"The principle that senators are not jurors in the traditional sense was well established at the outset of the 1999 impeachment trial of President Bill Clinton."

"Tasked with delivering an opening statement for the House managers, who present the House’s case to the Senate, Rep. Robert Barr, R-Ga., reminded the senators of Clinton’s tendency to 'nitpick' over details or 'parse a specific word or phrase of testimony.' To Barr, the conclusion was obvious: 'We urge you, the distinguished jurors in this case, not to be fooled.' That was the moment Sen. Tom Harkin, an Iowa Democrat, had been waiting for. 'Mr. Chief Justice,' he said, addressing William Rehnquist, who was presiding over the trial, 'I object to the use and the continued use of the word "jurors" when referring to the Senate.'... The chief justice sustained the objection. 'The Senate is not simply a jury,' he ruled. 'It is a court in this case.' Rehnquist thus admonished the House managers 'to refrain from referring to the Senators as jurors.' For the balance of the trial, they were called 'triers of law and fact.'... In an ordinary trial, the jury’s role is generally limited to fact finding, while the judge determines the scope and application of the law. In an impeachment trial, however, the Senate itself has the 'sole power' to decide every issue. Recognizing the Senate’s all-encompassing responsibility, and his own limited role, Chief Justice Rehnquist referred to himself throughout the proceeding only as 'the chair.'"

Writes lawprof Steven Lubet in (The National Interest).

Atticus Finch said "The Negroes down here are still in their childhood as a people."

Michiko Kakutani reveals in her NYT review of "Go Set a Watchman," discussed in an earlier post, where I wonder about the discussion Harper Lee had with her publishers that led to the rewrite of the story, making Atticus Finch an idealize father and lawyer.

Let me guess, Lee and/or her publishers said Americans are still in their childhood as a people. This needs to be a children's book.

I reread "To Kill a Mockingbird" in 1999, when I was invited to respond to another law professor's critique of it. Steven Lubet focused on the way Atticus Finch cross-examined the purported rape victim. Could Mayella have been telling the truth? I objected to Lubet's revisionist view of Atticus Finch precisely because the book is written to be understood by children:

That Mayella’s injuries were on her right side, that her father is left handed, and that Tom’s left arm is so entirely useless it slips off the Bible as he is taking the oath, clearly establishes Harper Lee’s overeagerness to assure us that Tom is innocent and to squelch any speculation to the contrary. (Professor Lubet breaks free of the author’s firm hold.) The author’s decision to forgo the usual subtleties of the novelist’s art undermines attempts at assessing Atticus’s legal skills. Indeed, Lee’s cartoonishly overdone evidence generates its own difficulties: Tom’s left arm is an entire foot shorter than his right arm and it hangs “dead at his side” and dangles a hand so shrivelled that Scout detects its inutility from the balcony, yet Atticus is able to trap both Bob Ewell and Mayella into testifying in a way that would require Tom to have an effective left arm, as if they had never laid eyes on him. Given this glaring lapse in the evidence, it is not surprising that Professor Lubet can pry a number of holes in the evidence and construct an interpretation that Tom is guilty, but I would still maintain that Atticus can be credited with an absolute belief that Tom is innocent and that readers entering Lee’s simplified moral world are compelled to adopt this belief as well.

ADDED: Lubet's argument is discussed in this Malcolm Gladwell article from 2009, "The Courthouse Ring/Atticus Finch and the limits of Southern liberalism."

"McKinney ... kept restating her charges of discrimination and profiling - which is just how a good bluff works."

Lawprof Steven Lubet -- who's got a new book, "Lawyers' Poker: 52 Lessons That Lawyers Can Learn from Card Players" -- is blogging about Congresswoman Cynthia McKinney and poker:

Bluffing depends on uncertainty. Did the Capitol Police really have a history of discrimination? Did the officer really use excessive force? Does McKinney have solid evidence to back up her claims? And how much were the Capitol police willing to pay - in the currency of reputation and credibility - in order to find out?

Whatever you think of McKinney, it was hard not to be impressed by the way that she kept raising the stakes. It would have been hard enough for federal prosecutors to take on a member of congress in any circumstance, but she put them on notice that they might be publicly branded racists - and perhaps face a civil rights lawsuit - if they filed charges against McKinney. Under that sort of pressure, no one would blame them for backing off.

Poker. It's about everything.