Easter Sunday

(Video by my friend, the redoubtable Tim Martin; "Christ Our Passover" by William McFarlane performed by the St. Barts choirs led by the inimitable William K. Trafka)

I don't feel I have the wit or wisdom to better this; from Charles Gore, The Deity of Christ, Sermon II (1921):

There is no tragedy in the world more moving than the tragedy of the failure of these disciples' faith. We ought not to be amazed at it: it is the same with innumerable human souls. What is it that makes faith difficult, that glorious faith of the Bible and the church? Well, it is the oppressive sense of weakness in our own souls and in the world about us. These glorious promises seem to come up dead against a brick wall. The brick wall which seems to resist this faith is the brick wall of seeming failure within and without, and the appalling weakness of God and His cause. So it is that there are multitudes—both orthodox and unbelieving multitudes—whose faith (in the real sense of faith) has failed under this tragedy of God's seeming weakness. The cry of Christ, "My God, my God, why didst thou forsake me?"—the utter seeming failure and shame is too much for them. They cannot believe in Him; they cannot see the glory hidden in the suffering Christ. So it was with the disciples.

And then you know how the great tranformation came about. He rose again the third day from the dead. On that third morning they found the tomb empty. I think, if you are prepared to believe in God and in history, you must believe that they found that tomb empty. And more than that, you must believe that, only a few weeks after the desperate failure of their courage and their faith, you find that same band of men quite tranformed in spirit. They were not imaginative men, not visionary men, but sturdy working men of an unimaginative kind, as the records show us; and they were men differing in character, given to jealousies among themselves, which Jesus rebuked. Well, this whole group you see in a few days totally transformed, from the weak, vacillating failures they had proved, into a group which can confront the world for a seemingly impossible task with unswerving and undying courage.

What was it that had brought about the great change? They all gave the same testimony. This change in themselves had been wrought by an experience which had forced itself upon them—the experience of the appearances of the Risen Jesus. The tomb was empty; they had wondered; but He had come among them here and there—not as in His old natural body when He had lived in one place, in Jerusalem or Galilee, and had walked from place to place like any other man, but as one who had passed to a higher sphere and yet could materialize Himself amongst them so as even to eat and drink with them. And it was all with one object—to make it clear that through failure and through death He was risen, and was passing to the glory of God at the right hand of the Father. And so at last they saw Him go, and they faced the world with a frank, indisputable courage bred of the conviction that "Jesus was Lord."

May all of us who follow the Way be likewise strengthened and emboldened this Easter Season.

New Life

Alas, I was somewhat under the weather, and so have no great anecdotes today. But la Caterina had an errand of mercy to run today, and detoured so that I could see the beneficiaries of her efforts:



I feel a bit like the last little fella, but, let's be frank, any day that starts off with seeing such lovely little creatures, and knowing that their futures are safe, can't be all bad.

And tomorrow, the Widor Toccata.

A Super Natural Tail

As you may have picked up from reading the blog, la Caterina runs a feral cat colony at the Brooklyn Navy Yard as part of the NYC Feral Cat Initiative. (I'm just "Thog, lift!" in this enterprise.) We also have a couple of cats in the back yard we feed, having had them neutered and ear-tipped, so that if they are ever seized, Animal Control or any shelter will know they are part of a colony and not ice them. One, a gentle orange tabby, was originally named Popeye, but for some daft reason I renamed him Mr. Popplethwaite. The other, a beautiful little black cat with a white spot where a lady's locket would fall, la Caterina named Elvira. While very sweet to people, Elvie is a shrew to other cats, and beats up mercilessly on Popples. We decided that the situation couldn't go on.

As luck would have it, a friend of ours who lives in the Bronx was interested in Elvie, and Wednesday night, la C drove Elvie up to her new home. Popplethwaite kept looking around for Elvira, and even called for her a few times (masochist!) but eventually settled down.

This morning, la Caterina urgently called me to the window where we beheld Popples--accompanied by a small black cat, with a a white spot where a lady's locket would fall. I heard myself call out, with a sudden Welsh burr to my voice, "Audrey Rose! Audrey Rose!"

Alas, she slipped away into the next yard....

The Limits of Advocacy

The commentariat on today's oral argument in United States v. Windsor is inclined to view DOMA as in deep trouble--whether libertarian, right, left or center. Five justices seemed deeply troubled by the federalism aspects of the statute (Congress, which has no power to define marriage, long a creature of state law) nonetheless refusing to recognize the marriages recognized by some of the several states. Also, the justiciability questions--whether the Federal Government could demand a ruling where it had come to agree with the plaintiff, and whether Congress had a right to defend a statute the Executive confessed to be unconstitutional--were given serious consideration, and seemed to have real traction with several members of the Court. So taken all in all, and recognizing that oral arguments and questions asked at the same are not always indicative of how the Court will rule, I am cautiously optimistic that this unjust and indefensible statute will be overturned, and not before time.

But that's not why people read this blog (to the extent you do, and thanks for that). I'm not a tea leaf reader, and the near unanimity of the commentariat doesn't require me to pretend to be one. So let's talk about something more interesting than speculation: the limit of what good lawyering can do. Because that's what was on display in this argument (audio here). Now, former Solicitor General Paul Clement is not a favorite of mine, but let's be frank; he's a first rate lawyer. So it was fascinating to watch him, again and again, forced to break ground--reluctantly falling back from the positions he wanted to advance, with the Justices repeatedly refuting his contentions. He wasn't the only one, mind you, but it was encouraging to watch this formidable advocate begin to wilt.

This happened on both the justiciability portion of the oral argument, but Clement was especially bloodied up in the merit section. For me, the key exchange was this:

MR. CLEMENT: The other point I would make -- but I also ventually want to get around to the animus point -- but the other point I would make is: When you look at Congress doing something that is unusual, that deviates from the way they -- they have proceeded in the past, you have to ask, Well, was there good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity.

Up until 1996, it essentially has it both ways: Every State has the traditional definition. Congress knows that's the definition that's embedded in every Federal law. So that's fine. We can defer. Okay. 1996 -­

JUSTICE KAGAN: Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting. This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We're going to look, and under rational basis, we look: Is there any rational basis for the statute? And so, sure, the House Report says some things that we are not -- we've never invoked in trying to defend the statute.
But the House Report says other things, like Congress was trying to promote democratic self-governance. And in a situation where an unelected State judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everybody, for the States -- for the other States and for the Federal Government by borrowing principle, it makes sense for Congress -­

JUSTICE KENNEDY: Well, but your statute applies also to States where the voters have decided it.

MR. CLEMENT: That's true. I -- but again, I don't know that that fact alone makes it irrational.

(Tr. pp. 72-75) (emphasis added).

Now, think about this for a minute. Clement has been forced to retreat from his basic contention that the legislative interest Congress sought to serve in enacting DOMA was that of creating "uniformity" as to how federal benefits were distributed among states which have different definitions of marriage. Now, because he's very adroit, he tries to minimize the adverse effect of the House Report, attributing it to "a couple of legislators" as opposed to being, as it in fact is, the formal explanation by the drafters of the meaning and intent of the statute they enacted. But he's taken a big blow--discriminatory animus has been conceded; enough to invalidate the statute under Equal Protection if you apply all but the most lax review, and even then only if you find a rational non-discriminatory basis for the statute. Clement adds another--to encourage democratic self government among the states--only to have Kennedy rip it apart with one line.

So he's down to uniformity again, only Justice Kagan had damaged that pretty lethally by pointing out that the uniformity at issue has historically been letting the states define it, and then Clement was forced again to give ground:

JUSTICE KENNEDY: Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.

MR. CLEMENT: And it doesn't have the authority to regulate marriages, as such, but that's not what DOMA does.

Well, it does if, as Justice Ginsburg pointed out to laughter, create two types of marriage, "two kinds of marriage, full marriage and the skim-milk marriage.” In the name of federalism, DOMA dilutes the power of states to define marriage while arrogating to Congress a power to define it which its defense counsel acknowledges it doesn't have.

That he is so formidable an attorney, and yet the foundations of his argument crumbled so completely today just shows that William O. Douglas's remark that oral argument never wins cases but often loses it continues to have validity. And the old lawyer's adage that you are only as good as your case still holds sway.

The case was argued quite ably on all sides (though the Bench clearly does not like Solicitor General Verrilli). But Clement has had a bad day; one attributable to the case , not the lawyer. He did the best he could with what he had. Glad though I am to see his position thoroughly routed, I know how he must feel tonight.

A=A, or, a Constitutional Lawyer Looks at Somebody Else's Oral Argument (Tuesday Evening Quarterbacking Edition)

[Slightly Revised in Section 2]

So, today's oral argument in Hollingsworth v. Perry (which you can hear here) involved Ted Olson, famous (or infamous) conservative legal luminary, U.S. Solicitor General Donald Verrilli, and Charles J. Cooper, representing the petitioners, supporters of California's Proposition 8. Now, rather than rehash the arguments (a pretty good precis is here), I thought I'd highlight a few key features that I haven't seen addressed in even the better commentary, which is, understandably enough, focused on trying to predict an outcome. Tea-leaf reading is inherently dangerous, though, so I thought I would look more at themes in the by-play between the bench and the bar.

1. A=A: Turning an Argument Turtle

A recurring theme in the argument on the part of several justices (Alito, Roberts, Scalia. Even Breyer, Ginsburg and Kennedy noted it as an irony) was that the challenge to Prop 8 was essentially unfair to the state, because California was, the challengers argued, unable to assert the grounds for the traditional definition of marriage that a less pro-gay state could. In essence, the troika argued, California was being punished for creating civil unions, adoption by gay couples and otherwise seeking to give all the practical benefits to same-sex couples as received by heterosexual married couples save the name of marriage.

Now this contention was in fact a very clever subversion of the fact that the Prop 8 proponents had, before the District Court, abjectly failed to provide any evidence--expert or not--for the constitutional amendment that overturned the Supreme Court of California's interpretation of the California Constitution's guarantees of Equal Protection and Due Process as encompassing a right to equal access to marriage. That ruling, itself an adequate and independent state law ground, immunized the 2008 In re Marriage Cases from federal court review, despite which fact Chief Justice Roberts put the onus of "a change by California Supreme Court of an institution since time immemorial." (Tr. p. 56) As Roberts himself noted, though, the decision to exclude gays and lesbians from the status of marriage came about "only because Proposition 8 came 140 days after the California Supreme Court issued its decision." (Tr. p 55) Roberts' view of the "change" rests on an unspoken assumption that the California Supreme Court's ruling is not well-dfounded in that state's law, over which neither he nor his Court has no constitutional authority, a concept well recognized since Erie v. Tompkins (1938):

Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.

The point is, that, having enacted statutes inconsistent with each of the alleged bases for limiting marriage to heterosexual couples, the State (through the individual Prop 8 supporters who defended the amendment) could not compile a record establishing a rational, non-discriminatory basis for the constitutional amendment stripping same-sex couples of their state law constitutional right, as authoritatively declared by the state's highest judicial authority. I think both Olson and Verrilli handled the point rather well, but I was surprised that the justices were so amenable to an analysis which flipped the lack of a neutral, non-discriminatory basis for Prop 8 into a liability.

2. A=A Redux: The Deceitful Pause Button

A similar low point in the intellectual analysis occurred in Cooper's initial argument and his rebuttal when he referred to Prop 8 as "hitting the pause button." As Verrilli emphasized, that's really not true at all; by enshrining the exclusion of same sex couples in the state constitution, Prop 8 is not a mere statute which can be repealed through normal processes. While Justice Alito pointed out that the California Constitution has been amended 500 times--dramatically more often than the federal Constitution, as is par for the course, as "[t]here have been almost 150 state constitutions, they have been amended roughly 12,000 times"--Prop 8 made repeal as hard is as possible under California law, and was designed to do just that, and elevate the proposition to one of fundamental value. The fact that it isn't as hard as amending the U.S. Constitution isn't really an argument that it's just a pause; it just speaks to the limits of a ballot initiative where a subsequent initiative can be brought. ETA: In that way, this case is much more like Romer v. Evans, in which a state constitution was amended by popular initiative to strip gays and lesbians of local anti-discrimination protections, a state action the Court found to have no rational basis other than a discriminatory intent to raise barriers to their full political participation. As in that case, here too gays and lesbians were set a constitutional barrier to securing legislation applicable to no other class in society. Notably, Justice Scalia, who purports not to be anti-gay, but to believe that the legislative process is the only appropriate way to secure reform, dissented in Romer.

And here is where I must strenuously disagree with Andrew Sullivan's long-held view that " I’d like to win this in the most enduringly legitimate way – in the democratic process, where we are winning more quickly than some of us ever dreamed of."

I'm sorry, but I think Andrew here is thinking like a Briton, schooled in Parliamentary supremacy, under which "Parliament is the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change." And the UK has, much more so than the US, managed to constrain itself though tradition and informal mores from constantly undermining the stability and predictability of law. But, even with the constraints of a written constitution, we have often set fundamental rights at naught. And we have, as a nation, long recognized that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." As de Tocqueville noted in Democracy in America, "If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force." He then quotes Federalist No. 51:

"It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger: and as, in the latter state, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves, so, in the former state, will the more powerful factions be gradually induced by a like motive to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that, if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of right under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of the factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.¯

Sullivan's faith in legislation is admirable, but reflects a certain naiveté that the Framers, de Tocqueville, and our greatest jurists have avoided.

3. Finale: The Originalist Dog that did not Bark, but Whined

Finally, let me cite an exchange between Scalia and Olson:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -­

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -­

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

Again, this is why Scalia's originalism is ultimately lacking in intellectual rigor, or even consistency with his own methodology of interpreting statutes; as I have previously pointed out:

Scalia applies the [constitutional] principle to a specific issue the drafters of the 14th Amendment mght be presumed to find shocking, and uses that specific application to denude the text of its meaning. Scalia privileges his hypothesis over the text, applying what he believes some unknown and unasked portion of the drafters (or ratifiers) or both of the Amendments as to the specific issue to be decided in 2011, an an issue which they did not consider or opine on. He is also assuming unanimity, and ascertainability of that intent. None of these assumptions is backed up. Moreover, Scalia is ignoring the fact that people often draft legal instruments more broadly than they intend--and the omissions are enforceable.

Just as was his infamous interview declaring the 14th Amendment's Equal Protection Clause inapplicable to women, so too this bit of dialogue is an effort to create uncertainty in the text by drawing Olson into a debate over an application its Framers did not foresee, and privilege what he believes they would have thought on the social issue of our day, with their 19th Century sensibilities. The fact that Scalia has to ignore his own prior reasoning that "Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent."

And equal = equal.
A=A.
QED.

"Money Talks,--"

When I was a law student, working in the summer between first and second year at the office of a criminal defense attorney (he had an associate, so technically not a solo), we would get the National Association of Criminal Defense Lawyers' journal, "The Champion." In it, the pseudonymous "Winston Schoonover" (the inimitable Charles Sevilla) published a column titled "Wilkesworld." The columns formed the basis of Wilkes: His Life and Times, an uproarious novel depicting of the life of John Wilkes, a blustery, ruthless, brilliant attorney, who vigorously (sometimes a little too vigorously, as witness his leading a riot in the Tombs, in the very first chapter). Wilkes worked hard, took risks, and charged very, very high, terming a fee discussion a "walletectomy."

I thought of Wilkes in reading about Adam H. Victor's counterclaims in a fee dispute with his former attorneys, DLA Piper:

They were lawyers at the world’s largest law firm, trading casual e-mails about a client’s case. One made a sarcastic joke about how the bill was running way over budget. Another responded by describing a colleague’s approach to the assignment as “churn that bill, baby!”

The e-mails, which emerged in a court filing late last week, provide a window into the thorny issue of law firm billing. The documents are likely to reinforce a perception held by many corporate clients — and the broader public — that law firms inflate bills by performing superfluous tasks and overstaffing assignments.

The internal correspondence of the law firm, DLA Piper, was disclosed in a fee dispute between the law firm and Adam H. Victor, an energy industry entrepreneur. After DLA Piper sued Mr. Victor for $675,000 in unpaid legal bills, Mr. Victor filed a counterclaim, accusing the law firm of a “sweeping practice of overbilling.”

Mr. Victor’s feud with DLA Piper began after he retained the firm in April 2010 to prepare a bankruptcy filing for one of his companies. A month after the filing, a lawyer at the firm warned colleagues that the entrepreneur’s bill was mounting.

“I hear we are already 200k over our estimate — that’s Team DLA Piper!” wrote Erich P. Eisenegger, a partner at the firm.

Another DLA Piper lawyer, Christopher Thomson, replied, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter.

“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”

A DLA Piper spokesman said the firm did not comment on pending litigation.

The quoted e-mails are quoted from an affidavit from Victor's counsel seeking leave to amend his counterclaim and asserting new causes of action against DLA Piper.

I don't know the rights or wrongs of the matter between DLA Piper and Victor; people often write remarkably stupid things thinking they're being funny, or demonstrating bravado, and it's possible that that is all that happened here. But the fact of the dispute and the insouciant air of the e-mails draws attention to a real problem; as Professor William G. Ross of Cumberland School of Law is quoted "the billable hour creates perverse incentives.”

The e-mails are adduced as evidence of unethical practices known in the trade as "churning" and "featherbedding." The Times cites a survey of 250 lawyers in which "more than half" acknowledged churning, that is, "perform[ing] pointless assignments — like doing excessive legal research and extraneous document review or filing frivolous motions — to increase their billable hours." Professor Ross, who conducted the survey, is quoted as drawing attention as well to the problem of featherbedding, that is, "throwing armies of bodies at every problem." Both are charged in Victor's counterclaims, with e-mails in support.

The billable hour has long been seen as an easily abused metric for payment. (From the perspective of the junior associate lawyer, it's drawbacks also exist, in the form of unending days trying to meet the annual requirement.) A useful account of the problem, and of the difficulties besetting any non-regulatory solution is here. For what it's worth, in view of the fact that my own last billable hour experience was long ago and in an era far away, I distrust it, based on just the perverse incentives cited by Professor Ross.

Wilkes, by the way, charged high fees, but didn't feather bed or churn; he did not bill by the hour. Of course, he had the advantage of being fictional.

Sunday of the Passion

From "The Atonement" by Arthur Lyttleton, in Lux Mundi:

Even we," says St. Paul, "which have the first fruits of the Spirit", even we are waiting for the further process, for "the adoption, to wit, the redemption of our body." And the process consists in so following "the Captain of our salvation" that, like Him, we accept every one of those sufferings which are the consequences of sin, but accept them not as punishment imposed from without upon unwilling offenders, but as the material of our freewill sacrifice. From no one pang or trial of our nature has He delivered us, indeed, He has rather laid them upon us more unsparingly, more inevitably. But the sufferings from which He would not deliver us He has transformed for us. They are no longer penal, but remedial and penitcntial. Pain has become the chastisement of a Father who loves us, and death the passage into His very presence.

(pp. 254-255).

In the current Anglican Theological Review, there is a series of essays on the atonement, focusing on the penal substitutionary and honor of God theories, with which I have been grappling since almost the inception of this blog. The last step of my 2013 Lenten practice: This week I will read these essays, and Lyttleton's essay, as charitably and as receptively as I can.

Good Friday is coming; some serious thought and prayer on its meaning is warranted, and not just from those with whom I know I agree in advance.