The Daily Top Five: March 15, 2007

First, a great big Happy Birthday to my Father, Senior Chief Petty Officer Bernard Johnston (USN, ret), who turns 61 today!!! He is a fantastic father, a great inspiration and all around good man. We need many more like him in the world.

1. "The Rumors of my demise have been greatly exaggerated!!!" David Broder reminds us that campaigns matter and that depsite what teh NY Times has to say, reports of the GOP's implosion are not only hasty but unwarranted.

But the only thing we know for certain about the 2008 election is that we know none of the vital facts that will determine its outcome. We don't know the identities of the candidates or their strengths and weaknesses. We don't know where the war will be or what new challenges terrorism and other international forces may present. We don't know what condition the economy will be in, and we don't know what fears or hopes will animate the voters.

What we do know -- or should know -- is that campaigns make a difference. Those who can't wait will get egg on their faces.

2. RightWingProf has some practical advice for all teachers, of any level. Too many of these are ignored, particularly as you move higher and higher into education. If ind that these can apply to anyone in a position of imparting knowledge or advice.

3. The Supreme Court will consider the prohibition on corporate funding of campaigns recently upheld by the Supreme Court in McConnell v. FEC. Marty Lederman has the links to motion by Wisconsin Right to Life and the Chief Justice's order permitting the brieging of the question. Rick Hasen has more thoughts on the matter here.

4. This story at Salon.com has all the right ideas and all the wrong conclusions.

Our system of government tries to limit the sway of partisan politics over the law by giving life tenure to federal judges. But it doesn't do the same for the attorney general or the lawyers who work for him. They serve at the pleasure of the president, to whom we grant the legal authority to fire anyone from his team for any reason.

The straightforwardness of this rule helps explain why the Bush administration's firing of seven U.S. attorneys at the beginning of December, plus an eighth last summer, didn't immediately ignite into controversy. But what's come out since then makes clear that this targeted removal of prosecutors was different in kind as well as degree from political dramas at the Department of Justice in prior administrations. In the context of other Bush administration assaults on DOJ lawyers, the U.S. attorney scandal confirms the administration's disdain for the nonpolitical tradition of federal law enforcement.

First, the writer, Licoln Caplan, notes that judges are insulated from political pressure in a way that U.S. Attorneys are not. This is of course true, because the judiciary is a co-equal, third branch of government under our Constitution. U.S. Attorney are part of the executive branch and not even a high ranking part of that branch (in teh grand scheme of things). Caplan later notes:

Why should U.S. attorneys be insulated from presidential politics? White quoted from a 1940 speech to U.S. attorneys by Robert Jackson, then attorney general and later Supreme Court justice: "The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous." The power of law enforcement to tarnish reputations, end people's liberty, and ruin lives, in other words, is so great that it has to be exercised judiciously and, above all, nonpolitically. That's one basic element of the rule of law. U.S. attorneys and other Justice Department lawyers have lived by the declaration of evenhandedness carved into the rotunda of the attorney general's office: "The United States wins its point whenever justice is done its citizens in the courts."

All due respect to Justice Jackson's beliefs about non-political justice, but there is a marked difference between what is happening here. From all reports I have read, these U.S. Attorneys were fired for not following the policies of this Administration and that is insubordination. That is a firing offense.

5. The (non)Flyig Imams have filed a suit against U.S. Airways and the Minneapolis Metropolitan Airport Commission for discrimination. Now here is what has got to be a dangerous suit. First, and foremost, U.S. Airways is a private business, they can choose to serve or not serve who ever the choose for whatever reason. The actions of the imams that day (as described in this article) would have made anyone suspcious and the pilot was well within his rights to boot them from the plane. The judge in this case should excuse the airline from further action. The Airport commisison is a little more difficult since it is a governmental body. But even then the action of the Airport Commission were reasonable and despite claims to teh contrary were not discriminatory. But as the article notes, U.S. Airways and the Airport Commission have the funds to defend themselves, the problem goes deeper:

But the most alarming aspect of the imams' suit is buried in paragraph 21 of their complaint. It describes "John Doe" defendants whose identity the imams' attorneys are still investigating. It reads: "Defendants 'John Does' were passengers ... who contacted U.S. Airways to report the alleged 'suspicious' behavior of Plaintiffs' performing their prayer at the airport terminal."

Paragraph 22 adds: "Plaintiffs will seek leave to amend this Complaint to allege true names, capacities, and circumstances supporting [these defendants'] liability ... at such time as Plaintiffs ascertain the same."

In plain English, the imams plan to sue the "John Does," too.

Who are these unnamed culprits? The complaint describes them as "an older couple who was sitting [near the imams] and purposely turn[ed] around to watch" as they prayed. "The gentleman ('John Doe') in the couple ... picked up his cellular phone and made a phone call while watching the Plaintiffs pray," then "moved to a corner" and "kept talking into his cellular phone."

In retribution for this action, the unnamed couple probably will be dragged into court soon and face the prospect of hiring a lawyer, enduring hostile questioning and paying huge legal bills. The same fate could await other as-yet-unnamed passengers on the US Airways flight who came forward as witnesses.

So the goal is to intimidate John and Jane Doe into fearing that if they report suspicious behavior they will be dragged into court for being "racist." In the end, it is a political and legal strategy designed to ensure there are no witnesses against them and could backfire badly.