Saturday, March 31, 2012

SCOTUSblog overreacts just a tad

Tom Goldstein, the force behind the excellent SCOTUSblog, has a post severely criticizing the RNC for creating the ad embedded below, which uses the audio of Solicitor General Donald Verrilli's rather infamous stumbling at the beginning of his argument in defense of the individual mandate:

Goldstein's criticism is that the audio is "doctored" because it plays the sound of Donald Verrilli drinking ice water and saying "excuse me" twice, when in fact he only drank ice water and said "excuse me" once. According to Goldstein, this is pretty much as bad as inserting "someone with the same voice as Verrilli saying, 'Mr. Chief Justice, we believe the individual mandate should be upheld because we hate the Constitution?'"

As political ads go, this strikes me as pretty tame. It's perhaps a bad sign when I have to use one of my parenting catchphrases here: "Toughen up."

But Goldstein does make a pretty good point, I think, when he argues that this kind of manipulation for political purposes is why the Supreme Court resists every effort to allow oral arguments to be televised:
the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings.  What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments?  Nothing at all.
Indeed, one needn't look far to find precisely that. For example, at one point Justice Scalia said that the young, healthy people who choose not to buy health insurance at current prices are "not stupid," the point being that they are making a rational calculation (perhaps right, perhaps wrong) that they would pay more in health insurance premiums than they are likely to pay for health services, so insurance is a bad deal for them. This is uncontroversial; it is the one of the main reasons that the law tries to force everyone to buy insurance: so that insurance companies can make profits while charging lower prices.

But in more than one article this statement has been twisted around to an assertion amounting to "if you are young and you pay for insurance, Scalia finds you 'stupid.'" Yikes.

Then there is this, from the New York Times:
But then came Justice Scalia’s now famous invocation of broccoli. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Justice Samuel A. Alito Jr. chimed in, asking Solicitor General Donald B. Verrilli Jr. to answer “as succinctly as you possibly can.”
From this account, you would conclude that Justice Alito piled on and demanded a succinct answer to the famous and supposedly tendentious "broccoli question." But he absolutely did no such thing. Scalia raises the broccoli issue on page 13 of the transcript (and the 12-minute mark of the audio file):
Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Mr. Verrilli gives his answer, and then there is some discussion. Broccoli is next mentioned on page 17, by Chief Justice Roberts:
That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either.
Shortly thereafter, the argument moves on to other variations on the theme.  Alito never asked a question during the broccoli part of the argument. Much later, Mr. Verrilli sets out what he (correctly, in my view) believes to be the fundamental question:
The question is, is there a limit to the authority that we're advocating here under the commerce power? And the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases.
It is at this precise point, after Mr. Verrilli raises the topic of what limit there is to the commerce power, that Justice Alito speaks:
Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? 
This is page 43 and the 45:30 mark of the audio file—a full 33 minuttes after Scalia had the gall to mention broccoli!

After all that, I urge you to go back and read the excerpt from the New York Times article and conclude for yourself whether the false impression it creates is more or less egregious than the false impression created by the RNC ad.

Anyhow, those are just a couple of examples. I've come across many other distortions from people who should know better, but I haven't the stomach to go back and find them.

Friday, March 30, 2012

Inflammmatory stupidity loses again.

Now that the Obamacare oral arguments are over, America can get back to asking questions rather than listening to nine middle-aged/old people ask questions.  One question on the minds of many, whatever happened to Andrew Shirvell?  We did a fair number of posts about him in the fall of 2010 but since then we have not done any. 

"Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system."

Says Jonathan Chait.

What do you think, Mr. Gillette? Are you that cynical?

A litigator's nightmare

As the Proof & Hearsay blog reports, the Wisconsin Supreme Court today suspended two lawyers—Joe Sommers and and Paul Humphrey—for 30 days each. The suspensions arise out of their conduct in a single criminal case in which Humphrey was the prosecutor and Sommers was the defense attorney.

We civil litigators are used to cases getting kind of ugly, with accusations of discovery abuse and threats of sanctions thrown around with abandon. But my impression (based partly on a short stint as a city prosecutor) was that things were usually a little more civil (ha ha) among criminal lawyers. Apparently not.

Although each lawyer received the same punishment, their offending conduct was quite distinct.

The prosecutor, Mr. Humphrey, was alleged to have withheld evidence (some photographs) and then to have lied about it in an affidavit and in court. Mr. Humphrey denied the accusation, claiming that he did "make available" the photographs, but that Mr. Sommers did not avail himself of the opportunity to receive them.

Mr. Sommers's suspension, on the other hand, is based on outrageous in-court conduct and statements. The statements are quoted at length in the court's opinion in paragraphs 45 through 53. In essence, he leveled an accusation that the case had been "orchestrated" between the judge and the prosecutor, and, in open court, called the proceeding a "kangaroo court." He made these accusations, apparently, while yelling loudly enough that at one point nine court bailiffs ran into the courtroom assuming that some sort of altercation was occurring. Eventually, the trial judge had enough:
Can you stop, please, Joe?  Joe Sommers listen to me.  I don't think I've ever done this across the bench before.  I have read this file twice.  This is not the first time that it appears that you're an attorney that's out of control.  The record reflects that.  And it clearly does today.  Oh, it isn't going to reflect the amount of volume that you had or how totally out of control you were, that it required six, seven, eight bailiffs in here to see what was going on to protect the dignity of the Court which diminished entirely with your outrageous demeanor.  
. . .  
I understand passion.  I've seen many of the defense attorneys that are sitting here passionate -- passionate about what they do.  They don't react in the manner that you just did.  They don't -- They tend to let go.  They tend to make their case.  They tend to make their motion, and if they lose it, they know there's an appellate route.  There is a way to get someone to review this.   
I seriously question whether you've got yourself together, Joe Sommers.  I'm sorry.  But you are not in control.  I am very fearful of going forward with a jury, it's almost a certain mistrial.  It is almost impossible to get you to stop talking, and there was no stopping you minutes ago when all those bailiffs -- there was no stopping you, nothing I said or could have done.  
. . .  
And I'm trying very hard, very hard to be fair under what I consider extraordinarily difficult proceedings today.  Very difficult.   
I -- I'm just amazed at how out of control you have become.  And today kind of the last nail in the coffin, so to speak, is when you tie me into the conspiracy.  And you said oh, no, it's not quite a conspiracy, you have a good record, Judge, for all these years, but this morning there was an orchestration with these people here . . .
Of course, it wouldn't be a Wisconsin Supreme Court opinion without childish sniping between the justices. Yes, even in disciplinary cases decided in per curiam opinions. The impetus for the infighting this time is Justice Prosser's dissent in the Humphrey case, in which he argues that the suspension is an inappropriate penalty for what he terms "semantic disputes" and that a public reprimand would be more appropriate. He also objects to imposing the full costs of the proceeding against Mr. Humphrey.

But he goes further, stating that the circumstance of the case—particularly that it was tied to the case against Mr. Sommers, even though the disciplinary matters were fully discrete—were "irregular" and "seriously undermine the confidence in the in the lawyer regulation system." Among his specific complaints is that Humphrey was left "twisting in the wind" for three-and-a-half years while the Supreme Court decided the Sommers case. The underlying conduct occurred in 2004; oral argument at the Supreme Court was in 2008. The opinion came down today.

To Chief Justice Abrahamson, Prosser's dissent is full of "storm and fury and nasty insinuations about the court's actions." She admits that the case "took too long" but caustically rebuts Prosser's assertion that there was anything in the case amounting to an "irregularity" that could call into question the legitimacy of the lawyer regulation system.

On the face of it, giving both Sommers and Humphrey the same 30-day suspension seems to approach an abdication of judgment, given that Sommers's in-court comments are among the most outrageous open-court accusations I've ever heard leveled against a judge by a member of the bar. But that's debateable, I guess. What is not debateable, I think, is that the delays in this case—eight years in total, three-and-a-half years between oral argument and opinions—amount to a miscarriage of justice. Even after the Sommers case was argued in 2010, it took the Supreme Court 16 months to issue these opinions. That is just ridiculous. The Wisconsin Supreme Court has to get its act together.

Thursday, March 29, 2012

Thanks for the music Mr. Scruggs.

Earl Scruggs has died at the age of 88.  May he rest in peace.

The Importance of a Limiting Principle

During oral argument in the Obamacare case, one of the most heated issues was whether the individual mandate is consistent with any "limiting principle" of Congress's power under the Commerce Clause. Libertarian opponents of the mandate argue that there is no such limiting principle, while supporters of the law argue that there is.

A third group, however, seems to think that this talk of a limiting principle is nonsense. For example, Slate blogger Matthew Yglesias asks "What Is The Limiting Principle Of The Taxing Power?":
Congress could, if it wanted to, completely vitiate economic freedom purely through the tax code. You would impose a statutory rate of 100 percent and then create deductions for the stuff Congress wants you to buy—houses, health insurance, broccoli, whatever. . . If a political consensus exists that Congress wants to financially penalize non-purchase of broccoli, Congress will find a way. 
His argument is that the search for a limiting principle to the commerce power is pointless because Congress's other powers, such as the taxing power, have no limiting principle.  In other words, Congress can already do what it wants, so objections based on federalism and liberty are hollow.

This is incorrect. Congress could surely use its taxing power to accomplish all sorts of economic goals in the way that Yglesias suggests. But there is a clear structural limit to Congress's taxing power: the power to tax is limited to the power to take people's money away. The power to tax is not a power to directly regulate behavior at all. It is not a police power.

The commerce power, however, is a general police power to regulate any behavior with a substantial effect on interstate commerce. For example, Congress "regulates" the possession of controlled substances in interstate commerce by imprisoning people for possessing them. Thus, if Congress has the power under the commerce clause to mandate that people buy health insurance, it has the power to imprison them for failing to do so. (So far, it has chosen only to fine people.) The end result is that if there is no limiting principle on the commerce power—if the simple act of being alive is a commercial act—then Congress has the power to imprison anyone for anything. In other words, a general police power.

It is uncontroversial that the constitution does not grant Congress that kind of unfettered police power. Accordingly, the lack of a limiting principle works as a reductio ad absurdum, and the conclusion is that there must be a principled limit on the kinds of behavior that Congress can regulate under the Commerce Clause.

Laughing at Obamacare: a final tally

The morning and afternoon sessions of the Supreme Court's hearing on the constitutionality of Obamacare are done.  The morning transcript is here and the afternoon transcript is here.  For reasons that should be obvious given my last post, I will not predict which side won. 

We will, however, continue our coverage over whether Justice Thomas spoke at the hearing (he did not) and whether there were any laughs at the hearing (there were).  More on that after the break.

Wednesday, March 28, 2012

If it is so obvious that Obamacare is doomed, why do they bother with a third day of hearings?

I first started reading Slate when I was in law school.  I don't recall how I found out about it, but the feature that caught my attention was "Supreme Court Dispatches."  The dispatches were a weekly feature that would provide a report on what happened at the Supreme Court oral argument that  week.  Eventually, the dispatches stopped coming out every week and now only come out on well-publicized cases.

I thought about the Supreme Court Dispatches yesterday when the various media reports came out about how Obamacare is doomed based on yesterday's oral argument.  For example, CNN legal analyst Jeffrey Toobin says that the individual mandate is "doomed" based on how the oral argument went.  Ezra Klien of the Washington Post suggested that the apparently inevitable striking down of Obamacare might not have happened if Justice Kagen was still Solicitor General.

Predicting how the Supreme Court would rule based on oral argument was a frequent part of the Supreme Court Dispatches.  It was also frequently wrong.  For example, when reporting on Fitzgerald v. Barnstable School Committee et. al., Dahlia Lithwick predicts that the poor kindergartner who was sexually harassed on a school bus is going to lose.  Then the opinion came out and the student won in a unanimous opinion.  Ms. Lithwick's colleague, Emily Bazelon, wrote a piece predicting that the employee in CBOCS West, Inc., v. Humpries, would lose his retaliation claim because the Supreme Court's "right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws."  The Supreme Court ruled 7-2 in the employee's favor.  Ms. Lithwick predicted that the "the most business-friendly Supreme Court in decades" would rule for big business in Wyeth v. Levine.  Instead, big business lost a 6-3 decisionMs. Lithwick also predicted that historians would use the case of Safford Unified School District #1 v. Redding as an example of  "not getting it" because the oral argument so badly for the student who was subjected to a strip search because she brought prescription-strength ibuprofen to school.  The student won a 8-1 decision.

The point of this post isn't that Ms. Lithwick, Mr. Toobin, and Ms. Bazelon are terrible at predicting what the Supreme Court will do (at least that is not the intended point).  Instead, my point is that it is silly to try to predict how a case will come out based on oral argument and people should ignore any predictions based on oral argument.  All oral argument does is demonstrate that some of the justices like to watch lawyers respond to tough questions (and make jokes).  Fans of Obamacare (the statute, not the word) should not despair that the law will be struck down and foes of Obamacare should not be too encouraged by the fact that the Solicitor General faced some tough questions.  I am biased, but I still think the best prediction on the outcome of the case was made almost two years ago.

Tuesday, March 27, 2012

And the other shoe drops...

A couple of weeks ago I posted about how the University of St. Thomas School of Law had replaced the William Mitchell College of Law as the second ranked law school in the Twin Cities in the US News best law school rankings.  The post noted that St. Thomas, despite taking its data accuracy "very seriously," had over reported by more than 200% the number of St. Thomas graduates who were employed at graduation.  It wasn't clear to me whether correct reporting would have ranked William Mitchell above St. Thomas.

We don't have an answer to that question but the National Law Journal reports that US News has decided to move St. Thomas into the "unranked" rankings.  Unranked schools are the lowest 25% of American Bar Association accredited schools. An asterisk will appear next to St. Thomas's entry to explain the change.

Unsurprisingly, Thomas Mengler, the dean at St. Thomas, is not very happy about this.  Dean Mengler wrote a letter to US News complaining that in previous years schools did not suffer in the rankings until the year following the discovery of inflated numbers.  I have no idea why a worse rating next year is better than a worse rating this year but assume that Dean Mengler knows what he is doing. 

That said, Dean Mengler really isn't concerned about the punishment that St. Thomas receives.  He is more concerned that future accidental mistakes of this nature will not be uncovered because of the precedent set by US News.  Dean Mengler writes, "I fear your decision will serve as a disincentive for others to self-report errors."  That may be true.  However, a steep punishment might also serve to make folks double check so that the numbers are accurate the first time.  In any event, it is nice to see the Dean take time out from his immediate problem and instead focus on how the punishment hurts the punisher.

Monday, March 26, 2012

Borat Swimsuit = Prior Art

Someone tried to patent the famous Borat swimsuit as a "scrotal support device," but the Patent Office rejected the application based on pictures of Sasha Baron Cohen wearing the "device":

Sometimes the system works, I guess.

H/t: IPWatchdog

Obamacare oral argument at the Supreme Court

UPDATE DAY 2:  The transcript of day 2 of the oral argument is here.  Justice Thomas did not speak.  Pages 41 and 87 of the transcript are where Justice Scalia makes jokes that make people laugh.  So, Justice Scalia doubled his laugh total from day 1.  On page 88, Justice Breyer gets into the act and makes a joke.  For my money, Justice Kagen steals the show with an amusing bit of self-deprecation on page 90. 

The Supreme Court posted the transcript of the first day of the oral argument about whether Obamacare, to use a word Mr. Torvik likes, is constitutional.  The transcript is here. The Reader(s) of Thursday's post about Justice Thomas may be interested to know that Justice Thomas's silent streak remains alive and well.

Also alive and well is Justice Scalia's apparent campaign to get a laugh at every oral argument.  On pages 15-16 of the transcript, Justice Scalia tried to get a laugh by pointing out that federal court judges are stupid.  The justices were asking questions about what particular rule may, or may not, give them jurisdiction to hear the case.    Justice Scalia said,
what's going to happen is you're going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.
Note that the transcript does not contain the word "laughter" after Justice Scalia's observation.  From this, I take it that this joke went over like a lead balloon.  Perhaps the joke went over poorly because people don't know whether laughing about lower court judges is appropriate at the Supreme Court.

Justice Kennedy, possibly unhappy that the halls of the Supreme Court were not ringing with laughter, then made a joke and got a laugh on page 36 of the transcript.  Justice Ginsberg was asking Solicitor General Donald Verrilli about the government's interpretation of the Anti-Injunction Act when Justice Kennedy cut in,
JUSTICE GINSBURG: So -- so, you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.
GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue. 
JUSTICE KENNEDY: Don't you want to know the answer?
Justice Scalia, possibly not wishing to be outdone, then made another run at getting a laugh on page 40. The justices were asking the solicitor general whether the injuction at issue in a previous case was an injunction prohibiting the government from collecting a tax or if it was an injunction of the taxpayer preventing them from paying the tax. The exchange goes:
GENERAL VERRILLI: Well, in fairness, Justice Breyer, the United States did intervene in the -- in the Davis case and was a party, and so -- not as far as I'd like, I guess, is the answer.
JUSTICE SCALIA: Don't do it again, because I think that goes too far. I don't think that's restraining the collection of a tax. It's restraining the payment of a tax. (Laughter.)
JUSTICE SCALIA: You don't want to let that bone go, right?
I think we can all agree that jokes like these make it pretty clear that Justices Kennedy and Scalia should curtail their plan to hit the road and become a comedy duo in the tradition of Rowan and Martin.  The jokes might also be support for the idea that lawyers are simply not very funny.

Terrible arguments in favor of Illinois's "wiretapping" statute

Illinois's unconstitutional "wiretapping" statute makes it a felony to make an audio recording of police officers going about their business in public spaces. A bill had been pending in the legislature to fix this before the Illinois Supreme Court gets around to it. That bill, however, has been killed.

The State Journal-Register article quotes three legislators making three different arguments against the bill. Each of the arguments is ridiculous.

Ridiculous argument #1:  Representative Jim Watson, one of the opponents of the bill, had this to say:
Why should [the police] have to go get a court order to record these people when these people can record them?
This is just hogwash. Police have every right to record the activities of citizens going about their business in public. And they do so all the time. For example, as Radley Balko points out, many cops are equipped with microphones during arrests. No warrant required.

Ridiculous argument #2: Representative Jim Scacia says that the bill opens the possibility for citizens to alter audio recordings of interactions with police to make them look bad. If that's truly a concern, here's an idea: make it a felony to alter audio recordings of interactions with police to make them "look bad." My guess is that if there were such a law it would never be enforced because this never actually happens. Making audio recordings of police officers is perfectly legal in most states. You have not missed the scandal of altered, make-cops-look-bad audio recordings in those states. It doesn't exist.

Ridiculous argument #3: Representative Dennis Reboletti says,
We should not be creating an atmosphere where people enter this ‘got you’ mode and try to tape law enforcement, trying to catch them (doing things).
Hmm. A lot of people think that people behave better when they're being monitored. That's part of the point of police departments, in fact. And in a state like Illinois, which has a horrid history of corruption and torture by police, you might think that some "gotcha" citizen reportage might be welcomed.

But even if you accept Mr. Reboletti's dubious premise that citizen recordings of police officers should be discouraged, it doesn't follow that such conduct should be criminalized and made a felony. For example, the goal of discouraging gotcha recordings could be achieved by making these kinds of recordings inadmissible in court. You could even make the recordings contraband. These would be laws only a Nazi could be proud of (and I hate Illinois Nazis) but at least they would accomplish the stated goal without putting people in prison for pressing "record" while standing on the street corner.

In any event, Mr. Reboletti's argument is ultimately disingenuous because it is already legal to take pictures of and make video recordings of police officers "doing things" in public, as long as there is no audio. If the goal is to discourage an atmosphere where citizens can make a record of cops' public activities, there is no justification for this discrepancy.

All of this goes to show that the law is unconstitutional. No one can come up with a compelling state interest that this law is narrowly tailored to address. No one can even come up with a non-ridiculous argument. The law is a disgrace.

Friday, March 23, 2012

Chuck Woolery is an idiot...or is he?

For people of a certain age, a sickday from school wasn't complete unless one watched the latest episode of "Love Connection." "Love Connection" was, compared to today's reality television, a naive show that hooked people up on blind dates and then had one of them sit down and discuss the date with the show's genial host Chuck Woolery. Mr. Woolery was also the original host of "Wheel of Fortune" as well as other game shows.

If you have ever wondered if Mr. Woolery is an idiot, the Huffington Post may have your answer.

I like "Obamacare"

I call the health insurance reform legislation that President Obama spearheaded "Obamacare." I prefer this to any of the alternatives because it is simple and everyone knows what it means. The alternatives—such as "PPACA" (short for the official name of the legislation, which is "Patient Protection and Affordable Care Act") or "ACA" (short for "Affordable Care Act" which is short for PPACA)—are all some combination of unwieldy, opaque, pedantic and propagandizing.

Some people object that "Obamacare" is negative propaganda. I disagree, but I've still felt a little sheepish using it knowing that the pedants object. No more. For today I received an email from Jim Messina, the campaign manager for Obama's reelection campaign, entitled "I like Obamacare."

In it, Mr. Messina urges me to "Let everyone know: I like Obamacare."

I don't take many hard policy positions on this blog, and I'm not prepared to take such a firm stance at this time. (Plus, the natural follow-up questions if I were to take such a position would be, "Well, do you like like Obamacare?" and "Do you want to marry Obamacare?"—which would be very uncomfortable to answer.)

I am, however, prepared to say this: I like "Obamacare." The word. And since the Obama administration has now officially endorsed it, I think it is something everyone in this country, whether red-stater or blue, can get behind.

Thursday, March 22, 2012

Silence is...?

Last month, the New York Times ran an article about the fact that Justice Thomas has not asked a lawyer a question during oral argument since 2006. The gist of the article is that Justice Thomas's refusal to ask questions is bad. It also seems to suggest that Justice Thomas has not been entirely forthcoming about why he doesn't ask questions because his reasons as to why he doesn't speak at oral argument are "various and shifting." The premise of the article is the proverbial dog that won't hunt. Justice Thomas's silence isn't bad and the reasons he offers for his silence are not "various and shifting." They aren't even bad reasons.

As to the "various and shifting" explanations, the article cites to three different explanations: (1) Justice Thomas is self-conscious about the way he speaks; (2) he thinks the courteous thing to do is let the lawyers actually argue their case; and (3) he finds it difficult to get a word in edgewise. None of these are bad reasons for not asking a question. Moreover, I note that none of these reasons contradicts any of the other reasons and aren't really "shifting" as most people would understand the term. Items 2 and 3 seem to compliment each other in that some of the other justices ask a lot of questions and Justice Thomas may feel that some amount of time ought to be given to the arguments that the lawyers intended to make rather than just making them answer questions.

Sometimes these questions are not particularly useful. For example, some of the Supreme Court justices use oral argument to tell jokes. Justice Scalia, for example, gets a little over one laugh per argument. It would not hurt anything if there were a few less jokes at oral argument and a few more minutes of lawyers making the argument they intended to make.

In any event, Justice Thomas is certainly correct that his colleagues ask a lot of questions. Mr. Torvik recently posted about the case of Pacific v. Valladollid. The case was a 9-0 decision. This indicates the case was not very difficult or contentious. The transcript of the oral argument is here. The argument portion of the transcript is 59 pages long and three lawyers appeared to argue on behalf of the petitioners and respondents. Out of 59 pages, there are 4 pages where a lawyer isn't asked a question (pages 12, 27, 57, and 60). Some of the pages, for example 8, 14, 18, 24, and 36, are mostly questions. Justice Scalia's one laugh is on page 32. If there are only 4 pages where a lawyer is not being asked questions in a unanimous case, I suspect that there are more questions in cases that aren't unanimous.

Justice Thomas is not alone in thinking that too many questions actually derails an argument. When Eighth Circuit Court of Appeals Judge Donald P. Lay died, the folks at the Powerline blog memorialized him. One of the things the post noted, was an occasion when Judge Lay asked a judge to stop asking so many questions so that Judge Lay could hear the argument that the lawyers wanted to make.

I think that Judge Lay was trying to make the point that while one purpose for oral argument is to get answers that a question the judge may have, another point to oral argument is to give the parties an opportunity to feel like they had their day in court. That is, an opportunity to advance the facts and/or legal points that are important to their client. Justice Thomas's second explanation seems to agree with this.

I have not argued in front of the Supreme Court. However, I have argued in front of the appellate courts, which have 3 judges asking questions. I have had the experience of realizing that the questions I am getting aren't designed to test the strength of my argument. Instead the questions are designed to show me that a particular judge isn't going to accept my argument. That type of questioning doesn't have much, if any, utility. If the main point of a question is just to show me that my client is going to lose, I would just as soon wait until the court issues an opinion on that topic. In that regard, Justice Thomas's decision not to ask questions is correct.

Wednesday, March 21, 2012

Servers in the clouds

The Pirate Bay—a torrent hosting website that allows people to freely download all manner of electronic files, including software, music, and movies—is responding to efforts to crack down on its operations in Sweden by hatching a plan to put its servers on GPS-controlled flying drones flying around in international airspace, where no law can touch them.

Quite the hack.

Are there also Kumbaya orders?

Judge Fred Biery, the Western District of Texas judge who got Newt Gingrich angry, has issued a "Non-Kumbaya Order."  It is here.  I did not know such things existed.  From the order it does not appear that either party made a motion for a non-Kumbaya order.  Getting to issue non-Kumbaya orders is yet another previously unknown benefit of being a judge.

Part of the Non-Kumbaya Order requires officials from a school district in Texas to apologize to an agnostic student and the student's family over the way the agnostic student was treated.  The agnostic student and family are required to accept the apologies within 10 days of receiving them. 

Some might ask the question, "does ordering a party to apologize as part of a settlement work."  One can imagine that being ordered to apologize might make the apology less than heartfelt.  I do not want to say that it is impossible for an apology to be genuine in such circumstances but I have never seen it.  I once saw a heartfelt apology at a deposition but it was not court ordered.

Shortly after the case in question settled, the superintendent of the school district called it a "witch hunt."  Given that, cynics will be forgiven if they doubt that the school district will offer a meaningful apology.

Tuesday, March 20, 2012

A previously unknown benefit for becoming a judge.

There are a lot of obvious reasons why some lawyers want to become judges.  Here is one that had not occurred to me--the media will let a judge know if the judge has any unpaid traffic tickets.

The Flint Journal broke the story of three Genese County, Michigan judges who collectively had three hundred dollars in unpaid parking tickets.  Two of the judges denied knowledge of the tickets (although someone had paid four dollars toward the balance owed on one ticket) and the third said that, despite the tickets, he had authority to park in a prohibited spot.

As the Journal's followup story notes, two of the three judges paid the tickets within hours of being contacted by the newspaper.  Probably in an effort to avoid further attention being paid to what the Journal obviously sees as some sort of scandal involving public malfeasance.  Attentive readers of the Journal's first article will note that the reporting ends on this dejected note,  "The Judicial Tenure Commission, which "promotes the integrity of the judicial process and preserve public confidence in the courts" declined comment."

I don't believe that I have any outstanding parking tickets but it is comforting to know that when President Obama gets around to appointing Mr. Torvik and me to two of these vacancies, intrepid reporters will be there to make sure all parking-related fines are paid.

Monday, March 19, 2012

More on the First Amendment rights of tobacco companies.

A couple weeks ago, Mr. Torvik posted about a a district court judge in Washington D.C. who ruled that tobacco companies could not be forced to devote the top 50% of both the front and back of cigarette packages to "graphics depicting the negative consequences of smoking."

It appears that while the litigation that Mr. Torvik wrote about was underway, an appeal in the United States Court of Appeals on the same topic was also underway.  While the Sixth Circuit didn't consider the 9 images that were the focus of the D.C., lawsuit, it did address the top 50% issue and found that the government could force tobacco companies to devote the top 50% to graphics depicting the negative consequences of smoking.  The opinion is here.

To Mr. Torvik's point in his post, it does not appear from the opinion that anyone argued that tobacco companies can be compelled to print the graphics because the companies are not entitled to First Amendment protection.

One weird thing about the opinion is that  the author of most of the majority opinion, Judge Eric Clay, also wrote a dissent on  the constitutionality of the color graphic and non-graphic warning label requirement.  One doesn't see that every day.

It never ends at the Wisconsin Supreme Court

Back in August, Mr. Torvik and I each reported on the fact that a special prosecutor investigating the melee between Wisconsin Supreme Court justices David Prosser and Ann Walsh Bradley decided that no criminal charges will be filed. At the time I wrote "One would hope that this decision would allow the justices on the court to stop regularly embarrassing itself."  I was apparently wrong.

As the Wisconsin Center for Investigative Journalism reported on Friday. the Wisconsin Judicial Commission today filed a complaint against state Supreme Court Justice David Prosser over that incident as well as Justice Prosser calling Chief Justice Shirley Abrahamson a "total bitch."  The complaint is here

Interestingly, according to paragraph 13 of the Complaint, Justice Prosser essentially admitted that he touched Justice Bradley's neck. However, Justice Prosser denies that he intended to touch Justice Bradley's neck.  Justice Prosser says his actions were a "total reflex."  Justice Prosser has previously admitted that he called Chief Justice Abraham the name in question.  Since the Wisconsin Supreme Court is the court that hears these complaints, I guess Justice Prosser's coworkers will decide if he is right.

I will let Mr. Torvik inform us whether Justice Prosser's actions actually violate Wisconsin's code of judicial conduct or whether the commission is not, to quote Justice Prosser, "interested in discerning the truth.  It [the commission] has been committed to making a political statement."  I will just stick to pointing out that Justice Prosser's use of phrases like "total reflex" and "total bitch" make it seem like Wisconsin has somehow ended up with a supreme court justice that talks like someone in a mid-90s stoner comedy.

Friday, March 16, 2012


The National Law Journal has a story about one of the four law schools here in Minnesota.  When US New issued its best law school rankings, I quit looking after number 19 as that is where our Alma Mater was ranked.  More astute readers of the rankings noticed that some changes occurred in how the other Minnesota Law Schools are ranked.  Specifically, unlike previous years where the William Mitchell College of Law was the next highest ranked Minnesota law school, this year the University of St. Thomas came in at No. 119 ahead of both William Mitchell at No. 127 and Hamline University which was listed as “Rank not published.”  However it turns out there was a flaw in the ranking.

Thursday, March 15, 2012

Are Republicans responsible for the judicial crisis?

The crisis in the judiciary is not entirely the Senate's fault.

Among the law news last night and today was the fact that the United States Senate has reached a deal that will allow 14 of President Obama's judicial nominations will be confirmed by the Senate.  The Washington Post's coverage of the deal is here

One of the popular themes of the fight over judicial nominations is that Republicans in the Senate are stalling the nomination process as a political move to ensure that President Obama doesn't get to appoint too many judges rather than the underlying qualifications of any particular nominee.  There is, of course, some evidence of this.  As the Post's article notes, each of the 14 received unanimous approval from the Senate judiciary committee but the nominations were still being held up.  Also, the article notes that, "Obama’s judicial nominees wait an average of 93 days to be confirmed, according to Senate Democrats. Republican nominees at the same point in George W. Bush’s presidency averaged a 22-day wait." 

Looks bad for the GOP right? I certainly thought so but then I saw the last sentence of the article.  "There are 83 judicial vacancies, according to Senate Republicans, who urged Obama this week to name his nominees to fill the vacant positions."  Are there currently vacancies on the federal bench for which President Obama has not nominated a successor?  It appears that there are.  According to, a project of the American Constitution Society for Law and Policy, there are forty-four openings on the federal bench without a proposed replacement.  The are listed below.  The number next to the court name is the number of open seat (open gavel?).

District of Massachusetts 1

District of Puerto Rico 1

Eastern District of New York 1

Southern District of New York 4

Western District of New York 1

Eastern District of Pennsylvania 4

Middle District of Pennsylvania 2

Eastern District of North Carolina 1

Fifth Circuit Court of Appeals 1

Middle District of Louisiana 1

Northern District of Mississippi 1

Eastern District of Texas 1

Southern District of Texas 1

Western District of Texas 1

Western District of Kentucky 1

Eastern District of Michigan 1

Seventh Circuit Court of Appeals 1

Northern District of Illinois 1

Western District of Wisconsin 1

Ninth Circuit Court of Appeals 1

District of Arizona 1

Central District of California 2

Northern District of California 2

District of Oregon 1

Tenth Circuit Court of Appeals 1

District of Kansas 1

Southern District of Florida 1

Northern District of Georgia 2

Circuit of the District of Columbia 3

District of District of Columbia 1

This list does not include announced future vacancies. 

While the pace of confirmations should certainly be sped up, it is hard to see how the GOP is entirely to blame for an understaffed judiciary when so many vacancies do no even have a nominee.  More troubling is the fact that President Obama has apparently decided that Mr. Torvik and I are not even qualified to be nominated to the bench in those positions where the President apparently cannnot find anyone else to do the job.  It's almost like he doesn't read this blog.

Wednesday, March 14, 2012

It is political.

Mr. Torvik asks what I think of the efforts by Jane Fonda, Robin Morgan, and Gloria Steinem to have the FCC pull licenses of broadcast radio stations that air Rush Limbaugh’s radio show. My first thought was “who is Robin Morgan?".  According to Wikipedia, Robin Morgan is “a former child actor turned American radical feminist activist, writer, poet, and editor of Sisterhood is Powerful and Ms. Magazine.” It is nice to learn something I new first thing in the morning.

Tuesday, March 13, 2012

"This isn't political."

Jane Fonda, Robin Morgan, and Gloria Steinem think that the FCC should consider revoking the broadcast licenses of the radio stations that broadcast Rush Limbaugh's show:
Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license. In keeping with this obligation, individual radio listeners may complain to the FCC that Limbaugh's radio station (and those syndicating his show) are not acting in the public interest or serving their respective communities of license by permitting such dehumanizing speech. t
They insist that their concern is purely for the public interest, and that "this isn't political."

But some, including Radley Balko, think they might be taking things a bit too far.  What do you think, Mr. Gillette?

I can't help recalling the immortal words of our old buddy Marty: "What is this, Cuba?"

Happy birthday, Mr. Rogers

Fred Rogers was born on this date in 1928.  If this doesn't make you choke up, you are made of sterner stuff than I.

Monday, March 12, 2012

Republicans in the deep South do not "believe" in evolution.

It is a headline that writes itself.  As David Weigel points out in Slate, the folks at Public Policy Polling have published the results of surveys they did in Mississippi and Alabama.  The press release on the surveys is here

Sunday, March 11, 2012

Is it just me ..

or is it getting harder and harder to understand the news these days? Consider this headline form (the one on the bottom):

Friday, March 9, 2012

Advice for bigamists

Bigamists should not use Facebook.  Or at the very least, bigamists should not friend their wives on Facebook.  That is the lesson that Alan O'Neill, a Pierce County, Washington corrections officer is allegedly learning the hard way.  Because of Facebook, Officer O'Neil is accused of committing bigamy.

According to a report in the Tacoma, Washington News Tribune, in 2001 Officer O'Neill (whose last name at the time was Fulk) married a woman the paper refers to as "Wife No. 1."  In 2009, Officer O'Neill stopped living with Wife 1 but neither he nor she filed for divorce.  Although the paper doesn't mention it I assume that it was during the 2001-2009 period that Officer O'Neill and Wife No. 1 became Facbook friends.

According to charging documents cited by the paper, in December 2009, Officer O'Neill changed his last name from Fulk to O'Neill.  Later that month he allegedly married a woman the paper identifies as "Wife No. 2."  Although the paper doesn't mention it Officer O'Neill apparently was Facebook friends with Wife No. 2.

It would be an interesting case of life imitating art if Wife No. 1 discovered Wife No. 2 because she was reenacting the final scene of "The Social Network."  Unfortunately, that is not how Wife No. 1 discovered Wife No. 2.  Instead, Facebook's "people you may know" feature suggested that the two women should be friends because they were both friends with Officer O'Neill. 

Apparently, Wife No. 2's Facebook profile photo was of her and Officer O'Neill standing next to a wedding cake.  Wife No. 1 saw this and called her mother-in-law.  The paper quotes court records as saying that an hour later Officer O'Neil arrived at Wife No. 1's apartment where he allegedly admitted that he and Wife No. 1 were still married in response to being asked if they were divorced.  Officer O'Neill allegedly told Wife No. 1 not to tell anybody about the dual marriages and said he would fix the problem.

It will not surprise anyone familiar with William Congreve to learn that Wife No. 1 did not do as Officer O'Neill suggested.  Instead, Wife No. 1 alerted the authorities and now Officer O'Neill is on unpaid administrative leave as he awaits a March 22, hearing date to answer the charge of felony bigamy.

The paper quotes the attorney prosecuting Officer O'Neill as saying “It’s not the crime of the century, but it is a crime.”  This, of course, could presumably be said of every crime but one.  In any event, Officer O'Neill's troubles are a reminder that when one stops a romantic relationship with someone, one should probably not keep them as Facebook friends.

"It really short shrifts humor, which is critically important to a healthy democracy, I think."


Louis C.K. has bowed out, perhaps yielding to pressure from people like Ms. Haag and Greta Van Susteren.


Louis C.K. will be performing at the White House Radio and Television Correspondents' dinner this year. Mr. C.K. is known for pushing the boundaries of taste in his humor. The boundaries of taste have been on my mind given the recent controversy surrounding a filthy joke forwarded by federal judge Richard Cebull.

Over at the Big Think blog, tasteless jokes are also on Pamela Haag's mind. She criticizes Louis C.K. for his filthy jokes about Sarah Palin (and others) and concludes with the quote in the title above, including her assertion that humor "is critically important to a healthy democracy."

I will just say this: anything that is critically important to a healthy democracy is, by definition, not funny.

Case law quote of the day

"[S]exual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences."

Acuff-Rose Music, Inc. v. Campbell, 972 F. 2d 1429, 1442 (6th Cir. 1992) (Nelson, J., dissenting).

Words to live by, for sure.

Judge Nelson was explaining in dissent how 2 Live Crew's version of "Oh, Pretty Woman" was a parody of Roy Orbison's original, and therefore qualified as "fair use" under copyright law. Although Judge Nelson lost the battle, he won the war: the Supreme Court reversed the Sixth Circuit's decision and essentially adopted the logic of his dissent in one of its most important cases on the fair use doctrine.

Thursday, March 8, 2012

Nice try, Mr. Gillette

Nice analysis, Mr. Gillette.

You're right that an ethics violation is no slam dunk here. But I've got some bones to pick:

1) You consider the possibility that Judge Flannigan's activity was participating in partisan politics against a particular candidate, but argue that "the rule does not prohibit such activities." I think the rule does prohibit such activities. For example, it would be absurd to think that Judge Flannigan (or any judge) could now actively campaign <em>against</em> the retention of Scott Walker without running afoul of this rule. Maybe there are purely textualist arguments against that conclusion, but they're debatable; whether such activity would violate the spirt of the rule, however, is not debatable. It would. Think of it this way: would it have been ethical for David Prosser to campaign against the recall campaign? The answer is pretty obvious, I think.

2) I don't buy your argument from ejusdem generis. I don't think "affairs ... platforms ... or activities" of a political party are all kinds of public activities. Indeed, "activities" seems to be about the broadest word you could come up with. My interpretation is that the list of activities is a poor attempt to specify the entire universe of partisan political activities except for voting. In defense of the drafters, recall elections used to be a rare thing, so they're excused for not thinking of it.

3) To me the question comes down to whether signing this petition is more like voting or more like campaigning. Perhaps reasonable minds can differ. But as you point out, SCR 60.05(a) breaks the tie. The whole point of the prohibition on partisan political activities is to reduce the appearance of bias and impropriety. But signing the recall petition, Judge Flannigan surely engaged in conduct that casts "reasonable doubt on [his] capacity to act impartially as a judge." I'm not arguing that Judge Flannigan necessarily should have recused in the voter ID case; only that his partisan political activity in signing the recall petition in and of itself was improper.

Perhaps I'm too persnickety. I was a federal judicial law clerk, and thus was prevented by the Hatch Act from doing anything remotely resembling a political activity. Voting was it. I got used to it. I kind of enjoyed it, actually, because it gave me an excuse for turning away solicitors. (Now I just say, "no thanks," no matter what the question or entreaty is.) But because of this experience I expect at least judicial officers to act in the same way that I was able to act for those two years. It wasn't so hard.

Mr. Torvik is in for a surprise.

In his post discussing the controversy surrounding Wisconsin circuit judge David Flanagan, Mr. Torvik states that he "be very surprised if Judge Flanagan's action of signing the recall petition did not violate" Wisconsin's code of judicial conduct, Specifically, Mr. Torvik thinks that Judge Flanagan violated SCR 60.06(b)(2) which prohibits a judge from participating in the "affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office." Judge Flanagan did not violate the provision in question by signing the recall petition.

One might say that the recall is the activity of a political party and thus, the judge can't participate. However, such a reading is inconsistent with the principal of ejusdem generis. "affairs, caucuses, promotions, platforms, endorsements, conventions, or activites of a political party" are properly understood to mean public meetings in which members of the public associate themselves with a political party.  The recall petition is not a political party's meeting.  In fact, the recall petition does not identify the people who sign it as being members of a political party. Indeed, the recall petition does not advocate for a particular candidate. Instead, the recall simply says that there ought to be a vote on whether Scott Walker remains governor of Wisconsin. While that might be construed as participating against a particular candidate, the rule does not prohibit such activities. So, if Mr. Torvik is waiting for Judge Flanagan to be disciplined for violating 60.06(b)(2), he will be in for a long wait.

That said, I think that Judge Flanagan may have violated a different provision of Wisconsin's judicial code of conduct. Judge Flanagan signed the recall petition before he was assigned a case challenging one of the centerpieces of Governor Walker's administration, the Voter ID bill. As former Wisconsin Supreme Court justice Janine Geske told the Fond Du Lac Reporter, Judge Flanagan should have revealed to both parties that he had signed the recall petition.  This is because SCR 60.05(a) says that a judge "shall conduct all of the judge's extra-judicial activities" in such a way that the activities do not "cast reasonable doubt on the judge's capacity to act impartially as a judge." I imagine if Governor Walker had known that the judge had signed the recall petition, he might have reasonably doubted that Judge Flanagan was impartial.

As the Reporter article notes, Judge Flanagan's wife was one of the people collecting signatures for Governor Walker's recall. Every married person can think of an occasion when they signed something or attended something just because it was important to their spouse. Maybe that's what happened here and Judge Flanagan just signed the petition to keep peace in the house. If so, it appears that his plan backfired in spectacular fashion.

Finally, the last reason that it seems unlikely that Judge Flanagan will be disciplined for violating 60.06(b)(2), is that the ethics complaint filed by the Wisconsin GOP against Judge Flanagan does not claim that Judge Flanagan violated the provision.  You can read the complaint here.

The New Yorker reviews Prof. Dale Carpenter's new book

In the current New Yorker, Dahlia Lithwick reviews "Flagrant Conduct: The Story of Lawrence v. Texas" by Dale Carpenter, a professor at the University of Minnesota. I am biased—Prof. Carpenter was my favorite professor in law school and I think he is unquestionably a genius—but the review is a rave and the book looks fascinating. I hope to read it next week. I may review it here. If you're lucky.

Wednesday, March 7, 2012

Can a judge sign a recall petition in Wisconsin?

It turns out that the Wisconsin state court Judge David Flannigan, who blocked Wisconsin's new Voter ID law, signed a petition supporting the effort to recall Scott Walker. Republicans are up in arms.

Leaving aside the question of whether this political activity created a conflict of interest in the Voter ID case, was it allowable under Wisconsin's code of judicial conduct? Here's the relevant language from SCR 60.06:
(b) No judge or candidate for judicial office or judge-elect may
do any of the following: 
1. Be a member of any political party. 
2. Participate in the affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office.  
3. Make or solicit financial or other contributions in support of a political party's causes or candidates.  
4. Publicly endorse or speak on behalf of its candidates or platforms.
I would be very surprised if Judge Flannigan's action of signing the recall petition did not violate this code.


Some more in-depth analysis here.

The first rule of jury duty:

No tweeting about jury duty.

A note for any criminally inclined readers who doodle

If you are going to rob someone don't make a doodle of the crime. Ariel Jasso discovered this the hard way when the Oregon Court of Appeals affirmed Mr. Jasso's conviction for robbery and burglary. Mr. Jasso appealed his conviction arguing that the trial court mistakenly allowed the jury to see a doodle he drew of a robbery. The Oregon Court of Appeals helpfully included a copy of the drawing in its opinion. You can see the opinion here.

The drawing is of a masked man holding a gun and robbing a woman. The man says "Gimme tha jewelry bitch" while a thought balloon shows the man thinking "ew". The woman has her hands over her head and appears to be standing on a heart. The opinion doesn't discuss this symbolism. Not to kick Mr. Jasso when he is down but I feel safe in saying that no one will confuse Mr. Jasso's work with the work of Walt Kelly. Note that the drawing doesn't include the words "me" by the gunman.

Anyway, Mr. Jasso argued that allowing the jury to see the drawing would prejudice the jury beyond whatever probative value the drawing might have. The prosecution argued that under Rule 404(4) of the Oregon Evidence Code, the drawing was relevant as "evidence of other crimes, wrongs or acts by the defendant." Under Oregon law, the court is not required to balance the probative value of such evidence. The trial court and Court of Appeals agreed with the prosecution. The drawing, the court said, was admissible because it was evidence of another crime, wrong or act by Mr. Jasso.

The opinion is only 4 pages long so the court doesn't really offer a lot of explanation. So the reader should be forgiven if they find the decision very strange. A doodle of a robbery is considered evidence that Mr. Jasso robbed a woman on some other occasion than the time for which he was convicted. Jack Kirby used to draw pictures of Galactus devouring worlds. Steve Ditko, most notably during the origin story of Spiderman, drew pictures of people being robbed. It never occurred to me that these pictures could be viewed as evidence of crimes committed by Messrs. Kirby and Ditko. Perhaps we distinguish them because they are drawing works for hire. Mr. Jasso's doodle, in contrast, is viewed as a sort of artistic confession by Mr. Jasso of another crime he committed. Sort of like "Blood on the Tracks" or "Rise to Me" but not about Bob Dylan's divorce or Colin Meloy's autistic son.

I don't often doodle. But when I do, I draw pictures of boxes. The Oregon Court of Appeals thinks Mr. Jasso should have had a similar practice.

Tuesday, March 6, 2012

Can reflexive oppositional politics survive the internet age?

A friend of ours sometimes points out that a lot of what we see in politics is simply Mad Magazine's "Spy vs. Spy" brought to life. I understand our friend to mean that some (he would say most) of the positions taken by the two major political parties are adopted simply because they are the opposite of what the other side wanted. For example, if one party wants to take aggressive action to curb global warming, the other party will be against such action. George Orwell may have also written about this phenomena. writer Matthew Yglesias points to a perfect example of this type of mindless opposition. The link is here. As Mr. Yglesias notes Republicans, and Fox News, are chastising President Obama for not doing enough to curb gasoline prices. Democrats are pointing out that the President can't do much to control gas prices. Compare this to 2008 when Democrats were chastising President Bush over high gas prices. At that time Fox News was, correctly, explaining that a president can't do much to control gas prices. The folks at Media Matters have compiled a nice video compilation of these explanations.

I'd like to think that the fact that the fact that groups like Media Matters can find all these clips means that the Internet Age will spell the end of this sort of mindless oppositional politics because it is so easy now to juxtapose the same speaker taking contrary positions on the same topics. However, one has to acknowledge that P.T. Barnum's maxim that "there's a sucker born every minute." Those are words that many people in politics and the media seem to take to heart.

Monday, March 5, 2012

Speech-zapping gun

Supposedly, researchers in Japan have invented a "speech-jamming gun." It works by sending the speaker's own voice back at him, with a slight delay, which apparently overwhelms the brain's ability to form words.

The gun does not work on corporations.

Speaking of apologies...

Emily Yoffe at thinks that Rush Limbaugh is doing them wrong.

Saturday, March 3, 2012

Did Willie Nelson start Judge Cebull's infamous joke?

One of the thoughts that has been going through my mind about Judge Cebull's infamous Obama joke is, "I bet that is a really old joke."

There has been a lot of discussion about the racism and misogyny inherent in the joke. All that analysis is true. It's racist and misogynistic. But that misses the point. The point is that it's dirty and tasteless.

When I was a kid I had a trove of treasured joke books from a series called, "Truly Tasteless Jokes." The aim of the punch lines is to make you wince. The more you wince, the more you laugh. That's the point.

Anyhow I wanted to see if I could prove that Judge Cebull's joke was an old one. So I did a search for the punchline ("you're lucky you don't bark") in Google, with a custom date range from 2000 - 2010.

The second result was a 2009 interview of Willie Nelson in Vanity Fair. Here's relevant part (with the interviewer's questions in bold:

You wrote a book called The Facts of Life and Other Dirty Jokes. What's the dirtiest joke you've ever heard? 
Hmm. (Long pause.) See, my idea of a really great dirty joke isn't something you can share with everybody. You gotta watch yourself. 
Come on, you can tell us. We won't judge you. 
Well, one of my favorites goes something like this…. A kid asks his mama, "How come you're white and I'm black?" And she says, "Honey, from what I can remember of the party, you're lucky you don't bark." 
(Laughs.) Wow. That is good. But you're right, probably not for everybody. 
You gotta be careful. Not everybody can appreciate a funny goddamn joke.

Illinois "eavesdropping" statute ruled unconstitutional

A while back I posted about the Illinois "eavesdropping" law that makes it a felony to make audio recordings of police officers going about their business in public. I opined that the law is unconstitutional, at least as applied to that conduct.

Yesterday, a Cook County judge agreed with me and struck down the law.

In other news, a bill is pending in Springfield that would allow people to
record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording.
So I guess it would still be a felony to record a cop who is whispering.

Friday, March 2, 2012

"Some drivers say it's just too complicated."

Crystal clear.  I kind of doubt this is real, but if it is, wow.

Judge Cebull apologizes to President Obama.

Yesterday we posted about Judge Cebull's stupendous error in judgment when he used his official email to forward a racist and misogynist email about President Obama's mother. We updated the post to reflect that Judge Cebull has requested that the Ninth Circuit investigate his actions. The Ninth Circuit has posted Judge Cebull's request here.

Judge Cebull has also written a letter of apology to President Obama. It is here. The text of the apology is:
I sincerely and profusely apologize to you and your family for the email I forwarded. I accept full responsibility; I have no one to blame but myself.

I can assure you that such action on my part will never happen again. I have requested that the Judicial Council of the Ninth Circuit review this matter.

Honestly, I don't know what else I can do. Please forgive me and, again, my most sincere apology.
Dear Reader(s), Judge Cebull's apology is how one gives an actual apology. Note the lack of sentences like "I am sorry if my email offended anyone." Judge Cebull also didn't try to say that we was sorry "to the extent anyone misconstrued my intent or was otherwise offended." Judge Cebull does not try to make it seem like it is the fault of someone else if they were offended by the email. Instead, he explicitly recognizes that he has "no one to blame" but himself and, most importantly, he asks for forgiveness.

Obviously, I don't know if President Obama will respond to this request for forgiveness. I hope he does and I hope his response is, "I forgive you."

UPDATE: In the event that Mr. Torvik doesn't use this post as opporunity to attempt to humilate me, Ellie Mystal of "Above the Law" disagrees about the effectiveness of the apology.

Birtherism is still a thing.

Someone once said the only certain things in life are death and taxes. We should add birtherism to the list. According to the Los Angeles Times, Sherrif Joe Arpaio is says there is probable cause to believe that "fraud and forgery" occurred in connection with President Obama's birth certificate. Sherrif Arpaio would also like you to ignore the Justice Department report that accused him of bias towards Latinos.

On the other hand, perhaps even its most ardent believers will quit caring about birtherism in either November 2012 or November 2016 depending on election results.

Thursday, March 1, 2012

Speaking of decency ...

... some folks are dancing on Andrew Breitbart's grave.

Wow. Just. Wow.

UPDATE: The Associated Press Reports that Judge Cebull has asked the United States Court of Appeals for the Nineth Circuit to investigate whether he engaged in judicial misconduct by sending the email.


As I mentioned yesterday, one of the beautiful things about being alive is the chance to learn something new every day. Today, for example, I learned that United States District Court Judge for the District of Montana Richard Cebull doesn't like President Obama or the president's dead mother and likes to use his work email to discuss these topics with his friends.