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.

More thoughts on robots and the future

Robot

I wrote last week about the fact that the lapdog media is finally catching up with Obama’s claim that the problem with America’s economy is that ATMs are job destroyers, and that’s why our economy is a mess.  Many of you commented that, in your own industries, you’ve seen automation chip away at jobs so that a handful of people are doing what it once took dozens or even hundreds of people to do.  I agree completely.  Technology definitely destroys jobs.

What I was trying to say, though, is something different.  What’s unique about this ongoing recession/depression, is that the government has been working overtime to depress the new jobs that usually arise as a result of technology.  Absent government intervention, our transitions in the wake of a major technological change have usually been beneficial to the majority, even though there’s no doubt that a minority saw itself lost to history’s backwash.  For the first time, though, we’ve got a government so busy grieving for the minority who are becoming obsolete, that it’s enacted policies to ensure that the majority will suffer too.

I speak quite personally about this, because I’m a perfect example of someone who took modern technologies and spun off a new career.  My new career has been less profitable than my old one, but infinitely more enjoyable, not to mention a better match with parenting.

My graduating year from law school was one of the last years that saw new associates arrive at law firms that didn’t have desktop computers.  We had Word Processing departments, which would use primitive word processing machines (who else remembers old Wang systems?) to finalize briefs or, if they were particularly sophisticated, they had primitive software to do the same task.  To get a brief done, the attorney would hand write or dictate a brief, and then walk it over to a secretary, who would transcribe it.  It was a very time-consuming process.

Law books

Legal research was also done the old-fashioned way, which meant surrounding oneself with heavy books.  To research a legal question, you’d go to the Westlaw Digests.  You’d start by perusing the Decennial Digests (massive volumes that broke the law down into categories).  These were good, because you could do ten years worth of research in a single category.  If it had been nine years since the last Decennial Digest, though, you’d then have to go through nine years worth of annual digests, including the pocket updates stuffed in the back.  Once you had hand written a long list of potential cases, you’d head for the stacks and pull out volume after volume of case reporter.  You’d page through to your cases, and hope that at least some of them were on point.  Once you found them, you’d either write notes by hand, or you’d spend hours (and dollars) photocopying.

Both Westlaw and Nexis did have computer research available, but it had to be done on dedicated machines and it cost a small fortune.  It was much cheaper to pay an associate to do fifty or even one hundred hours of research, than to go onto Westlaw and spend a couple of hours writing and printing.  (Keep in mind that, back in those days, all connections were dial-up and were incredibly slow.)

Old desktop computers

Within a few years of my starting to practice law, the world turned upside down.  Lawyers got desktops and dedicated word processors became obsolete.  That’s when I fell in love with Word Perfect, which is still my favorite word processing software because you have the best control over the look of the final product.

In the beginning, those desktop computers were stand-alones, so you still had to walk to your secretary’s desk, only this time you’d hand over a floppy, rather than a sheaf of yellow paper or a little tape recording.  Just a year or so later, with the firm’s four walls, those floppies were obsolete, as the firms had become networked.  Suddenly, you didn’t even need to stand up to send your secretary that pleading that needed to be finalized.  Instead, you just pushed a button.

Online legal research continued to be expensive, but Lexis and Westlaw now had software that enabled you to use your laptop to connect directly to those services.  This was another technological advance that meant you didn’t need to get up from your chair.  (Right now, I’m seeing, not only a technological trend, but a trend in lawyers getting flabby and gaining weight!)

Woman at computer

One day, I sat at my desk and realized that I was totally self-sufficient. I didn’t need a secretary, since I’ve always been a better typist and word processor than any secretary I ever had, and I didn’t need access to a law library, since my desktop had become a law library.  I also realized that home computer prices were dropping and that the case-reporting services were dropping their prices in response to the increased competition that accompanied increased demand.  Since I hated going to court, and loved doing research and writing, I quit my job and set up a home practice.

Floppies

As the years went by, having a home office became easier and easier.  In the old days, I still had to put my documents on floppies, or print them up, and then hand-deliver them to my clients.  Within a short time, however, either my clients got email, so I could just send an attachment, or they upgraded their network services so that I could connect from home and simply upload my work onto their systems.

The new systems made hoards of young lawyers unnecessary.  While it had once been cheaper to give a second or third year associate a fifty hour research job, it was now much cheaper to contract the work out to me.  With my on-line research, home computer and printer, and network or email connections, I was not only faster and better than a young associate, I didn’t force the firm to carry me during the dead times, nor did it have to pay any benefits to me.  Technology would have destroyed my old job, but instead it created a new job for me, and one that I liked much better.

In the Obama economy, though, I have no work.  If I were a young lawyer done out of a job by new research and writing technology, it would be impossible for me to set up my own thriving business (and it did thrive for many years), because there is no work to be had for anyone, whether in a firm or outside of it.  The old jobs are dying, but the economy is too regulated, taxed, and constrained to create new niches.

And that’s what I meant when I said only Progressives believe that robots are job killers.  Their belief is true only to the extent they’ve made it so.  I fervently believe that, in the normal, non-Obama world, even as technology kills many jobs, a free market, coupled with human initiative, can create many more (better ones too).

Just as Obama vows to ignore federal law, the California State Bar vows to ignore state law

In ordinary times, criminals disregard the law.  In the PC Obama era, however, elected officials and state government agencies don’t have much use for the law either.  Take Obama, for example.  Contrary to the original headlines regarding Obama’s newly discovered immigration rights, Obama’s recent announcement regarding illegal immigration isn’t an executive order.  Instead, it’s simply an abandonment of his executive responsibilities, insofar as he has now publicly announced that he refuses to enforce the laws that the legislative branch has passed.  He’s still King Obama, taking the law in his own hands but, instead of making the law, he’s breaking the law.

It turns out that, in Obama’s America, the federal executive branch is not the only government agency that has no use for explicit laws.  In California, the State Bar is vigorously arguing that it doesn’t need no stinkin’ laws either.  Let’s begin this discussion with the law itself.

Under California law (Calif. Bus. & Prof. Code sec. 6068), a licensed attorney is obligated to support both federal and state laws:

It is the duty of an attorney do to all of the following:

(a) To support the Constitution and laws of the United States and of this state.

Attorneys cannot plead ignorance of this requirement, as they must expressly state this obligation as part of the oath of office they take as a prerequisite to becoming fully licensed (Calif. Bus. & Prof. Code sec. 6067):

I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.

Put simply, California requires that, to practice as an attorney, the licensee must orally and explicitly promise that he or she will to support, not break, either state or federal law.

With this in mind, how in the world can the State Bar of California argue that an illegal immigrant should become a licensed attorney?  Shouldn’t both the Bar’s and the newly licensed attorney’s first obligation be to turn the attorney in for violating explicit federal immigration laws?

An illegal immigrant who passes the bar exam and demonstrates good moral character should be eligible to practice law, the State Bar has declared in a court filing.

The bar, which oversees California’s 225,000 lawyers, told the state Supreme Court on Monday that federal law leaves regulation of the legal profession largely up to the states and does not appear to prohibit Sergio C. Garcia, 35, of Chico from obtaining an attorney’s license.

[snip]

The court cited two federal laws as potential obstacles. One prohibits illegal immigrants from receiving any “state or local public benefit,” including a professional license provided by a “state agency.” The other prohibits employers from knowingly hiring illegal immigrants.

In Monday’s filing, the bar said the first law doesn’t apply because the court is a branch of state government, not a “state agency.” In 1995, the bar noted, the U.S. Supreme Court ruled that federal courts aren’t government agencies.

[snip]

“There is no reason to believe he cannot take the oath and faithfully uphold his duties as an attorney,” the bar said. It said the policy considerations are similar to those the California court addressed in 1972, when it declared unconstitutional a state law requiring attorneys to be U.S. citizens.

It’s pure sophistry to say that the federal laws don’t apply just because the California court system is a self-regulated branch of state government.  This argument ignores entirely the fact that California’s own law, which does indeed govern, imposes upon attorneys the obligation to support the Constitution.  The Constitution, in turn, is the umbrella for federal legislation.  The same sophistry holds true when it comes to comparing legal immigrants, who have not violated any laws on their way into the country, with illegal immigrants, whose very presence is an offense to law.

What’s going on here is open-and-above-board, so it’s we’re not concerned here with ordinary “cash corruption.”  That is, this is not a situation in which a private citizen makes a payment to a government official in return for the latter’s promise to look the other way.

What we have here is worse.  We are witnessing a profound ethical corruption that sees public institutions deliberately flouting their own laws.  This is a dangerous slippery slope.  Once the reliability of law is gone, the only thing left is despotism or anarchy, with the former being the tyranny of an individual or group and the latter being the tyranny of the mob.  When political officials expressly ignore the law, they are no better than ordinary criminals.  What’s being stolen, though, is more valuable than money or jewels.  It’s the essence of our liberty.

 

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

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.

Facts are stubborn things . . . but Leftist ideologues are even more stubborn

“Facts are stubborn things.”  — John Adams.

“Ideologues are even more stubborn than facts.”  — Bookworm

A few nights ago, Mr. Bookworm watched the movie Shattered Glass with the children.  It’s a fairly good retelling of the way in which Stephen Glass, a young feature writer at The New Republic, wrote a series of fraudulent articles.  I was a TNR subscriber at the time, and I vividly remember what might have been his most famous article, the one describing orgies of sex, drink and drugs at a young conservative convention.  The article was a perfect fraud because it so deftly fed into liberal prejudice about conservatives:  there was no way, we liberals thought, that conservatives could actually live up to the standards they sought to impose upon ordinary Americans.  Because we didn’t believe in those lifestyle values, we assumed that young conservatives were hypocrites — and Thank God for true journalists like Stephen Glass who were out there exposing this hypocrisy to the world.  Except, of course, for the fact that every word Glass wrote was a lie.

At the end of Shattered Glass, the movie informs the viewer that Glass went to law school and is working as a paralegal.  (I won’t even try to figure out why a highly respectable law school such as Georgetown would allot one of the valuable spaces in its freshman class to a conscienceless con man.)

My children were perplexed.  “A lawyer?  Why a lawyer?”  Mr. Bookworm knew the answer:  “Because lawyers lie.  That’s their job.  The better the liar, the more money they make.”

As a lawyer whose lies have never gone beyond social white lies (“That dress is lovely!” “I’m so sorry, but I’m already booked that night.”), I took umbrage at that statement.  “Good lawyers never lie!  They simply advocate.  I take the facts and put them together in a coherent, honest narrative that ties in with applicable law.  If my client has no case, I say so.  My integrity, and the integrity of my friends and colleagues, demands no less.  I’ve known lying lawyers, but they’re bottom feeders and viewed with disdain by decent practitioners.”

The fine line between advocacy and lying was a struggle for the children.  Imagine a car accident, I said.  A car traveling in excess of the speed limit passed through an intersection, and shortly thereafter struck a pedestrian.  If there was a subsequent lawsuit, there would be two ways to describe that car’s journey through the intersection.  If I represented the car’s driver at trial, I would never say anything other than that he “drove” through the intersection.  This would be a completely correct statement.  I would be implying, of course, that the defendant’s speed wasn’t so excessive that it could lead to an accident.  In the same trial, the attorney for the pedestrian would invariably say that the defendant “sped” or “raced” through the intersection, implying that he was out of control by the time he hit the pedestrian.  Again, since I’ve posited a speed above the speed limit (although I haven’t said by how much, whether two miles above or twenty miles above), that too is a truthful statement.  Both lawyers are being completely truthful, but both approaches are spin aimed at persuading an audience (the jury) to reach one of two antithetical conclusions.

I think the kids understand me.  Mr. Bookworm — well, I’m not so sure.  He is, after all, a man of the Left, and if there’s one thing a lifetime on the Left has taught me, it that my blog’s motto is accurate:  “Conservatives deal with facts and reach conclusions; liberals have conclusions and sell them as facts.”  To the Left, fact and spin are indistinguishable.  Truth isn’t a construct based upon irrefutable and stubborn facts.  Instead, truth is an ideological conclusion, sustained by whatever means necessary.

Interestingly, the day after I had this instructive conversation with the kids, the blogosphere was suddenly saturated with stories of stubborn ideologues, relentlessly intertwining conclusions and facts.  Unfortunately for public discourse, these ideologues are journalists.

The most well-known post is Mark Hemingway’s Lies, Damned Lies, and “Fact Checking.  In it, Hemingway takes aim at the proliferation of “fact checking” articles from major media outlets.

Fact checking can be useful, of course.  Going back to my car example above, the speed at which the driver traveled is a fact.  If he was going twenty miles above the limit, but his advocate claims he was only going two miles above the limit, that claim is a lie and a fact checker should call him on it.  In the world of liberal fact checking, however, the fact checkers confuse their spin (i.e., the advocacy of their ideology) for objective facts.  They would be challenging the lawyer they’re hostile to over his honest, albeit emotionally loaded, word choice (e.g., “drove” versus “sped”).

Here’s Hemingway’s conclusion, one he reaches after offering several egregious examples of the way Leftists confuse ideological “truth” with facts:

While it was always difficult in practice, once upon a time journalists at least paid obeisance to the idea of reporting the facts, as opposed to commenting on “narratives”​—​let alone being responsible for creating and debunking them.

But today’s fact checkers are largely uninterested in emphasizing the primacy of information. Accordingly, this is what happens when the media talk about fact checking: The Washington Post pats the AP on the back for questioning the veracity of a media-created narrative ex post facto, then cites a brazenly partisan blogger as proof that the effort to smack it down was successful.

What’s going on here should be obvious enough. With the rise of cable news and the Internet, traditional media institutions are increasingly unable to control what political rhetoric and which narratives catch fire with the public. Media fact-checking operations aren’t about checking facts so much as they are about a rearguard action to keep inconvenient truths out of the conversation.

Hemingway deservedly got attention for this brilliant deconstruction of ideological advancement dressed up as fact-checking, but he wasn’t the only one.  At the same time,  James Taranto caught the AP “fact checking” Newt’s debate promise that he will move the U.S. embassy in Israel from Tel Aviv to Jerusalem.  The AP says that this “fact” — one that most of us would see as a promise of future action — is “false” because other presidential candidates have made the same promise to no effect.  Taranto understands what’s going on, and it’s not that Newt was lying:

To be sure, some things about the future are known with sufficient certainty that they are indistinguishable from facts. If Gingrich claimed to be immortal, the AP would be justified in running a “fact check” refutation even if it was not also an obituary. Likewise if he said tomorrow’s sunrise would occur at 3 p.m. on the East Coast, we could be sure he was wrong.

But the idea that Gingrich’s pledge is contrary to fact because other politicians have failed to keep the same promise is beyond ludicrous. Did the AP in 2008 run a “fact check” rebutting Barack Obama’s promise to enact “heath-care reform” because so many previous presidents have futilely attempted to do so?

[snip]

It would not have been hard to recast this story to make it journalistically sound, though it would have entailed a bit more work. Gearan could have begun by reporting the Gingrich promise, then put it in historical context by noting the record of other presidents. The arguments for why such a move is a bad idea could have been aired, too–not in Gearan’s own voice, but by interviewing diplomats or scholars who think it’s a bad idea. It might also have been worthwhile to seek a follow-up interview with Gingrich or a spokesman to ask why voters should expect him to keep this promise when past presidents haven’t.

Instead, the AP published what is essentially an opinion piece, and a rather lazy one at that. If we may borrow Gingrich’s favorite word, to label that a “fact check”–as if it had some greater authority than actual reporting–is fundamentally dishonest.

Taranto is correct that, if one actually cares about objective, verifiable facts, AP’s conduct was “fundamentally dishonest.”  I wonder, though, if he makes the mistakes of thinking that liberals actually care.  (I suspect that Taranto is to savvy to make this thinking error.)  To liberals, the only truth is ideology, and if one cares about ideological truth, “facts” are merely tools to be manipulated.

I am not about to call the AP or American journalists Nazis, because they’re not, but I can’t help but be struck by the way the parallelism between their belief that ultimate, ideological truth trumps verifiable fact, on the one hand, and Goebbels’ understanding of the propaganda necessary to bring German citizens to Naziism, on the other hand:

That propaganda is good which leads to success, and that is bad which fails to achieve the desired result.  It is not propaganda’s task to be intelligent, its task is to lead to success.

Or, as he more famously said:

If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.

Given that too many American journalists (both as individuals and as institutions) seem comfortably wedded to a Goebbel-esque view of truth, is it any surprise that they rate so low in the public’s estimation when it comes to assessing their ethics and honesty?  While poll results show that they still rank above lawyers, lobbyists, politicians and used car salesmen, the margin is awfully small.

(As an aside, looking at that “ethics by profession” chart to which I just linked, is it any surprise that the military ranks so high?  It isn’t to me.  For years, we’ve watched our military put itself on the front line to defend America, both her people and her ethos.  We know that when our troops take that oath — a serious oath that America’s First Sergeant analyzes beautifully here — they mean it.  They say it, they mean it, they do it.)

As I mentioned above, journalists do manage to cling to an honesty position slightly above that held by politicians.  That’s not a surprise either.  After all, Eric Holder, who is both a lawyer and a politician, managed to state perfectly the Leftist (and, incidentally, the narcissist) approach to truth and lying:

Still unsatisfied, Sensenbrenner followed up again. “Tell me what the difference is between lying and misleading Congress in this context?,” he asked Holder.

Holder responded that whether a statement is a lie or misleading comment depends on what the person making it is thinking at the time.

“If you want to have this legal conversation, it all has to do with your state of mind, and whether or not you had the requisite intent to come up with something that can be considered perjury or a lie,” Holder said.

I know that what Holder meant to say is that ones ability to tell the truth is necessarily going to be limited by the universe of factual information available. If my boss has kept me sequestered from his side job as a drug dealer, I am telling the truth when I testify that he doesn’t deal drugs. However, Holder’s phrasing, which focuses on the speaker’s intent, rather than his fund of knowledge, manages to be the perfect Leftist/narcissist paradigm: truth is what you need to say at the moment.

Holder’s not the only lying politician.  I’ve repeatedly document at this blog Obama’s Leftist/narcissist approach to the truth.  (See here, here, here, here and here, for example.)  Three years into Obama’s presidency, more and more people are catching on to Obama’s distant relationship to stubborn facts.  Indeed, an audience member at a well-attended military briefing (upwards of 200 people), told me that a civilian who attended the briefing interrupted the speaker to say, “C’mon, don’t give me the Barack Obama answer, give me the real answer.”  The room’s response was telling:  silence, followed by titters.  No anger, no hissing, no booing.  Admittedly, given Obama’s approach to the military, it’s not surprising that a military venue wouldn’t take umbrage at this statement, but it is nevertheless impressive that Obama’s very name is becoming synonymous with lies.

Obama, of course, didn’t help his case with his recent Osawatomie speech, which was a truly magnificent example of ignorance, ideological spin, and blatant factual dishonesty.  Needless to say, the media didn’t fact-check the speech, since it advanced their ideology.  The fact that it was ideologically true satisfied the media, despite the egregiously wrong objective facts.

I’ll wrap this post up with two more points, one about a really big lie and one about a surprising truth.

The big lie:  climate change.  I’m not sure I need to say more.  We now know from a huge onrush of facts — actual, objective facts, such as the Climategate emails — that those advancing AGW have been systematically fudging data, omitting data, asserting falsehoods, substituting beliefs for facts, and stifling dissenting voices.  (Only today, Charlie Martin notes that our own DOJ is doing things that might be construed as stifling dissent, but he hastens to add — with a rigid adherence to truth — that the facts are currently too unclear to make that conclusion.)  Indeed, the whole environmental movement, not just the AGW side of it, has abandoned itself to an orgy of ideology, one that sees scientists, who should have a rigid adherence to scientific truth based upon verifiable data, happily abandoning data in favor of ideology.  (This post offers a two-fer, with both a corrupt scientist and a corrupt attorney.)

And here’s the surprising truth:  Newt’s courageous willingness to state that the Palestinians are an “invented” people.

Discussing the origin of the state of Israel in the 1940s, Mr. Gingrich said: “Remember, there was no Palestine as a state. It was part of the Ottoman Empire. And I think that we’ve had an invented Palestinian people, who are in fact Arabs and were historically part of the Arab community. And they had a chance to go many places.”

On objective facts, Newt is completely, absolutely right.  That the Palestinians have since coalesced into a coherent group identity separate from other Arabs is true too, but it doesn’t erase the truth of Newt’s statement.  Newt’s statement matters because understanding the truth behind Palestinian identity makes it clear that it is Goebbel-esque propaganda about the Palestinian’s imaginary past that places the Israelis in an unflattering, and dishonest, light, as apartheid colonialist land-grabbers:

One might ask why this should matter: Regardless of when either Jews or Palestinians arrived, millions of both live east of the Jordan River​ today, and that’s the reality policymakers must deal with. But in truth, it matters greatly – because Western support for Palestinian negotiating positions stems largely from the widespread view that Palestinians are an indigenous people whose land was stolen by Western (Jewish) interlopers.

Current demographic realities would probably suffice to convince most Westerners that a Palestinian state should exist. But the same can’t be said of Western insistence that its border must be the 1967 lines, with adjustments possible only via one-to-one territorial swaps and only if the Palestinians consent. Indeed, just 44 years ago, UN Resolution 242 was carefully crafted to reflect a Western consensus that the 1967 lines shouldn’t be the permanent border. So what changed?

The answer lies in the phrase routinely used to describe the West Bank and Gaza today, but which almost nobody used back in 1967, when Israel captured these areas from Jordan and Egypt, respectively: “occupied Palestinian territory.” This phrase implies that the land belongs to the Palestinians and always has. And if so, why shouldn’t Israel be required to give back every last inch?

But if the land hasn’t belonged to the Palestinians “from time immemorial” – if instead, both Palestinians and Jews comprise small indigenous populations augmented by massive immigration in the 19th and 20th centuries, with the West Bank and Gaza becoming fully Judenrein only after Jordan and Egypt occupied them in 1948 – then there’s no inherent reason why the border must necessarily be in one place rather than another. To create two states, a border must be drawn somewhere, but that “somewhere” should depend only on the parties’ current needs – just as the drafters of Resolution 242 envisioned.

Newt’s willingness to state truths is one of the more attractive things about his candidacy.  He can be unfiltered, which is worrisome, but that unfiltered quality is what allows him to trample over established Leftist political orthodoxies, and make statements that cut through the cognitive dissonance that affects anybody who lives in a world dominated by a statist media.  I hope that, whether Newt makes it to the White House or not, he sticks with this honesty.

Right now, Newt’s refreshing factual honesty makes me think of the first half of the I Love Lucy episode in which Lucy, in inveterate liar, makes a bet that she can tell the truth for 24 hours.  One of the funniest scenes in TV history has Lucy sitting down for a bridge game with three of her friends and abandoning all her social lies in favor of the truth, as she sees it, about their clothes, their children, their decor, and their personalities.  (Sadly, I can’t find a clip of that on the internet.)  In a lesson Newt would do well to heed, when Lucy gets the chance to achieve her heart’s desire — a show business gig — truth goes out the window, landing her in a hair-raising, but naturally quite funny, situation.

There’s nothing new about lying.  It comes with our lizard brains and can serve a very useful purpose, whether one is a spy, a prisoner of war, or a husband whose wife asks “Does this dress make me look fat?”  However, in the world of politics and journalism, lies have vast and significant consequences for nations.  When those who need to tell the truth routinely lie, not just to save face, but to advance underlying, and often disguised, ideological goals, we as a nation are in great danger.  Thankfully, we have an alternative media now that helps suss out the truth, but it only benefits those who willingly pay attention.

Those logical disconnects

I’m sorry blogging has been so light today, but it’s been a go-go-go kind of day that’s left little time for anything but, well, going.  I did have a thought today, which I’ll share with you.

Most lawyers I know have little that’s complimentary to say about the average trial court judge, a feeling that often extends to appellate courts (who are viewed as slightly brighter, although just as capable of intellectual dishonesty and bias).  Any conversation with lawyers eventually gets around to this or that judge and the terrible decisions emanating from that “honorable” member of the bar.

Given all that, I find it incredibly perplexing when lawyers announce to me that they have no problem with judicial activism.  Let’s just ignore entirely, for the moment, the anti-democratic nature of judicial activism — something the Founding Fathers devoutly hoped to avoid.  Even with that out of the way, I can’t grasp why someone who deals daily with the fact that judges are, on average, merely average, with a striking number (let’s say, about half) below average, would still want to place decisions of major national importance in the hands of these same judges.

This is the kind of cognitive dissonance that drove me away from the Left and into the Right.  There’s a lack of logic driving liberal thinking that I simply couldn’t handle any more.  My brain rebelled.  Considering that I spent more than a decade harping about bad judges, why would I increase their power?  I simply elevated learned real world over theory.

The changing face of the law

I went to law school in the days when students still took notes by hand. When I started practicing law, secretaries had computers at their desks, but no lawyers did. My first law firm used a “Wang” word processing system, which was really nothing more than a typewriter on the screen. The word processing department had to place the footnotes manually when the document was in its final draft. Woe unto the lawyer who waited to long to finalize a document and then tried to jump the line in word processing.

Legal research was still primarily a matter of books — lots of them. If you found a case from 1955 that was really good, and you wanted to see whether it had been followed in the intervening years, you had to plow through volume after volume of “Shepards,” the series of books that tracked every single subsequent reference to any case every written. Computer research was coming into being, but you could only get to online databases through dedicated computers in the law library. Because it was so expensive, only the big firms had access — and even then it gave them an advantage.

A mere four years after I started practicing law, there’d been a sea change. Every lawyer in my firm had a computer on his or her desk, and secretaries, instead of typing documents from scratch based on handwritten notes or dictation, were used merely for finishing and copying documents. Cases and statutes were available on line — by modem! at your own computer! — and also could be had on disks that you just popped into your computer. Things have been moving forward wildly since then.

I work out of my home now, but I still have access to complete legal databases via computer. I just get on the internet, go to Westlaw or Lexis and voila! I have easy access to precisely the same material that used to require a long shlep to the library, a photocopy card, and a lot of time spent standing in front of that copy machine. Finding cases is a matter of playing around with words and concepts until the computer coughs up something useful. If you like what you find, creative research allows you to spin it out endlessly, through subsequent decisions, varying jurisdictions, source books, and time frames.  At the end of the day, you print the results or download them or save them as a pdf file, whichever works best for you at a given moment in time.

The internet has also changed the ancillary aids to law. For one thing, a Google search often yields surprising results. More and more firms and lawyers have law blogs (or blawgs) where they post memos they’re proud of, tout their legal expertise, or provide helpful links to other legal sources. There’s even a blawg about law blogs.

Lawyers aren’t the only ones who are using the internet to market themselves. There’s a lot of legal support out there too. When I had to serve a subpoena across the country, I hopped on the internet and quickly found a process serving company — there are dozens referenced on line now. When I had a US Supreme Court writ of certiorari I had to file, I found a company that walked me through the complex procedure for preparing a brief and then got the filing done for me. I can’t remember which company it was, but it easily could have been this one, which I just found through a Google search.

Nowadays, you don’t even need a secretary anymore. Even if you’re not adept at typing or finalizing documents yourself, with modems and scanning, you can do it all from a distance. Here’s a gal who notes (correctly, I’m sure) that she’ll save money for the lawyers who hire her, since they only pay her for work actually done. No more salary, no more unemployment payments, no more health insurance. Simply send her a half-done file, or a pdf of a handwritten draft, and she’ll do all the secretarial work for you — and that’s true no matter where you are relative to where she is.

What’s also fun is all the information about judges that’s out there now. There’s a cool website called “The Robing Room” where lawyers get to say what they really think about judges — and much of it is not pretty. I discovered it when someone sent me a link to a judge who got the following types of reviews:

This judge is the an absolute embarrassment to the bench. While personal epithets are not always appropriate when rating someone on a site like this, a federal judge should be bright enough to do his job, and this one is simply stupid. He tries to cover up his stupidity by being pompous, but he simply does not get the issues. His pompous, obstructionist attitude carries over to his miserable clerk, Kevin. Percy Anderson is a strong indication as to why the federal courts need an analogous statute to California

***

The worst judge: stupid, arrogant, rude, and unfair. Seems to be mentally unbalanced.

***

This is a very bad man. He is arrogant, aloof, lazy, unable to grasp difficult concepts, completely pro-government and business, and totally against the little guy. The Ninth Circuit sua sponte has removed him from cases and is believed to have put an asterisk next to his name so that when appeals from him come before the court the staff attorneys give it special scrutiny.

***

This judge is ruthless, mean, and demeaning, for no apparent reasons other than just being like that. He is one of the worst judges in the Central District of California. He’s not very smart, but thinks he knows everything. This combination of ignorance and arrogance is awful for lawyers and litigants.

Wow! What’s even more of a wow is that Judge Anderson hasn’t cracked the “worst judges” list at the Robing Room. It’s hard to believe that there are less competent judges out there, but there are.  Indeed, there seems to be a problem with Anderson’s district (the Central District of California), since three of the ten bottom rated judges come from there.  Thanks to Robing Room, you’re armed when you go into Judge Real’s court having already read these reviews:

He is a tyrant and undiagnosed bipolar jurist who needs to have his mediciation checked by the 9th Circuit. He is a poster boy for the mandatory retirement of U.S. District Judges. Mel Brooks was right when he said “it’s good to be the king,” but it’s better to be a federal judge.

***

This guy is the worst federal judge. Yet again, the Ninth Circuit reversed him for arbitrary and capricious conduct, this time for doing something good — giving a lenient sentence — but refusing to give any reasons. He screws up everything. U.S.A. v. Medawar, 07-50180 (9th Cir. 03-12-08).

***

This lazy, vicious monarch has terrorized litigants and lawyers for 42 years and has the highest reversal rate in the Ninth Circuit, which virtually automatically and sua sponte re-assigns his cases to other judges when it remands them. Soon, hopefully, the Ninth Circuit will take all his cases away from him, but 42 years too late. Just an awful judge.

In the old days, unless you had a friend who had been in the Court first, you’d just get blind-sided.  At least now you can take your Valium first and see your therapist after.

Having practiced law for a long time now, I’m pretty sure that law is one area that has benefited substantially from the computer revolution.  Access to information and services is easier, and practice flexibility is hugely increased.  Has your industry benefited as well?

Well, that’s an interesting point

When I was a young lawyer and an avid Democrat, I was just thrilled that Bill Clinton and his wife were both lawyers. It seemed to vindicate my career decision. As I’ve become less enthralled with being a lawyer, and as the lawyer politicians have proven adept at parsing the truth (“it depends what ‘is’ means”), I’m a little less excited about the professional affinity I share with the Clintons and the Obamas.

One thing I never realized, though, is that I share a professional affinity, not just with those two power pairs, but with just about every major Democratic politician there is:

The Democratic Party has become the Lawyers’ Party. Barack Obama and Hillary Clinton are lawyers. Bill Clinton and Michelle Obama are lawyers. John Edwards, the other former Democrat candidate for president, is a lawyer and so is his wife Elizabeth. Every Democrat nominee since 1984 went to law school (although Gore did not graduate.) Every Democrat vice presidential nominee since 1976, except for Lloyd Benson, went to law school. Look at the Democrat Party in Congress: the Majority Leader in each house is a lawyer.

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

This is not just an interesting coincidence. It tells one something about the abilities and belief systems that animate these office-seekers:

Who was the last Republican president who was a lawyer? Gerald Ford, who left office thirty-one years ago and who barely won the Republican nomination as a sitting president, running against Ronald Reagan in 1976. The Republican Party is made up of real people doing real work. The Democratic Party is made up of lawyers. Democrats mock and scorn men who create wealth, like Bush and Cheney, or who heal the sick like Frist, or who immerse themselves in history like Gingrich.

The Lawyers’ Party sees these sorts of people, who provide goods and services that people want, as the enemies of America. And so we have seen the procession of official enemies in the eyes of the Lawyers’ Party grow. Against whom do Hillary and Obama rail? Pharmaceutical companies, oil companies, hospitals, manufacturers, fast food restaurant chains, large retail businesses, bankers and anyone producing anything of value in our nation.

This is the natural consequence of viewing everything through the eyes of lawyers. Lawyers solve problems by successfully representing their clients, in this case the American people. Lawyers seek to have new laws passed, they seek to win lawsuits, they press appellate courts to overturn precedent, and lawyers always parse language to favor their side.

Confined to the narrow practice of law, that is fine. But it is an awful way to govern a great nation. When politicians as lawyers begin to view some Americans as clients and other Americans as opposing parties, then the role of the legal system in our life becomes all consuming. Some Americans become “adverse parties” of our very government. We are not all litigants in some vast social class action suit. We are citizens of a republic which promises us a great deal of freedom from laws, from courts, and from lawyers.  (Emphasis mine.)

Read the rest here.