Wednesday, December 13, 2006

Why not just insist that firms abuse their attorneys more?

Scalia: pity the poor $165,000 a year jurist...

Is there anything less sympathetic than invoking the poor SDNY judge who suffers through a salary of $165,000?

Yes, me. I am considerably less sympathetic and slightly less well-compensated. However, while it's an injustice, it's not one that the federal government should be taking any action to correct.

But even if I were not nearly outearning Judge Scheindlin, and that's not much of an injustice given her body of work in recent years, she has something that lawyers do not have -- security.
Lawyers do not have lifetime appointments. Lawyers do not have pension plans, unless they make partner, in which case they don't need any sort of retirement plan except "Find a woman half my age. Marry. Rinse, lather, repeat."

Federal judges have the ability to be imprisoned without losing their job. Let us all recall the heroic Walter Nixon, who not only drew a paycheck while serving time in prison, but also managed to take his impeachment to the Supreme Court and evoke Rehnquist's fine "epistemological fog" argument in response to defining the word "try." That all happened before this guy lost his job for being a felon.

Federal judges have clerks. Oh, lord, what I would not give to have clerks as a junior associate. It's not enough to have junior associates beneath you, because let's face it, you didn't hire them, you will still have to do some of your work, and if you do an incompetent job, you'll start to receive suggestions that you open that restaurant you always have been talking about or become a professional riverboat gambler, anything to get you to quit your current job.

Federal judges work at the ultimate lifestyle firm -- the United States government. There are a lot of federal holidays, the hours are as reasonable as you want them to be so long as you can keep up with a speedy trial calendar

Federal judges have prestige. Any judge has some prestige, but federal judges carry a lot of weight. They get opportunities to witness things that your ordinary lawyer never will.

Federal judges could honestly do nothing and face little criticism for it. Let's face it, if a judge wanted to, they could just decide things from the bench, never research an issue or bother to ask their clerks to do it, they could just work on their putting game in chambers, meet with a few attorneys, and develop a dreadful reputation for arbitrariness and caprice. What happens? They serve as a judge until they die or retire. While a judge may care about his reputation, he or she certainly doesn't need to, they just need to stay one step away from being impeached. Let me assure you that's one small step for a man, one giant leap for mankind to get yourself impeached (see also Nixon, Walter).

You can make more in the private sector, it's true. But that's not the end of the story. If you're saying a SDNY judge doesn't earn enough to raise a family, you may be right (though there are a whole lot of people raising families in the Southern District of New York while making 10% of that, so you are, in fact, wrong). But now place that SDNY judge back in his job at Cravath or Jones he's making more as a seventh year associate or even junior partner. But he still can't raise a damn family, because his firm owns him 18 hours a day with an option for 6 more. When there's no telling whether you'll be home at all, let alone in time for a 9 p.m. dinner, you're going to have a hard time raising a family anywhere.

Will the judiciary have a hard time grabbing the top lawyers? Yes, sometimes. But it's not firms they're going to lose them to, it's sophistry in America's finest law schools. If you offer the opportunity to become a federal judge to any 1st-8th year litigator, my guess is that your answer is going to be yes 9 out of 10 times. And that other prick is wearing monogrammed shirt sleeves and has had the goal of making partner since he got kicked off the tee-ball team for wearing metal cleats.

Tuesday, December 12, 2006

Now as to those I <3 Boobs T-shirts...

At long last, the Supreme Court has answered the vital question of what people in attendance at a murder trial can wear.

Carey v. Musladin

It lacks that certain Justice Thomas-I'm-overruling-stuff-that's-not-even-law-yet panache, but don't worry, Court fans, it's early season, where only the most unanimous of opinions are being thrown out at the women who insist on standing outside the Court throwing brassieres onto its front steps. And that's just Cindy Sheehan, who has to hang out somewhere. Oh, and although it doesn't sound like it, and although I don't think even Justice Thomas intended to, he made it happen in fine form today.

For those of you too intimidated by headnotes to penetrate the curt and breezy opinion's 6 pages, the Supreme Court determined that members of a victim's family can wear buttons with the victim's picture on them at trial.

Wait, no, that's too sweeping. Step back.

They decided that members of a victim's family can wear buttons with the victim's picture on them while the family members sit in the front row of the audience at a murder trial.

Hm. No, still too sweeping. That looks like a precedent.

They decided that when members of a victim's family can wear buttons with the victim's picture on them while the family members sit in the front row of the audience at a murder trial, it is not inherently prejudicial.

That's where it stops, right? Wrong.

This is the quiet beauty of AEDPA, the court systems are spent dealing with minutiae that can't possibly add up to a precedent, which is why the only thing that the Supreme Court can point to as inherently prejudicial is...damn, can't think of anything but shackling him. The best case the Court can point to as an analog here is Estelle v. Williams which is, under the O'Connor dicta the Court is adopting as a holding -- utterly meaningless in a habeas context. I will note that the trend of glorifying the street commodity of a bean balance that is the former Madame Justice is growing in popularity in habeas and Establishment Clause jurisprudence, proving once and for all that both fields of law are irreparably broken and the courts may fare better with a dart board or a party of five year olds pinning the case law on the majority opinion.

But now I must digress back into my point. Justice Thomas notes the O'Connor offering in a concurrence where she was only joined by Justice Stevens (hardly a font of beloved precedents these days -- just read Kyllo) that "clearly established Federal law" refers to the "holdings, as opposed to the dicta, of this Court." Then Thomas points out that this isn't clearly established law, there's no holding saying anything about people in the audience, there's no holding saying anything, in Estelle v. Williams, it was a question about dressing the defendant in prison clothing and so on.

But here's the lingering question. Why cite to these cases? What precedential authority does any discussion of Estelle v. Williams have? None. As Thomas states, it's a case where a defendant failed to object. It's like an exhaustion question. It has nothing to do with habeas in a non-exhaustion context. Any discussion of inherent prejudice from Estelle is, by his prior definition, pointless. Thomas then lists the panoply of disagreements from every court in the country as to whether the issue of whether Williams and Flynn have any application to people in attendance at trials or only state-sanctioned conduct and so on. Which all creates the illusion of an actually drafted legal opinion. That, my friends, it ain't. Ask yourself...what is the holding in this case? The holding in this case is not that the family's actions were not inherently prejudicial. In fact, the holding in this case is that there is no established federal law saying that they were not inherently prejudicial and there never has been. What's more, there never can be established federal law saying that it is not inherently prejudicial, because whatever Court offers that holding is exceeding its role under AEDPA.

So what is Carey v. Masludin? It's officially the end of history. Six justices take no issue with O'Connor's two cents on AEDPA and from this day forward, established federal law with regard to trial practice in a criminal context cannot change until AEDPA is replaced with something more draconian.

Don't get me wrong, the result in Carey v. Masludin is rightly decided, nine justices knew there wasn't much reason to fight this conclusion. That said, the next victim's family better not stop with the "my kid's in the band" plain photo buttons that these people did. I expect production values. I expect T-Shirts that read in 45 point Comic Sans MS (to keep things light) -- Defendant Brutally Murdered My Child and All I Got Was This Lousy T-Shirt. Find me clearly established federal law that prohibits it. And if you do, change the word "And" to "--" and I've got you a habeas-proof trial.

AEDPA has proven once and for all that the Republican party has been idiotic with its approach to all controversies. Every time someone burned a flag, aborted a fetus, or stopped a school prayer, they threatened to yank the Court's jurisdiction. That got people who understood jurisdiction angry, it got the Court indignant, and it ended up vanishing into a puff of smoke. But thanks to O'Connor's desperate attempt to join a majority intent on rendering AEDPA meaningless in Terry Williams, now AEDPA has left the Supreme Court as the kid with the Playskool steering wheel in the backseat of Congress' Hummer.