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Monthly Archives: August 2010

Professor Bainbridge notices that our President is full of it:

Obama’s Anti-Corporate BS

From Obama’s radio address this week:

As the political season heats up, Americans are already being inundated with the usual phone calls, mailings, and TV ads from campaigns all across the country.  But this summer, they’re also seeing a flood of attack ads run by shadowy groups with harmless-sounding names.  We don’t know who’s behind these ads and we don’t know who’s paying for them.   

The reason this is happening is because of a decision by the Supreme Court in the Citizens United case – a decision that now allows big corporations to spend unlimited amounts of money to influence our elections.  They can buy millions of dollars worth of TV ads – and worst of all, they don’t even have to reveal who is actually paying for them.  You don’t know if it’s a foreign-controlled corporation.  You don’t know if it’s BP.  You don’t know if it’s a big insurance company or a Wall Street Bank.  A group can hide behind a phony name like “Citizens for a Better Future,” even if a more accurate name would be “Corporations for Weaker Oversight.” …

Well, we cannot allow the corporate takeover of our democracy.

What utter nonsense. As Target recently discovered, the left’s culture police are prepared to jump on any corporate donation that offends their sensibilities. As Target’s rapid retreat proved, corporations are basically cowardly on these issues.

In fact, if anybody’s going to takeover our democracy, it’ll be unions. As Obama knows very well, the Citizens United decision applies to unions and nonprofits just as much as it does to big corporations. As Obama also knows very well, union political contributions dwarf corporate contributions:

Labor unions have dominated spending on independent campaign ads so far this election season, despite a recent Supreme Court decision that freed spending by corporations, a Washington Post analysis shows.

The findings are an indication that corporate money is not flooding into campaigns as many predicted would happen after the landmark decision in Citizens United v. Federal Election Commission.

So far this year, $24.7 million in independent spending has been reported to the Federal Election Commission, campaign filings show. Unions have spent $9.7 million (or 39 percent of the total), compared with $6.4 million (26 percent) spent by individuals and $3.4 million spent by corporations.

Unlike corporations, which typically hedge their bets by giving to both parties and mainly to the party in power, union contributions flow 90%+ to Democrats.

Our President has trouble with the truth.

A commentar at Bainbridge goes right to the heart of it: 

It’s good of President Obama to be concerned that “We don’t know who’s behind these ads and we don’t know who’s paying for them.” That would resemble candidate Obama’s campaign contribution website, where his campaign intentionally turned off the credit card name and address verification so anybody could contribute any amount on any credit card they could gain access to and nobody would know who was doing it.

It’s also disheartening to see him continue his gutter politics and thuggery by continuing to demonize the Supreme Court for performing its constitutional functions.

According to this law review article in the Brigham Young Law review, Judge Walker may have completely missed the point when it comes to the question of standing for Proponents of Prop 8 to appeal. He notes that the federal circuits split on the issue of whether an intervenor must have independent Article III standing. He then says:

We argue that those courts that do not require intervenors to have Article III standing view standing as a requirement imposed on all federal courts, that is, that at least one party must have standing before the court can maintain jurisdiction; conversely, the courts that do require intervenors to have Article III standing view standing as a requirement imposed on all parties that come before a federal court. Thus, it is a subtle distinction in analytical approach that divides the circuits on this issue. We recognize that viewing standing as a requirement on the court still necessarily depends on a party having standing; however, we argue that the court need only ensure that the original party to bring suit has standing-not that every party before the court has standing. Under this approach, by ensuring that at least one of the parties before it has standing, the court satisfies its obligation under Article III and may properly take jurisdiction.

The standing requirement exists to prove that a real case or controversy exists. Once the court implicitly grants that the original parties had standing, it grants that a real case or controversy exists. There is no requirement that each party entering that real case or controversy as an intervenor must independently show that standing exists as to them.

In other words, once the court accepts jurisdiction, it rules that there is a real case or controversy at issue. Once there is a case or controversy, the parties have standing.

If parties completely extraneous to the dispute attempt to intervene, they can be knocked out under Rule 24. A  finding of sufficient “protectable interest” under rule 24 then becomes a proxy for standing.

Additionally, the rules for granting the plaintiffs standing include the rule that the defendents must have “caused” the plaintiff’s injury. Therefore, a finding of sufficient causation to trigger standing in the plaintiffs also by implication grants sufficient “standing” to the defendants, because they have caused the harm to the plaintiff. They of course, have not been injured; instead it is alleged they have caused an injury to another. But if they have not sustained an injury, how can they have standing in the case? After all, the minimum requirements for standing include the requirement for injury. The answer, it seems, is that their “standing” is derivative, through the plaintiff’s causation requirement. Their potential “injury” ( in the form of an adverse decision) gives them a solid interest in defending the suit. The defendants are inextricably bound up in the case and are alleged to have caused the plaintiffs injury; therefore they have standing. But not independently.

Since defendants get their standing by derivation from the plaintiff’s act of proving standing, intervenors would presumably derive standing in the same way.

However, there are cases that fly in the face of the article’s analysis: Diamond v Charles, for example. 

There, a group of doctors challenged a new Illinois law that placed certain restrictions on abortion. The State defended the action in the district court. Diamond, another doctor, intervened in the District Court on the side of the State. He claimed his interests as a doctor and a parent, as well as conscienscious objections to abortion,  gave him an interest in the litigation. He wanted the law to stand. The District Court allowed him to intervene.  

The District Court ruled that the law was unconstitutional. The State appealed to the Court of Appeals, but that Court affirmed the District Court. The State did not appeal to the Supreme Court. 

Diamond, however, attempted to carry the appeal on his own behalf to the Supreme Court. But, the Supreme Court ruled that Diamond did not have standing to appeal.

The court said in Diamond:

Because a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute’s defense, we dismiss the appeal for want of jurisdiction

It seems to me that Diamond’s interest was much more speculative and remote than the interests of the Prop 8 proponents.  In Diamond, the Supreme Court seems to have questioned whether Diamond really had status as a Rule 24 Intervenor.

…the District Court granted Diamond’s motion to intervene. [Footnote 6] The District Court did not indicate whether the intervention was permissive or as of right, and it did not describe how Diamond’s interests in the litigation satisfied the requirements of Federal Rule of Civil Procedure 24 for intervenor status.

The Court appeared to consider Diamond merely a concerned bystander:

It is not to be placed in the hands of “concerned bystanders,” who will use it simply as a “vehicle for the vindication of value interests.” United States v. SCRAP, 412 U. S. 669, 412 U. S. 687 (1973).

The rule of Diamond seems to be this: where an intervenor has a very thin claim to a Rule 24 protectible interest, such that his right to intervene is questionable, it is possible that an appellate court may find his interest in the case  insufficient to proceed alone with an appeal.

Diamond did not seem to have much of an interest in the case, at least by normal standing rules. He intervened based on his “conscientious” object to abortion; as well as his broad interest as a doctor.  And as a parent of a teenage daughter. These are qualities that hardly distinguish him from the general public. Only his status as a doctor seemed to have been different. And in that, he was not of the class that would be adversely affected by the law, since he would not be doing abortions anyway. It is pretty clear that Diamond was merely a concerned bystander; the District Court probably allowed him in the case only because he did not want to seem impartial in a highly publicized, politicized case.

The circumstances in Diamond were quite different than the Prop 8 case. In Diamond,  a state law was involved – not an intiative. When a state law is passed, the state of course is the primary defender of that law.

The State’s acquiescence in the Court of Appeals’ determination of unconstitutionality serves to deprive the State of the power to prosecute anyone for violating the Abortion Law. Diamond’s attempt to maintain the litigation is, then, simply an effort to compel the State to enact a code in accord with Diamond’s interests. But “the power to create and enforce a legal code, both civil and criminal” is one of the quintessential functions of a State.

But where an initiative is involved, state officials lack any serious interest in defending the law; they refused to pass it in the first place. The direct will of the people has replaced the legislature and the State government.  And so, constitutionally, that interest must have  some means to defend a suit against their initiative. 

In the Prop 8 case, neither the governor or the Attorney General would put up a defense. In that case, some means must constitutionally arise to give initiative proponents the possibility of defending their initiative. Otherwise, the Supreme Court will be allowing states, and sympathetic Federal Judges, the means of entirely destroying the results of the initiative – by means of slick legal technicalities. And no one could put up a defense to an attempt to undo the will of the people, clearly expressed.

A legal device more harmful to democracy could not be imagined.  

Remember Baker v. Carr’s rationale for standing, that standing ensures the presence of the “”concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”

It is laughable that the courts would give the State standing here, and deny it to the Proponents of Prop 8. The state has shown no interest whatsoever in defending the case.

Since the whole purpose of the standing rule is to make sure that the courts do not interfere with the political process (Allen v.  Wright: “More important, the law of Art. III standing is built on a single basic idea — the idea of separation of powers.”) the court’s exclusion of any real defense of the initiative would be a travesty of the worst type.

It would replace the will of seven million voters with the musings of a rather bizarre Federal District Court judge. And in the process, it would have stripped those seven million of any real chance to defend themselves and their initiative in court.

Brilliant.

Ed Whelan at Bench Memos:

To any objective observer, Walker has discredited himself by his manifest bias.  However the reviewing courts ultimately decide this case, I think it’s highly unlikely that Walker’s wild legal analysis or his crazed purported findings will advance his cause—and far more likely that they will do the opposite.  The primary effect of Walker’s gratuitous resort to a trial has been to delay the ultimate outcome of this case by a year or so.

And, that’s exactly why Judge Walker issued such a bizarre opinion. Remember – if this case got to the court in its current configuration, the Conservative Justices would deny there is a right to gay marriage in the constitution. There is little possibility that Justice Kennedy wants to become one of the most hated men in America by overthrowing the constitutions of 31 states and the laws of 15 more.  If the court were to treat democracy – and the constitutional amendment process so shabbily – it would be forever harmed as an institution. The implications would be enormous. Calls for impeachment of the Justices would be commonplace; legislation of all sorts would follow; states would defy the ruling of the Court. Far from settling the issue, it would create a firestorm of enormous proportions that would burn for years.

No, Kennedy is not going to do that.

And a decision by the Court against gay marriage would probably seal the issue for at least 10 years or more.

So Walker has method in his madness. He wanted to string everything out as long as possible, in the hopes that the composition of the court might change in the meantime. Should something happen to one of the conservative justices, Obama would appoint a liberal and the balance of the court would be changed. As we have seen, liberal justices would be nuts enough to try to impose gay marriage on the people. They have convinced themselves that the fake polls touted by the media are true, and that they will be called heroes. So, they would do it.

That’s the game that is being played here. Judge Walker is trying to slow everything down.

Ed Whelan at Bench Memos recalls that weird decision by a liberal judge in regards to the Surveillance of Terrorists. He also notices the odd tendency of the MSM to call all liberal decisions “carefully reasoned”, no matter how goofy they are: 

2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional.  Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”  Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.”  (How’s that for “careful” and “thoroughly grounded”?)  Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.”  But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims.

So – when you read in the papers that Judge Walker’s decision in Perry is “carefully reasoned”, this really means it is a piece of junk.

The Ninth Circuit has granted the appellants motion for a stay in Perry. This makes sense, because it would be stupid and cruel to tell yet another class of gay people that they were married, only to have that marriage called into question later on.

The granting of the stay might even be considered evidence that the Ninth expects the Proponents to prevail on the appeal. However, their cautionary statement about standing evens that right out.

Interestingly, the Ninth Circuit specifically asked the parties to brief Arizonans for Official English v. Arizona.

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED.

Well, the first reason is that the court declined to rule on the standing issue in AOE. They hemmed and hawed and mumbled about it, but then said they would consider the parties to have standing so they could get to the meat of the case: the fact that the whole thing was moot.

From the summary of the case:

Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62. Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez’s departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363, 364, n. Pp. 18-21.

Well, this is the court wanting to have their cake and eat it too. It is quite odd to just pretend they have standing. Either they did or the didn’t. But don’t go running your mouth about it, and then decide that you were going to pretend they had standing.

The Ninth circuit is understandably queasy about the case, though, because the Supreme Court said the Ninth had botched the standing issue in the case.

Jonathan Adler  has a nice post on standing over at Volokh.

Here is my contribution to the standing issue:

1. They have standing. The requirements for standing (stated simply)are injury, causation and redressability. You can’t say they don’t have an injury — they raised millions of dollars, got an initiative on the ballot, worked thousands of hours to promote and get Prop 8 passed. Now, a plaintiff comes around that wants to undo all of their work and reverse the whole process. They certainly have an identifiable interest in preventing the unraveling of all they have accomplished. Their harm was caused by the plaintiffs filing of the suit and the judge’s decision. And a court can effective redress their wrong. In other words, as one commenter noted, standing is generally something that applies to plaintiffs ability to bring the case in the first instance. However, once a case has been brought and has resulted in the curtailment or elimination of a definable right previously “owned” by the defendent, that defendant has standing.

2. Californis law requires that initiatives be “sponsored” and creates a specific category of individual called a “official sponsor” of the inititive. These sponsors essentially stand in the place of governmental officials who have refused to, or have not, passed legislation to address the matter. So Prop 8 proponents are not simply members of the public with no other definable interest in the matter other than their membership in the general public; they are people with a quasi-governmental status, created by California law. They have a special definable interest in seeing Prop 8 be enforced, and not cast aside because of the very unusual circumstances of this case which are…
3. That the responsible officials who are supposed to defend the state constitution are refusing to do so. That fact makes a big difference.

Now, there are cases that might run contrary to this general thought on standing: Arizonans for Official English might have something relevant to say. I haven’t read that one yet. And there was one other case cited by Judge Walker that was an appeals court case.

But I think the critical thing here is that it is an initiative, that the normal governmental officials have refused to defend it, ( which is a good way of governmental officials killing off initiatives) and that the sponsors are not just members of the public.

Here is a very good brief by Charles J. Cooper of Cooper and Kirk in Washington D.C.

It has all the right qualities. It is clear as a bell, and is easy reading. That is rarely, if ever, said of briefs.

It is a masterful example of the lawyer’s craft.

In addition, it takes Judge Walker’s decision apart and makes it look pretty foolish.

I haven’t seen the reply brief yet from Boies and Olson, but they have tough sledding ahead.

We knew that his opinion was bizarre. But we did not think he had blatantly changed the substance of the testimony before the court.

Ed Whelan charges that the opinion leaves out and twists the words of the proponents.  Judge Walker simply ignored testimony when it was offered.

We’ve seen this show before.

During the height of the illegal immigration debate, the MSM assured us that 65% of the public was in favor of letting all the illegals stay here and become citizens. No problemo, said those polls. Pay a fine, and we will let you in. Come on in,the water is fine.

But in fact, the real sentiment among the public was more like 65% against.

During the Health Care debate, the MSM kept telling us that  people favored Obamacare and they loved the public option. In fact, one poll said that 80% of the country wanted the public option.

But in fact, the real sentiment was drastically against  Obamacare. People hated it.

And now, the MSM is coming out with polls that purport to show that gay marriage is popular, or at least a toss up. Don’t believe them for a second. It’s an old game they play, over and over again.

They tilt their polls. It is easy to do. Pollsters know how to get the results they want. Mostly, they increase the number of Democrats polled,and reduce the number of Republicans. Or, they phrase the questions in ways so that the half of the population that has no idea what is going on are pushed to answer one way or the other.

Mostly, these fake polls are for the benefit of Justice Kennedy. If he is as stupid as they think he is, he will buy all this and will start to think he is doing the public’s will. Kennedy has a tendency to blow with the winds of popularity, so he can be influenced.

Look for more of these polls as time goes on. They are worthless, worthless, worthless.

Question: If so many people are for gay marriage, how come 31 states have soundly voted against it? Sometimes by marjorities of up to 70 some percent. How come several states were willing to amend their constitutions in order to keep it from happening?

No, don’t believe the charlatans in the MSM.

Trust me. I have watched the MSM play this game for years. It is much more likely that the real sentiment in the country is something like 65% against, 35% for.

Dean and law professor at Chapman Law School, John Eastman, agrees that the Supreme Court should vacate the judgment in Perry v. Schwarzenegger. Judge Walker should have recused himself.  

Judge Vaughn Walker’s Proposition 8 decision last week has thrust his personal life into the limelight. The San Francisco Chronicle has reported that the fact that Judge Walker “is himself gay” is the “biggest open secret” in town. The BuzzTab blog calls him “the apple of gay advocators eyes.” The Los Angeles Times reported just last month, after the conclusion of closing arguments in the case, that he is “openly gay” and “attends bar functions with a companion, a physician.”

Is any of this relevant to Judge Walker’s ruling striking down Proposition 8?

Well, as University of Notre Dame law Professor Gerard Bradley recently noted, the mere fact that Judge Walker may be homosexual would not necessarily have required recusal. But the fact that he “attends bar functions with a companion, a physician,” and may therefore be in a stable homosexual relationship of the kind that could lead to marriage, is an entirely different matter.

…A judge is required to disqualify himself in any proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has … personal knowledge of disputed evidentiary facts concerning the proceeding; [or] … (c) the judge knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge. … Where an objective observer would have questioned the judge’s impartiality, recusal is required, and the appropriate remedy is to annul the judgment because of the risk of injustice to the parties and of undermining the public’s confidence in the judicial process.

The one sided, dismissive nature of his opinion gives further to enhance the impression of bias.

But let’s indulge in a little conspiratorial thinking. The opinion is so bizarre, so one sided, so obviously contempuous of one side, you might wonder whether this was intentional.

Here’s how the thinking goes. The world was surprised when solid conservative Ted Olson initiated this lawsuit. Some thought that it was a grand tactical move. In reality, Olson was against gay marriages. But he saw a danger: President Obama might appoint enough judges to the Supreme court to tip the balance. If Justice Kennedy were to retire, or any of the other four conservative justices, Obama could install  a liberal majority court.

To head that off, it was imperative that a gay marriage case make it to the Supreme Court while the conservative majority was still in place. That way, the conservatives could rule on the issue, and make clear that the Constitution did NOT require gay marriage. That decision would be locked in as precedent – no court would overrule itself just a few short years after having decided the case. So, by bringing the case, Olson was really insuring that gay marriage would not be the law of the land.

Judge Walker, understanding what was going on, decided to 1) Not recuse himself, which was clearly required and 2) issued a rather bizarre ruling that was sure to be overturned. This would eat up the clock and would almost certainly result in the Supreme Court vacating his ruling, and the whole process would start again. That would take another year or two to get resolved. And maybe in the time being, a conservative justice would retire, and that would put the court back into the hands of the liberals, who would then find a right to gay marriage in the Constitution.

Convoluted, yes. But ever so slightly possible.  Especially considering the bizarre nature of the ruling. The flimsy, contentious “fact” finding, and so forth.