When Tiffany Cabán ran for Queens County District Attorney, her primary pitch wasn’t her prosecutorial or managerial experience, as she had neither, but her identity as a “queer Latina.” There was an assumption that her identity meant she would be more understanding, more empathetic toward people who looked like her, whatever that means. Essentially, she was announcing a bias, and if the bias appealed to voters, they would elect her.

In a campaign for prosecutor, this isn’t entirely a new concept. Candidates historically noted their endorsement by police unions for the “tough on crime” positions, which reflected a similar, if opposite and more related to the job, bias, and it worked well for a long time.

But is that what we would seek of federal judges? Cato Institute’s Clark Neily makes the case. Continue reading →

That Donald Trump was a vulgar, amoral ignoramus was why he got elected, not why he should be impeached. We tried the best and brightest, the educated and knowledgeable, the experienced and savvy, and they didn’t produce anything more than a lot of sweet words and a paralyzed Congress. Nothing was getting done, so why not try the guy whose grasp of America was as low-brow as most Americans. Throwing the alternative of Hillary Clinton into the mix made the option that much easier.

As David Leonhardt says, he was unfit for office, but that’s not a reason to impeach. But now, Speaker of the House Nancy Pelosi has said the words that so many wanted to hear, that the House is opening an “impeachment inquiry.”

It’s up to the House of Representatives to vote Articles of Impeachment. The various committees already investigating Trump for impeachment are now doing so “officially,” as opposed to just putting on a show for the sake of trying to embarrass Trump and humiliate him in front of a nation. Pelosi has asked the chairs of the committees to put together their best charges from matters that, up to now, haven’t managed to move the dial in the hearts of the public. Those who hated Trump still hate Trump. Those who loved Trump still love Trump. Continue reading →

The question has now been posed in a great many less vulgar ways, but is it time for the Democrats in the House of Representatives to shit or get off the pot? If they believe that Trump has committed “high crimes or misdemeanors,” has engaged in impeachment-worthy conduct, then the Constitution offers them a means of addressing it.

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

The question isn’t whether Trump has committed an impeachable offense(s). The question isn’t whether it’s a political, rather than legal, determination. The question is whether there will be more speeches, more investigations, more subpeonas, more accusations, more calls for action, all for the sake of the performance when the Constitution provides the mechanism to address the problem. Continue reading →

Is it a call to action or a call to nihilism, the belief that life is meaningless because they’re all going to die anyway? Why bother if it’s too late, if things are so terrible that we’re all doomed? Is this how young people should view their world? Carol Roth argues that the message is the problem.

Children today should be enjoying their youth. They arguably live in the greatest time ever, with unparalleled access to information, connectivity around the globe, advances in health care and tremendous opportunity. But instead of embracing optimism, the adults in their lives are filling them with fear.

In the last few weeks, from town halls on climate change to “climate justice” marches, I have seen scores of children – some teens, some squarely of elementary school-age – proclaim their anxiety about the world ending.

In what is described as either an impassioned plea from the face of global warming or the abuse of an indoctrinated child, Greta Thunburg has become the voice of climate doom and political failure. Continue reading →

Modern day “originalism” is a method (in my view, a narrow tool and not an expansive religion) of understanding the Constitution. No longer pursuing the fool’s errand of attempting to ascertain “original intent,” the modern-day originalist judge looks to the ordinary public meaning of the words of the Constitution at or about the time of the Founding to make decisions about the lives of litigants. This notion has within it an effort to understand the structure of our Constitution with reference to the writings of the Founders and the ordinary public meaning of the words they used. OK, the table has now been set.

While I am not a legal historian, I know something about legal history. I have long served as Chairman of the Board of the Historical Society of the United States Courts in the Eighth Circuit. In that capacity I have come to know and deeply appreciate distinguished (and always humble) legal historians such as Jeffrey Morris, John Wunder and Mark Scherer. These fellows have law degrees and PhD degrees in history. One of their history books has even been dedicated to me. Forgive the self-promotion, but it has a point beyond merely massaging my massive ego.

Now I turn to the essay that caught my eye and prompted this response. See How Originalism Changes Legal Analysis by law professor John O. McGinnis, in Law and Liberty. Frankly, it shocked me because it is nothing short of revolutionary when comes to federal district judges. Continue reading →

In the course of a typical day, I’ll be informed of how I’m sexist, racist, fascist, and a cuck, a libtard, a criminal lover and a rape apologist. People, right or left, seem to feel compelled to let me know how horrible I am, particularly bold and passionate law students who demand I explain my awfulness so they can tell me why I’m wrong. Fun times.

But every once in a while, someone gets so incensed by my awfulness that they vet my every expression, my posts here, my twits, in search of some way in which they can shut me up and close me down. On the one hand, it’s rather endearing that anyone would go through that much effort to silence me, to “win” by canceling me. On the other, it’s a sad reflection of the state of affairs.

To my surprise, an email arrived to inform me that someone who hated me enough to search back to 2015 came up with something of sufficient awfulness to get the Twitters to act. Continue reading →

I can still remember the first time I read the “looks like me” trope. It was from a guy on twitter, Anil Dash, who had a huge following for reasons that eluded me, and was attacking J.K. Rowling for not having written a character in the Harry Potter series who “looked like” Dash’s kid. I responded, “so write a book and make the characters whoever the hell you want.” How was it Rowling’s problem that her characters didn’t look like Dash’s kid?

But Kwame Anthony Appiah makes a more astute point. What does it mean to “look like me”?

The actor Eva Longoria, who appears in the film “Dora and the Lost City of Gold,” in which the principals are played by Latinx actors, has said she had to take the part because of what the film represented “for my community and for people who look like me.”

Continue reading →

A question posed: Most of this morning was spent writing a post about the question of whether it’s time to separate the “T” in LGBTQ. The issue is overwhelmingly mired in simplistic social justice dogma, making it impossible to “have a conversation” without invoking the outrage of the mob.

This comes as a by-product of the Democratic candidates forum on LGBTQ rights. Have we matured enough to have a serious discussion? Probably not, but if people care about doing what we can to end discrimination against both gay and transgender people, then we need to recognize that they present different issues and problems. Are we ready for this? Will I get ripped to shreds for my heresy? Do I need that aggravation? Continue reading →

She was coming off a 14-hour shift as a Dallas police officer. He was minding his own business in his own apartment, going about his life until she took it from him.

A white off-duty police officer who lived in Unit 1378 — directly below Mr. Jean — claimed that she mistakenly entered the wrong apartment after returning home from her 14-hour shift and believed Mr. Jean, who is black, was an intruder. Officer Amber R. Guyger, 30, fired her service weapon twice, striking him once in the torso.

Botham Jean was in his apartment when some random woman entered and “commanded” him to do something. It’s unclear what she claims to have commanded of Jean, but she says he ignored her. Of course he did, because he was in his own apartment and she was some crazy intruder. And she claims, now that she’s going to trial for murder, that she made a mistake of fact, thinking that he was in her apartment, which was one floor below, and he was the intruder. Texas has a very broad Castle Doctrine, and with two bullets from her service weapon, Botham Jean was dead in his own apartment. Oops, her mistake. Continue reading →

It’s become commonplace in the start-up business world to provide certain office perks for employees, such as healthy nut and grain bars, dipped in chocolate to kill the vitamins, or the Millennial version of Old Miss Frothingslosh, the stale pale ale with the foam on the bottom. It keeps employees at work and caters to their fond memories of mommy bringing Cheetos to them while they sat on the basement couch playing Mortal Kombat. Good times.

But do something nice and, naturally, it’s problematic.

I run a small but growing start-up and employ many young female employees. As is standard for the start-up world, we buy kitchen items for our staff, including snacks, beer and wine, paper towels and facial tissues. We have a board in the break area that we use to remind me what items we are getting low on.

My employees keep putting feminine sanitary items on that board. I quizzed building maintenance and found that these items are for sale in all the ladies’ restrooms for 25 cents each. Should I be buying these items with corporate money, and how can I justify it one way or the other?

— Atlanta

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