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 →

The Sixth Circuit’s decision in Doe v. Baum will be hailed as a watershed decision for the accused in Title IX proceedings, and with some reason.

Earlier this month, a three-judge panel at the court handed a major victory to those who have claimed U-M’s process has been slanted toward the accuser in these investigations. The court said U-M violated the due process rights of a student by not offering him the opportunity for direct questioning of the person accusing him of sexual assault. The ruling was seen, by both victim-rights groups and those advocating for those accused, as a landmark decision.

U-M said in a court filing last week that mandating that universities allow direct cross-examination in a live hearing could lead to all sorts of problems.

The ruling raises a host of issues, from the mandate that a live hearing be provided, to the accuser being physically present and compelled to present her own testimony rather than the conclusory testimony as provided by a third-party investigator on her behalf, to the accused being provided the opportunity to confront his accuser and cross-examine her.  Continue reading →

The FBI has its strengths, one of which is to spot a crack and exploit it. Jim Comey, whose personal brand has fabulously ping-ponged from being the most hated person to the left when he was blamed for Clinton losing to Trump, and then adored after being fired by Trump, seized the opportunity to accomplish two goals. Re-establish his bona fides as patriot and virtuous head of the FBI, and stand up and out as a public darling.

The rawness of emotion from that slice of anti-Kavanaugh activists rivals the anti-war movement of the ’60s or the post-9/11 fear and loathing of terrorists. As invariably happens, the depth of passion rises in inverse proportion to the ability to think critically. It was a crack, and Comey leaped in to exploit it on behalf of his FBI.

We live in a world where the president routinely attacks the F.B.I. because he fears its work. He calls for his enemies to be prosecuted and his friends freed. We also live in a world where a sitting federal judge channels the president by shouting attacks at the Senate committee considering his nomination and demanding to know if a respected senator has ever passed out from drinking. We live in a world where the president is an accused serial abuser of women, who was caught on tape bragging about his ability to assault women and now likens the accusations against his nominee to the many “false” accusations against him.

Continue reading →

Imagine waking up one morning to learn that you’ve been named as the “other woman,” the only other woman to have been at a party 36 years ago where someone alleges she was sexually assaulted. Like Mark Judge, Leland Ingham Keyser didn’t ask to have her name on the front page.

“Ms. Keyser does not refute Dr. Ford’s account, and she has already told the press that she believes Dr. Ford’s account,” Keyser’s attorney, Howard Walsh, wrote in the letter, which was sent to the committee overnight Friday. “However, the simple and unchangeable truth is that she is unable to corroborate it because she has no recollection of the incident in question.”

The statement is curiously crafted to thread the needle of not being adversarial to the Ford accusation, while being unable to corroborate it. She doesn’t remember. She’s not saying it didn’t happen, and by asserting that “she believes” Ford’s account, she avoids the wrath of the unduly passionate even if it’s empty. Continue reading →

Imagine if you’re some random guy who was friends with someone who, decades later, became a nominee for the Supreme Court and ended up in the middle of the gender war vortex. You did things back then that were unseemly and wrote a book about it, admitting that you were a drunk, that you engaged in conduct which, in retrospect, you regret. Not that anyone cared much about you. Until you ended up on the front page.

If you were Mark Judge, would you want to be in the middle of this storm? There’s no upside for Judge. If he came out smelling like a rose, he wouldn’t win any prize. He’s not being nominated for anything. He’s not going to get a talk show out of it, or be asked to give inspirational speeches to groups of kvelling women.

His position is that he has nothing to offer in support of Christine Blasey Ford’s accusations against him and Brett Kavanaugh. He’s not saying he remembers, and it never happened, although words to that effect appear to have been uttered. Continue reading →

Apparently, I’m not the only one who cringes whenever someone on the right attacks a position taken by those damned lefty “liberals.” They’re progressives, not liberals.

It is nearly beyond dispute that the Civil Rights Movement, second-wave liberal feminism, and Gay Pride were liberal projects, both in the broad philosophical sense and in the narrower meaning that arises within contemporary politics. Nevertheless, it is common for those of us who consider ourselves liberal in either sense, or both, to be told we must disapprove of these great liberal successes. This occurs when we criticize identity politics.

Identity politics, social justice, whatever the least pejorative phrase is at the moment, is the antithesis of liberalism. Perhaps a test is in order. Continue reading →

Had she been male, this would likely have ended badly. Instead, it leads a New York Times editorial as a watershed moment in female heroism.

Look at me when I’m talking to you! You’re telling me that my assault doesn’t matter. That what happened to me doesn’t matter!

These were the words of Maria Gallagher to Senator Jeff Flake. Whether this was a fortuitous meeting or she stalked him is unclear, but either way, she found him in a Senate elevator and opened fire. Continue reading →

I can still remember snippets of watching Anita Hill and Clarence Thomas testify 27 years ago. At the time, Hill’s stoicism under fire was impressive. She didn’t devolve into a puddle of tears, but held her own under fire. Thomas’ scorched-earth response, “a high-tech lynching,” was his only way out. The rest is history.

The reopened hearing for Brett Kavanaugh, on the other hand, happened at a different time in history, a time when a confluence of influence created the worst possible moment to discern the hearing’s putative goal, to determine whether Kavanaugh, as a teen, sexually assaulted Christine Blasey Ford. Not only was Kavanaugh feared as the justice who was hated as he would “cause women to die,” a nominee of a president who was “literally Hitler,” but at the junction of #MeToo and a national need for emotional catharsis.

The hearing was a botch, as anyone who wasn’t married to the mob knew it would be. The “scary sex prosecutor” questioning Ford was a dud, scoring no points and floundering through the examination with no discernible purpose. In fairness, the mechanics of five minutes of question, following by a Democratic senator giving a speech about beatification, wasn’t conducive to meaningful questioning, but it was still Rachel Mitchell’s job to find a way to make it happen. She didn’t. Continue reading →