Sen. Klobuchar's anecdote about Sen Schumer

Jeffrey Toobin has an interesting profile of Senator Charles Schumer (abstract only) in this week's New Yorker.  It includes the following anecdote from Amy Klobuchar:

A few years ago when Schumer was head of the [Democratic Senatorial Campaign Committee], he took a group of Senate candidates, including Amy Klobuchar, now the senior senator from Minnesota, and their families on a bike tour of Brooklyn.  "Chuck has a bullhorn, and he stops in front of his building and announces that he and Iris [his wife] bought their apartment for a hundred and fifty thousand dolars and now it's worth ten times that much," Klobuchar recalled.  "And my twelve-year-old daughter pulled on my jacket and said, 'Mom, if you said that in Minnesota, you'd be in so much trouble.'"

Klobuchar's daughter certainly seems well-versed in Minnesota's cultural tics.  What struck me, though, was her presence on this bike tour with Sen. Schumer.  It reminded me of another anecdote, from a source who shall remain unnamed in this forum.  This person chanced upon Sen. Klobuchar in public, and used the occasion to lobby for a federal judgeship.  But Senator Klobuchar was not alone -- she was with her fifteen-year-old (or so) daughter.  And they were holding hands. 

Targeted campaign ads

Very interesting post, Mr. Gillette.  It will certainly be interesting to see how this plays out -- both in the specific case of Target's contribution and the broader context of this fall's elections.

But it's worth thinking about what would have happened if Section 203 of the McCain-Feingold bill were still intact.  That provision, which is what the Supreme Court struck down in Citizens United, did not say that "corporations aren't people"; it did not say that "corporations have no first amendment rights"; it did not even say that "corporations cannot direct money towards electioneering."  Instead, it set out a very specific way for corporations to spend money on independent electioneering within 60 days of a general election (or 30 days of a primary):  they had to do it through a political action committee.  In other words, they had to set up a PAC and give money to that PAC, which could then use it on independent political expenditures.

Testing a theory.

The Citizens United opinion came out before we started this blog. At the time, I recall us discussing whether the decision would impact the political contributions given by publicly traded corporations and/or corporations that did business with the public at large. One theory we had was that those types of corporations would not engage in large-scale political contributions because they risked alienating shareholders or customers who belonged to the opposite political party. This thought is encapsulated in the, probably apocryphal, story that Michael Jordan replied "Republicans buy sneakers, too" when asked why he was not supporting former North Carolina Senator Jesse Helm's opponent in an election.

This theory has recently been put to the test in Minnesota. Target has given $150,000 to a political group that supports Tom Emmer, the GOP candidate for governor in Minnesota. Among his positions, Emmer is anti-gay marriage.

Target's donation has been noticed and upset some folks. In response, Target's CEO is trying to do some damage control by emphasizing Target's "commitment to diversity". I predict a similarly sized donation to a pro-GLBT group as soon as the election is over. As an aside, Jon Tevlin reminds his readers that members of Mark Dayton's family founded Target. Dayton, of course, is also running for governor.

We can learn from this example

We should run for judge before our children become internet savy.

Colonel Mustard in the library.

The New Yorker (abstract only) had a very entertaining article about Blago's rise and apparent fall. Maybe I am naive, but I can't imagine that a lawyer is the source of the Tribune article you cite. The risk of being outed as the source seems much higher than the reward of talking to the press. For that matter, what is the reward in talking to the press in this context? Is the hope that the jury will disregard the instruction it received not to read about the case and read the Tribune article?

My guess is that at least some of Blago's practice sessions took place in front of a mock jury. Perhaps a jury member or the jury consultant is the article's source. Or Colonel Mustard, he is always a good guess.

As you note, the decision not to testify creates a problem for the defense attorneys. No attorney wants to be in the position of having promised the jury something in opening statement and then not being able to deliver it afterwords. This is especially true when it is, like this, a big promise. This summary of the closing remarks does not give this reader a lot of confidence that the defense offered a good explanation to the jury. On the other hand, that maybe the only explanation that the defense can offer to the jury. It will be interesting to see if any jurors comment on the significance, or lack thereof, of Blago's decision not to take the stand.

More on Blago: who spilled the beans?

Yesterday I blogged about Rod Blagojevich's decision not to take the stand despite his lawyer's promise to jury, during openings, that he would testify.  Today an article in the Chicago Tribune reports that the true reason for the decision was not confidence that the government had failed to prove its case but rather that Blago failed spectacularly during practice testimony:

The ex-governor's practice runs — with prominent criminal-defense lawyers acting as cross-examiners — were troubling, sources with knowledge of the sessions told the Tribune.

The sources said the former governor had difficulty wrapping words around the concepts he wanted to use to defend himself. Blagojevich and his wife, Patti, spent several days last week going over his possible testimony with lawyers Sam Adam and his son, Sam Adam Jr., in the South Side's Jackson Park to be away from their office and interruptions. 

It's no surprise that the true reason for the decision not to testify is tactical rather than substantive.  But what it is a little surprising to me is that the Tribune was able to find "sources" to dish this information.  Seems to me that these practice sessions would have been highly confidential, if not attorney-client privileged.  If the person who spilled the beans to the Tribune is an attorney, that person likely violated the Illinois rules of professional conduct.   

I thought the US was litigious...

...but a former contestant on "Britain's Got Talent" has sued Simon Cowell in the UK "claiming she was 'humiliated and degraded' on the hit ITV show."  I wonder if assumption of risk is a defense in the UK?

Blago shuts up

Another fun thing about moving to the Land of Lincoln is that a former governor is always on trial.  I admit that I haven't followed the Rod (and Robert) Blagojevich trial too closely.  But there was some interesting news today:  the defense rested, and Blago took the Fifth. 

This was a surprise.  Blago's defining characteristic has been the inability to keep his mouth shut.  Arguably, idle talk was his only crime.  But today he took the advice of one of his lawyers (Sam Adams) over his own instinct and the advice of his other lawyer (Sam Adams, Jr.) and decided not to testify.  The theory is that the government didn't prove his case.  In fact, according to Blago, "the government in their case proved my innocence."

Of course, it's not unusual for a defendant not to testify.  But it is unusual when, as happened here, the defense lawyer told the jury during opening statements that the defendant is going to testify.  Trial lawyers are taught never to say anything in an opening statement that they can't back up during the trial.  This is why judges usually let lawyers say anything they want during openings -- because if they say something they can't prove, the jury will remember, and the jury will punish.  It will be interesting to see how it plays out here.   

Necessary and, in the end, proper

First, I thought I'd point out an interesting back-and-forth between Randy Barnett and Jack Balkin  about the constitutionality of the individual mandate.  In a post that I linked to in my last post, Barnett argued that DOJ's reliance on the tax power means that his attacks on the commerce clause justification must not be—as some have alleged—frivolous.  Prof. Balkin responds with the obvious point that trial lawyers always make every available argument, so DOJ's making the "tax" argument doesn't necessarily mean that the attack on the commerce clause justification has merit.  Then Balkin goes on to make a rather strange (and interesting) meta-argument that people like Barnett aren't just making assertions about the non-frivolity of their position, but are actually making their position non-frivolous by the act of making the argument:

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

(emphasis mine).  Surprisingly, Barnett agrees!  Responding to a related point, he says, "Jack [Balkin] is right about this. I and others are trying to do exactly this."  Lots of interesting stuff in the exchange.

What does it mean to provide "Advice and Consent"?

According to the New York Times, Solicitor General Kagen's nomination to the Supreme Court has been backed by the Senate Judiciary Committee. The article reports that only one Republican, Lyndsay Graham of South Carolina, backed her nomination.

Senator Graham didn't exactly given the nominee a ringing endorsement. He said there were "100 reasons" he could vote against her. He did not vote against her because "The Constitution, in my view, puts a requirement on me not to replace my judgment for [the President's]" Is he correct?

Article II, Section 2, Clause 2 of the Constitution says:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court, and all other Officers of the United States....

One would think that providing advice is an exercise in replacing judgment. Merriam-Webster, defining a advice as a recommendation on a course of conduct, certainly seems to think so. On the other hand, perhaps what Senator Graham means is that advice can be freely ignored so his "100 reasons" not to confirm Solicitor General Kagen don't matter and that only election results matter. But if that were true, why does the Constitution require the Senate's consent?

One interesting thing I learned while researching this post is that one of George Washington's nominees to the Supreme Court was struck down on ideological grounds. John Rutledge, lost his seat as Chief Justice on the Supreme Court because the Senate refused to confirm him when Washington's recess appointment expired. The Senate was unhappy about Rutledge's opposition to the Jay Treaty with Great Britain. Apparently, unpopular views as a disqualifying factor for the Supreme Court precedes Robert Bork by a two centuries.