A Curious Choice for a Sunday New York Times Op-Ed

According to Republican pollster Whit Ayres in an op-ed piece, “It’s Still the Year of the Outsider,” published yesterday in the New York Times, it will be extremely difficult for Democrats to use their “failed policies of the George W. Bush administration” strategy against Republican Senate candidates who were nowhere near Washington during the Bush years.

So Mr. Ayres thinks that what matters is that it would be new lawmakers rather than the same old ones who would reinstate failed policies, not that the policies themselves failed.

He also thinks that because his recent poll shows that a majority of independents think that “[h]aving a president and Congress controlled by the Democrats has not worked well for the country because, from the economy to the deficit and the debt, the Democrats have not gotten the job done”—one of two options respondents were asked to choose from—they also think that having a president and Congress controlled by the Republicans worked well for the country because, from the economy to the deficit and the debt, the Republicans brought the country to its current state.

But he has to just guess about this, because his poll didn’t offer it as an option. Maybe next time.

Ross Douthat To the Rescue

If you can't base a gay-marriage ban in tradition or in a religious objection—because laws have to have a secular purpose—and you also can't ground it in the claim that children raised by same-sex couples are worse off, because the research shows just the opposite, than what rational-basis argument can you make? The Proposition 8 proponents are taking heat for their crappy trial record. But what evidence could they have put on instead?
—Emily Bazelon, in Slate

I was as dumbstruck by conservative New York Times columnist Ross Douthat’s piece in yesterdays’ Times as law professor and author Linda Hirshman makes clear in a Slate piece today that she is. But not only because Douthat uses pseudo anthropology to conclude that it is in society’s interest to promote heterosexual marriage. Or even Douthat’s concession that heterosexuals now have the culturally accepted options of serial monogamy and procreation outside of marriage.

Instead, what really knocked me over was his conclusion that precisely because heterosexuals in such large numbers now choose these options, and therefore threaten to vanquish—his word—the older marital ideal, and because the older marital ideal is still worth striving to preserve because it is the most likely to be a foundation for happiness, the government must preserve it as the ideal to strive for by denying the option of marriage to one, but only one, category of couples who cannot attain it: homosexuals.

The claim is a bald non sequitur. The ideal is still worth honoring, and still worth striving to preserve, he says. Therefore, preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit, he says. As if the latter concept logically follows the former. No need even to explain this. His next sentence: “But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.”

In other words, we should continue to deny homosexuals the right to marry because we want the government to encourage straights to strive for the ideal of a single decades-long marriage in which husband and wife remain faithful throughout, because this is the most likely to bring them and their children happiness.

All the evidence that is necessary for the higher federal courts to reverse Judge Vauhan Walker’s already-iconic opinion, which held that California’s Proposition 8 prohibition of gay marriage violates the Fourteenth Amendment’s due process and equal protection clauses precisely, is that heterosexuals are en masse undermining the older ideal of marriage.

No evidence upon which to overturn Walker’s opinion? Of course there is! And Ross Douthat provides it.

Makes sense if you’re Ross Douthat, I guess. But not if you’re not.

Elena Kagan v. Pat Lykos

“At the Citizens United [v. Federal Election Commission] argument last fall, Roberts openly criticized Kagan for abandoning one rationale for restricting corporate campaign spending and then pummeled her again in his concurring opinion in the case, dismissing the government's argument as ‘at odds with itself.’ In an April case, Kagan took the position that U.S. attorneys speak only for their regional offices, not for the attorney general of the United States ‘That's absolutely startling,’ Roberts replied. ‘The United States is a complicated place,’ Kagan retorted. ‘I take your word for it,’ Roberts snapped back. …

“Then Roberts took yet another whack at Kagan in his opinion in Holder v. Humanitarian Law Project, over a statute criminalizing the provision of ‘material support’ to terror groups. Roberts, while handing the victory to Kagan, repeatedly called out the government position for going ‘too far’ and running ‘headlong into a number of our precedents.’”
—Dahlia Lithwick, in Slate

The point of Lithwick’s article—its title and subtitle are “Roberts v. Kagan? Will there be friction between the chief justice and Elena Kagan on the Supreme Court?”—is that in most of the six cases before the Court this past term in which Kagan was lead counsel, apparently drafting the briefs largely herself, and then representing the federal government at oral argument—Roberts implied that he thought her handling of the respective case bordered on the incompetent.

Lithwick links to a more in-depth report and analysis of the exchanges by New York Times Supreme Court correspondent Adam Liptak published in the Times on April 14, before the close of the Court’s term. And in reviewing the instances that Liptak mentions, Roberts’ oral and written critiques of Kagan’s judgment calls strike me as suggesting that Kagan failed to recognize that the Office of Solicitor General is not some regional insurance-defense law firm or a regular local presence on behalf of state and municipal governments and their employees in run-of-the-mill lawsuits alleging violation of civil rights. Or, for that matter, a county prosecutor or state assistant attorney general.

All of whom always, always make arguments on behalf of their clients that are at odds with itself, or at least at odds with the argument they made successfully during the last round of motions and now find it expedient to pretend they had not. And who casually assert facts or positions of law that are every bit as transparently silly, or to borrow from Roberts, absolutely startling, as Kagan’s claim that U.S. attorneys speak only for their regional offices and not for the attorney general of the United States.

I loathe Roberts, whose personal hallmarks as a justice (and before that as a nominee) are, best as I can tell, trickery and duplicity. So it’s a pleasant surprise that he found Kagan’s no-position-is-beyond-the-pale style of advocacy intolerably amateurish for a United States Solicitor General. But Roberts was truly a top appellate litigator, who regularly argued against other truly top appellate litigators, usually on behalf of very important clients, making awfully significant arguments about major issues of law. So he apparently thinks that there is a level of situational importance at which the cheap gimmicks should not be employed. And key First Amendment cases before the Supreme Court are among them, and the Solicitor General is someone who should recognize that. Most past solicitor generals did, after all.

So Roberts is right, but he does not go nearly far enough. It is by now deeply institutionalized throughout this country that attorneys who represent the government, and therefore, ostensibly, “the people,” use the same type of obstructionist, dilatory and even flagrantly dishonest tactics and gimmicks as attorneys representing private parties. Even—perhaps especially—in the service of preserving criminal convictions in the face of hard evidence that the conviction was wrongful, sometimes obtained in honest error, other times obtained through police or prosecutorial misconduct.

Which brings me to Pat Lykos, the current Harris County, TX district attorney, who upon being sworn in established a Post Conviction Review Section whose purpose is to actually investigate cases of possible wrongful convictions. An article published last week in the Houston Chronicle is about the release, after 27 years’ imprisonment, of a man convicted of rape upon the sole basis of the victim’s ostensible identification of him.

But actually the ones who identified him—Michael Green is his name—were the police officers who arrested him on the night of the rape; he was walking in the area, the officers detained him, and when the victim did not initially identify him in a lineup, she was shown suggestive photos to ensure that in a second lineup, she did. According to the article, the attorneys and investigators in the newly-created Post Conviction Review Section who were assigned to the case found “a pair of jeans stored in a warehouse that had been worn by the victim during the crime, then testing it for DNA evidence. The results excluded Green.”

Three men committed the rape. The article says Lykos’ office “has identified all four men suspected in the crime, including the three believed to have sexually assaulted the victim.” But the statute of limitations prevents their prosecution.

The article quotes from comments by Lykos’ first assistant, a man named Jim Leitner, in a news release about Green’s release: “The evidence in this case had been sitting in the District Clerk's Office for 27 years, and no one had taken the initiative to do anything with it in the past. The difference now is that you've got the Post Conviction Review Section looking into it - and that made all the difference in the case of Mr. Green.”

The Chronicle writer characterized Leitner’s statement as a “slam [against] prior district attorney administrations for the length of time the case stalled.”

The article mentions that another prisoner, someone named Allen Porter, was released from prison a few days before Green’s release. He had been imprisoned for 19 years. Lykos’ office had uncovered evidence of his innocence, too.

John Roberts is hardly a probable crusader against the modern, but by now deeply-rooted, culture among government lawyers in which they role-play as mechanically and mindlessly as, say, a lawyer representing a mob figure, or one representing BP. And in recent decades, unabashed sleaze is as much the purview of big-name law practice as it is some of the old-style ambulance chasers; Roberts surely knows that.

But unless his distain for the phenomenon of government lawyers as over-the-top-and-under-the-sewer-line litigators is limited to those who by dint of their very high office cannot hide under the radar, or whose opponents or victims just don’t matter to him, he may, however improbably, prompt a major change in the very nature of government law practice. And of what it means to represent “the people.”

As for Kagan, well, who knows? Liptak’s article is titled “Stints in Court May Yield Clues to Style.” Hopefully, those stints aren’t clues to her substance as a justice, as well.