Author Archives: SHG

The Fake Law Narrative Won’t Help Transgender Students

Unsurprisingly, the Trump administration will be issuing new “guidance” on the treatment of transgender students under Title IX.

The Trump administration will issue new guidelines on how public schools treat transgender students, Press Secretary Sean Spicer said at a news briefing on Tuesday, indicating that the matter should be left up to states.

The announcement suggests the Justice Department will rescind a policy enacted by the Obama administration designed to protect transgender students from discrimination and harassment, which said students could use facilities that match their gender identity, from restrooms to dorms.

This comes as no surprised. Having discussed at length the means by which the Obama Departments of Justice and Education wound their way from a law that prohibited sex discrimination, enacted in 1972, to the euphemistically named “guidance,” meaning not law, not even regulations, but a letter sent out by a bureaucrat completely changing everything, even though it’s putatively unenforceable. It’s just, you know, “guidance.”

And that’s where the problem lies. Continue reading

The Land Of Limited Opportunity

For a brief and shining moment, it was a microaggression to call America the land of opportunity, the melting pot, the various traditional phrases that expressed our immigrant heritage and how from many, we became one. E pluribus unum. So awful.

But the focus has now shifted off of such silliness to recognized reality that Americans want their borders back. To that end, Homeland Security Secretary John Kelly has issued battle plans to put into effect the promises made on the campaign trail. Ironically, this has been going on for a while now, although few were aware of it because they were too obsessed with their feelings to see.

As MSNBC’s Christopher Hayes offered, our immigration enforcement strength has been ramping up for a while, with few paying attention. Continue reading

Provoked And Triggered: The End Of Milo?

These three things can be true at the same time:

  1. Milo Yiannopoulos is a glib, disgusting, provocateur.
  2. Milo Yiannopoulos provided a valuable counterpoint to the forces of political correctness.
  3. Milo Yiannopoulos overplayed his hand, went outside the realm of political correctness, into the realm of promoting criminal conduct, and deserves everything that happened to him.

Yesterday was not a good day for Milo.

On Monday, the organizers of the Conservative Political Action Conference rescinded their invitation for him to speak this week. Simon & Schuster said it was canceling publication of “Dangerous” after standing by him through weeks of criticism of the deal. And Breitbart itself was reportedly reconsidering his role amid calls online for it to sever ties with him.

Continue reading

White House Calling

Robert Capers is the United States Attorney for the Eastern District of New York, former home to Loretta Lynch and the once-lovely and genteel Idlewild Airport. Lynch has now gone into the history books as a former Attorney General. Idlewild is now a dump called JFK Airport. There was nothing lovely about the place following the Friday Fiasco of Trump’s travel ban.

According to the Harry Siegel of the Daily News, Capers was home that Friday when he received a call from the White House. No, not the big guy. Not even the other big guy. The little guy. This guy, 31-year-old Stephen Miller, who may be the most unpleasant face to ever greet a Sunday morning.

Siegel describes the call thus:

In the chaotic hours after President Trump signed on a Friday afternoon the sloppily written executive order meant to fulfill his Muslim ban campaign promise, Stephen Miller called the home of Robert Capers to dictate to the U.S. Attorney for the Eastern District how he should defend that order at a Saturday emergency federal court hearing.

Continue reading

Let No Offense Get Through

Editing is a wondrous thing. When writing, it’s almost impossible to see your own typos, your mismatched verb tenses, your truly horrible choice of words and your sentences that die a brutal and painful death. Someone else will immediately see the problems and, poof, they’re fixed. It’s a miracle.

But those are technical problems. Book publishers have an entirely different problem these days, and it’s not just with Huck Finn.

Before a book is published and released to the public, it’s passed through the hands (and eyes) of many people: an author’s friends and family, an agent and, of course, an editor.

These days, though, a book may get an additional check from an unusual source: a sensitivity reader, a person who, for a nominal fee, will scan the book for racist, sexist or otherwise offensive content. These readers give feedback based on self-ascribed areas of expertise such as “dealing with terminal illness,” “racial dynamics in Muslim communities within families” or “transgender issues.”

Continue reading

Reflections Of The “Good” Judge

Most lawyers won’t be able to say they know what it was like to appear before former SDNY Judge Shira Scheindlin for sentence. Consequently, her Washington Post op-ed may come off somewhat disingenuous.

Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.

There are some quibbles with this paragraph. Some would argue that there are two separate deterrence goals, general and individual. Some would argue that to blame the Sentencing Reform Act of 1984, but not the Supreme Court’s decision in Mistretta v. United States, misdirects blame for the mandatory guidelines, which was just as responsible, if not more so, as mandatory minimums for unduly harsh sentences. But these are quibbles.

What may strike people as hardest to swallow is that a federal judge complains about being powerless to exercise judgment, forced to play bean counter rather than judge. If not a federal judge, then who? Continue reading

Dinner At Le CouCou (The Day After)

There aren’t a great many benefits to blogging. Fielding moronic comments that demand an order of magnitude more effort to deconstruct than to make isn’t nearly as much fun as people think. But when I wrote about the efforts to get reservations at Le CouCou, a wonderful thing happened. They reached out to me and gave me the reservations we wanted.

Last night was our dinner at Le CouCou. We approached it with some minor trepidation, as experience is that the higher the expectations, the more easily we will be disappointed. But truth be told, our expectations were sky high. And…

Le CouCou was fabulous.

As we entered, the memory of the old Bouley struck both Dr. SJ and me. There was no scent of apples, but there was still something of a clean break from the street into a world of French dining set by candles. This was proven at the table, where a tall white taper was burning. Not a puny votive. Not an electric faux candle. But a real taper. Continue reading

A Call From Area Code 202

A friend asked the question: Should I? When a new administration takes over in Washington, there is a seismic shift in top-level staff. The new administration has to appoint something on the order of 4,000 people, but then there are emanations and penumbras from there, as second and lower level bureaucrats put their own people in place.

That’s a lot of jobs, and a lot of bodies are needed to fill those jobs.

In the ordinary scheme of things, this isn’t nearly as big a deal as it might seem. Political parties have their people, the staffers from prior administrations, the new people who come aboard, all clamoring for a post. And decisions are delegated to people who are trusted for their dedication to the party and trusted to be knowledgeable enough to do the job.

So when the friend asked the question, it should have been an easy one to answer. Should they accept a position in the Trump administration? The question is very involved and deeply problematic. Continue reading

For A Nickel I Will

More than 35 years ago, upon graduating from college, I did what many kids of my generation did. I bought a backpack and a Eurail Pass and set out to see the world, without a gun on my shoulder. I flew into Paris’ De Gaulle Airport and promptly made my way to a cafe, where I sat on the street to learn what Ithaca failed to teach me.

Among the things I observed were shoppers with mesh bags for their delicious foodstuffs. Back home, baggers in supermarkets put groceries in paper bags. When shoppers got home, the paper bags, often torn to shreds at that point, were thrown away. In Paris, the mesh bags came with shoppers, left with shoppers and were then used again. This seemed so . . . unAmerican.

In the years that followed, I wondered why this was never adopted here.* Why did people not bring their own bags rather than use disposable paper bags, which required the murder of trees and space on Staten Island? At least the brown papers bags could be made of recycled paper and would swiftly biodegrade. Continue reading

The Physician’s Place (Update)


The American Society of Pedantic Progressive Pediatricians has announced that all physicians should engage in a ten minute discussion with patients, outside of the hearing of parents and legal guardians, between the ages of 12 and 15 about the virtue of trying homosexual sex before determining their gender identity. If the patient, or their parent or legal guardian refuses to allow or attend the discussion, the physician should refuse to provide medical care to the patient.

Insane? Ridiculous? Outrageous? Obviously, but the hyperbole is used to make a point. Physicians hold a place of special knowledge and trust. Physicians provide a skill that people require. Physicians have an opportunity to exert an influence above and beyond the limits of their position as medical providers because of these things, so why not use that position, that influence, that trust, for causes?

That’s the problem that gave rise to the law partially struck down by the 11th Circuit, en banc.

Yesterday, the 11th Circuit handed down a substantially revised opinion in Wollschlaeger v. Governor, the Florida “Docs vs. Glocks” case.

Continue reading

WOZO In Knoxville

When Chris Seaton told me that a radio producer was interested in his doing a show, I shared his excitement. Aside from being a criminal defense lawyer and contributor at Fault Lines, he’s got a wicked sense of humor.

If those words, “sense of humor,” are unfamiliar to you, it’s something people used to have that made people laugh and think. It was rarely politically correct or deeply sensitive to things that might hurt people’s feelings. It’s no longer allowed in some circles.

Chris’ producer, Aaron Campbell, also had a sense of humor, which brought the tolerance police down on him at Knoxville’s “community radio” station, WOZO, 103.9 FM. The station was born of pirate radio ironically called KFAR, Knoxville’s First Amendment Radio. The FCC shut it down, burned its content and banned its pirates. So, like good pirates, they reestablished themselves under dark of night and cool ‘nyms like DJ Angel.

That same DJ Angel, whose real name is Angel Ibarra, was the guy who, with muscle in tow, punched Campbell and uttered one of the seven words you can’t say on TV during a live broadcast. Campbell brought a comedian on his show who told a joke that offended Ibarra’s very tolerant and progressive sensibilities. So, Campbell got beaten for it. This makes perfect sense if you understand how tolerance works these days. Continue reading

The Donald And The Spooks (Update)

On the one hand, the New York Times is calling for an independent prosecutor to investigate the connection between Trump and the Russians. This is the outgrowth of two interconnected issues, the first being the perceived unholy alliance between Trump and Putin.

In this case, the need couldn’t be more obvious. For starters, did Mr. Trump order Mr. Flynn, directly or indirectly, to discuss sanctions with the Russian ambassador? If not, why did he not fire Mr. Flynn weeks earlier, when he apparently first learned of his lies? Were Mr. Trump’s aides colluding with Russian agents during the campaign? Perhaps most important are Mr. Trump’s tax returns, which could tell us whether he is beholden to, and thus compromised by, the Russians? House Republicans, assuming their standard supine stance toward Mr. Trump, voted on Tuesday against requesting the returns from the Internal Revenue Service; a special prosecutor would not feel so politically constrained.

There are some good questions in there, particularly as relates to Flynn’s retention after the administration knew of his discussions with the Russian ambassador, yet kept him on until it became public. Only then was he thrown overboard, suggesting his crime wasn’t what he did, but being publicly exposed to the embarrassment of the administration.

Other questions were raised during the campaign and rejected by voters as being a problem. The Times can’t let go, so it concludes that “the need couldn’t be more obvious,” a rhetorical sign that it needs to overcome with hyperbole what it can’t substantiate. But does Flynn’s lying about his contact, what may well be a violation of 18 U.S.C. § 1001, fall outside the capacity of the government to investigate? That’s the second prong. Continue reading