Friday, March 21, 2014

"[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute -- the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud."

That's from the dissent of a criminal case in the 7th Circuit, which voted to uphold the criminal conviction.  Weird.  Here's the entire opinion.

Lots of people are clamoring for Ruth Bader Ginsburg to retire while Obama is in office.  Slate's thinks they are nuts:

Arguments about Ginsburg’s political judgment almost by necessity inflect upon her judgment as a whole, and yet nobody has advanced any argument for the proposition that Ginsburg’s judgment is failing. The suggestion that the woman who engineered the ACLU’s litigation strategy in the courts, who wrote the partial dissent in the health care cases, and again in last year’s voting rights case, and in Vance v. Ball and UT Southwestern Medical Center v. Nassar, doesn’t understand real-world politics is actually pretty bizarre. Of all the sitting justices, Ginsburg is probably the least likely to simply forget to retire because it slipped her mind. (One can, on the other hand, plausibly imagine Breyer simply forgetting to step down.)
Over at the Atlantic, professor Garrett Epps has just written in defense of Ginsburg. You should read the whole piece, but two important points he makes are worth repeating: Ginsburg plays a crucially important role in the Roberts Court as the senior justice on the liberal bloc, not just in terms of assigning opinions but in terms of writing them. If anything, Ginsburg has been stronger in recent years than ever and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action, and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensible. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate. That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important that the justice herself. Ginsburg, like Antonin Scalia, is writing those dissents for law students, for the case books, and for Congress. Not all justices are created equal in that regard.
Epps’ other point is that knowing when you’ve stayed at the court too long is a complex and deeply personal inquiry, and that many of the justices who overstayed their time were blind to their own illnesses and failings. Others left before they should have. But of all the justices now at the court, Ginsburg strikes me as the least isolated, the least self-involved, and the least likely to surround herself with sycophants telling her to stay on. Ginsburg is not a Justice who reads no newspapers, vacations alone, or hides out from the world. Her travel and speaking schedule is punishing. She is as deeply connected to the world around her as she has always been.

OK people, have a wonderful spring break.


Anonymous said...

"Abair’s conviction and sentence, including the forfeiture
order, are REVERSED and the case is REMANDED to the
district court for a new trial."
The footnote at the end of the dissenting opinion is the most quotable part of the decision.

Anonymous said...

I'm not sure Dahlia Lithwick's criticism is too persuasive. Chemerinsky was not complaining about RBG's lack of judgment in his LA Times op-ed. He was merely hedging his bets, which Lithwick ignores. Whether you think RBG should retire depends on a slew of contingencies: will Hillary win in '16, is Ginsberg in good enough health, will any prevailing Republican president win reelection, and who would Obama appoint. These questions are almost unanswerable since they're all guesses and are therefore not that interesting.

To an extent, too, your answer to whether RBG should retire depends on your belief of Ginsberg's contribution to the Supreme Court. Is she unique, akin to Brennan, Holmes, or Jackson? Or is she just another Justice? This is the interesting question, since if she is unique, it is unlikely Obama could replace her with a similar talent. If she isn't, talented, intelligent, and diligent attorneys abound. Lithwick seems to think Justice Ginsberg is unique, but she doesn't really do a great job explaining why. In contrast, Jeffrey Toobin wrote a New Yorker profile on RBG that made her look like a wonderful litigator but an average Justice.

Bob Becerra said...

The Abair case sounds a lot like a case I was recently involved in that thankfully resulted in acquittal. Smelly money? Honestly!

Rumpole said...

Here is the footnote from the judge that dissented:

Despite our disagreement about the legal issue under 2 Rule 608(b)(1), my
colleagues’ decision to reverse and remand for a new trial has the salutary
effect of permitting a fresh exercise of prosecutorial discretion. The
executive branch may choose to moderate its strict enforcement stance
against Abair and resolve not to sink further resources into prosecuting her.
Under the circumstances, that might be the most prudent and just thing to