the_jaded_jd

Whereas We have thought fit, by and with the advice of Our Privy Council, to dissolve this present Parliament

Because parliamentary elections just sound so much classier:

MONDAY, 12TH APRIL 2010

PRIVY COUNCIL

BY THE QUEEN

A PROCLAMATION

FOR DISSOLVING THE PRESENT PARLIAMENT AND DECLARING THE CALLING OF ANOTHER

ELIZABETH R.

   Whereas We have thought fit, by and with the advice of Our Privy Council, to dissolve this present Parliament: We do, for that End, publish this Our Royal Proclamation, and do hereby dissolve the said Parliament accordingly: And the Lords Spiritual and Temporal, and the Members of the House of Commons, are discharged from further Attendance thereat: And We being desirous and resolved, as soon as may be, to meet Our People, and to have their Advice in Parliament, do hereby make known to all Our loving Subjects Our Royal Will and Pleasure to call a new Parliament: and do hereby further declare, that, by and with the advice of Our Privy Council, We have given Order that Our Chancellor of Great Britain and Our Secretary of State for Northern Ireland do respectively, upon Notice thereof, forthwith issue out Writs, in due Form and according to Law, for calling a new Parliament: And We do hereby also, by this Our Royal Proclamation under Our Great Seal of Our Realm, require Writs forthwith to be issued accordingly by Our said Chancellor and Secretary of State respectively, for causing the Lords Spiritual and Temporal and Commons who are to serve in the said Parliament to be duly returned to, and give their Attendance in, Our said Parliament on Tuesday, the eighteenth day of May next, which Writs are to be returnable in due course of Law.

   Given at Our Court at ___, this twelfth day of April in the Year of Our Lord two thousand and ten and in the fifty-ninth of Our Reign.

GOD SAVE THE QUEEN

At the Court at ___ the 12th day of April 2010

Present,

The Queen's Most Excellent Majesty in Council

   Her Majesty, having been this day pleased by Her Royal Proclamation to dissolve the present Parliament and to declare the calling of another, is hereby further pleased, by and with the advice of Her Privy Council, to order that the Lord High Chancellor of Great Britain and the Secretary of State for Northern Ireland do respectively, upon notice of this Her Majesty's Order, forthwith cause Writs to be issued in due form and according to Law for the calling of a new Parliament, to meet at the City of Westminster on Tuesday, the 18th day of May 2010; which Writs are to be returnable in due course of Law.

(This is obviously an unofficial draft.  The real thing does, after all, dissolve Parliament, which means there would be no members of the House of Commons to finish up their legislative business this week.)

Update:  These dates are not in error.  The proclamation must be dated April 12 in order to hold a general election on May 6, because the general election occurs on the 17th day (not counting weekends or the May 3 bank holiday) after the date of the proclamation by operation of law.  May 18 is the date the new Parliament will convene.

Therefore I tell my sorrows to the stones; Who though they cannot answer my distress, Yet in some sort they are better than Tribunes, For that they will not intercept my tale.

Preface

Someone once wrote, “There are two bloggers that everyone else tries to avoid pissing off, J. Sarge and [T]he Jaded JD.”  Before I start, I want to say that I think there’s a difference between being pissed off and losing one’s temper.  I think “pissed off” suggests a loss of rational capacity.  Pissed off people act irrationally, as when rioters after the acquittal of the police officers who beat Rodney King looted and pillaged their own neighborhoods.  Few things in my life have pissed me off under this standard, and none of them have involved blogs, social media, or the internet.  By contrast, losing one’s temper means to me that one has lost patience and restraint, two forces that inhibit one from employing one’s rational capacity in an antagonistic (as opposed to adversarial, which need not be antagonistic) way.  Today, I’ve lost my temper.

It will come as no surprise to those familiar with my work that I do not suffer fools gladly.  But my first instinct is to remedy ignorance when I can because I believe most people who act foolishly do so because they lack information that would enable them to make sound judgments.  (Well, that is my second instinct.  My first instinct is to roll my eyes and shake my head but since no one relevant gets to experience my indulgence of that instinct, let’s just pretend it’s not there.)  In the indulgence of the remedial instinct, I believe as a general proposition that a private comment in the corridor is more effective than a tirade from a podium.  I believe people more readily receive feedback in the constructive spirit in which it is intended when that feedback is offered privately.  Public feedback tends to be received as a challenge.

But when the private comment in the corridor falls on deaf ears, when one can no longer extend the benefit of the doubt that someone didn’t know or didn’t understand information or context that would have contributed to his fuller appreciation of the situation, a public confrontation cannot be avoided. 

Part One:   “Where is the ‘Not’ in ‘Not Larry Sabato?’”

A friend of mine recently asked me to explain Ben Tribbett to her.  I don’t know Ben Tribbett personally, so I couldn’t do that.  (People who do know him personally probably can’t, either.)  So I gave her a history lesson instead.  My story began with a pseudonymous blogger calling himself Not Larry Sabato who did a lot of work and put a lot of thought into the House of Delegates and statewide races in 2005 based on tedious examination of precinct-level election returns since the 2001 redistricting and, apparently for the first time in the then-youthful Virginia political blogosphere, accurately predicted the outcome in the bulk of those races.  Even before the predictions came true, though, the work caught the favorable notice of what I think I can fairly call the A-List of Virginia political blogs, including a blog called The Jaded JD.

(I include that blog in the list based both on the fact that the other A-List blogs treated that one as an equal and on the number and nature of the valedictions received when that blog closed shop.  I’m proud to have written for that blog for a period of time, and I know a lot of people think I wrote it all but I’m going to continue to deny it because I’m not going to take credit for the work other people put into their posts.)

I think largely because of his creditable work in 2005, Ben Tribbett had the respect and the audience to be a preferred outlet for the infamous video in which Senator George Allen called Jim Webb volunteer S.R. Siddarth “macaca.”  According to the left, that word was an ethnic slur in widespread use in some obscure part of the world, but George Allen knew it and what it meant because his mother happened to come from that obscure part of the world.  If one accepts these two, far-fetched premises, Allen was a racist for using that word, although neither Siddarth nor anyone in the audience would have any idea what it meant.

(Personally, I believe Allen when he said he didn’t know the word was a slur, if in fact it had been before Democrats wanted it to be.  I don’t think Allen is the sort of politician, whether racist or not—and for the record, I’ve said I don’t believe he is—who would be stupid enough to use an ethnic slur in 2006, however obscure, and think he could get away with it.  I think Allen’s explanation is likely the truth:  the campaign recognized Siddarth because he was trailing Allen’s public appearances, videocamera in hand, and no one on the campaign (including Allen) cared about him enough to get his name right.  So they made up something to call him.  Is it personally degrading to call someone by a name not of his own choosing?  Sure.  Might it have been racially insensitive of Allen or his staff to come up with “macaca” as opposed to Bob or Tom?  Sure.  It would have been both personally degrading and racially insensitive if they’d chosen some stereotypically black name for a black person or East Asian name for an East Asian person.  But neither of those are as inflammatory as what the left suggested:  that Allen had done the equivalent of dropping an N-bomb.)

Macaca revolutionized the Virginia political blogosphere.  And to the extent that Ben Tribbett was a key player in fomenting the macaca controversy, he was a leader in the revolution.  People who were unaware of or did not participate in the Virginia political blogosphere in its early, pre-macaca days may not know that bloggers from the left and the right, people like Norm Leahy and Will Vehrs, Chad Dotson and Shaun Kenney, Vivian Paige and J. Sarge, Waldo Jaquith and the three musketeers at Sic Semper Tyrannis could actually conduct thoughtful and civil conversation on issues without considering each other fascists or socialists, anti-American traitors, or “wingnuts.”  After macaca, and in part but not completely because of it, those types of discussions became almost impossible to conduct.

I trace the source of the revolution to the macaca incident for several reasons.  First, the fact that that Allen was a leading presidential contender meant that the state and national Democratic establishment had an acute interest in defeating him in the 2006 Senate race.  That meant that macaca went national almost instantly.  Second, and consequently, the Virginia political blogosphere, which broke the story and introduced the video, got a lot of attention.  Because Not Larry Sabato was a key player in the macaca story, Ben Tribbett got a good deal of that attention.

Next, more people began to read Virginia political blogs:  a lot of the newcomers were not disposed or equipped to participate in objective conversations about issues.  Some existing writers began to cater to the newcomers.  Some newcomers who wanted the kind of attention macaca generated for Ben began their own vapid, provocative blogs.  Finally, the net result was that political blogs as a whole tended to become more about personalities than substance.  Increasingly, posts were about people instead of issues and there was more rumor than analysis.   And whether he lucked into it, whether he predicted it, or whether he engineered it, Ben Tribbett was in the vanguard of that revolution.

But macaca did more than revolutionize the Virginia political blogosphere.  It contributed to the overall decline in the quality of broader American political conversation.  It fed into the building sense of political tribalism by cultivating the “gotcha” moment.  After macaca, Virginia’s 2006 Senate race wasn’t about torture or Guantanamo Bay; it wasn’t about Congressional Republicans’ betrayal of their commitment to shrink government and balance the budget; it wasn’t about issues.  It was about personality:  was George Allen a racist?  And because personality-driven politics excuses candidates and incumbents from having to discuss issues and confront difficult policy dichotomies, their campaigns and allies clamor for more “gotcha” moments to distract people from substantive issues.  Personality politics is the magician’s sleight of hand.

Since macaca, Ben Tribbett has occasionally given us glimpses of what brought him to prominence.  (Because, face it, he wouldn’t have gotten macaca without 2005, and he wouldn’t have gotten C-SPAN in 2008 without macaca.)  He occasionally looks at the quantitative data and provides some analytical insight into a forthcoming election.  But he never does it without demanding the homage required by the Delphic oracle or affecting the majesty of Moses delivering the Commandments to the Israelites.  And the bulk of the remainder of the content at Not Larry Sabato is more personality-driven politics—even though it is as often motivated by Ben’s personal animosities as by partisan or ideological opposition.  And rarely is even that content delivered without its own melodramatic self-anticipation.

The chief irony is that “Not Larry Sabato” originated as a response to Professor Larry Sabato’s preoccupation with attracting attention.  He was so busy scheduling media appearances in 2004 that his own electoral analysis was becoming superficial and, I suspect, increasingly the product of his research students.  But Ben Tribbett has surpassed his nemesis—and everyone else—in the attention-seeking business.  I mean, come on, not even Louis XIV had the hubris to blow his own trumpet fanfare.

But, perhaps surprisingly, this is not a hit piece on Ben Tribbett.  I haven’t delved into his personal life or his professional life.  I’ve merely placed this post in the historical context of the Virginia political blogsphere in general, and his blog in particular.  And to that end, he’s merely a case study.  After all, he’s far from alone; he’s just the best in Virginia at it.  This is what the blogosphere has become.  It’s what the tone of American political conversation has become.  You’ve wanted to be recognized for your leadership and pre-eminence, Ben, so congratulations; you’ve arrived.  Now look at where you’ve led us.

Part Two:  Stick to What You Know

Everyone has a niche.  Within your particular niche, you’re either good, bad, or mediocre.  But however good you are within your niche, you become progressively worse the farther from that sphere of familiarity you travel.  Some people’s life experiences have resulted in their having multiple niches, but even then they typically have one wherein they excel more than the others.  If you want to maintain credibility, stay within your niche—and if you have more than one, you ought to stick with your best.

This week, Not Larry Sabato has become an exhibition piece for what happens when you step outside of your niche and into someone else’s.  It’s especially hazardous when you’ve chosen to go there playing the personality-driven politics game and there’s someone in that niche prepared to deal with substance.

(Now, I’m not saying I’m the only lawyer in the Virginia political blogosphere, and certainly not the best.  And I’m not claiming the law niche for myself.  I’m not sure it’s my best niche.  But on my worst day, I’m better in it than Ben Tribbett.)

The week began with this post, introducing an audio recording of Ken Cuccinelli answering someone’s questions about the so-called birther controversy.  (No, that’s a lie:  this week actually began over the weekend with the—my God, count them—eight self-indulgent, self-promoting announcements that he was about to say something everyone should care about, sometime soon (but not yet):  http://twitter.com/notlarrysabato/status/10397711246, http://twitter.com/notlarrysabato/status/10423472649, http://twitter.com/notlarrysabato/status/10440640897, http://twitter.com/notlarrysabato/status/10441748774, http://twitter.com/notlarrysabato/status/10479100063, http://twitter.com/notlarrysabato/status/10481234595, http://twitter.com/notlarrysabato/status/10513880462, http://twitter.com/notlarrysabato/status/10517580639.)

When it comes to Ken Cuccinelli, my record is clear:  I’m not a fan.  And I all but begged Democrats to find a nominee better than Steve Shannon because Shannon had no chance against him.  As far as I’m concerned, Democrats bear the bulk of the blame for Ken Cuccinelli’s sitting in the Pocahontas Building.  But that doesn’t make me a Cuccinelli apologist.  That accusation is, again, part of the personality-driven politics game:  if Person A has a position on Issue B, and Person C dislikes either A or A’s position on B, then C feels compelled to associate anyone who agrees with A on B into A’s camp regardless of whether that third person (we’ll call him D) agrees with A on any issue other than B.  Through this imaginary personal association with A, D is supposed to have lost credibility on basically every issue in the universe, but especially every issue A ever mentions and most especially on B itself.  People who play the personality-driven politics game don’t understand  those of us out there who prefer substance-driven politics, or that we can eliminate the person of A from our consideration and evaluate the merits of B utterly divorced from who A is or what A thinks about B.

(When it comes to the birther issue, by the way, my position is equally unambiguous: 

• I’ve mocked birthers. http://twitter.com/the_jaded_jd/status/10592113613, http://twitter.com/the_jaded_jd/status/2756367239, http://twitter.com/the_jaded_jd/status/2715405888, http://twitter.com/the_jaded_jd/status/4743497828, http://twitter.com/the_jaded_jd/status/3157708489, http://twitter.com/the_jaded_jd/status/3131456812.
• I’ve said the GOP needs to send a clear signal to the birthers that their ideas weren’t welcome, http://twitter.com/the_jaded_jd/status/2874624972, and even suggested how. http://twitter.com/the_jaded_jd/status/2874761117, http://twitter.com/the_jaded_jd/status/2874784911, http://twitter.com/the_jaded_jd/status/2874801102.
• And I’ve noted the irony that the birther legend was reportedly created by a Clinton supporter in Texas. http://twitter.com/the_jaded_jd/status/8852367741, http://twitter.com/the_jaded_jd/status/8852423757.

In short, my position is that President Obama was born in Hawaii.  I make some allowance for folks who get confused about his citizenship because Hawaii is also the LOST island, which apparently jumps around through space and time and may not have actually been part of the United States when Obama was born there during his mother’s membership in the Dharma Initiative.  But I make no allowance for folks who claim he was born in Kenya, even if their legal arguments that his mother’s American citizenship would then be insufficient to convey citizenship upon him were persuasive.  Which I’m not sure it is.)

So what did Ken Cuccinelli say in this audio recording about how the question of Obama’s citizenship could be tested?  He said that the issue would be tested if someone accused of breaking a law enacted during the Obama Administration raised as a defense that the law was void because President Obama was ineligible to be president when he signed the bill upon its passage, and that the bill therefore had not been constitutionally enacted in the manner required by Article I, § 7.  That looks to me like a viable method of presenting the issue, but it’s not the only one.  One can imagine too that the losing side in a Supreme Court case could petition for rehearing by the Court, arguing that Justice Sotomayor’s appointment also was invalid because President Obama was ineligible to be president when he nominated her and signed her commssion, and that she had therefore not been constitutionally appointed in the manner required by Article II, § 2.  (Oh my God, I just became a birther for evaluating a legal hypothetical, as I was trained for three years to do in law school and have done as a lawyer ever since.)

The follow-up question on the recording was whether “this” was something Cuccinelli “can” do as Attorney General—it’s not clear whether the questioner meant “this” to mean challenge Obama’s citizenship generally, or to do it through the specific method Cuccinelli mentioned.  The question was not “will” but “can.”  And Cuccinelli answered that it is possible.  And it is.  He went on to qualify his answer by explaining that it cannot be done without proof.  That’s because Federal Rule of Civil Procedure 11(b)(3) requires an attorney to certify that “the factual contentions [in any federal court filing] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”  That, again, is an accurate statement of the law.  (It is also why attorney to the birthers Orly Taitz was sanctioned in federal district court, as recently affirmed by the Eleventh Circuit.)

The final question was how such proof could be obtained.  And Cuccinelli said he hadn’t thought about it, but offered that some witness could testify to the birth having occurred somewhere outside the United States and that the speculation—not Cuccinelli’s own speculation, mind you—was that it occurred in Kenya.  That is an accurate but incomplete statement of the law:  I would add that under Rule 11(b), the attorney must also complete an “inquiry reasonable under the circumstances” into the reliability of that witness—and, frankly, under the circumstances where the Hawaiian officials charged with the custody and authentication of birth certificate information have authenticated a document under the law of Hawaii as certifying that Obama was born there, that “reasonable inquiry” is going to be damn-near impossible to complete.

But Cuccinelli said it was possible that Obama was born in Kenya.  So he must be a birther!  I disagree because Cuccinelli didn’t say it was likely.  Like a good lawyer, he’s hedging his bets.  Is it possible that Obama was born in Kenya?  Of course it is.  Possibility is the capability of an event to have occurred.  Was Obama’s mother capable of being in Kenya when she gave birth?  Yes:  she was a real person, she was fertile, she was pregnant, and methods of transportation existed to convey her to that place, which itself existed at the time.  (Was Obama’s mother capable of being on the LOST island when she gave birth?  No:  it didn’t exist—and still doesn’t—because it is imaginary.)  Is it likely that Obama was born in Kenya?  Of course not.  We have an authenticated document from the custodial official stating as fact a condition mutually exclusive with Obama’s birth in Kenya.  Is it possible that authenticated document is a forgery?  Yes:  the forging of a birth certificate is an event capable of occurrence.  It’s not likely, but it’s possible.  And this thought experiment can be repeated for each and every minute element of the reliability of the birth certificate, from the possibility that the official is lying now, to the possibility that the Obamas and the medical personnel ostensibly present at the birth lied then, etc.  Each of those things is capable of occurrence, so each is possible; however, none of them are likely.

Now, I don’t know whether Ben Tribbett is desperate to recover the spotlight that shone on him during the macaca incident, or whether he just wants to turn this molehill into a similar mountain in the hope that it will have the same political effect on Cuccinelli that macaca had on Allen, or both.  But he sure felt smug after he’d wasted a day of everyone’s time on this non-issue.  And he wasn’t satisfied when Cuccinelli came out and categorically stated that he believed President Obama was born in the United States; rather, Ben had keep the personality-driven politics game going and mocked a lawyer for claiming to have done what lawyers do:  i.e., evaluate how the law applies to hypothetical fact patterns.

Don’t get me wrong.  I know Ben isn’t a lawyer and doesn’t have an iota of first-hand experience of how law students spend three years being trained to do exactly what Cuccinelli did.  I know he’s never dealt with a client who asked, for example, “I want to cut my kids out of my will and leave everything to my dog.  Can I do that?  If so, how?”  So I understand that Ben was incapable of distinguishing between possessing the ability and will to explain how the law applies in a certain set of facts on one hand and hating children on the other.  (Because clearly the lawyer who answers this client’s question favors parents who disinherit their children, which naturally means that the lawyer hates all children.)  But Ben, too, knows he’s not a lawyer and that he’s never counseled a client.  So he should have shut the hell up and stuck with his niche, which is what I privately implored him to do.

But he didn’t.  Yesterday, he decided to challenge Cuccinelli’s qualifications to make constitutional arguments.  (One might think I knew what was coming when I reminded folks just an hour before Ben’s post that Cuccinelli was backed by a staff of qualified and competent career attorneys, but I had no idea.)  Now Ben has decided that, because constitutional law was not part of Cuccinelli’s private practice, he is unqualified to weigh in on the so-called “deem and pass” plan in the House of Representatives to advance the health care reform bill.

Well, Ben, Ken Cuccinelli graduated from law school and passed the bar.  What have you done?  And you might be right that he’s no constitutional scholar.  But you’re wrong that constitutional law was not part of his private practice, because he represented the prevailing party in the First Amendment challenge to Virginia’s open primary law, Miller v. Brown.  But you’re also dismissing the possibility that anyone in the OAG might be a constitutional scholar and have basically called everyone who works there unqualified.

As bad as that is, what’s worse is that there are a lot of reputable folks who agree with Cuccinelli—who didn’t say “deem and pass” is unconstitutional, by the way, but that the procedure would invite litigation on the question of constitutionality.  Politico has a handy list of some of them:  Alan Morrison, a law professor at George Washington University (who apparently advised Speaker Nancy Pelosi and Rules Chairwoman Louise Slaughter a decade ago); and Michael McConnell, a law professor at Stanford and a former federal circuit judge.  (Of course, McConnell was a George W. Bush appointee, so he can’t be trusted in an era of personality-driven politics.  Neither, I suppose, can those renowned bastions of conservative ideology, Jack Balkin at Yale, or Alison Zieve at Public Citizen, or Justice John Paul Stevens. )

 My point here is not that “deem and pass” is unconstitutional.  I don’t know.  There are viable arguments on both sides.  (And that’s why cases go to court:  if one side knows it’s full of crap, it usually doesn’t risk being sanctioned by proceeding with the suit.)  Rather, my point is that Ben has again stepped outside his niche, and he’s done it to play more personality-driven political games and to grab the spotlight for himself.  After all, Ben doesn’t say “deem and pass” is constitutional.  (It would be hypocritical of him to do so after calling a real lawyer unqualified to weigh in.)  In fact, there’s no substance to Ben’s post at all.  He’s merely attacking the person, who in this case is Ken Cuccinelli.

After reading to this point, you may be tempted to believe that it is nothing more than me making a choice between whom I like better, Ben or Ken.  That belief is mistaken.  I don’t support Ken Cuccinelli ideologically.  I don’t want him to be re-elected.  I’m not defending him.  But I am objecting to the mischaracterization of an intellectual exercise—the application of the law to hypothetical facts—as a promulgation of a political position.  I, as someone who does not work and never has worked in the Virginia Attorney General’s office, am rejecting the notion that the Attorney General is unqualified to opine on matters of federal constitutional law—especially when that notion necessarily embraces an allegation that the career staff in that office is also unqualified.  And I am decrying the continued deterioration of the tone of our political debate through personality-driven political games.

Here are some substantive questions I think might be more appropriate than Ben Tribbett challenging Cuccinelli’s competency:

• In what capacity did Ken Cuccinelli write his letter to Nancy Pelosi?  What statute authorizes him to advise the Speaker of the House of Representatives, a federal officer, when (a) Code § 2.2-500 directs him to “perform such duties as may be provided by law,” (b) Pelosi did not request his advice or opinion under Code § 2.2-505, and (c) she is not among the officials he may advise under that statute?
• If there was no statutory authority to provide the advice, were any state funds expended to research, draft, and send the letter?  If so, was that a misappropriation of state funds?
• If he wrote in his official capacity as Attorney General, representing the Commonwealth of Virginia in anticipation of adverse future litigation, did he violate Rule 4.2 of the Virginia Rules of Professional Responsibility, which prohibits communicating with represented parties, when he wrote to Pelosi directly hile she is represented in her official capacity by the Office of the General Counsel of the House of Representatives established in Clause 8 of Rule II of the Rules of the House?

This area of the law is, in fact, outside my own personal niche.  But I’m not saying Ken Cuccinelli lacked authority, that he misappropriated state funds, or that he acted unprofessionally.  I’m prompting the consideration of those issues.  I would like to encourage a public conversation on what obstacles stand in the way of an Attorney General—any Attorney General—who decides to use his position to further his own ideological agenda when none of the people or entities who are his clients have instructed that he do so.  Private lawyers don’t get to run and frolic through the fields of the law on their clients’ dimes, plucking case law like wildflowers.  The Attorney General is no different.  And that is a topic of greater substance than anything we’ve seen at Not Larry Sabato this week.

But who cares about substance anymore?

Why the "Know Campaign" is wrong

Last week, the Virginian-Pilot reported that the State Board of Elections demanded to know how a group, the Know Campaign, obtained a list of registered voters and their voting histories, which the group intended to use to create a mailing informing several hundred thousand voters of their neighbors' electoral activities.  When the group failed to comply with the SBE's demand, the SBE notified the state police, whereupon the group filed a suit in Richmond City circuit court.

Code § 24.2-405 is pretty clear about who gets access to lists of registered voters and how those lists can be used.  Based on the Virginian-Pilot report (because I haven't looked at the pleadings filed in the suit), the Know Campaign argues that it has a free speech right to distribute the lists.  That argument has nothing to do with the SBE investigation, though; the SBE wants to know how the group got the list because the SBE is the only lawful source and it apparently has no record of providing it to the Know Campaign.  So regardless of whether the Know Campaign had a constitutional right to distribute the list if it possessed the list lawfully, this free speech argument is a red herring.

First, I don't think the Know Campaign has a constitutional right to acquire the list in the first place if it is not entitled to (or did not) acquire it lawfully.  For example, I might be a political action committee interested in furthering discussion of any proposal to eliminate the state's subsidization of local personal property taxes (i.e., the car tax), which would almost certainly qualify as First Amendment speech.  But that doesn't mean the constitution requires DMV to provide me with a list of all motor vehicle registrants.  (This question is different from whether I could send my letter out to the people on the list I had already acquired, especially if I acquired it lawfully.)

Second, the real question at issue here isn't even whether the Know Campaign was entitled to get the list.  (After all, § 24.2-405(a)(vi) allows "nonprofit organizations that promote voter participation and registration" to obtain the list and use it for that purpose.  The Know Campaign argues (and apparently has a 2006 study to back itself up) that "shaming" voters into voting increases participation.  So the Know Campaign's intended distribution may well be lawful, and no constitutional question may even be presented here.)  The real question is, did the vendor that supplied the list to the Know Campaign (especially if it sold the list) violate § 24.2-405?  That is a question that the SBE is fully entitled to investigate, and the Know Campaign is obstructing that investigation.

On trying terrorists in criminal courts

The Attorney General's decision to try Khalid Shaikh Mohammed and four of his associates in the United States District Court for the Southern District of New York has, unsurprisingly, exposed a difference of opinion between the Left and Right.  The Left welcomes the trials as an affirmation of the rule of law and an end to the legal limbo in which most alleged terrorists and enemy combatants have existed for eight years.  The Right denounces the trials as weakening America, giving non-citizen terrorists the rights and privileges to which American citizens are entitled in American criminal prosecutions, providing the terrorists a platform from which to publicize their propaganda, and making New York City a target for terrorist attack (as if it hadn't been before).

The arguments on both sides share a common, implicit assumption:  that those being brought to trial are, in fact, guilty.  To the Left, this means that they cannot possibly be acquitted, and that the trials represent an opportunity for America to reclaim its pre-eminence among civilized nations for comportment with the rule of law.  "We are better than the terrorists," this argument runs, "and our system of justice is part of why our brave men and women abroad have risked, and lost, their lives defending our country.  If we treat these evil bastards any differently, the terrorists will have changed our society to make it less free, to make it less ordered by law, and they shall have, in some way, won."

To the Right, the certainty that the accused are guilty has a different meaning, which evokes an emotion that often lies not far beneath the surface in cases where most people have convinced themselves that they know who is guilty of a very public and very wicked crime:  that the guilty will go free not because the facts don't support their guilt (after all, there are enough alleged facts to have made the public certain of the accused's guilt) but that some namby-pamby, procedural, "hyper-technical," legal obstacle to conviction will result in acquittal.  (Conservatives pick and choose when it comes to legal technicalities in criminal trials, though:  the vacation on appeal of Oliver North's criminal convictions were quite welcome to conservatives despite the fact that there's very little question that North did the things he was accused of doing; he got off because prosecutors impermissibly used immunized testimony.)  But let's not kid ourselves that this emotion is real and widespread:  we saw it after O.J. Simpson was acquitted of murder; we see it now where Sam McCroskey is charged with murdering four people in Farmville.  "We know they're guilty," this argument runs, "so what's the point of giving them a chance to get off?"

My point here isn't that Khalid Shaikh Mohammed could conceivably be innocent.  My point is that both sides implicitly assume his guilt.  And that exposes the difference in the psychology of each:  the Left is certain he will be convicted--"what New York City jury doesn't convict him?" they assume--and if he is not, it will be the fault of the Bush Administration, which captured and waterboarded him, for creating the legal obstacles to his conviction.  (I suppose that some cynical people on the Left consider this a win-win, because, the way they see it, one of two evils will be tried and convicted in SDNY:  the person of Khalid Shaikh Mohammed or the detention and interrogation policies of the Bush Administration.  On some level, the Left is correct that the Right fears the latter, but the Left overstates it.)  The Right is genuinely more afraid of what happens if Mohammed does get off.  And it is the very real possibility that he may that the Left understates, and it is the consequence of an acquittal that they ignore.

All those good things that the Left believes a trial and conviction wins for America--the respect abroad, the confidence at home, the affirmation of the rule of law--is lost after an acquittal because there is simply no way the United States releases Khalid Shaikh Mohammed after such an outcome.  There will be no triumphant discharge from the custody of the United States; Khalid Shaikh Mohammed never walks down the courthouse steps to be encircled by thrusting media microphones to give an impromptu victory speech.  And whatever the United States does to continue his detention from the moment a judgment of acquittal is entered, if it be, is going to be considered (especially abroad) as an act of lawless hypocrisy.

The Left--those who don't cynically embrace the possibility of an acquittal that can be blamed on George W. Bush and his advisers--considers this outcome ridiculously implausible, and those who pause to consider it to be paranoid, but this is not going to be an easy trial.  There are a lot of authentic legal issues that have to be disposed of before the allegations are presented to a fact-finder.  (If the trial stays in New York, I'm not certain that I would advise a jury trial over a bench trial.  And the question of whether the trial does stay in New York, if raised in a motion for transfer or change of venue, is a tiny question, comparatively speaking, when one considers the much larger ones these cases will present.)  One thing, in my opinion, is certain:  I feel sorry for the district judge who is assigned this case.  The presiding judge is going to have hanging over his (or her) head the weight of public anger if he decides any of the potentially dispositive issues in favor of the defendants, regardless of the legal merits of their arguments.

And that's the real reason the Left should be a lot more tentative about this decision in favor of a criminal trial than they have been:  there's the opportunity for a hell of a lot of bad case law to come out of these trials because of the notoriety of defendants and their alleged crimes.  It is going to be very difficult for the trial judge, or the appellate courts upon review, to decide potentially dispositive arguments in the defendants' favor.  (On that count, the Left is probably right:  what federal judge lets these defendants off?)  But that could create a lot of precedent with serious consequences for later trials, both of alleged terrorists and of more mundane criminals.

(Both sides deftly avoided the risks of posing difficult questions to Judge Ellis when John Walker Lindh was charged criminally:  they pled him out.  I don't think that can happen in these cases, despite the potential risk of adverse rulings to both sides, because the Justice Department cannot take the political hit of pleading any of these cases out:  they're too high profile and, in the Right's view, should never have been pursued in the civilian system to begin with.)

Finally, there's the question of timing.  I simply don't see how these cases are finalized before the 2010 mid-term elections.  I don't even see how the prosecution can get through all the pre-trial motions before then.  That gives the Right roughly a year to criticize the decision, using each set back or postponement to fuel the fire of public disapproval.  In fact, I doubt the appeals will be through before the 2012 election, if there are convictions.  So this decision, with all of its potentially politically-fatal outcomes, pervades the remainder of President Obama's current term.

So, in reality, trying Khalid Shaikh Mohammed and his friends is much closer to a lose-lose for the Left than anything else.  I think they should be slightly less irrationally exuberant.

Deeds Country

Courtesy of the State Board of Elections, via the Virginia Public Access Project.

Examining Ken Cuccinelli's plan for the Court of Appeals

When I reviewed the first Attorney General debate a few weeks ago, I promised to critique Ken Cuccinelli’s plan to expand the appellate jurisdiction of the Virginia Court of Appeals.  After spending some time since then gathering and analyzing information I’ve come to the conclusion that the proposal is brilliant.  It is not brilliant because it is a good idea, which it isn’t, or even because it will advance Cuccinelli’s stated goal of increasing the number of cases heard on appeal, which it won’t.  It is brilliant because the defects are too complicated to explain easily, especially to non-lawyers.  In other words, Cuccinelli has his own “No Car Tax” plan—a proposal that will sound good to most people (who won’t bother trying to understand the details) and really do more harm than good.

(One quick digression:  if Cuccinelli really thinks expanding the court’s jurisdiction is a good idea, why hasn’t he ever introduced legislation to do it while, you know, he's been a member of the legislature?  Has he been saving this idea up for a rainy day on the statewide campaign trail?  Or is it merely the facile, impulsive, and ill-conceived inkling that it appears to be?  In any event, my prior criticism of Steve Shannon's technical view of the job aside, the Attorney General doesn’t get to introduce bills in the General Assembly.  Senators do.  If Cuccinelli is really committed to this idea, he should stay in the Senate and push for it there.)

I.  Background

For those of you who are not attorneys, appellate juridiction in Virginia is a complicated business.  Most Virginia lawyers don’t bother trying to understand it; they merely memorize it during bar review (and promptly forget the parts not directly relevant to their regular practice).  Unless they were practicing or in law school when the Court of Appeals was created in 1983, they’ve probably never heard of the I’Anson Report or read the law review article co-authored by Antonin Scalia (yes, really—Graham C. Lilly & Antonin Scalia, Appellate Justice:  A Crisis in Virginia?, 57 Va. L. Rev. 3 (1971)), so they have no idea why the General Assembly decided to slice up appellate jurisdiction and serve the court the specific piece of the jurisdictional pie that it got.  Fortunately, these details are unnecessary, and that’s a good thing because what the Court of Appeals is is complicated enough without explaining why it is that way.

But while precise details of and reasons for the decisions made over 25 years ago aren’t necessary, a basic understanding of the state court system is.  And that’s part of Cuccinelli’s genius or good fortune:  too few people have that basic understanding and most of those who don’t won’t bother to get it.  But I assume from the fact that you’re still reading that you either have it or are interested in getting it—so, if you don’t know the difference between the General District Courts (GDCs), Juvenile & Domestic Relations District Courts (J&DRs), circuit courts, the Court of Appeals (CAV), and the Supreme Court (SCV), you simply must stop reading this post now and get that background.  Fortunately, the SCV has a general primer available here.  If you’re not a lawyer—or even if you are but haven’t recently passed the bar or appealed cases to both CAV and the SCV—you need to read the first five pages of the primer before you continue.  Don’t worry:  I’ll wait.

All done?  OK, now you know the general difference between the courts in terms of their structure and jurisdiction.  Cuccinelli’s plan is to change CAV’s appellate jurisdiction, so we need to delve into that a bit deeper.  And because appellate jurisdiction is divided between CAV and the SCV, we need to look more closely at the SCV too.  (On the other hand, because Cuccinelli’s plan says nothing about CAV’s original jurisdiction—i.e., the cases CAV hears in the first instance rather than on appeal from somewhere else—I’m not going to cover original jurisdiction.)

For ease of reference I divide CAV’s appellate jurisdiction into three categories:  what the court must hear, what the court may hear, and what the court must not hear.  Only the third category is directly relevant to Cuccinelli’s plan but the other two are important to understand why the plan is a bad idea.  I divide the SCV’s appellate jurisdiction into the same three categories.  The goal here is to determine whether any more room for appellate review can be squeezed out of the existing court structure simply by tinkering with CAV’s appellate jurisdiction.

CAV Appeals of Right:  What the Court of Appeals MUST Hear

Code § 17.1-405 gives CAV mandatory appellate jurisdiction over certain civil matters including final decisions of administration agencies; final decisions in state employee grievance hearings; final decisions of the Workers’ Compensation Commission; and final decisions of circuit courts involving marriage, divorce, adoption, custody, child and spousal support, control or disposition of a child, and other domestic relations issues; and certain interlocutory orders (meaning orders entered before a final decision) in such cases.  In these civil cases, the losing party has a right of appeal—in other words, CAV must hear the case if an appeal is brought.

CAV Discretionary Appeals:  What the Court of Appeals MAY Hear

Code § 17.1-406(A) gives CAV discretionary appellate jurisdiction over final convictions of crimes or traffic convictions, except where the death penalty has been imposed; final decisions on concealed weapons permits; final orders relating to the involuntary medical treatment of prisoners; and final orders in actions under the religious freedom statute.  The statute also allows the Commonwealth to appeal certain adverse, pre-trial orders in criminal cases and to appeal adverse judgments in tax cases.  All of these appeals are taken by petition, meaning that the losing party may ask CAV to hear the appeal but CAV may decline to do so.

What the Court of Appeals MUST NOT Hear

Code § 17.1-406(B) expressly prohibits CAV from hearing appeals of final convictions of crimes where the death penalty is imposed, habeas corpus, final decisions of the State Corporation Commission, attorney discipline cases from the Virginia State Bar, and judicial discipline cases from the Judicial Inquiry and Review Commission.  In addition to these expressly prohibited appeals, there are also cases CAV may not hear simply because the General Assembly hasn’t granted CAV jurisdiction to hear them.  (In one of its earliest cases, County of Roanoke v. Friendship Manor Apartment Village Corporation, CAV decided that it only had whatever jurisdiction the General Assembly had expressly conferred upon it.)  Specifically, Code § 8.01-670 gives the SCV appellate jurisdiction over all civil cases (except the civil cases heard by CAV as appeals of right), including real property and condemnation, probate of wills, and tolls and taxes, with some limitations.  Because that jurisdiction is given to the SCV and not given to CAV, CAV cannot hear those cases.

SCV Appeals of Right:  What the Supreme Court MUST Hear

Generally, the SCV must hear those cases that CAV is expressly prohibited from hearing under Code § 17.1-406(B):  final convictions of crimes where the death penalty is imposed, habeas corpus, final decisions of the State Corporation Commission, and attorney discipline cases from the Virginia State Bar.  (Judicial discipline cases from the Judicial Inquiry and Review Commission are initiated in the SCV by a complaint filed by JIRC, so I include them in the Court’s original jurisdiction rather than its appellate jurisdiction.)

What the Supreme Court MUST NOT Hear

Most of what the SCV may hear is defined by negative implication from what it is prohibited from hearing so I am covering what it cannot hear first.  Code § 17.1-410 generally prohibits the SCV from hearing any appeal involving traffic infractions and misdemeanors where no incarceration was imposed, administrative agency and Workers’ Compensation Commission cases, domestic relations cases, the involuntary treatment of a prisoner, and pre-trial appeals by the Commonwealth.  The section also applies to concealed weapon permit appeals under Code § 18.2-308(L).  However, there is an escape clause:  the SCV may decide that a CAV decision “involves a substantial constitutional question . . . or matters of significant precedential value” and hear one of these cases—except that the Commonwealth may never, ever appeal to the SCV from an adverse CAV decision in one of its pre-trial appeals in a criminal case.

SCV Discretionary Appeals:  What the Supreme Court MAY Hear

Generally, the SCV may hear everything not prohibited.  This includes those cases that, by implication, CAV may not hear like the civil cases under Code § 8.01-670, except that under Code § 8.01-672 the Court may not hear an appeal where the judgment was for less than $500 unless it involves real estate.  The SCV may also hear appeals from CAV involving criminal cases where a period of incarceration is imposed, state employee grievance hearings, and the religious freedom statute.

So that’s a lot of text, but what does it all mean?  Let’s take a look at some graphs with pretty colors!

Using the Chief Justice’s State of the Judiciary Reports for 2006 and 2007 (download warning: these files are about 40MB each), which is the most recent year I could find, I’ve averaged the courts’ caseload statistics from 2002 through 2007.  The SCV’s statistics are in Table 4 of the 2006 report and Table 2 of the 2007 report; CAV’s are in Tables 6 and 8, respectively.

The first pair of graphs shows how many of each type of appeal is filed in each court:

The most striking feature of this comparison is the size and source of the SCV’s criminal caseload.  There were an average of 1.8 criminal appeals from circuit courts filed per year—a number which is still too high because the SCV has no discretionary criminal appellate jurisdiction over the circuit courts; the lawyers in these cases simply filed their appeals in the wrong court.  (Capital cases, remember, are appeals of right to the SCV and are included in the tiny purple sliver at the top.)  On the other hand, 64% of the Court’s docket are criminal appeals from CAV.  A mere quarter of the SCV’s caseload comes from civil cases from the circuit courts—and, remember, those cases can’t go to CAV.  About 65 cases a year are civil appeals from CAV, and the rest of the Court’s docket comes from habeas appeals and certified questions from the CAV or federal courts.

By comparison, 88% of CAV’s caseload comes from criminal cases.  And that makes sense because CAV’s civil docket is limited to the relatively few types of civil cases that it must take:  primarily domestic relations cases, worker’s compensation cases, and administrative agency appeals.

These two graphs reveal the effect of creating CAV:  appellate jurisdiction was essentially split into criminal and civil and criminal appellate jurisdiction was given to CAV.  The SCV hears no criminal cases, except capital cases, unless they go through CAV first.

The next pair of graphs shows how many of each type of appeal the courts actually grant and hear, leading to a decision on the merits:

The SCV graph is fairly predictable.  The Court heard all the appeals of right (appeals in capital cases, State Corporation Commission cases, and attorney discipline cases) taken to it, as well as all the cases remanded from the Supreme Court of the United States; the Court simply cannot turn those cases away unless there’s a procedural defect, like the appeal was filed too late.  On the other hand, it refused or dismissed all of the criminal appeals direct from the circuit courts—again, it has no jurisdiction over those except the capital cases included under appeals of right.  It heard a small percentage of criminal appeals from CAV—because the CAV criminal docket is so huge that the SCV can only hear so many and because the SCV can only hear criminal appeals where the sentence included incarceration—and a few more civil appeals from CAV.

The number of civil appeals granted from CAV was actually the only surprise for me.  CAV has relatively narrow civil appellate jurisdiction, remember, and the SCV can generally only hear appeals of CAV’s decisions in those civil cases if they involve a “substantial constitutional question . . . or matters of significant precedential value.”  Of the SCV’s discretionary docket, the biggest percentage of granted cases is dedicated to civil appeals from the circuit courts.

CAV’s graph is also fairly predictable.  It granted only about 10% of the criminal appeals filed, but there are an average of almost 5000 of them each year.  It granted about half of the Commonwealth’s pre-trial appeals, almost all of which involve constitutional evidentiary decisions in criminal cases.  And it heard almost all of the appeals of right.  (Some appeals of right are shown here as refused or dismissed, which would not make sense, but the tables in the State of the Judiciary Reports indicate that these include cases where CAV had no jurisdiction.  For example, if someone appeals a capital case, a State Corporation Commission case, or an attorney discipline case to CAV, CAV cannot hear the appeal.  However, under Code § 8.01-677.1, these appeals are transferred to the SCV where they belong.  In addition, if the appeal is not filed on time CAV is deprived of jurisdiction and the appeal must be dismissed.)

The final pair of graphs shows how many appeals of each type the courts actually decided on the merits, after excluding the appeals refused or dismissed:

There are no surprises from the SCV.  After weeding out the criminal appeals the Court refused or dismissed, we see that criminal appeals make up a paltry fifth of its overall merits docket—and all of them are from CAV.  Those civil appeals from CAV—the ones the SCV can only hear if they involve a “substantial constitutional question . . . or matters of significant precedential value”—make up a lousy 2% of the SCV docket; habeas and certified questions make up 5%; and the appeals of right and remands, which it can’t turn away, make up 8%.  That leaves almost two-thirds of the docket for civil appeals from the circuit courts.

On the other hand, CAV’s graph is surprising because it shows that civil appeals outnumber criminal appeals 2:1.  Out of nearly 5000 criminal appeals filed a year, the CAV grants fewer than 300!

(If you’re wondering why CAV disposed of 837 appeals on the merits and the SCV only got to 193.5, remember that, under Code § 17.1-402, CAV usually sits in three-judge panels and only sits en banc when 4 out of the 11 judges insist on doing so.  The SCV always sits en banc for merits review, and only sits in three-judge panels at the writ stage.  This is a practical effect of Code § 17.1-308, which allows the Court to sit in panels but requires it to sit en banc whenever any Justice disagrees with the panel’s result.  Thanks to panel hearings, CAV sits about 30 times a year to hear cases on the merits, not counting en banc review.  The SCV only sits 6 times a year.)

II.  Analysis

So let’s return to Cuccinelli’s proposal, which is to expand CAV’s appellate jurisdiction so it can hear more appeals.  Since CAV already has jurisdiction over all non-capital criminal appeals, Cuccinelli can only mean that he intends to give CAV jurisdiction over all civil appeals.  Civil appeals already muscle their way to 65% of CAV’s merits docket through the court’s mandatory jurisdiction.  Even though Cuccinelli admits that the court’s mandatory jurisdiction may need to be made discretionary in order to make room for more civil cases, making the court’s civil docket discretionary rather than mandatory will lead to the court hearing fewer civil cases.

This is especially true when one considers this SCV report showing that, while the number of civil cases commenced in circuit courts has increased 9.8% since 1989 (when 95,125 cases were commenced, compared to 105,472 in 2008), the number of criminal cases commenced has increased 98.1% (94,021 cases in 1989 compared to 186,261 last year), almost doubling in the same period.  Felony cases have more than doubled, increasing 104% (from 63,555 to 129,627)!

Thus the fact that CAV’s appellate jurisdiction over domestic relations, worker’s comp, and administrative agency appeals is mandatory creates a bulkhead straining against the weight of all those appeals from the skyrocketing criminal docket in the circuit courts.  Because the court can only hear so many cases each year, and because so much of that allotment is consumed by civil appeals of right, I submit that the criminal docket would explode if one were to allow CAV to pick and choose freely among all the appeals filed without requiring it to hear those civil cases it must hear now.  So even if Cuccinelli succeeded in allowing CAV to hear more civil cases if it wanted to, I believe they’d be crowded off the docket by all the criminal cases.  Consequently, Cuccinelli’s proposal is completely counterproductive.

Moreover, I’m not convinced that Cuccinelli’s underlying assumptions—that too few civil appeals are heard on the merits—is valid.  Only an average of 548 civil appeals are even filed in the SCV each year, of which an average of 126 are granted.  Those 548 filed appeals are a mere 0.5% of the 105,472 civil cases filed in circuit courts.  If too few civil appeals are heard on the merits, the problem might be that too few attorneys are appealing civil judgments, not that the courts are too busy to hear them.  (By comparison, the percentage of criminal appeals filed is five times higher:  the 4991 criminal appeals filed in CAV represent 2.7% of the 186,261 criminal cases commenced.)

But if one assumes for the sake of argument that Cuccinelli’s assumption is valid, a better solution would be to create an intermediate appellate tribunal for civil appeals that is separate from the intermediate appellate tribunal for criminal appeals.  (Some states, like California and Florida, divide their court of appeals geographically into districts but I believe dividing CAV based on jurisdiction, as Tennessee, Oklahoma, and Texas have done, is more consistent with the existing statutory structure of Virginia's appellate courts.)  I suspect that his fiscal conservative inner-child balked this idea based on the cost of cloning CAV and turning one court into the Court of Criminal Appeals and the other into the Court of Civil Appeals.  But the solution could be cheaper than that.

CAV comprises 11 judges, and they most often sit in rotating three-judge panels.  By adding merely one additional judge, you get a court of 12, which could then be divided into criminal and civil divisions.  You could have a three-judge civil division and a nine-judge criminal division (which would continue to sit mostly in panels since there are so many criminal cases, but could sit en banc as a division to resolve panel splits).  Or vice versa (though I think the civil-to-criminal ratio means the criminal division should be the one with more judges).  Or divide it 5 judges to 7, rather than 3-to-9.  The General Assembly can decide how to divide the incumbent judges between the divisions:  perhaps the judges choose for themselves, or the Chief Judge of the court chooses, or the General Assembly divides them up itself when it elects the new twelfth judge.

Creating divisions is cheaper than creating a new court because you don’t have to duplicate the overhead of a courthouse and administrative staff.  I may be naïve but I wouldn’t think the additional cost would greatly exceed one-eleventh of the current CAV budget—$8,327,856 in each year of the 2008-10 biennium—so by my estimate the new cost would be about $757,000, or $760,000 if you created an additional chief judgeship so each division had its own and gave the new, additional chief judge the same $3000 salary enhancement the existing Chief Judge gets.

There may be some additional overhead that I can’t predict, of course, and unlike, say, a state senator, I can’t get the Department of Planning and Budget to do a Fiscal Impact Study for me.  Fortunately, and unlike a lot of fiscal conservatives, I have an idea to fully fund my counter-proposal by cutting about $1,901,712 from the state budget each year.  That’s 22.8% of the current CAV budget, so it should be ample to accommodate adding a judge and dividing CAV into two divisions.  But more on that cost-cutting proposal next week.

In any event, one thing clear to me from this exercise is that, if you want to increase the number of civil appeals decided on the merits, you do not accomplish it by giving CAV discretionary appellate jurisdiction over civil appeals.  Given the staggeringly disproportionate number of criminal appeals CAV turns away each year and the explosive upward trend in criminal cases commenced in the circuit courts, few would be the civil cases CAV voluntarily accepted on appeal.  And eliminating the right of appeal over the narrow civil jurisdiction CAV already has would not make more room for other types of civil cases to be heard there, but would allow criminal cases to spill over into this preserve and make even fewer civil cases overall reach a merits decision on appeal.

More accurate than Not Larry Sabato

The RTD reports that RPV has decided against taking Governor Kaine to court for his DNC-related travel records after Kaine rejected its FOIA request, as I predicted Friday.  Going 1 for 1 in predictions puts me slightly in the lead over Not Larry Sabato, who at one time claimed a 99.6% accuracy rate.

Kaine, the DNC, RPV, and FOIA

I'm not a FOIA specialist and have never litigated under Virginia's Freedom of Information Act, and I haven't seen the specific letter here.  But based on the NBC12Blog report that Governor Tim Kaine has denied RPV's FOIA request for records pertaining to his travel for the DNC, I wonder what RPV's next steps are.

Code § 2.2-3705.7(2) clearly does exclude the working papers and correspondence of the Office of the Governor, which includes "the Governor; his chief of staff, counsel, director of policy, Cabinet Secretaries, and the Director of the Virginia Liaison Office; and those individuals to whom the Governor has delegated his authority pursuant to § 2.2-104."  And "working papers" includes "records prepared by or for an above-named public official for his personal or deliberative use."  Id.

On the other hand, Code § 2.2-3705.8(A)(ii)removes "records of the allowances or reimbursements for expenses paid to any officer" from that exclusion.  So, even though Kaine has promised the DNC will reimburse the Commonwealth for the cost of his security detail while he traveled, it seems that the promise inheres an admission that the security detail was originally paid out of his security allowance.  If that is true then I would believe the record of the dates that the security detail was paid by the Commonwealth while Kaine was out of state (and any other expenses like airfare, hotels, and meals) would be public record.

Of course, Kaine may be correct that the Executive Protection Unit of the Virginia State Police, and not the Office of the Governor, is the proper custodian of those records.  But if the Virginia State Police is the proper custodian, the records might be exempt from disclosure under Code § 2.2-3706(F)(7) because they would likely reveal how many troopers the Governor takes with him when he travels, which may qualify as a tactical plan.

So all that's clear is that nothing is clear.  If RPV wanted to prolong the political theater to invigorate the base during the summer (while normal people aren't paying attention), I suppose it could petition for mandamus under Code § 2.2-3713, which generally has to be heard with 7 days of being filed.  But would they want to?  Do they want to spend money litigating this issue in the middle of a general election?  Does it really buy them enough earned media to make it worthwhile?  (Of course, if they win, they get costs and attorney's fees but winning is not assured.)  And do they really want to put Bill Mims in the position of having to defend the Governor?  (Wouldn't that be a fun side issue for Ken Cuccinelli:  "If you were Attorney General now, would you vigorously represent Governor Tim Kaine's denial of RPV's FOIA request?")

I personally think the return isn't high enough to continue this diversion.  RPV has had its fun and now it's time to move on.  That's especially true when one considers that there's likely to be an appeal--especially if Kaine loses.  How long would that take?  Even the best case scenario takes too long.

Assume RPV files originally in the circuit court (rather than the general district court, which they may do, from where the appeal goes first to the circuit court under Code § 16.1-106) and gets a final order in time for the Supreme Court's August writ session (which is highly unlikely because the cases for August almost certainly have been docketed and sent to the Justices by now, and most certainly will have been by the time a final order issues from the Richmond circuit court).  If the petition for appeal is granted, the Rule 5:26 briefing schedule runs 80 days.  Assuming the certificate of appealability is granted that day (i.e., the date of August writ), you're at mid-November before briefing is complete.  Even if the case is heard at January oral argument--the week the new governor is sworn in--the opinion isn't handed down until late February.  And that's the best case scenario if an appeal is granted.

That timetable makes a lawsuit backfire.  Rather than merely invigorating the base during the off-season, litigation would force voters to hear about this sideshow over and over because the appeal will loom over the fall campaign.  (Remember how sick Richmonders got of Wilder suing City Council and vice versa, regardless of which side they thought had it right?)  It doesn't remain an issue for the gubernatorial candidates because Deeds merely needs to say he thinks Kaine should turn the records over and neutralize the issue, and Kaine can ignore him.  So this turns into nothing but a distraction for RPV.  I think Governor Kaine called RPV's bluff.

Steve Shannon is going to need help in November

Let me begin with disclosure:  I don’t support Ken Cuccinelli’s bid for Attorney General even though his victory would get him out of the Senate.  I think he has a fundamental misconception of the role of the Attorney General in Virginia, which I’ll elaborate on below.  I also disfavor his positions on fiscal and social issues, which I find extremist.  And he is certainly not passive about them so they cannot be ignored or taken with a grain of salt as I’ve done with other Republican nominees more conservative than I am.  I have no doubt that his fringe views will pervade every aspect of his work if he’s elected because they emanate from his core worldview.  I’ve seen him in action in court and on the Senate floor and there is no sense of self-doubt, moderation, or compromise in him; he is a True Believer in his own understanding of the world and the people in it, the way they should behave and what they should think.  If you share his view of the world and the people in it, this will delight you.  If you don’t, you should be concerned because, based on my impression of their debate at the Virginia State Bar’s annual meeting, his only opponent, Steve Shannon, will lose.  (You can watch the debate and judge for yourself:  Shannon has provided unedited video here).

Cuccinelli has the charisma of a snake-oil salesman--not the cynical fraudsters who know their product is worthless but those who could sell anything, and do, confident in their product without knowing its shortcomings (or even admitting that it could have any).  His intonation, facial expressions, and body language are inviting and solicitous.  They are not artificial or contrived, and are likely subconscious, because they flow from his earnest self-certitude.

Shannon, whom I had never seen before the debate, was lackluster by comparison.  He appeared to be casually nonchalant and bore a different kind of confidence--confidence that he will win because he should.  I’ve seen that kind of confidence in lawyers before, lawyers who have prepared well for their appearance in court and drawn comfort from their preparation because they have created a vision in their head of how the hearing or trial will proceed.  They are completely unaware that their opponent is about to throw a wrench in the mechanical operation they have envisioned by doing something so unanticipated that, at first, it seems utterly illogical, so completely divorced from the expected issue that it is completely alien.

(Imagine a carpenter framing a house:  he reaches to his assistant, expecting to receive an 8’-long 2x4.  If he instead receives a 4’-long 4x4, he recognizes what it is and can react accordingly, either by putting it where it goes in the frame or handing it back and asking for the correct piece of lumber.  But if the assistant dumps a jar of grape jam into his outstretched hand, the carpenter is nonplussed.  Ken Cuccinelli has a lot of grape jam in store for Steve Shannon.)

The Opening Statements

Recap

Cuccinelli starts.  He describes Shannon as his friend:  they went to high school together for a year and share three precincts.  Shannon is laid-back and easy-going.  He has made friends in the General Assembly, unlike Cuccinelli who has fought even against his party’s leadership for the principles he believes in.  Cuccinelli supports offshore drilling, the right to work, and protecting the constitution as it was written.  The key issues are law enforcement (fighting gang violence), sexual predators on the internet, mental health, and expanding the appellate jurisdiction of the Virginia Court of Appeals.

Shannon relates that he entered politics because of his passion for Amber Alert.  He was a prosecutor assigned to child sex offenses.  He describes his experience in the House of Delegates and tells us that he is running to make Virginia a safer place, to which end he will focus on gang violence, information security, and financial fraud.

Analysis

I don’t know whether it was intentional or not, but Cuccinelli deftly creates a false impression of moderation.  If one forgets that the Virginia Senate’s Republican leadership is more moderate than the House’s and more moderate than the Bush Administration or Congressional Republicans, Cuccinelli’s description of his battles against and isolation from “the leadership of my own party” makes him sound like a maverick.  And he is a maverick in the Senate, but hardly for moderation.  The image is reinforced by other rhetorical flourishes:  “I’ve been in the middle of so many debates”--meaning of course that he’s been involved in them, even provoked several, but hardly that he was in the ideological center of them--and “I’ll offer independent leadership”--independent from any constraining authority, yes, but not independent of an extremist ideology.

Cuccinelli also rispostes Shannon’s political pragmatism.  Shannon is easy-going and laid-back:  in other words, he’s not a fighter.  He is compromising at best, dispassionate, perhaps even lazy:  when has Shannon led, rather than follow the lead of others and escape the political heat?  Cuccinelli has led and paid the price for it--the price is his isolation, which sounds pathetic (“Shannon has more friends than I do”) but not pitiful:  Cuccinelli isn’t wailing, “Oh, poor me!” but “I need you to join my crusade because I’m the only one fighting for what I believe in, which, by the way, you [should] believe in too!”

Finally, Shannon sets the stage for himself in the role of a former prosecutor, which he will reprise too many times during the debate--and in the months between now and November.  But this is not an effective arrow in his quiver because no one believes that Cuccinelli is going to be weak on crime.  And no one believes that the Attorney General is going to personally prosecute a case in Virginia, so criminal litigation experience is simply immaterial.  We know that Cuccinelli is happy to remind voters of that fact because he did it later in the debate.  (There may be some irony here because Jim Gilmore rode the former prosecutor wave to victory, but that only works when you have an opponent you can paint as soft on crime.)

Republicans have an inherent advantage on public safety that’s even stronger for social conservatives, who are so happy to demonize and punish behavior they disapprove, and there’s no evidence that Cuccinelli would be an exception to the public expectation of Republican persecution of criminals.  Shannon will simply never out-crime Cuccinelli, and will never out-experience him as a criminal litigator either because it’s irrelevant to the job and Cuccinelli won’t let anyone forget it.

Questions

The first subject I need to get off my chest is not related to the candidates.  Someone needs to beat Bob Gibson for his ninth question, on global warming.  Even as a segue to his tenth question, on how the candidates would enforce environmental regulation, the question was ridiculous in an Virginia Attorney General debate.  On a lesser man, it would reflect stupidity; on Bob Gibson, it reflects something more akin to desperation for national relevance.

Question 1 Recap

The first question was excellent:  What qualifies you to head Virginia’s third-largest law firm?

Shannon answered first and described his background in a firm and leadership in the General Assembly, concluding with a shot across Cuccinelli’s bow by promising to be bipartisan rather than an ideologue.

Cuccinelli then described his experience running his own firm and working for another and partnering with the AG’s office on issues including mental health, immigration, and property rights.  He confessed that he has sued the Commonwealth before and therefore knows how it litigates cases.  Professionalism and morale have increased under Republican Attorneys General.

In rebuttal, Shannon described the Attorney General as the state’s chief law enforcement officer, charged with jurisdiction over all criminal appeals, internet crime, and child porn, and reminded us that he’s the only former prosecutor in the race.

Analysis

The day Shannon can prove that Cuccinelli is softer on gangs, child porn, and fraud than he is will be the day Shannon can beat Cuccinelli using this former prosecutor meme.  But that day is never coming.

As far as running a law office, I actually suspect Cuccinelli is the more capable man.  But his description in his answer to Question 4 of how he would use the resources available to him as Attorney General disqualify him from that office in my opinion.

Question 2 Recap

What legal position would you take concerning same-sex marriages from other states?

Cuccinelli answered first and, predictably, reminded everyone that he was one of the Virginia marriage amendment’s most vocal and energetic supporters and promised to defend the law in contrast to the California Attorney General who publicly announced he would not defend that state’s same-sex marriage ban.

Shannon, too, promised to defend the law:  the people have spoken and they have said no to same-sex marriage in Virginia.

In rebuttal, Cuccinelli said Shannon’s position on same-sex marriage had changed, and that an Attorney General can defend the law vigorously or merely go through the motions.  Moreover, if the Attorney General believes a position to be inconsistent with the federal constitution he need not defend it at all, and declining to do so in such circumstances would not violate his duty.

Analysis

Shannon can’t win on this issue but the only way to neutralize it is to completely renounce a constitutional right to same-sex marriage.  I don’t know whether that’s consistent with his political views or not but, having necessarily conceded that he will defend the law, he must remove all doubt that he will do so tepidly.  Cuccinelli will use any ambiguity in Shannon’s response to sow the seeds of doubt in the minds of those who support the ban.  While those folks are unlikely ever to vote for Shannon anyway, if Shannon tolerates Cuccinelli’s vague challenge to his commitment to do the job it will spread beyond the same-sex marriage issue.  Shannon should explicitly say whether he personally supports same-sex marriage or not, and then explicitly say that, even if he does support it, he will defend Virginia’s ban to his utmost because the voters have decided that issue and the Attorney General represents their will.

Question 3 Recap

How should the AG’s office respond to the recession’s effect on child and spousal support payments?

Shannon answered first by declaring that children and former spouses have a right to collect what the court has ordered be paid to them.

Cuccinelli admitted this is an issue where there’s basically no disagreement between the candidates:  while layoffs or pay cuts may give cause for parties to return to court to revisit support orders, they are not excuses for non-payment.  However, he believes the AAGs representing the Division of Child Support Enforcement may be too mechanical in their application of the guidelines, resulting in needless litigation in outlier cases like those involving the self-employed.  

Analysis

The only people who care about this issue are those on one side or the other of a support order and the candidates agree on the substance.  Yawn.  Let us never speak of this again.

Question 4 Recap

Why does Cuccinelli want to expand the jurisdiction of the Virginia Court of Appeals?

Cuccinelli answered first (fortunately, since it’s his proposal).  Circuit courts are the courts of last resort as a practical matter in most cases because the Supreme Court of Virginia is too backlogged.  There are 130+ jurisdictions in Virginia and not all of them are uniform, which is what appellate review is supposed to ensure.  There are too many areas of the law where you’ve got to go back to the 1800s to find precedent from the Supreme Court.  Make the Court of Appeals an intermediate appellate court in all cases and you increase the availability of appellate review without increasing state expenditures.

Shannon countered that the Attorney General shouldn’t be pushing a political reform, especially not of the court system, because the General Assembly and Governor are the public policy engines.

Cuccinelli rebutted by wondering how Shannon would accomplish any of his own goals with that attitude--how does Shannon hope to get anything done if he’s not willing to lead?  And that’s when Cuccinelli confirmed my earliest suspicions about his candidacy.  He said that he was willing to give up his Senate seat and become Attorney General because the Attorney General is supposed to be a political leader on par with the Governor and Speaker of the House.  As a Senator, he had only a $37,000 annual budget for staff but the AG’s office has a staff of 250, including 140+ lawyers, and he would use those resources to lead.

Analysis

First, Cuccinelli’s justification for increasing the jurisdiction of the Court of Appeals is misguided if not counterproductive.  I’ll do a separate post this week addressing the substance of his proposal.  This post is about my impression of the candidates from their performance in the debate.

Cuccinelli successfully framed the Catch-22:  while Shannon is correct that the Attorney General is intended to be the Commonwealth’s general counsel and not a political player, that is not the public impression of the job.  Shannon can either engage in a quixotic quest to persuade people of the truth--while attempting to wriggle out of the seeming contradiction presented by his own agenda--or he can shut up and campaign.

I want to emphasize here that Shannon’s agenda is not inconsistent with his correct understanding of the job.  When he got a chance to answer Question 5, he surrebutted Cuccinelli by pointing out that his agenda fell within the statutory authority of the AG’s office.  Organized crime is in the Attorney General’s portfolio.  He would use the AG’s office in its capacity as general counsel to state agencies to advise them on their obligation to safeguard the information on businesses and individuals they gather and store in order to avoid potential liability for security breaches.  He would use the consumer protection powers of the AG’s office to deter financial fraud.

It’s not that Shannon misunderstands the office or that his agenda is inconsistent with its role.  Rather, it's that his position is simply too nuanced for a general election and is simply too counter-intuitive for Virginia voters.  They will not understand why a man is running for a political office if he has no political agenda and, at Cuccinelli’s subtle suggestion, they will view Shannon as dispassionate, unmotivated, or lazy.

The most important consideration I believe attentive voters should take away from this question is Cuccinelli’s stated intention to use the apolitical, non-partisan career staff of the AG’s office to advance his ideological agenda.  It should send shivers up the spine of every career employee in the Pocahontas Building and in the various regional AG’s offices.  We know that Cuccinelli is unflinching when it comes to fighting for his political beliefs.  I believe that in a contest between representing all Virginians and furthering the Attorney General’s personal goals, Virginians will lose every time if Cuccinelli wins.  I wonder how many career employees will leave the AG’s office over the course of a four-year Cuccinelli term, and who Cuccinelli will hire to replace them.  I suspect that anyone alarmed at the politicization of the Justice Department under the Bush Administration should be utterly terrified by the prospect of a Cuccinelli AG’s office.

Question 5 Recap

What’s your position on the War on Drugs?

Shannon answered first.  After his surrebuttal to Question 4, he acknowledged that the spread of MS13 and its drug operation was the biggest safety threat in Northern Virginia and that there were prescription drug and methamphetamine abuse issues along the I-81 corridor.

Cuccinelli agreed that gangs are in the business of selling drugs and that gang violence furthers their business.

Shannon used his rebuttal to again remind us that he’s the only former prosecutor in the race and that he’s actually tried and convicted gang members.

Analysis

No specifics on this issue yet but there won’t be any substantive difference between the candidates anyway.  In other words, another yawn.  But we’ll hear about this over and over again until November.

Question 6 Recap

Do you support the death penalty?

Cuccinelli answered first and informed us that the death penalty is constitutional under the Eighth Amendment.  Virginia’s capital punishment procedure is among the best in the nation.  Capital cases are extensively litigated but the AG’s office is involved mostly in the appeals.  He does have appellate experience--but it’s not like the Attorney General goes to court to argue cases himself anyway; the Attorney General sets policy.  As a policy matter, he supports the death penalty and its expansion to cover the murder of witnesses and judges.

Shannon again presents his former prosecutor amulet and polishes it before an unmoved crowd.  Juries should be able to impose death for the most heinous of offenses.  He supports expanding the triggerman rule.  Then there was something audible but unintelligible about John Allen Mohammad and the Senate Courts Committee hindering the death penalty.

Cuccinelli, who must have understood Shannon’s last point better than I did and perceived it as a challenge to his commitment to capital punishment, rebutted that he supported all the current exceptions to the triggerman rule--i.e., for terrorism (like the Beltway sniper), criminal enterprises (gangs), and murder for hire.

Analysis

No specifics and no differences, and again no escaping this issue before fall.

Question 7 Recap

What should be done about credit card late fees and finance charges?

Shannon answered first, after a diversion into home foreclosure.  Credit card agreements are contracts and these issues are best dealt with by letting the political players like the General Assembly and Governor meet with the stakeholders to find common ground, as Kaine did for mortgages.

Cuccinelli answered that consumers and businesses need one-stop shopping for their problems.  Rather than spread consumer affairs around the state government from the State Corporation Commission to the AG’s office, everything should be brought under the Attorney General.

Shannon rebutted that the Attorney General already is the consumer advocate in Virginia and consumers just need to know whom to call.

Analysis

I honestly have no idea whether Cuccinelli’s idea has merit or not but, like the appellate jurisdiction issue, at least it’s an idea to do something.  Shannon is correct that the AG’s office does represent consumer interests and that credit card agreements, unless fraudulent, are contractual matters between the parties.  But that posture again plays perfectly into Cuccinelli’s framing that Shannon is dispassionate, unmotivated, or lazy.  Voters facing situations that they believe are unjust--whether correctly or not--want something done.  Shannon’s approach is conservative (in the sense of favoring the status quo) and correct but unsatisfying to that thirst for action.

On the other hand, even if Cuccinelli’s consolidation plan has merit, I’m skeptical given his broader mission to turn the AG’s office into his personal ideological think-tank.  I’m not sure how much consumer-protectin’ is going to be going on in the Pocahontas Building if he wins.

Question 8 Recap

Do you support a usury cap on title and payday loans?

Cuccinelli answered first and flatly rejected a flat-cap on interest rates.  The loans must be available as a last resort or consumers will default on their bills or turn to credit cards.  Safeguards are needed to ensure that lenders are representing the contract terms correctly.

Shannon answered that a product that guarantees an unending cycle of debt is a bad product.

Cuccinelli rebutted by renewing his proposal to consolidate all consumer affairs resources under the Attorney General.

Analysis

Shannon might actually get somewhere with ending payday and title loans because that issue has bipartisan support, although I’m more sympathetic to Cuccinelli’s laissez-faire approach.  People should be free to get themselves into trouble, as long as they’re not conned into it, and live with the consequences of their choices.  Unfortunately, even if the issue works for Shannon, he can’t push it while he insists on leaving public policy to the Governor and General Assembly.

Question 9

As foreshadowed in my introduction, I refuse to acknowledge Question 9.  The question did nothing more than allow each candidate to play to or piss off his base on a national political issue.  If you care what an Attorney General candidate’s views on global warming are, watch the video for yourself.  Neither of them said they would sue God for relief from or damages for the effects of climate change so there’s nothing to see here.

Question 10 Recap

Would you enforce environmental regulations?

Cuccinelli answered first and promised to enforce environmental regulations intended to make sure business left the environment no dirtier than they found it but would not use environmental regulation to constrain business “as some in Washington are trying to do.”  He believes that offshore drilling could be a boon to Virginia’s shipbuilding industry, which could be a leader in manufacturing the equipment and generate thousands of jobs.

Shannon acknowledged that the Attorney General is responsible for enforcing not only state environmental law but the federal clean water and clean air acts as well.  Virginia’s Attorney General must work with the AGs of other states in the Chesapeake watershed to meet the federal mandate to clean the bay and he has the contacts to do that.

Cuccinelli rebutted that he would resist the enforcement of federal environment regulations that exceed the federal government’s constitutional scope.

Analysis

Cuccinelli’s rebuttal reinforces his answer and rebuttal to Question 2, on same-sex marriage.  Cuccinelli is adamant in his belief (no surprise there) that the Attorney General has no duty to enforce or defend laws that contravene the federal constitution.  This is a unitary view of the role of the Attorney General’s discretion:  Cuccinelli is clearly not saying that the Attorney General is justified in suing for declaratory relief against laws he believes are unconstitutional but that the Attorney General may unilaterally and in his sole absolute discretion decide whether a law is unconstitutional and, having done so, ignore it.  Together with his rebuttal on Question 4, where he revealed his intent to use the AG’s office to further his own political agenda, Cuccinelli has provided us with a picture of the sort of AG’s office he will run.  It is not a pleasant picture for those who disagree with Cuccinelli’s ideology but it should not be a pleasant picture for anyone who understands the traditional role of the Attorney General of Virginia.

Question 11 Recap

The inevitable abortion question.

Shannon answers first that a woman has a right to make medical decisions about her own body and then quickly changes the subject to Virginia’s low adoption rate and high infant mortality rate.

Cuccinelli complains that the Senate Courts Committee is an insurmountable obstacle to the most reasonable restrictions on abortions.  Most abortion doctors are not top-flight professionals but are really bottom-of-the-barrel MDs in terms of medical competence.  Every life is precious.  If the Fourth Circuit rules Virginia’s partial-birth abortion statute is unconstitutional, Cuccinelli will appeal to the Supreme Court.  Will Shannon do the same?

Shannon ignores the partial-birth abortion question, but it is moot now anyway, and rebuts that abortion isn’t really a partisan issue in Virginia--it’s about health and should be depoliticized--and then reverts to adoption and infant mortality.

Analysis & Conclusion

Pro-life conservatives get what they want with Cuccinelli.  He’s one of them.  Shannon has to portray Cuccinelli as out of the mainstream of Virginia public opinion on this issue--which I believe he is--but even if he succeeds I don’t think it will be enough to win the general election.  Voters are not going to see Cuccinelli as soft on crime and are going to know the Attorney General does not personally prosecute cases, which takes Shannon’s preferred arrow--being the only former prosecutor in the race--out of his quiver.  Moreover, Shannon has tied his own hands with his insistence on restraining his political role as Attorney General, even though that is the correct understanding of the role.  He simply cannot advocate broad policy changes from that position, and his inability to advocate broad policy changes ties in nicely with Cuccinelli’s implication that Shannon has no fire in the belly.  Shannon needs to be able to tell voters what he’s running to do--and making Virginia safer isn’t going to cut it because voters get that from Cuccinelli.  Cuccinelli knows what he’s running to do.  (To put it at its snarkiest, create a theocracy with himself as ayatollah.)

Shannon has to do two things:  (1) stand for an issue where he is not eclipsed by Cuccinelli, unlike public safety, and (2) highlight what will be lost if Cuccinelli is elected--namely an apolitical, non-partisan career staff in the AG’s office more interested in representing Virginians and enforcing the law than carrying banners in an activist political crusade…regardless of whether the crusade is for right- or left-wing issues.  But I don’t think Shannon will do them.  I can’t think of an issue that appeals to both his base and moderate voters that Shannon can use to distinguish himself from Cuccinelli--and even if one materializes between now and fall, I don’t know how Shannon stumps on it while insisting that the Attorney General should be politically passive.  Without such a rallying issue, no matter how negative he goes to warn moderates and the left about what Cuccinelli will do if elected, he cannot win.  Not unless Creigh Deeds has coattails that stretch the breadth of the Commonwealth.

How shall we screw South Carolina? Oh, let's count the ways.

Over the weekend, retired Virginia blogger J. Sarge revived the question of state representation on the Fourth Circuit.  I generally dismiss the notion that any state is entitled to a given number of seats on the federal circuit court of appeals in which it is located--at least for any jurisprudential reason.  (There are political reasons, of course, not least of which is each state's senators' interest in their own patronage perquisites.)  There simply aren't that many appeals that turn on an issue of state law or procedure compared to purely federal questions; of course there are some but, because appellate panels are constituted randomly, there's no guarantee that a judge from the state at issue will be represented on the panel anyway.

Perhaps there's an argument that each state should be represented by at least one member of the court in order to represent its interests by requesting polls for en banc review when the home-state judge feels a panel consisting entirely of foreign judges got state law wrong.  But considering that the "home state" at issue may not even be located in the circuit--thanks to a choice of law provision in a contract controlling a case brought under diversity jurisdiction, for example--there's simply no way to guarantee such representation unless each state gets at least one judge on every circuit court of appeals.  And even one such judge wouldn't really be enough:  even a state's own supreme court justices may divide on issues of state law, so there's no guarantee that a single judge could adequately represent any state on the federal court of appeals.

And then there's the Supreme Court of the United States, which has only nine seats and none of them have or are expected to have any geographical association.  We don't expect one justice per state because we expect each justice to be able to research and understand the law of each, to the extent it has been established there by the state's own courts and legislature.  The same principle applies to circuit judges in my opinion.

But assuming for the sake of argument that there should be some geographical distribution of the seats on a circuit court of appeals among the states represented on it, how should the seats be distributed?  By the number of cases filed in the district courts?  By number of district judges?  By appeals heard from each district?  By population?  Perhaps, since the only real reason for distributing seats among the states at all is the political one, the only real question is how important the respective states, or their senators, are to the president making the nominations.  We can take each method except the last (which is purely subjective) in turn.

From the Annual Report of the Director of the Administrative Office of the United States Courts we know the number of civil cases terminated with district court action (Table C-4A), which should exclude complaints filed simply to toll statutes of limitation and cases which settled without litigation, and the number of criminal defendants convicted (Table D-7) in each district.  (We will assume that state law somehow matters in these cases despite my argument otherwise.  While almost all federal criminal convictions are based on violations of federal law, that is not always so:  some federal convictions are based on state law made criminal on federal territory under 18 U.S.C. § 13 but I don't believe these represent a significant percentage and ultimately I know of no way to differentiate between them.  We can do better with the civil cases by making some rough calculations based on Tables C-2 and C-3B but ultimately this is unnecessary--we can just assume that every case has some state law issue because we've already assumed that this exercise has value.)

In 2008, the District of Maryland had 2401 C-4A cases and 974 D-7 cases for a total of 3375.  The three North Carolina districts had 2343 C-4A cases and 2210 D-7 cases combined, for a total of 4553.  The District of South Carolina had 3764 C-4A cases and 1286 D-7 cases for a total of 5050.  The two Virginia districts had 3860 C-4A cases and 3008 D-7 cases combined, for a total of 6868.  The two West Virginia districts had 1437 C-4A cases and 775 D-7 cases combined, for a total of 2212.  Totaling all these state sub-totals gives one a grand total of 22,058 civil and criminal cases in the Fourth Circuit.  From that, one can easily calculate percentages for each state to learn that Maryland would have 15.3% of the circuit judges (2.3 seats based on the current 15-seat allotment); North Carolina, 20.6% and 3.1 seats; South Carolina, 22.9% and 3.4 seats; Virginia, 31.1% and 4.7 seats; and West Virginia, 10.0% and 1.5 seats.  Because judges would probably object to being dismembered we can round the seat distribution:  Maryland, 2; North Carolina, 3; South Carolina, 3; Virginia, 5; and West Virginia, 2.  (You can repeat this process across however many years you'd like.)

North Carolina, Virginia, and West Virginia would likely be pleased with this method.  North Carolina has Judge Duncan already and lays claim to Senior Judge Phillips's vacant seat, and it would get a third.  Similarly, Virginia has Judge Wilkinson, Judge Gregory, Judge Agee, and lays claim to the late Judge Widener's vacant seat, and it would get a fifth.  West Virginia has Judge Michael and Judge King, and it neither gains nor loses.  On the other hand, Maryland would be annoyed:  it has Judge Niemeyer and Judge Motz, but would lose its claim on the late Judge Murnaghan's vacant seat.  South Carolina would be unhappier still:  it has three incumbent judges (Chief Judge Williams, Judge Traxler, and Judge Shedd), one of whom would have to go, and it would lose its claim to former Judge Wilkins's vacant seat to boot.

The consequences of distributing circuit judgeships based on district judgeships in the circuit are kinder to the status quo.  According to 28 U.S.C. § 133, Maryland has 10, North Carolina's three districts combined have 10, South Carolina has 10, Virginia's two districts combined have 15, and West Virginia's two districts combined have 8, for a circuit total of 53.  The distribution is 18.9% and 2.8 (or 3) seats for Maryland and each Carolina, 28.3% and 4.2 (or 4) seats for Virginia, and 15.1% and 2.3 (or 2) seats for West Virginia.  That only leaves South Carolina disappointed because, while all three of its incumbent judges get to stay, it still must sacrifice its claim on Judge Wilkins's vacant seat to North Carolina.  We'll ignore the question of whether the states' district judge allotments are properly balanced because addressing it would merely disrupt the otherwise harmonious result.

Distributing circuit judgeships based on the percentage of cases appealed from each state gets messy because the numbers don't round well, resulting in the need to add a sixteenth judgeship--and South Carolina still gets screwed.  According to Table B-3A, 574 appeals commenced from the District of Maryland in 2008, 1070 from North Carolina's three districts, 972 from the District of South Carolina, 1433 from Virginia's two, and 495 from West Virginia's two, for a circuit total of 4544.  The distribution is 12.6% and 1.9 (or 2) seats for Maryland, 23.4% and 3.5 (or 4) seats for North Carolina, 21.4% and 3.2 (or 3) seats for South Carolina, 31.5% and 4.7 (or 5) seats for Virginia, and 10.9% and 1.6 (or 2) seats for West Virginia.  That's 16 seats total and South Carolina and Maryland still have to give up claims to vacant seats--and stand idly by while a new seat is created and given away to either Virginia or North Carolina.

Finally, there's population.  If you thought the other methods were going to be uphill battles, you'd better buckle your safety belt.  Based on 2006 estimates, Maryland has 5,616,000 people; North Carolina, 8,683,242; South Carolina, 4,321,000; Virginia, 7,643,000; and West Virginia, 1,818,000.  Based on a circuit total of 28,081,242, the distribution is 20.0% and 3.0 seats for Maryland, 30.9% and 4.6 (or 5) seats for North Carolina, 15.4% and 2.3 (or 2) seats for South Carolina, 27.2% and 4.1 (or 4) seats for Virginia, and 6.5% and 1.0 seat for West Virginia.  Maryland and Virginia escape relatively unscathed, losing no occupied or claimed seats.  West Virginia and South Carolina each give up an occupied seat and South Carolina again loses its claim to Judge Wilkins's vacant one.

South Carolina just can't get out of this with its claim to Judge Wilkins's seat intact.  Given the fact that North Carolina was screwed for years by Senator Jesse Helms, went for Obama over McCain by about 14,000 votes, and has 1 Democratic senator to South Carolina's zero, this theoretical shafting may just turn out to be an actual one, too.  Which brings me back to my original position:  the only real consideration in distributing circuit judgeships is politics, whatever numbers one tries to use for justification.

Quamdiu se bene gesserit

The Houston Chronicle reports that the House Judiciary Committee's Task Force on Judicial Impeachment has unanimously referred four articles of impeachment against U.S. District Judge Samuel B. Kent.  Kent pled guilty to obstructing justice during an investigation into complaints of sexual assault brought against him by court employees and was sentenced to 33 months' imprisonment.  The Chronicle had earlier reported that Kent submitted a letter of resignation but that its effective date was June 1, 2010, allowing him to receive his salary and benefits while incarcerated.  According to the Chronicle's story, Kent's lawyer (Dick DeGuerin, who also represented former House Majority Leader Tom Delay) admitted that the delay was cynically based on the assumption that Congress was too lethargic to remove him before that date anyway.  Congress appears to be disproving that assumption.

The Kent situation is an excellent opportunity to revisit the question of what "during good behaviour" means in Article III.  In 2006 Professors Saikrishna Prakash and Steven D. Smith of the University of San Diego wrote an article published in the Yale Law Journal questioning the conventional wisdom that impeachment and removal provided the exclusive method of removing a federal judge.  Prakash and Smith observed that "good behaviour" was historically tested through an action on a writ of scire facias and suggested that the writ would be a constitutionally sound method of removing naughty judges.

I've found the article's analysis largely persuasive.  While I do not agree that Congress could make removal from judicial office automatic on conviction of a felony, I believe that a writ of scire facias is a perfect mechanism to remove a federal judge convicted of a felony and whose misbehavior has been proved beyond reasonable doubt.  Congress should amend Title 28 to create a court of judicial discipline in the mold of the Foreign Intelligence Surveillance Court established by 50 U.S.C. § 1803:  the Chief Justice would appoint a number of sitting Article III judges to the court for set and non-renewable terms.  28 U.S.C. § 355(b)(2) could then be amended to allow the Judicial Conference to refer a judge convicted of a felony to the court after direct appeals of the conviction have been exhausted.  The court's review would not allow for a collateral attack on the conviction but would be a largely ministerial review of the fact of conviction, whereupon the writ would issue and the judgeship would be vacated.

This approach would merely supplement Congress's power to impeach and remove, so no Article I prerogatives would be jeopardized, and would separate partisan distractions from the consideration of the issue of good behavior.  It also reduces the presumption of bureaucratic delay, which Kent relied on when he made his resignation effective a year away.  After all, Congress used to be a part-time institution and I don't consider us lucky that Congress now sits year-round even though by doing so it can impeach and remove federal judges any time of year they're convicted.  Removing convicted federal judges by writ of scire facias is efficient, judicial rather than political, and constitutionally sound.

(Houston Chronicle story via Howard.)

"Surely the future shall be better for thee than the past and in the end shall The Jaded JD be bounteous to thee, and thou be satisfied."

Yes, The Jaded JD has returned to the Virginia blogosphere.  That means absolutely nothing to most people because they have no idea that The Jaded JD ever existed in the first place.  And even if you knew that The Jaded JD existed between July 2004 and August 2006, this resurrection means less than you think it does because you almost certainly thought then that The Jaded JD was a person rather than a brand.  And you were wrong.

(Yes, I know some people don’t believe that The Jaded JD was originally the product of multiple contributors collaborating under the same pseudonym.  It doesn’t matter that the writing styles of many posts bore significant differences or that no single individual—not even Dos Equis’s Most Interesting Man in the World—can have learned or done as much in one lifetime as The Jaded JD had; some people are convinced that one person wrote it all.  Some people are also convinced that they need to wear foil helmets to keep aliens from reading their thoughts.  (Like aliens' advanced technology can be thwarted by Reynolds Wrap.)  I’m not saying that the overlap between the two groups is vast but the fact remains that there’s nothing I can do to disabuse either of them of their self-certain knowledge and I’m not going to waste my time trying.)

If you’re one of the people excited that The Jaded JD is back, I advise you to rein in your irrational exuberance because you don’t know which contributor you’ve got yet.  (The good news is that the holding company’s directors have met and agreed to distribute the assets.  There is now only one owner of The Jaded JD brand, which means there is no more collaboration—mostly because the others have moved on in their lives and don’t care about you anymore.  But I care.  Deeply.  I’m making my sensitive, empathetic face right now.  If you stare really hard at your monitor you can probably make it out.  It looks kind of like this.)

Still, I appreciate that The Jaded JD, like any brand, established a reputation over its two years in the blog marketplace.  You may consider that reputation good or bad, but either way you deserve to know how reliable that reputation will be going forward.  (No, I am not going to reveal my true identity and I won’t confirm or deny guesses or hypotheses.  All the information I believe you’re entitled to know is in my TypePad profile.)

So what can the returning customer expect from The Jaded JD now?  Well, the tag line is my mission statement; it has not changed and neither will much of the content.  Sometimes there will be contemplative political and legal commentary from a centrist perspective.  There will be ranting now and then.  There will also be much silliness.  (The silliness is intended more to amuse myself than to amuse you but you’re welcome to come along for the ride.)  But regardless of the subject matter, The Jaded JD has always endeavored to rise above petty, partisan tribalism and puerile, schoolyard antics and I renew that commitment to my readers.  That is what I believe The Jaded JD brand stood for most.

On the other hand, the absence of some former contributors will mean that their preferred topics will receive less attention.  There will be less agonizing introspection on the nature of blogs and the blogosphere.  I’m pretty sure the issue of what blogs and the blogosphere are was settled before 2004—and is certainly settled now—so it’s well past time to dispense with those excruciating dialectics.  (People write blogs to be read and it’s possible to admit that fact without prostituting oneself to grow an audience.)  There may still be commentary on other bloggers’ behavior—but with fewer pedantic discourses on their grammar.

I realize that some folks who loved The Jaded JD Classic will inevitably embrace this new blog with the same distaste once reserved for New Coke or Crystal Pepsi.  If nothing but The Jaded JD Classic will do, I’m sorry that I can’t refresh you.  Your consolation prize is that once the directors have sorted out the content sharing agreement, many of the archived Classic posts you love will be republished here.  (This project should be complete by July 4th weekend.)  I can’t promise that I’ll be able to republish any archived content but my own, and what is republished will likely have been modestly revised, but you’ll just have to check back later and see.

I hope though that most returning readers will recognize my personal thread as part of the continuing pattern of The Jaded JD’s tapestry.  And I think that's enough narcissistic, self-referential posting for today.