Let us stipulate that lawyers, judges, law professors and legal pundits are not real people and many are not good either. By “good” and “real,” I mean the salt of the earth types that comprise the vast majority of the American public.

With the foregoing agreed, I next address a question Scott put to me recently:

What impact does the partisan handling of Judge Neil Gorsuch have on the federal judiciary?

The answer is as plain as the very large nose on my very old face. That is, the partisan handling of Judge Neil Gorsuch has made good and real people stupid and that, as a consequence, has irreparably harmed the federal judiciary. There are two aspects to this post.

The Confirmation Hearings

The confirmation hearings were a complete embarrassment.  With two non-lawyers running the show (Senator Grassley and Senator Feinstein), political theatre was the order of the day. Continue reading →

This began, if I understand correctly, with a bit of a rant on the twitters, when Cato’s Jonathan Blanks got a little miffed (miffed, as in irate) about conservative reactions to the demands that Dana Schutz’s painting of Emmett Till be destroyed. It was a jarring rant, but it made me think about what was meant by cultural appropriation. Thinking is always a good thing.

Apparently, Conor Friedersdorf was similarly intrigued, and he and Jonathan engaged in an email discussion, which ended up as a post at the Atlantic. Both Conor and Jonathan are smart, articulate and sincere guys, and both are likely far more attuned to issues that an old guy might not fully appreciate.

There is no way to provide you with the flavor of the discussion here. Please read it. But I will excerpt a piece of it to add some additional thoughts. From Jonathan’s part of the discussion:

But my white, right-of-center social media feeds are regularly choked with blithe dismissals of cultural appropriation, as if there is never cause for a reasonable person to be upset when aspects of a culture––or perceived aspects of a culture––are adopted, co-opted, bastardized, or lampooned by white Americans, collectively or individually.

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In my vivid imagination, the folks who write editorials at the New York Times wake up in the middle of the night, sweaty and afraid that someone will point out the hypocrisy in their teary-eyed editorials that defy reason and facts, screaming aloud “cognitive dissonance.” Then again, it’s not as if their readers know or care about the games they play. After all, much as they fancy themselves smart, snugly wrapped in the college degrees, they won’t put in the effort to think any harder than anyone else.

When New York’s pseudo-progressive governor, Andy Cuomo, met with the former radical sentenced to 75 years in prison for the 1981 Brinks heist, Judith Clark, she “touched his heart.” Aww. Who knew Andy even had a heart. The Times folks hugged and cried. Sad stories can do that to empathetic people.

Andy commuted Clark’s sentence, which is a perfectly wonderful thing to do. So why carp? First, because it was a sham commutation.

Her only hope of getting out during her lifetime was a grant of clemency from the governor, a power Mr. Cuomo had almost never exercised in nearly six years in office.

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There are few things that Vice President Mike Pence holds dear that I share, but then, so what? He’s allowed to have different values than I do. Or you do. Or anybody does. And that’s particularly true when it comes to how he conducts his personal affairs, no matter how weird they are to you. Why? Because you are no more entitled to dictate his beliefs than he is yours.

I know, how is that even possible? After all, your values are right and his are not only wrong, but bizarre and outrageous. Is he a perv or just sexist?

No one will be surprised to learn that Vice President Pence is not a loose, casual, fun-lovin’ guy. But many people were surprised to read this little tidbit in Ashley Parker’s recent Post profile of Pence’s wife, Karen:

“In 2002, Mike Pence told the Hill that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side, either.”

It’s easy to make jokes about, and it’s also easy to argue that this is nobody’s business but the Pences’. But there’s a deeply troubling worldview at work here, one that has profound implications for policy — and we’re already seeing it play out at both the state and federal levels.

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For a brief and shining moment, it seemed as if the New York Times had let go of its war against toxic masculinity. Maybe the editors believed they had finally wimpified their readership. Maybe somebody whispered in their ear that it wasn’t working. Maybe they figured out that their vision of toxic masculinity, guys being what guys wanted to be, wasn’t actually toxic.

Maybe they couldn’t squeeze it in between their 27 op-eds about why Trump was literally Hitler. After all, their slogan is “all the news that fits, we print.” But it’s back, raising the age-old question of whether Millennial men want stay-at-home wives.

But the millennial category lumps together everybody from age 17 to 34, a group varied by race, ethnicity, religion, income, education and life experience. Don’t think for a second they are united. As a set of reports released Friday by the Council on Contemporary Families reveals, fewer of the youngest millennials, those aged 18 to 25, support egalitarian family arrangements than did the same age group 20 years earlier.

The word “Millennial” refers to a generation, not race, ethnicity, etc. That’s why the group is varied by other factors than year of birth. And most people grasp that traits shared are not absolutes. This isn’t a high-level concept. Consider this foreshadowing, the question being whether it suggests where this is heading or whether its writer, Stephanie Coontz, is kinda clueless. Continue reading →

When Hillary Clinton was attacked for having defended a person accused of rape, lawyers of all political persuasions stepped forward to call foul. Indeed, this has been an ongoing theme, particularly for the criminal defense bar. We represent the accused. We don’t do so because crime is fun or we support our client’s alleged rape or murder, but because defending individuals zealously is what our system, our Constitution, demands if it’s to function.

It’s not that this is a controversial issue, but one too easily abused because of the ease with which the public’s heartstrings can be plucked by the sad story of the victim and the harsh characterizations of the lawyer defending the evildoer. Who would defend that bad dude? We would, of course. That’s what we do, and we make no apologies for it.  And certainly no progressive person would damn us for defending the Constitution and the accused, right? Right?!?

Enter Slate’s Dahlia Lithwick. Continue reading →

The arguments made by the Obama Departments of Educations and Justice, that it was already existing law that sex discrimination under Titles VII and IX covered gender orientation, relied almost entirely on the Supreme Court’s decision in Price Waterhouse v. Hopkins.

But the Obama administration, relying on Supreme Court decisions and other precedents going back several years, has interpreted the statute to include protections for gender identity, and issued guidance to schools to provide accommodations for trans students.

But was there such precedent, or was it merely a claim, relying on a decision that, if viewed through squinted eyes, could kinda, sorta be twisted into precedent?

The decision was, in fact, a relatively straightforward sex discrimination case that happened to involve a trans man, whom the Court discussed as a woman, and concluded that she (not he, not xi, not hir, but she) was discriminated against as a woman because she wasn’t appropriately feminine. The holding was that discrimination against women based on gender stereotypes violated Title VII.

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The American Bar Association Journal announced that the White House will no longer seek their blessing, a decades-old fixture in selecting federal judges.

The White House has notified the ABA that President Donald Trump’s administration doesn’t intend to ask for a review of possible judicial nominees to the lower federal courts before their names are announced.

This made ABA President Linda Klein sad, as the huge achievements on her watch, and the watch of her predecessor, were about to be marginalized.* This will come as a shock to non-lawyers, but the ABA has no authority over lawyers and is just a group of lawyers with a pompous name living off its legacy of self-importance. There was a time it was respected, and gave its imprimatur of respectability to judicial nominations. Continue reading →

When New York City’s Progressive in Chief, Mayor Bill de Blasio, flipped, it was, shall we say, surprising. Suddenly, he was on the side of closing the massive prison complex on Rikers Island after having spent years fighting activists demanding its closure. What gives?

Councilman Rory Lancman twitted the inside poop.

Let me explain the politics here: anti-Rikers folks & MMV outmaneuvered BdB; he panicked that Sunday’s Lippman report would leave him last guy defending #Rikers. Not good place for a progressive. Rest is spin. Disrespect of J. Lippman is unforgivable.

That would be former New York Chief Judge Jonathan Lippman, and MMV would be New York City Council President Melissa Mark-Viverito, and they were about to cut BdB (which, appareantly, is de Blasio’s rapper name) off at the knees, leaving him the only progressive not supporting the closure of Rikers because he couldn’t bear to be shunned by the forces of law and order. Again. Continue reading →

How did a criminal defense lawyer end up being a supporter of Judge Neil Gorsuch? He didn’t. Or he isn’t, though it might certainly appear that way to the uninitiated, conflate support with the defense against disingenuous and, well, complete bullshit arguments and accusations against him by those who haven’t got any actual beef with Judge Gorsuch other than the fact that he was nominated by Trump and everybody on the team says he’s awful.

That criminal defense lawyer is me, and if I was the guy nominating someone to sit on the Supreme Court, Judge Neil Gorsuch wouldn’t be on my long list, no less be my pick. But that’s not the point. Fighting the insanely insipid attacks on Gorsuch isn’t a matter of being a huge Gorsuch supporter. It’s a matter of intellectual honesty. And that otherwise smart people, friends, people I might otherwise find credible, are all too happy to indulge in lies and misinformation against their enemy forces my hand.

Both publicly and privately, people I admire and respect have assured me that Gorsuch is a fine human being and a conscientious judge. The most public example of this was the appearance by former acting solicitor general Neal Katyal, a former Obama official now leading the fight against the Trump travel ban, to assure the committee that he is “a first-rate intellect and a fair and decent man.” Also in evidence was a phalanx of former clerks willing to tell anyone who would listen of their judge’s wisdom and kindness. I stipulate—as I did from the outset—that Gorsuch is just a terrific guy.

Continue reading →