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Filibuster Folly

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The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 

Democrats Retake Mantle of Stupid Party

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No sooner had Republicans re-asserted their long command of the moniker "Stupid Party"  --  this time by failing to round up the votes to pass an Obamacare replacement before they loudly unveiled it  --  than the Democrats, in a lightning fast maneuver, re-seized it by announcing hours later that they will filibuster the nomination of Judge Neil Gorsuch to the Supreme Court.

You don't need to think about it for very long to understand that this is actually good news for Gorsuch, and for those who hope for more mainstream conservatives and originalists on the Court  --  but bad news for the country, which will now see the selection of Justices descend further into sheer political backbiting.
Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.

The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence."  The Supreme Court has interpreted that right to include the effective assistance of counsel.  However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice."  The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.

The purpose of the Sixth Amendment is to guarantee a fair trial.  If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain?  That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to.  We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012).  Four justices agreed with us, but five did not.

Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009).  Williams was a murderer, but there is no discussion of the facts in the opinion.  Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."

I think he was right.  In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.

Confirmation Hearing Follies

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I've been following the Gorsuch confirmation hearing off and on today, sometimes listening and sometimes following SCOTUSblog's live blog.  It's pretty much the usual, predictable, and often lamentable stuff that confirmation hearings have become today.

One point I thought I would mention.  At about 11:14 ET, Senator Leahy refers to the Federalist Society as a "far right" group.  Seriously?  I have been a member for decades, and I do not recall meeting a single Nazi or Klansman at any of the events.  There is a significant diversity of viewpoint, due in large part to the organization's chimera nature of "conservative and libertarian," which are not at all the same thing.  But far right?

How do we define "far" and "extreme"?  By the absolute value of the distance of one's views from the American median, of course.  Is the Federalist Society any further from the median than Senator Leahy himself?  No.

I will leave the comment thread open for discussion of the hearing generally.  Here is a seed question:  Who has been the biggest jerk among the Senators so far, and why?
According to the live blog of today's confirmation hearing at SCOTUSblog, Senator Patrick Leahy stated in his opening remarks that the Senate's refusal last year to consider an election-year nomination to the Supreme Court was "never grounded in principle or precedent."  He evidently did not mention his former colleague, former Senator and Vice President Joseph Biden, but here is what then-Senator Biden said on the floor of the Senate on exactly that subject on June 25, 1992:

The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
No, I am not taking this out of context.  Follow the link to read the whole speech for yourself.

Merrick Garland is a good man and a good judge, even if I don't agree with him on some very important questions.  On a personal level, it is unfortunate that his nomination was scuttled on political grounds.  But judicial nominations are never based purely on merit.  (No, not even -- especially not -- in states that have so-called "merit selection," where the state bar has a stranglehold on nominations.)  Learned Hand and Henry Friendly never made the Supreme Court, while lesser lights were promoted over them.  Many brilliant lawyers never get appointed to the bench at all, while dimmer minds with better connections get the seats.  That's democracy, the worst form of government except for all the others.

Judge Garland and Judge Gorsuch are not similarly situated because 2016 was a presidential election year and 2017 is not.  For better or worse, the candidate who promised to appoint judges of a particular philosophy won the election, and the vacant seat is going to be filled with someone of that philosophy.   Given that, is there any good reason to block this particular nominee with the drastic action of a filibuster?  Revenge for the blocking of Judge Garland's nomination via a much less drastic action is not a good reason.  The fact that Judge Gorsuch votes for the party whose position he believes to be correct under the law, rather than skewing the law to one side or the other based on the identity of the parties, is a strong reason to vote for him.  To vote against him, much less filibuster, on that basis would be unprincipled, to use Senator Leahy's word.

Democrats have no more reason to oppose Neil Gorsuch than Republicans had to oppose Sonia Sotomayor or Elena Kagan.  Most voted no, but they didn't filibuster, and enough voted yes to make around 2/1 votes for confirmation.
The U.S. Supreme Court today denied certiorari in the case that sought to block implementation of the "fast track" for the processing of federal habeas corpus petitions by state death-row inmates.  See the docket for Habeas Corpus Research Center v. U.S. Dept. of Justice, No. 16-880.  The Ninth Circuit threw the case out a year ago, holding that the District Court had no jurisdiction to issue the injunction that it did.  See this post from last March.

The law firm of Orrick, Herrington & Sutcliffe has been representing the interests of murderers against those of victims and law-abiding people contra bono publico in this case as well as the Proposition 66 case.  One can only wonder if America has completely run out of deserving poor people to represent pro bono, given how many blue chip firms are devoting their unpaid representation hours to the interests of people who thoroughly deserve the fate they are facing and who are in their present situation solely because they chose, as an act of free will, to take the life of an innocent person.

In retrospect, though, Orrick did actually achieve something "for the public good."  As a result of the delay they caused, the initial precedent-setting decisions in applications under Chapter 154 will be rendered by a Department of Justice headed by Jeff Sessions rather than Eric Holder or Loretta Lynch.  In the long run, that may well be worth the delay.

The Gorsuch Scandal

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The ever-reliable New York Times has unearthed documents showing that, twelve years ago, Supreme Court nominee Neil Gorsuch supported the harsh interrogation policies of the Bush Administration.

The Times' article has a breathless quality to it, but there's a problem with its outrage: At the time, Gorsuch was Principal Deputy Associate Attorney General.  In other words, as one-time Acting AG Peter Keisler notes  --  in a quotation placed far down the article  --  Gorsuch, "helped shape arguments and litigation strategy but not the underlying national security policy decisions, which 'had already been made'...These are cases he was working on as an attorney for [his client] and advancing its positions."

Readers should correct me if I'm wrong, but, when a lawyer takes on the defense of a child killer, or some gruesome sex-torture murderer, doesn't the Times, together with its defense bar friends, say that the attorney is "fulfilling the highest and most honorable calling of the legal profession"?  Advancing the government's case for effectively extracting intelligence from terrorists, however, gives you dirty hands?

Welcome to the case against Judge Gorsuch.

How Not To Pick a Supreme Court Justice

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Sen. Chuck Schumer, who is leading the opposition to confirming Tenth Circuit Judge Neil Gorsuch to the Supreme Court, thinks that an effective way to do so is to feature the litigants who have lost cases before Gorsuch. The stupidity and danger to the rule of law of this tack is not possible to capture in words, but Ed Whelan gives it a good try here.

The idea that we should select Justices by focusing on which side won (or lost) in the cases they heard as lower court judges is just breathtaking.  It used to be that result-orientation was exactly what you wanted to avoid in judges; now, according to the Gorsuch opposition, it's exactly what you seek.

As long as the opposition is so fond of this perverted approach, however, I hope it will also trot out the numerous killers and rapists Judge Gorsuch ruled against, thus to hasten his taking his seat on the Court.

Trying to Lose and Unanimously Failing

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Today's SCOTUS decision in Beckles v. United States was a noteworthy win for the Justice Department.  At stake were many, many sentences handed down under guidelines language identical to statutory language in the Armed Career Criminal Act that the Court struck down as void for vagueness in the Johnson case a little less than two years ago, https://www.oyez.org/cases/2014/13-7120.  Not only did the Court preserve quite a few stern sentences for dangerous characters; it held that the Guidelines, being advisory only in the post-Booker world, embody a broadly discretionary sentencing system to which applying the concept of "vagueness" makes no sense.

So this is a big win for DOJ.........................Oh, wait.  It was actually a loss for DOJ. That's because the Department's argument, prepared and presented by the Obama Solicitor General's Office, abandoned the victory the US Attorney had won in the Eleventh Circuit and took up the cause for a previously convicted felon who armed himself with a sawed-off shotgun.

Today, the Department's newly-minted but gushing embrace of the criminal won exactly zero votes.

As I've said before, Jeff Sessions can't start cleaning house too quickly.

A Warning Shot on Forfeiture

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The State of Texas seized $201,100 that Lisa Leonard said was from the sale of her home and the State said was drug money.  The trial court found the latter by the preponderance of the evidence, and the State kept the money.

Is preponderance good enough?  Forfeiture exists in the twilight zone between civil and criminal law, and an argument can be made that a higher burden is required.  Justice Thomas discusses the question in his statement today in Leonard v. Texas, No. 16-122.  So does Justice Thomas think the Court should take this case up?  No:

Unfortunately, petitioner raises her due process arguments for the first time in this Court.  As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.
So anyone defending a forfeiture action in a state with a preponderance standard needs to make the due process argument all the way up the ladder.

Impeaching Jury Verdicts

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After a jury has delivered its verdict and judgment has been entered, can that judgment be attacked with juror affidavits about what went on during jury deliberations?  The general rule, going far back into history, is no.  Jurors should be free to engage in uninhibited discussion of the case, without worrying about being interrogated about what was said during that deliberation.

The case of Peña-Rodriguez v. Colorado, No. 15-606, put this rule to a stress test.  In this case, the defendant was charged with "unlawful sexual contact, and attempted sexual assault on a child" for assaulting two teenage girls in a restroom.  One juror held stereotypical views of how Mexican men treat women.  Colorado adheres to the traditional strict view of the no-impeachment rule.  Does the Constitution require piercing the veil in these circumstances?  The Colorado Supreme Court said no, 4-3.  Today the United States Supreme Court said yes, 5-3.

Justice Kennedy assures us that this exception is a narrow one.  We've heard that before.
Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.

#NeverReplaceable

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Justice Antonin Scalia died a year ago today.

There has been much discussion about his replacement.  In the sense I have in mind today, the talk is pointless. Scalia was a once-in-a-lifetime intellect and a larger than life character.  Someone will eventually sit in his seat, but he will never be replaced.

I will repeat two tributes to him C&C published last year, here and here.
Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court.  That was based on a legal assessment that the Ninth Circuit decision is wrong.  (See also Rivkin & Casey in today's WSJ.)

In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd.  Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population.  If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.

However, sometimes there are strategic reasons for not taking a position.  Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it.  Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.

Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch.  The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera.  The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.

Sometimes you have to cut your losses and move on.  While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.

Update:  The Ninth Circuit this afternoon ordered briefing on whether to hear the case en banc.

Felons, Weapons, and Knowledge

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When a convicted felon is not allowed to possess a firearm, what knowledge must be established to prove a violation?  The California Supreme Court addressed that issue today in the context of probation violations in People v. Hall, S227193.  U.S. Supreme Court nominee Neil Gorsuch has dissented in favor of the defendant on a related issue.

In the California case, drug dealer LaQuincy Hall was given probation upon the condition, among others, that he "may not own, possess or have in [his] custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on [his] person."

Although he made no objection in the trial court, Hall claimed on appeal that the condition needed to be modified to prohibit only "knowing" possession.

Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person....  Because no change to the substance of either condition would be wrought by adding the word "knowingly," we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit.  A trial court, however, remains free to specify the requisite mens rea explicitly when imposing a condition of probation.

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