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Monday, October 1, 2012

Rob McKenna: Crappy Lawyer or Lawyerly?

Posted by on Mon, Oct 1, 2012 at 12:37 PM

One of the curious things about Rob McKenna is how he has managed to maintain his credibility as a lawyer despite a spectacular string of profoundly dunderheaded legal pronouncements. For example, his failed effort to reinterpret the definition of the word "by" in our state's minimum wage law, his despotic (and again, failed) attempt to deny Lands Commissioner Peter Goldmark access to an attorney, and of his course arrogant effort to overturn Obamacare.

What marks all three of these high-profile cases is not just the abject failure of McKenna's legal arguments, but the way he confidently doubled-down on these failed arguments in public. (These were also legal battles that I confidently and correctly predicted he would lose.) And it's a pattern that McKenna is repeating again by quixotically sticking to his office's obviously weak argument in defense of I-1053's supermajority requirement:

If they were to rule on the constitutionality I think they would uphold it. The opponents of two-thirds ... are hanging their case on a few words in the state constitution that refer to the requirement that a majority of legislators be present in order to pass legislation.

We understand that very clearly. What they [the founding fathers] are saying is if you’ve got 49 state Senators, you can’t have only 20 of them present and pass a law by a vote of 11 to nine. They’re saying you have to have a majority present and then you can have a vote, and then a majority have to vote for it, a majority of the legislature. So, I think that’s what that clearly means. And it was not intended to be a ceiling on a voting requirement to pass bills.

Honestly, that's just plain stupid. Gerberding v. Monroe is a goddamn roadmap for deciding LEV v. State. If the court rules on the constitutionality of I-1053 (and I'm not confident that our popularly elected justices won't once again hide behind justiciability) it would have no choice but to toss the fucker out.

So if the merits of this case are so obvious to all but the most partisan of partisans, what explains McKenna's laughable argument? Surely, he's read Gerberding. He can see the parallels as well as I. So why his public adherence to a legal argument that the court has already rejected?

As I see it, there are two possibilities: Either he's a very crappy lawyer who doesn't understand how weak his legal argument is, or he's just being, for want of a better word, lawyerly. That is, McKenna knows his argument is weak, and that he's not likely to prevail, but he chooses to defend his position in the court of public opinion as stubbornly as he chooses to defend it in a court of law.

Of course, it's a lawyer's job to defend his client. So I suppose you could just say that McKenna is doing his job, however poorly. But if that is the case then he is also choosing to deceive the media and the voters by confidently proclaiming legal arguments he doesn't truly believe will hold much weight in court.


Comments (7) RSS

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Kinison 1
One could assume that Goldy was a horrible husband, given that he is divorced.
Posted by Kinison on October 1, 2012 at 12:49 PM · Report this
Sir Vic 2
McKenna's legal advice should be treated like Darth Cheney's foreign policy advice - wrong every time he opens his mouth.
Do the exact opposite of what he says.

Posted by Sir Vic on October 1, 2012 at 1:13 PM · Report this
Pope Peabrain 3
Ideologically rigid.
Posted by Pope Peabrain on October 1, 2012 at 1:23 PM · Report this
I really hope the super-majority thing gets struck down, but I'm really craving commentary from a someone other than Goldy these days. I'm having a hard time trusting his word on "justiciability," because I'm not sure his interpretation of the law isn't clouded by his rabid distaste for McKenna and Eyman. Or that he's not just plain wrong - he isn't trained in law, right? Please, please, please - go interview a law professor or two or a judge or some independent legal authority somewhere.
Posted by Centrists Rule the World today on October 1, 2012 at 1:29 PM · Report this
try this. you contract to buy a horse for $400. Is that a floor? a ceiling? or $400?

you provide in a constitution that all adults over age 18 can vote. is that a floor, meaning the legislature or a temporary combination of rich folks can pass a law adding "however, you must also make over $25K to be able to vote!"

the notion that expressio unius est exclusio alterius is pretty basic. or take marriage law. it's a thing between a man and a woman...or a man and a man...oh wait, can we now pass a law saying it's also between a man and ten women?

don't think so. I do not think mckenna would say that one is a floor not a ceiling! so why this one?
Posted by floor/ceiling explicated on October 1, 2012 at 2:02 PM · Report this
Goldy can barely feed himself, but his legal skills, despite no formal training, dwarf those of Oliver Wendell Holmes, no less.
Posted by Goldy is the Linda Greenhouse of the Stranger. on October 1, 2012 at 2:06 PM · Report this
seandr 7
@4: Given McKenna's willingness to suspend reason and reality to suit the childish, delusional whims of his right wing voters, Goldy is a far more trustworthy source on validity of McKenna's positions than McKenna is.
Posted by seandr on October 1, 2012 at 3:01 PM · Report this

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