I don’t know enough about the President’s health care plan to know whether I would support it.  My first problem is that it hasn’t been sufficiently published for all to see, to read, to digest, to comprehend.  Transparency isn’t what it used to be.  Amidst the debate (?), much of the negative position falls flat as it ignores that existing health care is a nightmare, outrageously expensive and still leaving millions uncovered.

Going into the debate, there was consensus that what we have isn’t good and we need something else.  The issue is what the “something else” should look like.  The absurd television commercials appear to argue that the new plan will destroy democracy, and that we should stick with the wonders of what we’re already doing.  That would be the system that gave rise to the need for change.  I bet the folks who devise these ads are awfully thankful that most people aren’t adept at two-step thinking.

Yet, the latest approach to the health care plan, attack-dog disruption of town hall meetings of legislators to explain the plan and answer questions, may be the worst of all possible worlds.  According to the New York Times, the disruption is the product of Republican neo-con organized attack by people who claim to be non-partisan, but are shown to be lying Republican party shills.  Fox News, on the other hand, calls the disruptions “protests” that arose organically by disaffected Americans.  Sarah Palin calls the plan “downright evil,” because it will “deny care to the neediest Americans.”  The hooligans are, of course, deeply concerned for the neediest Americans.

Like most, the cost of health insurance troubles me.  Unlike most, reimbursement rates are also a concern.  And all this crap about denying “cutting edge” medical care upon demand to the “neediest American’s” is just a scam.  The screamers couldn’t care less about needy anyone other than themselves.  Anyone claiming otherwise is simply a liar.

Those who are busily screaming at their elected representatives claim that it’s they are merely exercising their First Amendment right to express their opinion about the health care plan.  On the one hand, that’s true.  They have a right to scream at their elected representatives.  As much as one may wish they would choose not to exercise their right in this fashion, rights are rights.  And while everyone is not entitled to an opinion, they are entitled to rights.  There is no test of knowledge to possess rights; that only applies to opinions.  Perhaps this is a glorious demonstration of the Constitution at work.

Unfortunately, it also serves to prevent the dissemination of information.  From the “best practices” perspective, first learn the information, then scream bloody murder.  The other way around just doesn’t do much to convince anyone else of the fact that your screams count for much.  It does serve to remind that sheep will scream on cue, or that the disaffected will take up arms on subjects about which they know nothing or wally in misinformation.

The Obama administration has done little to make its case substantively, by providing more than vague rhetorical assurances that this is a viable plan.  When a major shift in public policy, not to mention expense, is being proposed, it’s only fair that it be subject to serious scrutiny from all angles.  As for me, hard information will go a lot farther than fuzzy speechifying.  Only the USA Patriot Act was so critically important as to be worthy of blind passage. 

Yet, the void is being filled by the quasi-organized hooligans who fill  the seats and obey the command to scream and disrupt.  This boomerang tactic may do more to awaken those who remember why we’re talking about health care in the first place, and boil the blood of those who may support the plan, or may not, based upon what it really means and really does.  The screamers are stopping the rest from gathering the information necessary to decide. 

Americans may not demand total accuracy from their politicians, but they surely don’t like it when a bunch of demagoguing jerks prevent them from learning anything.  The screamers may awaken the sleeping giant in the middle of the political spectrum to two things.  First, that they can’t stomach the forces in opposition who are responsible for denying the rest of us information upon which to form an opinion.  Second, that the Republicans, who were soundly rejected in the last election as the party lacking any clue how to make life in America any better, remain clueless.  This attack demonstrates an affinity for the negative with no positive ideas to offer.  If it weren’t for bad ideas, they would have no ideas at all.

Left to its own devices, the Obama administration may well have fallen short on the health care plan, with the Blue Dogs troubled and the middle American scratching his head in confusion.  The screamers have made their headlines, but haven’t persuaded anyone not already inclined to join them.  What would be a shame is if this plan passed not because it was worthy, but because of the reaction to this incredibly stupid and unproductive tactic.  The screamers will have lost, but that doesn’t mean that America will have won.

Twitter got hacked and went down.  A year ago, who would have cared?  Who would have noticed?  Not me.  But I did notice yesterday.  It changed my world.  I had an extra 15 minutes in my day, which I put to good use.

But something else happened yesterday to make me think of twitter.  I was followed by Rex7.

Hi, Scott Greenfield.

Rex7 (Rex7) is now following your tweets on Twitter.

A little information about Rex7:

63837 followers 2779 tweets following 61785 people

For those of you who don’t know, Rex7 is a 2009 law school graduate named Rex Gradeless who has accumulated the largest number of followers of anyone in the legal arena, assuming ones take a broad view of who is in the legal arena.  Like getting into the Guiness Book of World Records for accomplishing a feat that few others have chosen to try, Rex7 has staked his claim on twitter.

But his success at accumulating followers is demonstrable evidence of it’s relative utility.  Rex needs a job.  Nothing wrong with that, particularly given the current situation for law school graduates.  But he has almost 64,000 followers on twitter.  Still, he’s jobless, per his twitter bio.  Contrary to popular belief, no one gets paid for the number of followers they have on twitter.

Rex isn’t the only young man hoping that twitter will aid in his success.  There are others, Adrian Dayton for one, who believe that their future can be found on twitter.  Adrian is a twitter consultant, available to teach lawyers and firms how to achieve financial success through twitting.  He believes that it’s true, and that he can help.

To Rex and Adrian, twitter is their vehicle to recognition.  When twitter went down, so too did their vehicle. 

But if Rex can’t manage to find a job with his almost 68,000 followers, then one has to wonder whether those who promote twitter as a vehicle of success are just blowing smoke. 

I’ve come to like twitter for certain purposes.  But I remain doubtful that it will serve the purpose of enhancing my practice.  Others will explain to me using the vagaries preferred by marketing folks about how it builds relationships and networks and communities, will find you love and help you to lose those excess pounds.  I haven’t seen it.  I had more followers on twitter than I should, but many of them are part of the coterie of twitterers who are selling to lawyers or just following others in the hope of a return follow.  They want to be like Rex7.  They are keeping score.

This morning, Rex7 stopped following me.  Perhaps it was because I didn’t follow him back.  Perhaps it was because my twits are boring.  Perhaps it was because I don’t have a job for him. 

I wish Rex, who was an occasional commenter here, the best of luck in finding a fine job as a lawyer.  It will likely interfere with his ability to accumulate followers on twitter, but it will provide him with a paycheck, a sense of real accomplishment and a taste of what the profession is all about.  What it is not about is twitting, accumulating followers or finding your purpose in life crushed when twitter crashes.  That would make you the saddest person in the twittersphere.

Sonia Sotomayor was confirmed, to no one’s surprise.  The newspapers report that Hispanics are proud to have a justice on the Supreme Court who shares their heritage.  That’s great, showing that the United States is no longer foreclosing the possibility that a Latina can be a justice, any more than a black man can be President.

Now that the nation has overcome another hurdle on the road to inclusiveness, however, it’s time to live with the consequences of the choice.  The same Hispanics who applaud now-Justice Sotomayor’s elevation to the big bench may well find themselves stopped and searched on the streets of Washington Heights for no better reason than the cops can, and do, routinely stop Hispanics just to check them out.

Will a wise Latina, whose legal career was largely attuned to the needs of police to enforce Order, care about her fans? 

It’s possible that she will remember who she is, and that but for her ADA shield, or judicial license plates, she might be the one stopped for fun.  Colin Powell remembers that he was treated like a black man rather than a General.  Perhaps Sonia Sotomayor has had a similar experience.  Perhaps Sonia Sotomayor, realizing that she is now in a position to give effect to the promise of the Constitution, will chose to extol the rule rather than the exceptions.  It’s not like she can be unconfirmed.

Some of us are suspicious of this choice for justice.  If a Democratic President, with a Democratic Senate, can’t find the will or desire to nominate someone who brings a strong passion for constitutional rights and personal freedom, and instead manifests a career of putting order ahead of law, then there isn’t much hope.  But it’s possible that Judge Sotomayor’s support of law enforcement over defendants during her career on the lower benches will change now that she is part of a small cabal charged with formulating the rules rather than merely following them.  The power that comes of being one of 9 could change everything.  It has before.  And it hasn’t before.

Whether Sonia Sotomayor will be a justice who will be remembered for anything more than being Latina has yet to be seen.  In her first year, she will have an opportunity to vote, and write, about issues that matter enormously to this nation.  It may take longer, perhaps even a few years, before she feels sufficiently comfortable to take a firm stance.  For the sake of the nation and the Constitution, I hope that her stance will be for the Rule of Law over the expediency of Order.  We shall see.

[3] If you are a young lawyer (less than 10 years out) do not say, on your website or brochure, when you graduated from either college or law school. Leave no evidence of how long you’ve been practicing.

[4] Find a creative writer that can make you appear more experienced than you are without crossing ethical lines. Use words and phrases like “aggressive,” “experienced,” “fight for you,” and “in your corner.”

Ring. . . ring . . . ring.

SHG:  Hello.

Caller:  Car service?

SHG: You have the wrong number.

Caller:  What number is this?

SHG:  It doesn’t matter.  It’s the wrong number.

Caller: Listen, I need a car now, it’s really important. (epithets omitted)

SHG:  That may be, but it’s not a car service.

Caller:  I’m not screwing with you.  I need a car now. (epithets omitted again)

SHG: Oh, you want car service?

Caller:  Yeah.

SHG:  Okay, where you at?

Caller:  168 and St. Nick.

SHG:  Ten minutes.

Caller:  Cool . . . (click)

I don’t know what comes over me.

Former Chief Judge of the Southern District of New York, Charles Brieant, used this great phrase, “mouse-milking,” long before it made its way into the urban lexicon.  With his goofy mustache and big smile, he would look down from the bench and suggest that we let go of a point we tried so strenuously to make for this reason.  We were mouse-milking.

Lawyers can’t seem to stop themselves from mouse-milking.  We will fight to the death over the most trivial of points, de minimus non curat lex notwithstanding.  Lawyers get hung up on minute details, giving rise to the well-founded allegation that we can’t see the forest through the trees. 

This has proven to be the case with the Second Amendment issue arising from the Plaxico Burress case.  The most prominent challenger to the its advocates, Doug Berman at Sentencing Law & Policy, who has long been watching whether the Heller decision will filter through the law to the point where it matters, and wondering whether the forces behind it will show up to pursue their agenda when the real fights happen in the trenches. 

Comments to Doug’s posts are replete with mouse-milking, nipping at the fringes of the facts of the case (Plax never applied for a NYC carry permit, for example) or the Heller decision (incorporation), ignoring the big picture.  If the right to keep and bear arms is a fundamental individual right, and it is because Justice Scalia said so, then it must be given meaning in real life.  Fundamental rights are not limitless, perhaps (and this is subject to dispute, past Supreme Court decisions notwithstanding), but we either have rights or don’t.  A right, subject to a bunch of caveats, conditions, provisos, exceptions and limitations, that produce the result of having no right at all, isn’t a right. 

While I am no particular fan of the notion of people walking around the city with a gun in the waistband, despite the social utility that its advocates claim, I am a big fan of the Constitution.  Indeed, I’ve been known to complain from time to time about how the Fourth Amendment has so many exceptions that the rule exists in theory only, there being essentially no practical protection left.  That’s what happens when the mouse-milkers take over. 

So given the long-fought battle over the definition and scope of the Second Amendment, this is where the fight between the forces favoring constitutional rights over the forces favoring Order should occur.  Constitutional rights are big.  Bigger than the trivial details raised by naysayers.  Forget about whether you, like me, don’t really care about the right to have a snub-nose, and think about whether our Courts should be supporting the rights reserved for the people against the government, or making up excuses for the government to undermine those rights.  It’s a big picture thing.

To that end, Doug responds to his commenters:

It’s more than a week and half into the trial of Bob Simels, a well-known and well-regarded New York criminal defense lawyer who was recorded by a snitch talking about neutralizing and killing witnesses.  Simels was a tough-guy lawyer, and his defense is that it takes a tough-talking man to stand up to the government.  No argument there.

To that end, Simels took the stand to offer his explanation for his conversations is that these are the types of words criminal defense lawyers use.  From the NYLJ :

Mr. Simels, appearing calm and deliberate and looking directly at the jurors throughout his testimony, said that when he talked of the need to “neutralize” or “kill” a witness, as repeatedly heard on tapes of secretly recorded conversations played by the prosecution, he was not suggesting an intent to do harm, but rather to discredit the witnesses’ testimony.

“I use [those terms] all the time, and lawyers use them all the time,” Mr. Simels said. “It’s part of the vernacular of being a lawyer.”

Though he did not discuss such a tact specifically, Mr. Ricco told the jury, “There’s nothing wrong with talking with witnesses and potential witnesses about anything. The bottom line is, what the lawyer ultimately decides to put in the courtroom…must be within the bounds of the law.”

Mr. Ricco proved an unusually candid expert witness. In an animated, hour-long back and forth with Assistant U.S. Attorney Morris J. Fodeman, Mr. Ricco frequently agreed with Mr. Fodeman, on occasion even emphatically expanding on Mr. Fodeman’s points—such as the rationale behind the prohibition of payments to witnesses.

When Mr. Fodeman asked Mr Ricco “how does Tony Ricco react?” to a witness’ suggestion that “an act of violence” might benefit the client, Mr. Ricco took a rare pause, then said, “The answer is that you’d dissuade somebody from doing that, but it depends on the circumstances.”

Mr. Ricco then added, “A lot of people say a lot of things,” for a lot of different reasons.

“I didn’t think I was sanctioning harm; I didn’t think I was suggesting harm,” Simels said, adding that he “never” intended to bribe witnesses or persuade them to lie.

Instead, Simels said, he was merely “flattering” the informant Selwyn Vaughn, a former associate of Khan’s, who had volunteered to track down witnesses.

During a momentary lapse of judgment, I listened to CNN yesterday and heard President Obama exclaim that Americans must be the “best-educated, highest-skilled workers in the world.”  This caused me to immediately think of Tatiana von Tauber’s post at Randazza’s Legal Satyricon.

Seems the international mind is interested in what’s really going on around the world – those issues which truly affect freedom, government and society.  America seems more interested in Annie Liebovitz, sex scandals of politicians and the Bible.  Once again, a firm reminder I’m not in Germany anymore. If I sing “Somewhere Over the Rainbow”, will that change? Even the U.S. edition of CNN is very different than the international one I used to watch and since coming back to the states I find the news too Hollywood hyped for the kind of information I’m used to getting.

Strong words from someone with a last name like von Tauber, ridiculing American concerns, interests and, yes, ultimately intelligence.  Ah, how those Europeans so enjoy making fun of the average American, the very ones who our President says must be the “best educated” in the world if we are to complete.

Is Tatiana entitled to her opinion?  Exhibit 1, a British CNN segment:

They say that everyone is entitled to an opinion.  I’ve never subscribed to that belief.  In order to have an opinion, at least on a matter more significant than whether one prefers chocolate over vanilla, one has to have some basis for it.

Writing this blawg has been quite a learning experience for me.  The strength with which people hold opinions is quite remarkable, but the foundation upon which those opinions are built is sometimes so fundamentally lacking as to be deeply disturbing.  The part of the video that I found most troubling, most inexcusable, is that man who would appear to be in his 60s who lacked any knowledge about World War II.  Even if he lacked any education whatsoever, it seems impossible that he wouldn’t know how many World Wars we’ve endured.

These appear to be perfectly nice, normal, quite ordinary Americans.  No doubt each one believes they know what’s wrong with America, and what needs to be done to fix it.  No doubt each has an opinion.  These are the people that our President says must be the “best educated” in the world.  That’s going to require some heavy work. I wonder how many read newspapers, or even watch television news?  Do they read blogs?  Do they write comments telling others how wrong they are on subject of national importance?

I wonder how many of these people exercise the franchise?  Are they capable of assessing the best leadership for this country?

This doesn’t prove, as the voiceover suggests, that Americans are any worse than people anywhere else.  They may well be, but this segment offers neither context nor comparison, and is hardly scientific.  But we can’t forget that these are Americans, and we can’t assume that whoever we meet, befriend, work with, talk to, can name a country with a name beginning with “U”.  Keep this in mind when you read the comments here and elsewhere. The strength with which some expresses their opinion is not evidence that they are entitled to hold an opinion at all.

Tatiana has earned her opinion.  Most people who read SJ have earned theirs.  But not everyone.  And certainly not every American is entitled to an opinion.  Even if they appear to be perfectly nice, normal, quite ordinary Americans.

I do not believe that Americans are stupid.  But it’s unacceptable that many are so ignorant.

To:  All United States Attorneys and Assistant United States Attorneys
From:  Eric Holder, The Boss
Re: Smart on Crime

From now on, it will be the policy of the United States Department of Justice to be smart.  Anything short of smart will be frowned upon.  This means that you should assess every case, every defendant, to determine whether we the crime alleged is really that big a deal that we need to make a federal case of it.  Or even whether it’s a crime at all.

And even if you decide that the defendant really needs prosecuting, decide whether putting the person in prison is worth it.  Think of it this way; Would it be important enough to imprison the defendant that you would be willing to take a salary but to do so?  After all, the American people, in effect, take a hit every time we put someone into prison, so it better be worth it.

And while we’re trying to whittle down the prison population, let’s start to consider the possibility that not everything out of an agent’s mouth is gospel.  I know, they are fine, upstanding Americans, but sometimes they, well, fudge the details a bit.  I want you to start considering the possibility that some of the more ridiculous stuff isn’t exactly 110% true.  Especially when there is videotape showing that the things the agent said happened didn’t.  It really looks bad for us.

It’s not easy to mount a criminal defense.  And it’s not easy to be Texas Court of Criminal Appeals Judge Sharon Keller, excoriated across the country for slamming the courthouse doors shut to make sure an execution proceeds.  As her trial is about to begin, her defense attorney has decided to announce his strategy in advance. 

Judge Sharon Keller, facing potentially career-ending charges that she improperly closed her court to a death row appeal, will argue that defense lawyers fabricated — or at least exaggerated — computer problems the day Texas executed Michael Richard.

Keller’s new accusation is an attack on the credibility of Richard’s lawyers, three of whom are expected to be called as witnesses when her special trial convenes Aug. 17 in San Antonio.

The attack, a recent addition to Keller’s defense strategy, also seeks to undermine the narrative that has emerged against the judge: that she refused a reasonable request to keep the Texas Court of Criminal Appeals open past 5 p.m., penalizing Richard for events outside his control — computer breakdowns experienced by his lawyers.

“Judge Keller’s position will be that there was no computer problem,” said her lawyer, Chip Babcock. “There will be testimony that (Richard’s lawyers) — maybe — had e-mail problems for a few minutes in the afternoon.”

“The issue of whether there were or were not computer problems is completely irrelevant to the charges made against Judge Keller,” Manne said. Richard’s briefs “could’ve been late because of computer problems, which is in fact the case, or 101 other problems. But did she act properly when asked? That’s the issue at trial.”