Good Judge, Bad Judge

At Slate, Cato’s Clark Neily calls for more judges with criminal defense experience, going so far as to call for a moratorium on judicial appointments from the ranks of prosecutors.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

Given the climate these days, few social justice warriors will disagree, and some might even split their donations between the ACLU and Cato. Not that it will happen, because the idea isn’t simple, but simplistic, and there are a host of reasons why it will not do what simple minds believe it will do. Continue reading

Kopf: Oliver Wendell Holmes, As Real As It Gets

“I can’t help preferring champagne to ditch water — I doubt if the universe does.”[i]

After all these years, I still have my treasured dog-eared paperback copy of Saul K. Padover’s[ii] magnificent essays about those who helped make the American experiment so fascinating. In that wonderful book, Professor Padover first brought to my attention Oliver Wendell Holmes, Jr.[iii] I read it in the 1960s. I was captivated by his essay on Holmes.

For me, Holmes endeavored, in a brilliant way, to answer the question that had been nagging me then and still nags me now: What is the difference between politics and law?

Holmes, it seemed to me, had a rough but imperfect answer that was nevertheless honest, and quite a bit better than the platitudes we swallowed during the Warren Court of my youth and the cant we genuflect to nowadays. In Holmes’ own words, “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”[iv] Or to put it another way, a judge’s preferences do not matter much. Nor does a judge’s sense of morality, commonly understood, have much to do with law except to the extent that one version of morality or the other is reflected in the legal reasoning which has gone before. He gave us legal realism in all its savage honesty.[v] Continue reading

Close Rikers Became Abolish Prisons

Jails have a smell, a combination of disinfectant and disgust. The former never really washes away the latter, and the combination of the two odors is repulsive. Rikers Island was a repulsive place, and it bred a culture of cruelty among not only its transient residents, but among the staff overpaid to keep them in line.

Close Rikers became a rallying cry, even though it was nothing more than an island with human warehouses. Corrections officer culture had become toxic, and unionization plus political inertia prevented any serious change, so the simpler sell was that Rikers had evil walls, and ceilings and steel bars. Blame the buildings and it would fix the problem, as if any other jail wouldn’t smell as awful.

There were two actual problems with Rikers, its isolation and its size. Isolation was its virtue when it was built, since nobody wants a jail in their neighborhood, and the folks who reside there weren’t welcome on Sutton Place. Size was a by-product of necessity, when crack, and its daily killings, caused the need for cells to explode. When Rikers Island ran out of room, they put people on a barge brought in to take the overflow. Nobody ever said they would rather be on the barge than Rikers. Jails smell the same, and both had water views. Continue reading

Atatiana Jefferson’s Castle

S. Lee Merritt, the Gloria Allred of Michael Avenattis, twitted that she was playing video games with her 8-year-old nephew, which doesn’t help nearly as much as he apparently thinks it does. Was his point that “Tay,” as he calls her as if they were old friends, was a neglectful, if not abusive, aunt? It was 2:25 in the morning, not really the time of day to play video games with a child.

But even if that’s true, despite the fact that Merritt’s history of presenting accurate claims isn’t exactly reliable, so what? Jefferson was, without question, safely ensconced in the one place in the world where she didn’t have to explain what she was doing, why she was there. She was in her home, her castle, and that’s all that matters.

Officers responded at 2:25 a.m. to the house in the 1200 block of East Allen Avenue. James Smith, who called a non-emergency police number, said he saw the doors were open and the lights were on, which struck him as unusual. He knew Jefferson, his neighbor, was home with her 8-year-old nephew.

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The “Pet” Justice Fallacy

Jesse Wegman asks a fair question for the wrong reason.

To be sure, the mere presence of an underrepresented demographic on the court doesn’t guarantee a specific outcome — a point Justice Marshall emphasized when he rejected the idea that he should be replaced by another black justice. “There’s no difference between a white snake and a black snake,” he said. “They’ll both bite.” (Justice Marshall’s seat was filled by Justice Clarence Thomas.)

There are a great many underrepresented demographics in America, and if one is a slave to intersectionality, the number might reach 300,000,000, since each of us is our own unique combination of racial, sexual, class attributes. If we’re going to each get a justice who “looks like us,” whether literally or metaphorically, they’re gonna need a really big bench. Continue reading

Seaton: The Ellen Effect, And The Death Of Honest Conversations

Ellen DeGeneres is a talk show host, dance aficionado, and quite the funny comedienne. She’s been credited for making Middle America comfortable with lesbians by coming out on a network television show, heralded as an ally to the woke, and once courageously claimed Donald Trump would never be invited on her show.

So naturally, all hell broke loose on Twitter when a photo of Ellen surfaced at a Dallas Cowboys game. No, Ellen’s offense wasn’t enjoying a Cowboys game [Ed. Note: דַּיֵּנוּ]. It was sitting next to former President George W. Bush.

“How dare she sit next to a bigot who cost American/Iraqi lives in war!” yelled some. “Oh, that’s rich: a wealthy white lesbian is smiling and enjoying a Cowboys game with the guy who pushed for a constitutional amendment defining marriage as union between a man and a woman.” Continue reading

Short Take: It’s Not About Your “Humanity”

At the Bulwark, Walter Olson offers an interesting post about the trio of cases argued before the Supreme Court this week, characterizing the issue as the “surprise plain meaning” approach to textualism.

The argument is this: If an employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so, it has treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

You might call the phenomenon “surprise plain meaning”—a meaning of the text that the drafters did not intend or notice at the time. Every law student learns about this early on, as with the question of whether a “No Vehicles in the Park” rule covers bicycles, skateboards, or a statue of the general in his Jeep.

And, indeed, every law student learns, or at least used to learn, about the blunt weapon of words, meant to convey one meaning, one purpose, but resulting in unintended applications despite the non-lawyer’s retort, “but you know that’s not what they meant.” That’s why writing law is hard, and why recognizing how words often encompass things not intended, but unavoidable, when they’re later used to apply in way that are entirely within the word’s ambit while being completely beyond the law’s intended reach. It happens all the time. Continue reading

Any Touch Will Do

It was malarkey, total nonsense, I was told in response to the complaint by some young men that they would no longer take the “risk” of approaching a young woman in real life. The men feared that they could step on a mine at any moment which would blow up by screams of “rape.” The women, together with their male allies who flit about their feet, responded with deeply simplistic snark that if they didn’t want to be called “rapist,” don’t be a rapist.

Was Jamie Griffiths a rapist?

“The complainant’s evidence was very clear, logical and without embellishment,” a magistrate told the young man. “We can think of no motivation for you to touch the victim other than sexual. Had she not taken evasive action the assault was likely to have been even more serious.”

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Seaton: One Saturday Night Down South In Knoxville

Last Saturday, my better half surprised me with a gift bag. It contained two day-glow orange T-shirts, and an envelope with two tix to the University of Tennessee vs. UGA game that evening. I immediately broke into a big smile. It was Game Day in Knoxville, ESPN was in town, and we would be live for the party.

If you’re not from East Tennessee, the importance of UT Football is hard to describe. UT football is football in East Tennessee. Ask someone locally if they’re watching “the game on Sunday” any week during football season and they’ll look at you with confusion. “Bless your heart, you mean Saturday, right?” will probably be the response you’ll get.

UT’s football program is historically badass. By kickoff Neyland Stadium becomes the sixth largest city in the entire state. The stadium the Vols call home is named after Brigadier General Robert Neyland, a man so epically badass he fought in World War I, came home and won a few football championships, fought in World War II, then came back home and said, “fuck it, let’s win a few more titles while I feel like it.” Continue reading

The Baer Necessities

NYU prof and vice provost, Ulrich Baer, has never been shy about crossing lanes into oncoming traffic, so it’s unsurprising that he wrote a book on a subject about which he knows nothing. What else would a passionate academic do, particularly when the climate is ripe for assertions that would have gotten him laughed off campus before intellectual rigor was replaced by sad tears.

Baer’s book, What Snowflakes Get Right: Free Speech, Truth and Equality on Campus, got him an interview at that bastion of academic freedom, Inside Higher Education, where he plays the most popular game among scholars these days, Guess my logical fallacy!

Q: What’s wrong with the way the free speech debate is understood on campus? Continue reading