Archive for June, 2008

Last Monday in June

June 30, 2008

We’ve made it from the first Monday in October to the last Monday in June. The Supreme Court has gone home for the summer. None too soon. To paraphrase Murray Kempton, “If you read enough Supreme Court decisions, you’ll find out that the Justices are just as bad as respectable people.”

The last week of the term resulted in two resounding victories for the underprivileged in our society. Oil companies were freed from the nightmare of punitive damages and millionaires secured their sacred right to Congressional seats. The rest of us got guaranteed our right to shoot ourselves in our own homes.

And that was just the last week of a year that saw the Court protect investment banks, accountants, auditors, bankers and corporate advisers from being sued by ordinary stockholders for fraud. Manufacturers of medical devices that don’t work got complete immunity from ordinary people hurt or killed by their products, so long as they stopped by the FDA and said, “hi,” before they took their product to market. (Based on an ancient legal doctrine, “this little piggy went to market and got immunity.”) Poor people without proper identity cards were protected out of their right to vote. The justices held that a Texas procedural rule trumped international treaties, the World Court, and even President Bush; allowing Texas to kill the man who raised the issue. States were allowed to continue a nonsensical “three -drug” protocol to kill people on death row, a system less humane than that used by your vet.

All of which proves what I said here last October: There are five conservatives and four moderates on the Supreme Court. There are no liberals. Not one.


Despite the fact that the First Monday in October is the most read post on this blog ever, no one at the New York Times or the Washington Post got my message from last October, as you can see from Sunday’s New York Times article and this equally inane entry from the Washington Post. If I didn’t know better, I’d think the editors of those newspapers don’t read this blog, but that is impossible. Isn’t it?

But kudos to The NewsHour which has dropped the nonsensical words of “liberal” and “conservative” from its fine coverage of the Supreme Court. Praise too for Slate and it’s sure-handed contributor Dahlia Lithwick. They now put “liberal” and “conservative” in quotation marks, signaling that they know the labels are preposterous applied to this Supreme Court. Why the liberal New York Times and the “liberal” Washington Post haven’t caught on is a mystery.


UPDATE : July 7, 2008 – Nina Totenberg of NPR had a segment on this morning’s “Morning Edition” in which she analyzes this year’s Supreme Court. The audio segment is seven minutes long and about five minutes in I ready to heave my computer against the wall because all I was hearing was “conservative” wing versus the “liberal” wing. But, the last two minutes or so is an actual discussion of what I’ve been railing against: She actually notes that “liberal” is a relative term. Today’s “liberals” are really middle-of-the-road moderates, unlike the liberal giants of a generation ago.


Heller,Guns and Europe

June 26, 2008

Dear Europe,

Our Supreme Court today made it crystal clear that we Americans have a right to bear arms. Pistols, AK-47’s, M-16s, bazookas; you name it, we can have it. And not just in armories either. We can have them in our homes. Our offices. Our cars. Our Hummers. Our hip pockets. Wherever we want.

Because this may puzzle those of you living on the other side of the Pond, I thought I should explain why this is such a good thing.

In the first place, as Justice Kennedy of our Supreme Court explained during oral argument of this gun case, we need guns to defend ourselves from wild grizzly bears which roam the streets of our nation’s large cities. It is not well known that grizzlies ramble through the streets of New York City, looking for humans to eat. We keep this under wraps for fear it would hurt the tourist trade and we really, really need you to come spend your Euros which are worth so much more than our dollars.

The second reason this is a good thing is that our ability to own and carry guns deters crime. Let me explain: If a criminal thinks I might have a gun, he is deterred from robbing me. There is not a scintilla of evidence which indicates this is true, but it might be and that is good enough for us.

The third reason it is good for us to have this right to our guns is that it confounds our police forces. Used to a modicum of respect for the work they do, they became over-confident in their belief that we respect them and want to protect them from handguns wielded by criminals, battering husbands, and crazy people. Police everywhere will now subside into quiet acceptance of our view that a few dead policemen is a small price to pay for protecting ourselves against urban grizzly bears.

Finally — and seriously — now that we’ve secured our god-given constitutional right to bear arms, it will slowly become less important for us to do so. Eventually we’ll catch up with you and your culture; in the meantime, if you, your children, and your grandchildren choose to vacation elsewhere, we’ll understand.

And there are some hopeful signs that we’re growing up. For instance, our Supreme Court just last week reminded us — unanimously— that when we visit your countries we are completely subject to your laws, so we won’t be bringing our guns with us; not that many of us can afford to come visit. More examples of our incipient maturity include our current presidential campaign, the deep unpopularity of the Iraq War, and we’re about to get rid of George Bush.

We are a young country, barely 200 years old. We’re like a teenager who went out last night on a bender, came home bed-spinning drunk, and threw up all over the house. Because of the misery of the experience, we’re a little more mature this morning.

Editor’s Note: We’ve been following this case all year, starting with those pesky commas in the 2nd Amendment to the Constitution. We’ve collected all those posts here.

The satiric Onion posits another reason why we love our guns.

Today’s news articles will be legion. Here are early takes from the BBC, the Guardian, the New York Times, and the Washington Post. Conservative law professors who have been involved in this boot-strap effort to insure that the right is an individual right will be doing some well-justified crowing here. Slate will be talking about it all day as well, especially in its “Supreme Court Breakfast Table.”

We’ll be back in a day or so to parse what the 157 page opinion has to say about those commas.

Supreme Court Update

June 24, 2008

On Monday the Supreme Court issued three of the remaining ten decisions to come before the justices go home for the summer. All were yawners and the Washington press corps, which was loaded and ready to file all sorts of important stories, ended up with nothing much to do. (Except note the ominous anti-environmental certiorari orders; denying review of Secretary Chertoff’s grant to the Mexican fence of wholesale exclusion from those laws and granting review of the injunction against the Navy in the case of Navy v. Whales.)

So there is to be another opinion day tomorrow. (10:00A.M. Eastern) Scotus Blog will be live blogging again. Perhaps tomorrow we’ll get some of the headline eating opinions. Or perhaps the Court will schedule another opinion day for Thursday.

Gitmo, Part II

June 22, 2008

I said last time that the latest GITMO decision of the Supreme Court isn’t that big a deal. The hyperbole from Justice Scalia and other American conservatives is — well, hyperbole. [1] All the Court said was what most lawyers and judges already knew: The prisoners at Guantanamo have no legal right to be released, but they do have a legal right to a meaningful hearing to question their detention. Congress has not suspended the right to the Great Writ. Tyrants may be able to jail people without review but democratically elected presidents of the United States can’t.

Let’s review quickly.

First, in 2001, we declared suspected terrorists “enemy combatants,” entitled to no legal rights at all, not even those of the Geneva Conventions. Even U.S. citizens could be tossed into military prisons at the pleasure of the president, who could hold them, incommunicado and without charging them with anything, for as long as he liked. The Supreme Court said, “No. You can hold them, but you have to give them some kind of hearing so they can question the legality of their detention.”

For non-citizens, we set up the jail at Guantanamo (GITMO) where we planned to hold suspects, without charges, for the duration of the war on terror. In 2004, the Supreme Court said, “No. You have to give them their statutory right to habeas corpus and, hint-hint, the constitutional right to habeas probably applies at GITMO too. You’re not fooling anybody with this argument that since Cuba owns GITMO, it’s a law-free zone.”

Then last week, the Court said, “If you don’t give these people a meaningful hearing and fast, we will.”

And there is the rub. In those hearings, not even Justice Scalia would let the government use evidence acquired by torture. That’s the sort of thing they did in Nazi Germany, the old Soviet Union, Saddam Hussein’s Iraq, and do today in places like North Korea and Zimbabwe. It is not the sort of thing civilized legal systems allow. Period.

But we’ve tortured at least some of these prisoners, which means there may not be enough usable evidence to keep them in jail.

Five very bad civilian lawyers are responsible for this mess. One is Vice-president Cheney’s chief of staff, another was SecDef Rumsfeld’s general counsel, two worked for the president in the Justice Department and the fifth was the president’s personal lawyer, later the Attorney General of the United States. (He’s gone home now.) Other civilian lawyers, including the current Secretary of Homeland Security, got their hands dirty too, but these five were the architects.

But there are some lawyer heroes here as well. They are the lawyers of the United States Air Force, the United States Army, the United States Marine Corps and the United States Navy who risked and sometimes lost their military careers because they shouted — up and down their chains of command — that torture is illegal, not to mention a notoriously unreliable way of gathering intelligence.

Military lawyers are members of the Judge Advocate General’s office. (JAG) High-level military commanders have a saying, “There are only two places you can get completely honest advice, your chaplain and your JAG lawyer.”

JAG lawyers up and down the chain of command thought this whole scheme was illegal. Illegal under American law, illegal under the Uniform Code of Military Justice, and illegal under the law of nations. (The FBI, to its credit, mainly agreed with the military lawyers.) But their civilian masters ignored their competent legal opinions. One of these very bad civilian lawyers, William J. Haynes, actually shut down a review instituted by the Chairman of the Joint Chiefs of Staff and his lawyer, a Navy Rear Admiral. (Haynes is now Chevron’s chief lawyer. How much is gasoline?)

These five very bad lawyers told Vice-president Cheney and President Bush what they wanted to hear. “We’re at war. Nothing you do is illegal. Torture is legal if you want it to be. You can hold these people forever if you want to.”

If that kind of legal reasoning reminds you of Alice in Wonderland, you aren’t the first.

Major General Thomas Romig was the Judge Advocate General of the United States from 2001-2005. He is now the Dean of Washburn University School of Law. One of these very bad lawyers, John Yoo, reportedly went to General Romig with an interesting idea. I’ll let General Romig tell the story: “John Yoo wanted to use military commissions in the manner they were used in the Indian wars,” Romig said. “I looked at him and said, ‘You know, that was 100-and-something years ago. You’re out of your mind; we’re talking about the law.’ ”

The military commissions used against Native Americans in the 19th Century usually resulted in a quick hanging or shooting of the Indian.

Military officers often have a felicitous manner of stating the truth: These five lawyers were indeed, “Out of their minds.”
[1] Dealing with something as grim and disturbing as terrorism and torture can cause a loss of a sense of humor. Fortunately, neither Jon Stewart not Steven Colbert (Is he French? Is he here legally?) have lost theirs.


UPDATE: Last ten decisions of the Supreme Court term due this week, including the 2nd Amendment case and the Exxon-Valdez decision.


June 21, 2008

The ability of political cartoonists to find the important kernel in any political situation is amazing.  Even more amazing is their ability to then reduce that essence into a drawing which not only exposes the core of the issue but is funny as well.  As an example of this wonderful ability and piercing intelligence, I offer as Exhibit A, Pat Oliphant’s cartoon about this week’s Supreme Court GITMO decision.

But since I want you to read the entire post, I put the cartoon at the end.

Oh, go ahead.  Scroll down and look at the cartoon and be on your way if you are in a hurry.  But there really is some good stuff between here and there if you have a minute.

The cartoon addresses the reaction to the decision from some segments of American political opinion, a reaction which far exceeds the legal importance of the case.  As a matter of law, the decision is fairly unremarkable and will likely be innocuous in effect.

All the Court did was hold that the writ of habeas corpus — a prisoner’s right to challenge the legality of holding him in jail — applies not only to aliens held on United States soil (We already knew that.) but also to aliens held on foreign soil controlled by the United States.  That’s it.  That’s the whole case.

As a result, the prisoners at GITMO are entitled to be declared enemy combatants, charged with crimes or released.  If they are declared enemy combatants, they can be held until the war is over but must be accorded Geneva convention rights.  If they are charged with crimes, the military can try them and sentence them to jail terms.  If neither of those things happens, they must be sent home.  That’s it.  That’s the whole case.

The only remarkable thing about the opinion is that only five justices signed it. The two justices who claim to be “originalists,” bound by the actual words of the Constitution, dissented, even though nothing could be plainer from the text of the Constitution that only Congress can suspend the right of habeas corpus, (Congress has not), that the right applies to “persons” and not just “citizens,” that it does not apply to prisoners of war and that the GITMO prisoners are not — legally — prisoners of war.

Here is why those prisoners at GITMO are not prisoners of war.  Every country has laws against murder.  Murder is almost always defined as the intentional killing of another human being.  But that is exactly what soldiers are paid to do; the more, the better. The world long ago resolved that killing by soldiers of a legitimate government’s army is not murder.  That is why a soldier caught by an enemy army may not be tried for murder, must be kept as a prisoner of war, and must be returned home after the war is over.  Enemy prisoners of war have never had the right to habeas corpus and they don’t now.

Which is why the emotional reaction to the case far outstrips its actual legal effect.  That does not mean; however, that the reaction isn’t important.  It is and we’ll talk about that next time.

Thank you for your patience.  Here is the promised political cartoon.

Oliphant on the GITMO decision


June 17, 2008

Mark Twain MusingFor today’s post, a long, brilliantly conceived, masterfully executed post was right on the tip of my tongue. Fingers, actually. This is a keyboard upon which I ply my trade and try your patience, but let that go. I was talking — writing, actually — about the marvelous piece of writing that was coming your way today. I was really looking forward to writing it because writing well is such a joy, even if it is hard work. And it is. I thought for a moment about Mark Twain who I quoted here in the last post. He knew writing was hard work but he looked forward to it also. Here is what he wrote to a friend:

I have often noticed that you shun exertion. There comes the difference between us. I court exertion. I love work. Why, sir, when I have a piece of work to perform, I go away to myself, sit down in the shade, and muse over the coming enjoyment.

I’ve been musing over the coming enjoyment all day. Successfully.

Dying of a Misprint

June 15, 2008

(Editor’s note: In the midst of a long piece about political paranoia, the author of this blog read this article on how we read online. According to it, he has been doing everything all wrong for a year now.  This news sent him into a tizzy from which he has yet to recover.

(Tomorrow is another opinion day at the Supreme Court so perhaps the Court will perpetrate some outrage on the Nation that will shock the author out of his funk.

(In the meantime, he instructed me to leave you with the following quote from Mark Twain. In accordance with the article’s instructions, the quote is in bold print to prevent you from skimming.  Although, for the life of me, I can’t think of anything wrong with skimming.  Can you?)

Be careful about reading health books. You may die of a misprint.

The same is true about reading articles about how to write for online readers.

The Republican Presidency

June 13, 2008

We wrote recently about Edmund Burke, the father of modern conservatism, and baseball; concluding that all baseball fans are conservatives, when it comes to baseball, no matter what their politics.

But politics isn’t baseball. Conservatism and liberalism are legitimate and necessary. When he signed the 1965 Voting Rights Act, Lyndon Johnson is reported to have said, “Well, we just gave the South to the Republicans for a generation.” We’ve had ten presidential elections since then and the Republicans have won seven. Republicans swept the South in all ten. But that may be changing. George Packer of the New Yorker recently had a piece discussing the signs that the Republican lock on the presidency may be loosening. Three noted conservatives responded.

Most Republicans won’t agree with Packer; most Democrats won’t agree with the conservatives’ responses, but it is the kind of dialogue we need.

(Editor’s Note: The Supreme Court ruled yesterday, in a 135 page opinion, that the prisoners at Guantanamo have habeas corpus rights which means they can now ask federal judges to force the government to charge them with a crime. The best explanation of the legal status of the Guantanamo prisoners remains this one by the Australian comedy duo.)

Curses on You Lawyers!

June 11, 2008

A screed about lawyers landed in our inbox this week. Democrats, you see, are the party of the “lawyers.” The article is called — diction be damned — “Why this country is going down.” It’s basic premise is that all lawyers are Democrats and all Democrats are lawyers. Here is a sample:

The Democrat[sic] Party has become the Lawyers’ Party.

The Republican Party is made up of real people doing real work. The Democrat[sic] Party is made up of lawyers.

The Democrat[sic] Party is made up of lawyers. Democrats mock and scorn men who create wealth, like Bush and Cheney, or who heal the sick, like Frist, or who immerse themselves in history, like Gingrich.

The Lawyers’ Party sees these sorts of people, who provide goods and services that people want, as the enemies of America .

Most Americans know that a republic in which every major government action must be blessed by nine unelected judges is not what Washington intended in 1789.

Those five sentences inhabit a fact-free zone. Not one is true. But they are the basis of the entire piece. Hiding in the verbiage, they are not easy to spot. Drag them out to the light of day and they shrivel.

But we knew at the outset that this is propaganda, not serious republican discourse. The title tells us that. “Going down?” What does that mean — in this context? Does it mean our political system? Our culture? Our population? Our economy? We’re not told. Perhaps the author means something along the lines of, “It’s just like the decline and fall of the Roman Empire.” But that can’t be right. There is no evidence of that. Whatever the title means is left to the reader to fill in. (Which, as we will see, is the point of ambiguous language. Your reader can project whatever she wants onto it. It also saves the writer a lot of hard work.)

In the first paragraph the author launches into the “Democrat[sic] Party.” That is our second clue that we’re in propaganda-land and not in a serious discussion between citizens of the Republic. It is the Democratic Party. Conversation and persuasion begin, as we’ve known since at least Aristotle, with mutual respect; not denigration and demonization. Imagine having a conversation with a man named Bill. He’s not going to hear much of what you say if you call him “Little Billy” all the time.

The few facts presented are patronizingly selective. For instance, here is a list of businessmen-politicians:

The Republican Party is different. President Bush and Vice President Cheney were not lawyers, but businessmen. The leaders of the Republican Revolution were not lawyers. Newt Gingrich was a history professor; Tom Delay was an exterminator; and, Dick Armey was an economist. House Minority Leader Boehner was a plastic manufacturer, not a lawyer. The former Senate Majority Leader Bill Frist is a heart surgeon.

Herbert HooverYou’ll note that the list leaves out two of the real businessmen who served as president in the 20th Century; Herbert Hoover and Jimmy Carter. While it is too early for history to weigh in on the successes and failures of George W. Bush’s presidency, no one seriously argues that either the Hoover or the Carter presidency were successes. Which is why the piece omits both. Both businessmen failed as presidents and that undermines the idea that non-lawyer businessmen make better presidents.

A second significant omission — again because it is evidence contrary to the belief embraced — is that only Democrats become lawyers and only Democratic lawyers reach the high levels of our government. That is not right. For example, the person who sent this email — on a federally funded, taxpayer paid email account — works for a Republican Congressman seeking to replace Republican Senator Pete Domenici, a lawyer. And, as I have noted elsewhere, 78% of all federal judges in the United States today were appointed by Republican presidents. Seven of the nine members of the Supreme Court were put there by a Republican president. None are liberals. No mention is made of all the lawyers working in the Republican controlled Executive Branch.

Even the Republican lawyer-president Richard Nixon is absent. I wonder why?

The piece misses entirely the downside of legislator-lawyers. Lawyers, by training and inclination, are verbal. Most believe that problems can be solved by talking and writing. That is true only some of the time.

In addition, most political beliefs are emotionally based and not rational; you don’t talk people out of them, although lawyers are always trying. Innumerable scientific studies show that all of us reject factual information that collides with our emotional beliefs. Emotion trumps reason.

Besides, the author is crying “Wolf!” The current Congress has 215 lawyers, but it also has 189 businessmen and women. And, just to pick another profession at random, 128 are veterans of the military. It is a risky business, this smearing of Congressmen on the basis of prior occupation; you end up criticizing our soldiers. (Or professional musicians. There are three of those in Congress.)

This piece adds nothing to our civic discourse. Patriots do not engage in such folderol, they converse with fellow citizens with respect. Lawyers are often well-deserving butts of lawyer jokes. (How do you save a drowning lawyer? Take your foot off his head.) But lawyers are useful. Many are capitalism’s mechanics: They grease our economic wheels by making business transactions possible. Many more operate the executive branches of the federal and state governments. Some still strive mightily as courtroom adversaries. (Half of those work for businesses, not employees of businesses.) And a few go into politics.

Politics, like other professions, is an honorable calling — if pursued honorably. So is a life spent teaching, serving in the military, treating illnesses or being a lawyer. Lawyers are trained to communicate clearly and to persuade, two of the most important skills of a successful politician. As Republican-lawyer John Yoo reminds us, they also serve as constitutional advisers, deal-makers, and investigators.

Small wonder then that they gravitate to politics and governing. Where would the nation be had it not been blessed with some of these lawyers: Thomas Jefferson, Alexander Hamilton, John Adams, James Madison, Daniel Webster, John Marshall, Robert Jackson, Thurgood Marshall?

Let me say this again: It does nothing to help meet our Nation’s challenges to scapegoat one another. We’re all in this together. And the overwhelming majority of us are people of good will. Even the lawyers.

Which reminds me, the author leaves out one of the most skilled lawyers of the Illinois bar. From humble, unschooled beginnings he rose to be one of the most famous lawyers in Illinois. He represented the titans of capitalism of those days, the railroads, arguing several cases on their behalf before the Supreme Court of Illinois. He even argued one case before the United States Supreme Court. And he represented the downtrodden and oppressed as well, occasionally defending even accused murderers, sometimes for free. He went into politics too. As a Republican. His name was Abraham Lincoln.

Autobiographical Notes

June 9, 2008

Autobiographical NoteBecause of my refusal to turn this blog into the narcissistic masturbatory excesses of many blogs, I have never told you about myself. But some one recently pointed out to me that I should declare myself, at least a little, so my readers can apply the appropriate label to me and thus decide whether my views are worth attending to. It’s a valid point, so here is a little information.

I was born on the lower east side. Of Hoboken. As a young boy I ran away from home twice; the first time to the neighbors’, the second to sea. I was first mate on the Pequod which led me to write my first book, Moby Dick, which I self-published under a pseudonym. Later I went to college. I would have gone to Harvard but they sent me a nice letter telling me how happy they were to be maintaining their high academic standards so they hoped I would find a nice technical school to attend. But I got into a real college, graduated, and determined to go to law school. Harvard once again declined my services so I was forced to attend another law school. But I dated someone who did go to Harvard. It didn’t work out. I hadn’t invented Viagra yet and she believed that size matters.

After graduating from law school, I served — under another pseudonym; I have a passion for anonymity — as Supreme Court Justice Hugo Black.

More recently I have taken up blogging. You may have read my other blog, The Huffington Post, which I write by myself.

I died of old age and was cremated. My ashes were spread over the Rocky Mountains from a high altitude. Some got caught on the wind and landed on the Washington Monument. They may still be there. I intend to look the next time I’m in D.C.