"Should Elderly Politicians Make Like the Pope and Quit?"

Asks David Weigel.

Pope Benedict is three years younger than Sen. Frank Lautenberg, who's puttering around condemning the very idea of Cory Booker running against him....

[C]overage of Lautenberg... high-fives him for his vigor. A recent Philadelphia Inquirer story pointed out that the senator had returned from "a cold that became the flu" and was "wielding a cane -- which he insisted he didn't really need," but otherwise focused on his "feistiness."

Weigel mixes 2 topics: the individual's decision to continue despite age and infirmity and the way the media (and the rest of us) "play along." Nothing about what the Pope is doing changes the playing along part of it. We've come to believe that age discrimination is wrong, and we've allowed that to mean too much.

Age discrimination isn't like race discrimination! Age takes a toll on people and it matters and affects their performance. A specific individual may be doing relatively well for his age, and we ought to see him as an individual, but age matters. Statutory law prohibiting age discrimination tells us not to take age into account in some situations, but that doesn't include electoral politics. Feel free to boldly assail Lautenberg for clinging to his Senate seat. (And feel free to criticize judges who seem to be hanging on too long, especially Supreme Court Justices.)

Is the Pope any help here? He waited until he was 85 to step down. And he began the onerous work when he was nearly 80. The previous Pope — immensely admired — made a point of sticking with the job through a long, painful decline. I think both of these Popes encourage people to keep going and not to cede the work to the less old.

Congressman Cotton was excellent on drones and Benghazi on "Fox News Sunday."

(Transcript. Video.) I had never heard of the guy, but he impressed the hell out of me, in part because the host Chris Wallace, introduced Cotton — a Republican from Arkansas — this way:

Congressman Cotton, for people who don't know you, you are kind of an interesting figure. You went to Harvard, you went to Harvard Law School, and then you spent five years on active duty, on the front lines, in Iraq and Afghanistan, so you have got a lot of credibility on this issue on both sides of the equation.

I'm not a complete pushover for credentials, but this made me want to pay attention when Wallace invited him to respond to Senator Dianne Feinstein's idea that we need, as Wallace put it, "a secret drone court, where the president would have to go to get approval before putting terror suspects on his kill list.... How do you feel about this idea? Before the president could target someone for assassination, especially an American citizen, he'd have to go get approval from a judge?"

COTTON: We don't need federal judges involved in sensitive and urgent national security matters, and it would be an unconstitutional infringement on the president's rights to keep America safe. So, if you take up arms against America and you fight in a terrorist training camp or on the front lines in Pakistan or Afghanistan or Yemen, you shouldn't be surprised if America reaches out and exacts justice against you.

A while later, there was a discussion of Leon Panetta's testimony about Benghazi. Co-panelist Bill Kristol went first and laid out the criticism of Obama pithily:

KRISTOL: I think it is genuinely shocking. The president -- Leon Panetta walked out of the Oval Office at 5:30 that night, after a previously scheduled meeting. The president never called -- he knew -- he briefed the president on what was happening in Benghazi and that the American ambassador was missing, and it was clear there could well be sustained and ongoing attacks, and the president never spoke to the secretary of defense or the chairman of the Joint Chiefs of Staff the rest of that night, and, interestingly, Secretary Panetta said he never spoke to the White House later this night. So it's not as if he spoke to the national security adviser, Tom Donilon, or the chief of staff, Jack Lew, and said, and conveyed a message to or from the president.

So basically, the president seems to have checked out. He spent an hour that evening on the phone with the Israeli prime minister, Bibi Netanyahu, because there has been that flap about Israel at the Democratic Convention the week before, and I think he wanted for political reasons to show that he was in touch with the Israelis. They did a readout of that call, the National Security Council spokesman did. So they're busy talking to the Israeli prime minister, doing the readout of the call for the press, and he is not talking to Panetta and, insofar as we -- and Donilon, apparently, is not talking to Panetta. And it is really, I think, a dereliction of duty on the part of the president and his senior staff, and I think they should be asked about it. I think Tom Donilon, the national security adviser, and Jack Lew, the White House chief of staff, should -- the president did not talk to anyone. Did they even talk to the secretary of defense, or did they just say, do what you can and then totally checked out for that evening, and then the next morning the president goes off to Las Vegas for a fund-raiser?

Cotton followed on, bringing in his military expertise:

COTTON: It is not just shocking, I would say it is outrageous as well, and it shows he has lack of preparation to be the commander in chief and lead troops when they are in combat. You know, you mentioned I was in the Army. At Fort Benning, where I spent a year, you learn the eight-step troop leading procedures. Step eight, the final step, is not issue an order. Step seven is issue the order. Step eight, which is the most important step, is supervise. He said in September that I issued a directive to take whatever steps are necessary to protect our troops and our assets. And then as Bill said, he never again followed up, he never asked, is my directive being executed? That is the essence of leadership, and this is a complete failure of leadership.

WALLACE: What about the argument, Congressman, and I don't know, and Bill raises a legitimate question, maybe he was doing this through his national security adviser.

COTTON: What General Dempsey and Secretary Panetta said, indicates there was no further contact from the White House, and the president showed no curiosity at all. He had a conversation with Prime Minister Netanyahu that was in the middle of [the] political season when he was receiving criticism for not being engaged with the prime minister, and then probably preparing to fly off to Las Vegas the next day for a fundraiser.

When you have troops in contact -- when I was in Afghanistan, we had troops in contact. I was right next to the radio, monitoring that at all times. When the president has troops in contact in an embassy that he knows is insecure, that has to be the very first priority.

Cotton also got my attention earlier in the show when Wallace asked whether the decision to have Marco Rubio deliver the GOP response to the SOTU makes him "the new face of the Republican Party on Capitol Hill."

COTTON: I wouldn't say that decision makes him. I think he has been an emerging leader on Capitol Hill for Republicans, and across the country for two years now. He's a generation of new leaders, not just Marco, but Paul Ryan and Scott Walker and so forth, who are emerging and who I think are going to be the leaders of our party going forward.

So, wanting to portray Rubio as not The One but part of "a generation of new leaders" and needing to name some names, Cotton comes up with Paul Ryan — the erstwhile VP nominee — and — of all the others — Scott Walker. I read that out loud and Meade deemed it time to play the Governor Walker anthem one more time:

Chief Justice Roberts informs Congress that the federal judiciary is scraping by on a mere $7 billion a year.

$7 billion! Why, if that were one person's entire fortune, he'd only be #50 on the Forbes list of richest Americans. He'd only just butt ahead of Charles Butt.

The Chief stressed the bargain we the people are getting:

“Yes,” he went on, “for each citizen’s tax dollar, only two-tenths of one penny goes toward funding the entire third branch of government!”

In the report, Chief Justice Roberts said the judiciary was doing what it could to cut costs in rent, salaries and computer services...

The federal courts went to great lengths last year in trying circumstances, notably after Hurricane Sandy. “As just one example,” he said, “the United States District Court for the Southern District of New York conducted emergency hearings in Lower Manhattan the day after the storm hit, working in a building without heat or hot water that was only sparsely lit by gas-fueled emergency generators.” Though Chief Justice Roberts did not say so, the Supreme Court also showed fortitude the day the storm hit, hearing arguments when the rest of official Washington was closed.

I could think of quite a few ways to economize on the federal courts — things Congress could do. The courts are forced to handle the cases that fall within their jurisdiction, but Congress could target litigation-generating laws for repeal.

ADDED: Another way to increase that "two-tenths of one penny" proportion would be to reduce spending on things that are not the judiciary.

Justice Stevens rejects the idea that legal expertise is the reason why judges have the last word on the meaning of the Constitution.

The retired Justice is reviewing Sanford Levinson's new book "Framed: America’s Fifty-One Constitutions and the Crisis of Governance."  Levinson has offered 3 different reasons why judges have this role in our system of separated powers:

[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

"Years ago, I knew two kids. One was a tall and wispy twerp whose arrogance exceeded his stratospheric brilliance."

"The other was a squat punk whose beautiful mind spewed quips like switchblades."

By three orders of magnitude, these two were far smarter than the rest of us.

It was on the playground where they struggled. The twerp found that being haughty prompted a vigorous ass kicking. The punk learned that being mouthy got you pantsed in front of the girls. But, over time, the playground changed them. Each kid started to act normally. With that, the rest of us came to respect and even appreciate them. More importantly, their socialization prompted us to consider what they had to say.

Maybe I’m wrong, but perhaps Posner and Scalia (and their snarly stand-ins) should visit a playground.

The writer of that snark is himself a federal judge, I note — with a nudge to a colleague of mine who was chastising me for analyzing the psychology of judges. (How do I know their motives? I don't. I speculate!)

But I'm fascinated to see a judge opine that other judges are guys who failed to get enough bullying when they were kids! Who's exercising the momentous power to say what they law is and inflict their opinion on the rest of us? Abnormal people who could've used a good ass-kicking... a good pantsing in front of the girls.

Brian Lamb asks Justice Scalia why he's "so sensitive."

Why are you judges so sensitive about what they say when they have life tenure?



Scalia says everything he has to say is in the opinions, and it's fine for people to "paw over" the opinions, but he doesn't need to be there while us animals do that.

And here he is on cameras in the Supreme Court:



Basically, his point is the public would get "educated" if they'd look at the video the right way, which is watch all of the arguments on all of the cases, including all the really boring things about ERISA and so forth. But since the video would end up in edited sound bites, that would not be educational, and therefore we shouldn't be allowed to get our hands — should I say paws? — on it.

My position, you may remember, is that video would impose some accountability on the Justices, who do, as Lamb noted, have life tenure and may very well stay beyond the point of competency. Obviously, the written opinions aren't much good in this regard, since the Justices have excellent help writing the opinions.

How did Jonathan Turley come up with 19 as the best number of Supreme Court Justices?

We're all wound up waiting for the Supreme Court to announce its new decisions this morning, so let me while away some of the remaining minutes brooding about that WaPo article we were talking about last night. Let's talk, specifically, about Turley's homing in on the number 19.

Wikipedia has an article on the number 19, which includes mathematical info like "19 is the aliquot sum of two odd discrete semiprimes, 65 and 77 and is the base of the 19-aliquot tree." And "19 is a centered triangular number, centered hexagonal number and a Heegner number" — which looks like this:



That red dot could be John Roberts.

There's also significance to the number 19 in the religions Islam and Baha'i:

The number of angels guarding Hell ("Hellfire") according to the Qur'an: "Over it is nineteen" (74:30).

The Number of Verse and Sura together in the Qur'an which announces Jesus son of Maryam's (Mary's) birth (Qur'an 19:19).

Some people have claimed that patterns of the number 19 are present an unusual number of times in the Qur'an.

In the Bábí and Bahá'í faiths, a group of 19 is called a Váhid, a Unity (Arabic: واحد wāhid, "one"). The numerical value of this word in the Abjad numeral system is 19.

The Bahá'í calendar is structured such that a year contains 19 months of 19 days each (along with the intercalary period of Ayyám-i-Há), as well as a 19-year cycle and a 361-year (19x19) supercycle.

The Báb and his disciples formed a group of 19.

There were 19 Apostles of Bahá'u'lláh.

Not at the Wikipedia, but dredged up out of my memory: At the Million Man March, back in 1995, when Louis Farrakhan gave his long speech that bizarrely drifted into numerology, the number that he found so important was 19. He observed that the Jefferson and Lincoln Memorial are both 19 feet high, then adds 3 and 16 together — because Thomas Jefferson was the 3d President and Lincoln was the 16th — gets 19 and asked "What is so deep about this number 19?" You can go to the link and read if you want to know why 19 represents a pregnant woman + a "secret that has to be unfolded."

I don't know what put the idea of 19 into Jonathan Turley's head. It could be something mystical and nutty. Maybe he loves Adele's first album.

But I assume there's nothing mystical or artistic about Turley. I think he likes the number 19 because it's the smallest odd number that's big enough to make individual Justices inconsequential — to dilute their power to the point where they don't loom large as personalities and seem like mere humans.

Turley's last sentence says it: With 19 Justices, "the power of individual judges is diluted."

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

"Some things that are big in the legal academy are considered irrelevant or crackpot by judges."

From an article titled "The Most-Cited Law Review Articles of All Time."

The judge overseeing the John Doe investigation defends it against charges of partisanship.

"This has been an orderly and professionally conducted procedure... I realize the length of it frustrates some people. Once it's run its course, it's run its course."

Said former Appeals Court Judge Neal Nettesheim of Waukesha, interviewed by the Milwaukee Journal Sentinel.

Nettesheim declined to comment specifically on whether Walker was constrained under the John Doe law from discussing what he knows about issues under investigation or from releasing specific emails. Nettesheim noted that his secrecy order extends to all parties, including the judge. Violators can be held in contempt of court. Nettesheim would be the enforcer if violations occur.

I guess it's for the judge to decide how far he's allowed to go.

ADDED: At a Barrett rally last night in Madison:

The mayor again appeared with former U.S. Sen. Russ Feingold, who has joined Barrett on the campaign trail this week. Feingold called Walker's decision not to disclose John Doe documents "cynical" since voters cannot recall him again in his first term.

"If we do not prevail ... Scott Walker will have committed the perfect political crime," Feingold said. 

Oh, that's rich! As if Scott Walker schemed to set up a recall election against himself. Instead of calling Walker "cynical," he should call the people who demanded the recall idiots. Plus, Feingold.... if Feingold really cared about recalling Scott Walker, he'd have stepped up and become a candidate. Instead the Democratic Party got stuck with a lackluster candidate who had already lost to Scott Walker. Finally, there are remedies other than the recall, and in fact, the recall is a bad political remedy that ought to be abolished. If Scott Walker is actually guilty of some crime — if there's ultimately something of substance behind all this John Doe investigatory smoke — the remedy of impeachment will be available. There is also the political remedy: pressure on Walker to resign.

"Will Judicial Commission remake give conservative justices a break?"

This is pretty intra-Wisconsin, but if you've been following the Wisconsin Supreme Court "chokehold" story, you might be interested in this.

Last week Chief Justice Shirley Abrahamson released a letter to John Dawson telling him that the court, would not be not re-appointing him to the commission. The letter, signed by Abrahamson and the other two so-called “liberals” on the court, expressed regret at the decision by the conservative majority.

John Dawson, the chairman of the commission, has served on the panel since 2006. With his removal, the panel will be scrubbed of all commissioners who filed ethical complaints against Prosser and two other sitting conservative justices over the past four years.

"Judge Robert Mandelbaum asked to meet singer Suzanne Vega, who is married to a defense lawyer in the case..."

"... after convicting the demonstrators of disorderly conduct."

But Vega, whose hits include “Tom’s Diner,” took the meeting as a chance to tell her fan, “I’m really disappointed by the verdict.”

“He told me that’s my prerogative,” Vega said outside the judge's courtroom. “It was sort of awkward.”

Ah, go write a song about it. Call it "My Prerogative."

"Judge who signed Walker recall petition to stay on John Doe case."

"Milwaukee County Judge Dennis Cimpl said Wednesday he would not step aside from hearing a criminal case against a county appointee of Gov. Scott Walker, arguing his signing of a recall petition against Walker wasn't evidence of bias."

The embezzlement case against Kevin Kavanaugh has nothing to do with Walker, Cimpl said, who nonetheless argued that his support for making Walker face voters in a recall didn't mean the judge held any animosity toward the governor.

"It has nothing to do with Scott Walker as a person," Cimpl said in court. "I voted for Scott Walker as county executive two times. I thought he did a decent job as county executive.

"29 Wisconsin Judges Sign Walker Recall Petition."

"That’s 12 percent, and it’s not just abstract advocacy."

"Dane County Judge David Flanagan has been under fire for not disclosing his support of the recall before he issued a temporary restraining order against a Walker-backed voter ID law." It’s like these people don’t believe in civil society or something.

The left has often invoked the authority of law and the learned professions, but Wisconsin — from things like this to the phony doctors’ excuses for protesters — is suggesting that they’re just a bunch of partisan tools.

ADDED: Why would a judge sign a recall petition? You're just one name. It can't make that much difference. And then there you are, your reputation shot to hell. You're politicized. Biased. All those things you strive to deny when you assume the role of judge.

The linked AP article shows that "none of the state's 16 appeals court judges or seven Supreme Court justices signed the petition." That is a relief.

"Judge who blocked Voter ID law signed Walker recall petition."

So?

"To those Christians who have venomously and vomitously cursed the Court family..."

"... and threatened bodily harm and assassination: In His name, I forgive you.... To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves...."

U.S. District Judge Fred Biery, writing an order approving a settlement in a school prayer case.

"The cat is a living human animal and doesn't deserve to be basically murdered...."

So said Circuit Judge David Hansher, according to the Milwaukee Journal Sentinel.

The cat is a living human animal!?

Anyway, the judge sent a man to jail for 6 months for killing a stray cat who was damaging his property. When people kill feral animals on their property, it's inflammatory to call it "murder." The method of killing the cat sound horrible — swinging it by the tail and cracking its head — but the man discovered the cat living in his vacant rental property, where it had been "urinating and defecating all over and tearing up furniture":

He told Hansher that he opened the doors and windows and tried to chase the animal outside, but that it instead hid under the kitchen sink. He said he tried to grab it by the neck but could only reach the tail, and once he pulled it out, the cat began viciously clawing and biting at him.

The judge said: "It's abhorrent and repulsive what you did... I'd rather have an armed robber in front of me than someone like you."

Crazy!

"Prosecutors Banned From 'Jaw-Jacking' Outside Judge's Chambers."

Jaw-jacking.

"Despite not yet having bestowed a single law degree, UC Irvine says it has placed nearly a fifth of its 2012 graduates with district and circuit court judges."

Wow! Impressive!

How could that happen? One thing is that there are only 58 students in the class of 2012. And the school offered them all full scholarships, which allowed it to be extremely selective (even though it wasn't yet accredited or ranked). There's more to it than that, of course. Congrats to UC-Irvine for a great start.

What has happened to Wisconsin Supreme Court Justice David Prosser?

He's taking a month off "to recover from a serious [but not life-threatening] health issue," we're told.

That will leave six justices to hear several cases, raising the possibility of 3-3 splits on the deeply divided court....

Prosser did not participate in orders this week in a fast-moving, politically charged case over recall elections...

Prosser is the conservative justice who was involved in that bizarre "chokehold" incident. (There was no actual chokehold, apparently.) He won a hotly contested campaign for reelection this summer after the Wisconsin protesters focused their energy on defeating him. At present the protest effort is aimed at various recall elections, and there is a current controversy before the court about whether the next round of recall elections against legislators will use the newly drawn legislative districts (which favor Republicans) or the old districts that were drawn back in 2002, when Democrats controlled the process.

I wonder what is wrong with Justice Prosser. Based on what I've read about the "chokehold" incident, I imagine an intense degree of interpersonal conflict and stress inside the court. One could speculate about the kind of health problems such a workplace environment might cause or exacerbate. Is this month off a prelude to resignation? If he were to resign, the Governor — the Democrats' nemesis Scott Walker — would have the power to appoint the person who will replace him, but that person will need to stand for reelection next year. [NOTE: Text edited for accuracy.]

Walker, of course, is facing a petition drive to force him into a recall election some time next year. Under the circumstances, it would be interesting to see what kind of justice he would pick to replace Prosser. Prosser is the 4th vote in the conservative group that determines the outcome in all of the ideologically split 4-3 cases. Obviously, Walker would want a reliable conservative. But beyond that, he should want to burnish his own reputation by picking someone with impressive legal credentials. And considering the situation inside the court, he should want someone with strong leadership skills and a great capacity to operate in a psychologically stressful work environment.

ADDED: Maybe something else happened, something like the "chokehold" incident, and he's been pressured to get that "anger management" treatment he was previously told to get.  There could have been an ultimatum: Get that treatment now, or we'll go public.