SFL Friday -- Is It Back to School Already?

Well it's Friday the 13th which means only good things can happen, right?

Like NRO legal blogger Ed Whelan letting loose on Chief Judge Vaughn Walker (he ends with this carefully calibrated, mild observation:  "I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.")

Now that's a throwdown.

Come on all you local judges, don't get one-upped by your brethren in ND CA -- there's still time!


Then you have terror babies, internment camps for illegals, and more info than you needed to know about Pee Wee Herman's trial defense.

And this is all just in one day!

Boy how did I get on this tangent?

Let's discuss something near and dear to my heart -- easing tension.

In addition to bumper-stickering your political rival's car, I understand there are less well-known, nontraditional methods that are apparently just as effective.

Maybe the Miami Lakes city council can give it a try?

And of course all you parents out there are gearing up for back-to-school especially with this weekend's tax holiday -- rest assured, I am too (see above).

Have a great weekend!

SCOTUS Bans Broadcast of Proposition 8 Trial

More or less agreeing with Ed Whelan, a divided Supreme Court upheld its temporary ban on any broadcast of the Proposition 8 trial before ND CA Judge Vaughn Walker.

You can read the opinion here and Scotusblog's roundup here.

The per curiam opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito.

A very sharp dissent by Justice Breyer was joined by Justices Sotomayor, Stevens and Ginsburg.

It strikes me as a highly unusual and ideologically-driven opinion, not unlike Bush v. Gore.

Indeed, I would say this does not bode well at all for same-sex advocates if and when this case hits the Supremes on the merits.

Ted Olsen will have his hands full.

Now Here's How You Criticize A Federal Judge.

Noted conservative lawyer and NRO legal contributor Ed Whelan tears into the Chief Judge of the Northern District of California, Vaughn Walker (a Bush I appointee), who is about to begin trial on the same-sex marriage case brought by Ted Olsen and David Boies.

Let's see --

1. He calls it a "show trial."

2. He says Judge Walker just wants publicity and is seeking to convert the proceedings into a

"high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s sponsors. Specifically, Walker is rushing to override longstanding prohibitions on televised coverage of federal trials so that he can authorize televised coverage of the Proposition 8 trial. Televised coverage would generate much greater publicity for ringmaster Walker’s circus."

3. He says Judge Walker "wants to stack the deck against Proposition 8" and "has resorted to procedural shenanigans and outright illegality."

4. He says Judge Walker's acts are "in plain violation" of the rules prohibiting broadcasting federal trials and the "obvious purpose" of Judge Walker's actions is to subvert those rules (even though Whelan concedes that Judge Walker may be in "technical compliance" with the relevant federal statute).

5. He calls Judge Walker's actions "kangaroo-court procedures."

6. Whelan says "[o]nly an idiot or a hardened ideological advocate for same-sex marriage — and Walker is no idiot — would imagine that the Proposition 8 case is a good candidate for the program."

7. Whelan concludes that "[i]f Judge Walker persists in failing to recognize that elementary fact, the national civics lesson that he will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas."

8. For good measure, Whelan did a follow up post, lamenting that "[t]here’s no end to Judge Vaughn Walker’s shameless procedural shenanigans" and that "the only 'immediate need' is for Walker to disqualify himself for his patent lack of impartiality — or for some higher court to step in."

You know, just to be safe, I'm gonna take another long look at Judge Zloch's order.

Fun With Pseudonymous Blogging!

Some of you lawyer wonk types of all stripes (like my friend swlip) are probably already aware of the contretemps involving former clerk to Justice Scalia and NRO legal expert Ed Whelan, who on Saturday "outted" a legal blogger posting under the name "publius" over at Obsidian Wings.

Well, it turns out "publius" is a newly-hired, untenured law professor at South Texas College of Law named John Blevins.

BINGO -- I knew it!

Seriously, how this adds or detracts to anything is a mystery. If anything, as a long-time admirer of publius I'm happy to see he has a promising new job, but otherwise the "outting" seems to me somewhat petty and most importantly besides the point. It never really mattered to me what his name was, and it doesn't now.

And I see I'm not alone. Even Ed's colleague over at NRO's "Bench Memos," Jonathan Adler, writes in opposition to Ed's actions over at the conservative Volokh Conspiracy. I think Adler (a former pseudonymous blogger himself) makes a good point about the self-policing mechanism of doing this under a pseudonym on a regular basis:

While complete anonymity may enable someone to evade any accountability for intemperate or unwise remarks, the creation and maintenance of a pseudonym can have a disciplining effect on blogger behavior, and thus should be encouraged as an alternative to purely anonymous blogging and posting. Reputation effects and the desire to maintain readership can impose significant discipline. A pseudonym operates like a brand name, and the value of the brand is, at least in part, a function of how the pseudonymous blogger acts over time. This disciplining effect is hardly perfect, however, particularly when it comes to maintaining civility. As I believe the tone and snarkiness of many pseudonymous bloggers and commenters attests, a pseudonym can reduce a blogger’s vulnerability to personal attacks and can shield him or her from social sanctions fur uncivil conduct. I believe this means that those who utilize pseudonyms should take greater responsibility for the tone and content of their own posts so their pseudonymous shield does not become a license for nastiness and snark (and I hope I was able to do this when I used a pseudonym). But I also believe that, barring exceptional circumstances (e.g. something far worse than wrong-headed criticism) other bloggers should respect the choice of others to rely upon pseudonyms.

A.L. explains at length why he blogs under a pseudonym here. As a big-time civil litigator at one of the nation's largest law firms, he feels a cover is necessary because of client concerns etc. Again, it really wouldn't matter to me to know who he actually is -- I respect him for the content of his opinions, not the source of them.

Moving briefly to the substance of the dispute between Whelan and Blevins, it has to do with that old joke about three judges duck hunting, which I guess Judge Sotomayor once used as part of a graduation speech at Hofstra University.

Ok, the joke is as old as the hills, and most lawyers or former law clerks know of it. So the good Judge gets a big fat "C" for humor.

But to try to twist it into some kind of partisan attack on how "activist" Judge Sotomayor is or plans to be strikes me as unfair. It of course ties into the larger attack on Judge Sotomayor's comments about how appellate courts "make policy" and how wrong she was to say this.

As Volokh comprehensively demonstrates -- of course they do, particularly the Supreme Court. For example, the Supremes establish the common law regarding admiralty. They define the defenses to federal criminal charges. He mentions the standard for granting a preliminary injunction, and I would add all the federal common law governing attorney-client and work-product privileges, among many others.

Even regarding statutory interpretation, Volokh makes a strong case that considering policy and consequential or practical implications in tough cases (the kind that make it to the Supremes) are what the Justices expressly do and is a longstanding feature of American law, particularly given the vague texts or statutes that are often at issue. Just think about how federal antitrust law and RICO have evolved among the Circuits, or even Rule 23.

FWIW, I think any fair-minded lawyer or judge knows this.

Can you believe we are going to have several more months of this?

Harold Koh Is A Scary Transnationalist.

University of Miami Law Professor Michael Froomkin runs a fun and highly informative blog, and has been covering this weird attack by NRO's Ed Whelan and others on Obama's State Department nominee and Yale Law Dean Harold Koh.

As I commented there, what's so squirmy about these attacks is they are one of degree, or emphasis, and therefore cannot be easily refuted. Is it or should it be controversial that we acknowledge that we are one country among many, and that we have to play nice at times with others in the sandbox?

From that simple acknowledgement these flat earthers argue that it necessarily means we must be subject to foreign law, and that our laws must in every instance bend to those of the French or worse -- the darkies.

There is something weirdly emasculating to Whelan to think that we may have to behave sometimes in accordance with certain agreed international norms.

Having just rewatched Judgment at Nuremberg, I don't find that prospect scary at all.