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Thank You, Senator Kennedy

Despite a strangely crossed-out headline on the New York Times website, it’s true: Senator Kennedy has indeed passed away.

Ted Kennedy is the man who built modern America, from the Civil Rights Act to the salvation of Medicare. Senator, your commitment to equality has proved your detractors short-sighted, time and time again. You leave behind a grateful nation.

[T]he work goes on, the cause endures, the hope still lives, and the dream shall never die.

Yes, we are all Americans. This is what we do. We reach the moon. We scale the heights. I know it. I’ve seen it. I’ve lived it. And we can do it again.

- Sen. Edward Kennedy (D-MA), 1932-2009

John McCain is a Far, Far Better Man than Any of his Constituents

Story of his political career — and especially the last election. In a better world with a better Republican Party, he would’ve made a fine President for 2000-2008.

But seriously, who are these people? I look at town hall-goers like this woman, claiming that spending money is unconstitutional just because they disagree with its use, and I see the death of constitutional democracy.

Obama and the “Politics of Charisma”

If you like hyper-partisan stream of consciousness rants, be sure not to miss Fouad Ajami’s take on Obama’s “summer of discontent,” a stylishly written diatribe that, eventually, doesn’t seem to say anything. Since it lacks a unifying thesis, one can only approach the piece in parts. First, we find a disjointed critique of Obama’s optimism, one that only holds together by assuming its conclusion and ignoring the potency of national rebirth stories:

[Reagan's] faith in the country was boundless, and when he said it was “morning in America” he meant it; he believed in America’s miracle and had seen it in his own life, in his rise from a child of the Depression to the summit of political power. [. . .]

In contrast, there is joylessness in Mr. Obama. He is a scold, the “Yes we can!” mantra is shallow, and at any rate, it is about the coming to power of a man, and a political class, invested in its own sense of smarts and wisdom, and its right to alter the social contract of the land. In this view, the country had lost its way and the new leader and the political class arrayed around him will bring it back to the right path.

Obama and Reagan actually have a lot in common here, a conclusion Ajami struggles to disclaim. Both, in fact, spoke of optimism, national rebirth, and a struggle to reclaim the American dream. If their visions of a reborn America differ, their central messages do not. Ajami may not be too excited about Obama’s vision for America, but a majority of the country still is, and one man’s disapproval does not make the dream of a nation “shallow.”

Second, the by-now-familiar line that Democratic distaste for town hall “protestors” is anti-democratic:

So our new president wanted a fundamental overhaul of the health-care system—17% of our GDP—without a serious debate, and without “loud voices.” It is akin to government by emergency decrees. How dare those townhallers (the voters) heckle Arlen Specter! Americans eager to rein in this runaway populism were now guilty of lèse-majesté by talking back to the political class.

Who you think has the better of this argument probably turns on whether you think gun-toting mobs screaming about Nazi “death panels” constitutes “serious debate.” If you do, then by that definition, you’re right: Obama and the Democrats do want to stifle “serious debate,” as detrimental to the policymaking process. But if you think “serious debate” should have fewer guns and Hitler mustaches, and more calm discussions about deficits, insurance premiums, and the problem of insurance companies systemically abusing patients, then I submit that we don’t know how Obama feels about “serious debate,” because the Republican Party has made no bona fide attempt to engage him in one.

Ajami imagines that these two problems — Obama’s failure to convey a message of optimism that appeals narrowly to angry conservatives like him, and his inability to get the GOP interested in the real work of government, as opposed to angry, Godwin’s Law-flouting whining — together prove that “Mr. Obama’s charismatic moment has passed,” the spell has broken, and his presidency is over. Maybe it has, and maybe it is, but if so, it isn’t because Obama’s charisma has given out. It’s because the GOP has hit on three things more powerful than charisma: fear, pessimism, and elitism.

Dismissal of Gay Marriage Case Could Cast a Long Shadow

Yesterday, the Central District of California, per Judge Carter, dismissed for failure to state a claim a suit brought by Arthur Smelt and Christopher Hammer, alleging that California’s failure to grant them a marriage license contravenes basic notions of due process and equal protection. The case challenged both California’s Proposition 8, and the federal Defense of Marriage Act.

Although I can’t find the opinion on the Central District’s site, the LA Times lists standing as the reason for the dismissal. In the federal courts, plaintiffs must have “standing,” meaning they must allege (1) an injury in fact, (2) fairly traceable to defendant’s conduct, and (3) redressable by a favorable verdict, or face dismissal at the threshold. The actual doctrine of standing is incredibly complex, and it’s one of the most commonly known doctrines of justiciability, responsible for withdrawing fairly significant matters from the federal courts. Apparently, this case foundered on the first prong: while I can’t comment on that reasoning without seeing the actual opinion, it seems that when a marriage case fails for failure to state a cognizable injury, the problem is more with the complaint than with the actual law. A properly drafted complaint, or a receptive judge, could cure the standing difficulty easily, I would think.

That last bit may be just the point, though. The esoteric qualities of standing, and other doctrines of justiciability, make them ideally suited for dismissing properly presented but impolitic cases. For example, in the wake of Brown v. Board, the Supreme Court scrambled for any reason to turn down cases questioning miscegenation statutes, not because the Court believed a ban on miscegenation to be legal, but because it didn’t want to further inflame the South, so quickly after Brown. Between this case, and some fairly apparent stalling in Perry v. Schwarzenegger, the case being litigated by constitutional superstars David Boies & Ted Olson, we may be looking at the same thing, in the gay marriage context. Gay marriage is no longer an “if” — the law is on our side — but the “when” may be pretty far off, still.

Sorry for the delayed & sloppy post — it’s a busy week.

The Latest Republican Non-Issue: Tort Reform

Sarah Palin, America’s favorite unemployed Facebook blogger, managed to hold on to her transient relevance for another week, with a post upbraiding President Obama for failing to treat tort reform as a necessary part of any healthcare reform plan. She even manages to relate the issue to her own personal struggles (awww!):

As Governor of Alaska, I learned a little bit about being a target for frivolous suits and complaints (Please, do I really need to footnote that?). I went my whole life without needing a lawyer on speed-dial, but all that changes when you become a target for opportunists and people with no scruples. Our nation’s health care providers have been the targets of similar opportunists for years, and they too have found themselves subjected to false, frivolous, and baseless claims.

At the outset, I should explain that I have no stake in the matter: although I’ll soon be a member of the bar (still waiting on results…), the only contact I’ve had with medical malpractice law is on the defensive side. Still, the devices for limiting medical malpractice claims are well-known to anyone conversant in the law. Palin explains a few of them, kinda:

Many states, including my own state of Alaska, have enacted caps on lawsuit awards against health care providers. Texas enacted caps and found that one county’s medical malpractice claims dropped 41 percent, and another study found a “55 percent decline” after reform measures were passed. [4] That’s one step in health care reform. Limiting lawyer contingency fees, as is done under the Federal Tort Claims Act, is another step. The State of Alaska pioneered the “loser pays” rule in the United States, which deters frivolous civil law suits by making the loser partially pay the winner’s legal bills. Preventing quack doctors from giving “expert” testimony in court against real doctors is another reform.

Except to the extent that they’re duplicative — as she says, “many states” have enacted serious tort reform — some of these are good ideas. “Fee shifting” models (“loser pays,” in Palin’s terms) are effective ways of discouraging bad claims with minimal negative impact on real justice. Limits on damage caps should be approached with some skepticism, though. While they obviously cut down on malpractice claims, they damage good claims more than bad claims. Someone who’s grievously injured — and remember, not all cases (or even many) are shams — may not be able to be “made whole” without extravagant awards. Sometimes and especially in class actions, justice requires awards in the $100M+ range, and that’s okay. Other forms limitations are preferable to damage caps: for example, some states require medical malpractice plaintiffs to submit to mediation or administrative review before trial, to weed out bad claims or settle simple cases, thus cutting down on the transaction costs involved.

Palin’s last idea, though, is a real shocker. The Federal Rules of Evidence (and state counterparts) already provide for extensive screening of testifying (and consulting) expert witnesses. See Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm. Corp., 509 U.S. 579 (1993). Before testifying on matters of expertise, expert witnesses, like physicians in medical malpractice cases, must be rigorously questioned to ensure the validity of their methodology, lest a “quack” irrevocably taint the jury with slipshod, biased testimony. It’s not clear how this model could be improved, much less how Palin expects it to be. This a prime example of why Palin’s truly unfit for policymaking: she doesn’t seem to know what she doesn’t know.

There are other problems with the Republicans’ renewed focus on tort reform as a solution to skyrocketing healthcare costs: even Palin admits that tort reform could, at most, shave 9% off of a patient’s bill, but that’s a paltry sum, not nearly enough to effect the real change that’s needed. There’s a certain ideological inconsistency there, too: if the free market is the response to healthcare reform, aren’t lawyers part of the process? Then again, the GOP’s libertarian bona fides always disappear like so much smoke as soon as some conservative social issue is implicated, so we should hardly be surprised. Similarly, the method of executing tort reform bumps up against both Republican core values, and practical concerns. Presumably, federal tort reform would preempt existing state restrictions on medical malpractice claims, but that would federalize a significant portion of state law, which is either impossible or difficult, and in any case would seem to run afoul of any notion of “states’ rights.” Socialism!!

And finally, as far as I can tell, the Republicans aren’t really interested in tort reform in the first place. Obama offered to include it in the healthcare bill back in May, a compromise that the party leadership flatly rejected. Either the GOP truly has no interest in actually governing, or they haven’t yet grasped the significance of their minority status, or they just don’t care.

Civilization & its Discontents: Community Organizer for Glenn Beck Draws Gun on Foreclosed Homeowner

That’s about it — after a homeowner questioned a man photographing his recently-foreclosed home, an argument ensued, and the photographer, an organizer for Glenn Beck’s 9/12 project, pulled out a firearm.

This story would be another ho-hum instance of far-right violence — like men toting rifles outside Obama events which, even with White House permission, is insane — but for the right wing’s vigorous online defense of the photographer. Let’s be clear on this, then: there’s no privilege to brandish a firearm, as in pointing it at someone, unless you’re facing an imminent threat to your life, or the life of others. Otherwise, it’s an assault, and you’ll go to jail, as this man should and will.

A freedom from the threat of violence is a basic right of every American, one that co-exists happily with the right to bear arms. Where the latter trumps the former, we have anarchy.

Quote of the Day: Compromise & the Public Option

“The best lack all conviction, while the worst
Are full of passionate intensity.”

– W.B. Yeats, “The Second Coming”

Politico Now Just Running Pawlenty Campaign Ads

With such hard hitting stories as “Is Obama TOO faithful to his wife?,” and “Is Obama TOO respectful to foreign leaders, by pronouncing their names correctly?,” Politico is justly regarded as the bottom of the barrel in journalistic integrity. Now the long-term goal of this “blame Obama for success” plan is coming into focus: Pawlenty in ’12!!

Their latest puff piece reads like a press release from the governor’s office: he’s “carved out a space uniquely tailored to his political persona,” offered “tough criticism of Obama” without engaging in “overheated” dialogue like Palin, supports identified fancy-sounding positions, is a “quieter sort who’s more about policy” and “never throws verbal bombs,” etc., ad nauseam. Not to mention, he’s balanced the state budget, three times, without raising taxes! (Wait — what? Why do you have to do that three times in two terms?)

If this tough-but-fair model of journalistic integrity sounds overly rosy, it’s because it is: Pawlenty’s little heard of on the national scene, and in his own state, where his name recognition is presumably higher, his popularity indicates that he’s a polarizing figure. In fact, he polls below Obama in a theoretical head-to-head in his own state. This is not the record of a bipartisan budget hawk: in fact, it seems his ability to balance budgets derives from his willingness to slash state refund programs while hiking state university tuition and “fees,” the latter because it’s easier to hide the real impact on students. Beating up on students has a way of hurting one’s popularity.

This is not to say Pawlenty’s not a threat. He is. Particularly if sites like Politico continue to run articles ghost-written by his future exploratory committee.

Victory over TexasDarlin?

Since the PUMAs have long since lost whatever relevance they once had, I haven’t paid attention to them in a while — and I doubt you have, either. Good! But you might be interested to know that “TexasDarlin,” erstwhile Hillary fan, originator of the legal “theories” now used by birthers like Orly Taitz and, now, Tom DeLay, has shut the blog down! It’s “protected” — in WordPress lexicon, viewable by only those given accounts. Apparently, she’s taken this step before, so we can’t be sure it means she’s gone for good. I haven’t been to the site in a while, so I don’t know what started it, either — anyone have more information?

Update: thanks to Chris for pointing out that TexasDarlin has stated that she’ll be on hiatus. Here’s hoping it’s permanent.

AEDPA & Troy Davis: The Death Penalty, Actual Innocence, and Federal Deference

There are few political footballs that’ve been kicked around more, and with greater reprecussions, than the writ of habeas corpus. The “great writ,” of course, traces its origin to the Magna Carta — “no free man shall be taken, imprisoned … or any other wise destroyed … but by lawful judgment of his Peers” — and finds it current home in Article I, § 9, cl. 2 of the federal Constitution. Broadly defined as forbidding detention by any authority in violation of the Constitution, the Writ finds specific definition in Title 28 of the U.S. Code: § 2241 covers federal detention by the executive; § 2255, detention by conviction in a federal court; and, significantly, § 2254 covers detention by a state authority.

The state habeas right necessarily implicates grave questions of federalism. Left unrestrained, a right to parallel review in the federal courts — one shot in state court and one full, complete, subsequent litigation in federal court — could make state criminal law a nullity, and drown the federal courts in endless criminal appeals. It sounds callous, but this is a real concern, and I do not intend to shortchange it with what comes later.

Accordingly, Congress limited the right to habeas corpus in the Antiterrorism & Effective Death Penalty Act of 1996, passed by a huge margin and signed into law by President Clinton.  In relevant portions, the AEDPA added subsection (d) to § 2254, again, covering state habeas proceedings –

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

You have no idea how much ink has been spilled trying to figure out what “clearly established Federal law” means. It’s truly shocking. In any event, AEDPA drew almost immediate criticism. However, it is emphatically not a suspension of the right of habeas corpus. The War on Terror cases, and especially Boumediene v. Bush, 553 U.S. ___ (2008), explicitly hold that a limited habeas right, or even the substitution for a habeas-like remedy, is not a suspension. Moving on…

AEDPA effected nothing less than a sea-change in habeas law by sharply curtailing habeas challenges based on procedural failings in the state court, i.e., violations of the Fourth Amendment limitation on unlawful search & seizure, which had already been substantially limited. See, e.g., Stone v. Powell, 428 U.S. 465 (1976). The Act’s more troubling implications, however, concern its application to claims of “real innocence.”

Established case law holds that habeas only lies to correct legal errors – factual errors are the province of state courts, and once the state process has been exhausted, you’re left with its factual conclusions.  Herrera v. Collins, 506 U. S. 390 (1993) (this opinion predates AEDPA but still governs).  In other words, the state trial process forecloses any question of actual guilt, because legal guilt is established, permanently, before habeas review ever begins. The limited window for review of factual errors in § 2254(d)(2) and (e)(1) is cold comfort.

But.

In the same case, Herrera, Justice O’Connor – you’re missed, truly – expressed grave concern for any legal regime that would foreclose an appeal premised on “actual innocence,” or those few cases where newly-discovered evidence, or gross miscarriages of justice by the state courts, reveal that the defendant should never have been found guilty in the first place, because he never committed the crime (“[T]he execution of a legally and factually innocent person would be a constitutionally intolerable event”).

Apart from Justice O’Connor’s Herrera concurrence, multiple appellate courts, and subsequent dicta from other Supreme Court opinions, have expressed similar misgivings with the possibility that AEDPA would foreclose a compelling case of “actual innocence.” For example, “procedural default” — just what it sounds like, the legal equivalent of “dropping the ball” — almost always forecloses habeas review, except, we think, in cases involving “actual innocence.” See Murray v. Carrier, 477 U.S. 478 (1986); Sawyer v. Whitley, 505 U.S. 333 (1992); Schlup v. Delo, 513 U.S. 298 (1995). AEDPA may be incapable of closing that loophole; we don’t know. The Supreme Court has never precisely resolved the issue, because it’s never been properly presented.  And, until Monday, they weren’t forced to think about it too hard, either.

Troy Davis changed all that. Those more educated than I may his case fairly well (I’m new to it).  Basically, Mr. Davis was convicted in the Georgia state courts of murdering a police officer in the course of a felony.  He was sentenced to death.  Since his conviction, most (all?) witnesses have recanted, and it now appears more likely than not that the prosecution’s star witness actually killed the officer, which has a way of changing things. Mr. Davis ran out of state remedies, but yesterday, the Supreme Court transferred his original writ of habeas corpus to the Southern District of Georgia, with instructions to:

Receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.

Note carefully that the order does not authorize the use of evidence that couldn’t have been discovered at trial. An argument for an evidentiary hearing on new evidence would be extremely difficult to make. See Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001).

Even if confined to evidence available at the time, this is an extraordinary measure, but a legal one. First, the Supreme Court is perfectly entitled to order the relitigation of issues before a state tribunal. It’s not as scary as Justice Scalia thinks it is, or a real departure. Second, Davis’ case fits within a credible gap in the Supreme Court’s understanding of AEDPA. As noted above, AEDPA’s application to claims of “actual innocence” is unclear, and what hints exist point roughly in Davis’ favor.

Simply put, then, Davis’ case, before Monday, was a true toss-up. Because it resolves that doubt in favor of a final, closer look at Mr. Davis case, before the death sentence irrevocably forecloses review, I can’t help but feel that justice was done. Apart from the fine questions of legality, this might be one of those times where it’s okay to make instrumental arguments. Do we really want a legal system that ends a life on a technicality? It’s a question of highest morality, and probably one where “empathy” ought indeed to play a part (h/t John, on that point, to be developed more later). In true constitutional toss-ups like these, the process of constitutional decisionmaking becomes what my favorite law professor called a game of “error deflection”: acknowledging that you might be wrong on the law, on which side do you, as a judge, want to risk erring? Certainty and potential life, or doubtful finality, and death? The lady or the tiger?