Questions We Shouldn't Have To Ask

by hilzoy
You may recall that a few weeks ago, I quoted Paul Krugman, who asked: what about all those US Attorneys who didn't get fired? What did they do to keep their jobs? Here's one case that might be part of the answer:

"In a stunning reversal, a federal court of appeals struck down a state worker's fraud conviction that Wisconsin Republicans used in efforts to paint Gov. Jim Doyle's administration as corrupt.

Attorneys on both sides of the case said the three-judge panel likely overruled the trial jury's conviction of former state purchasing officer Georgia Thompson within hours of oral arguments due to a simple lack of evidence.

The decision by the 7th Circuit Court of Appeals in Chicago, which will explain the judges' reasoning, was not immediately available.

"I have to say it strikes me that your evidence is beyond thin," federal Appeals Judge Diane Wood told prosecutors. "I'm not sure what your actual theory in this case is."

The court heard arguments in the case Thursday morning and then ordered a trial judge to free Thompson from a federal prison in Illinois, which she entered in November.

Thompson was a civil service employee last year when she was convicted of fraud after being accused of steering a state travel contract to a firm whose top officials were major campaign contributors to Doyle."

I gather that it is very, very unusual for an appeals court to reverse immediately, and order that the defendant be released from jail the same day. (I went looking for the opinion, which does not seem to have been issued yet; I found the order reversing her conviction, which says, among other things: "The United States must make arrangements so that she may be released before the close of business today." The justices do not seem to be in the mood to tolerate delays.)

Here's something else about this case (from the same article):

"Thompson's conviction was used to batter Doyle during his successful re-election campaign last year. Republican challenger Mark Green and allies blasted the governor for the case in television ads.

Thursday, Doyle praised the appeals court ruling but saved his strongest words for what he called "sensationalized media reports and partisan attacks" on his administration that turned Thompson into a "political football."

"This conviction was a terrible injustice," Doyle said. "Georgia Thompson is an innocent woman who was imprisoned for more than four months just for doing her job. It is great for her that the Court of Appeals has taken this extraordinary action so she does not have to spend one more night in prison.""

We do not know that this was a politically motivated prosecution. But we do know the following: Thompson was indicted and convicted during an election year. Her case was used as a political issue by the Republican candidate for governor. The evidence against her was so thin that the Court of Appeals reversed immediately and ordered her released the same day, which I gather it very rarely does. And the US Attorney who brought the case was not among those asked to resign.

Oh, and we also know this: Georgia Thompson just spent months in jail as a result of this prosecution.

We should not have to ask whether US Attorneys bring cases for political reasons. But we do.

Comments

[J Thomas]

We do not have to ask whether US Attorneys bring cases for political reasons.

They do.

[Brian]

We also need to ask ourselves, how did a jury convince themselves that she was guilty beyond a reasonable doubt, if the evidence was so thin?

[Brett Bellmore]

Alternatively, this may be a case of a politically motivated reversal. Or just one of those routine cases where prosecutors get overly enthusiastic about weak cases. (Apolitical convictions get overturned, too, you know.) What with the jury being willing to convict on the "thin" evidence and all, I'll be interested to see what the basis for reversal was, once the decision is released.

[Jesurgislac]

Brett: As Fred Clark at Slacktivist pointed out earlier

The other 85 U.S. attorneys apparently may have been retained because they are loyal Bushies -- because they did allow partisan politics to set their agendas, because they were sufficiently zealous in going after Democrats while not prosecuting Republicans. Those eight firings, in other words, have cast suspicion on every U.S. attorney who wasn't fired.

Suggest you read the whole post at Slacktivist: well worth it.

[CharleyCarp]

Brian, much of the legal system is based on the proposition that a jury is likely to convict even when there is inadequate evidence. The reason we have judges dismiss cases where there is insufficient evidence (or grant directed verdicts or summary judgments in civil cases) rather than let the jury consider every case is because we're afraid they'll get it wrong. (Fear of wasting their time is a lesser consideration, imo). This applies to appellate review of a failure to grant such a motion as well. Appeals courts do not take the jury verdict into account where deciding whether or not a motion for directed verdict should have been granted (except for the sure knowledge that if the jury had agreed with the appellant, the case wouldn't be on appeal).

Jurors decide issues of disputed fact. They don't decide whether some particular set of facts do or should constitute a violation of the law.

[CharleyCarp]

And Brett, we can expect judges appointed by Presidents Reagan and Nixon to reverse for political motive? (Even granting the Clinton appointee, this seems thinner than thin.)

[von]

We also need to ask ourselves, how did a jury convince themselves that she was guilty beyond a reasonable doubt, if the evidence was so thin?

CharleyCarp's comments are correct. A trial court judge or a panel of appellate judges (usually 3) can find for a party as a matter of law, regardless of what the jury decides. I've also seen some really stunning decisions by juries -- invariably pro-plaintiff or pro-prosecution. We say that the plaintiff or prosecutor has the burden of proof, but that's not always the way it goes -- particularly if the plaintiff or prosecutor has an emotional case.

Incidentally, this order is remarkable and the panel included Judge Easterbrook, who is not a liberal of any stripe.

[von]

Alternatively, this may be a case of a politically motivated reversal.

Brett, the three judge panel did include a Clinton appointee, Diane Wood. The other two judges, however, were Frank Easterbrook, one of my favorite judges and a Reagan appointee, and William Bauer, a Ford appointee.

[Anarch]

Generally word on the street here is precisely that this was a politically motivated hit-job... but given the street here, that's not terribly surprising. Take it for what it's worth.

[Anarch]

See here for the putative details. While the JS tends to be pretty reliable, I'd warn against considered the matter confirmed for another few days, at least.

I should add, btw, that the Biskupic family -- Steve, the Attorney who prosecuted Georgia Thompson, and Vince, his brother -- already have a history of shady dealings. I have to get back to work, but a quick trawl through the CapTimes and JSO should pull up some interesting stories on Vince and his prosecutions.

[If anyone can't find'em, give me a holler and I'll hunt them down this evening.]

[john miller]

Anarch, didn't you know that the Journal Sentinel is one of the most biased, liberal papers out there. A true mouthpiece of the Democratic Party. (At least that is what Charlie Sikes always says on his radio show).

[JP]

You can listen to the oral arguments by clicking here and then clicking on the "Past Week" button. The panel really took the AUSA to the woodshed on this one.

Easterbrook is not only a Reagan appointee but one of the most well-known conservative judges in the entire country. (Here's a link to Randy Barnett in the National Review including Easterbrook along with Robert Bork, Miguel Estrada and others on a list of quintessential conservative judges.) The suggestion that he might be part of a hit-job on the Republican Party is so ignorant that it displays a complete lack of concern for the truth of the Harry Frankfurt variety.

[Jesurgislac]

With reference to JP's comments about Easterbrook, it reminds me of what Hilzoy said in one of her first posts on the issue: it actually makes you appreciate conservatives like John Ashcroft, who were undoubtedly wingnuts, but who did evidently still have some values beyond being a loyal Bushie.

[freelunch]

Since we don't actually have the decision yet, we get to speculate more than usual here, but it seems that the opinion is going to excoriate the trial judge every bit as much as the US Attorney's office. The discussion implied that Biskupic prosecuted Thompson on a criminal charge that isn't tied to any actual law. If that is the case, I expect the judge to get plenty of heat for allowing the case to go forward.

[CharleyCarp]

Funny: wiki says that Judge Bauer was nominated by President Nixon. Von's right, though, his nomination to the Circuit was made by President Ford. Under Nixon, Judge Bauer was first a US Attorney, and then a district judge in the ND Illinois.

[CharleyCarp]

C'mon guys, isn't the notion that Chief Judge Easterbrook has gone over the wall, and become a liberal just so appealing?

[Erasmussimo]

Yes, the two questions in my mind are:

1. Why did the jury convict? How is it possible that the appellate court would find no evidence, and the jury find evidence "beyond a reasonable doubt"? The contradiction here is glaring. I really want to read the appellate court opinion on this.

2. Why didn't the judge issue a directed verdict? Was there political bias here as well?

This is a very disturbing and confusing case.

[Edward_]

The question of why she was convicted the first time around is a good one, in my opinion, as well as why Doyle was so quick to distance himself from Thompson back then. Almost as quick as he was to embrace her after this last development.

No one looks good in all this.

I'd be careful of reading too much into this case just yet. It contributes, as Hilzoy notes, to the sad commentary that we no longer trust our US Attorneys, but it doesn't seem clear-cut one direction or the other with regards to wrongdoing here.

[Steve]

it actually makes you appreciate conservatives like John Ashcroft, who were undoubtedly wingnuts, but who did evidently still have some values beyond being a loyal Bushie.

Let's not celebrate John Ashcroft's non-hackishness just yet:

Many of those who have Regent law degrees, including Goodling, joined the Department of Justice. Their path to employment was further eased in late 2002, when John Ashcroft , then attorney general, changed longstanding rules for hiring lawyers to fill vacancies in the career ranks.

Previously, veteran civil servants screened applicants and recommended whom to hire, usually picking top students from elite schools.

Yes, let's change the rules so we can hire more people from Pat Robertson's law school instead of those icky places like Harvard and Yale. Even if this move was attributable to Ashcroft's fundamentalist Christian views as opposed to, say, a desire to stack the DOJ with loyal Bushies, is that really something we should give him credit for?

[john miller]

Edward: "The question of why she was convicted the first time around is a good one, in my opinion, as well as why Doyle was so quick to distance himself from Thompson back then."

This is not a defense of Doyle, rather it is a comment on politicians in general. It appears that the higher the level of elected official, the quicker he/she is to distance themselves from anyone accused of bad behavior. And it doesn't really matter which party we are talking about.

There are the rare exceptions of ones who stand by their associates but these instances are becoming rarer. This is probably due to the reality that, in this country and in this era, someone accused of something is generally considered to be guilty, if not of the crime for which they are accused, at least something.

And there is a major practice of the whole "guilt by association" thing.

[CharleyCarp]

Eras, there's nothing disturbing or unusual about an appellate reversal of a conviction. Or, more properly, an appellate reversal of the failure to grant a motion to acquit. We have appellate courts because trial courts make mistakes, in, among other areas, questions of what evidence is admissible, or what evidence is sufficient to carry a criminal conviction.

What's extraordinary here is the speed with which the release was ordered -- and I wouldn't say that even that is disturbing.

Looking at Judge Bauer's bio a little fursther, I see that he was a prosecutor (and then state court judge) for nearly 20 years before Nixon brought him into the federal system as a USA. The government can well have considered this panel, when they arrived for oral argument last week, as a very good draw. (When I argued in the 7th in '03, you didn't find out who your judges were until the morning you arrived. I suppose it is the same still).

[dmbeaster]

And I thought it was only liberal judges with their loosey-goosey squishy standards that politicized the law.

Looks like liberals still have a thing or two to learn from the true masters of the art.

[Jesurgislac]

Steve, I think you missed the point of my comment: I didn't exactly like or approve of John Ashcroft when he was in office, but I was thinking of the fact that he recused himself in the Plame case - and a quote from him that Hilzoy flagged:

One of the fired prosecutors, quoted in the NYT: "He said he had been guided by a personal admonition from former Attorney General John Ashcroft shortly after he was appointed in 2001. “He took me into his office and said, ‘David, when you come here, you’ve got to stay out of politics.’ ”)

It's a measure of how bad Gonzales is that I could feel nostalgic for Ashcroft.

[von]

Since we don't actually have the decision yet, we get to speculate more than usual here, but it seems that the opinion is going to excoriate the trial judge every bit as much as the US Attorney's office. The discussion implied that Biskupic prosecuted Thompson on a criminal charge that isn't tied to any actual law. If that is the case, I expect the judge to get plenty of heat for allowing the case to go forward.

Well, this is interesting: The Judge was Chief Judge Randa (GHW Bush appointee). I actually interviewed with Judge Randa for a clerkship when I got out of law school. I didn't get it, but Judge Randa struck me as a very decent, hardworking guy.

[dmbeaster]

It is sad that it is necessary to measure the alleged political proclivities of the appellate court judges in order to assess the decision. And conservative judges like Easterbrook give conservatism a good name.

At the end of the day, this is another example of how conservatives either get their act together and discipline their own, or lose relevance due to the taint of this corruption. You can't define your ideology based on loyalty oaths to the leader de jour.

[Edward_]

There are the rare exceptions of ones who stand by their associates but these instances are becoming rarer.

Yes, but sadly, the only high-profile exception of late is the White House's support for Libby. When you look bad in comparison to the WGB White House, you really need to reconsider how you're conducting your politics.

[Edward_]

Yes, I meant GWB...

[freelunch]

I didn't get it, but Judge Randa struck me as a very decent, hardworking guy.

I haven't heard any general problems with him. Sometimes a case just goes off the rails for everyone concerned. Listening to the oral arguments, one gets the idea that the appellate court was mortified that the prosecution was done merely because the US Attorney's office said the action was a crime.

It was almost as if they knew they were going to free Thompson, but were polite enough to give the US Attorney's office one last chance to justify calling this action a crime. Repeatedly, the AUSA was asked what the actual crime was. Repeatedly the AUSA appeared to be completely flummoxed by the question. Clearly, the US Attorney's office didn't manage to explain to some of the best judges in the country, exactly what was being done, or, as importantly to the appellate panel, how a state employee could avoid the risk of prosecution in any such contracting case.

I think the problem for the trial judge was that he bought the entire theory of the case without reviewing prior decisions or considering any implications of the prosecution. That doesn't make him a bad judge, just as this misguided prosecution doesn't make the US Attorney's office for ED Wisc. purely political. It only asks us to look more closely. That is what I expect Easterbrook's panel to do.

[Anarch]

A true mouthpiece of the Democratic Party.

Shows what Sykes knows: the JS is usually to the Democrats' left ;)

BTW, should I take it from your familiarity with Sykes that you're out here in the cold cold Midwest? Possibly even the Cheesehead State herself?

[Anderson]

Repeatedly, the AUSA was asked what the actual crime was. Repeatedly the AUSA appeared to be completely flummoxed by the question.

Wow. The 7th Circuit isn't terribly shy about calling out attorneys in its opinions, either. They'd best be a-hopin' and a-prayin' that Easterbrook (aka "The Smart Easterbrook") doesn't write the opinion.

As for the trial judge, they're often only as good as the attorneys in front of them. What I would want to know is, what legal issues did Thompson's lawyers raise at trial? Did they bring the problems to the judge's attention?

[john miller]

Anarch, the Chicago area is my home, but my formative years were spent in the Fox Valley just south of Green Bay. Also lived in the Milwaukee suburbs for a while. Used to listen to Sykes a lot when he was somewhat rationale.
Don't that much anymore, mainly because I start yelling at the radio.

[Brian]

CharleyCarp, I think that's a good reason, then, for every one of us who might be jurors to question the entire system. Jurors are supposed to be a final check, not an enabler.

I've got a lot of sympathy for the theory of jury nullification ... I don't believe the role "finder of fact" is a particularly good one for juries.

[freelunch]

What I would want to know is, what legal issues did Thompson's lawyers raise at trial? Did they bring the problems to the judge's attention?

I'm not sure the judge was willing to listen to them that day. He denied Thompson bail pending appeal. Bail is routinely granted in white collar appeals. He denied it because he said that Thompson had no chance on appeal.

Sometimes, judges have bad days.

[JP]

Jurors are supposed to be a final check, not an enabler.

I don't think this is correct. Juries are supposed to be one of an interlocking network of checks. They may have their flaws as finders of fact, but it's not clear to me that there's a better alternative.

[CharleyCarp]

I've got a lot of sympathy for the theory of jury nullification

I don't. Nullification plus double jeopardy means that popular law breakers -- people who kill civil rights workers in 1963 Mississippi, for example -- get off. I'm the only person in America, it seems, who didn't follow the OJ trial close enough to say whether that was nullification. The fact that some people think it was, though, is corrosive of the rule of law.

I have plenty of respect for the jury system, and am in no hurry to change it. This is not inconsistent with a whole array of ways in which our system is designed to avoid jury consideration of this, that, and the other thing. (Rape shield laws, for example -- surely you don't think male jurors who 'nullify' on the thought that 'she was asking for it wearing that outfit' are worthy of sympathy. This is what nullification is in our age, not the Fugitive Slave Act.)

[von]

I don't. Nullification plus double jeopardy means that popular law breakers -- people who kill civil rights workers in 1963 Mississippi, for example -- get off.

I second that. Most of the problems that I've seen with the juries getting it wrong is the fact that jurors forget that they are there to find facts -- not to "do justice." Jurors don't do justice. They can't, because they can't possibly understand all of the issues in the case, the careful balancing between rights of accused and rights of state, and the 1001+ legal disputes. Nor is it easy to separate what emotionally seems right from what is just.

No one part of the process should be preeminent -- not the judges, not the jury, not the lawyers. Twelve (or six, for most civil juries) people can be very good at finding the facts. If they are also conscientious about applying the law as given to them to those facts, there's a real shot that the process will produce justice.

[Sebastian Holsclaw]

"It's a measure of how bad Gonzales is that I could feel nostalgic for Ashcroft."

You didn't like his politics, but he was a professional. Interestingly enough he was viciously attacked at the time. But he is the kind of conservative you should want around if conservatives are ever permitted to win elections.

[Edward_]

But he is the kind of conservative you should want around if conservatives are ever permitted to win elections.

I'd prefer the Barry Goldwater kind of conservative...if conservatives are ever permitted to win elections, but...ask yourself when was the last time a true liberal was permitted to win an election, before you ring in that BG wasn't a true conservative.

[Jesurgislac]

I didn't like his politics because his politics directly included turning people like you into second-class citizens, Sebastian. Why would I want someone like him around? Even if you don't care about being a second-class citizen in the US, and by your own politics evidently that isn't something that bothers you, I have enough friends in the US whom Ashcroft made publicly clear he wanted to denigrate or destroy that I would never want "someone like him around".

As I said, it's a measure of how bad Gonzales is that even Ashcroft looks good by comparison.

[Steve]

Here's another must-read about that honorable conservative, John Ashcroft, and most particularly what his priorities were after 9/11. If he's among the best of the lot, then people fear the lot with good reason.

[Sebastian Holsclaw]

Working yourself up to 'destroy' is part of the problem dontcha think? And since when is assisted suicide such a clear cut case that opposing it automatically makes one a monster?

[trilobite]

I would be very amused to see an Easterbrook opinion about this one. And unlike Easterbrook, Diane Wood is a nice lady, not given to abusing litigators. For her to say "it strikes me that your evidence is beyond thin...I'm not sure what your actual theory in this case is," is kind of like hearing your average Sunday School teacher cuss out a student in class. Maybe not quite that bad, but close. Especially considering she's saying it to a prosecutor. "Conservative" or not, judges tend to be very sympathetic to prosecutors.

BTW, Hilzoy, I'm sure Judge Wood appreciates the promotion. :)

[trilobite]

Sebastian, Ashcroft going after medical marijuana users and suicide-assisters reminded me of Abbie Hoffman's comment, "the FBI at that point had about 10 guys on my case, all crime in America having been solved." Granted these are crimes, they are so penny-ante that it was a pretty biased use of federal resources.

[Steve]

You can have whatever opinion on assisted suicide you like, but it's absurd for the Attorney General, a few short weeks after 9/11, to be wasting his time unilaterally working his way around a state assisted suicide statute. At a time of national crisis, a true public servant should devote his time to advancing the people's agenda rather than his own personal crusade. And I doubt very many people spent the weeks after 9/11 thinking, "When are we going to do something about assisted suicide?"

[jrudkis]

Prosecutors by their very nature attack the Constitution everyday. It is the job of a prosecutor to strip as much protection as possible from the bill of rights so that any and all evidence can be used against a defendant.

Have you ever read an argument by a prosecutor that a constitutional right should be strengthened? A good day for any prosecutor is when they skirt the Constitution and get questionable evidence admitted in court.

So, I for one will never be surprised by cases where prosecutorial zeal leads to unfair, unreasonable, and illegal convictions.

[Ugh]

And I doubt very many people spent the weeks after 9/11 thinking, "When are we going to do something about assisted suicide?"

Well, if we could just have kept those planes away from them...

[Jesurgislac]

Sebastian: And since when is assisted suicide such a clear cut case that opposing it automatically makes one a monster?

Other people have mentioned the triviality of the issue: I'll say that to anyone who ever had to watch someone they cared for approaching an inevitable and painful death, if that person wants to die swiftly and painlessly now and avoid the horror to come, yes, opposing that makes you a monster. But then, given Ashcroft's politics, we already knew he was a monster.

[rilkefan]

"opposing that makes you a monster"

The highly humane Rivka of the Otters has a different view of this. Anyway, it seems to me the first argument here ought to be consistency on states' rights.

[Hob]

Don't forget, too, that it was Ashcroft's DOJ that used 9/11 as an excuse for mass arrests of immigrants (documented and undocumented), rushing to deport some for the slightest past offense, and throwing others into our own little domestic Guantanamo.

[John Thullen]

trilobite: "reminded of Abbie Hoffman's comment ..."

Which reminds me of John Lennon's comment about his persecutors from about the same time: "Time wounds all heels."

[Sebastian Holsclaw]

Well I guess I'm not unused to being called a monster here. Whatever.

[hilzoy]

If anyone calls Seb a monster (I can't find the original comment, so I don't know who did, if anyone), I will be -- well, I might derail like a train and find myself banning someone.

Just saying.

[Bruce Baugh]

The crucial things about Ashcroft's campaign against the Oregon assisted-suicide law are, as far as I'm concerned: it came bundled with attacks on medical marijuana laws, and therefore as part of a conspicuously anti-federalist crusade to expand the power of the national government; the Oregon law was carefully drafted and dealt with many of the real problems that had turned up in earlier efforts; it would in any event not have been applied promptly or to very many people when it did take effect; by the Justice Department's own reports, money was taken away from anti-terrorism efforts to fund the crusade.

I approved of the Oregon law, and still do. I don't think it's an open-and-shut case, and I could see a reasonable argument for preparing some kind of challenge to it. But it was part and parcel of a power-grabbing sacrifice of attention to real problems for the sake of a particular flavor of moralism.

(I'm actually a lot harsher and nastier about efforts to keep people with medical needs from getting marijuana under well-administered programs with accountability for supply and distribution, such as the one Oregon had. That really is pretty clear-cut to me: it's keeping people in unnecessary pain and disability because of prejudices about what other sorts of marijuana users are up to, and that's evil. Assisted suicide - even though I strongly support it myself, as do my parents - is too complex a matter to be anything like that obvious, and very much dependent on specific implementations.)

[Sebastian Holsclaw]

I'm completely open to the federalist argument that the US government ought to have nothing to say about the matter. I'm not open to the argument that assisted suicide is such an open and shut case that anyone who disagrees should be automatically dismissed.

[Sebastian Holsclaw]

In fact, I'll be more clear. I am not friendly to assisted suicide--short version of the argument is that people are often willing to stretch just past the law. On something so sacred as snuffing out someone's life, I'm not interested in drawing the law right at the very edge of tolerable (I believe the same thing about torture and practices that come near to torture). Prosecutorial discretion and jury nullification have on balance worked very well in policing the border of this issue, and have kept it toward 'barely assisted suicide' which is what I would tend to want.

Nevertheless I also strongly believe that in the historical structure of our system, that is clearly a state-level choice to be made, and the federal government should butt out.

I feel almost the opposite about medical marijuana. I feel the case for allowing it is very clear, but under modern theories of the commerce clause, all grown or cultivated marijuana clearly can be in the purview of the federal government. I strongly disagree with the nearly unbounded definition of theh commerce clause, but under current Constitutional law, it is fairly clear that the federal government can regulate in that area.

[Bruce Baugh]

Sebastian: I wish I didn't have to agree with you about federal regulation of marijuana and the commerce clause but, yeah, the power's clearly there at this point. It would have been a good occasion for the exercise of prosecutorial discretion, since obviously the Justice Department doesn't go after every conceivably justifiable case. "Can, but won't" is a nice position sometimes, and would have been compatible with Ashcroft's declared view on the distribution of power, except that it offended his personal taste.

[Katherine]

I think I basically completely agree with SH on both medical marijuana and assisted suicideI don't honestly care that much about federalism, which doesn't happen often.

I'm not precisely nostalgic for Ashcroft. He seems to have been more of a true believer; Gonzales is more of a yes-man who simply does what Bush wants. I have more respect for the former, but it can be just as damaging--it depends on the context and the specifics. Probably Gonzales is worse as AG; Ashcroft would be worse on the Supreme Court. I'm not 100% certain of Gonzales being worse at Justice, though, and hopefully we'll never know about the Court. The bottom line is that I don't want either of them near either position.

[Jesurgislac]

If anyone calls Seb a monster (I can't find the original comment, so I don't know who did, if anyone)

JFTR: Sebastian said that John Ashcroft wasn't a monster for opposing assisted suicide (or so I understood his comment): I disagreed.

Sebastian then took my comment - directed at Ashcroft - and did a "pity me, Jes thinks I'm a monster".

So, Hilzoy, if you're going to ban anyone for calling Sebastian a monster, it would be Sebastian. I don't think calling John Ashcroft a monster is against the posting rules, but I think picking up a comment directed at a public figure and saying "Oh, well, I believe the same as that public figure so this insulting comment is obviously directed at me!" bloody well ought to be.

[Jesurgislac]

Bruce Baugh: (I'm actually a lot harsher and nastier about efforts to keep people with medical needs from getting marijuana under well-administered programs with accountability for supply and distribution, such as the one Oregon had. That really is pretty clear-cut to me: it's keeping people in unnecessary pain and disability because of prejudices about what other sorts of marijuana users are up to, and that's evil. Assisted suicide - even though I strongly support it myself, as do my parents - is too complex a matter to be anything like that obvious, and very much dependent on specific implementations.)

Agreed, on both counts.

As (if Dutchmarbel were here) she would doubtless point out - in the Netherlands, in order to be allowed assisted suicide, you must be going to die anyway - and you have to be coherent enough to convince two doctors that this is your independent wish. I have read of instances of people whose wish for assisted suicide was turned down because they couldn't satisfy the stringent conditions involved.

In the UK, I gather from friends who have been through various harrowing experiences - and from public court cases, we have a kind of undercover assisted suicide: doctors who will prescribe doses of morphine they know are lethal to terminal patients, and cases sometimes of people (usually husbands or wives) who come before a court to be tried for murder and formally acquitted because it's accepted that though they killed their partner, they did it because their partner wanted to die and had the kind of Netherlands good reason to do so. And honestly, I think that the UK would be better off with an upfront law regulating assisted suicide, than this kind of under-the-counter stuff which is regulated only after the event.

[Bruce Baugh]

I should probably note that my views on assisted suicide are certainly shaped by being around people who are pretty fanatically attentive to advance declarations covering a lot of medical issues. My parents both made extensive preparations so that if one or both of them were suddenly incapacitated and unable to communicate their wishes, it'd be clear both to doctors and to those of us with power of attorney what they wanted done - when to use heroic measures and not, cremation plans, the whole deal. They got it all down in writing, with their lawyer making sure it was cast in proper form, and they talked to their primary doctors and to their children about their underlying intentions. This is one of the things that was a genuine comfort when Dad's brain cancer advanced enough that he could no longer reliably signal us with anything beyond a look and a squeeze of the hand - we knew what he wanted and we could tell him at each step that we knew, and were doing what he wanted, and we could see him visibly un-tense sometimes at the reminder.

With people like that, there's little question of shuffling them off the mortal coil deliberately or accidentally to suit any agenda but their own. But it's certainly true that many people aren't anything like that careful or clear, and there the risks shoot up fast. Rather than argue it out, though, I'll just say: it never hurts to make sure that your wishes for medical care are clearly expressed.

[Brian]

OK, I'm not -fully- convinced that jury nullification is the best idea -- I go back and forth on it. I stand by my intuition that juries are intended to be a check; I think the old adage about the guilty going free rather than innocents being imprisoned is something that is given too little heed in the court system. (Part of what makes the US prison rates as high as they are).

[Sebastian Holsclaw]

Jes, your comments were not formally directed at Ashcroft. They were directed at 'anyone who' in your typical closing off of disagreement style.

[Jesurgislac]

Sebastian: Jes, your comments were not formally directed at Ashcroft.

They were not, however, directed at you, and attempting to claim that they were and draw down the Wrath of Hilzoy strikes me as unfair argumentation.

[Sebastian Holsclaw]

I'm not trying to draw the wrath of anyone down on you. I'm pointing out that your comments were directed at all people who apparently don't share your view of assisted suicide, which absolutely does include me.

My point all along was that it is completely ridiculous to act as if assisted suicide is such a clear and easy issue that those who disagree with you can be dismissed as morally bankrupt or monsterous.

[Jesurgislac]

My point all along was that it is completely ridiculous to act as if assisted suicide is such a clear and easy issue that those who disagree with you can be dismissed as morally bankrupt or monsterous.

Monstrous, actually. (Sorry, proofreader check.)

It is also completely ridiculous to assume that you already know I am acting as if "assisted suicide is such a clear and easy issue" when I say I think Ashcroft is a monster for opposing the situation described in Steve's link:

In 1994, Oregon citizens approved legislation allowing doctors to assist terminally ill patients (i.e, patients who are reasonably certain to die within 6 months) who want to bring about a peaceful and painless death. In 1997, Oregon voters rejected a referendum to repeal the law. The democratic process in Oregon twice resulted in a judgment by its citizens that terminally ill individuals should be permitted to have the assistance of their physician in choosing a dignified and peaceful death.

Further, you first used the word "monster" on this thread: I picked it up in responding to your comment.

[Sebastian Holsclaw]

Who knew you were such a federalist?

[Sebastian Holsclaw]

That was too flip. Since the main problem with Ashcroft in that quote is that he is attempting to apply national regulations in opposition to a state regulation. Now I agree that in the United States as it was intended to function, it should never have been any of his concern. But in the US regulatory state that actually exists, federal law rules. The concern with federalism (to the extent that it implies that Ashcroft is a monster for trying to execute the national laws) is surprising coming from you.

[Steve]

But federal law doesn't rule with respect to the practice of medicine, or other areas that have traditionally regarded as matters of State concern. What Ashcroft did is use the fact that assisted suicide procedures incidentally involve the administration of drugs as a hook to ban assisted suicide through the federal drug laws.

If Congress had passed a law saying "no state may allow assisted suicide" then we'd have a question of federal supremacy. But there was no such law. This was strictly John Ashcroft's one-man crusade.

[Jesurgislac]

Sebastian: The concern with federalism (to the extent that it implies that Ashcroft is a monster for trying to execute the national laws) is surprising coming from you.

Wow, way to change the subject. I thought we were discussing assisted suicide?

[Gary Farber]

"But federal law doesn't rule with respect to the practice of medicine, or other areas that have traditionally regarded as matters of State concern."

That's not been the position of either the Bush administration, nor of the Republican Party, which is precisely why they've been insisting the reverse as regards assisted suicide, medical marijuana, Terry Schiavo, and so on.

"This was strictly John Ashcroft's one-man crusade."

Nonsense; the notion that Ashcroft was some sort of rogue off the reservation, doing it without the approval of the White House, is insupportable. Or maybe I don't know what you mean by "this."

[Steve]

Or maybe I don't know what you mean by "this."

Perhaps you should read the sentence you quoted in the context of the prior two sentences, where I pointed out that Congress had not sought to overrule state assisted suicide statutes.

Of course Ashcroft was not off the Republican reservation when he took this position. But the particular artifice he employed to overrule the Oregon statute relied upon a specific grant of legal authority - the Attorney General's power to schedule hazardous drugs under the Controlled Substances Act. Because he was opposed to assisted suicide, he misused this power to override the will of the voters of Oregon.

[Gary Farber]

"Of course Ashcroft was not off the Republican reservation when he took this position."

Okay, so you agree that "This was strictly John Ashcroft's one-man crusade" isn't correct. The saying isn't "the buck stops at the Attorney-General's office."

That's all.

[Steve]

You're making an entirely different point than I was; so yes, for purposes of your point, that wouldn't be an accurate statement. But for purposes of my point, it was one man misusing his legal authority and not, as Seb suggested, the federal lawmaking power trumping the states.

[gwangung]

But for purposes of my point, it was one man misusing his legal authority and not, as Seb suggested, the federal lawmaking power trumping the states.

And this was post 9/11, right? When there WERE other priorities?

[Steve]

And this was post 9/11, right?

It was just a few weeks after 9/11, which was really the heart of the point I was making. Under normal circumstances, for a conservative Attorney General to make a creative argument of this type wouldn't be a huge deal to me. But for our nation's chief law enforcement officer to view THIS, of all things, as a priority in the wake of 9/11 is troubling to me. Most of us wanted the government to be quite focused on the threat at hand.

[Sebastian Holsclaw]

"But for purposes of my point, it was one man misusing his legal authority and not, as Seb suggested, the federal lawmaking power trumping the states."

Except it is really weird to hear the liberals on this blog say this. He was acting completely in line with the standard liberal view of federal authority.

"Under normal circumstances, for a conservative Attorney General to make a creative argument of this type wouldn't be a huge deal to me. But for our nation's chief law enforcement officer to view THIS, of all things, as a priority in the wake of 9/11 is troubling to me."

I don't understand this objection at all. You are focusing on the near-endpoint of the legal journey which began well before 9/11.

"But the particular artifice he employed to overrule the Oregon statute relied upon a specific grant of legal authority - the Attorney General's power to schedule hazardous drugs under the Controlled Substances Act. Because he was opposed to assisted suicide, he misused this power to override the will of the voters of Oregon."

I don't understand this either. The federal government regularly acts to restrict certain dangerous uses of drugs. I'm all for letting this issue reside in state authority--but that is pretty much a non-liberal federalist argument that is very surprising to see here.

[Gary Farber]

"Except it is really weird to hear the liberals on this blog say this."

Wait, there's been a survey of, and consensus found, of "liberals on this blog"?

Because I'm pretty sure we have differing individual views, just as many conservatives do.

Either should be unsurprising.

"I'm all for letting this issue reside in state authority--but that is pretty much a non-liberal federalist argument that is very surprising to see here."

I've still yet to ever encounter in my life a liberal who has supported contemporary federal drug laws, but I'm sure some must and do exist somewhere.

[Steve]

He was acting completely in line with the standard liberal view of federal authority.

You seem to be dwelling in an overly simplified world in which "standard liberals" want everything to be settled at the federal level, and "standard conservatives" want everything to be left to the states.

You seem to be mystified by liberals who want to leave the assisted suicide issue to the states. Tell me, are you equally mystified by conservatives who are happy to see John Ashcroft addressing it at the federal level?

How many conservatives have criticized Congress for passing abortion restrictions, given that federalism says the issue should be left up to the states? Are you mystified by the lack of criticism? Frankly, I don't see it as all that complicated.

The federal government regularly acts to restrict certain dangerous uses of drugs.

If Congress passed a law against assisted suicide, my objection wouldn't be on federalism grounds - although I might, like you, try to score the cheap hypocrisy point. But Congress didn't pass any such law. Instead, Ashcroft used the Controlled Substances Act, a law which was never intended to apply to assisted suicide, and used it as a back-door method to overrule Oregon's assisted suicide law.

Look, I suppose we could argue all day about whether Ashcroft abused his powers, but it seems to me that the Supreme Court has already settled the issue. "The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it."

[CharleyCarp]

The objection to Ashcroft's conduct isn't so much that it's ultra vires, but that it's unwarranted. That's not in contradiction to 'standard liberal' orthodoxy (assuming that such a thing even exists).

[Steve]

The objection to Ashcroft's conduct isn't so much that it's ultra vires, but that it's unwarranted.

Well, now you're sorta getting ahead of the game, by pointing out that both sides want to see the policy results they favor, and don't much care if they happen at the state or federal level. Republicans wanted to shrink the federal government and leave everything to the states, right up until the time they took control of the federal government. Right about the same time, liberals realized the advantages of leaving controversial issues up to the states, if the alternative is letting the Republicans pass an all-encompassing law at the federal level.

But one shouldn't minimize the fact that Ashcroft did, in fact, exceed his legal authority, as the Supreme Court ultimately ruled. Sure, assisted suicide supporters didn't want to see the federal government get in the way of Oregon's statute, regardless of how it happened. But there was certainly an extra level of outrage at the fact that Ashcroft made up a bullshit legal justification in his eagerness to enforce God's law on the people of Oregon. If Congress had passed a nationwide ban instead, people would have been upset with the policy result, but at least they wouldn't have felt it was achieved in an illegitimate way.

[hilzoy]

The Wrath of Hilzoy cannot be drawn down. Like the idiocy of Imus, it is outside the control of ordinary mortals, including myself. Every so often it just jumps the rails and kills people, is all.

And I am always very, very sorry.

[Jesurgislac]

But Hilzoy, nobody here believes that you are just an ordinary mortal...

;-)

[Gary Farber]

"Right about the same time, liberals realized the advantages of leaving controversial issues up to the states, if the alternative is letting the Republicans pass an all-encompassing law at the federal level."

I'd like to note for the record that this liberal has been pointing out the advantages of federalism and state's rights -- not withstanding his extremely strong views about slavery being the cause of the side of the traitors in the Civil War, and they and their descendents' continued use of and revival of "states rights" as a way to destroy Reconstruction, suppress civil rights, and construct and perpetuate Jim Crow -- since he was in grade school.

I've been pointing out the virtues of State Constitutions and their ability to guarantee greater freedoms and rights than the U.S. Constitution does, and the fact that this is the case in a number of states in a number of areas, since at least the beginning of the Eighties.

Ditto that I've defended the much-hated Electoral College on the same grounds since I did a report on it in fourth grade.

And so on. So I'm apt to look askance at anyone who suggests I've suddenly or recently come to these views, let alone am hypocritical in them, or that I'm not some sort of liberal. Just for the record.

"But Hilzoy, nobody here believes that you are just an ordinary mortal..."

Little known to the rest of us, though, is that she does sometimes pace in private, clench her fist, and softly say to herself, "He tasks me -- he tasks me, and I shall have him! I'll chase him 'round the moons of Nibia, and 'round the Antares maelstrom, and 'round Perdition's flames, before I give him up!"

[Sebastian Holsclaw]

"I've still yet to ever encounter in my life a liberal who has supported contemporary federal drug laws, but I'm sure some must and do exist somewhere."

Well that is at least certainly suggesting either a very limited definition of 'liberal' or of 'encounter'. Because the number of people on both sides of the aisle who support contemporary federal drug laws is distressingly high (and almost certainly a more noticeable majority than can be found on most topics).

"You seem to be dwelling in an overly simplified world in which "standard liberals" want everything to be settled at the federal level, and "standard conservatives" want everything to be left to the states."

No I'm dwelling in a world where on a broad level it could be easily said that liberals tend to support larger federal solutions to nearly all of what they see as 'problems' and conservatives tend to be mixed about it. Federalism doesn't have many serious defenders even among the conservative camp, but almost none among liberals (yes Gary I see you).

"You seem to be mystified by liberals who want to leave the assisted suicide issue to the states. Tell me, are you equally mystified by conservatives who are happy to see John Ashcroft addressing it at the federal level?"

No. As I said, there aren't many serious conservative federalists. And I don't really buy that most liberals want to leave assisted suicide to the states except tactically--that they believe they can't win with their preferred view on the federal level. As I said, my preferred view on this particular issue is currently the dominant view, but I see the ambiguity enough to really see the value of letting the states each go their own way. That is a view I very rarely see from liberals in the US, so it is difficult to take the argument from federalism seriously from most of you would wouldn't recognize the argument in almost any other context, and almost certainly not in a way that cuts against your own views. (It seems very opportunistic). This isn't a charge of hypocrisy in the normal sense--I actually wish it signaled a serious commitment to federalism, and I'm willing to be heartened by that if it really is there.

"How many conservatives have criticized Congress for passing abortion restrictions, given that federalism says the issue should be left up to the states? Are you mystified by the lack of criticism?"

Again no. I believe that the number of conservative federalists is low, and the number of liberal federalists (especially in Congress) is near zero.

"Instead, Ashcroft used the Controlled Substances Act, a law which was never intended to apply to assisted suicide, and used it as a back-door method to overrule Oregon's assisted suicide law."

Again I don't understand classifying this as 'back-door method'. The entire reason the Controlled Substances Act applies is to regulate the proper and improper medical uses of drugs. It purposely is intended to strip from states the ability to make their own choices about legitimate and illegitimate uses of medically prescribed drugs. That is why it exists. Deciding that assisted suicide is not a permitted use of a prescribed drug is exactly the kind of thing that it is supposed to be doing. That is why you have a controlled substances act--so you don't have to outright ban things that you believe have medical usefulness but are otherwise very dangerous. I'm not a big fan of drugs laws at all, but it is a reality that the CSA absolutely does regulate how doctors practice medicine on a very regular basis.

[Gary Farber]

"Well that is at least certainly suggesting either a very limited definition of 'liberal' or of 'encounter'."

I read the same polls you do, and am aware of the same positions of politicians as you are. By "encounter" I mean "encounter" -- met, exchanged mail with, bumped into in the street -- some form of encounter.

Reading about someone in a newspaper, or reading about anonymous poll masses, isn't encountering people by any definition I'm familiar with.

I know these pro-drug law people are out there; I've just never actually run into one of these people.

Neither, after all, would interrogating all the people within a few blocks, or my supermarket's employees, or whatever, be a way in which I would have knowingly encountered someone of such views. (The fact that I'm in the middle of a small college town does drastically lower the odds that I'd run into people convinced all pot users should be locked up, compared to some places, to be sure. But I never had anyone argue with me about the subject in New York, or Seattle, or Boston, either.

As I said, I know they're out there. They're just not people I run into in a way that it would be a topic of conversation.

To be sure, I'm a damned introverted person, as well. Who doesn't engage in political debate with strangers in public in person.

[Steve]

No I'm dwelling in a world where on a broad level it could be easily said that liberals tend to support larger federal solutions to nearly all of what they see as 'problems' and conservatives tend to be mixed about it.

Having acknowledged that conservatives aren't at all consistent when it comes to federalism, why spill so much ink pointing out that liberals aren't necessarily consistent either? Yes, liberals on the whole tend to favor a federal regulatory state. That hardly means they should be expected to support a federal "culture of life" agenda. When it comes to privacy issues, most liberals simply want to be left alone by all levels of government.

And I don't really buy that most liberals want to leave assisted suicide to the states except tactically--that they believe they can't win with their preferred view on the federal level.

Of course it's tactical. When the slave states wanted federalism, when the Jim Crow states wanted federalism, was it based on anything other than the fact that if their pet issues were federalized, they would lose? If the slave states had had enough power at the federal level to ensure the preservation of slavery forevermore, you can be sure they wouldn't have insisted on some abstract principle of freedom. Very few people follow Gary's lead in seeing issues of structure and procedure as primary concerns. But again, I think both sides are equally guilty of seeing things in tactical terms. Politics is the art of the possible.

so it is difficult to take the argument from federalism seriously from most of you would wouldn't recognize the argument in almost any other context, and almost certainly not in a way that cuts against your own views

With respect to assisted suicide, it's not that liberals want the federal government to refrain from banning it just so states can ban it, of course. They see the issue as one that is properly up to individuals to decide, not the state or federal governments. I don't see what's inconsistent about this position.

The entire reason the Controlled Substances Act applies is to regulate the proper and improper medical uses of drugs.

I don't think this is true at all. As the Supreme Court said, "The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally."

Deciding that assisted suicide is not a permitted use of a prescribed drug is exactly the kind of thing that it is supposed to be doing.

I don't know what to say except that the Supreme Court flat-out disagrees. "The structure of the CSA, then, conveys unwillingness to cede medical judgments to an Executive official who lacks medical expertise."

The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.