Moore's Audacious Attorney [or, Losing Your Case On Purpose]

Herb Titus, the lead lawyer for Alabama Chief Justice Roy Moore in the Ten Commandments case, chuckled when read a statement he'd made some years ago.

"Where does pragmatism get you? It doesn't get you where you want to go," Titus was quoted as saying to a Seattle reporter in 1998 when explaining his decision to leave the Republican Party and join the U.S. Taxpayers Party.

The Taxpayers Party espouses many positions that the general public might consider extremist, including opposition to public funding of education.

"Pragmatists," Titus said in a telephone interview this week, "are the most impractical persons I know because they base their decisions on what they think the future will be, and no one knows what the future will be, and I think that's very impractical."

Pro-monument critics of the legal strategy employed by Moore and Titus contend that the 2-ton monument would still be on public display in the rotunda of Alabama's judicial building had the chief justice and his team taken a more measured, or pragmatic, approach.

Titus doesn't dispute that their legal strategy -- which essentially asks the federal judicial system to decree that it has no authority to revoke an order by a top official of a state -- has never been tried before in a Ten Commandments case.

No, it's not pragmatic, Titus said, but desperate times call for audacious measures.

"The normal process has not proved successful," he said. "So when a lawyer examines what is normally done and recognizes it hasn't borne fruit, then you look for another way to get the court's attention."

Titus is an extremist, and proud of it. He said his views even rankled Pat Robertson, the founder of the 700 Club, the Christian Coalition and a virtual empire of conservative businesses and nonprofit entities, including Regent University.

In 1993, Robertson fired Titus from his position as the dean of Regent University's law school, ending Titus's 14-year tenure at the school.

The reason, according Titus then and now: Titus was too extreme for Robertson, and, vice versa, Robertson too moderate for Titus.

He'd accused Robertson of moderating his views in an effort to expand the base of the Christian Coalition. "I don't think Pat Robertson is that much to the right," the Harvard-educated Titus said this past week.

Robertson has been called many things, but usually by critics on his left. This, after all, is the creator of Operation Supreme Court Freedom, Robertson's exhortation of mass prayer for the retirements of three U.S. Supreme Court justices who, he said, were aged and suffering from a variety of illnesses.

Robertson's effort was a response by the court's decision to strike down a Texas law that made sodomy a criminal act.

In the past week, three of the country's leading proponents of displaying the Ten Commandments on public property have issued clear -- if carefully worded -- criticisms of the legal strategy employed by Titus and, by extension, his client, Moore.

Those include Robertson, Alabama Attorney General Bill Pryor, and Jay Sekulow, chief counsel for the American Center for Law and Justice, an organization founded by Robertson to further conservative Christian causes in the courts.

By many accounts, including Pryor's, Sekulow is the leading constitutional lawyer involved in conservative Christian legal issues.

Pryor, Sekulow and Robertson have all suggested that, had matters been handled differently, "The Rock," as it's become known, would not have been removed Wednesday.

"It may have been that the end result would have been protests, but at least they would be protests after every (legal) option was exercised, which is markedly different than what you have here," Sekulow said in a telephone interview last week.

Not long after Moore and his supporters installed the monument in the early hours of Aug. 1, 2001, and without informing his fellow justices, the lawsuit that the chief justice knew was coming arrived.

It was filed by three Alabama lawyers, represented by attorneys with the Southern Poverty Law Center, the American Civil Liberties Union, and like-minded groups.

At that point, Pryor approached Moore and offered to arrange for Sekulow to represent him for free, according to a letter recently written by Pryor to a state representative.

"Bill offered our services and we would have done the best we could have done, but he (Moore) clearly wanted his own lawyers," Sekulow said.

Titus met Moore in the late 1990s, when the latter was serving as a Circuit Court judge in Etowah County. Moore was serving in relative anonymity until the ACLU sued him, seeking the removal of a Ten Commandments plaque he'd placed in his court there.

With the ACLU lawsuit, Moore went from little-known rural judge to hero of the Christian right. His notoriety led to associations with Titus and others, including Coral Ridge Ministries.

"I was quite amazed at the knowledge and wisdom Judge Moore had with regard to the historical and textual meaning of the First Amendment and the relationship between God and government," Titus said.

"We became acquainted with each other over the years, and he asked me if I would be available to counsel him and defend him if necessary with respect to the monument," Titus said.

Titus's lawyer-client relationship with Moore preceded the installation of the monument, he said. The two discussed their plans and their possible implications of Moore's actions before the monument was moved in, Titus said.

Richard Cohen, the chief counsel of the Southern Poverty Law Center, declined comment on Titus's legal acumen, but indicated that he would have viewed Sekulow as a far more formidable opponent.

"I don't want to sell any lawyer on Judge Moore's team short, but I would say that Jay Sekulow is an exceptionally brilliant attorney and he has a very good track record on identifying good cases," Cohen said.

"If you were Jay Sekulow and you were interested in chipping away at some legal precedents, such a frontal assault would probably not be a good strategic vehicle to advance your case.

"I don't know if he would have taken this case," the Montgomery-based civil rights lawyer concluded.

Told Cohen's comments, Sekulow paused, then acknowledged that Cohen was probably correct, at least to a degree. He could have worked the case from its beginning but wouldn't have signed on once Moore and his legal team decided their legal strategy, Sekulow said.

"Not the way it's postured, that's correct. The way (Moore's legal defense) is postured, I would not have taken it," he said.

Sekulow and the ACLJ are currently litigating about 12 Ten Commandments cases, some of which, he believes, stand a good chance of proceeding to the U.S. Supreme Court.

Most of those cases, Sekulow said, involve pre-existing monuments that have been ordered removed, including some that have been in place for decades.

Difficult as the case would have been from the start, it was legal arguments presented by Moore's team that rendered the case essentially unwinnable, according to Sekulow.

"I would have argued the monument and the display are no different than the monument and the display in the United States Supreme Court building," Sekulow said.

"I would not have argued that the First Amendment does not apply to the states. I believe it does, so I would have taken a very different approach, not to say one's right and one's wrong," he said.

The legal argument employed by Moore and Titus proposes to do more than ensure that the monument remains in the judicial building.

If Moore were to succeed, it could entail a finding by the U.S. Supreme Court that no federal court has the authority to countermand an action authorized by a state or one of its top officials, Sekulow said.

Sekulow said he believes the argument is "very troubling and could be dangerous," in part because it would eliminate the ability of federal courts to overturn unconstitutional rulings by state courts, including decisions on religious matters.

Titus would disagree with Sekulow's characterization of the implications of his defense. He said it's long past time to correct what he called the tyranny of the federal courts over state matters.

"We raised it, and argued it, and continue to contend that a federal court has no jurisdiction to issue an injunction against the highest judicial officer in a state," Titus said.

"We made a decision that it's an extraordinary case. It's the only (Ten Commandments) case involving the highest judicial officer in a state," he said.

Titus said that to his knowledge "no one has ever raised this issue in any Ten Commandments case, and it needs to be raised." He rejected the suggestion that Moore's advocacy of defying a federal court order could be construed as a step toward anarchy.

"That's what people have said, but Chief Justice Moore is not an ordinary person. He has an oath of office that he must discharge according to his own understanding," Titus said. The issue of Moore's oath is central to the case, he said.

Citizens need to realize that this case involves a "claim of the federal courts" that they can order "a state judicial officer who has an independent constitutional duty," to act as they decree, he said.

"The federal courts ought to show self-restraint, and recognize that they're not the final arbiter of actions under the U.S. Constitution," Titus said.

"So it's not anarchy that's the problem, it's tyranny (of federal courts) that's the problem," Titus said.

In July, Moore and his legal team chose not to seek a stay following the decision by the Atlanta-based appeals court upholding U.S. District Judge Myron Thompson's ruling. Such requests, which must be filed during an allotted window of time, seek a ruling freezing a court order, pending further appeals of the case.

Courts generally agree to such requests, and likely would have in this case, according to Sekulow.

Robertson, in an Aug. 25 appearance on the radio talk show, "Jay Sekulow Live," said that the tactics used by Judge Moore and his legal team were "designed to bring about a confrontation which was not necessary."

By failing to seek a stay, Moore and his lawyers "left all of the -- those of us like you and me, who want the commandments up in public places -- in a quandary, and I regret that this has been done," Robertson said.

Supporters of Moore, like James Dobson, "need to understand how judicial processes work -- it's just a question not of principle, but of tactics," Robertson said.

"And the tactics used by Judge Moore have just not been well advised in my opinion."

In an Aug. 20 letter to Rep. Jim Carns, R-Birmingham, and responding to Carns' concerns about the removal of the monument, Pryor explained that he had no choice but to abide by the court order. He informed Carns that Moore's lawyers failed to use "standard procedures" that likely would have allowed the monument to remain during the remainder of the appeals process.

"One way to read General Pryor's letter is that he's being a bit disparaging of those lawyers," said Southern Poverty's Cohen. "I don't know if he meant it that way. I do know they've missed opportunities to ask for a stay.

"I think in retrospect that they didn't want a stay. I think they wanted to provoke a confrontation," Cohen theorized.

In his Aug. 5 order, Judge Thompson wrote that he'd asked Moore's legal team if they intended to seek a stay of the order. The Montgomery-based judge has presided over the case from the beginning.

When Thompson issued his order, Moore's team made an unusual request to the U.S. Supreme Court, asking the court to countermand the order. The nation's highest court declined to do so.

"In essence, they were arguing that the Supreme Court should step in and help Justice Moore to be in a position to defy a federal court order. That seems like a kind of nutty position," Cohen said.

Moore and his legal team didn't make a rookie mistake by forgetting to ask for a stay. They made a conscious decision not to request the stay, Titus said.

"We of course consulted with our client, and we examined the risks, and yes, we thought that what has happened might happen," Titus said.

"We're hopeful that through all of what has occurred that the U.S. Supreme Court will not duck another Ten Commandments case as it has been ducking them in the past," Titus said.

"This will impress upon the court that this is an important issue that they can't duck: Particularly the oath question."

After Thompson's order to remove the monument, Pryor, then the other eight justices on the Alabama Supreme Court, took actions to secure its removal. Gov. Bob Riley, while expressing his belief that the monument should remain, also agreed that the state had no choice but to abide by the federal judge's order.

The eight justices voted to comply with the federal order after Moore publicly proclaimed his intention to disobey the federal court's command.

Since then, Moore and some of his most fervent supporters have heaped scorn on Riley and the eight justices, but most of all, on Pryor.

Sekulow said Pryor's bona fides as an advocate of the public display of the commandments are impeccable. In fact, they include a multitude of court filings supporting Moore's placement of the monument.

"He had no choice but to make sure there was compliance," Sekulow said. "Those who have been critical of him just don't understand the role of the attorney general of the state.

"Bill had no option here. It's not that he should have done this or should have done that, but he had to comply with the law."

Titus, too, expressed sympathy for Pryor and Moore's fellow justices. He said it was "no wonder" they followed Thompson's order. Because of the federal court orders, Pryor and the justices "could themselves be found in contempt," Titus said.

Asked if his defense of Pryor and the state justices contradicted Moore's criticism of them, Titus said, "I think his public comments speak for themselves. I'm not going to comment on that."

They'll file what's known as a writ of certiorari with the U.S. Supreme Court. That's basically a request by a party in a lawsuit for the nation's highest court to consider an appeal of rulings by lower federal courts.

"It could very well be November or December before they make their decision to accept our petition for review," Titus said.

The Supreme Court receives thousands of such requests each year, and only agrees to consider a fraction of those.

Sekulow said that the protests, the national media coverage and the legal tack taken by Moore's team are more likely to damage the case's chances before the Supreme Court than help it.

Titus, certainly, doesn't seem inclined to curry favor with any federal court, including the one he hopes will consider Moore's case.

"These federal judges, including the ones on the Supreme Court, think they govern the Constitution," Titus said.

This is a clear admission that Moore failed to seek the stay on purpose. What is most interesting, though not discussed here, is that Moore did file for a stay after the time had run - a sure loser - and appealed the denial all the way to SCOTUS. This was nothing but theater. He knew the time had run, but ran his request up the chain of appellate courts to create another series of court decisions thwarting his monument. He used the court system, and taxpayer money, to pursue a completely frivolous motion for no other reason than to create sympathetic coverage - and it worked. Most people only heard that SCOTUS denied his appeal - not that they had refused to give him a stay he didn't ask for on time. Even some folks here on FR - where the quantity of information received is generally higher than the populace as a whole - viewed the SCOTUS refusal as a denial of the merits of Moore's position.

The use of the courts for a PR stunt is abhorrent behavior for a judge.

For more than 20 years, and despite a host of opportunities to hear appeals of federal court cases involving public displays of the Ten Commandments, the Supreme Court has refused to do so, Titus said.
"We're hopeful that through all of what has occurred that the U.S. Supreme Court will not duck another Ten Commandments case as it has been ducking them in the past," Titus said.
"This will impress upon the court that this is an important issue that they can't duck: Particularly the oath question."

And boy are the secularists mad about this!
The present Establishment Clause doctrine won't stand the light of day, and the ACLU has been praying no light would be thrown on it.

We could end up with a Constitutional Establishment Clause doctrine.

Quote:

Herb Titus, the lead lawyer for Alabama Chief Justice Roy Moore in the Ten Commandments case, chuckled when read a statement he'd made some years ago.
"Where does pragmatism get you? It doesn't get you where you want to go," Titus was quoted as saying to a Seattle reporter in 1998 when explaining his decision to leave the Republican Party and join the U.S. Taxpayers Party.

Well, that explains a lot, we're dealing with wingnut cranks!

The Taxpayers Party espouses many positions that the general public might consider extremist, including opposition to public funding of education.

And a lot of the general public — including me — consider it not only extremist, but crackpot as well.

Moore and his legal team didn't make a rookie mistake by forgetting to ask for a stay. They made a conscious decision not to request the stay, Titus said.

That is pretty damned appalling, given the misrepresentative statements which came out of that camp regarding their relief requests. Titus really needs to have his grandstanding, pompous butt disbarred, as should Moore.

Let him go back to being a rodeo clown or kickboxing dummy - he is done with ANY position of public trust.

The spirit of the First Amendment is freedom of thought, freedom of belief, freedom of speech, and freedom to spend money to make your thoughts accessible to others who may choose to attend to them--and freedom not to support the propagation of others' beliefs involuntarily.

Thus, the Establishment clause. But although "establishment of religion" as the framers knew it was not the existence of a cross on public property--but an actual church sustained by government payments to ministers, etc.--the establishment clause is routinely read so expansively as to threaten to moot the "free exercise" clause.

Today the government gives monopolies to the few over transmissions by radio and TV--monopolies with very substantial value--to enable its licensees to make their thoughts accessible to the general public in a uniquely efficient manner. And although the Constitution was designed to work without this recent innovation, the courts wink at fatuous claims of a "public interest" being served by the preferential propagation of the thoughts of those government-favored few.

FCC licensing (not to mention "Campaign Finance Reform") puts the government in the business of deciding what thought expressions are "in the public interest," and that is something the First Amendment patently was crafted to prohibit. That is quite a camel for the courts to swallow, while they are straining at the gnat of an expression of traditional moral sense in a state courthouse.

This is idiocy. Even Rush Limbaugh said the other day that it was ludicrous to claim that a federal judge did not have the authority to compel a state official to do something.

Of course! Federal judges are constitutionally invested with the supreme law making authority. Moore is an idiot!

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