The Inquiring Manatee

Putting Breitbart in His Place: Legally Liable for Defamation

   So I see where Shirley Sherrod, the USDA official ousted from her Georgia position thanks to a misleadingly edited video posted by Big Government.com blogger Andrew Breitbart and trumpeted by Fox News, is thinking of suing Breitbart for defamation.

  Unfortunately, under the Supreme Court's 1964 New York Times v. Sullivan defamation decision, Breitbart might well win the lawsuit because Shirley Sherrod as a USDA official addressing the NAACP on a public issue easily could be deemed a "public figure." As such, she cannot recover damages for slander without proof that Andrew Breitbart published the tendentiously edited video with knowledge of its falsity or with "actual malice" -- publication with reckless disregard of whether it was false or not.  

   Still, as a lawyer myself, I'd love to take the case because (1) the unprincipled Breitbart has some comeuppance coming, just as his obnoxious little ACORN  protege got his in Mary Landrieu's Louisiana office, (2) it could easily be argued that Breitbart published with actual knowledge of falsity, promoting the purposely false impression that Sherrod was a racist who was denying government services to white farmers, in reckless disregard for the effect of his misleading actions upon her career.   

    Breitbart's lawyers might be forced to fall back upon a final line of defense: No real damages suffered by plaintiff Sherrod. She got publicly and humiliatingly canned, but everyone involved -- from President Obama to Tom Vilsack to the NAACP -- has just as publicly apologized. Her reputation has been entirely vindicated. She's been offered a government job back, and if she takes it, where are the real damages?

The Supreme Court, Corporations and Us

As if Bush v. Gore were not enough, the United States Supreme Court revealed again last week that its five-justice conservative majority has turned that constitutional body into a wholly owned subsidiary of the Republican Party. It's the Fox News Channel in black robes. The court's 5-4 decision in the Citizens United Case overturned 103 years of practice and precedent, allowing corporations to buy ads touting candidates in federal elections (not that they're likely to do so openly, risking alienating half their customers; instead, they'll give from their corporate treasuries to front groups).

    Ostensibly the decision was a victory for free speech under the First Amendment -- but whose speech? The Court displayed a reverence for corporations as if they are people. The Court saw them as "associations of citizens." In fact, a corporation is a legal fiction, chartered by American states. The justices might as well have given robots full First Amendment rights.

    When a corporation influences a political campaign, as many now will do with bucketloads of money, it's not the mass of shareholders speaking. It's the powerful and outrageously overcompensated management, either effectively uncontrolled by shareholders or doing the bidding of a dominant shareholder such as News Corporation's Rupert Murdoch. (It's no accident that Murdoch's Fox News brainwashes viewers into supporting policies that allow Murdoch and his friends to make as much money as possible with as little government regulation as possible.)

    And what happens to American politics and government -- indeed, to our national security and independence -- when the government of China or Russia gains control of an American corporation? "Association of citizens," indeed. Citizens of where?

    The Citizens United case is a landmark victory for giant corporations that already dominate America's economy and its social and civic culture. Oriented naturally to Republicans who say government should play little or no role in regulating business, corporations can now do even more to enshrine their pet philosophy in law and policy and preserve themselves from government oversight. As things were, government had fallen down on the regulatory job in letting the private financial sector plunge the nation and the world into this recession. Now government will be even weaker structurally or through lax enforcement of existing laws, as under George W. Bush. Count on it.

    Karl Rove envisioned with W's Supreme Court-bestowed "win" in 2000 at least 30 resulting years of GOP triumph, akin to the era of Mark Hanna and Bill McKinley. The Republicans blew it, losing congressional majorities in 2006 and 2008 and the White House in 2008. The Supreme Court has restored Rove's vision. The nation is bound to be under Republican rule for the foreseeable future.

    Democrats can do two things to try to mitigate this disaster. They could resolve to tap their adherents for enough money to overcome the Republican advantage, though achieving this is unlikely. And the Democratic (for now) Congress could mandate immediate and meaningful disclosure of corporate contributions, piercing the veil of "independent" groups (such as the U.S. Chamber of Commerce) to link the candidate who is the end beneficiary of groups' expenditures with the corporate giver.

   Lots of luck on this point, as well. As soon as the Republicans take back Congress and the White House-- now likely as early as November 2012 -- they could repeal any such transparency laws. 

    What a gift the Supreme Court has given the GOP -- a gift that will keep on giving for decades.

Paranoia and Loathing in Las Vegas

      Johnny Lee Wicks, 66, was an extremely screwed-up African-American retiree. Whether before or after he suffered a stroke, moved from California to lower-cost Nevada and had his monthly Social Security benefits reduced by $317 a month under the law, he blamed all his troubles on racism -- as hotheaded Harvard Prof. Henry Louis Gates Jr. did when a police officer had the nerve to investigate a report of a break-in at his house.

    Wicks would have been just another harmless paranoiac without his gloriously all-American access to a shotgun. Exercising his Second Amendment "rights," Wicks shot up the Las Vegas federal courthouse where his ridiculous, illiterate complaint alleging that Social Security had acted solely because he was black had been tossed out by judges. He killed a security guard and wounded another guard. Other guards chased Wicks across the street and killed him. He died in the bushes of an old school building.
   Violent events like this happen almost daily in gun-loving America. What drew my attention to this one was its setting. Years ago I had some sordid personal dealings with a federal official who probably works now in that downtown courthouse. When I read first reports of the gunfire I wondered whether that official had been hurt -- not that I would have wanted it, despite the unpleasantness of our old relationship (the unprincipled guy wrecked my first marriage). Luckily for this official, the brave guards protected his unworthy butt. He and all of us owe the guards our thanks for their courage in potentially facing inglourious basterds like Wicks every day.
    My only caveat here is that the slain guard was 72 and perhaps couldn't react quickly enough with his handgun to the sight of Wicks opening an overcoat and displaying the shotgun; maybe there should be a cutoff age for guards, or tests of Wild West gun-toting agility.
    What are the other lessons? Too many guns out there, too readily available to the crazily violent. Too much insanity among people who blame racism for their problems, when most of their problems probably were caused by failing to study in school. 

    Another great start to 2010.

Sotomayor Vote: A Great Day for Americans

          

Within a couple of hours, the U.S. Senate undoubtedly will have voted to confirm Judge Sonia Sotomayor of the 2nd Circuit U.S. Court of Appeals to the Supreme Court.
     Despite her ill-advised and easily mischaracterized "wise Latina" quotes, Judge Sotomayor is extremely well-qualified for the Court. Her 17-year record on the bench was difficult for ideological opponents to attack, even though her opinions have been more workmanlike than truly intellectually distinguished in the vein of Learned Hand or Benjamin Cardozo, great predecessors on the New York City-based 2nd Circuit appeals court.
      More than a deserved personal triumph, the confirmation is a win for President Barack Obama and, even more importantly, a signal to women, to all American minorities and, yes, to disaffected and angry white males that change truly has come to this country. Any meritorious person of any minority can now work and hope for any public honor and office, including the presidency.
      Today, the first Hispanic on the high court. Tomorrow, if not Sotomayor than somebody else, the first Hispanic president. The first woman president. The first gay president. The first Asian-American president. The first Native American president.
       The promise of America is being realized before our eyes and the eyes of history. Let us celebrate. And let us hope that in her new robes, Associate Justice Sonia Sotomayor rules as a wise Latina -- and always, as well, as a wise American.
   
    Martin Kasindorf is a graduate of the Harvard Law School and a member of the California legal bar on inactive status.

Sotomayor Hearings: The Court is Now in Sessions

    

     WILMINGTON, Vermont -- It is unfortunate that, in Sen. Jeff Sessions, R-Alabama., Republicans on the Senate Judiciary Committee do not have a ranking member matching the stature and intellect of committee chairman Patrick Leahy, Democrat of Vermont.
     TV viewers of this week's Sonia Sotomayor confirmation hearings are getting a lurid peek at Sessions and seeing him for what he is: a crabbed, right-wing Snopes who embodies what is wrong with today's rump, Southern-based Republican Party.
      I first saw Sessions during the 1992 presidential campaign when I was traveling with President George H. W. Bush's re-election campaign. He was making a speech -- in Birmingham, I think it was -- and I was impressed only with his ambition.
      Sessions lacks grace. He has that mean little Faulkner Yoknapatawpha County mouth, with an accompanying world outlook.
      In lecturing Sotomayor constantly this week about the need for judges (he used to be one) to hew strictly to existing law, not letting their life experiences influence their decisions, Sessions typifies the desperate fear of conservatives that judges will carve out new rights for the poor and powerless, upsetting the status quo.
      One of the many factors Sessions forgets or ignores is that the Supreme Court of the United States frequently is called upon to act in unsettled, gray areas of the law. It is at those times that the mettle and reasoning of a justice are tested. In situations without clear precedent, it is of course prudent to rule as narrowly as possible, shying from finding and grappling with cosmic constitutional questions that may not be fairly and maturely presented.
      Even in narrow rulings, however, abstract reasoning alone may not yield a satisfactory answer in the case at hand. It is then that a lifetime of broad experience that has produced, yes, the empathy of a wise Latina -- or a wise white male, or a wise black woman -- should be called into play to help produce a result that directs the law toward equity.
       Sadly, such a concept of well-rounded jurisprudence is anathema to the rigid Sessions. He is trying to nail Sotomayor into his own Procrustean bed of dead-brained, passive judicial decisionmaking. Let the world watch, and see an illustration of the kind of thinking that in apartheid South Africa was called verkrampte -- cramped, as opposed to verligte, enlightened.

Bush v. Gore Rivals Team Up Against Proposition 8

      I never thought I'd see Ted Olson and David Boies, who opposed each other in arguing Bush v. Gore to the U.S. Supreme Court in those tense Florida-recount weeks of 2000, join legal forces.

      The conservative, Republican Olson and the liberal Boies -- two of the finest appeals lawyers in America -- went at it tooth and nail on behalf of their parties' competing presidential candidates. I was observing them from Tallahassee, where I spent five post-election weeks covering the high-quality legal maneuvering in the state courts of Florida for USA TODAY.

       Boies had a hard time of it before the nine U.S. Supreme Court justices. He was brought in after my old Harvard Law School friend and classmate, Laurence Tribe, had lost a first round before the court. Neither Tribe nor Boies ever had a chance. Clearly, the partisan and ideological fix was in. As the ultimate Bush v. Gore 5-4 opinion showed, there was no way the Republican majority was going to let Al Gore get his recount continued. The various opinions adding up to a bare majority were all over the lot. In its poorly reasoned, result-oriented writings, the majority opinion reflects a low in Supreme Court jurisprudence that hadn't been seen since Dred Scott v. Sandford in 1857.

       Before Boies went north from Florida to argue in Washington, I met him outside the Florida Supreme Court and elsewhere in Tallahassee. He was extremely impressive -- one of the busiest people in the U.S. at that time, but still always taking the time to answer news media inquiries and explain his legal strategy. I was floored by his combination of intellect and sheer niceness. 

       Also outside the state Supreme Court, I met Olson at a time before he became officially involved in the case. Introducing myself to him and to his wife, Barbara Olson, I noted that I formerly worked for his law firm, Gibson, Dunn & Crutcher, as an associate attorney in Los Angeles and New York. Olson was distant, less outgoing than Boies but pleasant enough.

       Ten months later, on Sept. 11, 2001, Barbara Olson was killed when the al-Qaeda skyjackers slammed American Airlines Flight 175, on which she was a passenger riding from Dulles Airport to Los Angeles, into the Pentagon. I was saddened. 

 

       The Boies-Olson agreement to work together against the mean-spirited Proposition 8 shows once again that lawyers can be professional adversaries one day but can be personally friendly and can work together on another case the next day. The best lawyers learn to not take their courthouse animus home. 

       I don't think that the federal lawsuit that Boies and Olson filed in San Francisco U.S. District Court has much of a chance, certainly not if it ever gets to the Roberts-Alito-Scalia Supreme Court. But it's heartening that both lawyers, especially Olson with all he has to lose in goodwill within the conservative camp, are on the same side in perceiving the deep injustice of a majority voting to strip a minority of the fundamental civil right of marriage. They are not likely to prevail, but you can count on them to make the most cogent arguments possible.  As a lawyer, I'm proud of them. For Ted Olson, after all he's done for the right-wing Federalist Society, the Prop 8 case may prove to be his finest hour in the law.

      

Looks Good for Judge Sotomayor

   

It ain't Pin Point, Ga., but the tough and teeming South Bronx makes an inspiring setting for the rags-to-riches tale of an underprivileged minority kid fated to become an associate justice of the United States Supreme Court.
     Clarence Thomas was a poor black child in Georgia. Sonia Sotomayor, President Barack Obama's choice to succeed the estimable David Souter on the high court, has an equally inspiring personal story. Her Puerto Rico-born father died when she was 9. Her mother worked two jobs to provide for Sonia and her brother Juan. Sonia was diagnosed with juvenile diabetes.
     She overcame her many obstacles to graduate summa cum laude from Princeton, to edit the Yale Law Review and to go on to a sterling career as a prosecutor, federal district judge and judge on the Second Circuit U.S. Court of Appeals in New York.
     A few right-wing voices may carp, but there is little doubt that Sotomayor will be confirmed as the first Hispanic justice on the Supreme Court. (Oh, there are some who say that the great Benjamin Cardozo, who was of distant Portuguese-Spanish Jewish, or Sephardic, ancestry, would count as a Hispanic, but not by modern reasoning and common sense.)
     Obama, showing himself every day to be essentially a centrist and far from a liberal (but that's OK with me), has followed the Bill Clinton route of choosing a court nominee who will not rouse a bitter confirmation battle with the far right -- even though, in this case, Obama probably could have gotten away with someone quite a bit more liberal than Sotomayor. The right may still be loud and mouthy, but its clout in the Senate is far diminished.
      The slavering dogs will bark to raise money for their interest groups, but the Sotomayor caravan will pass on. And that's a good thing for America, its system of justice and its ability to show the world once more that a scholarly and ambitious person of color can achieve any dream.
    

A Modest Proposal on Guantanamo

    

As Republicans run wild on the issue of closing the Guantanamo Bay military prison and moving the 240 inmates to facilities on U.S. soil, even Senate Democrats can't be blamed for shying from President Obama's plan to remove this symbol of Bush administration high-handedness and torture.
      The NIMBY fears so easily stirred up by the entirely emotional issue, even though the detainees would be secured in Supermax federal lockups from which no one has ever escaped, have potentially vulnerable politicians running scared of a future opponent's simplistic 30-second commercials.
      But before Congress prevents the administration from moving anyone to the U.S. mainland from Guantanamo -- thereby making it virtually impossible to convince any other country to accept a detainee -- policymakers should consider an alternative that could be a win-win choice for everybody, except perhaps for the terror suspects.
      Want to gratify the rest of the world and frustrate jihadist propagandists by closing Guantanamo? Fine, go right ahead. Want to keep any Guantanamo prisoner out of any U.S. states? You can do that, too.
      The strategy: Relocate the prisoners to a high-security facility that would be newly built and opened in Guam, American Samoa or -- just a short flight from Guantanamo -- the U.S. Virgin Islands. (Quiet St. Croix, somewhat off the tourist track, has the most land. Just don't put the Muslims in Christiansted, the island's chief city.)
      All these potential prison sites have these advantages:
      -- They're on U.S. soil, so Obama won't have to back down on that point.
      -- Residents there have no votes in Congress, only nonvoting delegates.
      -- Building and operating the new prison would create local jobs, a prospect that could mute opposition from NIMPT (Not in My Palm Tree) forces. Some of those giant Samoans would make great prison guards after their careers as NFL linemen end.
      -- The locations are in tropical settings that beat the bleakness of tropical but barren and ugly Guantanamo. How could jihadists or European moralists object to housing prisoners in the balmy South Pacific, the North Pacific paradise of Guam or especially the lovely Virgin Islands? (There, the alleged terrorists would be getting a symbolic downpayment on the 78 virgins, or whatever the number is, that jihadi "martyrs" are promised in heaven.) Or the inmates could learn the Argentine tago in Pago Pago.* 
      The president's executive order to close Guantanamo by the end of 2010 would not be blocked. The detainees, whether tried by Obama's tweaked military commissions or detained Cheney-style without charges, at least would have more pleasant quarters under the American flag.
       So how about it, Mr. President and members of Congress? Try the American Territorial Solution to the Guantanamo dilemma.
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* That's a rhyme. Pago Pago, capital of American Samoa, is pronounced "Pango Pango."      
      

Welcoming Gay Marriage in Maine

                

When my wife Irma and I travel to our Vermont summer home this year, we will feel even more at home in New England than we always do.
     Following the example of Vermont's progressive legislature, the legislature of Maine on Wednesday enacted a law allowing gay marriage. Gov. John Baldacci signed the bill. Now, just about all of New England, including Massachusetts and Connecticut, provides for same-sex marriage. Rhode Island probably will not be far behind. And in the Midwestern heartland, there is Iowa.
     My wife and I support same-sex marriage. Everybody of any sexual orientation has the right to pursue happiness. The federal and state constitutions guarantee equal protection of the laws.
     We vigorously opposed Proposition 8, California's ill-considered move last November to abolish the briefly court-sanctioned gay marriage. The marriage of one of my cousins -- a happy event -- is now in legal limbo as the California Supreme Court weighs a constitutional challenge to Prop 8 and also must decide the validity of marriages contracted before Prop 8 lowered the boom.
      As California becomes a surprisingly unpleasant place for human rights advocates, we retreat in relief to enlightened New England.
      Thank you, Vermont. Thank you, Maine, Connecticut and Massachusetts.

The David Souter I Knew (But Didn't)

    

David Souter would sit quietly in a far corner of the classes we took together at Harvard Law School. He seldom asked questions or volunteered information. He wasn't what anyone would call a leader of the Class of 1966, which included only 25 women among the 515 students. Few would have picked him as the one member of the class to make it to the Supreme Court of the United States.
     I would have picked Laurence Tribe -- Larry, my old study-group mate -- who was blindingly brilliant, speedily became a law professor at Harvard and went on to a sterling career as an appeals advocate before the Supreme Court, even arguing one of the Bush v. Gore cases. But Tribe was long considered too liberal to get past a Republican filibuster in the Senate. Now that the Democrats have much more Senate power and Tribe could be confirmed, it's probably too late for anybody in his 60s, as Tribe is, to be nominated by President Barack Obama.
     As for Souter, when called upon by a professor he always exhibited an intelligence and depth that were the equal of anyone at the school. He wasn't well-known, but he was respected.
     Souter, we knew, was going to return to his native New Hampshire and start a legal career. Years later, we learned how he had reached the Supreme Court. As state attorney general and then as a state judge, he attracted the political patronage of the powerful Republican governor, John Sununu. When Sununu became President George H. W. Bush's White House chief of staff, he boomed Souter for the federal bench, first spearheading a seat for him on the First Circuit U.S. Court of Appeals, then a nomination for the Supreme Court.
     The rest is history. Everybody knows how disappointed Sununu and other conservatives were in Souter after he took the high bench in 1990 and proceeded to support Roe v. Wade in 1992, making a mark for himself as a moderate liberal and a mainstay of the court's perennial 4-justice minority.
     The disappointment led Bush in 1991 to vow never to make the same mistake again when another vacancy opened up. He cynically appointed the deeply conservative and marginally qualified Clarence Thomas, daring Democrats to oppose an African-American. Thomas proved to be everything conservatives could wish for -- a bitter, silent acolyte of the much more articulate Antonin Scalia.
     Souter's questions to lawyers arguing before the court were always thoughtful and cogent. Thomas almost never asks anything at all.
      President Obama's first criterion for replacing Souter, I think, should be to find someone who is at least verbal, unlike Thomas. We should expect nothing less from a Supreme Court associate justice. Beyond that, I'd be satisfied with another moderate liberal like Souter. There are those on the left who insist that Obama should find a "liberal Scalia," every bit as far-out on one wing as Scalia is on the other. I don't expect Obama to pick someone like that, even if such a person could be found. It's a bit too early to be cocky about a supposed filibuster-proof Democratic majority in the Senate. And a moderate liberal would have a much easier time getting confirmed.
      As the speculating goes on, David Souter gets ready to return to his beloved New Hampshire. He'll leave Washington in great relief. He tells friends he's had "the best job in the worst city." Having worked there for six years myself as a White House correspondent, I can see his point in some respects. The city is humid and sweaty in spring and summer, icy in winter (though balmy compared to New England). If the bachelor Souter sought female companionship, Washington was a bad place to find it. In my experience, the women there are all-out careerists with romance far from their minds. But Souter is a runner, and the running isn't bad at all in D.C.
      David Souter has earned the thanks of a grateful nation as he retires with a full pension and goes home to Weare, N.H. I hope he finds everything he's seeking.