CT Blue

As most people know by now, Joe Wilson’s lawsuit against Cheney, et al. has been dismissed by a right wing judge. So far it has played out pretty much as I predicted when it was filed.

First, they couldn’t have gotten a worse judge . Judge John D. Bates is a former Ken Starr deputy , who has already issued some questionable rulings shielding the Bush Administration from the kind of scrutiny to which he fought so hard to subject Clinton. He apparently believes that public policy affairs should be conducted in private, while those of a sexual nature are matters of grave public concern.

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Each of the defendants has been sued in his individual capacity only. I assume the purpose for not suing them in their official capacity is to maximize the possibility that the case will not be dismissed on a claim of immunity. Wilson will be arguing that Cheney, Rove and Libby were acting outside of the scope of their employment and are therefore not entitled to any immunity.

The federal based claims are of two types. Bivens claims and claims under 42 USC 1985. Bivens refers to the case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In that case, the Supreme Court held that citizens of the United States could sue government employees for violations of their constitutional rights. The court held that citizens had a right to bring suit as a matter of constitutional right, and that there was no need for them to rely on any enabling legislation.

You really can’t argue with the idea that a public official shouldn’t be sued every time they act in good faith, and turn out to be wrong. There are a lot of unanswered constitutional questions. So the courts have fashioned the doctrine of qualified immunity. One court put it this way :

The balance of societal interests is achieved by shielding public officials from liability for civil damages so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. “[A]s long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated,” federal employees are protected from suit. Anderson, 483 U.S. at 638.

You and I might think that the right to speak your mind free of government retaliation is a clearly established constitutional right. We might also think that Wilson had a clearly established statutory right to have her identity kept secret by government officials. And yet…, somehow I don’t think Judge Bates will see it that way. Might he even accept one of the most loathsome justifications advanced by the right-that this is merely an attempt to criminalize hard ball politics?

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Bates will rule against Wilson. The DC Circuit may or may not reverse. This will not be a judicial process, it will be a political process, with decisions being made for political reasons. Most likely it will end up in the Supreme Court. Bush’s judges will be sorely taxed. They will have to come up with a justification for dismissing this case, while leaving the door open for a wholesale judicial assault on Bush’s successor, should that person be a Democrat. We know that Scalia, Alito, Roberts and Thomas are up to the task. Once again, Kennedy will be the swing vote, and my guess is he swings to the right on this one.

So far so good (or bad). Bates did rule that the miscreants were immune because they were acting within the scope of their duties. According to his view, apparently you are acting within the scope of your duties if the means you use to achieve an illegal end are the same as the means you might use to achieve a legal end.