Sheridan: Con-Law

JOB HUNTING IN POOR ECONOMY

Friends from various callings have been asking lately about trying to find work in the current economy; I composed the following:

A thought:  

Rule #1:  Any difficulty finding employment is not a reflection on you, personally.  

Rule #2:   Therefore don't take it personally and get depressed that a golden job doesn't fall into your lap w/o a great deal of trying.  Find something else to get depressed about.  Better yet, look for a little joy: your child, a flower, a nice day compared to some really bad day...

Rule #3:  Never stop looking.

Rule #4:  Lack of creative imagination is your worst enemy when you feel stuck; 

 All 'feeling stuck' means is that you've temporarily run out of information, which means more poking around among friends, acquaintances, and business people that you run into, casually or on purpose; a good time to rattle your network again with a 'still available' message.  

 I was speaking with an experienced friend at a gathering yesterday who works for the postal service.  She was telling me that they get so many applications for any posted position; there may be scores of applications including dozens from people who would seem a perfect fit.  So how is the choice made?  On stuff you can only imagine, or that the hiring person can imagine, which makes it a little crazy (this is why you can't take rejection personally; you're not being rejected; it's that someone else just happened to satisfy the crazy, subjective, notion in the hiring person's noodle);  therefore it's better if you know someone who knows someone who can put in a good word, but many times there isn't even that.  

 If you're located nearby, look dependable, and can commit to a schedule, then speak to the person responsible for hiring;  you're better off, because you've left them with a positive impression:  'Someone I could count on.'  'Cuz the person in a position to hire has a problem, too, looking for a walking solution, which you represent.

 The trick is not to get your heart set on one job and feel as though you've lost, or worse, that it's your fault, or a bad reflection on you, when it doesn't come your way; much better to think like the mail order advertisers do:  If we send out a hundred mailers and get one sale or donation, the campaign has paid for itself, so let's send out another hundred.  With email marketers (aka spam) it's more like one out of 500,000.  They don't worry about particular recipients/targets; they just keep sending, robotically, figuring they can always find somebody who'll respond favorably; they make a living doing this, playing the odds: One out of a hundred; they think those are good odds, so they play them, constantly.

 Hang in there; it's the best you can do, is all you can do, and is a very good thing to do; you'll feel better about yourself.

 Meanwhile, I'll keep forwarding [job leads that people send me], whether these seem to make sense or not; maybe even some of the strange ones will spur your creative imagination to explore avenues you hadn't seriously considered; the rest you can ignore.  

 (I spoke to someone else at the gathering and asked him what he's doing, since he's looking for employment, too, an attorney, a relative, who has moved here recently with a wife and two-and-a-half kids; says he's hired a recruiter but nothing so far, so he takes other, temporary, work outside of the law field...).

 One of the guests has worked at Peet's Coffee for years.  She says that all applications go into central headquarters serving all stores, so when a vacancy occurs anywhere, they have a pool of applications from which to pick, call, etc.  Check online or go in for a cup of coffee and chat someone up.  Drop a card. Explore.  

 Rule #5:  It'll work, eventually.

 

 

"NATURAL BORN CITIZEN"

That was a simple answer...

This exchange with a friend who asked whether it made any difference where Pres. Obama was born, is below:

 

Thanks Robert,   As I suspected, there's no simple answer...

....thanks and warm regards,  T.    

 

In a message dated 4/17/2011 1:12:22 P.M. Pacific Daylight Time, rs writes:

 

On Apr 17, 2011, at 8:55 AM, T. wrote:

 Would "natural born citizen" include let's say Whitney if she were born of us but in a foreign country?

 

T.,

 

This is the Senator John McCain question; he was born in the Panama Canal Zone, an overseas possession of the U.S. by treaty, while his father, Admiral McCain, was stationed there.  

 

The question arose when the senator was running for president.  

 

The answer apparently didn't agitate some of his further-to-the-right supporters as much as does the make-believe question into the origins of Pres. Obama.  Not a few in this country are unable to stomach the idea of a black president, the Civil War not quite being over and the South having won, except for this inconvenient political fact.

 

As for Trump, he married a beautiful Slovenian woman, so I don't think he has any moral superiority by claiming that Obama was foreign born.  If she's good enough for him, she's good enough to be First Lady, there being no 'natural born' exclusion in the Constitution for beautiful Slovenians or First Ladies.  His previous wife, Ivana, is also a beautiful and appealing foreign born mother of his children.  Obviously, The Donald is a serial violator of the 'natural born' clause when it comes to those closest to him.  Perhaps he wasn't looking at them quite as presidential timber while courting them, reserving that designation for himself.

 

I kinda like having the first foreign-born, Muslim president, myself, as it helps jettison a lot of unnecessary baggage; considering that he was raised by a white mother and grandparents, his father having gone off, I figure that altho' Obama's black, he's a lot more white; they don't teach a lot of Eblawnics at Harvard Law School, as far as I'm aware, and the rest of the world kinda likes the idea of him running the more-or-less Superpower.  We sure have the hardware, don't we?

 

As for Article II, Sec. 5, it reads:

 

"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this constitution, shall be eligible for the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years and been fourteen years a resident within the United States."

 

The issue also arose when supporters promoted the Austrian-born Arnold Schwarzenegger as a potential presidential candidate; maybe some still do, regardless of Section 5.  The question, then, might be whether the Court would entertain a legal challenge.  The Court has rules of 'justiciability,' meaning what they will accept for review and what not.  This is a matter of discretion but there are some well-delineated rules, such as that the question must be sufficiently important  and, sometimes, rousing, or at least very important to the country.  One of the major deterrents to acceptance is to have the justices regard the matter as 'political' in nature, in which case review is denied under this principle.  

 

Although it takes five justices to decide a case in a full court, it only takes four justices to have a matter accepted for review, the theory being that if an issue or matter gets at least four votes right out of the box, it must be worth further consideration by the full Court; it's also possible, after acceptance, to have a matter denied review, i.e. the petition is "dismissed as 'improvidently' granted," or in Court shorthand, "DIG." 

 

A case challenging a McCain or a Schwarzenegger presidential candidacy could conceivably be  "DIGGED" even after review had been granted initially. 

 

But when would the challenge have to be made?  

 

The Court is unlikely to take such as case before the election, or even the swearing-in, because it would be premature, the issue not having fully arisen before the swearing-in.  Prematurity is a well-established ground for denying justiciability; it's called the 'ripeness doctrine,' meaning that the issue is not quite ripe enough to be entertained, yet.

 

Do you think that the Court is likely to entertain a 'natural born' challenge after the new foreign-born president, McCain, or Schwarzenegger, has been elected by the popular vote following a contested election?  And risk overturning a popularly elected president?  It might.  It did so in Bush v. Gore, allegedly to spare the country a period of uncertainty while the litigation rolled on, per Scalia.  But it might not, especially if at least five on the Court favored the foreign born over the competition.

 

Deny on what ground post-swearing in?  Could the issue be considered "moot?"  Mootness is another well-known ground of non-justiciability.  

 

The court might regard the popular vote, especially if it were large and persuasive enough, as a signal that the electorate, having fully in mind the 'natural born' disqualification, had decided to overrule or otherwise disregard it, treating it as time-expired and politically dead, as a practical, and especially political, matter, thus not worth further upsetting the country and forcing it through another election thereby compelling it to swallow an unacceptable candidate who had been previously rejected by the popular, or at least Electoral College, vote.  The Court might then treat the matter as "political" meaning non-justiciable on that well-established ground.  Whatever else it does, the Court does not like to risk whatever respect and authority, moral, political, and legal, that it enjoys, hoards, and guards, by going against the will of the people whose support it decidedly requires.

 

There's a famous, quite true, I believe, expression in this regard, stemming from cases arising after the 1898 war against Spain, when we first acquired colonies abroad, e.g. the Philippines, Puerto Rico, and other places, when the question arose:  

 

Does the Constitution apply its guarantees and protections to our new brown-skinned people living abroad, in our new foreign colonies?  That was a most race-conscious era, and I've loaded the question with red-flag terms for your edification and enjoyment.  :)

 

A Puerto Rican importer to the States had complained about his goods, rum perhaps, or sugar, being taxed (via customs duties) upon importation here, in alleged violation of the constitutional provision that taxes must be uniform throughout the U.S.; also someone accused of murder in the Philippines had complained of being denied a jury trial, there, as guaranteed by the Bill of Rights to the Constitution, here. Does the Constitution follow the flag overseas?

 

The issue was so-framed in popular shorthand as "Whether the Constitution follows the flag or the flag follows the Constitution," giving rise to a famous quip by the fictional Irish bartender, Mr. Dooley, a creation of the writer, Finley Peter Dunne, c. 1906, that goes something like this:  

 

"I dunno whether the flag follows the Constitution, or the Constitution follows the flag, but I do know that "th’ Supreme Court follows th’ illiction returns.”"

 

I think the best answer I can offer to your question is that by the time either McCain, Schwarzenegger, or the hypothetical Whitney, was sworn in as president, Mr. Dooley's maxim would surely carry the day, admittedly or not.

 

We're a sly bunch of foxes, you see, who make a virtue out of stealing second-base, third-base, and Home.  We're not above putting a bit of moisture on the ball, literally and figuratively.  Some of us even take steroids to keep up with the competition, believe it or not...  

 

Getting around an archaic legalism such as 'natural born' shouldn't be a problem for us.

 

It's very good to hear from you, T.; have fun.

 

Bob

 

 

SINGLE ATOM AS BIG AS YANKEE STADIUM

Today's big news:

 

If you take a single atom and make it as large as Yankee Stadium, it would consist almost entirely of empty space.

The center of the atom, the nucleus, would be smaller than a baseball sitting out in center field.

The outer parts of the atom would be tiny gnats buzzing about at an altitude higher than any pop fly Babe Ruth ever hit.

And between the baseball and the gnats?

Nothingness.

All empty.

You are more emptiness than anything else.

Indeed, if all the space were taken out of you, you would be a million times smaller than the smallest grain of sand.

–Brian Swimme

***

What's this got to do with Conlaw?

The Constitution is written on paper.

Paper is made of atoms.

You could drive a truck through some of those vast spaces in the interior of an atom, presuming, of course, that you eliminated all the space contaminating the atoms of the truck.

Ever wonder why you continue to be able to listen to the radio even though you're indoors or driving through a tunnel?

All that space within the atoms of your wall and the mountain surrounding the tunnel may have something to do with it.

The radio waves have a greater chance of finding space inside the atoms they traverse than they do anything solid to block the path.

Could you raise the volume, please?

I'm getting static.

Mr. Ray must've hit a nucleus, or something.

 

 

NUREMBERG, GUANTANAMO & MILITARY TRIALS

"What they show above all is that there are no absolute truths; law is argument."

April 9, 2011

Lessons From Nuremberg

By WILLIAM SHAWCROSS

London

GEORGE ORWELL is usually a footsure guide across political battlegrounds. In late 1943, when the tide had turned in the Allies’ favor, he wrote about postwar trials. Oddly, he advocated Hitler and Mussolini slipping away. His verdict for them would not be death unless the Germans and Italians themselves carried out summary executions (as they eventually did in Mussolini’s case).

He wanted “no martyrizing, no St. Helena business.” Above all, he disdained the idea of a “solemn hypocritical ‘trial of war criminals,’ with all the slow cruel pageantry of the law, which after a lapse of time has so strange a way of focusing a romantic light on the accused and turning a scoundrel into a hero.”

For once Orwell missed his step. The Allies did stage a trial of the Nazi war criminals, at Nuremberg. (My father, Hartley, was the chief British prosecutor.) The trial had flaws. To some it will always seem to be “victors’ justice” and it can be called hypocritical in that the Soviet Union, guilty of many of its own crimes against humanity, was an equal partner with the democratic prosecutors and judges.

But, over all, it succeeded very well. It was solemn, as it should have been, and what Orwell called “the pageantry of the law” was neither cruel nor slow — the trial began in November 1945 (remarkably this was only six months after the German surrender) and was all over by the following October. Would that anything could be done so efficiently today.

Most of the Nazi defendants were found guilty and executed, others were given lesser sentences and some were acquitted. Orwell’s fear that they would later be cast in a romantic light and turned from scoundrels into heroes has not been realized. They are still seen as mass murderers.

Nuremberg not only dispatched justice swiftly, it also created a historical narrative that has survived. Robert H. Jackson, the chief American prosecutor and the driving force behind the trials, told President Harry S. Truman that he had assembled more than five million pages of evidence. The files of the SS alone needed six freight cars to carry them. Subsequently the tribunal published 11 volumes of documents and 20 volumes devoted to the proceedings alone. The eminent British historian Alan Bullock wrote of his excitement at reading through these records: whatever the arguments about justice, “from the point of view of the historian the Nuremberg trials were an absolutely unqualified wonder.” Nuremberg was essential in creating memory and senses of responsibility, in Germany itself and far beyond.

Nuremberg, lest we forget, was a military tribunal with civilian lawyers and it offered far fewer protections to the Nazis in the dock than the military commissions at Guantánamo will give to Khalid Shaikh Mohammed and his co-defendants in the 9/11 attacks. Military justice worked then and it can work again today.

This is not the place to repeat the fierce disputes over President Obama’s decision last week to prosecute Mr. Mohammed before a military commission instead of a civilian court. What they show above all is that there are no absolute truths; law is argument.

Many of the important Supreme Court decisions in the war on terrorism have been made by slim majorities, one way or another. In such complicated areas it is rare to find unanimity. This is not surprising. Indeed, such debate is a token of the vitality of American jurisprudence.

I understand why many people believe that in the hugely important, and hugely symbolic, case of Khalid Shaikh Mohammed, America would be best served by justice being dispensed in an open federal court. But United States military law should not be dismissed. It has a distinguished history dating back to 1775; every year military courts dispense justice to thousands of Americans. And don’t forget that the Qaeda detainees in Guantánamo will all be presumed innocent, their guilt must be proved beyond reasonable doubt, and each will have the right of appeal all the way to the Supreme Court.

As far as Al Qaeda and its associates are concerned, it does not make the slightest difference whether its members are tried in federal or military courts — Islamists regard each as equally illegitimate. As Anwar al-Awlaki, one of Al Qaeda’s most prominent ideologues today, has said, Muslims must not be forced to accept the rulings of Western courts; he insists that for Muslims to abide by Western laws is to live like sheep “stripped from their right to live as Muslims under the law of Islam.”

No form of Western justice will ever be accepted by Al Qaeda. But President Obama could seek to make trials in Guantánamo more accessible to the rest of the world. One should never forget that most of the people killed by Al Qaeda around the world are not Americans — the majority are innocent Muslims caught up in Islamist killing sprees in Iraq, Pakistan, Afghanistan, Somalia and elsewhere.

Even on Sept. 11, hundreds of those killed were non-Americans. Britain lost 67 people that day. Their families, too, have an interest in seeing justice done. They could also assist.

The United States is well practiced at military officer exchanges. Why not invite those nations with a jurisdictional claim against Mr. Mohammed — those which lost citizens on 9/11 — to send cleared and qualified senior military lawyers to serve in the court at Guantánamo? This could be done after Congressional modification of the 2009 Military Commissions Act to determine in what roles they could serve. Britain, Japan and Ghana are three countries that could qualify.

Such internationalization of the court in Guantánamo would call the bluff of those American allies who benefit from American protection but cannot resist criticizing its processes. It would not be precisely modeled on the successful tribunal at Nuremberg, but it would follow in that hybrid tradition of using the best civilian and military advocates, prosecutors and processes all carrying out their tasks in the full view of the press.

The trial of Khalid Shaikh Mohammed and his co-defendants is of vital significance because it addresses not just a group of thugs but the enduring human phenomenon of evil. No two eras are the same, nor are the threats they face identical. But evil is eternal and re-invents itself in every age.

In the 1940s the world confronted and, with immense sacrifice, defeated the evil of fascism. The scale and the nature of the threat is different today but true menace — from the attacks of 9/11 itself to the recent beheading of United Nations workers in Afghanistan simply because a Koran was burned in Florida — lurks patient and opportunistic. It cannot be appeased any more than Hitler could be appeased.

Despite Orwell’s misgivings, at Nuremberg our civilization designed a vehicle to anathemize men imbued with evil. And it created a historical narrative that proved invaluable throughout the decades since. The case against Khalid Shaikh Mohammed and his friends must develop a similar, vital history of Al Qaeda to inform generations to come. Nuremberg is a precedent on which the United States can build with pride in this new and essential trial.

William Shawcross is the author of the forthcoming “Justice for the Enemy: From Nuremberg to Khaled Sheikh Mohammed.”

MYTH

"We have borne the risks, co-existed and flourished with TEPCO for more than 40 years, and all these years, we have fully trusted the myth that nuclear plants are absolutely safe," said Katsuya Endo, the mayor of Tomioka town." Reuters

---

That'll teach us all; pity at such a terrible price.

Feelings of great sympathy and sorrow for the victims of the earthquake, tsunami, radiation disaster, and political and corporate malfeasance that added to the tragic toll.

CONNICK V. THOMPSON, PROSECUTOR MALPRACTICE IMMUNIZED

Just what we needed.

Below is an editorial appearing in the NYT:

March 31, 2011

Failure of Empathy and Justice

When President Obama listed empathy as a valuable trait for a justice during his 2009 search to replace David Souter, the idea drew scorn from some conservatives who saw it as an excuse for being soft. But a Supreme Court ruling this week provides evidence of how useful empathy is, and of how not using it can lead to glaring injustice.

Connick v. Thompson is about the wrongful conviction of John Thompson for robbery and murder after prosecutors in New Orleans withheld evidence from Mr. Thompson that would have cast serious doubt on his guilt. He spent 18 years in prison and came close to being executed. He was exonerated after a prosecutor fessed up.

After Mr. Thompson sued, a federal trial court found the office liable for failing to train its prosecutors about their constitutional duty to turn over evidence favorable to the defense and awarded Mr. Thompson $14 million in damages. Now, by a 5-to-4 vote, the conservative majority of the Roberts court has overturned that ruling, saying the office can’t be held liable for a sole incident of wrongdoing.

The important thing about empathy that gets overlooked is that it bolsters legal analysis. That is clear in the dissent by Justice Ruth Bader Ginsburg. Her empathy for Mr. Thompson as a defendant without means or power is affecting. But it is her understanding of the prosecutors’ brazen ambition to win the case, at all costs, that is key.

After detailing the “flagrant indifference” of the prosecutors to Mr. Thompson’s rights, she makes clear how critically they needed training in their duty to turn over evidence and why “the failure to train amounts to deliberate indifference to the rights” of defendants.

The district attorney, Harry Connick Sr., acknowledged the need for this training but said he had long since “stopped reading law books” so he didn’t understand the duty he was supposed to impart. The result, Justice Ginsburg writes, was an office with “one of the worst” records in America for failing to turn over evidence that “never disciplined or fired a single prosecutor” for a violation.

For the majority, Justice Clarence Thomas asserts that Mr. Thompson failed to prove that the office “disregarded a known or obvious consequence” of its inaction. That doesn’t reckon with the “culture of inattention,” as Justice Ginsburg calls it, which made deplorable breaches far too predictable. Justice Ginsburg’s dissent is the more persuasive, focused on the problem at the heart of the case and at the heart of a legal system that too often fails to see defendants, guilty or not, as human beings.

KRAUTHAMMER

Charles Krauthammer is a conservative columnist for WaPo who appears on the talk shows; I usually find him hard to take. Assuming his facts are correct, and I think they are, I happen to sympathize with his views, below. Syria's Bashar al-Assad, is a total bust, no more a reformer than any of the Middle East tyrants who murder their own people for protesting the foot on their neck. And we, the Great Democracy, the Light of the Free World, kiss their butts, which tells you more about us than them.

Here's the article:

---

Syria’s ‘reformer’

By Charles Krauthammer, Thursday, March 31, 7:52 PM

Many of the members of Congress of both parties who have gone to Syria in recent months have said they believe he’s a reformer.

— Hillary Clinton on Bashar al-Assad, March 27

Few things said by this administration in its two years can match this one for moral bankruptcy and strategic incomprehensibility.

First, it’s demonstrably false. It was hoped that President Assad would be a reformer when he inherited his father’s dictatorship a decade ago. Being a London-educated eye doctor, he received the full Yuri Andropov treatment — the assumption that having been exposed to Western ways, he’d been Westernized. Wrong. Assad has run the same iron-fisted Alawite police state as did his father.

Bashar made promises of reform during the short-lived Arab Spring of 2005. The promises were broken. During the current brutally suppressed protests, his spokeswoman made renewed promises of reform. Then Wednesday, appearing before parliament, Assad was shockingly defiant. He offered no concessions. None.

Second, Clinton’s statement is morally obtuse. Here are people demonstrating against a dictatorship that repeatedly uses live fire on its own people, a regime that in 1982 killed 20,000 in Hama and then paved the dead over. Here are insanely courageous people demanding reform — and the U.S. secretary of state tells the world that the thug ordering the shooting of innocents already is a reformer, thus effectively endorsing the Baath party line — “We are all reformers,” Assad told parliament — and undermining the demonstrators’ cause.

Third, it’s strategically incomprehensible. Sometimes you cover for a repressive ally because you need it for U.S. national security. Hence our muted words about Bahrain. Hence our slow response on Egypt. But there are rare times when strategic interest and moral imperative coincide completely. Syria is one such — a monstrous police state whose regime consistently works to thwart U.S. interests in the region.

During the worst days of the Iraq war, this regime funneled terrorists into Iraq to fight U.S. troops and Iraqi allies. It is dripping with Lebanese blood as well, being behind the murder of independent journalists and democrats, including former prime minister Rafiq al-Hariri. This year, it helped topple the pro-Western government of Hariri’s son, Saad, and put Lebanon under the thumb of the virulently anti-Western Hezbollah. Syria is a partner in nuclear proliferation with North Korea. It is Iran’s agent and closest Arab ally, granting it an outlet on the Mediterranean. Those two Iranian warships that went through the Suez Canal in February docked at the Syrian port of Latakia, a long-sought Iranian penetration of the Mediterranean.

Yet here was the secretary of state covering for the Syrian dictator against his own opposition. And it doesn’t help that Clinton tried to walk it back two days later by saying she was simply quoting others. Rubbish. Of the myriad opinions of Assad, she chose to cite precisely one: reformer. That’s an endorsement, no matter how much she later pretends otherwise.

And it’s not just the words; it’s the policy behind it. This delicacy toward Assad is dismayingly reminiscent of President Obama’s response to the 2009 Iranian uprising during which he was scandalously reluctant to support the demonstrators, while repeatedly reaffirming the legitimacy of the brutal theocracy suppressing them.

Why? Because Obama wanted to remain “engaged” with the mullahs — so that he could talk them out of their nuclear weapons. We know how that went.

The same conceit animates his Syria policy — keep good relations with the regime so that Obama can sweet-talk it out of its alliance with Iran and sponsorship of Hezbollah.

Another abject failure. Syria has contemptuously rejected Obama’s blandishments — obsequious visits from Senate Foreign Relations Committee Chairman John Kerry and the return of the first U.S. ambassador to Damascus since the killing of Hariri. Assad’s response? An even tighter and more ostentatious alliance with Hezbollah and Iran.

Our ambassador in Damascus should demand to meet the demonstrators and visit the wounded. If refused, he should be recalled to Washington. And rather than “deplore the crackdown,” as did Clinton in her walk-back, we should be denouncing it in forceful language and every available forum, including the U.N. Security Council.

No one is asking for a Libya-style rescue. Just simple truth-telling. If Kerry wants to make a fool of himself by continuing to insist that Assad is an agent of change, well, it’s a free country. But Clinton speaks for the nation.

letters@charleskrauthamm er.com

© 2011 The Washington Post Company