Judicial Recusal

(This was half-written when I left for vacation and is now rather untimely.)

The Supreme Court handed down an interesting ruling two weeks ago, Caperton v. A.T. Massey Coal, et al. (08-22), on judicial ethics. From Justice Kennedy’s opinion:

After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections.  Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee.  Benjamin won by fewer than 50,000 votes.  Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement.  Jusice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant.  The court then reversed the $50 million verdict.  During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict.  Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.

Jonathan Turley has a discussion of the opinion here.

This is a positive outcome. Justice Benjamin should have recused himself from the very beginning. The question, though, is how to apply this ruling in practice. If a corporation donates $3 million dollars to your opponent, who loses, need you recuse yourself?

Or, in a more topical possibility, consider the upcoming retention vote for Ron George, the Chief Justice of California. Suppose the court had struck-down Proposition 8 as an improper revision of the state constitution. We could, reasonably, expect a considerable campaign against his retention. If the campaign were significantly funded by Mormons (but not the church itself), but he was nevertheless retained, would he need to recuse himself from future cases involving Mormons or gay marriage?

So, while I favor the particular outcome here, I worry that the decision could create a kind of heads-I-win tails-you-lose gamesmanship for corporations and wealthy individuals in judicial election financing. Then again, I tend to think judges shouldn’t be elected in any event.

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Published in: on June 22, 2009 at 9:01 am  Leave a Comment  
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Sonia Sotomayor

Back from vacation but swinging directly into a big move this weekend. I have a lot to say on the California Supreme Court decision upholding proposition 8, the California budget, and the last two weeks of Obama’s assault on the rule of law, but it will have to wait. In the mean time, I have some links on Sonio Sotomayor.

I don’t have much of an opinion on Judge Sotomayor, so I’ll just point out some interesting links.

Jonathan Turley is ambivalent on the pick, and would have rather seen Diane Wood be the nominee.

While Sotomayor gives Obama a “twofer” with the first hispanic and a new female justice, Wood in my view has more intellectual firepower and would have been a better addition to the Court. One of the concerns from many is that Sotomayor, who is given bad marks on temperament, will be replaced one of the most easy going and civil justices on the Court. As I have mentioned on air, I am less concerned with this criticism. She is being selected as a justice, not a close friend or house pet. It is the weight of her opinions and writings that dictate the focus of our review. Even after this criticism, advocates have struggled to cite a single opinion that could be viewed as a brilliant or extraordinary treatment of the law. There are clearly important decisions in their result, such as the much cited baseball decision. However, unlike some of her colleagues, she was not cited as the intellectual powerhouse on that court. Does this mean that she may not prove to be such a powerhouse? Of course not. The question is the current record and the basis for the nomination.

This has echos of Jeffery Rosen’s hit-piece from a couple of weeks ago, but seems grounded in his reading of her opinions. When Justice Souter’s retirement was announced, I wrote that we needed a true progressive on the court. It is with this in mind, that Professor Turley’s analysis concerns me a little.

Sotomayor will be a very good justice and her life’s story will be an inspiration. She has obviously very intelligent. However, liberals openly called for a liberal version of Scalia. I am not confident that they found it in this nominee despite her powerful personal story.

Meanwhile, Erwin Chemerinsky takes a different view.

Sotomayor brings to the bench essential diversity. Every justice’s rulings are a product of his or her life experiences. As a woman, a Latina, a person who has faced a life-long serious illness (diabetes), and a person who grew up in modest circumstances, Sotomayor brings experiences that are unrepresented or largely absent from the current court. These certainly will influence her rulings and they also may help in the most important task for a Democratic appointee on the current court: persuading Justice Anthony Kennedy, the key swing justice on almost every closely divided issue. Sotomayor’s background, as well as her intellect and experience, make her ideally suited for this role.

[Snip]

But most of all, Sotomayor is an excellent choice because she is an outstanding judge. Her opinions are clearly written and invariably well-reasoned. My former students who have clerked for her rave about her as a judge and as a person. She has enormous experience as a lawyer and as a judge, both in the federal district court and the federal court of appeals.

Finally, over the weekend, Charlie Savage discussed the positions of various likely court nominees on presidential power. While Diane Hood is skeptical of expanded powers, and Elena Kagan supportive, little is known about Judge Sotomayor’s positions. Even though confirmation is very likely, without some kind of surprise scandal, this is a topic that will need to be fully explored in hearings. Judge Sotomayor will certainly be faced with a number of executive powers issues, from both the Bush and Obama administrations.

Addendum: SCOTUSblog has a discussion of a number of Judge Sotomayor’s opinions.

Published in: on May 27, 2009 at 10:24 pm  Leave a Comment  
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Justice Souter Retiring

NPR is reporting that Justice Souter is going to retire at the end of the court’s current term. This is not a surprise – speculation has been going around for months. Listening to Nina Totenberg during my commute home, one thing continually stood out: her statement that Souter is a liberal “on this court.” While he certainly hasn’t been the conservative that the first President Bush was expecting, Souter isn’t really more than a center-left moderate. On this court, though, dominated by arch-conservatives, he is the very picture of a liberal.

So, while the many news analysts discuss how his replacement won’t shift the balance on the court (and it won’t), what it can do is change the nature of the balance. Concurrences and dissents are important, as are all of the secret compromises necessary to get a majority. President Obama can appoint a center-left moderate, or a true progressive, and this will matter by shaping the make-up of the court’s liberal bloc. He also has the opportunity to appoint a woman, which is necessary based on, if nothing else, the oral arguments last week in Safford Unified v. Redding. The point is, the appointment will matter. With that in mind, take a look at the argument for appointing a true progressive at Overruled.

Where President Clinton seriously dropped the ball, however, is corporate accountability.

[Snip.]

All of this is to say that issues like Roe and Gitmo are very important, but issues of corporate accountability are equally important.  I want the government to stay the hell away from my bedroom, but I also want to be able to rely on my insurance company if I get sick, and I want to be able to hold it accountable if it illegally denies me coverage of a medically-necessary treatment.

Published in: on April 30, 2009 at 10:39 pm  Comments (2)  
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Tu Quoque (Updated)

The lastest pushback from the Republican party on the released torture memos is the claim that Democrats knew about the techniques – waterboarding in particular – and raised no objections.

[A] full-blown battle has opened between House Speaker Nancy Pelosi, D-San Francisco, and her GOP counterpart, Ohio’s John Boehner about how much top Congressional leaders knew about water boarding in 2002. It is being fueled in part by a timeline released by the Senate Intelligence Committee, chaired by another California Democrat, Dianne Feinstein.

Boehner released news reports from 2007 that seemed to contradict Pelosi, and Pelosi’s office fired back with their own. Boehner said Congressional leaders “received an awful lot of information” about interrogations, and that “not a word was raised at the time, not one word. And I think you’re going to hear more and more about the bigger picture here, that … the war on terror after 9/11 was done in a bipartisan basis on lots of fronts.”

I agree entirely. In fact, this has been a long-running complaint among most progressives that the cotton candy ass Democrats in Congress did nothing to stop the erosion of civil liberties and the rule of law over the past eight years. But this misses the point. Whether and when Congressional leaders knew about waterboarding is of no import on the question of whether Bush officials violated the law. It is of political import, of course, and of moral import. It may even be of legal import for those Congressional leaders (see: the Ministry Cases from Nuremberg). But on the sole question of whether war crimes were committed, it doesn’t matter.

I also think that this argument from Boehner evinces a basic misapprehension about what is going on here. Republicans are making a political defense because they believe all of this ‘torture stuff’ to be a political attack. Likely because if roles were reversed it would be a political attack. But it isn’t now. The D.C. political class is frankly doing everything in its power to avoid dealing with this, largely, I suspect, because they do know they face a serious political downside both for being seen as partisan and for having ignored the issue for so long. If not complicit they were at least complacent.

For most, if not all, prosecution advocates, it doesn’t matter who committed the crimes. I would want prosecutions just as strongly if a Democratic administration had been the bad actor. War crimes should never be swept under the rug. And, just to head you off at the pass, the Clinton impeachment was different. I would have been perfectly happy to have had Bill Clinton arrested and tried for perjury the minute he left office, but impeachment is a political process in a way that a criminal investigation and prosecution is definitively not. And, of course, perjury cannot really be compared to war crimes in any meaningful way.

Finally, Speaker Pelosi, this response you’ve developed isn’t going to work.

At that or any other briefing, and that was the only briefing that I was briefed on in that regard, we were not — I repeat, we were not — told that water boarding or any of these other enhanced interrogation methods were used.

What they did tell us is that they had some legislative counsel — the Office of Legislative Counsel [sic] opinions that they could be used, but not that they would. And they further — further, the point was that if and when they would be used, they would brief Congress at that time, A.

B, I know that there are some different interpretations coming out of that meeting. My colleague, the Chairman of the committee, has said, ‘Well, if they say that it’s legal, you have to know that they’re going to use them.’ Well, his experience is that he was a member of the CIA and later went on to head the CIA. And maybe his experience is that if they tell you one thing, they may mean something else. My experience was they did not tell us they were using that. Flat out. And any — any contention to the contrary is simply not true.

Speaker Pelosi, you had at the very least a moral obligation to prevent the administration from violating the law and committing a war crime. The mere fact that they believed they could torture people should have prompted all kinds of outrage. When the first reports about Abu Ghraib came out in January 2004, it should have been easy to connect the dots. By the time the Bybee memo leaked in the summer of 2004, you had no excuse whatsoever for not addressing this. Do not play coy. You hold a great deal of moral responsibility for what happened here, even if it is nowhere near the amount that accrues to the Bush administration. You can begin to redeem yourself by admitting your failures – the public loves a mea culpa. But more than being the correct political move, confession is good for the soul.

Update: Glenn Greenwald makes this same point quite a bit better than I do.

Update 2: It is worthwhile to remember that whatever Congresswoman Harman’s other flaws, she did protest the torture program.

Prosecutions: Now or Later?

Elizabeth de la Vega, a former federal prosecutor, was on Countdown tonight arguing that we need to delay the appointment of a special prosecutor, at least for a while. She cited the following concerns:

  • A special prosecutor would allow both Congress and the administration to bury any torture investigation, sending it into a “black hole”. She specifically cited the Scooter Libby investigation as an example.
  • There is no guarantee of an indictment from a grand jury, meaning that the full story may never be known without an initial public investigation. Again, she cited the Libby investigation, where he was only indicted for perjury and we still don’t know the full story.
  • The need for a full public narrative regarding torture, which is unlikely to arise without a public investigation and report.
  • And, finally, now that the law establishing the Office of the Independent Counsel has expired, special prosecutors aren’t really independent and their appointment is essentially a PR move. She again cites the Libby case, but also investigations into the destruction of the CIA torture tapes and the US attorney firings.

The video of the interview can be found here (I still do not know how to embed MSNBC video in wordpress). An article she wrote making the same argument is here.

We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. And our best hope of doing that is to unflinchingly assess – just as any lawyer would do when contemplating choices of action in a case – what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it’s smarter to wait before taking a prosecutive step and this is one of them.

Read the whole thing and watch the interview – it is a good argument and immediately cooled my blood. However, I’m not convinced. The reason rests largely with this point made by Christopher Anders, the ACLU’s senior legislative counsel during a live chat at Crooks & Liars.

Holder doesn’t have to appoint an independent prosecutor today, but he can’t waste too much time. The Anti-Torture Act has an eight-year statute of limitation, but Abu Zubaydah (who was waterboarded 80+ times in a single months) was captured in March 2002, and FBI agents who observed the CIA interrogating him from April-June 2002 described it as “borderline torture” and comparable to SERE tactics. The statute of limitations for those particular interrogations runs out in about a year. And that’s a very important set of interrogations because they occurred before the OLC opinions were issued—so no OLC opinions there to complicate a prosecution.

This is a point that bears repeating. We should not allow the statute of limitations to expire on this, as has happened for some of most clearly illegal warrantless wiretapping. There can be no good faith reliance on advice of counsel defense for acts that occured prior to the receipt of advice from counsel, which could be key in getting mid-level officials to testify against their superiors. In January, John Conyers proposed extending the statute of limitations on torture and warrantless wiretapping, among other crimes, to 10 years. It is unfortunate his proposal was not quickly acted upon. It is too late for the March 2004 wiretaps, but not for the April-June 2002 interrogations or the August 2002 Bybee memo.

I do not believe that de la Vega is in any way disingenuous about believing that the best possibility for a full public accounting of the torture program and a successful prosecution of those involved requires a more measured public approach. However, indictments will take time, even in the aftermath of a full public report from a commission; a report that will take considerable time in of itself. In the absence of congressional action, the clock is ticking and the questions may need to be asked: would we rather a full public accounting or a prosecution? Are we willing to let some people involved go free by virtue of their early departure from the administration, like Jay Bybee, in order to make the case against others stronger? These are not questions that I feel comfortable answering, but someone will need to – sooner rather than later.

On a broader note, it should not be possible for the statutes of limitations for any crime committed by executive branch officials in their official capacities to expire during a two-term presidency, meaning that they all must be longer than 8 years or they should be tolled until the end of the current administration. This seems like a common sense good government reform, though I’d be willing to hear arguments saying otherwise.

Impeach Jay Bybee

I wrote yesterday about David Dayen’s petition to have the CDP adopt a resolution calling for Judge Bybee’s impeachment. Today, the Courage Campaign has joined the call. Sign their petition here. The deadline is Friday 9am – so sign now.

When President Barack Obama released the contents of President Bush’s torture memos, America learned the full extent of the horror that was unleashed at Guanatanamo Bay on detainees. One of the memos was written by Jay Bybee in August 2002. It authorized the use of waterboarding, “cramped confinement”, “walling” — where a detainee’s head is repeatedly pushed against a wall — and even putting insects into a confined space with a detainee.

Jay Bybee is now a federal judge here in California, serving on the important Ninth Circuit Federal Court of Appeals, based in San Francisco. He has not been held accountable for the lawbreaking he committed and enabled.

The California grassroots are determined to change that. Los Angeles Democratic activists John Heaner, Agi Kessler and Richard Mathews have sponsored a resolution calling on the House of Representatives to begin impeachment proceedings against Jay Bybee.

Update: And here is a petition to John Conyers, Chairman of the House Judiciary Committee from the People For the American Way.

Impeach Jay Bybee

One of the more disturbing issues arising from the torture memos that have been slowly released by the Obama administration is the presence of one of their authors, Jay Bybee, on the 9th Circuit Court of Appeals. The case for his impeachment by Congress has been made elsewhere, citing both the poor quality of the legal reasoning the memos and their criminality.

For California Democrats, David Dayen has prepared an online petition urging the state party to adopt a resolution calling for Judge Bybee’s impeachment at this week’s convention. Go sign it online or contact the party leadership directly.

Sacramento Office
(916) 442-5707 phone
(916) 442-5715 fax

Los Angeles Office
(310) 407-0980 phone
(310) 407-0981 fax

email contact form

LA Times Opinion Round-Up

Today is Los Angeles Times intensive.

On high-speed rail. The Times appears to misunderstand the concept by complaining that the current federal funding for high-speed rail is debt financed, as part of the stimulus bill. Debt-financing is half the point. On the other hand, their point about gas taxes being insufficient for current infrastructure is valid, and is why I’ve previously discussed the need for mileage taxes, allowing gas taxes to be shifted toward clean energy investment and climate change mitigation. Of course, that the Secretary of Transportation was talking about mileage taxes over a month ago goes unremarked upon.

On torture. The Times nails the description of the memos, “Orwellian horrors”, and rightly calls for Obama to close a loophole suggesting that the CIA might not be bound by the Army Field Manual. However, I fail to see how that could possibly be seen as being “in the same spirit” as announcing CIA operatives wouldn’t be subject to war crimes prosecutions. And, of course, how the Times could endorse that announcement after reading the memos is baffling. But the Times has been weak on the prosecution issue all along. In a classic example, in a point-counterpoint discussion of prosecutions, both sides argued against prosecutions. Good job picking a diversity of opinions.

Tim Rutten on a truth commission. While I agree that a full report on whether actionable intelligence was gained from torture is necessary, we also need to determine the full scope of law breaking and what, if any, sanction is received from Congressional leadership. More importantly, we already know that torture didn’t work on Abu Zubaida – apparently Rutten missed that article. Of course, torture’s unreliability as an interrogation technique has been known for almost 400 years in the West as that appears to have been missed by almost everyone over the past eight years.

As an aside, Rutten’s ongoing opposition to prosecutions (he once referred to the decision to torture as a “policy difference”) should give the lie to his claim of being a civil libertarian. That, or he is too cowardly to stand far enough outside of the mainstream media to call for them.

Department of “Huh?”: LA Times 9th Circuit Reporting

I don’t particularly understand what prompted this article in the LA Times on the 9th Circuit.

If I were a suspicious conservative, I might suspect that it was an attempt by the liberal media to rally the troops in preparation for confirmation battles. However, I don’t see this as being particularly effective in that regard (and if the goal was to arrest the conservative trend, then the article was needed years ago to rally opposition to Bush appointments.)

Frankly, given the current and future openings on the court, it seems strange to describe the court at ‘trending conservative’ – that trend is very likely to be reversed in the relatively short term. Especially if the court is expanded, as it should be, to reflect its increased work-load, allowing Obama to appoint a full quarter of the judges.

More importantly, though, the article is all over the place. It discusses dissents from denial of rehearing en banc. It mentions briefly and in passing Bybee’s role in authorizing torture, but has no comment. It uncritically accepts conservative arguments that the traditionally liberal bent of the court is encouraging forum shopping, as if forum shopping wasn’t a major component of the justice system in general and as if there isn’t similar forum shopping in, say, the 4th Circuit.

I don’t really see how this kind of poorly explained judicial reporting sufficiently informs the public to participate in debates over judicial reform and judicial appointments.

Addendum: Credit where credit is due, they do refer to Bybee as authorizing “torture” instead of “enhanced interrogation techniques.” It is good to see the media using the word torture in a straight reporting piece.

Published in: on April 19, 2009 at 11:08 am  Leave a Comment  
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Newly Released OLC Torture Memos: First Thoughts

I don’t have the time to read them completely, nor to respond in any kind of detail, but here is my first thought. Doesn’t this (h/t Glenn Greenwald):

bybee2-insects

Remind you of this?

‘The worst thing in the world,’ said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.’

He had moved a little to one side, so that Winston had a better view of the thing on the table. It was an oblong wire cage with a handle on top for carrying it by. Fixed to the front of it was something that looked like a fencing mask, with the concave side outwards. Although it was three or four metres away from him, he could see that the cage was divided lengthways into two compartments, and that there was some kind of creature in each. They were rats.

‘In your case,’ said O’Brien, ‘the worst thing in the world happens to be rats.’

A sort of premonitory tremor, a fear of he was not certain what, had passed through Winston as soon as he caught his first glimpse of the cage. But at this moment the meaning of the mask-like attachment in front of it suddenly sank into him. His bowels seemed to turn to water.

Lovely.

Here are the links to the memos themselves care of the ACLU (h/t emptywheel):

August 1, 2002 John Yoo memo

First May 10, 2005 Steven Bradbury memo

Second May 10, 2005 Steven Bradbury memo

May 30, 2005 Steven Bradbury memo

Finally, I agree entirely with emptywheel that the ACLU deserves more support. Like so many other organizations that rely on donations, they’ve been hard hit by the economic downturn, but they’re still fighting the good fight.

Update: Firedoglake has a petition asking Eric Holder to appoint a special prosecutor who will determine whether criminal prosecutions are warranted. Sign it here.

Published in: on April 16, 2009 at 3:09 pm  Leave a Comment  
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