Advisory Opinion

Defending the Filibuster

George Will is defending the right of the Senate minority to filibuster.  As much as I dislike the Democrats' current tactics over Bush's judicial nominees, it's hard to disagree with Will's basic point:  Someday the Republicans will again be in the minority.  Will's solution?

The president should renominate all 10 appellate-court nominees who have been filibustered, and he should vow, like General Grant, to "fight it out on this line, if it takes all summer." Norman Ornstein, a student of these things, says Senate Republicans could force Democrats to conduct the kind of filibuster Southern Democrats conducted against civil-rights legislation in the 1950s—talking around the clock, the obstructionists and their opponents sleeping on cots in the Capitol, the Senate paralyzed. There has never been such a spectacle in the era of C-Span and saturation journalism on cable 24 hours a day. Do Democrats want to make 2005 the year of living dangerously? Seventeen of their 44 seats are at risk in 2006—five of them in states Bush just carried.

I agree.  Beat them within the current rules.

Gitmo Case

Eugene Volokh (see here, here, and here) and Professor Bainbridge have serious problems with the Supreme Court's decision concerning the al Qaeda types held at Guantanamo Bay. And rightly so.

Considering Law as a Profession?

The Anal Philosopher has posted a reader's letter asking "what major would be most useful for law school." I'm going to offer some unsolicited advice: Don't do it!!!

Seriously though . . . don't do it! Okay, I'll be serious now. I'll let Keith opine on majors, and I'll offer some other advice. Don't do it!

Understand that many lawyers don't actually like practicing law. Much of the work is actually not that interesting and the hours and lifestyle are typically grueling. Lawyers are paid to worry about potential problems and to fight. Is this how you want to spend your time -- very much of your time mind you? If I had to do it over, I would study either finance and math and then go into the financial world, or I would find something that I truly loved and find a way to make a living doing it.

But if you think you really want to practice law, find out what lawyers actually do. Many people go into law without knowing what lawyers really do, and I believe that is why there are so many unhappy lawyers. So do this: Go get a job as a paralegal with the type of law firm or other legal employer that does what you think you might want to do as a lawyer. You could even take a job as a secretary. Work there for a while -- at least six months or so -- and find out what the lawyers actually do in their very long days. It might surprise you. Ask the lawyers whether they like what they do, but only after you have become friendly and they trust you enough to tell you how they really feel. Again, the answers you get might surprise you. After you do that, then decide whether you want to go to law school.

Having said all of that, there are good law jobs out there. And there are lawyers who really like what they do. But there are also many who don't and who would do something else if they had to do it all over again.

Only in New York City

A judge ordered a defendant to leave a Queens courtroom through a side door yesterday so he could elude a detective waiting in a hallway to arrest him in a separate robbery case, the police said. The judge's action prompted the police commissioner to call for a judicial misconduct investigation.

The defendant, Derek Sterling, was appearing before the judge, Justice Laura D. Blackburne of State Supreme Court in Queens, for a routine update about his progress in a drug treatment program that he had been sent to after a drug arrest. Justice Blackburne was apparently irritated with the detective's arrival at her courtroom and accused him in the record of misrepresenting himself. . . .

According to a transcript of the hearing, Justice Blackburne then said to Mr. Sterling, "I understand that there is a detective on the premises who has some reason to believe that he ought to arrest you."

"I resent the fact that a detective came to this court under the ruse of wanting to ask you questions when, in fact, he had it in his head that he wanted to arrest you. If there is a basis for him arresting you, he will have to present that in the form of a warrant," she said, according to the transcript.

And so she let the defendant escape through a side door. Only in New York City. Well . . . I could imagine this happening in D.C. and San Francisco too. Thankfully, the defendant has since been apprehended.

Rethinking the Geneva Conventions

Alan Dershowitz has some reasonable thoughts on the Geneva Conventions.

Law Firm Practice

Volokh has a cartoon posted that will tell you something about what it's like to be a lawyer at a large law firm.

Repeal the 17th Amendment?

Zell Miller, a fine Democrat and extraordinarily solid senator, is retiring this year. He is also calling for the repeal of the 17th Amendment. Bruce Bartlett writes:

On April 28, Sen. Miller, the last genuinely conservative Democrat we will likely ever see in the Senate, laid the blame for what ails that august body at the door of the 17th amendment to the Constitution. This is the provision that provides for the popular election of senators.

Few people today know that the Founding Fathers never intended for senators to be popularly elected. The Constitution originally provided that senators would be chosen by state legislatures. The purpose was to provide the states — as states — an institutional role in the federal government. In effect, senators were to function as ambassadors from the states, which were expected to retain a large degree of sovereignty even after ratification of the Constitution, thereby ensuring that their rights would be protected in a federal system. . . .

When senators represented states as states, rather than being super House members as they are now, they zealously protected states’ rights. This term became discredited during the civil-rights struggle of the 1960s as a code word for racism — allowing Southern states to resist national pressure to integrate. But clearly this is an aberration. States obviously have interests that may conflict with federal priorities on a wide variety of issues that defy easy ideological classification. Many states, for example, would probably enact more liberal laws relating to the environment, health, and business regulation if allowed by Washington.

Senator Miller's idea -- in our time when most if not all Democrats and at least some Republicans seem to believe that the federal government is the most logical vehicle to solve virtually all putative problems -- will undoubtedly have no legs whatsoever. But if repealing the 17th Amendment would carve back the power of the federal government, I'd certainly be all for it.

The Patriot Act -- What's in it?

Hon. Michael B. Mukasey, the chief judge of the U.S. District Court for the Southern District of New York, has an informative piece at the WSJ that is a must read for anyone interested in the Patriot Act: "Like any other act of Congress, the Patriot Act should be scrutinized, criticized and, if necessary, amended. But in order to scrutinize and criticize it, it helps to read what is actually in it." Indeed. Read the judge's piece to find out.

Some Lawyers Will Say Anything

Get this:

AMMAN, Jordan - Saddam Hussein's attorneys are concerned about his welfare after seeing how some Iraqi prisoners were being treated by their U.S. guards, one of the lawyers said Monday.

"We are deeply concerned and worried about his security, how is he treated and how is he living," Mohammad Rashdan told The Associated Press. "We are very worried." . . .

"The torture is systematic, and the leaders of the occupation know it, so it is not only a small bunch of soldiers," he said.

Please.

People dislike lawyers -- among other reasons -- because they behave disingenuously. Some will say almost anything to get what they want. And what do they want most of all? To win.

Take the above statement by Saddam's lawyer. He says the "torture is systematic," "the leaders of the occupation know it," and "it is not only a small bunch of soldiers." He, like the rest of us, has no way of knowing those statements are objectively true. But that doesn't stop him from uttering them. Thus, while the statements are his opinion at best, he doesn't preface them with "I believe," "I think," or "I suspect." He states them as fact.

Notice I say that his statements are his opinions at best. That is because, actually, one can't even be sure those are his opinions; he may very well believe the statements to be untrue. Some lawyers are perfectly willing to say all sorts of things they believe to be untrue. They justify such infidelity to the truth as vigorous advocacy for their clients. And they do so self-righteously.

This is especially true for statements of opinion and mixed statements of fact and opinion -- as opposed to pure statements of fact. For opinion statements and mixed statements of fact and opinion, some lawyers believe they are merely presenting their clients' positions -- they need not believe a statement to be actually true to say it. In the such lawyers' minds, they are not the arbiters of truth, that is the job of judges and juries. They are just their clients' mouthpieces.

But with pure statements of fact -- i.e., the car is red -- lawyers are generally more careful. The reason is obvious -– if a statement is purely factual, it is likely that the truth either can easily be determined or at least will be ascertained one day. Therefore, a lawyer is likely to be caught in a lie at some point if he doesn't tell the truth today. It is for this reason that criminal defense lawyers, for example, may purposefully avoid learning whether certain facts are true (for instance, whether their clients murdered their alleged victims), precisely so they can make their clients' arguments for innocence without knowing them to be untrue. Such lawyers simply won't ask their clients about the truth.

It is true, though, that lawyers are substantially more circumspect in judicial proceedings, as there are real consequences if a judge determines that he is being lied to by a lawyer. They are, by contrast, more careless with their words in the press and elsewhere.

So when I hear a lawyer advocating for his client and he is not speaking in a judicial proceeding, I think to myself: "Words, words, words, words, words."

Teamsters Corrupt?

The former federal prosecutor who heads the Teamsters' internal anticorruption program resigned yesterday, along with 20 other investigators and lawyers involved in that effort, saying the union's president was not fully committed to fighting corruption.

The former prosecutor, Edwin H. Stier, sent a sharply worded letter that accused James P. Hoffa, the Teamsters president, of blocking a broad investigation into possible union corruption in Chicago and of dragging his feet in a case of alleged embezzlement by a Teamsters leader in Houston.

"In spite of our efforts to convince General President Jim Hoffa to remain committed to fighting corruption," Mr. Stier wrote, "I have concluded that he has backed away from the Teamsters' anticorruption plan in the face of pressure from self-interested individuals."

The anticorruption program was created five years ago by Mr. Hoffa in an effort to persuade the federal government to abandon its longtime oversight of the union. The Teamsters had agreed to far-reaching federal supervision in 1989 to settle a federal racketeering lawsuit charging the union with being controlled by organized crime. The resignations could jeopardize the union's push to end federal oversight.

In addition to the investigators and lawyers, a 10-member advisory panel also resigned. That panel included many former top federal officials and investigators who had spent years fighting organized crime.

The entire article from the NY Times is pretty amusing.

Hmmm . . . I had thought that most everyone was basically in agreement that organized labor exists, in this day and age at least, fundamentally for corrupt purposes. Perhaps I'm just out of touch.