Last week, after more than 48 years, I resigned my membership in the American Bar Association, after very carefully reading the exposure draft of Advisory Opinion No. 117 of the Committee on Codes of Conduct of the Judicial Conference of the United States. I encourage you to read it carefully.

Essentially, the Codes of Conduct Committee suggests that judges should no longer remain members of the American Constitution Society or the Federalist Society. However, the proposed opinion suggests that judges may continue to be members of the American Bar Association. I strongly agree with the opinion insofar as the American Constitution Society and the Federalist Society are concerned. With regret and respect, I strongly disagree with the exception for the American Bar Association. Continue reading →

As the year draws to the end, I have been thinking about 2019. I give you, the readers of Simple Justice, the discerning bunch that you are, my take on the top ten things that made me laugh, made me happy, made me crazy or made me sad during 2019. It is up to you to determine which category applies. Without further ado, here is my top ten.

Ten: The Senate Majority Leader pushed through a lot of smart new judges, albeit slaves to the Federalist Society’s schizophrenic program of promoting judicial restraint and judicial activism at the same time. Thus proving, I suppose, that one ought to buy stock in whatever big pharma manufacturers long-lasting Haldol. Continue reading →

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article I, Section 3, Clauses 6 and 7 of the Constitution

I have a special interest, albeit purely academic,[i] in the trial of the impeachment of President Trump.[ii] Most particularly, I will be fascinated to see whether the Senators argue about the burden of proof. And, if they do, I will be fascinated in the outcome. In this post, I make a prediction.[iii] So, if you are interested, read on. Continue reading →

I have been a Magistrate Judge, a Chief District Judge and now a Senior District Judge. I have clerked at the Eighth Circuit and sat as a judge at that court by designation. I have had the pleasure of handling cases in several other district courts in the Eighth Circuit. I have appreciated more than I can explain the judicial collegiality that I have always experienced in the District of Nebraska and in the Eighth Circuit more generally. Sadly, however, I have now seen a Chief District Judge in the Southern District of Florida murder judicial collegiality. It makes me want to vomit.

Consider, please, footnote 2 to an opinion of Chief District Judge K. Michael Moore of the Southern District of Florida adopting in part and rejecting in part a report and recommendation submitted by Magistrate Judge Lisette M. Reid in a pro se case.[i] Here is the footnote: Continue reading →

This short and narrow post is about the tears that Lawrence VanDyke, Donald Trump’s nominee for a seat on the 9th U.S. Circuit Court of Appeals, shed when confronted with a letter he had received the evening before his confirmation hearing. In essence, the letter from the American Bar Association’s Standing Committee on the Federal Judiciary said he was a nasty and mean-spirited bigot when it came to gay (“LGBTQ”) people.

Before the Senate Judiciary Committee, this man, who stands six-foot-seven or so tall and who is an avid hunter and gun enthusiast, cried in front of the cameras, the Senators, the press and his family when asked about the letter and the assertion of bigotry. As a reminder, here is a video clip: Continue reading →

I am not proud of the fact that all or most of the empathy that I once had has been burned out of me. That is not true for a local criminal defense lawyer by the name of David Tarrell.[i]

So, here is the story.

I recently had a supervised release violation matter involving a woman I had sentenced to a long prison stretch plus five years of supervised release for a meth crime. The woman, now in her late 50s, had been a meth addict.

She was arrested at the hospital after surviving a car wreck. We picked her up because she failed to keep her experienced and patient probation officer (who had gone the extra mile) informed of her whereabout. Turns out, her house had burned down, she got hurt in a car wreck, and blah, blah, blah. David was appointed from our Criminal Justice Act panel to represent her. I think I had met David once before, but this case was the first time he had appeared before me. Continue reading →

“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 →

Obviously, I take no position on whether President Trump should or should not be impeached. Even if I had a position, I would not reveal it. But I am intrigued by the fact that the Chief Justice of the United States becomes the Presiding officer in such a trial pursuant to Article I, Section 3, Clause 6 of the Constitution. That is:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

(Emphasis added.)

But, what does “preside” mean? 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 →

An amusing thing recently happened at the Fifth Circuit.[i] It all started with a  qualified immunity (QI) case. Cole v. Carson, No. 14-10228, No. 15-10045 (5th Cir., August 20, 2019) On a petition for rehearing en banc following remand from the Supreme Court, the Fifth Circuit once again affirmed the denial of summary judgment on an excessive force claim. Plaintiff and his parents had filed suit against police officers under 42 U.S.C. § 1983, alleging that the officers violated the Fourth and Fourteenth Amendment during an incident in which the officers shot the kid who was holding a gun near his head as he suddenly emerged from a tree line.

Although the majority decision is patently wrong and, given the remand, appeared to thumb its nose at the Supreme Court, the result of that opinion is not what I care about. Instead, I write about two dissents. Those dissents remind me of an iconic Disney movie and the pertinent question it recalls, “Magic mirror on the wall, who is the fairest one of all?”

Continue reading →