Captain's Quarters -

Why Presidents Matter

The ascent of John McCain to the apparent Republican nomination has discouraged some conservatives, who have expressed a willingness to sit out 2008 and let a Democrat win the White House. They claim, hyperbolically, that no real policy differences exist between McCain and either Barack Obama or Hillary Clinton, and that having a Democrat take the blame for the coming debacle will make it easier to elect Republicans later. An interesting analysis of the direction of the Supreme Court in the Washington Post should serve as a reminder of one area that will turn out very differently:

The increasingly conservative court has said often of late that it is getting out of the business of finding a right to sue that is not explicitly stated in the law -- what lawyers call an "implied cause of action."

Two discrimination cases that the court heard last week, both concerning retaliation, made plain that a sizable number of justices are deeply resistant to finding such rights and to expanding those it previously recognized. ...

"I agree with you entirely that it would make sense to provide a cause of action for retaliation, but we don't write statutes," Scalia said. "We read them. And there's nothing in this statute that says that."

Chief Justice John G. Roberts Jr. wondered whether the court's respect for stare decisis should extend to cases it believes were wrongly decided, and Justice Anthony M. Kennedy said he could not find a way to read the law that gave plaintiffs the right they wanted.

The election will present American voters with real choices on policy, especially on taxation, foreign policy, expansion of government, and national security issues, despite the complaints of the disappointed. It also provides a stark choice on the direction of the judiciary.

At least two Supreme Court justices will likely leave in the next four years, both of them from the Left, John Paul Stevens and Ruth Bader Ginsburg. The election will determine whether the court continues to turn in a more constructionist direction, forcing policy back to Congress where it belongs, or whether activists can outlast the constructionists. Jurists nominated by Obama or Hillary will have a much different idea of the Supreme Court's role than those nominated by McCain.

Elections matter. The next President will have a mandate to determine the direction not just of the Supreme Court but the entire federal bench. Conservatives can either help ensure that the work begun to get the judiciary out of the policy-imposition business will continue or allow it to get reversed.

Nevada Supreme Court: NBC Can Choose Its Debate Participants

Much to the consternation of the people who flooded my comment thread with vitriol, the Nevada Supreme Court has reversed the lower court that tried to force NBC to include Dennis Kucinich in tonight's debate. As I argued, they not only found that the judge had violated NBC's free speech rights, they also found that the court had no jurisdiction:

The Nevada Supreme Court said Tuesday MSNBC can exclude Democratic presidential hopeful Dennis Kucinich from a candidate debate.

Lawyers for NBC Universal Inc., had asked the high court to overturn a lower court order that the cable TV news network include the Ohio congressman or pull the plug on broadcasting the debate Tuesday night with Hillary Rodham Clinton, Barack Obama and John Edwards.

An hour before the debate, the state Supreme Court's unanimous order said that blocking the debate unless Kucinich got to participate would be "an unconstitutional prior restraint" on the news network's First Amendment rights. The justices also said the lower court exceeded its jurisdiction by ordering Kucinich's participation even though he first requested and was denied relief from the Federal Communications Commission.

I guess everyone who flung personal insults in the prior thread will be apologizing to me in this one. Right? Right? Hello? Hello?

The courts and the government have no business telling broadcasters who they must include and, by extension, who they must exclude from presidential debates. NBC may have been foolish to exclude Kucinich -- it's arguable -- but that's their decision, and not the court's. They can answer to their viewers for those editorial decisions, and their partners in staging the debate can find a different broadcast partner the next time. If the government forces editorial decisions on NBC, then it violates their property rights on their productions and the free speech rights of the network to decide on their own content.

ADDENDUM: Oh, and when a court violates the First Amendment and its jurisdictional restraints to impose a result for the purpose of "fairness", that's exactly what we consider judicial activism.

Judge To NBC: You Can't Control Your Own Content

A solution in search of a problem found a judge in search of some understanding of the concept of private property and free speech. Both converged in Las Vegas through the efforts of Dennis Kucinich to force his way into the NBC Democratic debate. A Las Vegas judge ruled in favor of Kucinich:

A Las Vegas judge has ruled that democratic presidential candidate Dennis Kucinich must be included in the Tuesday night presidential debate in Las Vegas.

Kucinich filed a lawsuit against NBC. He said he was initially invited to be in the nationally televised debate but the offer was later rescinded. Base on the earlier invitation, Judge Charles Thompson ruled in Kucinich's favor saying if he isn't included, he will issue an injunction stopping the debate.

This won't hold up, but it may not be worth it for NBC to appeal. It will cost them less in legal fees and headaches to simply re-invite Kucinich rather than stand their ground and insist on controlling their own content. Given the short period of time, they may not get any relief through an appellate court anyway.

However, the judgement is absurd on its face. In the first place, the state courts wouldn't have jurisdiction for a national broadcast. Constitutionally, this case belonged in federal court, which has jurisdiction on any interstate commerce complaints. Kucinich filed his tort in state court hoping to find a sympathetic, activist judge who didn't know much about the law, and apparently succeeded.

More offensively, the courts don't have any business telling NBC or any other network that they have to include certain individuals in a debate. It may be a poor decision to exclude certain candidates, but the broadcast is the property of the network and it's their decision to make. The court apparently has no respect for private property in that sense.

The fact that Kucinich filed this lawsuit shows his unsuitability for office. He cynically filed the claim in the wrong court and pushed for government control over the speech, property, and assembly rights of NBC. He couldn't have demonstrated the danger he represents any better. (via the Political Machine)

UPDATE: Glenn Greenwald dissects my argument, and points out that "tort" is incorrect (among other points in his argument). I respect Glenn, but I'll wait for the appeal. In the meantime, be sure to read his response.

UPDATE II: Looks like the Nevada Supreme Court agrees with me, and not Glenn Greenwald. I'll accept apologies from the people who posted personal insults.

Topless Woman Propositions Man In Park -- And Who Gets Arrested?

Police have a tough job, especially when it comes to vice-squad details. They have to keep areas free of predators in order to allow law-abiding citizens to enjoy public places. However, they also have to take care not to entrap people in behavior that they ordinarily wouldn't commit. In Columbus, Ohio, it seems very clear they crossed that line:

Robin Garrison, an off-duty 42-year-old firefighter, was walking in Berliner Park in Columbus, Ohio, in May when he saw a woman sunbathing topless under a tree.

He approached her and they started talking and getting comfortable, the woman smiling and resting her foot on his shoulder at one point.

Eventually, she asked to see Garrison's penis; he unzipped his pants and complied.

Seconds later, undercover police officers pulled up in a van and arrested Garrison; he was later charged with public indecency, a misdemeanor, based on video footage taken by cops who were targeting men having sex or masturbating in the park. While topless sunbathing is legal in the city's parks, exposing more than that is against the law.

Right off the bat, the hypocrisy here is apparent. The police want to clean up the park -- and how do they do that? Have topless women laying around to attract supposed perverts. I can see where that would make the park so much more family-friendly than before this particular sting operation.

Undoubtedly, Garrison should not have exposed himself. However, would he have done so had it not been for the interaction with the "undercover" police officer? Rubbing his shoulder with her foot constitutes a serious come-on when done by a half-naked woman in public. Garrison only popped out Mr. Happy after that physical contact, which strongly suggests that Garrison thought this an unusual opportunity, not that he prowled the park looking for opportunities to expose himself.

Columbus should ask whether they have created more problems than they solve in these cases. Rounding up perverts who masturbate in public places is a good use of police resources and allows people to use community assets as intended. Having topless women laying out in the open and caressing men who act on understandable signals of sexual openness turns these places into precisely what they're hoping to avoid.

9th Circuit Supports Bush Administration On State Secrets Objection

The most liberal appellate court in the federal judiciary handed the Bush administration a big victory regarding its terrorist-surveillance program (TSP) at the NSA. A three-judge panel ruled unanimously that the administration correctly asserted its ability to protect state secrets in pursuing leads on terrorists. As the judges noted:

Having reviewed it in camera, we conclude that the Sealed Document is protected by the state secrets privilege, along with the information as to whether the government surveilled Al-Haramain. We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, and not to accept at face value the government’s claim or justification of privilege. Simply saying “military secret,” “national security” or “terrorist threat” or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. Sufficient detail must be—and has been—provided for us to make a meaningful examination. The process of in camera review ineluctably places the court in a role that runs contrary to our fundamental principle of a transparent judicial system. It also places on the court a special burden to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system. That said, we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.

Patterico has more on this development, including the opening they left themselves on a future ruling. It comes as Congress mulls its options on telecom immunity. That debate may be moot. (via Instapundit and John Stephenson)

Stoneridge: Legalized Fleecing Or Corporate Waterloo?

Bill Hobbs has followed the legal case of Stoneridge v. Scientific-Atlanta with his usual tenacity. The complex case pits trial lawyers seeking greater compensation for alleged corporate malfeasance towards investors against public companies already reeling from the effects of Sarbanes-Oxley. The Supreme Court will review the case this session, and the result will have a heavy impact on nearly everyone in this investor-heavy environment:

The issue in Stoneridge is simple: If a company that is traded on a U.S. exchange violates American securities laws by misreporting in its financial statements a transaction of any kind, may shareholders sue the entity on the other side of that transaction for the damages that the misreporting caused—even when there is no specific reference to the transaction at issue and it is subsumed along with hundreds of thousands of other transactions in the public company’s annual financial statements? ...

The issue is NOT: do these other companies get off free if they knowingly helped in the misreporting? The Justice Department and SEC have enforcement authority where they find that someone has aided and abetted a securities fraud. They bring actions and collect fines.

The issue is also NOT: can those who lost out in the fraud receive compensation? Following the Enron scandal, as part of Sarbanes-Oxley, Congress established a fund (called the FAIR fund) into which fraud fines are paid and which is used to compensate securities fraud victims.

The issue is SOLELY: does U.S. securities law allow private securities fraud suits against someone who does not make the statement that allegedly misled investors (other than the public company’s officers and directors, who are liable under existing law)?

Ted Frank of Overlawyered and AEI wrote about this in June He wondered why the Supreme Court granted certiorati for the appeal, and hopes it's just for the "me too" opportunity:

The case's facts are straightforward: Charter Communications purchased set-top cable boxes, but got back some of the money in the form of advertising bought by the vendors. Charter executives recorded the outgoing money as a "capital expenditure" (to be depreciated over several years) but the incoming money as revenue recorded within a single year, thus falsely inflating operating cash flow. Three Charter executives went to prison over the shenanigans. Plaintiffs' attorneys sued Charter and the executives, of course, but named as codefendants two of the vendors, Motorola and Scientific-Atlanta.

The suit makes little sense. The vendors had no say in how Charter accounted for or reported its transactions. Worse is the precedent it represents: How can a business function if it is potentially liable for hundreds of millions because those whom they trade with misreport a day-to-day transaction? The Supreme Court stopped such private "secondary liability" suits in Central Bank v. First Interstate Bank, a 1994 decision that Congress ratified the next year, explicitly rejecting private suits for "aiding and abetting" in the Private Securities Litigation Reform Act (repeating the rejection in the 2002 Sarbanes-Oxley Act.)

A federal court in Missouri dismissed the case against the equipment vendors, and the Eighth Circuit Court of Appeals affirmed that decision: Such liability would, the court said, create far-reaching "uncertainties for those engaged in day-to-day business dealings." Nevertheless, the Supreme Court has agreed to hear an appeal.

Why? The Court may—one hopes—be stepping in to reassert itself, since some courts have permitted plaintiffs' lawyers to whittle away at Central Bank. In the Enron litigation, for example, a federal court in Houston erroneously certified a class action after plaintiffs alleged investment banks doing business with Enron were "primary violators" of the securities laws—even though these defendants took huge losses when Enron collapsed. With plaintiffs claiming total liability of $40 billion, many banks caved when offered a chance to settle for less than a nickel on the dollar. Such a settlement is a better bargain than a 90% chance of winning at trial—a basic cost-benefit analysis the plaintiffs' bar counts on when bringing baseless litigation.

The expansion of the case to Motorola and Scientific-Atlanta makes no sense, as Frank reports. They had nothing to do with the fraudulent reporting of cash flow by Charter. The addition of the two vendors appears only to serve as additional "deep pockets" for trial lawyers to exploit.

We need to keep an eye on what the Court does with this case. If it overturns the appeal, it could be open season on secondary actors, which will inflate commercial risk exponentially. With businesses already overburdened by Sarbanes-Oxley auditing requirements, a requirement to audit one's customers seems to be going several steps too far.

Ted Frank will join me today to discuss this on Heading Right Radio at 2 pm CT.

Supremes To El-Masri: Tough Luck

The Supreme Court sent a message today about the use of American civil courts to attack war policy, and that message is not The Customer Is Always Right. Khaled el-Masri sued the US for what he claimed was an illegal detention and rendition that cost him five months in an Afghan jail, but the Supreme Court dismissed the case:

The US Supreme Court on Tuesday threw out a lawsuit from a Lebanese-born German national who claimed he was tortured after being kidnapped and detained for several months by the CIA.

The court did not give any reason for rejecting the case brought by Khaled el-Masri, an unemployed former car salesman and father of six, who says he was abducted by US agents in the Macedonian capital Skopje on December 31, 2003.

He was demanding an apology from the Untied States and 75,000 dollars in compensation, alleging he was flown to a prison in Afghanistan for interrogation before being released five months later in Albania, without any explanation.

The US administration had called on the Supreme Court to reject the case for reasons of national security, arguing it would reveal the secret activities of the CIA which could not be either confirmed or denied.

Seventy-five thousand doesn't seem like a lot of money, but the US couldn't allow Masri to set a precedent. The intel efforts would come to a standstill if every jihadi could file lawsuits against us for every slight, real or perceived. It would tie the intel bureaucracy in knots, keep analysts and covert operators pinned down for depositions, and shift focus from defending the country to defending the blizzard of court motions. That precedent could turn the judicial system into one of the most productive fronts of the war for our enemies,

Masri may well have had a good case for his lawsuit, under other circumstances. If, as he claims, he has no connection to terrorism and got abducted by the CIA in Macedonia and held for almost half a year of interrogation, he should be due some compensation. Unfortunately, with the kind of war we're fighting, we have to err on the side of our safety -- and we have to learn from our mistakes, too.

The Supreme Court made the correct decision in this case. This isn't a tort issue, it's a war issue, and the Supreme Court rightly protected the American civil system from becoming another venue for attack by terrorists.

UPDATE: I'll cop to being a little too glib about this. I think that Masri got screwed by the CIA and that some compensation wouldn't be out of order, and that $75K seems like a fair amount. However, the courts rightly determined that they can't give jurisdiction to anyone around the world for lawsuits in American courts for actions outside the US, especially against agents that are defending our national security.

The US can't just allow people all over the world to sue our intel operations to a standstill. It's not the optimal situation, but we do have a national interest in keeping personal-injury lawyers from wrecking our homeland defense systems. That to me outweighs the interest of Masri and the precedent his suit would have set.

UPDATE II: Now that the court has correctly denied this a tort venue, my guess is that it will shortly become a diplomatic issue -- which is where it probably belonged in the first place. The State Department will likely work out compensation when the Germans demand some satisfaction, and the matter will quietly disappear.

Another Dimension Of The Thomas Smear

I spent some time last night reviewing some of the transcripts from the "high-tech lynching" delivered by the Senate Judiciary Committee to Clarence Thomas, just to refamiliarize myself with the actual testimony and evidence. It almost felt like jumping into Peabody's Wayback Machine, only in this case the transcripts reveal the truth rather than a facile and inaccurate misrepresentation. Based on a momentary reference in Thomas' book, I reread the testimony of John Doggett, who had come to the panel to testify on behalf of Thomas -- and who ended up facing the exact same smear, from the same apparent authors.

Let me set the stage for readers. Doggett, a successful black attorney who knew both Hill and Thomas, had come to testify on Thomas' behalf -- and had done so with little issue. However, Senator Howard Metzenbaum's turn came up to start asking questions, and he immediately accused Doggett of being a sexual harrasser himself (page 562-3 of Part 4 of the transcripts):

Senator METZENBAUM. Mr. Doggett, I haven't had a chance to read the full transcript of your testimony that was given in the telephone interview with several staff members representing Senator Biden, Senator Heflin, Senator Thurmond, Senator Leahy and Senator Specter. But let me read you some portions of it, because I think we are talking about Anita Hill, and I think we need to also talk a little bit about Mr. Doggett, and this is a question to you:

Now, since we have received your affidavit and since your statement has gone public, the majority staff has received word from an individual who said she worked with you at McKenzie. Answer: Yes. And she has made some allegations concerning yourself. Answer: All right. And did she give you a name? Answer: She did. And we will move to that. I wanted to let you know where this line of questioning was going, to turn at this time. Answer: All right. I am not surprised. Question: This morning, we spoke with a woman named Amy Graham, who said she worked with you ... at McKenzie & Company, and I believe you started down there in August of 1981. Answer: That is correct. Let me tell you generally what her allegations were, and then I will ask you some questions, and then I will turn back to Ms. DeOreo, to follow up with some questions. Answer: All right. Question: Ms. Graham indicated that, on her first day of work, when she met you, along with other people in that office; first of all, very succinctly, do you remember Ms. Amy Graham? Answer: I do not. Question: You do not? Answer: I do not. Question: She claims that, on her first day at work, at some point in the day, I believe she said—I don't have the transcript available yet, but at some point during the day you confronted her in the hall, in front of an elevator, and kissed her on the mouth and told her that she would enjoy working with you very well. She also—Answer: You know, I also got—I deny that. I didn't remember the woman, and that is outrageous. I also got a message on my answering machine after you guys went public with my affidavit, saying "This is your Texas whore from five years ago." Somebody, I don't know, never met, who decided that she was going to claim to be my whore.

Question: Mr. Doggett, let me just tell you generally her allegation, and then I will give you adequate opportunity to respond. I think that, in all fairness, that you need to know what she said, and then you can respond overall. She also claimed that, during the time that she worked there—she was 19 years old when she began work, she is 29 years old now—she also claimed that at times, in front of the copying machine—and again, I am just going from my recollection, I don't have the transcript—that you would rub her shoulders at the copying machine. At the time, you suggested to her, "Oh, you are making copies, that is sort of like reproduction, isn't it?" She also said that some of your conversation dealt with sexual innuendo, there was sexual overtone in your talk. But what struck me, though, is she also said that you weren't in the office very much. So, first, if you could respond to Ms. Graham's allegations, and then I have some questions I want to discuss with you. I am still reading: Answer: I do not remember Amy Graham. If she was there, she was not there as an associate or as a researcher or as a consultant, but was there as a part of the secretarial staff. I never made any comments or statements to anybody like that. I never did anything like that, so I categorically deny it. I am, quite frankly, not surprised that somebody has come out of the woodwork to make a claim like this. That's the nature of this business.

Metzenbaum had broken the rules of the committee by reading unsworn testimony into the record. His staffers had tried to dig up dirt on Doggett before his testimony, and found a young woman who made unsubstantiated allegations of harrassment against Doggett, and whose version contradicted itself in several ways. The staffers then called Doggett and asked him about the allegations, who immediately and vehemently denied them. Metzenbaum had set Doggett up, but Doggett wasn't about to take it lying down:

Mr. DOGGETT. Senator, your comments about this document are one of the reasons that our process of government is falling apart. First of all, Senator, I have a copy of the statement that this person met—it is called a transcript of proceedings. But, Senator, if you read this, it is as telephone conversation that she has with some staff members pro and against Mr. Thomas, and she is not under oath. I did not do any of the things that she alleged. In fact, the first time any of these issues were raised was the day before I was supposed to come here, 8 1/2 years later. I knew when I put my information into the ring, that I was saying I am open season. For anybody to believe that, on the first day of work, for a woman working in the xerox room, who is 19 years old, a 33-year-old black man would walk up to a 19-year-old white girl and kiss her on the mouth as the first thing that they did, whoever believes that really needs psychiatric care. But let me talk about the facts, since you brought up this statement, which was not made under oath, which was not made consistent with any of the rules that you Senators are supposed to be responsible for, since this is the Judiciary Committee, let me talk about that, since you asked the question and went on and on and on. During that time that she—I have read this statement. If she had made it under oath, Senator, I would go to court, but

Senator METZENBAUM. This isn't her statement. I am reading from your statement, Mr. Doggett.

Mr. DOGGETT. The statement that you read from was a discussion with me, and consistently your staff people said, "I don't have the transcript, I don't remember the exact facts." Well, I have the transcript and the exact facts show this woman to be a profound liar who does not even remember the facts accurately.

Metzenbaum knew he wasn't allowed to enter the testimony of the woman into the record, because she had not submitted her testimony under oath. Metzenbaum instead used the underhanded method of taking Doggett's conversation -- also not under oath -- as a means to smear him publicly with the unsworn allegation. It was, as one Senator later complained, the same as if a staffer had told Doggett about a rumor that he beat his wife on a regular basis, and then entered it into the record to discredit Doggett regardless of the truth.

And for those of us who watched it, it seemed very similar to what was happening to Clarence Thomas at that exact moment -- and from the same people, too.

Doggett let Metzenbaum have it with both barrels:

Mr. DOGGETT. I will tell you, Senators, before I talk about the specifics, I debated, myself and with my wife, whether or not to start the process that resulted in me being here, because this is vicious, and I knew, since anything I said was going to raise the question about the credibility of Professor Anita Hill, as a lawyer, that meant my character was open season. I have never been involved as a candidate, although I have always said you can't complain about the process, if you're not willing to put your ass on the line—pardon me, I am sorry. I am sorry about that.

Senator METZENBAUM. Mr. Chairman --

Mr. DOGGETT. But I have said if you don't like the way the political process is, then you have to get into it and you have to get into the fray. So, I said, okay, if I submit this information to this committee, then I am open season and people are going to shoot at me, and I do not care. I have information I think the committee needs to hear. If they feel it is relevant enough for me to be here, I will be here and I will take whatever occurs. But I will tell you, sir, I have had lawyers and professional people in Texas and around the country say that I was insane to subject myself to the opportunity to have something like this crawl out from under a rock. They have said I should have just stood on the sidelines and let it go by. I am an attorney, sir

Senator METZENBAUM. Mr. Doggett --

Mr. DOGGETT [continuing]. I am a businessman and I cannot allow this process of innuendo, unsworn statements and attacks on characters to continue, without saying it is unacceptable.

If anyone doubted that there existed a concerted effort to commit character assassination in that proceeding, that portion of the testimony should have removed all doubt. The modus operandi was the same -- a sexual smear against a black attorney designed to discredit him. It again relied on unsubstantiated allegations, culled from an incident that purportedly occurred years beforehand. And it was designed to intimidate the target into withdrawing from the proceeding, and also failed.

It was the clearest example of McCarthyism since Tail Gunner Joe, and most people don't even know that it happened. The guardians of history have not seen fit to show exactly how unscrupulous Thomas' enemies were. It was despicable, and that was the entire Thomas confirmation process in a nutshell.

Ruth Marcus, Cherry-Picking

Ruth Marcus picks up the cudgel left by Anita Hill's earlier rebuttal to the memoirs of Clarence Thomas and tries to score a few points in today's Washington Post. Claiming that "Clarence Thomas is no victim", Marcus underscores her belief in Hill's version of events. She points to what she sees as corroborating evidence in the testimony of three witnesses to the Judiciary Committee hearing, claiming that Thomas deliberately omitted evidence from his account (via Bench Memos):

First, Hill did not wait 10 years to complain about his behavior. Susan Hoerchner, a Yale Law School classmate of Hill's, described how she complained of sexual harassment while working for Thomas, saying the EEOC chairman had "repeatedly asked her out . . . but wouldn't seem to take 'no' for an answer." Ellen Wells, a friend, said Hill had come to her, "deeply troubled and very depressed," with complaints about Thomas's inappropriate behavior. John Carr, a lawyer, said that Hill, in tears, confided that "her boss was making sexual advances toward her." American University law professor Joel Paul said Hill had told him in 1987 that she had left the EEOC because she had been sexually harassed by her supervisor.

Marcus is being disingenuous in this passage. She waited 10 years before taking action, which seems very strange indeed for someone who claimed to have been so traumatized. That was the objection to her wait for complaint -- and that time did damage to any intention of seeking the truth, because as any lawyer will know, waiting 10 years to take testimony or depositions makes them much less reliable, not more so.

Besides, Marcus leaves out some testimony herself. For instance, J.C. Alvarez flew back to Washington to testify a second time in front of the panel, because she could not believe her eyes and ears when Hill testified. Alvarez, who worked in the same office at the same time, had a few choice words for the panel:

No, Senators, I cannot stand by and watch a group of thugs beat up and rob a man of his money any more than I could have stayed in Chicago and stood by and watched you beat up an innocent man and rob him blind. Not of his money. That would have been too easy. You could pay that back. No, you have robbed a man of his name, his character, and his reputation.

And what is amazing to me is that you didn't do it in a dark alley and you didn't do it in the dark of night. You did it in broad daylight, in front of all America, on television, for the whole world
to see. Yes, Senators, I am witnessing a crime in progress and I cannot just look the other way.

Alvarez had more to say about her recollection of Anita Hill and Clarence Thomas:

On Friday, she played the role of a meek, innocent, shy Baptist girl from the South who was a victim of this big, bad man.

I don't know who she was trying to kid. Because the Anita Hill that I knew and worked with was nothing like that. She was a very hard, tough woman. She was opinionated. She was arrogant. She was a relentless debater. And she was the kind of woman who always made you feel like she was not going to be messed with, like she was not going to take anything from anyone.

Somehow Marcus failed to mention this testimony in her recollections of her coverage as a journalist. Nor does she recall the fact that Ted Kennedy tried to shut down the panel of witnesses on which Alvarez sat just after her scathing opening remarks. It led to an argument that lasted several minutes. When Alvarez got the opportunity to continue, she told them she knew what sexual harassment was, and how it made her feel about the men who conducted it:

You see, I, too, have experienced sexual harassment in the past. I have been physically accosted by a man in an elevator who I rebuffed. I was trapped in a xerox room by a man who I refused to date. Obviously, it is an issue I have experienced, I understand, and I take very seriously.

But having lived through it myself, I find Anita Hill's behavior inconsistent with these charges. I can assure you that when I come into town, the last thing I want to do is call either of these two men up and say hello or see if they want to get together. To be honest with you, I can hardly remember their names, but I can assure you that I would never try and even maintain a cordial relationship with either one of them. Women who have really been harassed would agree, if the allegations were true, you put as much distance as you can between yourself and that other person.

What's more, you don't follow them to the next job—especially, if you are a black female, Yale Law School graduate. Let's face it, out in the corporate sector, companies are fighting for women with those kinds of credentials.

Alvarez said this about Thomas:

The Clarence Thomas I knew and worked with was also not who Anita Hill alleges. Everyone who knows Clarence, knows that he is a very proud and dignified man. With his immediate staff, he was very warm and friendly, sort of like a friend or a father. You could talk with him about your problems, go to him for advice, but, like a father, he commanded and he demanded respect. He demanded professionalism and performance, and he was very strict about that.

Nancy Fitch, who also worked in the same office at the same time and with Thomas for nine years, had this to say about Anita Hill and Clarence Thomas:

There is no way Clarence Thomas—CT—would callously venally hurt someone. A smart man, concerned about making a contribution to this country as a public official, recognizing the gravity and weightiness of his responsibilities and public trust, a role model and mentor who would, by his life and work, show the possibilities in America for all citizens given opportunity, well, would a person such as this, Judge Clarence Thomas would never ever make a parallel career in harassment, ask that it not be revealed and expect to have and keep his real career. And I know he did no such thing.

He is a dignified, reserved, deliberative, conscientious man of great conscience, and I am proud to be at his defense.

Diane Holt worked closely with Anita Hill at the DoE and EEOC as his personal secretary for six years. She developed a friendly relationship with Hill, and never heard a word about harassment:

Both Ms. Hill and I were excited about the prospect of transferring to the EEOC. We even discussed the greater potential for individual growth at this larger agency. We discussed and expressed excitement that we would be at the right hand of the individual who would run this agency.

When we arrived at the EEOC, because we knew no one else there, Professor Hill and I quickly developed a professional relationship, a professional friendship, often having lunch together. At no time did Professor Hill intimate, not even in the most subtle of ways, that Judge Thomas was asking her out or subjecting her to the crude, abusive conversations that have been described. Nor did I ever discern any discomfort, when Professor Hill was in Judge Thomas' presence.

Additionally, I never heard anyone at any time make any reference to any inappropriate conduct in relation to Clarence Thomas.

Now let's go to the record of another Post journalist, written at the time of the confirmation hearings. Juan Williams had reported on the EEOC and Department of Education during the tenure of Thomas, and had written extensively on his work in government. As it turns out, Williams asked Hill to comment on Thomas before the hearings, and got a very different answer (emphases mine):

But that fair process and the intense questioning Thomas faced in front of the committee for over a week were not enough for members of the staffs of Sens. Edward M. Kennedy and Howard Metzenbaum. In addition to calls to me and to people at the Equal Employment Opportunity Commission, they were pressing a former EEOC employee, University of Oklahoma law professor Anita Hill, for negative information about Thomas. Thomas had hired Hill for two jobs in Washington.

Hill said the Senate staffers who calied her were specifically interested in talking about rumors involving sexual harassment. She had no credible evidence of Thomas's involvement in any sexual harassment, but she was prompted to say he had asked her out and mentioned pornographic movies to her. She rejected him as a jerk, but said she never felt her job was threatened by him, he never touched her, and she followed him to subsequent jobs and even had him write references for her.

Hill never filed any complaint agahst Thomas; she never mentioned the problem to reporters for The Post during extensive interviews this summer after the nomination, and even in her statement to the FBI never charged Thomas with sexual harassment but "talked about [his] behavior."

It's clear that Kennedy and Metzenbaum and their staffs created this smear, just as Thomas says in his book, in order to get him to withdraw his name from contention. Not only did they seek out Hill, they coached her what to say and when to say it. The woman who called Thomas several times between her departure from the EEOC and his marriage in 1987 had nothing to say to Post reporters when first asked about Thomas' nomination.

These are other items of evidence that Marcus omits from her review of the Thomas case. As a journalist, shouldn't she be interested in all of the evidence? Shouldn't she ask herself the same question that Alan Simpson asked Judge Susan Hoerchner, a completely hearsay witness, at the end of her testimony?

So, here is, this foul, foul stack of stench, justifiably offensive in any category, that she was offended, justifiably, embarrassed, justifiably, and that she was repelled, justifiably. And I ask you why, then, after she left his power, after she left his presence, after she left his influence and his domination or whatever it was that gave her fear—and call it fear or revulsion or repulsion—why did she twice after that visit personally with him in Tulsa, OK, had dinner with him in the presence of others, had breakfast with him in the presence of others, rode to the airport alone with him in the presence of no one, and we have 11 phone calls initiated by her from 1984 through the date of Clarence Thomas' marriage to Ginni Lamp, and then it all ended and not a single contact came forward.

It all adds up to a deliberate character assassination campaign. If one looks at all of the evidence, as Marcus insists, one cannot come to any other conclusion. Only when people cherry-pick for hearsay testimony and one witness who had an axe to grind against Thomas for firing her can one believe Hill's version of events.

Sauce For The Goose

Anita Hill takes to the pages of the New York Times to answer Justice Clarence Thomas' memoirs -- and becomes an inadvertent ironist. After waiting sixteen years to tell his side of the story, Hill accuses Thomas of throwing unsubstantiated allegations at her. Anyone who watched the Thomas confirmation process should fall into gales of laughter at this cri de coeur:

In the portion of his book that addresses my role in the Senate hearings into his nomination, Justice Thomas offers a litany of unsubstantiated representations and outright smears that Republican senators made about me when I testified before the Judiciary Committee — that I was a “combative left-winger” who was “touchy” and prone to overreacting to “slights.” A number of independent authors have shown those attacks to be baseless. What’s more, their reports draw on the experiences of others who were familiar with Mr. Thomas’s behavior, and who came forward after the hearings. It’s no longer my word against his.

Justice Thomas’s characterization of me is also hobbled by blatant inconsistencies. He claims, for instance, that I was a mediocre employee who had a job in the federal government only because he had “given it” to me. He ignores the reality: I was fully qualified to work in the government, having graduated from Yale Law School (his alma mater, which he calls one of the finest in the country), and passed the District of Columbia Bar exam, one of the toughest in the nation.

Well, let's see. I recall that it was Hill who went to the Judiciary Committee with a litany of unsubstantiated representations and outright smears in 1991. The committee had noted the lack of substantiation and had dismissed her effort until someone leaked it to the press. Her colleagues testified that they had never witnessed any of the events or any other harrassing behavior from Thomas when they came before the committee. In fact, at the time, the other women who worked for Thomas testified to his professional mien in the office.

Hill then goes on to say this:

It’s worth noting, too, that Mr. Thomas hired me not once, but twice while he was in the Reagan administration — first at the Department of Education and then at the Equal Employment Opportunity Commission. After two years of working directly for him, I left Washington and returned home to Oklahoma to begin my teaching career.

It's worth noting that Hill followed Thomas to the EEOC despite having purportedly been harrassed by Thomas at Education. Why did she do that, if Thomas made her workplace miserable? She could have stayed at the DoE when Thomas left and been rid of his supposedly creepy behavior. As she takes great pains to point out, she had plenty of other career opportunities without Thomas' assistance.

And why didn't Hill -- who takes great pains to review her CV in this essay -- ever file a complaint against Thomas at the time of the harrassment? She waited almost ten years to say anything, despite being a Yale grad who could and did make her own way in the world. She worked at the EEOC, after all, and would have had knowledge of how to address the kind of debilitating harrassment that Thomas supposedly directed at her. Yet she said nothing at all about Thomas' behavior until it became convenient for those Democrats looking to derail Thomas' confirmation to the Supreme Court.

Coming forward after ten years does not build credibility. Hill, as a lawyer, should understand that evidentiary evaluation. Old, unsubstantiated allegations only have credibility among those who use them for political purposes. Contrast Hill's reception to that of Paula Jones and her allegations of indecent exposure and sexual harrassment against Bill Clinton. Unlike Hill, Jones made her complaint contemporaneously, and pursued legal action through the channels that Hill espouses in this column after the incident got publicized. All of the same people who lined up behind Hill against Thomas didn't just ignore Jones, but called her every name in the book, including "trailer trash". Hill, who thinks that she helped lead an evolution in how harrassment gets treated, somehow neglects to mention Jones as part of that evolution.

Now she wants to cry that Thomas has attacked her in his memoirs, and without what she sees as substantiation. Sixteen years still hasn't taught Hill much, apparently including the "sauce for the goose" proverb.

An Evening With Justice Thomas

Earlier this evening, I attended a two-hour dinner event at the Heritage Foundation with Justice Clarence Thomas, his wife Virginia, and a small number of other bloggers and New Media members. It confirmed for me that the media has never gotten a grasp of the man under the robes, possibly because they have not spent even the small amount of time with him that we did tonight and that Steve Kroft did with his 60 Minutes interview -- and they have missed a real story from that failure. And while the nominal reason for the evening was his book launch -- and we each received autographed copies -- it turned into a wide-ranging conversation that had little to do with the book.

The evening started with Justice Thomas greeting us, taking pictures and chatting us up a bit. He asked me what I wrote about at Captain's Quarters, and I replied, "Just about anything -- politics, culture, foreign policy, and Notre Dame football," at which he let loose his unique gust of laughter. "Notre Dame football?" he asked incredulously. "You'd better stick with foreign policy this year!" (Obviously, his wisdom came through immediately.) The twenty or so people who attended the dinner all had a similar experience; Justice Thomas made a great effort to put us at ease, which he did all night long.

He told us that he had deliberately wanted to spend the first day of his book launch with New Media journalists, noting specifically that he felt good about avoiding the Supreme Court press on the occasion. Thomas explained that he wished we'd been around in 1991, that we could have made sure that the facts of the case came to light. We could have worked around the mainstream media narrative, he told us, and stated several times that he was very impressed with the work we did.

The book represents his effort to reach people through his life story, Thomas explained. He has now reached a point in his life where he wants to let go of some tasks, such as travel and outreach efforts which have taken up most of his spare time from the Court. He has tired of the grind and wants to spend more time with his family. He loves his work on the Court, however, and sees himself remaining on the court for the rest of his life. In fact, Bill Kristol teased him about running for President, and I believe his exact words were, "Oh, hell no."

Thomas had that kind of blunt speaking style, but without any rancor or bitterness. He came across as a man who had nothing left to prove and no criticisms to answer. In fact, Thomas mentioned that he has never had any unpleasantness in his personal appearances. A couple of times at universities, faculty members have walked out on him -- "it's always the faculty and never the students," he emphasized -- and said, "Whoop-de-doo! Cowards run. It's what they do."

He got perhaps his biggest laugh when answering one of my questions. I had asked him if he agreed that some justices have "grown" on the bench, without being specific, although Kristol encouraged him to get very specific. Thomas demurred on the specificity, but took some time to give a thoughtful answer. He agreed that the phenomenon exists, and that he sees it as a pressure of incentives and disincentives. Some justices worried about how law schools and other elites will perceive them, and begin to develop opinions with an eye to prestigious invitations and awards -- and the punishing lack of same if they do not evolve towards the accepted wisdom of academics. "I wouldn't get an invitation from Columbia University unless I was a Middle East dictator with nuclear weapons," he gave as an example, again with his trademark booming laugh.

My lasting impression of Clarence Thomas is this: he is his own man, and he is beholden to no one. With that, he has the confidence and self-satisfaction that allows him to be engaging, gracious, honest, and open. That the media and a good part of the nation could have missed this amazing and impressive man should anger and sadden the American populace. I will not ever forget the dichotomy between the public image of Clarence Thomas and the real human being I met tonight.

UPDATE: Other bloggers have started posting about the meeting. Kate O'Beirne has a post up at The Corner, and my friend Paul Mirengoff has his remarks at Power Line. Be sure to read these -- we have all keyed on different aspects of the evening.

The Jurors Of La-La Land

Let's take a scenario that could come from a badly-written murder mystery. A man with a history of threatening women with handguns walks out of his house, blood on his clothes, holding a gun, and tells his driver, "I think I may have killed someone." Inside the house, the body of a woman the man just met at a nightclub lies slumped in a chair, dead from a gunshot wound to the mouth. When police arrive, the gun somehow has ended up under the dead woman's ankle, and the man tells the investigators that the woman grew despondent and killed herself -- with his gun, despite never having been in the house before.

Think it takes Sherlock Holmes to solve that mystery? It does if the killing takes place in Los Angeles and involves a celebrity:

The murder trial of Phil Spector ended today with the jury unable to decide if the legendary music producer killed an actress he had known for only a few hours before her body was discovered in the foyer of his Alhambra mansion.

On its 12th day of deliberations, the jury of nine men and three women told Superior Court Judge Larry Paul Fidler that it could not reach a verdict and was split 10 to 2 after six ballots. The majority position was not given in open court, but jurors afterward said 10 favored conviction.

The final count was a shift from the earlier deadlock of 7 to 5.

The jurors were asked by the judge if there was any hope of reaching a verdict. Each "no," dropped like an anchor into the hushed downtown Los Angeles courtroom where the often trembling Spector, 67, has been on trial since the end of April.

When I was in the Los Angeles area last week, I warned friends and family that a Los Angeles jury would not convict a celebrity, not even a second-rate star like Phil Spector. It didn't give me much pleasure to say it, and even less to be proven correct. However, when it comes to celebrities, juries in LA throw common sense out the window and bend over backwards to find reasons to acquit.

At least this jury just hung. It didn't acquit Spector, like LA juries have done with OJ Simpson, Michael Jackson, and Robert Blake. The district attorney has the option to retry the case, and the DA's spokesperson has confirmed they will refile charges immediately. There remains some small chance that Lana Clarkson's family can see a measure of justice.

The evidence and the circumstances both point to Spector's obvious guilt. Five women testified that Spector had held guns to their heads, threatening to kill them if they left. Nine others were blocked from testifying by the judge, who felt the jury had gotten the point. The gun belonged to Spector. His driver testified to his statement, and also that Spector had the gun in his hand before the police arrived, which strongly indicated that Spector had manipulated the crime scene. He had blood on his clothes, a spatter pattern that showed he was close to the shooting when it occurred.

So what kept two Los Angeles jurors from convicting Spector? One complained that the prosecution never provided a psychological profile of the victim to rebut the defense's claim that she committed suicide. Clarkson, who had to be cajoled into going to Spector's home in the first place, supposedly was so despondent that she opted to commit suicide in someone else's home, a place she had never before been, and supposedly figured out where to find Spector's gun. They discounted the driver's testimony because he's Brazilian, and the fountain was too loud outside, even though the driver's story has remained consistent all along.

This should demonstrate the difference between reasonable doubt and irrational doubt. It also shows that celebrities get a different brand of justice than everyone else in LA. It's gone beyond coincidence to a pattern.

The Trinity Of Originalism

Conservatives often argue that they support originalism in judicial temperament. That term has fallen a little out of use in favor of judicial modesty, as expressed by Chief Justice John Roberts during his confirmation hearing. Others use "strict construction" instead, which, strictly speaking, is not synonymous, but prefers a strict textual reading rather than flexible application.

However, David Schraub at The Debate Link has delved further into originalism to discover three distinct lines of thought within that philosophy -- and some aspects in each contradict the others:

Nonetheless, some folk do at least purport to assign originalism some special interpretative value. Unfortunately, many of them seem to have but a weak grasp of what originalism actually entails. For one, they often blend "originalism" and "textualism", when the two are actually very different things and often radically opposed to each other. But in this post specifically, I'm going to try and deal with the fact that the unitary category "originalism" actually is splintered into at least three different interpretative approaches, ones that have some commonalities but have important differences as well. The three are "original intent", "original meaning", and "original understanding", and at the very least someone who claims to be an "originalist" needs to clarify which of the three schools they are an adherent to.

Schraub does a good job in explaining each of the three categories in lay language, and it's well worth a read. I found myself generally rejecting a complete agreement with any of the three tracks he describes, although I probably had more sympathy with original understanding than the other two. After all, when we look at the language used in the Constitution, we would hope to follow what the founders understood they had created, rather than an interpretation from an entirely different context.

However, the entire worthy exercise that Schraub creates gave me even more appreciation for a strict textual reading of the Constitution, as well as laws in general. Trying to determine the intent of a law leads automatically to interpretation. As Schraub points out, once one acknowledges a need to interpret law rather than rely on the obvious textual meaning, no matter how limiting that might be, then there is no longer any nonpartisan reality to law or legal philosophy. One drifts from one philosophy to another depending on the issue and the allies one has on each.

Strict construction rejects interpretation. If the Constitution doesn't directly address an issue, then the legislatures at the state and federal levels have to address the issue instead. If Congress (as an example) writes a law poorly, it's not up to the courts to rewrite it. The FISA court rejection of the warrantless access of the NSA to international calls passing through American switches is a good, if uncomfortable, case in point; the court did the right thing by forcing Congress to take responsibility for the dated obstacle their law created. If courts did that on a regular basis, it would force politicians to set policy through consensus rather than having it imposed by fiat by unelected and unaccountable judges and justices.

I'd like to hear from David whether he supports any of the originalist philosophies, and why or why not, in a follow-up post.

Southwick Nomination Reported To Full Senate

The Senate Judiciary Committee finally voted to recommend confirmation of Judge Leslie Southwick to the appellate court this afternoon, on a 10-9 vote where Dianne Feinstein crossed the party line. Mitch McConnell's office sent out the following statement:

“With today’s vote to send Judge Southwick’s nomination to the Fifth Circuit Court of Appeals to the full Senate, the Judiciary Committee took a step forward in ensuring we are able to confirm qualified judges to our nation’s courts. Judge Southwick is an outstanding jurist, and a bi-partisan majority judged him on his record of service.

“Judge Southwick, an Iraq war veteran, is superbly fit to continue serving his country, this time on the Fifth Circuit. His colleagues know this, as do his home-state senators. The American Bar Association knows this; it has twice given him its highest rating, ‘well-qualified.’ Even Democrats on the Judiciary Committee know this; just last fall all of them—again, all of them—looked at his record and approved him for a lifetime position on the federal bench. With today’s bi-partisan committee vote for Judge Southwick’s nomination, the full Senate should now move forward to his consideration on the Senate floor.”

Southwick can thank McConnell for this progress. Frustrated at the way Democrats reneged on their promise to move judicial nominations, McConnell took the unusual step of offering a sense-of-the-Senate resolution on Southwick's nomination, in order to embarrass Pat Leahy and show that he has majority support in the full Senate. Leahy added Southwick to the agenda, not without a lot of grumbling about McConnell's parliamentary tactics.

This is a rare bit of good news for the Bush administration. Southwick has defended his country and served well on the bench, and deserves confirmation. Thankfully, the Senate can get at least this much accomplished.

UPDATE: Be sure to read this post by the Generalissimo, Duane Patterson. Apparently, Chuck Schumer almost swallowed his face. He also points out that if Harry Reid tries to stuff the confirmation vote, he'll find comity at a microscopic level.

McConnell To Force Consideration Of Southwick

A source on Capitol Hill tells me that Senate Minority Leader Mitch McConnell plans to force consideration of Judge Leslie Southwick's nomination to the appellate court in the next few minutes. Stay tuned!

UPDATE: It looks like the debate on this has already started. Pat Leahy is arguing that the Republicans have not asked him to put Southwick's nomination on the agenda, but that he has done so for tomorrow anyway. He says Republicans "pocket vetoed" 61 Clinton administration appointees, and used one of them -- unnamed -- to accuse them of racism.

UPDATE II: McConnell introduced an amendment asking for the sense of the Senate on Southwick's nomination. McConnell apparently wants to show that Southwick would gain a majority for his confirmation on the Senate floor.