The Docket, 1-28-2010

By , January 28, 2010 4:48 pm

When in Rome:  Do you think that Kristen Bell might be the next Reese Witherspoon?  You kinda like Ryan Reynolds and Joshua Gordon-Levitt, but prefer someone without the comedic skills and charm?  Maybe with a slightly Carson-Daly’s-dopey-brother look to him?  Here’s Josh Duhamel!  Craving some C-list comic relief like Dax Shepard and Will Arnett?  Wonder what’s happened to Don Johnson?  Like stupid high-concepts?  Thinking about how bad it must be for Angelica Huston right now?  Think tiny European cars are funny?  Then the director of Ghost Rider and Daredevil has got the movie for you! 

Edge of Darkness:  Since Mel stupidly got divorced after The Passion of the Christ, he’s got to unretire from acting and dust off the script for some standard-issue revenge thriller.  Personally, I’m Ready To Root For the Bad Guy all over again, so why not just make a sequel to Payback?   

Recommendation for Video this Week:  This Is It.  I’ve actually reviewed this one!

Sotomayor Forgets Why Supreme Court Rules on Stuff

Justice Sotomayor throws a high hard one at borderline retarded death row inmates represented by court-appointed rookie attorneys who ignore the basic rules of defense lawyering.

Overlooked in last week’s hubbub over Citizens United was Obama nominee Sonia Sotomayor’s first majority opinion on a criminal procedure matter.  This is no small deal:  Liberal legal commentators warned Democrats that Sotomayor—a former prosecutor—has an overwhelming appellate record of upholding government action in criminal cases.  So it should come as no surprise that Sotomayor’s opinion in Wood v. Allen upheld the death penalty sentence of a defendant represented by a court-appointed  first year lawyer who, um, chose not to pursue and submit mitigating evidence of the defendant’s borderline retardation. (This is a standard “Just because I had ineffective counsel, that doesn’t mean I should be executed”, Strickland v. Washington case.)   

My problem isn’t with the Court’s ruling (other than the fact that the Supreme Court seems unalarmed by the extraordinary narrowing of Constitutional habeas review, especially when it means that the state is putting more of its citizens to death under auspicious circumstances).  My problem is that Sotomayor missed the whole point of having the Supreme Court decide an issue. 

One of the primary purposes of SCOTUS review is to clarify the law when separate circuit courts interpret statutes differently.  Here, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) has two provisions for how to deal with federal habeas review in death penalty cases:  One that calls for action when the state court was unreasonable in its ruling, and one that says the defendant must rebut the presumption that the state was correct by clear and convincing  evidence.  Do you apply both?  Do you get to choose one?  Under what circumstances?  The Eighth and Eleventh Circuits apply both rules to all petitions, and the Third and Ninth Circuits say that the different rules apply to different circumstances. 

So, this is the when the Supreme Courts steps in to say who’s right.  Except when they don’t.  Even though about half the oral argument in the case was spent clarifying and narrowing the case to this question, Sotomayor’s opinion doesn’t answer it.  Her holding, which six other justices signed onto, simply said, hey, the borderline retarded guy doesn’t win either way. 

Well, thanks for that, J-Lo, but you didn’t help us out very much.  The Eighth Circuit is going to keep doing its thing, the Ninth is going to do the other thing, and nothing changes.  See you in another couple years when some other guy gets put on death row because his inexperienced, overworked public defender screws up.

“Activist Judge” Haters: Citizens United…Against What, Exactly?

Dude, the Ya-Hoos don’t even know what “activist judge” means. We can do whatever the hell we want!

By now, you’ve heard about the Supreme Court’s totally ballsy ruling last week in Citizens United v. FEC, in which the Court held that corporations are people, money is speech, and therefore limiting corporate contributions to political groups violates First Amendment protections of Free Speech.  Some of these principles had been established before Citizens United, but their application here pretty much abolished campaign finance reform.  And, really, as much of a stretch as I think this is (especially for a Court that so literally and narrowly reads defendants’ rights in the Fourth, Fifth, and Sixth Amendment), well, I can’t get too mad about the substance of the decision.  Look, if liberals want to the Courts to interpret the Constitution in their favor, then win some presidencies and appoint more liberal judges—and quit being such wussies when it comes confirmation time.

The thing that makes me really steam-out-the-ears mad about this decision is the sheer hypocrisy of the Roberts Court’s procedural principals.  And make no mistake, one of the first things we learn in law school is that the side that controls procedure wins the substance.  Let’s review how Citizens United got to the Court, shall we? 

The political activist group Citizens United sought to air Hillary: The Movie, an anti-Clinton “documentary” on video-on-demand cable services.  The McCain-Feingold Act bans certain corporate-funded paid television time immediately before elections, and it also requires disclosure of corporate sponsors of election advertizing.  Sure enough, Citizens United took a ton of corporate money, meaning that Hillary was banned from cable on-demand.  During oral argument for this case last term, Citizens United argued for a narrow interpretation of the law to overturn the ban on Hillary, either by reading the statute not to mean “video on demand” or something along those lines.

During oral argument, the government’s lawyer defending the law, Deputy Solicitor General Malcolm Stewart, royally screwed up by suggesting that the government could regulate the publication of books prior to an election.  (For the record, Alito nailed him with this hypothetical, but Stewart could have easily deflected the question by using the Court’s distinction between political speech and commercial speech.)  This led the Court to postpone ruling on Citizens United to hear briefs on a question not even raised by the lawyers—whether to declare corporate funding of political advocacy groups who advocate for candidates as protected speech under the First Amendment, and thus could not be banned or even limited.  These questions had already been decided—even as recently as 2003.   

So, to sum up, here’s what the Court did:  Overturned a century’s worth of legal precedents on free speech, declared unconstitutional a bipartisan congressionally-passed law, stretched the text of the Constitution to declare money to equal “speech” and corporations to equal “we the people”—and in getting to the that ruling, answered Constitutional questions it didn’t need to answer, answered far more broadly than it needed to decide the case, and had the case re-heard because even the lawyers themselves didn’t think the Court would consider doing what it did.

In other words, you want ACTIVIST JUDGING?  That’s activist judging if ever an activist judge judged.  So, for all you I HATE ACTIVIST JUDGES haters in the house, you have to ask yourself:  Do you really hate “activist judges,” or do you just hate judges that rule in ways that don’t comport with your political views?  And if you still say you hate activist judges, then I patiently await your condemnation of the wholly radicalized Roberts Court.  It’s that, or you’re a raging hypocrite and all the talk about “Judicial Restraint” and “Judicial Deference” and “Constitutional Avoidance” was just a bunch of hot air and your jurisprudential theories are just as compromised by politics as those you criticize.

The Federalist Society types will no doubt argue that this judgment was necessary to expand Free Speech, and we can deal with the odd fact that conservative justices have worked to limit the freedom of speech for living, breathing human beings while expanding it for legal fictions.  That’s fine—there’s contradictions in every ideology, and sometimes you have to reconcile them after-the-fact.  But what gets me is that this is the same kind of Warren Court-ish behavior that conservatives have rightly decried as intellectually dishonest, thus completely undermining their whole rationale for, you know, hating on Sonia Sotomayor.

The Docket, 1-22-2010

By , January 22, 2010 3:45 pm

On the Supreme Court front this week, I’ll post separately about yesterday’s decision in Citizens United v. Federal Elections Commission, one of the most inexplicable cases of judicial activism in the history of the Court.  If anything, the Roberts Court has proven that if anybody in D.C. has “audacity,” its the current Supreme Court majority.  In four short years, they’ve become the 1970’s Oakland Raiders of government, with Chief Justice Roberts as Al Davis.  Congress might pass its laws, but this outlaw Court doesn’t give a damn what Congress thinks.  In an institution that values stability and decorum and incremental action, Roberts’ court breaks all the unwritten rules of stare decisis and judicial deference and constitutional ripenessCitizens United does to campaign finance reform what Jack Tatum did to Sammy White in Super Bowl XI.  

On the movie front, here’s what we’ve got in theaters this weekend:

Legion:  Let’s see if we can sort out the theological stance of this one, shall we?  God has lost faith with humanity, presumably because we’re unrepentant sinners.  Fair enough.  So He sends a plague of angels to destroy us.  But, doesn’t this mean that if we fight the angels, we’re fighting the will of God?  That puts Dennis Quaid on the wrong side of God, right?  But wait—there’s this Last Hope Of Humanity Baby that’s going to save us.  If this baby is the Second Coming, then why is God trying to destroy us?  I mean, that would defeat the whole point of the Second Coming, wouldn’t it?  And if the baby is going to save us, why are we blasting God’s angels with automatic weapons?  Isn’t that going to just make Him more mad?  And—wouldn’t this movie be much better if Paul Bettany played this guy again, and these two guys squared off against Gabriel?  I think it would

The Tooth Fairy:  Memo to NHL Commissioner Gary Bettman:  Sign The Rock to be the Toronto Maple Leafs’ enforcer.  The Yankees of hockey haven’t been an interesting franchise since Tie Domi retired, and the NHL desperately needs more of this.  Dwayne’s good for it, and I can’t imagine that this niche he’s carved out as Disney’s muscle-y enlarged heart of gold can be satisfying for much longer.  Cross-promote it with Vince McMahon, and this is how you’ll finally crack the Southern market:  Bring rasslin’ fans into the mix.  ‘Roided up meatheads throwing their bodies with reckless abandon into glass, cutting themselves and knocking out teeth…why wouldn’t WWE fans love hockey? If you’re going to get back on ESPN, you’ve got to think outside the box, Gary.  The fact that I’ve rambled on this long about some crazy hockey/wrestling synergy tells you everything I think about the prospects for this movie. 

Extraordinary Measures:  Dr. Indiana Jones tries to cure Monkeybone’s daughters, or something like that.  The highlight of the trailer is Harrison Ford delivering the line, “Nobody is going to tell me how to run my lab!” just like the President in Air Force One.

IMHO, This Yale Law Journal Article Is Kinda Dumb

By , January 18, 2010 8:49 pm

I told him the Chief Justice was like the President's umpire, but he wanted to make sure he's still the Decider. I told him he'd be the Deciders' Decider. That seemed to work well enough.

*There’s a lot (too much!) to digest about this article, but I think it’s illuminating to discuss why the Chief Justice John Roberts’ Justices-as-Umpire analogy fundamentally misrepresents the role of the Supreme Court.  I hope this discussion is a fun way of exploring the issue, as is this article I wrote for Flak Magazine two years ago. 

The Yale Law Journal has a forthcoming article from YLS ‘10 and YLJ Articles Editor Aaron Zelinsky, entitled “The Justice as Commissioner: Benching the Judge-Umpire Analogy.”  Zelinsky also posts legal commentary at The Huffington Post, where I also discovered he was a clerk for the Chief Justice of the Israeli Supreme Court.  Zelinsky’s article has gathered a little bit of blogo-buzz because it was mentioned by SCOTUSblog, which does for the Supreme Court what combining the IMDB and Roger Ebert’s site would do for movies. 

To be clear, I’m with Zelinsky on his most basic point—that John Roberts is full of crap (my analysis of why John Roberts knowingly, intentionally, and willfully misled the American public during his confirmation hearings can be found here).  Now, I understand that I went to a second-tier state law school and not the top-ranked law school in the country.  I get that. But speaking as both a former clerk for a trial judge and as ten-year varsity umpire, Zelinsky’s argument that the Supreme Court justice is like the Commissioner of Baseball is, well, kinda dumb.

First, Zelinsky argues that Justice Roberts “unmoored [the analogy] from its historical roots and firmly opposed to its original meaning.”  He makes his argument by combining two different ideas.  Zelinsky cites a Louisiana Supreme Court decision that says that judges shouldn’t be mere umpires, as in a wrestling match (more on that later)  Then he cites Judge John Milton Killits in Young v. Korrigan, who rejected the “sporting theory” of trial, arguing that a judge must be more than a mere arbitrator to rule upon objections to evidence” (emphasis Zelinksy’s).  As Professor Wigmore wrote in his influential treatise on evidence, sometimes judges must go beyond the text of the law to ensure justice—in other words, be an activist judge (emphasis mine). 

Next, Zelinsky cites a Justice Robert Jackson speech about Learned and Augustus Hand (yes, those are the greatest names in the history of jurisprudence), saying that you want from a judge is what you want from an umpire: “[to] call them as he sees them.”  Zelinsky correctly points out that Justice Jackson “sought to emphasize the impartiality of judges, rather than the degree of involvement they should have in proceedings.”  

But this is exactly Roberts’ point when he says that  “Umpires don’t make the rules; they apply them.”  Zelinsky makes a false distinction between the ideas of “judicial fairness” and “judicial restraint.”  In Roberts’ usage, they’re the same thing—a restrained judge is a fair one because a judge who goes beyond the rules substitutes his judgment for the law as written (Bruce Webber argues as much in a New York Times article Zelinsky cites for this article).  For example, the judicial restraint advocate would argue that because “the right to remain silent” isn’t in the Bill of Rights, the Supreme Court has no business saying this right exists (see Miranda v. Arizona, a landmark Warren Court “activist” decision).  In doing so, the Court isn’t acting fairly because it’s gone beyond the text of the Constitution for its decision.

The analogy to baseball is pretty easy to make.  Let’s say a team pulls off the hidden ball trick, and as an umpire I don’t think it’s sportsmanlike or “fair.”  Unless the pitcher balks or time was called, I can’t simply not call the runner out.  If I did, that would be activist umpiring—that is, substituting my own judgment about “fairness” for what’s explicitly laid out in the rule book.  Roberts doesn’t “unmoor” the analogy from its roots at all; he simply expounds a different judicial philosophy than Judge Killits. does (Make no mistake, though—John Roberts is one of the most activist justices in Supreme Court history).

So, onto Zeilinsky’s second point.  Though Zelinsky misreads Roberts’ judicial philosophy, he is right about the fact that the umpire analogy was directed at trial judges rather than Supreme Court justices.  His analysis isn’t entirely off: “Trial judges…make a large number of split second calls repeatedly throughout their careers on relatively settled issues of law,” like an umpire calling balls and strikes.  But trial judging is nothing like the crisp clarity of calling balls and strikes.  Those of us public school law clerks who have sat through marathon eight-hour sessions of testimony on, say, hotly contested questions about the retroactive applicability of zoning codes to Wal-Mart developments in midsize Kansas cities—well, let me tell you, that ain’t as clear as safe or out, fair or foul.

At most trials, judges don’t make a ruling once every minute or so on clearly contested questions.  You watch a bunch of testimony in which the attorneys grapple to assert their will (their version of the facts, their interpretations of the law) on the other side.  The judge is there to ensure that the verbal scrum is played by the rules.  Perhaps you can think of witness questioning as a series of pitches to a batter, but that doesn’t really capture the wrestling feel of a well-lawyered trial.  Good, aggressive lawyers will find out how far they can stretch the rules of evidence without having objections sustained.  In other words, the action in trials is messy, much more like line play in football (or the Louisiana Supreme Court’s wrestling analogy cited by Zelinsky). 

Sure, baseball umpiring can be messy, but you know exactly when you’re supposed to make a call and what the precise issue is (Inside or on the corner?  Did the runner beat the throw or not?).  Just like football officials could call holding on every play if they wanted to, and there’s a whole list of infractions to monitor, judges have a lot more room to interpret the rules than umpires.  Lawyers know this, which is why they test the boundaries of what a judge will allow.  Hearsay, incidental contact versus pass interference, Crawford exceptions, cut-blocking versus chop-blocking—the rules can be really murky, depending on the speed and quality of play.  Good coaches, like good lawyers, will do whatever they can do to get an advantage.  It’s the judge’s job to call a good game by establishing consistency based on how she interprets the rule book.  Interpreting pass interference is much more inexact than calling the strike zone, and the same goes for the “relevance” and “prejudicial” rules of FRE 401 and 403.

This brings us to Zelinsky’s central argument, that the Supreme Court Justice is not an umpire, but the Commissioner of Baseball.  His analogy is superficial at best.  I mean, shouldn’t this be obvious:  The Commissioner is, you know, one guy.  The Supreme Court is a group.  The Commissioner is an executive, and the Court is, well, a court.  I must be missing something.

So what are Zelinsky’s reasons for the “Justice as Commissioner” analogy?  First, he says that Justices and Commissioners provide guidance to lower courts.  That makes sense, I suppose, if the Commissioner is the high court.  But even then, high courts are groups.  No one guy gets to overrule judges.  That would be some form of totalitarianism, or an absolute or limited monarchy, or maybe the Constitution under the Unitary Executive Theory.  In all these forms of government, one guy, the chief executive of the organization, can’t be told by courts what to do.  The chief executive—you know, like the Commissioner of Major League Baseball.  The guy who negotiates tv contracts, works with the players union on labor disputes, and, in his least time-consuming job, maintains the umpiring crews.  The Commissioner can, apparently, tell the umpires to declare the All Star Game a tie from his seat in the front row, and he can advise the umps on how to call balks.  But, again, these are the actions of an executive with expansive powers, not an appellate court.

Second, Zelinsky says that the Commissioner, like justices, deliberate.   Which means that they think carefully about stuff.  And, as Zelinsky notes, they “give detailed explanations for their decisions, which allows others to use them for interpretive guidance.” 

Isn’t that like saying that Mel Gibson and John Daly are similar because they’re both entertainers who drink a lot?  I mean, of course, the Commissioner and Supreme Court justices think about things before they decide stuff.  I get what he’s saying—they both don’t make split second decisions.  But is that really the best distinction he can come up with?  As for the guidance piece, executives also issue guidance to subordinates on how to rule on stuff.  In fact, there’s a whole body of law dedicated to this idea:  Administrative Law.  That’s when the head of an administrative agency (usually part of the EXECUTIVE BRANCH!) issues guidance to subordinates on how to adjudicate, legislate, and enforce laws within the their specific area.  This head functions as the chief executive of the agency—sometimes she’s even a, you guessed it:  Com mis sion er!  We can assume, unless it’s Alberto Gonzalez, that the President and administrative heads think about decisions before they make them.  But that doesn’t make them a court.

Third, Zelinsky claims that the Supreme Court and the Commissioner of Baseball are similar because they take “countermajoritarian” action.  That’s a fancy way of saying that they make decisions the majority of their constituents aren’t going to like.  That’s another superficial distinction, but whatever.  The real problem is that Zelinsky’s whole analogy breaks down in his explanation of countermajoritarianism.  He says, “for the Supreme Court, this means striking down the will of the legislature.  For the Commissioner, this involves taking action contrary to the will of the owners.”

Dude, the owners elect the Commissioner!  Like how a board of directors elects a chief executive officer of a corporation!   The legislature doesn’t elect the Supreme Court!  It’s appointed by the President with the consent of the Senate!  That’s a completely different thing, isn’t it?  Being an elected executive by a board of a lot of people, versus being appointed by one guy? 

Zelinsky’s description of the Court’s and MLB Commissioners’ roles in racial segregation makes even less sense.  He tells how the Court overturned Plessy v. Ferguson with Brown v. Board of Education, thus integrating schools.  Then Zelinsky compares this action—an authoritative, law-making Constitutional decision—to Commissioner “Happy” Chandler’s “declarations” in support of integrating baseball against the owners’ will.  But this isn’t even close to the same thing.  Perhaps they don’t teach Marbury v. Madison at Yale—I don’t know, I went to state law school.  The Supreme Court exercises Judicial Review, meaning that the Supreme Court can declare the actions of other branches of government unconstitutional.  That’s why school districts could no longer have “black schools” and “white schools” after Brown declared “separate but equal” facilities as violating the Equal Protection Clause of the Fourteenth Amendment of the Constitution—the Supreme Court actually makes rules. 

The equivalent action by the Commissioner of Baseball would be if there were all-black teams and all-white teams, and the Commissioner—against the will of the majority of owners—would unilaterally assert that this violated The Major League Baseball Constitution.  And then the teams had to integrate their players.  Zelinsky points out in his Footnote 48 that “Chandler was more than a bit player in these historic events,” but that’s not the same as actually making a judicial rule-making decision.  Rather, he was like an executive, organizing behind the scenes and negotiating his position to change the organization.

Zelinsky’s fourth point is barely worth mentioning.  Here, he argues that the Commissioner and the Court both have rule-making power.  Ok, fine—but as we’ve already established, the Commissioner’s power is of the executive kind, not judicial (for a discussion of the history of the strike zone, check out this great 1988 article by Peter Gammons).  Zelinsky then analogizes the vagueness of Due Process and Equal Protection Clauses of the Fourteenth Amendment to the “Best Interests” Clause of Article II, Section 3 of the Major League Baseball Constitution.  Zelinsky seems to have skipped over the section (Article II, Section 2(A)) that says that the Commissioner is “To serve as the Chief Executive Officer of Major League Baseball.”  That, and the Best Interests Clause isn’t a substantive rule in and of itself like Due Process or Equal Protection.  Rather, it’s procedural—it merely grants the Commissioner broad executive powers.  They’re two completely different kinds of rules whose only similarity is vagueness.    

The final nail in the Commissioner-as-Court coffin is the fact that Commissioner Selig created a fourteen member “advisory committee” that will advise the commissioner on on-the-field matters.  It would be like a Supreme Court of Baseball Rules if it had rule-making power, which it doesn’t.  That’s still invested in the Chief Executive of Baseball, which is the Commissioner. 

So, if this attempted takedown of Chief Justice Roberts’ umpire analogy is so dumb, what’s my smart-ass alternative?  Well, I’ve got one for you:  The Supreme Court is most like the NFL Competition Committee.  I explain this toward the end of this article from two years ago, but I can give you the quick bullet points here. 

  1.  The NFL Competition Committee is created by NFL Constitution as a body separate from the Commissioner’s executive functions.  Its sole purpose is to interpret rules—a judicial function.   
  2. The Committee can also recommend new rules that have to be approved through legislative channels (an owners vote).  This is similar to how the Constitution works:  The Court interprets existing law, but if the desired result isn’t reachable with the law as written, the Court will issue a decision and sometimes recommend that Congress amend or add a new law
  3. It’s an eight person body that deliberates amongst itself, not simply a unitary executive that unilaterally issues rulings.
  4. Philosophy matters in interpreting rules.  The Committee’s deliberations are often marked by value judgments that guide interpretation (see this interpretation of the Illegal Contact penalty) 

The Docket, 1-12-2010

By , January 12, 2010 9:53 pm

New readers, welcome to The Docket:  My weekly rundown of what you need to know about in the world of movies and lawyer-tainment.  If you saw John “Torture Memo” Yoo last night on “The Daily Show,” you were probably disappointed (because you’re likely a John Stewart rather than John Yoo groupie) that Yoo was allowed to simply explain away all the legal and moral questions about his role in the War on Terror.  Essentially, Yoo did to Stewart what Nixon did to Frost:  Bog the conversation down in legalistic pseudo-distinctions to run out the clock.  Yoo took about three minutes to define his role in the narrowest terms possible:  I was asked to define torture, which “our country” had never contemplated.  Yoo’s slipperiness with John Stewart, who has several times shown himself a formidable opponent, is exactly the reason he was chosen to write that memo.  But make no mistake, this guy isn’t just a simple government lawyer asked by his president during a time of war to advise him on the Constitution.  In 2004, I saw John Yoo speak at the Dole Institute for Politics at the University of Kansas, and for about a half an hour he talked about the history of Rome, justifying the “extreme measures” of dictators that held the empire together.  So when he said that the Supreme Court and Congress can check the power of the President, he’s lying to you about what he believes.  Don’t take my word for it—read the memo.

Also on the legal front, on Monday the Supreme Court issued a temporary stay of the 9th Circuit’s plan to youtube the huge gay marriage trial in California.  I’ll have some thoughts as the transcripts become available, but this New Yorker article comprehensively covers Perry v. Schwarzeneggar.  The youtube issue involves some intricate questions about who gets to make the rules about court conduct, but what you need to know is this:  The pro-gay marriage side wins if the trial is broadcast because incredibly sympathetic plaintiffs will, presumably, help win in the court of public opinion—the opinion that often really matters.  The stay ends at 4:00, so they’ll be some big development today.

On the movie front, this week’s big DVD release is The Hurt Locker, which has topped several critics top ten lists and is a favorite for Best Picture and Best Director.  If anything, rent The Hurt Locker to boost the odds of a ex-spouses Oscar smackdown between The Hurt Locker director Kathryn Bigelow and Avatar HMFIC James Cameron.

If you’re looking for a War on Terror comedy, In the Loop is your choice. This political satire is filmed in the faux-documentary style, basically positing that inside the corridors of power in London and Washington lies Gervaisian incompetence.  

Me and Orson Welles

By , January 8, 2010 1:38 pm
Dear Troy:  You suck as a singer, I just put up with you because my sister liked you and I thought you looked hot in your basketball uniform.  Sincerely, Ryan Evans

Dear Troy: You suck as a singer, I just put up with you because my sister liked you and I thought you looked hot in your basketball uniform. Sincerely, Ryan Evans

The question going into Me and Orson Welles seems obvious:  Does Zac Efron have the chops to become acting’s Justin Timberlake, or is he doomed to the Disney shooting star fate of, say, Hayley Mills?  You come away from Me and Orson Welles wondering, who the heck was that guy playing Orson Welles?  And, for Richard Linklater enthusiasts, man, why isn’t this guy talked about when we talk about the great working directors?


Let’s discuss Troy Bolton first.  Efron plays Richard, a kid in love with theater and music and art—more specifically, he’s in love with the romantic idea of creating art and living the bohemian life.  He meets a kindred spirit, Gretta (Zoe Kazan), in a music shop meet-cute that evokes Once’s bonding scene between Glen Hansard and Marketa Irglova.  She’s a wannabe writer who plays piano and is despondent over Gershwin’s death; he’s, “Well, I’m sort of an actor.”  It’s hard not to laugh—Zac, my boy, this is going to be a long two hours if you’re not a full-on actor.   


After Richard cons his way into Welles’ first Mercury Theater show, Julius Caesar set in Mussolini’s Italy, McKay’s Orson Welles overtakes the film—as Welles inevitably does to his production.  It’s not that McKay rampages the movie, but he infuses Welles with such hubristic bellowing genius that he draws attention away from the fact that the High School Musical kid is in an arthouse film.  In other words, Efron is still the lead actor, but he doesn’t have to carry the film. 


This is not stunt casting on Linklater’s part:  Richard needs the wit and charisma to impress Welles enough in two minutes to get in the show, handsome and confident enough to catch the interest of show-secretary Claire Danes, and pull off a top-shelf performance as Lucius, Brutus’ servant who sings a “restful song” before Caesar’s ghost appears.  Efron is still slight enough to be diminished by McKay, but wide-eyed and confident enough to seem like a protégé.  Linklater doesn’t put too much on the kid, and positions the role to fit his strengths—exactly how Welles cast Richard.


The true star is McKay, who says that Welles’ outsized persona actually helped him developed the character.  You see McKay’s Welles acting as if he’s ORSON WELLES, consciously developing the myth of his genius.  Of course, Welles’ curse is that he is a genius and he knows it (in the one moment he loses control, he screams, “I’m Orson Welles!!!”).  Welles effortlessly eviscerates John Gielgud (“Has anyone ever been so in love with the sound of his own voice?”) and ad-libs a radio show, forcing his fellow actors to stare breathlessly at his genius.  Welles has so internalized the material that he’s performing as he directs, and everyone is forced to admit that, when it comes to the play, he’s right.



Roger Ebert called Me and Orson Welles “one of the best movies about the theater I’ve ever seen,” and I’m not inclined to disagree.  If you look past the performances, Richard Linklater forms the material into some dramatic statements about art, yes, but also genius.  Welles is the dictator of the Mercury, a Caesar that his actors, like Brutus, both love and want to stab in the back.  But Welles doesn’t see himself as the aging, weak Caesar.  He sees himself as both the young, vibrant Caesar and Brutus—he’s the dictator that will stab you in the back for the good of Rome.  The show lay in shambles, and Welles rushes in to save the day, remaining the noblest director of them all because he acts in the best interest of the play.  The fact that Brutus commits suicide makes us contemplate the obese, wine-pitching, “Magnum P.I.” voice-overing caricature Welles became. 


No man could ever live up to the myth Welles created for himself, especially when that myth hurt Welles’ fundraising efforts for his late-career films.  Linklater dramatizes this idea in Welles’ framing of the Cinna scene in Caesar:  The innocent poet, mistaken for one of the conspirators, is killed in an alley by men in suits, as if the mob is actually “The Mob.”  If that’s how The Genius sees himself—the innocent torn apart by powerful men in suits who really run things—then that’s exactly what’s going to happen to him.


Still, Linklater’s Welles is more complex than a tortured genius and drama queen—in his self-aggrandizing way, he’s a mentor to the company.  Perhaps the closest character in Linklater’s filmography is Dewey Finn, Jack Black’s substitute teacher in School of Rock.  That film is, really, one of the great teacher movies.  Linklater is one of the few filmmakers who understands the paradox of great teaching:  An education is system-sponsored and approved independent thinking, requiring a dynamic, megalomaniacal personality to pull off.  This explains the scenes of Richard in his literature classroom, daydreaming through dry, formal lectures about the “meaning” of Shakespeare.  What better teacher of Shakespeare than Orson Welles, whose direction is a series of lessons in how to interpret the play? 


The difference between Finn and Welles is that Finn has the selflessness of a true mentor.  Finn tells the kids that rock is about sticking it to authority, “and right now, I’m the authority.” One of the nerdiest kids responds: “You’re fat and a loser.” A gleam comes to Dewey’s face: “Well, all right then.”  Dewey Finn leaves no child behind.  Welles, though, coaxes out great performances only to get “his” opening.  He’s the authority, and it’s damn well going to stay that way.  This hubris, though, is how one falls from being the King Henry of your own theater to Falstaff on “The Dean Martin Show.”  


The Pitch:


2 Cradle Will Rock

2 Cradle Will Rock








2 Chimes at Midnight

2 Chimes at Midnight








4  Me and Orson Welles

4 Me and Orson Welles







Welcome to Movie Day at the Court!

By , January 7, 2010 12:05 pm


If you’re anywhere north of the Mason-Dixon Line today, you’re not doing anything at work, if you made it to work at all.  If today were Fargo, your productivity would be the dead North Dakota highway patrolman, and Marge Gunderson would be your boss, trying to figure out what the hell happened to your workday.  Let me be an accomplice to the crime.  Many of you are old friends and readers of mine and James Owen’s previous film review site, Filmsnobs.  Some of you may know me from the brilliant, august publication that was Flak Magazine.  Some of you may stumble here on accident (thank you, Google Overlords!), and some of you have only been my friends (I.E., in my email contact list or in my Facebook feed) since, oh, 2004 or so, when the productivity of my online film criticism began to decline.  For those of you who don’t know, I don’t know how to put this, but, Filmsnobs was once kind of a big deal.    People knew us.  We were very important…in the development of online film criticism.  We had many leather-bound blogposts about Three Kings and Fahrenheit 9/11 and The Eternal Sunshine of the Spotless Mind and Robert Altman that smelled of rich mahogany.

So, I’m just going to throw this out there.  If you like it you can take it, if you don’t, you can send it right back.  This is my new website.  I want you to be on it.  If you click on the “Philosophy of Criticism” link on the toolbar above, I explain where I’m coming from and why my site has a picture of the 1973 Supreme Court wearing 3-D glasses.  I’ll update it once a week or so, and if you become a fan of Movie Day at the Court on Facebook or follow the site on Twitter, you’ll get an update and a link every time there’s a new post.  I’ll be doing weekly previews of what’s new in theaters and on DVD, film reviews, commentary on my town of Kansas City, and…wait for it…snarky Supreme Court commentary.  Honestly, the Supreme Court is really funny, and not just when Scalia is flipping off law students. 

In addition to the top-notch content you’ll find below (including my review of the Kansas City Chiefs’ bizarre “The Office” and “30 Rock” parodies–seriously!), in the coming weeks expect a rest-of-the-term Supreme Court preview and two articles in which I call out breathtakingly stupid Yale Law Review articles.  Also, there will be reviews of the rest of the Oscar favorites.  In my spring Kansas City Royals preview, I’ll explain how AL Cy Young winner Zach Greinke and Brian Bannister are baseball’s version of Sheldon and Leonard from “The Big Bang Theory.”  Also, I’ve got ideas in the works for podcasts and other cool techmo-gizmo interwebs thingies.  For now, though, here’s my advice on how to spend the weekend in movieland:

New in theaters is Youth in Revolt.  Michael Cera is nerdy trailer trash (he’s too clean, right?) who, in attempt to woo the hot trailer-neighbor girl next door, dons a dirt stache and invents an “supplementary” a-hole persona to get her in the sack.  The premise seems inspired, but for me, the shine is coming off of Michael Cera.  I thought Year One might be a satire of fundamentalist ideas, but Cera and Jack Black played their brand-name personas in wacky animal skin costumes.   Nick and Nora’s Infinite Playlist also disappointed–the movie wants to be the aught’s Graduate with the musical taste of Cameron Crowe, but the writing lacks subtlety.  Another scene involves an orgasm accidentally broadcast over studio speakers–um, we get it, it’s a big deal.  Playlist wants so badly to capture teen spirit that it becomes self-dramatizing, but without any of the energy and wit of say, Cera’s rendition of “These Eyes” in Superbad

May I suggest that you stay home and set your Netflix stream to a film that you probably missed from March:  Adventureland.  This is, without the condescending qualifier “for a comedy,” one of the best films of the year.  Jesse Eisenberg plays the Cera-esque James Brenner, a lit-school graduate spending the summer at home because a degree in comparative literature is, apparently, not all that marketable in 1987.  Yes, he’s also a Benjamin Braddock, but the Brenner character does something else:  it draws the contrast between the “pretend” world of philosophy and the “real” world in which one gets a job, which Eisenberg manically, desperately develops into a full-blown existential crisis. 

Over Bella Swan!  I mean, Kristin Stewart!  If you thought she sucked in Twilight (she does), her repressed goth act works well here.  There’s also great supporting performances from non-name brand actors, and it has some of Ryan Reynolds’ best work.  Kristin Wiig and Bill Hader show up as the carnival owners, but this doesn’t turn out like it sounds.  Yes, they’re funny, but the film doesn’t seem them as jokes; in the end, they become dignfied, as much as a life of supervising teenagers cleaning up corndog puke can be dignified. Greg Mottola’s film doesn’t see the 80’s as a joke, either:  He turns superficial 80’s songs into ironically profound statements about life, not by romanticizing your early twenties, but by contrasting their simple truths with the pretentious existential philosophizing of Eisenberg and depressive dork Martin Starr.  It’s telling that Mottola, who directed Superbad, didn’t choose Cera for this role.  He lacks the range of Jesse Eisenberg, which would have turned this movie into, well, Nick and Nora with INXS on the soundtrack.   Instead, Adventureland is one of the year’s most literate films–it turns a rusty summer carnival in Pittsburgh into a symbol of the American empire, but with virgin jokes. 

Crazy Heart

By , January 4, 2010 10:54 pm
Is this some sort of Little Lebowski Western Achievers thing?

Is this some sort of Little Lebowski Western Achievers thing?

This film is impossible to watch without comparison to last year’s best film, The Wrestler.  Then Robert Duvall shows up, and you immediately turn to Tender Mercies.  Crazy Heart is better than Mercies; the too-obvious baptisms scenes are gone, there’s no tossing-the-football-around father-figure stuff, and Jeff Bridges is a much better singer than Robert Duvall.  First time writer/director/producer Scott Cooper took the script, based on a Thomas Cobb novel, to Duvall (they worked together on Gods and Generals and the underseen mini-series “Broken Trail”), who helped him get—you guessed it—T-Bone Burnett, which secured Jeff Bridges, the original choice for Bad Blake.  The songs are great, the lead performance is great—the definitive performance of Jeff Bridges’ career


Bad Blake is some combination of Merle Haggard and Kris Kristofferson if they’d never recovered from the Nashville rejection of the Outlaw Country years.  Bridges sports a gut that makes him look like the pregnant man if he shopped at Sheplers, and through most of the film there’s something hanging from his beard.  Bridges masterfully establishes the character from the first minutes of the film when Blake scouts the bowling alley he’s to play that night, sitting at a bar with the lanes behind him, looking like both Jeffrey Lebowski and Sam Elliot’s cowboy in the same person.  Blake gets no bar tab, but the owner “personally offers” him free bowling, and the night ends with Bad puking and rallying during a request promised to the daughter of a liquor store owner who felt honored to buy Bad Blake a bottle of his signature whiskey.  As he tells the twenty-somethings who form his house band for the night (or as Blake calls them, “hippies”), Bad Blake ain’t never missed a show—but he’s been sober for roughly none of them.  Bad Blake may be a wretched human being, but he’s a professional musician. 


The problem is that after about twenty minutes, the Redeeming Angel flies into Bad’s life in the form of Jean (Maggie Gyllenhaal), a local music journalist (Really? In this economy?) who name drops Lefty Frizzell and waltzes right into Bad’s heart.  He offers her some whiskey, and the next thing you know, Bad Blake is making biscuits for her four year old son. 

Much more interesting is the subplot involving Bad’s protégé Tommy Sweet (I’ll leave the actor for you to discover—it’s really quite brilliant), who has become a budding Keith Urban-type who Bad harbors ill will against.  The plot doesn’t go where you expect it, and it becomes apparent that this should have been the love story of Crazy Heart.  If Bad Blake loves anything, it’s not any of his four ex-wives—it’s music.  Listening to the two musicians talk guitars and songwriting is far more interesting than Jean’s precise journalistic observation that “guys would give ten years of their lives to write a song like that, and it just pours out of you.”


This is where The Wrestler haunts Crazy Heart.  Marisa Tomei’s Cassidy, a stripper at a club with a gravel parking lot, makes much more sense than Maggie Gyllenhaal’s “journalist.”  Darren Aronofsky hints at just how big Randy the Ram was (there’s a great scene of Mickey Rourke playing as Randy the Ram on the four-bit Nintendo “Pro Wrestling” game), where Cooper mostly has other characters tell us how great Bad Blake was.  That, and Bad Blake is really gross—without the celebrity wow! factor, Maggie Gyllenhaal climbing on top of a fat, puke-breathed Jeff Bridges just seems condescending.  Mickey Rourke is gross in The Wrestler, but he’s still somewhat in fighting shape, and you can see what a small town stripper would see in him.  That, and Rourke and Tomei’s characters have a history—Randy has been going to this strip club a long time, and Cassidy is clearly the veteran just trying to make money the only way she knows how.  In fact, Aronofsky makes it clear that these two have basically the same profession—they strip down to their underwear and perform degrading physical acts to fulfill drunken white trash’s base fantasies.  In short, they make sense. 


 Jean and Bad don’t—she crosses over into Redeeming Angel territory.  Granted, the story isn’t nearly as gift wrapped as Tender Mercies, but she makes some crazy commitments after three days of knowing this guy—especially for a “music journalist” who should know better.  She comes off more as a writerly metaphor than a real person.  Really, Cooper could have entirely done away with the condescending love interest and not lost a thing; Bridges and Duvall have more chemistry, conveying more love for each in a simple fishing trip than what Bridges and Gyllenhaal muster over an hour and a half.  Once again, it seems that nobody in the movie industry can write a decent female character, and those who can are the ones who make truly great films. 

This criticism merely knocks Crazy Heart down to “very good” status with truly a great performance.  Cooper’s secondary characters, other than the journalist, do suggest something true about real country musicians.  Great country songs, like the kind the pour out of Bad Blake, are poems about working class struggles that become self-fulfilling prophecies for their authors.  Over decades, the songs of Hank Williams, Merle Haggard, Kris Kristofferson, Willie Nelson, et al read like answered prayers—life on the road begets broken marriages, estranged children, and hard drinking health problems.  And out comes a new album that you need to support on the road.  

The Pitch:

2 The Wrestler

2 The Wrestler

1 1/2 Kris Kristofferson

1 1/2 Kris Kristofferson

3 1/2  Crazy Heart

3 1/2 Crazy Heart

Young Victoria, The

Only in Kate Middleton's Dreams

Only in your dreams, Kate Middleton

The Young Victoria is not a bad film, but it suffers in comparison to the three films it begs comparison to:  2007 Best Picture nominee The Queen, Dame Judi Dench’s Golden Globe winning and Oscar nominee Mrs. Brown, and Cate Blanchett’s 1998 starmaker Elizabeth. 


The biggest problem is that Julian Fellowes’ (Gosford Park) screenplay lacks depth of, say, Peter Morgan’s Blair/Windsor action.  As Anthony Lane argues, part of The Queen’s brilliance is watching Tony Blair both push against and learn from the monarchy at the same time, which became the m.o. for his “third way” Clintonian style of governing.  Director Stephen Frears contrasts the high-ceilinged formal elegance of Buckingham Palace with the dowdy claustrophobia, and downright common-ness, of 10 Downing Street.  He stretches Tony Blair like taffy between the raging populism of his wife and the enduring, somehow endearing, elitism of the Queen.  Frears and Morgan try to puzzle out the monarchy’s relevance in a messy democracy, as embodied in Blair’s dubbing of Diana as “The People’s Princess.”  It’s a great film.


The Young Victoria, however, is a coming of age story wrapped in costume drama—if Molly Ringwold had turned down Pretty in Pink for a shot at “respectability” in a Merchant Ivory Oscar bait film, this might have been the perfect screenplay.  The teenage Victoria deals with being the favorite niece (and crown princess) of crazy old drunk uncle King William (Jim Broadbent), then tells off the ambitious, manipulative stepdad (Mark Strong) and her weak, complicit mother (Miranda Richardson).  But will she find true love?  Can she resist the charms of older, handsome popular guy Lord Melbourne (Paul Bettany), or will she choose as her coronation date the awkward, nerdy Albert (Rupert Friend) who sees the real Victoria?  There’s some political hoo-hah surrounding all this, but Victoria reminds everybody that “though I am young and experienced, I will learn” and all will be right with the kingdom.  All you need is love.


This is not to say that Queen Victoria is dull—or worse, offers moviemakers no great source material.  If The Queen is The Old Victorian, then Mrs. Brown is The Middle Aged Victoria—or, if you prefer, Victoria in Real Life.  John Madden (Shakespeare in Love) tackled the difficult middle period of Queen Victoria’s reign in Mrs. Brown, starring Judi Dench and comedian Billy Connolly as the Queen’s manservant who became her confidant and platonic work husband.  John Brown convinced the Queen, during an intense period of reclusive, black-clad widowhood, to re-emerge into public life and restore the popularity of the monarchy.  The film isn’t great (Madden has rarely acquitted himself well, outside of Shakespeare—he gave us this Nic Cage disaster that’s worth the repossession of at least two sports cars), but the material is interesting and the casting is inspired.  Dench plays the Queen like a black hole, where all life gets sucked in to never be seen again; Connolly brings light to her life with his “I’ll say anything!” candor, loosening the pull of her grief not just for personal reasons, but because her duty calls for it. 


Beyond the human story, Mrs. Brown tries to capture the moment when the former, fully sovereign monarchy gives way to republicanism.  As Shakespeare’s Henry V observes in his only soliloquy after his coronation, there is no “real” Hal, only the role he plays as king.  But, as the monarchy became more ceremonial after the disastrous reigns of George III and IV, it became more important to their influence and wealth that the royals be liked—in other words, to be the human embodiment of the aspirations of the people.  This is what the Scottish highlander teaches (in the same manner as he taught the gifted class at Millard Fillmore High) the venerable national treasure.


But this is only a four year period, so how else do you properly honor the longest-ruling female monarch in history?  The Young Victoria similarly tries to focus on one era of the great Queen, but the coming of age story of feels slight—especially when compared to Cate Blanchett’s emergence as Queen Elizabeth in her 1998 Oscar role.  That too was a coming of age role, but fleshed out by Shakespeare’s Henry V idea that the perfect Christian monarch ceases to be human once (s)he wears the crown.  The moment when Queen Elizabeth unveils herself as The Virgin Queen, married only to her country, is the moment when Elizabeth swallows her humanity and gives herself, Christ-like, to her duty as the vicar of God.  It’s also the moment when Cate Blanchett became a major star—the ice queen of the A-List.


That seems to be the intent of The Young Victoria for Emily Blunt, but how could she measure up to the seventh most popular Briton of all time?  The courtship of Prince Albert and Queen Victoria is a touching story, but the Queen’s real legacy lies in the transition to the modern constitutional monarchy during her reign.  As the American experiment pushed Old Europe to more populist reforms and the industrial revolution sparked great social change, the monarchy’s role became much more symbolic.  Thus, the monarchy had to not only identify with the people, but embody their aspirations in the way they live.  Out with the sex scandals and gross spending and obesity; in with “family values” that the emerging middle class could admire—somehow, Victoria had to create the paradox that the nobility are “the people.” 


Victoria’s nine children and forty-some grandchildren married across the continent, uniting Europe as a family of nations—and most importantly for her people, keeping the British out of a major war for nearly a century.  Whatever we may say about the evils of imperialism (which should actually go without saying), Victoria played the key role in creating the empire upon which the sun never set.  Her influence helped shaped many reforms that emboldened the British middle class, like The Education Act, The Mines Act, The Public Health and Artisan’s Dwelling Acts, and several others.  The Queen was not a populist; she didn’t support certain Reform Acts that would extend republicanism, and her interest in peace was primarily to extend the empire.  Still, her taste still influences British style—how much of what we read, wear, see, and live is described as Victorian?


In short, Queen Victoria is the world’s first modern monarch.  Emily Blunt seems capable of handling the role—she did, after all, handle a queen with a bigger god complex and her own personal guillotine.  Instead of The Young Victoria, the movie should have been The Prime of Victoria or How to Build an Empire in Sixty Years or Vic and Albert Go to White Castle or just something that tells the story of how Queen Victoria became an adjective for all time.  The film hints at this—Albert is something of a compassionate conservative, talking constantly about cutting wasteful spending while improving conditions for the working class.  But in the end, the film merely suggests the complexities of Victoria’s legacy without really describing the why and how it happened.  Though Emily Blunt may get nominated for this role, that’s the great movie—and the Oscar role—for whomever wants to seize the crown.  

The Pitch:

1 1/2  The Queen

1 1/2 The Queen






1 Cate Blanchett

1 Cate Blanchett






2 1/2  The Young Victoria

2 1/2 The Young Victoria

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