Comey's Next Big Surprise?

Mrs. Wizard is an amazing, intelligent, beautiful person.  

Today, she was speculating that the reopened FBI investigation might actually work in Hillary's favor if the FBI does not come out with anything new before the election. Certainly, that's the aim of the well-orchestrated drumbeat of attacks leveled at FBI Director James Comey since the stunning revelation on Friday, October 29, that the investigation into HRC's emails was on again.

A fascinating timeline and description of the events leading up to Comey's decision is here.  

So what's next?  No one knows, not even your Wizard.  But, I have a few thoughts and a wish prediction as to what might happen.

Apparently, Director Comey was motivated to announce the investigation's reopening by (1) the appearance of new evidence, (2) his promise to Congress to do so if new evidence arose, and (3) the resignation letters piling up on his desk from FBI agents incensed by the failure to level charges against the Clinton crew.  

Now, he's being hammered by the entire liberal bench, going so far as to claim that he violated the Hatch Act, a nonsensical allegation.

Which brings us to the next big surprise.

Feeling besieged for only doing his job and in an effort to bolster public perception of his and the FBI's integrity, Comey holds a press conference or, better yet, arranges for another appearance before a Congressional committee, and says the following:

1.  He was ordered by Attorney General Loretta Lynch, presumably at the behest of President Obama, to derail the original investigation.  Since it was a close call, he reluctantly agreed.  Given recent events, he regrets that decision and the investigation should not have been closed.  He believes the orders were given for purely political reasons.

2.  He made a promise to Congress, and he is keeping it.  The discovery of 650,000 emails stored on a previously unknown device -- a device which Huma Abedin swore under oath did not exist -- made it imperative to reopen the investigation.  It is immaterial whether any of the emails were to or from Hillary; they could contain admissions by her closest confidante who would be an invaluable witness were she turn on the Democratic candidate.

3.  The disclosure that the woman married to the no. 2 man at the FBI, Andrew McCabe, had received nearly $500,000 in campaign funding from a PAC controlled by Terry McAuliffe, one of the Clintons' closest allies and a Clinton Foundation board member, cast a pall over the entire previous investigation that only a complete reexamination would dispel.

4.  In his view, there is substantial evidence that numerous individuals, including Huma and Hillary, lied to the FBI during the investigation.

Right now, Comey is untouchable.  He serves at the pleasure of the president, who wouldn't dare fire him.  (For all we know, Obama is enjoying watching Hillary twist in the wind.)  And, Comey would have no liability for his testimony -- witnesses are immune.

Just dreaming on a Monday morning.

Moving to New York City for my Health and Happiness

It looks like I may have to leave the Emerald City and head to the Big Apple if I want to be healthy and treated with deference.  Still, there may be a hiccup.

First, New York City is bound and determined to make people healthier.  From trying to ban Big Gulps and other large containers of delicious soda, the city has now moved on to salt.  If restaurant owners don't put little icons on their menus next to any salty items, they can be fined as much as $600.  Bad seasonings! Bad!

I just know the time is coming when the city will go after butter, and then it's on.  Oh yes, it's on.

Second, the city is going all out to make sure no one is discriminated against based on their gender identity, going so far as to list 31 different gender identities, just to make sure people are educated on these fast-growing segments of society.

And now, the hiccup.  I'm gender salted.  Salt is not just delicious, it's a necessity to make bland food edible and good food great.  And don't get me started on iodine!

So, on the one hand, the city wants to protect my gender expression, but at the same time stigmatizes the use of salt as unhealthy.  Unhealthy!  That's what they said about a lot of gender expressions that don't neatly conform to their cisgender normatives.

At some point, all these new regulations are bound to lead to conflict.  What if a gender salted person wants a salty cupcake that the baker won't provide for health reasons or to comply with a city ordinance.  Who gets prosecuted in that instance?

I should mention I am also devoted to Diet Coke - is that a subset of gender fluid?  I'm not sure, it's so difficult to keep up with all of the definitions.  So let's just call it gender DC.  When some surly waiter asks, "Is Pepsi okay," is that a violation, merely disrespect, or just poor restaurant management?

We didn't have these problems when Rudy was mayor.

For now, it's probably best to just stay here in the Emerald City, where we get up at 12 and start to work at 1, take an hour for lunch and then at 2 we're done.  

(Opens Diet Coke and bag of especially salty chips).  Ah, life is good.

Could BARBRI or the DOJ Pass the Character and Fitness Requirements for Bar Admission?

Here in the Enchanted Mitten, new lawyers applying for admission to the Bar must demonstrate their character and fitness to practice law.  Many of them have taken the BARBRI prep course for the bar examination, and, presumably, some would like to work for the U.S. Department of Justice.

But, could BARBRI and the DOJ themselves pass the character and fitness requirement?  A couple of recent stories suggest they might have some difficulty.

BARBRI and a few law schools are being sued by another bar exam prep company, LLM Bar Exam LLC,  LLM alleges that by donations and gifts to the law schools and lucrative teaching contracts to the schools' faculty members, BARBRI is attempting to monopolize the bar prep market, with LLM being excluded from law school marketing and facilities.

Even worse than BARBRI's alleged conduct, lawyers from the U.S. Department of Justice were recently found to have misled a federal judge and then to have attempted to cover up their misrepresentations. The judge ordered lawyers representing the DOJ in 26 states to undergo annual ethics training, stating:

In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct. There were over 100,000 instances of conduct contrary to counsel’s representations.

 There is a solution, of course, to all this widespread dishonesty.  Move to Wisconsin, where you can lie to your heart's content and still be admitted to the Bar.

Eternal Vigilance -- The Battle for the Michigan Supreme Court and the Rule of Law

Once again, we find ourselves on the brink of another Supreme Court election, again featuring a distinct contrast between rule-of-law judges and the so-called "empathy" judges.  On the rule-of-law side, we have Brian Zahra, David Viviano, and James Redford.  The principal empathy candidate is Richard Bernstein.

All elections and races are important, but as the final arbiters of what will and will not be constitutional or enforceable, there is no race more important than the race for Justice of the Michigan Supreme Court.

Bernstein's candidacy is summed up well here.

To underscore the importance of the rule of law, I am reposting a piece that can be found in its original form here.  It illustrates how empathy judges decide however they want to, without regard for the law, for private contracts, or any other limits.  Empathy judging is an extreme danger to society, since it eliminates any reasonable expectations of how others will behave. For example, if contracts don't mean what they say, how can we rely on them?  The lessons of this piece are just as applicable today as they were when it was first posted.

Putting "The Rule of Law" in Perspective

This year's Michigan Supreme Court election will spotlight the "Rule of Law" issue. Voters will be asked to decide between Justice Robert Young and Judge Mary Beth Kelly (the Rule of Law judges) and Justice Alton Davis and Judge Denise Langford Morris (the "empathy" judges).

Simply described, RoL judges interpret the constitution, laws, and contracts by the plain meaning of the words used by their authors. Empathy judges, in contrast, interpret the same words in order to reach a desired result.

Here's a perfect example -- Elizabeth Weaver's parting gift to Michigan jurisprudence. The case is Shay v Aldrich, decided August 23, 2010. In short, the plaintiff sued five defendants, alleging that they had assaulted him. Partway through the case, the plaintiff settled with two of the defendants and signed two separate releases, each releasing a defendant "together with all other persons, firms and corporations, from any and all claims, demands and actions which I have now or may have arising out of any and all damages, expenses, and any loss or damage resulting from an incident occurring on September 8, 2004."

After the plaintiff signed these releases, the other defendants moved to dismiss the remaining claims, arguing that the plaintiff had waived them. The trial court denied the motion, but the Court of Appeals reversed. finding the releases unambiguous. The Michigan Supreme Court then granted leave to appeal and reinstated the claims against the remaining defendants, finding in a 4-3 opinion by Weaver that the plaintiff did not intend -- despite the clear language of the releases -- to waive any claims against the remaining defendants. The Weaver opinion equated "broad" with "vague" and permits the parties to use extrinsic evidence to introduce ambiguities into a contract, thus necessitating "interpretation" where there previously was none.

The impact of this opinion will not be limited to releases. Why should it be? Why are releases to be treated differently from every other kind of contract? Under the new Weaver rule, a contract means what it was intended to mean, regardless of what it actually says. Under the rule of law, contracts mean what they say, without an interpretive middleman in a black robe.

This Weaverizing of contracts is symptomatic of the elitist arrogance of the ruling class -- they know better than you do what you need and what you really mean. It is this arrogance that leads to Congress passing 3,000 page bills it hasn't read, doesn't understand, and has no intention of reading or understanding. Government power is thereby transferred to the bureaucracy, and the people are left with no option but litigation, hence the constitutional challenge to Obamacare. If we don't have the courts, we are lost.

In the July-August 2010 issue of the American Spectator, Angelo Codevilla published a brilliant article, America's Ruling Class -- And the Perils of Revolution. Please read it here. He describes the ruling class as considering itself "saviors of the planet" and "improvers of humanity." It is a penetrating, brilliant article.

A portion of Codevilla's article describes the interaction between the ruling class and the courts:

Disregard for the text of laws -- for the dictionary meaning of words and the intentions of those who wrote them -- in favor of the decider's discretion has permeated our ruling class from the Supreme Court to the lowest local agency. Ever since Oliver Wendell Holmes argued in 1920 (Missouri v. Holland) that presidents, Congresses, and judges could not be bound by the U.S. Constitution regarding matters that the people who wrote and ratified it could not have foreseen, it has become conventional wisdom among our ruling class that they may transcend the Constitution while pretending allegiance to it. They began by stretching such constitutional terms as "interstate commerce" and "due process," then transmuting others, e.g., "search and seizure," into "privacy." Thus in 1973 the Supreme Court endowed its invention of "privacy" with a "penumbra" that it deemed "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The court gave no other constitutional reasoning, period. Perfunctory to the point of mockery, this constitutional talk was to reassure the American people that the ruling class was acting within the Constitution's limitations. By the 1990s federal courts were invalidating amendments to state constitutions passed by referenda to secure the "positive rights" they invent, because these expressions of popular will were inconsistent with the constitution they themselves were construing.

By 2010 some in the ruling class felt confident enough to dispense with the charade. Asked what in the Constitution allows Congress and the president to force every American to purchase health insurance, House Speaker Nancy Pelosi replied: "Are you serious? Are you serious?" No surprise then that lower court judges and bureaucrats take liberties with laws, regulations, and contracts. That is why legal words that say you are in the right avail you less in today's America than being on the right side of the persons who decide what they want those words to mean.

As the discretionary powers of officeholders and of their informal entourages have grown, the importance of policy and of law itself is declining, citizenship is becoming vestigial, and the American people become ever more dependent.

So, the battle for the Michigan Supreme Court is not merely a contest for control of the Supreme Court. It is a fight to regain some measure of the rule of law, to maintain a bulwark against the whims of the ruling class and government bureaucracies, and, perhaps most importantly, to assert our independence as free citizens.

If we don't have the authority to govern our own affairs through written agreements, what is left for us?

Is Richard Bernstein Violating the Judicial Code of Conduct?

Ordinarily, I fast forward through commercials when I'm watching a program on DVR.  Sometimes, though, I'm not quick enough or I'm busy, and then I get to watch advertisements that remind me why I usually zip through them.

Yesterday, one of the commercials I saw by accident really caught my attention, but not in a good way.  It was a political ad for Richard Bernstein, who is running as a Democratic nominee for the Michigan Supreme Court.  At about the 14-second mark, Bernstein says:

Big corporations, polluters, and insurance companies have their high-priced lawyers, so let me be your judge.

Your wizard was astounded by this comment, so I quickly went to my copy of the Judicial Code of Conduct.  Right there, in Canon 7, part B, it clearly states:

(1)   A candidate, including an incumbent judge, for a judicial office:

*   *   *

(c)  should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.

So, what is going on in this commercial?  It is patently obvious that Bernstein is pledging that he will rule against big corporations and insurance companies.  Prejudging cases that are likely to come before the high court is the exact opposite of "the faithful and impartial performance of the duties" of Michigan Supreme Court Justice.

Perhaps this sort of inattention to the rules is to be expected from someone who has never been a judge and, according to the Michigan Courts website, has never appeared on a case in either the Court of Appeals or the Michigan Supreme Court.

Regardless of the cause, there is no excuse for a candidate so blatantly flouting the code of conduct governing the office to which he aspires.  This is a bad way to start, and voters would do well to make sure he doesn't get the chance to follow through.

"What the hell is going on out here?"

My apologies to anyone who might take offense at the famous Vince Lombardi exclamation in the title of this post, but I am amazed by the stuff I am seeing in advance of Saturday's Michigan GOP State Convention, particularly the stuff relating to Ron Weiser and Brian Calley.

I know Ron Weiser just a little, having had a total of about 30 minutes of conversation with him over the last two years.  I can't recall ever having a conversation with Brian Calley.  So, I am not writing this out of some long-developing bond with either man.

Against Weiser, people have dredged up the most inconsequential facts and attempted to turn them into some sort of indictment against a man we should all be foursquare behind.  Ron Weiser's contributions to the state and national Republican parties are monumental, and does anyone remember his pivotal role in making Michigan a freedom-to-work state?  Here is a man who has slaved tirelessly on behalf of Republicans -- all Republicans -- and has earned our respect, our loyalty, and our votes.

I have nothing against the other candidates, whom I also respect, but they should be denouncing these smear tactics, instead of remaining silent or, in at least one case, appearing to participate.

People are pretty familiar with the range of attacks on Calley, principally the same complaints people have about the governor -- Medicaid expansion, possible road taxes, etc.  There is certainly room for debate on these issues, but there is no room for debate on Michigan 2014 vs. Michigan 2010.  What a difference real leadership makes, even if you don't agree with it 100 percent of the time.  Like it or not, Calley is part of the team that has moved our great state forward, and he has earned his place as the Governor's choice for running mate.

For those who favor the other candidate, how would that work, exactly?  Do you honestly think he would be part of the administration?  Do you think he'd travel with the governor, talk strategy with the governor, or have any substantive role whatsoever?

Article V, Section 25 of the Michigan Constitution describes the role of the lieutenant governor:

The lieutenant governor shall be president of the senate, but shall have no vote, unless they be equally divided. He may perform duties requested of him by the governor, but no power vested in the governor shall be delegated. 

If Calley's opponent is selected on Saturday, and if the Governor is reelected in November (which would be made harder by the opponent's selection), the new LG won't need to find a residence in Lansing -- he'll be attending funerals around the state for the next four years.  His selection will be absolutely pointless, other than to provide certain folks with a source of misguided pride that they "took down the lieutenant governor."

Cataloging the first four years of the Snyder administration, honest Republicans would admit they agreed with 90 or 95 percent of the things that have been accomplished.  There are always battles to be fought and won (like the bridge), but the areas of disagreement should not be the tail wagging the dog.

I always laugh when people use the term "establishment Republican."  There's a term with no meaning whatsoever, used only by those who want to be in the establishment.  What happens when the outsider gets elected -- does he automatically become an establishment Republican to be despised and vilified?  Look at our Attorney General -- he is an unbelievable public servant, conservative and dedicated.  Is he an establishment Republican?

For the last four years, Brian Calley deserves our support.  For a lifetime of dedicated service, Ron Weiser deserves our support.  Both of these men are undeniable conservatives and should be nominated at Saturday's convention.

Hey, It Could Happen . . .

Your Wizard has returned to the blogwaves after an extended absence and, to celebrate, I have decided to depart from the usual fare and talk a bit about MICHIGAN STATE FOOTBALL!!!

11-1, 8-0 in the Big Ten, ranked #10 in the BCS, and playing for the Big Ten Championship against undefeated Ohio State, winners of 24 straight games.  If OSU wins, the Buckeyes will likely play for the national championship.

But what if the Spartans win?  Is there a scenario in which MSU could play for the BCS National Championship?

I believe there is, and here's how.  First, the current standings:

1.  Florida State
2.  Ohio State
3.  Auburn
4.  Alabama
5.  Missouri
6.  Oklahoma State
7.  Stanford
8.  South Carolina
9.  Baylor
10.  MICHIGAN STATE

Now, here's how MSU can play for the national championship:

1.  Of course, MSU has to beat Ohio State, and pretty convincingly.  A beatdown like the one inflicted on a certain school in Ann Arbor would suffice.
2.  Baylor loses to Texas.
3.  Stanford loses to Arizona State
4.  Oklahoma State loses to Oklahoma
5.  Duke beats Florida State

If the foregoing results happen, MSU should jump over an idle South Carolina and get into the national championship mix.  But that leaves the three SEC schools -- Missouri and Auburn, which meet in the SEC championship game, and idle Alabama.   How does MSU jump over two of them, since one will win the SEC championship and Alabama is already six spots ahead of MSU in the BCS rankings?

6.  Missouri has to beat the daylights out of Auburn, like 59-3 or something like that.  This will show (1) Auburn is not that good, (2) Alabama, which lost to Auburn, can't be all that good, and (3) the SEC mystique isn't quite the same since Missouri came into the SEC only a year ago, and here it goes and wins the SEC championship and destroys Auburn in the championship game.

If all this comes to pass, the voters and the computers, sick of the SEC and sensing the destiny that surrounds the Spartans, will surely elevate Michigan State to number 2 in the BCS rankings, edging out Alabama and setting up an SEC-Big Ten matchup in the championship.

The Wiz might have to hop into the old balloon to go to that game.

It could happen.  Couldn't it?

The Stakes Could Not Be Higher

Tyranny, broadly defined, is the use of power to dehumanize the individual and delegitimize his nature.  Political utopianism is tyranny disguised as a desirable, workable, and even paradisiacal governing ideology. 
                                                                   -- Mark Levin, Ameritopia

Individual sovereignty is under attack.

Not the wacko, every-man-is-a-sovereign-the-United-States-is-a-corporation kind of sovereignty, but the notion that, as individuals, we have worth and dignity that deserve protection.

This attack exists in every corner of our society and has found its way into our language.  Liberal politicians talk about the "cost" of a tax cut and ask conservatives, "How are you going to pay for that tax cut?"  They thus view tax cuts as expenditures, but expenditures of what?  Of the money to which they deem the government entitled. 

A tax cut "spends" nothing.  It is an acknowledgment that the money being taxed belongs in the first instance to the earner, not the government.  Most Americans would willingly pay taxes to support legitimate government functions, but we resist ferociously the notion that our incomes belong to the government.

Of course, videos produced by the Democratic Party proudly proclaim that "government is the only thing to which we all belong."

The massive growth and rapid accumulation of power by the federal government threatens state sovereignty as well.  In Arizona vs. United States, the Supreme Court earlier this year affirmed an injunction preventing enforcement of Arizona's immigration law.  In doing so, Justice Scalia observed in dissent, the Court's ruling "deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have
no right to be there."

In a most painful intrusion into individual sovereignty, the Supreme Court blessed a mandate-as-tax designed to force Americans to engage in commerce, something never before attempted in the history of our great nation.  Despite the dissent's pointed observation that "Article I contains no whatever-it-takes-to-solve-a-national-problem power," we are in an era when every problem is deemed sufficiently serious to warrant federal intervention, appropriation, and perhaps even a new agency or board or czar, appointed by the president with plenary power to make things worse.

The attack on individual sovereignty is not just legislative, it is found in social and cultural attacks on the rich and the successful.  Mitt Romney is derided for paying taxes at a 14 percent rate, but little is made of his extraordinary charitable donations, particularly when matched up against the president's. 

Here in the Enchanted Mitten, the prevailing legal struggle is between rule-of-law judges, who apply the law as it is written by the people's elected representatives, and the empathy judges, who rule based on their own opinions and feelings, unfettered by notions of judicial restraint or faithful adherence to the will of the people as expressed by their representatives.  Rule-of-law judges respect people and what their legislators say; empathy judges have contempt for the people and apply their own views because they think they know better.  Rule-of-law judges believe in representative democracy; empathy judges believe in the elitism of the intellectual.  By disregarding the language of legislative enactments in favor of their own feelings, empathy judges demonstrate their contempt for individuals.

The defense of personal sovereignty is not founded upon positions on specific programs or issues, it is a philosophical defense of the individual that extends to all programs and issues.  Not every tax or program is an attack on the individual, but a political approach that treats the individual as an ATM from which to withdraw government funds is such an attack and must be fought. 

When judges interpret ambiguous language, they are doing their jobs, but when judges ignore clear and unambiguous language in a statute or contract in order to reach the result they personally desire, they are showing their distrust and contempt for individual decisionmaking and individual value.  While manifesting itself in specific decisions, the real issue is the broader philosophical problem that yields such results.

It remains to be seen how vigorously Mitt Romney would fight the vast expansion of federal power, but there is no doubt that another four years of President Obama would yield even more of what we have seen the last four years -- the relentless growth of government power and intrusion into the most private details of our lives and the continued seizure of economic activity and individual freedoms.  A Supreme Court already shaky in its defense of liberty would, under Obama II, become an eager participant in dismantling our constitutional protections.

We simply cannot allow this to happen.

We must elect Mitt Romney and give him a conservative Congress that will not only support his initiatives, but guide him on the course of liberty and individual freedom. 

In Michigan, we must vote for Justice Markman, Judge O'Brien, and Justice Zahra for the Michigan Supreme Court.

As Mark Levin put it so eloquently in Ameritopia:

It seems unimaginable that a people so endowed by Providence, and the beneficiaries of such unparalleled human excellence, would choose or tolerate a course that ensures their own decline and enslavement, for a government unleashed on the civil society is a government that destroys the nature of man.

Don't Get Your Panties in a Bunch -- It's Not Personal

Is it impossible these days to have a discussion about an issue or a political race without it becoming personal?  Apparently so, at least for one backer of Judge Jane Markey.

Markey is up against Colleen O'Brien for one of three Republican nominations for Michigan Supreme Court justice.  As faithful readers of this blog know, your Wizard has published three articles critical of Markey decisions, principally on the grounds that they contradict her claim to be a "rule of law" judge.  I have never attacked Judge Markey personally, nor have I attacked her supporters.

But they have attacked me personally.

The latest attack was purportedly authored by one Steven Vander Ark in an email distributed to the delegates to this weekend's Republican convention.  He says that I practice "the dark art of magic - turning fiction into fact while hiding behind the curtain of anonymity. Any lawyer reviewing his 'analysis' of Markey's decisions would recognize a straight up hatchet job: it is no wonder he wants to remain anonymous. His blog is a shameful sham set up for the sole purpose of producing political smears under the guise of legal analysis."  He goes on to criticize my discussion of the Wilkie case and my quoting of the Chief Justice in the Progressive Insurance case.

You know, if you're going to lie about me, at least tell the truth while doing it.

Here's where Mr. Vander Ark and the truth part company:

1.  This blog was established in 2007; it was not "set up for the sole purpose of producing political smears under the guise of legal analysis." 

2.  I never discussed the Wilkie case, and I do not consider a reversal as any reason not to vote for a judge.  As a judge whom I respect frequently says, "Even when the court of appeals affirms me, I still think I'm right."  I have never criticized Judge Markey or any other judge because one of their decisions was reversed.  My posts on Judge Markey may be reviewed here, here, and here.

3.  Mr. Vander Ark is correct that I quoted the Chief Justice in my discussion of the Progressive Insurance case here, and I did not quote Justice Markman's concurrence.  So what?  Does that somehow delegitimize the point I was making?  Am I under some obligation to quote Justice Markman?  If so, am I also obligated to quote Justice Marilyn Kelly, who sided with Markey's opinion?  And where is Mr. Vander Ark's defense of Judge Markey?  She claimed then -- and claims now -- to be a rule of law judge, but in Progressive Insurance, she cast aside clear statutory language in favor of a result that comported with her "sense of justice and fair play."  That is not a rule of law methodology; it is the very definition of an empathy judge.  Yet, Mr. Vander Ark says nothing, falling back on the notion that her position is "defensible."  That's a pretty low bar for someone who wants to be a Supreme Court justice.

So, you be the judge.  Have I turned "fiction into fact," as Mr. Vander Ark suggests?  If so, how? What exactly have I written that is incorrect?

Let's make things perfectly clear:  for me, this is not a personal issue.  I favor the rule of law, and I believe strongly, as Bob Young has written, that the "rule of law requires a judge to be subservient to the law itself, not the law to be subservient to the personal views of a judge."

In the cases I have described, Judge Markey has elevated her personal views over the the law.  Whether you agree or disagree with her ultimate decisions, this approach, this decisionmaking process, is not the approach and the process followed by rule of law judges.  That the results are "defensible" is irrelevant -- the rule of law does not concern itself with results, only with faithfully applying the law as written by the People through their elected representatives.

As I have written, Judge Markey seems like a very nice person.  I have no interest in her political donation history or in any of the rumors being circulated about her.  This is not personal; this is about job performance and judicial philosophy, period.

I don't know Mr. Vander Ark.  Is it significant that his email was paid for by Markey's campaign?  I don't think so.  His name is on it, and he will have to defend it, regardless of who wrote it or who paid for it.  His email is wrong and contains numerous factual errors, as I have outlined above, but I will not attempt to smear him as he has attempted to smear me.  Frankly, I have no interest whatsoever in Mr. Vander Ark -- he is not running for anything.  My only interest is in a full and frank discussion of the most important issue in this judicial campaign:  who will be a rule of law justice on the Michigan Supreme Court?

Let's just stick to the issue.  It's not personal.

Upon Further Review: More Problems for Markey

The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful.  Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored.  I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework.  [Someday, I'd like to meet Kevin and shake his hand.]  That doesn't mean I agree with him, however.  In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.

In a recent post, Kevin essentially made this argument:  We don't know much about Colleen O'Brien because she is a circuit court judge, and there have been other judges or nominees, about whom we knew little, who disappointed us, e.g., Harriet Miers, David Souter, and Mary Beth Kelly.  Therefore, we should not nominate Colleen O'Brien in favor of a candidate with a more readily viewable record.

I will address Kevin's observations about Mary Beth Kelly in a near-future article.  At this point, I will only say that Kevin has questioned my writing about two of Jane Markey's decisions when his entire criticism of Mary Beth Kelly is based on one decision, ignoring the many opinions in which she joined with the rule-of-law majority.   Harriet Miers was never confirmed, and Souter was put forth by the moderate northeastern wing of the party (i.e., John Sununu) in response to prior confirmation battles that got out of control due to the flyspecking and nitpicking over productive nominees.

Still, Kevin raises a valid point, but it doesn't carry the day.  He is arguing, in essence, that we should reject an "unknown" circuit court judge in favor of a "known" appellate judge with a troubling record.  That's not an exchange I'm willing to make, for a number of reasons.  First, I do credit endorsements to some extent, particularly by respected and unimpeachable judges such as Chief Justice Robert Young.  Second, I have met and talked to Colleen O'Brien and, frankly, I believe her when she says she is a rule-of-law judge.  Third, as I have detailed here and here, at least some of Judge Markey's opinions don't square with her rule-of-law claims.  Fourth, as I describe below, the decisions I discussed previously are not the only ones that concern me.

In People v Dowdy, a 2010 decision, Markey joined with two Democrat-appointed judges to find that Randall Dowdy, who pleaded guilty in 1984 to kidnapping, five counts of first degree criminal sexual conduct, and possession of a firearm during the commission of a felony, was not required to register with local law enforcement under the Sex Offenders Registration Act (SORA), because he happened to be homeless.  SORA expressly states that its purpose is to "better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders" and to "provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those people who pose such a potential danger."   Nonetheless, Markey and her Democratic colleagues on the panel found that sex offenders who happen to be (or claim to be) homeless do not have to register with law enforcement because they do not have "the security of a customary place of lodging."

The Supreme Court reversed the Court of Appeals, in a 4-3 decision (Young, Markman, Kelly, and Zahra in the majority), holding that the Court of Appeals had erred by ignoring longstanding precedent (dating back to at least 1897) that, under Michigan law, every person has a "domicile." Moreover, apart from reporting a residence or domicile, SORA requires every sex offender to report to law enforcement in person four times per year, a requirement that "is unconditional and contains no exceptions or exclusions for homelessness."  The evidence in the case showed that Dowdy failed to report for four years, or 16 quarters.  This requirement was ignored by the Court of Appeals. 

In summary, the Supreme Court found that "the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature[.]" 

As we have seen, Judge Markey's record includes decisions utterly contrary to the rule of law, in which decisions she has greatly expanded civil liability beyond that intended by the Legislature, ignored clear and unambiguous statutory language in favor of her own feelings as to what constituted "fair play," and, in Dowdy, ignored the clearly expressed intent of a statute in a manner not only contrary to the law but potentially quite harmful to public safety.

The reader may think we don't know enough about Colleen O'Brien, but I suggest we know more than enough about the troubling judicial decisionmaking of Jane Markey.

"Rule of Law" Should Be More Than Just A Slogan

Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien. 

As I wrote in 2010, "Judge Markey stresses her experience on the Court of Appeals. This is obviously a positive quality, but it should not be overstressed to the neglect of the quality of the decisions."  Since then, I have still not had the opportunity to argue before Judge Markey, but I have attended meetings at which she has spoken, and she seems like a nice person.  She describes herself as a "rule of law" judge, and, in a recent email, she stated:

Judge Markey knows that a judge's role is to follow the plain text of our Constitutions and statutes. You can see that for yourself in almost two decades of decisions that demonstrate she is a consistent constitutional conservative. Only appellate court judges, and not state trial court judges, generate open, public, easily accessible, transparent records because their decisions are written and used statewide each day by attorneys and judges in all types of cases. Only Judge Markey has this crucial credential, i.e. proof she adheres to the Rule of Law.  (Emphasis in original). 

Sounds good, right?  Well, in the words of the immortal Lee Corso, not so fast, my friend.  In 2010, I wrote about Allen v Bloomfield Hills School District, which was anything but a "rule of law" decision.  And, unfortunately, since then, I have learned of more examples of Judge Markey's adventures in open field running, untethered by the law.

One of the risks of touting your record is that people might actually read it.

The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision.  In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it.  Smith was supposed to be excluded from coverage under the policy.  If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery.  If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.

There is a Michigan statute directly on point here, MCL 500.3009(2), which states:

If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person.  Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance:  Warning -- when a named excluded person operates a vehicle all liability coverage is void -- no one is insured.  Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.  (Emphasis added).

So, to exclude a person from coverage, (1) the person must be named as excluded and (2) the specified warning must appear on both (a) the face of the policy or declaration page or policy certificate, and (b) on the certificate of insurance.  In this case, Smith was named as an excluded person and the specified warning appeared on the declaration page, but the warning on the certificate of insurance was not identical to the specified warning -- the last word was "responsible" instead of "liable." 

Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists.  This was a 2-1 decision.  Both judges in the majority are of Republican heritage; Judge Markey dissented. 

The majority reasoned:

The Legislature did not merely set forth the substance of the required warning.  Instead, the statute mandates use of "the following notice," which notice is explicitly provided for insurers to use verbatim.  Further the Legislature did not merely state that this notice is required, without specifying the effect of noncomplicance.  If the required warning notice is not provided, the named person "exclusion shall not be valid."  The statute could not be clearer.

 Dissenting, Judge Markey began with words that will echo throughout her campaign, but are belied by numerous opinions she has authored:

I too strongly adhere to the philosophy that it is this Court's function to apply the law as plainly written.  It is not our job to modify, amend, or read into a statute something that is not there; such legislating from the bench is simply improper.  Legislating belongs to the Legislature.

These are laudable sentiments, but they would be more persuasive if Judge Markey did not then immediately violate the philosophy she professes to share.  Judge Markey stated that she would have found the insurance company complied with the statute and excluded coverage for Smith, and she did so under the banner of "common sense":

Must we as strict constructionists abandon "common sense" and render a decision not only remarkably hyper-technical legally but also profoundly unjust and jarring to what I will presume to say is the average person's sense of justice and fair play?  I think not.

It is thus apparent that Judge Markey will apply the rule of law except where she believes it is not consistent with "common sense" or "the average person's sense of justice and fair play."  Under this standard, there is no standard -- she is free to rule as she wishes, without regard to the law, as long as she can fit her ruling under the unlimited umbrella of "common sense" or "fair play." 

The case was appealed to the Michigan Supreme Court, but the application ultimately was denied.  Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:

The dissenting opinion of Judge Markey in the Court of Appeals, although professing an adherence to the philosophy of interpreting the law as plainly written, nevertheless ignored the statutory language[.]  (Emphasis in original).

The Chief Justice described Judge Markey's opinion as "a shocking departure from the rule of law," and noted:

All Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves.  In a constitutional republic, judges have no such authority, and the rule of law crumbles where a constitutional, validly enacted mandate can be ignored simply because it offends a judge's sensibilities -- even if on "rare occasion[s]."  (Emphasis in original).

As if that wasn't clear enough, the Chief Justice kept the pedal to the metal:

With all due respect to Judge Markey, our judicial oaths require judges to enforce the Legislature's policy choices, even when we may personally find the outcome in a given case "unjust," "inequitable," "jarring," "hyper-technical," or contrary to what we intuit an "average person's" sensibilities to be.  As this Court has stated, it is a mere "caricature" of judicial restraint for a judge "to assert that her common sense should be allowed to override the language of the statute."  (Emphasis in original; footnotes omitted).

It's pretty simple -- "rule of law" is a standard to be applied in judicial decision-making.  It embraces the notion that the people speak through the Legislature and that clear and unambiguous statutes -- like the one involved in the Smith case -- are to be enforced as written.

When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings.  This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.

In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior.  For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written.  In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us.  In other words, we can play the game because we know the rules. 

In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels.  At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play."  A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge."  She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision.  Her standard for decision-making is no standard at all.

More to come.

 





 

Crittendon's Island

Those of us steeped in 1960s culture have no problem recalling the most famous charter of all time -- the SS Minnow, hired for a three hour tour that lasted three seasons and 98 episodes. 

Now, we have another charter that has beached, this time in the city of Detroit with a spinoff in the Ingham County Circuit Court.  It's the Detroit City Charter, but this time, instead of the hapless Gilligan, we have Krystal Crittendon.  Like the original series, this comedy seems destined to be with us for awhile.

You know the story by now.  In a nutshell, the city and the state of Michigan signed a consent agreement in an 11th hour effort to avoid an emergency financial manager.  As its implementation neared, Crittendon, the city's chief lawyer, filed a lawsuit in the Ingham County Circuit Court, claiming that the agreement is unenforceable because the city Charter prohibits agreements between the city and any entity that owes the city money.  Crittendon alleges that, because the state owes the city money for past revenue sharing and other items, the agreement cannot be enforced.  In response, the state is threatening to withhold $80 million in revenue sharing, which will send the city spiraling into insolvency.

It's important to note that neither the city council nor the mayor authorized or directed Crittendon to file this lawsuit.  She filed on her own, claiming that the city Charter imposes on her not only the responsibility, but the obligation to do so.  This line -- that the Charter gives her not just the authority to file but makes her file -- has been repeated in the press, but is it true?

There are three provisions of the Charter that, theoretically, might support Crittendon's position.  Here they are:

Sec. 7.5-203. Civil Litigation.
The Corporation Counsel shall defend all actions or proceedings against the City. The Corporation Counsel shall prosecute all actions or proceedings to which the City is a party or in which the City has a legal interest, when directed to do so by the Mayor.

Sec. 7.5-204. Penal Matters.
The Corporation Counsel is the city prosecutor and shall:
1. Institute and conduct, on behalf of the people, all cases arising from the provisions of this Charter or city ordinances and, when authorized to do so by law, cases arising under state law.

Sec. 7.5-209. Enforcement of Charter. 
The Corporation Counsel shall be responsible for enforcing compliance with the Charter. Corporation Counsel shall document in writing any violation of the Charter by the executive or legislative branches, Office of City Clerk, elected official or other persons subject to compliance with the Charter. This written notice shall contain the nature of the violation, including the Charter section(s) violated, direct the necessary action to be taken to remedy the violation, and date by which the remedial action must be taken. The time for taking the required remedial action shall not exceed fourteen (14) calendar days. The notice of Charter violation shall be presented to the offending body or individual, with a copy provided to the Mayor, City Council and City Clerk. In the event the offending body or individual fails to remedy the Charter violation within the time frame and manner required in the written notice, Corporation Counsel shall take all reasonable actions to secure compliance, including, but not limited to, judicial action.

Crittendon cannot rely on section 203, since she is barred from "prosecut[ing] all actions or proceedings to which the City is a party or in which the City has a legal interest," unless she is "directed to do so by the Mayor."  The mayor has publicly stated his disapproval of the lawsuit, so I think it is safe to say he did not direct Crittendon to file it.

Section 204 appears to provide independent authorization for Crittendon to act on her own and to command her to act -- "The Corporation Counsel . . . shall institute and conduct. . ."  But section 204 expressly relates to "Penal Matters," meaning criminal violations of city ordinances or charter provisions.  Black's Law Dictionary defines "penal" as "punishable; inflicting a punishment; containing a penalty, or relating to a penalty."  An action seeking a judgment declaring whether a contract is enforceable is not "penal" and, therefore, not a proper subject for unilateral action by the city's counsel.

Section 209 comes the closest to justifying Crittendon's position, but it falls short because it is obviously written to permit the city's counsel to enforce charter compliance internally, within the city government.  It could be argued that, since the city council approved the consent agreement, allegedly in violation of the charter, Crittendon is doing nothing more than securing the council's compliance.  The case, however, is City of Detroit vs. Michigan Treasury Department.  If the case was really all about forcing council to comply, it would be captioned Corporation Counsel vs. City Council, or something similar.  Section 209 does not apply to external entities.

Even if an arguable case can be made for Crittendon's actions, how can she square her lawsuit with section 210:

Sec. 7.5-210. Claim Reduction.
Corporation Counsel shall advise City departments, agencies and entities on risk reduction strategies that are necessary to limit or eliminate the City’s exposure to liability.

By filing this lawsuit, not only has Crittendon not acted to "limit or eliminate the City's exposure to liability," she has increased exponentially the possibility of an even greater financial crisis than currently exists.

Gilligan had a good heart, but when he tried to help his fellow castaways, he often made things worse.  That seems to be the case here as well, on Crittendon's island.

On My Son's Graduation

My son graduates from high school today.  In this day of nearly mandatory college, it's easy to lose sight of the fact that a high school diploma is a significant achievement to be celebrated.  To mark this special day, I'm reposting an item from last November.  Much has happened since then, but the essence of the post remains true, now more than ever.

******************************************************

Dear Alex:

In the 10 months since I wrote your last retreat letter, much has changed, but the important things are still the same, and the best things have gotten better.

This past January, you were working hard to make the varsity baseball team. Since then, you have lettered in track and cross-country, become a cross-country co-captain, and gotten into the best shape of your life.

Ten months ago, you were starting to rehearse a play in which you had a good, but small role. Today, you are rehearsing for a play in which you have the lead, and getting ready to audition for a play in which you hope to be the lead.

In January, you were thinking (occasionally) about school and (rarely) your AP exams. Now, you are thinking about college and even pausing once in a while to reflect on possible careers.

It should be obvious that this is a time of transitions for you. While you still have unfinished business at De La Salle, you are right to look ahead and plan ahead, because that’s the only way you will move ahead.

This is an exciting time for you, Alex, and it will get better (although, at times, there will be some moments of anxiety). Enjoy this time, and keep doing the things you need to do to enhance your life experience – focus on your classes, the play, and getting ready for the next track season – but keep looking forward.

While change swirls about you, the important things have not changed. What I wrote in January remains true today: “You are a fantastic person. You have a wonderful heart and care deeply about your family and friends. I marvel at your relationship with Tori, and I love hearing you talk to your mother about the events of the day or the latest drama in your life. I never get tired of talking to you (as you know all too well), and I really never get tired of listening to you. You have a wisdom and insight beyond your years, and it is endlessly fascinating to me.”

And while so many good things have been constant, the best things have gotten better. You have a deeper faith and appreciation of what it means to be a Christian in our world. You have begun to understand the positive impact you can have on others if you utilize the gifts God has given you.

As you move forward, always remember Jeremiah 29:11:

"For I know the plans I have for you," declares the Lord, "plans to prosper you and not to harm you, plans to give you hope and a future."

Prosperity, hope, a future –these are the wonderful things that await you if you remain steadfast in your studies, your virtues, and your heart.

You and I have spoken many times of the need to build a strong foundation. You are nearing the time when that foundation will be most severely tested, when you go off to college and live, work, succeed or fail, on your own. I know the kind of man you are, and I see the kind of man you can become. It makes me smile to think of you reaching your potential.

The great American soldier, General Douglas MacArthur, prayed:

Build me a son, O Lord, who will be strong enough to know when he is weak, and brave enough to face himself when he is afraid, one who will be proud and unbending in honest defeat, and humble and gentle in victory.

Alex, you have these qualities and so much more. I do not like to think about next year, because when you leave for college, there will be an incredible emptiness in my home and in my heart. But as painful as that will be, it is the inescapable companion and irrefutable evidence of the extraordinary joy you bring me every day.

You, your sister, and your mother are gifts from God, Alex, and I love you with the depth and emotion that such gifts deserve. I love you without condition, wholeheartedly. You are my son and, along with Tori and your mother, you are my life.

Dad.

These Libertarians? They're a Joke.

Just returned to the Emerald City from day one of the State GOP Convention, during which each congressional district chose its national convention delegates.  In The Wiz's district, a total of six delegates were selected, of whom three have no business representing the party at the national convention.

During the presidential primary in February, our district voted for Mitt Romney.  So, our delegates have to commit to vote for Romney at least through the first ballot at the national convention.  In order to be considered for national delegate, each person had to sign an affidavit stating he or she would vote for Romney.

So, what's the problem?  Three of the delegates voted in by our district were selected by bloc votes cast by those committed to a former Libertarian now claiming to be a Republican, who puts one in mind of Professor Irwin Corey.  Not only were votes cast as a bloc, they were withheld from other candidates as a bloc, under orders from campaign organizers.

Here's how it works:  6 candidates were running for four spots, one of them being a "Corey" supporter.  The other "Coreybots" in the caucus all voted for the one Corey supporter only, and did not vote for any other candidate, thus reducing the votes the other candidates would have received and artificially inflating the relative votes of the favored Corey backer.

Now, let me make clear that I do not care how the vote came out, and I argued against naming a slate of candidates to exclude the Coreybots.

Here's what I find troubling and laughable at the same time:  these Coreybots think of themselves as libertarians.  Random House Dictionary defines "libertarian" as "a person who advocates liberty,  especially with regard to thought or conduct; a person who maintains the doctrine of free will."

These folks didn't exercise free will (unless you argue that it was an act of free will to give up their free will, in which case there are a few other descriptors that would apply) -- they voted in lockstep, following orders.  (And do they have to be so nasty about it?  Two of the elected ones called one of the other candidates a "witch.").

So listen up, bots -- don't give me any more of your claptrap about individual liberty and autonomy, until you start walking the walk. 

And by the way, we'll be watching you at the convention, to make sure you cast your vote for Romney.  If you don't, that affidavit you signed might be evidence in a perjury case.  Just sayin'.

Poor Don Verrilli, or, "Thank you, sir, may I have another?"

Donald Verrilli, Jr. is the Solicitor General of the United States.  He argues the federal government's position in the most important cases that reach the U.S. Supreme Court.

He's not having a good 2012.

After getting pounded by the court in the health care litigation arguments (see here and here), he had to turn around less than a month later and argue that Arizona's immigration law, SB 1070, had been preempted by federal immigraton law.  The case, Arizona v U.S., featured another legal beat-down and, unlike the health care cases, the liberal wing of the court didn't exactly leap to his defense.  To top it off, his Arizona opponent was the same person he had faced in the health care cases - the great Paul Clement.

Here's the background on the Arizona case. 

Arizona's Border Problems

Arizona has a 370-mile border with Mexico.  One-third of all immigration-related arrests take place in Arizona.  Between 2006 and 2010, 51 drug-smuggling tunnels were discovered in the border town of Nogales, Arizona.  Phoenix has experienced numerous home invasions and hundreds of reported kidnappings, all linked to the drug trade and human smuggling.  As far as 80 miles from the border and within 30 miles of Phoenix, the federal government has put up road signs warning the public:

Danger -- Public Warning -- Travel Not Recommended" -- "Active Drug and Human Smuggling Area" -- "Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed" 

Arizona spends hundreds of millions of dollars each year incarcerating criminal aliens and providing education and health care to aliens unlawfully present in the state. 

The list goes on and on.  You get the idea -- unlawful immigration is an enormous problem in Arizona.

SB 1070

To address the problem, Arizona passed SB 1070.  The Supreme Court argument focused primarily on sections 2, 3, and 5.

Section 2 says that for any lawful stop, detention, or arrest by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."  The law further provides that the person's "immigration status shall be verified with the Federal government[.]"

Section 3 provides for state enforcement of the federal laws requiring persons to carry alien registration documents.  This section expressly does not apply to persons authorized to be in the U.S.

Section 5 makes it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in [Arizona]."

So, if you get stopped or arrested in Arizona and the police have a reasonable suspicion that you are in the U.S. illegally, they have to verify your immigration status with the federal government.

The Court Challenge and Preemption.

The U.S. sued Arizona, and ultimately, the Ninth Circuit (of course!) held that the Arizona law was preempted by federal law and, therefore, invalid and unenforceable.

The doctrine of preemption is founded on the U.S. Constitution's Supremacy Clause, Article VI, Clause 2, which states:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Over the years, the cases interpreting the Supremacy Clause have described three types of preemption -- express preemption, field preemption, and implied preemption.  The first occurs when federal law expressly preempts state law; the second when federal law "occupies the field" to the exclusion of a state law.  Neither of these are applicable in this case.  Therefore, the question before the Supreme Court was whether federal law impliedly preempted state law.

Supreme Court decisions have made it clear that a law is not preempted unless there is clear evidence that Congress intended preemption.  A state law is not preempted merely because the executive branch claims the law is inconsistent with its enforcement priorities.

Verrilli at the Podium

In the Supreme Court, Paul Clement did his usual sterling job as attorney for Arizona, attacking the Ninth Circuit's decision and defending the Arizona law.

Then, it was Verrilli's turn.

Before Verrilli spoke even one complete sentence, the Chief Justice interrupted him:

Before you get into what the case is about, I'd like to clear up at the outset what it's not about.  No part of your argument has to do with racial or ethnic profiling, does it?  I saw none of that in your brief.

To which Verrilli responded, "That's correct."  But, a few moments later, Verrilli seemed to backtrack:

Now, we are not making an allegation of racial profiling.  Nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. . . . And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully -- 

JUSTICE SCALIA:  Sounds like racial profiling to me.

Later, Verrilli argued that "under the Constitution, it's the President and the Executive Branch that are responsible for the enforcement of Federal law[.]"  This argument proved to be a little too much for Chief Justice Roberts, who responded:

It is not an effort to enforce Federal law.  It is an effort to let you know about violations of Federal law.  Whether or not you enforce them is still entirely up to you. . . .Under 2(B), the person is already stopped for some other reason. . . . So that decision to stop the individual has nothing to do with immigration law at all.  All that has to do with immigration law is the -- whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you. It seems to me that the Federal Government just doesn't want to know who's here illegally or not.

Justice Alito joined in, focused on Verrilli's argument that the Arizona law interfered with federal immigration law enforcement priorities:

How can a State officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?

Verrilli responded:

[T]here's a difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.

In other words, Arizona police officers can contact the Federal government for immigration information voluntarily, but Arizona cannot tell them to do so.

At this point, even Justice Breyer was confused:

Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government.  And then it says that the Federal Government has -- any agency -- and then it says the Federal Government has an obligation to respond. . . .If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call? . . .Because in my mind, I'm not clear what your answer is to that.

Verrilli stumbled around for a few seconds until he heard the lilting voice of Justice Sotomayor.  Surely, this would be a lifeline, right?

Not exactly.

JUSTICE SOTOMAYOR:  Can I get to a different question? . . . Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?  Because I, frankly -- as the Chief has said to you, it's not that it's forcing you to change your enforcement priorities.  You don't have to take the person into custody.  So what's left of your argument?

That was a good question.  Apparently, what was left of Verrilli's argument was the notion that foreign policy requires the Court to invalidate the Arizona law.  Verrilli argued:

And so -- so you're going to have a situation of mass incarceration of people who are unlawfully present.  That is going to raise -- poses a very serious risk of raising significant foreign relations problems.  And those problems are real,  That is the problem of reciprocal treatment of United States citizens in other countries. 

JUSTICE KENNEDY:  So you're saying the government has a legitimate interest in not enforcing its laws?

Shortly thereafter, Justice Scalia took up this issue:

JUSTICE SCALIA:  Well, can't you avoid that particular foreign relations problem by simply deporting these people?  Look, free them from the jails. . . and send them back to the countries that are objecting. . . . What's the problem with that? 

GENERAL VERRILLI:  *  *  * Between 60 and 70 percent of the people that we remove every year, we remove to Mexico.  And in addition, we have to have the cooperation of the Mexicans.  And I think as the Court knows from other cases, the cooperation of the country to whom we are -- to which we are removing people who are unlawfully present is vital to be able to make removal work.  In addition, we have very significant issues on the border with Mexico.  And in fact, they're the very issues that Arizona's complaining about in that -- 

JUSTICE SCALIA:  So we have to -- we have to enforce our laws in a manner that will please Mexico.  Is that what you're saying? 

GENERAL VERRILLI:  No, Your Honor, but what it does -- no, Your Honor, I'm not saying that -- 

JUSTICE SCALIA:  It sounded like what you were saying. 

Mercifully, Verrilli's time ran out shortly after that exchange.  That brought Paul Clement back up for rebuttal, which gave him the opportunity to add the human touch to his brilliant constitutional analysis:

[L]ook at the declaration of Officer Brent Glidewell[.]  He pulled somebody over in a routine traffic stop and was shot by the individual.  Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal entry into the United States.  He was stopped on three previous occasions, and his status was not verified.  Now, if it had been, he certainly would have been apprehended.  In at least two of the stops, his immigration status wasn't checked because of a city policy, City of Phoenix. 

In the movie Animal House, Kevin Bacon is initiated into a fraternity by being ruthlessly paddled.  After each whack, he shows he can take it by saying, "Thank you, sir, may I have another?"

Don Verrilli can relate to Bacon's character.  The Obama administration hands him lousy case after lousy case, he goes up the Supreme Court and takes his lumps, then has to go back to his office and wait for the next loser.

Verrilli is an excellent lawyer (you don't get to be Solicitor General unless you 've got something on the ball) and the Court respects him.  It would be nice if his boss respected him enough not to keep sending him to the Supreme Court armed with the sort of arguments we've seen in the last couple months.