Turning this thing back on . . .
Happy New Year! A couple of items today.
First, let's talk about the Second Circuit nominations. At the end of the year, the Senate sent both Chatigny and Carney back to the president. Not surprising on either account. The big news yesterday is that, while the president re-nominated Carney, he did not re-nominate Chatigny. From this article, it appears that Chatigny actually withdrew his name from consideration. The BLT describes this as Obama's first judicial nomination loss.
I have to admit to feeling disappointed about all of it. As I noted from the beginning, there always was a very good chance that the right wing would be able to take down this nomination. But watching how the right wing operated in doing so was quite interesting to watch: the same overheated and misleading talking points getting repeated ad nauseum all over the right wing until it was impossible to read anything about Chatigny anywhere without the writer mentioning the right wing's distorted view of his record. Reality and Chatigny's actual qualifications were essentially ignored. I had never followed a right-wing hit job so closely. The disappointment comes from seeing how a bunch of distortions can set the terms of the debate. It's a bit surreal.
In the end, it means that there is now an open seat on the Second Circuit without a pending nomination.
Second, I also neglected to post anything about Scalia's dissent from the denial of certiorari in Allen v. Lawhorn. He was joined by Thomas and Alito.
Honestly, I am not sure why the denial of cert. in this particular case compelled these judges to write a dissent.
Here's what happened: Lawhorn was convicted in Alabama of committing a murder for hire. At the sentencing proceeding, his attorney did not make a closing argument. Although the defense put on mitigating evidence, counsel did not actually make arguments at the close of the evidence that the death penalty should not be imposed.
Apparently, counsel was under the odd assumption that, if he did not make a closing argument, then the prosecution was not allowed to make one. I wonder if there is a statute in Alabama that somehow supported this assumption since I can't understand why an attorney would think that.
To me, this really is the crux of the matter. Counsel clearly acted in a deficient way. Seriously, can anybody reasonably argue that failing to make a closing argument explaining why the death penalty should not be imposed is somehow competent performance? It's WHY the attorney is there. I actually think it's safe to assume that some jurors could have interpreted this as a signal from the attorney that he has no objection to the imposition of the death penalty. It is just not how a death penalty sentencing proceeding should operate. That in and of itself should make any reviewing judge uncomfortable.
Of course, to make out an IAC claim, deficient performance is not enough -- even where it was as lacking as it was here. There needs to be prejudice. But I'll get back to that in a second.
The state court concluded that counsel had a reasonable strategy for failing to make a closing argument and that there was no prejudice because argument was unnecessary and would have had little impact based on the facts of the case. After losing in state court, Lawhorn was granted habeas relief by a district court judge. The Eleventh Circuit affirmed, finding that the deficient performance did prejudice petitioner. The Supreme Court denied cert.
In his dissent from the denial of cert., Scalia noted that the State did not challenge the conclusion that counsel was deficient. So Scalia does not make any effort to show that counsel's actions were somehow competent. Because, of course, they were not competenet. They were obviously deficient.
Instead, Scalia focuses solely on prejudice. He says that, under the extremely deferential AEDPA standard of review, there was nothing unreasonable about the state courts' conclusions that there was no prejudice (of course, these are the same state courts that unreasonably concluded that counsel was not deficient for failing to make a closing argument; but I guess it is possible for state judges to be both unreasoanble and not unreasonable in the same opinion). Scalia said that the state courts' conclusions about the lack of prejudice was not unreasonable.
He also attacked the (typically conservative) 11th Circuit's reasoning as to why there was prejudice. He said that that court's attempt to reconstruct what counsel could have said in summation and the potential effect it could have had was "lawless speculation."
He closed his dissent by criticizing federal courts for failing to follow the AEDPA. He said that, "[w]ith distressing frequency," federal judges are refusing to be governed by Congress's command that deference be given to state court decisions.
I am not sure why this case got Scalia (and the two judges who joined him) all hot and bothered. I really don't. He accused the Eleventh Circuit of engaging in lawless speculation in conducting the prejudice analysis, but every determination as to whether or not there was prejudice is based on speculation and guesswork about what the impact that a hypothetical change in the case would have had on the result.
Scalia disagreed with the Eleventh Circuit's conclusion that there was a sufficient level of prejudice such that habeas relief should be granted. So what? It was a fact intensive analysis, so I am not quite sure why the Supreme Court should be stepping in here. I don't see any compelling reason for review of this case.
And it must be emphasized that the attorney's performance here was notably deficient. Should the Court really make a poster child out of a case where the system broke down in such an obvious way?
The motivating factor for the dissenting judges seems to be Scalia's belief that there is some type of concerted effort among the (mostly Republican-appointed) federal judges to undermine the AEDPA. Now, I follow habeas law pretty closely. I do not see that happening at all. I don't even know if it is happening in isolation. In fact, I do not even see it happening in Lawhorn's case.
It only appears to be in Scalia's imagination that federal judges are "with distressing frequency" granting habeas relief by failing to abide by the AEDPA. It remains the case that habeas relief is rarely granted. Is Scalia saying that he will only be happy if it is never granted? I mean, if this epidemic of anti-AEDPA fever is really spreading, I hope that the federal judges in New York catch the bug. It feels to me like all I ever read is a federal judge giving a boatload of deference to the state courts.
Truly, if there are federal judges out there (and I mean anywhere) flouting the AEDPA, please send those decisions my way. I would love to read them.
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