There is much to criticize about the justices of the Supreme Court of the United States. They don’t work too hard. Under the guise of “judicial modesty,” they leave glaring issues on the table for years, sometimes decades, rather than do their job and provide meaningful guidance to lower courts. And, despite what we all take for granted, their core purpose, as we understand it today, derives from judicial activism, when Chief Justice John Marshall pulled judicial review out of his butt in 1803.

And sometimes, monumental issues of law are determined by a single justice, who breaks a tie, shifting the paradigm of a nation’s constitutional rights from one side to another. In a more rational world, one might suspect that such a shift should be determined by unanimity, if not plurality. After all, if four go one way and four the other, how certain can a nation be that the decision is right? Is it too much to expect that nine people agree before we accept a fundamental change in the interpretation of the Constitution? Is it good enough that one justice, one swing vote, be sufficient to change everything?

Yet, that’s how it works. And that’s why voices you believe are knowledgeable and trustworthy lie to you.

When Merrick Garland was nominated to the Supreme Court by President Obama, it was a smart gambit, knowing full well that the Republican-held Senate had announced they wouldn’t give anyone nominated by Obama a shake. He was a moderate nominee who could have been offered by a president from either party. There was nothing wrong with Garland, and the Republicans in the Senate, with minor exception, took no issue with the judge put forward. Continue reading →

Back in 2009, the criminal law blawgosphere was atwitter with posts about the duty of criminal defense lawyers. Back then, the question was about whether it was acceptable for lawyers to neglect, no less throw under the bus, criminal defendants when it offended their personal sense of morality because they were GUILTY!!! Good times.

But those good old days, the simple, bucolic times when children confused their feelz with their duty, are now behind us, as Mark Bennett learned when he engaged with a young lawyer, referred to only as “David*,” who sought to school Bennett on the finer points of a criminal defense lawyer’s duty.

After taking a breath, I realize that we all do our jobs on a very slippery slope. I personally try to navigate that slope a little bit more than most, as I do everything in my power to avoid taking on clients I can’t empathize with (I represent guilty people, but not if they’ve done something I find indefensible).

Up to this point, it reeks of the old-school heresy that the duty of a criminal defense lawyer is tempered by his personal feelz, his empathy. Old news. Continue reading →

After enduring the years of harassment, retaliation and vilification, otherwise known as college at Columbia University, Paul Nungesser sought to turn the tables on the abusive use of Title IX. What about him? What about the guy who was the target of Emma Sulkowicz, the infamous Mattress Girl, who took to the campus after her claims of rape were rejected?

Andrew Miltenberg’s first attempt to hold Columbia University accountable for its neglect of a male student, its complicity in Sulkowicz’ antics, its failure to stop her from bringing her mattress onstage at graduation, got shot down by SDNY Judge Gregory Woods.

The first decision was sound, but disappointing:

Disappointment in the outcome doesn’t stem from the court’s vindication of Mattress Girl’s actions, or Columbia’s complicity in them. Judge Woods had no kind words for either, and his ruling as to liability under a variety of ancillary state court claims was rather thin.

But what gives rise to disappointment is the manifest disconnect between how the Department of Education’s Office of Civil Rights, and the colleges that have applied its “guidance,” has abused Title IX for its own political agenda, where Nungesser was denied the ability to do the same.

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In the police report, it’s typical to see a description of the person who allegedly committed the crime in pathetically vague terms:

Male, 6′, 18-30, wearing jeans, dark hoodie.

That covers a lot of folks, some nice, one (at least) maybe not so much. Oh wait, there’s one additional piece included in every description: race. On the one hand, it serves the purpose of limiting the field of people who stand to be thrown against the wall or have guns pointed at their heads. On the other, it can be costly at the University of Minnesota.

The University of Minnesota has agreed to pay $65,000 to a former employee who claimed she was fired for speaking “candidly and passionately” against the racial profiling of African-Americans on campus.

Alysia Lajune, 41, was hired in March 2012 as assistant director of orientation and the transfer experience, according to a federal lawsuit she filed last May. Continue reading →

It’s a pretty big catch for a law firm, to represent Facebook, and what firm in today’s market wouldn’t be thrilled to nail the whale? But it comes with some curious strings attached.

Facebook is requiring that women and ethnic minorities account for at least 33 percent of law firm teams working on its matters.

Numbers alone, however, are not enough, under a policy that went in effect on Saturday. Law firms must also show that they “actively identify and create clear and measurable leadership opportunities for women and minorities” when they represent the company in litigation and other legal matters.

As with most social justice demands, it’s rather vague what is meant by “create clear and measurable leadership opportunities.” But then, while lawyers tend to use comprehensible language, we’re becoming increasingly alone and isolated. Either way, the one-third requirement is pretty clear. Continue reading →

They got their digs in: It’s mostly the Republicans’ fault for their treatment of Merrick Garland, even though the Dems’ hands are a little dirty as well. But still.

Now, however, partly as a result of its own actions, but more important as a result of increasing polarization in Washington and the nation as a whole, the court is devolving into a nakedly partisan tool.

But this nomination, despite the false vilification of Judge Neil Gorsuch, isn’t the hill to die on.

That leaves it to Democrats to consider whether the filibuster is worth saving. Whether legitimately outraged at Mr. McConnell’s treatment of the Garland nomination or opposed to Judge Gorsuch on the merits, if they lose the filibuster now — as they will — then it is not available to use against another Trump nominee, who may be objectionable not only to Democrats but to a few Republicans, as well.

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The best reaction to the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College was revealing.

Holy fucking shit… we won! #Hively

— Omar GP (@omargp) April 4, 2017

For all the cries about how the law already established that gender identity was included within the ambit of sex discrimination under Titles VII and IX, the hard fact was that no court has ever held it. This couldn’t have been made more clear than by the reaction to the Hively decision which held, for the first time ever, that sex discrimination included sexual orientation.

For the uninitiated, it means that discrimination against a person for being gay is sex discrimination, prohibited by the Civil Rights Act of 1964. It’s a fairly big step uphill from gender identity discrimination. and until now, no circuit court in the nation had reached such a holding. Now it has. Continue reading →

This began, if I understand correctly, with a bit of a rant on the twitters, when Cato’s Jonathan Blanks got a little miffed (miffed, as in irate) about conservative reactions to the demands that Dana Schutz’s painting of Emmett Till be destroyed. It was a jarring rant, but it made me think about what was meant by cultural appropriation. Thinking is always a good thing.

Apparently, Conor Friedersdorf was similarly intrigued, and he and Jonathan engaged in an email discussion, which ended up as a post at the Atlantic. Both Conor and Jonathan are smart, articulate and sincere guys, and both are likely far more attuned to issues that an old guy might not fully appreciate.

There is no way to provide you with the flavor of the discussion here. Please read it. But I will excerpt a piece of it to add some additional thoughts. From Jonathan’s part of the discussion:

But my white, right-of-center social media feeds are regularly choked with blithe dismissals of cultural appropriation, as if there is never cause for a reasonable person to be upset when aspects of a culture––or perceived aspects of a culture––are adopted, co-opted, bastardized, or lampooned by white Americans, collectively or individually.

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In my vivid imagination, the folks who write editorials at the New York Times wake up in the middle of the night, sweaty and afraid that someone will point out the hypocrisy in their teary-eyed editorials that defy reason and facts, screaming aloud “cognitive dissonance.” Then again, it’s not as if their readers know or care about the games they play. After all, much as they fancy themselves smart, snugly wrapped in the college degrees, they won’t put in the effort to think any harder than anyone else.

When New York’s pseudo-progressive governor, Andy Cuomo, met with the former radical sentenced to 75 years in prison for the 1981 Brinks heist, Judith Clark, she “touched his heart.” Aww. Who knew Andy even had a heart. The Times folks hugged and cried. Sad stories can do that to empathetic people.

Andy commuted Clark’s sentence, which is a perfectly wonderful thing to do. So why carp? First, because it was a sham commutation.

Her only hope of getting out during her lifetime was a grant of clemency from the governor, a power Mr. Cuomo had almost never exercised in nearly six years in office.

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There are few things that Vice President Mike Pence holds dear that I share, but then, so what? He’s allowed to have different values than I do. Or you do. Or anybody does. And that’s particularly true when it comes to how he conducts his personal affairs, no matter how weird they are to you. Why? Because you are no more entitled to dictate his beliefs than he is yours.

I know, how is that even possible? After all, your values are right and his are not only wrong, but bizarre and outrageous. Is he a perv or just sexist?

No one will be surprised to learn that Vice President Pence is not a loose, casual, fun-lovin’ guy. But many people were surprised to read this little tidbit in Ashley Parker’s recent Post profile of Pence’s wife, Karen:

“In 2002, Mike Pence told the Hill that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side, either.”

It’s easy to make jokes about, and it’s also easy to argue that this is nobody’s business but the Pences’. But there’s a deeply troubling worldview at work here, one that has profound implications for policy — and we’re already seeing it play out at both the state and federal levels.

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