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Libby Judge Insults Amicus Law Professors?

From the AP report:

A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis "Scooter" Libby in the CIA leak case, a ruling that could send the former White House aide to prison within weeks....

[U.S. District Judge Reggie B. Walton] never appeared to waver from his opinion that a delay was unwarranted. After 12 prominent law professors filed documents supporting Libby's request, the judge waved it off as "not something I would expect from a first-year in law school."

Maybe I'm missing the context, but this seems rather intemperate. I've read the motion, which is signed by leading constitutional law professors (Vikram Amar and our own Randy Barnett), leading criminal law commentator Alan Dershowitz, and Robert Bork, and which is signed as amici by the same people plus several other well-respected scholars. It's well-reasoned and extremely competent; I'm not sure I'd agree with it, but it makes a thoughtful and plausible case for its position. There seems to me no cause at all for the judge to react this way.

Thanks to Bill Patry for the pointer to the AP story.

Sam Heldman (mail):
In one sense, the answer is merely "welcome to the practice of law" - judges often believe that filings are worthless when the filer (or the filer's friends) think otherwise.

In another sense, such reactions are a good opportunity for the filesr (or the filers' friends) to re-calibrate their own sense of what a good filing consists of.

All in all, even if you still disagree with the judge, this may just be a good reminder that erudite law professors are doing something extremely different from the practice of law. In this case in particular, these filers' sense of what was worth filing reflects the fact that they are far detached from the day-to-day work that lawyers and judges do.
6.14.2007 5:28pm
A.S.:
Judge ain't standing for anybody trying to prevent him from railroading Libby.
6.14.2007 5:30pm
ejo:
judges usually think they are quite brilliant, no matter if they are adjudicating traffic cases in the local branch court or have attained the lofty status of federal judge. as I thought on first blush, the footnote was that fragile ego in action. as to the contempt of the judge, the civility nonsense spouted from the bench is usually a one way street.
6.14.2007 5:36pm
Steve:
The judge may have been reacting to the fact that the argument was extremely cursory, and seemed to say nothing that Libby's attorneys hadn't already said. In this context, it seemed like little more than an attempt to bolster a legal argument not with logic but with the reputation of those arguing for it.

In other words, we don't decide legal issues in this country by seeing which side can get the most big-name law professors to sign onto it. And since the brief added no special insight regarding the issue at hand, it seemed like an attempt to score a political point and nothing more. Now the clowns who believe things like "poor Scooter is being railroaded" get to say "12 law professors disagreed with the judge, obviously it must be a close issue!"
6.14.2007 5:36pm
anonVCfan:
Maybe he meant it in a good way. I'd be pleasantly surprised if a 1L gave me something that succinct and well-researched.

Not everyone takes "better than a 1L" as high praise, but hey...
6.14.2007 5:37pm
ejo:
6 odd years as a lawyer, the rest of his career as a judge-that establishes his brilliance.
6.14.2007 5:39pm
whackjobbbb:
Kinda thin-skinned there, ain't ya', Your Eminence? "Intemperate" is the proper word, I agree.

Not very respectable behavior from the legal profession these days, I must say. That Nifong guy... this judge... and lawyers wonder why they're held in such low esteem.
6.14.2007 5:39pm
Cornellian (mail):
I think the judge is simply irritated at seeing a battery of elite academics rush to Libby's defense, with the implicit assumption (perhaps unintended) that their names and resumes would add weight to their argument.
6.14.2007 5:39pm
Cornellian (mail):
I noticed in the news story that the judge also mentioned he's now getting a flood of hate mail over his ruling. Such is the level of debate to which this culture has descended.
6.14.2007 5:40pm
Anonymous Liberal (mail) (www):
It might have something to do with the fact that this was, almost surely, the first "amicus brief" ever submitted to a bail hearing in the history of our criminal justice system. There weren't even any constitutional issues before the court (just the question of whether Libby should be allowed to post bond). It would be one thing if a brief like this was submitted to the D.C. Circuit on appeal, but to submit it at a bail hearing is to invite mockery.

It's not as if Libby was some indigent defendant. He had a dream legal team that was more than capable of making these same arguments. And what possible relevant interest can these professors have in a bail hearing that warrants being allowed to intervene as amicus curiae. It's one thing if the judge was deciding some important legal precendent. But he wasn't. It was bail hearing. Nothing being decided at the hearing would have any impact whatsoever on the constitutional issues that will be litigated on appeal.

The "statement of interest" in the brief was truly bizarre, primarily because it didn't state an interest at all. In fact, the professors claimed not to be taking any position on the issue of whether Libby deserved bail, which seems a little disingenous considering that the obvious (and only) purpose of submitting such a brief at this stage is to influence Walton's bail decision.

I've got nothing against these professors generally, but this particular brief struck me as being worthy of mockery.
6.14.2007 5:44pm
Ugh (mail):

Judge ain't standing for anybody trying to prevent him from railroading Libby.


Yep, it's his revenge against the Bush administration for appointing him to his godforesaken position in the first place. Damn you George W. Bush for making me a federal judge!
6.14.2007 5:45pm
JunkYardLawDog (mail):
Who appointed this Libby judge and what is his name??

Says the "Dog"
6.14.2007 5:45pm
Martin Ammorgan (mail):
What Anonymous Liberal said. From the brief:

"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."

What was the issue to be determined at today's hearing?

I think they ought to be sanctioned for such idiocy.
6.14.2007 5:50pm
Apodaca:
Maybe Judge Walton was annoyed by the too-cute statement up front that
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.
That's a little like saying, "You can go jump in a lake, regardless of whether it makes you get wet all over."

Also, however much one venerates Akhil Amar -- cited ad nauseam in the brief -- the last time I checked his law review articles aren't binding precedent within the D.C. Circuit. Perhaps Judge Walton has committed a breach of judicial decorum by declaring that amici's legal claim has no clothes, but I think his (and Pat Fitzgerald's) take on the legal susbtance is dead on.
6.14.2007 5:50pm
Kovarsky (mail):
And there's not even an underlying crime proven!
6.14.2007 5:51pm
Kovarsky (mail):
i have to admit deriving some twisted pleaseure from watching administration apologists suddenly rush to the defense of the academics they so often deride.
6.14.2007 5:54pm
Apodaca:
Quoth Kovarsky:
And there's not even an underlying crime proven!
I'd be grateful to Mr. Kovarsky if he could point out which of 18 USC secs. 1002(a)(2), 1503, or 1623 requires this element.

Take all the time you need, friend.
6.14.2007 5:58pm
Dilan Esper (mail) (www):
I think Anonymous Liberal gets at most of it. I think we should also remember, as Judge Posner has observed, that the purpose of an amicus brief is to assist the Court by bringing to its attention something the parties haven't pointed out. Way too many amicus briefs are filed by people who want publicity, or want to use them as a fundraising tool (by showing their donors that they are fighting the good fight), or want to persuade the Court with an appeal to the authority of the people signing the briefs.

If you think of it from that standpoint, Judge Walton's reaction becomes, if still a bit intemperate, perfectly understandable. He got a "friend of the Court" brief that wasn't helpful to him at all. It didn't say anything that the merits briefs didn't already say. It didn't point out something that his clerks wouldn't have been able to discover on their own. It was clearly directed towards publicity and an appeal to authority rather than helping the Court out on an issue where the Court needed help. (And, I might add, Walton is well aware that the ultimate end of this has as much to do with allowing Bush to delay the decision as to whether to pardon Libby until after the 2008 election when he is more likely do so, and to keep him out of jail beforehand.)

Walton is expressing a federal judge's exasperation that big cases draw "friend of the Court" briefs that, rather than helping the Court, simply create more paperwork for the Court to review.
6.14.2007 5:58pm
Steve:
I took some time to read Libby's original motion to dismiss the indictment, which was his original attempt to raise the issue of whether Fitzgerald's appointment was constitutional, filed back in February 2006. It's a well-written and well-argued 33-page brief.

The amicus brief, which contains less than 5 pages of argument, seems to simply take the high points of Libby's earlier argument, lump in a few law review citations, and conclude that the legal issue is a close one. It's not that the brief is poorly written or anything like that; but it could hardly be plainer that the amici are doing nothing more than throwing their names and reputations behind the arguments already made by Libby's counsel. Their brief adds absolutely zero to the case.
6.14.2007 6:01pm
alkali (mail) (www):
No matter who a would-be amicus curiae is ... the criterion for deciding whether to permit the filing of an amicus brief should be the same: whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties' briefs. The criterion is more likely to be satisfied in a case in which a party is inadequately represented; or in which the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or in which the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide. In my experience in two decades as an appellate judge, however, it is very rare for an amicus curiae brief to do more than repeat in somewhat different language the arguments in the brief of the party whom the amicus is supporting. Those who pay lawyers to prepare such briefs are not getting their money's worth.
While the amicus briefs sought to be filed in this case contain a few additional citations not found in the parties' briefs and slightly more analysis on some points, essentially they cover the same ground the appellants, in whose support they wish to file, do. ... This is not a case in which a party is inadequately represented, or the would-be amici have a direct interest in another case that may be materially affected by a decision in this one, or they are articulating a distinctive perspective or presenting specific information, ideas, arguments, etc. that go beyond what the parties whom the amici are supporting have been able to provide. Essentially, the proposed amicus briefs merely announce the "vote" of the amici on the decision of the appeal. But, as I have been at pains to emphasize in contrasting the legislative and judicial processes, they have no vote.
Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (Posner, J., denying leave to file amicus briefs) (citations omitted).
6.14.2007 6:05pm
phillip ind:
Undoubtedly, West Virginia Law School is an elite institution, and Judge Walton certainly deserved to be appointed to the bench as he is obviously a highly qualified, intelligent, and decent gent.

I'm also told that he sings tenor in his church group's gospel choir, "The Dixie BlueBelles."

Still, one can't help but wonder if all of the liberal Jewish efforts on behalf of African Americans have come home to roost in Judge Walton's treatment of Lewis Libby.
6.14.2007 6:06pm
Martin Ammorgan (mail):
I do hope Professor Barnett, whose 9th amendment scholarship I do respect greatly, will explain the genesis and reasoning behind the filing of this frivolous monstrosity.
6.14.2007 6:08pm
Matt Tievsky (mail):
FWIW, my dad interacted with Walton professionally, back when the judge was a lawyer. While the trial was ongoing, my dad confided in me that Walton was not the sharpest knife in the drawer.

But for all I know, Walton could be right.
6.14.2007 6:08pm
Kovarsky (mail):
Apodaca,

I'd be grateful to Mr. Kovarsky if he could point out which of 18 USC secs. 1002(a)(2), 1503, or 1623 requires this element.

I was being facetious. I just didn't want the apologia to go too long without someone lobbing in that farcical talking point on its behalf.
6.14.2007 6:10pm
Maureen001 (mail):

Matt Tievsky:
FWIW, my dad interacted with Walton professionally, back when the judge was a lawyer. While the trial was ongoing, my dad confided in me that Walton was not the sharpest knife in the drawer...


Perhaps this is the source of the good judge's ire? He was looking for some help here, but what he got was a restatement of the defense's arguments...
6.14.2007 6:19pm
Anonymous Liberal (mail) (www):
Good cite to that Posner opinion. That pretty much says it all. These professors were essentially just stating their "vote." And not only that, they were stating their vote in the context of a bail hearing, where the constitutional issues they purport to care about aren't even before the court.

What's odd about this particular amicus brief is that it reads like the report of a hired expert. The tone throughout is essentially "we've been asked to opine on issue X, so here's our opinion; we disclaim any intent to opine about anything else." That's fine for an expert report, but in an amicus brief you are supposed to have some genuine interest in the outcome of what is being litigated.
6.14.2007 6:22pm
Anderson (mail) (www):
one can't help but wonder if all of the liberal Jewish efforts on behalf of African Americans have come home to roost in Judge Walton's treatment of Lewis Libby.

Uh, I certainly can.

And I'm sorry to see Judge Posner being so intemperate.
6.14.2007 6:23pm
Public_Defender (mail):
An argument can be well written, completely plausible, but absolutely stupid as a work of advocacy. Law professors sometimes don't understand the difference between a thoughtful law review article and a motion designed to persuade a judge to do something.

Libby faces a problem that all convicted defendants face when they continute to maintain their innocence. "I didn't do it" is a counter-productive argument to make at sentencing.

The hoards of powerful Washington people defending him make things worse. It's evidence that a swift sentence is necessary to deter other crime. The law professors' motion probably made things worse.

A motion can be well-reasoned but monumentally stupid. The law professor would have shown some common sense by keeping their powder dry for the court of appeals.
6.14.2007 6:24pm
CJColucci:
Some years back, as a moot court judge, I asked a pompous first-year law student who was lecturing us on some fine point in the cases, "What, exactly, do you want us to do?" The poor fellow was stricken and babbled inanely until someone else on the panel put him out of his misery with another question.
When I read the amicus brief, I had the same question. Maybe these guys are right, and, if so, Scooter gets a walk on appeal. But what conceivable purpose could such a brief serve now? Not to mention that he had heard it all before, from Scooter's extremely competent legal team, at a time when it would have mattered. What did the amici want the judge to do? As far as I can see, they have no better answer to that question than my hapless 1-L from moot court.
6.14.2007 6:24pm
Steve:
Still, one can't help but wonder if all of the liberal Jewish efforts on behalf of African Americans have come home to roost in Judge Walton's treatment of Lewis Libby.

Wow. Just wow.
6.14.2007 6:25pm
Public_Defender (mail):
Maybe Judge Walton was annoyed by the too-cute statement up front that


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.


I'll defend the professors on this point. Amici regularly take a position on only one issue in a case without addressing who should win or lose.
6.14.2007 6:30pm
Milhouse (www):
the implicit assumption (perhaps unintended) that their names and resumes would add weight to their argument.
Not at all unintended, and their names and resumes should add weight on this particular issue. The issue here is not whether Libby's argument is right, but whether it's a close issue; the fact that all these people think it is, pretty much makes it so. And that is something that the defense didn't and couldn't bring to the court's attention without the amici brief.
6.14.2007 6:35pm
scote (mail):
Ha! I'm vindicated. From the last post on the Amicus:

"Clearly the fancy names help the Libby team. I can't imagine the same brief being accepted in this case if it had been authored by a random lawyer of no specific repute. It is kind of too bad that is the case. The legal argument should hold water on its own rather than on the star power of its authors."

I'm not following this point. What's wrong with the brief that, had it been submitted by a less known attorney, would have got it rejected?


Why, yes.
6.14.2007 6:36pm
alkali (mail) (www):
Why would anyone (anyone, that is, without an interest in whether Mr. Libby is free pending bail) care whether federal courts deem the Appointments Clause issue presented in U.S. v. Libby a close one?

(I can imagine someone having an interest in how federal courts ultimately rule on the issue one way or another, but I can't imagine anyone -- subject to the qualification above -- affirmatively wants the federal courts to consider the question to be a close one.)
6.14.2007 6:37pm
PatHMV (mail) (www):
Contrary to what some have pointed out, the brief was relevant to the issue before the court today. The amici argued the position that the legality of Fitzgerald's appointment was "close," that the defendant has a good chance at success on the merits of appeal on that issue.

One of the criteria for determining whether to grant bail pending appeal is whether any appellate issues are close, and whether the defendant has a strong chance of prevailing on appeal. The amici brief (and I take no position on its strengths or weaknesses, not having read it) is very much relevant to the issue decided by the judge today.
6.14.2007 6:42pm
Anderson (mail) (www):
the fact that all these people think it is, pretty much makes it so.

Um, no, it doesn't. I think law professors sometimes fail to recognize how little weight their views are generally given by the courts.

Me, if I'm citing to the court, I'll take one unpublished distict-court memo op from the Virgin Islands, over a law article signed by every law professor at Harvard, Yale, and Berkeley.
6.14.2007 6:42pm
Apodaca:
Quoth Public_Defender:
I'll defend the professors on this point. Amici regularly take a position on only one issue in a case without addressing who should win or lose.
Amici do indeed do that regularly, but it's hardly a defense in this case because that isn't what these amici did.

The amici argue that there is a substantial legal claim that Fitzgerald's appointment (and thus the entire prosecution) is constitutionally defective. If one accepts that claim, it follows ineluctably, in the present procedural posture of the case, that Libby is entitled to bail pending appeal.

There was a time -- a year ago, when Libby first briefed this argument to the court before trial -- when the Appointments Clause question was, indeed, only one of many issues before the court. The fact that the amici delayed until after the verdict and sentencing to propound their views gives the lie to any claim that their "assistance" to the court is devoid of any interest in affecting his bail status.
6.14.2007 6:43pm
Public_Defender (mail):
Is Al Dershowitz really a "leading criminal law commentator" anyplace but his own mind (or maybe Fox News/Nancy Grace/Geraldo type shows)?

Seriously, what has he done that's useful for the practicing criminal bar? Is he even still a serious academic? Or is he just coasting on his tenure?
6.14.2007 6:46pm
Anonymous Liberal (mail) (www):

Contrary to what some have pointed out, the brief was relevant to the issue before the court today. The amici argued the position that the legality of Fitzgerald's appointment was "close," that the defendant has a good chance at success on the merits of appeal on that issue.


PatHMV,

No one is suggesting that the issues raised in the brief were not relevant to the bail decision. We're questioning what the point of the amicus brief was. What possible relevant interest do these professors have in a post-conviction bail hearing, and what are they bringing to the table that justifies filing a brief? The brief itself added nothing. Moreover, the only possible reason for intervening at this stage of the proceedings (as opposed to at the pre-trial stage or at the actual appeal) is to convince Judge Walton to grant bail, something the professors disingenuously claim not have any position on.
6.14.2007 6:50pm
Steve:
The issue here is not whether Libby's argument is right, but whether it's a close issue; the fact that all these people think it is, pretty much makes it so.

But we can't have a legal system where the disposition of a legal issue, any issue, comes down to how many prestigious scholars you can get to sign a brief for you. This goes back to Judge Walton's previous snide point about whether these professors would be submitting future amicus briefs for penurious criminal defendants; the point is that our notions of equality before the law aren't consistent with a system where the run-of-the-mill defendant goes to jail pending appeal, while the privileged defendant solicits a brief from his law professor colleagues and thus is automatically entitled to a stay by virtue of the logic you espouse.

You're also making an error in concluding that this amicus brief necessarily reflects what the signatories "think." An amicus brief is just an argument like any other; it may be persuasive, or it may be unpersuasive, but it tells us nothing about anyone's actual thoughts on an issue. Hypothetically, let's assume Randy Barnett and Alan Dershowitz are on opposite sides of a case, and they disagree as to a particular legal issue; does that automatically establish that it's a close issue, because these two really smart guys disagree? Not at all; it would be clear to everyone that they're just advocates and you have no idea whether their positions are sincerely held. By the same token, amici curiae do not occupy some special status where they're presumed to be disinterested observers.
6.14.2007 6:51pm
Joe Bingham (mail):
The judge could easily have said "I don't think their argument added anything that hasn't been said."

That's very different from saying "I would've expected better from a first-year law student," which is what he said. People here are talking as if he's criticizing them for the filing (which he did implicitly earlier) when in fact he's calling them idiots for either the opinion they expressed or the reasoning they offered.

I heard the statement in context; it was very offensive.
6.14.2007 6:52pm
Public_Defender (mail):
Um, no, it doesn't. I think law professors sometimes fail to recognize how little weight their views are generally given by the courts.

Me, if I'm citing to the court, I'll take one unpublished distict-court memo op from the Virgin Islands, over a law article signed by every law professor at Harvard, Yale, and Berkeley.


I agree.

The law professors who matter are the ones who address issues affecting 1000's of cases every day. Ohio State's Douglas Berman and Michigan's Richard Friedman are truly "leading criminal law commentators" because they write about subjects that really matter (sentencing law and the Confrontation Clause).

How many articles has Dershowitz written that are useful to more than two or three people?
6.14.2007 6:54pm
Martin Ammorgan (mail):
Au contraire Bingham. I think the judge went too easy on them. The failure to spot the relevant issue was so glaring in this brief I'd say the authors aren't qualified to take the LSAT.
6.14.2007 6:56pm
scote (mail):

That's very different from saying "I would've expected better from a first-year law student," which is what he said. People here are talking as if he's criticizing them for the filing (which he did implicitly earlier) when in fact he's calling them idiots for either the opinion they expressed or the reasoning they offered

That statement doesn't call them idiots, especially since you omitted the context you claim to have heard it in: "Walton: With all due respect, these are intelligent people," I believe he is calling them disingenuous.
6.14.2007 6:58pm
Hattio (mail):
Should we have a challenge to see if anyone can find a conservative blasting Posner for being "intemperate" in the above quote. (Besides, of course, the commentator who called him that just today). It's been out since 2003. Surely the conservatives voices who care so much about the rights of Amici to make their arguments in the cases they choose (damn that law about only in cases where they would actually be helpful) have been blasting Posner equally for four long years.
6.14.2007 6:59pm
Anderson (mail) (www):
when in fact he's calling them idiots for either the opinion they expressed or the reasoning they offered.

Judges do that all the time, tho appellate judges generally find more refined ways of doing so than does a trial-court judge. This week's al-Marri opinion fell just short of mocking the feds' more implausible arguments.

One authority on the subjet of amicus briefs might be cited for how not to write one:

Focus primarily on repeating the arguments of your favored party. After all, anything worth saying once is worth being said by everyone who wants to say it. The official term for this (originally from Law French) is the "moi aussi principle."
6.14.2007 7:00pm
ejo:
the simple fact is this-he allows the filing, a discretionary move, and then mocks it. that's an ego thing with the judge-he gets to make fun of professors at elite schools despite a short career as a lawyer and many years on the DC bench dealing with family law issues. it wasn't the judge's brilliance on display.
6.14.2007 7:01pm
SR (mail):
I think that the judge was driving home the fact that the brief seemed more of a collection of pull quotes from many of the professors' law review articles rather than an argument grounded in the law. I especially liked how the brief claims that doubt has been cast on the continued validity of Morrison by citing scalia, who dissented, and an article by Amar.
6.14.2007 7:01pm
whackjobbbb:

Why would anyone (anyone, that is, without an interest in whether Mr. Libby is free pending bail) care whether federal courts deem the Appointments Clause issue presented in U.S. v. Libby a close one?


Because they want to drive a stake through the heart of this "independent counsel" nonsense, once and for all time?
6.14.2007 7:06pm
Steve:
It's worth noting, for the sake of fairness, that Scalia's dissent in Morrison was extremely persuasive! That said, he still lost 7 to 1.
6.14.2007 7:08pm
Anderson (mail) (www):
I especially liked how the brief claims that doubt has been cast on the continued validity of Morrison by citing scalia, who dissented, and an article by Amar.

Exactly. Morrison was 8-1, no? Scalia's dissent is about as interesting to a district-court judge as Paris Hilton's opinion on the same subject.

I'll concede that the 1-L remark was indeed intemperate, but then, it is possible to provoke someone's temper, and lawyers are supposed to have that in mind.
6.14.2007 7:10pm
whackjobbbb:
And by the way, that Posner guy said it, and he said it with class, something this judge might take a lesson on, as he spends my tax dollars.
6.14.2007 7:10pm
Jim Rhoads (mail):
If the constitutionality of Fitzgerald's appointment is a "close" question, there is a "substantial" possibility of reversal on that grounds under DC Circuit precedent. The Amicus Brief is relevant because the sentencing statute and DC Circuit law makes it so.

Why shouldn't professors of Constitutional Law (liberal and conservative as the 12 professors are) be interested in that?

I predict that neither the majority of DC Circuit judges nor the majority of SCOTUS Justices (if the case goes that far) will approve of Judge Walton's antipathy toward the Amicus position.

But it's just one man's prediction. We will see.
6.14.2007 7:10pm
Sebastian Dangerfield (mail):
Eugene: "Maybe I'm missing the context ...."

Yep. See, e.g., Anonymous Liberal, Apodaca, &Steve above, who have made the real-world context of this ridiculous filing clear enough even for a law professor.

Another part of the context you're missing: A slew of huffing and puffing letters from Big Important People (mostly D.C. movers and shakers) urging that Scooter receive a lenient sentence because he's a good guy who would never do the things he was convicted of, and won't do them again, either. He's a man of character, and they should know because they're all people of character.

Add to that the ridiculous footnote 1 from the defense's motion for bail - that which clearly suggests that white-collar types (e.g., Safavian, Quattrone, Stewart) akways get freed while appealing. Going to jail is for suckas. (Interestingly, though, Martha Stewart was the only one who manned up and headed to her assigned lodging early.)

Put all this together and you have more than a little to suggest an almost explicit argument that real jail time is for the proles, not for those with such substantial means and connections that they can make the judge count their friends and score their pedigrees.

Now, you might say, that's as may be, but can you fairly lay all that at the door of the esteemed professors? To which I might say, hell yes I can. And in support, I regurgitate a little of what I wrote the last time that you professed to be mystified by the chilly reception that Walton gave the Bork 12:

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 by a dozen professors in aid of a convicted 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 — if we're talking about a trial court - or as is more common at the appellate level. 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 important constitutional question 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 - notwithstanding that the 12 pretend that they are indifferent to that question.
6.14.2007 7:11pm
Public_Defender (mail):
If you think of it from that standpoint, Judge Walton's reaction becomes, if still a bit intemperate, perfectly understandable. He got a "friend of the Court" brief that wasn't helpful to him at all. It didn't say anything that the merits briefs didn't already say. It didn't point out something that his clerks wouldn't have been able to discover on their own. It was clearly directed towards publicity and an appeal to authority rather than helping the Court out on an issue where the Court needed help. (And, I might add, Walton is well aware that the ultimate end of this has as much to do with allowing Bush to delay the decision as to whether to pardon Libby until after the 2008 election when he is more likely do so, and to keep him out of jail beforehand.)

Walton is expressing a federal judge's exasperation that big cases draw "friend of the Court" briefs that, rather than helping the Court, simply create more paperwork for the Court to review.


Nicely said. The brief didn't add anything the judge didn't already know. Worse, it reminded the judge that many people still think Libby is being wronged, which only reinforces the need to punish Libby to deter others.
6.14.2007 7:14pm
William Newman (mail):
Kovarsky writes "administration apologists suddenly rush to the defense of the academics they so often deride".

First, has this been primarily administration supporters? I don't recognize enough of the names to know. But I am no administration apologist: like most (though admittedly not all) libertarians I feel the Bush years have done a lot to remind us that Republicans can be the greater evil.

Second, for me at least, this has almost nothing to do with defending academics, just general standards of argument and professionalism. I'm no expert in law, but in fields I do know something about, serious people avoid public venting dismissive vague summaries like "expect from a 1L." Or, at least, they avoid them unless they've backed them up pretty solidly with more objective criticism. My casual impression is that this style extends to law, as well. E.g., Volokh Conspiracist Jim Lindgren let fly publicly with some harsh venting summaries in his _Fall From Grace_ critique of _Arming America_ (webbed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=692421): try "Unless one goes through all the book's comments on a particular topic and the evidence cited to back them up, one can't really see just how systematic the errors are." But you don't want to be saying things like that in the absence of some detailed specific claims, like "nearly every sentence that Bellesiles wrote about probate records in the original edition of _Arming America_ is false."

If the judge had also written "nearly every paragraph contains a citation error," or pointed out some more-legally-sophisticated specific sloppiness which I am too ignorant to dream up, then the venting remark might seem consistent with seriousness and professionalism. But as far as I know, the judge didn't provide any objectively checkable justification for his assessment, just the venting summary of his vague judgely gestalt. (If he did provide more detailed justification, I'm surprised Eugene Volokh didn't address it at the top, and more surprised the judge's many impartial supporters who have no political axe to grind in the case aren't quoting it so often that I can't overlook it even in the long thread.) And if the judge didn't provide such justification, his snideness is easily enough to raise my hackles, despite no particular wish to see Libby go free and no particular axe to grind about defending law professors from judges.

I think this is probably a pretty normal reaction, not just a reaction to the specifics of the case. Do you think it would be easy to find people to defend one of these law professors publicly volunteering the same remark about the same judge's written opinion on a politically neutral case without deigning to give specific justification?
6.14.2007 7:21pm
Sebastian Dangerfield (mail):
As for Eugene and others getting the vapors because a judge has -- gasp -- said something a little mean to counsel or amici, I would suggest spending a few years in the trenches. If you actually litigated cases before the federal bench (trial and appellate), I think you'd either need to carry a fainting couch with you to court or learn that this is a tough profession.

If you'd just like to be a tourist, hang out at the D.C. Circuit when it's sitting. Or perhaps gaze on the prose stylings of that respected jurist Laurence Silberman, who just last month in a published opinion rejected arguments put forward by lawyers for the Coast Guard as "not ... worth a tinker's damn" and "unworthy of the government."
6.14.2007 7:22pm
r78:
If the brief did not take a position on the issue that was actually before the court, what good is it?

And, gosh, I am surprised that Mr. Bork who was so injured in his fall off the dais that he is seeking punitive damages was able to pull himself together enough to write an amicus brief. I mean, he did participate in the writing of it along with Dershowitz et al., right?
6.14.2007 7:26pm
alkali (mail) (www):
Whackjobbb suggests the amici wrote the brief ...

Because they want to drive a stake through the heart of this "independent counsel" nonsense, once and for all time?

That would be a good reason to write a brief. (I think I might disagree with it in substance, but it is definitely a serious position.) However, it's not what the brief says. The brief contends that the question is "close" without taking a position on how it should be resolved.
6.14.2007 7:34pm
Anonymous Liberal (mail) (www):

I'm no expert in law, but in fields I do know something about, serious people avoid public venting dismissive vague summaries like "expect from a 1L."


Judges ALWAYS say "dismissive vague" things. It goes with the territory. One of the perks of being a judge is that you don't have explain your mockery. You can just mock. This is the norm, not the exception. Luckily in this case, the reason for that mockery was pretty clear, as has been explained above in some detail.

You shouldn't attempt to interject yourself into a high-profile bail hearing involving a defendant who is already ably represented unless you are prepared to withstand a little mockery. This was an unnecessary and bizarre amicus brief that contributed nothing of importantance, was disingenuous, and reeked of grandstanding.
6.14.2007 7:35pm
A.S.:
He got a "friend of the Court" brief that wasn't helpful to him at all. It didn't say anything that the merits briefs didn't already say.

You seem to be implying that if a party's brief touches on a subject, the amicus brief can't discuss the same subject, even if it would add to the depth of the argument. How odd.

It didn't point out something that his clerks wouldn't have been able to discover on their own.

What kind of strange standard is this? Since when do we rely on the judge's clerks to do the research? The point of briefs is so that the clerks don't have to do original research. I mean, every brief is something that the clerks are "able to discover on their own".

What an weird comment.
6.14.2007 7:43pm
Anderson (mail) (www):
You seem to be implying that if a party's brief touches on a subject, the amicus brief can't discuss the same subject, even if it would add to the depth of the argument. How odd.

Uh, no, A.S., he *said* -- not "implied" -- that *everything* it said, had already been said by the merits brief. That may be correct or incorrect, but it's what he said.
6.14.2007 7:46pm
Sebastian Dangerfield (mail):
SR I think that the judge was driving home the fact that the brief seemed more of a collection of pull quotes from many of the professors' law review articles rather than an argument grounded in the law.

Hear, hear. I didn't even get into to how astonishingly thin the brief is substantively.
In this corner, there is Morrison, a major Supreme Court precedent -- in all the casebooks on Con Law and Admin Law -- dealing with the Appointments Clause in a factually analogous context (i.e., independent prosecutor types). Famous, 8-1 decision, and Scalia's dissent suggests he would have joined the majority if there was no limitation on the power to remove the prosecutor.

In the other corner, you have Edmond, which dealt with Coast Guard judges and made it clear that it was not overruling or creating inroads on Morrison.

What do the amici do? Do they engage in any serious discussion of Morrison? No. they wish it away with the sphistry that it does not apply unless Fitzgerald's appointment was basically identical to one made under the now-defunct Independent Counsel statute. Ergo, the case about Coast Guard judges applies and nothing in Morrison is relevant. Oh, and by the way, the Supremes might want to overrule Morrison some day. Both terrible arguments. the first is just fallacious -- and transparently so. The second is lawless. It's up to the Supremes to overrule their own cases, not the D.C. Circuit, which is bound to follow the Supremes. You can't say that an issue is a close one on appeal to an intermediate appellate court based on the idea that someday the Supreme Court will change its mind. Truly awful work. All five pages of it.
6.14.2007 7:49pm
Steve:
You seem to be implying that if a party's brief touches on a subject, the amicus brief can't discuss the same subject, even if it would add to the depth of the argument.

Well, in point of fact, the 5-page amicus brief added nothing to the 33-page merits brief previously filed by Libby's attorneys, aside from a handful of citations to law review articles.

If you want to make the case that the amicus brief actually "added to the depth of the argument," feel free to review the briefs and explain. But you won't.
6.14.2007 7:54pm
Anderson (mail) (www):
Truly awful work. All five pages of it.

That's the other thing -- that most or all of the profs merely signed on, rather than actually contributing their arcane wisdom.

It's the equivalent of one of those full-page ads in the New York Times, in which English professors condemn the war in Iraq.
6.14.2007 8:10pm
whackjobbbb:
alkali, I'll defer to your legal understanding of the content of the 12 guys' submittal, and perhaps I'd agree that if they're not arguing the standing of that independent counsel, then not much point to their submittal. The guy's guilty and sentenced, so he should just collect his soap on a rope and go report to the warden.

The judge is still a jagoff, though, and no, I don't agree with Anonymous Liberal that "One of the perks of being a judge is that you don't have explain your mockery. You can just mock." Many do think that, no doubt, and more's the pity.
6.14.2007 8:13pm
Steve:
they wish it away with the sphistry that it does not apply unless Fitzgerald's appointment was basically identical to one made under the now-defunct Independent Counsel statute. Ergo, the case about Coast Guard judges applies and nothing in Morrison is relevant. Oh, and by the way, the Supremes might want to overrule Morrison some day. Both terrible arguments.

That's actually a very good summary of the amicus brief. The 1L statement may have been more apt than we imagine because one of the major differences between law school moot court and the real world is that in moot court, you get to argue any old thing you want. If the precedent is against you, just argue that it was wrongly decided. In the real world, judges just want you to tell them what the law is, and you don't get to argue to District Court judges that they should just ignore the Supreme Court.
6.14.2007 8:13pm
David M. Nieporent (www):
What a lot of the defenders of Walton ignore here is the context. Saying "Judges are often dismissive to attorneys" or "Posner was rude [which he wasn't] in Voices for Choices" misses the point.

Walton could have simply rejected this brief (as Posner did), or accepted but ignored it. (It wasn't a party's brief; he didn't need to engage it. Most amici briefs are simply ignored.) Instead, he felt the need to mock it, and those who submitted it.
6.14.2007 9:27pm
Constantin:
i have to admit deriving some twisted pleaseure from watching administration apologists suddenly rush to the defense of the academics they so often deride.

And I have to admit to some twisted pleasure derived from seeing liberal caricatures deride academics who--if they were opining the "right" (read: left) way on the war or affirmative action or economic policy--would be cited be these same people as dispositive authorities on those subjects.

These things tend to work both ways.
6.14.2007 9:29pm
PDXLawyer (mail):
An intemperate comment. Since federal judges have lifetime appointments, some become arrogant petty tyrants (though I have also known many very thoughtful and courteous ones, including Richard Posner). We can't get him fired. What we *can* do is publicly mock him. This kind of comment isn't something I'd expect from a traffic court judge.

Also, it was reported:

"[His Honor] also said he received several "angry, harassing, mean-spirited" letters and phone calls following his sentencing but said they wouldn't factor into his decision."

Doesn't this guy have staff to screen his mail and telephone calls? Why does he even know the contents of these ex parte communications? I'd expect better from a legal secretary.

None of the above means I endorse the amicus brief.
6.14.2007 10:06pm
David Matthews (mail):
And for those arguing about the correctness of what Judge Walton did, rather than what he said, I think Andy McCarthy makes a very good point here
6.14.2007 10:09pm
Michael B (mail):
"And I have to admit to some twisted pleasure derived from seeing liberal caricatures deride academics who--if they were opining the "right" (read: left) way on the war or affirmative action or economic policy--would be cited be these same people as dispositive authorities on those subjects.

"These things tend to work both ways."

Understatement of the day. Serves to highlight the mere cleverness at play in the service of the common, even while it's all robed in the language of high-mindedness and hard nosed worldliness, jostling for pride of place.
6.14.2007 10:48pm
David Walser:
I disagree with those arguing the opinion was ill timed or was disingenuous. The reason the 12 guys did not file a brief pre-trial or wait for the appeal is that they do not agree on the proper resolution of the constitutional question. They only agree that it is a close question. Thus, the ONLY time they could join to file a brief was at the bail hearing.

Similarly, the 12 are not being disingenuous when they claim they are NOT taking a position on whether Libby should remain free pending appeal. In addition to the requirement that Libby's appeal present a close question, other factors must be considered before determining whether Libby should remain free. The 12 are NOT taking a position on the question whether or not Libby's verdict should be thrown out if the constitutional question is resolved in his favor. (The court could hold it was harmless error.) Nor are the 12 opining whether Libby's a flight risk or his appeal is just a delaying tactic. Without addressing these issues, the 12 cannot conclude whether Libby should remain free pending appeal.

I also disagree with those that argue the brief adds nothing to the record. The only question the 12 addressed was whether or not the question of the constitutionality of Fitzgerald's appointment was close or not. They are not trying to show where the court's prior ruling was wrong. (Some may agree with the result, if not the reasoning.) What was "new" about their brief was that 12 distinguished law professors -- from all parts of the legal spectrum -- agree that reasonable arguments can be made contrary to Walton's conclusion pre-trial. That was an argument they made persuasively and cogently. Law professors may not be experts about the practical aspects of the law. They are experts on theory. And whether or not a constitutional issue presents a close question is more theory than practice -- an area well within the professors area of expertise.
6.14.2007 11:59pm
Bob Leibowitz (mail) (www):
I thought Judge Walton's comments were at the outer limits: intemperate, injudicious, discouraging to faith in the system.

I thought they were so, until I read the comments here.

There's little credit to the legal profession to be found amongst these comments, and nothing that a user of the law, as opposed to a practitioner, will find that inspires confidence in the rule of law as practiced by such as these.
6.15.2007 12:14am
Anderson (mail) (www):
And I have to admit to some twisted pleasure derived from seeing liberal caricatures deride academics who--if they were opining the "right" (read: left) way on the war or affirmative action or economic policy--would be cited be these same people as dispositive authorities on those subjects.

"Caricatures" because that's how you see them. I think my snide remark about English professors above gives the lie to that caricature.

--David Matthews, thanks for the McCarthy link. It does suggest that the present rules don't make a whole lot of sense: "I think your conviction will probably be reversed, but I won't reverse it myself, I'll let the appeals court do it"?

More "tough on crime / stop the liberal judiciary" cleverness. Oops.
6.15.2007 12:24am
Martin Ammorgan (mail):
Mr. Walser, it was worthless. The government surely could have dredged up 12 prominent professors who would argue it wasn't close.

Mr. Leibowitz, are you batting clean-up for the Libby Defense fund? Your comment is beyond ridiculous.

You want to see a confidence destroyer in the rule of law, check out the status quo at the upper reaches of the DOJ.
6.15.2007 12:30am
Apodaca:
David Walser writes:
The reason the 12 guys did not file a brief pre-trial or wait for the appeal is that they do not agree on the proper resolution of the constitutional question. They only agree that it is a close question.
As excuses go, that's pathetic.

It's pretty clear that many or even most of the 12 don't really think it's merely a close question: they affirmatively think that Fitzgerald's appointment was improper (whether by operation of Edmond overruling Morrison v. Olson sub silentio or on other grounds). Not being stupid (but rather disingenuous; see above re their disclaimer on the bail question), however, they pitched their amicus brief at the section 3143 standard.

No, a good many of the amici clearly entertain far stronger views than the milquetoast "gosh, it's a close question" position. So spare me the irrelevant claim that this precise conglomeration of 12 couldn't possibly have weighed in before. Who cares, when several of them plainly could have weighed in earlier in the prosecution?

As for
[n]or are the 12 opining whether Libby's a flight risk or his appeal is just a delaying tactic,
you're grasping at gossamer. Neither the probation office nor Fitzgerald has ever made any such suggestion; indeed, Fitzgerald expressly disclaims that argument (see Mem. n.1).
6.15.2007 12:39am
Michael B (mail):
The jostling continues, in part helping to highlight the fact of the moral substrate upon which the legal proceedings are being played out. Too, the Andrew McCarthy link is illuminating, the penultimate graph being pivotal in terms of future proceedings.

Helps to underscore the more than warranted concerns expressed in the amici brief, regardless as to how it will eventually play itself out Constitutionally and within existing statutory boundaries.
6.15.2007 1:01am
Christopher Cooke (mail):
I am not sure that the issue is a "close" question. I think the Judge was a bit harsh, but he was reacting to the profs' moth-like behavior, i.e., they were filing an amicus to seek the light of publicity cast by this famous prosecution, not because they had anything novel to say about the legal issue.
6.15.2007 1:25am
David Walser:
Yes, the government could have drummed up 12 professors who would be willing to say it's not a close question. (Although, I cannot see how anyone would think that after having studied the issue. Walton's opinion on the question was full of laments about how difficult the issue was to resolve, yet we are to believe only one outcome was reasonable?) So what? Whether a question is close or not is not determined with scientific precision. It's a balancing of all the arguments and authorities to determine whether or not one can make a strong argument or not -- not an argument that is more likely than not to prevail, but an argument that is substantially stronger than merely colorable. The fact 12 distinguished law professors (who don't have common political views) all agree that such an argument can be made is one pebble of evidence to be placed on the scale on the side of this being a close question. I think it's a pretty heavy pebble. YMMV.
6.15.2007 1:31am
whackjobbbb:
OK, as long as we're indulging in "twisted pleasures", I sorta hope the court throws out everything about this Libby case, and he walks off scot free. After Cheney skated, and Bush and Rove, and... and ... THOSE LYING BASTAGES... well ALL those neocon SOB's are skating... but if finally... in the end... Scooter walks, after all these Buhitler people have manipulated the system... so many travesties of justice... and now Libby is back in business... well, the Angry Left BDS types are gonna have a friggin' kitten... AND I WANNA SEE IT!

So that's my twisted pleasure.
6.15.2007 1:36am
Steve:
The reason the 12 guys did not file a brief pre-trial or wait for the appeal is that they do not agree on the proper resolution of the constitutional question. They only agree that it is a close question.

So you have, let's say, these 6 law professors who believe that Fitzgerald's appointment was unconstitutional.

When Libby moves to dismiss the indictment, do they file an amicus brief arguing that Fitzgerald's appointment was unconstitutional? No!

When Libby is being sentenced, do they file an amicus brief arguing that the conviction is likely to be reversed on appeal? No!

What do they do? They find 6 other professors who think Fitzgerald's appointment was constitutional, and submit a brief taking no position on the constitutional issue, but merely arguing that the issue is "close"!

Because what's important, to these 6 professors, is not that the court and the world understand that Fitzgerald's appointment was unconstitutional. No, that's not important. They merely find it critical to let everyone know that the issue is "close"!

The 6 guys on the other side of the issue? Likewise, they don't care about advising the court of their views. They just want to proclaim, "Hey, world, this legal issue is really CLOSE!"

None of these people have any opinion on whether Scooter Libby should receive bail pending appeal - it simply happens that they want to advise the court of how CLOSE this legal issue is, and for each and every one of them, this takes precedence over letting the court know how the issue should actually be resolved.

I seriously cannot believe you made this argument. I can only conclude that you believe these 12 law professors are conjoined twins, constrained by nature to file briefs only as a group or not at all.
6.15.2007 2:14am
scote (mail):

The fact 12 distinguished law professors (who don't have common political views) all agree that such an argument can be made is one pebble of evidence to be placed on the scale on the side of this being a close question. I think it's a pretty heavy pebble.

The weight of the pebble you posit is lightened when you consider the timing, lack of interest and the dubious claim that they take no position on bail given that the amicus is only relevant to bail since the bail hearing has absolutely nothing to do with deciding the constitutional issue of Fits' appointment.
6.15.2007 2:14am
Public_Defender (mail):
It would be interesting for Randy Barnett to post an explanation of how this amicus came to be. We are all speculating on what was in the minds of the amici, but Barnett can give us the real story.

As to the judge's remarks, judges do lawyers a favor when they tell us they are disappointed in what we submit. Maybe they're right. Maybe they're wrong, but I want to know if the judge deciding my client's case is annoyed with me.

For reasons I've already posted, I think these professors were unwise for making this argument in the district court. It was probably counter-productive. But they now have every right to take it to the court of appeals.

I once had a court sneer at my argument, calling it "frivolous" in a written opinion. That's a fighting word for lawyers. I had the last laugh when a higher court reversed based on the argument the lower court deemed "frivolous."

Smart lawyers know when they've lost where they are. Smart lawyers know when to wait for the appeal. With all due respect to Professor Barnett, this amicus does not appear to be the result of smart lawyering.

It's usually bad lawyering to take an argument you've lost and shove it back in the face of the judge who's already rejected it. (You could call it a "first-year law student" mistake.) The professors' argument had already been made and lost. If the district judge thought it was a good argument, Libby's case would not have made it to trial.

These amici might still get the last laugh in the court of appeals. We'll see.
6.15.2007 8:01am
Public_Defender (mail):
And I repeat an earlier question that no one has been able to answer. What makes Al Dershowitz a "leading criminal law commentator" as professor Volokh describes. As a "criminal law commentator," I would put him in same category as Nancy Grace or Geraldo.
6.15.2007 8:27am
Happyshooter:
In both looks and temperment this judge reminds me of that clown who does the latest copy of the people's court TV show.
6.15.2007 9:48am
Steve:
With all due respect to Professor Barnett, this amicus does not appear to be the result of smart lawyering.

But that's the whole point. In the judge's view, this wasn't lawyering at all, but simply an attempt to score a point in the court of public opinion. Just look at this thread and the others discussing the sentencing. You have loyalists claiming Libby was "railroaded," comparing the judge to DA Nifong, saying how much he looks like some black judge who has a cheesy TV show. They're reacting just as they're supposed to.

The same people who will never, ever believe Libby was guilty of anything now believe that the judge outrageously abused his power because, of course, if 12 esteemed law professors agree that an issue is close then it certainly must be! It's sort of vexing to the court, who, like any criminal judge, gets a bit frustrated by the zombies who continue to insist on a criminal defendant's innocence no matter how much due process they receive.
6.15.2007 11:11am
JosephSlater (mail):
I don't know much (read "anything") about this area of law, but the comments, especially Apodaca's, raise a question in my mind. For the purposes of the "close question" criteria, is it sufficient that a lot of smart law profs think an on-point Supreme Court case was wrongly decided?

To take an example in a field I know, labor law, most academics that have written about the case which allows "permanent replacements" for strikers have argued that case came out the wrong way. But I wouldn't suggest, to an actual litigant, that it was a "close question" in how actual courts would actually rule because of that fact.

It would seem odd to me if this were enough to satisfy the "close question" criteria. So, were the amici instead arguing that the apparently on-point S.Ct case wasn't really on-point? Or that it was likely to be overruled?
6.15.2007 11:37am
amy (mail):
Poor Judge Walton. He's a Rebublican appointed by Poppa Bush, and now he's hailed as a hero by the left and treated wtih contempt by the right. And he dares to have a bit of a temper and a sarcastic bent . . . woe is he, woe is he. Good thing he has a lifetime appointment and this too, shall pass. :)
6.15.2007 11:38am
William Newman (mail):
It seems totally impractical for me to read enough law and briefs to learn to double-check the assessments made here, so I am left looking at dueling authorities. On one hand, E. Volokh started the ball rolling with "well-reasoned and extremely competent [...] no cause at all for the judge to react this way." On the other side, we have Anonymous Liberal "truly bizarre [...] this particular brief struck me as being worthy of mockery" and Public Defender "monumentally stupid" and SR "the brief seemed more of a collection of pull quotes" and Sebastian Dangerfield "almost explicit argument that real jail time is for the proles [...] mroe than a little facially unseemly". One thing that might help is if I knew a little bit about the authorities. So: can anyone direct me to an informed non-pseudononymous assessment of the controversy which can be reconciled with the scathing anonymous/pseudonymous posts in this thread?
6.15.2007 12:19pm
Donald (mail) (www):
Sebastian nailed it last night at 6:11 pm. Given the shoddy merits of the brief and the timing of the filing, the whole thing reads like condescension by law profs to a lowly trial judge. No trial judge worth his or her robe would roll over for this purported show of academic strength.

I don't doubt that some or all of the profs do believe there is a constitutional problem with Fitzgerald's status. But to file the brief when it was filed looks like pure politics. Get a few "liberals" to window-dress the brief and make it look sincere, and then try and keep the pardon pressure off of Bush for a while by keeping Scooter out of jail.
6.15.2007 12:31pm
Sebastian Dangerfield (mail) (www):
William: There are actually two sets of issues swirling around here: (1) the merits of the underlying issue of whether Fitzgerald's appointment to investigate possible criminal activity by Executive Branch personnel violates the Appointments Clause, and (2) whether the amicus brief was an appropriate and/or wise intervention into the proceedings.

We've mostly written about the second question, although there's certainly some connection between the two. Your query goes to the first. As an initial matter, I'd suggest that you pay attention to the actual analysis of the arguments on offer, rather than on the adjectives that various of us have employed to characterize the arguments. (You'll look in vain for analysis in the actual blog post here, as Prof. Volokh merely offered only adjectives, not analysis.) Pseudonymity shouldn't enter into the equation, as the arguments should stand or fall on their merits rather than on their sources.

Beyond that, you should read Morrison v. Olson, which dealt with a very, very similar issue and found no violation of the Appointments clause. The majority opinion is quite straightforward and terse. It examines a number of factors. Look at the factors and look at the facts of Fitzgerald's appointment. I'm confident there's a close fit.

Next, I suggest you read Edmond v. United States with two questions in mind: (1) did the Court overrule, modify, or limit its prior decision in Morrison, and (2) is the costitutional question in Edmond raised in a context that is remotely analogous to Fitzgerald's appointment? I'm confident the answer to both is "no." After you perform that exercise, read the amicus brief and marvel at its cavalier dismissal of Morrison (a case about an independent prosecutor appointed to investigate possible Executive Branch criminality) and its embrace of Edmond (a case about the appointment of Coast Guard judges which did not purport to establish a one-size-fits-all analysis and certainly did not so much as cast doubt on the holding of Morrison). You might also gaze in wonder at the amici's gross overreading of Edmond, by which they pretend that it stands for the proposition that an "inferior officer" has to have day-to-day supervision, when it does not.
6.15.2007 1:55pm
Apodaca:
6.15.2007 2:30pm
scote (mail):

And I repeat an earlier question that no one has been able to answer. What makes Al Dershowitz a "leading criminal law commentator" as professor Volokh describes. As a "criminal law commentator," I would put him in same category as Nancy Grace or Geraldo.

It would seem to hinge on the vagueness of the word "leading." It isn't a legal term and there is no standard for it, whether it should refer to scholarship or to public name recognition, or whatnot. Any publicity hound could be called a "leading commentator..."
6.15.2007 2:51pm
Sebastian Dangerfield (mail) (www):
Apodaca: Looks like your link to Fitzgerald's response brief is broken. I'd add as well that Fitzgerald's response to the motion to dismiss is quite illuminating on the underlying issue. I've been consistently impressed with the Fitzgerald and his team. They're not just great trial lawyers, but are also quite brilliant brief writers and all-around litigators.
6.15.2007 3:23pm
William Newman (mail):
Sebastian Dangerfield writes "Pseudonymity shouldn't enter into the equation, as the arguments should stand or fall on their merits rather than on their sources."

That's a nice idea, and I grant it's often true, even for politically charged controversies where accusations about insincerity are thrown around. For example, I think even as an anonymous poster I could effectively argue against young-earth creationists or cold fusion true believers.

However, I don't think it's always practical. In controversies like intelligent design, where we have people who want to say that life couldn't evolve by natural selection in the time given (but, grouch grouch grouch, are typically being evasive about roughly how long it *would* require) it's a horribly messy situation which is hard to summarize. I might be reduced to "at one point I earned a BS in biology and a PhD in chemistry, and these days I work in (in part) optimization and search algorithms, and my strong opinion is that it is indeed quite possible [but if you want real certainty --- or you want me to take seriously your claims to real certainty --- let's discuss it in a few decades]."

I'm not opposed to anonymity, and I am fairly skeptical of credentialism. But sometimes I don't know how to avoid falling back on credentialism and reputation, and credentialism and reputation don't mix well with anonymity. Impressive though the Federalist Papers would be even without knowing their authors, if I weighed an anonymous Federalist summary assessment of the military value of surprise against George Washington's assessment, I would not give it the same weight.

Controversies which resist tidy anonymous resolutions aren't uncommon. How much of recent climate change is anthropogenic? How have centrally planned economies performed overall compared to free markets? It can either take too long to get people up to speed, or a controversy can be a huge tedious mess even for people who are up to speed, or both. Or when a certain Prof. Tanenbaum said that the Linux operating system would deserve an F in the relevant course he taught (maybe the closest technical analogy I can think of to the judge's legal remark here) I have a strong opinion about that, but it might be hard to justify it quickly to a skeptical non-techie.

And you write "your query goes to the first" but actually I am more puzzled by the second: was the brief really so manifestly inappropriate (when submitted by these people at this particular time in the proceedings)? On the first, I could check the cases you cite, but instead I basically accept that you are not misrepresenting the cases. I just also note that while various people have taken potshots at the arguments in the brief, everyone seems fundamentally willing to grant that they were not too asinine to belong in *any* brief. Note a different potshot at the brief, "nothing that Libby's attorneys hadn't already said:" no one seemed ready to shoot back with "no, you don't get it, Libby's lawyers said sensible lawyerly brief-ish things while this document was a goofy flight of fancy."

So mostly I feel uncertain about the appropriateness of these people filing this brief at this time. Resolved: "ridiculous filing"? To get up to speed on that, it seems like I'd need to read quite a lot of briefs in a lot of cases, and perhaps some political background to boot, enough that despite your kind encouragement, I still think it's impractical. Instead I reason that in other fields I know well, if someone said something dismissive where an outsider couldn't easily check him on the technical merits (Tanenbaum, perhaps), whether the insider was right or wrong he might be able to find some informed advocates to defend him vigorously (OS-vs.-OS rivalries aren't referred to as "religious wars" for nothing), but it would be a noteworthy if every insider supporter chose to remain anonymous. Being an early public supporter of someone who points out correctly that the emperor has no clothes can be uncomfortable, but like other kinds of "telling it like it is," it can have its advantages too. If no one wants to do it, that's interesting.
6.15.2007 3:30pm
whackjobbbb:
Newman, in one single post, you blasphemed and broke most of the the commandments, mocked lawyers, and exercised a level of intellectual insurgency that's just BRILLIANT.

You're my hero!
6.15.2007 4:47pm
Michael B (mail):
Well, I don't like it, but have to admit my opinion, contra Judge Walton, has been reformed after reading this thread. Still don't like the Armitage and Wilson and other mendacities, prominently displayed in the press, but now think the Judge has performed well under the circumstances and within the purview of the Libby case. As to the 1L and other footnoted comment: a judge's right and not unreasonable in this scenario.
6.15.2007 5:17pm
Sebastian Dangerfield (mail) (www):
William: Thanks for the thoughtful response.

I emphasized the point about anonymity in large measure because it is an indirect way of emphasizing the fallacy of arguments from authority. And that is particularly relevant here because the amicus brief partakes heavily of that fallacy. The submission of that brief was as much as saying, "it's a close question because we say it is." I say that in part because they offered so very little in the way of analysis -- and what little they did offer added nothing to the analysis that Libby's own hotshot legal team had previously argued in a lengthy opening brief and a reply brief. (It's like the joke about the two old ladies at the Catskill Mountain resort: One says, "This food is terrible!" To which the other replies, "Yes, and such small portions, too!") When a group of heavy hitters sign on to an amicus brief that says little and merely recaps arguments already made, it's difficult to resist the conclusion that they are relying on their names and reputations alone. I would find that unseemly -- and perhaps worthy of an official rebuke -- even if there was nothing else that was odd about the filing.

Oh, but there are so many other odd things about the filing.

Let me emphasize: the crtique is not that the brief fails some test of " sesible lawerly[ess]" -- whatever that might mean -- whereas the party brief was "lawyerly." The critique is that the amicus brief is a particular genre of legal writing that is distinct from party briefs, and the Bork 12 brief does not fit the amicus mold in any respect. As the brilliant Posner quotation above emphasizes, the whole idea of allowing strangers to a lawsuit to file an amicus brief is not to provide them with a "vote" on the matter at hand. Much less is it designed to allow a "vote" on what the proper outcome should be, as between the litigants (such briefs are supposed to be friend-of-the-court briefs, not friend-of-the-litigant briefs). Rather it is to allow persons or groups who have a particular interest in a legal question, and who have particular expertise and/or perspectives to offer, to offer arguments and perspectives different from those the parties are arguing as a means of helping the court. Lawyers for the parties have their own, limited, instrumental interest in an issue, viz., securing a resolution of the lawsuit that is favorable to their client. An amicus would typically offer a less narrowly instrumental view of an issue, perhaps emphasizing long-term or institutional effects of a particular resolution of an issue. And, from all this, it should be quite clear that amicus briefs are filed to deal with particularly significant issues of law, often, but by no means exclusively, issues of constitutional law.

First, as to the interests of the amici, it is clear that they have no real interest in any important question of law. If we take them at their word, they are interested in this controversy because they teach constitutional law or "related fields", but they are not taking a position on the constitutional issue. Rather, they say, they are only weighing in on the question whether the question is "a close question." That's a mighty strange position, or I should say, non-position, for amici to take. But let's play along for the moment. With that opening, one might expect the body of the brief to offer a balanced, equivocal "on the one hand … but on the other hand …" approach. But it doesn't. It offers a five-page summary of Libby's argument that Fitzgerald's appointment is unconstitutional. So, they're claiming that they have some kind of interest in being non-committal. But the brief itself is not about "closeness"; it advances one and only one side of the issue. That's disingenuous.

You might ask, why can't the "closeness" of a question be a meet subject for academic interest, and thus for an amicus brief? Perhaps these great minds (one of whom publicly salivated at the prospect of an "intellectual feast" awaiting him as a Supreme Court justice) find "closeness" to be a fascinating subject of inquiry and teach seminars on the subject. I think not. I ay event, a brief declaring the issue "close" is of no help to the court's actual resolution of the issue, which already happened much earlier in the case anyway, without any law professors' help.

The only reason that "closeness" is relevant is because it bears on the question whether Libby should be released while his appeal is pending -- another thing that the amici purport to disclaim any interest in. Not only that, but it can't be seriously conteded that the question whether Section 1343's standard for bail pending appeal is met in a particular case is a significant question that a gaggle of professed constitutional scholars should weigh in on. From all this weirdness, one is led pretty inexorably to the conclusion that what the amici really attempted was nothing more than to weigh in to help Scooter Libby get released while his appeal is pending, while pretending to be doing some high-minded academic exercise to help the court instead. And, to make matters worse, they did not even do this with original or compelling arguments that would give them a fig leaf of cover as true "amici."

Finally, as you seem to value credentials, while I prefer to stay anonymous, I'll tell you this: I'm an appellate lawyer who has had broad litigation experience. I graduated from a law school that is cosidered (not necessarily justifiably) as "elite", and I clerked in the federal judicial system. But none of this should convince you of anything.
6.15.2007 5:22pm
Public_Defender (mail):

Question: And I repeat an earlier question that no one has been able to answer. What makes Al Dershowitz a "leading criminal law commentator" as professor Volokh describes? As a "criminal law commentator," I would put him in same category as Nancy Grace or Geraldo.

Answer: It would seem to hinge on the vagueness of the word "leading." It isn't a legal term and there is no standard for it, whether it should refer to scholarship or to public name recognition, or whatnot. Any publicity hound could be called a "leading commentator..."



Can Dershowitz be a "leading" anything if he hasn't even been nominated for a Nobel Peace Prize?
6.15.2007 8:05pm
MLS (mail):
Sebastian- I think the brief actually said that the issue was "at least" a close question, which suggests that some of the authors think the case for reversal is a "slam dunk." In any event, there is no need to convince the judge of the merits of the legal position he has already taken. Thus, I dont think there is anything peculiar about the fact that the brief largely focuses on the arguments in opposition to the constitutionality of the SP's appointment.

Apart from that quibble, I think you are exactly right on why this brief ticked off the judge. It amounts to little more than an attempt to convince the judge that the issue must be a close question because people smarter than he say it is a close question. One can see how the judge might find that a little off-putting.

Even if the brief were convincing from a substantive perspective, it is difficult to understand why it would be filed at this juncture. If the amici's interest were in the law itself, the appropriate and normal time to file would be at the appellate level. Thus, despite the brief's disclaimer, the only reason would seem to be to help Libby avoid prison. The judge is entitled to find that disingenuous.

Having said that, I am sure that the brief's authors are surprised by the judge's reaction and I can't say that I would entirely blame them. I suspect that the reason may have less to do with the brief itself and more to do with the unbecoming sympathy that Libby's plight seems to engender among this nation's elite. Instead of viewing Libby as an innocent victim of prosecutorial zeal, perhaps they should consider him a casualty of the Iraq war. Looked at from this perspective, there are so many worthier candidates for their sympathy.
6.16.2007 9:41am
whackjobbbb:
While I don't like the judge's conduct here, I'm torn because I do enjoy watching academics get batted around some. If my tax dollars weren't paying for it, I'd enjoy that show.
6.16.2007 4:15pm
William Newman (mail):
Sebastian Dangerfield: And thank you for the careful and civil explanation.

one side remark about something you just said: "When a group of heavy hitters sign on to an amicus brief that says little and merely recaps arguments already made, it's difficult to resist the conclusion that they are relying on their names and reputations alone." I don't know about the Libby partisans, but to this fencesitter that makes sense. It doesn't seem quite to justify what happened, though...

In a slightly different world, the judge could've made a nasty remark directly against that perceived reputational bullying. (Too bad Kozinski's "kill a rattlesnake by sitting on it" image from Silveira v. Lockwood was already taken, since something like that might serve nicely for the purpose, and though they may look like it from some points on the left, to this libertarian "Bush appointee" and "likely to approvingly quote K. in S. v. L." are not synonyms.) I think if the judge had made such a remark, the reaction would be rather different from the reaction in our world. In your plausible explanation, the judge got angry for some reason other than actual outright incompetence, and then expressed his anger by slightly-deniably accusing the filers of outright incompetence. A nasty remark accusing the filers of something more plausible would not have soothed Libby partisans in the usual sense, of course. It might, however, have helped quiet them down. I think such a remark might've left some partisans glumly wishing it hadn't been made, rather than pointing it out to fencesitters.

and then tying it back to anonymity: Even for ordinary professionals, we accept that they are human, but we expect that when they have their professional hat on, they keep some objectivity about the basics of their profession. For judges, while lawyers may be used to seeing them warts and all, the general public expects a particularly high level of that kind of professionalism. I think any event which suggests a judge isn't distinguishing "aggravating" from "legally incompetent" is likely to get a strong public reaction, even in a case which wasn't already controversial. Even for ordinary non-judge professionals that kind of professionalism tends to be a pretty strong expectation. In fact, even for people that formally guilded professionals might consider hardly professionals at all, like the lowly computer programmer. That's part of why it would be interesting if technically-savvy people supported "yeah, yeah, Linux would deserve an F!" only anonymously. If it is technically obviously literally true, then it is fundamentally acceptable to call it like it is, non-anonymously. You just put on your more-in-sorrow-than-in-anger hat, and away you go. But if it's not actually particularly true, or only "true" in some beside-the-point sense... well, some knowledgeable people might find partisan satisfaction or some other kind of fun in doing it anonymously, but fewer would be willing to pay the reputational cost to do it non-anonymously.
6.16.2007 5:03pm