The DOJ’s claim that communications between Mr. and Mrs. Eric Holder are privileged reminds me of a sleazy attorney I once knew

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Eric Holder and his wifeSince you’re all very well-informed, it won’t be news to you that Eric Holder’s Justice Department, in yet another effort to frustrate a Freedom of Information Act (“FOIA”) request about Fast & Furious documents, claims that Eric Holder’s communications with both his wife, a private practice physician, and his mother are subject to executive privilege:

The document details the Attorney General Holder’s personal involvement in managing the Justice Department’s strategy on media and Congressional investigations into the Fast and Furious scandal. Notably, the document discloses that emails between Attorney General Holder and his wife Sharon Malone – as well as his mother – are being withheld under an extraordinary claim of executive privilege as well as a dubious claim of deliberative process privilege under the Freedom of Information Act. The “First Lady of the Justice Department” is a physician and not a government employee.

Boy, did that parental privilege claim trigger a flashback for me. You see, exactly twenty years ago, I worked on a case opposite the most unethical lawyer I’ve ever seen, and he too made that claim on his client’s behalf.

I won’t name names, because the lawyer is still practicing and he’s an extraordinarily litigious guy, who will sue anyone and everyone on the drop of a dime.  Once he’s initiated the litigation, he clings like grim death to the case until the opposing party simply wears out and gives up. It’s a form of greenmail: settle now, on my terms, or I will bankrupt you for having the temerity to oppose my frivolous lawsuit against you. Most people gave up without much of a fight.  For convenience, I’ll call this human pit bull Attorney X.

Thankfully, there were a few people willing to stand up to Attorney X. Indeed, there’s a wonderful California Appellate Court decision, written by a judge I knew personally (I used to babysit for his kids) and therefore knew was one of the kindest, gentlest people in the world, but his opinion is neither kind nor gentle. It lambasted Attorney X for being an utterly unprincipled practitioner who always skates just on the right side of the law while nevertheless making a mockery of the entire system. My story of dealings with Attorney X precisely reflects this dynamic.

At the time, I was working for an attorney who had the backbone not to back down in the face of Attorney X’s greenmail-style litigation. (That attorney, incidentally, is a staunch conservative, and someone I credit with my political conversion.)  Every time Attorney X pushed, we pushed back harder.

A lot of this pushing took place during the discovery phase of the trial. Despite representing the plaintiff who filed suit (i.e., the one claiming to have a colorable lawsuit), Attorney X and his client refused to produce any of the documents we requested, even though they were manifestly related to the allegations in the complaint.

We’d serve a document request and Attorney X would come back with objections about attorney-client privilege (even though no attorney was involved in the communication), or attorney work product (even though there was no attorney work at issue), or relevance (even though the language of the request parroted a claim in the complaint), or any number of other manifestly spurious objections. So every time, we’d have to spend the money to file a motion to compel discovery.

I’m pleased to say that we won almost all of those motions.  Unfortunately, though, even though we won the motions, the discovery commissioner never imposed sanctions on Attorney X or his client. This was because Attorney X positioned himself as the little guy against the big guy (even though our clients had even fewer resources than he and his client did).  At least back then, San Francisco Superior Court bench was all about the 99% long before that Leftist idea surfaced in street protests.

Anyway, the only time I ever thought that we might actually lose a valid discovery motion was when Attorney X made the most spurious, risible, unprincipled objection I’d ever seen. To understand precisely what happened, you need to know that in a California civil case you can depose a third party and even ask that third party to bring relevant documents to the deposition. However, for certain categories of third parties who are asked to bring a consumer’s “personal records,” you need to go through a special notice procedure in order to protect the consumer’s statutory privacy rights.

Here is a list of the third parties who are subject to special notice for a deposition subpoena:

“Personal records” means the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any “witness” which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code. (Calif. Code Civ. Proc. sec. 1985.3)

In English:  If the third party is employed in the medical, legal, financial, or educational field, and if the subpoena asks for a consumer’s documents or other information from that third party, the subpoena is subject to special procedures in order to ensure that the consumer’s privacy rights are respected.  The specialized notice procedure is called “a 1985.3 notice.”

Well, we served an ordinary deposition subpoena (including a document request) on the mother of Attorney X’s client. This was entirely reasonable because the complaint mentioned the mother, Attorney X’s client derived her alleged claim through her mother, and the mother was a major player in many of the events Attorney X had asserted in the complaint. As a matter of both fact and law, Attorney X had no valid objections to make to the discovery request.  He therefore made an invalid objection:  He contended that we had failed to serve the deposition subpoena properly because we hadn’t complied with sec. 1985.3’s stringent notice and timing requirements.

As required by law, I wrote Attorney X a long meet-and-confer letter carefully explaining that a mother does not fall anywhere within sec. 1985.3’s parameters. Attorney X was unmoved. I had no choice but to file a motion to compel the deposition.  Attorney X’s opposition was gibberish — and how could it be anything else? He had absolutely no law whatsoever to support his claim that a mother falls within sec. 1985.3’s parameters.

The way it works in California courts is that, the day before the hearing, the court will issue a tentative ruling. Sometimes, both parties abide by the ruling and there’s no hearing. Sometimes, however, one party or another will oppose the ruling, and then both troop into court for a hearing. And rarely, very rarely, the court will refuse to issue a tentative ruling at all but instead will insist that the parties show up. This usually means that the judge is very uncertain about which way to rule.

To my great surprise, the tentative demanded our appearance. How in the world could the discovery commissioner need oral argument on this one? “Mother” is neither specified in sec. 1985.3 nor is it implied. What’s left then?

What apparently was left was a discovery commissioner who just couldn’t wrap his mind around the concept that there wasn’t some sort of privacy principle governing the mother-child relationship in the context of a lawsuit alleging that my client had stiffed the mother and child out of some money. After futile argument, I urged the commissioner just to read the statute himself, something he apparently hadn’t done before and he agreed to do so.  The commissioner sat down with the big code book balanced on his knees, and clutched tightly in both hands. He bent his head towards the text and, with his lips moving, began reading slowly and silently to himself.

After a good five minutes of this, he sat up, turned to Attorney X and said “She’s right. It doesn’t say mother in here. The motion to compel discovery is granted.”

Whew! At that point, I thought, “Surely the commissioner will impose sanctions against Attorney X for making a manifestly frivolous objection to a reasonable discovery request.” Wrong again! When I requested sanctions, the discovery commissioner said that it was a close call (!) and refused.

Right about now, I’m thinking that the discovery commissioner, someone I assumed had either stayed at San Francisco Superior Court or retired, in fact moved to the Department of Justice and was the one who came up with the Eric Holder “spousal executive privilege” objection to a FOIA request.

Oh, and if you’re wondering about that lawsuit, we won and we won big.  We were fortunate enough to get a trial judge who listened very carefully to all the evidence and realized that Attorney X and his client had no case. Not only did our clients walk away vindicated, we also got more than $1 million in attorneys fees (including fees for all the time wasted in those discovery motions).  Woo-hoo!!!

Sonia Sotomayor’s absolutely revolting racism

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Justice SotomayorYesterday, Sonia Sotomayor announced that she is absolutely horrified that the 14th Amendment can be used to prevent state government from engaging in race-based discrimination. Some may be a little confused by her argument, given that the 14th Amendment explicitly states that ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In ordinary parlance, that means that all laws must apply equally to all American citizens, regardless of anything that distinguishes one citizen from another (such as race, color, creed, sex, etc.).

For sensible people who believe that all humans are created equal, the 14th Amendment is a good rule. But it’s not good enough for Ms. Sotomayor (and yes, I mean “Ms.” because, really, after what she just did, it seems so wrong to give her the honorific “justice”). What did Sotomayor do? She abandoned legal reasoning in favor of ill-informed, racist navel-gazing, and she used the most august court in the land for her platform in feminist, racist idiocy. (I say “feminist” because, even though the case was about race, Ms. Sotomayor promised from the beginning that, rather than following the law, she’d offer ruminations from a “wise Latina.” So all her stuff is a “girl thing,” you know?)

Anyway, in Schuette v. Coalition to Defend Affirmative Action, Sonia (I’m so disgusted by her right now, I don’t even feel like using the generic honorific of “Ms”), wrote a 52 page pile of touchy feely goop about the fact that minorities are inferior beings. Moreover, she felt so strongly about innate minority inadequacies that she felt compelled to read all 52 pages from the bench — clearly, part of the punishment she wished to impose on dead, or still living, evil white males the world over.

I’m not trying to be mean, or anything, but the woman is a walking, talking argument against affirmative action, which advances women, minorities, and other non-white, non-straight, non-Asian, non-Jewish people simply because they weren’t born white, straight, Asian, or Jewish.   Here’s the heart of Sonia’s insanely racist (and non-legal, non-factual, highly navel-based) rant. Sonia starts by attacking the US’s bad history:

For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its course.

She’s right, of course. Italians, Irish, Germans, Jews, Russians, Chinese, Japanese, East Asian, etc., all faced horrific discrimination. Peculiarly enough, once the discrimination ended as to these disparate groups, all were able, without any further effort on the government’s part, to ascend to the halls of wealth and power. Sonny’s problem (yeah, I’m at the point where even calling her by the pretty name “Sonia” irks me) is that she firmly believes that what worked for every other minority — just to be left alone — won’t work for blacks and Hispanics.

Before Sonny gets to her conclusion that blacks and Hispanics are inherent deficient (her thoughts, not mine), she takes us on an endlessly boring journey of efforts to discriminate which have all been done away with. Even as she tries to paint America as racially evil, she inadvertently keeps pointing to its self-correct mechanisms.

I sort of fell asleep somewhere when reading her tripe, but when I awoke, I found her claiming that there’s nothing in the 14th amendment that prohibits discriminating on the basis of race, because America’s educational institutions are improved by racial discrimination. No, really. That’s what she said:

Rather, race-sensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities.

The above stunning quotation is followed by a lot more soporific stuff. Considering how plagued I am by insomnia, I really should have a copy of Sonny’s dissent by my bedside. It makes for exhausting reading. The only downside, of course, would be the inevitable nightmares flowing from her racially carved up universe.

So, anyway…. Blah, blah, blah. And then this, the moment at which she states that the only way to make effective the 14th Amendments constitutional guarantee not to discriminate is to . . . wait for it . . . discriminate:

That view [that the 14th amendment means that the law applies equally to everybody] drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why?

Did she just end that deconstructionist, magical thinking rant by asking “Why?” Well, I’ve got the answer, so you can ignore Sonny’s new-Age, victim-based, PC bibble-babble version of an answer. The obvious reason Sonny believes that the government must discriminate, world without end, on behalf of blacks and Hispanics is that, in her mind, these two racial groups are congenitally incapable of partaking in the political process without Mommy and Daddy government holding their hands. Unlike all other minorities who pulled themselves up by their own bootstraps, her posse can’t do it. And if that isn’t the most vile racism you ever heard — a Supreme Court justice saying that blacks and Hispanics are defective and will always need government help just to get back — I don’t know what is.

I’m now bored with Sonny. Sonny is pathetically burdened by an unpleasant reality:  she got into college and law school and government work and the Supreme Court thanks to affirmative action.  She had neither the brains nor the self-discipline to make it on her own (unlike the legions of Jews, Italians, Irish, Asian, and East Asian immigrant kids who looked at their often squalid surroundings and made the decision to be the best and, without either government discrimination or aid, rose to the heights.  This painful knowledge goes some way to explaining her embarrassingly self-referential opinion. She knows that she’s inadequate and, rather than admitting to her own mental infirmities, makes herself feel better by telling the American people that all blacks and Hispanics are just as mentally deficient as she is.

Let me say this again: for every other group in America that suffered government sponsored discrimination, after the government stopped discriminating (either against or for them) that group was able to achieve social, economic, and political success within one generation. Sonny is too scared to give blacks and Hispanics that same chance. In order to justify in her own eyes the unfair advantage she got at every stage in her career, she wants to ensure that no black or Hispanic ever has to compete on a level playing field.

Part of Sonny’s decision is her racism, a disdain for blacks and Hispanics that would fit comfortably on a KKK Imperial Wizard’s lips. And the other part of it is her fear that, if they succeed, she’ll have to acknowledge the failure that lies under all the undeserved accolades and professional advancements that came her way.

Justice Alito’s footnote sums up everything that is wrong with our judicial system

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I haven’t had the heart or the stomach to read the Supreme Court decisions that came out today.  (It’s not about content.  It’s about the fact that, with rare exceptions, I find most Supreme Court decisions too horribly written and turgid to read.)  I therefore didn’t discover this gem from Justice Alito in the DOMA case  Instead, I’m passing it on to you from Paul Mirengoff at PowerLine, including the emphasis Mirengoff added:

The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)(“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” [citations omitted] Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.  (Emphasis added)

FDA must make Morning After pill available over the counter to everyone

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Birth Control Pills

Kathleen Sebelius, showing one of her rare moments of good sense, had the FDA limit the Morning After pill to girls and women over 17.  A federal judge in Brooklyn has overruled that, saying it must be sold over-the-counter without limits to help slow teen pregnancy. I’m not going to discuss morality right now.  I’ll take a minute to discuss the logic:  it’s not the judge’s business to make this decision about medicine.  It was Sebelius’s decision, and for once she made the right one.  If she made a stupid one, the people could raise up their voices and protest.  Since it’s now law, the people are stuck.  Gawd, I hate judges. I wish them well personally as human beings, as sons and daughters, husbands and wives, sisters and brothers, but I wish that every Democrat judge would leave the bench.

Here’s what you need to know about this drug’s side effects, which range from uncomfortable to “are you out of your ever-loving mind to let a 12 year old, who is still developing hormonally and mentally take this?”:

Minor Side Effects

Minor side effects of the morning after pill may include abdominal pain, breast tenderness, diarrhea, dizziness, fatigue, headache and nausea.

Menstrual Side Effects

The timing or heaviness of your next period may be affected. Menstruation may be lighter, heavier or delayed after taking the morning after pill.

Serious Side Effects

The morning after pill can change blood sugar levels, which is potentially dangerous to diabetics. Severe abdominal pain is considered a serious side effect and may be an indication of ectopic pregnancy.

Ectopic Pregnancy

Ectopic pregnancies occur when a fertilized egg attaches outside of the uterus. If the morning after pill fails to prevent pregnancy, ectopic pregnancy is possible.

This drug is a pedophile’s dream — rape your 12-year-old stepdaughter, or niece, or girlfriend’s daughter, or neighbor girl, threaten to kill her or her loved ones if she talks, and to Walgreen’s to buy a pill that hides the evidence.

In California, if you’re under 18, you can’t shoot paint balls without a parent’s consent, nor can you get a fake tan or have your ears pierced.  You can, however, at age 12, with an immature mind and a maturing body, walk into Walgreen’s and order a medicine that has a significant effect on your hormonal system.

Pfui!!

 

Second and third thoughts about the ObamaCare decision, which does have some saving grace

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I was driving along in the car and, suddenly, the phrase “Roe v. Wade” popped into my head.  In 1973, the Supreme Court waded into what should have been a state-by-state legislative matter, and created the most vicious 39 year fight in America since the Civil War.  One side found the decision completely invalid, while the other side became so invested in its validity that it almost became a one-issue party — and, moreover, a one-issue party that became ever more extreme in its defense of its victory.  By parsing the decision as he did, Justice Roberts prevented another American civil war.

When I returned home and turned on my computer, I discovered that Charles Krauthammer was thinking along the same lines.  If I’m in sync with Krauthammer, I’m clearly in good company.

Krauthammer’s view is that Roberts wears two hats.  The first hat is the constitutional conservative, which kicked in to prevent him from allowing a vast expansion of the Commerce Clause.  The second hat is as the Supreme Court’s custodian.  That second hat requires Roberts to protect a Court that’s been under a shadow since the decisions in Roe v. Wade (favoring the Dems) and Bush v. Gore (favor the Republicans).  So, after wearing his conservative hat to deal with the Commerce Clause, Roberts still had some work left to do:

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the Court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger Courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the Court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5–4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the Court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

I think Krauthammer’s analysis is correct.  Roberts didn’t rule as he did because of his seizure medicine or because he was blackmailed.  He ruled this way because, perhaps rightly, he was keeping a legislative problem in the legislative sphere.  The American voters, by putting Democrats into Congress and the White House, broke the American system.  They now own that broken system and it’s up to them to fix it.  In this case, if the voters are smart enough, they’ll elect Republicans by a large majority.  If they’re not smart enough, we’re in for a lot more breakage.

Viewed this way, Roberts did the right thing.  He protected the Supreme Court’s integrity and he made the American people responsible for their own stupidity.

The best bet for the coming months is that Obama’s base will go home happy, and that he will not be able to rally them for the election.  They’ll be like the person who ate too much at dinner and sits there in a stupor, even as the roof falls on his head.  Unfortunately for Obama, Romney will be able to rally his base.  If you thought 2010 was the year of the Tea Party, wait until you see the summer of 2012.  Like 2012, Tea Partiers are up in arms; and unlike (and better than) 2012, this time they’re already organized with mailing lists, data bases, and vast amounts of political and protest experience.

Even better, after Americans suffered through months of the drug-addled, filthy, violent Occupy movement, the media is going to find it impossible to paint clean, polite, educated, employed Tea Partiers as crazed radicals.  This summer, the Tea Party will have traction, especially because the Supreme Court, in ruling in Obama’s favor, put a name on Obama’s conduct:  taxes on the middle class.

That’s all good.  What’s bad is that, as I noted in my original post on the subject, the Supreme Court has managed to allow taxes to have the scope of the Commerce Clause:  From this day forward, Congress can not only tax activity, it can also tax inactivity.  Long after Obama is gone from office, that legacy will remain.  The only saving grace is that taxes require simple majorities.  Easy come, easy go, one might say — except that taxes never go away easy, do they?

 

A careful analysis of the ObamaCare ruling (NOT)

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I’ve now had the chance to digest myriad analyses of the Roberts decision on ObamaCare.  I think I can sum up the various conclusions that liberal and conservative pundits have reached.  Here goes:

The decision is a victory for Obama and the Democrats because it keeps ObamaCare on the books.  However, it’s a victory for Mitt Romney and the GOP because it reminds Americans that Democrats like to tax them.  The only problem with the latter view is that Americans aren’t paying attention to things like ObamaCare and taxes and these credulous citizens will just role with whichever side looks victorious, which is either the Democrats and the Republicans.

The only exception to the rule that Obama’s role with the winner is the Tea Party, which is likely to be galvanized into action.  Naturally, though, the Tea Partiers are too demoralized to do anything constructive, other than riot in the streets.  We know from past Tera Party events that the smiling grannies togged-out in matching red, white, and blue outfits are especially dangerous.

ObamaCare will never be repealed because the Republicans cannot get a majority in 2012, let alone win the White House.  This is a “true fact” as long as you take into consideration that Mitt Romney will almost certainly win the 2012 election on an anti-tax platform and that the House will stay Republican.  The Senate, of course, can go either way, with Republicans getting either 51 seats (enough to reverse a tax) or 60 seats (enough to prevent President Obama, who will definitely win in 2012, from vetoing a repeal.

If the Republicans take over both Congress and the White House, which won’t happen, they can fully repeal ObamaCare, which won’t happen.  However, if they only keep the House, they can refuse to fund ObamaCare, which is great, because it leaves it useless, except for all of the mandates that continue to exist.

Over the long haul, of course, Americans are more free because the decision restricts the Commerce Clause.  This, however, ignores the fact that they’re less free, because they can be taxed for anything, including breathing or, as the case may be, not breathing.

John Roberts is someone who is suffering from a seizure disorder and is probably being blackmailed.  Neither of these factors really matters, though, because the Chief Justice is clearly a Machiavellian bridge, chess, or poker player who is taking the long view and setting the Republicans up to win in 2012 on the issue of higher taxes.  Or he’s taking some sort of really long view that enables Obama to do a victory dance in November 2012 because his signature legislation survived.  In a second Obama term, with a Democrat House and Senate, people will really learn to hate those tax-and-spend Democrats.  Those few remaining Americans who have not been sent to re-education camps or have not been disenfranchised by a vote transferring all citizenship rights from native-born Americans to illegal aliens, will have the opportunity in 2016 to make all 48,739 of their voices heard.

In the end, insane, brilliant, diseased, medicated, blackmailed, weak-spined, far-sighted, Machivellian Chief Justice John Roberts simultaneously built up and tore down American liberties.  Moreover, he also ensured that both Obama and the Democrats, on the one hand, and Romney and the Republicans, on the other hand, can claim a clear victory, both today and in the November 2012 elections.

I hope everyone understood this lesson.  There will be a test tomorrow.

A beautiful definition of what constitutes judicial activism

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In preparation for a possible Supreme Court ruling overturning ObamaCare, the Left is already hysterically screaming about the Supreme Court’s judicial activism.  The Wall Street Journal will have none of this, and provides a simple, elegant definition of what constitutes actual judicial activism:

Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.

The rest of the article is worth reading too.

Even legal ethics opinion writers cannot resist the urge to be anti-Republican pundits

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As a dues paying California lawyer, I periodically receive an email from the California State Bar offering random tidbits and squiblets of news some assumes California lawyers might find interesting.  The January edition intrigued me because of drive-by punditry that appeared in an ethics analysis of Judge Richard Posner’s latest decision.  I wasn’t paying attention, but Posner’s decision apparently has lawyers talking because as it takes very direct aim at a specific lawyer, and does so using rather broad humor.

There’s nothing new about a judge taking potshots at a lawyer.  One of the funniest (and meanest) opinions ever written comes out of a federal court in Texas and includes the foll0wing gems:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.

With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

[snip]

Plaintiff seems to rely on the fact that he has pled Rule 9(h) and stated an admiralty claim versus the vessel and his employer to demonstrate that maritime law applies to Phillips. This bootstrapping argument does not work; Plaintiff must properly invoke admiralty law versus each Defendant discretely. Despite the continued shortcomings of Plaintiff’s supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff’s briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.

Now, alas, the Court must return to grownup land.

[snip]

The Fifth Circuit has held that “absent a maritime status between the parties, a dock owner’s duty to crew members of a vessel using the dock is defined by the application of state law, not maritime law. Specifically, maritime law does not impose a duty on the dock owner to provide a means of safe ingress or egress. Therefore, because maritime law does not create a duty on the part of Defendant Phillips vis-a-vis Plaintiff, any claim Plaintiff does have versus Phillips must necessarily arise under state law. Take heed and be suitably awed, oh boys and girls — the Court was able to state the issue and its resolution in one paragraph … despite dozens of pages of gibberish from the parties to the contrary!

[snip]

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties’ briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant’s Motion for Summary Judgment is GRANTED.

[snip]

In either case, the Court cautions Plaintiff’s counsel not to run with a sharpened writing utensil in hand — he could put his eye out.

Bradshaw v. Unity Marine Corp., Inc. (S.D. Tex. 2001) 147 F.Supp. 2d 668.

Bradshaw is a remarkably savage opinion, and one that will follow plaintiff’s attorney to the end of his career.  It is also, quite possibly, deserved.  After all, there are myriad decisions in which courts have chastised, sanctioned and even disbarred attorneys for poor or despicable behavior.  Bradshaw stands out only because it adds the humiliation of being laughed at to what is probably a deserved reprimand.  (Lord knows, I’ve appeared opposite attorneys who operate on the “bury someone under paper” principle, an approach that invariably generates, not just dozens, but thousands of pages of gibberish.)

Judge Richard Posner therefore did nothing out-of-the-ordinary when he delivered a strong rebuke to an attorney in front of him.  Even the fact that he used humor was not sufficient to make it stand out.  Posner, though, added something a little different:  pictures.  To make known his disdain for counsel’s decision to file what he considered a completely unwarranted appeal, Posner had this to say — and show:

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).


I don’t particularly take umbrage at what Posner did.  Using rather amusing pictures strikes me as better than being sanctioned heavily or referred to a State Bar for disbarment proceedings.  And if indeed the lawyer ignored controlling law, that’s a big no-no, and deserves some judicial umbrage.

Although it’s not entirely clear, though, Diane Karpman, who wrote the ethics post from the California State Bar, seems to believe that it was a bad thing for Posner to use illustrations to take aim at a lawyer who violated appellate rules.  Thus, after carefully explaining the decision, Diane Karpman poses a series of questions indicating, without actually saying, that she thinks that maybe Posner crossed a line:

Is it acceptable conduct or unacceptable conduct to make a public spectacle of the lawyer? McKeand is now (and forever will be) known as the “Ostrich Lawyer.” As lawyers, we all make silent promises to members of the bench to protect them from ridicule and scorn, because they cannot protect themselves. Isn’t there a reciprocal promise made that everyone will behave in a civil, respectful and professional manner?

Those are fair questions.  Where Karpman goes of the rails as far as I’m concerned is in the paragraph immediately following, when she suddenly becomes political pundit, turning on Newt Gingrich:

Now we have Newt Gingrich, who in the final Iowa debate described the courts as “grotesquely dictatorial,” and who wants to subpoena justices before Congress to explain decisions he rejects.

Did you see that coming?  I didn’t.  As far as I can tell, it’s a complete non sequitur.  I can certainly conceive of an argument that might lead into this bit of punditry.  For example:

Although judges have the power to sanction the attorneys who appear before them, that should not give them the right publicly to ridicule those same attorneys by likening then to animals or to otherwise demean them.  Engaging in this type of judicial conduct lowers the judges’ own standing, leaving themselves open to challenges to their authority.  In such an environment, it is not surprising the Newt Gingrich has proposed making judges more accountable.  While Newt’s proposal is fatally flawed insofar as it attacks the separation of powers, there is no doubt that judges who behave vindictively, rather than showing a true judicial temperament, leave the door open to these kinds of political challenges.

By the way, I’m not saying that I agree with what I just wrote.  In fact, I happen to feel that way too many judges erroneously liken themselves to priests, whose ordination makes them conduits to a higher moral authority.  I’ve seen too many judges who believe that, merely by donning that iconic black robe, they’ve suddenly hooked into a hotline to some higher truth, one that usually has little to do with statutory and case law, and a great deal to do with Progressive ideas about social justice.  (Can you tell that I’ve spent my legal career in the San Francisco Bay Area, heartland of activist judges?)

What Karpman seems not to understand is that, if you’re desperate for some punditry, there’s a way to do it gracefully.  She made no such graceful transition.  In the middle of a mild challenge to what she apparently perceives as Judge Posner’s discourtesy, she suddenly, and irrelevantly, launched random criticism against Newt Gingrich.  This is liberal drive-by wannabe punditry at its worst.

“In God We Trust” banned in California classrooms

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Do you have any spare change lying around?  Yes?  I thought you might.

My dollar coins say “In God We Trust.”

My dollar bills say “In God We Trust.”

My quarters say “In God We Trust.”

My dimes say “In God We Trust.”

My nickels say “In God We Trust.”

My pennies say “In God We Trust.”

Every time I touch American legal tender, I touch the words “In God We Trust.”

Nevertheless, it turns out that those words are illegal — if they appear, not on a student’s coins, but on his classroom wall:

Saying a high school teacher has no right to “use his public position as a pulpit,” a federal appeals court ruled Tuesday that a San Diego County school district was on solid legal ground when it ordered a math instructor to remove large banners declaring “IN GOD WE TRUST” and “GOD SHED HIS GRACE ON THEE.”

Those inscriptions and others that longtime teacher Bradley Johnson displayed on his classroom wall amounted to a statement of religious views that the Poway Unified School District was entitled to disavow, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

Under U.S. Supreme Court rulings, the appellate panel said, government employees, including public schoolteachers, have no constitutional right to express views in the workplace that contradict their employer’s rules or policies.

“Johnson took advantage of his position to press his particular views upon the impressionable and captive minds before him,” said Judge Richard Tallman in the 3-0 ruling, which reversed a lower-court decision in the teacher’s favor.  (Emphasis mine.)

"Hey, you can't say that in here!"

I especially like Judge Tallman’s reference to “impressionable and captive minds.”  Apparently those young minds can withstand the constant propaganda emanating from legal tender, but put it on a classroom wall and their mushy psyches are completely overcome.  Under that kind of pernicious “God We Trust” influence, the next thing you know, those poor, weak-brained students are going to rush out and commit some heinous acts of morality and decency. You can see pictures of the hypnotic, over-powering banners here.

(By the way, if you’re getting old, as I am, and are trying to fix “God Shed His Grace On Thee” in your mind, it’s from “America The Beautiful,” a song that liberal media stalwart Lynn Sherr identified in her book about its creation as our “nation’s favorite song.”)

We need to stop worrying about al Qaeda and start getting seriously worried about our judiciary.  For three federal appellate court judges to say that the motto imprinted on every coin in America constitutes a private statement of religious views that can be banned from the classroom crosses a line from Progressive to deranged.

Liu out!

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I haven’t been blogging about far Left judicial activist Goodwin Liu, but if you’ve been following the story on your own, you’ll be happy to know that the Senate Republicans successfully filibustered his nomination — a reminder, as if we need one, that the filibuster is an important tool for allowing the minority in Congress to put the brakes on the majority.  (And, if conservatives become a majority again, I hope that I have the good sense and lack of hypocrisy to remember that principle should it arise in a reversed context.)

Judge not lest ye be judged

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People who know me in person also know that nothing is more likely to send my blood pressure spiking than talk about judges.  (To any of my readers who are in fact judges, I’m sure you’re the exception to anything nasty I might be about to say about judges.)  I dislike judges, something that is almost certainly a product of having practiced law in the San Francisco Bay Ara for the entire length of my career.

In the Bay Area, the vast majority of judges act as if they consider their judicial robes the equivalent of a priest’s vestments.  This means that, rather than being constrained by the law, they believe that they have some sort of direct connection, not to God (whose laws exert moral control over the priest), but to some higher liberal morality located somewhere around each judge’s own navel.  The practical result of this is that rulings almost invariably favor politically correct parties over legally correct parties.

This lack of judicial temperament is on its most blatant display in the trial courts.  It’s been about 15 years, but I still haven’t recovered from the trial court judge (now an appellate court judge) who said to me “I don’t care what the law is; I think there’s something here.” Although few judges were as open about their reluctance to apply the law, the deceit that emanates from the bench to justify manifestly wrong decisions indicates that there are a lot of judges out there who “don’t care what the law is.”

The appellate courts are not immune — which is unsurprising, I guess, given that they’re made up of former trial court judges.  Several years ago, I worked on a case that saw the justices lie about the underlying facts in order to achieve their preferred outcome.  This was a particularly vicious little thing to do, since the case (which was published) looks perfect on its face, with stated facts inexorably driving towards an inevitable legal conclusion — except that the stated facts were false, and the underlying record proved their falsity.

The other day, an opinion came down that saw the judges being a little less clever.  They simply lied about the law itself.  Worse, it was a simple enough lie to track down, because they quoted from a case to justify their holding — except that the case from which they quoted said the exact opposite of the principle they claimed to derive from that earlier ruling.  Since they’re appellate judges, which is an office reserved for quality lawyers, I’m going to acquit them of carelessness and stupidity, which leaves only malice.

All of the above griping is a lead-in to an article Thomas Sowell wrote saying that, if judges are going to act like politicians, its time to treat them that way, and vote them out of office:

Arrogant politicians who do this [pass laws that directly contravene the Constitution] are dismantling the Constitution piecemeal — which is to say, they are dismantling America.

The voters struck back, as they had to, if we are to keep the freedoms that define this country. The Constitution cannot protect us unless we protect the Constitution by getting rid of those who circumvent it or disregard it.

The same thing applies to judges. The runaway arrogance that politicians get when they have huge majorities in Congress is more or less common among federal judges with lifetime tenure or state judges who are seldom defeated in elections to confirm their appointments to the bench.

The problem, of course, is that judges function under the radar. Even in elections, voters usually know nothing about them. When it comes time to mark the ballot, the voters either abstain or they pick a name at random. As often as not, the judges (at least in California) run unopposed, which means that votes are irrelevant.

If judges would act like judges — if they would be impartial arbiters ensuring that the Constitution controls overall and that constitutional laws are enforced as written — I would have no problem with lifetime tenure which, in theory, keeps the judges out of the political fray and, therefore, makes them less likely to engage in the type of favoritism that would ensure them reelection.  However, decades of liberal ideology in the court means that judges are not impartial arbiters.  They are, instead, political players who need to be called to account.

Cross-posted at Right Wing News

Random wonderful stuff

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Just random stuff that’s so good you shouldn’t miss it:

Shirley Sherrod’s been on a roller coaster.  Thanks to a video snippet that Andrew Breitbart posted, she got pilloried as the face of Leftist/NAACP racial intolerance.  When it turned out the snippet was out of context, she got sanctified as the face of true racial harmony.  Now, though, that we know who this formerly anonymous government worker is, we’ve learned that she is indeed just another Leftist race-baiter, that she’s been complicit in government fraud, and that she has a long history of much badness.  Turns out that Breitbart managed to target precisely the right person to show what the Left is like.

May I recommend to you — no, may I urge upon you — Wolf Howling’s fabulous post regarding the judicial activism on display in Perry v. Schwarzenegger?  As a conservative, whether one agrees with gay marriage or not, the true issue is whether judges should be allowed to impose their values, wrapped in an ostensible cloak of legal reasoning, on citizens. Or, as Wolf Howling more eloquently says, “gay marriage is not an issue of Constitutional law for the Courts, but rather one of social policy for the people of the fifty states and their state legislatures to decide.”  A nice companion piece is James Taranto on the same subject.

And a simple economics video for you (h/t Danny Lemieux):

Another one to add to your reading list is Michael Totten’s article about the way in which the media, which never steps outside of its small Leftist bubble in Israel, grossly misrepresents that country.

I’ve never liked David Letterman, whom I’ve always found self-centered and mean-spirited.  His periodic forays into actual wit could never compensate in my mind for the essential ugliness of his character.  According to Ed Driscoll, he’s only gotten worse, attacking conservatives with “sclerotic” glee.  (Isn’t “sclerotic” a great word?  I fell in love with Ed’s post practically on the basis of that word alone.)