As nominations for the Supreme Court coming from the Trump administration go, Judge Amy Coney Barrett is pretty darn good. Her ruling in the Purdue Title IX case was exemplary. Her position on civil rights is strong. How she might rule on the ACA or abortion remains something of a mystery, but the assertion that she is a guaranteed vote to end them is wildly speculative, as she has made clear that she strongly believes in the legal doctrine of stare decisis.

Hey, Trump could have nominated Jeanine Pirro. And as much as Merrick Garland has been idealized by the Dems because of the offensive Republican refusal to give him a vote, he was no great hero of liberal jurisprudence. Judge Barrett wouldn’t be Ruth Bader Ginsburg, but then, no one would expect Trump to nominate a Justice Ginsburg, and it’s hardly clear that if the next Supreme Court justice were nominated by Joe Biden, the person would be any more Notorious than Barrett. Continue reading →

It was a shitshow. Worse than that, because it can always get worse, there was never a chance that it would be anything but a shitshow from the outset. Trump came in with the purpose of proving to his hard core right wing fringe supporters that he was the tough guy they so admire in him. And when asked by Chris Wallace, who was completely incapable of reining in Trump, to condemn white supremacy, the most Trumpian of things Trump could say came out.

Stand Back. Stand By.

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The idea of a grand jury moving for the disclosure of the grand jury transcript is simultaneously bizarre and interesting. By law, they are sworn to secrecy for sound policy reasons, and since their role is not about them, they have neither a right nor interest in challenging the law. Yet, a grand juror in the presentation against the cops involved in the killing of Breonna Taylor got a lawyer and made the motion.

The unnamed juror filed a court motion on Monday seeking the release of last week’s transcripts and permission from a judge to speak publicly to set the record straight. Hours later, the office of Attorney General Daniel Cameron granted both requests, saying that the juror is free to speak and that recordings of the session will be made public.

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On the one hand, if 43 out of 47 students working at the Washington Square News, a quasi-independent newspaper of New York University, determined that their working conditions were so intolerable that they could no longer suffer the paper’s new advisor, Dr. Kenna Griffin, they did the right thing. They quit.

On the other hand, that doesn’t make their complaints sound, just theirs.

Three weeks ago, a student-run newspaper with ties to New York University got a new editorial adviser: Kenna Griffin, a former reporter and editor who had taught journalism at Oklahoma City University for 16 years. She started advising the paper, Washington Square News, remotely from Oklahoma.

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Someone gave the New York Times “more than two decades” of Trump’s “tax return data,” and they published it. Had Trump revealed his returns, as has become the norm for presidential candidates since 1974, this would be old news. But since Trump refused to do so, and since it’s Trump, the billionaire stable genius super businessman dealmaker, it’s . . . something.

What does the tax data mean? He didn’t pay any taxes for 10 of 15 years, and paid $750 in the year he was elected. Does that make him a tax genius or a lying business failure? Beats me. I’m no tax expert, and tax returns bore me to tears. It wouldn’t be surprising that he was able to use the tax regs to his advantage by milking every deduction and passive loss carryforward and using them to his advantage. It also wouldn’t surprise me to learn that he was drowning in debt. I’ve known quite a few people who lived the life of the wealthy until some intervening good fortune saved them from the scheme crashing down on them. Or the scheme crashed down on them. Continue reading →

Sifting through the vast array of ever-shifting attacks, and denials that they are anything more than strawman cries, against the now-nominated Amy Coney Barrett has been amusing, sad and pathetic. But the worst of it isn’t the usual cries by the civically illiterate, who have no clue what judges do or are supposed to do. The worst is that the groundlings are being manipulated by those who do.

To be fair, it’s too easy. Judge Barrett is being attacked/not attacked for being a Catholic, for adopting black children, and for her love/hatred of stare decisis. Smart people are arguing with surprising vehemence about how Judge Barrett will bring the “conservative” majority to 6-3 (because 5-4 isn’t a majority?), upon which every decision some cherish will be reversed and every decision some despise will be redoubled. By the way, that’s always been the way people have understood stare decisis, even though it’s a tenet about judicial stability. Continue reading →

This video was presented on the twitters by different people with polar opposite characterizations. Was this an instance of a driver plowing into a crowd of protesters or a crowd of rioters attacking a guy in a Prius?

So, what happened here?

I remember well the Clarence Thomas confirmation hearing in 1991. We were on vacation at Mohonk Mountain House, and they set aside a room with a television to watch the hearing. Anita Hill was testifying about Thomas’ sexual harassment, a pubic hair on a coke can.

Thomas was nominated to fill Thurgood Marshall’s seat, a seat too large for anyone to fill. It was the “black” seat, and so a black man was chosen, and somehow Thomas was the person chosen by President George H.W. Bush. At the time, he had been a judge on Circuit Court for the District of Columbia for about a year, after stints at the Department of Education and a dubious tenure as chair of the EEOC. Continue reading →

There’s a joke that Keith Kaplan tells on twitters every once in a while, when someone new jumps into the middle of a discussion that’s been going on forever.

It’s like Twitter is a bar argument that resets every time a new patron walks in and says, “so, what are we fighting about today?”

For the new guy, it’s all new.* What a cool argument! Let’s start at the beginning, running through every claim, real or imagined, every argument, sound or debunked, as if nobody ever said it, thought it, discussed it before. Hey, isn’t the new guy entitled to start the journey again, for himself? And aren’t you, the old guy, obliged to suffer through it again? Multiply that by ten, ten thousand, and it gets old fast. Continue reading →

Someone, a non-lawyer, put it succinctly. How do police break into a person’s home and kill a sleeping woman and it’s not murder? As lawyers and judges, we know the answer to the legally ill-framed question. We can explain how warrants work, knock or no-knock, when needlessly executed late at night when people are asleep and processing the sounds to understand what’s happening is extremely problematic.

We can explain the Castle Doctrine that makes it lawful for a resident to defend his home when someone breaks in at night. We can explain that the police are given special latitude in order to do their job, including the authority to return fire after they’ve done a substantively inadequate job of alerting the residents of their identity, if they did at all, to avoid the resident from believing they’re burglars (or ex-boyfriends) and pulling out a lawful gun to protect lives. Continue reading →