A Terrible, Horrible, No-Good, Very-Bad Week in the Law

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I was supposed to be on vacation this past week, supposed to be lolling through the bluegrass in beautiful Kentucky watching sleek harness horses trot holes into the wind. And perhaps if I were--tapping out my pieces from the weather-worn press box at the Red Mile racetrack in between the races--the week's discouraging array of legal stories might have been a little easier to take. Would you like another Ale-8-One with your Woodford, Mr. Cohen?

Day after day, drip after drip, came bad tidings. That creaking sound you thought you heard Monday? It was the sound of a thousand honorable judges all over the country rolling over in their graves at the news that the Texas judicial system has officially whitewashed from the record the disgraceful conduct of Judge Sharon Keller. She's the jurist who inexcusably blew off a last-minute appeal from a condemned man--an appeal that would have stayed his execution but did not--because she had to meet her repairman at home. How Texas--and the state bar association--can countenance such conduct unbecoming a judge beggars belief.

At least there is one member of Congress courageous enough to speak out against such "lawless" behavior by a judge. Oh, wait. I must have had too many Woodfords. I was initially encouraged when Rep. Steve King (R-Ia.) came out Tuesday with the following statement: "Lawless judges should be removed from the bench.... Judges should not be rewarded for flagrant disregard of the Rule of Law and the American people should respond by pursuing avenues which would result in the removal of lawless judges from the state and federal bench."

But then I realized that Rep. King wasn't talking about Judge Keller, he was talking about U.S. District Judge Virginia Phillips. And that he wasn't criticizing Judge Keller for her heartless misconduct but rather was criticizing Judge Phillips for the substance of her principled decision to enjoin enforcement of the U.S. military's controversial Don't Ask, Don't Tell policy. You can be sure that the courthouses in Iowa stay open for Rep. King, the public servant also known for proclaiming this summer that President Obama favors blacks over whites.

Like all other members of the House of Representatives, Rep. King is in campaign mode these days. And I have the perfectly-suited guest speaker for him. "Sheriff Joe" Arpaio, America's "toughest" and most famous local lawman, has been campaigning this season for fellow travelers like Colorado's Tom Tancredo. Why wouldn't he do so, too, for Rep. King? All three men seem to share one thing in common: the inability to sense a great deal of shame. For while "Sheriff Joe" was out shaking hands and kissing babies, the 9th U.S. Circuit Court of Appeals was ruling Wednesday that he perhaps ought to be called "Unconstitutional Joe" because of the brutal conditions inside the prison he runs in Maricopa County, Arizona.

Here is a sampling of the federal appeals court ruling ordering Arpaio to treat his prisoners--the ones he loves to publicly and privately humiliate--in a manner consistent with minimum requirements guaranteed by the Constitution:

Plaintiffs' psychiatric expert testified that many psychotropic medications, including those most likely to be prescribed to pretrial detainees, cause patients to suffer from a significantly increased risk of heat-related illness when ambient air temperatures reach 85° F. The defendants' own expert confirmed that high temperatures can "affect someone's state when they are taking . . . psychotropic medications." On the basis of this testimony, the district court reasonably concluded that temperatures in excess of 85° F are dangerous for pretrial detainees taking psychotropic medications. Sheriff Arpaio argues that this finding is wrong because the record shows that some psychotropic medications affect the body's ability to regulate heat, not all such medications.

Stay classy, Sheriff Joe!

And speaking of people who are remarkably popular without ever having done anything to deserve it, I awoke Thursday morning to the news that Delaware senatorial candidate Christine O'Donnell, just like her mentor Sarah Palin, blanched when asked to name a recent Supreme Court case with which she disagreed. "I am sorry," O'Donnell said, "right off the top of my head, I know there are a lot but, uh, I'll put it up on my website I promise," a quote that no doubt left her staffers scrambling to come up with a list of cases with which O'Donnell ought to be perceived to disagree.

Don't ask, don't tell, indeed. If she's elected, O'Donnell will be well-suited for the Senate Judiciary Committee, where she can help Sen. Tom Coburn (R-Okla.) with his crossword puzzles during Supreme Court confirmation hearings. In the meantime, I promise to buy her one of Kentucky's best hot brown sandwiches if she can name all nine of the justices on the Court-- without any help from the people who will be posting those Supreme Court cases on her website. I mean, don't we have enough underinformed and incurious people running Washington these days? Isn't that the problem in the first place?

The good news, I keep telling myself, is that Kentucky and its gorgeous horses will be around a lot longer than the bozos who made news in the law this week. The bad news, I realize, is that official hypocrisy and disingenuousness seem to be as eternal as the bluegrass itself.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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