Pope Fraud!

Allegations of widespread "voter fraud" is a story I've followed with some interest over the past few years, despite the fact that "voter fraud" in the United States is virtually non-existent. This factoid seems not to discourage anyone, and certain themes stand out in the attempts to stir up a panic about it:

1) Voter fraud is an organized part of a vast conspiracy to bring America under the dominion of scary Marxist brown people, probably at the orchestration of ACORN.

2) Voter fraud is epidemic, despite its empirical rarity.

3) Relatively minor instances of voter irregularities will be drummed up and exaggerated beyond all reason as proof of said epidemic.

Following these conclusions gives a rather different spin on this report about the circumstances of Cardinal Bergoglio (now Pope Francis') election to the papacy:

What happened? After the fifth ballot was cast and the ballot box containing the votes of the 115 cardinal electors opened, the ballots were counted as always before being scrutinised and the resulting number was 116. There was one extra ballot. One of the cardinals had mistakenly placed two ballots in the box without realising it: one contained the name of his preferred candidate and the other was blank.

The mistake meant the whole voting session had to be cancelled, without the ballots even being scrutinised. If they had, Bergoglio would probably have probably come out on top. It was decided that another vote should be cast immediately. The mishap would not have influenced the cardinals in any way as none of them knew what name (in this case none) was on the extra ballot. On the sixth ballot and after the fifth scrutiny, the Archbishop of Buenos Aires won a clear majority: way above the expected quorum of 77 votes. Then the white smoke billowed out of the Sistine Chapel chimney and Pope Francis greeted the crowds for the first time.

Seems an amusing if innocuous story. But translated into the American fever swamp coverage of voter fraud, and we'd get something like this:

Catholics were shocked when Hispanic Cardinal Jorge Bergoglio was elected to the Papacy. His radical views and known ties to Latin American Marxists have already manifested in a papacy that has at every turn eviscerated traditional Catholic values. But the mystery may have been solved: A Breitbart exclusive reveals that his "election" may have actually been the result of widespread fraud in the sacrosanct election proceeding. Sources inside the Vatican have confirmed that one of the election rounds simply wasn't counted after an unrevealed Cardinal was caught trying to stuff the ballot box. Despite evidence of a potential corruption scandal, allies to Cardinal Bergoglio not only refused to tabulate the ballots, they forced a highly irregular immediate revote where their preferred candidate surged to a shocking victory .....

And so on and so forth.

We Are ... The Resistance

And this, ladies and gentlemen, is why I wanted to become a lawyer.

The government has moved to ban the [defense from using the] word “government” [to refer to the prosecution]. The State of Tennessee offers precisely zero legal authority for its rather nitpicky position, and the defense can find none. The Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff’s proposed ban on speech would violate the First Amendment. The motion should be denied.

Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the speech code. First, the Defendant no longer wants to be called “the Defendant.” This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes Mr. D.P. The word “defendant” should be banned. At trial, Mr. P. hereby demands to be addressed only by his full name, preceded by the title “Mister.”

Alternatively, he may be called simply “the Citizen Accused.” This latter title sounds more respectable than the criminal “Defendant.” The designation “That innocent man” would also be acceptable.

Moreover, defense counsel does not wish to be referred to as a “lawyer,” or a “defense attorney.” Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the “Defender of the Innocent.” This title seems particularly appropriate, because every Citizen Accused is presumed innocent.

Alternatively, counsel would also accept the designation “Guardian of the Realm.”

Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. Whenever addressed by name, the name ”Captain Justice” will be appropriate. While less impressive than “General,” still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.

Along these same lines, even the term “defense” does not sound very likeable. The whole idea of being defensive, comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself “the Resistance.” Obviously, this terminology need only extend throughout the duration of the trial — not to any pre-trial motions. During its heroic struggle against the State, the Resistance goes on the attack, not just the defense.

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.

The government's motion was denied.

The Importance of Being Earnest

There is a widespread consensus that the attorney who argued for the plaintiffs in Schuette v. Coalition to Defend Affirmative Action (regarding the constitutionality of Michigan's anti-affirmative action constitutional amendment) did a poor job. The chatter about her performance is amplified because she was not originally scheduled to argue the case, instead substituting at the last minute. There's been a lot of speculation about why that happened, but Tony Mauro may have uncovered the answer:

Detroit civil rights lawyer Shanta Driver made a last-minute decision to argue in a high-profile Supreme Court affirmative action case on Oct. 15 in part, she said, because so few African-American lawyers appear before the justices.

Speaking at a rally of affirmative action supporters in front of the court after the argument, Driver said that only one black lawyer—who spoke for 11 minutes—appeared last term before the justices. It was important, she added, for her as a black woman to argue in Schuette v., Coalition to Defend Affirmative Action to show the justices that someone “who really could speak for the movement” was making the case to save affirmative action.

Her comments, which have gone unreported, help solve the mystery surrounding Driver’s surprise appearance before the court in one of its most important cases of the term. Until the morning of the Supreme Court arguments, Driver’s law firm partner George Washington, who is white, was listed by the court as the one who would make the case for state programs that give a boost to minorities.

Josh Blackman declares this to be "startling" and "patronizing to the Justices." But I'm not sure that's fair.

I should preface by saying that I don't have an opinion on whether the attorney's performance was in fact good or bad -- both because I haven't listened to the argument and, more importantly, because I agree with the also-generally-agreed-upon consensus that she was drawing dead to begin with. And we will never truly know whether the decision to swap in Driver would have made any difference. Counterfactuals are of course impossible and most people are skeptical that the quality of oral argument really impacts the Supreme Court's decisions, particularly in high-profile cases like this.

All that being said, I do want to make the simple observation that the way in which the race of an advocate or interlocutor affects the way we make decisions is an empirical and psychological one, and shouldn't be waved away on the grounds that it is "patronizing." There are many people affiliated with the Court in the early 90s who are convinced that the presence of Thurgood Marshall deterred his colleagues from being as aggressive as they would have liked in rolling back Warren Court race precedents, and that it made a significant difference when he was replaced by Justice Thomas. Driver seemed to think that it was important for liberal judges to see her, and perhaps her presence would impact how hard they'd dig in their heels in writing their dissent (or whether to dissent at all).

The point is that the impact on race in modern society is often framed in terms of politeness -- it's impolitic or rude to speculate that something like race might matter. But the impact of race on perception exists independently of how we would like polite society to operate, and we shouldn't be short-changing inquiry into the question by framing the entire question as ill-mannered.

Energizer Bunnies

I had my first day of work today. Obviously, I've had quite a few "first days of work" before, but this one was different because unlike all of my previous jobs, this one is of indefinite duration. Summer jobs end with the summer ends, my clerkship and my teaching position were both for defined one-year stints. But my tenure at a law firm can continue on and on, until one of us decides to cut the cord. In the words of Community's Mr. Radison:

This is forever. This is what we do now. This is who we are.

But God willing, someday I will win regionals.