Judiciary Committee Does It Again

Barack Obama, the great constitutional scholar, seems to think the law and the Constitution should be matters of emotion rather than intelligent thought. So rather than use an illustration of what kind of judges he should be presenting to the Senate, I thought I'd use an illustration of the way he thinks the judiciary should operate.

Yesterday, Obama was given his wish by the Senate Judiciary Committee. Of the eleven judges voted on in committee, five were controversial re-appointments who had been previously rejected or stalled by the committee. Four of the five were voted out favorably, and the fifth was postponed. That's the bad news. I'll discuss the five briefly, including the nominee I love to hate (whom I hope you'll recognize from my previous posts).

First--the postponement. Robert Chatigny is Obama's nominee for a seat on the Second District Court of Appeals. He'll have to wait awhile. There was simply too much dissension on the committee, including some Democrats to move his nomination forward to the full Senate. Chatigny loves death-row inmates, and the more perverse the crime, the better Chatigny likes the criminal. His most famous ruling in favor of a subhuman murderer was the case of the "Roadside Strangler," Michael Ross. Instead of finding Ross's sexual sadism as a factor in aggravation (in other words, a higher end of the punishment ladder) as the jury and judge below did, Chatigny found Ross's perversity to be a mitigating factor requiring a reduced sentence.

Ross tortured, raped and murdered six women in Connecticut with ages ranging from fifteen to twenty-five. Chatigny ordered two stays of execution of the Ross death penalty as a district court judge, and both stays were reversed by the appellate court. So Chatigny tried a different course of action. When the case came back to him, he browbeat the defense attorney into filing another death penalty appeal, even though Ross had decided that after twenty years of appeals, he just wanted to get it over with. Chatigny had decided that Ross suffered from "death row syndrome," and thus was no longer competent to make his own decisions. No--I didn't make that up.

And it gets better. In reviewing the case again on appeal from Chatigny's order once again staying the execution, it turned out that the appellate court investigators found out that Chatigny had been a member of Ross's defense team when he was in private practice before being appointed to the bench. He had called his client "the least culpable person on death row." That resulted in successful ethics complaints and one Connecticut Representative calling for Chatigny's impeachment.

His track record on appeal is worthy of the regularly-reversed Ninth Circuit, but that seat already had a nominee. Chatigny did sentencing downward departures in eight out of twelve child pornography cases, and in the remaining four, issued the federal standard sentence. He never issued an upward departure from the basic guidelines in a child pornography case. Maybe Obama felt he needed a friendly judge to protect the Safe Schools Czar from prosecution for his inordinate advocacy of sexual activity for kindergartners and his fondness for child pornography.

Second: The approval of Edward Chen to the federal bench for the Northern District of California (yes, ladies and gentlemen, that's the one located in San Francisco). The vote was 12 to 7 along straight party lines. Chen began his legal distortion career as an ACLU lawyer. While sitting as a federal magistrate (think "judge with limited powers'), Chen said he felt no patriotic pride when hearing America the Beautiful. but rather he felt "ambivalence and cynicism." Well, that was probably the clincher for Michelle Obama, the president's most important adviser.

He has made numerous public and recorded statements which clearly indicate that he would not be a neutral judge. Consider, for instance, that he has stated that he will always rule in favor of affirmative action and against English-only statutes regardless of the law, precedent and points and authorities. In other words, his mind is made up in advance, and nothing as petty as the law is going to get in his way. His position on judicial temperament is "judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experience." That echoes legal scholar Barack Obama's view of the judiciary, despite it sounding much more like the words of a sociology lecture than a legal one.

He was very emotional about the 9/11 attacks. But not in the way you might think. "One has to wonder whether the seemingly irresistible forces of racism, nativism and scapegoating which has occurred so often in our history can be effectively restrained." Look out, Hussein, they're comin' to getcha. It's a good thing the Ground Zero mosque isn't located in his jurisdiction. He topped the 9/11 statement with his view that "criminalization of illegal immigration is institutionalized racism," and also stated that "the slow response to Hurricane Katrina was due to racism." Well, I guess we know where this civil rights lawyer is headed, don't we?

Third: Sleazebag former ambulance-chasing personal injury attorney Jack McConnell was passed to the full Senate on a 13 to 6 vote. Good ole Jack hates business and espouses the discredited labor theory of value. McConnell was a pioneer in the disreputable practice of private attorneys acting in place of the official advocacy of attorneys general. You see, an attorney general cannot benefit from his position as a public advocate by receiving a contingency fee--but a private attorney can. And what did McConnell do with his ill-gotten gains? You guessed it, he gave large amounts of political cash to the political campaigns of the attorneys general whom he stood in for. Pure coincidence, I'm sure.

If McConnell didn't like the decisions of the courts, he ignored the canons of ethics and publicly attacked the intelligence and integrity of the judges who disagreed with him. In his advocacy of the shaky theory of damages in lead paint cases (well, at least he wasn't channeling dead babies), he was soundly rejected by the Rhode Island Supreme Court. His reasoned judicial approach to the rejection of his outcome-based legal philosophy was to state that the R.I. court was letting "wrongdoers off the hook."

Fourth, we have Obama darling Louis Butler, nominee to the federal bench for the Western District of Wisconsin. It was another party line split of 12 to 7. The Supreme Court in Wisconsin is an elective office, and the Wisconsin voters twice rejected Butler for a seat at that bench. Third time's the charm, and he finally pulled the wool over the eyes of enough voters to get the seat. Well, piffle. Obama wishes to educate the people of Wisconsin by going over their heads and appointing him to the federal bench.

During his stint on the Wisconsin Supreme Court, Butler frequently overrode the legislature and formerly binding precedent to obtain the result he wanted. He arrogantly wrote opinions which said, in essence, that if the legislature couldn't get it right, he would simply use the court to impose his own policies.

Here's a Butler opinion that is absolutely breathtaking in its arrogance and stupidity. Butler stated in a manufacturing liability case that "the manufacturer may or may not have produced [a product] which may or may not have caused the plaintiff's injuries," based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Huh?

In another Alice-in-Wonderland decision he wrote that a voter-approved state constitutional amendment clearly written to expand gun-carrying rights instead limited gun-carrying rights. And you'll love this one. Because of his ability to win reversals of criminal convictions on arcane procedural grounds having nothing to do with guilt or innocence, he earned the nickname Loophole Louie.

Fifth and last, but not least, is my previously announced bete noire, Ninth Circuit Court of Appeals nominee Goodwin Liu. This clown is so bad that I did not one, but two posts on him in the past: A Perfect Nominee, and Nomination Drones On. Liu also was passed on to the full Senate by a 12 to 7 party line vote. The short version is that Liu has neither practiced law nor sat on the bench. He has spent his entire career as a law professor, most recently at the University of California Boalt Hall School of Law at Berkeley.

His legal philosophy (which would be no different from his judicial philosophy) is that health care and welfare are constitutional rights. He is an economic ignoramus and a social engineer, opining that "expanded health insurance, child care, transportation subsidies, job training and a robust earned income tax credit are affirmative Constitutional rights." Not that they are a good idea, or might be legal, but that they are constitutional rights.

Liu is enthusiastic about ignoring the Constitution and precedent when foreign law is so much better. He has written articles which either mimic or instruct the Obama legal philosophy: "Judges are not bound to apply the Constitution according to its written meaning, but rather are free to adapt the Constitution in light of changing needs, conditions and understandings of our society." Then why the hell do we need a Constitution in the first place, Mr. Liu?

Instead of being nominated to a federal appellate seat, Liu should be taken out behind the woodshed and beaten into consciousness with a copy of the Constitution and the Federalist Papers. He should then be required to spend at least two hours a day asking himself: "What would James Madison do?"

OK, that was all the bad news. The good news is that there are more Republicans in the Senate than there were when Liu and the others were rejected the first time, Democrats outside the Judiciary Committee are running scared, and it would be nearly impossible to get these law school truants to a vote in the full Senate before the November elections. Only McConnell received a single Republican vote (I don't know which Republican and I hope someone can enlighten me on that). The makeup of the Judiciary Committee probably won't change substantially if the Republicans fail to take control of the Senate, but the greater number of Republicans in the Senate make the confirmation of the radical nominees less likely by the day. Promises of a filibuster of Liu and Chatigny are already in the works.