Nick Kessler

Connecting the dots

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Thursday, March 27, 2003
A Small Win For The Good Guys, And The Usual Big Stink From The Bad Guys

The Supreme Court on Wednesday, by a 5-4 vote (O'Connor joined the four moderates), upheld the use of Interest On Lawyers' Trust Accounts ("IOLTA") programs. PLA explained these programs very thoroughly (link via Atrios), but the short version is that lawyers often hold cash deposits from clients that are too small to earn interest in individual accounts. Under IOLTA, these small deposits are pooled into a big account, and the interest goes to legal representation for poor people. Conservatives went to court, claiming that the IOLTA programs were unfair because the interest belongs to the clients. But as PLA noted, this has nothing to do with money lost by lawyers' clients. It was driven by conservatives who want to "defund the left."

The case was brought by the conservative Washington Legal Foundation (WLF), which has a very explicit goal: to "deal a death blow to the single most important source of income for radical legal groups all across the country...groups dedicated to the homeless, to minorities, to gay and lesbian causes, and any other group that has drawn money from hard-working Americans like you and me to support its radical cause!"

Upholding IOLTA was the right thing to do, and good results from the Court are wonderful. But regardless of this decision, the right will keep fighting for the shameful agenda stated by WLF. And while it's great when O'Connor behaves like an actual judge, seeing one of the court's five disgraced conservatives cross over on a single decision isn't much reason to celebrate. Don't forget that she's going to retire soon. Recall her public display of rage when Florida was called for Gore on Election Night 2000, and how her husband helpfully explained to the press that she wants to have a Republican president in office so she can retire. Her vote for the Republicans in Bush v. Gore means that she'll be replaced by a right-wing Federalist Society zealot--someone who will reliably side with the ones who want to make IOLTA illegal.

Scalia's Rude, Pathetic Dissent

Even in this opinion, we see that the right isn't finished with IOLTA. Scalia's dissent is a clumsy exercise in dishonesty, pretending that IOLTA is "taking" something from individual clients even though IOLTA accounts create money that these clients could never earn themselves. Scalia's response to the majority's simple holding is typically obnoxious, and he refuses to genuinely address the facts of the case. Instead of reasonable argument, he gives us what we always get from conservatives--constant repetition of his massively flawed conclusion and a steady tone of triumphant arrogance.

Keeping in mind that this case is all about sticking it to the groups hated by the right, Scalia unsurprisingly drops in some obnoxious sarcasm and accuses the majority of basing its decision on a desire to fund liberal causes:

"Surely it cannot be that the Justices look more favorably upon a nationally emulated uncompensated taking of clients' funds to support (hurrah!) legal services to the indigent...."

He proceeds to ludicrously pretend that the majority simply wants to steal money from rich people:

"Perhaps we are witnessing today the emergence of a whole new concept in Compensation Clause jurisprudence: the Robin Hood Taking, in which the government's extraction of wealth from those who own it is so cleverly achieved, and the object of the government's larcenous beneficence is so highly favored by the courts (taking from the rich to give to indigent defendants) that the normal rules of the Constitution protecting private property are suspended." (Emphasis added.)

Scalia is insisting that IOLTA interest has been stolen from its rightful owners, and darkly warns that the decision has therefore freed liberals to steal whatever they want by passing laws that say "you can’t have this." As his conclusion becomes even more obviously unsupportable, it's plain that he's just out to scare wealthy conservatives.

Competing Footnotes: Reason v. Immature Posturing

The majority drops a footnote that patiently explains why Scalia's argument is silly and wrong:

"The first hypothetical posed by the Ninth Circuit dissenters illustrates the fundamental flaw in Justice Scalia's approach to this case. Under his view that just compensation should be measured by the gross amount of the interest taken by the State, the client should recover the $.55 of interest earned on a two-day deposit even when the transaction costs amount to $2.00. Thus, in this case, under Justice Scalia's approach, even if it is necessary to incur substantial legal and accounting fees to determine how many pennies of interest were earned while petitioners' funds remained in escrow and how much of that interest belonged to them rather than to the sellers, the Constitution would require that they be paid the gross amount of that interest, rather than an amount equal to their net loss (which, of course, is zero)." (Emphasis added.)

But Scalia uses his own footnote to posture like any conservative commentator. Once again, he responds to the majority by completely ignoring what they actually said, and blithely repeating his mantra:

"IOLTA funds can earn net interest for the client when placed in IOLTA accounts--because all interest earned by funds in IOLTA accounts is the client's property."

Scalia's not even arguing, but that doesn't matter when you're the big "thinker" on the right. He just keeps on saying "I'm right," knowing that in his conservative world his blind ideological comrades will always cheer his work no matter how poor it is.

Kennedy's Sore-Loser Dissent

Sure enough, Kennedy starts off his own dissent with embarrassing praise for Scalia: "The principal dissenting opinion, authored by Justice Scalia, sets forth a precise, complete, and convincing case for rejecting the holding and analysis of the Court." That's how conservatives on the Supreme Court say "megadittoes."

Kennedy also gets in his own little jab at the majority, bemoaning the unfairness of forcing clients to give up "their" money for the benefit of godless liberal groups (or as Kennedy puts it, "causes the justices of the Washington Supreme Court prefer"). He promises that these matters in IOLTA contain "the potential for a serious violation," and that they "may have to come before the Court in due course."

In other words, if you think conservatives will live with a victory for the homeless, minorities, gays and lesbians, just wait until next time.

Tuesday, March 25, 2003
Cold, hard facts

Virginia Governor Mark Warner has vetoed the Republican-dominated state legislature's estate tax repeal. Republicans will now try to override the veto, not only because they're tax cut fanatics but also to deny Gov. Warner a legislative victory. However, it may be difficult for them to win this one. They only control the state Senate by a small margin, and one Democrat (Sen. Linda T. "Toddy" Puller of Fairfax County) who previously supported the GOP bill now says she will not vote to override. She's had the chance to find out what estate tax repeal is designed to do:

"I've learned more about it, that most of the money goes to a very few people," Puller said."

Well said.

Monday, March 24, 2003
The administration got its latest upper-income tax cut thanks to votes from Congressional Republican "moderates." (Link via Daily Kos.)

These members invariably get adoring treatment from the media, who describe them as "free-thinking independents," while in truth they regularly sell out their constituents to side with the Republican leadership. (Hint: this is why Democratic voters shouldn't support them.) The House's Republican "moderates" explained away their partisan tax-cut votes by pretending that this bill's excesses might later be reduced:

"The wavering centrists ... made it clear they voted for the budget only because they expect a more acceptable version to emerge from negotiations between the House and Senate."

That's the sad truth about GOP "moderates." They just rubber-stamped their party's bill, but we're supposed to call them heroes because they say they don't really want its terms to become law. These are the people who allegedly force the Republicans into moderation, yet they're incapable of challenging their party leaders or even just refusing to vote for a bad bill. What are the chances of a "more acceptable version" emerging from the House-Senate conference? The Senate did pass a bill with language that stripped away $100 billion from the full $726 billion GOP upper-class tax cut (a whopping 13.8% difference--not much of an achievement for the Senate's own GOP "moderates"). But don't expect even this small reduction to stand: "GOP leaders said they will try to restore that amount when House and Senate conferees meet to reconcile differences in their fiscal 2004 budgets."

Despite the guarantee from the House GOP "moderates," the House-Senate conference will not produce a reasonable bill. Instead, Republican leaders will use the conference to ensure that the final tax cut is just as large as the House version. Nobody is actually going to step in to erase the extremely conservative votes cast by these "moderates," demonstrating once again that their solemn promises are worthless and that their "moderation" itself is a sham.


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