Right-wing ideologues, not just off the bench but also ON it, do their damedest to pervert the legal system

Dim-bulb Western PA District Court Judge Arthur J. Schwab, who yesterday struck down the president's executive order on immigration, is pictured here in 2012, when for the second time in four years the Third Circuit U.S. Court of Appeals took the extraordinary step of removing him from a case.

"It's one thing to have your own personal beliefs. It's quite another to use your official powers and your official office to subvert the court and the lawful process."

-- attorney George Felos

by Ken

The funny thing is, you might guess that attorney Felos, quoted above, is somehow involved in the stuningly inept decision by a GWB-appointed Western Pennsylvania district court hack declaring the Obama executive order on immigration unconstitutional. Felos's observation certainly applies.

In fact, though, Felos is the lawyer who represented Michael Schiavo in 2002 when Florida's then-Gov. Jeb Bush served as the point man for the brigade of ideologically diseased pandering pols who did everything in their power to force Schiavo's brain-dead wife Terri to be kept alive artificially, for no reason except to satisfy their own contrary-to-law beliefs.

In the wake of Jebbie's declaration that he's considering a 2016 presidential run, ThinkProgress spoke to both Schiavo and Felos ("Terri Schiavo's Husband Speaks Out On Jeb Bush's Presidential Bid"). As Josh Israel reports, neither is enthusiastic about the prospect: "Both expressed concern that Bush's record was one of government interference and opposing individual liberty."

Josh recalls for us (with lots of links onsite):

Though Michael Schiavo got a court order in 2002 to remove his wife’s feeding tube — he said his wife had not wanted to be kept alive artificially — Jeb Bush intervened, pushing the state legislature to pass an unconstitutional bill in a special session giving him authority to order the feeding tube reinserted. When a state judge ordered it removed again, Felos told ThinkProgress, Bush “manipulated the organs of state government in order to try to evade the court order.”

“Through the Dept. of Children and Family Services and through the Department of Law Enforcement they tried in the courts to ignore the higher court pronouncements – this was documented in an article by the Miami Herald,” he recalled, though, “when local authorities said you’re going to have to go through us in order to get her, and the state law enforcement agency backed down.”

Though Bush, then-U.S. Senate Majority Leader Bill Frist (R-TN), and social conservative activists protested that Terri Schiavo was not in a persistent vegetative state, an autopsy confirmed that she had been.

Josh reports further that Felos --

also recalled that after Schiavo’s death, Jeb Bush went after Michael Schiavo personally, asking the state’s attorney to investigate whether he had called 911 fast enough. “It was very odd, almost like a personal vendetta the governor had towards Michael Schaivo.” The state’s attorney found no evidence against him and closed the case. “The propriety of using your office to hunt and harass people, as the governor did to Mr. Schiavo after his wife’s death, I think raises significant questions about his judgment and his character,” Felos said.

When it comes to "subvert[ing] the court," though, nothing beats having dishonest, legally incompetent judges sitting right there on the bench, spinning legal fantasies blown out of their butts.

Which brings us back to Western Pennsylvania District Court Judge Arthur J. Schwab, who pounced on the opportunity of a case with only the thinnest, most tortured connection to the executive order, and applied to it an almost total ignorance of immigration law and the Constitution to come up with a result that came blown out of his butt.

ThinkProgress legal eagle Ian Millhiser was all over this astonishing development yesterday:

In an extraordinary opinion that transforms a routine sentencing matter into a vehicle to strike down a politically controversial policy, a George W. Bush-appointed judge in Pennsylvania declared President Obama’s recently announced immigration policy unconstitutional on Tuesday. Because the policy “may” apply to a defendant who was awaiting sentencing of a criminal immigration violation, Judge Arthur Schwab decides that he must determine “whether the Executive Action is constitutional.”

In case the suspense is killing you, Ian continues: " He concludes that it is not."

Yesterday Ian spent some time going through the startlingly brief (for such a significant decision) rationale for the decision, a major portion of which is devoted to rambling about political comments made by President Obama, which have no demonstrated relevance to the legal basis for his executive order. Ian then showed that Judge Schwab really doesn't seem familiar with the actual legal and constitutional issues here, and among other things totally ignores probably the most relevant federal precedent,Arizona v. United States,

where the Supreme Court said that the executive branch has “broad discretion” [this link is to a November 19 post of Ian's, "The Roberts Court Has Already Said That Obama Has The Power To Issue His Immigration Order" -- Ed.] in matters of deportation and removal. As Arizona explains, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Executive branch officials, moreover, “must decide whether it makes sense to pursue removal at all.”

Notably, Arizona also indicates that this broad discretion flows from federal immigration law — i.e. laws that were enacted by Congress. This matters because Schwab’s opinion concludes that Obama’s “unilateral” policy “violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause.” In essence, Schwab concludes that the president lacks the authority to act in the absence of authorization by Congress. Schwab does not even discuss the possibility that Obama’s actions may actually be authorized by Congress. Thus, even if Schwab’s reading of the Constitution is correct — itself a questionable proposition — the judge does not even discuss another major source of law that can justify the president’s actions.

After doing his best to find legal grounding in Judge Schwab's ruling, and failing, Ian wrote yesterday,

So Schwab’s legal analysis is thin. He spends nearly as much time making what appear to be political attacks on the president as he does evaluating actual legal matters. And what little legal analysis he does provide fails to cite key Supreme Court decisions that seem to contradict his conclusion. Judge Schwab traveled far along a very thin branch to reach this decision, and he anchored his decision with little grounding in legal authorities.

Moreover, it’s not clear what effect, if any effect at all, this decision will actually have. The judge does not issue an injunction halting the new immigration policy. Nor does he even state with certainty that the actual defendant in the case before his court will benefit from an order declaring the immigration policy unconstitutional.

Today Ian notes that Judge Schwab's shaky procedural grounds are of concern even Mr. Torture himself, John Yoo, who declares himself (in a National Review Online post called "Was Today's Ruling Against Obama's ImmigrationOrders Judicial Activism?") in sympathy with the view that the president's executive order is executive overreach but nevertheless --

criticizes Schwab for opining on the immigration policy’s constitutionality when the issue was not properly before his court. As Yoo notes, “[t]his is not a case where the executive order applies, because the Obama administration is not allowing an illegal alien to remain in the country.” Thus, the case presents “no real dispute over the law, because regardless of whether the executive order is constitutional or not, it would make no difference in [this defendant’s] case.”

RIGHT-WING IDEOLOGUES CARE ABOUT
BEING RIGHT-WING, NOT BEING RIGHT

Of course it has become standard operating practice for right-wing ideologues (GOPSOP?) to declare the president's executive order unconstitutional, despite their near-total ignorance of the relevant legal and specific constitutional issues. But then, if you're a confirmed right-wing liar-obfuscator, with a deep-gut-level conviction that facts are a left-wing conspiracy, then you just naturally blow with whatever whizzes out of your butt.

Ian looks more closely at the case of John Yoo, who he points out "once argued that the president’s power to act unilaterally is so expansive that the chief executive could order interrogators to crush a child’s testicles" (the title placed by the poster on this 2006 YouTube clip is "John Yoo Says President Bush Can Legally Torture Children"). Specifically, he notes "the former Justice Department attorney's transformation from a proponent of largely unchecked executive power under Bush into a man deeply concerned with government action under Obama." Suddenly Mr. Torture has become ever so fastidious about the issue of executive "reach" -- now that the chief executive is no longer a right-wing sociopath.

Yoo has argued that the Supreme Court decision upholding much of the Affordable Care Act “did great violence” to constitutional limits on federal power. Yet, during the Bush Administration, Yoo offered a view that, if followed to its logical conclusion, would grant President Obama the authority to implement many provisions of Obamacare even if Congress had never passed the law in the first place.

During the Bush years, Yoo argued that the Constitution permits the president to judge what steps are “necessary” to prosecute a war.

To be sure, this attitude hasn't been confined to legal commentators. From the outset of the Obama administration, a president who has for the most part exercised his powers with exceptional timidity has been assaulted as a monstrously overreaching executive tyrant by the usual band of Lying Liars of the Right (stand up and take a bow, George will) by the very media thugs who hailed George W. Bush's every exercise of dictatorial powers. In the legal arena, Ian notes, "Yoo seems particularly willing to advocate in favor of expansive powers for presidents of his party and narrow contractions of federal power when Democrats are calling the shots." In which connection, Ian suggests, Yoo is "a harbinger of a new legal era."

Data shows that the best predictor of whether a lawsuit challenging portions of Obamacare will succeed is whether a majority of the judges hearing the case are Republicans. Justice Antonin Scalia authored an opinion that provided a clear rationale for upholding the Affordable Care Act several years before he joined another opinion attempting to repeal the entire law. Judge Schwab rejected Obama’s immigration policy without even feeling the need to cite precedents supporting the core of his reasoning.

Yoo’s flexible approach to the law, in other words, is hardly limited to Yoo himself. It is increasingly easy to find on the federal bench.

Yesterday Ian pointed out that, while Judge Schwab's ruling striking down the immigration executive order is a sham as legal argumentation, "immigrant families would be wrong to write off the threat his decision could present."

There was a time when the constitutional challenges to the Affordable Care Act were widely dismissed by legal experts — Ronald Reagan’s former solicitor general said he would “eat a hat which I bought in Australia last month made of kangaroo skin” if the Supreme Court struck the law down — yet these challenges rapidly gained momentum after a few Republican judges reached out to strike the law down. The same can be said about the legal theory in King v. Burwell, a lawsuit currently before the Supreme Court that seeks to gut much of Obamacare.

It remains to be seen whether Schwab’s opinion — thin though its reasoning may be — will also grant legitimacy to the case against the president’s immigration policy.

When the courts are packed with dimwitted thugs, chosen for their ideological thuggery I guess it's not a surprise that we wind up with dimwitted legal hooliganism.

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Anthony Lewis (1927-2013)

Anthony Lewis in 1963, after winning his second Pulitzer Prize for national reporting, this one focused on his coverage of the Supreme Court

"I was probably made to be a lawyer. It just didn’t turn out that way."

-- Anthony Lewis, quoted by WaPo obituarist Emily Lang

"There's a kind of lucidity and directness to his prose. You learned an awful lot of law just from reading Tony Lewis’s accounts of opinions."

-- former NYT executive editor Joseph Lelyveld,
quoted by Adam Liptak in his Times obit

by Ken

This is another one that hurts. Not because longtime New York Times columnist Anthony Lewis didn't live a rich and rewarding life (though the standard obituaries are obliged to identify him as 85, since he died two days short of turning 86, we'll think of him as 86, since after all he died a mere two days short of his birthday), but because he carved out a journalistic niche that made him awfully hard to replace, all the more so as newspapers, even the NYT, feel obliged to be apologetic about maintaining opinion writers who are unabashedly and unapologetically liberal -- certainly not without "balancing" their voices with gibberish-mongers from the Right.

To say that Lewis was "unabashedly and unapologetically liberal" doesn't mean that he had a reflexive or in any way un-fully-reasoned viewpoint, even though that's the way your average right-winger would read it, because that really does seem to be the only way right-wing "thinkers" think, at the jerk of a reflexive knee, which after all is right close to where most of their thinking is done. No, all I mean is that Lewis had thought through the issues and arrived at deeply held convictions that any sensible person would recognize as "correct."

And what was special about Lewis's liberalism is that it was expressed most frequently in terms of the law -- he really believed that the law could be challenged into deliver justice. Here are some nice paragraphs from Emily Lang's Washington Post obit:

By the time he retired in 2001, Mr. Lewis was widely recognized as the dean of liberal American columnists and had written a book that is regarded as the seminal account of the landmark U.S. Supreme Court case Gideon v. Wainwright.

As a Times columnist for 32 years, he wrote his most noted work on First Amendment rights and the American justice system. In a crowded field of columnists, many of whom were at times enticed to bloviate, Mr. Lewis distinguished himself with the consistent lucidity of his writing and his reportorial approach to the job. . . .

Taken together, [his two Pulitzer Prizes] reflect the two most salient themes of Mr. Lewis's career: a self-professed affinity for the underdog and seemingly infallible command of the law, despite his limited formal training in the field. "I was probably made to be a lawyer," he once said. "It just didn't turn out that way."

The WaPo obit, by the way, is titled "Anthony Lewis, indefatigable champion of civil liberties and winner of two Pulitzer Prizes, dies at 85." My initial reaction was to pooh-pooh the Pulitzers and focus on the "indefatigable champion of civil liberties" part. But reading the obit, I was reminded that the Pulitzers were won, not for columnistic thumb-sucking (where Pulitzers have notoriously much to do with where you are and who you've pleased) but reporting, before he became a columnist. The first one, in fact, came before he was brought to the Times.

He received his first Pulitzer for national reporting in 1955, at age 28, while working for the now-defunct Washington Daily News. The award recognized his series of articles that cleared a Navy Department employee who was fired for alleged security risks during the Red Scare stoked by then-Sen. Joseph McCarthy (R-Wis.).

Meanwhile, in the Times obit, Adam Liptak writes in part:

Anthony Lewis in 1970

Mr. Lewis brought passionate engagement to his two great themes: justice and the role of the press in a democracy. His column, called "At Home Abroad" or "Abroad at Home" depending on where he was writing from, appeared on the Op-Ed page of The Times for more than 30 years, until 2001. His voice was liberal, learned, conversational and direct.

As a reporter, Mr. Lewis brought an entirely new approach to coverage of the Supreme Court, for which he won his second Pulitzer, in 1963.

"He brought context to the law," said Ronald K. L. Collins, a scholar at the University of Washington who compiled a bibliography of Mr. Lewis's work. "He had an incredible talent in making the law not only intelligible but also in making it compelling."

Before Mr. Lewis started covering the Supreme Court, press reports on its decisions were apt to be pedestrian recitations by journalists without legal training, rarely examining the court's reasoning or grappling with the context and consequences of particular rulings. Mr. Lewis's thorough knowledge of the court's work changed that. His articles were virtual tutorials about currents in legal thinking, written with ease and sweep and an ability to render complex matters accessible.

IT'S BEEN A TOUGH TIME ON WHAT I MIGHT CALL
THE "LEGAL JUSTICE" JOURNALISTIC BEAT

It was just on February 14, at 81, of Ronald Dworkin (left), who contributed so much dazzling comment to the New York Review of Books, describe in his Guardian obit as "widely respected as the most original and powerful philosopher of law in the English-speaking world."

I've missed Anthony Lewis's columns since his retirement in 2001 (though he soldiered on as a valued NYRB contibutor), and reading Ronald Dworkin's final NYRB piece, "Religion Without God" (an excerpt from the first chapter of his forthcoming book with that title), arguing that it's possible to hold moral viewpoints with the passionate conviction of religious belief without believing in an accepted deity, has been depressing. Fortunately, NYRB has no shortage of other able legal commentators, and for ongoing coverage of law and justice issues I'm infinitely grateful to Jeffrey Toobin for the diligent work he does both in The New Yorker and on newyorker.com.

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Just Lock Up All The Kids…

by Suzanne Turner

Consider this:

• The U.S. has more children in custody than any other developed country.

• The number of juveniles incarcerated as adults has increased by more than half over the last decade.

Two years ago then-12-year-old Cristian Fernandez was charged as an adult in the death of his younger brother, David Galarraga. He faced a mandatory sentence of of life-without-parole. On Friday, Cristian accepted a plea bargain that allowed him to serve six years in a juvenile facility.

But not all children are so lucky. In past because Cristian’s prosecutor was the some-would-say-infamous Angela Core (who was also the prosecutor in the Trayvon Martin case) Cristian’s case received an avalanche of international publicity. He also had a top-shelf pro bono legal team-- estimated at over three million dollars worth of pro bono legal support.

But what happens to kids who don’t have an internationally respected legal team behind them?

The pre-high-priced lawyer early days of Cristian’s case might provide some clues:

How about not being told what you’re charged with, kept alone in an adult facility for nearly a month, then spending some time alone with a very nice lady who feeds you a good meal and gets you to tell her all about it? No lawyer present, no adult present, just you and the lady? Oh, and video of this “confession” gets to live on the Internet forever, even after a judge rules it inadmissable?

Yep, here it is:



How about finding out the mother didn’t bother to take her youngest son to the hospital for nearly eight hours after the alleged incident? Or how about state prosecutor Angela Corey (aka Florida’s Medea mother/monster), claiming life in prison is not what she meant at all, AT ALL, but that she couldn’t get what she needed in the juvenile system. Except, ack, everything she needed was in the juvenile system.

Okay, there has been a ray of hope. Three recent U.S. Supreme Court decisions have brought the U.S. from the dark ages to … hmmmm … the early 16th century. In Miller v. Alabama, Sullivan v. Florida and Graham v. Florida, SCOTUS has decided against the death penalty for juveniles, has limited certain life without parole sentences and has had something (somewhat unclear) to say about life sentences for kids in general. So, we’re not cutting of kids’ hands any more, or even stoning them to death. But… what are we doing?

And this all begs a much larger and less newsworthy question both for Cristian Fernandez and the larger population of children in jail. How are they being educated and prepared for adult life? What happens when they get out of the system?

So, where are we?

• There a gadjillion kids who don’t have multi-million dollar defense teams to help them-- and many of them are in Florida.

• Even though recent SCOTUS rulings have outlawed hanging naughty children or shooting them on sight, there’s a long way to go to humanize the system.

• We have no idea how well the children in our bulging-at-the-seams juvenile justice systems are being educated or prepared for post-detention life.

So, despite not sentencing Crisitan Fernandez to life in prison, here we are, at the beginning of a new millennia, with a juvenile justice system that puts Oliver Twist to shame.

Introducing Overruled, a great online resource for timely legal commentary -- including the menace of mandatory arbitration

by Ken

As you may have noticed, our friend Jon Dodson has cut back his writing for us on legal matters, in order to devote fuller attention to his bulging legal caseload. One of these days we'll get around to nudging him to see if we can't shake an occasional piece out. Meanwhile there's an excellent new source of current legal comment, now that our distinguished colleague Ian, a frequent commenter on legal affairs on HuffPost and elsewherem has taken the plunge and started his own blog, Overruled.

After eight years in which we progressives relied on our legal brethren to keep track of the constitutional and legal matters the Bush regime was making mincemeat of, legal issues have become if anything higher-profile, as we survey the wreckage and figure out what has to be done to restore the rule of law (and the Constitution, of course), and as we fail to do so. I've come to trust Ian's timely and carefully considered takes on matters of immediate legal import, and I'm sure the blog will give him a chance to focus on longer-term issues as well.

One subject that Ian has jumped on about which I confess I knew very little is the campaign for the proposed Arbitration Fairness Act, designed to deal with a whole area of legal coercion, mandatory arbitration, which hasn't gotten much discussion outside the legal community. As he wrote Friday:

I’ve written a lot lately about binding mandatory arbitration, the biased, privatized justice system which many companies force their customers and employees to participate in. If you are tricked or trapped into signing a mandatory arbitration clause, and many companies will refuse to do business with you unless you do, you lose the right to hold that company accountable in court if it breaks the law—and instead must bring your case to a secret tribunal that overwhelmingly favors corporations. Presently, the corporate lobby is fighting very hard to block a bill which will stop abusive arbitration.

Note: In the event that Prof. Jonathan Turley hasn't covered the legal issue you're interested in with either Keith or Rachel, and isn't taking your calls, Ian welcomes e-questions and tips.

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