It’s not unprincipled to simultaneously believe in rugged individualism for those who can and a safety net for those who can’t. We can quibble over where to draw the line, and the conflicting ideologies may make purists cringe. But for anyone who believes that no person should lack for health care in America, it’s hard to shrug off poverty with the cartoon character of the welfare queen.

There are poor people in America who didn’t do anything wrong to be there. Some suffered misfortunes outside their control. We have a severe dearth of decent-paying jobs, despite the lie of low unemployment. Technology has produced massive structural un- and under-employment, even if you’re enjoying hipster heaven coding for cash. There are hard-working poor who need health care and can’t afford it. There are people with serious illness who need it.

And there is a vast middle-class whose real earnings have declined seriously since 2007, with no hope of improvement, who don’t exist in the Washington spin cycle. While the ACA served the poor, the struggling middle class was burned on both ends. Premiums remained high, and went higher, while deductibles and co-pays ($7,150 for 2017) made their policies worthless unless they suffered severe illness. This was catastrophic insurance, which is fine when you suffer a catastrophe, but is a worthless sinkhole otherwise.

An unattributed comment about the Republican health care bill was that Trump understood neither the politics nor policy of what he was doing. This is what comes of electing the guy who makes empty promises of greatness without the details that Americans had historically demanded of people before they voted for them. Claiming he had a great plan that gave everybody everything is easy. Having a great plan is very hard. Continue reading →

That 15% of the female undergrads at UT-Austin said they had been raped is certainly shocking. Sure, it’s below the other statistics constantly promoted to demonstrate that there is a campus rape epidemic, but it’s still a huge percentage. Huge enough to compel a college president to speak out.

“The first injustice committed in every assault or inappropriate behavior is the act itself, but the second injustice is often the silence of the community surrounding the survivor,” UT-Austin President Gregory L. Fenves told The Dallas Morning News. “We must not be silent anymore, and we must not be afraid to face the very real problems that exist at our university and in society in general.”

What does that even mean, “the silence of the community surrounding the survivor”? Did Fenves have a stroke, fatally impairing his ability to think, to speak, to utter comprehensible phrases? Not likely. It’s a job requirement, to string together words to form some vague sense of meaning that warms the feelings of the deeply passionate while saying nothing remotely comprehensible. Hell, it’s a requirement to obtain a humanities Ph.D. today. Continue reading →

Colorado Senior District Court Judge John Kane says that Judge Neil Gorsuch is a good judge. The two of them may disagree about many of the pressing policy issues of the day, and hold different values on many issues, but Judge Gorsuch is smart and, as Judge Kane emphasized during his testimony to the Senate Judiciary Committee on Day 4 of the hearings, a judge of integrity.

Even the New York Times can’t muster an argument that Judge Gorsuch isn’t fully qualified to be an associate justice, and they’ll say anything.

What’s enormously hard for the deeply hysterical to grasp is that President Trump isn’t going to nominate someone for the seat who meets their approval. Indeed, even if Trump nominated Thurgood Marshall, they would find reasons to hate him and shriek about how he’ll destroy the fabric of progressivism. Most people realize how politics deranges perspective, and appreciate the Senate Show for what it is, a necessary performance to sate the lust of ignorant political constituencies.

But what comes next? There is no doubt that the Republican-controlled Senate’s refusal to give Judge Merrick Garland a hearing was hypocritical and destructive. The desire for payback is strong, the hyperbolic rationalizations notwithstanding. Trump didn’t “steal” a seat and Gorsuch won’t be illegitimate. The Republicans pulled a shrewd gambit and got away with it because the Advise and Consent Clause lacked a mechanism to force the Republicans to fulfill their constitutional duty. It was disgraceful, but there was no means to prevent it. Continue reading →

After the close of Day 3 of the Senate Show, I noted on the twitters that the winners for the day were Sen. Chris Coons for the Democrats and Sen. Ben Sasse for the Republicans, both of whom stood on opposite sides of an island of intelligence in a sea of partisan idiocy. In response, Cristian Farias pointed out that Sasse had made a curious point:

Sasse said something about empathy having absolutely no place in judging.

Among the things Judge Gorsuch made clear during his few moments of speaking in the midst of Senators being Senators was that his approach to statutory interpretation was texualist, meaning that he looked to the words of a law to interpret what the law means. This has an originalist component, in that the definition of the words should be based not on their new definition last week, but their definition at the time the law (or Constitution) was enacted.

At the same time, originalism has largely been the target of a misinformation campaign, by people who should know better but have an agenda which justifies lies to promote their cause. Originalism isn’t voodoo, the ability to look into the minds of long-dead Founding Fathers to discern what they really, really thought. Rather, it’s about adhering to the meaning of words at the time they were chosen rather than the coolest social justice version of the past hour or two. Continue reading →

Ed. Note: This is a post by former Fault Lines contributor and Knoxville criminal defense lawyer, Chris Seaton.

Indigent representation is a topic near and dear to my heart. If you are truly poor enough that you can’t afford reasonable attorney fees, you should have a competent attorney appointed to zealously represent you. That attorney should also be fairly paid for his or her time.

Unfortunately for Tennessee attorneys and defendants, the General Assembly doesn’t share my enthusiasm. It’s easier to appease your constituency and look tough on crime by deciding to not give a shit about people charged with a criminal offense. That’s why Tennessee, for a very long time, kept indigent representation on the low end of the state’s budget.

Turning a blind eye to Tennessee’s indigent defense crisis saw a mass exodus of experienced attorneys from taking court appointed cases. Creating a contract bidding system for juvenile court cases and capping indigent representation at 2,000 hours per year made it more viable for lawyers to focus on marketing and networking instead of taking court appointments. Continue reading →

It’s called the border search exception to the Fourth Amendment, but it’s a misnomer. It’s not an exception at all, but rather a Constitution-free zone. When you come to the border of the United States of America to seek entry, you are here but not here. You may have gotten off the plane at an airport, stood in line to speak with one of the pleasant people in a bullet-proof booth, but until you pass through the gate, you aren’t “technically” in America.

A legal fiction, obviously, since your feet are touching American terrazzo, but a fiction that no one has really struggled to understand. Our border guards have to be somewhere when they do their job, and given the existence of air travel, airports seem a pretty fair place.

The reasons behind the controls at the border, the limits for this Constitution-free zone, are deeply embedded in the law. We control customs duties, the introduction of things we don’t want brought into the country, like dangerously invasive plant species, and people who are neither entitled to enter nor deemed undesirable. You may not like the idea, but that’s what it is. Continue reading →

There are a few things that should be understood in advance. First, Neil Gorsuch will be confirmed as the next associate justice of the Supreme Court, as he should. Second, Neil Gorsuch would not be my choice for associate justice of the Supreme Court if I was president, but then again, I’m not. Third, the confirmation hearing in the Senate Judiciary Committee is a dog and pony show put on to play to an audience.

Fourth, if it was not a dog and pony show, it might serve some public utility by asking serious questions, getting serious answers and conveying a better understanding of how our tripartite government works. Unfortunately, this is unsatisfying to the various senators’ constituencies, and it would be an enormous risk to be deliberative. The game of gotcha plays far better to an audience of angry groundlings.

SNL-alum-cum-senator Al Franken had a great line: “I had a career in identifying the absurd.” He was trying, desperately, to get Judge Gorsuch to admit that his dissent in the frozen trucker case was absurd. Not because of the law, as Franken is no lawyer and, despite his remarkably comedic timing, has no interest in nuanced legal analysis, but because he knows the outcome felt wrong and, yes, absurd.

Franken pushed Gorsuch as to what would he have done if he was the frozen trucker. Gorsuch deflected, as he wasn’t the frozen trucker but a judge deciding whether a specific law, as written, provided a remedy for what everyone conceded was a bad situation. Franken was having none of it. Franken’s supporters would have none of it either. Lawyers, watching Franken try to harangue Gorsuch into submission, cringed. Continue reading →

Ed. Note: I’ve opened the door at SJ for posts that would otherwise have appeared at FL.

I am fond of saying that I do law, not justice. That sounds amoral. Perhaps it is. But I have a fallback position. I am certain that I know the converse of justice and that is evil. I write today about an example of evil[1] and why I desperately desire vengeance.

Let’s start with some basics. Legal philosophers who believe in retribution as a proper function of punishment eschew vengeance as a legitimate reason for punishment. Rather they believe retribution has a higher calling. Boiled down, here it is:

(1) that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment; [and]

(2) that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve.”[2]

Retributive Justice, Stanford Encyclopedia of Philosophy (Jun 18, 2014).

Continue reading →

As my almost-adopted son, Cristian Farias, twitted:

Chevron: Law of the land for more than 30 years. #SCOTUS said that judges should generally defer to agencies’ regulatory interpretation.

— Cristian Farías ? (@cristianafarias) March 21, 2017

So why shouldn’t Chevron remain precedent? What’s changed? This arises in the context of confirmation hearings for Tenth Circuit Judge Neil Gorsuch to the Supreme Court, as he’s no fan of Chevron deference.  But Cristian is right. It’s precedent, that the court must defer to the administrative agencies charged with the execution of a law to resolve any ambiguity in the law. So why change?

In the early days of a duly enacted, but perhaps vague law, there are administrative issues to hash out, application of the law, whether the words or, in many instances, the purpose, as left by Congress in the hands of the “experts.” And indeed, Congress often did a lousy job, whether because they were lazy, needed political cover, couldn’t reach consensus or just didn’t really know what the right answer was, in enacting laws that would demand some serious expertise in executing.

But that’s the early days. Continue reading →