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.

Click here to view the embedded video.

h/t:  Mike Devx

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.

If there was ever an example of misguided compassion, this story out of Britain must rank at the top of the list:

A psychopathic Satanist, given a ‘life means life’ sentence for strangling his cellmate whilst already serving life for murder, has had that cut to 20 years on appeal in order ‘to give him light at the end of the tunnel’.

The move came despite the admission that double killer Clement McNally described the murder as ‘better than sex’ and revealed he would kill again if the opportunity arose.

Father-of-one Anthony Hesketh, of Eastham Way, Worsley, who was in custody for a driving offence and facing drugs charges, was strangled with a T-shirt in September 2003. He was found dead on the floor of the Strangeways cell he shared with McNally.

McNally, 34 – a devil worshipper who decorated his cell with satanic symbols and suffers from ‘psychopathic, narcissistic, paranoid and obsessive-compulsive disorders, all mixed together’ – was serving a mandatory life term for stabbing to death his friend, Arthur Skelly, outside a party in Ashton-under-Lyne in July 2002.

He was given a life term, with a whole life tariff, for the second killing, after pleading guilty to manslaughter by way of diminished responsibility at Manchester Crown Court on July 12 2004.

But now the minimum term on his life sentence has been slashed to 20 years by Lord Justice Hughes, at London’s Criminal Appeal Court. The judge said it was not right that McNally should be denied a light at the end of the tunnel and never have a chance of release.

[snip]

Lord Justice Hughes, sitting with Mr Justice MacKay and Mr Justice Davis, said of Mr Hesketh’s killing: ‘McNally had no particular grievance against his victim – he simply suffered an urge to kill him.

‘He said it was exciting – better than sex. He said Satan told him to do things and it was his job to do as he was told.

‘He said he was not in the least bit sorry for what he had done, but had derived a great deal of pleasure from subsequently thinking about it.

‘He suffers from compulsive homicidal urges and poses an exceptional risk to other prisoners. He made it perfectly clear that he would kill again if the opportunity arose and the urge to kill was of sufficient intensity.’

However the judge said it was wrong not to give McNally the chance of being freed if, at some point in the future, his mental state stabilises to the extent that the authorities no longer consider him a danger to society.

He told the court: ‘The life sentence was plainly correct as he was likely to represent a danger of the gravest kind, for a period which could not be determined.

‘However the imposition of a whole life tariff was a mistaken application of the process of sentencing.

‘The life sentence itself is designed to cater for a prisoner in whom it cannot be seen when, or if ever, they will cease to be a danger to the public.

It’s amazing how the judge doesn’t seem to realize that, for a man who murdered two people in cold blood, maybe a life without “a light at the end of the tunnel” is just the right prescription.

Maybe this is just the pendulum swinging.  England used to hang children for stealing a loaf of bread.  Now it freely contemplates giving a second start to an unusually cold-blooded killer.  I would suggest, though, that the fact that England was disproportionately punitive 200 years ago doesn’t mean it needs to be disproportionately . . . well, compassion isn’t the right word, because some innocent always gets hurt . . . but disproportionately stupid now.

Sadie sent me a great trio of stories today, and I want to pass them on to you:

The UN wants to make sure that the Western nation’s efforts to protect themselves against cross-dressing jihadists (you know, those guys who don burqas to hide bombs) don’t offend transgendered individuals (who may or may not be hiding bombs).   Here’s a quiz for you:  On a scale of one to five, with one being not serious at all and five being very serious, answer two questions.  First, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about protecting transgendered rights?  Second, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about ensuring that Western democracies are able to defend themselves against socialist and Islamist tinpot dictatorships?

In the too little too late category, one more sign that the bloom is wearing off the Leftist rose when it comes to Obama worship.  Leftist stalwart Richard Cohen, reviewing a hagiographic HBO “documentary” about Obama’s election, has this to say:  “What’s striking about this inside look at Obama is how being inside gets you nowhere. It is virtually the same as being outside. What’s also striking about this movie is its lack of arc.”  In other words, Cohen is starting to realize, as we have long known, that with Obama there’s no “there there,” a problem made worse by the habit his most rabid fans have of trying to prop this empty suit up high on a pedestal.

Have I mentioned how much I dislike judges?  In a long career, I can’t tell you the number of times I’ve dealt with judges who let utterly insane, unprovable, legally impossible cases go forward because the plaintiffs’ claims messed perfectly with the judges’ activist biases.  We now have another example of judicial activism, in which a judge gave a pass to a case against oil companies alleging that they caused Hurricane Katrina by increasing global warming.  What!?  No lawsuits against cows, India or China?  And how about a more logical suit against the unholy cabal of corrupt government officials and environmentalists who ensured that the levies would break?  Nah.  That last one is impossible as being logical and politically incorrect.

I gave the post the above title because, in England, even a woman who is a convicted sexual predator gets to keep up her relationship with the victim:

A public school music teacher was today jailed for lesbian sex with a 15-year-old pupil – but was given an astonishing green light to continue the ‘affair’ when out of prison.

The court heard trumpet teacher Helen Goddard, 26, used sex toys and fluffy handcuffs on the ‘vulnerable’ child, helped weave a web of lies so the girl could stay in her flat overnight, and took her on a dirty weekend in Paris, where they joined a gay pride march.

But despite hearing from the girl’s parents the devastating effect the five-month sexual relationship had on the teenager, Judge Anthony Pitts rejected a prosecution request to ban the teacher from contacting her victim for five years, claiming it would be ‘cruel’ to the child.

Instead, she is allowed to write to her now, and will be able to see her in private the moment she is released from jail, likely to be just half-way through her 15-month sentence.

Goddard actually punched the air in victory in the dock when she realised her ‘relationship’ with her still-underage pupil could continue.

If you are a young lawyer, struggling to learn what a non-responsive answer really looks like, you can’t do better than this question-and-answer session between Jake Tapper and Presidential press secretary Robert Gibbs.  If Gibbs were any slicker, he’d just ooze right out of the room:

TAPPER:  Robert, in terms of what Geithner and Summers had to say yesterday [stating on the Sunday news shows that there would be middle class tax increases, talk the Gibbs said was "hypothetical"], it really wasn’t too much of a hypothetical back-and- forth.  It was about do they think it’s possible to do deficit reduction.  But that’s not…

GIBBS:  Well, we can quibble about whether the word “possible” or the word “hypothetical”…

TAPPER: Is it possible to do everything the president wants to do without increasing revenues from the middle class?

GIBBS:  Right.  And I want to just state again clearly here that the president has made a very clear commitment to not raise taxes on middle-class families…

TAPPER:  But economists, including the president’s own economists, don’t necessarily think that it’s possible to do so without raising taxes on the middle class.  How is that dealing candidly with the American people?

GIBBS:  Well, again, there are a series of things that have to be done.  I think you’ll actually hear an announcement from Treasury later this afternoon about how much money has to be borrowed versus what they thought was going to have to be borrowed and what will have to be borrowed as a result of financial stabilization in terms of cutting the amount of money that’s needed. Again, I think the president has been clear on this.  The first thing that we can do — the most important thing that we can do right now is get our economy growing again.  We know that the deficit — part of the reason that the deficit is up right now is that the economy has slowed down so much that tax revenues, because this is what happens in an economic slowdown, have regressed a lot. I think the president — obviously, we’re going to have to make some decisions down the road on some of the president’s legislative priorities and some of the things that Congress wants to do, to evaluate how we move back towards — on a path toward fiscal sustainability.

Most transparent presidency — evah!  Yeah, right.

The administration does win the award, however, for the most weasely press secretary, that’s for darn certain.  I don’t blame Gibbs, though.  He’s tasked with being the messenger whose job description requires him to hide a message so un-palatable and so at odds with prior promises that he can nothing but engage in meaningless prevarication.

As you may recall, I once wrote that liberal Supreme Court justices tend to be incredibly boring, long-winded, obfusctatory writers, while conservative Supreme Court justices tend to be clear, and often charming, or exciting, writers.  As a young lawyer, I thought it was just a coincidence that liberals were bad writers and conservative good writers.  I’ve since realized, of course, that bad thoughts make for bad writing.  It takes a lot of explanation to justify a bad idea, and a lot of smoke to cover just how bad it is.

Whether you are for or against gay marriage, Robert George issues a sound warning about the dangers that flow from letting the Supreme Court get its hands on the issue:

It would be disastrous for the justices to do so [rule against California's Prop. 8 and, by extension, make gay marriage the law of the land]. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.

Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.

By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.

This clip of today’s Sotomayor hearings may just have hit upon the most important constitutional question that faces us all as we confront our devolution into the Obamatopian State.

In this segment, Senator Tom Coburn (R., OK) asks Judge Sotomayor whether she agrees that Americans have a basic right to self defense. The ensuing silence is deafening. It is enlightening in that it reveals her not only to be mendacious but clueless: asking herself whether the Constitution grants Americans a right to self-defense, the judge could not even answer her own question. She said that she could not think of such a Constitutional right.

Now, granted, Judge Sotomayor has a difficult job. She needs to communicate answers which sound rational, reasonable and wise while obfuscating what she truly believes. Not everyone is adept at such two-track thinking and thus, the wheels turn slowly. The net effect is somewhat akin to a cell phone call fading in and out of range as the caller ducks behind rhetorical hills. So let me help her out by pointing to one of the underlying foundations of our Constitution as enumerated in the Declaration of Independence . . . you know, the one that refers to a God-given right to “life, liberty and the pursuit of happiness”.

My life is my own. It was given to me by God, or so says the Declaration of Independence. Supposedly, the State can make no claim upon my life . . . at least this is what I presume to be the underlying principle of the 13th Amendment banning slavery or involuntary servitude. Yet, this is exactly what the State does when it professes to dictates if, when, how and under what circumstances I am allowed to preserve (or end, for that matter) my life. It asserts a right over my life that could only exist if my life was subject to the whims of the State. At that point, I would not be a free citizen.

Just for the record, I will refuse ever to cede that right to the State, even on pain of death. I was born free and I fully plan to die free. I will never accept the right of the State to dictate if, when and whether I must sacrifice my life to another. This is a big part of what makes me an American.

Other countries don’t accept this and it’s not just barbaric backwaters like North Korea and Iran. British or Canadian passports, for example, quite explicitly (even proudly) proclaim their members to be “subjects” of another human being, Her Majesty the Queen. Although there is talk about redefining British subjects as “Citizens of the EU”, the words EU and “free” hardly go together, do they. Citizens of the EU quite explicitly do NOT have a right to self-defense.

Now, in fairness, the 13th Amendment does not preclude voluntary servitude and I suspect that this is where many of my fellow citizens on the Democrat /Left long to go. They want to abdicate their freedoms under the delusion that a benevolent master will relieve the burdens and responsibilities of freedom from their shoulders in the coming Obamatopia. To them, I say you’re welcome to it: just find a way to finance it yourselves and then get out the way of those of us that insist on staying free men and free women. After all, making claims on my labor without my consent also violates the 13th Amendment. Perhaps we really are devolving into a two-tier society: one of citizens, the other of serfs.

You know that I don’t like judges.  I’ve certainly made no secret of that fact, and it’s no doubt a by-product of practicing law in a region crawling with activist judges.  Listening to Sotomayor struggle to articulate things — and to avoid her own footprint — in response to Sen. Lindsay Graham’s questioning is painful.  It’s especially embarrassing when you hear her try to explain why the Constitution directly addressed abortion.

(Graham’s questioning, incidentally, is excellent.  He makes incredibly good use of his “good ole boy” persona to leave her without anything to say.  When Sotomayor does answer, her answers are manifestly non-responsive.)

While Sotomayor’s incoherence and weaseling aren’t surprising, what is surprising is the truly nasty attack that Nancy Benac at the AP — the AP! — launched against her:

It’s a good thing Sonia Sotomayor speaks Sotomayoran.

After week upon week in which plenty of other people on the planet interpreted Sotomayor’s past comments, the Supreme Court nominee at last got a chance to deconstruct her own words Tuesday before the Senate Judiciary Committee.

Fingers splayed, palms flat, hands bouncing up and then deliberately pressing down to the table, Sotomayor elaborated, clarified, expanded, retracted.

She drew loopy circles on her paper; she ran rhetorical circles around her past words.

“I didn’t intend to suggest …” she explained.

“What I was speaking about …” she offered.

“As I have tried to explain …” she parsed.

“I wasn’t talking about …” she demurred.

She was a tough critic at times.

“I was using a rhetorical flourish that fell flat,” she averred.

“It was bad,” she said. Of her own words.

You really have to read the whole thing to get the flavor.  Benac is hostile.  It’s bizarre coming from an AP writer.  I wonder how long Benac will have a job.

UPDATE:  Welcome, Instapundit readers!  This is, of course, the obligatory (and heartfelt) “stop and look around” message.  I really do mean it, though.  Much as I’m delighted that you’re visiting this post, it’s not the best representation of how I write.  If you want to see whether I’m worth visiting again, you’ll get a better sense of me by reading this post (which is one of my periodic better efforts), or this one (which is pretty typical for me).

UPDATE II:  For more on the fact that Sotomayor is not merely imbecilic, but is also dishonest, Jennifer Rubin is a great place to start.  The question then, and it’s a question only for intellectual entertainment, is whether she knows she’s lying or whether she’s a pathological narcissist whose version of the absolute truth is always defined by the needs of the moment.