Deep Thought (in the manner of Atrios)

James Spader and the writers of Boston Legal should take a sabbatical from television and hire themselves out to members of the plaintiff's bar.

Ah, the justice system:

Mr. Moussaoui’s lawyers urged him not to plead guilty, but they could not tell him why.

"Incredibly," the brief said, "defense counsel had evidence specifically found to be material and exculpatory as to Moussaoui, but at the time of the plea his lawyers could not discuss that evidence or even tell Moussaoui it existed. No plea can be knowing and counseled under these circumstances."

The Georgia Supreme Court ruled this morning that Genarlow Wilson's ten-year sentence was cruel and unusual, and ordered that he be immediately freed. That ruling -- which is about as comically overdue as a ruling can possibly be -- prompted this quote from Wilson's lawyer:

"The courts can work. The courts do work."

Really? That's your quote, lawyer-lady? Genarlow Wilson, four years ago: 17 years old, star football player, honor student, looking forward to college. Genarlow Wilson, now: 21 years old, ex-convict, probably a registered sex offender, life completely fucked. It's great that the court came to its senses and ordered Wilson's release, but calling this case an indication that "the courts do work" seems to be setting the bar almost criminally low.

(Sidenote: according to the Times report, the dissenting judge argued that the legislature's explicit decision to not apply the law retroactively is an indication that the punishment is not cruel and unusual. I haven't read the opinion, but assuming the reporter's summary is correct, that's a pretty bizarre conclusion to draw, isn't it? Neither "cruel" nor "unusual" are subject to definition by the legislature. When a punishment -- unnecessarily painful lethal injection, for instance -- is cruel and unusual, no amount of protestation by the legislature can define it as not cruel and unusual. So if the issue is, "Should [some conduct] be a crime," the judiciary probably has to defer to the legislature; but if the issue is whether or not a crime's punishment is too severe, the judge has a great deal more leeway.)

TPM points to this essay, in which FindLaw columnist Vikram Amar argues that the Wisconsin statute directing the governor to keep Craig Thomas's Senate seat in GOP hands is quite possibly unconstitutional.

There is a very strong textual argument that the Seventeenth Amendment prevents the Wyoming legislature from dictating the Governor's choices in making a temporary appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive to make [the] appointment."

The essay's a bit boring (in the grand tradition of law professors), but it makes a pretty compelling point.