Bret Stephens, the closest thing the New York Times can manage to swallow as its conservative columnist, is trying to fix up Matt Damon on a blind date with Gertrude.

Kirsten Gillibrand agrees: “I think when we start having to talk about the differences between sexual assault and sexual harassment and unwanted groping, you are having the wrong conversation,” the Democratic senator from New York said at a news conference when asked about calling on Senator Al Franken to resign. “You need to draw a line in the sand and say none of it is O.K. None of it is acceptable.”

Of course none of it is O.K. The supposedly petty sexual harassment that so many women have to endure, from Hollywood studios to the factory floor at Ford, is a national outrage that needs to end. Period.

As everyone knows, when you say “period” at the end of the sentence, it’s a done deal. Except it’s not, even if the conservative guy wants to pretend that “none of it is O.K.” The claim is hidden behind phrases like “petty sexual harassment,” which tells us nothing. It’s being screamed everywhere by women, for whom every interaction holds potential for unpleasantness, but it is meaningless verbiage.  Continue reading →

Busting the myth that’s often said, but rarely observed, Judge Richard Kopf pulled back the curtain.

Is sentencing truly “the most difficult task of a trial court judge”? With sincere respect for the great judges who have said such things, that sentiment is pure pabulum.

In terms of legal and factual difficulty, sentencing is normally relatively easy. That becomes truer as a sentencing judge gains experience. And here, I am not talking about becoming jaded, although that is always a risk.

Before 1989, when the Supreme Court held, in contrast to every other federal judge, in Mistretta that the United States Sentencing Guidelines were constitutional, sentences were argued on a sui generis basis. Judges had discretion. Lawyers had the chance to sway them, with whatever presented itself in the case, the defendant’s history, the world. And it was left to the judge to do his job. Continue reading →

I wish to spend a little of your time answering the foregoing question. My answer may make you sad. It might also enrage you. I hope it doesn’t bore you.

A recent case out of the Second Circuit, featured in Doug Berman’s wonderful blog, is a good place to begin. In United States v. Singh (2d Cir. Dec. 12, 2017), the defendant pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony. His Guidelines range was 15 to 21 months’ imprisonment, and both the government and the probation office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months—nearly three times the top of the Guidelines range.

The Second Circuit vacated the defendant’s sentence. Particularly in the context of the Sentencing Commission’s statistics on sentences for illegal-reentry cases, the court was not persuaded that the justification offered by Judge Forrest (who took Judge Rakoff’s seat when he assumed senior status) was sufficient to support the magnitude of the variance. Continue reading →

No, he didn’t rape anyone. He didn’t even grope anyone, as far as I can tell. His involvement with Sarah Silverman was entirely consensual, at least as far as she was concerned. Jimmy Kimmel? Who cares. He’s privileged. And he is a true believer in doing good for others.

Damon offered some advice to MIT’s 2016 graduating class: “The world wants to hear your ideas — good and bad. But today’s not the day you switch from ‘receive’ to ‘transmit.’ Once you do that, your education is over. And your education should never be over. Even outside your work, there are ways to keep challenging yourself. … Whatever you do, just keep listening. Even to people you don’t agree with at all.”

As the graduates go out to tackle the world’s problems, he said, “There are potentially trillions of human beings who will someday exist whose fate, in large part, depends on the choices you make … on your ideas … on your grit and persistence and willingness to engage.”

He seemed nice. He’s clearly dedicated to the welfare of others. So what could he do that’s so horrifying that he would be burned at the stake? Continue reading →

In telling her story of serving as Kozinski’s clerk, one of the wishes of Heidi Bond was that judicial law clerks were informed that they didn’t have to remain silent about impropriety within chambers.

2. I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

For the unwashed, the young lawyers who are hired as law clerks are the “best and brightest,” with top grades, law review, Order of the Coif, and whatever other awards law schools have to dole out. And not just any law schools, but the best law schools. The most selective. The most revered. While they may lack wisdom, no one can say they aren’t smart. Continue reading →

It is true, I have never investigated and prosecuted the President of the United States. Until recently, a special prosecutor, or formerly, the independent counsel, was usually a once-a-term appointment and far more often focused on those around the President.

No one in Washington D.C. is interested in a former public defender turned prosecutor leading a federal investigation into political elites, especially without the blessing of an Ivy League education. But the Law School of Twitter Punditry, combined with clueless legal punditry, has shamelessly indulged the progressive fantasy that the presidency of Mike Pence will start any day. Let’s take a trip through reality and examine some of the issues.

The major threshold issue is that the President has the power to pardon federal crimes, and this power is unreviewable. No doubt that Mueller and his team have considered this fact in their approach to the investigation. Indeed, some reports suggested that the federal prosecutors would attempt to get state prosecutors on board to circumscribe the scope of the President’s power. And it does appear that he has backstopped his investigation with state investigations. But let’s also be real, no federal law enforcement agent or prosecutor gets out of bed hoping to tee up a state charge. Continue reading →

Denver lawprof Nancy Leong was invited to be a panelist at the 10th Circuit Bench and Bar Conference to talk about Qualified Immunity, an extremely important criminal law and civil rights issue about which she’s written. She accepted the offer months ago, without knowing who else would be on the panel. There is nothing unusual about this.

Last Friday, she learned the identities of her fellow panelists.

Last Friday I got an email from Magistrate Judge Suzanne Mitchell. I noticed that the other three people on the panel appeared to be white men from two states: David Lee (Oklahoma City), Louis Bullock (Tulsa), and Toby Crouse (Kansas). (Links added.)

Continue reading →

The role of senator is very different than judge, and the demands of propriety don’t quite align. It would therefore be unfair to try to make a comparison between the situations of Ninth Circuit Judge Alex Kozinski and Minnesota Senator Al Franken. Yet, at a time devoid of nuance, there are similarities worthy of note.

Calls for Franken to resign, and Franken’s announcement that he would resign, eventually, sufficiently soothed the mob that they could turn their pitchforks elsewhere. Now that a little time has passed, and Franken-fever has fallen below the boiling point, the stentorian calls for human sacrifice are beginning to soften.

Sen. Joe Manchin (D-W.Va.), who urged Franken not to step down to begin with — at least not before he went through an Ethics Committee investigation — said the Minnesota senator was railroaded by fellow Democrats.

“The most hypocritical thing I’ve ever seen done to a human being — and then have enough guts to sit on the floor, watch him give his speech and go over and hug him? That’s hypocrisy at the highest level I’ve ever seen in my life. Made me sick,” Manchin said.

Continue reading →

Ninth Circuit judge Alex Kozinski called it quits.

I cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary. And so I am making the decision to retire, effective immediately.

And indeed, this was true, both from the perspective of his inability to be effective as a judge with an inquiry pending and, given the allegations made against him, the taint regardless of the outcome of the inquiry.

And the mindless morons on the ground went nuts. A sexmonster!!! Continue reading →

We all make choices. Some are hard, involve work, effort and occasionally the spreading of vinegar. But what sort of nutjob would try to elevate their decision to take the easy path into an excuse? You had to ask.

For years, my female friends and I have spoken, with knowing nods, about a sexual interaction we call “the place of no return.” It is a kind of sexual nuance that most women instinctively understand: the situation you thought you wanted, or maybe you actually never wanted, but somehow here you are and it’s happening and you desperately want out, but you know that at this point exiting the situation would be more difficult than simply lying there and waiting for it to be over. In other words: saying yes when we really mean no.

It never ceases to amaze me, old man that I am, to learn of the intuitive skillz of women to understand things that men just don’t get. Most guys would believe that “yes means yes” means yes. After all, she said “yes.” But now I learn that “saying yes” really means “no.”  Continue reading →