Holder has resigned *UPDATED*

Holders view of criticsIt’s official:  Eric Holder has resigned.  NPR, to which Drudge linked, has a surprisingly negative assessment, since it begins its report, not by painting him in glowing terms, but by detailing the many scandals and conflicts attached to his very long run as attorney general.

My personal sense is that Holder sees a very lame duck period coming up and feels he’s already done what he needs to do:  through his hiring policies, he’s successfully turned the US Attorney General’s office into another branch of the Democrat Party.  It’s now time for him to avoid any further scandals down the line and head for a cushy lobbyist job.

UPDATE:  DrewM, being smarter than I am, thinks that the peculiar timing here means that (a) another shoe might be about to drop and (b) before that shoe drops, and with the possibility that the GOP has substantial gains in November, the administration wants a replacement confirmed ASAP.  DrewM’s strategic thinking  — and my lack of same — explains why I’m a lousy chess player.

UPDATE II:  Someone thinks that there’s a link between Holder’s resignation and the pressure on Ginsberg to resign.

Daniel Hannan goes to the heart of things, praising the rule of law

Daniel HannanAs I said, today I got to hear Daniel Hannan speak as part of promoting his new book, Inventing Freedom: How the English-Speaking Peoples Made the Modern World. I have my autographed copy in hand, and am look forward reading it. To the extent Hannan’s talk was a preview of his book, I know I’m going to like it, and then drive everyone crazy by quoting from it all the time.

For those who don’t know, Daniel Hannan is a British representative at the European Union. He shot to fame amongst conservatives in America thanks to this video:

Before I get to the substance of Hannan’s way-too-brief talk, let me say that the video does not lie. He is a slim, neat looking man, who is enormously articulate in a way only the British seem to be. His grammar and diction are perfect, his Biblical and historic references fluent, his fund of knowledge vast, and his narrative organized and impassioned in a polite, classy way. When I spoke with him briefly after the luncheon, he was endearingly thoughtful and charming. I was probably one of 75 people to whom he spoke, and yet I felt he was giving me his full attention and seriously considering my point.

In his talk, Hannan’s core issue was a surprisingly simple one: He asserts that the Rule of Law’s primacy in the Anglo-American sphere is the basis for the freedom and prosperity that led these two nations to dominate the world, seriatim, for centuries.  More than asserting that, he made his case supporting this assertion.  And yes, as a lawyer and a Jew, I was inclined to agree with him from the get-go.

The Anglo-American reverence for law goes back 799 years to Runnymede in England, 1215. That’s when the English barons, fed up with charmless King John’s monarchical excesses, forced him to sign the Magna Carta.

The Magna Carta is the first writing ever that holds that there are abstract legal principles inherent in the individual that transcend even the king himself. Even when one remembers that these inherent principles were written so as to apply only to a very small band of high lords, this was still the moment that led directly to America’s Bill of Rights.  That document also states that there are inherent legal principles that protect against their government, the difference being that those rights extend to all people, not just the privileged few.

No wonder then, said Hannan,that Lord Denning described the Magna Carta as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.” It is this supreme achievement, Hannan added, that is the “shared patrimony” of English-speaking people. “This is our Torah.”

Because the law by its very existence frees people from tyranny, it is the foundation of everything else that has elevated the Anglo-American sphere (including former colonies) above the rest of the world. It leads to true democracy, the eventual end of slavery, free markets, equality, and, indeed, every right one can imagine in our world.

Unfortunately, too many people take the rule of law for granted. Indeed, many think it is the natural state of things. It’s not. The natural state of things is the autocrat, the tyrant, the oligarch, or (something striking increasingly close to home) the dictatorship of the administrative state.

Nor is it easy to spread these ideas. To the extent they exist at all, they have been spread by occupation or military conquest. It turns out that, in most places, an iron fist was necessary to put the tools of liberty in place. (As an aside, the value of the rule of law explains why, as Niall Ferguson argued in Empire: The Rise and Demise of the British World Order and the Lessons for Global Power, all of Britain’s former colonies are the most successful places in their region or on earth.)

Interestingly, Hannan says that Americans value the Magna Carta much more than do the Brits. In Runnymede (which is part of Hannan’s constituency), the first monument appeared only in 1957 — after the American Bar Association paid to erect it.

Amazingly, considering the document’s age, England has four original copies of the Magna Carta.  No one, however, seems to care much. When Hannan took his children to see the one in Lincoln, it was just hanging on the wall, there were no lines, and it was easy to stand right in front of it, so as to admire the medieval parchment, writing, and seals.

By contrast, when that same copy of the Magna Carta came to New York in 1939 for the World’s Fair, almost 14.5 million Americans went to see it. Moreover, in a marvelously symbolic way, because the war started before the Americans could return Magna Carta to its home country, that seminal document spent the war safely stowed away in Fort Knox.

Showing a greater knowledge of California history and politics than most people, Hannan said that California could easily have gone another way, away from the Anglo-American sphere. It was, of course, part of Spain before America got it, but Russia also wanted it. In 1806, Count Nicolai Rezanov wooed and almost won the daughter of the Spanish garrison commander in Monterey, something that would have cemented a Russian-Spanish alliance in the Western half of the new world. It was only Rezanov’s failure to return from Russia to claim the maiden’s hand (he died en route in Siberia) that prevented this event.

Even that marriage, however, might not have been enough to stop the spread of the Anglo-American rule of law across the American continent. As England herself discovered in 1776, in a pre-industrial age it’s terribly difficult for a centralized power to exert supreme control over a far-flung empire. This is especially true when the people living in those far-flung parts are independent minded.

In some places, of course, conquerors simply substituted themselves at the top of an existing power structure. In the new world, however, Hannan pointed out that free-spirited, freedom-loving settlers set out on their own to claim territory. Once they settled in, they applied the rule of law, quickly creating strong, functioning communities. This proved to be the best way to build a society from the ground up: the organic growth of free people subject to the rule of law.

For a microcosm of the two different types of governance, Hannan contrasted Silicon Valley and Sacramento. One is a dynamic creative hub, the other a sclerotic administrative entity that exists to fund itself in perpetuity (something both political parties are guilty of doing). In other words, said Hannan, “governments are pension providers, not service providers.”

Hannan then focused on the nature of government itself: How is it that well-intentioned people go into government, but nothing changes? He said that what they discover once they get to the halls of power is that the buttons and levers assigned to them are illusory. The un-elected functionary is the real power.

Given this depressing state of things, with the Western world moving quickly to administrative autocracies, how, Hannan asked rhetorically, do we repair things? The first step, he said, is for us to remember who we are. We — the Anglo-American world built upon the rule of law — are a wonder and a miracle, and we need to recognize that in order to preserve it.

Because this is California, Hannan offered a wine analogy: When Europeans first came to America, they brought their grape cuttings with them and planted wonderful vineyards that grew and thrived. Then, in the 19th century, a terrible blight destroyed European vineyards. To recover them, the Europeans had to come to America and bring cuttings from those heritage plants back home.

England brought her cuttings to America in the form of ideas. She’s now lost many of those ideas at home, but can look to America to reclaim them. Moreover, she can recognize that they’ve gotten better here — just as we pay $5 for a bottle of wine better than Louis XIV could ever have imagined.

That last fact recognizes the spectacular achievement of the free market. When law is king, a society prospers and innovates. People have stability, reliability, rights in property, etc., and that encourages creation and innovation, not to mention more affordable things — all types of things — for all people.

Hannan had a very simple example of the miracle of the law-based free market: a can of baked beans for $1. That can represents the coming together of so many things: the farmer, the loggers who cut the wood used for the label, the paper makers, the label printers, the mine for the metal used in the can, the smelting plant that made the can, the factory that cooked and canned the beans, the transportation that brought all these items together and then brought them to market, and the retailer who eventually sells it to you . . . all for $1.

This can of beans is a miracle, and we need to appreciate it and value it in order to preserve it. Moreover, the Left has never, not even once, put forward an idea or a behavior that has benefited so many people as the ideas and behaviors that came together in that single can of tasty nutrition.

Hannan wrapped up his speech there and opened the floor to a few questions. The first question was about China. Hannan does not foresee a good outcome there. Demographically, not only does it lack girls, it lacks youth. Like Japan and most of Europe, it will soon be a top-heavy nation with millions of old people relying on a small number of young people for support. Moreover, since it’s not a free nation, there will be no debate about how to deal with this problem. The Party’s heavy-hand will do something, and it probably won’t be nice.

If China could be given a rule of law and true freedom, she’d be unstoppable. Look at Hong Kong and Singapore, said Hannan. Both of these former British colonies are spectacularly successful and economically free.

The next question went to Hannan’s own identity. It’s a little-known fact that he was born in Peru, and first went to England to attend boarding school. This meant that he got to see both cultures side by side. In the England of his youth (a youth during the Thatcher era), what wasn’t barred was allowed. What you owned you kept. The NHS notwithstanding, it was still a legal system for individuals, not the state.

In Peru, what’s not permitted is disallowed. You hold the land on sufferance from the government (sounds feudal, doesn’t it?).

On the subject of the UKIP, Hannan said the best way to think of it is to imagine that the Tea Party became a genuine third party. There are some extremists in it, but mostly it’s a party that wants to hew to free markets, individual liberty, etc. That’s why the Left hates it and the Conservatives (just like the GOP with respect to the Tea Party) want to destroy it.

Things can get very bad in England if the Conservatives refuse to embrace UKIP.  This is so because, when a single party splits in two, rather than getting twice as many votes, each gets half as many, leaving power to the party on the opposite side of the aisle. In England, if Conservatives and UKIP combine, they have a clear majority; if they fight it out, the smaller Labour party sweeps the elections. (The GOP should, but won’t, pay attention to this.)

On the subject of energy, Hannan says that there is a vast shale reserve under his own constituency in south-eastern England. However, unlike America, which has vertical rights, the British did not own the land under their property. Since oil recovery can be a messy, noisy prospect, no one has an incentive to engage in it. Only with some ownership rights will they be willing to drill.

Finally, Hannan addressed how he, an individualist, can sit in the EU, the ultimate administrative, top-down, undemocratic body. For one thing, he explained, he is not simply defined by one thing. One can simultaneously be a member of the EU and work to limit its power.  More than that, to the extent the EU is a representative body, he should represent those who don’t like the EU. He admitted, though, that this is an uncomfortable situation for him, especially given that the British still have a vestigial sense of law and individual freedom, while the Europeans fear individual decision-makers (after all, individuals elected Hitler and Mussolini) and have endless faith in the power of elite technocrats.

Lastly, as I mentioned at the top of this post, I had a brief word with Hannan when he signed the book. Interestingly enough, while driving into the City, Charles Martel and I had spoken about the Leftist march through institutions. One of my points was that conservatives made that march easy because, by definition, conservatives are suspicious of institutions. A person who values individualism and liberty is not about to embrace an institution that invariably leads to its opposite. By instinctively retreating from those institutions, however, conservatives created a vacuum that the Left gleefully filled.

Since Hannan had spoken about the reason a conservative would enter the EU, I suggested that, if he’s asked that question again, he should add that he’s countering the Leftist march through institutions by filling a seat that would otherwise have gone to someone hungering for even more technocratic, bureaucratic power. Hannan really listened to me, and explained that he agrees with me, but that the few conservatives in the EU all speak about the soul-searing difficulty of functioning in that organization. To counter it, every year he organizes a holiday for all of them during which they contribute labor to a charitable organization (building houses for the poor, etc.).

I went in to the luncheon speech expecting to be impressed, and I left . . . impressed. Daniel Hannan is doing what he can to resurrect in the American soul a reverence for the rule of Law and all the benefits that flow from that. It’s up to us to do what we can to spread that idea further.

And one other thing:  Hannan’s talk gave me an insight into why Bush’s efforts to bring freedom to Iraq ultimately failed (with Obama simply adding to that failure when he created the power vacuum into which ISIS marched).  Bush made the mistake of thinking that democracy equals freedom.  In fact, democracy equals the right to vote.  The Soviets all voted.  I remember how the Soviet leadership always boasted that they were a true democracy, unlike America, because they had a 100% turnout in every election, unlike our puny two-digit numbers.  But they were not free.

Giving Iraqis the right to vote was not the same as creating a stable Angl0-American legal system within which they could thrive.  Of course, considering that sharia is a stable legal system, although a terribly repressive and punitive one, it’s doubtful if anyone, even someone with a better understanding of law’s relationship to freedom and stability, could have succeeded in Iraq.  As we have all had reason to learn, the Anglo-American system, which is individual-centric, does not exist in the same universe as sharia, which subordinates the individual completely to the cruel and autocratic will of the long-dead Mohamed.

Ann Althouse seems surprised that Jeffrey Toobin is a moron about law; I am not surprised *UPDATED*

220px-Jeffrey_toobin_2012Jeffrey Toobin shot to national fame during the OJ trial, when he broke the story about the “race card.”  For New Yorker readers, he speaks ex cathedra on all legal issues.  For people who pay attention to the law, he’s a nincompoop.  Ann Althouse just caught Toobin in a major error about the Hobby Lobby case.  He was able to side firmly with the Obama administration only by ignoring the Religious Freedom Restoration Act, which serves as the basis for the plaintiffs’ claim.

I was not surprised.  Back in 2007, I wrote about another embarrassing Toobin article purporting to explain the law to New Yorker readers.  Since that post was on my old blog site, I’ll reprint it here and now:

*****

Today’s entry on the long list of media dishonesty is Jeffrey Toobin’s article about the current United States Supreme Court, an article given pride of place as the first entry in the New Yorker‘s “The Talk of the Town.”

The article, which ends with a reminder to New Yorker readers to keep the Supreme Court in mind when they cast their votes in November 2008, manifestly intends to scare people into believing that a new Dark Age, led by Catholic men in dark robes, is dawning. Sadly for Toobin’s authorial honor, and unfortunately for his credulous liberal readers, the only way he can do this is to lie, both by implication and, I’m sorry to say, by an outright falsehood.

Toobin confines his little attack on the Court to three decisions that came out under Chief Justice Roberts aegis. As to one of those cases, involving a death sentence, I have no information and, since it’s in criminal law, I have no desire to educate myself about the case’s ins and outs. As to the other two, however, because I’m familiar both with the cases and with the type of jurisprudence at issue, I do feel capable to comment.

The first case Toobin goes after is Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007). This following paragraph constitutes Toobin’s entire discussion of the case and its outcome:

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits.

What any sensible reader will understand from this terse summary of the case is that the reactionary Supreme Court, lusting after a return to the 19th Century’s golden era of unfettered employer rights, has foreclosed forever the possibility that employees can claim wage discrimination more than 180 days after that discrimination occurs. In the minds of Toobin’s readers, the justices have placed a permanent wall between these hapless employees and legal redress. Except that this understanding, which is really the only reasonable understanding possible based on the limited information Toobin provides, is entirely untrue.

What the Supreme Court said was that a Federal law imposing a 180 day deadline within which to file a wage discrimination begins to run on the date the employer makes the decision to discriminate, not on the date the employer cuts the last paycheck reflecting that discriminatory decision. That’s all.

Here’s the applicable law as summarized in Ledbetter:

Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to discriminate “against any individual with respect to his compensation … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) “after the alleged unlawful employment practice occurred,” ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1).

Ledbetter, 127 S.Ct. at 2166 -2167. In other  words, Congress had mandated that if a person claims that her (or his) gender led her (or his) employer to pay her (or him) a discriminatory salary, then that person has between 180 or 300 days from the discriminatory act to file a claim with the EEOC.

Ms. Ledbetter argued that the legislatively vague phrase “alleged unlawful employment practice” should be understood to refer to her paycheck.  Her interpretation would mean that every single paycheck starts a new cause of action (and, presumably, reaches back to encompass prior paychecks). Her employer contended that the “alleged unlawful employment practice,” if any such act existed, would be the employer’s decision to pay its employee a discriminatory amount, as opposed to the fruit of that decision (i.e., the paycheck). The Supreme Court carefully analyzed myriad prior decisions and concluded that the employer had the better argument.

Speaking personally, I find Alito’s analysis clear and compelling.  As is always the case in the law (or at least mostly the case in the law), one can examine legal precedent and draw different conclusions or find entirely different cases to act as precedent. The dissent, for example, contends that it’s unreasonable to ask people to investigate how their pay ranks against their peers’ pay, and that they should be allowed to wait years, perhaps, before they figure out that they’re getting the short end of the salary stick. By advocating a different standard of responsibility for the employee, the dissent can look to different cases so as to reach a different outcome. And that, from beginning to end, is what Ledbetter is all about.

Knowing what the case is about helps one appreciate what the case is not about: It is not a ruling holding that, henceforth, employees must forever be barred from bringing wage discrimination claims if they don’t figure the problem out within 180 days of their most recent pay raise (or pay raise refusal). The Supreme Court is not making law. It is simply interpreting the law as written in light of case precedent. If the Legislature feels there’s a problem, it can change the law. That last is a singularly important point, since it goes to the heart of the difference between strict constructionists, who limit themselves to interpreting law, and judicial activists, who feel impelled to correct perceived Legislative errors, omissions, and ambiguities.

As I pointed out initially, Toobin’s short, elliptical analysis of the case utterly fails to explain to his readers that the majority was not making a law barring employees forever from complaining about wage discrimination more than 180 days after the fact, but was instead merely interpreting the law as written, leaving the matter open for Legislative change. This serious omission about the impact of a Supreme Court decision forces Toobin’s less informed readers to believe that the Supreme Court has dealt a permanent policy blow to the rights of American workers.

Toobin goes from misleading by omission to out-and-out misrepresentation when he discusses Gonzales v. Carhart, 127 S.Ct. 1610 (2007), the decision upholding Congress’ 2003 Partial Birth Abortion Ban. Here is Toobin’s summary. I’ve highlighted the language that is out-and-out false:

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.

That last statement is just plain, absolutely, completely wrong.

Contrary to most people’s assumptions about Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that case does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus.  In the first trimester, when the fetus is not viable outside the womb, the balancing favors the woman’s right to choose how she wants to handle her pregnancy. In the second trimester, as the fetus nears viability, the balance begins tipping in the State’s favor. And, in the third trimester, when the fetus is viable, the State’s interests may triumph:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 732.

Because it has never been the law of the land that the woman affected “had the last word,” it is dead wrong when Toobin says that Gonzales marks a stunning reversal of American abortion law. Instead, Gonzales is nothing more than a recycling of principles already articulated in Roe v. Wade. No matter how people may fulminate about Justice Kennedy’s touchy-feely analysis of abortion (a bad writing habit he no doubt picked up from his years in a liberal dominated court), the fact remains that the decision he authored in Gonzales did not take away any rights already granted in Roe v. Wade — a case which more than 30 years ago ensured that, near the end of the pregnancy, the State’s interests, not the woman’s, can be given primacy.

Toobin, of course, is not the only liberal to try to make political capital out of what must be a deliberate mis-reading of Roe v. Wade’s clear language. Immediately after the Supreme Court handed down its decision in Gonzales, Hillary Clinton issued a press release that also positioned the case as something entirely new and horrible:

Washington, DC — “This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman’s right to choose and recognized the importance of women’s health. Today’s decision blatantly defies the Court’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother. As the Supreme Court recognized in Roe v. Wade in 1973, this issue is complex and highly personal; the rights and lives of women must be taken into account. It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito.”

That Hillary created rights under Roe v. Wade that never existed in the first place isn’t too surprising. While she may be trained as a lawyer, she is first and foremost a politician, and one who has shown a willingness to do and say whatever it takes to obtain a political advantage.

That Toobin did the same thing is more disturbing. Toobin is not only a lawyer, he is a journalist who specializes in legal matters. His readers believe that he is using his legal knowledge and narrative fluidity to explain to them accurately legal matters that, while they may not be intelligible to the average person, nevertheless have immediate and significant impact on ordinary peoples’ lives. Toobin has taken this trust and used it to perpetuate lies. I’d cry “shame” but I suspect that, as to Toobin, that concept, whatever role it may once have had in his life, no longer exists.

UPDATE:  Earl Aagaard reminds me that, while Roe v. Wade refutes Toobin’s statement, it was illusory in its effect:

“…Roe v. Wade…does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus. ”

This is true, Bookworm…..but your post ignored the fact of Doe v. Bolton, issued the same day as Roe v. Wade.  Doe says that a woman’s decision can be based on her “health”, and interprets health to include “mental health”, meaning that there is NO balance.  A woman has only to say she might be suicidal if she has to carry the baby to term and the decision of the SCOTUS says she must be allowed to abort – through all nine months of pregnancy.

What Roe gave, Doe took away, and our country has FAR less restrictive abortion laws than Europe….ever since 1973.

Harry Reid’s nuclear option is a red herring — but the effects will still be profound

Mitch McConnell is too often a GOP stalwart (as opposed to a conservative) for my taste, but when he’s good, he’s very, very good.  He was very, very good this morning, as he attacked Harry Reid’s attempt to change Senate rules so that only 51 votes are needed to get judges onto federal benches (except for the Supreme Court):

Even though Harry Reid’s nuclear option is a red herring meant to distract from Obamacare’s many and varied failings, it’s still an enormously consequential thing. I know all about ideologically packed courts, having practiced in the Bay Area for my entire legal career, and I can tell you that blind justice is never seen in those halls.

As with everything else the Left touches, law is not about applying settled, reliable principles to known facts.  Instead, on the civil side, it becomes purely redistributive. I cannot tell you the number of cases I’ve handled that saw the judge rule against my corporate client, even while admitting that my client had the better legal case. Nor can I count how many times judges have engaged in obscene intellectual contortions to ensure a redistributive outcome. I’ve even worked on a few cases in which appellate court justices have out-and-out lied about the facts in order to achieve a specific end — and then they’ve published those cases, making them case precedent in California.

A court that owes its fealty to a political ideology, rather than to applying settled law to undisputed facts, is an inherently corrupt institution. That corruption spreads far beyond the parties standing in the courtroom. Take just one example:  I worked on a case where a woman defaulted on loan. The bank sued. The woman’s defense was that she hadn’t read the loan documents. Settled law going back to forever says that the failure to read documents is not a defense to a default. The far Left judge felt differently. On the one hand, he had a mean bank; on the other hand, he had a poor little old lady. You can guess the outcome. You can also guess that, in future, the bank increased the cost of loans to offset bad debts such as this one.  You can also bet that the little old lady went home and let her community know that defaulting on a loan in San Francisco county was a reasonably safe thing to do.

The problems with an ideologically corrupt judiciary don’t flow solely from the lessons people take away as they walk out of the courtroom, even though such lessons resonate throughout the community and affect future behavior. There’s an even more insidious problem with a system in which the judge’s pick winners and losers based, not upon facts or law, but upon their place in their hierarchy of Leftist victim-hood.  It’s also the fact that the law is utterly unpredictable if the outcome is dictated by each judge’s personal redistributive biases. Businesses cannot operate in a system that isn’t predictable. They go one of two ways: they become as corrupt as the courts, since lawlessness is contagious; or they retrench, taking their services, products, and investments out of a market that is too unreliable for them to risk.

blind_justice

And speaking of blasts from the past

Nancy Pelosi, before she drank too deep of the Kook-Aid:

It’s a reminder, of course, that the Democrats don’t have any fixed principles that they routinely apply to all situations.  Their sole, naked goal, is total victory and control.

Hat tip: Sadie

Wendy Davis: typical Harvard Law School grad

To those few of you reading this who are conservatives who managed to survive Harvard Law School, my apologies.  But I have to say, having read this, it’s obvious that Texas’s Wendy Davis is a typical Harvard Law School grad:  thin-skinned, unprincipled, arrogant, anti-constitutional, and ill-informed.  Oh, and judging by her claiming the “pro-Life” mantle for herself, appropriately Orwellian.

I know that there are good Harvard Law grads out there.  I’ve always been willing to say that Harvard Law was still producing decent lawyers as late as 1980.  Ted Cruz proves that intelligent people can still go in there and come out alive.

But in my experience, people like Obama and Wendy Davis are the typical Harvard Law grads of the past 30 or so years:  they’re undoubtedly bright going in, but after three years spent at that august institution, they’re ruined.  To them, law isn’t a matter of justice, it’s a matter of social justice.  They operate off of a sense of wounded ego and identity-based victim-hood.  Principles always give way to expediency.  And they have no professional decorum.  Barring one rather insane guy who went to Hastings, I’ve never dealt with ruder, less honest, more unreliable people across the courtroom, fax machine, telephone, email, or desk than Harvard Law Grads.  They’re like rats.

Yale grads are just as insanely ideological, but they at least acknowledge that the law creates boundaries and that professionalism exists, and they try to operate within those parameters.  Harvard Law grads don’t.

Quite possible the best thing that could happen to American politics would be for Harvard Law to suffer some sort of catastrophic financial loss and close its doors permanently.  It’s a factory for defective people who are given instant admission to America’s halls of power.

An update on the story about the liberal mugged by reality, plus news about shoddy police tactics

I wrote a few days ago about my liberal friend who was shocked by the way the judicial system treated a friend of hers who got arrested for allegedly doing a bad thing.  I have absolutely no idea whether the guy is guilty or innocent.  This post posits all three possibilities.

The guy ended up being charged with 21 counts, many of them duplicative, and all of them carrying very high minimum sentences.  He will almost certainly plea bargain.

If he’s guilty, a plea may be a good deal for him.

If he did what he is alleged to have done, but there are extenuating circumstances, that’s irrelevant in terms of deciding the risk of going to trial.  The moment a jury concludes that he committed the acts, he’s done for.  So again, a plea bargain is the way to go.

And then there’s the question of whether he’s innocent.  By charging him with 21 acts, the prosecutor, by bringing 21 counts against him, has already sent a signal to the jury that this is a “bad” man.  The legal presumption may be innocent until proven guilty, but a jury will almost certainly think “Boy, that’s a lot of smoke.  How about if we just convict him on one of the charges?”  The jurors won’t know, of course, that just one of those charges can mean decades in jail.  So again, the best bet for the guy is to plead out.

So think about that for a moment — we have created a judicial system where a person, whether guilty, innocent, or with a good excuse, begs to go to jail rather than to face the stacked deck in court.

But there’s more to it than that: This system encourages lousy police work, because the police know that they probably won’t be called upon to answer for it before a judge and jury.  Police are rational and they are overworked.  Even the best and most decent of them will eventually fall down the slippery slope of dangerously careless policing.

Did I say dangerous?  I meant it.  Please read this post by my friend Mike McDaniel (whose home blog is Stately McDaniel Manor).  It describes the terrible outcome of the kind of shoddy police work that our judicial system actively encourages.

I hate getting stuck in the middle of things

I had a less than pleasant experience today, which reminds me why I don’t really want to do legal work anymore.  Briefly, last week I submitted a draft document to two lawyers with whom I work.  The brief itself had to be filed today.  I finally heard back from one of the lawyers yesterday, telling me he loved what I’d done, but had substantially rewritten it, and could I please edit it and put it to bed.  I said yes.  I got it in pieces between 6 and 9 last night, which intersected with family stuff.  The revised brief bore little relationship to my final product.

I did edit it for a couple of hours last night, and then began again very, very early this morning.  Barring a 45 minute exercise break, I kept at it from 6 a.m. to noon.  Although it was mostly new to me, I figured that was fine.  Mine is not the name on the pleading.  If people want me to be an editor, I will be.  I assumed, of course, that the two attorneys with whom I’d originally spoken had collaborated on the brief’s new direction.

Because it was too long, it took me forever to winnow it down.  That mostly involved my converting passive-voice sentences into active-voice sentences, a surprisingly time-consuming activity.  I filled in missing legal cites, straightened out confusing arguments, and tried to figure out if peculiar paragraphs were formatting or thinking errors.  Then I did the table of authorities (another slow activity) and the table of contents.  I got it back to the attorney by the skin of my teeth time-wise.  I knew it wasn’t great, but it’s better to file a brief with typos than not to file a brief at all.

An hour later, I got a call, not from the attorney who rewrote my draft (I’ll call him Attorney 1), but from the other guy (Attorney 2, naturally).  Attorney 2 expressed surprise at (a) the typos and (b) the brief itself.  He knows my work-product, so he was confused.  I took responsibility for the typos, explaining that I simply hadn’t had the time to give it a final proofreading.  (And as you guys know, even a final proofreading would have left me with a few small errors.)  Mostly, though, Attorney 2 was distressed by the brief’s quality.  I explained what had happened, but felt bad, because I felt that I was blaming Attorney 1. I told Attorney 2 that  I had assumed that both he and Attorney 1 had signed off on the draft I received yesterday.  (Never assume.  When you assume, you make an “ass” of “u” and “me.”)  In any event, there was no time to discuss it with Attorney 1 or 2 and then revamp it.

I should add here that both Attorney 1 and Attorney 2 are the nicest guys.  I enjoy working with them, and wish them both very well.  Their styles are quite different, and Attorney 2’s style is closer to mine, but I don’t have anything bad to say about either of them.  Thinking about it, I think this clash of styles, which goes to fundamental differences in the way both men approach a case, was a significant problem here.

Attorney 2 and I ended the call very nicely. I told him honestly that I appreciated him approaching me directly, rather than brooding and thinking bad things about my work.  He may still have left the call thinking bad things about my work, but at least he was thinking those thoughts about the work for which I was responsible, and not the other stuff.

I’d barely hung up from Attorney 2 when Attorney 1 called.  He was steaming, because Attorney 2 had said “How did the brief end up going out in this form?”  Attorney 1 wanted to share with me how unfairly he and I had been treated by Attorney 2.  All I could think to say is that Attorney 2 is a super nice guy and that, whatever his concerns were, he’d never do anything to undermine us.  I also again took responsibility for those damn typos.

I hate being in the middle of things like that.  I hate knowing things about people and not being able to speak to them honestly.  I hate feeling somewhat culpable, but not very culpable, but worrying that I’m going to get caught up in someone’s back draft.  I hate clashes of egos.  I have a very strong ego about my writing, but I’ll still usually back down, because all lawyers have strong egos about their writing.

Feh!

The awesome majesty of the state’s power — thoughts for Constitution Day

Nobody believes more strongly in defense attorneys than Progressives.  This is ironic, because the whole point of defense counsel is to be a bulwark against Big Government.  I was reminded of this fact when one of my children, out of the blue, wondered how defense attorneys could bear to represent their clients . . . the really bad ones, she hastened to add.

What an excellent question and one, I think, that goes to the heart of a citizen’s relationship to the state.

It all starts with the Fifth and Sixth Amendments to the Bill of Rights:

Fifth:  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Sixth:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.  (Emphasis added.)

These rights are inherent in each citizen.  Being Mirandized doesn’t create the rights; it simply reminds citizens in stressful situations that they have these rights.  Each of these rights has as its purpose protecting the citizen against the awesome majesty and power of the state.  With the Constitution in place, gone are the days of trials by fire or drowning; lengthy imprisonments before a trial; repeated prosecutions; and coerced testimony.  No matter what information we have about a criminal defendant’s conduct outside of the courtroom — no matter that a hundred people saw him stab the knife into someone’s heart — when he stands before the court, the law presumes him innocent and therefore entitled to every right that goes with that innocence.

In this context, a criminal defense attorney stands as the knowledgeable friend of an innocent man who would otherwise have to face alone everything that the state can bring to bear against him: its coercive power against witnesses; its wealth; its resources; its ownership of the judicial system; its familiarity with rules, law, and procedure; and, most importantly, its capacity to imprison or even to kill the person who stands before it.  A criminal court is Big Government made personal.  A criminal defense attorney is an honorable man (or woman) who stands as a necessary bulwark against potential tyranny.  The attorney represents not only his (or her) client, but all citizens.

Progressives are rightfully fanatic about making sure that an accused person has counsel.  At my law school, it was always the left of Left students who went on to become public defenders.  Most of them burned out, of course, because absent the presumptive assumption of innocence, the people defense counsel work with are for the most part not very savory.  Sure, there are the fools, the innocents, the dupes, the careless ones, the one-time, unlucky DUIs, and the victims, but for the most part, criminal defense work entails representing criminals.

Given their fealty to the notion that the government is an extremely dangerous entity, the power of which must always be constrained, it’s quite peculiar that Progressives are so enamored of Big Government.  One would think that they, more than others who don’t routinely think about our justice system, recognize how monumental government is and how dangerous it can be without our zealously reminding it of its limits.

I just have to boast, just a little bit. No, I have to boast a lot. Sorry, guys and gals….

Since work for Mr. Conservative means that I’m finally doing paid political writing most of the day (along with writing about salacious scandals, violent crime, and bizarre deaths), I sometimes feel as if I’m not a lawyer at all.  This past week, though, I got a call from the offices of a very dear friend of mine.  He was a mentor to me when I struck out in business on my own providing support services to other lawyers, and he’s always been a good friend.  I credit rigorous and enjoyable conversations with him as being part of my intellectual journey from the unthinking Left to the very aware Right.  This means that, no matter how busy I am, I will always do whatever I can to help him and his office.

Anyway, I first got a call from an associate in my friend’s office.  The associate told me he was buried under work, and asked if I could please write up an opposition brief for him.  I said yes, even though I knew it would make for some very long days and too short nights.  I got the opposition to him in a timely way, and he got it filed.  He thanked me profusely (which I appreciated), but what I learned later was that he was so pleased with my arguments that he insisted on reading them aloud to another lawyer in the office.

The next call from that office came directly from my dear friend himself. He asked if I could help him with a demurrer that was due  in just two days.  (A demurrer is a motion that says that, on its face, the complaint is so hopelessly flawed that it shouldn’t go any further, but should just be tossed.)  Again, I said yes, although it was a terribly short turnaround and a case about which I knew nothing.  My friend promised to send me a draft, which he did.  The problem was that the draft was something he wrote off the top of his head, and it didn’t make much sense.  It also had lots and lots of blanks, for both law and references to various iterations of the complaint.  (This was the plaintiff’s fourth effort to state an actual case.)

And that’s where the other lawyer, the one who had my work read aloud to him, comes in.  I’ll call him Jim, which is very much not his real name.  When we spoke, Jim promised that he would fill in as many blanks as he could, since he’d already worked on the case and was familiar with the law and the pleadings.  I was grateful.  He sent me the revised draft Thursday afternoon, when I was finished with Mr.C work and could turn my attention to churning out a 15-page demurrer overnight.  His insertions were very helpful, but I still needed to rewrite pretty much the whole darn thing to make it usable.  I didn’t reinvent the wheel, of course.  I used my friend’s ideas and the various citations Jim provided, but it needed all new words.

The next day, Friday, I got up at 5, worked for Mr. Conservative for three hours, and then finished meeting the 12:30 deadline for getting that disorganized 18-page behemoth into a coherent 15-page brief, complete with beautifully formatted tables of contents and authorities.  (I’m a word processor at heart, so I love formatting legal briefs. A well-formatted legal brief is a visual delight).  Had I missed the deadline, the demurrer would not have been filed and that would have been a bad thing.

After the filing, Jim called to thank me.  And thank me he did.  He told me that he hopes one day to be the writer I am.  He said that he was blown away by how good my writing was.  In fact, he said, he spoke to his wife after the other associate had read to Jim what I had written and after Jim had learned that I would then be helping him.  When his wife asked him “Will she really help?”, Jim told her “She’s an incredible writer.”

Jim repeatedly told me that he found it mind-boggling the way I could make complex subjects so understandable, and the knack I had for distilling difficult legal ideas down into ordinary language.  Add to that my word processor skills, and I had hit a grand slam for him.

I am not exaggerating.  I of course told Jim that he was my new best friend forever.  Despite my dream that I really look like Claudia Schiffer, I actually have no ego tied up in my looks.  Indeed, the only thing that I’m genuinely egotistical about is my writing.  Praise that, and I will love you forever.  Jim has definitely established himself in my mind as a brilliant, insightful man with a heart of gold.

Much as I appreciate (really appreciate) Jim’s kind words, he’s not the final arbiter here.  The judge is.  Now it’s a wait and see thing to see (a) whether the judge thinks my brief is as brilliant as Jim did and (b) whether the judge will decide, brilliant brief or not, that the plaintiff has over-stayed his welcome in the judge’s courtroom.  The law is very strongly against kicking out plaintiffs if anything can be pulled out of a complaint, no matter how badly written.  After four tries, though, the judge may say, “Enough!”

Useful advice for any young lawyers reading this blog

When you’re drafting a complaint, the best way to structure your various causes of action. and to make sure you’ve properly alleged all the essential elements for a given claim, is to begin with jury instructions.  Too many attorneys wait until later in the case to deal with the jury instructions, whether they’re defending against a motion for summary judgment or actually going to trial.

For basic causes of action, however, you’ve got to make sure up front, when you first have your client pay several hundred dollars in filing fees and service costs, that you can meet the minimum requirements for whatever it is you have to present to a jury.  If you can’t make that bar, don’t bother to include the cause of action in your complaint.  You still have to convince the jury at trial that your facts are believable, but at least your opponent can’t challenge you on the ground that you didn’t even meet the first hurdle of alleging appropriate facts and injury.

(As you’ve probably guessed, I’m trying to beat back a challenge to a complaint, one that I didn’t draft, that’s got the essential elements, but they’re hidden all over the complaint.  My complaints are mechanical, but they always stand up to preliminary challenges based upon the face of the pleading.)

Tipping point idea: Put a sunset provision on all federal laws

(To win over the electorate, conservatives have to be seen as a party with fresh ideas that benefit all Americans. This is the first in a series of Tipping Point posts, promoting ideas that will appeal to all voters, while becoming signature initiatives for conservatives and Republicans.)

United States Code

Did you know that the Code of Law of the United States (USC), which contains all the operative federal laws affecting your life is around 200,000 pages long and that, if one doesn’t count case annotations, it takes up about 6 feet of shelf space?  And did you know that the Code of Federal Regulations (CFR), which contains all the rules that agencies have enacted in order to apply thid federal law, occupies four times as much shelf space as the USC itself.  In other words, in the absence of a page count, one can be reasonably sure that the CFR far exceeds 800,000 pages.

Code of Federal Regulations

America’s common law has always held that “ignorance of the law is not excuse.”  That’s all well and good, but do you actually know your federal law?  I didn’t think so and, in all seriousness, nobody else does either.  We all know the big laws — don’t murder people, don’t cheat on your taxes, don’t download music without permission — but the devil for everyone is in the details.  The result is that citizens who believe they are law-abiding, may suddenly find themselves on the receiving end of a federal investigation.

The previous sentence implies that federal employees do know all this law.  They don’t.  They are reasonably conversant with the law in their area of expertise, and therefore do have that advantage over the ordinary citizen who cannot hire 24/7 legal counsel.  Otherwise, no, they don’t know it any better than you do.

What actually happens at the federal level is that a person or business comes to the government’s attention because of citizen complaints, political vendettas, or because the person or business is engaging in a specifically identifiable, but hard-to-prosecute illegal activity.  When that happens, the government looks at the person’s or business’s activities and then, through legal research, tries to see if those activities match anything prohibited under the federal laws and rules.

Al Capone at Alcatraz

Sometimes, this random approach to federal law is a good thing.  For example, back in the 1920s everyone knew that Al Capone was a mobster responsible for all manner of crimes.  The problem was that he was too wily for law enforcement, and they could never make any charges stick.  Some bright person in the federal government suddenly realized that, if the mountain won’t come to Mohamed, Mohamed must go to the mountain — and to that end, rather than trying to mesh Capone’s violent and offensive actions with some criminal law, decided to bring the tax code to Capone.

Capone was duly prosecuted for tax violations, and went to Alcatraz for seven years.  Although this wasn’t a long sentence, considering his terrible crimes, it was long enough that, by the time he came out, his rivals had taken over his criminal syndicate, leaving him with nothing but mental decline from the syphilis he acquired during his glory days.

Certainly we can celebrate laws that bring dangerous criminals to heel.  As often as not, though, the labyrinth of federal laws operates, not to haul in wily criminals but, instead, to trap the unwary.

Buried in paperwork

In addition to keeping a sword of Damocles over every citizen’s head, the plethora of unknown and unknowable federal laws has two profound effects on American society as a whole:  The first effect is that American’s are unable to rely on their legal system when they conduct their every-day activities.  The law, instead of being a reliable framework that allows people to plan for a stable, legal, and profitable future, instead becomes an arbitrary and capricious force, stifling economic activity.

If it will cost me hundreds of thousands of dollars to assemble the legislative information necessary to start a new business that won’t potentially land me in jail, I might decide that no business is worth that kind of start-up cost.  Nor is starting up a new business worth the risk that if, despite knowing the the laws that affect my business, I can still be undone by other areas of legislation and regulation that seem to touch upon my activities only marginally.

Struggling with paperwork

The second effect of laws and regulations that run into the millions of pages is that people lose their respect for the law.  Law should be seen as both the infrastructure for a stable, civil society and the lubricant that enables people to rub along next to each other without resorting to violence.  These basic functions only work, however, if people are capable of knowing the law.

What has happened in America, though, is that federal law has become an impenetrable maze that allows loopholes by the thousand for those rich enough or well-connected enough to exploit all those openings.  At the same time, federal law has becoming a meaningless background buzz for the ordinary citizen, who suddenly becomes aware of it only if he or she is unlucky enough to get trapped by one of its random, unknowable prohibitions or mandates.

What’s really tragic is that so many of these laws and regulations are useless or outdated.  To the extent that they have no current purpose, they exist only as traps for the unwary.  Until the trap is sprung, no one cares about these superfluous laws and rules and, if the trap springs in the government’s favor, the government has no incentive to purge them from the books.

Presidential candidates periodically announce that they’re going to trim back the CFR (I recall Al Gore getting this task in the 1990s), but it’s a boring job, so it never comes to anything — and meanwhile, Congress just keeps passing more and more laws, and the agencies enact more and more regulations.

Sunset

That’s where the idea of a Constitutional Amendment inserting a sunset provision in all federal laws (and their accompanying regulations) comes into play.  The Sunset Amendment would mandate that all federal law and their accompanying regulations automatically expire twenty years (or some other set time) after they go into effect.  The only way to preserve the laws and regulations would be for Congress to act affirmatively to vote on each law and reinstate it before it expires.

Three things should happen:  First, legislators will think twice about enacting laws that they’ll have to review again (and fight about again) in twenty years time.  Second, legislators will take more care writing the laws, since they and their aides will be tasked with wading through them and learning about their effects, along with working on current matters.  (Imagine if a Sunset Amendment had been in place when Obama’s Congress enacted all 2000+ pages of ObamaCare.)  Third, rather than undertaking the tedious work of reviewing patently irrelevant, obsolete, or failed laws, Congress will simply allow them to lapse without any discussion.

Of course, a Sunset Amendment would have to include a clause dealing with those laws and rules that are already on the books.  A practical approach would be to require that a specific number or percentage of laws and regulations would have to be reviewed and, if necessary, re-voted every year after the Amendment’s passage, for a set number of years, until each existing law and regulation has been voted upon or been allowed to expire.

Although cleaning up Federal laws and regulations is an issue that all Americans should embrace, and a burden that legislators should willingly shoulder as part of their job (not to mention a reasonable amount of work considering their salaries and pensions), it especially behooves Republicans and other conservatives to push for a Sunset Amendment.  The whole notion of “smaller government” makes sense only if we clean up old laws, in addition to enacting fewer, and less onerous new laws — and then we make sure that the law books don’t get cluttered up all over again.

If you think this is a good “sticky” issue to help Americans reach a tipping point that turns them towards smaller government, please take this idea and run with it:  talk about it on Facebook or Twitter; post it at your blogs (feel free to reprint this whole post, although I’d appreciate attribution); contact your Senators or Congressman; and bandy it about at the water cooler.  Good ideas make a difference only if people spread them around and then act upon them.

(Thanks again to Mike Devx for coming up with this good idea.)