U.K. Could Get Written Constitution (Welcome to the 18th Century, Gov'ner)

The new British Prime Minister, Gordon Brown, is raising eyebrows on both sides of the pond by starting a national consultation to draw up a bill of rights and establish a written constitution.

In a speech to the University of Westminster last week, Brown stated: "I am convinced that both to rebuild our constitution for the modern age and to unify the country to meet and master every challenge, we need to consciously and with determination found the next stage of constitutional development firmly on the story of British liberty."

Brown also outlined some key provisions that might make up a British bill of rights:

• respecting and extending freedom of assembly, new rights for the public expression of dissent;
• respecting freedom to organise and petition, new freedoms that guarantee the independence of non-governmental organisations;
• respecting freedoms for our press, the removal of barriers to investigative journalism;
• respecting the public right to know, new rights to access public information where previously it has been withheld;
• respecting privacy in the home, new rights against arbitrary intrusion; in a world of new technology, new rights to protect your private information;
• and respecting the need for freedom from arbitrary treatment, new provision for independent judicial scrutiny and open parliamentary oversight.

You anglophiles out there might quibble that Britain already has a constitution. That is partially true, depending on how you define a constitution. The British constitution is a set of norms and traditions that dictate the basic principles and values of their government, but it is not the supreme law of the land in the way that most constitutions serve. These traditions come from statutes, common law, and international treaties and other important historical documents.

But there is no power, other than political will, that keeps these values in place. If Parliament wanted to overturn, for instance, the right of Scotland and Wales to have their own regional assemblies, it could do so with a simple majority vote. By contrast, it would be a little more difficult for the U.S. Congress to eliminate state governments. The unrestrained majoritarianism of the British system of government might make you queasy.

I would argue that the opposite problem is worse - the paralytic countermajoritarianism that the U.S. suffers from. Our political system has so many checks and balances (only some of which are rooted in the Constitution) that nothing gets done. Divided government, the Senate filibuster, bicameralism, huge incumbency advantages, the hyperpluralistic effects of thousands of K-Street lobbyists, not to mention the cost and length of political campaigning all make it nearly impossible to pass important legislation.

Think back on the great pieces of legislation that have changed the very fabric of our democracy. The Social Security Act of 1935, the 1964 Civil Rights Act, the 1965 Voting Rights Act, LBJ's Great Society, FDR's New Deal. Now think about the last 20 years: has Congress done anything on this scale? Have we done anything to fight global warming? How about universal health care like every other civilized nation? Making a college education possible to anyone that wants it?

Legislation that bold has to overcome so many hurdles that it never happens. The British government does not suffer from those institutional constraints to the same degree. Is it any surprise that they have universal health care, affordable colleges, and a strong commitment to fight climate change?

Not even the overwhelming will of the American people can force our political system to adopt a policy. See, e.g., the war in Iraq, which will likely drag on for several years after the American people said enough was enough.

I'm not saying we should throw the U.S. Constitution out the window. For one thing, it wouldn't solve problem like bribes campaign contributions. I just wish the U.S. government would be a little more majoritarian. But I am also pleased to see the U.K. adopting a written constitution. Rule Britannia!

Too Much Democracy is Like Too Much Ice Cream

The Washington Post had a front page story on Sunday about the dumbest aspect of our American democratic system: judicial elections. Don't get me wrong, I believe going to the polls on Election Day is an almost spiritual experience. But it is possible to have too much of a good thing, especially when it comes to democracy.

Twenty-one states have direct elections for state judges. Some are partisan, some aren't. But all of them are getting out of control. So far the candidates for Supreme Court in PA have collected over $5 million. In 2006, the race for Illinois Supreme Court cost more money than 18 of the nation's 34 Senate races that year. And in 2004, the race for Chief Justice on the Alabama Supreme Court cost $8.2 million.

Who is footing the bill for these extravagant campaigns? Yep, you guessed it: big business interests. The National Association of Manufacturers and the Chamber of Commerce raised millions of dollars in its quest for tort reform.

But that's not the reason why judicial elections are a supremely stupid idea. The reason is that judges are not supposed to behave as political actors. They are government officials who review facts and evidence to produce an unbiased ruling. How are you supposed to be unbiased when you make campaign pledges to the voters, such as: "I'm pro-life. Abortion on demand is a tragedy. And the liberal judicial decisions that support it are wrong." (Actual quote from former Alabama Supreme Court Chief Justice.)

Judges should not be able to make campaign pledges to the voters in the same way that Hoover promised a chicken in every pot and a car in every garage. That's not what judges do. And besides, we can barely get the American people to pay enough attention to politics to know the names of the presidential candidates, much less what they stand for. How do you expect them to be familiar enough with incredibly long and complex record of judges to be able to support them with an informed ballot?

And let's not forget about negative campaigning, the political tactic du jour. One candidate for the Supreme Court of Pennsylvania has been labeled "the drug dealer's choice for Supreme Court." Somehow, I doubt that this is an appeal for support from the Association of Crack Dealers, Local 341. (Although to be fair, the A.C.D. Local 620 in Washington D.C.. is responsible for Marion Barry's entire political career. Beware of Big Oil, Big Tobacco, and Big Crack.)

PLEASE, leave the name calling of judges to trained professionals, such as yours truly. And you know what? As much as I dislike Justice Scalia, America is better off with him having life tenure than a national election for Supreme Court. The Constitution is supposed to be more permanent than legislative politics. It needs judges that are insulated from public opinion if it is to preserve the Constitution. If we had a national election for Supreme Court, Brown v. Board would have been overturned in six months.

The American judicial system deserves better than to be relegated to the superficial, rough-and-tumble arena of electoral politics.

The Bar Rises: Elite Supreme Court Advocacy

Richard Lazarus has a marvelously interesting article uploaded onto Social Science Research Network this week about the role that a few elite lawyers are playing on the law by being advocates, both in briefs and in oral arguments, before the Supreme Court repeatedly.

You can download the article here . Fair warning: it's 99 pages long, but it's quite readable and actually very interesting. Go ahead and skip the charts.

Anyway, Lazarus' point is that we have a few lawyers (call it maybe fifty, tops, out of the almost quarter-million admitted to the Supreme Court Bar) who appear again and again before the Supreme Court, and they're winning again and again, which means that clients are starting to want to hire them more and more often.

Why do you care? Because trust me, you do.

Let me ask you a question - who can afford the best advocates before the Supreme Court?

Answer: conservative interests, especially business interests.

So, when Plutonium Page explodes on the front page of Big Orange because ExxonMobil has convinced SCOTUS to hear a case on punitive damages , you have to realize that Lazarus' point is that the reason this case has been heard is because the elite Supreme Court Bar has been repeatedly advocating that there is a constitutional basis for setting aside high punitive damages from state courts.

When we're stunned by the erosion of antitrust law in the last ten years (assuming you're paying enough attention to BE stunned), Lazarus points out that in the ten antitrust cases heard since 1980, elite Supreme Court Bar have represented defendants petitioning for Supreme Court review in nine of them - and, strangely enough, businesses fighting an antitrust ruling against them have won in nine cases. Guess which nine. (You don't have to: the nine where the elite Bar members argued were the nine that businesses won).

Lazarus argues that it is the responsibility of these Elite bar members to spread the wealth, as it were, and ensure that their expertise is available to all parties. Don't get me wrong; a lot of these lawyers take on a lot of pro bono cases before the Supreme Court, and regard these cases as the bread and butter of their practices - the business cases are just to pay the bills. But let's face it - pro-consumer advocates just can't muster the same kind of firepower before the Court that pro-business interests can. Even if we set aside the questions of conflicts of interest, do you really think an advocate is going to throw away his credibility before the Court by appearing as a pro-consumer advocate one week, and then a pro-business advocate arguing just the opposite propositions in a different case the next week?

But the economics of the situation argue against the advocates spreading the wealth. There is, of course, the question of paying the bills. Just because you're a successful attorney with a highly lucrative Supreme Court practice doesn't mean you don't have to make ends meet. Certainly these guys could afford to live more simply than they do, but you still have to keep the lights on and the freezer stocked.

There's also the question of legal ethics. If a lawyer knows that they are the best man for the job, all factors considered (including the lawyer's case load, possible conflicts, and the client's ability to pay), can the lawyer send them down the road to a less-capable attorney? ABA Model Rule of Professional Conduct 1.1 demands that lawyers provide "competent" representation, and I'm not convinced that a state bar wouldn't find that a lawyer had been incompetent by refusing to take a case for which they were uniquely qualified, on the grounds that "someone else should get a turn."

Another question: Can the client tolerate anything less than the best they can afford? In other words, if the best lawyer WILL take a case, how does it make any sense for the client to want anything less?

No, the incentives of the system as they're constituted destroy any hope of ensuring equity of advocacy in anything other than an ad-hoc basis.

Solution: change the incentives of the system. Some of you know that I am a liberal because I am a free-marketeer; that I believe in the power of markets as theoretically constructed to ensure equitable distribution of resources; and that the role of government has to be to ensure that markets function as close to their theoretical construction as possible, which means maximizing the information and the leverage of the individual consumer, and is necessary acting as a super-consumer (shoving the invisible hand).

So, let's fix the market. How do we do that? Lazarus has a couple of possible solutions, including having the Court appoint elite Bar advocates for indigent criminal defendants and increasing Supreme Court clinics. Certainly I'd love to see a Supreme Court clinic at Alabama, and I'd sign up for it in about a heartbeat and a half. But I don't think it's the answer. The answer has to be to drastically increase the size of the elite Bar - get more lawyers before the Court more often.

So, how do we do that? Really, the only answer that works (and the Court will hate this solution, assuming it takes notice of such a pedestrian thing as what I have to say) is for the Court to grant more divided oral arguments. Without waxing too eloquent on the power of Supreme Court oral argument to shape lawyers, the more lawyers that appear before the Supreme Court, the more likely it is that lawyers who've never appeared before the Court will show up. So, when the Court grants an amicus curiae the right to appear in oral argument, the more likely it is that some new lawyer will show up, with hay still in his hair and a weather-beaten briefcase. Not really, of course; even the most inexperienced Supreme Court advocates fly in these days, and almost no one would be so dumb as to ride into Washington in a hayrick.

But the Court will hate this, because it creates more work for them. To which I say: Good! The Court's docket has been declining for years, and while I respect that the majority of the Court have been declining in intellectual capabilities , I am not particularly impressed by the argument that dumb people on the Court shouldn't have to work as hard.

'Scuse me while I pull my tongue from my cheek. My point is this: There is no excuse for the Court to hear as little as it does. If letting amici argue orally makes the Court work harder, or spend less time focussing on the claims of particular parties and spend more time on the policy bases of legal claims - that is no bad thing. And it is, I think, the only way to build the system so as to encourage more lawyers to get Supreme Court experience without unfairly prejudicing the parties.

The Dignity of the Legal Profession

Over at the Volokh Conspiracy, Professor Volokh asks,

"If you engage in a three-way sexual encounter with [a current client] and [the client's girlfriend], is it "sex with a client," as forbidden by ethics rules?"

For the result of the actual, honest-to-G-d ethics complaint that asked this question, see here.

I have neither the time nor the energy to make this shit up.

So, in case you were wondering, as long as you don't actually touch your client, you can DP his girlfriend with him all you want! To which I say, Amen.

But in all seriousness, I usually leave "justice" to the philosophers. But today I have to say:

Whiskey. Tango. Foxtrot?

I mean, seriously - if nothing else, we should look at the common, everyday usage of the term. Canons of statutory construction, people! I would clearly say, "Dude, I boned two girls last night." I might mutter under my breath, "So my girlfriend and I slept with this other dude last night. I might think in the dark recesses of my mind, "So I slept with this girl, and her boyfriend, last night." But in none of these cases would there be any doubt in my mind that I had sex with both the other participants.

And one last point - wouldn't you have loved to have been a fly on the wall in the conference where the ethics board decided this case? Or be a staffer at the bar when the complaint comes in? Yeah, me too.

Good enough for government work

The Department of Justice is seriously contemplating holding a completely new series of Combatant Status Review Tribunal hearings for every prisoner at Guantanamo Bay. In fact, it has petitioned the D.C. Circuit Court of Appeals to extend a deadline to finish these hearings. That sounds like a good thing, right? The original hearings didn't grant many rights to the defendants and much of the evidence was based on torture. Did the government have a change of heart and want to start over with a clean slate?

I can't even write that with a straight face. No, of course that is not the reason.

Thus, in a petition filed last Friday in the D.C. Circuit Court of Appeals, the DoJ argues that it cannot possibly comply with the federal appeals court's order of last July to turn over this evidence. Reasoning: 1) Disclosure could "seriously disrupt the Nation's intelligence-gathering programs" and cause "exceptionally grave damage to national security." No surprise there. But it also argues that 2) the information used against the detainees at the CSRTs "is not readily available, nor can it be reasonably recompiled."

Or as Slate puts it: My dog ate my evidence. As if it weren't bad enough that the government went out of its way to circumvent the Constitution in detaining these men in perpetuity without charge, but now we have the icing on the cake - bureaucratic incompetence.

I should be more upset about this, but I am too fatigued from every other outrageous thing the Bush Administration has said or done recently. But there you have it. The evidence used to keep people in Guantanamo is so slipshod, they have literally misplaced it.

Arlen Spector: Thank you, I'll be here all week

I know it has been a while since I actually wrote about law or the Supreme Court, but there have been lots of nice distractions that I thought were dictaworthy. Here is another example: Senator Arlen Spector (R-PA)...doing stand up comedy...pretty well. If you can devote ten minutes to watch all of it, you should.

Guns don't kill people. Chuck Norris kills people.

Extra, extra!! Chuck Norris has made an endorsement in the race for the White House! Who is the lucky candidate to benefit from Norris' superpower? Mike Huckabee.

“Though Giuliani might be savvy enough to lead people, Fred Thompson wise enough to wade through the tides of politics, McCain tough enough to fight terrorism and Romney business-minded enough to grow our economy, I believe the only one who has all of the characteristics to lead America forward into the future is ex-Arkansas Gov. Mike Huckabee,” Norris said.

It is important to remember one of the most basic facts about Chuck Norris: America is not a democracy, it is a Chucktatorship. Talk about momentum, first a suprising showing at the Ames straw poll, then a near win in the Values Voters Summit straw poll this weekend, now you have Chuck Norris (and more importantly his fists of steel) on your side. Huckabee will be unstoppable (insert evil laughter here).

And now a gratuitous review of my favorite Chuck Norris facts:

• There is no chin behind Chuck Norris’ beard. There is only another fist.


• Chuck Norris’ hand is the only hand that can beat a Royal Flush.


• Chuck Norris is currently suing NBC, claiming Law and Order are trademarked names for his left and right legs.


• Chuck Norris is the reason why Waldo is hiding.


• Once, while having sex in a tractor-trailer, part of Chuck Norris' sperm escaped and got into the engine. We now know this truck as Optimus Prime.

Retarded state legislators: Ohio edition

In case you missed this story from earlier this month (I know it isn't about a piece of legislation, but it is still worth mentioning):

Lawmaker Shows Nude Photo to Students
Associated Press

NORWALK — A state legislator surprised a high school class when the computer he was using projected a photo of a nude woman during a lecture on how a bill becomes a law.

State Rep. Matthew Barrett was giving a civics lesson Tuesday when he inserted a data memory stick into the school computer and the projected image of a topless woman appeared instead of the graphics presentation he had downloaded.

Police interviewed Barrett and school officials and seized the data memory stick and the computer to determine where the image came from, a state highway patrol spokesman said.

Barrett said there were a few snickers from the approximately 20 students in the senior government class at Norwalk High School when the image appeared. He said he immediately pulled the memory stick out of the computer.

The legislator said he finished his lecture using printouts and then met with the school's principal and technology staff, who examined the stick. He said the school's
technology director determined the stick had a directory of nude images in addition to Barrett's presentation on civics lessons.

"I have no idea where these came from," the Democrat said.

Barrett said the data memory stick was a gift he received about three weeks ago from a legislative liaison from the state Library of Ohio.

Sure, blame a library staffer...likely story...how convenient. Is Larry Craig your public relations consultant?

Potty Mouth

A woman in Pennsylvania was issued a citation for disorderly conduct for shouting obscenities at her overflowing toilet. Neighbors in an adjacent apartment called in the noise complaint to the police.

The charge carries a maximum punishment of 90 days in jail or a $300 fine.

"It doesn't make any sense. I was in my house. It's not like I was outside or drunk," the woman, Dawn Fern, told local media.

She makes a pretty decent legal argument. Orrin Kerr over at the Volokh Conspiracy points out that her conduct does not meet the criteria set forth in the Pennsylvania statute on disorderly conduct:

Let's assume that Herb's yelling amounted to "unreasonable noise" or "obscene language." The statute only prohibits such yelling "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof." Did Herb do that? It seems pretty clear she didn't. The word "public" is defined in § 5503(c): As used in this section the word "public" means affecting or likely to affect persons in a place to which the public or a substantial group has access.

The ACLU, on the other hand, takes a somewhat different view. Said a spokeswoman: "You can't prosecute somebody for swearing at a cop or a toilet."

God bless the Framers of our Constitution. They recognized the importance of free speech because it is one of the few things that can help you cope with an overflowing toilet.

Look at Me, I'm Sandra Dee.

Bizarre turn of events here at the Dicta: in my Clark-Kent life as a second-year law student, I'm taking a seminar on this fall's term before the Supreme Court. This seminar is taking the form of a simulation - where each student attempts to predict the vote of a sitting Supreme Court justice.

But there are ten students in the class, and so I have found myself, somewhat bizarrely, delivering the last word in each class by attempting to divine Sandra Day O'Connor's vote, in an effort to evaluate the impact of her departure from the Court.

Thus far, we have simulated two cases - Watson v. U.S. and Stoneridge Investment Partners LLC v. Scientific-Atlanta and Motorola. In Watson, Justice O'Connor's vote turned out not to be pivotal - our class predicted a finding for petitioner by a vote of 7-2, overturning the sentence enhancement in that drug-trafficking charge.

But in Stoneridge, a bizarre result occurred. By our best guess, we think that the Court will come down 4-4 (Justice Breyer is recused). If Justice Breyer were in the case, we think he would vote for respondent, making the case 5-4, affirming the dismissal of the complaint.

A little bit of background is in order: Stoneridge arises from an investor fraud undertaken by Charter Communications, a cable company. See, what had happened was: Charter went to respondents in this case, two suppliers of cable boxes, and said, "Here's the deal: we'll pay you more per box, and you turn around and spend that money on advertising at above-market rates with us. You get free advertising, there's no net cost to us for the boxes, but our revenue stream looks better and we can hit our earnings estimate."

Scientific-Atlanta (SA) went along with the scheme, producing a letter justifying the price increase due to "increased manufacturing costs." Motorola went along but produced no such document.

Petitioners in this case sued SA and Motorola, alleging that they had participated in a scheme to defraud Charter's investors, even though there had been no statement by either of them on which Charter's investors would have relied. But as to how and why that works gets into Securities Act stuff that is more complicated then you want to fool with. Hell's bells, it's more complicated than I want to fool with.

But here's the scary thing: Justice O'Connor's presence on the Court would have shifted the balance, I predict. Justice O'Connor, I think would have said that as a matter of law, if a supplier or subcontractor or some sort of subordinate entity actually acted fraudulently, then they could be held liable. That's sorta the kind of seat-of-the-pants kind of jurisprudence that Justice O'Connor always liked - did it seem "reasonable and sound" to do it this way? And it does seem "reasonable and sound" to say that if you actually do something wrong, you can get nailed to the wall.

So what about the law as applied to this case? After all, Article III requires that Justice O'Connor actually be talking about a case that affects real people. First of all, because of the procedural posture of the case (a Rule 12(b)(6) motion, for you Federal Rules of Civil Procedure geeks), petitioner's facts were taken as entirely true.

But, under the Private Securities Litigation Reform Act, lawsuits lying in private causes of action created by the Securities Act must plead their facts with specificity. If I'm suing Motorola because a poorly-constructed phone gave me brain cancer, I can say "Motorola knew or should have known that their phone could have caused cancer," and that's sufficient to state a claim. If I'm suing Motorola for defrauding me as a Charter investor, I have to say something like, "Motorola wrote me a letter telling me that Charter was a company with sound financials and that I should invest in it, when they knew that Charter was about to release a report of record losses smeared in pig feces."

So, Justice O'Brandeiser looks at the pleadings, and finds, lo and behold and glory be! that the petitioners managed to actually allege a fraudulent action on the part of one defendant, but not on the other (remember, SA wrote a letter justifying the price increase, which it is not alleged Motorola did). So, I affirmed the dismissal as to one plaintiff and reversed as to the other. My professor called it "ingenious" and "exactly the sort of split-the-baby that she would have done."

But I'm not just tooting my own horn - I do, in fact, have a larger point. With Justice O'Brandeiser's vote, the Court would have split 5-4 for petitioners - 5-3 if you boot Justice Alito and keep Justice Breyer recused, but even with Justice Breyer, still 5-4. But who cares, right? It's just an obscure securities case, right?

Well, not really. Anybody remember these guys? They're broke now, and the only hope that the biggest victims - individual shareholders, especially former employees who got locked into company stock in their 401(k)s - have to recover even a fraction of their losses is to be able to sue those who assisted with the fraud but didn't actively participate in making false statements to deceive shareholders. But if the Court affirms the Eighth Circuit, as our class predicted they will, all those people are sunk.

I never thought I'd say this - Come back, Sandra, come back. We're toast without you.

Supreme Dicta mentioned in Blawg Review

Thanks to the good folks at Blawg Review who sponsor an excellent weekly summary of the blawgosphere. Supreme Dicta is mentioned here (there are a lot of links, I suggest searching for Supreme Dicta). Maybe one day I will have a track record sufficient to host an issue of Blawg Review...

Supreme Dicta gets recognition from Award Winning Blawger!

Woo hoo!! First a mention in the Cleveland Plain Dealer and now this (sort of) humble blog has caught the attention of the good folks over at Quiz Law, a certified "Most Popular Blawg." Here look!



If you enjoy reading me, you will absolutely love Quiz Law. You should read it frequently (so long as you don't forget about me)!

Yesterday in legal history

On October 14, 1958, (49 years ago yesterday) Potter Stewart was sworn in an Associate Justice of the Supreme Court. Stewart, so some might argue is a judicial moderate in the mold of Justices O'Connor and Powell, often found writing conservative dissents on the Warren Court. See, e.g. Miranda v. Arizona, Abingdon v. Schempp. On the application of the 8th Amendment to capital punishment, he sided with the majority in Gregg v. Georgia (invalidating the death penalty) and then with the majority again in Furman v. Georgia (reinstating the death penalty). But Justice Stewart will go down in the history books for a brief quip about judging obscenity in First Amendment cases.

Do you remember the line?

I'll give you a hint...

Happy anniversary, Justice Stewart. BTW, this is a real photo. I have neither the time nor the energy to make stuff like this up.

Affirmative Action Does Not Protect Pat Robertson

Anyone with a modicum of familiarity with legal history would probably agree with the title of this post. And yet I read this via Above the Law...

If right-wingers are underrepresented in universities relative to the population and discriminated against by the left-wing majority, as [former Harvard president] Larry [Summers] suggests, should there be affirmative action for right-leaning academics?

It seems that, on principle, those on the left (who favor affirmative action to promote diversity and correct past injustice) should endorse such a university policy, and those on the right (who more often oppose affirmative action) would be against.

AARRRGGGGHHH!!!! When conservatives become so endangered as a species that they need special government assistance created to correct the injustice of slavery?!?

Affirmative action policies have their genesis in the Civil Rights Era. They were initiated as a tool to correct decades of segregation and centuries of slavery that held African Americans back as second-class citizens (or even three-fifths of a person). Then Justice Powell came along and screwed everything up.

Justice Powell, proving that pragmatic jurisprudence is often a recipe for disaster, ruled in the landmark case Regents v. Bakke that while racial quotas in college admissions were unconstitutional under the 14th Amendment, that less invasive affirmative action policies could be justified under a diversity rationale. According to this thinking, which Justice O'Connor reaffirmed in Grutter v. Bollinger, is that all students benefit from a racially diverse student body, and thus public colleges can utilize affirmative action policies that do not amount to quotas.

The diversity rationale of affirmative action is to expose students to a community of people that they may not have had past experience with. In other words, thanks to de facto housing discrimination patterns, white kids often have no interaction with black kids growing up. White kids have plenty of experience interacting with conservatives. They make up a third of the electorate (even more so among the white population). The kind of interaction that affirmative action is designed to promote is an exchange of cultures, backgrounds, and traditions. Do you gain any of that with a conservative (white) teacher? No!

Besides if students want a conservative education, there are plenty of theocratic or reactionary institutions that they can choose for their college years. Since when did the 14th Amendment mandate hiring college professors based on their political leanings? And since when did a professor's political leanings affect the quality of their teaching?

But the diversity rationale obscures a fundamental truth. The 14th Amendment is not color-blind. When a majority of citizens uses its power to restrict the rights of a minority of citizens, that is a denial of equal protection. However, when a majority of citizens gives special advantages to a minority of citizens, that is called altruism, not discrimination.

If well-educated, middle class, white families feel their kids are being discriminated against in college admissions, they should contact their well-educated, rich, white elected officials and get them and their white colleagues to eliminate affirmative action policies. They should not go marching off to court and claim that they are being treated like second class citizens.

What a bizarre claim, that a constitutional right that was designed to keep blacks from being lynched and disenfranchised also protects the right of middle class white children to go to their first-choice college. To compare this kind of denial of education to the denial of education that African Americans suffered for a century is insulting.

Grr!! Scalia Smash!!

Technically, only the Chief Justice has a gavel, but the point is worth making...

The Virtue of Virtue

I am currently studying in law school, as the ten people who read this might know, and I'm right now taking a class on corporate scandal and reform - essentially, how Enron happened and how Sarbanes-Oxley and other responses purports to address and actually addresses the Enron problems.

The point of that is this: my professor wrote an article with the same title as this post, talking about, essentially, how law can only go so far in creating an environment of investor and consumer confidence in capital markets - that at some point, it is necessary to admit that we are dependent on the integrity of actors both at the corporate level and at the market level.

And he's right. The role of law in preventing fraud and corruption is limited. Ultimately, the best role that law can play is that of deterrent and enforcement - it cannot proactively create an environment in which actors don't WANT to cheat; merely one where they choose not to.

But there's a problem. When the enforcement of the laws is arbitrary and capricious; when it is based on a proposition other than the question of whether a law was actually violated; when law takes a back seat to power; then the entire scheme breaks down. At that point, what becomes clear is that law depends not on what you do, but who you are.

In case you were wondering, the word "privilege" comes from two Latin roots that translate literally as "private law." And that is what happens when Justice peeks from under her blindfold; those who are privileged realize that they will not be punished. And so they act in accordance with that realization. Some (those with integrity) will not do wrong; others may.

Which brings us to Paul Minor and his judicial co-defendants. A little bit of background might be in order. Briefly (the long version in the link):

Three prominent Democrats and a Republican who supported individual plaintiffs in tort cases were indicted on federal corruption charges (bribery, honest-services mail fraud, and some others). They were tried. One (the Republican, Mississippi Supreme Court Justice Oliver Diaz) was acquitted on all charges, the other three were acquitted on some charges and the jury hung on others. In a second trial for the hung charges, the three Democrats, trial lawyer Paul Minor and judges Wes Teel and John Whitfield, were convicted. Now, in all fairness, a good friend of my family once told me of Oliver Diaz that "he didn't need to be bought," but that is neither here nor there. I am not familiar yet with the relevant background law, but I'm going to get up to speed (in my "spare time"). But I do know this, first of all:

Legal Schnauzer has incorrectly stated the holding of U.S. v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993), where they say that the fact that bribery involves an intent to affect a quid-pro-qou. Don't get me wrong; that is, in fact, exactly what Mariano holds. But the case is not directly on point. In that case, the defendants had actually intended to affect a quid-pro-quo. Thus, in this case, the holding is merely persuasive authority, with its persuasive value reduced by the fact that is not binding in Judge Wingate.

What, you didn't know that? If a judge has no power to force a lower court to follow her rulings, that judge's opinions cannot bind a lower court. Thus, Judge Wingate was bound only by United States Supreme Court and Fifth Circuit precedent; neither of which have passed on this issue.

In addition, Legal Schnauzer has also misunderstood the conviction. Let me rephrase that; the bribery charge includes a lesser included offense of giving an illegal gratuity, 18 U.S.C. Sec. 201(c)(1)(A). This offense is defined as giving something of value “for or because of any official act performed or to be performed by such public official.” To be fair, this particular statute arguably applies only to federal officials, Sec. 201(a). But, and again, I do not have all the facts yet, it is possible that the jury instruction that LS finds so offensive referred to the illegal gratuity lesser included charge, which would be perfectly all right. And unfortunately for Minor and his codefendants, the illegal gratuity statute does not require any sort of quid-pro-quo.

Also unfortunately for them, despite Judge Wingate's apparent confusion regarding the rules of evidence (again, I don't know and I am loathe to assume that a federal judge got it wrong), it as a canon of appellate review in this country that an appellate court will affirm a lower court's decision for any reason in the record, even ones that the lower court did not follow. In other words, as long as you get the right answer, the method you use to get there doesn't matter.

As to Judge Wingate's evidentiary rulings, even assuming they are erroneous, I suspect that the Fifth Circuit will find them to be harmless error; given that the evidence the expert witnesses would have provided was irrelevant to the lesser included charge, I suspect that the Fifth Circuit will find that even with that testimony, the jury could have found the defendants guilty. Therefore, even if the result is ultimately unjust, I doubt it will be disturbed.

Were these four men the victims of a "partisan witch hunt?" I suppose it's possible. But in a cursory review of the file, I'm not convinced of any sort of error that is reversible upon appellate review. And there is certainly no evidence in the record of partisanship influencing the decision. The best you can offer on that is Judge Wingate's evidentiary rulings and the jury instruction; and as I've shown, it is at worst equally plausible that the rulings were at least arguably correct.

But there's a larger issue here. What does it say about our justice system that someone can put together a patchwork of actions and convince themselves that there really is some sort of partisan witch hunt going on? What has happened when officeholders on trial for corruption can claim that their opponents are attempting to bring them down, and have it actually be plausible?

Needless to say, I am appalled by the fact that reasonable people can even argue about this question. Because I admit, there are things about the trial that seem fishy. But what is appalling is not that there were errors made; courts make errors all the time, even when the law is settled. A judge misreads the law or just never understood it, an ambiguous decision is poorly interpreted, or the lawyers screw up and the judge doesn't catch it, and that's why G-d made appellate courts. What is frightening is that Republicans who put Party over Country have so confused Americans of every race and creed, have so utterly bamboozled us, that we think it's normal for appointed officials to play partisan games with their supposedly neutral offices.

The most important thing that can happen in the election this November and next November is for Americans to stand up, together, and repudiate the idea that officeholders should be looking for ways to perform their duties in a manner that advances their political ideology. I had hoped we had moved past this in the Civil Service Reform battles of the late 19th century, but apparently we have not.

This is the single, overarching issue; it's a simple return back to the culture of corruption. How can we trust any officeholder that was complicit in the development of this system, where we can believe that our judges aren't impartial and nautral? And that's the most frightening thing:

That we can believe that this is no longer a nation of laws, but of men.

Tell me lies, tell me sweet little lies

The Washington Supreme Court concluded this week that the First Amendment's protection of free speech includes the right of politicians to tell lies to voters. In a contentious 5-4 decision, the court struck down a state law that imposed a monetary fine on candidates who deliberately make false statements.

The case in question involved a race for state senate, in which a Green Party candidate accused the Democratic incumbent of voting to shut down a state institution in his district. The senator actually voted against the budget that included the elimination of that facility...your standard political campaign lie. The incumbent won re-election and filed a complaint with the State Public Disclosure Commission, which resulted in a $1,000 fine to the Green Party candidate.

The court's majority opinion notes: "The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment."

Come on, even a civics teacher could tell you the people are lousy arbiters of truth. In 2003, the Bush Administration lies convinced 45% of the American people that Saddam Hussein was personally involved in planning 9-11. Lies become realities if they are not effectively challenged.

Why is this campaign for president going to cost over $1 billion? Because the most effective way to persuade voters is slickly-produced TV commercials. In the age of the Internet, in which people have FREE access to limitless amounts of information, the American public needs to be spoon-fed their politics 30 seconds at a time in between segments of Survivor. Given this stunning lack of engagement, how are the people supposed to tell truth from fiction.

The answer to this deficiency in our political system might be to revert to the old Electoral College system, in which the people only play an indirect role in selecting our leaders. The real influence comes from the College itself - made up of people who actually follow, understand, and appreciate politics.

OK so this is probably an overreaction. But, I do think a reasonable approach is to attach monetary fines to candidates that knowingly make false statements. We can trust the people's judgment only when they are able to act on good political information. I'm not saying that the government should have the power to void the outcome of an election over lies told on the trail, but a $1,000 fine seems reasonable. State boards of elections make inquires all the time into ethical campaign conduct from accepting donations from foreign donors, to failing to disclose campaign expenditures, even campaigning too close to a voting booth on Election Day. Why is this type of ethical investigation any different?

Yes there will be LOTS of instances where candidates don't knowingly or explicitly lie (rather they make misrepresentations, stretch the truth, take statements out of context, etc.) But when a candidate says an incumbent voted for X and in actual fact he didn't, that's a clear lie. I don't mind the government labeling it as such.

The justices in Washington invoked the memory of Justice Brandeis in their majority opinion, saying: "The best remedy for false or unpleasant speech is more speech, not less speech." It's not surprising that Brandeis would say that. He was a well known drunk and pedophile. Wait a minute, no he wasn't. Does making such a bold lie advance political discourse on this issue? NO. Lies poison discourse, spread apathy and undercut the legitimacy of our political institutions.

As a coda to this post, I can't think of a better example of telling the truth in politics than Mr. Smith Goes to Washington. Here's a short clip from Jimmy Stewart's memorable filibuster. Enjoy!

I'm a Democrat, and I enjoy smoked gouda

When it comes to coverage of the Court, few people are as talented as Dahlia Lithwick at Slate. Here is a snippet from the Court's first oral argument of this term:

Argument in this morning's first case is mostly an exercise in bewilderment as to why the court agreed to hear this case in the first place. Washington State Grange v. Washington State Republican Party tests the constitutionality of the primary elections system in—yes—Washington state. A state ballot initiative, adopted in 2004, allows candidates to list their party "preferences" on the ballot—even when they are not the nominee or in any way affiliated with that party.

The Supreme Court stuck down California's so-called "blanket primary" system in 2000 in California Democratic Party v. Jones. The rationale was that California's system—which, somewhat like Washington's, allowed any voter to vote for any candidate—diluted the political parties' First Amendment right of free association, also known as the parties' right to decide who gets to play in their tree fort. The Washington state Republican Party challenged its state's primary system on similar grounds.

It's clear from the outset that the parties' right to defend the sanctity of their tree fort will prevail. Justice Samuel Alito asks Washington state Attorney General Robert McKenna what possible purpose the state could have in requiring that candidates announce their potentially misleading party preferences on the ballot. Isn't there something more interesting they might list? (Their favorite cheeses, perhaps?)

Roberts worries that candidates might "look like Republicans but aren't." McKenna says there is really no reason to fear voters will confuse a candidate's party preference with that party's endorsement. Souter asks whether this distinction ever happens in the real world: "Do you know any people who go around announcing, 'I really prefer the Democrats. I'm a Republican myself.'?" McKenna names Sen. Joe Lieberman. Souter laughs, "There's always one."

Hi-yo! You are correct, sir!

What a stupid law - if candidates are not nominated by political parties, they should not be affiliated with one on the ballot. You might ask, how does the average (pea-brained) voter know who to vote for? The sample ballot distributed outside the polls. Virginia, for example, conducts non-partisan elections for county school boards. However, the Democratic and Republican parties print sample ballot that include recommendations (but not endorsements) of which school board candidates to vote for. That way everybody is well informed while the fig leaf of non-partisanship is upheld.

Non-Sequitur

I know this story doesn't have much to do with the mission of this blog, but it is too damn funny for me not to share it with you:

Sen. Craig to Join Idaho Hall of Fame

BOISE, Idaho (AP) — Sen. Larry Craig has been chosen for induction into the Idaho Hall of Fame, despite his well-publicized arrest and guilty plea in an airport sex sting, officials said.

The nonprofit Idaho Hall of Fame Association picked Craig in March, months before he pleaded guilty to disorderly conduct after a Minneapolis airport police officer accused him of soliciting sex in the men's restroom, the organization's board chairman said.

"Larry Craig has made a great contribution to Idaho over the period of 20-some years. At the time it was considered, this other matter had not come up," Harry Magnuson told The Spokesman-Review newspaper Saturday.

But some Republicans said the honor is inappropriate now. Kootenai County Republican precinct committeeman Phil Thompson said Idaho Hall of Fame officials should consider at least postponing the induction.

"Maybe in 10 or 15 years we can think of this hall of fame stuff. Now is not the time," he said. "It's a sad day to be a Republican."

Craig vowed Thursday to serve out the last 15 months of his term, despite a court ruling that left intact his guilty plea in the sex sting operation.

Several people are scheduled to be inducted during the Oct. 13 ceremony alongside Craig, including Gov. Butch Otter, Lt. Gov. Jim Risch, Boise State University football coach Chris Petersen and John Grossenbacher, director of the Idaho National Laboratory nuclear and energy research center.

About 100 people have been inducted into the hall since 1995, including the late Nez Perce Tribe leader Chief Joseph, Coeur d'Alene writer and historian Louise Shadduck, World War II fighter ace Gregory "Pappy" Boyington and newspaper and hospitality magnate Duane Hagadone.

More First Monday Fun!

I love the Daily Show's coverage of the Court. Remember the Wheel of Kennedy? However, I would like to less coverage of the Court on the Daily Show because Stewart only pokes fun when the Court does something crazy/conservative. Anyways, enjoy!

Courting Justice Kennedy

In a totally out of character move, NPR aired a delightful parody of Justice Kennedy on Monday's Morning Edition. Take a listen.

Happy Anniversary, Thurgood Marshall!

Thanks to the good folks over at FindLaw's Today in Legal History for letting me know that it was on this day forty years ago that Thurgood Marshall was sworn in as the first African-American justice of the Supreme Court. Marshall had been confirmed to the Court by the Senate in a remarkable 69-11 vote (with 20 senators not voting).

I could go on and on about Marshall, his brilliance, his legacy (I even had the privilege of working briefly with his son), but I won't. Instead, I urge you to watch this video clip of Thurgood Marshall being interviewed by Mike Wallace sometime during the late 1950's. (Also, I could help but chuckle that Wallace is smoking a cigarette on camera and does a commercial at the end for a toy company.)

Justice Thomas Speaks (Miracles CAN Happen)

Look up the word taciturn in the dictionary and you will see a picture of Justice Clarence Thomas. (While you have the dictionary handy, look up Coca-Cola and you might see Clarence too.) Justice Thomas almost never asks questions in oral arguments, and though he has written more dissenting opinions than almost any other member of the Court, he has only read a dissent twice in his 15+ years on the Court. By contrast Justice Scalia has read dissents from the bench 14 times during his tenure. And in his entire tenure on the Court he has never granted a TV interview.

Until yesterday's 60 Minutes. (I wanted to embed the video here, but the bastards at Viacom want you to view it on their site, thus: Part I and Part II of the interview). Thomas, who is promoting his new memoirs, My Grandfather's Son, spends much of the piece discussing his childhood and its impact on his view of life and the law.

I really do not understand how a man who grew up in a shack with no electricity or plumbing can grow up to become the country's foremost originalist. It just does not make sense. Holding a libertarian view of the Constitution virtually guarantees that millions more children will grow up in the kind of virulent poverty Thomas experienced. I don't understand why someone who benefited from affirmative action his entire career condemns it on every occasion. Affirmative action is not like having AIDS, you can admit it without people thinking worse of you.

Most importantly, I don't understand how any African American can look at the year 1791 and think "those were the days!" Thomas' approach to the Constitution commands him to accept himself as being only 3/5 of a person. Why?...Why can't you embrace the fact that the Constitution has gotten better over time? Why is change so scary when that change liberated your ancestors?

Maybe Thomas doesn't have a good answer to these questions. Maybe that's why he never speaks...

Happy First Monday!

Today is the First Monday in October, which is the date mandated by Article III of the Constitution as the first day of the Supreme Court's new term. Although I have to admit, I am not having as much fun on this particular First Monday.

The Washington Post had an annual tradition of posting a Supreme Court Quiz for its Court-nerd readers on First Monday. Apparently, the quiz is no more. :( I am sending an angry note to the Post reporter who covers the Court, who usually is the author of the quiz.

The Court is not going to shy away from controversy this term, in keeping with its recent trends. Upcoming cases this term will tackle terrorism detainees, limits on executive power, lethal injection as a form of capital punishment, voting rights, and maybe even wading in on the meaning of the 2nd Amendment for the first time.

Many experts are predicting (shocker) lots of 5-4 decisions with Justice Kennedy playing a decisive role. Although this year, he may push the Court to the left instead of the right:

But if there is a difference this year, it could be that the court -- balanced with four reliable conservatives, four reliable liberals and one man in the middle with an outsized influence -- might teeter occasionally more to the left.

That is because Justice Anthony M. Kennedy's starring role last term -- he was the only justice in the majority in each of the court's record number of 5 to 4 decisions -- seems likely for an encore but in a different direction.

While Kennedy's conservative views on abortion and campaign finance laws grabbed attention then, "the menu for this term is shaping up to be the other way around," said Garnett. For instance, Kennedy has voted against the government in each of the detainee cases the court has heard, and his past opinions signal the central role he is likely to play again in other areas.

It will certainly be interesting to watch. Speaking of things that are interesting to watch, I will have a post about Justice Thomas' interview on 60 Minutes later today. (Thomas gave an interview? I didn't know that the man had vocal chords).