Having heard a news report, Judge Jerry Smith of the Fifth Circuit concluded that President Obama was saying that the courts could not hold a statute unconstitutional and demanded a Justice Department lawyer answer for this.  Not satisfied when the lawyer cited [...]]]> Anderson has an account of a Fifth Circuit argument that is stunning.

Having heard a news report, Judge Jerry Smith of the Fifth Circuit concluded that President Obama was saying that the courts could not hold a statute unconstitutional and demanded a Justice Department lawyer answer for this.  Not satisfied when the lawyer cited Marbury v. Madison and acknowledged that the courts did have that power, Smith addressed a letter to the Justice Department demanding a letter brief in response in three days.  Anderson quotes another blog:

Judge Smith’s ultimatum calls for U.S. Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether President Barack Obama’s recent public statements that the PPACA should be upheld signal a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds.

He then quotes the letter, which demands that the response be no less than three pages:

As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.

Has anyway seen a minimum length requirement for a brief?  This sounds more like a homework or school-discipline punishment (Write a  five hundred times, “Yes, I agree your court has the power to overturn statutes.”).  As I said in comments on Anderson’s blog, WTF?

This 1880s advertising poster has been circulating the internet; Anderson saw it on Lawyers, Guns, and Money.  It’s also in the Library of Congress collection.  While I’d love to have one, I kind of doubt it’s still available for 5 one cent stamps (somewhere on the poster it makes that offer).  Anderson also [...]]]>

This 1880s advertising poster has been circulating the internet; Anderson saw it on Lawyers, Guns, and Money.  It’s also in the Library of Congress collection.  While I’d love to have one, I kind of doubt it’s still available for 5 one cent stamps (somewhere on the poster it makes that offer).  Anderson also found one reference to Mississippi as the Tadpole State (“The average white man of the Tadpole State has always been more or less crazy, and he is not responsible for anything he does.”) in a weekly from Seattle, although an 1879 source I found uses the term in a more generic sense (“Why will Greeley persist in going to that tadpole State of Indiana to give his agricultural addresses ?”).  A book called Labels for Locals:  What to Call People from Abeline to Zimbabwe lists these nicknames for Mississippi:  ”Traditional personal nicknames: Border Eagle, Mud Cat, Mud Waddler, and Tadpole State.”

I’ll leave it to folks from Missouri to show me why they might be the Puke State on this map.

Trent Lott

Direct Exam

Dickie Scruggs is not a gatekeeper for judicial nominations.

Lott and Cochran have a clear relationship about judicial nominations.  Scruggs never had influence on Lott’s selection of judges.  Lott and Scruggs had different backgrounds and [...]]]> Here are my notes, with minimal comment, about three of the witnesses who testified today.

Trent Lott

Direct Exam

Dickie Scruggs is not a gatekeeper for judicial nominations.

Lott and Cochran have a clear relationship about judicial nominations.  Scruggs never had influence on Lott’s selection of judges.  Lott and Scruggs had different backgrounds and perspective.  He was not someone I consulted.   He knew his weighing in might have reverse effect, based on philosophy and what I looked for.

Lott described what Lott looked for.

In DeLaughter’s instance, letters and faxes would come in and be filed.  He’s not sure how much.  He was aware he received a letter from DeLaughter, but wasn’t aware of it, then later got another letter after Lott talked to DeLaughter.

John Corlew, a lawyer friend of Lott’s faxed DeLaughter’s resume to Senator Lott.  Corlew is the kind of person Lott would consult about judges.

Lott did not depend on Scruggs for recommendations for federal judges.

Ex. 17 is a 3/10 letter from DeLaughter to Lott.  Ex. 18 is a 3/30 letter from DeLaughter.

Lott doesn’t recall the 3/10 letter; it may have gone to the Jackson office.

Lott got a phone call late one afternoon from Scruggs.  Lott was in the building and came to the office told that Scruggs was on hold.  He took the call with office counsel Hugh Gambell in the room.  No one except Gambel was there when he took the call; Gambel heard both this call and the one with DeLaughter.

In the conversation with Scruggs, Scruggs said that DeLaughter was interested in discussing the process of selecting federal judges and Lott said he would call him.  Scruggs asked if Lott knew him and Lott said he knew he was an ADA and then a circuit judge.  Lott’s impression was that he was asked to call DeLaughter and talk about process.

Scruggs did not ask him to give favorable consideration; Scruggs knew better than to ask for that.

Lott then called DeLaughter “in short order,” about 5:30 EST.  He called and talked to DeLaughter about how he and Cochran picked judges, talked about what they were looking for.  He talked about the criteria, education, experience, etc., that DeLaughter met.  He talked about age—DeLaughter was a little old for Lott’s criteria—and talked about geography, that the Bramlette vacancy was going to go to the coast.  Lott told DeLaughter to send a resume for the file.

Lott did not maintain a list of potential judge.s  He did not tell DeLaughter he would be considered.  No offer was made, and he wasn’t asked.  Lott did not intend to create the impression in DeLaughter’s mind that he’d received consideration.

Lott knows Chip Reynolds since the early 60s; Reynolds worked on Lott’s campaigns.

Hardy Lott was Senator Lott’s administrative assistant and kept the call list.  Lott stated that if anyone called about a judicial position, Lott would make a courtesty call like the one he made to DeLaughter.

Scruggs did not say he had a pending case before DeLaughter.  Lott was aware there were disputes but did not know the status of them or where they were.  He was aware of a lot of disputes post-Katrina.

Cross examination

Bob Norman suggested a perception was created which may have been different than Lott’s intent was.  He has no way of knowing what was said by Peters to DeLaughter or what Langston, Patterson, or Balducci said about all this.

Most judges, and a lot of lawyers would want to be considered.  He was always careful with what he said and Lott cannot believe that there was excitement in Peters’s office after the call from Lott.  After Lott got off the call, he told his counsel “no further action on this one,” and thinks that was conveyed by tone in the call.

There was one other person who heard Lott’s side of the conversation.

Lott testified that anyone in Mississippi would have been given the same courtesty he gave Scruggs.   Lott would have taken the call from Scruggs from anyone in Mississsippi and would have made the courtesy call for them.

My note:  This is the least believable thing in Lott’s testimony.

Lott testified that the perception that Scruggs had the power to influence a decision by Lott was a perception manufactured by Patterson and others.

Asked about having said the phrase “my sorry brother-in-law” in the conversation with DeLaughter, he said that he may have.

Lott was asked about the timing on the process of selecting Judge Ozerden.  Lott had been thinking about him since the early 200s.  He was actually nominated on September 5^th, at which time he was already months in process.

Redirect:

Lott never wanted to create false hope when making these sort of calls.  He can’t recall anything that would give DeLaughter the impression he would be given consideration by Lott.  DeLaughter’s letter describing a “position that may become available” seems to acknowledge no position was available.

At this point, there was a break for lunch.

Hugh Gamble testified first in the afternoon.  The second witness was Brad Davis, who worked for Thad Cochran at Judiciary.  I missed Gamble and the beginning of Brad Davis’s testimony.

Dickie Scruggs is not a gatekeeper for judicial nominations.

Brad Davis

Direct Exam

Davis was being shown letters recommending DeLaughter.  Also, a retired FBI agent named Jim Ingram recommended him.  A Hinds County farmer in January of 2007 named Ted Tindall, and John Corlew in or prior to January of 2007 recommended him.

Davis is familiar with Bob Wilson.  He’s a supporter of Senator Cochran’s.  His daughter Augusta worked for Senator Cochran was there in the majority of 2005 through the majority of 2007.  She worked in Senator Cochran’s personal office and at some time took a transfer to the Commerce Committee office under Cochran.

There was no cross-examination.

Darden Reynolds, Jr.

Direct Exam

He has been the district director for Congressman Greg Harper since January of 2009.  Worked for Trent Lott.  Did his reelection campaign in 1994 and was a field representative in Jackson for five years, then in 2000 did his reelection campaign.  Has done campaigns for Phil Bryant and Amy Tuck for Lt. Gov., Congressman Chip Pickering for reelection to House of Representatives.  He knows Bobby DeLaughter.  Is from Clinton and has known Bobby for a while.  Not a close personal relationship.

March of 2006, recalls a meeting with Mr. DeLaughter.  It was more happenstance than a meeting.  Met with him—was in the courthouse in Hinds County in Raymond, went into his chambers.  At the time there was an open federal judgeship, and DeLaughter how to let Senator Lott know there was an interest in a judgeship.  Told him that all that was required was to call Hardy Lott, the senator’s secretary, and get on his call list about it.

He was supposed to express his interest to the two senators through their schedulers if he wanted to talk personally or write them a letter.

Does not recall DeLaughter mentioning he had just been passed over for a magistrate position.

No cross exam

He was a neighbor and friend of the physicist Freeman Dyson, and asked Dyson for [...]]]> Immanuel Velikovsky was a writer most famous for the book Worlds in Collision, in which he theorized that ancient myths and the Bible described actual natural disasters provoked when Mars and Venus left their orbits and passed near Earth.

He was a neighbor and friend of the physicist Freeman Dyson, and asked Dyson for a blurb for his 1977 book, Peoples of the Sea.  Dyson complied, but insisted the entire blurb be used or none of it:

First, as a scientist, I disagree profoundly with many of the statements in your books. Second, as your friend, I disagree even more profoundly with those scientists who have tried to silence your voice. To me, you are no reincarnation of Copernicus or Galileo. You are a prophet in the tradition of William Blake, a man reviled and ridiculed by his contemporaries but now recognized as one of the greatest of English poets. A hundred and seventy years ago, Blake wrote: “The Enquiry in England is not whether a Man has Talents and Genius, but whether he is Passive and Polite and a Virtuous Ass and obedient to Noblemen’s Opinions in Art and Science. If he is, he is a Good Man. If not, he must be starved.” So you stand in good company. Blake, a buffoon to his enemies and an embarrassment to his friends, saw Earth and Heaven more clearly than any of them. Your poetic visions are as large as his and as deeply rooted in human experience. I am proud to be numbered among your friends.

He quotes his (unused) blurb in a New York Review of Books review of Margaret Wertheim’s Physics on the Fringe.  Like everything he writes at the NYRB, it’s worth reading.

That’s in this morning’s Martinez v. Ryan.  And the Ninth Circuit continues to be unable to buy a break– they got reversed this time for refusing a habeas petitioner relief.

It gets pretty arcane as to why.

If you [...]]]> … when Scalia’s dissent (joined only by Thomas) starts out:  ”Let me get this straight:”

That’s in this morning’s Martinez v. Ryan.  And the Ninth Circuit continues to be unable to buy a break– they got reversed this time for refusing a habeas petitioner relief.

It gets pretty arcane as to why.

If you want to understand you need to know two phrases:  ”postconviction proceedings” are those that begin after a trial and direct appeal, designed to go back to court and say “that conviction was defective.”  Habeas corpus is the most famous postconviction proceeding.  ”Procedural bars” are arguments that a defendant (well really, their lawyer) failed to raise and argument (or failed to raise it properly) and thus loses regardless of the merits.*  Also, you need to know that, in Arizona, a claim that a lawyer was ineffective cannot be raised on direct appeal but only on postconviction.

What happened was that Martinez’s lawyer failed to raise an ineffectiveness claim in his first post conviction proceeding.  In fact, the lawyer (unaccountably) filed a post conviction petition that raised nothing, and then, when the court gave a short time to argue something or lose, did nothing about that.  Martinez asserts that he knew nothing about that court order.

In his second petition, he argued that his first post conviction lawyer was ineffective for failing to argue the second one was ineffective (yes, the claim is that the lawyer ineffectively failed to assert an ineffectiveness claim).  The Arizona Court said, “nope, you had to raise it in round one, and there’s no right to effective counsel in a post conviction case, so you lose.”    That is, the claim was procedurally barred.

The Ninth Circuit ruled, essentially, that it could not hear a claim that was procedurally barred in state court, that Martinez was s.o.l. because the state courts were within their rights to say “you have to argue that original ineffectiveness claim in your first post conviction petition, and you didn’t,” and, once they did so, the federal courts were forever barred from hearing the claim.

Justice Kennedy (joined by everyone by Scalia and Thomas) wrote to reverse, noting that Arizona’s prohibition of ineffectiveness claims in that first petition and not on direct appeal meant that the first post conviction petition functioned like a direct appeal, where there was a right to effective assistance.  And so, Martinez could bring the claim if it was a substantial one.

And so, the Ninth Circuit (the judges of which surely thought they were safe in saying no to a habeas petitioner) can’t win for losing.

And Scalia dissents with much gnashing of teeth (“no one really believes” “not a dimes worth of difference” “The Court’s southing assertion” “lacks any principled basis”– that’s all in a couple of paragraphs, and there’s more).

_______

*There’s also a procedural bar based on the idea, “we already decided that and you can’t raise it again,” called res judicata.