With Kavanaugh set to be confirmed, despite the certainty that he, like the president who nominated him, will bring death and destruction upon us, wild stories began to emerge. This comes on top of the efforts of pundits like Linda Greenhouse deriding the legitimacy of the Supreme Court as a bunch of partisan hacks in reaction to rulings that fail to meet her progressive desires, and in anticipation of the impact of Justice Neil Gorsuch and soon-to-be justice Brett Kavanaugh.

The most curious attack, which has swiftly entered myth stage, is that these justices are illegitimate because they reflect “minority rule.” The primary contention is that Trump, having failed to “win” the popular vote, a fundamental contortion of our electoral system, is an illegitimate president, and that Kavanaugh, expected to be confirmed by senators representing a minority based upon their state’s population or vote totals, will thus be doubly illegitimate.

Why does it matter? Because the theory is that they reflect a radical conservative view that strays from the “mainstream of American political life.” This myth has already found its way into a New York Times op-ed. Continue reading →

The arguments have been made, and made again, repeating truths and falsehoods as necessary, and usually ending in the same place.

The core problem behind all of this is a complete breakdown in the legitimacy of our public institutions. The Supreme Court is no longer a place where justices dispassionately rule on the Constitution. It’s a place where they cast predictable party-line votes. Therefore, senators no longer deliberate on nominees. They cast predictable party-line votes. The members of the public no longer reason with one another. They fall into predictable party-line formation and then invent post-hoc, bad-faith rationalizations to give cover to their ideologically driven positions (Drank too much! Bad temperament! Bad yearbook entry!).

The sky has been falling for quite a while now, even if it’s never actually fallen, and so the unduly passionate are certain that Kavanaugh is a hill worth dying on. Spare me the arguments why he is, as they only go in circles and that’s not the point. Whether he’s terrible for a litany of reasons or wonderful for the same reasons, the warriors in this battle have included my tribe, criminal defense lawyers, and revealed the lie. Continue reading →

As a high school student, I got a job as a “warm body.” That was the job title, legit. It was at the Rutgers University Tandem Van de Graaf Accelerator, a nuclear reactor of sorts, the law required there be someone there to mind it at all times. I got the lobster shift. My job duties were threefold: be there. Stay awake. Keep the liquid nitrogen canisters full so it didn’t melt down.

It was a great job, really. if you’ve never played with liquid nitrogen, you should. For a dumb high school kid, it was great fun. The rest of my time was spent hitting a tennis ball against the nuclear pile, reading magazines and watching TV. They gave me a radiation badge to find out after the fact whether I would glow in the dark. And they paid me to do this.

California has a new law requiring corporate boards to fill their quota of women. Maybe they have binders. Maybe they’ll find them from the phone book. But the law will require women on the board, and so women they will find the requisite numbers and put them on the board. Their qualifications are less than what was expected of me in high school. They need only have the correct genitalia, unless merely identifying as a woman will do, in which case they won’t even need that. Continue reading →

When my daughter* was in college, she showed me a paper she wrote for a required course about the auras surrounding people she knew and what they meant. It was, in my humble fatherly view, the best thing she’d ever written. We laughed and laughed about it, because it was brilliant and complete, utter bullshit. She knew it, but fed back to her prof the nonsense the prof wanted to hear.

The online magazine Quillete, derided as the intellectual dark web’s favorite heresy broker, broke a story about a scam perpetrated by some disaffected scholars who decided to validate the experiment first performed by NYU physics prof Alan Sokal.

Twenty years ago, Alan Sokal called postmodernism “fashionable nonsense.” Today, postmodernism isn’t a fashion—it’s our culture. A large proportion of the students at elite universities are now inducted into this cult of hate, ignorance, and pseudo-philosophy. Postmodernism is the unquestioned dogma of the literary intellectual class and the art establishment. It has taken over most of the humanities and some of the social sciences, and is even making inroads in STEM fields. It threatens to melt all of our intellectual traditions into the same oozing mush of political slogans and empty verbiage.

Continue reading →

There’s been much written about the Fifth Circuit’s en banc ruling in Alvarez v. Brownsville, condemning the holding that there is no right to be provided Brady material before taking a plea. The usual suspects raise the usual reasons.

How can that be? After all, plea bargaining is not some ancillary feature to the criminal-justice system. In many ways, it is the modern criminal-justice system. More than 95 percent of criminal cases are resolved through plea agreements in the state and federal systems. Jury trials, for all their ubiquity in American films and television shows, are now the exception instead of the rule. The result is a bureaucratized method of dispensing punishment, one that sometimes evades key protections for Americans’ constitutional rights.

The answer to the “how can that be” question is long and complex, and requires one to say things one’s not supposed to say. Or there’s the mythical version, for those who refuse to hear the things one’s not supposed to say. Continue reading →

As a tactical matter, it was smart of Liz Georges to begin by explaining why she wasn’t some graduate of the Twitter School of Law, but a person with credentials, worthy of credit.

The year after I graduated from one of the top law schools in the country I went to clerk for a Federal District Court Judge. I tell you this up front because I want you to understand that what I am about to tell you is not an uninformed statement.

But this is the only smart thing she did, and despite her somewhat vague establishment of credibility, what follows makes clear that whatever cred she might otherwise have enjoyed has been squandered on a pocketful of mumbles, such are promises. Continue reading →

It was a senior, Jacqueline L. Kellogg, who came up with the scheme, and what a scheme it was. The students had already been protesting over the confirmation hearing and demanded that Harvard toss its formerly beloved adjunct. But what could they do to more affirmatively go after the nemesis, their devil of the moment? Kellogg came up with the solution:

Jacqueline L. Kellogg ’19 — who said she has filed a complaint against Kavanaugh with the University’s Office for Dispute Resolution — came up with the idea several days ago. She began urging fellow students to follow suit over the weekend, at one point sending an email to a group of students at the College and the Law School that offered specific instructions on how to bring a formal complaint to ODR.

A formal complaint? Was there a formal complaint for being hated because he was . . . hated? Continue reading →

Much as I’m disinclined to frame anything in emotional terms, the fact is that it’s frustrating to see so many curious issues and questions and be unable to engage in a rational discussion about them without some deeply passionate partisan seizing the opportunity to make it all about Kavanaugh.

But it is, you say? Allow me to explain.

One of the most critical skills a lawyer possesses is to distinguish the issue from the case. To the unwashed, every issue that relates to the spectacle that’s absorbed so many of us is about whom you favor. You can’t separate the two. What possible reason is there in considering the question of what “boof” means if not to condemn Kavanaugh for lying about it?

Me: What does “boof” mean? I never heard the word before.

You: It means Kavanaugh is a lying sack of shit who deserves to die in a puddle of his own boof!!! 

Too easy? Try this. Continue reading →

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

Mesquite, Texas,[1] officer Derick Wiley was dispatched to a suspicious person call at just before 7:00 PM on November 8, 2017. It was already dark at that time of year, and it had been raining. Lyndo Jones had stopped his truck in a parking lot to smoke marijuana and take some cocaine. Within minutes, Jones, who was unarmed, was shot by Wiley.

The caller had stated that he thought the truck was being broken into, and officer Wiley was dispatched. While enroute, Wiley disregarded his cover unit, so that he would be the only officer responding. When Wiley arrived, the truck’s alarm was going off and Jones was sitting inside the truck. So Wiley drew his sidearm and ordered Jones out of the truck and onto the ground. Jones, who was not wearing a shirt, did so, and from the body camera, there was no indication that he was armed. Continue reading →

It wasn’t that the Supreme Court felt “God Hates Fags” was valuable speech, or that they were good with “Crush Videos.” Suffering bad speech is the price we pay for free speech, and the Court recognized that trying to micromanage speech beyond the established categorical exceptions was a dangerous game. The Texas 12th District Court of Appeals acknowledged this when it held Texas’ revenge porn law unconstitutional.

Realizing that it was impossible to survive a straightforward application of strict scrutiny, the State of Texas took a remarkably different path on appeal. What makes this all the more remarkable is that Texas conceded at oral argument that its law was subject to strict scrutiny. Then again, it had no reasonable choice, it being a content-based law that prohibited speech.

On appeal, however, it’s as if none of this happened, none of this matters anymore. They’ve got a totally new scheme. Continue reading →