Category: Law 2009-18
Cliven Bundy, Jim Comey, and the Problem of Political Prosecutions
What Is the ‘Unrelated Case’ That Caused the FBI to Reopen the Hillary Investigation?
NRO: What Is the ‘Unrelated Case’ That Caused the FBI to Reopen the Hillary Investigation?
(As we learned out shortly after I posted this, it was the latest Anthony Weiner sexting case).
Today in Vox
NRO: Today in Vox
Court Blocks Terry McAuliffe on Felon Voting, but He Won’t Give Up
Why Did Hillary Clinton Spend Three and a Half Hours This Morning With The FBI?
‘Borking’ Shows Why Senators Matter
Federal Investigation of Bill De Blasio Fundraising Yields NYPD Indictments
Is There Anything to a Lawsuit Accusing Donald Trump of Raping a 13-Year-Old Girl with Bill Clinton’s Billionaire Sex Buddy?
The New York Daily News Smears Catholic Bishop with a Bogus Bribe Charge
Six Thoughts on Free Speech and the Bankruptcy of Gawker
With Obama’s Endorsement of Hillary Clinton, He Should Appoint a Special Prosecutor
Three Thoughts on Donald Trump’s Supreme Court List
BREAKING: SCOTUS Rejects “One Man One Vote” Challenge
Release Your Testimony, Donald Trump
The Vindication of Rick Perry
RS: The Vindication of Rick Perry
The Court of Criminal Appeals of Texas, the state’s highest criminal court, today threw out the entirety of the bogus criminal indictment against former Governor Rick Perry. The indictment was always a farce, and worse. Farce, because it suggested that Democrats would go much further than Republicans ever would to destroy a political opponent; worse, because it actively sought to criminalize good government by charging Perry with a crime for attempting to use his power of the purse to compel Democrats to get rid of a corrupt, alcoholic District Attorney who tried to abuse her office to get out of a drunk driving rap. The entire episode is a vivid reminder of why Rick Perry has been one of this nation’s most admirable leaders over the course of his career, and a man who deserved better in his runs at national office.
A lower appeals court had thrown out half of the indictment, but the Court of Criminal Appeals opinion disposes of the whole abusive case, and is worth reading if you’re into the kinds of separation of powers issues that Justice Scalia championed for years on the U.S. Supreme Court, and which the Texas courts take more seriously as a result of explicit language in the Texas Constitution:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
The court began by ruling that it would make an exception to its normal rules regarding “as applied” pretrial constitutional challenges to an indictment (i.e., arguments that the statute was unconsititutional only as it applies to this situation, not as to every possible set of facts) because of the importance of separation of powers to good government:
If a statute violates separation of powers by unconstitutionally infringing on a public official’s own power, then the mere prosecution of the public official is an undue infringement on his power. And given the disruptive effects of a criminal prosecution, pretrial resolution of this type of separation of powers claim is necessary to ensure that public officials can effectively perform their duties.
Turning to Count I of the indictment’s charge that Perry misused public money by vetoing the budget of the DA’s Public Integrity Unit in order to require it to show some public integrity of its own, the court emphasized that the public purposes to which a veto is put cannot be criminalized without destroying the veto power:
The Legislature cannot directly or indirectly limit the governor’s veto power. No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime…the governor cannot by agreement, on his own or through legislation, limit his veto power in any manner that is not provided in the Texas Constitution…When the only act that is being prosecuted is a veto, then the prosecution itself violates separation of powers…A governor could be prosecuted for bribery if he accepted money, or agreed to accept money, in exchange for a promise to veto certain legislation, and a governor might be subject to prosecution for some other offense that involves a veto. But the illegal conduct is not the veto; it is the agreement to take money in exchange for the promise.
Count II charged Perry with “coercion of a public servant” for threatening the veto before he issued it, in order to pressure the DA to step down, as she should have. The lower appeals court had concluded that this statute applied in this manner would be massively overbroad in criminalizing completely legitimate politics:
The court of appeals recited a number of hypothetical situations offered by Governor Perry to illustrate the improper reach of the statute:
• A manager could not threaten to fire or demote a government employee for poor performance.
• A judge could not threaten to sanction an attorney for the State, to declare a mistrial if jurors did not avoid misconduct, or to deny warrants that failed to contain certain information.
• An inspector general could not threaten to investigate an agency’s financial dealings.
• A prosecutor could not threaten to bring charges against another public servant.
• A public university administrator could not threaten to withdraw funding from a professor’s research program.
• A public defender could not threaten to file a motion for suppression of evidence to secure a better plea bargain for his client.The court agreed that the statute would indeed criminalize these acts. The court also offered its own hypotheticals: that the statute would appear to criminalize a justice’s threat to write a dissenting opinion unless another justice’s draft majority opinion were changed, and the court’s clerk’s threat, when a brief is late, to dismiss a government entity’s appeal unless it corrects the deficiency.
A cynic would note that these examples cut rather too close to home for the judges.
The Court of Criminal Appeals agreed that the First Amendment to the U.S. Constitution would be violated by the prosecutor’s broad view of what could be criminalized in a public official’s veto threats. The court noted that more specific situations of real misconduct like bribery were already covered by other statutes, and added its own list of real-world political give-and-take (which it linked to news reports of ordinary Texas politics) that would become crimes:
Th[e statute covers officials who] include[] the Governor, Attorney General, Comptroller, Secretary of State, Land Commissioner, tax-assessor collectors, and trial judges. Many threats that these public servants make as part of the normal functioning of government are criminalized:
• a threat by the governor to veto a bill unless it is amended,
• a threat by the governor to veto a bill unless a different bill he favors is also passed,
• a threat by the governor to use his veto power to wield “the budget hammer” over a state agency to force necessary improvements,
• a threat by the comptroller to refuse to certify the budget unless a budget shortfall is eliminated,
• a threat by the attorney general to file a lawsuit if a government official or entity proceeds with an undesired action or policy,
• a threat by a public defender to file, proceed with, or appeal a ruling on a motion to suppress unless a favorable plea agreement is reached,
• A threat by a trial judge to quash an indictment unless it is amended.Of these, the only example involving anything unusual is the one in which the comptroller actually followed through with her threat not to certify the budget. At least some of these examples, involving the governor and the attorney general, involve logrolling, part of “the ‘usual course of business’ in politics.”
Another indication of the pervasive application that the statute has to protected expression is that the last example we listed above occurred in this very case. Concluding that quashing Count II would be premature, the trial court ordered the State to amend Count II of Governor Perry’s indictment. But a trial court has no authority to order the State to amend an indictment; the State has the right to stand on its indictment and appeal any dismissal that might result from refusing to amend. The trial court’s order that the State amend the indictment was, in practical terms, a threat to quash Count II if it were not amended. And the trial court’s exact words are of no moment because the statute refers to a threat “however communicated.”
The regular and frequent violation of the statute by conduct that is protected by the First Amendment suggests that the statute is substantially overbroad.
In theory, because the dismissal of Count II was on federal Constitutional grounds, the prosecutor could appeal that ruling to the 8-member U.S. Supreme Court, but it appears that this is the end of the line. Rick Perry stood his ground for honest government and was branded a criminal for doing so, long enough to help hobble his 2016 Presidential campaign. Everyone involved in that effort should be ashamed of themselves. But tonight, Governor Perry can hold his head high, as he has been completely vindicated.
Antonin Scalia’s Political Philosophy
A Nutty Plan To Confirm An Obama Nominee To Replace Scalia – After The Election
RS: A Nutty Plan To Confirm An Obama Nominee To Replace Scalia – After The Election
Barack Obama’s nominee to replace Justice Scalia on the Supreme Court cannot be confirmed by the U.S. Senate without the co-operation of Republicans, because there are 54 Republicans in the Senate. That’s enough to block Democrats from getting (1) the 50 votes needed to confirm (the tiebreaking 51st would be Vice President Biden), (2) the 60 votes needed to break a filibuster, or (3) the 50 votes needed (plus Biden) to change the Senate rules to eliminate the filibuster. Of course, if Hillary Clinton wins the presidential election, the nomination could be sent back and the GOP would likely have to confirm someone acceptable to her. But otherwise, while they can use Senate procedure to make it painful for Republicans to hold the line, it looks like the Democrats would have no recourse if Republicans win in November, thus setting up the presidential election as the closest thing we have had in memory to a direct referendum on the Supreme Court.
Judging by this NBC News report by Ari Melber, some Democrats are now floating a novel idea: that if they lose the presidential election but recapture the Senate, they could vote down the filibuster rule and ram through a nominee in the 17-day interregnum between when the new Senate is seated January 3 and when the new President is inaugurated (and the nomination rescinded) on January 20.
Let’s unpack the problems with this scenario.
Problem 1: Coattails It’s really hard to win back the Senate without also winning the presidential race. Yes, there have been years like 2000, when Democrats gained four Senate seats while losing nationally. But 2000 was really unusual (Gore, as you’ll recall, won the national popular vote). Let’s look at the six states where Democrats picked up seats in 2000, measured by the Democrats’ two-party presidential vote in those states in 1996 and 2000 (five of these six had Republican incumbents; Florida was an open seat):
Delaware: 58.6% in 1996, 56.7% in 2000
Washington: 57.2% in 1996, 52.9% in 2000
Michigan: 57.3% in 1996, 52.6% in 2000
Minnesota: 59.4% in 1996, 51.3% in 2000
Florida: 53.2% in 1996, 50.0% in 2000
Missouri: 53.6% in 1996, 48.3% in 2000
And then there’s the two states where Republicans had Senate pickups, again by the Democrats’ share of the two-party vote:
Nevada 50.6% in 1996, 48.1% in 2000
Virginia 48.9% in 1996, 45.9% in 2000
In other worse, aside from Florida (which was famously 50/50 that year), Democrats picked up a Senate seat in only one state Gore lost, and their pickups included two states where Clinton had carried 52-54% of the two-party vote four years earlier, and four where he carried 57-60%. This was a very bad map for Republicans.
Now let’s look at the 2016 Senate races, and you will see that while the GOP has a lot of headaches to defend, it will be hard for Democrats to match 2000 without winning the national election. Here’s the GOP Senate seats up this year in states where the Democrats won at least 44% of the two-party presdential vote in 2012:
Illinois (Kirk) 58.6%
Wisconsin (Johnson) 53.5%
Iowa (Grassley) 53.0%
New Hampshire (Ayotte) 52.8%
Pennsylvania (Toomey) 52.7%
Ohio (Portman) 51.5%
Florida (open – Rubio) 50.4%
North Carolina (Burr) 49.0%
Georgia (Isakson) 46.0%
Arizona (McCain) 45.4%
Missouri (Blunt) 45.2%
Indiana (open – Coats) 44.8%
South Carolina (Scott) 44.7%
Two Democratic seats are also up in states where the GOP was competitive but unsuccessful in 2012:
Nevada (open- Reid) 53.4%
Colorado (Bennet) 52.8%
That’s a map with a lot of opportunities for Democrats and peril for Republicans, but unlike 2000, there’s only one Republican (Kirk) rather than four running in deep-blue territory the presidential race is likely to ignore or bypass. It would be highly unusual for Democrats to sweep this many Senate races in key presidential battleground states while the top of their ticket is losing those states.
Problem 2: Five Votes Are Harder Than Four On top of the difficulty of capturing the four (net) Senate seats needed to retake the Senate is the difficulty of gaining the fifth Senate seat necessary to keep the Senate after January 20, when Biden would be replaced by a Republican Vice President who would cast tie-breaking votes. Put yourself in the shoes of Chuck Schumer, the likely new Democratic Leader after Harry Reid retires. You just regained a Senate majority. You have the chance to seize something of enormous value, yes: a lifetime Supreme Court appointment. To do so, you have to pass a filibuster rule change that strips the Senate minority of long-cherished rights and drastically reduces their power. But you also know that the result is to completely and irrevocably poison the well with Senate Republicans and the incoming Administration.
If you picked up five seats, this may seem like a worthwhile tradeoff and one that will allow you to rule the Senate with an iron fist and negotiate with the new Republican President and Speaker Ryan from a position of strength. But if you only gained four seats, your majority will only last three weeks, and you will have destroyed powers your own caucus will badly want to use to stop a united GOP with the White House and both Houses of Congress for the remaining two years. Heck, you might even get them so angry they decide to pass a Court-packing plan to add two new Justices, and you just disabled yourself from stopping it as well as denuding yourself of any possible arguments for doing so.
Problem 3: What About Red State Democrats? Finally, let’s recall that no matter the margin we’re discussing here, it would require a lockstep unified Democratic caucus. Schumer or whoever else replaces Reid may well have that on many issues, but a dramatic burning of bridges with socially conservative voters may not be one of them. There are five Democratic Senators who still represent states that even Mitt Romney carried in 2012: Heidi Heitkamp in North Dakota, Jon Tester in Montana, Joe Donnelly in Indiana, Joe Manchin in West Virginia, and Claire McCaskill in Missouri. All five are up for re-election in 2018, as are Democratic Senators in Florida, Virginia, Ohio, Pennsylvania and Wisconsin who rode the wave of Obama-driven turnout in 2012. And if any of those Senators did defect from the plan, they would face certain doom in a primary. No incoming Senate Majority Leader – who after all needs their votes to get the job on January 3 in the first place – would want to put so much of his caucus in that much peril right from the outset if he can avoid it.
Democrats may well win this fight, if they can recapture the White House. But unless they do so, the plan for a January Surprise is a spectacularly impractical one.
[Standard disclaimer: the above analysis assumes that the Republican Party continues to exist after mid-June. If Donald Trump were to capture enough delegates win the Presidential nomination, it would effectively dissolve the party, and any attempt to analyze the dynamics on Capitol Hill in terms of the existing two-party system would have to be recalibrated from scratch]
Closing The Book On The Silent Generation
Scalia and South Carolina
Up With Scalia, Down With Kasich
My Latest, 9/17/15
Latest Roundup
How The Supreme Court Created Kim Davis
A thread previously on Storify
Justice Scalia explains why Kim Davis should issue marriage licenses to same-sex couples or find a new job https://t.co/qhHRugHcpA @VolokhC
— Jonathan H. Adler (@jadler1969) September 2, 2015
Scalia is right, but of course liberals berated him when he said this. https://t.co/oxQwFEnFKf
— Dan McLaughlin (@baseballcrank) September 2, 2015
There's always a right, even a duty, to civil disobedience, but with it comes the duty to take the consequences.
— Dan McLaughlin (@baseballcrank) September 2, 2015
1. Such sympathy as you find on the Right for Kim Davis derives directly from the brazen lawlessness of Obergefell itself.
— Dan McLaughlin (@baseballcrank) September 3, 2015
King v Burwell
I forgot to add this one the last time I updated here – I didn’t get around to writing up a full analysis of the King v Burwell decision and its many glaring flaws, but I did put together a Storify essay from my Tweets.
2018 UPDATE: Storify is going out of business, so I’m reprinting this below the fold.
Welcome Back, Blog!
I’ve been neglecting this blog rather badly for altogether too long – the archives say I haven’t posted here since September 21, 2014. I’ve been busy in the interim on Twitter, of course, and publishing elsewhere. I probably need to post archived versions of some of those posts here. For now: links.
I will start with The Weekly Standard, where I have this issue’s cover story, just posted today: Giving Thomas His Due, on Justice Thomas’ opinions over the past year and what they tell us about his philosophy. [ETA: Link to the archived original now available here, the print version here, and the live version at the Washington Examiner here]
The Federalist
Then there’s The Federalist, where I tend to post my longer essays these days. I ran a lengthy 5-part essay prior to the Obergefell decision, “Can Gays And Christians Coexist In America?”. Part I looked at the Biblical reasons why Christians believe in one-man-one-woman-for-life marriage. Part II looked at the history of Catholicism and other Biblical Christianity in the battles over slavery and Jim Crow. Part III looked at the Christian concept of scandal and the battle between liberty-based and equality-based views of “LGBT rights.” Part IV looked at the legal arguments over the rational basis for distinguishing between opposite-sex and same-sex marriage. And Part V traced possible ways forward for coexistence post-Obergefell, which admittedly are not looking especially promising at the moment.
The First Principle Of U.S. Foreign Policy looked at various approaches to our foreign policy.
Others from the fall, including some of my poll-analysis posts:
The Ferguson Riots Are Nothing Like The Original Tea Party Protests
Polling Postmortem: The Best And Worst Senate Polls Of 2014 (I keep meaning to run the companion piece on the Governors races before 2016 polling heats up).
Do Democrats Always Win Close Statewide Elections? (covers the 1998-2013 elections; I should update this with 2014 results).
Listening To President Obama’s Ebola Advice Could Get People Killed
And of course, if you missed it last time, my essay on how History Is Not On The Democrats’ Side In 2016 is still an important read on the coming election, undoubtedly the most significant piece I will write on the 2016 election.
RedState
The Rise & Fall of the Confederate Flag in South Carolina – I wrote this a few weeks back, but it’s very relevant to today’s news.
Reading Tea Leaves on the 2015 Supreme Court Term – Basically just some educated speculation on who would write what and when, which ended up having mixed results.
Democratic Party Now Literally Selling Hate – a Father’s Day gift post!
Bernie Sanders, Deodorant and Diversity – a meditation on central planning and markets.
Marco Rubio Recounts The History of Obama’s Treatment of Israel – quick hit on a great Rubio floor speech. Rubio isn’t my first choice in 2016, but he’s done nothing but impress this year.
From the fall:
2014 and Republican Morale – a GOP victory lap and a reflection on what it meant.
The Breakers Broke: A Look Back At The Fall 2014 Polls – A personal victory lap on my 2014 poll analysis and how it relates to the polling controversies of 2012.
The 2014 Polls And The 2012 Exit Polls – An earlier look at the same topic and at some specific issues with exit polling and poll methodology.
Nobody at Vox.com Has Read The Fourteenth Amendment
BREAKING: Supreme Court Takes Obamacare Subsidies Case (on King v Burwell).
First Cut: 7 Polling and Elections Lessons From 2014 (Immediate 2014 election aftermath)
Why I Voted Yes On Question 1 (NY) (Election Day post on a NY ballot initiative)
Final Senate Breakers & Governors Breakers Report November 3, 2014
Senate Breakers Report October 30, 2014
Governors Breakers Report October 30, 2014
A Sad and Desperate Attack on Chris Christie – Actually a fairly deep dive on voter fraud controversies.
Governors Breakers Report October 22, 2014
Senate Breakers Report October 21, 2014
Senate and Governors Breakers Report October 10, 2014
Senate Breakers Report and Governors Breakers Report: Oct 1
Introducing The Senate Breakers Report – September 26, 2014, the start of my Fall 2014 stretch drive when I started getting too busy to cross-post here.
Recent Posts Roundup
Now that my posts are single-sourced to RedState and The Federalist (for Google/traffic reasons), I’ve been forgetting to link to them all here. A roundup of my latest:
At RedState:
Halbig’s Critics Hoist By Their Own Petards
Obama Peddles Impeachment Conspiracy Theories To Raise Money
John McCain on the Decline & Fall of the United States Senate
Josh Marshall & TPM Promise a “BOOM,” Deliver A Dud
Obama Administration Lied About Insurance Company Bailouts
At the Federalist, a cross-posted version of the Obamacare bailouts piece.
Josh Marshall & TPM Promise a “BOOM,” Deliver A Dud
RS: Josh Marshall & TPM Promise a “BOOM,” Deliver A Dud
There’s a well-known saying among lawyers that when the facts are against you, argue the law; when the law is against you, argue the facts; and when the facts and the law are both against you, pound on the table and yell like heck. The behavior of Josh Marshall of TalkingPointsMemo is just the latest illustration of this axoim among the critics of Halbig v Burwell, who keep ratcheting up the temperature of their rhetoric in a none-too-thinly veiled effort to paper over the weakness of their argument on the law and the facts. But don’t just listen to me – look at the evidence.
Continue reading Josh Marshall & TPM Promise a “BOOM,” Deliver A Dud
Halbig’s Critics Hoist By Their Own Petards
RS: Halbig’s Critics Hoist By Their Own Petards
This has not been a good week for defenders of Obamacare and their scorn for the legal arguments challenging whether the statute provides subdsidies for buyers of health insurance policies on the federal Helthcare.gov exchange. On Monday, a divided panel of the DC Circuit ruled in Halbig v Burwell that the statute only provides subsidies for purchases on the state exchanges (the Fourth Circuit reached the opposite conclusion). The reaction to Halbig from pundits on the Left – most of them not lawyers, and many of them obviously woefully ignorant of how courts read laws – can only be characterized as an unhinged meltdown. The latest news has only further undermined their position.
Continue reading Halbig’s Critics Hoist By Their Own Petards
Latest Posts
More of my latest posts, off the site. At RedState:
DC Circuit Blocks Obamacare Subsidies, Mandate in 36 States (updated with the Fourth Circuit’s decision)
Could Elizabeth Warren Face Ted Cruz In 2016?
8 Myths In The Immigration Debate
At The Federalist:
17 Ways Driverless Cars Could Change America
DC Circuit Blocks Obamacare Subsidies, Mandate in 36 States
RS: DC Circuit Blocks Obamacare Subsidies, Mandate in 36 States
A divided panel of the DC Circuit this morning handed down its long-awaited decision in Halbig v Burwell, holding 2-1 that Obamacare does not provide subsidies for purchases of insurance on the federal Healthcare.gov exchange, and that the individual mandate does not apply in states that have not established their own state exchanges. The decision, based on the plain language of the statute (and not any Constitutional issue), is a huge blow to Obamacare, but is almost certainly not the last word in this litigation (which may yet go to the full DC Circuit and/or the Supreme Court) or in the political battle over the exchanges.
UPDATE: The Fourth Circuit has just handed down a ruling coming to the opposite conclusion, which increases the likelihood that the Supreme Court will have to step in.
Continue reading DC Circuit Blocks Obamacare Subsidies, Mandate in 36 States
A Good Day For The Rule of Law
It is not the job of the court system to tell us what is right, or just; to make policy for us or govern our lives. But it is the job of the court system to police the basic rules of the road that keep our various elected officials, administrative agencies and lower courts from exceeding the powers the People, in the Constitution and laws, have entrusted to them. And today was a good day for the rule of law and a bad one for abuses of power:
1. The Supreme Court held 9-0, in an opinion by Justice Breyer, that President Obama abused his recess appointment power by unilaterally appointing members of the NLRB withouut asking the Senate. The Court split 5-4 on exactly how broad the recess-appointments power is, but all agreed that the President cannot just unilaterally claim that the Senate is in recess (for purposes of bypassing it) when the Senate itself (even Harry Reid) says that it is not in recess. That renders many of the NLRB’s acts over a period of years invalid (although proper appointments were eventually made). So much for Obama’s vaunted status as a Constitutional scholar; even his own appointees didn’t buy his nonsense.
Justice Breyer left some wiggle room, however, for future debates over exactly when the Senate is recessed:
Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, would have gone further in scaling back the recess power. Scalia reminds us of a favorite point of his, that separation of powers is the true backbone of Constitutional liberty:
2. The Court also held, in a 9-0 loss for Martha Coakley (now running for Governor of Massachusetts) that Massachusetts abused its power under the First Amendment by a blanket ban on protests within 35 feet of an abortion clinic. As Chief Justice Roberts observed, this ban was so draconian that it prevented women entering the clinic from being exposed to peaceable forms of persuasion:
Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm….Respondents point us to no evidence that individuals regularly gather at other clinics, or at other times in Boston, in sufficiently large groups to obstruct access. For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution.
Justice Scalia would again have gone further, noting evidence that the buffer zones were deliberately intended to discriminate against pro-life viewpoints:
This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence.
3. Meanwhile, the New York Court of Appeals, the state’s highest court, by a 6-1 vote struck down former Mayor Mike Bloomberg’s Big Soda ban in a challenge brought by the Hispanic Chamber of Commerce. The court concluded that the agency that passed the ban was not entitled to create policy-making legislation (a common feature as well of President Obama’s agencies). A few key excerpts explain why unelected executive agencies (like courts) should not set policy:
Indeed. A good day for a government of laws, not of men.
Interstate Commerce and Interstate Sales of Health Insurance
Tough Day In Court For Obamacare
Legal Times has the story from the D.C. Circuit on the suit challenging subsidies on Obamacare’s federal exchanges on the ground that the plain language of the statute doesn’t allow them. I recommend these backgrounders on the case from Sean Trende and Michael Cannon.
You can never tell for certain from oral arguments, and there have been some surprise twists already in this case, but these comments don’t sound encouraging for the federal exchange subsidies. A few excerpts – there’s much more in the story:
“If legislation is stupid, I don’t see that it’s up to the court to save it,” said Senior Judge A. Raymond Randolph…Randolph and Judge Thomas Griffith seemed inclined to side with foes of the law, who told the panel that lower-income people are only eligible for tax credits if they buy health insurance through an exchange established by a state – not one set up by the federal government…
…[Randolph] called the Affordable Care Act “a last-minute deal filled with a lot of predictions, even the title,” and said the predictions have not been born out. “The launch was an unmitigated disaster,” and the costs of implementation “have gone sky-high,” he said. “Suppose Congress made another prediction” – that if the tax credits were conditioned on setting up exchanges “all the states would line up for this deal.” But this prediction too was not borne out, he said.
…”The legislative history is a wash,” Griffith said. “There doesn’t seem to be any clear legislative history.” Without evidence of congressional intent, Griffith said, “You have a special burden” to show that the plain language of the statute “doesn’t mean what it appears to mean.”
Randolph added, “What we’ve got here is language that doesn’t seem malleable.” If the court knows “the clear purpose of the statute” – in this case, to provide affordable health insurance – but Congress “didn’t write it clearly enough, is it our job to fix the problem?,” Griffith wondered.
Randolph said no. The court can overrule plain statutory language based on the “absurdity principle, but I don’t see a stupidity principle.”
Stay tuned.
Court: Planned Parenthood Violated Fourth Amendment in Home Raid
“An incident that is more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect in the United States of America”
Sometimes, the recitation of facts in a judicial opinion speaks volumes. A decision this morning from the U.S. Court of Appeals for the Sixth Circuit in Ohio, captioned Bray v. Planned Parenthood, et al., No. 12-4476 (6th Cir. Mar. 21, 2014), is one of those cases.
Michael Bray, the plaintiff, is not a terribly sympathetic character; he wrote a book in 1994 advocating violence against abortionists, and served four years in prison in the 1980s for a series of bombings of abortion clinics. (Like Bill Ayers, Bray never injured anyone and denies any intent to do personal harm, but as we know, setting off bombs in populated areas is a hazardous business). In 1993, the Supreme Court ruled 5-4 that clinic protests by he and his wife Jayne did not violate the Civil Rights Act of 1871, a/k/a the Klu Klux Klan Act, but the following year, at the urging of the Clinton Administration, Congress responded by passing the Freedom of Access to Clinic Entrances Act. Planned Parenthood immediately filed suit against Bray in Oregon under the new federal statute that was more or less designed to target him, and won a $110 million jury verdict, reduced on appeal to $850,000. It then set about trying to collect the judgment from Bray’s book sales, which as you may imagine don’t seem to have been particularly extensive.
By 2007, further legal proceedings were underway in Ohio, where the Brays live with their seven children. Bear in mind that, while Planned Parenthood at this juncture was entirely in the right in seeking to collect on a valid judgment, this was no more than that: debt collection. Yet when the Marshals came to the Bray house, they brought not only four Marshals, two county sheriffs’ deputies and an ATF agent, but also two outside lawyers for Planned Parenthood and a number of other unknown individuals (apparently from Planned Parenthood as well) to root through the house videotaping the place, taking books, computers, manuscripts, cameras and camcorders. Many of those items were later returned by the court on grounds of having been improperly seized, but in some cases only well over a year later and after much legal wrangling. Here’s how the Sixth Circuit characterized these facts (as alleged in the Brays’ complaint):
If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect in the United States of America. A surprise raid was made on a judgment debtor’s home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas. The debtor was required to sit on his couch while flak-jacketed U.S. Marshals, along with agents of advocates for moral and political positions that the debtor despised, plus persons with unknown identities and purposes, went through and seized the books and papers, and computers and cameras, of the debtor and his family. The only exception was for children’s books and Bibles. The interior of the home was videotaped. The debtor was not allowed to leave the couch, to go outside, or to call his lawyer, although eventually a marshal called the debtor’s lawyer.
This kind of home attack on the ability to convey ideas should not happen in our Republic. It is true that the debtor’s ideas – that it is moral to take violent, illegal action to stop abortions – are repugnant. But it is contrary to our fundamental norms to permit government-sanctioned attacks on the purveyance of ideas, even when those ideas are repugnant.
In ruling on the Brays’ civil suit against Planned Parenthood and the Marshals, the unanimous three-judge panel (which included Judge Bernice Donald, an Obama appointee) found that the presence of Planned Parenthood representatives wandering around the house and videotaping violated the Fourth Amendment, and undermined any claims by the Marshals that there was a genuine security threat presented by the Brays and their children to justify such a heavy-handed raid:
No countervailing governmental interest justified the four-hour detention of Michael Bray. For one thing, the raid presented none of the operational and safety concerns that may justify seizing the occupants of a home during the execution of a criminal warrant….Allowing Michael Bray to leave his home or to use the telephone would not have threatened the completion of the search. Nor would an unrestrained Michael Bray have presented a safety concern. To the contrary, the marshals’ own actions belie that argument. Had the marshals believed that not restraining Michael Bray risked violence, they would not likely have permitted numerous representatives of PPCW to join in a surprise raid of his home.
Inviting multiple representatives from PPCW to join the search did more than undermine the argument that the marshals believed Michael Bray to be a safety threat. In addition, the action violated the Fourth Amendment because it exceeded the writ, which authorized only “a representative from [PPCW]” to “be present to assist in the identification of property subject to seizure.”…Contrary to this clear instruction, the marshals permitted not one, but “numerous” representatives of the organization to join the raid…
Adding further support to the conclusion that the marshals’ actions violated the Constitution, the presence of multiple unauthorized representatives of PPCW served no valid purpose under the writ. Although the Fourth Amendment does not require that all conduct by an officer within a home be expressly authorized by a court order, it does demand that actions relate to the lawful objectives of the order…PPCW had no articulated expertise in satisfying the ostensible purpose of the writ, identifying valuable goods to satisfy a monetary judgment.
Moreover, because the presence of additional representatives of PPCW was not authorized, and because the writ made no provision for the use of a camera, it was a violation of the Fourth Amendment to permit the organization to film the home. A person who is not lawfully present in a home may violate the Constitution by engaging in warrantless filming of the area. The Supreme Court made clear…that the right to be present in a home does not necessarily entitle police to bring photographers with them. In this case, the unauthorized filming of the Brays’ home was particularly unreasonable because the raid was unannounced and the filming occurred within the home itself. Moreover, because of the location and nature of the filming, the use of the camera posed a heightened risk of intimidating the family and capturing its intimate, unguarded moments.
As it turned out, because the Brays had settled with Planned Parenthood and certain other defendants, the court ended up dismissing the remaining claims against the Marshals, finding that while they had participated in an unconstitutional raid, they were immune from civil suit under the doctrine of “qualified immunity” because they had been carrying out a valid court order and may not have realized that they were going far enough afield for a clear constitutional violation (qualified immunity law requires that law enforcement officials can be sued only when they clearly and obviously knew they were violating a Constitutional right; the doctrine protects cops from second-guessing by judges after the fact).
At the end of the day, the Brays may not be worthy of much sympathy, but the Constitutional rights of unpopular citizens can matter to the rest of us, especially when the people trampling on those rights come from an organization like Planned Parenthood that is all too accustomed to getting its way in the legal system regardless of who gets hurt (just ask a Pennsylvania state legislator who is the cousin of one of Kermit Gosnell’s victims and now faces Planned Parenthood’s wrath). The Fourth Amendment’s protection against unreasonable searches of the home was put in the Constitution to protect our privacy. It is ironic, given its rhetoric, that Planned Parenthood does not respect that right.
Bill de Blasio, William Bratton & the NYPD
Bill de Blasio and the Law Enforcement Ratchet
Also published at The Federalist.
Is Bill de Blasio about to take New York City’s public safety back to the bad old days of rampant street crime and murder – or is he, like President Obama, mostly just slapping a new coat of rhetorical paint over largely unchanged security policies? The jury is still out, especially on the impact of a federal court decree that could yet hamstring the NYPD. But early indications suggest that de Blasio’s Police Commissioner, William Bratton, is determined to keep in place the core of the “stop and frisk” policies that de Blasio campaigned against – policies whose foremost national advocate is none other than Bratton himself. Mayor de Blasio’s fans and critics alike may have to grapple with the possibility that a lot less is going to change than his racially charged anti-law-enforcement campaign would suggest.
Mugged By History
Back in the pre-Giuliani days when muggings were a constant daily threat throughout New York City, they used to say that a conservative was just a liberal who had been mugged, and the City’s political history bears that out. After enduring three decades of rising rates of street crime and violence, New Yorkers finally rebelled in 1993, booting David Dinkins from office in favor of Rudy Giuliani, the most conservative mayor of the City in modern times.
As befits elections that determined the course of the City’s future safety and prosperity, the 1989 and 1993 Giuliani-Dinkins races engaged a far higher proportion of the city’s population than any election before or since – Rudy got 120,000 more votes in losing the 1989 election than de Blasio did in winning a landslide in 2013 in which less than 15% of New Yorkers voted:
That political reality can’t be lost on de Blasio: while national Democrats like Obama may fairly claim to have brought new voters into the process, de Blasio won on a tide of indifference and low turnout, and even in a city where Democrats have an 8-1 registration advantage (likely to grow after the devastation visited on Staten Island by 2012’s Hurricane Sandy), he needs to keep the sleeping giant of single-issue anti-crime voters (many of whom are fairly liberal on other issues) from reawakening.
For the moment, it’s held at bay by amnesia and complacency. Most of today’s progressives – most of New York’s voters, in fact – don’t remember the Dinkins years. Besides the 11% of voters under 30 in the 2013 election, there’s the fact that roughly a million of the city’s three million immigrants arrived since 2000, meaning that around 10% of New Yorkers only came to the United States since Mike Bloomberg became the Mayor. With that level of population turnover, New York lacks the collective memory to be alarmed, yet, by de Blasio’s rhetoric. But results are another matter.
Broken Windows: The NYPD in the 1990s
It’s hard to argue with the results that the Giuliani and Bloomberg Administrations achieved in New York, although a few die-hard Dinkins partisans – chief among them de Blasio, a former Dinkins aide married to another former Dinkins aide – argue that some of the credit should go to Dinkins himself for beginning the process of expanding the NYPD’s street presence.
Giuliani’s first Police Commissioner had actually served under Dinkins: Bratton had been Dinkins’ head of the Transit Police before moving to Boston to become Police Commissioner. And Dinkins’ own Police Commissioner, Lee Brown, had already begun implementing new ideas about “community policing” that required a more aggressive presence on the streets of high-crime neighborhoods, ideas that were expanded when Dinkins replaced Brown in 1992 with Ray Kelly (the same Ray Kelly who was the target of many of de Blasio’s barbs in his more recent tenure heading the NYPD). The idea that more patrolmen would have more interactions with the populace was already taking hold even before Rudy took office.
In 1994, Rudy brought back Bratton, naming him as Kelly’s successor to run the NYPD. Giuliani and Bratton brought the critical elements to the table that the Dinkins-Brown and even Dinkins-Kelly teams had lacked. The NYPD, from Bratton down to the ordinary beat cop, knew the Mayor was on their side even when they came under criticism – a major morale booster that had been lacking under the weak, ineffectual Dinkins, whose first instinct was always to pander to the Al Sharptons of the New York street. The new team brought an intense, demanding focus to restoring order (Brown, by contrast, had been nicknamed “Out of Town Brown” by the cops and the tabloids). They marshalled increasingly detailed data: the CompStat system, first developed by the Transit Police under Bratton, was rolled out city-wide, enabling the NYPD to track crime on a more detailed, weekly precinct-by-precinct and neighborhood-by-neighborhood basis and hold precinct commanders accountable for results. They put a social-science theory into practice as well: the NYPD went after low-level “lifestyle” street offenders like squeegee men, building on James Q. Wilson and George Kelling’s “broken windows” theory of how social disorder encourages crime. And at the core of this process, where the rubber met the road, was the day-to-day activity of cops patrolling dangerous, crime-ridden neighborhoods and taking a proactive approach to threats by stopping and frisking people who looked suspicious – never an error-free process but one that resulted in scores of arrests of criminals carrying illegal guns and drugs. In a real sense, Bratton earned the title of “the father of stop and frisk,” which he also later expanded in his tenure heading the LAPD from 2002-09.
The results in New York could hardly have been more dramatic – arguably the greatest success story of any domestic public policy initiative of the past half-century. The murder rate dropped by 70% from the high watermark of 2,245 murders in 1990, the worst of the Dinkins years. And the improvements in the crime rate went well beyond the headline homicide rate. As an NBER study observed:
During the 1990s, crime rates in New York City dropped dramatically, even more than in the United States as a whole. Violent crime declined by more than 56 percent in the City, compared to about 28 percent in the nation as whole. Property crimes tumbled by about 65 percent, but fell only 26 percent nationally….Over the 1990s, misdemeanor arrests increased 70 percent in New York City. When arrests for misdemeanors had risen by 10 percent, indicating increased use of the “broken windows” method, robberies dropped 2.5 to 3.2 percent, and motor vehicle theft declined by 1.6 to 2.1 percent.
Rudy was a revolutionary change-agent figure in New York, with a revolutionary personality; his abrasive, hard-charging style was a necessary element of his success, but it made him many enemies, and the magnitude of his success made him eager to claim the credit. And that led him into inevitable personality conflict with Bratton, himself an outsize personality who wanted his share of the limelight. Bratton left office abruptly in March 1996 after Giuliani ordered an investigation into a book deal Bratton had signed. Great success in fighting crime, but also controversies and the overshadowing tragedy of the September 11, 2001 terrorist attacks, would follow throughout Giuliani’s remaining six years in office. It would take his departure from office to allow his successes to be institutionalized and separated from his personality.
Operation Impact: The Bloomberg Years
The Bloomberg years seemed, for a while, to put the frictions of the Giuliani era behind the City; far from a crusading radical overturning the status quo, Bloomberg was by both temperament and circumstance a manager who inherited a City already pointed in the right direction and had the more prosaic task of making it run more efficiently. And for the most part, in the area of law enforcement, he did; the major crime rate continued to plunge to improbably low levels, even through the economic hard times that followed the 2008 financial crisis – rapes down by a third, burglaries dropped in half, car thefts down more than 75%. By 2013, Bloomberg and Ray Kelly (who served as Police Commissioner for the entire duration of Bloomberg’s 12-year tenure) could boast:
[N]ew all-time lows will be set in 2013 for the fewest homicides and fewest shootings in recorded city history. There have been 332 homicides so far this year, which is a reduction of 20 percent from the previous record low, which was established last year – and homicides have fallen nearly 50 percent since 2001. Similarly, the number of shootings have fallen by 20 percent from last year’s record low – with 1,093 shootings through Thursday, December 26th – down from 1,608 in 2001, a 32 percent reduction. Overall crime is now down 32 percent since 2001.
That success story bucked the national trend, which saw crime rates bounce back in many places after the policing revolution of the 1990s, and took place at a time when an increasing share of the NYPD’s resources were being redirected to anti-terrorism work. But the primary goal of maintaining order brought tension with Bloomberg’s continuing struggle to control the City’s budget. In 2003, Kelly launched “Operation Impact,” a plan to flood “impact zones” of high crime with patrol officers; the program was expanded in 2004 after producing sharp reductions in crime in the impact zones, and was doubled to more than 1,800 officers in 2007, about 5% of the whole Department. But the program relied on the ground-level work being done by raw recruits straight out of the police academy, leading left-wing critics to argue that it led to “officer burnout and overly aggressive tactics.” The 2008 financial crisis took a huge bite out of the City’s budget in Bloomberg’s third term, and even the NYPD wasn’t safe. Bloomberg pressed in 2010 and 2011 for cuts in the police force, and while he ultimately backed off the most aggressive plans, the NYPD ended his term as a shrinking share of the City’s government:
There are now roughly 34,500 cops on the beat, about the same number as there were in 1992 when the city was besieged by crime and down from 37,000 in 2002 when Bloomberg took office.
But the city’s overall workforce has grown, There are now roughly 271,000 full-time employees on the city payroll, up 10 percent from 247,000 in 2002…
…[T]he NYPD is facing an unprecedented wave of 10,000 retirements in the next three years. These are cops hired 20 years ago under the “Safe Cities, Safe Streets” program, which was hastily ordered in 1992 by then-Mayor David Dinkins and the City Council to combat a tidal wave of crime that gripped the city.
The tension between keeping a lid on the NYPD’s budget and maintaining its aggressive presence on the streets was balanced by putting the heaviest burden of policing on the least expensive, least experienced members of the Force. Unless deeper cuts could be made to other parts of the City’s enormous government, the new Mayor would have to decide if that balance should be reconsidered.
Why Bratton?
Given that de Blasio had run so hard to the Left during the election against “racial profiling” and promised to drop the City’s appeal of a federal court ruling that its “stop-and-frisk” policy was racially discriminatory, his decision to bring back Bratton seems more than a little puzzling at first glance. In 2006, Bratton co-wrote a strongly-worded defense of “broken windows” policing in National Review Online, blasting “ivory-tower academics” who “have never sat in a patrol car, walked or bicycled a beat, lived in or visited regularly troubled violent neighborhoods, or collected any relevant data of their own ‘on the ground’.” He has been critical of cities that “made the mistake of embracing” Occupy Wall Street. And Bratton remains a vocal defender of stop-and-frisk:
Bratton is an ardent supporter of the policy because he says it’s an effective means of reducing crime on the street. Last year, he even compared stop-and-frisk as a solution to crime to “chemotherapy” as a treatment for cancer. In an interview …with NPR, Bratton hinted that the policy would be an effective crime-fighting tool in Oakland.
Bratton defended stop-and-frisk as “essential,” and in a May 2013 interview with Jeffrey Toobin, before de Blasio’s emergence as a serious candidate, Bratton bluntly suggested that stop-and-frisk critics didn’t know what they were talking about:
“First off, stop-question-and-frisk has been around forever,” he told me. “It is known by stop-and-frisk in New York, but other cities describe it other ways, like stop-question-and-frisk or Terry stops. It’s based on a Supreme Court case from 1968, Terry v. Ohio, which focussed very significantly on it. Stop-and-frisk is such a basic tool of policing. It’s one of the most fundamental practices in American policing. If cops are not doing stop-and-frisk, they are not doing their jobs. It is a basic, fundamental tool of police work in the whole country. If you do away with stop-and-frisk, this city will go down the chute as fast as anything you can imagine.”
We also discussed the current controversy over stop-and-frisk under Raymond Kelly, Bloomberg’s Police Commissioner. “What you have right now is a controversy in which nobody really understands what they are fighting about,” Bratton said. “Stop-and-frisk is not a tool solely to look for guns. Unfortunately, both the Mayor and the Police Commissioner refer to it that way, and that’s a problem because so few guns are recovered. But so what? The vast majority of stops are for a wide variety of things. Is someone drinking a can of beer on the corner? You want to stop that behavior. If somebody is aggressively panhandling on the street, urinating against a building. Is there somebody that you suspect is casing a building? Or is that two guys just locked out of their apartment? Police officers notice what may be a burglary. Of course they should be noticing and investigating. There are countless examples of what you want police to do.”
Bratton’s tenure at the LAPD copied his approach in New York:
When Bratton led the LAPD, the department’s use of stop and frisk expanded significantly. In 2002, cops made 587,200 stops, and by 2008, they made 875,204 stops, an increase of 49 percent…
Critics noted that “[w]ell over 70 percent of 2008 LAPD stops in inner-city precincts were of African-American and Latinos, a ratio[] similar to New York’s.” Bratton’s LAPD stopped a lot more minorities – but also improved the accuracy of its stops:
The LAPD’s improved image coincided…with a 49% spike in stops of pedestrians and motorists from 2002 to 2008, according to a Harvard Kennedy School report. Blacks comprised 9% of the city’s population but accounted for 23% of all those stopped. Over the same period the number of stops which led to arrests doubled from 15% to 30%, suggesting the police tended to have good reason.
And yet, Bratton succeeded in greatly improving the LAPD’s relationship with the city’s minority population. He did that, in large part, not by backing down from aggressive policing but by old-fashioned community-relations outreach:
Even before formally taking over a police department scarred by race riots, corruption and brutality, Bratton sought out black leaders like John Mack, then head of the Los Angeles Urban League, and civil rights attorney Connie Rice. Rice warned she would sue him, as she did his predecessors, but he invited her to help him reform a force still tainted by the beating of Rodney King.
“He co-opted us, and he co-opted us into the mission of … the cultural transformation of LAPD,” she told the Los Angeles Times.
Bratton also recruited many more Hispanic police officers. One result of Bratton’s diplomatic outreach was that, at the end of his tenure in 2009, a federal court lifted a consent decree imposed in 2001.
There are various theories as to why de Blasio would bring back a Police Commissioner from the Giuliani era with such a long track record of promoting the very thing de Blasio claimed to oppose. One is that de Blasio was pressured into the pick by New York’s wealthy, liberal Democratic power brokers and bankrollers, who remain more important to his party than outraged leftists who regarded the appointment as a sellout – indeed, de Blasio just appointed a new head of the City Planning Commission whose experience is in gentrifying and Disneyfying Times Square, hardly a Left-populist move. Another is that he was more or less mugged by reality – once he knew he would be held responsible for keeping the City safe, he was forced (like Obama) to stop posturing and grow up. A third possibility is that de Blasio’s Dinkins partisanship is asserting itself, intent on showing that Bratton, not Rudy, should be given the credit for the City’s turnaround. Finally, there’s the possibility that de Blasio – an admirer of Daniel Ortega who honeymooned in Castro’s Cuba and voted to honor Robert Mugabe – isn’t really any sort of civil libertarian at heart, and wants a strong police force to carry out the sort of expanded government powers he craves.
Stop and Frisk is Dead…Long Live Stop and Frisk?
Whatever de Blasio’s motives, the solution that Bratton proposes is, in effect, to continue Operation Impact but replace its pairs of rookies with more experienced (and, by necessity, more expensive) cops:
The changes could include pairing rookies with veteran officers in local precincts and providing a broader training regimen, Mr. Bratton said. New officers may be assigned to radio cars before they are placed on the streets in high-crime neighborhoods, he said.
“Operation impact is not going away. I would hope to potentially expand it using seasoned officers,” Mr. Bratton said during a news conference at police headquarters. “The concern I have right now is that you have 10 or 12 of them assigned to one supervisor. I want to give these kids a much better training opportunity.”
He said instead of going after the “general population,” his cops will go after the “known criminal population” of a community. “In Los Angeles, we had a database of 40,000 known gang members,” he says. “We focused on them rather than good kids on the way home from school or work. We stop, questioned and frisked and often arrested those career criminals.”
He’s also been making this pitch to the legal community. The police union is, unsurprisingly, pleased with Bratton’s approach:
The Patrolmen’s Benevolent Association president, Patrick Lynch, released a statement saying the move is “consistent with the union’s philosophy of training” and that “Using rookies to meet numbered targets under the former system resulted in many of the problems we are now in the process of solving.”
This leaves the question of where – given his many other ambitions for New York City government and the many demands he will face from the teachers and other public employee unions – de Blasio will get the money to pay for this. It also leaves unanswered whether de Blasio’s supporters, who believed he was striking a decisive blow against what they regarded as a racist system, will be satisfied four years from now that law enforcement in the City has changed in a way they consider meaningful.
Continue reading Bill de Blasio and the Law Enforcement Ratchet
Same Sex Marriage Is Not the Same As Opposite Sex Marriage
At the core of the two same-sex marriage cases argued this week before the Supreme Court is the fundamental question of whether the Constitution requires the state and federal governments to treat same-sex marriage exactly the same as traditional, opposite-sex marriage for all purposes for all time, or whether it is permissible to draw reasoned distinctions between the two, ranging from California’s simple reservation of the term “marriage” to opposite-sex couples to the federal government’s comprehensive reservation of all federal benefits of marriage (including joint tax filings, Social Security benefits and immigration status) to opposite-sex couples. I respectfully submit that this should not be a difficult question. Common human experience, basic biology, and existing social science all confirm that there are significant differences between SSM and traditional marriage. Whether or not you support SSM as a political and policy matter, there should be no doubt as a legal matter that the state has the same legitimate right that it has always possessed to draw distinctions between the two in the many, many areas of law that touch on marriage and family life.
I have not, over the years, spent much time or energy on the battle over political recognition of same-sex marriage; while I don’t think it’s a wise idea, it is also not likely to have enormous consequences, for reasons I discuss below. Democracy works, however imperfectly: things done legislatively can be modified or undone the same way, can be adapted in different ways to the needs of different jurisdictions, and can be passed or amended with protections for conscientious dissent. Personally, for two decades, I’ve supported the “live and let live” option of civil unions, the moderate solution that allows people the freedom to choose whatever partner they want and make a life together, with the basic rights of contract, inheritance, hospital visitation and the like. Call it a marriage if you want, but without the official endorsement and coercive power of the state behind the name.
But the democratic process is one thing. A judicial determination that the Constitution prohibits recognition of any distinctions between the two institutions for all time would have much more far-reaching effects on our laws – effects we may not even be able to anticipate or foresee until creative lawyers have gone off to the races with this freshly-minted legal doctrine. We have seen, over and over, how changes in law and policy produce unforeseen or unintended consequences in the family and society; the institution of marriage in particular has buckled badly under a long series of liberal social experiments over the past five decades. You’d think that by now we would at least have learned to stop using irrevocable court decisions to open Pandora’s Box.
It does the law no good to pretend things that are not so. Whatever the merits of SSM, it is not the same thing as marriage between a man and a woman, and the differences are neither irrational nor insignificant. Even if you support SSM, the only reasonable conclusion is that male-male or female-female marriage is not the same as male-female marriage. Let us count the most obvious ways.
Continue reading Same Sex Marriage Is Not the Same As Opposite Sex Marriage
Jane Mayer’s McCarthyist Attack on Ted Cruz
The New Yorker’s Jane Mayer, in a pair of blog posts, served up the latest attempted Democratic Party talking point on freshman Texas Senator Ted Cruz: that Senator Cruz is the second coming of Joe McCarthy. (ThinkProgress coordinates with a predictable illustration for those too simple-minded to get Mayer’s point). As it happens, I have some firsthand knowledge of the subject of Mayer’s vague, thinly-sourced hit job. She’ll have to do better next time, because Ted Cruz is right about Harvard Law School in the mid-1990s. If she’d talked to more people, she might have figured that out.
Here’s the part of Cruz’s remarks at a 2010 event that Mayer presents as shocking evidence of Cruz’s mendacity:
He then went on to assert that Obama, who attended Harvard Law School four years ahead of him, “would have made a perfect president of Harvard Law School.” The reason, said Cruz, was that, “There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.”
Leaving aside Mayer’s failure to check a fairly basic fact in the president’s biography (Obama graduated in the spring of 1991; Cruz entered HLS in the fall of 1992), Cruz is absolutely right on the basic point here: there were multiples more Marxists on the Harvard Law faculty at the time than open Republicans. I know because I was there. I was a year behind Ted at Harvard, and was president of the HLS Republicans in 1994-95, when Ted was a third-year law student. I can’t say I knew Ted well at the time (he was more involved in the Federalist Society and Law Review), but we crossed paths a few times, and even then everyone knew he was a superstar who was going places in life. He was undoubtedly reflecting on the same things I saw in those days.
Aside from a generic denial by a current Harvard spokesman, Mayer’s only source for the original article is Charles Fried, my old constitutional law professor who was – at the time – the faculty advisor for the HLS Republicans, but has in more recent years become a vocal spokesman for all things Obama. On the one hand, Fried argues that Cruz has understated the GOP presence in the extensive Harvard faculty:
I can right offhand count four “out” Republicans (including myself) and I don’t know how many closeted Republicans when Ted, who was my student and the editor on the Harvard Law Review who helped me with my Supreme Court foreword, was a student here.
Ironically, given the tenor of Mayer’s article, she never asks Fried to name any of these people, but just takes him at his word that he has a list of Republicans on the faculty. Now, closeted Republicans may have been known to Fried in the faculty lounge, but they were of little help to those of us in the student body, seeing as how both the liberals and the left-wing radicals were all very open and vocal. At the time, I was aware of only one other Republican or conservative of any stripe on the faculty besides Fried: Mary Ann Glendon, who was busy during much of 1994 and 1995 with activities on behalf of the Vatican (which she represented at a 1995 conference in Beijing). The fact that we had so little representation on the faculty was a running joke among conservative students; I still have the t-shirts we printed after the 1994 elections:
When Fried was appointed to the Massachusetts Supreme Judicial Court in 1995, we legitimately feared that we would not be able to find a faculty advisor, which of course any student group needs; as it turned out, Professor Glendon stepped in with Fried’s departure. It may be the case that there were two other Republicans on the faculty, but to this day I have no idea who they were; I assume Ted Cruz didn’t either.
Of course, the more controversial part of Senator Cruz’s equation is his charge that there were Marxists on the faculty. Mayer weakly allows:
It may be that Cruz was referring to a group of left-leaning law professors who supported what they called Critical Legal Studies, a method of critiquing the political impact of the American legal system. Professor Duncan Kennedy, for instance, a leader of the faction, who declined to comment on Cruz’s accusation, counts himself as influenced by the writings of Karl Marx. But he regards himself as a social democrat, not a Communist, and has never advocated the overthrow of the U.S. government by Communists. Rather, he advocated widening admissions at the law school to under-served populations, hiring more minorities and women on the faculty, and paying all law professors equally.
Cruz’s spokeswoman confirmed, in response, that this is precisely the faculty clique he referred to, and Mayer does not dispute their numbers on the faculty. But her description is a rather serious whitewash of what Kennedy and the other “Crits,” as they were colloquially known on campus, professed and taught: a menu of class conflict, false-consciousness theory and subversion of property rights that would have fit comfortably on the syllabus at Patrice Lumumba University. Here’s how one of Harvard’s own courses describes the movement:
A self-conscious group of legal scholars founded the Conference on Critical Legal Studies (CLS) in 1977. Most of them had been law students in the 1960s and early 1970s, and had been involved with the civil rights movement, Vietnam protests, and the political and cultural challenges to authority that characterized that period. These events seemed to contradict the assumption that American law was fundamentally just and the product of historical progress; instead, law seemed a game heavily loaded to favor the wealthy and powerful. But these events also suggested that grassroots activists and lawyers could produce social change.
Fundamentally convinced that law and politics could not be separated, the founders of CLS found a yawning absence at the level of theory. How could law be so tilted to favor the powerful, given the prevailing explanations of law as either democratically chosen or the result of impartial judicial reasoning from neutral principles? Yet how could law be a tool for social change, in the face of Marxist explanations of law as mere epiphenomenal outgrowths of the interests of the powerful?
Hosting annual conferences and workshops between 1977 and 1992, CLS scholars and those they have influenced try to explain both why legal principles and doctrines do not yield determinate answers to specific disputes and how legal decisions reflect cultural and political values that shift over time. They focused from the start on the ways that law contributed to illegitimate social hierarchies, producing domination of women by men, nonwhites by whites, and the poor by the wealthy. They claim that apparently neutral language and institutions, operated through law, mask relationships of power and control. The emphasis on individualism within the law similarly hides patterns of power relationships while making it more difficult to summon up a sense of community and human interconnection. Joining in their assault on these dimensions of law, CLS scholars have differed considerably in their particular methods and views.
Many who identify with the critical legal studies movement resist or reject efforts to systematize their own work….
Some critical scholars adapt ideas drawn from Marxist and socialist theories to demonstrate how economic power relationships influence legal practices and consciousness. For others, the Frankfurt School of Critical Theory and its attention to the construction of cultural and psycho-social meanings are central to explaining how law uses mechanisms of denial and legitimation. Still others find resonance with postmodernist sensibilities and deconstruction, notably illustrated in literary and architectural works. Some scholars emphasize the importance of narratives and stories in devising critical alternatives to prevailing legal practices. Many critical legal scholars draw upon intellectual currents in literature, pop culture, social theory, history, and other fields to challenge the idea of the individual as a stable, coherent self, capable of universal reason and guided by general laws of nature. In contrast, argue critical scholars, individuals are constituted by complex and completing sources of ideology, social practice, and power relationships.
Now, it’s something of a hyperbolic flourish to describe armchair radicals of this sort as people “who believed in the Communists overthrowing the United States government,” and as Fried notes, the fall of the Soviet Union in 1991 had necessarily pushed a lot of previously proud Marxists to go underground and readjust their rhetoric. But as even Matt Yglesias conceded, “[t]he conclusion that …a follower of Marx’s ideas is, like Marx, a Communist seems perfectly plausible.” The fact that the fall of Communism made the Crits somewhat abashed about their intellectual heritage and its logical conclusions is no reason to discount the thorough Marxist influence in their work, or shrink from asking why arguably the nation’s leading law school should employ several times more of them than Republicans.
Cruz made quite clear who he was talking about and why, and any fair-minded observer can draw their own conclusions – unlike, say, when the Senate Majority Leader last summer claimed an unnamed, anonymous source who told him Mitt Romney hadn’t paid his taxes. Cruz didn’t stretch to connect people via tenuous associations, like those who tried to paint Sarah Palin as a secessionist for a marginal political party her husband briefly joined or Rick Perry as a racist for something written on a rock by a person who sold land to his father. He called a bunch of Marxist professors Marxists, and while he may have thrown in a rather excessive dramatic flourish, his speech drew the obvious conclusion to where Marxism necessarily leads. If Mayer had done her homework, she would have recognized what pitiful support this provides for the talking points she was laboring to shore up.
But for a freshman Senator to draw the kind of fear that generates this type of assault from the New Yorker, he must be doing something right.
Reflections on the American Revolution, Part III of III: The Militia
How did thirteen colonies, with a barely functioning central government and a thrown-together, underfunded and poorly supplied army of constantly fluctuating size and composition, win the Revolutionary War? One reason was the colonies’ ability to rely on their common citizens to supplement the Continental Army with local militia. I’ve looked previously at the demographic and physical conditions and foreign alliances that shaped the war and the generals who led the armies. Let’s conclude this tour of the American Revolution with the militia.
The Militia: Americans then and now have had a romantic attachment to the citizen militia, epitomized by the Massachusetts “minutemen.” The importance of the militia as both a bulwark against tyranny and a line of national defense was, of course, famously the backdrop for the Second Amendment and other militia-related clauses in the Constitution (including allowing Congress to arm them and the President to command them at need “to execute the Laws of the Union, suppress Insurrections and repel Invasions”). Yet it was ultimately the Continental Army, not the militia, that had to do the bulk of the work needed to win the war. Nonetheless, the story of the American victory cannot be told without the militia.
Massachusetts: The militia’s finest hour came at the beginning, before there was a Continental Army: Concord and Bunker Hill. At Concord, in April 1775, the sudden appearance of the Massachusetts militia in significant force, firing largely from behind the cover of trees and stone walls, drove the (mostly inexperienced) redcoats back to Boston with surprising casualties. At Bunker Hill two months later, Massachusetts militia entrenched largely on high ground and firing from behind fortifications and stone walls inflicted a staggering casualty rate of almost 50% on the British regulars (even higher among the officer corps); the militia then beat a mostly orderly retreat when they were finally overcome. Those two battles left the British besieged in Boston, where they would remain for nearly a year until dislodged by Henry Knox’s artillery in March 1776. Bunker Hill also traumatized the British command, haunting their thinking about attacks on entrenched positions for the rest of the war. When the Continental Army was assembled to carry on the siege, much of its manpower and officer corps was drawn from the militia, including key leaders like Knox and Nathanael Greene. Moreover, the artillery that liberated Boston had been seized by militia in 1775 when Ethan Allen and Benedict Arnold, leading the Vermont militia (the Green Mountain Boys) in an expedition supported by Massachusetts and Connecticut militia, captured the lightly-defended Fort Ticonderoga. And without the militia, the army in 1775 would have been unarmed. The Continental Army being chronically short on supplies and having no official, standard weapon, recruits early in the war fought with whatever guns they brought to the army, either their own or those supplied by the state governments – but while that system was essential to forming an army from scratch, Washington found it unsatisfactory to carry on the war. As a 1981 U.S. Army study described the situation:
It was the policy of the Continental Congress in 1775 to “hire” arms, which meant encouraging each new soldier to bring his own gun, a practice that had been common in militia service. Having established this policy, Congress then left the task of equipping the troops to the Commander in Chief. More often than not, however, the men arrived at camp without arms. When Washington undertook to form a Continental Army from the forces before Boston in 1775, he initiated the first of several measures designed to arm his troops. He began by seeking to retain for the use of the new Continental force the muskets that the men hurrying to the defense of their country had brought to Cambridge. He ordered that no soldier upon the expiration of his term of enlistment was to take with him any serviceable gun. If the musket was his private property, it would be appraised, and he would be, given full value for it. All arms so taken and appraised were to be delivered into the care of the Commissary of Military Stores. To make doubly sure that the weapons would be retained for Army use, Washington threatened to stop the last two month’s pay due a soldier if he carried away his gun.
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Among the factors contributing to the shortage of arms in the spring of 1776 was the carelessness of the soldiers in maintaining their arms in good working order. An examination of the weapons of the army in New York revealed them to be in shocking condition. Washington issued an order to the regimental commanders to have the arms put in good order as soon as possible and to see that each musket was equipped with a bayonet. Those soldiers who had lost the bayonets they had been issued were to pay for new ones, and if any soldier had allowed his gun to be damaged by negligence, the cost of its repair was to be deducted from his pay. This order by no means eliminated negligence in caring for weapons. It persisted throughout the war….
To promote better care of weapons, Washington substituted a policy of purchasing arms for that of hiring them. During the first two campaigns of the war, it was the custom to encourage both the enlisted soldier and the militiaman to bring their own guns. But Washington soon came to link that policy with the lack of care the soldiers gave their muskets, for under it “a man feels at liberty to use his own firelock as he pleases.” Owners of guns took little care of them, retained them when their service expired, and even disposed of them whenever they pleased. As early as January 1776 Washington had indicated that he was ready to purchase any arms offered by a colony or an individual.The system of hiring, however, continued until February 1777 when Washington initiated preparations for the next campaign. He informed Governor Trumbull of Connecticut that he now wanted guns purchased from owners on the account of the United States. Purchase, he wrote, would result in better care of the weapons and would eliminate many of the bad consequences of hiring arms.
There were other warning signs of the militia’s limitations in 1775 as well: the militia at Bunker Hill had strategic depth but failed to use it, being too poorly organized to bring reserve units into the fight in time, and the Green Mountain Boys didn’t linger to garrison Fort Ticonderoga once its liquor supplies had run out. An army constituted for the long haul would have to do better.
New Jersey: Problems persisted, but so did the militia’s contributions. Washington was disappointed when more New Jersey and Pennsylvania militia didn’t show up to assist his campaigns in the region between late 1776 and the summer of 1778. But the New Jersey militia played a valuable role in the series of skirmishes known as the New Jersey Forage War in the winter of 1776-77. Acting sometimes alone and sometimes with modest support from the Continental Army, the militia repeatedly staged ambushes and opportunistic attacks on British and Hessian detachments looking for food and forage for their animals, inflicting a slow bleed of casualties and leaving the enemy jittery and under-supplied: a classic guerrilla campaign, although the word hadn’t been coined yet. The New Jersey militia would eventually even draw praise from Washington, long a critic of militia, for its ongoing role in assisting Greene in turning back the final Hessian efforts in 1780 to assail Washington’s position in Morristown; Washington wrote of the militia after the Battles of Connecticut Farms and Springfield that “The militia deserve everything that can be said on both occasions. They flew to arms universally and acted with a spirit equal to anything I have seen in the course of the war.”
Saratoga: Militia were also important to the pivotal Saratoga campaign. Allen and Arnold’s capture of Fort Ticonderoga had cut the British lines of communication in two, severing Guy Carleton’s Canadian forces from the Thirteen Colonies. General Burgoyne’s expedition, marching south from Canada, was designed to turn the tables. His aim was to seize control of the Hudson River valley and link up with Howe and Clinton in New York, reuniting the British forces while cutting New England off from the rest of the colonies. It started well, as such things often do; Burgoyne seized the forts in early July and scattered the Continental Army’s forces in the region with barely a fight. But Burgoyne didn’t count on the patriot militia.
Burgoyne’s plan called for him to link up with Barry St. Leger, who was marching southeast down the Mohawk River that runs through Western and Central New York and flows into the Hudson just north of Albany. The plan – and reason for the two British forces to march separately – was for St. Leger to gather with him the Iriquois Six Nations and the Loyalist militia. St. Leger laid siege to Fort Stanwix, which controlled the Mohawk River; to relieve the siege, local militia leader Nicholas Herkimer hastily raised about 800 militia, a few dozen Oneida Indians (one of the two Iriquois tribes that sided with the colonists) and wagonloads of supplies. St. Leger chose to meet Herkimer with a thousand men, the bulk of which were Mohawk and Seneca Indians, who ambushed Herkimer as his column wound through a densely wooded ravine on August 6, 1777. The result was the savagely bloody Battle of Oriskany, depicted above. The militia was caught by surprise, several key officers were killed in the opening volley, and Herkimer had his leg broken falling from his horse (he would die of the wounds a few days later). But the militia fought on, Herkimer directing the battle while propped against a tree and regrouping his men to counterattack after a downpour. The battle ended in a British victory, with enormous American casualties that broke Herkimer’s militia. But heavy losses from the battle demoralized St. Leger’s Indian allies and Loyalist militia, who had expected to play a support and ambush role and let the British and Hessians do the heavy lifting, and instead found themselves fighting a desperate, cornered militia at close quarters. Most of St. Leger’s support melted away, greatly weakening his force and leading to its ultimate failure to capture Fort Stanwix (which was relieved by Benedict Arnold on August 22).
While St. Leger was bogged down on his right, Burgoyne faced a second militia threat from his left that ultimately cost him nearly 1,000 casualties, more than 10 percent of his expedition. Approximately 2,000 New Hampshire, Massachusetts and Vermont militia under John Stark (a veteran of Bunker Hill who had served for a time under Washington in the Continental Army before returning home), who raised this force in a little over a week, set out to harass Burgoyne’s advance. Burgoyne sent a detachment of Hessians – considered some of Europe’s best professional troops – to gather supplies and intercept Stark before he could do more damage or link up with the Continental Army. At the ensuing August 16, 1777 Battle of Bennington (actually located in present-day New York near Bennington, Vermont), Stark’s militia faced the Hessians in a pitched battle, albeit with the advantage that the Hessians arrived in two groups of around 600, allowing Stark to defeat them in detail with a large numerical advantage. Stark’s militia surrounded the elite Hessian dragoons holding an elevated redoubt; the Hessian commander, Friedrich Baum, was mortally wounded in a last, desperate saber charge, and hundreds of his men surrendered. Few of the Hessians made it back to Burgoyne’s army.
As Burgoyne marched south, weakened by the failure of St. Leger, the loss of the Hessians and the defection of his Native American allies and with the Americans felling trees in his path, the Continental Army under Horatio Gates was bolstered by the arrival of thousands of militia, to the point where Burgoyne may have been outnumbered more than two-to-one at the second and final Battle of Saratoga. Militia units fought in the line of battle with the Continentals at Saratoga, which rivals Yorktown as the most important American victory of the war. More important than anything the militia did at Saratoga itself, their presence on the battlefield gave weight to the Continental forces that Burgoyne could not overcome. His surrender on October 17, 1777 permanently ended the effort to divide the colonies and link up with the British forces in Quebec, and was crucial to bringing France into the war.
The South: In the South, the militia had to come more directly to the rescue of the regulars. When the British moved the focus of their offensive operations to the South in 1779, they found a Continental Army much less well prepared and led than Washington’s army in the north. Cornwallis routed the defenders of Savannah in 1779 and Charleston in May, 1780, followed shortly by Tarleton’s massacre of a smaller Continental Army force at Waxhaws. Horatio Gates attempted to replicate his victory at Saratoga by rallying the militia around a new Continental Army force, but was wiped out by Cornwallis’ army (under Lord Rawdon) at Camden on August 16, 1780 (Washington regarded Camden as another foolhardy attempt to rely on militia). Between Charleston and Camden, Cornwallis had captured over 6,000 prisoners, including most of the Continental Army left in the South. The road seemed open to claim the prizes of North Carolina and Virginia.
It didn’t work out that way. Heavy-handed Loyalist militias, first under Christian Huck and later Patrick Ferguson, combined with Tarleton’s brutality at Waxhaws, enraged the population of the Carolinas and Eastern Tennessee. The first militia victories, at Ramsour’s Mill in North Carolina in June and the killing of Huck in South Carolina in July, were small, almost spontaneous engagements (although a study of the records of the militia who fought Huck showed that a number were Continental Army veterans and most had been fighting the British in one form or another since 1775). A landmark of the growing resistance came in October 1780, when a muster of nearly a thousand militia from the Carolinas, Virginia and Tennessee cornered Ferguson in the forest at King’s Mountain near the North/South Carolina border, killing Ferguson and destroying his Loyalist militia. In November, Tarleton’s feared British Legion – including hundreds of British regulars – were bloodied and beaten by the militia at Blackstock’s Farm, South Carolina. There were scores of other, smaller ambushes and militia-on-militia engagements in this period, some with the character of a blood feud.
The militia’s victories in the Carolinas begat more American recruitment and more caution for Cornwallis, buying time for Greene to enter the southern theater in late 1780 and re-organize the regulars. But with only a small regular force of a few thousand men, Greene still needed plenty of help from the militia. At Cowpens, South Carolina on January 17, 1781, a combined force of militia and Daniel Morgan’s crack riflemen broke the back of Tarleton’s British Legion, killing or capturing more than 80% of Tarleton’s 1,150-man force and effectively ending British control over South Carolina. Probably less than half of the American force at Cowpens was Continental regulars. The major engagement of the campaign came at Guilford Court House, North Carolina on March 15, 1781, at which Greene (while nominally losing the battle) inflicted sufficient casualties to convince Cornwallis (himself down to less than 2,000 men) to fall back to Virginia, where he would consolidate his forces only to meet his great defeat. As at Saratoga, while the fiercest fighting was done by the Continental regulars, the militia were important at Guilford Court House for their sheer numbers; Greene outnumbered Cornwallis more than two-to-one with a force that was probably around 70-80% militia.
The West: Finally, the Western theater of the war was almost entirely conducted by militia; beyond Western New York and Pennsylvania, there simply wasn’t much the Continental Army could do to support operations in the West. The one time in 1781 when the army sent a detachment to assist George Rogers Clark in his campaigns in what became the Northwest Territory, they were defeated en route. This left Clark, a Virginia militia commander, to seize outposts in present-day Illinois and Indiana using Virginia and Kentucky militia. The militia also conducted both offensive and defensive campaigns in the West against the Native American tribes. (The Spanish also made use of militia in the West and South during the war, both in the defense of St. Louis and in Bernardo de Galvez’ campaigns in Louisiana and the Floridas).
The Militia, Assessed: The militia were never an adequate substitute for a regular army. Bennington and Bunker Hill notwithstanding, they were often not useful in conventional engagements, especially offensive operations. They maneuvered poorly (e.g, the failure of the militia to arrive in proper position to support the Continental Army at Germantown and Trenton), a key weakness in 18th century warfare, and when not fighting from cover like stone walls or trees they were notorious for breaking formation and running when charged by the enemy. Continental Army commanders had no end of frustration trying to get militia companies to carry out orders and assignments, or even to determine in advance how many militia would show up when mustered. Washington himself had despised the militia as useless ever since his experiences with the Virginia militia in the French and Indian War (beware of Washington quotes about the militia and the right to bear arms that you may see on the internet; several of these are apocryphal and at odds with his actual thinking). Militia units were usually more effective fighting other militia or Native Americans than regular soldiers. And being amateurs who often had families to support, they preferred to stick close to home; Clark was never able to get enough volunteers from the Kentucky militia to carry out his grand plan of a march on Detroit.
The 1779 Penobscot expedition, in which a force composed mainly of Massachusetts and Maine militia (supported by a small detachment of marines) was to make an amphibious landing in Maine and assault a British fort, was a textbook example of the kind of complex operation completely unsuited to militia: despite superior numbers compared to the enemy and some initial momentum, the unwieldy joint command co-ordinated poorly with its Continental Navy support, the Maine militia turned out in smaller numbers than expected, and the militia maintained an ineffective siege and cut and ran when counter-attacked. The commanders of the expedition, including Paul Revere, ended up being hauled before a court-martial, and Maine remained in British hands the rest of the war.
Getting the most out of militia units in battle required tactical flexibility. Daniel Morgan, at Cowpens, ordered the first line of the North Carolina militia to fire two volleys from an advance position and then make an orderly retreat to the rear, with the second line firing three volleys then doing the same; the regulars in the third line would absorb the British charge. Morgan had no faith that the militia could withstand a charge without breaking, and quipped that he made sure not to make a stand near a swamp so the militia couldn’t disappear into it at the first sign of the enemy. Herkimer, at Oriskany, had to order his men in the midst of battle to start fighting in pairs, taking turns shooting while the other reloaded, because they were vulnerable to tomahawk attacks while reloading.
But for all their drawbacks, the ability to put militia units in the field was undeniably important, at times crucial, to the colonial cause. The main reason is the balance of manpower. The British, as I noted earlier, usually had 25-30,000 soldiers to work with, of whom 22-25,000 were either British or Hessian regulars. The size of the Continental Army at various points in time can be hard to ascertain due to spotty records, desertions, illness and short enlistments, but its main body seems to have peaked with about 20,000 around the Battle of Brooklyn, and Washington usually fought with about 10-12,000 men at his larger engagements; aside from the large force assembled at Saratoga, the army rarely had more than 5,000 men in any other place, and more often the commanders outside Washington’s immediate vicinity had only a few thousand regulars to work with. The Continental Army usually fought with smaller groups of regulars than its adversaries, it lost more battles than it won, and when Washington’s main army wasn’t present, it almost never won a significant engagement without the presence of militia. The army simply couldn’t defend most of the countryside. The militia was a force multiplier that prevented the British from consolidating control, which in turn would have forced Washington to seek active battles he couldn’t win. But with the support of the militia, the Americans had the advantage: the British couldn’t easily replenish their manpower, which had to be requested from London and shipped across the ocean (this is why they relied on their own Loyalist militia), while the Americans could do so on short notice whenever local authorities felt the need, without even consulting Congress. Besides numbers, the militia harassed the British supply lines, also a vulnerability for an army operating thousands of miles overseas.
And the militia bought time. In the North, the militia confronted and bottled up the British in Boston and seized their Hudson River forts at a time when there was no regular army. In the South, the militia kept up the fight after the regulars had been crushed, buying time for Greene. In New York, the decentralized ability to rapidly raise militia companies to bleed and eventually outnumber Burgoyne’s army was essential to the pivotal Saratoga campaign after the regulars had been dispersed by Burgoyne’s advance.
The militia didn’t win the war, and would never have won it alone. But it is hard to see how there is a Yorktown, a Treaty of Paris and an independent United States without the efforts of thousands of militia from 1775 to 1782.
Gun Control, Gun Rights, Gun Politics and Newtown: Part I of II
The school shooting atrocity in Newtown, Connecticut has, predictably, touched off another round of the perennial gun-control debate. Especially for parents of young children (my youngest is the same age as most of the victims), the horror of the shootings is almost beyond description, and tends to make rational discussion impossible. And also unseemly, as Jonah Goldberg has explained. More to the point, this is one of those issues where the public demands foolproof solutions that remain elusive: we keep saying “never again” after mass shootings, terrorist attacks, and all sorts of other manmade and supposedly preventable disasters, but there’s never a perfect answer that guarantees that any such thing will never happen again (this is, for example, why anti-terrorism policies are best focused on terrorist organizations rather than lone nuts). We can only and always base public policy proposals on what will reasonably improve the situation without imposing costs we can’t live with.
The reality of no perfect or costless solutions lends both a hysterical quality to the gun debate as well as a one-sided burden of proof. Gun control advocates suggest a goal (the complete non-existence of firearms) that is not politically, legally or practically possible, and argue that opponents of any gun control measure show how their alternative would be 100% effective by comparison to a gun control utopia that doesn’t and never will exist. In a more rational, realistic debate, you would compare the actual proposed gun controls to a world without those proposals – and in that rational world, the first question for gun control advocates after Newtown is why gun control in Connecticut didn’t work after the Brady Campaign hailed the state’s tough gun laws as a model of public safety. Gun control – complete with an “assault weapons ban,” waiting periods, background checks, “gun free school zone” laws and the rest – was already tried in Connecticut, and it failed to make a difference. If Newtown means anything in the gun debate, it’s that gun control doesn’t work.
The trenches are long-since dug on both sides; if you can find clips of Archie Bunker discussing an issue on YouTube, chances are that we have already had a “national conversation” about that issue. Of course, changing the culture can be at least as important as changing the law, so it is certainly helpful to look again at how we handle things like responsible gun ownership and mental illness (besides the shooter himself, his mother bears responsibility for having firearms under the same roof with such a mentally unbalanced young man). If there’s one valuable service the NRA could provide in this debate – and Wayne LaPierre’s ham-handed press conference failed to provide – it is stepping up the cultural battle to engage responsible gun owners outside of government.
But both advocates and opponents of gun control tend to fall too easily into knee-jerk slogans that go too far. It is no less true for being a truism, for example, that guns don’t kill people, people kill people, and that we don’t get nearly as many calls for controlling, say, knives or baseball bats when they are misused. But it is also true that guns are the most efficient, portable, and cost-effective killing tools we have: that’s exactly why they remain the weapon of choice for soldiers, cops, criminals, and hunters all over the world (and why the right to own a gun matters). There’s a strong case that good people with guns can be a more effective answer to armed criminals than gun control; gun control advocates are almost invariably willfully blind to the value of this. But that doesn’t mean that proposals to arm everyone, everywhere are a good idea with no costs or a perfect, foolproof solution. It does no good for defenders of gun rights to overstate their arguments, any more than it helps proponents of gun control to ignore the costs and limitations of gun control or to react with incredulity to the idea that the Constitution means what it says. Frankly, if your approach to the Second Amendment is to laugh and ignore it, I’m not going to trust you to take the rest of the Bill of Rights seriously either.
I am probably a lot less pro-gun, and a lot less interested in guns, than most conservatives; I’ve never owned, fired or even held a gun, and personally I could be perfectly happy keeping it that way. I’d be personally content to live in a world with no guns at all. And I’m open to supporting reasonable gun regulations where there is reason to believe they will have more than just symbolic effects. But I also respect practical reality, the Constitution, and the rights of other people to freedoms that aren’t personally important to me. A few thoughts and observations on guns, Newtown and the way forward:
Continue reading Gun Control, Gun Rights, Gun Politics and Newtown: Part I of II
And We Think The Legal System Is Rough Today
I think today you would get some headlines if a former California Chief Justice was shot dead attacking a US Supreme Court Justice over a case involving the extortion of a US Senator.
The Supreme Court’s Disappointing Tax Ruling
Yesterday’s ruling that Obamacare’s individual mandate exceeded Congress’ power under the Commerce Clause showcased the Supreme Court at its intellectual best: the fruits of years of detailed and heated scholarly and judicial debate, intensive briefing and vigorous argument were reflected in the various opinions. Unfortunately, the same cannot be said of the Court’s opinions on the alternative ground – the taxing power – that Chief Justice Roberts and the Court’s four Democratic appointees found to be an alternative basis for the mandate. Critics on the Right have assumed that Roberts is wrong about the taxing power, and the cheerleaders on the Left are simply pocketing the result, but neither the various opinions nor most of the commentary have bothered to explain a theory of what Congress can and cannot constitutionally do through its power to tax.
Continue reading The Supreme Court’s Disappointing Tax Ruling
The Big Decision
You better not pout, you better not cry, you better not shout I’m telling you why. The Commerce Clause is coming to town….
Here’s my writeup on what happened. More to follow on other days, I’m sure.
A few other observations:
-In the long run, I’d rather lose the ones we can fix democratically than the ones we can’t.
-If Congress starts justifying every new regulation as a tax, Grover Norquist is going to be a very busy man.
-Romney has raised a vast amount of money from a lot of new donors today. Even more than energizing and galvanizing the base in the presidential race, focusing on repeal as a political goal should help down-ticket Republicans in Senate races (in states like Missouri, Ohio, Virginia and Florida) who lack Romney’s baggage on the issue.
-Both the Roberts and Scalia opinions are very explicit about the fact that Obamacare puts “massive new costs on insurers” and is essentially collectivist in using the mandate to force young people to subsidize the care of others by buying policies that will deliver them less benefits than the premiums they pay.
-I don’t know that anybody predicted a lineup of 5-4 for the mandate under the taxing power but 7-2 against the withholding of Medicaid funds from states that refuse to join the expansion of the program. It’s remarkable that Obama’s own Solicitor General at the time Obamacare was written joined an opinion calling it “a gun to the head” of the states.
-For all the flap before the decision about Justice Scalia rethinking Wickard v Filburn in his new book, neither his opinion nor Roberts’ actually argues for overturning Wickard or Gonzales v. Raich. That may come another day, but for now the Court simply distinguished them.
-I see in some quarters the notion that Scalia was wrong somehow to refer to Ginsburg’s opinion as “the dissent,” but her opinion is 4 Justices dissenting from the Court’s conclusion that the mandate wasn’t supported by the Commerce power. That is, technically, a dissent on that issue.
-Justice Thomas’ pithy 2-page opinion basically says that Congress is a spoiled child the Court didn’t say no to often enough & now it’s grown into an idiot teenager that does stupid things like try to force people to buy insurance policies. I paraphrase, but not by much.
-Characterizing the mandate as a tax may make it easier for Republicans, procedurally, to justify using the reconciliation process to repeal the bill with 51 votes instead of 60 in the Senate.
-This morning’s result will make Obama look even more ridiculous the next time he frames Citizens United as the work of a runaway right-wing Court.
-A prediction: the centerpiece of Chief Justice Roberts’ legacy on the court will be a case that hasn’t arisen yet.
Other commentary around the web worth reading:
Erick Erickson on why he’s not that down on John Roberts.
Krauthammer explains the institutional reasons that may have motivated Chief Justice Roberts to uphold the law.
Sean Trende compares Roberts’ decision to Marbury v Madison, which was my first thought as well.
Avik Roy looks at how the Medicaid decision could explode the federal deficit.
Tom Scocca looks further down the road at the impact of the Commerce Clause decision.
-In case you missed it, why IPAB is unconstitutional in at least two ways.
My Predictions on the Health Care Case
I follow the Supreme Court fairly closely and, I like to think, intelligently, having participated in briefing a number of cases before the Court. (As usual, my speculation is my own, and not the view of my firm). But I’m as much in the dark as everyone else on how the Court will decide any given case – indeed, the more veteran and expert the Supreme Court practitioner you talk to, the more uncertain they are likely to be in making predictions.
That said, we may as well all make our educated guesses now, while the jury (so to speak) is still out. Here, without much further explanation, I’ll offer mine, all of which will be rendered inoperative in less than 24 hours.
1. It looks as if Chief Justice Roberts will write the main opinion, possibly covering all the issues in the case. Sean Trende and Jack Balkin explain why this is so. If Roberts writes an opinion covering all four issues (bear in mind, there are only four issues in the case if the Court rules in the challengers’ favor on the Anti-Injunction Act and the mandate and severs at least some of the statute), expect a very long opinion and a whole bunch of opinions concurring and dissenting in differently-numbered/lettered subparts.
2. Judging by the arguments, the overall weakness of the Administration’s case, and the simple fact that the whole shebang remains undecided at Term’s end, I’ll be surprised if there are more than one or two votes to declare the mandate a tax that the Court can’t address until 2014 under the Anti-Injunction Act. Court may even be unanimous on that score.
3. Forced to predict, I’ll predict that the Court will strike down the individual mandate, 5-4. I can’t say I’m overwhelmingly confident in that prediction.
4. On severability, I think the most likely outcome is actually that the Court does what the Solicitor General asked in the event the mandate goes down, and throws out only the community rating and guaranteed issue provisions, probably on a 6-3 vote. That may not be an entirely principled compromise, but it at least has the advantage of being endorsed by the Administration, as opposed to leaving the Justices to decide on their own what is and is not integrally related to the mandate.
5. The enormous sleeper in the case is the Medicaid challenge. I could be wrong, but I don’t expect the Court to be willing to rule that Congress exceeded its authority under the Spending Clause here. The bad news for conservatives is that, after years of the Court warning that there are limits to how far Congress could go in using the spending power to indirectly dictate to the states things it cannot directly dictate, the Court would effectively have to concede that it will never tell Congress that it has breached that limit – you simply can’t find a more coercive program than Medicaid, which amounts to a quarter of most state’s budgets and as to which – as the states repeatedly emphasized – Congress did not even offer a Plan B for what happens if a state opts out. I expect a thundering, epic dissent from Justice Scalia on this abdication if that is where we come out.
A Word About Charles Fried
Charles Fried has suddenly become a very popular fellow on the Left. The former Reagan Solicitor General and Bill Weld appointee to the Massachusetts Supreme Judicial Court is being touted by the Washington Post’s in-house left-wing activists Greg Sargent and Ezra Klein, as well as ThinkProgress and Media Matters and its frenetic professional tweeters Eric Boehlert and Oliver Willis over Professor Fried’s support for the constitutionality of Obamacare. Dahlia Lithwick went further, using Prof. Fried’s prediction of an 8-1 decision as evidence that “[t]he conservative legal elites don’t believe in the merits of this challenge”. It’s not surprising that these folks are in such a rush to get the cover of a former Reagan lawyer to restore their talking point – now in tatters after a week of serious, sober and probing questioning from the Supreme Court – that only an extremist would think there is any constitutional issue at all with Obamacare. But there are some things they’re not telling you about Charles Fried.
Now, let me preface this by saying that I have a lot of respect for Prof. Fried. He was my constitutional law professor and probably the best teacher I had in law school, a brilliant man who had taught just about every area of law under the sun and was especially talented at bringing together the strands of disparate areas of the law. I read his book about his days as the SG before I started law school, and I respected his willingness – as a guy who is not pro-life – to argue, twice, for overturning Roe v Wade. He was also the faculty adviser for the Law School Republicans, which I headed for a time. Prof. Fried has indeed been, in the past, a longstanding member of the GOP legal establishment; he testified in favor of John Roberts’ Supreme Court confirmation, and in 2006 wrote a NY Times op-ed defending his former deputy, Samuel Alito, as “not a lawless zealot but a careful lawyer with the professionalism to give legally sound but unwelcome advice” and “a person who can tell the difference between the law and his own political predilections.”
But if you think brilliant people can’t be horribly wrong, you have not spent much time studying lawyers and the law. And if you’ve been reading the left-wing activists, you might not have learned that the 76-year-old Prof. Fried has not only been a vigorous defender of Obamacare who famously testified that the federal government could mandate that you buy vegetables and join a gym, he also voted for President Obama and wrote him what amounted to a political love letter last summer, wrote a book in 2010 with his son which he characterized as showing that the Bush Administration’s anti-terrorism policies “broke the law” and were “disgusting and terrible and degrading,” and has been a vociferous critic of the Tea Party.
Indecent Proposition
The Ninth Circuit’s 2-1 decision last week in Perry v. Brown upheld the decision of Judge Vaughan Walker holding that the people of the State of California violated the Equal Protection Clause of the 14th Amendment by passing – in a statewide referendum in 2008 – Proposition 8. Prop 8 amended the California Constitution to define marriage as between one man and one woman, restoring the rule previously set forth in California statutory law until overturned by the California Supreme Court earlier in 2008. Prop 8 garnered over 7 million votes, two million more than John McCain in liberal California – it was the supported by 52.3% of the same electorate that broke 61-37 for Barack Obama, including 58% of black voters and 59% of Latino voters.
Despite some game efforts to meddle with the burden of proof based on the sequence of events, the core of the decision – written by veteran arch-liberal Judge Stephen Reinhardt – was the same as that of the district court: the assertion that there is no possible rational basis for distinguishing between traditional, opposite-sex marriage and same-sex marriage. More specifically, in the California context, the court found that the federal constitution gives federal judges the right to dictate the language itself, holding that California’s voters were not even permitted to reserve the term marriage to opposite-sex marriage while providing effectively all the practical state-law benefits of marriage to same-sex couples through “domestic partnership.”
There are arguments for and against same-sex marriage as a policy matter, but the argument for declaring that the Constitution mandates that only one set of those arguments be considered “rational” is itself irrational and intellectually indefensible. This is so not only because it begs the question by redefining the language and because it ignores basic biological reality, but most of all because the argument for striking down Proposition 8 treats history, culture, tradition and social convention inconsistently. It should not be taken seriously as constitutional law.
BUSINESS: Negotiating Through The Media
There are many species of bad journalism, most of which involve too much opinion by the writer, but sometimes the opposite is true and a writer gives you the apparent facts without the context needed to make sense of them. Let me use an article from the NY Times about 30 Rock to illustrate a common type of bad journalism that I find to be equally amusing and annoying: reporting negotiating positions without bothering to explain to the reader to take negotiating positions with a grain of salt, let alone how to interpret statements made in the course of negotiations. This has been a common thread in scores of articles these past few months about – among other topics – the debt ceiling negotiations, the Libya war, the perpetual Israel-Palestine ‘peace process,’ the NFL and NBA labor negotiations, the Mets’ legal dispute with the Madoff trustee and other business machinations and their efforts to re-sign Jose Reyes, and the legal imbroglio surrounding the Dodgers. I’ve read more articles on all these topics than I could count that failed to give the reader the guidance to put the parties’ statements in the context of the underlying negotiating dynamics.
The Times tells us, first, that Alec Baldwin has said he’s leaving 30 Rock after next season, a departure that of course would be a terrible blow to a show built around the tensions between his (awesome) character, Jack Donaghy, and Tina Fey’s Liz Lemon. It may well be true that Baldwin sincerely has other things on his mind, maybe even a run for public office, and/or that he’s feeling he’s done all he could with the character. But it’s at least equally likely that he could be persuaded to stay on if NBC offers money or other contractual concessions to make it worth his while.
Then we get the response from NBC brass and from Lorne Michaels, the show’s executive producer:
Executives from the show and NBC aren’t sure, but they made it clear in interviews here this week that his departure would not mean an automatic end to the award-winning comedy.
NBC’s new entertainment chairman, Bob Greenblatt, said: “I’d love nothing more than to have Alec for the duration of the show. That’s my goal. Let’s see what we get.”
NBC’s interest in keeping “30 Rock” around for at least one more year after the coming season can be explained by the need for more episodes to enhance the show’s resale value in syndication.
The executive producer of “30 Rock,” Lorne Michaels, was more definitive about a future for the comedy, even if Mr. Baldwin turns down all blandishments to continue. “I would hope he would want to go on,” Mr. Michaels said on Monday. “But we’re going to keep doing the show.”
Again: I don’t doubt that NBC would very much like to extend the show’s run one extra season for syndication purposes; many a sitcom past has been kept on past its proverbial shark-jumping point for that reason. If 30 Rock is still making money at that point, the network would probably try to soldier on without Baldwin. And Lorne Michaels has never been a guy who thought any of his cast members were indispensable (to put it mildly). But this all smacks strongly of a negotiating posture: the network and Michaels are doing interviews here precisely to send Baldwin the message that he’s not holding all the cards. And the reporter, Bill Carter, doesn’t breathe a word of that, probably because he knows full well why they are giving him these interviews.
Of course, Greenblatt and Michaels have their own competing agendas:
Mr. Greenblatt did open the door to a possible disagreement with Mr. Michaels over the re-entry of “30 Rock” onto NBC’s schedule. The show’s sixth-season premiere has been postponed until midseason because of the pregnancy of its star, Tina Fey.
Asked if “30 Rock” was ensured a spot back on NBC’s successful Thursday night comedy lineup, Mr. Greenblatt said, “That is a good question, and I really don’t have an answer for it.” He added, “Nothing’s written in stone.”
But as far as Mr. Michaels is concerned, it is. “The show will be back on Thursdays,” he said confidently.
Of course, if Baldwin’s future with the show is in doubt, that’s one reason the network would not want to commit valuable Thursday night prime-time space, plus Greenblatt is taking charge of a fourth-place network and probably should keep his options open. But NBC has to keep Michaels happy, too; as the creator of Saturday Night Live, he remains a vital part of the network’s brand image. Michaels’ certainty here is obviously intended to send an unsubtle message that he will not be a happy camper if the network moves his prime-time baby out of its Thursday night sinecure.
I don’t mean to pick on Carter, who in this article has at least offered us enough quotes from each of the participants that a skeptical reader can piece together what is really being said here; that’s not always the case with this sort of journalism. But in general, reporters aren’t doing their jobs if they don’t report how someone involved in negotiations could stand to gain from taking a particular position in public, and worse still if they straight-facedly claim that someone will never make a particular concession (e.g., Jose Reyes won’t talk about a new contract during the season), when in fact they might well do so for the right price. The dynamics of negotiations and how they are handled through the media can differ across situations, but there are a finite number of basic underlying approaches to negotiating, and they crop up across many different fields of endeavor.
Consider the debt ceiling debate – surely many Republicans would have preferred to pass ‘cut, cap and balance,’ and some were genuinely opposed to raising the debt ceiling at all. But for many people involved in the fight, pushing for the ideal policy, even if it was the policy they wanted, was also a matter of getting leverage to extract a better deal when the time came to compromise. Similarly, many Republicans sincerely opposed any deal that would raise any taxes at all; others may have been willing to trade some revenue-raisers for something better, but found it convenient to stay in line with the ATR pledge against tax hikes as a posture unless and until that better offer materialized. None of this is insincere; it’s just good bargaining.
Learn to look for the signs of negotiating postures between the lines of news articles, and they will surface again and again in every section of the paper.
The Roger Clemens Fiasco: What the Hell Just Happened?
Originally published at Grantland
If you’re a baseball fan half-watching the news reports from the Roger Clemens trial, you probably have a lot of questions right now. Like: Didn’t the trial just start? How did it end so quickly? What the hell is a mistrial anyway? The Baseball Crank is happy to answer them for you.
1. How Mistrials Work
The simple legal explanation is that a mistrial occurs when something goes wrong during a trial that would make it impossible to uphold a guilty verdict. Rather than waste time finishing the trial and getting a verdict that would have to be thrown out on appeal anyway, the judge simply halts the proceedings and sends the jury home. Judges have a lot of leeway to decide that a mistrial is necessary; as Chief Justice John Roberts explained in a 2010 case for which a mistrial was declared because the jury had deadlocked, “Trial judges may declare a mistrial ‘whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity’ for doing so” — a fairly open-ended rule. If you’ve ever watched Law & Order, you’ve seen this happen a hundred times — and while mistrials aren’t as common in the real world as they are on TV, they’re a routine feature of the criminal justice system. Sometimes the court will rule that the defendant’s rights have been compromised so badly he or she can’t be retried, but mistrials more often allow the government to try the case again.
The roots of the rules against retrying a criminal defendant come from the Double Jeopardy Clause of the Fifth Amendment, which provides that you can’t be tried twice for the same crime. But the Supreme Court has held since 1824 that it doesn’t necessarily violate the Double Jeopardy Clause to try a defendant again if the jury never reached a verdict. And the rules for deciding when a second trial would be unfair to the defendant are also somewhat elastic — as the Supreme Court put it in 1973, there’s no “rigid, mechanical rule” for deciding when a mistrial makes a second trial impossible. Instead, the judge has to decide things like whether a second trial would drag the defendant through unfair delays, whether it would give the prosecution an unfair advantage to have a second bite at the apple (for example, where a prosecution witness failed to show up for trial or performed badly, or where the defense revealed a surprise strategy), and whether the mistrial was engineered on purpose by the prosecution’s misconduct. In Clemens’ case, Judge Reggie Walton hasn’t ruled yet on whether Clemens can be tried again, and has set a September 2 hearing date for arguments by the lawyers. So, in all likelihood, even if he makes a quick decision, a new trial is not going to start until October at the earliest, and could be many months later.
2. How Did This End Up as a Mistrial?
Clemens is on trial for perjury in his answers to Congressional investigators and in Congressional hearings in February 2008. Because his statements to Congress happened in Washington, D.C, he’s on trial there before the same judge who heard the perjury case against Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney. Perjury cases are a strange animal, because the prosecution generally has to prove the facts the defendant lied about, that the defendant knew he was lying, and that the lies were about something that was significant to the investigation or hearing.
There was a lot of skirmishing before the trial over what evidence the judge would let in. Clemens’ former trainer, Brian McNamee, supposedly has physical evidence that Clemens took steroids, and Clemens is in big trouble if the jury believes that evidence. (His lawyer says it was faked.) But another key witness would apparently have been Andy Pettitte, Clemens’ longtime teammate in Houston and in the Bronx and one of the few people to escape an admission of steroid use with his reputation largely intact. If the jury believed Pettitte’s testimony that Clemens told him he’d used HGH, that would not only show that Clemens lied, but that he knew he was lying — so Pettitte’s testimony was obviously crucial.
One of Judge Walton’s rulings before the trial was that prosecutors couldn’t call Pettitte’s wife, Laura, to essentially repeat things Pettitte had told her he’d heard from Clemens, since she hadn’t talked to Clemens herself and would just be adding another voice to make Pettitte’s testimony sound more credible. But on just the second day of the trial, prosecutors played a videotape of Maryland Congressman Elijah Cummings quoting from an affidavit given by Laura Pettitte. That’s a double foul — not only did the prosecutors get her statements in front of the jury after the judge ruled they couldn’t, they did it without putting her on the stand to be cross-examined. Judge Walton, explaining that “I don’t see how I un-ring the bell” once it’s been heard by the jury, immediately stopped the trial and ended up declaring a mistrial at the request of Clemens’ lawyer.
Judges don’t always declare mistrials when juries hear evidence they’re not supposed to — there’s a lot of evidence that goes into even a short trial, and not all of it is make-or-break. Often judges just tell a jury to disregard what they just heard, and the legal system assumes that they obey those instructions. But Pettitte is clearly the second-most-important prosecution witness after McNamee himself, and likely the harder one for Clemens to discredit, with his soft-spoken demeanor, sincere faith and contrition for his own HGH use and none of the seediness of McNamee. Especially with the prosecutors having already violated another of Judge Walton’s rulings — referring in opening statements to HGH use by Pettitte, Chuck Knoblauch and Mike Stanton — Judge Walton concluded that this one was too big to let pass.
3. Will Roger Clemens Stand Trial Again?
Now, it’s the great question of 2005-07 again: is that all for Roger Clemens? Will Judge Walton decide that it’s unfair to Clemens if he has to be retried?
It seems likely that the case can be tried again fairly quickly — the parties are ready and well-financed, the witnesses aren’t hard to find. So the arguments will most likely center on whether this was a stunt the prosecution pulled on purpose and whether it gets some unfair advantage from starting over or from having heard the defense’s opening arguments. Certainly Rusty Hardin, Clemens’ lead lawyer, is likely to make much of the argument that the prosecutors knew full well they were introducing evidence the judge had told them not to use. Judges don’t like being disobeyed. But he may have a harder case arguing that there’s any real advantage gained by the prosecutors or that they actually wanted a mistrial. After all, the government has already wasted a ridiculous amount of money on this case when the Department of Justice has much bigger fish to fry (people lying on Capitol Hill is the ultimate dog-bites-man story, and usually on subjects that pretend to be more important than baseball), and it won’t look good for these prosecutors if possibly the biggest case of their careers gets thrown out for good over this. And it’s much harder, if not impossible, for a defendant to argue that the court shouldn’t have called a mistrial when the defendant asked for one — as Hardin did here. So the likely outcome is another trial.
As for Clemens, he’s learning the hard way that criminal cases, unlike baseball games, sometimes make you wait a long time to find out who won and who lost. But it would be the most ironic ending of all if Judge Walton decides that the prosecution tried to get an unfair advantage and has its case erased from the books.