Hypocritical Ed Brayton still doesn't get it on HR 2679

Ed "It's My Way or the Highway" Brayton is still making his hypocritical arguments in opposition to HR 2679, the bill that would bar attorney fee awards in establishment clause cases -- see here and here. He is still arguing that the only reason the bill's supporters have for supporting it is that the plaintiffs usually win establishment clause lawsuits in court. Wrong.

Also, Ed Brayton makes the big blooper of assuming that the ACLU is getting only a a small part of the attorney fee award in Kitzmiller v. Dover. Pepper-Hamilton is getting nothing except reimbursement for its expenses and the whole kaboodle after deduction of expenses is going to the ACLU and the Americans United for Separation of Church and State.

Here are some points about these attorney fee awards:

(1) The attorney fee awards that defendants must pay in establishment clause cases are often draconian. The Dover school board was soaked for $1 million in fees, though the board deserved little more than a slap on the wrist, if even that much. What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment." Yet the Darwinists and the ACLU crowd see nothing wrong in this -- many of them even say that the school board "got off easy."

(2) The ACLU, the Americans United for Separation of Church and State, Darwinists, etc., make no bones about the fact that one of the main purposes of these attorney fee awards is intimidation.

(3) Rip-off artists ACLU and AUSCS uses these lawsuits as a major means of fundraising. The ACLU has its own staff attorneys, but outside attorneys who represent the ACLU in litigation work for free and all the attorney fee awards go to the ACLU. Notice that I said "represent" the ACLU, because the ACLU is often the "plaintiff-in-fact" and the nominal plaintiffs are just mascots. The ACLU et al. should find other, more reputable means of fundraising.

(4) Because outside attorneys who help the ACLU and AUSCS are volunteers, there are often more plaintiffs' attorneys of record than there would otherwise be. In the Kitzmiller case, five attorneys from Pepper-Hamilton volunteered, and two of them were partners, a high rank in a 400-attorney law firm. All of the attorneys of record may charge for their time, which can greatly drive up attorney fee awards. In the Kitzmiller case, there were at least five plaintiffs' attorneys in the courtroom on every day of a six-week trial.

(5) Establishment clause lawsuits -- as well as free exercise lawsuits -- are an area of the law that is highly uncertain, inconsistent, and unpredictable. This is especially true because of the infamous Lemon test, which applies only to establishment clause cases. These factors of uncertainty in combination with the threat of an exorbitant attorney fee award often intimidate governments into avoiding actions that the courts might determine to be constitutional. A good example is the Los Angeles County Board of Supervisors' decision to cave in to the ACLU's threat to sue if a tiny cross is not removed from the Los Angeles County seal. No local government in America has deeper pockets than L.A. County, so if the ACLU can intimidate L.A. County, the ACLU can intimidate anyone.

(6) It seems to be generally assumed that only the plaintiffs are eligible for an attorney fee award, but there is no such provision in the fee-shifting statute, 42 USC §1988(b), which only provides for an attorney fee award to the "prevailing party."

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC §1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

(8) Public officials often find themselves between a rock and a hard place in regard to public expressions of religion, e.g., where there is a question of whether to allow a private individual or organization to publicly express religion, there is a threat of a free exercise lawsuit if such expression is censored and a threat of an establishment clause lawsuit if such expression is allowed. I think that to help keep the playing field level, there should be caps on attorney fees awards for both establishment clause and free exercise lawsuits instead of a ban on fee awards for establishment clause lawsuits only. However, as I said, I think that the current version of HR 2679 is much better than nothing.

Related articles on this blog:

"HR 2679, the bill barring attorney fee awards in establishment clause lawsuits"

"Is the party almost over for ACLU and AUSCS?"

A related article on Uncommon Descent:

"Write to Your Congresscritters in Support of H.R. 2679"

Considering that so many of Ed's positions are so weak, it is no wonder that he bans commenters and comments that disagree with his positions.