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August 9, 2007

Judge Posner for Seventh Circuit calls appeal of within-guideline sentence frivolous

In his concurrence in Rita, Justice Stevens stressed that the Court's majority opinion "makes clear ... that the rebuttability of the presumption [for within-guideline sentences] is real."  Nevertheless, Judge Posner today writing for the Seventh Circuit in US v. Gammicchia, No. 06-3325 (7th Cir. Aug. 9, 2007) (available here) deems one defendant's efforts to rebut the presumption frivolous.  Here is how the opinion begins:

The defendant appeals from his 30-month prison sentence for obstruction of justice.  The appeal bespeaks a misunderstanding of federal sentencing law under the regime created by the Booker decision. When as in this case a criminal appeal is frivolous, the defendant’s attorney should file an Anders motion rather than waste the court’s time on a lost cause.  We write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals.

August 9, 2007 at 02:35 PM | Permalink

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If it was possible to call Posner an a-hole without sounding like an a-hole myself, I'd call him an a-hole. Oh never mind. He's an a-hole.

Posted by: Anon | Aug 9, 2007 3:40:36 PM

That's Judge A-Hole to you Mr. Anon!

Posted by: SPD | Aug 9, 2007 4:05:00 PM

An arrogant, twerpy, boring, pompous, self-inflated creep. Read his "Little Book of Plagiarism", where he advocates criminalizing plagiarism. I think he was puffing out his skinny birdbreast because he's written so many arrogant, twerpy, boring, pompous, self-inflated books. Who buys them? His family? Now, we're plagued with his son's publications in the WSJ. He got him a nice professorship at his alma mater, and now we're doomed to more Posner prattle. The Australian press has Posner's number.

Posted by: Fluffy | Aug 9, 2007 4:26:53 PM

If any commenters have a substantive rebuttal to Posner's opinion, I'd love to see it.

As a helpful hint, you might want to start by reading the opinion.

Posted by: | Aug 9, 2007 4:36:32 PM

This seems like it is going too far. The fact that the sentence was “short” (but longer than most federal judges have served in prison) probably brought about this ire.

The Supreme Court (or at least the part of it to garner the majority) held that such a presumption – by a Court of Appeals – is not illegal, but it did not hold that the guidelines were presumptively reasonable as a matter of law. Specifically, the Supreme Court said “The first question is whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines. We conclude that it can.” Not that it *must.* Moreover, the Supreme Court said it isn’t binding, nor is it an evidentiary presumption.

In reading Rita again, I am almost convinced that the Supreme Court doesn’t think that a “presumption of reasonableness” is even a “presumption,” anyway but rather some exercise of plenary discretion that every defendant is entitled to call upon. While this doesn’t make too much sense as a legal matter, this makes sense as political matter: the Supreme Court wants put off for another day the precise role of the commission, but allow the guidelines to be challenged on a case-by-case basis by individual defendants without actually evaluating the guidelines. So, the court writes, “The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness. Even the Government concedes that appellate courts may not presume that every variance from the advisory Guidelines is unreasonable.”

Moreover, I don’t see what business is it of a Court of Appeals to be telling counsel to file an Anders brief.

Posted by: S.cotus | Aug 9, 2007 4:43:37 PM

A. As I understand the opinion, one of Posner's points is that there's a difference between arguing that (1) had the sentencing judge weighed a few mitigating factors more strongly than he did, the defendant would have gotten a lesser sentence, and (2) no reasonable judge could have given the sentence that the defendant got.

(1) is the sort of argument that most defendants make, it's the argument that Gammicchia made, and it's utterly frivolous.

(2) is much more difficult to make, but I don't see Posner as foreclosing that

B. Posner's other (related) point that I think drives the reasoning is his statement on the last page of the opinion that:
these are considerations for the sentencing judge, not us, to weigh against the gravity of the defendant’s crime and the other factors in section 3553(a). The factors are intangibles, “weighable” only in a metaphorical sense, that the sentencing judge is in a better position than the appellate judges to place them in the balance with competing considerations. The sentencing judge in this case said he did that and we have no reason to doubt that he
did. His sentencing the defendant at the bottom of the guidelines range was an exercise of lenity, since the defendant had committed a serious breach of the public trust exacerbated by his threatening a witness.

It sounds harsh, but what's the counterargument? Gammicchia wants a lighter sentence because: (1) his co-defendants got lighter sentences and (2) his wife is sick. How does an appellate court write an opinion stating that a trial court gave inadequate consideration to those sorts of things? Disparities between co-defendants may be troublesome when the defendants are identically situated and the disparity is vast and unexplained, but that almost never happens and certainly didn't happen here. Perhaps the defendant's wife is sick, but on what basis does an appellate court say that that factor objectively requires a shorter sentence than what the trial court gave? It's not irrational to be unswayed by either of those arguments (though it might be irrational to be too swayed), so why fault Posner for saying honestly that they're "intangibles" and generally not for the appellate courts?

Posted by: | Aug 9, 2007 4:47:15 PM

Moreover, I don’t see what business is it of a Court of Appeals to be telling counsel to file an Anders brief.

Why should courts of appeals refrain from saying that all of a party's arguments are frivolous?

Posted by: | Aug 9, 2007 4:49:21 PM

Attempted substantive response:

The troubling part of the opinion is not that the sentence is affirmed, but that the appeal is deemed "frivolous."

Importantly, Posner doesn't think the argument for a below-guideline sentence is frivolous--he agrees that poor health can be a good reason. He thinks the APPEAL of the district court's sentencing judgment is frivolous.

He gives two reasons why "very limited appellate review" of within-guideline sentences is appropriate:

1. When a court sentences w/in the guidelines, both the court and the Sentencing Commission agree on the result. See Rita.

2. The section 3553(a) factors are "vague and nondirectional," and "intangibles, 'weighable' only in a metaphorical sense," and district courts are better positioned to evaluate these mushy factors. Thus, circuit courts are pretty much never going to second-guess or engage in their own re-balancing of the 3553(a) factors.

The second reason would suggest substantive reasonableness review of within-guidelines sentences is practically (McConnell asks us to give up the charade and just say actually) non-existent. That seems to conflict with Rita.

Also, it puts defense counsel is a real bind in deciding when a substantive unreasonableness appeal is frivolous and when it is permissible.

Posted by: JWR | Aug 9, 2007 4:50:49 PM

I wrote my comments before seeing the other comments. I probably sound less boorish than I usually do. After re-reading both Rita and Gammicchia, I think Posner simply does not understand that he *will* be in the business of evaluating discretionary calls by the District Court on a day by day basis, and maybe, just maybe, a jurisprudence of how to correctly weigh the 3553 factors, and which ones shouldn’t be taken that seriously will emerge.

I don’t mean this as an insult to Posner. (I completely disagree with Posner’s non-judicial writings, however, but that is another story.) I simply think that Courts of Appeal need to simply understand that there are no easy way outs of Booker, as the Supreme Court has decided that they – not the prosecutors (as is the case in Blakely) – will being doing the heavy lifting.

Posted by: S.cotus | Aug 9, 2007 4:50:49 PM

Also, it puts defense counsel is a real bind in deciding when a substantive unreasonableness appeal is frivolous and when it is permissible.

That's a fair point. Hopefully the Supreme Court will step up to the plate in Gall and Kimbrough.

Posted by: | Aug 9, 2007 4:58:13 PM

Also, I agree with Posner that the 3553(a) factors are "vague", "nondirectional," and "intangibles."

But as for "'weighable' only in a metaphorical sense": that's sort of true, in the sense that legal factors are never literally weighable (i.e., we don't get out a scale). But he has to mean more than that.

He's claiming the process of deciding how serious the offense is, how much time is required to defer future offenders, how much time is required to protect the public, etc.--is somehow only methaphorical. That's wrong. It's hard (maybe nearly impossible), the factors are intangible, etc., but it's NOT metaphorical.

Posted by: JWR | Aug 9, 2007 4:59:32 PM

"Why should courts of appeals refrain from saying that all of a party's arguments are frivolous?"

This is an interesting question, and there is something of a subtle split on this issue. For one, in criminal law, defendants generally have an absolute right to appeal. Secondly, as a constitutional matter, to force counsel to be a gate-keeper to legal arguments that conceivable could set someone free, arguably runs afoul of a substantive view of Article III, which would posit that defendants have a right to legal decision-making by Article III judges (not their lawyers). It might even run afoul of Strickland/Cronic’s problem with “state interference with counsel’s assistance.” (And threatening lawyers with professional discipline, I argue, is such an interference.) Strangely, an Article I Court, the CAAF, has held that counsel *must* present all arguments their clients want to make, even if frivolous.

As a substantive matter, there is room for disagreement on what Rita means. So, saying that a position is in conflict with Rita is pretty much inaccurate. The only thing Rita holds is that courts – may (but not “must”) use a presumption of reasonableness. The concurrences say other things.

Posted by: S.cotus | Aug 9, 2007 5:03:31 PM

Two observations:

1. "the sentencing judge is in a better position than the appellate judges" to balance the 3553(a) factors. Sounds good. All should agree that district court judges are closest to the facts, have the defendant before them in person, and enjoy increased discretion after Booker. But let's see how deference to trial judge discretion fares when the sentence up for review is a substantial downward variance. I'm not optimistic.

2. Interesting that when Judge Posner highlights the 3553(a) factors that really count, he's interested only in (1), (2), and (6)--not the overarching statutory command of parsimony.

Posted by: Def. Atty. | Aug 9, 2007 5:03:55 PM

"the sentencing judge is in a better position than the appellate judges" to balance the 3553(a) factors

It's a nice slogan, but to me this sounds like the "clearly erroneous" standard, and the Supreme Court said "reasonableness" standard, which sounds more like (but not exactly like) "abuse of discretion" to me.

Posted by: S.cotus | Aug 9, 2007 5:07:06 PM

The sentence was too high to do any good but meet a guideline quota. It was unreasonable. The guidelines are unreasonable. Rita says defendants can argue that the guidelines are unreasonable. The defendant offered something on appeal to rebut the 7th Circuit's presumption of reasonableness. The court found that what was offered was not enough. But its finding -- even assuming that the Supreme Court would agree -- is not more than the present view of the members of the court. Hence, viewing the defendant's argument at its worst, it is not frivolous, because it is not unreasonable to hypothecate humane judges that would find the sentence unreasonably high, i.e., greater than reason requires.

Posted by: defense atty | Aug 9, 2007 5:09:55 PM

Why should courts of appeals refrain from saying that all of a party's arguments are frivolous? In criminal cases involving court-appointed lawyers, here's why: Because when appointed lawyers file "frivolous" briefs in criminal cases, we already know they're frivolous. Unfortunately, we don't get to dismiss an appeal without our clients' permission. Anders briefs are hard. They put us in the awful position of having to advocate against our clients. And clients in Anders-brief-eligible cases are usually the most difficult clients, the ones who don't have the mental capacity to understand us when we tell them there are no arguably meritorious issues to appeal and the ones who don't have the mental stability to believe us (or care) when we tell them there are no arguably meritorious issues to appeal. These clients are also the clients most likely to file 2255 actions against us later. On top of all of that, judges on the courts of appeals frequently complain about the number of Anders briefs filed by appointed counsel. Sometimes they'll even send Anders briefs back and order counsel to brief a frivolous issue. Then they'll publish an opinion addressing the issue and criticize counsel for briefing it (I'm not kidding; it's happened to me). So we're damned if we do and damned if we don't. We'll brief any issue to avoid filing an Anders brief.

Posted by: Fedef | Aug 9, 2007 5:10:55 PM

As long as the circuits keep reweighing the 3553(a) factors to decide a sentence is too low, which they do routinely in reversing sentences they deem too lenient, defense lawyers will keep arguing for reweighing of the factors to decide a sentence is too high.

Posted by: AFPD | Aug 9, 2007 5:13:23 PM

Someone said: "Importantly, Posner doesn't think the argument for a below-guideline sentence is frivolous--he agrees that poor health can be a good reason. He thinks the APPEAL of the district court's sentencing judgment is frivolous."

This does seem to be his position, and it's laughable. You want to stop defendants from appealing to challenge their guidelines sentences? Go to Congress. Otherwise, suck it up, with your lifetime tenue and salary protection, and do a little (but JUST a little, mind you), work.

Posted by: Anon | Aug 9, 2007 5:21:54 PM

This opinion creates a line between frivolous and non-frivolous that is so difficult to discern that it places defense counsel in an impossible position.

I think appellate judges should just suck it up and decide cases (for which they are paid adequately and receive great honor and power) instead of hectoring the defense bar. Judges should not expect lawyers to betray their clients to help the judges with their caseload. It is, moreover, easier for a court to decide these cases on the merits than for counsel to go through the whole rigamarole of explaining why every conceivable issue in the case -- validity of guilty plea, compliance with Rule 11, compliance with Rule 32, procedural reasonableness, substantive reasonableness -- is frivolous and for the court to review these issues. This is especially true when, in a case like Posner's, the Anders brief can hardly be conclusive on the reasonableness point, but will sound more like defense counsel is arguing for the prosecution than simply explaining why an issue is foreclosed (such as, that client received the mandatory minimum sentence). Why not just let counsel put up his or her best issue? If it's not very good, it shouldn't be hard for the court to write "Affirmed."

Posted by: David in NY | Aug 9, 2007 5:22:43 PM

the overarching statutory command of parsimony

Berman and the defense bar harp on this, but (1) the parsimony command was enacted along with mandatory Guidelines, and (2) courts of appeals give deferential review to a district court's decision that a sentence was appropriately parsimonious.

It's a nice slogan, but to me this sounds like the "clearly erroneous" standard, and the Supreme Court said "reasonableness" standard, which sounds more like (but not exactly like) "abuse of discretion" to me.

What, precisely, is the difference between clearly erroneous and abuse of discretion?

Posted by: | Aug 9, 2007 5:25:22 PM

Importantly, Posner doesn't think the argument for a below-guideline sentence is frivolous--he agrees that poor health can be a good reason. He thinks the APPEAL of the district court's sentencing judgment is frivolous."

This does seem to be his position, and it's laughable.

If you don't understand how an argument can be good when made to a trial court but frivolous when made to an appellate court, you should stay away from litigation.

Posted by: | Aug 9, 2007 5:27:16 PM

There are far less time consuming ways for the Court of Appeals to deal with weak appeals of within guidelines appeals of sentencing decisions, particular given that, under Rita, it isn't at all hard to say that any appeal raising the merits of a sentencing decision is incapable of being frivilous but also very likely to fail.

In practice, appealing a within guidelines sentence appeal is a bit like filing an in forma pauperis petition for certiorari to the U.S. Supreme Court or a pardon petition or a habeas petition in a non-capital case. All have almost no chance of being granted, but a handful of people through a combination of favorable facts and sheer good luck do prevail from time to time, and the system handles these cases by dutifully receiving each one in an orderly fashion, and usually granting no relief, but only after having at least some bright person with a law degree dutifully make at least a cursory screening of each one.

Rather than putting a lot of effort into taking a jab at defense counsel who is simply trying to cover the bases as required for his client (often an attack on the reasonableness of a within guidelines sentence is the most meritorious claim a client will have), the graceful thing to do would be to simply write an opinion that says: "Affirmed for the reasons set forth in the trial court's opinion which we adopt."

Issue a couple hundred opinions like that in weak appeals of within guidelines sentences, and you have made your point without chilling the opportunity of counsel in a really exceptional within guidelines case to make an argument.

Posted by: ohwilleke | Aug 9, 2007 5:27:19 PM

“I think appellate judges should just suck it up and decide cases (for which they are paid adequately and receive great honor and power) instead of hectoring the defense bar.”

I agree. There is nothing worse than judicial whining, and blaming it on people that represent the lowest of society – those whom the executive has taken a decision to put in jail. Posner really has no idea what it is like to represent one of these “people.”

“What, precisely, is the difference between clearly erroneous and abuse of discretion?”

Well, this is really a long discussion, and since both of them are “terms of art” (meaning that they mean something different than they appear to mean) I think that we should just resolve to look at the caselaw and articles on this.

But, here goes:

Clearly Erroneous is a standard for review of factual determinations. It is highly deferential, but, in general, something is Clearly Erroneous when it constitutes an illogical fact-finding, or a fact-finding based on “facts” not in the record. Since there is no “law of facts” (other than logic) there doesn’t need to be a specific finding of what the underlying law is by the lower court.

Abuse of Discretion, is an application, by a judge of found facts to the law. This requires an ascertainment of what the law applied by the lower court was, and then a determination of whether the lower courts view of the facts was within the permissible outcomes allowed by that law. So, for example, if a judge understand the law of hearsay, but finds the predicate facts in a way that isn’t clearly erroneous, it isn’t an abuse of discretion. But, if he either misunderstands the law of hearsay and/or applies it to predicate facts that isn’t in a way permitted by the substantive law, it is an abuse of discretion.


Posted by: S.cotus | Aug 9, 2007 6:57:18 PM

Thank you for this discussion. This is why I decided to read this blog in the first place. I had questions about why the legal world behaves as it does and wanted to hear about it from the horse's mouth. Going to law school really isn't an option since I would have had to make that decision over 40 years ago. Now I really don't have the energy (or the money). I did not crash your blog to fight with anyone, although I do think some of you might benefit from hearing how you are perceived by the rest of us sometimes. Perhaps you are totally justified in what you do and we don't understand, but if we try to increase understanding on both sides I honestly believe the result would be helpful. The bottom line is, we're not irrelevant because if we didn't exist, none of you would have a livelihood.

S.cotus, having spent years being fascinated as philosophy professors split hairs into clearly defined segments, your comments here are quite interesting. (Yes, I know that whole discipline is irrelevant, but then why do you guys write books on theories of punishment?) I will never be a constitutional scholar, and I am glad there are people who want to do that. I would probably very much enjoy taking a class from you, because you are able to explain and discuss things very precisely. You do require a certain amount of sophistication from the reader, and that's fine.

But no student enjoys being belittled when they are honestly trying to comprehend a subject or when they ask a question from a different perspective. And I am disturbed by a lawyer who talks about defending someone whose humanity they place in quotes. The whole point of having a legal system, as opposed to just taking someone we think has done something bad out and hanging them, is that the law treats even the lowest of the low as human beings. We have standards by which we are supposed to treat them, even after they have been convicted of horrible crimes. They lose their freedom and many of their rights--possibly even the right to life--but they do not relinquish their humanity. Else, why all the recent flap about torture?

We have a presumption of innocence. As I understand it, that means that, if you choose to be a defense attorney, even if you find your client repulsive and truly believe he is guilty, he has the right to your best effort to defend him. The basis for this right is the presumption that he is a human being. If he weren't, we wouldn't be going to all this trouble.

Posted by: | Aug 10, 2007 9:53:00 AM

But, here goes:

Clearly Erroneous is a standard for review of factual determinations. It is highly deferential, but, in general, something is Clearly Erroneous when it constitutes an illogical fact-finding, or a fact-finding based on “facts” not in the record. Since there is no “law of facts” (other than logic) there doesn’t need to be a specific finding of what the underlying law is by the lower court.

Abuse of Discretion, is an application, by a judge of found facts to the law. This requires an ascertainment of what the law applied by the lower court was, and then a determination of whether the lower courts view of the facts was within the permissible outcomes allowed by that law. So, for example, if a judge understand the law of hearsay, but finds the predicate facts in a way that isn’t clearly erroneous, it isn’t an abuse of discretion. But, if he either misunderstands the law of hearsay and/or applies it to predicate facts that isn’t in a way permitted by the substantive law, it is an abuse of discretion.

Thanks, S. Cotus, but I'm not sure what point you were trying to make when you said this:

"the sentencing judge is in a better position than the appellate judges" to balance the 3553(a) factors

It's a nice slogan, but to me this sounds like the "clearly erroneous" standard, and the Supreme Court said "reasonableness" standard, which sounds more like (but not exactly like) "abuse of discretion" to me.

Trial judges are in a better position to (1) find facts and (2) exercise discretion, and the appellate courts appear to give the same "level" of deference to both, though the actual mechanics of appellate review are--as you point out--different between reviewing a finding of fact and an exercise of discretion. I don't see anything wrong with Posner's wording.

Posted by: | Aug 10, 2007 10:18:22 AM

Okay, I don’t see what your personal story adds to the conversation. The fact is you admit that you did not go to law school. The end.

There are two problems with Posner’s wording:

The Supreme Court directed Courts of Appeal to determine if sentences that are under the advisory guidelines “reasonable.” Not “erroneous.” Not “illegal.” If “reasonable” means “not an abuse of discretion” then there must be some underlying law that the lower court is applying. This “law” is a little more complex then just a hodgepodge of 3553(a) factors, but probably indicates some form of weighing of which of the factors is more or less important, and what sorts of facts would tip the balance of 3553(a) factors one way or the other. Posner, on the other hand, sees Rita, and figures that he doesn’t need to explore these issues: so long a defendant is sentenced to a guidelines sentence, it is per se reasonable unless the defense does SOMETHING (he does not really explain what) to show that it is unreasonable. (Strangely he doesn’t mention the part of Rita which says that sentences outside the guidelines can’t be deemed to be presumptively unreasonable.)

The second problem is almost more heinous. Using words like “frivolous” or words that implicate a lawyer’s professional character essentially means that Posner (and maybe the entirel 7th) is interfering with the ability of defendants to be effectively assisted in, amongst other things, appealing their sentence (ultimately to a Supreme Court that might some day straighten out this mess).

Posted by: S.cotus | Aug 10, 2007 1:29:01 PM

Thanks for the response. BTW, there are at least 2 of us posting with no name.

Posted by: | Aug 10, 2007 2:56:04 PM

5:25,

Re parsimony:

"2) courts of appeals give deferential review to a district court's decision that a sentence was appropriately parsimonious."

If only that were true. For non-guidelines sentences, the track record shows that the level of deference to a district court's discretion depends almost entirely on whether the variance was upward or downward. Where the district court decided parsimony required a lower-than-guidelines sentence, deferential review is pretty scarce.

We'll see what happens in Gall, but as I said I'm not optimistic. Unless the original Booker 5, including Ginsburg, can get the band back together.

Posted by: Def. Atty. | Aug 10, 2007 6:22:07 PM

I am an attorney who has handled civil rights cases and criminal cases for 33 years.

The Judge says "We write in the hope ofheading off an avalance of utterly groundless sentencing appeals." The ominous threat of sanction for filing a frivolous appeal is there for all to absorb.
There is an article in the July issue of Harpers Magazine by Scott Horton titled "State of Exception--Bush's war on the rule of law". This is an eye opener. All of you who were kind enough to send in your comments might be pleased to read this piece wherein the new word and strategy of the executive is "Lawfare". As defined by Maj. Gen Charles J. Dunlap the Air Force Dep. Judge Advocate General the term means: "the strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective." The article describes how lawyers who are volunteering their services to represent Guantanomo detainees are being defamed and characterized as terrorists. When the legal profession is demonized and demeaned by the executive branch or congress it is one thing. When judges indulge in bashing defense lawyers for carrying out their duty to zealously represent their clients then we are on a slippery slope toward Stalinist justice. Ridicule the lawyer. "File an Anders brief rather than waste the court's time on a lost cause." It looks like they all will be lost causes where the defendant draws a panel with Posner on it.
In the Scott Horton article, he quotes Henry Peter Broghham, defense counsel for the Queen's consort in the early 1800s regarding the responsibility of defense counsel:
"An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on, reckless of consequences, though it should be his unhappy fate to involve his country in confusion."

Our Supreme Court adopted the ABA standards on the zealous representation of our clients in the recent case regarding ineffective assistance of counsel in Rompilla v. Beard. The well paid judges of our court system would do well to read Rompilla and not Posner. Those of you who wish to earn your bread by representing people in the criminal courts must either stand tall or slink away. Please do not defame the rest of us with timidity.

Posted by: M. P. Bastian | Aug 11, 2007 8:23:29 AM

Def Atty,

I don’t see things in as big a picture as you see them. Posner, sometimes, has a stupid side. He likes to bask in elitism, and he, like many judges, sees certain lawyers as not doing an adequate job. Mind you, he has little idea what these lawyers actually do, but he likes to blame them for not doing the job the way he considers well enough. The fact that he is an egotist doesn’t help matters. But, that doesn’t mean that he is part of some crazy Bushist pattern to destroy the country.

Secondly, I think Posner’s allusions while definitely allusions are not really cognizable. Although I agree completely with you – and was the first one to raise it on this blog – that his remarks create serious IA(A)C problems as a legal matter, I am unsure if lawyers will really be deluging the 7th Circuit with Anders briefs because Posner said something stupid.

As to the “lawfare” comment. A lot of stupid things have been said by JA and ex-JAs. But a lot of intelligent things have been said as well. Dunlap is not part of the Bush administration. Moreover, the last person IN the Bush administration to troll that line in public (Stimson) was forced to resign. I only have heard certain rumors about why he resigned, but let’s face it: when a good chunk of the large firms in DC and NY are now representing detainees , nobody in Washington wants to question the patriotism of their friends. Even Gonzo repudiated that statement.

Now, at some level, “law” is a part of war, so Dunlap’s statement is not inherently biased. The US uses the law to obtain “operational objectives” all the time. Nobody minds. Negotiating agreements, leasing bases, and dealing with foreign legal systems is what American judge advocates do every day. Whether a legal system is “misued” is obvious a matter of perspective. Whatever the case, I don’t think that there is any connection between Posner’s comments silliness, Dunlap’s vagueness, and Stimson’s extreme gaff.


Posted by: S.cotus | Aug 12, 2007 2:57:04 AM

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