The Wichita "Summer of Mercy" in 1991

In cleaning out some old files recently, I came across a file of newspaper clippings I saved from the summer of 1991, in which Operation Rescue invaded Wichita and subjected us to daily and never-ending protests against a local abortion clinic.

What jumps out at me now, 23 years later, is the story of three judges who became involved in this mess, one judge from each of the three levels of the judiciary. The first is Pat Kelly, a federal judge who was a robust, activist judge who cared deeply about the law. He issued an injunction regulating what the protesters could and couldn't do, and then it was his thankless task to try to enforce the injunction. The task was thankless because the demonstrators would be released and go right back and break the law again, and Judge Kelly became totally frustrated, as you might expect in this situation.

A Municipal Court judge, Harold Flaigle, was equally frustrated, as the run-of-the-mill city trespassing cases wound up in his court. He had hundreds of such cases every day during the height of the protests, and, by his own admission, was completely depressed at the futility of it all. He would release people, who would then be right back in his court within days.

The oddest example is state district court judge Paul Clark, who up until this point had been a highly respected judge with a distinguished record. But for some reason he completely fell of the deep end on the abortion protest issue. Twice Judge Clark was reversed by the Supreme Court when he made rulings that just totally ignored the law. Once he ruled that life begins at conception and that a protester was therefore legally justified in breaking the law. In another case, an appeal from Municipal Court in which the defendant was a repeat offender and therefore subject to enhanced penalties, Judge Clark inexplicably ruled that the city ordinance mandating enhanced penalties was unconstitutional, without giving any reasons explaining how he reached this conclusion.

In 1993 a protester named Shelley Shannon shot the abortion doctor, and she was charged with attempted murder. Judge Clark, as head of the Criminal Department, assigned himself the case, as had been his pattern with cases involving abortion. When his rulings in the pre-trial phase of the case became so bizarre and indefensible as to make the court system a laughingstock, the overall head judge, Michael Corrigan, took the case away from him and handled the trial himself. It took the jury only an hour to convict the defendant.

Actually the reason for Clark's aberrant behavior can be guessed at. It was well known that Clark was angling for a position on the Court of Appeals or the Supreme Court during the early '90's. It so happened that at the time we had a Democratic Governor, and one who was pro-life. It seems clear that Clark, a Democrat, felt he could finagle the appointment he desired with his bizarre rulings.

Also found in my files was a letter I had published in the December, 1992, issue of the ABA Journal, expressing strong support for a recent action by the ABA House of Delegates in taking a stand in favor of abortion rights. A fellow Kansas attorney, Philip Ridenour, weighed in on the other side of the issue in the February, 1993, issue of the ABA Journal. Mr. Ridenour's position was that abortion, like capital punishment and the decriminalization of marijuana, is not a legal issue, but rather a "moral, religious, and cultural issue", and the ABA therefore had no business commenting on it.

Since Mr. Ridenour was kind enough to send me a copy of his letter, I am moved to offer this belated response:

It is obvious from the discussion of the three judges above that abortion is very much a legal issue. Legalities were involved here, in that the law of the land was being blatantly disregarded and women's constitutional rights were not being adequately protected from the harassment of these out-of-state protesters. Lawyers have special insights into this sort of situation.

The same holds for the marijuana issue. We lawyers have seen what our stupid drug laws are doing to the judicial system, flooding it with cases which do not belong in the court system, and flooding our prisons with people who don't belong there.

The same holds for the capital punishment issue. We lawyers have special insight into what these cases do to the legal system. We know why it is that it costs more to execute someone than it does to hold that person in prison for the rest of his life. We lawyers have special insight into all the vagaries of capital punishment: the disparate treatment of minorities, the differences in how cases are prosecuted from one jurisdiction to the next, the problem with publicity-seeking DA's trying to make a name for themselves, etc.

So, while I understand Mr. Ridenour's point, his point is not well-taken because it does not stand up to scrutiny.

Yankee Fan Andrew Robert Rector files Ten Million Dollar Lawsuit?

What in the world has this country come to? This clown is caught on camera in a very public event, a Major League baseball game, sleeping in the stands. And he claims he has somehow been damaged by this?

This ridiculous lawsuit will be thrown out of court faster than you can say "Jack Robinson". What it says about our litigious culture speaks volumes. We have become a society obsessed with rights, and with no sense of responsibilities. Our descent into the ash heap of history remains intact.

9/1/16 update. I checked and sure enough, this case was thrown out, just as I predicted. On 8/17/15 the Judge threw it out in its entirely.

The Supreme Court Decision on Recess Appointments

The media has reported this decision as a loss for Obama, in a 9-0 vote. However, when one looks at the actual decision, it is apparent that it was a split decision, 5-4, with the liberals prevailing. At issue is a poorly-written and ambiguous provision of the constitution which gives the president the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The majority opinion, endorsed by the court's four liberals plus the middle-of-the-road Justice Kennedy, held that the appointments at issue were illegal because they did not fall within the definition of "recess", since the Senate met for a pro forma session every three days to ostensibly stay in business, and thus thwart the president's power to make recess appointments. This seems wrong on the face of it, since it is exalting "form over substance", something we lawyers are taught not to do. The Senate was, as a practical matter, not in session during the time of the appointments, even though it claimed to be.

The real issue here is the interpretation of the word "happen". The dispute is whether the vacancy has to arise during the recess, or whether the president can fill a vacancy which arose before the recess, but continued during the recess. The four dissenters (actually concurring justices), felt that the vacancy has to arise during the recess. The majority pointed out, correctly, that this holding would contradict two centuries of actual practice, and would thus be an extreme overreaching of judicial power.