An "if" too far, alas

You've probably seen around the internet where Joe McGinniss (Fatal Vision etc.) has rented the house in Wasilla next to his next book subject, Sarah Palin. Todd Palin went over and bitched McGinniss out, Palin went off on McGinniss on her Facebook page, and all the flying monkeys were unleashed.

McGinniss talks about the experience.

"I would term this hysterical," said McGinniss. "The mayor said to me, when I chatted with him in his office a couple of days ago, 'You know, if Sarah had the brains that we like to think she has, Todd would have come back and said, do you know who's living next door? This son of a bitch McGinniss who wrote that Portfolio piece. He's writing a book about you. Sarah should have baked a plate of cookies, and come around the fence, and said hi, and laughed about this.' I would have happily accepted a cookie, and then in my book I would have had a lovely scene about how gracious she had been." McGinniss sighed. "She is, in many ways, a very gracious person." * * *

"Look, this is a pain in the ass for them," he said. "I understand that. If I were her, I'd be upset. I'd be annoyed. But I'd be an adult about it, and I would figure out, okay, how can we resolve this in a way that's not going to make into something that everybody gets obsessive about? By being here I have learned things, and I've gotten an insight into her character, into her ability to incite hatred, that before I only knew about in the abstract."

More and more, this woman reminds me of the presidential candidate in The Dead Zone. Except I'm not sure even Stephen King could've dreamed her up.

A miscarriage of justice

Carefully timed for late Friday release on Memorial Day Weekend is the Fifth Circuit's unbelievable decision in Comer v. Murphy Oil, the "global warming caused Katrina" case that, rather surprisingly, obtained a panel decision reversing the district court's motion to dismiss. We had previously noted the case's going en banc, with only 9 judges hearing the case and 7 recused.

Well, since that time, another judge has found it necessary to recuse, depriving the en banc court of a quorum to hear the case. What's the result? The appeal is dismissed!

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

The rules provided for vacating the panel decision merely pursuant to the forthcoming en banc decision. The result, of course, is to dismiss an appeal that's been decided on the merits for appellants, through no fault of their own, not on the merits, but on a strained and suspicious hyperliteralistic application of the court's own rules.

If the SCOTUS doesn't grant cert here and reinstate the panel's decision -- which, remember, merely allows the case to proceed to discovery -- then it's going to be very difficult to avoid the conclusion that Americans can't sue Big Oil and win. And that the Fifth Circuit has some judges who are unclear on the concept of "justice."

... The ever-diplomatic Howard Bashman describes the decision as "curiouser and curiouser." Indeed.

... N.b. that the court dismissed the case on a hyperliteral interpretation of a local rule. But the five judges voting to dismiss -- Jolly, Smith, Clement, Prado, Owen -- chose to ignore another rule:

FRAP 2. SUSPENSION OF RULES
On its own or a party’s motion, a court of appeals may — to expedite its decision or for other good cause — suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

None of the FRAP are binding on the court where good cause exists, which if it ever existed, it exists here. (Rule 26(b) merely forbids the court to extend time for filing an appeal beyond what Rule 4 allows.)

Just when you think you can't be any more appalled, you're more appalled. What a sorry stunt.

"Detainees who cannot be prosecuted"

Doubtless heartened by the D.C. Circuit's endorsement of its lawless conduct, Obama's administration has issued a "National Security Strategy":

The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted--but pose a danger to the American people--we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.

What we really need, it seems, is a CONSTITUTIONAL SECURITY STRATEGY, because the Constitution is obviously in a helluva lot more danger than the United States is.

"Clear, defensible, and lawful standards" for holding prisoners who "cannot be prosecuted"? Sounds like the fucking Soviet Constitution.

Via Scott Horton, who observes:

This is about cases in which the United States has no meaningful evidence that would link the person held to a terrorist group. It looks like an endorsement of indefinitely detaining persons against whom the United States has no evidence of criminal conduct but whom it “suspects” may constitute a threat, usually based on the say-so of the intelligence service of some tyrannical but allied foreign power. That is the very definition of tyrannical conduct, yet here it is perversely touted as an example for emulation by others.

I wonder if I would rather have Bush in power than Obama at this point, because then maybe the Democrats would get around to standing up to this crap.

Didn't answer any questions about Kagan's sexuality, therefore

Though he declined to be interviewed, my favorite SCOTUS justice of my lifetime, David Souter, is featured in a little AP item.

For Souter, retirement from the U.S. Supreme Court last June has not meant retirement from the bench.

At the age of 70, he is unwilling to hang up his robe and is hearing cases one or two days a month for the 1st U.S. Circuit Court of Appeals in Boston, which handles federal appeals for Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. * * *

By retiring at age 69, he became one of the youngest judges to leave the bench. Friends say he never enjoyed Washington - he once said he had "the world's best job in the world's worst city."

So they are not surprised by his decision to return to the 1st Circuit court, where he had served just one day before his nomination.

"It's something he always told us he was going to do," said Norman Stahl, a senior judge on the court who has been friends with Souter for 40 years. "He loved the work (of the Supreme Court), but he was never a fan of living in Washington, so he's enjoying being home and sitting here."

* * * Mark Tushnet, a Harvard Law School professor who has written extensively about the Supreme Court, said Souter is working more often than most retired justices. He said Souter may enjoy the difference in the appellate work compared with the Supreme Court. * * *

Souter returned to the appellate court in January. It is close to his home in New Hampshire, where earlier in his career he served as state attorney general, Superior Court judge and associate justice of the state Supreme Court. A bachelor, he recently moved from his family's 200-year-old farmhouse in Weare to a more modern home in a suburb of Concord.

He also has been working on a New Hampshire task force formed to improve civics education in public schools. In a speech to the American Bar Association last year, Souter warned that the failure of many Americans to understand how the government works poses a threat to the ability of the nation's judges to remain free from political pressure.

"There is a danger to judicial independence when people have no understanding of how the judiciary fits into the constitutional scheme," Souter said.

Friends say Souter is spending his spare time settling into his new home and trying to organize a massive book collection.

Sounds like the ideal retirement.

Courage, lies, and David Bernstein

David Bernstein finds it useful not to enable comments to his posts on Israel, possibly because that assists him in making stuff up without being called on it.

Most recently, he joins the attack on Peter Beinart's NYRB essay on "The Failure of the American Jewish Establishment." Claiming to summarize Noah Pollak's rebuttal, DB writes:

Beinart claims that he is engaging in an act of courage by criticizing Israel and the American Jewish establishment, but nothing is more trite, and better for one’s career in left-wing circles, than to be a Jewish liberal/left intellectual publicly attacking Israel.

That this is not an incidental point is indicated by DB's post title: "Peter Beinart - Trite, Not Courageous."

Three problems here:

(1) Beinart never says that in the essay.

(2) Pollak's claim that Beinart says that is therefore indirect at best:

Beinart suggests a great burden to bear in becoming an Israel critic: "The hardest thing I've ever written," he said in announcing his essay on his Twitter feed. * * * In Beinart’s work, we are not witnessing an act of courage but rather a spectacle of conformity.

See? That's how it's done. You move from Beinart's saying it's "hard" to write the essay, to a denial that it's "an act of courage," without having quite asserted that Beinart claimed to be courageous. But of course, DB is not constrained by the facts.

(3) Beinart has expressly rejected any claim to be "courageous" in writing his essay (as relayed by Jon Chait, who's been quite critical of the essay):

We live in the U.S., not Iran or Zimbabwe. There's very little threat of physical--let alone state-sponsored--violence for anything you say politically. So in a global context, it's hard to say anyone in the U.S. is really brave no matter how unpopular their views. With that caveat, I think there is something a little brave for a member of Congress or an administration official to criticize AIPAC or criticize Israel harshly because it could end their political career. Let's just imagine that a Senator or Cabinet Member said what Barak and Olmert have said about Israel being on its way to being an apartheid state if it doesn't give back the West Bank. That would be a serious career-threatener. For a journalist/pundit, however, it's completely different. In the press, criticism--even harsh criticism--of Israel is common, and in fact, I think in the blogosphere it is almost becoming the norm.

Nor, it seems, does a law professor have to be "brave" to simply lie about what other people write.

... DB backs down after an e-mail from Beinart, though he doesn't change his post title. TBA remains unclear why DB felt impelled to manufacture something untrue that required only good-faith reading, not an e-mail from the author (Intentional e-Fallacy?), to spot as untrue.

The power of Pelosi

Matthew Green has an interesting post analyzing in what respects Pelosi's accomplishment in the healthcare bill was, and wasn't, remarkable.

That's right. Puppies. The puppies of Justice.

Monday's blogging is handed over to WWTDD:

And here’s the video of Lindsay in court this morning. All you need to know about how shitty and useless the justice system is in LA can be summed up by the fact that there’s a fucking puppy calendar on the wall of the courtroom.

It’s a calendar. With pictures of puppies.

There’s a painting called “Justice and Divine Vengeance Pursuing Crime”, and it shows two angels, one with a big fucking knife in his hand, hunting down a criminal (here).


It was commissioned to sit behind a judge's bench in his courtroom in Paris. But the puppy calendar is pretty good too. I think they send the same kind of message. Especially October, because there’s a beagle in a little police outfit.

Could "Tyler Durden" be an ... art history major? Because that would certainly explain his celebrity-blogger career.

(J/k TD. I'm a philosophy major, and I can't even get anyone to pay me to read my blog .... Title allusion here (run Find on "justice").)

The black hole of Bagram

Hoping that the fourth time is the charm -- having been reversed in Rasul, Hamdan, and Boumedienne -- the D.C. Circuit reverses the district court ruling that alleged "unlawful enemy combatants" at Bagram Airfield in Afghanistan, held without trial for 7+ years, have no right to habeas, and thus presumably can be jailed until they die with no trial.

H/t Adler at the VC, where I posted pretty much all that I can say about this:

These “unlawful enemy combatants” have been held for 7 or 8 years without being tried for whatever “unlawful” acts they supposedly committed. That’s crap, and that’s why habeas relief is proper.

And it’s flat out disgusting that Barack Obama, head of the executive branch and responsible for its acts, (1) appealed this decision, (2) holds these men without trial, and (3) hasn’t moved to repeal the MCA or the DTA. What a sad joke all his rhetoric proves to be.

... Meanwhile, in the UK, we see "Change You Can REALLY Believe In":

A judge will investigate claims that British intelligence agencies were complicit in the torture of terror suspects, William Hague, the foreign secretary, said tonight. The move was welcomed by civil liberties campaigners and may put pressure on the Labour leadership candidate and former foreign secretary David Miliband, who was accused by Hague, while in opposition, of having something to hide. Miliband has repeatedly rejected the accusation and broadly indicated that he or his officials may have been misled by foreign intelligence agencies about the degree of British complicity.

Hague’s remarks appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work. Hague will come under pressure to ensure the inquiry is public and comprehensive. He first called last year for an independent judicial inquiry into claims that British officials had colluded in the torture of Binyam Mohamed, the former Guantánamo detainee and a UK resident. Mohamed claimed that he was tortured by US forces in Pakistan and Morocco, and that MI5 fed the CIA questions that were used by US forces.

Wow, it's as if Hague regarded this, not as a campaign speech, but as a genuine legal and moral imperative.

As Scott Horton notes: "The Obama Administration should watch and learn a bit about how a modern democracy approaches the question of accountability for torture." But it appears that Obama is more interested in protecting his "black hole" in Bagram, precisely the kind of habeas-free zone that Cheney and Addington sought to create at Gitmo for the precise purpose of torturing prisoners. What's Obama's motive? Time will tell.

Happy Jerusalem Day, from the brownshirts in yarmulkes

"A Palestinian woman whose house has been occupied by Jewish settlers argued with Israelis who came to celebrate Jerusalem Day in the mainly Arab neighborhood of Sheikh Jarrah, East Jerusalem, Wednesday. (Ahmad Gharabli/Agence France-Presse/Getty Images)"

WSJ photo blog, via Kleiman.

Libertarianism shows its colors?

GOP Senate candidate Rand Paul -- did Ron Paul really name his kid after Ayn Rand? -- thinks the 1964 Civil Rights Act could use a little touching-up. Like, legalizing racial discrimination by private entities.

INTERVIEWER: Would you have voted for the Civil Rights Act of 1964?

PAUL: I like the Civil Rights Act in the sense that it ended discrimination in all public domains, and I’m all in favor of that.

INTERVIEWER: But?

PAUL: You had to ask me the “but.” I don’t like the idea of telling private business owners--I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant--but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind.

Not just a one-off; see his Maddow interview.

Can I please do the next media interview with Michael Steele? Pretty please? I just have a few questions.

Rand also opposes the Americans with Disabilities Act, FYI.

(And his name is Randal, so I guess calling him Rand is just an affectionate nod to Objectivism.)

... UPDATE: Good news! "I unequivocally state that I will not support any efforts to repeal the Civil Rights Act of 1964."

Well, that's mighty white of him. I trust he won't seek to reinstate the Three-Fifths Clause either.

... Bruce Bartlett, via Kevin Drum:

The libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work. Freedom did not lead to a decline in racism; it only got worse.

There's more.

Or how about the idea of winning WW2 with a wonder bomb?

Certain kinds of truths are convincing only in a narrative. The idea, for instance, that the ring of power should be given to two undersized amateurs to throw into a volcano at the very center of the enemy’s camp makes sound and sober sense, of a kind, in Tolkien; but you would never expect to find it as a premise at the Middle Earth Military Academy.

-- Adam Gopnik, "What Did Jesus Do?" (a review of various recent historical works).

... A good crack, but of course Boromir presents the MEMA point of view at the Council of Elrond, and Gandalf expressly argues that force of arms is doomed to fail.

Garry Wills puts it memorably indeed

Garry Wills has a fine meditation on what one hopes are the death throes of Roman Catholic authoritarianism, the concluding paragraph of which is this:

All those who honor the name of Jesus are engaged in a joint search for the Jesus who will not be found in marble halls or wearing imperial costumes. He is forever on the run. He is the one who said, “Whatever you did to any of my brothers, even the lowliest [elackistoi], you did to me” (Matthew 25:41). That means that the priests abusing the vulnerable young were doing that to Jesus, raping Jesus. Any clerical functionary who shows more sympathy for the predator priests than for their victims instantly disqualifies himself as a follower of Jesus. The cardinals said they must care for their own, going to jail if necessary to protect a priest. We say the same thing, but the “our own” we care for are the victimized, the poor, the violated. They are Jesus.

H/t Sullivan.

I refute him ... thus!

Sometimes a baseball bat is worth a thousand words:

Holmes was a regular customer of T&S Tunnel Express, a car wash in Vicksburg, Mississippi. Benjamin Brooks was employed there. On October 19, 2005, Holmes stopped by the car wash. After washing and vacuuming his vehicle, he walked up to Brooks and called him a “weak bitch.” Brooks responded by beating Holmes with a baseball bat. Holmes died from his injuries four days later.

Holmes v. Campbell Props., Inc. (Miss. Ct. App. May 18, 2010). Holmes's widow was unsuccessful in her premises-liability suit against the car wash; other than a brief mention of Brooks's criminal trial, nothing on what befell Brooks in the criminal justice system. "Asked and answered" is I believe an evidentiary objection, not an affirmative defense.

... It seems Brooks got 20 years. Also, it was an aluminum bat, which it seems really is the dangerous kind -- Brooks had only one arm!

He feels their pain (and possibly their womenfolk)

OTB reports that Haiti is now effectively governed (if not "governed effectively") by a UN Commission headed by Bill Clinton.

Seems like a fitting career move for America's first black president.

An old Onion article gives a good suggestion for the presidential uniform:



(Post entirely cribbed from TBA comment at OTB post. Had to get that picture in.)

Dumb-as-a-rock Repub pol records abstinence video with his mistress

No, really:

Rep. Mark Souder (R-IN) had an affair with a part-time staffer named Tracy Jackson, Fox is reporting. Jackson played the role of interviewer for a Souder Web video show on the issues of the day -- including one on the value of abstinence. * * *

In the November 2009 abstinence video, Jackson introduces Souder this way: "You've been a longtime advocate for abstinence education and in 2006 you had your staff conduct a report entitled 'Abstinence and its Critics' which discredits many claims purveyed by those who oppose abstinence education."

I haven't watched the video; evidently, it's not terribly persuasive.

Souder, having consulted with his family (and Ms. Jackson?), appears to be resigning, perhaps the better to practice his motivational speaking skills.

... At his soon-to-be-defunct House website, Souder's press releases include "opposition to Democrat gay-rights bill" and, yes, "Souder Defends Abstinence Education at Biased Hearing":

“The fact remains that the only fully reliable way young people can protect themselves from pregnancy or STDs is by abstaining from sex until in a committed, faithful relationship with a partner who is also free of STDs,” Souder added. “Abstinence education is a medically-accurate, age-appropriate method that promotes character, healthy relationship-building skills, and self-worth to young people.”

He could have made a stronger case by using himself as an example of what happens in the absence of said education.

... Also in the busy world of abstinence education, there's this:

Bristol Palin to charge tens of thousands for speeches on how to avoid teen pregnancy

... In case you were pitying Souder, see this:

Souder frequently meddled with CDC research into at-risk behavior, and made life difficult for medical researchers of teen pregnancy and sexually transmitted disease. For example, in March 2004, Souder hauled Dr. Jonathan Zenilman, a former C.D.C. officer and S.T.D. specialist at Hopkins who happens to be my father, before his committee and proceeded to lecture him on the sins of condoms and sex outside of wedlock and its liberal enablers. * * *

Souder ultimately responded by saying that teen sex needs to be aggressively confronted, like date rape, because out-of-wedlock sex always leads to pregnancy and ruins lives.

Batting .500 so far, I must admit.