Gee… and I thought Republicans were for “open government.” But you wouldn’t know that from the way some of the righty trolls responded to my post about WA Attorney General Rob McKenna appointing Tim Ford to be his new “Open Government Ombudsman.”
Apparently, it is “insulting” to point out that Ford is not only a former (un)Sound Politics contributor, but like his predecessor, he’s also a former attorney for the right-wing BIAW. And apparently, it is antithetical to the spirit of “open government” to reveal the political biases of those tasked with safeguarding it.
All I did was point out McKenna’s penchant for packing his office with ruthless partisans, but I guess if that can be portrayed as an attack on the very notion of government oversight, then critiquing Ford’s analytical and legal skills must be downright anti-democratic. Which is exactly what Carl at Effin’ Unsound has done with his thoroughly entertaining fisking of some of Ford’s posts over at (u)SP.
I particularly enjoyed rereading Ford’s analysis of Judge Bridge’s Feb. 4, 2005 ruling that the court, not the Legislature, was the proper venue for hearing an election challenge. Ford gloated:
It was predictable. Even Democrat Legislators admit the election contest belongs in a court and not in the Legislature.
But that didn’t stop the Democrat party from trying to dismiss the election contest. They claimed that the Legislature is the proper venue.
Not only was this motion based on questionable legal arguments, but now there will be a “perception” that momentum has shifted to Dino Rossi. The newspapers will report on the Democrats’ loss, and the story will gain fresh interest. Keeping the story alive in the media is necessary to fight voter apathy, and the Democrats are helping the Republicans with questionable lawyering based only on the transparent desire to throw the election contest to a partisan tribunal in the Legislature. While the Democrats motion to dismiss doesn’t sink to the frivolous, public opinion will continue to favor Rossi because of bad lawyering by the Democrats.
Uh-huh. I love Carl’s response:
But to the substance, lawyering by the Democrats won the case. Ultimately the lawyering was just so bad that Dino Rossi decided not to press ahead and appeal his bullshit case. So good call. And momentum? Really? It’s bad enough when sports commentators do it, but hiring someone who believes that lawyers should take it into consideration is kind of a demonstration of failing up ain’t it?
Of course, it is easy to criticize Ford’s legal analysis in hindsight. Anybody can do that. Who knew the way this case would play out? Who knew the Republicans’ evidence would be so weak? Certainly not Ford, who at the time was an attorney for the BIAW, the organization providing Rossi’s legal team with the bulk of their investigative and financial resources. If only there was a contemporaneous example of somebody getting the legal analysis right, where Ford got it so wrong, then we could really make fun of him.
Well… um… it turns out that three days before Judge Bridge’s ruling, I nailed it right on the head:
While conservative talk radio attacks the Democrats as hypocrites for now arguing that Art. III, Sec. 4 of the state Constitution gives the Legislature jurisdiction over a contested gubernatorial election, everybody has missed a very clever — and possibly decisive — piece of legal strategy. Remember, in Foulkes, the court also wrote:
Such jurisdiction would exist even without such recognition by virtue of Const. art. 4, sec 6, unless it were “by law vested exclusively in some other court.”
And as Lawyer X explains:
The GOP and Secretary of State argue that the Legislature has delegated its decision making power to the courts by means of RCW 29A.68.020 et al. If that argument is sustained, the court may have jurisdiction to decide this matter, but only within the confines the legislature has set up by its contest statute–not under any general equity jurisdiction.
“Not under any general equity jurisdiction.”
See, that’s the real reason Democratic attorneys are playing the Art. III, Sec 4 card. Unlike other elections, the Constitution clearly grants to the Legislature jurisdiction over contested elections for executive offices, and any such powers not specifically granted to the courts by statute, remain with the Legislature. If the Democrats win this one point, then the court must rule entirely within the narrow confines of existing statute… and that would be the final nail in Rossi’s legal coffin.
Brilliant attorney that he is, Ford ridiculed Democrats for “bad lawyering” that he predicted would shift the momentum to Rossi, but entirely missed the clever legal strategy on which the entire case turned… a strategy I had outlined just days before.
The Democrats never wanted this contest settled in the Legislature; that would have been a political disaster. The Democratic strategy was to force the GOP to argue — and Judge Bridges to determine — that the Legislature had specifically delegated such jurisdiction to the courts, thus forcing him to rule within the narrow confines of the statute without the possibility of resorting to any “plenary powers.” And that’s exactly what happened. The result? A new election was eliminated as a possible remedy, and Rossi’s attorneys were forced to meet the “clear and convincing” burden of proof as defined in the contest statute… a burden they never had a snowball’s chance of meeting.
Again, one could argue, how was Ford to know? Well how the fuck was I to know? I’m not an attorney — much to my mother’s everlasting shame — and yet I was able to figure it out with a little help from Lawyer X. And not after the judge’s decision, but three days before!
Yet Ford, with all his legal training and experience, couldn’t see through his Rossi-colored glasses to understand what was perfectly clear to an amateur like me. No wonder the Republicans and their BIAW patrons lost this case so badly. And no wonder that watching the same trial, our friend Stefan predicted that Rossi would prevail, whereas I predicted that he would lose. I had better legal advice than he did. (And I wasn’t delusional.)
So what does this rehashing of the 2004 election contest have to do with Ford’s cushy new job? Well, nothing. And everything.
No, there’s nothing wrong with McKenna appointing like-minded attorneys to top positions in his office, as long as they represent some of the top talent available for the job… and their primary qualification isn’t their BIAW pedigree. For if the AG’s Open Government Ombudsman is merely a partisan shill for an organization that hates government and absolutely despises the Democrats running it, then it calls into question the credibility and impartiality of the office.
It’s not for me to judge whether Ford is otherwise qualified, as once again, I’m not an attorney. But I’m just sayin’….