What Might Have Been . . .

Justice Sandra Day O’Connor and Chief Justice William H. Rehnquist (Photos via Library of Congress)

To be specific, Sandy, will you marry me this summer?

— William H. Rehnquist, then a law student at Stanford Law, in a letter where he proposed to his then classmate, Sandra Day. Day turned town Rehnquist’s proposal and later married a different classmate, John O’Connor. Rehnquist and O’Connor later served on the high court together, and remained friends their entire lives.

HT: Above the Law 

Quibbling

Donald Trump is 78.3% down the path he’s been following from failed real estate investor/non-stop grifter/reality TV star to fascist dictator of the United States of America. To quibble over whether any of the possible Democratic candidates who could throw a roadblock into that path would be a better president than any other seems like trying to pick the most stylish lifeboat on the Titanic.

Sometimes all you can do is just tip your cap.

"Standing"

I wrote this for the Speedway Town Talk, and I figured I'd post the un-edited version here:

I was approached recently[1] by a guy who “almost” hurt himself when slipping in a store, and another guy who was cut off by a truck driver “who could’ve killed someone.” Of course, in my line of work, the first question they asked me was whether they could bring a lawsuit.

                The answer is, generally[2], “No. You can’t.” My reason? “You don’t have standing.” The logical next question is, “What is standing? What does that mean?”

                Well, the answer is simple and infinitely complicated. Having standing means that you’re not asking the court to decide a hypothetical question. It means that you have actually been wronged and, at least assuming you can prove your allegations, are entitled to and can expect redress for your injury.

It means that the guy who almost hurt himself when he slipped in the store hasn’t been wronged and isn’t entitled to anything by the court; the guy who was cut off by the trucker wasn’t killed or hurt in any way . . . it’s not his fight. The doctrine of standing has nothing to do with the actual “merits” of the case. It doesn’t decide whether the store where the guy slipped was negligent; it doesn’t address whether the trucker was indeed driving like a maniac. It just asks whether there is an actual controversy to be decided by the courts.

                To have standing, one must generally demonstrate three things: (1) the Plaintiff suffered an “injury in fact,” i.e. a concrete, discernable injury, as opposed to a hypothetical or conjectural one; (2) the injury noted in element #1 is fairly traceable to some conduct of the defendant; and (3) a favorable judgment in court would fairly address the injury. See the late Justice Scalia’s opinion in Lujan v. Defenders of Wildlife if you are interested in more reading on the matter.

                As a fine (yet absurd) example, I can’t sue Satan (yes … the actual Prince of Darkness) for enticing Adam to eat the apple and thereby harming humanity, of which I am a member. Even if the Supreme Court of the U.S. sides with me, my injury is “non-justiciable.” There’s nothing they can do.

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[1] Which is to say, “In my lifetime.”

[2] As always, this is not legal advice, as the world offers infinite circumstances that are open to interpretation.

I would like to point out that one of the reasons I write about standing is the overwhelming desire by so many people to insert themselves into a controversy even though it's not their controversy. I wrote recently about people trying to drive the new pet store in Speedway out of existence. It's not their controversy. I hear about people who want to do "something" about the way Zore's drivers drive. It's not your controversy.

Bottom line: if you don't have standing, then butt out.

Lives v. Livelihoods

I play in a few rock n' roll bands for charity. One of the bands has a part-time member who is a bona fide professional musician. Other than the varying talent levels, what is the difference between myself and the bona fide professional musician? I will only play music that I like. The pro will play whatever he gets paid to play.

I presume this is because music is my love (and possibly/probably his as well) but it is his livelihood. If he doesn't play what people pay him to play, people don't pay him; he doesn't earn his living. If I don't, I simply go back to practicing law, which I was going to do anyway.

When it comes to law, I take plenty of cases I don't particularly love, because it's my job.

I have noticed that a lot of people have made a sport of bashing the Speedway Animal House. Full disclosure, I am not an animal lover. However, I think that too many people are applying their own sense of morality, attributable to their own love of animals and pets, to the business practices of Speedway Animal House.

I don't like mushrooms, "eggs" that come in a milk carton "pre-scrambled," canned gravy, or paper-thin bacon. That's why I don't eat at Charlie Brown's anymore. I eat at Flap Jacks on 10th Street, which I find to be a much superior choice. I don't go out of my way to bash Charlie Browns for the type of food they sell. Maybe somebody likes it?

I don't like "solid state" amps. I don't bash every guitar store on earth for carrying them. I just don't buy them.

My bottom line is that people need to leave the Speedway Animal House the hell alone if they don't like it. If you  don't like a business' practices, don't shop there. Don't expect a business owner to necessarily care as much about your passion as you do; a business exists to make money, not push anyone's moral crusade. Assuredly there are tons of better targets for our moral protests in the world of corporate America (oil and other chemical companies polluting our air, water, and ground; Big Pharma actively pushing and marketing opioids to the masses, to say nothing of Big Tobacco's track record; arms manufacturers selling their wares to dictators . . . just to name a few). Leave the local business alone; if people don't want to shop there, they won't. If they do, then the proprietors of Speedway Animal House are entitled to carry forth with their legal business.

If you have nothing better to do than drive a locally owned business underwater, you need to find a new hobby. Pardon my rant.

Brett Kavanaugh - Where We Are

Either reader of this blog knows my feelings on Donald Trump, movement conservatism, and the national Republican party. It will come as no surprise that I oppose Brett Kavanaugh's elevation to the Supreme Court.

I also believe that whether he is ultimately confirmed or if it is somebody else on Donald Trump's infamous list of Federalist Society Reactionaries, the legal outcomes will be the same.

So, I can't help but ask why the numerous defenses of Judge Kavanaugh from the right? Regardless of whether Kavanaugh or someone else on the list is confirmed, we can be assured that this 5-vote conservative majority will:

• refuse to find any burden, whatsoever, to be "undue" under the Casey test;
• will likely continue to create exceptions to, if not wholly repeal, the exclusionary rule;
• will hamstring the ability of administrative agencies to participate in rule-making and adjudication, effectively rendering them toothless advisory boards;
• continue to use the 1st amendment as protection against pretty much any meaningful regulation of either the economy or political spending; and
• elevate the 2nd Amendment to the level of sacrosanct and essentially (to the extent it has not already been done) read out the part about "a well-regulated militia."

All of these are longtime conservative policy goals. All of these goals would be advanced by pretty much any one of the Federalist Society judges, as these judges have been groomed in conservative ideology for decades.

So, why the defense of Brett Kavanaugh?

I don't know. I hear people say that he is an innocent man who has been slurred, but I have a few points to add to that:

1. This is not a criminal investigation. "Beyond a reasonable doubt" and "presumed innocent" are fine phrases when we're talking about depriving someone of his freedom. They have no place in what is a job interview for a lifetime, exceedingly powerful, position. Nobody on the right demanded that Hillary Clinton be "presumed innocent" of all of the charges they hurled at her (BENGHAZI!!! EMAILS!!!). I don't recall Donald Trump presuming that Barack Obama was born in the United States. On a personal level, if I was looking to hire a babysitter and heard a rumor that a particular babysitter liked to get drunk on the job and steal from the houses at which she babysat, I wouldn't be looking for corroborating evidence, giving a presumption of innocence, or demand proof beyond a reasonable doubt. The rumor would suffice for me to look elsewhere. My babysitter does not have the power to interpret the U.S. Constitution and determine the breadth of my rights for the remainder of his/her life. A Supreme Court Justice does.
2. In litigation, there are numerous presumptions that we can make based on testimony. A generally known principle in criminal litigation is that a false exculpatory answer, when proven to be false, is pretty strong evidence of the accused's knowledge of his own guilt. Judge Kavanaugh made some fairly ludicrous statements: Beach Week Ralph Club refers to his weak stomach; Renate alumnius [sic] had no sexual connotations, even though Renate Dolphin (the self same Renate) is insulted by the reference; Devil's Triangle is a drinking game (that nobody has ever heard of) and not a sexual reference (that is fairly common). The list goes on and on, but these statements really stretch credulity, and he offers them as exculpatory. While I am not entirely convinced that he is lying, I have significant misgivings about it.
3. Similarly, while a polygraph is not strong evidence of the truth of a statement, it is strong evidence of the speaker's belief in the truth of such statement. Dr. Ford took a polygraph. The results do not demonstrate that her statements were true, but they demonstrate that she believed them to be true. Has Judge Kavanaugh been subjected to a polygraph?
4. Dr. Ford repeatedly requested an investigation into her allegations. Brett Kavanaugh said he would "do whatever the (Republican-controlled judiciary) committee wanted." If he is so innocent of these charges, why is he not demanding an investigation into them? It says a lot to me that when two people are making mutually exclusive assertions, and one of them wants the matter investigated and the other doesn't.

I could go on, but I'm pretty sure the point is clear. 

I also note the defenses of Judge Kavanaugh. Some say "he didn't do it," but given Dr. Ford's credible testimony, Kavanaugh's defenders have a difficult time simply saying she's lying. So, they come up with a series of defenses:

• It actually happened, but Dr. Ford is mistaken about who did it;
• Even if it did happen as Dr. Ford says, it was a long time ago and we should forgive his behavior;
• Even if it did happen, he never actually raped her so it doesn't really matter.

I am not particularly convinced by any of these rationalizations. 

On Abortion

I generally try to stay away from discussing abortion because those with whom I disagree are not persuadable, nor am I.

I am pro-choice. I believe Roe v. Wade was correctly decided. I believe that Planned Parenthood v. Casey was a disingenuous roll back of Roe v. Wade. I believe that the coming conservative majority of the Supreme Court will not have the guts to explicitly overturn Roe v. Wade or Casey. Rather, I believe they will spinelessly re-affirm both precedents while never ever finding a burden on abortion that is "undue."

With that said, I say this to my pro-life friends (who also happen to style themselves as "small-government conservatives"): A government that has the power to force you to refrain from an abortion likewise has the power to force you to have one. Just look at China's one-child policy. Is that what we want?