In advance of the election, Rick Hasen wrote an op-ed for the New York Daily News, which means you probably weren’t among the twelve who read it.

“We need nine,” the refrain goes. But it’s the balance of power on the Supreme Court and not the number of justices that matters. The fate of many of our most cherished rights hangs in the balance of not just the presidential race, but control of the Senate.

Neither the presidency nor the Senate went the way Hasen wanted.

A conservative Supreme Court is more likely to protect broad gun rights, take a narrow view of federal power against the states, and the rights of businesses over workers and consumers.

That’s why I’ve called control of the Supreme Court the most urgent civil rights issue of our time.

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Donald J. Trump will be the next president of the United States of America. The constant media ridicule, which continues as the newspaper of record in its post-mortem tries to explain it in social justice terms, reveals only the failure of its own vision.

There has been a growing disconnect over the past decade between the elites and the people. The people want jobs. The elites want genderless bathrooms. The people want security. The elites want rights. The elites thought that electing a woman, any woman, president was more important than retaining the traditions they were raised on. The people have spoken. As Mike Cernovich twitted,

Power to the people.

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If her pitch was for the appointment of a judge based upon the experience of a 100 trials at an attorney, she would be the sort of candidate that most lawyers could strongly support. But that’s not the pitch, and the trial experience is deliberately rendered secondary to a pitch that reflects what should preclude a person from ever sitting in judgment of another person.

The pitch comes from Minnesota transgender lawyer Ellie Krug.

I recently presented to a group of judicial professionals in a Midwestern state on “Gray Area Thinking,”™ a toolset on how to successfully interact with humans who are “different” from “us.” The nearly 160 older, predominately white male, audience members constituted the front line criminal justice professionals for that state. Their lack of diversity underscores a frequent and fundamental question: how do we collectively get to a more diverse and inclusive judiciary?

As a generic concept, it’s hard to disagree with the bench should be more diverse and inclusive. But that’s where Krug goes down the rabbit hole. Continue reading →

Election day, to the extent it hasn’t been election month since the notion of election day seems almost archaic, is upon us. Don’t ask who I’m voting for. I won’t tell and there’s no reason in the world why you should care. Half the guys at Volokh Conspiracy have given their votes, some even explaining their choice of the least despicable candidate. Like them, I too vote for the second worst candidate. Who that is, to me, shouldn’t matter to you.

What does matter is that watching the campaign from the seat of disgust enables me to see the choices uncolored by belief. What I see are two sides that look remarkably similar in many ways, combined with their denial that they’re anything like the other side. I see hypocrisy and lies, ignorance and self-dealing, all wrapped in a bow of utter bullshit. What I see is the inability of people who pretend to be smart enough to pick a president incapable of understanding why anyone would pick the other person.

That is worse than the choice itself, that people cannot fathom how anyone can see virtue, or not see outrage, in any choice but their own. More than anything else, this characterizes what America has become. And whether we can be bigger than this, overcome this, is the question to be presented tomorrow.

The Clinton supporters call Trump supporters haters. Indeed, the New York Times, ever blind to any thought but their own self-righteousness, leads off its conciliatory editorial with this gem: Continue reading →

Jeff Gamso is a man of great restraint. That’s what prevented him from throwing the book into the fire after reading the first line.

I knew Alfred Dewayne Brown was stone-cold innocent the moment I met him.

Dramatic. Moving. Deeply passionate. Utterly idiotic. It’s the equivalent of the moron who claims, “I knew he was guilty the moment I met him,” as if some gut reaction proves anything. It doesn’t, not that such vapid reactions aren’t embraced by the terminally insipid.

Like Jeff, I get a stream of offers from publishers to review books about the wrongfully convicted. Unlike Jeff, I delete them. I can’t bear to read another self-aggrandizing book by a lawyer who seeks validation. I can’t bear to read another book about the failure of the system, the ordinary malevolence of prosecutors and judges who allowed, if not caused, it to happen. I thank Jeffrey for doing it for me, for sparing me the pain. Continue reading →

He’s a character in a beloved series, but that doesn’t mean Spock’s quote has nothing worthwhile to offer:

The needs of the many outweigh the needs of the few.

If you’re a fan of Herzberg’s motivator-hygiene theory, you’ll more readily see where this is heading. There is a difference between the deprivation of rights to which everyone is entitled, under the constitutional guarantees of due process and equal protection, and the demand for special treatment, perhaps best reflected in Orwell’s Animal Farm, that “all animals are equal, but some animals are more equal than others.”

A bastardization of Herzberg’s theory is that there are deprivations that take a person below the standard to which everyone is entitled. An example (and just an example, nothing more) would be a law that denied a black person the right to vote based on race, whether directly or through proxies. That would be an unconstitutional deprivation. But once that deprivation is removed, it becomes a neutral factor. The black person gets to vote like everybody else, but he’s not assured his candidate will win. He’s just one of the many people who vote. Continue reading →

The great female philospher, Lena Dunhan, twitted her cute explanation that this election wasn’t about the extinction of white man, but “the evolution of men into better men.” She didn’t quite explain what she meant by “better men,” as this was twitter, but Jill Filipovic provided a detailed explanation in the paper of record.

What this campaign has shown us is that while feminism has transformed American culture, our politics and the lives of women, men haven’t evolved nearly as rapidly. Women changed. Too many men didn’t. What happens next?

Filipovic provides the details of feminist evolution, the virtues that are about to culminate in the crowning achievement of an election, the ones that white males have refused to accept.

For women, feminism is both remarkably successful and a work in progress: We are in the work force in record numbers, but rarely ascend to the highest ranks. Sexual violence is taken more seriously than ever, but women still experience it, usually from men they know, at astounding rates. Women are more visible in public life and create more of the media and art Americans consume, but we still make up just 19 percent of Congress and 33 percent of speaking roles in the 100 top-grossing films.

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The result is that Drew Faust, president of Harvard, ended the soccer season for the first place boys’ team. How “horrible” this punishment is is a fair question. It’s just a Division 1 sport, and its players lost the honor of taking the Ivy League championship and a cool ring.*

Sure, for those boys who came to play soccer, as well as get a Harvard diploma, it will be a painful lesson, but it’s not as if they were expelled and branded as sexists in perpetuity, as could just as easily have happened.

But it was a chance for Faust to teach a lesson, which is sort of what one would hope would happen at Harvard, in a school bound up in its own peculiar issues of addressing sexism by eradicating all tradition in contravention of almost everybody’s desires. The students didn’t go to Harvard on a lark. They worked hard to get there, and want the gloss of a Harvard education to pay their freight for the rest of their natural lives.

But when the Crimson learned that in 2012, the boys soccer team “rated” the girls soccer team, the adjectives flew. Continue reading →

St. Louis Police Chief Sam Dotson has a blog. Pretty cool, right? Well, not so much for 18-year-old Armond Calvin, who was acquitted after trial.

Armond Calvin, 18, was charged with unlawful use of a weapon and resisting arrest in February. He was brought back to court for violating the terms of his bail, and sent home with an ankle bracelet to await trial.

On May 22, Dotson said, Calvin was riding in a car involved in a fatal accident. Two stolen assault rifles and a .45-caliber pistol with a defaced serial number were found in the car. Calvin was charged with possession of the defaced weapon.

Sounds pretty damning. But as it turns out, the story was malarkey. Continue reading →

It came on my radar via my “black friend”* Elie Mystal.

Don’t wear blackface. Ever. IT IS NEVER OKAY. Why is it so hard for people to follow this simple rule? Who are these intellectual moths who find themselves drawn to the flame of wearing blackface?

The initial reports were bizarre. Given the way of life on campus, the idea that a law professor would consider that wearing blackface wasn’t going to create a shitstorm of monumental proportions was incomprehensible. Why would anybody even consider it?

Let’s say you wear it and you get away with it. Let’s say that it doesn’t offend people and it doesn’t end up on the internet and it doesn’t put your career at risk. WHAT HAVE YOU WON? Is there a secret billionaire who runs around giving out PRIZES to white people who wear blackface? WHAT POSSIBLE UPSIDE IS THERE IN THIS? What creatively bankrupt costume are you wearing where you need the blackface to really pull it off?

As it turned out, there was method to the madness. Continue reading →