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!!!

Monday evening round-up and Open Thread

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Victorian posy of pansiesIf you read only one thing today (and tomorrow too), I think you should read Sam Harris’s “Why Don’t I Criticize Israel?” In it, Harris, who is renowned for his very well-articulated atheism, explains that one doesn’t have to believe in Israel’s religious right to the land in order to support her in the current war with Hamas.

The article is very dense, but never boring or confusing. Harris methodically works his way through the case for Israel. He’s not a starry-eyed Israel fan. He is, instead, a realist who feels that any moral compass, atheist or religious, must come down on the side that values human life, rather than the one that destroys it.

To whet your appetite, here’s just one very small segment of his entire article:

The truth is that everything you need to know about the moral imbalance between Israel and her enemies can be understood on the topic of human shields. Who uses human shields? Well, Hamas certainly does. They shoot their rockets from residential neighborhoods, from beside schools, and hospitals, and mosques. Muslims in other recent conflicts, in Iraq and elsewhere, have also used human shields. They have laid their rifles on the shoulders of their own children and shot from behind their bodies.

Consider the moral difference between using human shields and being deterred by them. That is the difference we’re talking about. The Israelis and other Western powers are deterred, however imperfectly, by the Muslim use of human shields in these conflicts, as we should be. It is morally abhorrent to kill noncombatants if you can avoid it. It’s certainly abhorrent to shoot through the bodies of children to get at your adversary. But take a moment to reflect on how contemptible this behavior is. And understand how cynical it is. The Muslims are acting on the assumption—the knowledge, in fact—that the infidels with whom they fight, the very people whom their religion does nothing but vilify, will be deterred by their use of Muslim human shields. They consider the Jews the spawn of apes and pigs—and yet they rely on the fact that they don’t want to kill Muslim noncombatants. [Note: The term “Muslims” in this paragraph means “Muslim combatants” of the sort that Western forces have encountered in Iraq, Afghanistan, and elsewhere. The term “jihadists” would have been too narrow, but I was not suggesting that all Muslims support the use of human shields or are anti-Semitic, at war with the West, etc.]

Once you’ve read the whole thing, please share it with everyone. It deserves to make the rounds.

** 2 **

Hamas is so determined to win the war against Israel by having the tallest pile of dead bodies that it physically beats people who try to evacuate buildings after receiving Israel’s humanitarian warnings that it will be bombing the buildings. And that, of course, is precisely Sam Harris’s point.

** 3 **

As a writer, one of the most incredibly flattering things that can happen is when someone you really respect takes one of your ideas and runs with it. That’s what happened when Neo-Neocon read my post about John Kerry’s history repeating itself. I don’t want to give anything away. Just go and read what she has to say, making my original germ of an idea much richer and more meaningful.

** 4 **

What is that saying about the Left corrupting all institutions over time?  I forget the exact words, but that’s precisely what happened to George H.W. Bush’s Thousand Points of Light charity. From being an innocuous charity, it’s managed to go from the ridiculous (funding gay and lesbian bands all over the world) to the malignant (funding organizations with Islamic terrorist ties).

That the Left would co-opt an organization in this way isn’t news. What is news is that Sen. Sam Nunn’s daughter, Michelle, was CEO during the charity’s transition from charitable to Leftist political. She’s now running for the Senate in Georgia (as a Democrat, natch). She’s trailing the Republican candidate, but the election would be safer if she were trailing even more — and this story should be the nail in her campaign’s coffin.

** 6 **

What unites Americans? Floods of illegal aliens crossing the United States’ southern border. They don’t like it. They really don’t like it.

Not that this will deter Obama. He views amnesty as a convenient red flag he can wave before Republicans in the hope that they will seek to impeach him, rousing Democrats from their demoralized torpor and swinging the 2014 election in Obama’s favor.

Think about this: Our president, who swore to obey the Constitution, is deliberately violating it, at great cost to our nation, so as to achieve two goals: (1) Creating a Democrat demographic wave by wiping out our southern border and (2) tempting Republicans into a politically fatal maneuver.

For Obama, it’s a win any way he looks at it, and for Republicans and other American loving people, all outcomes are disastrous. (And yes, executive orders can easily be overruled, but do you see anyone having the political will to deport all 5 million newly amnestied illegals, including the hundreds of thousands of recent arrivals?)

** 6 **

We entered into a 40-year-long war on poverty, and poverty won.

** 7 **

I cannot think of a more appalling attack on the integrity of a judicial system than a judge having an affair with the wife in a divorce case over which he is presiding. The husband, unsurprisingly, would like to see the judge in court, only this time with the judge sitting at the defendant’s table. Sadly, thanks to judicial immunity, that won’t be happening.  Wade McCree, Jr., is out of a job, but he gets to keep his money.

Long-time readers know that, having come of age as a lawyer in the San Francisco Bay Area, where Leftist judges infest the bench, I have almost no respect for judges. In my career, I’ve probably come across three whom I respect, one of whom is a long-time friend I respected before she became a judge.

In a system governed by the rule of law, we definitely need judges.  But we need a very specific type of judge:  Someone who recognize the rule of law, not the rule of Leftist navel-gazing and self-indulgent emotional masturbation.

** 8 **

Human rights doesn't extend to Israel

History condemned

Behind Israel 100

Voter ID laws cannot be racist

Spoiled dogs

I think it’s Photo shopped, but I love it anyway

Can federal courts ever become zealous defenders of individual rights under the Constitution?

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Clark NeilyI went to a lunch today where the speaker was Clark M. Neily, III, author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Neily is an attorney at the libertarian Institute for Justice, a public interest organization that focuses on Constitution-centric civil liberties cases. (I know that it sounds redundant to say “Constitution-centric civil liberties cases” but I use that phrase deliberately to distinguish it from the ACLU’s version of “civil liberties,” which is also known as the “We hate Christians” school of thought.)  The subject of his talk was the poisonous effect of the “rational basis” analysis that the Supreme Court has mandated for cases involving government infringement on an individual’s right to work.

Neily is a great speaker. He speaks quickly, so you have to pay attention.  Paying attention isn’t a problem, though, because Neily also speaks clearly, and everything he says is interesting, with enjoyable and appropriate dollops of humor thrown in at warp speed. This is a man with a very high verbal, analytical intelligence. Even as I was listening closely to what he said, a small part of my brain was running an IQ calculator. When he started speaking, I pegged him at about 145 on the IQ scale. By the time he was done, I’d moved him up to 175. After all, his is precisely the type of intelligence the IQ test measures.

Before I begin, it behooves me to tell you that I haven’t yet read Neily’s book. I was planning on looking for it in the library or getting it on Kindle (because, as I’ve probably mentioned more than once, I’m very cheap). By the time he was done speaking, though, I wanted a signed copy and shelled out $26 (!) just so that I could gloat about having it signed by the man himself. This disclaimer is to warn you that I’m not reviewing his book, which I assume is as interesting as the speech. The book’s Table of Contents also tells me that it covers a much broader range of topics than the speech did. Finally, since I haven’t done anything remotely related to Constitutional law in years, you’ll have to pardon (or perhaps be grateful for) the fact that this is not a lawyerly analysis.

The “rational basis” test is the Supreme Court-mandated test for “non-fundamental rights.” One of those non-fundamental rights (and this may come as a surprise to you) is the right to hold a job in the field of your choice or to sell a product of your choice. Non-fundamental rights, by definition, are less important than rights such as speech or freedom of worship. (And no, don’t get me started on Obamacare’s attack on faith.)

If you protest a state or federal law imposing such a great burden on your profession that you cannot run a viable business, or that imposes ridiculous impediments as a predicate to holding a certain type of job, the federal court judge hearing your case will ask the government to justify the law.  Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination.  Worse, it turns the judge into an active part of the government’s defense team.  Or as Neily explains:

Unlike strict and intermediate scrutiny, it does not involve a search for truth but rather an exercise in creativity. Instead of trying to determine what the government is really up to, as they do in other cases, judges applying rational basis review are required to accept — and even help invent — purely imaginary explanations for the government’s actions. (p. 50.)

Here’s how this standard played out in a real case that is near and dear to Neily’s heart.  Sandy Meadows was a Baton Rouge, Louisiana, widow with one marketable skill:  she could arrange flowers.  We’re not talking the fancy flower arrangements you see in the lobby of deluxe hotels.  She put together the little posies at the local supermarket and was paid a livable salary to do so.  Unfortunately for Meadows, the state of Louisiana requires that florists — with a florist defined as anybody who assembles more than two flowers and sells them — to have a license.

Meadows took the license test five times and failed it five times.  Lest you think she was an ignoramus, she wasn’t.  She didn’t have a problem with the 50 written questions.  Her problem was with the practical exam.  In Louisiana, anyone who wants to put together posies for profit must assemble four arrangements that are then judged, not by some bureaucrat (which would be bad enough), but by a panel of florists who are given a chance to size up potential competition.  That’s where poor Meadows failed every time.  She wasn’t alone.  I believe Neily said that the floral panel passed only 37% of test-takers.  Neily compared this to Louisiana’s State Bar pass rate, which is 61%.  In other words, it’s easier to become a lawyer in Louisiana than to become the gal who puts together bouquets at the local Piggly Wiggly.

Neily, on behalf of the Institute of Justice, took on Meadows’ case . . . and lost.  He lost because the “rational basis” test meant that the government could come up with any nonsense it wanted to justify a monopolistic licensing requirement and, when the judge wasn’t convinced by the government’s arguments, he was able to come up with his own, even sillier, reason for having the state put its giant thumb firmly on the scale on the side of florists.

As Neily explained it, the judge rejected the government’s argument that a poorly-tied bouquet might fall apart in a bride’s hands, spilling flowers at her feet, and causing her to trip and injure herself at her own wedding.  Apparently that was too silly even for the judge to contemplate.  Instead, the judge had his own theory, and that won the day:  the florist license was necessary to protect against “contaminated soil.”  The judge was unmoved by the fact that nothing in the requirements for becoming a florist, or in the written exam, made mention of contaminated soil.  The mere possibility that contaminated soil existed in the judge’s mind meant that it could have existed in the legislature’s mind when it passed the law, and there you had it — a rational basis for destroying a person’s livelihood.

Meadows, incidentally, died in abysmal poverty thanks to the fact that the state of Louisiana, with the complicity of the federal judiciary, stole her livelihood.

Louisiana, of course, isn’t the only place where states play favorites when it comes to the right to work.  As I drove back from the lunch, I called my sister, an Oregon resident.  She loves living in Oregon, but complains frequently about the fact that it is so heavily regulated one practically needs a license to sneeze.  In exchange for the story about poor Meadows, my sister told me that, in Oregon, you need a license to “serve” alcohol.  By this she did not mean that you need a license to work as a bartender or that a business establishment needs a license if it wants to sell alcohol to the public.  What my sister meant is that, if you’re the waiter who brings the wine from the kitchen to the diners’ table or the martini from the bar to that same table, you need a license to do so.  God alone knows what the “rational basis” for that is, but I can readily tell you the practical basis:  alcohol is often the most expensive part of a meal, so the server who brings it to the table gets the biggest tips.

There is nothing whatsoever in the Constitution that gives a limited government the right to put irrational hurdles in the way of people’s right to a job. The irrational hurdles come about because certain professions get the bright idea that they can lower competition (and increase profit) if they convince the government to mandate a license as a prerequisite for doing the work they do.  Black women braiding hair in Washington, D.C.?  They better stop braiding unless they get an expensive education, and apply for an expensive license, thereby assuring those getting their hair braided that the woman knows how to do dye jobs too.  Incidentally, don’t kid yourself that the politicians who pass this legislation do so because they have a principled belief that, if they don’t, the Apocalypse will be minutes away.  They do it because they’re paid to do it in the form of campaign donations.  There’s nothing wrong with this . . . provided that the judges do their job.

So where do the judges stand in all this?  In theory, the judges should be a bulwark against this type of unconstitutional activity — except that they’re not.  Instead, they bend over backwards to keep the laws on the books.  Part of the problem is that they feel constrained by the Supreme Court’s “rational basis test.”  Neily pointed out, though, that at least two appellate court panels have basically said that “rational” must have one foot grounded in reality.  If the government’s lawyers can come up only with manifestly ridiculous theories involving Martians and tripping brides, these courts indicated that they were not required to lend a hand.

The bigger problem with the judges, which is one that George Will addresses in a column published just today about Neily’s book, is that too many judges are willing to give too much deference to state legislators.  The judiciary, after all, is the only branch of government given the task of protecting the Constitution.  Legislators aren’t too concerned with the constitution.  They’re concerned with passing laws, especially those that they’re paid to pass.  The judges, whether because they’re passive, or Leftists, or unthinking, or wrongheaded, are abandoning their constitutional responsibilities.

Incidentally, you should ignore the column title at the Washington Post, which suggests that courts should engage in judicial activism, a concept that is anathema to conservatives and libertarians.  Judges are not activists when they follow the Constitution.  They are activists only when the ignore or re-write it.  The column title was a WaPo addition, that has nothing to do with Will’s or Neily’s argument that judges need to step up and protect the Constitution — and, by doing so, to protect individual liberty against government overreach.

I’ve long thought that government-created monopolies are bad things.  I’ve had a lot of time to think about this, too, since I’ve been a member of California’s State Bar for more than 30 years, a “privilege” that costs me several hundred dollars a year, much of which is used to promote political causes that I deeply dislike.

My main grumble with the Bar, though, has always been the requirement that we have to take 25 hours of “minimum continuing legal education” classes every three years in order to keep our jobs.  One could argue that this isn’t such an onerous requirement.  Thanks to the internet, I was able to get all 25 hours done for $49.  In the beginning, though, back in the mid-1980s, it was a very expensive proposition.  Big firms could circumvent the cost by having a senior lawyer “teach” a room full of assembled junior lawyers. 

Sole practitioners, however, weren’t so lucky. They had to go out hunting for classes, and those classes were costly, ranging from $50 to $200 per hour.  Oh, and back in the day, you needed 12 hours a year.  As far as I could see, the only benefit flowed to the MCLE providers, who had a captive audience mandated to buy their goods.  (Hmmm, sounds like Obamacare, doesn’t it?)  Once I figured out that MCLE was a scam, I began to realize that the State Bar was a scam too — and an unconscionable monopoly as well.

If it were up to me, membership in the State Bar would be voluntary.  It would be something that the “better” class of attorney could boast about, just a they could boast about the myriad expensive classes they took in their specialty.  Bar membership would be a marketing advantage, rather than a monopoly.  In the old days, pre-internet, one could argue that the State Bar was the only reliable purveyor of necessary information about whether a person was qualified to be a lawyer, but that’s bunk nowadays.  I imagine that, were the bar to disband today, tomorrow there would be dozens of websites offering consumers information about lawyers and law firms.

At the end of the talk, I asked Neily how he expected any turnaround to happen in the courts.  After all, the Supreme Court itself is the author of the instruction that judges use the “rational basis” standard, complete with creative writing, in their approach to state-mandated monopolies.  Moreover, especially since Harry Reid destroyed the filibuster specifically to pack the federal courts, we can expect that there will be more judges on the bench, rather than fewer, who will always give obeisance to Big Government.

In answer, Neily said two things:  First, he thinks that the American people can only be pushed so far towards big government, before they push back in sufficient numbers to force a change in politics that will eventually be reflected in the courts.  He doesn’t see this happening instantly, but rather posits a 30 or 40 year trend toward more respect for the Constitution and individual liberty.  Let me just say, “From his lips, to God’s ear.”  Second, he told me that he discusses in his book some practical ideas for speeding the trend towards liberty, and you can be assured that I’ll check those ideas out.

All in all, although Neily kept his speech brief, it was sufficiently packed with interesting ideas and information to sustain a long telephone call with my sister, and an even longer blog post for all of you.  I look forward to reading Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, and getting even more information about the way America’s federal courts have abdicated their role as the Constitution’s guardians.

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

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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

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!!

 

My friends and I refuse to give in to despair regarding the Supreme Court ruling

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Many people are asserting that, in the wake of the Supreme Court ruling, the end is near.  I see that in op-eds, in blog posts, and in my email box.  America’s constitutional experiment is over, they say.  They might be right.  Or not.

But here’s the deal:  if we give in to despair now, they not only might be right, they will be right.  Our political will is currently the only thing standing between a constitutional America and another failed socialist state.  If we collapse now, we’ve lost.  Or, more simply, winners never quit, and quitters never win.

My last two posts about the Supreme Court ruling might be Pollyanna-ish, as I struggle to find a justification for Judge Roberts’ decision (or more accurately, a justification that doesn’t involve drugs, insanity, and blackmail), but they’re necessary.  They’re necessary for my mental health, but they’re also necessary for the conservative movement in America.  Frankly, if we give up now, we don’t deserve a voice in our country’s future.  We’re wusses, who whine and then do nothing.

I’m not the only one who feels this way.  My friend Lulu send me an email that says much the same, and she said I could reprint it here:

Last night I was feeling down about Roberts’ dismaying, incomprehensible betrayal. I felt angry that the fate of our country could ride on the shoulders of one man’s bad decision. Conservatives had enjoyed months of seeing an increasingly unhinged Obama getting closer and closer to a public meltdown. Now we got to again see him strutting and puffing, full of himself and his own grandiosity.

Then I had these comforting thoughts. Obama’s personal victory comes at the price of a law that the majority of Americans don’t want, which diminishes our freedom, and is expensive for the middle class. Romney is a clever man who has run a clever campaign. He will hammer relentlessly on, not only the economy, but on the massive tax we are about to be loaded with to have forced on us something we don’t want. Conservatives are energized and livid.

The victory is Wisconsin hasn’t gone away. The Unions are challenged as never before. We need to be relentless there, and courageous, and continue to point out how the Wisconsin economy revived. We were riding elated after Wisconsin, now they are, but behind Wisconsin was a proven successful economy. Behind ObamaCare is a hugely unpopular and expensive albatross. Defend that.

Here’s what we need to do. Every Conservative should donate to the Romney campaign and to at least one candidate for Senate and the House. Get involved on the grass-roots level in the campaigns. Volunteer.

Do what we can to infiltrate the media. Imagine what an attractive, intelligent black Conservative woman, like Star Parker, could do with a daytime talk show, educating and promoting articulately her ideas on patriotism and self-sufficiency to stay-at-homes and fellow African-Americans. Breitbart always said that Sarah Palin would be the Conservative Oprah. Why not a campaign to get her on TV?

Conservatives, encourage your kids to go into education, to run for the school board, to become administrators. Fight back with numbers.

And expose, expose, expose their lie of being tolerant every time they give the finger to Reagan in the Whitehouse or mock Mormons in a Broadway play, and etc. Inundate the networks with protests

Arise folks, and fight like your country depends on it.

Blogs can  lead the way by helping let us know what we can do, numbers we can call, and by giving us a forum to expose.

A sleeping giant woke with the tea party. Now it is furious. We must Educate, educate, educate.

Giving up is the easy way out.  We need to work harder than ever now.  If nothing else, hard work will keep us from feeling sorry for ourselves.

Please pardon me if I seem like a scold here, but the conservative counter-revolution to the 60s’ counter-culture revolution needs to start somewhere.  We’re at the starting line for the race of our lives, the gun has sounded, and we have to run.  Run hard, run fast.

It isn’t the Supreme Court’s job to re-write a Congressional bill that’s had its unconstitutional heart cut out

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In one of his more delightful articles, Jonah Goldberg tackles Justice Ginsburg’s disingenuous claim that the most “conservative” thing the Supreme Court can do is to pick its way through all 2,700 pages of the ObamaCare bill and save all the good bits.  After politely decimating Ginsburg’s word choice, Goldberg has this to say:

The conservative thing to do — and I don’t mean politically conservative — is to send the whole thing back to Congress and have it done right. Leaving aside the fact that Obamacare largely falls apart if you remove the mandate, it’s not the Supreme Court’s job to design our health-care system from the scraps Congress dumps in its lap. What Ginsburg proposes is akin to a student handing in a sloppy, error-filled term paper, and the professor rewriting it so as to give the student an A.

Goldberg’s charming analogy reminded me of something a friend told me.  Although a conservative, she’s a strong, brave woman, and still listens to NPR.  (I don’t, because I find myself screaming at the radio too much, especially with NPR’s Israel coverage.)  During a call-in show, she said that several of the callers were deeply offended that the conservative justices used analogies, such as questions about broccoli and cell phones, to discuss ObamaCare’s provisions.  The tone seemed to be “How dare those evil conservatives dumb down a sophisticated act to appeal to the rubes in America in order to justify destroying the best legislation ever.”

I was actually reminded of someone who used analogies with incredible grace to simplify (not destroy, but make accessible) challenging ideas:

Behold, a certain lawyer stood up and tested him, saying, “Teacher, what shall I do to inherit eternal life?”

He said to him, “What is written in the law? How do you read it?”

He answered, “You shall love the Lord your God with all your heart, with all your soul, with all your strength, and with all your mind [Deuteronomy 6:5]; and your neighbour as yourself [Leviticus 19:18].”

He said to him, “You have answered correctly. Do this, and you will live.”

But he, desiring to justify himself, asked Jesus, “Who is my neighbour?”

Jesus answered, “A certain man was going down from Jerusalem to Jericho, and he fell among robbers, who both stripped him and beat him, and departed, leaving him half dead. By chance a certain priest was going down that way. When he saw him, he passed by on the other side. In the same way a Levite also, when he came to the place, and saw him, passed by on the other side. But a certain Samaritan, as he traveled, came where he was. When he saw him, he was moved with compassion, came to him, and bound up his wounds, pouring on oil and wine. He set him on his own animal, and brought him to an inn, and took care of him. On the next day, when he departed, he took out two denarii, and gave them to the host, and said to him, ‘Take care of him. Whatever you spend beyond that, I will repay you when I return.’ Now which of these three do you think seemed to be a neighbour to him who fell among the robbers?”

He said, “He who showed mercy on him.”

Then Jesus said to him, “Go and do likewise.” — Luke 10:25–37, World English Bible

****

He told them this parable. “Which of you men, if you had one hundred sheep, and lost one of them, wouldn’t leave the ninety-nine in the wilderness, and go after the one that was lost, until he found it? When he has found it, he carries it on his shoulders, rejoicing. When he comes home, he calls together his friends and his neighbors, saying to them, ‘Rejoice with me, for I have found my sheep which was lost!’ I tell you that even so there will be more joy in heaven over one sinner who repents, than over ninety-nine righteous people who need no repentance.” — Luke 15:3-7, World English Bible

I don’t call this dumbing things down.  I call it the wisdom to drill down into something’s essential element and the skill then to communicate those core principles (whether they are good, as with the parables, or bad, as with ObamaCare) to others.

P.S.  I am not likening the conservative Supreme Court justices to Jesus Christ.  I’m just saying that smart analogies are a staple of intelligent communication, and should be admired, not denigrated.

 

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.

Why Elena Kagan’s sexual orientation is irrelevant

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I know that much is being said amongst both Progressives and Conservatives about Kagan’s possible lesbianism.  Progressives are mad at her for being in the closet; Conservatives are worried about her orientation affecting her rulings as a Supreme Court judge.  Both are completely wrong.

Regarding the Progressive’s disdain for Kagan’s decision to keep her private life private, I say get out of people’s bedrooms.  This is Kagan’s private life we’re talking about.  She gets to decide how she wants to handle it.  It’s not for political activists to decide what is best for her, her family, and her significant others and friends.

As for Conservatives, even if Kagan is lesbian, it’s irrelevant.  What matters is her unabashed Progressivism.  That will control her thinking on whatever issue comes before her, whether it’s corporate taxes, the death penalty, abortion or gay marriage.  Her decisions will be completely consistent with any other Progressive’s, regardless of hetero- or homosexuality.  Her bedroom behavior is no one’s business because her political decisions are affected by her political orientation, not her sexual orientation.

You and I may have cause to decry the fact that gays and lesbians, as part of identity politics, gravitate almost unthinkingly to Progressive positions, but that’s not the issue with Kagan.  That is, we’re not arguing whether her sexuality decided her politics.  The fact is that she is now, for whatever reason, a Progressive, and it’s her politics, not her sex life, that should be under scrutiny.