The Inadequate Suitor: David Boies’s ‘Courting Justice’

If there is any enlightenment in ‘Courting Justice,’ the new book from renowned lawyer David Boies, it comes from a personal political journey rather than an unusual legal odyssey. This exhaustive and exhausting memoir, filled with Boies’ cases, culminates in a lengthy reflection on Gore v. Bush and the disputed election of 2000. Unfortunately, for the bulk of the book, despite being involved in many of the most important legal dramas of our time, Boies fails to say much of interest about courts or justice—as it turns out, he is a man too preoccupied with process to deliver real legal insights. But where the book fails as a jurisprudential document, it succeeds wonderfully as a political one. And with another election that could again hinge on the vagaries of ballot design, absentee voters, or new registrants, it is a particularly interesting time in which to step into David Boies’s world.

Boies’s world is full of high stakes trials and delicate negotiations. It’s good to be known as a super lawyer—called in to deal with some of the most complex and interesting cases of the last decade. And because of his position, Boies should be uniquely able to bring us inside the delicate machinery of the some of the major cases he’s worked on--The Yankees and Major League Baseball, The Federal Government and Microsoft, Sotheby’s and Christies. Unfortunately, these sections of the book are a lot less fun to read than they might be. Together, they feel like taking a tour of Big Ben with a guide who speaks Creole—the beauty of the clockwork and the majesty of the massive gears and levers are utterly apparent, but the tour guide is nearly incomprehensible.

Part of the problem is the style—Boies writes in such unaffected prose that sentences like “For me the settlement was a mixed blessing. We had won my client what he most wanted, we had earned our firm a multimillion dollar fee (we had taken the case on a contingency fee basis), and I was now free to meet Mary in Las Vegas for a Fourth of July Weekend.” represent the empyrean of his emotional repertoire. Even when he’s writing about asbestos litigation or a complicated international custody case, Boies seems propelled less by the high-octane fuel of justice as by the even more combustible mix of money and intellectual challenge. Boies might well be courting justice, but for most of the book, he is an unworthy suitor.

The other problem, is that in the end, Boies is a process man, albeit a deft one. He is fascinated with the mechanics of legal practice rather than the significance of legal strategy-and the two are rarely the same. For page after page and in case after case, Boies explains where a meeting took place and who called whom rather than why that call was important, regularly making the same mistake as the current president in believing that “I talk to them” is as important as what was discussed and why.

It is only in Florida that the most important element of any legal memoir — outrage -- finally emerges. But when it does, Boies is finally able to deliver the good stuff. Though an hour by hour account of who went where, and who made the decisions that left polling places open, or started and halted the recounts at various offices around the state, Boies is able to illustrate what eludes him throughout the rest of the book—his mastery of complex systems and his ability to synthesize situations in ways that move the levers of power. In other words, the reason he’s actually a great lawyer.

Unlike his other cases most of which take place over long swaths of time, Florida has a temporal compression that seems to spur Boies to write about the long nights and harrowing days in a style that is, if not quite compelling, at least engaging. Moreover, his position inside the discussions, makes the content wonderful. Eavesdropping on the Gore team’s assessments of Katherine Harris, their debates about pursuing a ‘protest’ versus a ‘contest’, and the decision about how to engage the press and how to frame the argument should be required reading for political science undergrads everywhere.

The case seems to have been a turning point for him personally as well, and it is in his experience in Florida that Boies is finally willing to take the gloves off—openly discussing his assessment of the politics of the judiciary, and the subtle but critical ways in which a series of partisan republican state officials were able to influence the timing and ultimately the outcome of a national election. It’s as if, in discussing Florida, Boies is able to drop the pretenses of the law and finally embrace the underlying realpolitik. Operating in a forum in which law and politics are inextricably linked—Boies gets excited, and this time, his breathless procedural discussions work—because as we learn, in politics process is everything. As a consequence, the Gore v. Bush chapters finally deliver real insight into the nexus between politics and justice.

For Boies, Florida is ultimately a cautionary tale about the corrupting influences of partisan politics and the corrosive effect that has on the law. This is nothing new, of course, but the personal story of Boies’ Florida apostasy works precisely because of the flaccidity of the rest of the book. And by the end of his account, the outrageous electoral theft, actually feels as bad as it was. And that, as we head into November, just might be a good thing to remember.


Sicko Texas Judge Celebrates Sentencing Someone to Life in Prison

This is what being tough on crime has become—judges who actually mock the people they sentence to die in prison. No surprise the guy took off—imagine how fair the trial he was getting must have been.

The New York Times > AP > National > Texas Judge Has Party, Sentences Fugitive

Shameless Republicans Gut Loan Program for the Poor

In yet another indication of how W(imp) only serves the rich, his stoolie's on important committees are proposing to gut the Community Reinvestment Act--one of the federal government's greatest engines of development in underserved areas. If you ain't white and rich, after all, why should you get a loan?

The New York Times > New York Region > U.S. Set to Alter Rules for Banks Lending to Poor



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Whimpering Right-Wing Millionaire Station Owners Cowed by Own Stupidity

After their highly publicized attempt at abdicating all journalistic integrity in favor of rank partisanship got them in hot water, the imbeciles at Sinclair Broadcasting have decided to run only a part of their Anti-Kerry broadside. These right wing scum deserve nothing short of having their licenses pulled and a persistent boycott of anyone who advertises on their stations.

The New York Times > Reuters > Business > Sinclair Will Not Air Kerry Show in Entirety

Burning Bush...

A nice piece on Bush and his antipathy for science. Though I think he'll be singing a different tune when all his rich friends with homes on the coast find their pretty multi--million dollar homes submerged. I hope they remember ole, 'W' then.

The New York Times > Science > Bush vs. the Laureates: How Science Became a Partisan Issue


Brother of Unibomber...

A rare glimpse into David Kaczynski's personal crusade against the death penalty. He is a courageous committed man. We should all be so principled.

The New York Times > New York Region News


Bill O'Reilly's Caribbean Sex fantasy (I'm not kidding)

This from the sexual harassment complaint filed against Mr. no-spin zone. A close read reveals a little Latin thrown in... Now that's a Modus Operandi!

The Smoking Gun: Archive

Wimpy Judges are Scared to Follow SJC's ruling...

As usual even the outrageous detentions aren't gonna be remedied by wimpy judges terrified of public condemnation.

No one gets out.... - Local/ Regional News: Lawyers make pitch to SJC on pay for indigent defense



The lesson of Friday’s debate seems to be the even something as elemental as slavery can be twisted by the multiple malapropos machine that is President George W. Bush. The confusion came midway through the second presidential debate, held Friday night in St. Louis, in the chatty ‘town hall’ style that allows the candidates to roam around half a room (there is a line in the carpet the candidates can’t cross) answering questions posed by carefully culled ‘ordinary Americans’. “Mr. President,” Jonathan Michaelson intoned, “if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who do you choose and why?”

Good question. We haven’t heard much yet about the Supreme Court and what might happen to our basic liberties if the respective candidates are elected. Given the age of the current court, (Only Thomas is under 65. Stevens and Rhenquist are both over 80) at least one and likely several vacancies will occur in the next four years, and given the delicate balance on the court, additional ideologues could potentially radically reshape the jurisprudence of the court for many years to come.

Michaelson’s question was fairly straightforward, but in the twisted rhetoric that passes for political discourse these days, Bush first opted to answer the question in the negative. After a little joke about not naming names, Bush first described who he wouldn’t pick—people who refuse to let school kids say ‘under god’ during the pledge of allegiance, and, in a strange reference to the Dred Scott decision, those who are pro-slavery.

Zeroing in on the principal value of a Supreme Court Justice, Bush explained that he wanted someone who is a “strict constructionist’—someone, that doesn’t allow personal opinion to enter into the decision making process. That, according to the President is what leads to cases like the pledge of allegiance, and the Dred Scott decision-- which Bush described this way: “judges years ago said that the Constitution allowed slavery because of personal property rights. That's a personal opinion; that's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.”

Um, actually, no. You don’t have to read far into the constitution of the United States to find the imfamous 3/5th compromise—in fact it’s right there in Article I Section 2. You only have to read the first four sentences or so—a mere 150 words to find it—the embarrassing nod to slavery that defined slaves as three fifths of a person. As it turns out, the constitution spoke quite clearly about the equality of America—just not in words we’re particularly proud of now. It’s important to note that the 13th, 14th and 15th amendments, dealing with the abolition of slavery and equal protection under the law hadn’t been ratified when the court was called upon to decide the Scott case. And so, If anything, Dred Scott was very much a strict-constructionist decision.

As little as we like it, neither the text nor the tradition of the constitution, understood as they were in the 1850’s, support Bush’s “equality of America” rhetoric. In fact, if you were to give an interpretive test to the justices today—handing them a copy of the Constitution as it existed then—sans 13th, 14th and 15th amendments, and asked them to decide Dred Scott all over again, it is Scalia (with Thomas concurring) that would likely re-produce the reviled result Justice Taney came up with back then.

Not only did Bush get his history wrong, not only did he misunderstand the constitution, but in his invocation of the Dred Scott decision, he committed the very sin he would condemn democratic appointee’s for—imposing his own vision of America on the text of a recalcitrant document. And that, is precisely the problem.

For more interesting analysis take a look at Timothy Noah's piece in slate...


They Screw Immigrants Don't They?

Finally a tiny bit of press for the river of indigent defendents getting deported for ridiculous reasons after a generally productive life here. Another shameful aspect of the Ashcroft Justice Department/INS.

The New York Times > New York Region > When a MetroCard Led Far Out of Town


Call to action

Call to action

You've heard that Sinclair Broadcasting is ORDERING it's affiliates to air anti-kerry agit-prop? It's true. I just got this from an insider...please send e-mails to the folks listed below to stop this.

Hi David--
I just checked with my news director and unfortunately, it *is* back on the air. As of Thursday when I left work, it had been canceled but now I'm told it's back on the schedule!

Believe me, I will fight this all the way but in the mean time, please contact Sinclair and let your voice be heard.....
please send your emails to the following:

These are the "higher ups" who've made this decision. If you could do me a favor and share these emails with others who are concerned and please remember that News at Nine has NOTHING to do with this. "The Point" is produced in Baltimore and has no affiliation with our local news. It's important that we get that message out.

Talking Points Memo: by Joshua Micah Marshall: October 03, 2004 - October 09, 2004 Archives

David E. Kelley Finally Burns Out...

In a fictional Boston bar, over a generous tumbler of presumably good scotch, Denny Crane, the aging, charismatic, senior partner played brilliantly by William Shatner utters the moral premise of David E. Kelley’s new show. Dismissing the breakdown of one of his partners, Crane muses that “from time to time he’d look at himself in the mirror and ask ‘what’s the point’. I never do that.” Crane murmurs “Questions like that’ll kill you.”

Alas, even David E. Kelley can burn out. After eight seasons of ‘The Practice” Kelley, like a few of his characters, has finally spent a bit too much time around the tawdry, poorly lit, criminal courthouse. And like most legal burn-outs, his gaze has shifted from justice to money. The result is “Boston Legal,” his new show, premiering October 3rd on ABC. ‘Boston Legal,” a deeply Bush-era show, peddles fashionable stereotypes of highly paid, unscrupulous lawyers. In other words: it is the perfect vehicle with which to ride the zeitgeist.

Watching the early years of ‘The Practice’ it was clear the Kelley had found his m├ętier. With a keen eye for the nuances of criminal procedure and a musical ear for the cadences of courtroom advocacy, ‘The Practice’ was the first, and perhaps the only television show to accurately plum the pathological depths of committed criminal defense lawyers. As the seasons progressed though, and
Kelley continued to mine the paradoxes of legal ethics—including that the criminal lawyers the public considers most vile, are often the most righteous -- the show began to loose its focus, rhythm, and, perhaps most grievously, its moral compass. Finally, in the closing season, as he ingeniously used the end of ‘The Practice’ to build the back-story of the new show, Kelley seems to have shared in the experience of so many criminal defense lawyers, emerging from ‘The Practice’, jaded, contemptuous, and greedy.

“Boston Legal,” is explores the notion that legal ethics and morality are not only not co-extensive, but in fact, fundamentally at odds. It is a show is built around disillusionment. The lawyers in Boston march around cheerfully highlighting their philandering, extortionate ways. They are engagingly sexed up and charmingly despicable: a straw firm of amoral 21st century Bonnie and Clydes, stealing from the rich, lining their own pockets, and abusing the law, all for the sheer egotistical thrill of it all.

Before the title sequence has ended, Crane has ordered damaging documents and scientific studies burned, and stabbed one of his partners in the back. Minutes later we discover he’s sleeping with a client’s wife. What’s that point of all this bad and bed behavior: Denny says it best: “You don’t ask. That’s the point.”

Everything about ‘Boston Legal’ is a rebuke to ‘The Practice’. The big name protagonists, James Spader and William Shatner (both in rare form) are big, brash, swaggering figures—a far cry from aging Eleanor, pudgy Jimmy and scowling Eugene. The lighting is crisp, clean and smart—no darkened corners or grey reflected light. “Boston Legal” exists in perpetual sunshine, while ‘The Practice’ was lit as if every beleaguered ray of sunlight had somehow managed to penetrate a windowpane caked with the grit of a thousand missed opportunities.

The other half of the dysfunctional dyad at the center of Boston Legal is Alan Shore (played gamely by James Spader). Spader—at his absolute best playing a character whose fealty is only to his deeply damaged self—is like a high-gloss Andy Sipowicz, simultaneously troubled and triumphant in a way it is disturbing to process. And between them, Crane and Shore form a perfect Machiavellian legal universe, where results trump process and conscience is a woeful liability. “You blackmailed him” a disgusted partner says to Shore. “You make it sound unsavory” Shore replies accusingly, his signature crooked smirk plastered across his face.

By exploring the well-tailored, oversexed, pathologies of handsome but unsavory characters, “Boston Legal” is sure to provide outstanding entertainment. But more than that, it is sure to tap into a deeper perception that lawyering, for all its old amusements, is now a profoundly bankrupt profession. The problem of course, is that a popular show not only reflects the zeitgeist, it creates it.

Sadly, “Boston Legal” is good television, and it is likely to succeed both as entertainment, and as a massive revenue generating machine. But if the formula lasts, and if, four years from now, resilient greed, sexual depravity, and strident amorality continue to sell, and “Boston Legal” leaps the 100 episode syndication hurdle, guarantying millions for all involved, and many times that for Mr. Kelley, we should nonetheless hope that his next project will be better. That, despite our impending sojourn in jurisprudential Sodom and Gomorrah, Kelley’s exquisite sensibility, and unstoppable creativity will eventually lead us all back to a better world--one where justice and fair dealing once again mean something, where procedural rights aren’t ridiculed as technicalities, where men and women of good character are judged by their striving not their wardrobes and one where Bobby Donnell, Eleanor Frut and Eugene Young once again, win all of their cases.


Trial and Errors: The Detroit Terrorism Case Unravels...

What makes this expose brilliant, is that it beautifully demonstrates the dangers of prosecutorial zeal, and once again puts the lie to the notion that Convertino (the lead AUSA) was a lone bad apple. Clearly, the rot in the criminal division of the justice department goes far higher--possibly all the way to the president. Let's not forget that it was Bush who, spoke approvingly of this embarrasing, disgusting prosecution.

The New York Times > National > Trial and Errors: After Convictions, the Undoing of a U.S. Terror Prosecution


Bloody Dick

Within three questions, John Edwards has taken the high ground, framed the debate, and relentlessly attacked the Vice President. It's astonishing. You gotta love trial lawyers. This is looking like the kind of rollicking debate we've been waiting for.

Federal Sentencing Guidelines are Gonners....

It seems pretty clear after yesterday's arguments in Booker and Fanfan that the guidelines are about to die a Blakely related death. As usual, Doug Berman has some great stuff on this, as well as some entertaining speculation on when the ruling comes down. (My guess is last week of October). Here's the link to Doug's always enlightening blog...

Sentencing Law and Policy