June 30, 2009

McIlheran v. Ricci

If you ever want a laugh, check out the Milwaukee Journal-Sentinel's hapless "right-wing guy" Patrick McIlheran on matters law-related.

It seems Mr. P. McIlheran who in addition to his role as an op-ed calumnist is also a member of the daily newspaper's editorial board believes that the complexity of a legal issue is directly proportional to the number of written pages a court devotes to it.

"Guess the firefighters' case wasn't so simple," Fire Marshall Pat guesses, by way of setting ablaze and then attempting to extinguish his own freshly constructed straw man, Hero-Syndrome-style.

Apparently unable to offer anything else constructive, McIlheran resorts to a Federalist Society lawyer blogging at the Volokh Conspiracy, a highbrow gun nut website, before the said lawyer has even read the decision (he claims he's waiting for it to print):
Jonathan Adler says that while this won't stop Sotomayor's inevitable ascension to the high court, it is telling that the Supremes saw it as anything but a simple issue. Sotomayor & Co. disposed of it in a few brusque words too brusque, implied Justice Anthony Kennedy. Writes Adler:
"The fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel's handling of the case, and may raise questions about (Sotomayor’s) judgment."
What a ridiculous non sequitur.

In actual fact, it took the Court more than a dozen fewer pages (34) to "resolve this question" than the federal district court spent assessing the parties' claims in the first place (48).

(Contrary to the effects of Mr. McIlheran's lack of clarity, Sonia Sotomayor did not "help write" the district court's decision.)

And that's not including the several dozens more pages that the Second Circuit Court of Appeals expended in grappling with the question of whether to grant the case en banc review.

The balance of the Supreme Court's "nearly 100 pages" consists of a syllabus and dissenting and concurring opinions. One of the latter (Justice Scalia's) engages in speculative navel gazing at resolving an issue that wasn't even presented to the Court.

The other (Justice Alito's) bickers with the dissenters' presentation of the facts, which he nevertheless concludes has nothing to do with "resolving this issue" anyway. And obviously it was the five-justice majority which "resolved this issue," not the four dissenters.

As for Sonia Sotomayor's "few brusque words" (if they are indeed hers at all Mr. McIlheran hasn't the foggiest notion whether they were or not), they simply affirmed the federal district judge who, according to McIlheran's own system of measurement, treated the case as 33-1/3% more complicated and subtle than did the Roberts Court.

Among Sotomayor's "few brusque words," incidentally, was a categorical rejection of "empathy" playing a role in the three-judge panel's per curiam disposition, a notion that's been obsessing conservative Republicans at least since last October.

The bottom line is that the Supreme Court did yesterday what the Second Circuit simply does not have the authority to do: invade the province of Congressional legislative policy and muck about with the Supreme Court's own prior case law.

Normally a court exercising the like restraint is cause for self-satisfied celebration among conservative Republicans but when you're little more than a hack partisan/ideologue, then not so much.

Whereupon it's cause only for rank foolishness.

Conversely, if you want to read an op-ed columnist who actually knows what she's talking about, try Linda Greenhouse.


apc said...

Do you mind if I steal the word "calumnist?" That's absolutely brilliant.

illusory tenant said...

Help yourself.