Having watched most of the Brett Kavanaugh confirmation hearings, I deserve a medal. It was a passion play of epic nonsense, designed not to serve any useful constitutional function of “advise and consent,” but to inflame an audience ripe for fury. The Republicans played to their team. The Democrats played to their team. Nobody played to America. Nobody seems to remember that there’s an America out there that still believes there will be a nation after the current ship of fools runs aground.

Watching it with the eyes of a lawyer, knowing that this was a vote on the Supremes that would decide cases that would impact real people’s lives, was infuriating, not because Kavanaugh was the dreaded fifth conservative vote on the Court, but because it revealed so precious little about Kavanaugh. Continue reading →

Ed. Note: This is a guest post by Charles Landrum, who practices trademark and copyright law in Roswell, Georgia.

A headline caught my eye: “Brett Kavanaugh respects precedent about as much as I respect Brett Kavanaugh.” ¹

Good ol’ precedent. Bronze the ones you like, burn the ones you don’t. How often the passionate forget that Plessy was precedent. Until it wasn’t. Buck v. Bell still is. I clicked, expecting a typical confirmation-hearing article about how this nominee isn’t respecting those precedents that the author likes. What precedent had Judge Kavanaugh disrespected, out of his 300 opinions during his time on the D.C. Circuit? Was it so bad that, after granting cert, one of the nine benchslapped him from across town?

No. Not even close. Continue reading →

The New York Times did something that almost never happens: it published an anonymous op-ed.

I Am Part of the Resistance Inside the Trump Administration

I work for the president but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations.

The op-ed goes on to do make two primary points, the first being that Trump is singularly unqualified to be president, by knowledge, experience, temperament and, perhaps, capacity. The second is that there are people within the White House who are interfering with the president’s performance of his office because they have decided they know better. Continue reading →

It may be Wednesday, but that doesn’t mean we can’t pretend otherwise, which has become something of a national pastime. As noted previously, there is a national prison strike happening, although no one who doesn’t focus on criminal law or prisoners’ rights would be aware of it. That’s unfortunate, as the striking prisoners have real issues and are taking significant risks with their welfare to do something about it.

One of the primary issues at stake is prison “slavery,” that prisoners are forced to work without wages, or for inadequate wages. The Thirteenth Amendment, which outlawed slavery in general, carved out an exception for people convicted of crimes. While slavery remains constitutionally permissible in prison, that doesn’t mean it’s either right or should be exploited. We don’t have to make prisoners slaves. Should we?

At the Washington Post, David Fathi of the ACLU’s National Prison Project, argues for why prisoners should be paid a reasonable wage for their work. Continue reading →

Having barely gotten through Eric Goldman’s post about the Vermont Supreme Court’s decision holding the state’s revenge porn statute constitutional, a horrible image popped into my head.

It was Mark Bennett, having put enormous time and effort into thinking about, arguing, fighting revenge porn laws in Texas and Georgia, only to learn that whoever argued the case before the Vermont Supreme Court blew it. Why didn’t they reach out to him, the guy who won Ex parte Jones.

But the lawyer from the state Office of the Defender General decided to go it on her own. And she lost. Now, Bennett is applying for admission to the Curmudgeon’s Club. Continue reading →

As it turned out, she didn’t have the $9,000 needed to pay. She was on her way to pay two “contractors,” which apparently means drivers working for her trucking company, M & C Gonzalez Trucking, but didn’t have the funds to pay. What’s a woman to do?

[Maria Gonzalez] told Fresno police detectives she’d been driving east at Floradora Avenue and 8th Street when she stopped for two dogs in the roadway, Dyer said.

She claimed two African American males wearing masks, one armed with a handgun, then got into her back seat and ordered her to drive. Gonzalez said she continued to drive for two hours in the Fresno area when she was asked to pull over. She said one of the males got into the driver’s seat and drove, and she was placed into the back seat.

Gonzalez said she then woke up alone in the back seat of the vehicle, with her hands tied behind her back, and gagged with a rag. She’d also said there was a bump on the side of her head from being struck or beaten, and claimed $9,000 was missing from her purse.

Continue reading →

As SJ has been around for more than a few Labor Days, I’ve largely played out as much as I’ve had to say about organized labor. But recently, I’ve twitted a bit about public sector unionism being a travesty. I have no burning desire to engage in a twitfight with people whose grasp of unions is limited to “solidarity, yah!”

To discuss any subject requires some small depth of knowledge about it. The platitudinous crowd knows what it feels, and needs to know nothing more, making any engagement neither fun nor useful. Workers deserve to be paid a “decent” wage? Sure, but that doesn’t address anything of value. What’s a “decent” wage? Who pays it? Don’t the people who pay it deserve to be paid a “decent” wage too, especially if the money taken from them to pay public employees leaves them impoverished?

And then there’s the entire concept of public sector unionism that’s fundamentally and irreconcilably flawed, not to mention the ability of public employees to influence their paymasters by both their vote and their union bribes. But I digress. Continue reading →

The nomination of Brett Kavanaugh to the Supreme Court doesn’t spell the death of Roe v. Wade (or, to be more pedantic, Planned Parenthood v. Casey) on the First Monday in October, no matter how many times headlines scream it does. Contrary to Linda Greenhouse’s efforts to provoke outrage by turning the Court into a cesspool of blind partisanship, it is an institution that perceives its legitimacy as being based on its preservation of legal stability. Maybe too much, even.

But few of the deeply passionate are aware that the highly political and exceptionally poorly reasoned Roe decision was a criminal case. At the time, performing an abortion was a crime, and there were then, as now, a variety of laws surrounding abortion that were criminal as well. After all, if it was a crime, you could leave open tons of loopholes that would allow people to circumvent the main crime by engaging in conduct that reflected the same moral culpability but skirted the elements.

Then came Roe, and everything changed. Except as my old college classmate at Cornell, Lynn Paltrow, explains, not only didn’t every thing change, but an awful lot remained exactly the same even if the Supreme Court’s ruling vitiated the consequences. Continue reading →

Aparna Nancherla is a comedian. I know this because it says so, which is helpful because, had it not said so, I wouldn’t have known until I reached this part of her op-ed.

Before I stopped reading replies to my tweet, four garden-variety Horsedudes of the Bropocalypse had galloped on through with responses of this variety:

Apology: “What he did wasn’t even that bad.”

Victim-Blaming: “Why didn’t they just leave the room?” (Subtext: maybe these women should leave the planet.)

Hate: “If those women were actually funny, they wouldn’t be trying to get attention this way.”

Self-Loathing (via Fellow Women): “If you can’t stand the culture, get out of the yogurt!”

Continue reading →

California has been on quite a tear lately, legislating a wealth of laws for the purpose of signaling that it’s doing something about the #MeToo nest of vipers in its most woke and progressive communities. Let’s face it, there’s some cause for embarrassment to learn that the strongest supporters of social justice all prayed at Harvey Weinstein’s shower. So they’ve been busy, leading the legislative way, which its advocates gave the hashtag #takethelead bills.

SB1300, in the words of the ironically-named advocacy group, Equal Rights Advocates, “fighting for women’s equality,” was a nail-biter.

SB 1300 closes loopholes in California’s current sexual harassment laws, proposing several important reforms:

• Provides guidance to California courts on the “severe or pervasive” legal standard for sexual harassment claims, to ensure the standard is consistently and fairly applied to better protect victims. This clarification addresses the “one free grope” standard that was confirmed by the 9th Circuit federal court in 2000.

Continue reading →