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What Exactly Is Judge Walton's Beef Here?

I too found it hard to see any sensible justification for Judge Walton's footnote. Brief background:

Twelve current or former constitutional law professors — mostly conservatives, but also a libertarian (our own Randy Barnett) and two liberals (Vik Amar and Alan Dershowitz) filed an amicus brief arguing that (1) there are serious constitutional problems with special prosecutor Patrick Fitzgerald's appointment and (2) Scooter Libby thus has serious grounds for an appeal. This is relevant to the decision whether Libby should be let out on bail pending appeal, though the brief doesn't take a stand on this ultimate judgment, only on the inputs to that judgment (which is whether there's a close question about the appeal's merits). Four of the amici (Amar, Barnett, Dershowitz, and Judge Bork) also sign the brief as the lawyers.

Judge Walton allows the filing of the brief, but writes this odd footnote:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Yet this makes no sense. The point of amicus briefs is to express the signatories' views on some matter that they especially care about, in which they have a special interest or on which they have special expertise. A pro-abortion-rights organization, for instance, may file such a brief in an abortion rights case. Constitutional law professors who believe the Constitution, properly interpreted, supports abortion rights may do the same. No-one pretends that it's an "impressive show of public service," except insofar as any not terribly difficult action on behalf of a legal view that you think is the right view is a form of public service.

Such amici (whether advocacy groups or professors) surely incur no professional or moral obligation to start helping other litigants who raise other issues about which the amici don't are, or on which they lack expertise. Would you demand that a pro-abortion-rights professor who filed a pro-abortion-rights brief also file a brief in an assisted suicide case? Would you demand that he file such a brief even in an abortion rights case that raises a different issue? I would hope not — there's just no reason to think that because someone cared strongly about issue X he must now express his views about issue Y, or even that his views about issue Y would be helpful. The same applies here.

Now perhaps Judge Walton was suggesting that these amici would somehow have to file this brief only in cases that raise the same issue — the constitutionality of independent counsel. But while that's one way of interpreting his reference to "similar questions," it's not consistent with the rest of his footnote, in particular the preceding sentence: He's referring to "numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions" — but independent counsel prosecutions are not "numerous" (especially "throughout the courts of our nation"), and generally do not tend to involve litigants "who lack ... financial means to fully and properly articulate the merits of their legal positions." That's why I doubt that Judge Walton was only talking about the amici's supposed duty to file similar briefs only in independent counsel cases.

Yet even if he did mean this, what's the point of the sarcasm? I take it many of the signatories would be happy to express the same view in a future case raising the same issue. Some might not — and according to standard professional conventions, they are entitled to decide which litigants to speak on behalf — but many might. (Why would Amar or Dershowitz, to take the most obvious examples, treat a future Democratic special prosecutor target any worse than a future Republican?) The snideness thus seems at the very least premature.

Finally, as I understand it courts do have the power to require members of their bars (which may well not include many of the twelve amici) to represent some litigant, though that is a power that is rarely used today. But I doubt they have the power to require anyone to file a brief in his own name, a brief in which the person expresses his own view rather than just advocating on behalf of counsel — such a requirement would, I think, be a violation of the right to be free from speech compulsions.

And it seems to me that it would be unconstitutional for courts to require someone to shoulder an extra burden as punishment, retaliation, or other reaction to that person's past constitutionally protected actions, here the filing of a brief before the court. (The filing of briefs before courts is generally protected from retaliation by the Petition Clause, at least so long as the briefs comply with the proper court rules.) So if the court is threatening, or even sarcastically pretending to threaten, that he will "call for" assistance in a mandatory sense — rather than just suggesting he would offer a nonbinding invitation — then that strikes me as threatening to do something the court is not allowed to do.

Thanks to Leibowitz's Canticle for first pointing me to this.

UPDATE: Thanks to commenter Leo Marvin for pointing out an error in my original post; I wrote that the brief urged that Libby be let out on appeal — in fact, the brief declined to express a view on the subject, though the likely and probably intended (by many signatories) effect of the brief is to support the claim that Libby be let out on appeal.

dearieme:
Isn't there, or oughtn't there to be, a general acceptance of a duty to be snide about Dershowitz?
6.10.2007 6:50pm
BruceM (mail) (www):
While I too agree the footnote was unwarranted, I think his 'beef' is that as a district judge he deals with thousands of criminal cases each year, and only in this very high profile case do these 'luminaries' come forward and offer an amici brief. When it was John Q. African-American Drug Defendant facing over 10 years on drug distribution charges, where were the law professors? Of course law profs DO, in fact, file amicus briefs in such cases (see, e.g., Weldon Angelos), it's rare. In a high profile case like this, the judge obviously found it hypocritical. I'm not sure I agree with him but that's certainly the basis of his beef.
6.10.2007 6:51pm
Steve Lubet (mail):

But I doubt they have the power to require anyone to file a brief in his own name, a brief in which the person expresses his own view rather than just advocating on behalf of counsel — such a requirement would, I think, be a violation of the right to be free from speech compulsions.


Court's certainly do appoint amici to provide detached input on legal issues. I don't see a problem with that, so long as the amicus's ultimate opinion is not dicated by the court.
6.10.2007 7:03pm
llamasex (mail) (www):
His beef seems to be that this was staged. These people didn't come together to take an interest in this case. These people were asked by their rich and powerful friends to sign up to help their rich and powerful lawbreaking friend. I think there is something sick about that. Most of that is negated because it didn't work, but if it had it would have been as revolting as Paris Hilton's early release was for a while.
6.10.2007 7:16pm
Richard Riley (mail):
What BruceM said. Judge Walton is not demanding that these legal luminaries start submitting amicus briefs that they disagree with. It is clear from his sentencing statement that Walton thinks Libby is plenty guilty, and he is irritated that prominent people are raising doubts about that. To him, complaining about Libby's guilty verdict and sentence just shows that the complainers have too much time on their hands. If they're looking for ways to keep busy, why don't they apply their lawyerly skills on behalf of people who may really need it and don't ordinarily have high-powered legal talent on their side?
6.10.2007 7:17pm
Eugene Volokh (www):
But they seem to have things to say about the constitutionality of the independent counsel. They may not have much to say about John Q. African-American Drug Defendant.

Again, imagine this was a case involving the constitutionality of some abortion restriction, and various law professors chimed in with their views of the constitutional right to abortion. Why would we be upset that they didn't also say something in other cases involving drug defendants?
6.10.2007 7:21pm
Ron Hardin (mail) (www):
He's saying that you're Republican partisans, with the sarcasm. That sets up, for example, dismissing your views.
6.10.2007 7:23pm
llamasex (mail) (www):
Eugene, you truly think these 12 lawyers all came together because they had something to say about the constitutionality of the independent counsel? You seriously think that was their motive?

As Walton points out all this prominent people came together all with their individual thoughts about having something to say about this issue in a couple days.

I am not accusing these people of misrepresenting their views. I am willing to give them the benefit of doubt that they actually believe what the brief said, but I seriously doubt being heard on the issue was their motive for all signing up in just a couple days.
6.10.2007 7:32pm
scote (mail):

Richard Riley (mail):
It is clear from his sentencing statement that Walton thinks Libby is plenty guilty, and he is irritated that prominent people are raising doubts about that.

Except that the amicus in no way comments on or raises doubts about the guilt of Libby or the facts of the case.

The only thing the amicus raises is the issue of the appropriateness of the appointment of Fitz--and on that point they disagree.
6.10.2007 7:36pm
Steve Lubet (mail):

He's saying that you're Republican partisans, with the sarcasm. That sets up, for example, dismissing your views.


If he wanted to dismiss their views he could have rejected the brief, especially since they didn't fulfill the requirement of setting out an interest distinct from the defendant's.

In any event, Walton is a Republican appointee (Bush 43) who also served as an advisor to Bush 41 (not to mention his appointment to the National Security Court by CJ Roberts). He is no partisan. Nor is Patrick Fitzgerald, who is also a Republican appointee.
6.10.2007 7:39pm
David Maquera (mail) (www):
Judge Walton is simply reminding every attorney to provide pro bono representation to the poor and the weak and not just the rich and the powerful.
6.10.2007 7:51pm
BruceM (mail) (www):
"But they seem to have things to say about the constitutionality of the independent counsel. They may not have much to say about John Q. African-American Drug Defendant."

Eugene, please, these are law professors. There are plenty of constitutional, statutory, and other interesting legal issues in EVERY federal criminal case, especially once guidelines calculations come into play. If motivated, they would all have intersting things to say with respect to any ongoing criminal prosecution. Where were their amici briefs on the continuing validity of the Almendarez-Torres case post Booker in the dozens of cases where that issue came up in front of Judge Walton over the past year?

Seriously - I have some pending criminal cases with constiutional issue that I'd love to have a dozen internationally known and respected law professors write an imici brief (or even just ONE of them to write an amicus brief) in favor of an issue helpful to my client. Next time a constitutional issue comes up, can I get Randy Barnett to write an amicus brief? It might be for a lowely misdemeanor in Texas state court, or for an uknown defendant in the Southern District of Texas. I have a case on appeal at the Texas Court of Criminal Appeals RIGHT NOW on which I could use an amicus brief from Alan Dershowitz regarding the legal propriety of the prosecution calling an active district judge as a witness against the criminal defendant (not the presideing judge, but a "witness in a robe" so to speak). Where are all the lawprofs for my usually unknown clients?

To be fair, I've never written a Eugene Volokh or Alan Dershowitz to solicit an amicus brief. Is that a proper thing to do? If such professors are inundated with 10,000 requests for amicus briefs, they'll just ignore them all or only pick the high-profile ones, which is no different than the status quo.
6.10.2007 7:55pm
frankcross (mail):
I really don't understand the criticism. Let me try an analogy. Suppose a person makes a large donation to the arts or her alma mater. Is the appropriate response to attack her for not making the charitable donation to "needier" causes?

Perhaps even closer, suppose a person makes a donation for the cure of a disease in which they have interest, perhaps because it afflicted a family member. Would it be appropriate to attack that person for not giving that charity to a different disease that affected more people or perhaps poorer people?

Law professors, like everybody else, have no duty to devote their efforts to the people that a judge (or society) considers most worthy. They will contribute on matters that they subjectively choose. Which is better, presumably, than no contribution at all.
6.10.2007 8:06pm
Gabriel Malor (mail):
frankcross, the criticism is the same ol' story. Life's not fair. And because life's not fair, they'll whine about it.

Somehow, in their minds, since law professor's cannot submit amicus briefs in every case, they shouldn't be able to write one in this case with a defendant they hate so much.
6.10.2007 8:25pm
Citizen:

The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.


The appropriate response: "Certainly, judge. Just give us a call the next time you author an opinion that you think will likely be overturned on appeal, and we'll be happy to file an amici brief to let the defendant out on bail in the interim."
6.10.2007 8:29pm
The McGehee (mail) (www):

Interesting that you specify, throwing that "African American" qualifier in there, Eugene. Showing your colors just a bit, eh pal? Heh.


Take it up with the commenter Eugene was responding to. I'll assume you merely overlooked that.
6.10.2007 8:38pm
Ben Pollitzer (mail):
I seems to me that everyone's thinking too hard about this.

I only really see one reason for the sarcastically worded footnote, and that's to poke fun (or perhaps openly insult) at the professors filing the briefs.

Further, I only see meaning one of two things depending on exactly why he thinks they're filing the amicus briefs.

1. He's poking fun because he's of the opinion that these "prominent and distinguished" law professors are only hastening to jump to the defense of Libby for political reasons.

2. He's poking fun at the same professors because he's of the opinion that they're only doing it to gain notoriety for themselves, and get themselves into the media.


The first seems more likely to me. I can easily see how a judge, even a conservative one, would take quite a bit of umbrage at what they see as meddling with the criminal justice system for purely political reasons, and he's merely snarkily pointing out that they wouldn't be doing this if it were some John Doe who had an equally serious constitutional question at issue in his case.


Is it justified? who knows. There are issues with the constitutionality of special counsel. But there are equally serious questions regarding why this wasn't done earlier. I won't speculate about their motives in filing.
6.10.2007 8:39pm
BruceM (mail) (www):
Revonna LaSchatze, he was responding to my comment where I mentioned "John Q. African American Drug Defendant." Nothing racist about it.
6.10.2007 8:50pm
laywoman (mail):
I can easily see how a judge, even a conservative one, would take quite a bit of umbrage at what they see as meddling with the criminal justice system for purely political reasons,

Which is exactly why lay people like me are livid at the abuse that Fitzpatrick made of his special counsel powers. It politicizes a mechanism that is, even when treated carefully, fraught with potential conflict of interest and misuse. Fitzpatrick's apparent tone deafness on this disturbs me greatly.

And no, I wasn't happy about the impeachment of Clinton either.
6.10.2007 8:50pm
Joe Bingham (mail):
His beef seems to be that this was staged. These people didn't come together to take an interest in this case. These people were asked by their rich and powerful friends to sign up to help their rich and powerful lawbreaking friend. I think there is something sick about that. Most of that is negated because it didn't work, but if it had it would have been as revolting as Paris Hilton's early release was for a while.

Wow, I would love to see Prof. Barnett respond to this. I'm offended, and I don't even know any of these professors beyond reading what they've written. I honestly can't believe someone said this here, where he's had opportunity to become acquainted with Prof Barnett a bit.

I agree with Ben Pollitzer that the first reason is the most likely. If so, though, that reflects some pretty shocking ignorance on the part of the judge, who presumes he knows their politics when it's clear he doesn't.
6.10.2007 9:14pm
Erasmus (mail):
I wonder if some of the people who are outraged here are also outraged at the judge who mocked a criminal defendant for spelling the name of the Beatles wrong?

For me, the bottom line is that judges should never ridicule anyone in judicial opinions because the person they are mocking have no way of meaningfully responding.

This was already rehashed in the other thread, but I have no idea why Judge Walton would want to discourage the filing of useful amicus briefs in his court. If I were considering filing an amicus brief in his court, I would certainly think twice because I wouldn't want the judge to decide, for whatever reason, that I should be ridiculed.
6.10.2007 9:28pm
Tom Maguire (mail):
Eugene, you truly think these 12 lawyers all came together because they had something to say about the constitutionality of the independent counsel? You seriously think that was their motive?

I am not Prof. VOlokh, but - From the brief it seems that some of these profs (Amar) have published articles about the issues surrounding independent prosecutors. So yes, I can seriously believe they have relevant expertise and a professional interest.
6.10.2007 9:32pm
(mail):
"Eugene, you truly think these 12 lawyers all came together because they had something to say about the constitutionality of the independent counsel? You seriously think that was their motive? "

It makes sense to me that that would be their motive. The issue is one that obviously does interest constitutional law profs and has done so for years.
6.10.2007 9:40pm
BruceM (mail) (www):
Please don't compare Libby's punishment to Paris Hilton's. I can't stand Libby and Hilton (in fact, I can't stand Hilton much moreso than Libby), but Libby did lie to the grand jury. Republicans are all IDEOLOGICALLY ESTOPPED from claiming perjury by a government official is not a serious offense (see Clinton impeachment). Paris Hilton is a danger to nobody and does not belong in a cage for one day, let alone 45 (23 with credit). It's a waste of taxpayer money, and she's being punished much more harshely than a non-celebrity who drove with a suspended license. For example, the wife of the City Attonrey who prosecuted Hilton got less than a $200 fine when she was found driving with a suspended license. I feel sick having to defend Paris Hilton, and even sicker when people intimate that Libby should be able to lie to a grand jury without recouse but Hilton should be stuck in a solitary confinement cage for over a month for an administrative infraction. These are not comparable in any way.
6.10.2007 9:41pm
Armen (mail) (www):
Law professors, like everybody else, have no duty to devote their efforts to the people that a judge (or society) considers most worthy. They will contribute on matters that they subjectively choose. Which is better, presumably, than no contribution at all.

WTF? I didn't pay attention in professional responsibility but I vaguely recall something about duty to serve the indigent and not declining appointments by a court. That's precisely what Judge Walton is referring to. As members of the bar, and presumably the D.D.C., the profs have certain obligations that others don't. I could be wrong, it could just be important legal issues that require the quick thinking talents of 12 law profs only arise in cases where the defendant has the political clout and financial resources of Solomon.
6.10.2007 9:44pm
The Blue Flautist (mail):
It is very convenient that they chose to say something about the constitutionality of the independent prosecutor at this juncture. In any case Judge Walton did make some comments on this issue, see:
libby sentencing

I was disappointed (and somewhat surprised) to see
Prof Barnett's name on the list of signatories. This
brief smells of political opportunism and
protecting powerful friends. I guess Judge Walton
thinks so too given his footnote. Prof Volokh's
sudden lack of understanding regarding the footnote
is not entirely surprising though.
6.10.2007 9:48pm
scote (mail):
Off Topic:

she's being punished much more harshely than a non-celebrity who drove with a suspended license.

She is being punished for violating her probation for DUI by being caught driving on a suspended license **twice**. She doesn't have to drive since she can afford a full time driver, unlike ordinary humans, and has no excuse for driving on a suspended license.

I agree that she shouldn't be punished more than a regular person under identical circumstances, but I also think that "home confinement" is a punishment that is inherently unequal across economic lines. Heck, I'd serve her time for her in her $3,000,000 mansion with all of her money to have servants bring me anything I desire and the ability to work or party as I please at home. Well, if I had to hang out with Nicole Ritchie, maybe not...
6.10.2007 9:50pm
Joe Bingham (mail):
Flautist,

(1) Which "powerful friends" are Amar and Dershowitz being called on to defend?

(2) How can you argue that the two professors at Pepperdine--where Ken Starr is dean--are just trying to help their careers by complaining that special prosecutors are unconstitutionally empowered?
6.10.2007 10:05pm
Q the Enchanter (mail) (www):
What exactly is puzzling about being annoyed that this kind of intellectual firepower was marshaled for a process-based challenge to the conviction of a man who (it is generally agreed) violated a law whose constitutionality is not in question? I'm not saying that a judicial opinion is the appropriate place to air annoyance (or that it's not), only that the sentiment itself is hardly "puzzling" -- particularly coming as it does from a "tough on crime" conservative appointment like Walton.
6.10.2007 10:06pm
Q the Enchanter (mail) (www):
Sorry, Eugene, somehow thought "puzzling" was your language (guess I inadvertently imported it from Kieran's pointer), so disregard the scare quotes.
6.10.2007 10:10pm
Omar Shanks (mail):
In what strange moral universe is Alan Dershowitz considered a liberal? I'm sorry, but liberalism, at least to my limited understanding, requires a certain universalism with respect to human rights, and brooks no exception for perceived threats to one's homeland, whether native or adopted. In fact, his liberal "credentials" consist largely, if not entirely, of defending the wealthy and powerful from the due application of the criminal justice system. I'm sorry, but if liberalism is to be a meaniful term, even to those who consider it anathema, it has to consist of more than a willingness to go to bat for OJ.
6.10.2007 10:12pm
Adam B. (www):
My liberalism doesn't much tolerate condoning torture -- or Claus von Bulow's freedom.

Here's Judge Walton's point, I think: there's nothing about the arguments the amici raised which Libby's own counsel couldn't have raised himself (did they?). This case didn't need outside voices to boost the arguments of someone who could afford to pay for whatever arguments were needed. It's in the smaller cases where their lawyering could make a difference on behalf of someone ill-represented by the system.
6.10.2007 10:27pm
Joe Bingham (mail):
Here's Judge Walton's point, I think: there's nothing about the arguments the amici raised which Libby's own counsel couldn't have raised himself (did they?). This case didn't need outside voices to boost the arguments of someone who could afford to pay for whatever arguments were needed.

Again: when determining whether a constitutional question is "close," the opinion of leading scholars in the field is relevant.
6.10.2007 10:40pm
anonVCfan:
Does anyone know how often amicus briefs are filed in district court cases?

If Judge Walton were on the D.C. Circuit, I would think his footnote was a bit strange. I wonder whether, from his perspective as a trial court judge, it might have made more sense to ask "why this, why now?"
6.10.2007 11:02pm
sailordave:
It is really silly to question the motives of these law professors. Do they publish in academic journals because high-powered Republican friends ask them to? Or start blogs? No, all three activities (amici briefs, academic publication, and blogging) are unpaid activities that people do to enhance their reputation and/or spread their ideas, and it shouldn't surprise anyone that people who engage in one of these 3 activities might engage in the other two as well. And of course, people would rather brief the high-profile cases, for the same reasons they'd rather publish in the good journals.

Walton might as well ask why Dershowitz chose to be a Harvard Law Professor instead of spending his life doing legal aid.
6.10.2007 11:02pm
frankcross (mail):
Armen, they haven't shirked any responsibilities associated with their bar membership, have they? If they attempted to do so, the comment would be appropriate. Until then, not so much.

For all those who critique the signers, please post how you spend all your time, so that we may critique whether we find it to be socially optimal.
6.10.2007 11:42pm
byomtov (mail):
Does having twelve signatories as opposed to one or two make the arguments stronger? If not, then why so many?

I find it hard to believe that all twelve actually participated in developing the arguments and writing the brief. So I conclude that just maybe there is a bit of grandstanding going on here. Could that be Wlaton's beef?
6.10.2007 11:57pm
Armen (mail) (www):
Well if they shirk any bar responsibilities there are other sanctions available other than a snarky footnote. Snarky footnote is the perfect response in this case, especially coming from a judge with 16 years of experience dealing with criminal defendants in D.C. I'm willing to bet this is the first time anyone's filed an amicus brief in his court room. You think this is the most pressing constitutional issue he's had to decide? You think this is the most pressing defendant for whom a "close" constitutional question mattered? Judge Walton is a bit cynical. I'm right there with him.
6.11.2007 12:14am
Anderson (mail) (www):
Methinks the good Prof V. maketh ye mountain out of ye molehill.

Libby does not lack for paid counsel; has Kissinger et al. writing letters on his behalf (not to mention checks); and yet this amply-lawyered lawyer has amicus briefs filed on his behalf as well?

As Bruce M noted early in the thread, the judge was evidently struck by the contrast with the poor s.o.b.'s with public defenders they met 5 min. before sentencing.
6.11.2007 12:26am
Truth Seeker:
Maybe he didn't dismiss the case because he expects the Democrats to be the ones making judicial nominations in the future and hopes for a reward. And now he's really mad that 12 lawyers who are a lot smarter then him called him on it. (How does the law school joke go, A students become professors, B students become lawyers and C students become judges?)

Could a judge like him really contact some of these professors and require them to submiit a brief in an unrelated case?

Prof. Volokh, how about a thread some time about mandatory pro bono? Can lawyers really be forced to work for people they don't agree with or detest? Should someone with no practical experience be forced to practice? Of all libertarian topics, involuntary servitude should be among the most important.
6.11.2007 12:35am
Adam B. (www):
Again: when determining whether a constitutional question is "close," the opinion of leading scholars in the field is relevant.

A footnote in Libby's own brief, citing to the current literature, could accomplish that. C'mon.
6.11.2007 12:56am
Bruce Hayden (mail) (www):
Well, I think that it was snarky, and made the judge look a bit small. But it is nothing to get upset about. I think that many here have seen them do worse.

To the poster who suggested that there really wasn't an issue about the statutes under which Libby was convicted, I would agree. However, there is little if any evidence that any underlying crime was committed, and if Fitz had been bound by usual USDOJ rules, this prosecution probably would not have happened in the first place.

Part of the problem here is that prosecutors, under normal circumstances, have to husband their resources for what is determined to be important. Like drug dealing, white collar crime, and maybe even immigration violations. So, the DoJ has guidelines so that effort is not wasted on de minimis prosecutions.

Indeed, if prosecutors were allowed to prosecute everyone who lied to them, their investigators, or a grand or petite jury, they would do nothing else. Of course, those who lie are violating the law. And, of course, the laws are valid. But the prosecutors would end up with he says/she says cases, like this one, that suck resources, and don't do anything to keep drugs off the street or the RIAA in control of their content.

Still, I am not sure what the effect of having Fitz found to have exceeded the amount of discretioh that could be given him absent Senate confirmation would have on the case. He is, after all, a U.S. Attorney, who has the legal ability to prosecute crimes in the name of the U.S. Yes, he may have violated DoJ rules (the question really is whether he can or not), but so what?
6.11.2007 1:09am
Dave Hardy (mail) (www):
If I were considering filing an amicus brief in his court, I would certainly think twice because I wouldn't want the judge to decide, for whatever reason, that I should be ridiculed.

I wouldn't hesitate to file anything out of fear of being ridiculed by a fellow who wears a black gown to work.

That said, I think the footnote was out of order. Some folks, with considerable knowledge in the area, raise an interesting constitutional point. There is no reason to believe they give a hoot about the fate of one Scooter Libby per se, have been set up by powerful buddies to raise the point, are seeking the limelight, etc.. For the judge to jump to any one of those conclusions without any good reason to believe it, I'd say, out of line.

It's likely that he had no knowledge who the amici were, and thus may not have appreciated it. But that makes his comments all the more out of line.
6.11.2007 1:17am
plunge (mail):
"I'm not sure I agree with him but that's certainly the basis of his beef."

Why would you assume that Eugene would want to respond to the obvious implication of the remark when pretending not to understand it and replying to all sorts of other things is so much more fun?
6.11.2007 1:21am
Stuart Buck (mail) (www):
Three liberals: Richard Parker. He used to be rather radical, and would regale us in his Con Law class with tales of getting arrested in the 1960s for protesting Hubert Humphrey (wrong on Vietnam). These days he seems to be more of a populist, but I'd hardly call him a conservative.
6.11.2007 1:24am
Duffy Pratt (mail):
Isn't the amicus brief sort of odd. The question they are interested in is whether the statute is unconstitutional or not. That question isn't going to get decided on a bail motion. So what is their interest in seeing Libby free pending appeal? How will his freedom advance the issue the issue that they are interested in? Even if the Court granted the motion, that wouldn't do anything whatsoever to help establish the unconstitutionality of the appointment.
6.11.2007 1:33am
CaDan (mail):
This is sentencing.

While I am sure the constitutional issues are very, very exciting to all the professorial types out there, it seems to me that at this time, those issues are largely irrelevant.
6.11.2007 1:50am
PAUL VIRKLER (mail):
Judge Walton made the remark because the brief touch a nerve.
Duffy Pratt- The statute says that bail should be given if there is a close issue to be decided. Do you have problem with constitution?
6.11.2007 1:54am
cvt:
The footnote is clearly questioning the sincerity of the law professors. If they really care about public service, why don't they do something for people who really need help? It's that simple. Which also explains the sarcasm.

But Like Omar Shanks, what caught my attention was the remarkable idea that anyone considers Alan Dershowitz a liberal. In what moral universe indeed! What are his liberal credentials, and if he has any, are they relevant anymore? All he seems to care about is Israel. Which explains why he wrote a letter defending a neoconservative.

Incidently, before writing this, I spent a few minutes trying to find out what is or was Dershowitz's position on Iraq. I couldn't find anything. I wonder if he has one. Although he has a new book entitled Preemption, it seems to be more about Israel than Iraq. If he has a position on the war, I wonder if it has changed since 2003.
6.11.2007 2:45am
Crunchy Frog:
I'm really getting tired of hearing about how Fitzgerald, Walton, et al were Republican appointees. Like that means anything at all.

For God's sake, so were David Souter and John Paul Stevens. Is anyone seriously going to try and claim they're somehow conservtive? Or even non-partisan?
6.11.2007 3:33am
scote (mail):

Prof. Volokh, how about a thread some time about mandatory pro bono? Can lawyers really be forced to work for people they don't agree with or detest?

The lawyers can line up after the jurors...
6.11.2007 4:02am
LM (mail):
EV: Although the Amicus Brief is fairly pregnant with the subtext you include in your synopsis as item #3, the actual text says the following, at page 2, lines 1 through 3:

Amici take no position on any other issue raised in this case or on whether this Court should grant or deny bail pending appeal. The sole issue they address is whether the Appointments Clause issue is a close one.
6.11.2007 4:05am
scote (mail):

Amici take no position on any other issue raised in this case or on whether this Court should grant or deny bail pending appeal. The sole issue they address is whether the Appointments Clause issue is a close one.

Which is why the worked so quickly last week to get the brief ready in time for his bail hearing rather than for his appeal--oh wait, that doesn't make sense. Hmmmm......
6.11.2007 4:45am
Duffy Pratt (mail):
Paul Virkler:

An outcome in their favor will do nothing to advance the issue that the amici claim to be interested in. It won't have any precedential effect. All it will do is keep one guy free for a short period of time. So the amici are filing a brief to advance an interest that cannot possibly be advanced by any decision on the motion at hand.

I have many problems with constitution, but none of them are relevant here.
6.11.2007 5:13am
LM (mail):
cvt:

But Like Omar Shanks, what caught my attention was the remarkable idea that anyone considers Alan Dershowitz a liberal. In what moral universe indeed! What are his liberal credentials, and if he has any, are they relevant anymore?

He self-identifies as a liberal. That's good enough for me, though apparently not you. Liberal credentials? Since when do you need credentials to identify your own political beliefs and affiliation?

I realize that there's a vocal bloc of anti-war liberals who wish they could disown Joe Lieberman (90%+ liberal voting record), while their pro-war conservative counterparts nourish the same fantasy about Chuck Hagel (90%+ conservative voting record). If it were within their power, these factions would probably get together and work out some kind of prisoner swap to rid themselves of the stench of ideological impurity.

The idea that I find remarkable is how desperate some groups are to purge their ranks of anyone who dissents from party-line orthodoxy, even if it means handing the margin of victory and control to their opponents.
6.11.2007 5:41am
Public_Defender (mail):
The use of independent counsels is certainly not the only issue these amici care about. It would be wrong to force the amici to work pro bono in retaliation, but the judge is certainly within his rights to request their help in future cases.

Isn't there, or oughtn't there to be, a general acceptance of a duty to be snide about Dershowitz?

Put Bork and Dershowitz together and you have a compelling state interest in snideness.
6.11.2007 7:10am
Public_Defender (mail):
Could the identies of the amici have hurt their cause?

Is Deshowitz actually respected among academics or Washington politicos? I'm a liberal criminal defense lawyer, and I've always considered him to be nothing more than a blowhard.

And while Bork is a hero of the right wing of Republican lawyers, he is thought of as a kook (a very smart kook, but a kook nonetheless) by pretty much the rest of the world.

That might help on the DC Circuit, but it didn't seem to impress Judge Wilson.
6.11.2007 7:15am
(mail):
"An outcome in their favor will do nothing to advance the issue that the amici claim to be interested in. It won't have any precedential effect. All it will do is keep one guy free for a short period of time. So the amici are filing a brief to advance an interest that cannot possibly be advanced by any decision on the motion at hand."

" . . . Which is why the[y] worked so quickly last week to get the brief ready in time for his bail hearing rather than for his appeal--oh wait, that doesn't make sense. Hmmmm......"

If the view they put forth has not already been fully and (more or less) equally well expressed by Libby's attorneys -- a point that I don't know -- then I would think it a service most district judges would appreciate to be able to see, and get a first chance to rule upon, grounds that will be urged in the court of appeals for reversal.
6.11.2007 9:35am
Barry (mail):
frankcross (mail):
"I really don't understand the criticism. Let me try an analogy. Suppose a person makes a large donation to the arts or her alma mater. Is the appropriate response to attack her for not making the charitable donation to "needier" causes? "

In this case, a better analogy might be somebody making a large donation to a university, the year before their non-outstanding son or daughter applies for admission.
6.11.2007 9:36am
Happyshooter:
The Judge can't believe that those profs support an evil, bad, nasty GOP Bushie.

He is ordering them to give free services to Dem voter base criminals as penance.
6.11.2007 10:45am
Henri Le Compte (mail):
You guys seem to think that who appoints someone is the final word that needs ever be said about their partisanship or their political point of view.
Sorry, but I think that vastly oversimplifies the vagaries of the appointment process. Presidents appoint various judges based on more than just their (the judge's) ideology. For starters, it often proves impossible to even know what someone's ideology is, let alone guarantee it. Then there is the little matter of getting that person through Congressional hearings....

It is just pointless to act like saying "President Bush appointed him" is some unrebuttable proof that he must be a partisan ally.

In this case-- when put in the context of his extreme sentence of Mr. Libby-- it is perfectly clear that he is announcing that he is no "friend" of these "amici." Not that that's particularly surprising. What is a bit breath-taking is the superfluous nastiness of it all. You would imagine that a judge of Judge Walton's experience would think twice before thumbing his nose so blatantly at this group of prominent colleagues. For instance, what would have been wrong about saying nothing?

But then, I suppose, we wouldn't be talking about him, eh?
6.11.2007 11:07am
cboldt (mail):
I see it more an issue of "timing" than of having the opinion that Fitzgerald's appointment was defective. Where were these luminaries when Miller was incarcerated under Fitzgerald's authority?
6.11.2007 11:33am
Houston Lawyer:
Sounds like the Judge is vested in the idea of Libby going to jail before his appeal and resents any inference that there might be good reason for him not to do so. The judge should at least attempt to appear dispassionate lest his impartiality be questioned.

Earle Warren was appointed by a Republican. Does that make him a conservative as well? Nonpartisans can be at least as overzealous as any partisan, often with more tone-deafness than a partisan who knows his actions will be closely monitored.
6.11.2007 11:38am
Anderson (mail) (www):
Wow, does this case ever drive people nuts. Very mysterious.

Had Libby, like Rove, taken advantage of his being called back before the grand jury to amend his previous answers and come clean, there would have been no prosecution.
6.11.2007 11:43am
Martin Ammorgan (mail):
I think the judge just feels the same sort of disgust I feel.

The judge gets an amicus brief-probably for the first time ever-when the convicted criminal is one of the high and mighty;
the VC deigns to post on the Libby trial - one of the few times ever - merely to castigate the judge for a footnote.
6.11.2007 11:45am
Martin Ammorgan (mail):
Come to think of it, why don't you round up some law and order profs and submit a counter amicus- seeing as Libby is just a twobit liar and abuser of the public trust, you surely want to see justice done, eh? I do!
6.11.2007 11:56am
LongSufferingRaidersFan (mail):
I'm assuming your question is rhetorical as you couldn't possibly not know the answer--simple case of judgeitis. Case closed.
6.11.2007 12:01pm
Sparky:
What llamasex said.

The judge's complaint is that these people are stooges, pimping out their reputations for money. They probably didn't even write the amicus brief (hence the "only several days") -- it was written by the lawyers for the parties, and they just signed off on it.
6.11.2007 12:02pm
John M. Perkins (mail):
Does anybody here not know that Fitzgerald is a Republican and his mentor is [now was] Rudy Giuliani? And his previous[still current] Special Prosecutor gig is with the Chicago Grey Lord cases? Where were these professors when the judges and the Cicero mob were targeted?
6.11.2007 12:23pm
Mark P. (mail):
I'm with Armen. These attorneys, who also happen to be law professors, owe a duty to every court in which they practice. That duty specifically includes a willingness to accept indigent appointments. When attorneys, whether law professors or not, put themselves as amici in high-profile cases (particularly where the motivation appears to be: 1) personal aggrandizement; or 2) rallying around the rich &powerful), they necessarily put out a "sign me up for some pro bono representation" signal to the court. Not as a punishment, but as a real signal that the person has some time available, and has shown a willingness, to actually be a FRIEND OF THE COURT.

Here, the court was reminding them of their obligation. And it is an obligation. And he CAN enforce it, at his discretion.

These attorneys are supposed to be "friends of the court." Not "friends of themselves," or "friends of their own intellectual curiosity," or "friends of the rich and powerful." For anyone in the trenches of the criminal-justice system, this waste of legal talent, where Libby is already well-represented, is a travesty.

If these people really are friends of the court, they'll do what the court REALLY needs: represent the indigent. But they're not friends of the court. They're friends of their own egos. They're friends of their own press. They're friends of the rich and powerful.

I thought the judge went easy on them.
6.11.2007 12:24pm
cvt:
LM:

Yes, I want every politician to pay who supports the war. It has nothing to do with ideological purity. It has to do with some issues being more important than others.

As for Alan Dershowitz, he is not a politician, but identifying himself as a liberal does not make him one. Private persons may self-identify as liberals and conservatives, but Dershowitz is a public figure with a public record on many issues, so it is legitimate to ask what his liberal credentials are. Being in favor of civil liberties is not enough. That applies to libertarians also.
6.11.2007 12:30pm
ejo:
Dershowitz not a liberal-about the only liberal stance he does not take is in praise of palestinians for killing jews. I guess, in this day and age, that makes one a conservative. As to the issue, who knows-it sounds as though we have a fragile ego on the bench who doesn't like criticism. that would be a real shocker-a judge that doesn't like the brilliance that he sees when he looks in the mirror every morning criticized.
6.11.2007 12:34pm
ejo:
by the way, many lawyers do pro bono in ways other than representing the criminals preying on the poor of society-some defend terrorists intent on the destruction of the US. Am I supposed to get all weak in the knees about the high moral plane these folks exist on?
6.11.2007 12:38pm
Lonely Capitalist (mail):
Here, the court was reminding them of their obligation. And it is an obligation.

Where exactly is this obligation to work pro bono? And in which jurisdictions?
6.11.2007 12:40pm
Steve:
"Liberal bias" is such a great catch-all explanation for everything. Never mind that you have a Republican-appointed prosecutor and a judge appointed by the current President Bush - based upon nothing more than the fact that they think a certain Republican committed a crime, they're worthy of comparison to Earl Warren and David Souter. No need to examine any sort of track record; nope, based upon their actions in this single case, we just know the prosecutor and judge are out to "get" the Bush Administration!

This sort of bunker mentality is extremely useful for deflecting any and all bad news, and kudos to the brave conservative who decided to foster it.
6.11.2007 12:52pm
Michael B (mail):
An officious judge, forgetful of the law, moralizes in accord with PC orthodoxy; an oft-repeated one act play, newly adapted.
6.11.2007 2:12pm
Henri Le Compte (mail):
Here is something I learned a long time ago, and it wouldn't be too bad for Judge Walton (and a few other Washingtonians) to learn-- life is long. That's it! Life is long, and crises are short. And it takes a surprisingly short period of time for the wheel to turn 180 degrees.

Don't burn bridges that you may later need. Judge Walton may one day find out just why hubris is a fatal flaw among heroes.
6.11.2007 2:44pm
scote (mail):

Don't burn bridges that you may later need. Judge Walton may one day find out just why hubris is a fatal flaw among heroes.

I suppose you could be referring to pissing off the Eminent Professors, but it sounds more like a Republican shakedown. "Nice courtroom you got here. Sure be a shame if something were to happen to it...."
6.11.2007 3:25pm
whackjobbbb:
The guy wrote an editorial footnote absolutely severed from the case at hand. It amplified nothing about the case, explained nothing about it... absolutely nothing.

Either open the door and let 'em in, or close it and keep 'em out... and explain either if you must. But other than that... STFU, YOUR EMINENCE.

Put your blindfold back on, and address the law here. Rich guys sometimes find or manufacture a break in court... so tell me something I don't know. But if you don't have something original to say, then just email your wonderful footnotes to the 12 guys, and leave your editorial comments out of my taxpayer-funded writings. Or you can have them published in the local paper, if you'd like.

And by the way, this independent counsel nonsense IS pretty much a joke, as your open door to them seems to imply. It too is severed from the mainstream of prosecutors' conduct of investigations in this country, as was mentioned above. Ditching it forever just MIGHT be in the public interest, and maybe these guys just MIGHT be doing a public service for us, eh?
6.11.2007 3:41pm
Martin Ammorgan (mail):
Well they MIGHT be but only a whackjob would think so.
6.11.2007 3:52pm
eddie (mail):
Perhaps I missed that day in Con Law: Can someone explain how the constitutionality of the appointment of the special prosecutor, invalidates the actual lies proven in a court of law that Libby spread after having been sworn to testify truthfully in front of a grand jury. If I am pulled over by police in a constitutionally illegal manner and then assault the policeman, does my assault become a nullity simply because prior to the assault my constitutional rights were violated?

Where is all of the outrage at some of Justice Scalia's unfootnoted snark?

Where was all of the outrage concerning the constitutionality of special prosecutors during the Clinton inquisitions?

This is simply small minds grasping at even smaller straws and feeling upset that the merest breeze will blow all of the straws away.
6.11.2007 4:07pm
Michael B (mail):
"Where was all of the outrage concerning the constitutionality of special prosecutors during the Clinton inquisitions?" eddie

There was plenty of outrage, including perennial questions concerning the role of the special prosecutor on legal, moral, practical and political grounds.

As to inquisitions and outrage more generally, there were certainly excesses and much to disagree with and disavow, but the discovery issue (e.g., Juanita Broaddrick's rape), to further substantiate a history of similar activity, hardly represented an "outrage" or "inquisition."

Then again, she was merely a woman who had been raped and when compared to the importance of Bill Clinton, what is one woman and violent rape? Better to dismiss such concerns with "it was only sex" than more seriously confront the realities and the legal issues involved. And Broaddrick's story was in point of fact more than a little compelling and it was certainly germane to the discovery issue.
6.11.2007 4:29pm
whackjobbbb:
Well, Ammorgan, it must be at least a few more than me think so, as the Congress did away with this "independent counsel statute" nonsense a number of years ago... and did so for a reason.
6.11.2007 5:12pm
LM (mail):
Michael B

Then again, [Juanita Broaddrick] was merely a woman who had been raped and when compared to the importance of Bill Clinton, what is one woman and violent rape?

If Bill Clinton raped Juanita Broaddrick, he should be in prison. If he didn't, the accusation is a vicious smear. Broaddrick's story convinced some but not others, the latter including the FBI. Unless you know of compelling evidence undisclosed to the FBI, your depiction of the alleged rape as fact is reprehensible.
6.11.2007 6:03pm
Charlie (Colorado) (mail):
Does anybody here not know that Fitzgerald is a Republican and his mentor is [now was] Rudy Giuliani? And his previous[still current] Special Prosecutor gig is with the Chicago Grey Lord cases? Where were these professors when the judges and the Cicero mob were targeted?

Does any thinking person really imagine that the only reason anyone might be less than perfectly unbiased about any topic is whether they're R or D?
6.11.2007 6:15pm
Michael B (mail):
LM, not particularly wanting to derail this thread onto Clinton and Broaddrick for any great length, I nonetheless take note of what gets elided under the rubric of "it was only sex." When "only" includes the very real, the credible and compelling case for a violent rape, not to mention the lying under oath to help occlude that aspect of discovery, then "only" is being subjected to some odd connotations, reminiscent of the word "is."

As to your reply, again, hers was compelling testimony in the eyes of many and not merely those who engaged in anti-Clinton agendas for their own sake - very much to the contrary. Too, nothing you have to say invalidates what was stated: it was an ongoing investigation, in substantial part, for discovery purposes.

(And the notion it all reduces to a blank and white scenario, an either/or - either Bill Clinton is in prison or it was a "vicious smear" - is positively risible. Same hold true for O.J.? Pathetic.)
6.11.2007 7:02pm
LM (mail):
Michael B:

As to your reply, again, hers was compelling testimony in the eyes of many and not merely those who engaged in anti-Clinton agendas for their own sake - very much to the contrary. Too, nothing you have to say invalidates what was stated: it was an ongoing investigation, in substantial part, for discovery purposes.

What makes you think I disagree with that?

(And the notion it all reduces to a blank and white scenario, an either/or - either Bill Clinton is in prison or it was a "vicious smear" - is positively risible. Same hold true for O.J.? Pathetic.)

I didn't say that one either. I said either Clinton did it or he didn't. If he did, he belongs in prison. If he didn't, calling him a rapist is a vicious smear.

I said it was reprehensible for you to call him a rapist because you don't know what happened, and you don't have sufficient basis for reaching a definitive conclusion. I find it reprehensible to say something you know has any meaningful chance of being a vicious smear.

By the way, not that it should matter, but I also criticize calling President Bush a liar without evidence of his state of mind, as well as all the other logical leaps into character assassination that seem to define so much of our public discourse nowadays.
6.11.2007 8:10pm
Michael B (mail):
LM,

Perhaps my last comment on this subject. Perhaps I misunderstood, but I emphasized the discovery aspects of the legal process, the investigation as such, rather than simply, in an unqualified sense, labeling Clinton "a rapist."

I do, as do many, tend to believe Broaddrick, in large part due to the compelling quality and the totality of her interview and the larger story, also due to attendant evidence, nonetheless what I emphasized was that the discovery issue was a perfectly warranted endeavor, in contrast to any "outrage" or "inquisition," as characterized by a prior commenter. You're not paying close attention to what was said. (Quote me if you believe otherwise.)

To address and discuss such things, seriously, is not at all to engage in a "vicious smear."
6.11.2007 8:53pm
Sebastian Dangerfield (mail):
Eugene: Perhaps your confusion could be somewhat alleviated by considering the following. As an initial matter, it is pretty rare for amicus briefs — much less amicus briefs by a dozen or so professors — to be filed at the trial-court level, and I would wager that amicus briefs submitted at the trial-court level in aid of a criminal defendant's motion for bail pending appeal are rare birds indeed. That is because amicus briefs usually are filed at a stage in which a dispositive legal ruling is about to be made — at the motion-to-dismiss stage, the motion-for-summary-judgment stage or perhaps even the post-evidence motion-for-judgment-as-a-matter-of-law stage, you know, when it matters.

Consequently, it is mroe than a little facially unseemly for this distinguished group to be stepping in for the first time at the post-trial, post-verdict, "please let Scooter free on bail until a pardon is less politically damaging to the President" stage of the proceedings. If these folks truly cared about the supposed constitutional principle at stake, they would have filed at the motion-to-dismiss stage or at least at the motion-for-judgment-as-a-matter-of-law stage (if they weren't particularly attentive to the case). If one truly believed, on principle, that the appointment of this prosecutor was unconstitutional — or substantially likely to be found unconstitutional by a reviewing court, why on earth would one wait until after a denial of the dispositive motion, a trial, a jury verdict, and a sentence? If one really cared about the constitutional pricniple, why would one (or a dozen) allow that lawless prosecutor to exercise his non-existent power to indict and try a defendant before raising so much as a peep? I'd wager that a considerable part of what is annoying Reggie is the tardiness of the intervention, which suggests that it is more about keeping Scooter out of jail than it is about constitutional principle.
6.11.2007 10:43pm
Bravo:
1. Part of Judge Walton's snarkiness comes from his being a new judge and still getting used to the notion that he has the power to send people to jail and to death. One of the hardest things for a judge to do is send someone away -- the crimes are tough and the sentencing hearings are emotional and the defendants have lost the birth lottery. I imagine that Judge Walton is, in a visceral way, becoming disgusted with the disparities in what he sees and that he has very little sympathy for the problems of a liar like Scooter Libby.

2. The day that Randy Barnett or Viet Dinh do ANYTHING out of the goodness of their hearts rather than out of shameless self-promotion will be a cold day in Hell.
6.11.2007 11:13pm
Brian K (mail):

Part of the problem here is that prosecutors, under normal circumstances, have to husband their resources for what is determined to be important. Like drug dealing, white collar crime, and maybe even immigration violations. So, the DoJ has guidelines so that effort is not wasted on de minimis prosecutions.

Indeed, if prosecutors were allowed to prosecute everyone who lied to them, their investigators, or a grand or petite jury, they would do nothing else. Of course, those who lie are violating the law. And, of course, the laws are valid. But the prosecutors would end up with he says/she says cases, like this one, that suck resources, and don't do anything to keep drugs off the street or the RIAA in control of their content.


If only the conservatives would apply this logic to someone who merely overstayed a student visa or something. Afterall I would think that lying to cover up potentially illegal activity on behalf of the federal government to be much more serious of an offense than running across the border to pick strawberries of $2/hour.
6.11.2007 11:43pm
Brian K (mail):

He self-identifies as a liberal. That's good enough for me, though apparently not you. Liberal credentials? Since when do you need credentials to identify your own political beliefs and affiliation?
...
The idea that I find remarkable is how desperate some groups are to purge their ranks of anyone who dissents from party-line orthodoxy, even if it means handing the margin of victory and control to their opponents.

Try telling that to all the people who are trying claim bush a) is not a conservative and b) is a liberal. If more people used your logic political discourse would be much more civil now.
6.11.2007 11:45pm
MLS (mail):
It seems to me that Sebastian Dangerfield's post provides the most likely explanation for the judge's irritation. Whatever the merits of the legal arguments made in this brief, it is difficult to see why they would make the arguments at this juncture if the goal were simply to advance a particular view of the law, rather than to protect Libby.

The judge may also be having an adverse (and, in my judgment, entirely understandable) reaction to the waves of sympathy that Libby's situation has evidently generated among the political and media elite. I heard one journalist, not a Republican or a conservative, decry what a harsh sentence Libby had received in light of the fact that he has two young children and will miss an important part of their childhood.

I have no doubt that this will be very tough on Libby and his family, but I can't help but think of the thousands of military fathers who will never see their children, thanks to the ill-advised decisions that Libby played a key role in making. Libby's friends seem much more stoic about these sacrifices among the "lower" classes.
6.12.2007 12:38am
r78:
The judges' comment is a recognition that somebody wrote this brief and then 10 or 11 other people put their name on it.

The story I read was that the brief was filed within 72 hours. No 12 attorneys I know (let alone law professors) could agree on where to order breakfast within 72 hours, let alone actually participate in writing a brief.

The brief was filed as an act of grandstanding, and the court recognized that.
6.12.2007 2:30pm
Michael B (mail):
Every pitchfork and torch carrying member of a mob needs a justification, the greater part of which has been aided by both major and minor mendacities originating from the press. Those include but certainly are not limited to Isikoff (Newsweek), David Shuster (NBC), Neil Lewis (NYT) and Murray Waas (Natl. Journal).

Douglas Kmiec, one of the signatories of the amici brief, handled it nicely in stating, as reported in the WaPo, that he was "constitutionally grateful" that there have been so few prosecutors such as Fitzgerald who enjoyed "such unsupervised independence and that has been solely aimed at investigating a single incident of highly political origin and that has been so concentrated upon one person."

"Constitutionally grateful" being succinctly on-point. Too, in all of this, Armitage's and Wilson's mendacities, in addition to the mendacities originating from the press and from other quarters still, are swept under the rug.

Clarice Feldman at American Thinker has written extensively and more conscientiously than most on the Libby case.

In sum and w/o exaggeration, political operatives, the press and the judicial system are vastly more culpable in terms of mendacities, individually and in concert, than Libby, who's sentence is a reflection of Judge Walton's own malign self-indulgence.
6.12.2007 8:05pm
PDXLawyer (mail):
All too common - a judge who, having decided, is annoyed that anybody would have the effrontery, the gall, to question the correctness of that decision.

A more fitting response would have been "I read the amicus brief carefully, and saw nothing which persuaded me that the questions on appeal are close." That would have been doing his job. There are good and bad trial judges all across the political spectrum. A big part of the art is being able to decide without involving the judge's own ego and personality in the case. A judge who can't do better than this ought to consider going back to defending DUIIs.
6.14.2007 10:40pm