Got Plans for the Next 3 Years? How about Burning Someone at the Stake?

In May, 1984, John David Stumpf shot and killed Mary Jane Stout.  (He shot her husband, Norman, too, but Norman didn't die.)  He's been sitting on death row in Ohio for the last 29 years.

In January 1997, Doug Coley shot and killed Samar El-Okdi. He's been on death row in Ohio since 1998.

In June 2001, Stanley Fitzpatrick killed Shenay Hayes, Doreatha Hayes, and Elton Rose.  He's been on death row in Ohio since 2002.

This morning the Ohio Supremes, Justice O'Neill dissenting because he believes the death penalty unconstitutional, set dates for their executions.  January 3, March 14, and May 30.

Of 2018. 

Yep.  Around three years from now.

They say that justice delayed is justice denied.  I say, regularly in these posts, that I don't know what justice is.  I do, however, sometimes know what it's not.

If it made sense to kill Stumpf and Coley and Fitzpatrick, if it was wise and moral and proper, if it was just frgodssake, maybe years ago.

Stumpf, if they kill him as now scheduled, will have been on death row for somewhere close to 34 years.  There are reasons, of course.  He was one of the early cases.  The Ohio Supremes were still working at getting a handle on how our death penalty law works.  (It keeps changing, and the Supremes keep fiddling with how it works, but in the early days of the law there was a whole lot more uncertainty.)

And every case has issues that need to be resolved.  And good god, Ohio just released three guys who'd each spent 39 years in prison for a killing they didn't commit.  I mean, it's worth taking the time to be sure.

But 34 fucking years?

Well, yeah.  'Cause that's what it takes.  And even then there are issues, and frankly, I'm far from convinced any of these three will get killed as scheduled.

So we have a system that's expensive and disfunctional.  It denies justice.  It's imperfect.  And oh, yeah, it's immoral.

But by god, we've got plans for 2018.

* * * * *

I was just looking in my calendar.  I don't have anything scheduled after a doctor's appointment in September of this year.  

2016?  2017?  Hell, I've got more than two years of nothing before they plan to kill Stumpf.  

Of course, he doesn't have anything scheduled either.  Except for when they do the count every day to make sure none of the guys have escaped.

* * * * *

Meanwhile, at the Supreme Court of the United States, they're working on the really important issue:

When is it constitutional to burn someone at the stake?

The case is Glossip v. Gross and the formal subject is Midazolam and the dangers and incompetence of lethal injection as a method of government sanctioned murder (why don't we just take these guys out with drones?) as demonstrated in Ohio and Oklahoma and Arizona.  But when you're a SUPREME COURT JUSTICE you can ask pretty much anything you want during oral argument.  

Which Elena Kagan did, posing the question to Patrick Wyrick, Solicitor General of Oklahoma who responded:

                   JUSTICE KAGAN:  So suppose that we said, we're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects.  Maybe you won't feel it, it, maybe you will.  We just can't tell.  And ­­-- and you think that that would be okay.
                 MR. WYRICK:  I think that that ­­ a Petitioner in that case would have no trouble meeting -- satisfying the burden this Court imposed in Baze, which is showing that that puts me at a substantial risk, objectively intolerable risk of severe pain.  That -- that threshold showing would be incredibly easy to make in that case.
                 JUSTICE KAGAN:   No, I'm -- I'm saying, because you just don't know about the anesthesia.  Maybe the anesthesia will cover all that -- the pain of being burned at the stake or maybe it won't.

When Robin Konrad who represented the guys on the row in Oklahoma stood up for rebuttal, Sam Alito (who's concerned about guerrilla warfare on the death penalty) returned to that all-important constitutional question. 

                          JUSTICE ALITO: But you're not sure that being burned alive ­­ that you think there are circumstances in which burning somebody at the stake 17 would be consistent with the Eighth Amendment?
                         MS. KONRAD: It is ­
                         JUSTICE ALITO: It's an irrelevant point, but you're ­­ you're not certain about that?
                         MS. KONRAD: Well, what I'm saying is that this Court has --­­ the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It's cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be. That --­­ I don't think that any ­­ any State would go to try to do that, because we move forward evolving ­­--
                         JUSTICE ALITO: That's an incredible answer. You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?

So there it is.  The Oklahoma Solicitor General, who favors lethal injection, tells Kagan that burning at the stake is always unconstitutional.  The lawyer for the guys on death row tells Alito that, hey, maybe it would be OK.

Really, you can't make this shit up.

Dangerous Dumpsters & the Armed Generalissima

Really, what I wanted to write about was inanimate objects.I wanted to offer a thought experiment.

Imagine, if you will (and if you won't why are you reading this?), a tree.  Tall and broad, stately.  A thing of beauty.  On a bright summer's day, you could sit under it, perhaps with a lover.

A Book of Verses underneath the Bough, 
A Jug of Wine, a Loaf of Bread--and Thou 
Beside me singing in the Wilderness-- 
Oh, Wilderness were Paradise enow!

 
     Omar Khayyam, The Rubaiyat

A lovely thing, really, though with the potential of great danger, naturally.  You know the rule:  Don't take shelter under a tree in a thunderstorm.  And there are the stories:

• Man killed by falling tree branch in Central Park.
• Man killed by falling tree branch in Radnor, PA.
• 13-year-old girl killed by falling tree branch in Yaxley, Cambridgeshire.
• 16-year-old girl killed by falling tree branch in the Teton Wilderness.

Which are just a tiny sampling.  And don't include all those times when drivers run into trees and die or parachutists fall on them and die or idiots climb up and fall off and die or . . . . Really, the Darwin Awards could have a special category.   But really, mostly trees are pretty safe.

So, to get back to the point, imagine a tree.  But don't think of it on that bright summer day with your lover nearby.  And don't think of it as an accident waiting to happen.  I mean, life is a risk.  Anything can happen anywhere.  No, think of the tree as a weapon.

Break off a branch and hit someone with it.  Or stab someone with it.  Take someone and ram him, hard, head first, into the trunk.

Now, another image.  Think of a wooden box.  A big one.  It could be a weapon, just like a tree.  One could smash someone's head into it.  One could break off a piece and use it as a bludgeon or a spear.  One could, perhaps, drop it on someone.

Or, and now we get toward the point, one could place someone inside the box.

Which brings us to the question: 

If someone is put in the box, does the box become a weapon?

If that box is in Waco, Texas, the answer is now "Yes."

Via Walter Reaves, comes word of Mechell v. Texas which demonstrates, as Reaves says, "anything can be a deadly weapon."

That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.
The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

What's striking about Mechell's case is that there was no need to go there.  Mechell ended up with a 48 year prison sentence.  She'd have been well up into the double digits (I'm not up on the details of Texas sentencing law today so I won't try to figure out just how high) without the deadly weapon specification.  So why would the DA bother?

There are, I think, two answers.

1. Because he could.
2. Because he wanted to get a court to say so.

Here's the relevant Texas law as set out in the court's opinion.

A deadly weapon, as applied to this case, is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West 2011).

From which, the court of appeals in Waco concluded, a dumpster is "capable of causing death or serious bodily injury" because a person abandoned in one might die or be seriously injured. Which is surely true.  But is also a major screw up.  By focusing on whether harm could occur in a dumpster, the court lost track of the issue of causation.

Because the simple fact is that the dumpster as inanimate box, couldn't cause harm.  The cause of harm was abandoning the child.  Causation matters.  (See here, for instance.)  Reaves again.

It was the act of abandoning the child that caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

And don't think it won't happen.

Which brings us back to the District Attorney.  Maybe it was a power play.  (Let's stack up the charges and make them as bad as possible because we can.)  Or maybe it was an effort, at Mechell's expense, to establish some really awful law to use in the next case.  Offensive either way.

But then, so are the trial and appellate courts for buying into it.  

Except, of course, a child was hurt.  And as they like to say,

Bad facts make bad law.

* * * * *

That's the post I was going to write.  Up until the moment I saw this CNN story via Howard Bashman's post.

Let me back up for a moment.  I've made this point before (here, for instance).

I love westerns, and the gunfight (really it was a duel) is a classic scene with which I'm comfortable and in which, when I was younger, I repeatedly fantasized a role for myself. But I grew up a Jewish kid from New York, and I don't like guns.

I had and played with lots of cap guns and an air rifle when I was a kid. I've shot a .22 a couple of times. I've held handguns with varying degrees of pleasure/fascination (mostly depending on my age). I've learned something about how firearms work as a criminal defense lawyer. But I grew up a Jewish kid from New York, and I don't like guns.

I think we'd be better off if they were completely banned. I hate the Second Amendment. I'm a fan of all sorts of gun control. Heck, I grew up a Jewish kid from New York, and I don't like guns. But I try and be honest about these things.The Second Amendment is part of the Bill of Rights. As such, it has as much clout as, say, the Fourth or the Eighth, both of which I like a great deal. It's the law of the land. And we're stuck with it.

 

I wrote that, as you'll see if you follow the link, in a post arguing that the Second Amendment allows, even encourages, an armed citizenry not for sort or hunting or defense against burglars but to ensure the ability to successfully defend against and even overthrow the government.

If the Second Amendment means what I think it has to mean. If the Second Amendment guarantees the people the right to bear arms in order to prevent the government from becoming tryranical. If the Second Amendment is there so that free Americans can protect themselves from an oppressive government and so that, in a pinch, they can fulfill the duty of revolution and overthrow that government. If all that's so. Then my hyperbolic, jokey response about how, whatever limitations there may be on the Second Amendment right, the government can surely prevent me from keeping an atom bomb in my backyard, is simply wrong.

Regardless, I'm still in some ways that Jewish kid from New York who hates guns.

Another Jewish kid from New York (and no, we've never met, though we both grew up on the upper west side of Manhattan) who presumably hated guns is the former Generalissima, now-Justice Elena Kagan.

The other day, she was in Baltimore helping a temple celebrate its 90th anniversary.  She talked about her family's search for a temple.  About convincing a "modern orthodox" rabbi (whatever sort of orthodox that is) to give her something like a bat mitzvah.  She talked about Jews on the SCOTUS bench and about a case involving a passport from Jerusalem or Israel or Palestine.  And she talked about (you knew I was going to get back to this, right?) guns.

She recalled paying a courtesy call on Sen. Benjamin Cardin, D-Maryland, who is a member of Beth Tfiloh, shortly after her nomination to the court by President Barack Obama in May 2010. Cardin asked her about gun rights, and remarked she may not realize how important the issue is to some Americans.
She admitted never having owned or fired a gun before. "But I told Sen. Cardin if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia."
And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.
"You're Jewish," deadpanned Rabbi Mitchell Wohlberg.
"Yeah, but it turns out, it's kind of fun," said Kagan, laughing.

And no, I'm not going to try relating this to the big/game/hunter cops near Zanesville (home of the National Road/Zane Grey Museum, by the way) who just tracked down and killed some 49 "exotic" animals.

Generalissima No Longer

She's now Associate Justice Designate Kagan, or whatever title the former (or maybe still current) Generalissima has until she's actually sworn in.


May she prove to be a fine justice despite the way she earned her robe.

You Say You Want a Revolution? Nah.

Consider these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

They are, of course, from The Declaration of Independence. It's quite an extraordinary document, one well worth reading every now and again - say, on Independence Day.

They say that "all men" (and one can only wish that "all" were meant to include people of color, including those who were enslaved, and that "men" were intended to include women) "are created equal" which really leaves no room for invidious discrimination.

They say that those equal men have certain rights that are "unalienable," that is, they cannot be alienated or taken away. They say that among the unalienable rights are "Life, Liberty, and the pursuit [not the attainment, however, since that's beyond guarantee] of Happiness." They say that government exists "to secure these rights."

And they say, and these are amazing words today, but we must remember that the landed gentry who signed this document were not just the establishment - they were an establishment teeming with enlightenment ideals and with revolutionary ardor, they say that when governments don't do that job, then it is the right and the duty of the people to overthrow the government. Revolution is obligatory.

That's how I started last year's Fourth of July post (though I didn't put the last sentence in italics last year).  It's not a bad way to begin this year, either.

And so with revolution in our souls, let's look one more time (I'll try to hold myself in check for a bit and at least consider having it be the last time) at the Generalissima, Elena Kagan - about as non-revolutionary a choice as there could be for the Court.  No surprise that the guy who eschews excitement would choose a nominee who exudes none.

She could end up voting my way on every issue to come before the Court.  (I'd be surprised, really I'd be shocked, but it's theoretically possible.)  I still wouldn't think it was good to put her on the Court (though I'd like her votes).

I want a lawyer who's actually practiced law.  I want someone who's stood in the well next to some poor person charged with a crime or victimized by the police or an unfeeling government agency or a major corporation.  I want a person on the court who knows what it means to stand up for the Bill of Rights at some risk.  Someone who actually knows something about risk.  Someone whose trajectory offered something other than a direct line to where she is.

I want a justice who understands constitutional rights both from the ground up and from the top down.  The Generalissima gets them, insofar as she does, only from the top down.

But then, I get the idea of the Declaration of Independence.  It's a call for revolution by a bunch of wealthy landowners (the same sort who brought King John to heel at Runnymeade and made him sign Magna Carta).  [It's no surprise that having established their republic, these same men were eager to protect "life, liberty, [and] property.]  And yet, there was more.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

No small thing, that.  And truly at risk.

The Declaration is not a blueprint for government. (That's the Constitution.)  It is, as I said last year, "a campaign speech for overthrow of tyranny."  And it's one of our sacred documents.  Think about that.  Then look at the Supreme Court.  

Is there even one of them who'd sign?  Who'd risk life, fortune, honor?  One of them for whom honor itself might be something sacred?  

Look at Elena Kagan.

Happy Independence Day.

Sigh.

The Generalissima Dances

They're now underway, and it's clear that I was right.  The confirmation hearings are about as vapid as you might expect.

Anything the Supreme Court has ever decided is, the Generalissima tells us, "precedent" and "settled law."  No one has pressed her particularly hard, and she's declined to give any sort of meaningful answer, on whether or when "precedent" and "settled law" should give way - be sharply limited or broadly expanded or overruled.

The long-time professor won't "grade" the work of her she-hopes-will-soon-be colleagues, so we can't actually learn whether she thinks any of those matters of "precedent" and "settled law" were right.  (She does seem to think that Brown v. Board of Education was right and that Plessy v. Ferguson was wrong, but she hasn't been forthcoming about why that is.)

As for actual legal matters, she's happy to explain what the Court said in this or that opinion, but she's unwilling to say whether she thinks any of that is right, and since substantive matters may come before the Court for the first time or again (however unlikely that may be - re Bush v. Gore, for instance, which surely can't, she says the Court might someday again need to decide whether to intervene in an election), why she certainly can't express a view on them.

So, as always at these adventures, we learn nothing except how charming the candidate can be while refusing to answer questions.  On that basis, she's a winner.  She banters some (bits are witty); deflects coyly; blushed (slightly - according to scotusblog's live blogging - at one of her own self-deprecating jokes; can be tediously pedantic; and knows how to bob and weave.

Senator Sessions assailed her.  She did not give ground.  Others praised her, tossed her softballs, asked her to explain away things she'd previously said or written, and made their own speeches - often entirely without questions at the end.

She told us that the positions she took as an advocate (that is, in her role as Generalissima) weren't necessarily her own - though she convinced herself of them before taking her position arguing them in the well at SCOTUS, something every good advocate does.  She told us that although she worked for and deeply admired Thurgood Marshall, she is not he.  She told us that when she wrote for him or as an advisor to Bill Clinton or whatever, she was doing what they wanted, whatever she might have thought.  She told us that what she took from her father, a people's lawyer, was a love of the law.  She did not say that what she took from him was a love of the people or any understanding of how the law could be used.  She said that the way to ensure public respect for the Court was to recuse herself when proper.

When this isn't empty, it's fatuous.

Norm Pattis says this is all sufficient basis for a "bipartisan filibuster."

There is nothing inappropriate about answering an honest question with candor. Kagan's refusal to do  justifies a bipartisan filibuster of her of any vote on her nomination. When she sat before the American people yesterday looking like some sort of self-satisfied chipmunk she did nothing so much as offend.We should offer you lifetime employment based on that interview? I'm sorry, counsel, but I wouldn't hire you as a summer associate if yesterday's evasion is the best you can do. A Supreme Court justice is much like an ancient oracle, your utterances will define the terms and conditions of our lives. It is not too much to ask what you think of issues likely to come before you. I want to know the beating heart beneath the robe.

The he rattles off a list of things he wants to know.  (The list is, of course, not exclusive.  We could all add to it.)  They're things I want to know, too.  So does any Senator who's honest about it.  So should the Pres who nominates.  So should the American People.

They are, of course, things we won't learn.

And there's no excuse.

She doesn't want to "grade" the work of those she hopes will be her future colleagues.  I don't blame her.  It could make for uncomfortable days on the Court if she says that every one of the eight folks with whom she hopes to work for a couple of decades frequently act like dishonest charlatans whose work is ideologically driven, fatuous, and out of step with both the real world and any honest recognition of what the Constitution and the law are really about.

But so what?  She isn't running for Generalissima Congeniality.  She's running for a seat as Associate Justice on the Supreme Court of the United States.  Her efforts toward collegiality cannot trump the Senate's right to ask and learn before confirming.  And certainly should not trump the public's right to know.

And that whole, I can't express a view on any issue that may come before the Court (which is, of course, any issue) because it would be "inappropriate."  Why?  What would be inappropriate about it?

OK, I agree that it would be inappropriate to promise a particular vote in advance of the case being put before the Court.  When she must decide X, it should be on the specifics of the case, the record, the details of the question presented, the briefs and arguments, and the precisely relevant laws.  To promise now what she might say then would be wrong, because it means she won't do her job then.

But to say what she thinks?  Now?  About the issue itself?  In general terms?  There's no reason to refuse.

Justice Scalia has made clear his general view of the constitutional right to abortion.  So has Justice Ginsburg.  So have the rest of them.  Are they, thereby, disqualified from addressing the question when it next comes to the Court?  If they are, then they should disqualify themselves from just about every case.  The Court would be out of business in two years.

If a sitting Justice can express a view in one case and still vote in the next, surely a not-Justice can do that.

The reason to refuse is, of course, political.  It's harder to get confirmed if you've actually taken a stand on something.  You might just piss off a necessary supporter.  Though you might, equally, gain a surprise ally.  Depending, of course, on what your stand is.  Them's the breaks.

Is she qualified to sit on the Court?  Sure.  So am I.  So are you.  (Read the Constitution.  There are no qualifications for Supreme Court justices.)  Does she deserve to sit there?  Maybe.  But we don't know.  We won't learn.  She won't talk.  They won't make her.

I've said all this before.  I said it last year when the subject was Sonia Sotomayor's confirmation hearings.  I'll say it next time when the subject is whoever's.  I'm getting tired of it.

I'll be back doing it again, anyhow.

Questions for the General

We're down to the wire. The hearings begin in the morning.

Generalissima Kagan told us 15 years ago that confirmation hearings for Supreme Court justices should have substance. The senators should demand, and the nominees should provide, actual substantive answers on matters jurisprudential. The candidates should be, er, candid.  Don't hold your breath.

It seems a safe bet (though until it happens, it's only a bet) that she will disavow and dissemble. 

As Adam Liptak reports in the Times, William Rehnquist made the same point as Kagan in the Harvard Law Record in 1959.  Twelve years later, as a candidate for the Court facing questions from the Senate Judiciary Committee, he rejected his prior view.  Senator Phil Hart asked him if he had reconsidered what he wrote in that article.  Clearly, he had.

I think I did not fully appreciate the difficulty of the position that the nominee is in.

So there it is.  And so it is likely to be with the Generalissima.

And yet, one wishes.  (One might hope, but that seems too naive.)

Norm Pattis provides a set of questions he'd like the Senators to ask Kagan.  They cover her work as a trial lawyer (oops, there is none) and call for her views on specific cases that the Court has decided (oops, she won't have any or she'll keep them secret or they'll be so trivial that she might as well either not have them or keep them secret) and ask how Supreme Court justices should actually go about deciding things (oops, they don't decide things, they just recognize a ball or a strike or what Madison or Hamilton [which one depends on your view of the issue] would have said or voilà).

Then, as a counterpoint to her (presumed) avoidance of answers, Norm reports that Gerry Darrow promises to do more.

I'm looking forward to tomorrow. But I'll bet Kagan isn't. She locked up somewhere studying how to talk and not say anything. Haven't we had enough of that? I'd say we need a little frank talk for a change.

Meanwhile, indulging his own fantasy of substantive hearings, Doug Berman offers his own wish list.

Here are a half-dozen of the hundreds of criminal justice questions I would love to see asked of Kagan in light of some of the Supreme Court's recent criminal justice jurisprudence and her recent work as Solicitor General:

1.  Do you think the Supreme Court could and should take and decide more cases on the merits, and do you think it would be especially appropriate to take up more criminal justice issues?
2.   Do you think it is useful and appropriate for the Court to decide a significant number of criminal justice cases through summary disposition without full briefing and argument (as the Roberts Court has tended to do in recent terms)?
3.   Do you think criminal justice administration should be primarily the responsibility of the states and/or do you have concerns about the ever-growing size of the federal criminal justice system?
4.  What are your current views of the pros and cons of the modern exclusionary rule?
5.  What are your current views of the pros and cons of the modern death penalty?
6.   What are your current views of the pros and cons of the advisory federal sentencing system created by the Supreme Court through its Booker ruling?

Of course, his is as much fantasy as Norm's.  Even if he could get senators to ask, General K won't answer. 

Still, it's a fair parlor game. 

Herewith (thought I'd try sounding legal):

1. If it is not proper for you as a candidate for the Court to say whether you believe a recent decision of the Court was correct because you might be called upon to opine on a similar issue if confirmed, why is it proper for a judge or justice who voted in the prior case to sit on the future one?
2. Too obscure?  OK.  Justice Scalia has indicated that the Constitution is not offended by the execution of a factually innocent person assuming the person has had sufficient, albeit ultimately unavailing, procedural protections.  Do you agree or disagree?  Well, if you won't say, because the question might come before the court and it would be improper for you to have suggested how you'd answer, then isn't it also improper for Justice Scalia to sit on that case?  And also for Justice Ginsburg, who disagreed with him?
3. So then, was the Court right or wrong when it decided Citizens United?  Would you vote to overrule it?  Why or why not?
4. While you're answering that question, explain in detail how a justice should properly decide whether to overrule a precedent?  Give specific examples of how the Court decided properly and how it decided improperly.
5. This term, the Court held that when a lawyer is super-duper-grossly negligent in missing a filing deadline for a habeas corpus petition and the client acted with mega-diligence to prevent that and then to file his own pro se petition, it might be possible to excuse the delay and the client may still seek habeas relief.  But, the court said, there's no excuse for the delay and the can't can't seek relief if the lawyer was just negligent.  Can that possibly be right?  Why or why not?
6. Should we take as the basic presumption that people have the right to sue to enforce statutory and constitutional guarantees unless a proscription of the individual right to sue is absolutely clear or should we presume that individual have no right to sue unless it is absolutely clear that they may sue to enforce their rights?
7. On what legitimate basis, if any, should we afford absolute civil immunity to any government official for actions which are illegal or unconstitutional?  On what legitimate basis, if any, should we afford qualified civil immunity to any government official for actions which are illegal or unconstitutional?  If such immunity is improper, would you vote to reverse the decisions that allow it?
8. Is the Bill of Rights a contract to be narrowly construed or a guidepost to be understood expansively?
9. How much wood would a woodchuck chuck if a woodchuck could chuck wood?  Why are you more likely to try answering that question than any of the others?

Senators, the floor is yours. 

A Tepid Endorsement

The hearings begin Monday.

The conclusion - barring some extraordinary and surprising development - will be that Generalissima Kagan (OK, she likes plain old "General Kagan," but she is a nominee to the Supreme Court so some hyperbole seems appropriate) will be Justice Kagan before the summer is over.  About six weeks ago, I posed this question.

Is there anyone other than she, her family, her friends (and maybe His Barakness) who's actually excited about the prospect of Justice Kagan?  OK, maybe those members of the LGBT community who believe (rightly or wrongly) that she is one of them.  Anyone else?  Never-robed members of the Harvard and Yale Law School faculties who dream of sitting next to Clarence Thomas and Steven Breyer?  Perhaps.  But seriously?

The answer, of course, was "No." But if nobody much was excited, nobody much was horrified, either.  

Oh, lots of people have said nice things about her.  She's been endorsed by former Solicitors General, by former Supreme Court law clerks, by law deans, and even by Michael McConnell.  The ABA finds her "well qualified" (which is as strong as their recommendations get).  And of course Democrats in the Senate are fawning all over her Generalship. 

But that's trivia, the words of the connected, the friends and hangers on.  The surprise would be if those endorsements didn't come.

Equally not surprising is that Republicans aren't the least bit enthusiastic.  And they've found a voice, finally, in their hero, Robert Bork.  She's not fit, he said.  Her praise of Israeli Supreme Court judge Aharon Barak "is disqualifying in and of itself."  Besides, she's immature, without a developed judicial philosophy or understanding.

As I said (sort of) "Ho hum.  Yawn."

But wait.  I've found a reason for excitement.  (Found it via Turley, to whom I offer thanks.)
His name is Yehuda Levin, and he's spokesman for the 850 Orthodox rabbis and others who make up the Rabinnical Alliance of America (which will have a more useful website one of these days, I'm sure). 

As reported by Pete Winn, Senior Writer/Editor of CNS News, Levin & Co. released a press release (I can't find it - if you can, send it on and I'll post it or link to it) declaring,

Elena Kagan is not kosher. She is not fit to sit on this Court--or any court.

Which'll teach Obama.

But this is too serious for jokes.  The press release puts us all on notice.

It is clear from Ms. Kagan's record on issues such as abortion-on-demand, partial-birth-abortion, the radical homosexual and lesbian agenda, the 'supremacy' of the anti-family panoply over religious liberties of biblical adherents, et. al., that she will function as a flame-throwing radical, hastening society's already steep decline into Sodom and Gomorrah.

Scared yet?

What exactly was Obama thinking, President Obama thinking, when he nominated Kagan? Because eventually, down the road, someone--or some group--is going to ‘take the hit’ for the crazy decisions that Kagan is bound to make. So we would have much preferred if President Obama had given this ‘distinction’ to another minority group, instead of singling out the Jews.

OK.  I'm becoming convinced.

Still with grave misgivings and little enthusiasm, but with the desperate hope that Rabbi Levin is right (and though I'd still prefer Gerry Darrow), I'll issue a qualified endorsement of the flame-throwing Generalissima.  If she's as bad as Levin and Bork say, she can't be all bad.

Roberts Gets It Right

Back when I was in law school, I took a class in Conflicts of Law.  Conflicts (as the cognoscenti call it) is the area of law involved in figuring out whose law and what law controls.

Say that Jim lives in Florida.  While he's on a business trip to Alaska he buys a car made in Nebraska and ships it home with intended stopovers in North Dakota and South Dakota and that the shipping company, which was approved for shipping cars by the manufacturer in Nebraska and the dealer in Alaska, loses the car somewhere between Alberta, Canada and Jim's home in Tampa.  Jim wants to sue somebody or, better still, everybody.  But where?  Canada? Alaska? Nebraska?  One of the Dakotas? Florida?  Maybe Alabama (it ends in an "a," too)  And all those places have their own laws and procedures.  Which ones apply?  (This is a law school question.  It's why you shouldn't go to law school if you don't have a desperate desire to be a lawyer.)

One of the cases we read in the class (and honest to god, I have no idea what case it was or what it was about except that it had, I presume, some relationship to the subject of the course) was from the US Supreme Court.  The's the one thing I remember about it.  The decision was 7-2 with a dissent either by Rehnquist joined by Marshall or by Marshall joined by Rehnquist.

It was an odd pairing.  One of those man-bites-dog sorts of things you remember precisely  because it was so unlikely.

But if you think about that sort of odd pairing, you realize that what I thought when I read the case (whatever it was about) was almost surely right:  The Marshall/Rehnquist (or Rehnquist/Marshall) dissent was clearly right and the majority opinion was wrong.  I mean, when you rope together that sort of oddball pairing, it's likely to be because they're onto

Which brings us to Robertson v. United States ex rel. Watson.  Robertson filed his petition for writ of certiorari asking the Court to hear the case in September 2008.    In December 2009, the Court granted his petition, limiting it to the following question.

Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.

The Court heard oral argument (transcript here) in March this year.   Monday, well over a year and a half after it was invited to step in, the Court issued its one sentence opinion.

The writ of certiorari is dismissed as improvidently granted.

I'm not being fair.  The way I've laid this out suggests that I'm interested in it as a case of justice delayed.  It's not.  It's actually a case of justice denied.

I'm not going to prattle on about the facts here or about the other issues in the case.  What I'm interested in is the dissent.  And the line-up of the dissent suggests, I hope, why I began with that tale about the Conflicts case.  Opinion by Chief Justice Roberts (when he gets it right, I give him the dignity of his full title used as an honorific, as I sometimes do [though using it in a scoffing, fashion] when he gets it egregiously wrong) joined by Justices Scalia, Kennedy, and Sotomayor.

It's not as odd a matching as Rehnquist and Marshall (Marshall and Rehnquist?), but it's enough to raise some eyebrows.  The Chief and Scalia, not so odd, but without either Alito or Thomas it's a peculiar pair.  Kennedy, who's prone to going his own peculiar way is still an odd fit since he rarely dissents at all.  And then there's Sotomayor, who's been more often on the side of the alleged liberals* - especially in criminal justice matters, than I'd expected, though the sample is still small.

More than the line-up, though, is what they had to say.  They'd have reversed.  Here's the opening paragraph (and the guts, really) of their opinion.

This is a complicated case, but it raises a straightforward and important threshold issue. When we granted certiorari, we rephrased the question presented to focus on that issue: “Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.” 558 U. S ___ (2009). The answer to that question is no. The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government. The court below held otherwise, relying on a dissenting opinion in one of our cases, and on the litigating position of the United States, which the Solicitor General has properly abandoned in this Court. See Brief for United States as Amicus Curiae 12–13, n. 3. We should correct the lower court’s error and return the case to that court to resolve the remaining questions.

In case you missed it, here's the key sentence.

The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.

There are so many important things in that sentence I hardly know where to begin. So as Maria sang, I'll "begin at the very beginning."

The terrifying force of the criminal justice system.

Who knew that Roberts had any idea its force was "terrifying"?  We're talking about someone who has seemingly no concern with the horrors that system inflicts on people.  Certainly, he was comfortable joining Breyer's opinion saying that lifetime incarceration of a person who might someday commit a crime.  And he was happy to write the opinion shutting down habeas relief in Renico v. Lett, and to join in similar opinions foreclosing relief in, e.g., Smith v. Spisak and Bobby v. VanHook.  On the other hand, there was his concurring opinion in Graham v. Florida and some legitimately powerful language in US v. Stevens.  In any event, he's now on record (as are Scalia, Kennedy, and Sotomayor describing the criminal justice system as acting with "terrifying force."  Good.  Let's hold them to the consequences - that people deserve real protection against that force.

may only be brought to bear against an individual by society as a whole

It's part of the terrifying force.  But let's stop talking, shall we, about level playing fields and how we've gone over the top with the rights of criminal defendants. We're talking about this guy and arrayed against him is not just the police and the prosecutor and the court and the elected judges and the law.  There's also the newspaper and TV and radio and all those jurors who walk into the courtroom and look at the defendant and know (and are told) that the prosecutor represents the state or the government or the people or well, basically, them.  Which means that the poor defense lawyer just represents this piece of pond-scum shit they wouldn't let near their anything.

So don't go giving me asses and elbows when I need a continuance.  And let me have the damn expert or investigator.  And stop pretending that it's really OK for cops to lie and the prosecutor to cheat because they're law enforcement and god is on their side and besides they have to do something to make up for the overwhelming force of my client's legal rights and besides, he's probably guilty.

through a prosecution brought on behalf of the government.

Do I hear a death knell for victimology in our system?  Are Roberts and the other three ready officially to acknowledge that the aggrieved party in a criminal case is the government, not the pers  on (or family or friends of the person) individually wronged by the criminal act (if there was one)?  Can we agree that there can be no more "victim impact" testimony because the "victim" of crime is the social fabric/society itself, not the wronged individual whose remedy (inadequate though it be, though ultimately no more inadequate) is in tort rather than criminal law?

So here's a serious question.  Why were they only four?  And in dissent?  And where will we find Elena Kagan, who as Solicitor General (whether on her own or under orders) refused to support the broadest of the government's claims?

-----------------

*As I've said before, there are no actual liberals on the Court these days, unless Sotomayor should turn out to be one.

Let Me Count the Ways

Is there anyone other than she, her family, her friends (and maybe His Barakness) who's actually excited about the prospect of Justice Kagan?  OK, maybe those members of the LGBT community who believe (rightly or wrongly) that she is one of them.  Anyone else?  Never-robed members of the Harvard and Yale Law School faculties who dream of sitting next to Clarence Thomas and Steven Breyer?  Perhaps.  But seriously?

Jews?  They're already represented way out of their proper affirmative action level (which would be about 0 since they're about 2% of the population).

Liberals?  We know they're unhappy.

Civil Libertarians?  Nope.

Those who favor . . . what?  Accommodation?  

Those who believe she can go toe-to-toe with Scalia?  Maybe she's smart enough, but does anyone think she has the inclination?

Those who want a lawyer who's actually represented people?  Uh-uh.


Those who think that the Court should be made of people who have no particularly strong feelings, no attitudes other than self-promotion, who are looking for someone who'll basically leave Obama alone to do what he wants and won't fuck around with affirmative action (which is what Dahlia Lithwick observes Richard Epstein told JeffreyToobin)?  Sure.  But that's His Barakness and I suspect nobody else.


Oh, there's a pretense of enthusiasm, of course.  But really, it's a sham and everyone knows it.
Lithwick's real point was that Obama doesn't have much of a jurisprudential philosophy.  That's probably true, a bit peculiar, perhaps, for a former professor of constitutional law, but then that was just a blip and a sideline for the Man.  What I think is more true, and what certainly seems clear from the total lack of energy he and his administration seem to have put into finding, nominating, and getting confirmed lower court judges, is that Obama simply isn't interested in the courts.  


Let's take a serious, albeit brief, look at the guy.


He likes big sweeping rhetoric and big sweeping programs, but he doesn't much care about the details of the programs.  He'll happily trade away every detail as long as he gets the big sweeping part.  (That, after all, is the real lesson of health care and of the non-stimulating stimulous package.)


He's a tough-on-street-crime Democrat, supportive of the death penalty even for those who don't kill (that's what he said, criticizing the decision, after the Court limited death sentences to killers in Kennedy v. Louisiana.


He probably thinks Gitmo should be closed and Don't Ask Don't Tell be repealed, but not if doing so might be really really complicated.  He thinks Miranda rights should be reserved for those who aren't thought to have done really bad things.  Ditto for Fourth (and one assumes all Fifth and Sixth Amendment rights).


He thinks it's OK to blame BP and Haliburton for not taking responsibility for the mess in the Gulf, but he hasn't exactly found any consequence he wants to impose on them.
He is, then, it seems an accomodationist.  He's not a liberal.  He's sure as hell not a firebrand.


Obama ran a campaign based on making everyone think he was really what they were.  Liberal? Sure.  Moderate?  You bet.  Conservative?  A surprisingly large percentage of the time.  And he'd bring us all together because he didn't care about the details of program so he'd let the republicans decide the details of the programs the democrats would pass.  


Everyone would be happy.


Didn't work out, of course, but that, I suspect, is the reality of Elena Kagan.


She has the appearance of difference (no judicial experience) without actually being any different. Except that she's probably more conservative than the Justice she's tapped to replace.  But it's hard to know, because she's never actually taken a stand on much of anything.  Certainly not in the last 15 years.


Me? I'd like a civil libertarian who represented criminal defendants and little guys injured by big guys.  Someone who did it with passion.  Someone who did it without making too much money at it.  Someone who did it because it was right.  There's a marginal chance such a person, if chosen carefully, could actually get confirmed by the Senate.  There's not a hope in hell such a person could get nominated.


So I ask again,

Is there anyone other than she, her family, her friends (and maybe His Barakness) who's actually excited about the prospect of Justice Kagan?

The answer, of course, is a resounding "NO."  That's why Obama nominated her.


And that's a damn shame.