to keep Fitzgerald here.

"If we lose him, we lose everything," said a Chicago FBI agent wise in the ways of Chicago politics and its symbiosis with the Chicago mob. "I can't imagine it happening. He's the guy who pulls the trigger on all these investigations. If it happens, if they get rid of him, forget it."

Kass goes on to write in more detail about how definitive Sen. McCain has been in his commitment to keep Fitzgerald on the job, with quotes that leave no doubt and no wiggle-room.

Unfortunately, however, both of the links in the block-quote just above are busted as of when I write this, and I can't find on the Tribune or elsewhere (and neither do I recall having seen) any independent confirmation that Sen. Obama has ever made the promise which Kass attributes to him. Of the original making of that promise — which Kass clearly at least suspects that Obama might be pressured to break — Kass writes:

Back in March, Obama visited the Tribune's editorial board. He said that if elected president, he would keep Fitzgerald in place.

"I still think he's doing a good job," said Obama. "I think he has been aggressive in putting the city on notice and the state on notice that he takes issues of public corruption seriously."

I have no reason to doubt Kass' description. But the promise he describes appears to have been only verbal and before a small (albeit important) audience.

More significantly, that promise was made before Rezko was convicted on June 4, 2008. Rezko still hasn't been formally sentenced, and there are rumors that Rezko may be cooperating now with Fitzgerald in hopes of obtaining a more lenient sentence. Just last Thursday Fitzgerald's office announced the indictment of "William F. Cellini, an Illinois Republican Party leader, ... for his alleged role in the fraud scheme that led to the conviction of [Rezko.]" And Kass also makes the excellent point that there are other big political fish in Illinois besides Rezko — some of whom, like mayoral brother Bill Daley and U.S. Rep. Rahm Emanuel, might be potential Obama Administration appointees — who could find themselves in Fitzgerald's net, if he's allowed to continue casting it.

Thus, what Kass credits Obama as having said to the Tribune in March — before Obama even had the Democratic nomination wrapped up — is now so stale as to be long past the normal "expiration date" of anything said by the Obama campaign. This question needs a fresh answer, made on the record and without wiggle room.

Even with only a day left until the election, I have no doubt that word will get to Sen. Obama of Kass' column. But I will be stunned if Obama either answers it, or permits any reporter close enough access to even ask it. And without such a fresh answer, I suspect Sen. Obama's "promise" to the Tribune from last March isn't worth even as much as Mr. Kass' busted hyperlink.

— Beldar

Obama is at least badly misleading in minimizing the number of SCOTUS "hard cases" in which judicial philosophy is determinative

Obviously, the reason McCain-Palin lost was because I didn't blog on October 30th. I returned to duty on Halloween with a guest-post at HughHewitt.com about judges.

The election is over. This is still, however, problematic.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Over at NRO's The Corner, Ed Whelan argues that in a televised interview yesterday with NBC News' Brian Williams, Sen. Barack Obama was "lying" when he claimed that differing judicial philosophies would only matter "less than one percent of real hard cases."

I've listened very carefully to the video clip — preparing my own transcription from it, which I reproduce just below, but you can also compare the Chicago Tribune's version if you'd like — and I can anticipate how the Obama campaign would respond to Ed's charge. I'm less certain than Ed that Obama was deliberately lying, but I'm certainly convinced that what Obama said was badly misleading.

(NB: I'm not 100% sure that the liniked video clip wasn't actually recorded substantially earlier in the campaign — although clearly (from the NBC News captions and text crawls) it was at least re-broadcast yesterday — because I can't find any reference to this interview on the MSNBC website, nor elsewhere besides the Tribune transcript I've linked. For what it's worth, the Tribune also reports the interview as having taken place yesterday. But if so, I don't have any good explanation — other than an odd and gross misspeaking — for Obama's closing words about Sen. McCain having the same sorts of conversations with potential Supreme Court Justices "if [McCain] ends up being the nominee.")

Here's my transcript:

WILLIAMS: Senator, a question about the Supreme Court. Everyone running for President always says, especially on the narrow issue of abortion rights, "No litmus test."

OBAMA: Right.

 

WILLIAMS: It's said on both sides of the issue. And if that's true, if you're not going to call a future Justice into the Oval Office, if you're successful in this endeavor, and bring up the subject, how then do you also avoid surprises? I don't think George H. W. Bush-41 ever dreamed that in Justice Souter, he was appointing a dependable liberal vote.

OBAMA: Right.

WILLIAMS: And Eisenhower for years called Justice Brennan his biggest mistake in office. Two surprises that just come to mind.

OBAMA: Right. Well, look, I think that what you can ask a judge is about their judicial philosophy. And as somebody who taught constitutional law for ten years, and who actually knows a lot of potential candidates for the Supreme Court on the right as well as on the left — because I've taught with them or interacted with them in some way — I can tell you that how a Justice approaches their job, how they describe the task of interpreting the Constitution, I think can tell you a lot.

And so my criteria, for example, would be, that if a Justice tells me that they only believe in the strict letter of the Constitution, that means that they probably don't believe in a right to privacy that may not be perfectly enumerated in the Constitution, but that, you know, I think is there. I mean, the right to marry who you please isn't in the Constitution. But I think that all of us assume that if a state decided to pass a law saying, "Brian, you can't marry the woman you love," that you'd think that was unconstitutional.

Well, where does that come from? I think that it comes from a right to privacy that may not be listed in the Constitution, but is implied by the structure of the Constitution.

So I can have that conversation with a judge. Now, a conservative who is listening to me right then says, "See, he wants to allow the court to legislate!" No, ninety-nine percent of cases, the Constitution is actually gonna be clear. Ninety-nine percent of cases, a statute or a Congressional intent is going to be clear. But there are going to be 1 percent, less than 1 percent, of real hard cases —

WILLIAMS: Second Amendment, last term —

OBAMA: Second Amendment, last term, is a great example, where the language of the Second Amendment is not perfectly clear. I believe that the Second Amendment is actually an individual right. I think that's the better argument.

And so, I can have those kinds of discussions with a Justice without getting to the particulars of, "Is Roe versus Wade, as currently outlined, exactly what you believe?" Or "Do you agree that the D.C. gun law should have been overturned?"

And I think Senator McCain, if he ends up being the nominee, could have those same conversations as well.

Of this, Ed writes (links in original):

As I explained months ago (when Obama used a figure of 95% for the same general proposition):

As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%. According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases. Indeed, last term, cases dividing 5-4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes — Breyer, Ginsburg, and Souter — agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.

Obama, far from being an idiot, is very intelligent. And, “as somebody who taught constitutional law for ten years” (as he tells us in the interview), he surely knows that what he is saying is false. In other words, the only plausible conclusion is that he’s lying — and he’s doing so in order to distract attention from the terrible impact that his appointment of hard-left judicial activists would have.

I can think of two ways that the Obama campaign might seek to rebut Ed's charge.

First, they might point to the vast number of decisions by the Supreme Court in which, in fact, there is no indication of disagreement among the nine Justices: the denial of petitions for writs of certiorari. That's the procedural mechanism by which the SCOTUS may mostly choose its own docket using its discretion pretty much however it sees fit. (There are only a very few types of cases in which the SCOTUS simply must hear cases on their merits, either because it has "original jurisdiction," as in lawsuits between States, or because Congress has granted litigants a nondiscretionary "appeal as of right," as in certain rulings from three-judge panels in Voting Rights Act cases.)

But if Obama intended to include all of those "cert petitions" into the mix for purposes of his 1% estimate, that's still extremely misleading: When each Justice votes to grant or deny each cert petition, he's not expressing an actual opinion on the merits of whether the lower court (typically either a state supreme court or one of the federal courts of appeals) was correct. Rather, the Justice is deciding whether that particular case is "cert-worthy" — worth taking up because, for example, there has been a split among the federal courts of appeals or an especially important issue is involved. There are hundreds and hundreds of cert petitions each year in which, for example, Justice Scalia may think that the lower court was right and Justice Stevens thinks that the lower court was wrong on the merits — but they both agree that the case isn't "cert-worthy," and so the losing side's petition asking the SCOTUS to grant a writ of certiorari (and thereby agree to hear the case) is denied.

Second and, I think more likely, the Obama campaign might argue that even though Brian Williams began the discussion by asking specifically about Supreme Court nominees, Obama was responding by describing all federal judicial appointments — intending to describe in his answer not just Supreme Court Justices, but federal district court and court of appeals judges as well. If one includes all of their cases, then there certainly are fewer "hard" cases in which judicial philosophy is likely to be critical. And that's evidenced by the relative infrequency of dissents among the three members of the appellate panels in which the federal courts of appeals typically hear cases. So if Obama had mentally shifted gears — if he'd switched, without indication, to discussion all of the federal judicial appointments a president gets to make, and not just SCOTUS appointments — then he may have been unclear and misleading, without necessarily telling a deliberate lie.

Whether Obama was knowingly lying or simply being obtuse, however, there's no real doubt that Ed's fundamental point is correct: At the Supreme Court level (and that's what Brian Williams was asking about), philosophical differences among potential appointees are going to be crucial in most cases — simply because by definition, the Supreme Court is the final forum in which the Constitution and laws of the United States are interpreted and applied, and because its docket consists almost entirely of the very hardest and most important cases from across the country. At a minimum, Obama is guilty of trying to underplay the importance of him making these picks as compared to John McCain. And thus, I agree that Obama was being very misleading in this interview.

(Jonathan Adler also has a very good article on NRO today about the potential importance of the next president's nominations for those lower courts, with which I agree entirely; I commend it to you wholeheartedly. What kind of judges the new president appoints to those courts arguably has a greater impact on folks' day-to-day lives than the SCOTUS appointees, and it certainly has a greater impact on federal court litigants. Prof. Adler argues, and I agree, that given the current membership on the SCOTUS and the current and likely vacancies in the lower courts, Obama, if elected, would probably have more influence on the lower courts than on the SCOTUS in his first term. In any event, those appointments are hugely important, even though the appointments themselves and the confirmation process for them often largely escapes public notice.)

A final point that disturbs me about this interview:

Sen. Obama is correct that by virtue of having attended Harvard Law School and been president of its law review, and then having been a part-time lecturer at another very good law school (the University of Chicago) for several years, he's rubbed elbows with a great many law professors with reputations vast and stellar. But with due respect to them, and to my host here (for Hugh Hewitt also teaches constitutional law), the very last thing that the United States Supreme Court needs is more law professors. And yet, as Sen. Obama's remark here confirms, law professors are almost certainly going to be the kind of SCOTUS Justices whom he would appoint.

Justice Alito, at least, had some experience as a trial court practitioner as an assistant U.S. Attorney early in his career. But other than him, there's no member of the Supreme Court with broad or deep experience in actually preparing and trying either civil or criminal cases. And while law professors-turned-SCOTUS-Justices may have gained some seasoning and real-world experience as judges on either the trial court bench or, more frequently, at the federal court of appeals level, that still leaves them many levels removed from the nitty-gritty day-to-day experience of the actual practicing lawyer.

Again and again, I read SCOTUS opinions written by brilliant just-graduated law clerks for smart Justices, in which it's painfully obvious that none of them have the slightest clue about, nor much interest in, what's happening in the real world. They create elaborate multi-part balancing tests and procedural gavottes with shifting burdens and subtle formulations — stuff that is worse than useless in the real world because it's not only impossible to implement, it's impossible to use as a basis for predicting how the SCOTUS will rule the next time an issue comes up. It's not too much to ask that at least one member of the U.S. Supreme Court actually have been a practicing lawyer representing private clients in real lawsuits that have actually gone through to verdict. But there's little doubt that in the Age of Obama, law professors would become the most elite of the new elites. And that should frighten anyone who has either common sense or a wallet.

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UPDATE (Fri Oct 31 @ 2:40 p.m. CST): Ed has posted a pair of updates (here and here) to his original post in which he elaborates and also responds to a post from Matthew Yglesias. Yglesias doesn't mention the word "certiorari" or directly reference "cert petitions," both of which are admittedly inside-baseball terms through which SCOTUS-watchers and legal pundits communicate, but he does argue that "the Supreme Court has absolute discretion over which cases to hear" (which is nearly, but not quite, correct), so it's clear that Yglesias is advancing the first defense I posited above. It's a weak defense for the reason I mentioned above: cert decisions are emphatically not decisions on the merits, they're screening decisions, and it's inapt for either Obama or Yglesias to suggest that they say much of anything about the importance of judicial philosophy or who's making judicial appointments. Treating Obama's percentage terms as being based on cert petitions, to state it another way, is to impute to Obama a very poor understanding of what the SCOTUS actually does, and I think the odds of Yglesias being right in that imputation are extremely remote.

Yglesias goes on to say:

Meanwhile, in his eagerness to call Obama a liar, Whelan is completely misrepresenting what Obama is saying — he’s not, at all, denying that judicial philosophy is important. He’s just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.

This is Yglesias making the second defense I suggested above, and I disagree with that one, too. Any reasonable member of the public watching the Brian Williams clip would conclude that Obama was indeed minimizing the importance of judicial philosophy, and specifically at the Supreme Court level.

As Ed and I both pointed out, Brian Williams was explicitly asking about appointment of SCOTUS Justices. I will admit that it's theoretically possible that Obama — mid-answer, and despite the clear question — spaced out and suddenly shifted from talking just about "hard cases" on the Supreme Court to talking about the entire federal judiciary's caseload. If so, however, Obama ought to have corrected himself by now in public, because he left his listeners believing that he was still answering Williams' question about the SCOTUS.

Moreoever, as Ed points out, the 99% figure is pretty close to the 95% figure he'd used in a previous interview with Wolf Blitzer on CNN and in a speech to the Planned Parenthood Action Fund when he was unquestionably talking only about the SCOTUS and its docket.

No, in my mind, there's no doubt that Obama was being misleading. The only question is whether — as Ed thinks — Obama knew exactly what he was doing and was conscious that what he was saying was false (Ed correctly chides me by email for calling this a "deliberate lie" in the opening paragraph of my original post, which was indeed both a redundancy and a misquote), or whether instead Obama was being unintentionally (but negligently) misleading because he was spacing out. If he was spacing out, it certainly was on a topic for which there's no very good excuse for him to have done that. And it certainly had the effect — which Ed believes to have been a deliberate purpose to begin with, consistent with his other speeches on the topic — of minimizing the difference between the voters' choice of Obama or McCain.

I can't entirely rule out the "spacing out" hypothesis, but it seems unlikely to me. I think it's more likely that Ed's probably right that Obama was just deliberately lying. In any event, however, on matters like this one, given that we're talking about a Harvard-trained lawyer and self-styled "law professor," his misleading of the public — whether deliberate or merely grossly negligent — is just about as culpable either way.

On almost all of the cases the SCOTUS chooses to hear, the difference in judicial philosophy between the kind of future Justices a President Obama is likely to pick and the kind a President McCain is likely to pick will be huge, and increasingly outcome determinative. Some of us are extremely distressed about having to rely on the none-too-reliable Mr. Justice Anthony "Sweet Mysteries of Life" Kennedy as the last semblance of a bulwark against unchecked judicial activism; we're none too thrilled about the idea of a President Obama replacing either Justices Stevens, Ginsburg, or Souter with younger clones likely to be on the bench for another two-to-three decades; and we're absolutely terrified at the thought that Obama might have a chance to replace Justice Scalia. We also know beyond any doubt that even though Obama may have met and worked with some conservative law professors, that ain't gonna be who he picks. He's likely to pick a Cass Sunstein — relying on GOP senators like John McCain to confirm based on objective credentials just like they did Ginsburg — but who's going to be as ideologically driven with a hard-leftist "positive rights"/activist agenda as Brennan and Marshall combined.

— Beldar

Palin's public call on Stevens to "do the right thing" may mean "publicly commit to resign if the trial judge upholds the jury's verdict"

My latest guest-post at HughHewitt.com hazards a guess as to what Alaska Gov. Sarah Palin is saying privately to just-convicted U.S. Senator Ted Stevens. It involves a resignation letter.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

I was amazed earlier this year, in trying to educate a friend about the record of Gov. Sarah Palin as a reformer who'd taken on her own party's most powerful politicians in Alaska, when he poked a finger in my chest and said, "Yeah, but what about Don Young and Ted Stevens?" He was referring to the remaining two senior and powerful members of the "Alaska GOP Troika" that had dominated Alaskan politics for many years before 2006. "They're still representing Alaska in Congress!"

I calmly pointed out to my friend that Gov. Palin had already defeated the third member of the Troika, former Gov. Frank Murkowski, in the 2006 GOP gubernatorial primary, and that she then went on to win the general election and take over the Governor's Mansion in Juneau. "She can only defeat them at the polls one at a time," I said, "because even as terrific and courageous a reformer as Sarah Palin is, they just won't let her run for Governor, Congressman, and both Senate seats all at once!"

Over a year ago, in September 2007 — long before he was indicted, or before she was on anyone's mind as a vice presidential nominee — Gov. Palin publicly called upon Sen. Stevens to come clean and explain for Alaskans in much more detail the series of transactions between him and an Alaska energy company, VECO, that had come into serious question. Relations between them have been cool and distant since then. And Gov. Palin has been very circumspect and scrupulously appropriate in declining comment on the charges against Stevens since his indictment.

In response to Sen. Stevens' conviction today on seven counts of making false statements on ethical disclosure forms, however, Gov. Palin has issued the following statement on the Alaska gubernatorial website:

October 27, 2008, Anchorage, Alaska – Governor Sarah Palin today released the following statement on the felony convictions of U.S. Senator Ted Stevens:

“This is a sad day for Alaska and for Senator Stevens and his family. The verdict shines a light on the corrupting influence of the big oil service company that was allowed to control too much of our state. That control was part of the culture of corruption I was elected to fight. And that fight must always move forward regardless of party or seniority or even past service.

“As Governor of the State of Alaska, I will carefully monitor this situation and take any appropriate action as needed. In the meantime, I ask the people of Alaska to join me in respecting the workings of our judicial system. I'm confident Senator Stevens will do what is right for the people of Alaska.”

Several points ought to be noted on this.

First, even though the jury has found Stevens guilty on all seven counts, that verdict has not yet been reflected in a formal judgment of conviction. (To answer the silly question posed by ABC News' Jake Tapper on his blog, that means that yes, Stevens can still vote for himself next week, but I don't think one vote is going to decide the election.) The trial has been anything but smooth, however, with prosecutors having to admit to repeated blunders throughout. So there are obvious and non-trivial grounds for Stevens' very capable legal team to urge in seeking a new trial rather than the entry of a judgment of conviction. (Please don't mis-read me here: I think it's more likely than not that the jury verdict will indeed be upheld, both by the trial judge and on appeal. And I'm personally unpersuaded by Stevens' defense and impressed by the evidence, at least as summarized by the press, which the prosecution presented. But I do believe in due process, and Stevens hasn't yet had all the legal process that's due to him under the Rule of Law.)

Second, keep in mind that these were convictions in federal court for violations of federal laws, but the Double Jeopardy Clause does not prevent Stevens from also being prosecuted for violations of Alaska state law based on the same or similar conduct. As such, it would still be inappropriate for Gov. Palin to be commenting in depth on the merits of Sen. Stevens' guilt or innocence under either state or federal laws: Doing so could jeopardize any future state prosecution of Sen. Stevens under Alaska state law.

Third, it's reasonable to assume that what Gov. Palin is saying to Sen. Stevens in private is more pointed than anything she's permitted to say for public consumption. And indeed, the last sentence in Gov. Palin's public press release today — "I'm confident that Senator Stevens will do what is right for the people of Alaska" — is what we might call "pregnant with implication." Here's my guess as to what Gov. Palin saying privately, because it's what I would say to him if I were in her position:

"Ted, for now, I'm going to continue to be restrained and appropriate in what I say in public. But you owe it to your party, and to the people who've voted for you in years past, not to take everything down with you in flames.

"Accordingly, now — before Election Day — you need to hand to me, as the Governor of Alaska, a formal, irrevocable letter of resignation which is automatically effective as of the instant that your post-verdict (pre-appellate) motion for new trial in the federal district court is denied (even though you may still have appellate avenues open at that point to challenge that judgment).

"Having made that commitment and signed that binding letter, Ted, then you can again ask the voters of Alaska to give you their votes — and they, in turn, can vote for you secure in the knowledge that one of either two things will happen: (a) The jury's verdict will be overturned, your presumption of innocence will be restored, and you'll have another day in court. Or else: (b) As Governor of Alaska, either I or perhaps Sean Parnell (as my successor) will appoint a qualified, honest Republican who will carry forward the Republican Party's best policies and ideals in the U.S. Senate seat you have occupied for so long."

With due respect to my friends at RedState.com, the response of principled conservatives to corruption in our own party ought to be to work to replace the corrupt actors with honest Republicans — not to endorse Democrats! Character is critical, but party policies are too, and we ought not throw the baby out with the dirty bathwater. Or to use a different metaphor: There are more ways to skin this cat, which I agree needs skinning, and there are better ways for Sen. Stevens and the voters of Alaska to "do the right thing" without handing the Democrats a larger legislative majority in 2009.

— Beldar

Today's SCOTUS ruling does NOT mean there's no voting fraud problem in Ohio

Today's SCOTUS ruling on the Ohio voting case is almost impenetrable. But I'm convinced it's an important case on an important subject, even though I think its moral is deeply concealed. It's not a statement that there's no voter fraud going on in Ohio, nor even a statement that clears the Democratic Secretary of State in Ohio, Jennifer Brunner, of complicity in that fraud. Rather, my guest-post on the decision at HughHewitt.com argues that it's a implied call for further Congressional reform of the Help America Vote Act from 2002, which fails to specify when, how, and on whose behalf the federal courts may and may not intervene to prevent dilution of voting power or abuses connected with the attempted exercise of voting rights.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

As a guest writer here during election season, I've usually stuck to politics. On my own blog, though, I often write about legal topics, and sometimes the intersection of legal and political topics. My goal is to explain some things that I think the media may have not explained very well, and to add context and opinion that's based on my own background as a former appellate court clerk and a practicing courtroom and appellate lawyer for the last 28 years. Tonight, I'll try to help you make sense of a ruling today by the United States Supreme Court in Brunner v. Ohio Republican Party, a voting rights case from Ohio that I doubt many people yet have a handle on, and that I don't think the media have been able to figure out at all.

In three sentences: (1) Today's ruling turned on important but esoteric legal principles that don't have much to do with voting rights in general or the situation on the ground in Ohio in particular, and it ought not be interpreted as the Supreme Court either rejecting or accepting the proposition that there's wide-spread and systematic voting fraud being undertaken there or anywhere else. (2) It does, however, emphasize that the Supreme Court thinks this is an important topic. And most importantly, (3) Congress desperately needs to further reform the voter fraud and voter registration laws to specify who may sue under them, when, how, and for what relief.

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The Ohio case involves the Help America Vote Act (“HAVA”), a federal law passed in 2002 in the aftermath of the disputed presidential election and the Supreme Court's landmark 7/2 decision in Bush v. Gore that the Florida Supreme Court's erratic manipulation of the Florida recount violated the U.S. Constitution. That election year also generated complaints from each side that the other had engaged in variety of types of voting fraud or misconduct. The new law was intended both to remedy complaints that it was too hard to register and cast an effective vote, and that it was too easy to engage in voting fraud.

Thus, here's how today's big-picture legal dispute was described earlier this week by the intermediate appellate court, speaking through a nine-judge majority the full U.S. Court of Appeals for the Sixth Circuit (sitting "en banc," meaning with all fourteen of its active judges participating, rather than in a normal, randomly constituted panel of just three judges):

In one respect, [HAVA] makes it easier for individuals to cast ballots by establishing a vote-first-challenge-later approach to dealing with disputes about an individual’s eligibility to vote, the most obvious feature of which is the right to cast a provisional ballot when an election official questions an individual’s eligibility to vote. In another respect, the Act helps to ensure that those votes count, or to put it another way the Act helps to ensure that those votes are not diluted by guarding against voter fraud. The one goal complements the other: Enabling the casting of one vote does little good if another voter fraudulently cancels it out.

In an attempt to balance these interests, and to promote both without undercutting either, HAVA imposed certain federal requirements upon state government officials — and in Ohio, that meant the state's chief elections official (the Ohio Secretary of State) and its top official in charge of motor vehicle licensing (the head of Ohio’s Bureau of Motor Vehicles (“BMV”)). Specifically, HAVA requires that those two state officials match up the information in their respective state databases to look for evidence of potential fraud in voter registrations.

To comply with HAVA, the Ohio Secretary of State developed a procedure, documented in a written manual, regarding how this matching up was to be performed, and what ought to happen in the event that there was a discrepancy. But that was a Republican Secretary of State, J. Kenneth Blackwell. In January 2008, he was succeeded in office by a Democrat, Jennifer Brunner. And Ms. Brunner decided to "turn off" this portion of the manual, for reasons that haven't been thoroughly plumbed yet through this litigation or through any other means. As the en banc Sixth Circuit wrote:

The apparent “turn[ing] off” of this voter-registration-verification process, or at least the discovery that it had been turned off, prompted this dispute. For reasons that the record does not reveal and at a time the record does not reveal, the Secretary of State apparently chose to deactivate at least part of the process, if not all of the process, described in section 15.4 of her manual. In particular, she concedes that at some point she stopped communicating with the county boards about mismatches and stopped renewing validation requests with the BMV after obtaining a mismatch.

So the Ohio Republican Party and a Republican state representative sued Secretary Brunner in federal court, seeking a court order compelling her to comply with her obligations under HAVA by resuming the process of comparing the two data bases. The federal district judge who first heard their motion for an emergency order (called a "temporary restraining order" or "TRO") agreed that they were entitled to emergency relief and therefore entered a TRO on October 10, 2008. Secretary Brunner appealed, and a mere twelve hours or so later, a three-judge panel of the Sixth Circuit disagreed with the district judge. But then on October 14, 2008, the full Sixth Circuit overturned the decision of that three-judge panel and re-instated the TRO issued by the district judge. And it was that decision from the en banc court which was the subject of today's SCOTUS rulling — meaning that this temporary order traversed the entire federal judicial system within a mere seven days after the district court's initial ruling.

If we were scoring this as a tennis match, it would be a fast and furious series of exchanges: a hard service by the GOP and the district judge, a firm return volley by the Dems and the Sixth Circuit panel, a cross-court smash after rushing the net by the GOP and the en banc Sixth Circuit — followed by today's improbable lob and point from the Dems and the SCOTUS. Temporary, emergency orders like this one generally can't be appealed at all. They're intended to maintain the status quo long enough for both sides to get their ducks in order and to have a evidentiary hearing, with witnesses who can testify and then be cross-examined under oath, at which point the TRO may or may not be replaced by a preliminary injunction that will run until a full-blown trial on the merits (typically months later). So the only way the Dems were able to get this into the federal appellate courts to begin with was to persuade them that because the time between now and the election is so short, even a TRO like this one will effectively decide the whole controversy — too much else will happen before even a preliminary injunction evidentiary hearing can be held, too many bells will ring that can't be unrung, and if the appellate courts don't agree to hear the matter now, there will be no way for the losing side from the district court (here, the Dems) ever to get effective appellate review.

But while it's rare that anyone can persuade an intermediate appellate court like the Sixth Circuit to hear an appeal of a TRO, it's vastly more rare for a three-judge appellate panel from such a circuit court to be overturned and re-reviewed by the full circuit court sitting en banc. In the year I clerked on the old Fifth Circuit (1980-1981), which was then the largest circuit court in the country (stretching from Texas to Florida), I don't think that happened a single time in a civil case. That's why I thought this case would end at that level.

For the United States Supreme Court to intervene, however, and agree to overturn a ruling by a circuit court of appeals on a TRO, is spectacularly rare. The biggest surprise about today's ruling is that the SCOTUS involved itself at all. And the temptation from that is to assume that today's ruling must itself be of some cosmic significance — if not on the level of Bush v. Gore, nevertheless something awfully important about whether there actually is any voter fraud going on in Ohio, and whether the Democrat who's the Ohio Secretary of State is facilitating it by refusing to do her job.

However, one who gives in to that temptation, however, and who draws that particularly inference, would clearly be wrong. Today's ruling has a dramatic and fairly well concealed point to it, but it's not on that subject.

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The en banc Sixth Circuit agreed with the panel that this was indeed one of those rare cases in which a TRO may properly be appealed, but it differed from the panel on what it described as the key legal issue presented by the case: "whether 42 U.S.C. [section] 15483(a)(5)(B)(i), together with other provisions of HAVA, require the Secretary to provide local election officials with meaningful access to mismatches identified in the [Statewide Voter Registration Database]," instead of just the theoretical (and practically useless) access that Secretary Brunner was actually providing.

The en banc Sixth Circuit believed that the answer to that question is clearly yes — meaning that in all probability, after a full development of the evidence and an eventual trial on the merits, the GOP would win its case. In the meantime, the effects of the TRO were limited and entirely beneficial, according to the en banc court (citations omitted):

At most, the identification of a mismatch allows a county board to investigate whether the mismatch has a legitimate explanation (say, a recent change of address). Nothing about this case or the relief plaintiffs seek will allow them to prevent a single voter from casting a ballot in the November election. At most, the relief could prompt an inquiry into the bona fides of an individual’s registration, and at most it could require an individual to cast a provisional ballot. At that point, the validity of the voter’s registration will be determined and, with it, the validity of his or her vote. That is not only sensible but it is also fair — and it also furthers both objectives of HAVA rather than just one of them.

The en banc Sixth Circuit went on to compare the respective risks of harm to either side from the temporary order. It found an urgent and compelling need to furnish county boards with meaningful information on non-matching registrations before absentee voting began, because otherwise the ability to segregate those votes for investigation would be forever lost. By contrast, it found unpersuasive Secretary Brunner's claims that having to do that which her predecessor had done would impose an incredible hardship and burden. And finally, the en banc Sixth Circuit rejected Secretary Brunner's arguments that the GOP had been guilty of "laches" — an equitable doctrine which basically says that if you've been tardy in asserting your rights, you may have forfeited them. This was all triggered, according to the en banc Sixth Circuit, no earlier than August 2008, when Secretary Brunner had decided to "allow simultaneous registration and voting for six days in Ohio in late September and early October." As for the "turning off" of the county board's cross-checking abilities, the court said that "[t]o this day, it remains unclear when the Secretary told the public that she had changed the office’s prior policy on implementing [section] 15483(a)(5)(B)(i), when she told the public why she made these changes and whether she has made additional changes to the policy since."

To sum up, then, the en banc Sixth Circuit agreed with the Ohio GOP that Secretary of State Brunner appeared to be violating her responsibilities under HAVA in a way that would interfere with local election boards' ability to identify potential instances of voter fraud. Did the Supreme Court disagree?

Nope. The Supreme Court neither agreed nor disagreed with that conclusion, because instead the Supreme Court indicated that this sort of case can't be brought in these circumstances by these sorts of plaintiffs.

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It's common-place for Congress to pass laws that create certain duties and responsibilities for other people and entities, including state government officials. One of Congress' annoying habits, however, is that it quite often doesn't bother to say, one way or the other, whether ordinary citizens can go to court to force the intended target of those statutes to comply with their responsibilities. And Congress didn't say that one way or another about the specific database-comparing responsibilities created by HAVA for state election officials like Secretary Brunner. This, unfortunately, leaves the federal courts in the position of literally having to guess what they think Congress would have said, if Congress had thought about the issue and bothered to decide it.

The Ohio GOP here was proceeding under a very old and powerful civil rights statute, 28 U.S.C. section 1983, which allows lawsuits in the federal courts to be brought by people to redress the violation of rights which are secured to them under the Constitution or laws of the United States. But does HAVA give citizens, or groups of them like the Ohio GOP, or the Republican state representative who also was a plaintiff in the case, the sort of statutory right which may be protected under section 1983?

In other cases, the Supreme Court has prescribed a three-part test for making that determination. I will spare you the details, because in my judgment they're horribly boring and so muddy and subjective as to be almost arbitrary. Basically, it boils down to the en banc Sixth Circuit guessing one way as to how this complicated multi-part test would work out for this specific statutory responsibility of Secretary Brunner, and the SCOTUS today saying, "Nope! You guessed wrong!"

The Supreme Court's written ruling itself is barely more than a single page, and it's per curiam — "by the Court" — meaning that all of the Justices joined in it, but no single Justice took credit for writing it, and no Justices dissented or wrote separate opinions of any sort. So even though it's unusual for them to have acted in this sort of case at all, there's no sweeping rhetoric, no highly charged arguments, no sniping from Justice Scalia at Justice Breyer or vice versa.

As to whether Secretary Brunner is or isn't bungling her reponsibilities under HAVA, that gets precisely one sentence: "We express no opinion on the question whether HAVA is being properly implemented." In that one sentence, the SCOTUS, on behalf of the entire federal court system, did a three-step drop-back and punted the whole question of voting fraud deep — somewhere well past whatever yard-line corresponds with November 4, 2008.

Instead, we get this: "Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [the disputed provision in HAVA] in an action brought by a private litigant to justify the issuance of a TRO." Translation: We think that if we thought about it longer and actually had a full trial on this case, we'd still probably think that this particular requirement of HAVA was not one of the sort that Congress intended private individuals to be able to sue state officials in order to enforce.

So: You're got a right to your vote. You have a right that your vote not be diluted. But you don't have a right to go to the federal courts to get them to stop the state officials who are deliberately screwing off on their job responsibilities (as defined by this particular section of this federal law) in ways likely (and likely intended) to dilute your vote through by voting fraud.

In law school, I was taught an ancient Latin phrase from the Roman civil law that has made its way to us through English common law: Ubi jus, ibi remedium. "For every right, there is a remedy." Today's short ruling from the SCOTUS turns that into: "For every right, there is a remedy (except for when they're messing with your vote in this particular way ... sucker!)." My Latin isn't nearly good enough to come up with a translation for that.

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Political liberals are pointing out that many proponents of judicial conservatism — and I proudly count myself among that principled group — generally scorn courts who are too eager to find implied private rights of action that permit everyone and his dog (or polar bear) to race to federal court to "enforce" some "right." That's a very valid point, and I think it explains (a) why the SCOTUS agreed to rule on this temporary order at all, (b) why it ruled the way it did, and (c) why the order was so short, as well as unanimous and unsigned.

HAVA was the product of a great many political compromises, and especially given the incredible firestorm of controversy out of which it arose, it's remarkable that so many legislators were able to agree upon so much. Merely creating responsibilities for state officials, however, without providing a judicial mechanism for the oversight and enforcement of those responsibilities renders illusory the responsibilities themselves, and renders vulnerable the rights they're designed to protect. Voter registration and voter fraud are both incredibly important subjects, but they're subjects best addressed well before Election Day. And to obtain their political legitimacy with all participants regardless of their partisan affiliation, our society's rules on those subjects must be determined in the first instance legislatively — and those legislative determinations must include decisions on what role the courts should have in resolving these disputes, and when, and within what operating rules, the courts may act. Congress owes all of us — citizens and voters and partisans and courts alike — something better than to have to guess how multi-part tests under a super-broad and very vague civil rights law from 1871 ought to turn out in cases like this one.

Saying all that in so many words in the circumstances of this case, however, would have generated a fuss on the Court. The liberal block would have thought that constituted an implied agreement with the Sixth Circuit on the merits — i.e., that Secretary Brunner is deliberately screwing up by refusing to perform her HAVA job responsibilities. And the conservative block was content to leave that subject alone, and instead to make the implied point that "Yes, this stuff is important enough that we'll take it up even through an extremely rare appeal of a TRO, but we're not going to jump in with both feet until Congress has said we may and told us how."

Thus, even though I agree with the ruling, I'm unhappy with this result. Indeed, I'm unhappy with all the reports of voter fraud that I'm seeing every day. But we can't expect to fix these things on the brink of an election. Win or lose on November 4, further reforms of the laws regarding voter fraud have to be a top priority for the GOP on both a national and state basis.

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UPDATE (Fri Oct 17 @ 11:10 p.m. CST): It's a mistake to assume that the views an advocate presents on behalf of a client exactly correspond to the advocate's own views. But it's still interesting — and arguably supportive of the political liberals' point mentioned above about judicial conservatives being hostile to implied private rights of action (or the enforceability of rights using section 1983, which is a close, but slightly different, inquiry) — to note that the key recent SCOTUS case relied upon by Secretary Brunner and the Dems and cited by the Court's per curiam opinion today, Gonzaga University v. Doe, 536 U.S. 273 (2002), was argued and won by one John G. Roberts, Jr. As I pointed out in a comment below, Chief Justice Roberts, since he was in the majority (which we know even though the opinion is per curiam because there are no dissents), had the power to assign the drafting of today's order. It strikes me as not unlikely, then — since he certainly would be "up" on these issues — that he may have assigned the drafting to himself, and that he may have been as influential in the Court's internal discussions as he presumably was in the briefing and argument of the Gonzaga case in 2002.

UPDATE (Sat Oct 18 @ 12:05 a.m. CST):Although HAVA is silent on whether citizens or citizen groups like the Ohio GOP could sue under section 1983 (a general civil-rights law), section 401 of HAVA, 42 U.S.C. section 15511, itself provides that "[t]he Attorney General [of the United States] may bring a civil action against any State or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other order) as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements under sections 301, 302, and 303." Section 303 is the section of HAVA that Secretary Brunner is flouting. Thus, the U.S. Department of Justice could, if it chose, refile these same claims on Monday morning, and we can be almost certain that the resulting TRO would be affirmed on its merits up through at least the en banc Sixth Circuit. I hope Attorney General Mukasey is looking at that possibility this weekend. And it's entirely appropriate for private citizens who are concerned by the SCOTUS ruling today to contact the DoJ to encourage them to take up the case.

Law professors Jonathan Adler and Rick Hassen have more links and observations about Friday's ruling that are worth a look, too. With due and genuine respect, however (because he is a genuine and knowledgeable specialist in election law, albeit a left-leaning one), Prof. Hassen's badly wrong in characterizing this as a decision based on purported foot-dragging by the GOP (which might bar its claims under the doctrine of "laches"). That argument was considered and rejected by the Sixth Circuit en banc, and not mentioned at all by Friday's per curiam decision.

— Beldar

My question that I wish Bob Schieffer would ask Barack Obama tomorrow night

What do elemental mercury and the Congo have in common? They're the subject of the only two pieces of legislation Barack Obama has passed through Congress as author and principal sponsor. In my evening guest-post at HughHewitt.com, that's what I suggest moderator Bob Schieffer ought to ask Obama about in tomorrow night's debate.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Earlier today, Hugh asked readers here to email him at [email protected] with questions they'd like to see moderator Bob Schieffer pose to Barack Obama tomorrow night. I have only one, but I think it's substantive as any debate question could possibly be:

Senator Obama, during your first two years in the Senate, senior GOP senators Richard Lugar and Tom Coburn invited you to join them as a bipartisan co-sponsor on bills involving securing nuclear weapons stockpiles and making information on government funding available on the internet. Both of those bills passed the Senate by unanimous consent and the House on voice vote — meaning they were so non-controversial that not a single member of Congress went on record against either of them. You were the principal sponsor, and saw passed into law in December 2006, a low-profile bill to provide financial relief and promote stability in the Congo, but it too passed without a single dissenting vote in either chamber.

Your party gained control of the Senate and the House almost two years ago, and since then you've also been one of many co-sponsors on such legislation as the ethics reform bill in 2007, which had 16 other co-sponsors besides you and which passed the Senate by a vote of 96 to 2.

But it wasn't until just last month — after a rather pointed jab from Gov. Palin in her convention speech before 40 million Americans — that you finally managed, as author and principal sponsor, to pass through both chambers of Congress a law of any arguable national significance, Senate Bill 906, the "Mercury Market Minimization Act of 2007." But it has still yet to be either signed into law or vetoed by President Bush. And it, too, passed by unanimous consent in the Senate, and by a roll-call vote of 393 to 5 in the House — which suggests that there's not really much controversy over restricting the foreign export, or the domestic sale by U.S. agencies, of elemental mercury.

Since you still haven't actually been the principal sponsor of a single piece of significant and controversial federal legislation from the drafting stage through passage into law during your almost four full years as a U.S. Senator, why should voters think you'd be any more effective in the vastly harder job of President of the United States?

Sen. Barack Obama pats down his pockets, looking for his legislative record

Additional notes and links:

The nonproliferation bill, which built upon legislation previously authored by Sen. Sam Nunn (D-GA) and Sen. Lugar, started as Senate Bill 1949 in the 109th Congress, entitled the "Cooperative Proliferation Detection, Interdiction Assistance, and Conventional Threat Reduction Act of 2005," and it was sponsored by Sen. Lugar with Sen. Obama as the single co-sponsor. It went nowhere after introduction, but was reintroduced by Sen. Lugar the following year as Senate Bill 2566, re-titled as the "Cooperative Proliferation Detection, Interdiction Assistance, and Conventional Threat Reduction Act of 2006," with Sen. Obama now listed among 26 co-sponsors. That version was reported out of commmittee and placed on the Senate legislative calendar on May 25, 2006, but never received a vote in the full Senate in that form. Instead, its guts were inserted into House Bill 6060, the "Department of State Authorities Act of 2006," which passed the House by voice vote on December 8, 2006, and then passed the Senate by unanimous consent on December 9, 2006. It was thus signed into law as part of Public Law No. 109-472 by President Bush on January 11, 2007, without so much as a single member of either chamber of Congress having voted against it.

The funding disclosure bill started as Senate Bill 2590, entitled the "Federal Funding Accountability and Transparency Act of 2006." It was introduced on April 6, 2006, by Sen. Coburn, with Sen. Obama, Sen. Tom Carper (D-DE), and Sen. John McCain (R-AZ) as original co-sponsors. Eventually it picked up a total of 47 Senate co-sponsors, and on September 7, 2006, it passed the Senate by unanimous consent. It passed the House by voice vote on September 13, 2006. It, too, was thus signed into law as Public Law No. 109-282 on September 26, 2006.

Public Law No. 109-456, the 2006 bill to "to promote relief, security, and democracy in the Democratic Republic of the Congo," was estimated by the Congressional Budget Office to cost "about $50 million over the 2007-2011 period," which of course is only a fraction of the amount in pork earmarks Sen. Obama has sought and obtained for a region in substantially greater need of "relief, security, and [especially] democracy" — Illinois.

More judicial tyranny from Obama-style judges: CT courts overturn state law to recognize gay marriage

My latest guest-post at HughHewitt.com criticizes activist judges on the Connecticut Supreme Court who've today imposed their own views over the will of the majority of their state's voters in the guise of interpreting their state constitution. I'm not against same-sex marriage, but I'm against imposing it on an unwilling majority of the public by judicial decree. And I'm very strongly against dishonest political candidates who say they oppose gay marriage, but will appoint activist judges who will issue such decrees.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

In Kerrigan v. Commissioner of Public Health, over the protests of three members of the court (as expressed in three dissenting opinions), a four-member majority of the Connecticut Supreme Court has overturned as "unconstitutional" a statutory system whose long-standing components were passed by Connecticut's lawmakers and signed into law by its governors over many years, and has instead decreed that henceforth in Connecticut, "same sex couples cannot be denied the freedom to marry." Here's the majority's own summary of its reasoning:

We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.

Because the court relied upon its interpretation of the equal protection provision in the Connecticut state constitution rather than upon the comparable provision in the Fourteenth Amendment to the United States Constitution, there is effectively no chance that the U.S. Supreme Court will review today's decision. That decision is now the law of Connecticut, subject only to being overturned by the Connecticut Supreme Court itself or by an amendment to the state constitution.

The judges who made up the majority in this ruling are precisely the kinds of judges whom Barack Obama and Joe Biden want to appoint the the federal bench. That's why Obama and Biden voted against confirmation of both Chief Justice John Roberts and Justice Sam Alito. Instead, they want judges who will make law from the bench — and especially laws on the most controversial subjects (like gay marriage) that couldn't possibly gather a majority vote in Congress and a presidential signature. It's worse than meaningless, but rather a complete fraud, for Obama and Biden to tell voters that they oppose gay marriage when they will appoint judges who will bring about gay marriage by judicial decree.

This decision will alarm and dismay two partially overlapping groups of people: (a) those who believe that recognition of single-sex marriage will ultimately destroy the traditional institution of marriage and foster other bad effects in society, and (b) those who decry unrestrained judicial activism as a tyrannical seizure of political power by rogue judges in a manner that undercuts the legislative and executive branches of government, thereby rendering impotent the political decisions made by democratic majorities.

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Personally, although I understand and respect the views of those in the first group, I count myself only among the membership of the second. I think that government is much to blame for the often-tragic status of the traditional family in today's America, and there is much I would do to change those policies to promote stronger families. Were I a state legislator or governor, I would not cast my voe to deny gay couples the right to marry. But no combination of a state legislature and governor in America has yet agreed with that position.

Rather, the consistent decisions of those branches of state governments — which are regularly and directly elected by majorities of the voting public in their respective states — has been to adhere to the traditional definition of marriage as being between one man and one woman. And although I ultimately find them less persuasive, there are legitimate arguments to be made for that position that are not based on revulsion toward homosexuality or a desire to penalize homosexuals. I therefore would not demonize or seek to de-legitimize those who disagree with me on this issue. And I would continue to try to work toward obtaining majority support for what I believe to be pro-family changes in the law, and to persuade the majority to the view that pro-family isn't necessarily anti-gay.

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But I'm very definitely a member of the second group: As a matter of constitutional law and basic principles of civil government, this is another well-intentioned but awful decision — one that may, ironically, end up frustrating rather than advancing the ultimate goal of its proponents. Using courts to cram this sort of policy down people's throats — without majority support, and in fact in defiance of majority opinion — is a very bad plan.

Those who follow, or much care about, the constitutional law here will quickly note that the Connecticut Supreme Court has played fast and loose with its equal protection clause. In equal protection analysis, the outcome is almost always determined by the framework in which the courts choose to analyze a government classification. If the government is classifying people on the basis of race, for example, long-standing precedent from both federal and state courts typically use a "strict scrutiny" approach, under which the government must offer up a "compelling purpose" to support its decision to treat people differently from one another because of their respective races.

Classifications based on other distinctions, however, traditionally were treated as valid so long as they have a "rational basis" — a vastly easier standard to satisfy. The state discriminates, for example, against the sightless when it requires people who get drivers licenses to pass a vision test. But because sightedness — unlike, for example, race — is not a classification that has traditionally been subjected to "strict scrutiny" analysis under the constitutional precedents interpreting state or federal equal protection guarantees, the state merely need show a rational reason for treating the sightless differently. They meet that requirement by showing that people who can't meet the vision requirements are more dangerous drivers. And as for whether someone with an uncorrected vision of 20/100 is or is not permitted to drive without corrective lenses, that sort of fine calibration of the state's classification system the courts generally leave to a combination of state legislatures and state agencies, upholding their decisions unless they are so genuinely arbitrary as to have no correlation to reality.

In same-sex marriage cases, therefore, the constitutional equal-protection decision often is compelled by the initial question: What kind of scrutiny will the courts apply to the state decision to deny marriage to same-sex couples? If that decision is subject to an ordinary level of scrutiny, then the state may meet the "rational relationship" test merely by asserting its belief, whether correct or not, that traditional marriages promote societal interests like child-rearing — and the courts won't further second-guess that assertion.

The Connecticut Supreme Court today, however, decided that the decision to deny the right to marry to same-sex couples ought to be judged by a an intermediate standard, a "heightened-scrutiny" analysis like that sometimes (but not consistently) used by the U.S. Supreme Court in cases involving gender discrimination. Many law review articles — containing hundreds of case citations and millions of words of argument — have been, and will continue to be, written on whether this is a legitimate approach as a matter of constitutional law.

Ultimately, however, the decision to apply this standard, and the results reached once a court decides to use it, has no greater constitutional legitimacy than the individual judges' own personal views on any given policy question. It boils down to saying, "On really controversial subjects that provoke the greatest passion among the voters, we judges are going to declare ourselves smarter and wiser than the legislature and the executive whom the voters have elected, and our decisions trump all of theirs." And thus is your democratic vote — and those of your representatives in the state and federal legislative and executive branches — cheapened, even eviscerated, by judicial tyrants.

— Beldar

SCOTUS decision applauded by Obama prompts federal judge to order release into our national capital of 17 Chinese Muslims captured in terrorist training camps in Afghanistan

We catch them in terrorist training camps in Afghanistan, where they'd gone to be taught with the cooperation and under the protection of the Taliban. Now, as laid out in my latest guest-post at HughHewitt.com, a federal court has said that because their home country, China, will imprison them if we return them there, we have to let them run loose in Washington, D.C., starting this Friday.

Barack Obama approves of the SCOTUS case which is compelling this result, Boumediene v. Bush.

This makes me heartsick. This makes me fear for America. The inexorable consequences of your vote on November 4 will either save or cost American lives, and not just of soldiers, but of innocent civilians.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Immediately after it was released this summer, Barack Obama applauded the U.S. Supreme Court's 5/4 decision in Boumediene v. Bush, which for the first time extended rights under the U.S. Constitution to foreigners captured and held abroad based on their activities abroad. To reach that result, the Supreme Court had to declare unconstitutional a statute passed by Congress with bipartisan support and signed into law by the president which gave these individuals substantive and procedural rights comparable or superior to those we give to our own sons and daughters in uniform. It also had to ignore and/or mischaracterize decades of prior federal precedents holding that such foreigners had no right to claim the U.S. Constitution's protections through a writ of habeas corpus — essentially extending the protections of the U.S. Constitution to the entire world.

Now as the inevitable consequence of that ruling, seventeen hard-core Islamic jihadists who'd come from their homes in China to train at terrorist camps in Afghanistan — captured there by our armed forces, and held since at Guantanamo Bay — are on the brink of being released this week, not for return to China, but into the general population of our nation's capital, Washington, D.C.:

A federal judge ordered the Bush administration Tuesday to immediately free 17 Chinese Muslims from Guantanamo Bay into the United States, rebuking the government in a landmark decision that could set the stage for the release of dozens other prisoners in Cuba.

U.S. District Judge Ricardo M. Urbina said it would be wrong for the government to continue holding the detainees, known as Uighurs (WEE'-gurz), who have been jailed for nearly seven years, since they are no longer considered enemy combatants. Over the objections of government lawyers who called them a security risk, Urbina ordered their release in Washington D.C. by Friday.

"Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful," Urbina said in a ruling that brought cheers and applause from a standing-room only courtroom filled with dozens of Uighurs and human rights activists.

One need not be a constitutional scholar to see the nonsensical premise to Judge Urbina's quoted sentence. He's talking about the United States Constitution. And he's extending its protections to foreigners. That is indeed the appalling logic of Boumediene, and that's why (as I've written often on my own blog) I'm convinced that decision easily ranks among the top five worst decisions in the history of the United States Supreme Court.

These are not "innocent civilians" swept up at random. Rather, they are hard men, Islamic fanatics who left China so they could train in the ways of terror under the approving eyes and example of the Taliban in training camps in Afghanistan. It may well be that these men's main intention once was to become terrorists against the Chinese government, and the Chinese government is indeed eager to "re-patriate" them, meaning to put them into Chinese prisons. But that they may be a danger to China does not mean that they're not also a danger to the United States!

Former federal anti-terrorist prosecutor Andrew McCarthy put this latest national peril into exactly the right context yesterday, apportioning blame appropriately between the courts and the lawyer-driven position of the Administration:

This is the very nightmare scenario I warned about. The courts' steps are outrageous, but predictable and inevitable. A lot of the blame here, however, goes to the administration and the military. They have long taken the position that radical Islamic ideology is not the problem, and that we need only worry about actively those taking up arms against the United States. They don't want us to talk about jihad — the better to keep us in the dark about jihadist ideology. Thus, the government rationalizes, the Uighurs are not a threat to us, only to the Chinese. That was all the daylight the judges need to say: OK, then release them in the U.S., since no other country — except China, where they'd be persecuted — will take them. The government's self-defeating argument is preposterous. Jihadists — and there is not question that the Uighurs are jihadists — do not recognize distinctions based on the Westphalia world of nation-states. In their view, it is Dar al Islam or Dar al Harb: i.e., you are either part of the realm of the Muslims or the realm of war, and the goal is to turn Dar al Harb into Dar al Islam by any means necessary. Releasing trained jihadists into the United States on the theory that their beef is with the Chinese and they have no problem with us would be a delusional act of suicide.

I agree with Mr. McCarthy that to some extent the Bush-43 Administration is to blame for caving in to the Hard Left's viewpoints. But you can guarantee that an Obama Administration will be (a) even more naive in the positions it takes in the courts and (b) absolutely certain to appoint even more expansionist judicial activists eager to extend new rights to our enemies at home and abroad.

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UPDATE (Tue Oct 7 @ 7:35 p.m. CST): The White House has issued a statement deploring the decision, announcing that it will be appealed, and advising that "[c]onsistent with the safety of our citizens and the safety of the Uighurs themselves, the United States will continue working to find a country to which these men could be transferred."

Andrew McCarthy has more about the ruling here. Among other things, he notes that John McCain should point out that he — and the judges and prosecutors he would appoint — will refuse to go along with treating the global struggle against Islamic fanaticism as a mere law enforcement matter, whereas Barack Obama would be perfectly happy to just let the federal courts handle all this and return to that Clintonista-type 9/10/01-mentality.

— Beldar

Did someone feed Palin answers to give Cameron for the questions from Couric which she'd ducked?

In an afternoon guest-post at HughHewitt.com, I express an opinion contrary to my good friend Patterico's about whether Gov. Palin had answers for Katie Couric about what periodicals she reads and SCOTUS decisions she disagrees with, but chose not to share that info.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

My very good blogospheric friend and fellow Texas Law School alumnus Patrick Frey (a/k/a Patterico) — who is as perceptive a watchdog of the mainstream media, and especially of his current hometown paper, the Los Angeles Times, as has ever lived and breathed and blogged — is also never shy to express his sincere and natural skepticism about even conservative figures.

He proved this in a short post yesterday that he sardonically entitled Palin Knew the Answers, She Just Didn't Want to Say Them. In it, he expressed incredulity about Sarah Palin's post-debate explanations for some of the subjects on which she'd been non-responsive in her interviews with CBS News' Katie Couric. And the post is so short that I can't discuss it without quoting the whole thing, for which I think he'll forgive me this once (italics and link in original):

The New York Times’s Caucus Blog:

Ms. Palin explained that she stumbled in the Couric interviews not because she didnt know the answers, but that she was annoyed with the interview because she thought the questions did not focus enough on the qualities needed in a vice president. She promised to try to be patient in the future.

I’m looking for more genuineness and honesty. Instead I’m getting answers that I don’t believe.

One last thing you should know before I share my own take on this: Patterico has a diverse readership who conduct high-quality debates in his comments, and a short post like this may fairly be read as his gutsy invitation to readers to take issue with his opinion — and in this instance, many of them already have.

As for my take, it begins this way:

Patterico, my excellent friend, take a step back. Look at your own post. At the end of it, you express a terse opinion, which of course is your right and, indeed, the essence of punditry. Above that there are two sentences that you've quoted from elsewhere, and above that a short introduction to the block-quoted material, from which you quite properly hung your hyperlink.

So what jumps out at you about your own original post, my friend?

Would it be any more obvious to you if, instead of your opinion being founded on a single-sourced report from an NYT in-house blog — something subject to even less editorial control and discipline and ethics than the NYT's normal news reporting — this had come instead from the LAT? Are you entirely comfortable having formed your opinion based on "facts" or summaries of facts vouched for only by, and filtered through, the New York Times? Or are the alarm bells ringing yet?

*******

If Patterico had gone to the NYT blog's own source before writing his post — not just the Fox News' report linked here and in the NYT blog piece, but also Fox News' very rough transcript, or to the video (which Fox has re-run incessantly since the interview) — he would have discovered that actually, Gov. Palin first gave a self-critical evaluation (using hindsight) of her overall performance in the Couric interviews. Then she gave more specific and very discrete explanations for her answers to Couric about (a) what publications she reads and (b) what SCOTUS decisions she disagrees with.

The NYT collapses all of that discussion into a single unflattering and implausible summary — one which, I respectfully submit, does not fairly match what Gov. Palin actually said.

Patterico, in an update to his original post, allows how more or better context might have been useful, but for that he went not back to the Fox News story or the transcript or the video, but a post from Jake Tapper from ABC News. That would be the same Jake Tapper who earlier this year uncritically reported that Gov. Palin was a member of the Alaska Independence Party without even bothering to check the conclusive and public voter registration records, a colossal mistake that ought to have gotten him and Elisabeth Bumiller of the NYT both fired. Tapper may be a nice guy, interesting to read, and this time he did indeed provide a lot more of Gov. Palin's explanation for her original non-answers and her present ones — but reliable on Sarah Palin matters? Not even close. Like me, Patterico cross-examines people for a living and knows the danger of double hearsay. Go to the source, my friend!

Specifically, in her own words (as established by the Fox News video), here is the general explanation as to why Gov. Palin thinks she came off poorly overall in the Couric interviews:

Well, OK. I'll tell you. Honestly. The Sarah Palin in those interviews is a little bit annoyed. Because it's like, no matter what you say, you're going to get clobbered. If you cease to answer a question, you're going to get clobbered on the answer. If you choose to try to pivot and go on to another subject that you believe that Americans want to hear about, you get clobbered for that, too.

But, in the Katie Couric interviews, I did feel that there were a lot of things that she was missing, in terms of an opportunity to ask what a V.P. candidate stands for. What the values are represented in our ticket.

I wanted to talk about Barack Obama increasing taxes, which would lead to filling jobs. I wanted to talk about his proposal to increase government spending by another trillion dollars. (AUDIO GAP) that he's made about the war that I think in my world — disqualify someone from consideration as the next commander in chief. Some of the comments that he's made about Afghanistan, what we're doing there, supposedly, just air raiding villages and killing civilians. That's reckless and I want to talk about things like that.

So, I guess I have to apologize for being a bit annoyed. But, that's also an indication of being outside of that Washington elite, outside of the media elite, also. And just getting to talk to Americans without the filters and let them know what we stand for.

Katie Couric is heir to Dan Rather's anchor chair at the same New York-based TV network which was willing to re-publish (and then defend) obviously forged documents in an attempt to destroy a national GOP candidate just four years ago. If for no other reason than that, It would have been appropriate for Gov. Palin to be guarded in her dealings with Ms. Couric.

It's also fair to say that by the latter stages of their interviews, Ms. Couric had indeed shown a distinct lack of interest in campaign policy issues. Can one seriously blame Gov. Palin for wondering whether Ms. Couric's near-exclusive focus was, instead, on making Gov. Palin look like an ignorant hayseed?

*******

Reasonable minds might still differ about that, I suppose. So let's go on to Gov. Palin's more specific explanation for her evasive response on the questions about the specific publications she regularly reads:

So, my response to her. I guess it was kind of filtered. But, I was sort of taken aback, like, the suggestion was, you're way up there in a far away place in Alaska. You know, that there are publications in the rest of the world that are read by many. And I was taken aback by that because I don't know, the suggestion that this was a little bit of perhaps we're not in tune with the rest of the world.

I, for one, do not think it's entirely implausible that Gov. Palin might have thought she detected at least a hint of regional snobbery in Couric's question. Watching the interviews, I thought I detected quite a bit more than a hint, and of course, that didn't include anything Ms. Couric may have said off-camera or that ended up on the cutting room floor.

More to the point, it's entirely implausible that Gov. Palin genuinely doesn't know what newspapers and magazines she reads — or worse for her, but clearly insinuated both by Couric and by the NYT blog — that she really reads none. To believe that, we would have to reject outright the part of Kaylene Johnson's biography of Gov. Palin in which she describes an athletic yet bookish girl who grew up in a state where it's dark and freezing outside all day and all night for half the year (at page 21-22):

... From the time [Sarah Palin] was in elementary school, she consumed newspapers with a passion. "She read the paper from the very top left hand corner to the bottom right corner to the very last page," said [her sister] Molly. "She didn't want to miss a word. She didn't just read it — she knew every word she read and analyzed it."

Sarah preferred nonfiction to the Nancy Drew books that her classmates were reading. In junior high school, [her sister] Heather — a year older in school — often enlisted Sarah's help with book reports. "She was such a bookworm. Whenever I was assigned to read a book, she'd already read it," Heather said.

Sarah's thirst for knowledge was nurtured in a household that emphasized the importance of education. There was never any question that all the Heath kids would go to college. With her love for newspapers and current events, Sarah majored in journalism and minored in political science. Her brother, like their father, became a teacher. Heather works for an advertising firm. Molly is a dental hygienist.

Can one seriously credit Gov. Palin's entire family, in their interviews with Kaylene Johnson back in 2007, with fabricating all of this about Sarah being a bookworm who read newspapers cover to cover, even before there was an internet? Can we further assume that Sarah Palin doesn't read newspapers, but she did bother to earn a degree in journalism — just so that she could give a more plausible fabricated answer a week after a 2008 interview with Katie Couric in which she'd be asked about what newspapers she reads?

*******

On the SCOTUS decisions, Gov. Palin flatly confessed that she had erred in permitting her caution and annoyance to cause her to clam up. Again from the transcript of the Cameron interview (two "(INAUDIBLE)" notations in the transcript replaced by me with her actual words, still in brackets, but based on my repeated listening to the video):

CAMERON: But, as a conservative, there are some in the Republican Party who would expect a vice presidential nominee to understand judicial conservatives and to have something that they might object to.

PALIN: And that's fair. Right. And on that one, truly I shouldn't have been so [flippant] and [just sort of brushed aside] that. Because that was an important question and I should have answered it.

And yes, I can cite a lot of cases that I absolutely disagree with the Supreme Court on.

At Mr. Cameron's invitation, she then proceeded to discuss three particular cases. One, the most recent Exxon Valdez decision, Gov. Palin had also discussed earlier this year, long before her selection by McCain, in a video that one of Patterico's guest bloggers posted earlier this week. But in the Cameron interview, Gof. Palin went on to discuss all three cases in terms that were absolutely accurate and rational. Besides the obvious Alaska connection on the Valdez case, she also described Kennedy v. Louisiana, as to which she expressed outrage that the SCOTUS had restricted states' rights to impose capital punishment for child rapes if they think that fitting, and Kelo v. City of New London, which she said she'd been aware of (and had disapproved of) ever since she handled eminent domain matters as a mayor.

Now, perhaps a non-lawyer being quizzed by Katie Couric about SCOTUS cases should throw caution to the wind and start rattling off names and holdings, dimly remembered or otherwise, of cases. And maybe she should have expected everyone to be as forgiving of her if she mixed two cases up, or muffed a name, in the same way that everyone ended up just laughing and saying, "Good old Joe!" when lawyer and con-law teacher Joe Biden preposterously told 70 million people on Thursday night that Article I of the Constitution is all about the Executive Branch.

But on the other hand, the great big TV networks and newspapers like the NYT made a big deal when Gov. Palin merely flubbed a general's rather unusual name during the Veep debate. It seems reasonably certain that they would have similarly exploited any mistake by Gov. Palin in a pre-debate discussion of SCOTUS precedents. Perhaps she should have overcome her concerns anyway, but based on what's actually happened since then, it's impossible to say that Gov. Palin's concerns didn't even exist at the time of the Couric interviews, and that she's just fabricated them later to cover for ignorance.

Moreover, it's entirely likely that as a former mayor and then governor of Alaska, she would know and have strong views about these three cases in particular. Now, I suppose it's possible that the handlers not only had to inject knowledge of these cases into her mushy brain, but also had to pick cases that she might plausibly have had occasion to learn of. And if we're going to suppose that without any proof, then it's certainly easy to further suppose that someone whispered all of these answers into Gov. Palin's ear just before her interview with Carl Cameron.

Indeed, if we're going that far, why not go ahead and presume that Gov. Palin had a hidden ear-piece during the Cameron interview, and that Karl Rove was next door with a walkie-talkie, like in "Mission: Impossible"? Once we're comfortably settled into a sort of Matthew "I'll believe absolutely anything (so long as it's bad) about Sarah Palin" Yglesias mode, there's just no limit to the unflattering things we can suppose about Gov. Palin.

But why get into that mode?

After a solid two weeks in which we read in the NYT and heard on the CBS Evening News that Gov. Palin is a complete ditz who can't string together two complete sentences, especially under pressure and on-camera, we saw those propositions dramatically disproved on national TV.

If I'm going to start drawing unsupported inferences, friends and neighbors, I prefer to do so based on what I've seen with my own eyes and heard with my own ears during the unfiltered debate — not some narrative that NYT or CBS News has been peddling in close synchronization with the Hard Left and Gov. Palin's political opponents. I prefer reasonable inferences, consistent with a popular and effective state governor's objective record of accomplishments, over wild and insulting speculation which, even if true, would still leave unexplained how Gov. Palin could perform at anything remotely like the level we watched on Thursday.

How about you?

— Beldar

SCOTUS admits blunder on UCMJ, but says "Nevermind," and shows again how Obama's model judges pull constitutional law from thin air

When the Supreme Court is so wrong, I take small pleasure in being right in predicting that they'll perversely continue being wrong. But I nevertheless claim that credit in my latest guest-post at HughHewitt.com.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

On my own blog, I write a lot about politics, but also a fair amount about law — always with the intention of expressing my opinions in language that any well-educated layman can understand. On July 6, 2008, I wrote at my usual tedious length about the Supreme Court's embarrassing mistake in the case overturning Louisiana's capital sentence for a child rapist, Kennedy v. Louisiana, in which Justice Kennedy, writing for a five-Justice majority (which also included Justices Stevens, Souter, Ginsberg, and Breyer), insisted that neither any other state nor the federal government permitted the death penalty for child rapists. That was a major premise for their holding that "evolving standards of decency" under their "living, breathing" version of the Eighth Amendment no longer permitted Louisiana's death sentence for convicted child rapist Patrick Kennedy. And that statement was absolutely wrong: Congress and the president had recently acted to amend the Uniform Code of Military Justice to permit the death penalty for exactly that crime.

Even the editorial board of the Washington Post had urged the Supreme Court to grant rehearing in the case to address this enormous blunder. Here's what I predicted, however:

There assuredly will be a motion for rehearing filed, and even if there's not, the Court could consider reconsidering the case on its own, sua sponte. But only a naive wanker would expect the Emperor of America, Mr. Justice Anthony Kennedy, or any of the other four Justices who joined his opinion for the majority, to actually change their votes. At most, those five will permit limited supplemental briefing by both sides. There won't be additional oral argument. And in short order, Justice Kennedy will write a short supplemental opinion. It will announce the denial of rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Today the Supreme Court did exactly what I predicted.

What shocked me about the Supreme Court's blunder was that it demonstrated how little the Supreme Court knew about the Uniform Code of Military Justice. And yet in Boumediene v. Bush, those same five Justices had, just a month earlier, overturned as unconstitutional a provision of a law passed by Congress and signed by the president that restricted the availability of habeas corpus as a remedy to individuals detained at Guantanamo Bay Naval Station as enemy combatants. It did so, in large part, based on the notion that the alternative procedures crafted by Congress and approved by the president in the Military Commissions Act were constitutionally inadequate — even though those provisions were modeled upon, and provided procedural and substantive protections generally comparable to those which govern our military personnel under, the UCMJ.

In a sentence: In June the SCOTUS said UCMJ-based provisions are inadequate; in July the SCOTUS proved that it has no clue what the UCMJ actually says.

Now, I emphatically do not believe that one need be a lawyer to be qualified to be president or vice-president. That's why we've had an Attorney General and a Department of Justice [see update below] since the founding of the Republic. Indeed, the fact that neither John McCain nor Sarah Palin are lawyers themselves is a definite feature — not a bug — of the McCain-Palin ticket!

But both Barack Obama and Joe Biden are indeed lawyers, and Barack Obama frequently reminds us that he's even been a "professor of constitutional law" (which is a slight overstatement, but whatever). He immediately applauded the Boumediene decision:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

That was spectacularly clueless, and one of the many occasions on which Obama has demonstrated that for all his fine degrees from Columbia and Harvard Law, he's ignorant of world history. First, no one at Nuremberg was permitted to file a habeas corpus petition in the American courts. Second, the Military Commissions Act provides substantially greater procedural and substantive protection than what any of the Nuremberg defendants had.

Moral: A non-lawyer who will seek competent legal advice is far less dangerous than a lawyer who thinks he knows history and the law, but is demonstrably wrong about both. And every one of the SCOTUS justices whom Barack Obama has held up as "models" in the mold he's promised to appoint as president were among the majority who blundered in Kennedy v. Louisiana, and who pull their interpretations of the Constitution out of thin air to match their own sentiments.

Rights for foreigners accused of being terrorists that even our own service personnel don't get. A "living, breathing" Constitution whose answers, my friends, are blowin' in the wind. You do get an indirect vote on whether that's what you want — but you have to cast it through your choices for POTUS/VPOTUS and (even less directly) U.S. Senators. Judicial appointments are just one more issue on which this year's presidential election presents you with a stark, vivid choice.

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UPDATE (Thu Oct 2 @ 2:22 a.m. CST): Proving my point about the dangers of lawyers who are convinced they know history that turns out to be just not quite so, an astute commenter on my own blog — a non-lawyer, in fact! — pointed out that although the Attorney General was indeed part of Washington's first cabinet, the Department of Justice as an institution only dates back to 1870. Mea culpa.

— Beldar

The important point that Kennedy v. Louisiana proves about Boumediene v. Bush

This is a post in which I attempt to connect some dots between two awful Supreme Court decisions. As usual, I meander a bit en route. You can skip to the numbered paragraphs and the bold-faced stuff near the end if you grow impatient.

*******

Friday night, on the anniversary of our nation's independence, I much enjoyed the televised presentation from Washington of the Marine Drum and Bugle Corps and the National Symphony playing a series of John Phillip Sousa marches. Some of them — "The Washington Post" and "Semper Fidelis," and of course "The Stars and Stripes Forever" — I still have (mostly) memorized from my trumpet-playing days in the Longhorn Band during college and law school. Thus, the fingers on my right hand twitched as I listened, and in my imagination at least, I could still hit and hold all the high notes, and my double- and triple-tonguing was immaculate. I'm a fan of many, many types of music, and that includes marches like Sousa's written for the classic military band.

Inevitably, I was reminded of the old cliché: "Military justice is to justice as military music is to music." Military music and military justice are splendid indeed, and their learned practitioners are certainly worthy  of respect. But they aren't to everyone's taste, and (to pick another artistic metaphor) they tend to be rendered on a more limited shape and size of canvas, using a more limited palette of colors. Sousa isn't famous for emotional violin solos or jammin' electric lead guitar riffs.

*******

I'm reasonably certain that I never heard a single professor do much more than briefly mention the Uniform Code of Military Justice while I was at law school or taking my bar review course. I've never been in the military, and I lack the special legal training that military lawyers receive when they join any service's Judge Advocate General's corps. The bits and pieces I know come from a couple of real-life cases back in the early 1980s and the mid-1990s that required me to dip a civilian toe, as consulting civilian counsel, into the edges of those waters (to switch metaphors once again). One of those cases involved allegations that a male Army officer had raped a female Army officer, and the other involved a homicide among enlisted personnel that may or may not have been criminally culpable. Both cases potentially involved capital charges — indeed, the alleged rape case also involved allegations of oral sex, which was treated as "sodomy" under the UCMJ at the time and was also potentially a capital crime. Even all these years later, taste and privilege issues still prevent me from going into more detail about either case, even though each was among the most fascinating I've ever seen. But regarding military law in general and the UCMJ in particular, I'm perhaps a step ahead of the average American civilian courtroom lawyer or judge in that I'm quite confident about how little I know that I would indeed need to know to be an effective JAG lawyer on a regular basis.

I'm therefore completely unsurprised that in connection with the Supreme Court's decision late last month in Kennedy v. Louisiana, both sides, all the amicus briefs, and all nine Justices and their respective law clerks missed the 2006 passage of an amendment to the UCMJ which made child rape potentially a capital offense. Probably none of those lawyers themselves had been JAG lawyers, nor had they dealt with UCMJ capital cases, and they just didn't think to look at that unique and slightly obscure subset of American jurisprudence through which Congress directs our military forces how to maintain their own system of justice in parallel to the civilian justice system. Yes, someone should have thought of it; yes, it's embarrassing to them all that nobody did.

No less than the editorial board of the Washington Post now urges the SCOTUS to rehear the case (h/t InstaPundit):

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case — even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

There assuredly will be a motion for rehearing filed, and even if there's not, the Court could consider reconsidering the case on its own, sua sponte. But only a naïve wanker would expect the Emperor of America, Mr. Justice Anthony Kennedy, or any of the other four Justices who joined his opinion for the majority, to actually change their votes. At most, those five will permit limited supplemental briefing by both sides. There won't be additional oral argument. And in short order, Justice Kennedy will write a short supplemental opinion. It will announce the denial of rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Regular readers will know that I'm a strong proponent of the death penalty for appropriate cases. Were I a state legislator, however, I probably would not support its imposition for any sort of rape case. But nobody's elected me to a state legislature, and a majority of the state legislators of Louisiana, along with its then-governor, came down in favor of giving juries the option of imposing the death penalty for the most egregious child rapes. I condemn this Supreme Court ruling, as I have all of the Supreme Court's recent Eighth Amendment decisions that purport to be based on "evolving standards of decency." That entire line of cases is a transparent lie, and an example of the most pernicious sophistry that lawyers can create: How else but through double-talk and evil magic could the least representative branch of either the federal or state governments strip the most representative branches of their intrinsic power to weigh, and then determine, what community standards are to be, and whether and how they ought to "evolve"? (Insert obligatory references to Orwell and Goebbels here.)

In his confirmation hearings, Chief Justice John Roberts talked repeatedly of the importance of "judicial modesty." In this ruling, as in several others in the past few years, Anthony Kennedy has not only joined but led the liberal wing of the Court down paths of gross judicial immodesty. What was Roberts talking about? He was talking about the exact opposite of what Kennedy's busy doing.

The abundantly plain truth is that rulings like this one come from nothing more or less than Anthony Kennedy's sense of how things ought, in general, to be. He's acting as an emperor, not a judge. And the fig leaves of judicial reasoning in which he's surrounding his decrees become increasingly transparent with each such ruling.

*******

Kennedy v. Louisiana is a clear example of the imperious judiciary, but in the big picture, it's not nearly as important as Justice Kennedy's travesty of a majority opinion this Term in Boumediene v. Bush. In that decison, with no directly supporting precedent and a trampling of such close precedent as was on point, Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer extended American constitutional rights to foreigners held by the American military on foreign soil who are alleged to have engaged in illegal warfare against America entirely from abroad. But even though it lacks international or national security significance in and of itself, Kennedy v. Louisiana does indeed prove an important point about Boumediene and the Justices who decided it — a point that I haven't seen anyone else note yet:

1. It is impossible to dispute that during the course of this Term, Justice Kennedy and all eight of the other members of the SCOTUS were obliged, by the necessity of making a ruling in Boumediene, to consider the ins and outs, the nuts and bolts, and all of the pros and cons of the comprehensive statutory system — passed by majorities of both houses of Congress and then signed by the president — for the express purpose of providing both substantive and procedural justice to the detainees held at Gitmo and elsewhere during our nation's waging of the Global War on Terror.

2. That system was expressly modeled upon, and in most of its substantive and procedural complexities it adheres to, the Uniform Code of Military Justice.

3. Every member of the Court, and every one of their law clerks and staff members — including each of the five Justices in the Boumediene majority — have now been conclusively proven by their screw-up in Kennedy v. Louisiana to be utterly ignorant of even such important details about the UCMJ as what crimes under it are punishable by death.

Friends and neighbors, the same Justice Kennedy who's been shown a fool on UCMJ matters in the civilian Kennedy v. Louisiana case could not help but be equally a fool on remarkably similar matters in Boumediene v. Bush. Five of the same Justices who didn't know enough about the UCMJ to know that it currently allows for capital punishment for child rapes nevertheless felt righteously, omnipotently competent to plunge themselves and the rest of the civilian federal courts into overturning — and then taking over, via their habeas corpus powers — the UCMJ-based system for determining the fates of these military prisoners.

The emperor is not only naked — he's now shown himself to be capable of stupid and ugly acts, too.

Beldar on Yoo on Boumediene; and related thoughts on Obama's preference to rely on criminal prosecutions to fight international terrorists

I respectfully concur, without reservation, with Prof. John Yoo's observations on Boumediene.

*******

Sen. Barack Obama, meanwhile, has put himself squarely back into a 1993-style, early-Clinton Administration mode of considering our conflict with radical Islamic fundamentalists as being just another exercise in crime-fighting. Crank up the grand juries. Maybe we ought to hire some extra lawyers, whot whot?

War? What war? Why, we'll litigate those barbaric bastards until they cry "Uncle!" That'll show 'em.

Our enemies are at war with us. They want to hack off our heads and show the video on the internet; failing that, they'll be content with blowing us to smithereens by the tens of thousands. And for our part, in response? Well, I believe Sen. Obama is deadly serious in threatening our enemies with potential black marks on their respective permanent records. Saith the Obamasiah:

And, you know, let's take the example of Guantanamo. What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, "Look, this is how the United States treats Muslims."

So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws.

I pray tonight for the continued vigilance of the host of angels who, together, are struggling to keep Andrew McCarthy's head from exploding. If you don't already know what the co-lead prosecutor from Obama's "model case" has to say about Boumediene in particular, and using the civilian justice system to fight terrorism in general, start with this essay; then this; then read a review or three of his new book, or better still, the book itself, which is aptly titled (in description of people like the junior senator from Illinois): Willful Blindness: Memoir of the Jihad. Suffice it to say, McCarthy's first-hand experience proves Obama to be a spectacular, mind-boggling fool on this entire subject.

Obama is already living in a fantasy world, one in which cold-hearted dictators will swoon in his presence like the hyperventilating fans at his rallies. But at this rate, I expect Obama to suggest, come October in one of the presidential debates, that if we'll just modify some of our spotlights to project a giant bat-image against the clouds, Commissioner Gordon will be able to mop up what's left of the war in Afghanistan within a fortnight. 

Ask yourself this: Can you imagine a serious political candidate for any office saying such a thing in October 2001? Can you imagine a Supreme Court so intruding itself into military and national security affairs then?

But these idiots have completely forgotten 9/11. They've willed it down the memory hole, because they're so damned focused on condemning George W. Bush, who of course is the preeminent source of evil in the world today.

I don't question their patriotism. I question their sanity.

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UPDATE (Tue Jun 17 @ 4:25pm): Here's Mr. McCarthy's interim reaction to Obama's comments, as well as to a remarkably silly George Will column that's partly sympathetic to the Boumediene majority opinion.

Boumediene isn't a rebuke to Bush, but a judicial grab of power over war from the Executive and Legislative Branches

Some people seem to think the current question about the detainees at Gitmo is whether Dubya can simply lock them up and throw away the key without ever giving any of them any sort of trial.

For example, in comments to my post from Thursday deploring the Supreme Court's decision in Boumediene v. Bush, one reader wrote:

The Supreme Court has simply said that we have to demonstrate that there is some legitimate reason for continuing to hold them now and you call that the worst Supreme Court decision ever??

Similarly, another reader commented:

One of the most conservative courts in history has simply said that Bush&Co. cannot abrogate the most fundamental part of the rule of law, the right to be charged with crimes instead of being held indefinitely, in presidential frat boi pique.

These comments are not just wrong, they are spectacularly wrong.  No one could possibly hold these views unless he or she is badly confused by a highly advanced stage of Bush Derangement Syndrome, or else he or she has been asleep for the last five years (and didn't bother to get even remotely up to speed on the prior Supreme Court decisions on Guantanamo Bay detainees).

These commenters seem to be unaware that, in direct response to earlier suggestions from the Supreme Court, a bipartisan majority of Congress carefully crafted a system that balanced national security concerns against the need to provide fair, just hearings for these detainees.  By no means did Congress rubber-stamp what the Bush-43 Administration suggested.

The resulting system closely resembled, and explicitly drew heavily from, the legal system already in place via the Uniform Code of Military Justice for our own servicemen and -women who are accused of crimes. The resulting statutes thus represented the will of the people as expressed through both of the elected branches of government, which — not coincidentally — are also the two branches of government given substantial responsibility by the Constitution with the declaring and conduct of war.

Nobody was going to be "held indefinitely" under this system. To the contrary, under the statutory provisions swept away as "unconstitutional" by the Court this week, the government most emphatically did have to prove a formal case to establish reasons why each detainee should continue to be held.

This is not a subject on which reasonable minds can differ. Anyone who refuses to acknowledge that Congress created, and the president signed, laws creating an elaborate system for trying these detainees is, to be very blunt about it, stuck on stupid.  Please, please, please quit mindlessly repeating the anti-Bush screed of the Hard Left from 2004 — get with the program and at least update your screed to the current version being preached by Bush-haters in 2008. Even then, you'd need to include in your screed the dozens of Democrats in both the House and the Senate who voted for the legislation declared unconstitutional this week.

Look, folks, this wasn't really about George W. Bush. He'll head back to Crawford in January, but this problem won't be remotely close to being resolved by then. Rather, this case is about whether, and to what extent, the federal courts can fly-speck and then overturn both the Executive and Legislative Branches on matters that are absolutely central to the prosecution of war by our military forces. If you can only see this through anti-Bush goggles, you're blinding yourself to what's important.

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UPDATE (Mon Jun 16 @ 1:10pm): As to the two commenters whom I've blasted for misstating the fundamental issues in Boumediene, I'm not sure whether the following quote mitigates their offense or not. But it certainly proves that the Democratic nominee for president is at least equally clueless:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

Obama has no excuse for failing to know that the Military Commissions Act of 2006 in fact provides procedural and substantive protections to the Guantanamo detainees which meet or exceed those which were provided the Nuremberg defendants in their trials by the four-powers military commissions (in which the defendants were most emphatically not guaranteed any rights under the U.S. Constitution, either by habeas corpus petitions or otherwise). Obama voted against that legislation, but one can reasonably presume that he knew what was in it.

Thus, Obama's argument that the detainees would be denied "a day in court" under the MCA is shockingly stupid or shockingly disingenuous. My bet is on the latter: He wants people to be misled over the issues in this decision; he wants to dupe people into the same shallow, entirely erroneous point of view from which my commenters suffered. And the carefully considered statement on Obama's website supports my inference as to his intentions: "The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo — yet another failed policy supported by John McCain." If you cannot trust this man to even state the issues accurately, can you trust anything about him?

SCOTUS disgrace: Foreign terrorists captured abroad held to have same rights under U.S. Constitution as U.S. citizens

It's a sad, sad day for our country. A majority of the members of the United States Supreme Court have shown themselves unable to distinguish between an existential military struggle — quite literally, a war over the very existence of western civilization — and ordinary street crime committed by U.S. residents wholly within America. The obvious and inevitable consequence of today's Supreme Court decision will be that terrorist killers presently in captivity, captured at the cost of American soldiers' lives and limbs, will be released instead of punished, and they will return to killing both Americans and others again.

The Supreme Court ruled today that terrorists who are citizens of foreign countries, who have never set foot within the United States, and who have systematically forfeited all the protections of the organized laws of warfare that would entitle them to be treated as prisoners of war, are, when captured on foreign battlefields by the U.S. military, nevertheless entitled to access to the federal court system of the United States — in most essential respects, exactly as if they were lawful, taxpaying citizens born here, raised here, and arrested here by the domestic police for alleged crimes committed here.

If Osama bin Laden, wearing no uniform, surrounded by children as human shields, and in mid-stroke while he's sawing the head off a captured American nurse, is captured by American soldiers tomorrow in Pakistan or Afghanistan, then his rights to use the federal writ of habeas corpus to guarantee him the protections afforded by the United States Constitution will be, so far as I can determine, indistinguishable from my own if I were arrested at my home by the Houston Police Department on a warrant for overdue parking tickets.

The Supreme Court has so ordered notwithstanding the fact that the people's lawful representatives — through statutes passed by their Congress, and signed into law by their president — had otherwise decreed. Instead, five members of the Supreme Court have set themselves up above the rest of the people and government of the United States of America, and they have proclaimed that even acting together, the Congress and president lack the constitutional power to make other provisions for these foreign barbarians and monsters captured on foreign battlefields while trying to destroy America and everything related to it. In the measured words of Chief Justice Roberts' dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation.

And in the more fiery dissent from Justice Scalia:

THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires [i.e., beyond the Supreme Court's own power].

Make no mistake about it: This was a naked, arrogant power grab of wartime, war-fighting power by the liberal wing of the Supreme Court. This is Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer doing their dead-level best — not to protect you and me from the terrorists, but to protect the terrorists — and to prevent Congress and the president from protecting you and me!

The readily foreseeable, and indeed inevitable consequence of this decision is that the United States government — when forced to fight a military war as if it were street crime, and when forbidden to punish war criminals unless it can comply with the full range of procedural safeguards from our domestic criminal justice system — will have to release captured terrorists who will then immediately return to killing. Their victims will be not just American soldiers, but innocent civilians of every nationality and religion (including Muslims). Again from Justice Scalia's dissent:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

This decision is a disgrace and a travesty. It's awful law and even more disastrous policy. It's the single worst decision of the United States Supreme Court in my lifetime, and quite arguably its worst in American history. It can't be sugar-coated. It can't be minimized. In all probability, it can only be thoroughly undone by a constitutional amendment, or by a pronounced change in the membership of the Court that will deprive the liberal wing of a crucial fifth vote in such cases and open the possibility of this decision being overruled.

(There is, still, a chance that Congress and the president could sidestep the decision by formally invoking the Suspension Clause based on the invasion of 9/11, and I think Pres. Bush should immediately propose such legislation, so that it becomes a campaign issue in November races for both Congress and POTUS if Congress doesn't promptly go along. But Congress and the president ought not have to "suspend" habeas corpus rights for foreign terrorists who never, ever in American history have been construed to have them in the first place.)

John McCain says he will appoint Supreme Court Justices in the mold of the four Justices who dissented. Barack Obama admits he will appoint more Supreme Court Justices in the mold of those in today's majority — which means Justices who are eager to seize this sort of power from the American people and their elected representatives, claiming a constitutional entitlement to run this country. There is no difference between the two candidates remotely as stark as this one, and I don't think there is any difference that is more important.

Our enemies will never defeat us. We have the power to defeat ourselves, however, and today's decision by the Supreme Court is a terrible, tragic step toward such a defeat. What will you do in November? Will you help accelerate these judicial power-grabs? Or will you help reverse them?

Beldar on Baze

Today, in Baze v. Rees, the SCOTUS rejected two capital defendants' challenge to Kentucky's use of the "three-drug cocktail" for administering its death penalty. The vote was seven to two — only Justices Ginsberg and Souter voted to reverse — but no more than three justices agreed on any single rationale for affirming the Kentucky Supreme Court's decision to permit the continued use of this procedure. Instead, the Court produced seven separate opinions spanning 97 pages; only Justices Souter and Kennedy did not write a separate opinion.

Prof. Orin Kerr, blogging at The Volokh Conspiracy, promises a detailed post later, but there are interesting comments already to his quicky preliminary post here. Beldar's own summary (admittedly guilty of over-generalization, for your convenience and my amusement):

*******

Chief Justice Roberts and Justice Alito stayed true to their promises during their confirmation hearings to be respectful of precedent — too much so, on this occasion and in my opinion (given my disdain for the jumbled mess of the Court's recent Eighth Amendment rulings on "cruel and unusual punishment). Chief Justice Roberts' opinion, joined only by Justices Kennedy and Alito, insists that Courts are ill-equipped to evaluate medical issues — then proceeds to do exactly that, mostly by cherry-picking supporting findings and evidence from the record developed in the Kentucky state trial court. Any time you have the U.S. Supreme Court citing and discussing the substance of articles from medical journals like Lancet, it's gone astray — no proper interpretation of the United States Constitution can be found in medical journals.

Chief Justice Roberts and Justice Alito are still writing as if they were circuit judges who are painfully conscious of their lack of authority to modify or overturn Supreme Court precedents — even when it's abundantly clear that those precedents fatally conflict with one another and/or ought never have been decided that way to begin with. Thus we have Chief Justice Roberts winding and twisting through various previous (and incompatible) formulations of the legal tests to be applied to a case like this one, pretending to harmonize them into something coherent. It's a very workmanlike — or it would be, for a circuit judge wearing judicial handcuffs — and it leaves us with a sort of matrix, a check-list for lower courts to work through. Indeed, Justice Alito wrote separately just to emphasize how tough it will be for any future petitioner to successfully navigate the checklist all the way through to a successful ruling finding any particular method of execution unconstitutional.

Basically, behind all their "heavy burden" and "substantial (not theoretical) risk" qualifiers — beyond the boxes in the check-list for lower court opinion-drafting — Chief Justice Roberts and Justices Alito and Kennedy are saying: When and if a bunch of other states have actually adopted some obviously better method of execution, then and only then can those of you in the other states come back to us with these arguments about which is relatively more humane. But for now, and until then, Kentucky's system and anything that looks pretty much like it can proceed.

That's pragmatic. It avoids a sweeping cleanup of Eighth Amendment law that's badly needed, but that would be criticized from the left as conservative-policied judicial activism. But in this area of con-law, as with the Court's last few decades of precedent on affirmative action and abortion rights, the maze of precedents that Chief Justice Roberts and Justices Alito and Kennedy are trying to navigate is built on a rotten foundation. Maybe in their judgments this case wasn't "the" case to give the whole Eighth Amendment structure a good push and bring it crashing down; but I think it was.

*******

Justice Thomas, characteristically for him, would rather frankly recognize that the emperor has had no clothes for a long time. He boils this down to: Is Kentucky using this system out of a deliberate intent to torture people in addition to killing them? The answer to that is no; and that, says he, should be the end of the issue, as far as the Eighth Amendment and the federal Constitution are concerned. He's absolutely right.

Justice Scalia joins Justice Thomas' opinion, but also writes separately just to snag and throw back a few foul balls that Justice Stevens had popped deep into the outfield. Justice Stevens — no surprise — thinks we ought to re-think the death penalty in its entirety, but he can't quite come up with a good reason to pretend that this particular three-drug cocktail is unconstitutional, so he votes to affirm anyway.

Justice Breyer is troubled, very troubled ... and about many things, indeed about just about everything. But he ultimately agrees with six of his fellows that the petitioners just haven't shown "enough" to establish that some additional safeguards or some different protocol would make a big difference. (Basically, he's not quite willing to endure the justifiable mockery that Justice Ginsberg will get from her view, described next.)

And finally, like the diligent ACLU lawyer she once was, doggedly committed and well-accustomed to trying to make a liberal silk purse out of any sow's ear she's presented with, Justice Ginsburg (joined by Justice Souter) says the Eighth Amendment absolutely requires executioners to tickle the condemned murderer's eyelashes to make sure he's really deeply unconscious. And they also have to call his name. (Probably tenderly, but that's just my interpretation.) Because he might just be dozing. I somehow missed the eyelash-tickling/dozing discussions in the Federalist Papers, but Justice Ginsberg's analysis is all part and parcel of the liberal theory of jurisprudence which believes in a "living, breathing, and even occasionally flinching-when-tickled Constitution."

*******

I didn't make up that stuff about the eyelash tickling. But that's exactly the kind of constitutional analysis, and the kind of SCOTUS Justices, that the current Democratic presidential candidates want. Clinton-42 appointed Justice Ginsberg, and either a Pres. Clinton-44 or a Pres. Obama would appoint clones of her. So I ask you again, my gentle readers of the conservative persuasion: Do you still think that, consistent with your love of country and Constitution, you can afford to sit out the 2008 general election because you're disappointed with the GOP's nomination of John McCain?

*******

There will certainly be new death warrants signed in Texas within the next few days, and executions will resume by the end of May or June. No matter how many different opinions the SCOTUS produced, the state trial and appellate courts, and the federal district and circuit courts, can all readily tell that the current freeze on executions has been lifted by a 7-to-2 vote. Lawyers for capital defendants will try to squeeze through the tiny notch that the Roberts and Alito opinions left open, but it's not going to happen — not until some substantial number of state legislatures, or Congress, come up with a better execution protocol.

And to be clear: I hope those legislatures will try to do exactly that. Despite my snark, this is a serious topic that raises hard and important questions of public policy. But not hard questions of constitutional law. Let the legislative committees commission and then examine their experts' reports; let the executive agencies refine their procedures. All that should go forward. But a mostly well-functioning method of execution — as an instrument of public justice in those states that have chosen the death penalty — ought not be halted because it's short of perfect, or because there are arguably better methods and protocols "out there" yet to be discovered, defined, and implemented.

*******

Final question: Is this choice of quotation (and its unacknowledged black comedic pun) an example of Chief Justice Robert's dry wit? Or am I just being hypersensitive, as a sometimes defense lawyer whose clients once included the local electric utility?

By 1915, 11 other States had followed suit, motivated by the "well-grounded belief that electrocution is less painful and more humane than hanging." Malloy v. South Carolina, 237 U.S. 180, 185 (1915).

"Well-grounded"? Well, yes.

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

UPDATE (Wed Apr 16 @ 7:10pm): More punditry, including thoughtful comments, at Patterico's from his guest-bloggers Justin Levine and DRJ, and from TChris at TalkLeft.

UPDATE (Wed Apr 16 @ 9:20pm): Lots of well-chosen blockquotes at Althouse will give you more flavor in the various Justices' own words, but alas, Prof. A mostly withholds her own reactions (at least until she responds to some comments). And Dodd at OTB has an admirably concise scorecard if you got lost in my comparatively long-winded analysis.

UPDATE (Thu Apr 17 @ 2:22pm): Prof. Kerr has now posted his promised thoughts on the case, which include an apt comeback to Justice Stevens' claim that

the Supreme Court's decisions "retain[ing] the death penalty as a part of our law" have been "the product of habit and inattention." The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer.

People who are too smart to find the word "arms" in the Second Amendment

I'll warn you up front: This is as harsh an assessment as I've ever written on this blog.

I know this guy has lots of credentials that are supposed to mean he's smart and well-educated.

But I've read this blog post about the pending Heller case before the Supreme Court about five times now. I cannot find in it a single sentence to confirm that the author actually does know the difference between a right directly and explicitly guaranteed in a constitution and a right created solely by legislative enactment, much less why that distinction might be important to a court. He seems to have missed the day in high school civics when the teacher explained that constitutions are supposed to be different and special.

He also writes, with a straight face:

How do we know that the Supreme Court is hypocritical?  Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members — as Heller seems to make (or will make) painfully clear.

That's demonstrably false. A twelve-year-old would guess, for example, that Justice Scalia, being a good law-and-order conservative jurist appointed by a Republican, would uphold stiff criminal sentences determined by law-and-order trial judges, and that he would affirm lower courts who've "thrown the book" at flag-burners.

By the time you're a professor at the University of Chicago Law School like Eric Posner, however, it's inexcusable to fail to know that Justice Scalia has consistently voted to preserve the right to jury trial and the right to engage in political protest of the sort typified by flag-burning. If what he teaches to his students is equally shallow as what he's written for this new national legal blog run by Slate, then this man should be fired as a law professor — immediately, tenure or not, for the University would certainly have cause. This kind of political drivel disguised as legal analysis insults the integrity of the Justices of the Court (all of them, not just the conservative block), along with the intelligence of the reader (any reader, of any stripe of legal or political philosophy).

In fairness, Posner was being as monumentally and inexplicably clueless in his post as Dahlia Lithwick had already been in her post-argument Heller post upon which he purported to be commenting. Summarizing Walter Dellinger's argument in support of the District of Columbia's handgun ban — the position I'm reasonably sure she personally thinks should prevail — she wrote:

The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, he says, it's at the "penumbra of the periphery" of the Constitution: in a shack behind the river where the other unenumerated rights huddle.

"The other unenumerated" rights?!? Whatever limits there may be to the constitutional right to keep and bear arms, no one who understands the meaning of the word "enumerated" can deny that this right is one (as opposed, for example, to the constitutional right to bedroom privacy, which assuredly is not enumerated anywhere in the Constitution).

Indeed, lots of us think the very fact that the right to keep and bear arms is specifically listed by name in the Constitution is pretty significant. But Lithwick writes as if it's moderately surprising that anyone has drawn the inference that the Second Amendment might even arguably relate to firearms, topside or bottom. And Posner writes as if it's utterly impossible that any members of the Supreme Court actually think the words in the Constitution count for anything, or that they might think it matters that they're in, you know, the Constitution and its Bill of Rights (as opposed to, say, in a Berkeley city ordinance).

Make no mistake: Posner and Lithwick badly want to de-legitimize judicial conservatives on the Court by equating their recognition of a personal Second Amendment right to previous acts, by liberal Justices, in "finding" constitutional rights like the "right" to an abortion. Thus can they claim that the conservatives are hypocrites, changing judicial philosophies willy-nilly to achieve their desired political results. But to make this argument track, Posner and Lithwick have to pretend that the Constitution is as silent about the right to keep and bear arms as it is about, for example, the "right" to an abortion. That's why Lithwick (falsely) suggests that Dellinger called the right to keep and bear arms an "unenumerated right," when the transcript shows that he made no such claim.

(By contrast, Dellinger himself, desiring to be treated as a serious advocate instead of a child, of course acknowledged the literal text of the Second Amendment, but (at page 27 of the transcript) tried to minimize the importance of the "keep and bear arms" language as being of secondary or tertiary importance as compared to the "well-ordered militia" language. He was emphatically not suggesting that the right to keep and bear arms was unenumerated or found only in the "penumbra" of literal language in the Constitution or Bill of Rights, like the "privacy" right "implied" by the Court out of thin air in Griswold.)

This is a level of stupidity that can only be explained by neurology, not law. It's like one of those syndromes that Oliver Sacks describes, where some sort of organic brain damage, some lesion, prevents a husband of many decades from being able to distinguish between his wife and his hat in his spoken language or even his internal mental conceptions. The notion that the Constitution's actual words might count is so contrary to Posner's and Lithwick's fundamental liberal mindsets that they go into verbal seizures, batted back to a pre-K level of understanding, just one step above drooling while chanting "Scalia ... very ... baaaad." Posner I don't know, but I can at least usually find some kernel of principled argument inside Lithwick's writings, typically buried deep under the snarky distortion that she intends to be funny, even when they swerve into the frankly dishonest. But not this time.

There are interesting arguments that can be made, and have been made, from time to time by supporters of gun control regulations. You won't find any of them in either of these two posts, however. Dahlia Lithwick and Eric Posner didn't just swing, miss, and strike out, they left their bats in the dugout and immediately wandered off from the batter's box into far, far left field, way outside the foul line and only barely still within the confines of the ballpark. I would offer a hefty wager that when this game is over, they'll still claim that it was rigged, and that their side wuz robbed. Then they'll turn, nod and gesture to their approving crowds, and bask in the roar of their righteous liberal approval.

Most frighteningly plausible fantasy I've read this month

On the Balkinization blog, Michael Stokes Paulsen posts the Opinion of the Court (written by Mr. Justice Kennedy, and joined by Justices Souter, Ginsburg, Breyer, and Clinton) in Spitzer v. United States. (H/t InstaPundit.)

The largest flight of fantasy is that the underlying conviction is for solicitation of prostitution, which, of course, is not ordinarily a federal crime. But perhaps that was what indeed was charged, with the United States as prosecution and now appearing as the respondent on appeal because the solicitation case was filed under District of Columbia Code § 22-2701 (and not in the New York state courts under New York State's laws against prostitution). Under this scenario, Spitzer was never charged with, or perhaps pleaded out to, a separate federal financial crime (e.g., structuring) or morals crime (e.g., Mann Act) in the federal courts for the Southern District of New York.

Even the list of Justices in the majority is chillingly plausible — and under more than one scenario. Obviously, "Justice Clinton" has been the successor to Mr. Justice Stevens. But is that "Mr. Justice Clinton," or "Madam Justice Clinton"? It could be the latter if President Obama was making good on the "Great Denver Convention Compromise of 2008," whereby the Clintons were promised his first (or perhaps first two?) SCOTUS appointments in exchange for Hillary releasing her delegates. Or it could be the former if President Clinton wanted to find some way to get Bill the hell out of 1600 Pennsylvania at least a few hours every week — and who knew he and Justice Scalia would become such card-playing buddies? Either Clinton would be a historic nomination, marking either the first Justice who'd failed the District of Columbia Bar Exam, or else the first Justice whose state law license had been suspended and who'd consequently resigned (under pressure of impending permanent disbarment) from the bar of the SCOTUS itself. Notwithstanding those disabilities, either could surely expect confirmation votes from every Democratic senator.

The single best and most terrifying sentence in the opinion is this one: "There is no persuasive basis for distinguishing the Lawrence Liberty here." Those of us who are critics of Lawrence v. Texas, and of the purported constitutional theory of "substantive due process" (an oxymoron) upon which it is founded, believe that precisely this same sentence could be used in comparable opinions justifying constitutional "rights" to damn near anything, so long as Justice Kennedy can be persuaded on any given day that it's part of the "sweet mystery of life."

A peculiar and ostensibly conservative assessment of the Bush-43 Administration as a "failed presidency"

Having just praised a short article in the Weekly Standard's online version by Ed Whelan, I find myself reluctantly obliged to pan a very long one also published there by Jeffrey Bell, who's a visiting fellow at the Ethics and Public Policy Center (of which Mr. Whelan is president) and a principal at Capital City Partners (a Washington political consulting firm). Other blogospheric reactions to Mr. Bell's article that I've come across so far range from generally approving to skeptical to outraged to insulting.

Having entitled his article "The Politics of a Failed Presidency," Mr. Bell has certainly written ambitiously and comprehensively, albeit without subject headings or much else by way of obvious organizational structure. The individual sentences and paragraphs track nicely and the prose is serviceable, but this article badly needed a better or more aggressive editor. To his credit, though, Mr. Bell's premise is simple, and it's clearly stated in his article's very first sentence: "The failure of the Bush presidency is the dominant fact of American politics today."

But other than by repeated references to the most ephemeral standard — current public opinion poll ratings of the President — I think that Mr. Bell fails to make a persuasive factual case to support that premise. In a sentence: Mr. Bell sweats the small stuff to death, but he badly misses the big picture.

Thank goodness Dubya himself has mostly done the opposite.

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To thoroughly Fisk this article, I'd need to duplicate, or exceed, Mr. Bell's article's own 9200-word length, which would get me down below a "forest/trees/twigs" level of detail to the microscopic level Mr. Bell sometimes embraces. With my customary brevity, however, I've managed to keep this down to a svelte 1800 words or so.

Not many Americans, present or future, would consider judging the basic success or failure of the Bush-43 Administration on such minutia, for instance, as its failure to stand up against gay rights advocacy groups to preserve the Ministerial Exemption to the CARE Act, and the allegedly consequent failure of the full Congress to pass Bush's faith-based initiatives program in full. Mr. Bell gives that argument eight terribly detailed (and, frankly, tedious) paragraphs running more than 700 words. (I'm still not quite sure I understand it, after three re-readings.) Okay, then, maybe that's a darned shame. But do you think anyone will remember it in 2020, much less 2050, in assessing the overall success or failure of the first American presidency of the 21st Century?

Perhaps it's no surprise that many of the Bush "failures" identified by Mr. Bell — a self-described conservative, Vietnam vet, one-time Senate opponent of Bill Bradley in New Jersey, former president of the Manhattan Institute, and senior consultant to the Gary Bauer campaign in 2000 — would nowhere appear on a list compiled by Democratic opponents of the Administration. Nor, for the same reason, are very many of Bush's "failures"  as perceived by Democrats included on Mr. Bell's list. But it is perhaps a surprise that some things which many other conservatives would assess as very conspicuous "failures" on the part of this president — his first-term embrace of protectionist steel tariffs, for example, or his nomination of Harriet Miers to the Supreme Court — utterly escape Mr. Bell's attention.

Even when Mr. Bell gives Dubya due credit for accomplishments that most conservatives, and even Bush opponents, would acknowledge, however, it's terse credit. A conspicuous example, dear to my own (and I'll wager to Mr. Whelan's) heart: "The nomination and confirmation of John Roberts and Samuel Alito to the U.S. Supreme Court in 2005 accomplished what Richard Nixon, Ronald Reagan, and George H.W. Bush all tried and failed to do: move the Supreme Court toward judicial restraint on social issues." Well, yeah! Mr. Bell throws in another couple of sentences on this subject, but maybe it's worth more than one paragraph in the "big picture," d'ya think?

And this is unfortunately typical through-out: Leading multinational coalitions in the rapid and low-casualty toppling of two of the world's regimes most hostile to the United States gets George W. Bush a couple or three passing references in Mr. Bell's analysis. Persuading Libya to drop its nuclear weapons program gets precisely one sentence, as does persuading Pakistan to shut down A.Q. Khan's nuclear proliferation ring.

In fact, were I to compile from Mr. Bell's article a bullet-point list of things he at least casually mentions that I, by contrast, consider to be significant achievements from the first seven years of the Bush-43 Administration, it would turn out to be a very long list indeed. He and I agree on many of the individual pieces of relevant evidence, in other words, but we definitely disagree about the weight to which those pieces, individually and especially cumulatively, should be accorded by the jury.

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Mr. Bell is also a bit too willing to presume presidential power beyond that which practically exists. For example, there's a long segment which begins: "In retrospect, a fateful turning point for Bush's credibility was the elevation of Mahmoud Ahmadinejad to the presidency of Iran in June 2005." This is Dubya's fault? A turning point in Dubya's credibility? Nobody's happy that Iran is still a nuclear threat, not even France. But if one's going to point to that as evidence that the Bush-43 Administration is a "failed presidency," one's obliged to lay out a plausible scenario as to precisely what ought to have been done better and differently, and how it was in fact doable. Mr. Bell is merely grumpy on this topic, not constructive in his criticisms.

And despite his somewhat vague grumbling about it, I don't think Mr. Bell quite intended to lay responsibility for the SCOTUS' 2003 decision in Lawrence v. Texas at Dubya's feet — and that position would be rather hard to argue explicitly, since it predated either the Roberts or Alito nominations, and they both replaced Justices who declined to join in Justice Kennedy's opinion for the majority anyway. But Mr. Bell certainly faults the Bush-43 Administration for failing to exact more "decisive consequences" against the pro-gay marriage side after the 2004 election victory. Both Democratic candidates for 2008 purport to oppose gay marriage, and based on the just-finished oral arguments, many, and perhaps most, knowledgeable observers predict that the California Supreme Court — California, for pete's sake! — is about to refuse to follow the Massachusetts lead by ruling that the spate of gay marriages attempted by San Francisco city authorities in 2004 were invalid. The Bush-43 Administration made a reasoned decision that given the lack of extreme urgency and the other demands on its diminishing political capital, accomplishing more by way of federal action just wasn't in the cards, and therefore wasn't a top priority for the second term. I gather that Mr. Bell disagrees with that call — but in the big picture, is that a serious reason to describe the Administration as an overall failure?

In other parts of his article, for someone with his impressive track record in government service, political campaigning, and conservative policy circles, Mr. Bell is strikingly naïve. He writes, for example, of Bush having failed to make his highly significant and extraordinarily successful tax cuts "permanent" as being a major failure — exactly as if one Congress and president had the constitutional power to bind the taxation policies of a later Congress and president. Here's a clue: There's no such thing as a "permanent" tax cut, nor "permanent" tax increase for that matter. Using that word, just like scheduling the "expiration" of tax cuts, is at least 90% spin rather than substance. And even if a Republican majority Congress and Bush had successfully insisted on calling the Bush tax cuts "permanent" as of their initial passage, the next Democratic majority Congress and Democratic president would have been certain to try to roll them back anyway. (John McCain, to his credit, recognizes that it's silly to go along with the Democrats' talk of the "expiration" of the Bush tax cuts. What they promise, and what he's promising to oppose, is in sum and substance a Democratic tax increase, period.)

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Finally: I don't know if this is a "bi-coastal conservative" problem, or if it's mere coincidence that Mr. Bell, Peggy Noonan, George Will, and the most anti-Dubya contributors to the National Review all just happen to live somewhere on either the east or west coasts (rather than on the Gulf coast or in the "heartland"). But some things that are absolutely colossal on my list of Bush accomplishments, Mr. Bell and those others tend to either short-shrift or else altogether ignore.

The voters who supported George W. Bush in 2000 desperately wanted a president who would, through his conduct over his entire term, repudiate and erase the sleazy sexual and ethical stains, metaphorical and unfortunately quite literal, that Bill Clinton had generated in the Oval Office. They wanted a president who made and stuck to decisions based on his own principled judgments, not focus groups and polls, and who would continue to do so even at the risk of extreme political unpopularity. They would accept a president who might not be a slick talker, so long as he knew what the meaning of "is" is. Those are all intangibles, but they're big issues on which George W. Bush has kept his promises. While delving deep into individual domestic policy programs, Mr. Bell seems largely oblivious to this very big picture, or at least to its due weight in a balanced consideration of the Administration's overall success or failure.

And altogether missing from Mr. Bell's article is an adequate recognition that notwithstanding the closeness of the 2000 election, nor everything subsequent to it (including the 9/11 attacks coming on "his watch" and then the failure to find WMD stockpiles in Iraq), Dubya won re-election in 2004 with the largest number of popular votes in American history — keeping John Kerry and his minions out of the White House. By most historians' measure, and by the public's too, getting re-elected is the single most significant indicator of a president's overall success or failure. Failing to get re-elected was easily the most significant aspect in which Bush-41's administration can be deemed to have been a "failure," precisely because it let the randy, slick-talking, dirty-dealing Democratic governor of a small southern state into 1600 Pennsylvania. The voters threw Poppy out, but they kept both Dubya and Reagan. And that's the bottom bottom-line.

Curiously, Mr. Bell acknowledges near the beginning of his article that candidates "for the Republican presidential nomination had to deal with the fact that in our polarized politics, Republican primary voters are still predominantly pro-Bush." But Mr. Bell doesn't mention the self-inflicted torpedo that did more than any other to sink the surge of the Huckabee campaign — Huckabee's description (taken directly from the DNC playbook and the pages of dKos) of the Bush-43 Administration's "arrogant" foreign policy and "bunker mentality." He should have; indeed, Gov. Huckabee's screed has more than a little in common with Mr. Bell's own. Mr. Bell is obviously a thoughtful man, and one with whom I agree on a great many important things. Perhaps, though, he ought to have given further thought, before committing himself to the notion of the utter "wreckage" of the Bush-43 presidency, to whether those Republican primary voters' grasp of the big picture might indeed be substantially better than his own.

And to the extent that this article might be read as a recommendation that Republican candidates in 2008, including but not limited to McCain, should aggressively characterize Dubya as a "wreck" or his administration as a "failed presidency," that's just awful advice for the general election too. In fairness, that's not the gist of Mr. Bell's actual advice to them, despite the title and premise of his article. (Instead, he cautions them to avoid getting trapped into a binary choice of embracing or repudiating the Bush legacy by trying to "break down such questions into specifics," after which they should "pivot as quickly as possible toward the future" while also blaming Democrats whenever possible.) But Mr. Bell might have gone farther to point out that aggressively trashing Dubya — as he'd just concluded doing! — won't be sufficient to win over any part of the Democratic base. They're already entirely committed, with all of the momentum of their Bush Derangement Syndrome, to the proposition that McCain is McSame. Nor is trashing Bush necessary to attract those independents who may indeed have voted for Bush but have since become impatient or disillusioned with him. Being "not-Bush" is enough for most of them, without McCain or other Republicans having to become the "anti-Bush."

McCain, judicial nominations, sleeves, and warts

I don't much care about Wall Street Journal political reporter John Fund's report yesterday that's roiling the blogosphere and cable news talking head shows. Fund reported that Sen. John McCain "has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because 'he wore his conservatism on his sleeve.'"

Since Sen. McCain led a gang of other Republican renegade senators in deserting their party's sitting president and colluding with the opposition party to throw some of that president's pending judicial nominations down the toilet — jettisoning along with their confirmation chances the chance for a constitutional showdown that could have ended senatorial filibustering of judicial nominees — there is nothing that Sen. McCain can do, and certainly nothing he can say or write as a campaign promise, to restore his credibility with me on the subject of judicial appointments.

Oh, yes, he did vote to confirm Roberts and Alito. But could we possibly set a lower bar than that for someone who's supposed to be a leader of his party and a contender for the opportunity to fill as many as three SCOTUS seats in the next term?

There are a lot of good things that can be said about Sen. McCain by good conservatives — but not on this issue.

By taking the "constitutional option" (a/k/a "nuclear option" in Dem-speak) off the table, McCain and his fellow "maverick" GOP cronies doomed not only a handful of worthy circuit and district court nominees to non-confirmation, they ensured that the White House would thereafter dare not make any more controversial nominations to those vitally important lower courts. For "controversial nominations," read "demonstratedly and predictably conservative nominations just like Roberts and Alito would have been, but for the higher profile of SCOTUS nominations."

The only way that the Dems could justify stonewalling Dubya's circuit and district court nominations was that the stonewalling happens mostly out of sight, and rarely if ever makes a blip on the general public's radar screens. They couldn't get away with denying a floor vote to a SCOTUS nominee.  But John McCain led the deal that let the Dems guarantee that they could continue to exercise an effective veto on circuit and district court nominations for the remainder of George W. Bush's term, regardless of the outcome of the 2006 elections. The unquestionable result of the Gang of 14's "compromise," as brokered by John McCain, will be two-fold: There will be more judicial vacancies at the end of the Bush-43 term than there ought to be; and such district and circuit judges as have been nominated and confirmed by January 2009 will be mostly bland ones whom McCain's Democratic allies permitted to go through because the Dems couldn't dredge up or even manufacture remotely plausible objections. Some of them will nevertheless turn out to be very fine judges despite their lack of histories around which the Dems could weave their objections. But if your goal is conservative judges, giving the Dems a near-secret and unaccountable veto, which ie exactly what McCain did, is a very, very bad idea.

No sir, the day John McCain led the Gang of 14, he forfeited all of my trust — irrevocably — on judicial selection issues. No ma'am, I don't care what words he mouths now on that subject.

In fact, I'm slightly more inclined to believe Rudy Giuliani's promises about appointing conservative judges than McCain's. Sure, it's contrary to Giuliani's own stance on many social issues; and I'm far from entirely comfortable about Giuliani's campaign promises on this and other subjects. But at least Giuliani hasn't already betrayed this particular trust, and then equivocated about that betrayal. Whereas McCain, whether right or wrong on those social issues, has already shown himself to have no backbone, and to be a willing collaborator with the Dems, specifically when it comes to appointing judges at the circuit and district court levels. (Giuliani's own "collaborator" problems kick in on other issues, like gun control and immigration.)

To the limited extent that I care at all what McCain says now, the mere fact that McCain continues to defend the Gang of 14 deal out-shouts anything else he says. And saying now that he "fought for" the abandoned nominees is just a palpable lie. The way to fight for them was to continue at least threatening to use the "constitutional option." There was no other way to fight for them. There was no other way to even get their nominations to the floor for a vote! To even pretend that those abandoned nominees had a chance once the Gang of 14 struck its deal is comparable to the Brits and French saying in September 1939, "Well, we did still root for the Czechoslovaks after we forced them to give Hitler the Sudetenland last year. Gosh, we really thought they still had a good chance, but we just ran out of time. How could we know he'd go on to gobble up the rest of their country, and Poland too?"

Stepping back and looking at the big picture: Collaborating with the Dems to defeat the Bush Administration's most conservative circuit and district court judicial nominees isn't remotely the same as collaborating with the Viet Cong and North Vietnamese while American POWs (including McCain) were imprisoned. John McCain is not John Kerry, and the Dems are only misguided political enemies of the GOP and conservatism, not profound and literally mortal enemies of western civilization. And I'm sure that in his own mind, McCain has thoroughly rationalized what he did, just like he's rationalized (and now is soft-pedaling) his prior stands on campaign finance reform and immigration. I'm not one of those self-destructive conservative idiots who is going to sit out the 2008 election if McCain turns out to be the GOP nominee. Indeed, if he is nominated — which I still think is unlikely, but I no longer can rule out as a possibility — I'll support him, and defend him, and promote him, and vote for him against whoever the Dems nominate. I will accentuate the positive, for him or any other GOP nominee.

But just don't insult my intelligence by pretending that John McCain is a reliable conservative on the subject of judicial nominations. From the point of view of any knowledgeable conservative, this is one of the huge warts on this particular candidate. And he doesn't have to "wear" that particular lack of conservatism "on his sleeve," because it's a wart that's as plain as his nose. You can secure my enthusiastic agreement that the Democratic alternatives are uglier, that they're practically "all-wart." But quit trying to pull my leg about McCain and this particular subject, okay?

Maybe if McCain is making a SCOTUS nomination, he really will pick another Roberts or Alito. What concerns me, though, is that at best, he'll gladly let the Dems pressure him into packing the circuit and district courts with Kennedys, O'Connors, and occasional Souters. I have no doubt that John McCain would be willing to take on the Dems on matters of national security, even if it means a bloody, long-term dispute. But I also have no doubt that if pressed (and he will be), he would make his picks, and then cut quiet deals left and right, to avoid such fights over judicial nominees below the SCOTUS level. Since he's already abandoned conservative principles and cut a deal with the Dems on nominees to those courts even when the GOP controlled the Senate, why would he possibly stand up to them as president, especially if they continue to control the Senate?

SCOTUS members and results as cartoon characters and themes

In response to my short post yesterday on The Jeffrey Rosen's NYT Magazine article about Justice Stevens, one of my commenters, referring to the nine members of the Supreme Court, wrote: "Nobody likes to work with a backstabber and, when the backstabber is one of only nine, relations can't be good."

Here's the thing, though: Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers." In truth, you'll find, for example, Justice Scalia and his wife joining Justice Ginsberg and her husband at the opera several times a year because they like and respect each other despite their very different judicial viewpoints.

Not everyone in this world operates at the schoolyard level of decorum. And in fact, there tends to be a pretty high level of positive correlation between (a) maturity and (b) the set of talents and career histories that can get one appointed to the Supreme Court.

Read Rosen's whole interview with Stevens. Look hard for personal insults toward other Justices that come from Stevens' lips. There aren't any. Instead, you get things like Rosen reporting that Stevens' "eyes [were] flashing" as he talked about Bush v. Gore.

Wow, really? His eyes were flashing? Way cool: John Paul Stevens as Optimus Prime! Pew-pew-pew! That, plus gossip and innuendo, is what Rosen has to peddle.

In July, I wrote a lengthy review of the best book about the SCOTUS I've read in years, Jan Crawford Greenberg's Supreme Conflict. One of the things that made that book better than most is that it relied very little on the notion that personality and personal politics define judicial outcomes. For the most part, Greenberg avoided turning the Justices into cartoons; and she performed a genuinely useful public service, in a genuinely fascinating manner, by helping us get a better sense of the "people inside the robes."

But where her book was weakest was on those occasions when she did fall prey to the perhaps irresistible temptation to presume that amateur psychology and politics can explain or even predict any given Justice's votes. And less disciplined writers offer almost nothing but that.

My friend Patterico, for example, is reading Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court, which I haven't yet read, and he describes it as "entertaining." But he literally can't get through the book without feeling compelled to turn to his blog keyboard to point out an incredibly obvious internal contradiction in Toobin's writing about Justice Thomas — a contradiction so stunning that one wonders just how bad Toobin's editors must have been. Ann Althouse has had similar reactions (e.g., here, here, and here), as has Eugene Volokh (e.g., here and here).

The Justices themselves generally resist efforts to turn them into cartoons, and sometimes these journalists will quote them directly as they do so. From Rosen's piece on Stevens, for example, consider this (emphasis mine):

In general, Stevens said, the idea that a justice can sway his colleagues through collegiality and personal lobbying — a talent often attributed to Justice William J. Brennan Jr. — is exaggerated. He suggested that in most cases, justices cannot be swayed to change their votes once they make up their minds, and when they can be swayed, it is only as a result of legal arguments, not charm or charisma. "I was very fond of Bill Brennan — loved the guy and had great admiration for him," Stevens said. "But it’s simply not right to say that he was able to craft the majority. He just had five votes on his side!"

So what does Rosen do in the very next paragraph? He insists that Stevens sways colleagues other than through legal arguments, by using an "intellectual" method of persuasion — namely, gamesmanship in assigning the writing of majority opinions:

Stevens himself, however, has been notably successful in building majorities by courting his fellow justices — in particular, Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court’s procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But "you very rarely win votes if there aren’t five votes persuaded after our conference," Stevens stressed. "Very rare."

"Oh-ho!" we're expected to chortle, "That clever Justice Stevens! He's got that Justice Kennedy wrapped around his little finger!" Rosen would thus have us believe that the outcomes of decisions at the highest court in the land are based on B'rer Rabbit strategies, instead of the Justices' very best efforts to decide cases fairly and appropriately based on the actual law.

But suckers nevertheless will eat up melodrama like that dished out by Rosen — and think him wise for having written it, and themselves better-informed for having read it. Life is indeed more entertaining, and vastly simpler, if we reduce all the complexities — of which there are many at the SCOTUS — down to a cartoon level. The question is, gentle reader: Do you choose to be one of those suckers?

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UPDATE (Tue Sep 25 @ 7:08pm): Betsy Newmark highlights another part of Rosen's story — regarding Justice Stevens' military service as one of the codebreakers who helped decrypt Japanese communications that, in turn, led to the successful fighter attack on General Yamamato — and one of my commenters asked for my take on it. My reactions were multi-fold: First, as the son of another Pacific Theater veteran from WW2, I respect and honor Justice Stevens' service.

Second, notwithstanding that respect, it strikes me as entirely understandable from a human perspective, but naïve from a military one, to feel any qualms about a leadership decapitation strategy in wartime — a strategy that surely predates recorded history, and that we saw again as recently as 2003's Iraq War strikes hoping to kill Saddam.

Third and finally, this particular bit of reporting by Rosen is just fine insofar as it helps better acquaint us with Justice Stevens as a living, breathing individual inside his robes, so to speak. But Rosen's assumption that it explains, or even significantly influences, Stevens' votes on death penalty cases is another example of the cartoonish treatment the rest of the article gives to Justice Stevens' work on the Court. Rosen wrote: "Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately." Well, okay. Let's assume that's an accurate paraphrase of something Justice Stevens actually said. That's not the same as saying — and I'm sure Justice Stevens would dispute any suggestion — that his war-time experience is equally or more important than the law, the factual record, and the arguments of counsel in influencing Stevens' votes. Unlike Justices Brennan and Marshall, Stevens does not routinely dissent from denials of cert in death penalty cases. There's no question that he's "liberal" or "predisposed" against death sentences, but it's not for reasons as simple as Rosen's piece implies. And ultimately, it's insulting to Justice Stevens' (or other principled death penalty opponents') intellect to gloss over the real, and very complicated, reasons that he votes as he does.

So: My take, boiled down to seven words: "Interesting. But not profound. And potentially misleading."

Best self-debunking line I've read this month

The Jeffrey Rosen, writing in a Sunday's NYT Magazine article about Associate Justice John Paul Stevens, breathlessly informs us:

According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000.

And the way these unnamed one-year transient SCOTUS employees (speaking on a not-for-attribution basis) would know this is ...?

More retrospective from Greenburg (and Beldar) on the Miers nomination

In further debunking the silly report that then-Chief Justice nominee John Roberts had "suggested" Harriet Miers for the SCOTUS slot being vacated by Justice O'Connor, Jan Crawford Greenburg describes the Miers nomination as

a decision that badly hurt the President with his conservative base, allowed Democrats to unfairly portray Sam Alito as somehow beholden to those interests and, perhaps worst of all, made a laughingstock out of a smart woman who — but for the nomination — would be seen today as an accomplished lawyer who’d served her country with dignity.

"How could Bush have done so well in choosing Roberts and Alito and so many of his circuit and district court nominees," conservatives are still asking, "and yet have nominated Harriet Miers?"

Greenburg is confident that during the research on her book "Supreme Conflict," which I reviewed a length earlier this summer, she had found the true explanation for how the Miers nomination came about. Besides his general interest in naming another woman to the Court,

George Bush believed — because his advisers had told him so — that Miers was qualified for the Court. Just as importantly, he also believed — because he knew her — that Miers would not drift to the left like David Souter did. It’s impossible to overstate how much the last consideration drove Bush: His dad did not know Souter and relied on his closest advisers to vouch for the reclusive New Hampshire judge’s conservative views. But George H.W. Bush’s advisers — chief of staff John Sununu, primarily — had no idea what they were talking about, and Souter soon was showing himself to be almost as liberal as the justice he replaced, William Brennan. Bush was determined not to repeat what conservatives considered to be his father’s greatest blunder.

This is almost exactly what I wrote on the morning the nomination was announced, before the conservative hurricane against Miers had coalesced (emphasis in original):

I think Ms. Miers' nomination is ... mostly a product of two factors. The first factor — the one that became logically precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor. The first attribute used to narrow the field was thus whether a potential nominee had a Y chromosome, although being first didn't make an XX pair the most important criterion. No, the second and ultimately determinative factor can be completely summarized in three words: "No more Souters."

To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.

But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power — not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become.

Further on the subject of Miers' qualifications, Greenburg writes:

Bush had said he wanted to nominate someone outside the "judicial monastery," and certainly the Court could use an experienced lawyer who would bring a real-world perspective. But Harriet Miers was not that person. Her experience dealing with complex commercial litigation was embarrassingly inadequate — as the lawyers in the White House painfully realized when she filled out her Senate questionnaire and was asked to list the top cases she’d handled.

And that's a fair assessment too, as far as it goes. But this passage ignores Miers' total package of credentials — ones which, in fairness to Greenburg, she did take the time to discuss in her book, but that many of Miers' critics then and now have ignored or trivialized.

Miers' record as a top-flight trial lawyer, or even as a "litigator" (who'd handled big cases without necessarily seeing them through to trial) was good. But it was indeed thin for the number of years she'd been in practice. The explanation for that, though, was not that Miers was an all-around light-weight. Rather, she'd also been doing other things outside the courtrooms that a president could reasonably conclude would add valuable perspectives in a SCOTUS nominee: serving the legal profession through local and state bar organizations (including president of the Texas Bar); leading a prosperous and successful major law firm, including through a risky but successful merger, in times of unprecedented change and competition; and serving behind the scenes as a senior legal adviser to the governor of a large state and then to a war-time POTUS.

David Boies, famous among other reasons as Al Gore's lead lawyer in 2000, is the only practicing courtroom lawyer with a national reputation outside legal circles. But beneath the general public's radar screens, of course, there are conservative analogs (e.g., Phillip Beck) who would be equally as well qualified for a seat on the Supreme Court. And Miers indeed wasn't one of those. Not even Dubya thought she was, which is why she wasn't one of the first-team courtroom lawyers standing opposite David Boies in court during the most important aspects of the Bush v. Gore litigation in 2000. She did, however, advise Bush then behind the scenes, and she handled a less famous 2000 election challenge in Texas based on the Twelfth Amendment. More to the point, though, neither those conservative courtroom veterans nor, for that matter, David Boies also had the other non-courtroom credentials for a SCOTUS seat that she had.

The Miers nomination was, in hindsight, a political disaster. But I continue to maintain that's not because of stupidity, nor because of incomprehensible or flawed logic, on the part of George W. Bush in making it. Nor was it at all a case of Bush breaking faith with the voters who'd elected him in part on his assurance that there would be "no more Souters." And the value of Greenburg's current blog post, in addition to confirming Chief Justice Roberts' non-participation in the Miers nomination, is to provide a reminder of both of these points, especially the second one. Conservatives refused to see it, and the White House proved itself utterly, ridiculously, tragically inept in explaining it at the time, but Dubya, from his point of view, was keeping faith.

Miers would have been confirmed without controversy had she been (a) male, (b) less of a crony (read: less of a known quantity) to a  POTUS who is radioactive outside his party and still distrusted by "elite" elements within it, and (c) nominated at any time in our nation's history other than the last 30 years. Based on long, close personal experience with her, Dubya is still confident that she wouldn't have "drifted left." But in every other respect, she'd have been essentially indistinguishable from a nomination like Lewis F. Powell, Jr.'s, whose credentials resembled hers and were, if anything, slightly inferior to hers.