Archive for May, 2008

The Slithergadee

May 30, 2008

The Slithergadee has crawled out of the sea.
He may catch all the others, but he won’t catch me.
No you won’t catch me, old Slithergadee,
You may catch all the others, but you wo–

Shel Silverstein


Here Come the Judges

May 29, 2008

Exxon-Valdez Oil spill

The Supreme Court has issued 38 opinions so far in this year’s term. That leaves 41 to come between now and the end of June. Many are unlikely to make headlines. ERISA, FOIA, ADEA, paralegal services, interpleader, Article III standing and a patent case are just some of the expected yawners. Yawners, that is to everyone but lawyers and judges. Other cases unlikely to make major headlines involve federal criminal sentencing, when the right to counsel attaches, the reach of Indian law over non-Indian banks which own Indian land, money laundering and an technical question about a provision of immigration law. An Equal Protection opinion is coming as well.

More interesting opinions will include a decision about a criminal defendant’s right to confront the witnesses against him when he has secured the absence of that witness — by murdering her. A habeas corpus decision involving an American convicted of a crime in Iraq will be decided. And there is a case about the “millionaire’s amendment” to the campaign finance laws which enlarges the amounts of money an opponent of someone who contributes more than $350,000 to his or her own campaign can raise. A Louisiana case involving the death penalty for a child rapist will get decided. Two cases about the Western energy crisis of 2000 will be decided before the term ends. A union organizing case will make headlines. Another will decide issues surrounding payment to civilian contractors and sub-contractors for the Arleigh Burke class missile destroyers.

Arleigh Burker destroyer

And then there are the biggies. A major terrorism opinion about the “detainees” is coming. We may learn whether the Second Amendment protects an individual right to own firearms. And the Court will decide if Exxon has to pay punitive damages for the Exxon-Valdez oil spill off Bligh Island in Alaska. It is likely that those decisions will not issue until late in the month. The duck pictured here does not get a vote.  That is the oil spill pictured at the top of the  post.

Oil covered duck

The Court is currently scheduled to release opinions on June 2, 9, 16 and 23, although it often schedules other release dates in June. The Justices begin their summer break June 24.

Ersatz Judging

May 27, 2008

My dictionaries define “ersatz” as an adjective, denoting an inferior quality substitute. Think “ersatz coffee” for instance, a warm fluid made of chicory beans, masquerading as real coffee.

The same dictionaries define stare decisis [Latin: “to stand by things decided”] as the policy of the law requiring courts to abide by earlier cases applicable to a set of facts.

So if you are an “activist judge” and you don’t like earlier cases which, if you followed them, would lead you to a result you don’t like; “ersatz” is a handy adjective to have around. Just put it in front of “stare decisis” and you are free to do whatever you want; never mind what you told the U.S. Senate at your confirmation hearing. And, if you happen to be on the Supreme Court, you can berate your fellow justices thusly,

The Court today retreats behind the figleaf of ersatz stare decisis.

Which is what Clarence Thomas and Antonin Scalia did today, dissenting from an opinion holding that “discrimination” includes retaliating for complaining about discrimination.

An assistant manager of a Cracker Barrel restaurant got fired, allegedly because he complained about another assistant manager being fired because she is black. So the issue in the case was, simply put: Can an employer fire somebody for complaining about illegal discrimination? (Obviously the answer is no and why it took another Supreme Court decision to say so is a comment on our times.)

According to Justices Thomas and Scalia though, firing someone for complaining about illegal discrimination is “conceptually” different than firing someone on the basis of her skin color. If I fire someone because she is black, I am firing her because of her status which is illegal. But, if I fire her because she complains about me discriminating, I am firing her because of her conduct which, because it did not use the word “retaliation,” Congress has not outlawed.

If this seems to you like hair-splitting, you can join me on an ersatz supreme court. We’re not likely to make it to the real one.


Here is Linda Greenhouse on the case. She doesn’t get to the ersatz quote until the last paragraph. Does that make her ersatz? Will the New York Times cover our new Ersatz Supreme Court?


UPDATE – May 29, 2008. In case anyone was still laboring under the misapprehension that the Washington Post remains a “liberal” newspaper, here is today’s editorial on this case. The New York Times also weighs in.


May 26, 2008

Today is Memorial Day in the United States, the day set aside to remember our fellow citizens — more than one million now — who have died performing their duties as members of the armed forces of the United States.  We pause to remember:

Affirmative Action

May 24, 2008

Affirmative actioin in action

Owls, Trees and Bribes

May 22, 2008

(Editor’s Note: We’ve spent this week dissecting the recent opinion of the Ninth Circuit Court of Appeals about proposed timber sales in the Sierra Nevada mountains. We conclude that series today. Here are the links for Part One and Part Two.)

U$ Forest Service

Bribery is a crime. It makes no difference if the bribe is paid by an individual or a group or even a group of corporations, say a trade association. Bribing an employee of the Forest Service is a crime. But bribing the entire Forest Service? Well, that is not so clear. Nor is it clear when, and to what degree, citizens are entitled to decision-makers whose impartiality is not spoiled by a financial interest in the outcome of the decisions.

Which is why Judge Noonan, appointed to the federal bench by Ronald Reagan and author of a legal treatise on bribery, added a concurring note to his opinion for the court of appeals. Here is what he said,

The financial incentive of the Forest Service in implementing the forest plan is as operative, as tangible, and as troublesome as it would be if instead of an impartial agency decision the agency was the paid accomplice of the loggers.

Judge Noonan makes room for the possibility that “necessity” can carve out exceptions to the general rule that adjudicators should not have a financial stake in the result of their decision. But Judge Noonan isn’t ready to concede that the Forest Service is actually necessary. He says, “it might be argued that the USFS is necessitous. . .”

But, even if it is, the Forest Service which, “says it doesn’t have the money it needs unless it sells the forests,” can get the money somewhere else. After all, this is a nation, “whose credit . . . is strong enough not to require supplementation by sales of the nation’s timber.”

Because Forest Service decision-makers are influenced by the monetary reward their agency gets from timber sales; Judge Noonan, conservative Judge Noonan, thinks the court is required to stop the whole process because it is corrupted by the money.

The Forest Service, which I remind you is an agency of our government, whose employees are paid salaries by our tax dollars, knows that it is not an impartial decision-maker; so, it told the court it doesn’t have to be impartial. Why? Because timber sales deprive no one of life, liberty, or property which is the only time citizens are entitled to due process. These are just trees and they are on public land, so no one is entitled to due process of law. True, due process demands impartiality; but since due process isn’t required, neither is impartiality.

The Forest Service did not make that stupid argument in any of the papers filed in the case. It made it only during oral argument, probably hoping that the public would not get wind of it. Judge Noonan deserves our thanks for telling us. These people are supposed to be public servants.

Having brought that contemptible argument to our attention, Judge Noonan flung it into the waste basket.


UPDATE – Today comes news that the California and the Northern Spotted Owl are not only endangered because of loss of habitat and the Barred Owl invasion; blood parasites are after them as well.  Of course, they are not the only species in trouble as this New York Times article shows.


May 21, 2008

It is sometimes said that the good die young. Often though, they die old and full of years.

Yonder 1995-2008

A being about whom it can truly be said, he left the world a better place than he found it.

That’ll do, buddy. That’ll do.

Owls and the Law

May 20, 2008

American marter

Yesterday, before the editor rudely cut me off — and just because of a little joke, we were discussing the forests in the Sierra Nevada. I was forced to leave off just as the trial judge denied a preliminary injunction and the chains saws were being sharpened for logging to begin next month.

A preliminary injunction is a court order stopping something that will irretrievably change the status quo before the law suit can be ended. Once you cut down a tree, you can’t put it up again.

But there are rules about this sort of thing. Judges, as we’ve talked about before, don’t get to do whatever they feel like. And they can’t issue preliminary injunctions unless certain legal standards are met. In the case of the Sierra Nevada, the environmentalists must show that they will probably win the lawsuit and that irreparable harm will happen if the courts don’t stop the timber sale.

To do that, they have to convince the court of appeals that the 2004 plan to sell off trees probably does not comply with the National Environmental Policy Act. (NEPA) If a forest plan is going to have a significant effect on the environment — and cutting down a lot of trees does — then the Forest Service must “rigorously” explore and “objectively” evaluate “all reasonable alternatives.” That’s the law.

The Forest Service admits that it wants to sell the big trees to raise money for fire prevention. Sierra Forest Legacy and California want to preserve the large trees and their habitat which supports various species of wildlife. Everybody agrees that the Forest Service has the power and duty to prevent catastrophic forest fires. And there are more of those now in the Sierra Nevada than there were in 2001 when the first plan was adopted. Managing the risk of big fires, according to the court of appeals,

is an imperative for the inhabitants of land bordering the forests. It is an imperative for defenders of the habitat and the wildlife within them. Fire is a force that must be managed if the environment is to be protected.

But removing the big trees doesn’t help, especially when they are far away from houses or communities. Even if they are close, removing them doesn’t help much, since they will burn only after a catastrophic fire has begun beneath them. The only purpose in selling off the big trees is to raise money to cut the little ones.

Is the Forest Service that strapped for cash? Here is the court again,

Sell trees to loggers. Use the money to clear areas of what is potential fuel for fire. . . .Two for one always has an attractive ring. But are there no alternative ways of getting money to do the clearing that is imperative? Obviously, there may be. First of all, there is the USFS’s own budget. . . .[Or] Suppose that the USFS and its parent, the Department of Agriculture, cannot spare a dime. What then? Appropriate appropriations come from Congress. The work of fire prevention is work of the first importance. If the USFS does not have enough, why should not Congress be asked to give it more? Surely the avoidance of catastrophic fire in the national forests must rate a high priority among the needs of the nation.

Because the Forest Service had not even considered those options the appeals court concluded that the Forest Service will likely lose the case.

Owls, Forest Service

But that is not enough to stop the chain saws. The real chance that irreparable harm will happen must also be proved before a court can stop them.

The Court of Appeals did not have to look far for that. The Spotted Owl was perched right there. And here is what they said about that owl:

The proposed logging will not destroy the species. What it will do is reduce its established habitat. The possibility that this reduction in its range will irreparably damage the sensitive species cannot be dismissed.

With that, the chain saws were stopped. For a season anyway.
But we’re not. We’ll be back with one more post on the Sierra Nevada case. Bribery will be our subject.

That is an American marten up at the top of this post. It is one of the endangered species not considered in the 2004 plan.


We’ve completed this three part series on the Sierra Nevada case. Here are the links for Part One and Part Three.


The Sierra Nevada and the Law

May 19, 2008

The federal government spent a decade carefully working up a management plan for the 11.5 million acres of national forest in the Sierra Nevada. Approved in 2001, it was the product of long, cooperative work between scientists, conservationists, business owners, local residents, and the U.S. Forest Service. Everyone signed off on it. No one sued. But the new Bush administration pitched it out the window and ordered the Forest Service to come up with a new plan. This was like smashing a finely tuned watch and ordering it rebuilt from the smashed parts. The Forest Service dutifully brought out a shiny new management plan in 2004. This one greatly increased logging, allowing much larger trees to be cut and slashed protections for the water, the soil, and the wildlife in all 11 national forests in the Sierra Nevada. (They also got around to skewering air protection too, but that is a different story.)

Spotted Owl

Just for fun, they carved up endangered species protections for the Northern Spotted Owl, the Pacific fisher and the American marten while lessening other wildlife protections.

Pacific fisher

Fire protection for local communities was built into both plans, calling for removing small trees, brush and flammable understory from areas where people live or have vacation homes. The new plan allows for trees up to 30 inches in diameter to be cut, far older and bigger trees than necessary for fire protection. It allows trees of that size to be cut far away from homes, in the backcountry. The Forest Service will need to build new roads — at our expense — for the lumber companies to reach those trees. The roads will protect those areas from the dreaded “Wilderness” designation since only roadless areas are eligible.

They call the shiny new plan, “Forests with a Future!” The irony of cutting down forests so they have a “future” appears lost. But here comes the best part: To pay for protecting local communities from fires, the plan requires the Forest Service to sell the big trees to logging companies to get the money for fire protection.

Let me clear, the Forest Service proposes to sell the forest to raise money to save the forest.

Unsurprisingly, the new plan attracted lawsuits. Environmental organizations sued in 2005. Ignoring the lawsuit, the Forest Service approved logging on about 12,000 acres on the Plumas National Forest. The lumber companies were to begin logging next month. Here is a recent photo of a clear cut in the Plumas.Plumas National forest Clear cut

The environmentalists went to the trial judge, appointed by the current President Bush, and asked him to stop the tree sale until the lawsuit resolves the legal issues around the management plan. That judge said, “No.” The lumber companies began sharpening their chain saws. The conservationists appealed to the Ninth Circuit Court of Appeals which issued its ruling last week.

To understand what that court did, we need to take a short hike into a forest of law. Remembering that it is sometimes hard to see the forest for the trees, we’ll keep it short.

(Editor’s note: Trite! I told him not to say that! That’s it for today. I am cutting him off. Come back tomorrow and I’ll let him finish this story — if he’s writing decent English again.)


Part Two and Part Three of this series are now posted.



May 16, 2008

Poor Neville Chamberlain. He can’t get a break. Anytime a U.S. politician wants to skewer an opponent, the ghost of Chamberlain is invoked. Just yesterday three American politicians did just that. It isn’t even necessary to use his name. All that is required is the word “appeasement” which is synonymous. President Bush, setting up one of his patented straw men, hinted that Senator Obama is really Neville Chamberlain in disguise. (It may be a chilly ride from the White House to the Capitol next January.) John McCain jumped on that bandwagon with alacrity and agreed, saying Chamberlain’s name out loud. Gary Hart invoked the Nazis in an otherwise thoughtful piece about John McCain and the neo-cons who accuse “liberals” of being too soft to deal with terrorists. For an American politician to say something good about Chamberlain is apostasy of the worst sort. My goodness, even Winston Churchill was able to find something good to say about the poor man.

Whatever else history may or may not say about these terrible, tremendous years, we can be sure that Neville Chamberlain acted with perfect sincerity according to his lights and strove to the utmost of his capacity and authority, which were powerful, to save the world from the awful, devastating struggle in which we are now engaged. This alone will stand him in good stead as far as what is called the verdict of history is concerned.

And even though the idea that any politician of the age could have stopped Hitler is ludicrous, it is the judgment of history that Chamberlain was a bumbler. But history comes in nested form, like Russian dolls. President Bush and the other non-Burkean neo-conservatives should consider the judgement of George Orwell on Chamberlain.

In spite of the campaigns of a few thousand left-wingers, it is fairly certain that the bulk of the English people were behind Chamberlain’s foreign policy. More, it is fairly certain that the same struggle was going on in Chamberlain’s mind as in the minds of ordinary people. His opponents professed to see in him a dark and wily schemer, plotting to sell England to Hitler, but it is far likelier that he was merely a stupid old man doing his best according to his very dim lights.