University of Chicago Law School professor Geoffrey Stone has this jaw-droppingly incompetent analysis of Gonzales v. Carhart, the partial-birth abortion decision:

Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.

In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.

If I were grading Professor Stone’s exam paper, I would give him an “F.”

Here is a passage from page 35 of the majority opinion:

In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05–380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See Crowell v. Benson, 285 U. S. 22, 60 (1932) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function”).

Compare the two passages I have bolded. You can go back and add all the context you like, and it won’t change a thing. Stone got it dead wrong.

As Ed Whelan observes:

A prospective law student who summarized the case this way should be encouraged to pursue another profession. The fact that a highly respected professor at one of the best law schools in the country could produce this account is stunning.

Prof. Stone’s post is an embarrassment to the University of Chicago Law School.

An opinion issued today on the Georgia Thompson case suggests that the prosecution, while flawed, may well have been brought in good faith by Steven Biskupic’s office.

The other day, our AUSA guest blogger WLS had an informative post about the Thompson prosecution. WLS, who listened to the oral argument in the appeal, concluded that the judges didn’t think that the prosecution was “bogus.” Rather, the reversal indicated that, in the appellate court’s view, the prosecution had misapplied a complex line of cases relating to the applicable criminal statutes. As WLS said:

The outcome really points out how tricky it is to bring a case involving public corruption where the public official didn’t take money or something else of value in a quid pro quo. That doesn’t mean such cases are illegitimate — it simply means that the question of whether criminality is involved in the subjective motivations for the conduct is much more difficult to prove.

Today the Seventh Circuit issued its opinion in the case, and I think WLS’s view is vindicated. Here is the takeaway line from the opinion — one that, I predict, you won’t see on any lefty site:

Sections 666 and 1346 [the applicable criminal statutes] have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law. Courts can curtail some effects of statutory ambiguity but cannot deal with the source.

(Emphasis added.)

This is quite different from the line the Democrats have been pushing: that the appellate court thought Biskupic brought an bogus prosecution in bad faith that could only have been motivated by politics.

For any rational person, this opinion demolishes the theory that the Thompson prosecution is evidence of misconduct by Biskupic, or is in any way relevant to the U.S. Attorney firing scandal.

UPDATE: I should add that I don’t think much of the Government’s theory, and I would not have brought this particular prosecution. But there is a difference between a lack of good faith and an arguably poor judgment. I think the prosecution was the latter, not the former.

Memo to Alec Baldwin: maybe your daughter would answer the phone if you cared enough about her to know how old she is.

I can’t help linking this story about the selection of the Phil Spector jury — mostly because I know the prosecutor, Alan Jackson, who is a fellow U.T. Austin grad. Here’s my favorite part:

A Texan, Jackson referred to jurors as “Y’all,” which [Spector attorney Bruce] Cutler dismissed as a folksy affectation, in contrast to his authentic Brooklyn swagger.

. . . .

When a juror from Corpus Christi, Texas, was excused, [Judge Larry Fidler] asked her before she left if she could vouch for Jackson’s “Y’all.” The courtroom erupted in laughter. She said the “Y’all” rang true to her.

Heh.

I remember interviewing for a summer position at a civil law firm here in L.A. in the early ’90s. I was having lunch with two attorneys, a man and a woman, both of whom treated me as though my Texan upbringing made me a museum curiosity. After asking the usual question about why I don’t have an accent, the woman asked me: “So do you say ‘y’all’?”

I opened my mouth and started to say yes, on occasion, when the man — a gruff New Yorker — interrupted to say: “Of course he doesn’t! He speaks English!”

I didn’t get an offer.

I still say “y’all,” but very occasionally. It may slip out once a year or so. It sounds as authentic to me as “youse guys” would.

Anyway, best of luck to Alan. I’ll admit a prejudice against Spector; I don’t really know much about the Clarkson case, but Spector murdered the “Let It Be” album with all that unnecessary orchestration, and I’ll never forgive him for that. Whaddya youse guys think?