Sheridan: Con-Law

FROM THE HORSE'S MOUTH TO YOUR EAR...

Would you like to know how to win, or lose, your next Supreme Court argument?

Try this from Chief Justice John Roberts of the U.S. Supreme Court.

Tell the court that the biggest obstacle to winning is Case X decided by the Court only a few years ago, and if the Court is going to uphold that, well, then, Sayonara, client, but that if the Court is willing to revisit that decision and either overturn it or carve an exception, well, I'll keep talking, and here's why you should.

You win candor points.

You allow as how these choices are hard, that's why we're here.

You don't say, clearly my client should win because the stars are all lined up in the form of previously decided cases.  Because the Court can ignore them or decide new cases that go against, or for, your client, who may fry if you don't get your argument right, or lose a fortune.

The WaPo article is below.

WISDOM

From a Dahlia Lithwick column on the confirmation of Roberts in Slate:

"And [Sen.] Dick Durbin goes with the Bible: "The greatest compliment one can pay a judge is not that he is smart, it's not that he has a great intelligence. The greatest compliment one can pay a judge is that he is wise. …

In the Scriptures, Solomon was often described as the wisest man who ever lived. But in Chapter 3 of the First Book of Kings, we learn what Solomon wanted more than wisdom.

It is written, 'In Gideon, the Lord appeared to Solomon in a dream at night, and God said, "Ask what you wish me to give you."

Then Solomon said, "So give your servant an understanding heart to judge your people, to discern between good and evil. For who is able to judge this great people of yours?" ' …

If you'll look at the questions more carefully and more closely, you'll find that we were asking more fundamental questions of John Roberts. We were trying to determine whether or not he has wisdom, whether or not he has an understanding heart."

Okay, so what is wisdom?

Wisdom is not intelligence or smarts or book learning.  We have a word that describes a class of people who somehow earned the name "sophomore" or "sophomoric" for book-smart, street-dumb.  The roots are 'soph' for wise and 'mor' as in moronic, adding up to 'sophomore' meaning 'wise-fool.'

I've seen various definitions of 'wisdom,' but in the end felt forced to define it for myself.

Wisdom is knowing what not to believe.

That's my contribution to the world, which hasn't been all that appreciative, come to think of it, but that's their problem, not mine.  Maybe they have a better def.

Years ago  a rape prosecution unit was formed in the San Francisco District Attorneys Office where I served as an assistant district attorney and I was assigned to it and eventually headed it.  Gene Sweeters, Paul Cummins, Maxine Mackler, later Chesney, and Jim Lassart all participated.  The Rape Detail of the SFPD would bring their cases to this unit, meaning us, and later me, for acceptance or rejection.  These inspectors (detectives), Chris Sullivan, Don Kenneally, and others, were very experienced and we relied on their judgment to screen cases.  Not all cases of rape were deserving of the name.

In one instance, a man had been arrested for using a knife to cut off the brassiere of a woman and raping her in a car outside of a waterfront bar.  There was something nutty about the case and I declined to prosecute it as a rape, instead filing a charge of illegal use of a knife.  I'd put a note in the file to myself (I thought) to "get plea," meaning to accept a reduction.  One of my colleagues saw the note and practically gave the case away.  This resulted in the Hall of Justice being picketed by the Queen's Bench, a women's bar organization active in seeking changes to the laws and practices under which rape prosecutions occurred, such as advocating for the elimination of the Lord Hale "Cautionary Instruction," that warned juries that rape cases were hard to defend against no matter how innocent the accused man might be.  Lord Hale must've had some experience with false accusations and his instruction on what not to believe in light thereof made its way into our criminal law.

So now we had this problem of the building being picketed because of a note I wrote and this made me feel uncomfortable.  I suggested that my colleague might want to contact the defense attorney to see if he had any information that might help deal with the situation.  It turned out that the woman who claimed she'd been raped was in fact the wife of the man she'd accused and it was their practice on occasion to drink at bars and engage in rough sex in the car later.

I knew there was something funny about that case, which is why I wrote the note about getting a plea, not expecting that one of my colleagues would follow through on it.

After handling enough rape cases one begins to develop a sense of which ones will fly and which won't.

The rape detectives had their own way of demonstrating this sixth sense.  They'd say, "This is a good victim," or "This is a bad victim."  Prostitutes have been known to holler rape when not paid, I was told.  Women would sometimes have hidden motives for making a rape accusation that was groundless.  It was up to us to have our antennas tuned so we weren't taken in by someone with one of these hidden motives.

I'll give you an example of a hidden motive leading to a false charge of rape that came up later in my defense practice when, naturally enough, other attorneys referred sexual misconduct cases.

The terrified young college boy seated in my office was 21 and had no criminal record.  His 13-year-old step-sister had told the police that he had raped her.  He denied ever going near her and neither he nor his mother were able to say why she would accuse him. 

My job was to represent the boy.

I called the police department and spoke to the sergeant assigned to the case.  He told me that two rape detectives had interviewed the girl, believed her, and were going to take the case to the district attorney for a complaint.  The boy would be arrested and charged with rape, a felony.

I told the sergeant that I'd spoken closely with my client and that he maintained innocence.  I asked whether the sergeant had himself interviewed the girl.  No, he hadn't, and hadn't planned to, since the two rape detectives were so experienced as investigators.

I knew that even experienced investigators sometimes got carried away by their pre-conceptions and presumed guilt where they shouldn't, so I asked the sergeant to please re-interview the girl himself.  "Why would I want to do that?" he asked, since she'd already been spoken to by the detectives.

"You might be a better investigator," I replied.  "In my experience, children don't fool adults, adults fool themselves," was all I could think to reply.  I'd recently defended a man who'd been falsely accused of sexually molesting his own 3-year-old daughter.  The case had taken a year of intensive pre-trial preparation followed by a month-long jury trial.  He'd turned down a plea deal for straight probation and no jail in order to go to trial on 61 counts of child sexual molestation worth 8 years each, stackable.  I'd thought long and hard about the things we believe that we shouldn't believe.  It's very hard to beat a no jail, straight probation offer in a felony prosecution of one count, much less sixty-one.  But I did.

The following week the sergeant telephoned and opened by saying, "I owe you a lunch."

Why was that, I wondered.

I spoke to the girl, he advised, and she admitted that she had made up the rape story.  Her reason was that she'd lived for several years alone with her father after he divorced her mother and was accustomed to being the center of his attention.  Now that he'd recently remarried the boy's mother, she was no longer the center of her father's attention, plus the new step-mother had been requiring her to stay home and do her school homework instead of spending time socializing with friend after school.  So she wanted to break up the new marriage.  The false story of rape was the means by which she was going to do it.

What about those two experienced rape detectives, I asked, how had she fooled them?

"She didn't fool them," the sergeant replied, "They fooled themselves."

Would you have been able to imagine such a thing?

Lord Hale's instruction advised caution before accepting uncritically some of the allegations we hear.  The more serious the accusation, the more supporting evidence we'd like to see.  Felonies at common law were punishable by death.  Allegations of sexual impropriety remain extremely serious.

How did you get her to tell you this, I asked the sergeant.

I told her that before we could proceed further, we'd need her to undergo a medical exam so that a doctor could advise whether she'd experienced sexual intercourse or been raped, he said.  Knowing that she hadn't, the girl 'fessed up and laid out the true story.

It turns out that he was a better investigator than the two experienced rape detectives.

Wisdom is knowing what not to believe, even if you're not sure why.

WMD comes to mind.

CONFIRMED

The Senate this morning confirmed John Roberts, 50, a former Rehnquist law clerk, assistant Solicitor-General, White House Office of Legal Counsel deputy, private attorney in appellate practice, and judge of the U.S. Court of Appeals for the D.C. Circuit, as Chief Justice of the United States, by a vote of 78-22.

Roberts was sworn in at the White House by John Paul Stevens, 84, the senior member of the Court who has served in the interim as Acting Chief Justice.

Pres. George W. Bush is expected to nominate a replacement for retiring Justice Sandra Day O'Connor by Monday.

Roberts stated that for him the essence of judging is that it is different from politics.  The AP report  tells the tale.

Below is a Newsday chronology of Roberts' life.

SCHOOLS MORE SEGREGATED NOW THAN IN 1954?

Nat Hentoff has been writing for the Village Voice (that would be Greenwich Village) since before I entered Greenwich Village's law school, NYULS, in the early 60's.  He's friendly with some of the professors, Norm Dorsen, as I recall, and now, apparently, Kenneth Starr, who's been teaching there since stepping down as Torquemada to the Clinton Administration. 

Mr. Hentoff has served as a sensitive voice in service of the First Amendment and he pays attention to the cases and the role of ideology on the Court.

His article on John Roberts and Brown v. Board (1954) the school integration decision, and how it has been gutted by subsequent rulings, is below:

PERSONAL VALUES

The reason that a guy like Roberts is nominated for a seat on the Supreme Court, upgraded to Chief Justice when his mentor, the late incumbent, dies, is because he can be trusted to do what's right by the people in power, in this case George W. Bush, who, in case it's slipped your memory, was appointed to the presidency by the same late incumbent, the fella' Roberts worked for.

What's right?

What's that?

What's right in the case of a conservative like Roberts, who clerked for the conservative Rehnquist, is to oppose abortion, favor the death penalty, oppose privacy except for property and people like you, which leaves out pregnant women and gays, oppose affirmative action as being, well, unequal, especially to people like you, oppose Congressional power when it conflicts with states rights, and oppose as much federal regulation of business as possible, which means that in a conflict between a developer and a toad, well, the toad is hapless, right?

Should you ever find yourself in the position, as Roberts did last week, of being nominated to the Chief-Justice-ship, or merely of line duty as an associate justice, you must remember this about Constitutional Law.  You cannot do it as a justice, chief or regular, unless you get confirmed.

How does one get confirmed?

One must pretend.

Pretend what?

One must pretend that one has no personal views or values worth mentioning, despite these being the ones that brought you to the dance in the first place.

When Roberts was clerking for Rehnquist, the Court was split in two over the death penalty and abortion.  The clerks were just as split, between the abolitionists of the death penalty and the killers, the abortionists and the anti-abortionists, the liberals and the conservatives.  See Edward Lazarus's "Closed Chambers."  Lazarus, a former clerk, spilled the beans.

Guess which camp Roberts was in. 

First clue:  he was nominated by Bush, of the right.

So for Roberts now to claim that he has no views, and since justices don't make law, he has no duty to tell what he believes in, because, after all, litigants have the right not to have their cases prejudged by judges who've tipped their hands, is a little insincere.

For if it is correct that justices make no law, and must decide cases without reference to their own core beliefs as to how the Constitution should read, if only it did, then why bother with the week-long charade of the hearing before the Senate Judiciary Committee, to be followed by a vote of the full Senate?

If it makes no difference what a justice, or a Chief Justice, believes, then why bother having him appointed by the president in the first place?  Why not just have a lottery and choose some private citizen who needn't even be a lawyer?  One person would be as good as the next, just like congressmen, when it comes to deciding cases.  Juries are composed of lay-people, why not Supreme Court justices, since neither makes law, right?

Wrong.

All Supreme Court justices DO is to make law, with every case decided.  The law made is either new or a reaffirmation of prior law.  Does the court extend the right of privacy to cover a new situation, such as gay rights in Lawrence v. Texas?  That's new law.

Do you think that Roberts would have voted in favor of the extension in Lawrence?  Neither do I.

Why?

Because of those personal views that got him appointed by Bush who was appointed by Rehnquist who served as Roberts's mentor back in the days when the justices, and their clerks, were split into two almost armed camps, liberal vs. conservative, abolitionist vs. killer as to the death penalty, and pro-choice vs. anti-abortion.

The only true conclusion when it comes to Supreme Court nominees, and justices, is that personal attitude and values are everything, not the nothing that the charade-meisters would have you believe.

I have trouble believing that there ARE really conservative people such as Scalia, Thomas, Rehnquist, and Roberts.  But, bowing to reality, I'm prepared to believe that Roberts is a conservative, not a liberal. 

Whether Roberts is as conservative as the others, above, is another issue.  It's hard to be that conservative and believe that private property is really private, that you have a right not to answer (for to answer would be to invade your privacy), etc, unless you believe that what's yours is private.  Private means not subject to the opinions of the nosy neighbors, you know, the voters. Private means not having your property taken because your socialistic neighbors think they know how to use it better, that is for the public good, than you do.  That was the Kelo v. New London case, last term.

If there's one value that conservatives really love, for themselves, is equality, liberty, freedom, and privacy. 

It's just that conservatives aren't all that happy about extending these rights to the less deserving, such as women, minorities, gays, and people whose religions don't begin with Abraham of Ur about 8,000 years ago, you know, the guy who quarreled with God and set the precedent for asking inconvenient questions of authority.  Now there was a man who had personal values he wasn't afraid to reveal even to God.

When you are finished shoveling aside all the Conlaw you've read, you will find that underlying all of the conflict(s) above is a divide that tells you what it's all really about. 

This is the basic conflict over how much of one's individuality must one relinquish in order to live in society, and how much society must give up in order to encourage individuals to develop and express their individuality.  It's "Be all you can be" (the volunteer Army's individualistic recruiting slogan) vs. "We're all in the same boat together" (Brandeis's more "socialistic" notion).

In case you weren't there, "socialism" aka communism, has been THE dirty word in American politics for the past century and more.  Never mind that the traditional family is run on communistic lines (the strong take care of the weak according to need, regardless of material contribution of the economically weak).

But this principle conflicts with the salutary greed principle on which a market economy (formerly known as a capitalistic society) works.  Why is greed salutary?  Because if you can harness greed productively, as we do, you have the most powerful engine of economy devised by man.  We've tried other incentives such as religion, patriotism, nationalism, and appeals to the brotherhood of man, but the fact is that when you see your lazy cheating neighbor taking it easy off the sweat of your brow, you don't want to support him, you want to shoot him.  So we throw him to the wolves in a dog-eat-dog world (witness the poor blacks of N. Orleans in the recent Hurricane Katrina and resulting flood) while we look out for ourselves.  Social Darwinism lives.

Now, of course, we need to support all those poor, broke people who fled their homes, jobs, and businesses, and hospitals, because we need them to wait on tables and blow jazz to bring the tourist money back so we can do it all over again until the next hurricane.  How much are the haves supposed to support the have-nots? This is that basic conflict underlying Constitutional law anywhere all over again.

To rebuild N. Orleans, and the three states of the area, Louisiana, Mississippi, and Alabama, that have been devastated, the rest of the country is going to have to pitch in and help with money and effort, on the theory "We're all in the same boat," of course.  Socialism kicks in to bring the forces of capitalism to bear.  The market economy will rise again, once the helping-hand economy sets people back on their feet again with tax dollars that came from the haves.

Ah, well, what goes around comes around, as they say.

STONEWALL ROBERTS

One of the more frustrating exercises this week was trying to watch the senators of the Judiciary Committee pry answers loose from John "Stonewall" Roberts about his personal attitudes on anything, from constitutional doctrine to social attitude to cinema. He did admit to liking Dr. Zhivago (1965) which is not a big clue. Roberts's problems stem from the fact that he's caught in the middle of the culture war between left and right, conservative and liberal, originalist and textualist, etc. He's been nominated by a Republican president who until now has taken care to serve the conservative base that put him in the White House. Roberts is supposed to be a Rehnquist-trained ideologue. The only creatures to the right of that, outside the Rev. Pat Robertson who wanted to assassinate Hugo Chavez of Venezuela recently, would be Antonin Scalia and Clarence Thomas. So Roberts is stuck. He can't say how he feels about abortion, the commerce clause, federalism, states rights, economic justice, social justice, educational justice, civil rights, presidential power in the war on terrorists, etc., because if he so much as bows in a liberal direction he upsets the conservatives, and if he reveals the conservative leanings that put him here, he aggravates the liberals. Here's an article from the Washington Post that provides a taste of the Roberts frustration quotient:

STRIKE THREE

The Senate Judiciary Hearing on the nomination by Pres. Bush of John Roberts opened yesterday and the nominee came out with a statement about what kind of Supreme Court justice, make that Chief Justice, he'd make. 

He said he'd call balls and strikes fairly to both sides. 

Who could quarrel with that? 

Certainly not me, right? 

Wrong.

Here's my take, originally contributed to another forum:

***

UMPIRING MY FOOT

Sure, it's a clever metaphor.  Too clever.

Roberts was speaking past Sens. Kennedy, Schumer, Boxer, et. al., to the patrons in the bleachers and the TV viewers who may think they're such expert managers but don't realize that the call is on them.

What Clever John didn't tell 'em, with a straight face, was that in addition to calling balls, strikes, and the play at the plate:

(a) he'll be on the Standing Rules Committee with power to re-write the rules,

(b) the calls on the field apply to the fans in the stands, the bars, the jails, the bedrooms, churches, schools and hospitals, and

(c) the fans as well as the players can get home-towned badly when Big Government and Big Conservative are running the base-paths.

In fact, the reason for the hearings is that under the rules of the game as applied, interpreted and invented by the big Court under Rule One, while there's only a one-time effect on the players, which may be fatal, there's an all-day effect on the viewers, which may also be fatal.

And did I mention that each umpire serves for life, with no Commissioner having power to remove a crew for making consistently bad calls?

I wonder how Roberts feels about "Kill the Umpire!" 

Not that anyone would actually say that, of course.

rs

NOT YOUR AVERAGE PRACTICE OF LAW

Practice before the Supreme Court is a strange beast indeed, as the article below, by Michael Grunwald of the Washington Post, on John Roberts shows. 

Imagine not having to deal very much with real human clients.

SENATE JUDICIARY COMMITTEE

Getting first crack at John Roberts is the Senate Judiciary Committee, whose members are profiled in the Washington Post, below:

QUESTION: IF ROBERTS CAN'T BE CONFIRMED, THEN WHO CAN?

Roberts is a conservative.

Being a conservative is not a crime.

It may be an offense against humanity, but it's not a crime. 

We're all a bit conservative, some more than others, truth to tell.

Soon we'll be enthralled by the confirmation hearings in the Senate.  The Dems and Libs will be trying to pin the tail on the donkey, to prove he's unfit because he'll vote to repeal, meaning overrule,  Roe or another sacred cow of a case, which he probably won't, because there are better ways of accomplishing the purpose by letting it stand and gutting it further, a la Casey.

Does this mean he shouldn't be confirmed?

Why?

If he took this course as a justice that would put him with O'Connor, Kennedy, and Souter.  The conservatives get the result they want but not the symbolism.  Symbols may be more important to conservatives than actuality.

Roberts may be the least conservative person that Bush could've picked; or he could be mainstream conservative on some issues or even further to the right.  But the next nominee if Roberts's fails isn't likely to be more liberal. 

I'd go for the good lawyer.

Roberts seems like a good lawyer to me.  Shall I leave myself an out, such as "assuming he doesn't want to revive the Old Court?"  That would be the Lochner-era court epitomized by the 1905-1937 era which we've departed from ever since, not without considerable wrangling, but that's the way it goes.