Overdoing it

Posted on May 26, 2009 by mpomy

As I contemplate the way in which I over ate tonight (burrito night – too much of a good thing!), I can’t help but reflect on Ms. Lithwick’s observations about how smart people can act stupid. This regularly happens in connection with selecting Supreme Court Justices (and burrito night).

So we can expect a lot of stupidity and histrionics. Something just happens when the bright shining lights of the Judiciary Committee’s fancy chamber come on. I know that most of those senators like to be on TV.

Maureen Dowd should lose her job for this

Posted on May 18, 2009 by mpomy

She ripped off Josh Marshall, the founder of Talking Points Memo, and one of the top two or three most influential web journalists in recent history. This guy’s investigation of the Bush Administration’s overly politicized Justic Department actually led to the firing of Attorney General Alberto Gonzalez. Marshall is a modern day Woodward and Bernstein and he’s read by hundreds of thousands of people. Did she think no one would notice? How stupid can a person be?

SHE FREAKIN’ COPIED HIS STUFF AND PRINTED IT IN HER SUNDAY COLUMN IN THE NEW YORK TIMES. That’s her saying that she’s too busy or lazy or old to do any real work on her own. That’s her saying she doesn’t want her job anymore because it’s just too difficult – and it happens to be, like, one of the easiest jobs in the world. AND THEN SHE LIED ABOUT!!!

Like it or not, newspapers will soon be gone forever. This kind of insanely stupid behavior is one of the reasons why.

Is There Anything Else That Needs To Be Said?

Posted on May 15, 2009 by mpomy

Torture Photos – Obama fumbles

Posted on May 14, 2009 by mpomy

After talking a big game about openness in government, Obama has changed his mind and is, apparently, going to oppose the release of more photos. These are photos of Americans torturing ‘detainees’ in several locations, not just at one ‘rouge’ facility. This is all coming out of the ACLU’s Freedom of Information Act request, so it is moving through formal, legal channels. The United States Department of Defense has already lost its appeal to the Circuit Court, which means there is only one place left to go – you guessed it! Paging Justices Scalia, Alito, Roberts, Thomas, et al.!

So, if Obama is going to keep these pictures secret, here’s the procedural posture, as reported in DailyKos:

Which leads us to today. By my calculations, the government has about a month left to file a petition for a writ of certiorari before the Supreme Court. As to whether the Court will review the opinion below, the question is generally whether the circuit court’s interpretation of the relevant FOIA exemptions or the Geneva Conventions created a split in the governing law with its sister circuits, or has otherwise “so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power” or otherwise presents “an important question of federal law that has not been, but should be, settled by this Court.” Put in other terms, the government needs four justices to believe that there are five justices who’d overturn the opinion below … and given the way the Court operates, the nine justices involved will include Justice Souter’s successor, whomever she may be.

So, first they have to decide if this is something they even want to look at – the all important ‘Writ of Certiorari.’ If the answer at that stage is yes, then the parties will file briefs, everyone else will file amicus briefs (just to have their two cents on the record), and argument will, eventually, be scheduled. The wheels of justice turn slow.

The post quoted above really does a nice job of laying it all out. The government’s argument (this dates back to the Bush administration) is that the lives of certain people may be put at risk if the pictures are made public. The appeal court, which has already sided with the ACLU in favor of disclosure, based it’s ruling, in part, on the government’s failure to identify specific people that might be harmed. The current administration is stuck with that argument. they can not now go back an argue that national security will be jeopardized. That issue is not part of this case. This is a perfect example of how the Courts work – they decide cases, they don’t make law.

And also, remember that they can’t now go and name the people who might be endangered. Once the case is on appeal, evidence is closed.

Feeding Frenzy

Posted on May 13, 2009 by mpomy

Justice will be served. It will be rare. It will be bloody. But it will be served, and we will be privy to every gory detail. This is what it means to choose a new Supreme Court Justice in this day and age. Law and politics are not supposed to go together – that’s why this is painful. And with the lifetime appointment, the chosen Judge will wield an enduring kind of power. Just as with the run-up to the election in November of last year, there will be another (though different) crescendo that will be made all the louder by the echo chamber, but I’ll offer more on that another time.

I have added the Slate.com – Jurisprudence category to my links. Emily Bazelon and Dahlia Lithwick are extremely sharp legal minds who who have the greatest jobs any lawyer could ever hope for. (There are also other writers in that section of the Slate stable, but I don’t know anything about them, yet.)

But it’s all so left-wing. I really need to break out of the echo chamber so I can, at least, understand the substance, scanty though it may prove to be, of the myriad smears that will undoubtedly follow Obama’s selection of the nominee. There’s also the chance that I may not agree with every aspect of the candidate’s judicial philosophy. Something tells me that National Review Online and Town Hall are not going to satisfy the need for a more scholarly critique.

This is, or will be, good theater. The media (including ‘new’) relish the story, the controversy, the drama that just keeps on giving. That’s how everyone was with the election, and I expect much of the same this summer. Beware the pundits! Don’t get sucked into the fake journalists who are really just talking heads starring in their own version of reality TV. For those folks, the Court doesn’t matter. Obama doesn’t matter. All that matters is their brilliance and beauty as they, oh so humbly, bring you this pivotal moment in history. Where would we be without them?!?

But I eat it up also. It’s exciting and important. The hearings might get rough, but there’s an excellent chance that no one will die. All the latest technology will be employed by both those ‘for’ and those ‘against’, but in the end it will come down to the ancient process set forth in our Constitution.

And, at it’s best, the debate will be philosophical and complex. If it is a current member of the bench, we will look at opinions and briefs and law reviews. Hey! That’s basically what I do for a living. Cool! Even if it’s not a current or former judge, we will still learn everything about this person. Everything she did in her life up until this moment is fair game – everything she ever said. And we will not be looking for those ‘gotcha!‘ moments. Hopefully, the Obama people are smart enough not to select a child molester for the high bench.

No, instead, we will look at the niceties of language and thought. At our best, we will want to learn how this person thinks and predict what this person will do within the highest ivory tower this country has. Supreme Court Justices don’t make policy or write law. I don’t care how far right or left anyone thinks a certain Judge may happen to be. Whether you like them or not, their job is to decide cases. The cases make the law, but the Judges can only decide cases.

So, in those realms where the debate is elveated above the feeding frenzy, we will learn about cases. In other places, the only case anyone will discuss or remember will be Roe v. Wade, but that is to be expected from media that is more concerned with entertaining you than enlightening you. But I will hear the names of vaguely remembered cases from law school, and I will run to look them up and I will discover, all over again, the wonder of our common law. It is a living thing that changes and grows all the time. That is not a partisan utterance, but rather a documented fact that I live with every day as a modest trial lawyer. Customs become molded into law by case decisions over the years, and then the old rules change and new rules come along as human thought is not a static process.

Enjoy the show, but don’t forget to listen and watch carefully. Everyone knows how important this is, but let us share a greater understanding of how it works – not just the selection process, but the actual job that must be done afterwards.

Narrowing it down

Posted on May 8, 2009 by mpomy

I’m not going to rush my Kos diary entey. I’ll post it (and take my abuse) when it’s good and ready. Initially, I had wanted to rant against Comcast and TV in general – picking up on comments I made here and here. And while all that is good stuff, I may want to use this as my opportunity to begin a discussion about child welfare law in Philly – which I’ve observed through Em’s work over the past several years. The story of judges who don’t take the bench and kids dying (as in, not alive anymore) as a result of neglect. Then you throw in the corruption and lack of accountability, and you’ve got a horrific tragedy one hell of a story on your hands.

I just registered over at DailyKos

Posted on May 6, 2009 by mpomy

Everybody knows about DailyKos. I’ve been reading the front page daily for ther past few years, and the folks over there know their stuff. But at ATG’s suggestion, I figured I’d give it a try. I’m not as politically motivated as I have been in the past, but this exercise and heightened scrutiny (there are lots of rules) will, hopefully, take the writing bug to the next level. I figure, while I’m cranking out the columns, I might as well try to do something constructive.

Not that the process of emoting and expressing isn’t a good thing in general, but the difference is wirintg for me vs. writing for a purpose. Let’s see what happens. There is a mandatory one week waiting period before I’m aloud to diary, so I’ll have some time to get my shit together.

Paranoid

Posted on April 28, 2009 by mpomy

Given the timing and the context, and the fact that I’m reading a heavily paranoid thriller make me think that there is no way this flyover could have just been a mistake. Not with the concurrent story of swine flu dominating the press.

The purpose of such a thing would, of course, be to give everyone (in NYC) getting ready to panic about swine flu a little reminder. You don’t just want to control people – you need to control their emotions.