It’s a truism that free speech is usually defended on behalf of the most despised among us, putting me in the unpleasant position of speaking out for Elizabeth Warren. The junior senator from Massachusetts sought to read a 30-year-old letter from Coretta Scott King, dating to Attorney General nominee Jeff Sessions’ failed effort to be confirmed as an Article III judge.

Sen. Elizabeth Warren has earned a rare rebuke by the Senate for — believe it or not — quoting Coretta Scott King on the Senate floor.

The Massachusetts Democrat ran afoul of the chamber’s arcane rules by reading a 30-year-old letter from Dr. Martin Luther King’s widow that dated to Sen. Jeff Sessions’ failed judicial nomination three decades ago.

The chamber is debating the Alabama Republican’s nomination for attorney general, with Democrats dropping senatorial niceties to oppose Sessions and Republicans sticking up for him.

This was, of course, part of the dog and pony show put on by the nation’s most genteel deliberative body for public consumption. There was nothing new about the letter, or the characterization of Sessions it reflected. Warren was playing to her tribe, using the Senate as her stage. This isn’t exactly a new thing in Congress. Continue reading →

Nebraska Senior District Court Judge Richard Kopf got an imaginative complaint for declaratory judgment. Rape? Federal judges don’t deal with rape.

The suit sought a declaratory judgment against a state court judge (a male) who was knee-deep in handling a high profile date-rape trial. The judge was named as the sole defendant in his official capacity only. In essence, [Wendy] Murphy (together with other lawyers) and her client, the alleged victim, wanted me to instruct the state court judge on the proper reading of the rules of evidence and the law regarding motions in limine in a date-rape prosecution then pending in the District Court of Lancaster County, Nebraska.

But for Judge Kopf, it wasn’t about the act of rape, but the word “rape,” an entirely different problem.  Not only did Judge Kopf dismiss the complaint, but he imposed Rule 11 sanctions for this novel action.

One of the lawyers for the plaintiff was Wendy Murphy, an “adjunct professor of sexual violence law at New England Law Boston.”  Ms. Murphy describes herself as an “impact litigator” on issues of sexual violence against women.

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Did it get you? Did it make you feel all sad for your daughter? Did it make you want to buy an Audi because they’re so very social justice-y? During Super Bowl 51, you were fed a diet of social justice marketing, with Audi offering one of the most flagrant.

Whether you think this was a substantively persuasive pitch, too politically overt, silly or disingenuous, Audi paid a lot of money to get us to see it. Some might suggest the money would have been better spent actually paying their underpaid women, but then nobody would have known of their concern.

Carl Marci, chief neuroscientist at Nielsen, the TV ratings company, said, “If you make people think too much or get too serious during a game where people are really looking to be entertained, you’re taking a risk.”

That risk can pay off, though.

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As the great legal philosopher, Ron White, warned, “you can’t fix stupid.” But ignorance isn’t the same as stupid. The latter is forgivable because stupid people can’t help themselves. That’s the best they can do. Ignorance, on the other hand, is a choice.

In the Chronicle of Higher Education, Tom Nichols contends that schools are turning out rubes.

You know,” then-candidate Donald Trump said during the 2016 campaign, “I’ve always wanted to say this: … The experts are terrible.” Trump has often been caught at a loss over basic issues of public policy and has repeatedly bashed intellectuals who criticized his lack of substance. He famously exulted, “I love the poorly educated,” demanded that President Obama prove his American citizenship, and cited the National Enquirer approvingly as a source in charging that the father of one of his opponents, Ted Cruz, was involved in the assassination of President John F. Kennedy.

Hah, the twitters laugh at this idiot. He’s so stupid. He’s such a moron. The critics range from teens to grandmas, every one of whom is so much smarter than this. There are two things that can be true at the same time: that President Trump is a dolt and that you are too. Continue reading →

At Fault Lines, Sam Bieler called it out: If criminal law reform is over, blame the cowards.

Donald Trump’s inauguration has prompted a great wailing and gnashing of teeth over the many ways the United States is about to become less great. Now, with Jeff Session’s confirmation all but inevitable, the most piercing wails have been reserved for the fate of the Civil Rights Division of the Department of Justice, which oversees everything from voting rights to police abuse litigation.

It is this latter charge that has commentators particularly worried: given Session’s hostility to federal investigations of police, pundits expect a dramatic fall-off in the number of cases DOJ will bring. Will this be a substantial roadblock to police reform? Only if state and local leaders display the lack of backbone they have to date.

The vast majority of criminal law reform happens far from the beltway. We tend to obsess over Supreme Court decisions and federal laws, but the ones that impact most people are made in places like Jefferson City, Tallahassee and Salt Lake City. Use of force policies are decided by local police chiefs. Prosecutorial discretion is exercised in small offices with metal desks by young lawyers whose names are never mentioned. Continue reading →

With public pressure on the judiciary, because that’s how it works, to rule in accord with their feelz, Linda Greenhouse, the Yale Law School lecturer who didn’t think it worth her while to go to law school, uses her Gray Lady soapbox to goad the chief justice of the United States.

But if the pre-election possibility of spending the next years or decades in the minority was scary for the chief justice, he now faces something even more daunting: responsibility.

Because the chief justice, heck, any justice, otherwise has no responsibility? Cool story, sis.

President Trump’s hyperactive first days in office, along with the evidence that the two Republican-controlled houses of Congress will do the president’s bidding with few questions asked, leaves the judiciary as the only branch of government standing between the new administration and constitutional chaos. Consider what would have happened last weekend had half a dozen federal judges not stepped in to prevent the immediate ouster from the country of legal permanent residents and carefully vetted refugees and visa holders.

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It’s a good bet that somewhere in his chambers, United States Senior District Court Judge James Louis Robart has a certificate proving that he is, without question, an Article III judge. He was nominated by President George W. Bush, confirmed by the Senate by vote of 99-0, and assumed office on June 21, 2004. He took senior status on June 28, 2016.

By some accounts, he seems like a swell guy, and I’m fully prepared to accept that premise that he is a particularly decent human being. That’s great, but irrelevant. So too is the identity of the president who appointed him or the vote count in the Senate that confirmed him. If he was appointed by Millard Fillmore by a vote of 51-49, he would still be the same human being he is, and still be an Article III judge.

After making a ruling in a controversial case, he was the target of a twit by the president that characterized Judge Robart as a “so-called judge.” This was a problem. By targeting criticism at Judge Robart’s authority to rule as a judge, it undermined the authority of a judicial officer to perform his constitutional function. It made people stupider, informing them that an adverse ruling raises questions of judicial legitimacy. As William Baude explained, there are two ways to criticize a court: Continue reading →

A judge signs an order granting a temporary restraining order against governmental action, plus some other things like granting access to lawyers, and BOOM, the magic happens, right? Well, as the roll-out weekend of Trump’s Executive Order banning immigrants and visa holders from seven countries shows, not so much. And that’s causing no end of screams for impeachment.

What lawyers pondered, watching this happen, was why there was no enforcement action sought. Where was the application for sanctions, contempt? Where was the order directing the United States Marshals service to escort lawyers into the holding area to confer with those being detained?

Government doesn’t just happen, much as people imagine it does. It’s a bureaucracy, and like all bureaucracies, it’s run by grocery clerks with lists. At Politico, Josh Gerstein, perhaps inadvertently, makes this plain.

The CBP officers at airports were not rogue individual actors, according to the documents obtained and people interviewed by POLITICO. Rather, the agents on the ground were following orders from high in their chain of command. Continue reading →

The New York Times announced a settlement in a lawsuit, which it neglects to name, that would end the “Clean Halls” program, which also goes unnamed, begun in 1991 and subsequently swept into the dreaded “stop & frisk” tactics.

The settlement addressed police stops in and around buildings whose landlords had asked the police to conduct patrols and arrest trespassers under a city-run program. The agreement prohibits officers from approaching, questioning or detaining people merely because they are inside or around those buildings, and forces officers to apply the same constitutional protections there that they are supposed to apply anywhere in the city.

Miserably uninformative, which is unfortunate because if you don’t know what it was, and what was wrong with it, there is an excellent chance that someone will come up with the brilliant idea to start it again some day when the next scare happens and people demand simple solutions.  Continue reading →

Following the riot at Berkeley that successfully stopped Milo from speaking, two things happened. The first was that Antifa proclaimed victory.

“We won’t put up with the violent rhetoric of Milo, Trump or the fascistic alt-right,” said a Berkeley history student who declined to give his name. The student, who was dressed in black and wore a face mask, carried a banner that read “Queers bash back”. He said he identified with the “antifa” (anti-fascist) movement.

“We are willing to resist by any means necessary,” he added.

Why? Because it’s a “moral imperative.” Continue reading →