The Legislature gavelslaps TxDOT

After the leaders of both houses of the Texas Legislature sent a very strongly-worded to the State Auditor in late February calling for review of TxDOT’s “questionable accounting procedures,” including TxDOT’s projection of a $3.6 billion shortfall by 2015 without accounting for some $8 billion in already-approved road bonds, and its admission of $1 billion “error” in its budget forecasting, the Texas Sunset Advisory Commission (the “Commission”)–charged with recommending every twelve years whether targeted state agencies should be done away with–unsurprisingly issued a stinging rebuke of TxDOT early last month:

Sunset staff found that this atmosphere of distrust permeated most of TxDOT’s actions and determined that it could not be an effective state transportation agency if trust and confidence were not restored …. Significant changes are needed to begin this restoration; tweaking the status quo is simply not enough.

In its report, the Commission called TxDOT “out of control” in pursuing its toll-road agenda. So disgusted with TxDOT was the Commission that it recommended abolishing altogether the five-member Texas Transportation Commission which oversees the agency and replacing it with a leaner executive structure composed only of the agency’s executive director and a single commissioner. The final major recommendation of the Commission was that TxDOT undergo sunset review again in just four years’ time, instead of the normal 12-year review cycle.

Thx to the Statesman

 

The Predator political machine

Little did I know twenty years ago when I first illicitly saw Predator that it was not just a classic action movie starring both the Terminator and Apollo Creed fighting an alien, but that it was also a veritable breeding-ground of future politicians.

Well, consider this. Not only have two of the cast gone on to be elected governor, now a third is considering a run for the Senate from Kentucky. Billy the tracker from Predator (Sonny Landham in real life) is gathering signatures so that he can challenge current Kentucky Senator Mitch McConnell as an independant.

If he’s even half as tough in real life as he was in Predator, he’d have my vote.

Thx to Shenanigans

 

Drafting dissents 101

One might as well treat Justice Scalia’s dissent from last week’s majority opinion in Boumediene v. Bush, Nos. 06-1195 & 06-1196 (June 12, 2008) as an addendum to his recent legal writing tome with Bryan Garner, largely and frustratingly unavailable here in Austin.

This is because it illustrates how to write a scathing yet persuasive dissent that will likely be viewed by future Justices and Court observers in much the same jurisprudential light as Justice Jackson’s dissent from the majority opinion in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) is now seen, which famously rebuked the majority’s condoning of the internment of U.S. citizens of Japanese descent during WWII.

Justice Scalia’s dissent is masterful both in its tone and its construction. Part I lays out the policy fallout from the decision (i.e., the practical, real-world implications). Part II excoriates the majority’s attempt to brazenly recast the governing precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950). Part III traces the juristic history of the writ of habeas corpus from its codification in 1679 Britain to the present day, and explains why the majority’s decision is such a stunning departure from the entirety of Western common law previously construing and defining the boundaries of the writ.

As far as the text itself, no paraphrasing can do it justice. Below are selected excerpts from the opinon.

The classic first sentence:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

Boumediene, slip op. at 1 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.). And then, the meat of Part I:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Id. at 2. Talk about “plain language,” you can’t get much plainer than that.

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the namesof 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.

Id. at 4-5 (citations omitted). After recounting the bromide four of the five-Justice majority in Boumediene previously offered in Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (Breyer, J., concurring in part, joined by Kennedy, Souter, and Ginsburg, J.J.)—namely that “[n]othing prevents the President from returing to Congress to seek the authority [for trial by military commission] he believes necessary”—Justice Scalia curtly observes:

Turns out they were just kidding.

Boumediene, slip op. at 5 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisonersin this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Id. at 6. Ouch.

It is both irrational and arrogant to say that the answer [to the question of "whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims"] must be yes, because otherwise we would not be supreme.

Id. at 18. Calling out his colleagues for their juristic arrogance. And from the final paragraph:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And the most sobering, bold, and blood-chilling line I think I may have ever read in a SCOTUS dissent, the last line cautions:

The Nation will live to regret what the Court has done today.

Let’s hope not.

* * * UPDATE * * *

For a fascinating examination of the Boumediene decision, see Professor John Yoo’s op-ed in this morning’s Wall Street Journal. This article is all the more interesting because Justice Scalia cites in his dissent to a memo Professor Yoo authored while at the Office of Legal Counsel that relied upon the then-accepted interpretation of Eisentrager. See Boumediene, slip op. at 3 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

* * * UPDATED UPDATE * * *

It is humorous to note that Justice Scalia “sics” the Justice he has publicly acknowledged as the best writer ever to sit on the Court, Justice Jackson, for the former Justice’s use of the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” Id. at 9. So strong is Justice Scalia’s dislike for this phrasing that he has stated its use makes the author sound “illiterate.”

Thx to Justice Scalia for his incomparable wit and eloquence.

 

Like father, like son

Sixty-seven years ago today, Sam Houston’s only surviving son–Andrew Jackson Houston–was sworn in to the U.S. Senate at the ripe old age of 87 to fill the vacancy left by the death of U.S. Senator Morris Sheppard.

Andrew’s father was sworn in as one of Texas’s first two senators almost one hundred years earlier.

Incidentally, General Houston’s colleague in the Senate was none other than the Republic’s first Chief Justice to actually preside over a session of the Texas Supreme Court: Thomas Jefferson Rusk. While Chief Rusk was, technically, Texas’s third Chief Justice, the first two Chiefs never actually convened a Court session during their eventful tenures (Texas’s first Chief Justice, James Collinsworth, committed suicide by jumping from a ship in Galveston Bay while on the ballot as a Republic presidential candidate). See James W. Paulsen, A Short History of the Supreme Court of the Republic of Texas, 65 TEX. L. REV. 237, 248-53 (1986).

While the father served in the Senate for some thirteen years from February 21, 1846, until March 4, 1859; the son’e tenure was fated to be much shorter, lasting only twenty-four days until he died on June 26, 1941.

Thx to Texas on the Potomac

 

Finally, an insurance defense firm we can root for

Because we’ve covered how some counsel for 9/11-affected insurers pursued a sanctionable and despicable course of conduct in order to avoid paying claims arising from the horrific attacks, we’re pleased to bring you a story of one law firm that has manifestly done the right thing by both its insurer clients and the country.

The Philadelphia Inquirer has a fascinating couplet of articles chronicling Cozen O’Connor’s groundbreaking lawsuit against the Kingdom of Saudi Arabia for tort liability arising from the sovereign’s alleged complicity in–and even direct support of–the 9/11 attacks

Part one of the series documents some of the key assertions in the suit “missed not only by the 9/11 Commission but also by Congress in its investigations”, including:

Senior Saudi officials and members of the royal family or their representatives served as executives or board members of the suspect charities when they were financing al-Qaeda operations. Overall, the Saudi government substantially controlled and financed the charities, the lawsuit alleges.

The charities laundered millions of dollars, some from the Saudi government, into al-Qaeda and other terrorist groups and provided weapons, false travel and employment documents, and safe houses.

Regional offices of the charities employed, in senior positions, al-Qaeda operatives who helped coordinate support for terror cells.

Part two details how the suit—brought under the auspices of the 1976 Foreign Sovereign Immunities Act (FSIA)—alleges the “Saudi government and members of the royal family engaged in conduct that breached the standards of normal government activities when they supported Islamist charities that funded extremist groups.” By acting outside the statutory standards of conduct the suit contends, the Saudi government and royal defendants made themselves liable under the FSIA.

The Cozen plaintiffs are currently awaiting a Second Circuit decision that will decide whether the earlier dismissal of Saudi government and royals as defendants was proper. However, “[e]ven if Cozen loses the appeal and the Saudis retain immunity, U.S. District Judge Richard Conway Casey ruled that there is enough evidence to proceed against several Islamist charities, banks, and alleged terrorism financiers named in the lawsuit.”

Thx to How Appealing and the Philadelphia Inquirer

 

The turncoat gene

Few who read this blog may be old enough to remember Carole Keeton Strayhorn Rylander McClellan’s 1986 run for Congress, but I do.

Back in ‘86, Carole “Keeton McClellan”–as she was then known–made enemies of her Democrat compatriots when she abruptly resigned from the State Board of Insurance with a full three years left on her term, and promptly switched parties so that she could run against the revered and longserving District 10 congressional representative, J.J. Jake Pickle. It wasn’t so much that people begrudged her ambition, but that she would so brazenly and inelegantly attempt to displace an LBJ-era icon in Central Texas politics who was literally beloved by his constituents.

In fact, so deserving of his constitutents’ affection was Congressman Pickle that I remember a tale told at his 2005 funeral that, throughout his years in Congress, he kept his home telephone number listed in the Austin phonebook so he was always—literally—just a phone call away from those who elected him.

Well, the Washington Times reports today that, ‘lo and behold, Mama Carole may have had something to do with her son’s recent partisan about-face with his former boss, 43.

Lil’ Scotty’s on the left.

Thx to the Washington Times and the Austin Chronicle

 

A conspicuous public hanging

The National Portrait Gallery is our nation’s repository for its most famous portraits of its most revered citizens … and Stephen Colbert.

As the Capitol Crowd recounts, Colbert’s portrait arrived at its place of honor after:

Colbert trie[d] to convince the Smithsonian that he should be considered a national treasure. He attempt[ed] to donate his portrait to the Smithsonian’s National Museum of American History, but the museum’s director suggest[ed] that perhaps Colbert should speak to the National Portrait Gallery.

By the way, the hallowed location at which Colbert’s portrait sits is between the public restrooms. However, his painted likeness has apparently doubled visitation at the National Portrait Gallery.

The only thing that could have possibly made his portrait even better is if he was painted while wearing his American armor, courtesy of an Austin artisan.

Thx to Capitol Crowd

 

Conservative SCOTUS all-stars and least-stars

Seventh Circuit Judge Richard Posner and his fellow University of Chicago Law School Professor William Landes have authored an article entitled, “Rational Judicial Behavior: A Statistical Study,” which devises a methodology to rank the forty-three Justices who have served on SCOTUS since 1937 from most conservative to least.

Their conclusion?

Four of the five most conservative [J]ustices to serve on the Supreme Court since Franklin Roosevelt [presidential term], including [Justices] Roberts and Alito, are currently sitting on the bench today.

I always find it troubling when commentators (even ones as undeniably accomplished and talented as Judge Posner) attempt to assign political motives (i.e., Legislative or Executive branch motives) to the judiciary because I remain convinced that political labels like “conservative” or “liberal” are ill-suited to describing judicial philosophy. Originalist jurisprudence is not a per se politically conservative concept just as viewing foreign law as persuasive authority is not a direct descendant of politically liberal thought.

Judge Posner and Professor Landes describe how they classified the conservativeness of the Justices by reasoning “[t]hat characteristic is usually proxied by the party of the President who appointed the judge—if it was the Democratic Party the judge is deemed ‘liberal’ and if the Republican Party ‘conservative.’” See Landes, William M. and Posner, Richard A., “Rational Judicial Behavior: A Statistical Study” (April 2008 ) at 2. U of Chicago Law & Economics, Olin Working Paper No. 404 Available at SSRN: http://ssrn.com/abstract=1126403.

While this may be a seemingly rational way to crudely guess the favored political affiliation of a Justice (particularly in the modern, post-Roe era), one need look no further than Justices Stevens or Souter–both appointed by Republican presidents–for evidence controverting this assumption.

Thx to How Appealing, U.S. News & World Report, and the Legal Theory Blog

 

Per curiam ponderings

Yesterday, I posted my own diatribe to counter the latest press release issued by Texas Watch, but noted at the end of my post that I was most concerned about the publication of the number of per curiam opinions issued per Justice by the Office of Court Administration (OCA).

Well, the OCA was kind enough to clarify for me the history of this practice which largely assuages my original concern–for whatever that’s worth.

The collection and publication of this per curiam data is hardly new, having been annually compiled for some twenty-seven years since OCA first began tracking the number of per curiam decisions issued by each Justice as early as 1981. Moreover, the OCA specifically sought input from SCOTX in both 2004 and 2006 regarding the contents of the OCA’s annual report, and the Court expressed no concern regarding publication of the per curiam statistics.

The OCA was also correct to point out that the identity of the opinions enumerated in the statistics is kept confidential, with only the number of opinions issued per chamber being made public.

So, at the end of the day, I am likely the only person to whom this one column of data jumped out as being slightly odd. Moreover, if neither the Court nor the OCA are troubled by the practice, than it is certainly beyond my purview to be.

Thx to the OCA for accurately, annually, and faithfully reporting the current statistical state of the Texas judiciary

 

Still raising hell from beyond the grave

We related some of the anectdotes contained in a new tome about the life and times of former Lieutenant Governor and Comptroller Bob Bullock , entitled, “Bob Bullock: God Bless Texas.”

Well the book, and particularly the conduct of the authors, has not sat well with Bullock’s widow and many of his closest friends and colleagues.

The bad blood apparently goes back to a 1994 column by book co-author Dave McNeely (on the left above) that ran two days after Bullock had heart bypass surgery, which speculated who would be lieutenant governor if Bullock died.

Very subtle Dave, can’t imagine why Jan Bullock would have taken offense at that.

Several Bullock aides also questioned the inclusion of incidents that occurred before Bullock sought treatment for alcoholism in the 1980s.

Book co-author Jim Henderson (on the right above), offered this less-than-tasteful response to the negative reaction to the book by Bullock loyalists and widow Jan Bullock:

Jan wanted to write her own book about Bullock. Didn’t happen. Get over it. Then she did her best to obstruct the writing of this book. Didn’t happen. Get over it. Then she did her best to block publication. Didn’t happen. Get over it. She apparently wanted to control everything written about her late husband. Didn’t happen. Ain’t gonna happen. Get over it.

Mcneely may have revealed the authors’ true motivation in including more of the salacious (and disputed) details of Mr. Bullock’s life, when he admitted to the Statesman that “he hopes the book fuels a TV pilot.”

I bet he does.

Thx to Postcards from the Lege, the Statesman, and Texas Politics

 

When a picture is worth 3,383 words

Today, Senator John McCain gave a 3,383 word speech expounding upon his judicial philosophy, but as Jonathan Martin keenly observed, this picture speaks louder than any soundbite in the Senator’s speech.

Thx to Jonathan Martin

 

Leave it to a Scotsman to make even the cynical Washington press corps laugh

Craig Ferguson turned out to be a hit at this year’s White House Correspondents’ Association dinner, poking fun at everyone, but tastefully so.

President Bush’s speech was a retrospective of his past seven appearances at the dinner, some of which were pretty funny. My favorites were Laura Bush’s 2005 quip that “9:00 o’clock and Mr. Excitement here is sound asleep … and I’m watching Desperate Housewives,” and Bush’s 2001 assurance that he held no hard feelings against his brother, the then-Governor of Florida, for the Florida recount (see below).

Ferguson had some particularly good zings against the New York Times, who was very publicly absent from the soiree:

They thought this dinner undercut the credibility of the press, I thought Jason Blair and Judy Miller took care of that.

* * *

Shut the hell up NY Times you sanctimonius whining jerks!

Overheard at the party was Bunny Ranch owner Dennis Hof on Senate Majority Leader Harry Reid “I know Harry very well. He’s a good guy.” I’m sure the Senator heartily appreciated that vote of confidence.

* * * UPDATE * * *

After eating at White Castle and escaping from Guantanamo Bay, Kumar apparently attended the WHCA dinner as well.

Thx to Shenanigans, Fishbowl DC, and TV Newser

 

More summer reading

I have yet another book to add to my summer reading list, Steven Teles’s The Rise of the Conservative Legal Movement.

Professor Zywicki has a great review of it over at Volokh.

Thx to Volokh

 

Kim Possible

The sky is the limit for first-term Austin City Councilwoman Jennifer Kim. When it comes to allocating the $260,000 a year with which her office is endowed (nominally to pay for the member’s salary and that of their staff), Councilwoman Kim has appropriated generously.

Oh, not on salaries mind you or other public expenses that wouldn’t raise the eyebrows of Austin’s taxpayers, but on questionable items such as:

$921 for a three-night stay at the W hotel in Manhattan
$700 for a membership to Continental Airlines’ ‘President’s Club’
$550 for a Sharper Image air purifier
$400 for 20 copies of Discover Your Strengths
$232 in Crane and Company brand stationary
$86 in Vera Wang barware
$67 for a Steam Wizard from The Sharper Image
$59 each for “Executive Rollerball” pens from The Sharper Image.

Using taxpayer dollars to buy designer barware, and a stay at a trendy Manhattan hotel? Has she been reading the Pedernales Co-op’s guide to fiscal responsibility?

When asked about these expenditures by a local reporter, Kim defended her acquisitional judgment by saying, “I spend what I need to out of my budget to be able to do the job. And in the beginning, it was a brand new office, a brand new staff, there were a lot of things that we needed.”

Like Vera Wang barware. Riiiiight.

I’ll give her the benefit of the doubt on the pens (my Mont Blanc makes those look reasonable), the stationary, the suit steamer, the travel club membership, etc., but–despite being an Aggie–she should know enough not to use public funds to buy any of these items from expensive vendors, if at all.

This is not the first example of Kim’s poor judgment however. In early 2007, she created a furor by indignantly attempting to bypass airport security at ABIA, claiming nonexistent VIP status. When informed her status as a member of the Austin City Council conferred her no special security rights, Kim said “I didn’t know it was a [Transportation Security Administration (TSA)] issue, … I thought since it was our airport and we own it, and if we are pre-cleared, we could get through.”

Uh, ask anyone who has flown since 9/11 if they are aware TSA runs airport security.

As reported elsewhere, Kim’s antics have made her hard to work with, running through at least three executive aides since she took office in 2005.

Her airport shenanigans have even given her electoral opponent a campaign slogan, “I’ll be happy to stand in line with you at the airport anytime.”

Thx to KVUE’s Political Junkie, the Austin Chronicle, News 8 Austin, and PinkDome

 

“[L]ow and petty partisan motivations [of] the [seven] justices who were in the majority”

I know it is enormously unwise to re-open this can of worms, but here it goes.

The 2000 Presidential Election is back in the news with the announcement that HBO is planning the release of a film dramatizing the 2000 recount , and Vice President Gore’s recent interview on 60 Minutes in which he reflected:

I strongly disagreed with the decision, but to ascribe low and petty partisan motivations to the five justices who were in the majority, it doesn’t feel right for me to do that.

Just last week while speaking at UVA Law School, Justice Scalia tersely responded to a student’s question, “[h]ow do you reconcile your calls for judicial restraint with the court’s actions in Bush v. Gore,” by chiding, [o]h, get over it … [d]o you really think we weren’t going to grant cert.?”

In light of all the recent and forthcoming brouhaha, I just wanted to quote the Court’s actual holding in Bush v. Gore, 531 U.S. 98 (2000), namely that:

Seven Justices of the Court agree that there are [equal protection] constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy …. The only disagreement is as to the remedy.

Id. at 111. Because the majority deferred to the Florida Supreme Court’s own holding that all electors had to be selected by December 12, 2000 (the date Bush v. Gore was handed down), the Court held no recount procedures that would not be violative of the Equal Protection Clause could be put in place in time to comply with Florida’s own laws. Id. at 110.

Therefore, I sill posit that the “low and petty partisan motivations” Vice President Gore ascribes to the majority must also be attributed to the Florida Supreme Court, to which the majority deferred. Moreover, there were actually seven Justices (one of whom was nominated by Mr. Gore’s own administration) who agreed the varying counting standards employed by the many counties in Florida did not secure the equal protection rights of voters in those counties.

Thx to 60 Minutes, Newsbusters, Shenanigans, and Above the Law

 

Judge Haynes retakes the bench

Judge Catharina Haynes never has to worry about running for judicial office again. Yesterday, she was confirmed by the U.S. Senate (in large part due to the fervent support of Texas Senator John Cornyn) to the U.S. Court of Appeals for the Fifth Circuit.

Judge Haynes was the last remaining nominee awaiting confirmation to the 5th Cir. from the original group of three nominated by the Whitehouse.

Thx to Tex Parte Blog and Texas Appellate Law Blog

 

TRAPtastic

My much more esteemed colleagues at the Texas Appellate Law Blog and SCOTX Blog have each noted their insights and thoughts regarding the proposed changes to the Texas Rules of Appellate Procedure (TRAP), and the Texas Rules of Judicial Administration (RJA), but two proposed rules in particular struck my fancy because they address two of the quirkiest oddities formerly extant in current Texas appellate practice: TRAP 41.3 and RJA 15.

TRAP 41.3 addresses the jurisprudential quandary created by cases transferred via docket equalization from one appellate district to another. See TEX GOV’T CODE ANN. § 73.001 (Vernon 2005). It mandates that the law of the transferor appellate court becomes the law of the case in the transferee appellate court.

RJA 15 addresses concurrent appeals taken from the same trial court (a problem wholly created by the Legislature), which happens to reside in more than one appellate district. Under the amendments, these dueling appeals must now be consolidated and then assigned to one appellate district by random drawing. It is interesting to note that RJA 15.4(b) provides explicit instructions for the court clerk regarding the manner of the drawing:

[T[he clerk shall write the numbers of the two courts of appeals on identical slips of paper and place the slips in a container folded in half or otherwise arranged so that the numbers are completely hidden from view[, and] [t]he trial court clerk shall draw a number from the container at random, in a public place, and shall assign the case to the court of appeals for the corresponding number drawn.

Both of these issues were studied at length and with great skill in South Texas College of Law Professor Andrew Solomon’s 2006 St. Mary’s Law Journal article, which I highly recommend to your attention. See Andrew T. Solomon, A Simple Prescription for Texas’s Ailing Court System: Stronger Stare Decisis, 37 ST. MARY’S L.J. 417, 450-65 (2006).

Thx to the Texas Appellate Law Blog and SCOTX Blog

 

“I can tell the blood of William Barret Travis is not in your body. If you’d been at the Alamo, you’d have been over the back wall.”

So said the late, great Bob Bullock to a resigning underling who had balked at giving Bullock the news to his face. This is just one of the many larger-than-life Bob Bullock stories he left behind.

At the end of last month, the LBJ School’s Center for Politics and Governance hosted a reception for a new book from the UT Press by journalists Dave McNeely and Jim Henderson entitled, Bob Bullock: God Bless Texas.

Here are some of my other favorite Bullock tales:

One time, Bullock took a state Senator over to the cemetery and walked to one of the prime spots - up on a hill - not far from the burial spot of Stephen F. Austin. Bullock showed the senator the place where Bullock eventually would be laid to rest. The senator expressed considerable surprise that Bullock managed to get himself such a prime spot. Bullock told the senator that he couldn’t be nearly as surprised “as the guy who moved out of here.”

Former Travis County D.A. Ronnie Earle has a few gems about Bullock as well. The first was when Bullock told Earle’s father, who during his retirement served as a Capitol parking guard and frequently lunched with Bullock:

You’re a pretty good guy, Charles, but you did a piss-poor job of raising that boy of yours.

Earle tells another story how, soon after he became the D.A., he investigated Bullock for using a state airplane for personal purposes, but the grand jury decided not to indict him. As soon as the investigation was over, Bullock allowed the Legislature to approve funding for Earle’s public integrity unit, which Bullock had been blocking during the pendency of the grand jury proceedings. Years later, Bullock admitted to Earle:

You know that investigation you did on me years ago? I was guilty as hell.

At one of his fundraisers, a trade association sent Bullock a $1,000 contribution, which he promptly sent back with a letter that read:

Here’s your check back, and I’m sending you a $500 check from myself. I didn’t know your association was in such bad shape. I hope this $500 will help you.

Shortly thereafter, the trade association sent him a $10,000 check.

Thx to Texas Politics , Texas Monthly, and Postcards from the Lege

 

Texas Watch shrinks from scrutiny

We have diligently followed the recent spate of press reports stemming from “research” conducted by Texas Watch purporting to show massive and improper opinion delay at SCOTX. Unlike Texas Watch, we at SMSB do not pretend to be nonpartisan, we are admitted and unabashed fans of SCOTX and its jurisprudence.

That said, we will be the first to acknowledge that SCOTX opinions take an exceedingly long time to issue, and any justification for this less than impressive pace (the Office of Court Administration (OCA)’s estimate for the average time taken to issue an opinion last term from the petition filing was 700 days) is hard to defend in light of SCOTUS’s ability to turn around most–if not every–opinion it issues well within two years from the date of filing (by way of example, the oldest opinion issued thus far during the Court’s present term was handed down 557 days after cert. was filed, and the oldest opinion issued during the Court’s 2006 term took 703 days to issue from cert. filing to opinion issuance). One explanation for this discrepancy is that each SCOTUS Justice has double the amount of law clerks in his chambers than do SCOTX Justices.

Recently, the Executive Director of Texas Watch, Alex Winslow (who is not a lawyer but does possess a bachelor’s degree in government), responded to an excellent op-ed penned by the Court’s Staff Attorney for Public Information that called into question the methodology employed by Texas Watch in conducting its research. Specifically, the Court’s staff attorney pointed to:

One watchdog—using numbers and a methodology it did not explain—calculated the time the court took to dispose of petitions at a few days shy of a year in the 2007 term. The OCA report to the Legislature puts that figure at 158 days—about 40 percent of what the watchdog stated it was.

The organization’s calculations determined the court took an average of 852 days last term to resolve cases from the filing to the opinion. OCA determined that figure was 700 days.

In his op-ed, Mr. Winslow responded to the inaccuracies in his group’s report by stating:

[SCOTX's] taxpayer-funded spokesperson has attempted to assail our methodology and questioned our motives (”Court watchdogs getting facts wrong,” Thursday). Clearly, the [C]ourt is uncomfortable with the public scrutiny it has received in recent months.

* * *

Our research found that it took an average of 28 months for the [C]ourt to resolve a single case. The [C]ourt’s spokesperson claims it was 23 months. We stand by our research as accurate, but no matter how the [C]ourt wants to slice and dice the statistics, the bottom line is that it takes far too long for the [J]ustices to complete their business.

Perhaps Mr. Winslow can indulge us a little more “slic[ing] and dic[ing],” but the data relied upon by the Court’s “taxpayer-funded spokesperson” was not his own, but the OCA’s, which is the state agency statutorily mandated under Chapter 72 of the Texas Government Code to keep accurate statistics regarding the efficiency of the Texas judicial system. See, e.g., TEX. GOV’T CODE ANN. § 72.082 (Vernon 2005). And the “spokesperson” to which Mr. Winslow dismissively refers is a former appellate attorney–something Mr. Winslow has never been–who has long served the Court both ably and faithfully despite being woefully underpaid and misguidedly rooting for an obscure basketball program in the Pacific Northwest.

The OCA has no vested interest in shading the data one way or the other, their only concern and statutory duty is to accurately convey the current statistical state of the Texas courts to the branch of government that funds them, the Texas Legislature. What accountability infrastructure is in place to ensure the accuracy of Mr. Winslow’s data? Oh, that’s right, Mr. Winslow. Or perhaps the one attorney on the Texas Watch staff, who has been licensed all of four [whole] years.

As to the length of time it takes to issue SCOTX opinions in general, while admittedly too long by most any measure, I’ll defer to Justice Scalia’s excellent explanation of the job of an appellate court of last resort: “I’m not about to do justice for your client at the expense of creating injustice in hundreds of other cases that will never come before me that I will never see.” His point–analogized to Texas–is that the citizenry of Texas would likely prefer their Supreme Court Justices to be deliberate and thoughtful in crafting their opinions so as to prevent the inadvertent imposition of injustice in numerous lower court decisions that would subsequently rely upon a quickly-drafted yet necessarily slapdash opinion.

For the third time, we’ll reiterate that we agree that SCOTX take a long time to issue its opinions. But in pointing to this obvious concern, if Texas Watch were truly “nonpartisan” as it claims, it would acknowledge–as the Court’s staff attorney did–that during FY 2007, the Court managed to issue the greatest number of opinions since 2000 and the second highest number of majority opinions since 1999, all while operating with the equivalent of eight justices for almost two years between December 2000 and August 2005 due to Court turnover. It might also point out that, while an average of 700 days pendency is nothing to brag about, that is much better than it has been historically–by over a 1,000 days. See Stayton & Eubank, A Study of Pendency in Texas Civil Litigation, 33 TEX. L. REV. 70, 81 (1954).

If anyone is interested in reviewing the actual, accurate, and vetted data regarding SCOTX’s docket, go here to the OCA’s publication page to view the annual reports going back to 1996.

Thx to SCOTX for continuing to address this concern, and the Texas Appellate Law Blog

 

SCOTUS confirms: Don’t Mess with Texas

Two days ago, SCOTUS decreed that neither the President of the United States nor the International Court of Justice (ICJ) are constitutionally permitted to mess with Texas. I’m glad the Court finally came around.

In 2004, the ICJ handed down its judgment in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31), which held the U.S. violated the Vienna Convention on Consular Relations (the “Convention”) by failing to inform fifty-one Mexican nationals of their Convention right to request assistance from the Mexican consul. The Avena court, which was comprised of “President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, [and] Tomka,” held the U.S.–by virtue of its violation of the Convention–was obligated to “‘provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican [affected] Mexican nationals.’” Medellin v. Texas, No. 06-984, slip op. at 3, 6 (2008 ) (quoting Avena, 2004 I.C.J. at 72).

In Medellin v. Texas, one of the questions Chief Roberts addressed was whether:

the [ICJ's] Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

Id. at 8. Despite Justice Breyer’s contention in his dissent (joined by Souter and Ginsburg, J.J.) that the majority “look[ed] for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language),” the majority “confess[ed] that we do think it rather important to look to the treaty language to see what it has to say about the issue” because “[t]hat is after all what the Senate looks to in deciding whether to approve the treaty.” Id at 18. Because not even Medellin himself nor any of his amici could “identif[y] a single nation that treats ICJ judgments as binding in domestic courts,” Chief Roberts concluded that “[n]othing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of [the ICJ] a higher status than that enjoyed by ‘many of our most fundamental constitutional protections.’” Id. at 27.

Medellin’s second argument was that a February 28, 2008 Presidential Memorandum issued by President Bush, in effect, made the Avena judgment the “law of the land.” Id. The President’s memo directed the Attorney General to instruct the “State courts [to] give effect to the [Avena] decision in accordance with the general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.” Id. at 7 (quoting President’s Memorandum, __ PUB. PAPERS __ (Feb. 28, 2005)). However, the majority disagreed, observing that:

[While t]he President has an array of political and diplomatic mean available to enforce international obligations, … unilaterally converting a non-self-executing treaty into a self-executing one is not among them.”

Id. at 30. The Court concluded by reaffirming that constitutional “authority allows the President to execute the laws, not make them.” Id. at 37.

Thx to the Medellin majority and How Appealing

 

TxDO’h

Seeming to finally tire of nonsensical fiscal explanations offered up by TxDOT as to why it can no longer perform its statutory duties without the financial beacon of toll roads, Lieutenant Governor David Dewhurst and Speaker Tom Craddick sent this letter Tuesday to the State Auditor asking him to initiate “a comprehensive review” of TxDOT’s “questionable accounting procedures.” Among the irregularities were TxDOT’s projection of a $3.6 billion shortfall by 2015 without accounting for some $8 billion in already-approved road bonds, its claim of 60% increase in highway costs between 2002 and 2007, and its admission of $1 billion “error” in its budget forecasting.

Thx to Lt. Gov. Dewhurst, Speaker Craddick, and Texas Politics

 

If you weren’t lucky to be one of the 100 folks drawn for a ticket to attend tonight’s Obama-Hillary debate …

Then, here are the best places to watch it in Austin.

From personal experience, there is no better place to imbibe alcohol while simultaneously drinking in political theatre than at the Cloak Room, just off the Capitol grounds by the loading dock. For something a little more upscale (and bigger), my favorite politico bar is at the Stephen F. Austin hotel (the Intercontinental for those of you non-locals).

*** Places That Are Definitely Showing It ***

Sholz Garten
Official Barack Obama Watch Party
1607 San Jacinto Blvd
(512) 474-1958

Guero’s
Official Hillary Clinton Watch Party
1412 S. Congress Ave.
(512) 447-7688

The Side Bar
602 E Seventh St
(512) 322-0697
Yes, and Republicans welcome

Mother Egan’s Irish Pub
715 W Sixth St
(512) 478-7747

The Cloak Room
1300 Colorado St
(512) 472-9808
“Of course we will!”

Stephen F’s
701 Congress Ave
(512) 457-8800
Upstairs at the bar

The Tavern
912 W 12th St
(512) 320-8377

The Dog & Duck Pub
Corner of Guadalupe & 17th Street
406 West 17th Street
(512) 479-0598

Third Base Austin
1717 West 6th Street
Building 2, Suite 210R
(512) 476-2273

Texas Union Ballroom
Hosted by UT Democrats
Starts at 5:30pm - live music, free t-shirts, free food

*** Places That May Show It, But Call Ahead ***

The Brown Bar
201 W Eighth St
(512) 480-8330
“On and off throughout the night”

Tiniest Bar in Texas
817 W 5th St
(512) 902-6177
“Maybe”, but seemed lukewarm to the idea

MugShots
407 E Seventh St
(512) 236-0008

Aussie’s Volleybar and Grill
306 Barton Springs Rd
(512) 480-0952
“We’ll put it on one of the TVs if you wanna come and see it, yeah”‘

Bout Time Bar
9601 N IH 35
(512) 832-5339

Opal Divine’s Penn Field
3601 S Congress Ave
(512) 707-0237

Doc’s Motorworks Bar & Grill
1123 S Congress Ave
(512) 892-5200

Joe’s Bar & Grill
506 West Ave
(512) 473-0885
“Maybe”

Thx to the Austinist

 

“I’d rather have an electric chair named after me” than a toll road

[my apologies on the NSFW picture below, but it was too perfect to pass up]

So says my favorite Texan singer/songwriter, Willie Nelson, in a recent interview with conspiracy-minded talk show host Alex Jones in response to an effort last Session by former Sen. Barrientos to name a toll road after Willie. The interview with Jones regrettably also touches upon the ridiculous and despicable 9/11 truther nonsense, into which Willie has apparently now bought.

Nonetheless, no matter how much dope Willie smokes or what crackpot theories he endorses, Willie will always be the man in my mind, and I couldn’t agree more with him on his disdain for the questionably-legal adventure in toll road construction to which Central Texas is currently being subjected.

Thx to Willie and (can’t believe I’m saying this) Alex Jones

 

Behold, your new license plate

There it is in all its glory folks, the winner of TxDOT’s online poll. Not really all that bad, on the whole, particularly considering what we’ve been forced to tote around the last few years (see below). However, I think the best license plate we could have would be our state flag in the background, but apparently that is too droll for the livewire’s down at the DMV.

Thx to the Stateman and TxDot for letting us vote on it this time

 

Former House Parliamentarian lands at Baker Botts

Denise Davis, former House Parliamentarian who–along with her deputy Chris Griesel–resigned in protest at the end of the 80th Session due to Speaker Craddick’s disregard of their parliamentary advice and his assertion he did not have to recognize a privileged motion from the floor (which just so happened to be a motion to replace him as Speaker), will practice as Special Counsel in the Legislation and Policy practice group with Baker Botts’ Austin office.

No word on whether Chris Griesel, an appellate and parliamentary expert, will join her there.

Thx to Texas Politics (the blog, not the damnable thing)

 

TAB summary judgment denied

In a letter ruling his past Friday, Travis County Judge Joe Hart denied Texas Association of Business (TAB) President Bill Hammond, former board member Mike Toomey, and TAB staff lobbyist Jack Campbell’s motions for summary judgment in a case brought by Democrat legislators against the TAB defendants, as well as some thirty corporate donors, for what the lawmakers claimed were violations of state elections laws in the 2002 general election. Judge Hart explained that he denied the TAB defendants’ motions for summary judgment because a fact question existed as to whether their collaboration and actions would qualify them as a political action committee.

Judge Hart granted the coporate donors’ motions for summary judgment however, removing any deep pockets from the list of defendants—a fairly fatal blow to most lawsuits.

Thx to the Statesman and Paul Burka

 

Chancellor Hance ribs Senator Hutchison

Arriving at Texas Tech University to speak on creating more tier one research institutions in Texas, Senator Kay Bailey Hutchison was introduced by newly-appointed TTU Chancellor Kent Hance (who, by the way, holds the distinction of being the only person ever to have defeated 43 in an election).

In introducing Sen. Hutchison, Chancellor Hance couldn’t resist ribbing her on her alma mater’s research prowess, which recently produced a study on people’s sexual habits. Hance said the University of Texas study found people have sex because they’re attracted to each other, adding with his West Texas drawl, “[w]e’d have never guessed that.”

Thx to Texas Politics and Chancellor Hance

 

Specter is swimming in intellectual waters too deep for his cognitive floaties

Sen. Arlen Specter, of Senate Judiciary Committee infamy, has apparently pledged to review the “record” of Chief Justice John Roberts and Associate Justice Samuel Alito during their first full term on the Bench, in an attempt to devise whether their nomination testimony supporting the concept of stare decisis has been borne out in practice.

Where to begin with this stupidity? Everywhere but Pennsylvania apparently, it goes without saying that it would be entirely improper (and asinine) if SCOTUS nominees could somehow be expected to bind their future votes on issues before the Court by the testimony they give at a nomination hearing, no matter what the topic. How could it not be unconstitutional if the Legislative Branch could control the actions of the Judicial Branch via the nomination mechanism?

I really just wish that Sen. Specter would stop pretending to be a great jurist (which he has never been—great, nor a jurist, that is), and instead simply accept the fact that the ones he presumes to “know better” of, operate on an intellectual plane traveling at both higher altitude and greater speed than Specter’s cognitive Cessna.

Thx to the Politico