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Cross: Roger Pilon, Defending Liberty at Cato

February 22, 2017 (Fault Lines) — Ed. note: David Meyer-Lindenberg interviews Roger Pilon, libertarian luminary and founder and director of Cato’s Center for Constitutional Studies.

Q. You were born in Vermont late in 1942 and raised in upstate New York, in a village of 150 people “in the foothills of the Adirondacks” with a beaver pond outside your family’s home. Growing up, you were an athlete, a musician, the founder of your town’s first rock-‘n’-roll band, and a Boy Scout and later camp counselor.

A recurrent theme in your work is that we’ve become so inured to the unwieldy, pervasive federal government that we find it hard to imagine things being different. To truly appreciate a time before the modern state, we’d have to go back to before the Progressive Era and the New Deal.

All the same, were things different—less overregulated, overlawyered, and full of militarized, forfeiture-happy cops—in the America you grew up in? At the very least, was the culture less politicized? Since then, have we gone further astray? Alternatively, do we find it too easy to idealize the recent past? Have things always been like this?

A. Well this should be fun! Who doesn’t like talking about himself? And it’s a lot cheaper than talking to a shrink—and probably just as rewarding, if not more so. So thanks for the invitation.

Let’s start with a couple of corrections. I wasn’t raised in a village (nor did it take one to raise me!) but grew up instead in the country, five miles north of the little village of Galway, NY (pop. 150 or so); and yes, across from a beaver pond, north of which it was all wooded hills into the Adirondacks—it was rural. Thus, contra Q2 below, it was as a kid that I trapped muskrats and beaver and sold the pelts, fished and hunted, went to one-room schools from K-4, rode my bike everywhere from age 7, and worked along with the owner in a general store up the road for 50 cents an hour.

Summers before my junior and senior years in high school and after my first year of college I worked as a milkman. It was a two-man operation: The farm’s owner and I pasteurized and bottled milk three days a week and delivered milk on our separate routes the other three days, to campers around Sacandaga Reservoir. And on Saturdays when I returned from my milk route I often played for round and square dances with my band—guitar, bass, vocal, and I called square dances. Those are a few of the things I did as a kid.

Now to your questions: Things were different then, and it isn’t simply that you see more and see things differently as an adult, looking back, than as a kid. Sure, the ’40s and ’50s had their politics—but not the “politicization” of almost everything, like today. Just look at tapes of TV shows from that time, especially of comedians. And songs were mostly about love—imagine that! I could write a whole book about the differences, so let me just say this.

Setting aside the civil rights struggles that were coming to the surface in places in the ’50s—no small matter—if you grew up where I did or in many other parts of America, the post-War focus of most people was simply on living life—on work, family, experiencing life’s many events and stages. Most people weren’t out trying to change the world through political action. There was no 24/7 news!

That would change, starting mainly in the mid-’60s, but the seeds were sown earlier. To tick off just a few factors at play: prosperity; TV; the emergence of a large youth culture with music separate from adult music; attacks on corporate culture; the sexual revolution, including Playboy and the pill; Sputnik and the explosion of the college population; President Kennedy asking what you can do for your country; the civil rights movement; Vietnam; and ’60s radicals moving into the institutions—the academy, the media, the foundations, the mainline churches, and of course government. Those factors and more precipitated a cultural revolution, some of it good, some not so good like the politicization of nearly everything.

Q. You graduated high school in or around 1960, but you didn’t complete undergrad until 1971. During the eight years or so you weren’t enrolled in an academic program, you worked a truly astonishing number of jobs. The full list is too long to reproduce here; you did everything from trapping beaver and muskrat (including in your family’s pond?) to selling milk, cigars and aluminum siding to working at a ski resort to, of all things, professional gambling.

Why’d you put off college? Where’d that incredible appetite for hard work come from? Could today’s slacktivists, 23-year-olds who find it tough to sign a Change.org petition, hope to match a record like that? Do you ever regret giving up betting on the ponies at Belmont? (What made you pick that job, anyway? Was it as fun as it sounds?)

And because we never shy away from trite questions here at Fault Lines: did your upbringing and early adulthood help mold your libertarian views? Was Roger Pilon, the free-market philosopher, born out of Roger Pilon, the guy who used to strip fuzzy animals of their pelts for cash on the barrelhead?

A. Again, a few facts, in barest summary: I started as an engineering major at Syracuse University in 1960, but three weeks in I realized that I didn’t really want to be an engineer, so I switched to music and finished the year, but still didn’t know what I wanted “to be.”

Truth to tell, although I was salutatorian of my high school class, my rural upbringing didn’t really prepare me for the bigger world: I had no idea, for example, what a liberal arts major was or “did” with that degree. I thought of college as something like a trade school. So I decided to drop out for a year or two to figure out what I wanted to be. It turned out to be seven years! And during that time I moved from across the beaver pond to Schenectady, Albany, Long Island, and eventually, after traveling through Europe, New York. But first I joined a “city” rock band (playing mostly in bars and fraternity houses, no square dances) while working briefly as an aluminum siding salesman, much longer as an insurance salesman, and finally as a cigar sales supervisor (long story), and a professional gambler (the ponies—till my luck went bad!). But all this time I was also an autodidact, and there’s a clue for what I take to be your main question.

That was a great seven-year stretch after Syracuse, starting at age 18. Between carousing with the guys (and girls)—from bars to ski slopes, beaches, and more—my intellectual odyssey went from Dostoyevsky to Bill Buckley’s National Review and “Firing Line,” Barry Goldwater, Ayn Rand, Milton Friedman, philosophical tracts of various kinds, and more. During that time (1961-68) the world was changing, of course, and so was I, though not entirely with it.

So to your question: My upbringing and early adulthood did help to mold my libertarian views, for sure, although “nature” was doubtless at play too. I recall talking to Clarence Thomas about this back in 1993: We both remembered, as seven-year-olds, hating bullies. Although I was a wiry little wrestler then, that’s a mark of a libertarian—a live-and-let-live concern for justice.

Then too, earning money from an early age gives one a sense both of responsibility and of what’s possible. Is that still possible, you ask? Sure, but there are many more impediments today: child labor and minimum wage laws, organizational structures including increasingly inflexible career paths, and paternalism generally, including helicopter parenting. I was mercifully free from and even oblivious to much of that. Maybe it’s growing up in the country; but it’s also growing up in a less structured culture.

Q. You got a BA in philosophy at Columbia University’s School of General Studies. It’s not exactly the most hands-on discipline, giving rise to the question of why you traded that rock-‘n’-roll life of yours for a life of contemplation. What was the plan? Were you always going to be a libertarian tastemaker and legal scholar of renown? Back then, was getting a JD on your radar?

You worked as a taxi driver to put yourself through undergrad. What car did you drive? Got any stories from your time on the mean streets of John Lindsay’s NYC? And did an 18-year-old Tom Friedman ever get in your cab and engage you in a conversation that changed your life?

A. Basically you’re asking about how I decided to go straight and become a philosopher and, eventually, a lawyer. Very briefly: For some time I had toyed with going back to college. (Remember, in the ’50s most people didn’t go to college, especially those who grew up where I did; that changed over the ’60s.) You ask what car I drove: At 19 I was a good insurance salesman; at 20 I was driving a brand new T-Bird convertible; at 22 a Jaguar XKE! Give up all that, and the life that went with it, just to go to college?

In any event, the thought never left me. Still, a while after I got back from Europe I went down to Wall Street to see about getting a job there. At one firm I took an exam, after which the guy I was interviewing with looked at the results and said: “Why don’t you go back to college? Go up to Columbia.” Well I did, even though I was thinking, “How’s a country bumpkin like me ever going to get into a school like Columbia?”

So I walked onto the Columbia campus and asked the first student I saw where the admissions office was. Fortunately, he pointed me to the School of General Studies (GS). Little did I know that Columbia had three undergraduate colleges: Columbia College, for men straight out of high school; Barnard, for women; and GS, where at the time you had to be at least 21 to apply—it was mostly for returning students. (With today’s anti-discrimination law, that’s all changed.) I talked to a GS admissions officer, took an entrance exam, arranged for my Syracuse transcript to be sent—and lo and behold, I was admitted! And it turned out to be the perfect place for me: The average age of students was 24; the variety of backgrounds was vast; and the education I got over the next three years was excellent—in philosophy, in fact, it was the same faculty as in the college, and the classes usually included both the kids in the college and the older GS students.

Why philosophy? Over those seven years I had grown increasingly politically aware and increasingly disenchanted with the way I saw things going. Ironically, I walked on to a quiet Columbia campus for the first time on the morning of April 23, 1968. That afternoon, all hell broke loose as Mark Rudd and the Students for a Democratic Society took over the president’s office, which they held and trashed until the NYC police drove them out two weeks later.

Thus, “the plan,” as you ask, formed gradually toward the end of that seven-year hiatus, was to become a philosophy professor so that I might be among those “standing athwart history yelling ‘Stop!’” as Buckley had so colorfully put it. My values, and those of SDS, were miles apart, and I saw it essentially as a matter of fundamentally different philosophies—one right, the other misguided, and deeply so. By that point in my odyssey I was well settled and fairly well versed in the then-young conservative-libertarian movement.

When I started classes that summer, like others at GS I was a serious student. I did well, despite driving a taxi nights and weekends during my time at Columbia, and soon received scholarship assistance. And when the campus erupted again in 1970, I prevailed upon my professors to hold classes in their apartments and to give us real grades, not just pass/fail, and they did. I also started a weekly column in the Columbia Owl titled “From the Right Side,” and organized a group of like-minded students as columnists. You ask if I have cab-driving stories. Is the Pope Catholic? Some other time. The law degree? That came much later.

Q. You went on to the University of Chicago, where you picked up a master’s and doctorate in philosophy and met your wife, the philosopher and political analyst Juliana Geran Pilon. What attracted you to Chicago? With whom did you study? Who influenced your views at this time?

Getting a doctorate generally means committing to academia for the long haul. Was that true of you? Were you going to shape politics with an academic’s tools, as many law profs attempt to do, or retreat into your study and never come out?

Colleges are notorious for their hostility to conservative and libertarian thought, and non-progressive professors are still a rarity. Back in the ’70s, did you encounter hostility from faculty, your supervisors or your peers for your views? Were you denied career opportunities, something many libertarian law profs say happened to them? And is that hostility present in the kids you now teach? Has libertarianism made headway among young people, or are progressives still winning the fight for “hearts and minds?” What’s to be done?

A. Lots of questions there; a few answers here. I worked my way through graduate school too, not in a cab but selling Great Books of the Western World and, later, the new 15th edition of the Encyclopaedia Britannica. Given my ideas, Chicago was a natural choice—the home of the Chicago School in economics, for example. Much as I learned at Columbia, I learned even more at Chicago.

Barely had I arrived when I told the man who would become my dissertation director, Alan Gewirth, that I wanted to write my dissertation on the theory of rights. He and my second reader, Alan Donagan, were just then beginning their seminal work in moral philosophy, so the timing was perfect. And my third reader was Milton Friedman—talk about a dream team!

Finally, Richard Epstein arrived at Chicago a year later, just as he was beginning his important work on the law of torts. I met him shortly after he arrived when he came across the Midway to give a talk to graduate students in the philosophy department. Thereafter we often discussed legal issues. In fact, in 1976 I reviewed his four strict liability articles for Law & Liberty, a publication of the Institute for Humane Studies (IHS), placing them in a Hayekian and Nozickian context. Those four members of the Chicago faculty most influenced my thinking and the dissertation that has informed my work ever since.

The other influence was my wife, Juliana, and not surprisingly it went both ways. An immigrant in 1962 from communist Romania, she needed no instruction about the virtues of freedom. But she did need to see how important it would be for her to reach beyond her intense study in “hard” philosophy—epistemology, metaphysics, logic, and the philosophy of science—to the moral and political side of the disciple, because she had an important story to tell during the ideological turmoil of the time—and I was only too happy to encourage her thus to add to her philosophical portfolio, work she’s done exceedingly well ever since. We met shortly after I arrived. The year before she had returned to Chicago, where she did her undergraduate degree, after a year of graduate work at Princeton. Thus did she too become part of the movement in which I had become increasingly involved—and we’ve stayed involved ever since. I lucked out in finding Juliana!

You ask about my (our) commitment to academia. We were indeed looking toward careers in academia: Chicago, after all, has a reputation for being the teacher of (college) teachers, but fate had other plans. When Juliana and I came on to the academic market in the mid-’70s, it had collapsed. To make a long story short, in nearly all disciplines there were hundreds of applicants for every job.

Anticipating this, fortunately, I had kept one foot in academia and the other in politics and the conservative-libertarian movement—and it was the latter that finally saved us. Thus, we were Hyde Park election judges in 1972. That year I also won a Richard M. Weaver Fellowship from the conservative Intercollegiate Studies Institute (ISI). We attended movement events and brought conservative and libertarian speakers to campus. In 1975, Juliana spoke about her recent trip back to Romania at the 15th annual convention of the Young Americans for Freedom (YAF), where we made contacts that would eventually bring us to Washington. In 1976 we were alternate delegates for Reagan at the Republican National Convention. And earlier that year I was “discovered” by IHS when I spoke up at the Philadelphia Society’s national meetings in Chicago, after which IHS put me on its speaking circuit.

But we continued trying to break into academia as well. Finally, one of our movement contacts resulted in a trek to California in January, 1977 where we split a position and a half for one semester as visitors in the philosophy department at California State University, Sonoma. While there, however, Juliana got an offer from Emory University, so it was back East to Atlanta, where I was able to persuade the dean of the law school to let me be a visiting professor. But those appointments lasted only two years, toward the end of which we were saved again by the movement when I was awarded a National Fellowship by Stanford’s Hoover Institution, so it was across the country once again, this time with our first child soon at hand.

We spent a year at Hoover, Juliana this time as the visitor, and the next year next door at IHS (then located in Menlo Park). And all this time we continued to publish and speak and to work the academic market, but all to no avail, because it remained overwhelmed with applicants, and because, in our case, ideology was the kiss of death. Indeed, the most glaring example involved the Georgetown philosophy department. A faculty committee had narrowed applicants in my field down to the 12 they interviewed at the December, 1978 APA meetings, and then narrowed that dozen down to one, me. But even before I flew up from Atlanta to meet the rest of the faculty, the department chairman called to say that ideology had raised its ugly head. A week after the visit he called again, despondent, to say that the faculty had voted closely to not even fill the opening. The main objection? The strong letter of recommendation in my dossier from Milton Friedman, he said—this was after Friedman had won the Nobel Prize! So it went elsewhere as well—too many stories to tell here.

You ask about the ideological situation today. At my Cato bio page I have a couple of recent speeches that go into detail on the subject. The problem varies by college and discipline, of course, but it’s still very much with us. Fortunately, it’s getting much more attention today than when we were coming along. But academic ideological discrimination goes far toward explaining the growth especially of conservative and libertarian think tanks, where Juliana and I have found productive homes. And our odyssey shows how important it was not to have put all of our eggs in one (academic) basket.

Q. After you received your doctorate in 1979, you went to work for the Institute for Humane Studies, a libertarian think tank in Menlo Park, CA. What were your responsibilities? Weren’t you worried you’d get sunstroke? You continued to publish articles, but were you already politically active? Did you help with Ronald Reagan’s presidential campaign?

In 1981, you signed on with the Reagan administration and left for Washington, where you became Special Assistant to the General Counsel at the U.S. Office of Personnel Management. Why the move from philosophy to politics? What were your new duties? And what did you want to accomplish? You didn’t have a law degree yet; did that cause any problems? Were you determined to leave your mark on what turned out to be one of the most influential conservative presidencies of the 20th century?

A. I’ve already pretty much answered the first set of questions. Just two comments on those: First, in November, 1976 I defended my dissertation, even though I had one more chapter to add, because Professor Donagan was on sabbatical that year but would be returning to Chicago for a few days just then, so we all wanted to take advantage of that for the defense. But as noted above, soon thereafter Juliana and I got the offer from Cal State, and it was followed by an itinerant existence filled with other writing and speaking opportunities, none of which could be declined in that dreadful academic market; so that final chapter never did get written until the summer of 1979, after which the degree was awarded. Second, apart from the 1976 convention, we did not work in the Reagan campaign, but as noted above, we were very active in its intellectual arm.

Turning to the second set of questions, back in 1975 Juliana and I met University of Maryland Professor Don Devine at that YAF convention where Juliana was speaking, and a year later he invited us to an IHS/Liberty Fund conference he had organized at Maryland. Then we ran into Don again in 1978, when Reagan came to Atlanta with his campaign operation.

So given the dismal academic situation, when I saw, shortly after the 1980 election, that Don was heading up the OPM transition team, I wrote to see about a job. Months later, after he’d been confirmed as OPM director, we met again, and shortly thereafter he offered me a job, first as his special assistant, then as special assistant to the general counsel, and finally as a professor at the Federal Executive Institute (FEI). So the short answer to the question of why I moved from philosophy to politics is, with a family at hand, I needed a job. OPM was far from an exact fit: It oversees the civil service, covering everything from personnel rules to federal retirement, federal health benefits, training, and more. That last was closest to my interests; hence the FEI stint.

But given the still uncertain career future, and the two years of law school teaching I had under my belt, plus that most of my publishing, speaking, and conference work was in law, I thought it wise to pick up a law degree. So at age 40 I began that, at night, just up the street from OPM at George Washington. It was a grind, for sure, but an interesting one. I lectured in two of the courses I took. And for one of my seminar papers I used a speech I gave at a 1987 ABA convention Bicentennial Showcase Program on economic liberties and the judiciary. (The balance of your questions is best answered at Q6.)

Q. You rose rapidly through the ranks of the federal government. From your start at the Office of Personnel Management, you joined the State Department, where you served as director of policy for the Bureau of Human Rights and Humanitarian Affairs. Ed Meese then brought you to Justice, where you became director of the Asylum Policy and Review Unit.

Refugees and asylum seekers are obviously a trendy subject. Even back in the ’80s they were rarely far from the news. For example, during your tenure in ’87, Reagan led a controversial push to have asylum officers hear cases instead of immigration judges. (He was ultimately partly successful: for the most part, USCIS asylum officers are now the first people to hear cases, though judges remain involved.)

What was your position on this at the time? And now? More broadly, you’re a proponent of American individualism, a position that’s often maligned as “American exceptionalism.” How easily is that learned? Do immigrants, refugees, asylum seekers need time to acclimate to the American way of life? Can one truly learn the principles of self-reliance and personal responsibility by taking part in modern American society, with the state involved in everything? And without a philosophical commitment to the small-government values of the Founders, will the people who wish to become Americans want to rein in the growth and intrusiveness of the state?

A. State, especially at HR, was a better fit than OPM, especially since my focus there was on Cuba and Eastern Europe, including the Soviet Union. In early 1987, for example, I was an advisor to the head of the U.S. delegation to the U.N. Human Rights Conference in Geneva where the U.S. introduced, for the first time, a resolution condemning Cuba’s human rights record, based on a report I had organized. In that capacity I got to see U.N. corruption up close. One of the things I tried to do during my stint at HR was dispel the conventional idea that, when it came to human rights, economic liberty was less important than political and civil liberty, which in the world of European (and American) socialists was anathema.

But your questions focus more on the political asylum issue, so let me turn to that. As you say, Ed Meese brought me over to Justice from State to head up a new Asylum Policy and Review Unit he was creating to oversee the Immigration and Naturalization Service on asylum policy and check its denials of asylum in particular cases, which I did.

The origins of the office are worth noting. In 1985, when a Ukrainian sailor named Miroslav Medvid jumped off a Soviet ship into the Mississippi River and swam to shore, not once but twice, seeking political asylum, the INS sent him back both times. Hearing about this, President Reagan was furious, so he ordered Meese to set up the office. In addition to reviewing particular cases, we also were charged with writing new asylum regulations that included hearings before asylum officers, which I supported and still do, and we did that too.

Your final questions can be answered only “in general.” Obviously, some immigrants, refugees, and asylum seekers need more time than others to acclimate to the American way of life. As for learning the principles of self-reliance and personal responsibility by taking part in modern American society, I submit that the record shows that immigrants, on the whole, understand and practice those principles better than many native-born Americans—but I grant that the modern welfare state undercuts both that finding and our traditional openness to immigration (not to be confused with open borders). Finally, if those who wish to become Americans do not share a philosophical commitment to the small-government values of the Founders, not only are they not likely to want to rein in the growth and intrusiveness of the state, but they’re likely to demand even more government growth and intrusiveness.

The issue here is fundamental: Can a nation accept, as immigrants, people whose principles are diametrically opposed to their own? That question has a wide variety of applications around the world today. But in America, we’ve been able to avoid it to a large extent because our motto, e pluribus unum, presupposes a limited government, which allows for pluralism in many areas. Because government is a monopoly, however, the more of life it takes over, the more it will impose its single standard in everything from retirement to health care, education, economic affairs, and, as in many countries, even news and religion—and we see how pluralism fares there. But this issue goes well beyond the acceptance of immigrants. Lincoln was right when he said that a house divided cannot stand. In America today we are deeply divided, mainly over the size and scope of government. One side subscribes to the limited government views of the Founders, the other does not. And so our $20 trillion debt and our vastly greater unfunded liabilities do not get addressed. This cannot go on.

Now to the leftover Q5 questions: What did I want to accomplish when I joined the Reagan administration? Like many other movement people, including many in the Republican Party who also served in the administration, I saw Reagan’s victory as the triumph of a long uphill struggle against the forces of Progressivism that had dominated the 20th century. But like all new political appointees, especially movement people, I came soon to see that turning electoral victory into policy change is yet another uphill struggle, and an exceedingly difficult one. The law degree wasn’t the issue. The battleship of state was, for it turns very slowly, when it turns at all.

However determined one may be to leave one’s mark, the institutional inertia in Washington is huge. That’s partly built into the Constitution, but the larger part has been built on top of the Constitution over the 20th century, unconstitutionally. And that’s the part on which I’ve focused most of my work since I left the administration.

Q. In 1989, a year after you left the Justice Department with a brand-new law degree from GWU, you signed on with Cato to found the legendary Center for Constitutional Studies. What made you decide Cato was the right home for this project? Whom did you know there? How was it funded? Who were your first hires? Was CCS an instant hit, or did it take some time for you to find your footing after eight years in government?

A. For a fuller answer, see my essay “On the Origins of the Modern Libertarian Legal Movement,” 16 Chap. L. Rev. 255 (2013) (the introduction to the review’s symposium on the movement) and Damon Root’s excellent Overruled: The Long War for Control of the Supreme Court (2014). Cato was not simply the right but the only home for this project, the aim of which was to work toward restoring the Madisonian vision of liberty through constitutionally limited government, secured ultimately by courts serving as “an impenetrable bulwark against every assumption of power in the Legislative or Executive.” To put that project in context, here’s a brief and very incomplete history of the run-up to the center’s creation in early 1989.

In the mid- to late-’70s, University of San Diego Professor Bernard Siegan and I were almost the only ones urging the Court to chart a principled course between the dominant liberals’ judicial activism and the emerging conservatives’ judicial restraint, especially regarding economic liberties. That view was central to an IHS/Liberty Fund philosophy and law conference on the theory of rights that I put together in 1979, the proceedings from which appeared that year in a symposium issue of the Georgia Law Review.

In 1981 I and an aide to Charles Koch helped put together a philosophy of law program for the spring meetings of the Philadelphia Society; my speech from that program, focusing on this view of the judicial role, was then published in ISI’s Intercollegiate Review. And in other articles, speeches, and conferences before and after I continued to press the argument. In fact, in 1983, on a paper napkin at lunch with Cato president Ed Crane and Cato Journal editor Jim Dorn, I sketched out the program for an all-day Cato conference on economic liberties and the judiciary, which Cato ran the next year.

Bernie and I spoke at the conference, but the lead-off debate between then-Judge Antonin Scalia and Richard Epstein was the scintillating introduction of these ideas to Reagan’s Washington, and so we were off and running at last in the nation’s capital. Those proceedings were published in 1985 in the Cato Journal and again two years later in a book with a foreword by Judge Alex Kozinski. In 1986, Cato published Steven Macedo’s The New Right v. the Constitution. A year later, when I was at State, I gave one of Cato’s “distinguished lectures” on “Human Rights and Politico-Economic Systems.” And that same year the Federalist Society, still young, held a George Mason University Law School conference on “Constitutional Protections of Economic Liberty” at which I spoke. Finally, that 1987 ABA speech I mentioned at A5 (Bernie spoke in that program too) was published in 1988 in The Freeman, which then submitted it to the Bicentennial Commission, and that led to the commission’s Benjamin Franklin Award, presented to me in 1989 by the commission’s president, former Chief Justice Warren Burger. Again, that is just a brief summary of this growing movement.

But even though this “third way” between or, perhaps better, “above” Brennan “activism” and Borkian “restraint” had been building for nearly a decade and a half, the movement was still hit-and-miss: It lacked an institutional center to focus, refine, and promote the vision more broadly and systematically. You ask why it was located at Cato: Because Cato, as just outlined, had been receptive to this basically libertarian approach to the role of the courts under the Constitution. Liberal think tanks generally supported judicial activism; conservative think tanks like the Heritage Foundation and the American Enterprise Institute, the home then of Judge Bork, were in the judicial restraint camp at that time.

So in early January, 1988, with the Reagan administration’s end in the offing, I met over lunch with Cato’s executive vice president, David Boaz, and outlined what I had in mind. Then in September, I discussed my ideas more fully with Ed Crane. He asked me to draft a proposal. I did—an 18-page, single-spaced plan for a center for constitutional studies and another 18-page draft listing 60-some proposed studies. Ed took the proposal to Cato’s board. I joined Cato in mid-October. And after securing initial funding from board members, other individuals, and foundations, we announced the creation of the center early in 1989.

In truth, the “center” has always remained small. The first year it was just me and a summer intern—that first summer, University of Pittsburgh law student Scott Bullock, now the president of one of our sister organizations in the movement, the Institute for Justice. In the second year I hired Tim Lynch, fresh out of Marquette Law School, who would go on to create and head up Cato’s Project on Criminal Justice. And to this day we remain relatively small: my staff includes only three senior fellows, an administrative/research assistant, four one-year legal associates just out of law school, and a couple of seasonal interns.

We are structured as we are because our main function, in addition to our own work, is to help “orchestrate” the work of others by commissioning and promoting that work. Thus, we’ve published books, monographs, and op-eds of our own and outside scholars; held forums and conferences; done radio and TV; testified in Congress and in state forums; taught courses; given speeches around the world, but especially at law schools; developed a highly regarded amicus brief program, directed by my right-hand man for nearly a decade, Ilya Shapiro; and to cover the Court’s October ’01 Term, we published our first Cato Supreme Court Review, released at our first Constitution Day Symposium in September, 2002, both of which saw their 15th anniversary last September. As SCOTUSblog founder Tom Goldstein wrote of the review, “Unquestionably, the definitive volume on the Supreme Court’s term.” And we release it just two and a half months after the term ends!

Q. During the ’90s, you and CCS were at the forefront of the fight against civil asset forfeiture. In many ways that body of law—which then as now a) authorizes on-the-spot seizures of people’s property without charging them with a crime and b) puts the property itself on trial while relegating the owner to the status of a third-party claimant—was even worse back then than the post-CAFRA mess that bedevils us today.

You were one of a very few people not just to speak out publicly and repeatedly against the menace of forfeiture law, but to attack its philosophical underpinnings. In 1996 you testified before Henry Hyde’s civil asset forfeiture reform commission, where you argued that his reform bill, H.R. 1916, didn’t go far enough because it didn’t abolish the “personification doctrine”—the absurd, literally medieval idea the government uses to justify accusing inanimate objects of wrongdoing.

So CAFRA, the government’s finished reform product, must’ve been something of a disappointment. Though it got rid of some of the worst inequities in forfeiture law, the personification doctrine remained in place. For that matter, most of Hyde’s original good intentions were watered down by Chuck Schumer, Eric Holder and our new AG, Jeff Sessions, and replaced with new, law-enforcement-friendly provisions.

What lessons can those of us who oppose civil asset forfeiture today learn from the battles you fought two decades ago? Are we to take heart from the partial success of those reform efforts? And is there any hope that things will improve in the near future?

A. Thank you for noticing that work—and for appreciating the frustration that those of us who were in those trenches must feel. You’ve captured well the issues and the struggle. Rep. Hyde was a great man, and we were honored to work closely with him to get such reform as we were able to get. But he and we were up against the law enforcement community and, more fundamentally, the endless and mindless war on drugs, which animates our modern civil asset forfeiture law.

So what lessons are to be taken from our previous efforts? You take what you can and live to fight another day. And the fight does continue. Our friends at the aforementioned Institute for Justice are today leading it on the ground, with studies and a well-developed litigation strategy, even as we continue to develop the philosophical foundations for that effort that you’ve noted. I take hope, in particular, from the successes of the marijuana reform movement at the state level, which are only growing. And I look forward to the day when we finally learn the lessons of Prohibition and start treating drugs like we treat alcohol and tobacco. But if history is to be our guide, it will be a slow slog because the perverse incentives built into modern forfeiture law are against us, so that is probably what we should direct our attention toward reforming first.

Q. You’ve built CCS into an organization that produces some of the best amicus briefs, legal scholarship, and commentary out there. (It’s certainly very successful—the Supreme Court keeps siding with you!) How’d you do it? How do you select the cases for which you submit briefs? What do you do to find scholars and scholarship worth supporting, and what form does that support take?

From the outside looking in, Cato doesn’t seem to impose particularly rigid ideological guidelines, and the think tank as a whole produces commentary on any number of issues. How important is it for you, as director of CCS, to keep the intellectuals and iconoclasts pulling in the same direction?

For that matter, there’s a stereotype, however unfair, that some libertarians don’t play well with people who don’t share their views in every particular. Is Cato’s flexibility and openness the key to its success in shaping public policy? Is that a model other groups could replicate?

A. Yes, I’m proud of what the center has accomplished. I believe it’s fair to say that over our 28 years we’ve played a significant role in changing the debate, especially regarding the fundamental concern that has animated everything else—to encourage judges to be more engaged than many conservatives believed proper, and to locate the authority for that engagement in the Constitution itself, properly understood. It is fair to say, that is, that among conservatives, and even among not a few liberals, the debate today is much different than it was three and four decades ago: it has swung in our direction, not entirely, but noticeably.

How did we and others working with us do it? By doing it together, as just said. But first you have to have a vision of what you stand for and where you’re going. And that starts, in this case, with plumbing and understanding the philosophical foundations of the Constitution—as informed by the Declaration of Independence. That’s precisely where earlier conservatives fell short. Reacting to what they perceived, often rightly, as liberal judicial activism, and informed by books like Alexander Bickel’s The Least Dangerous Branch, Bork, Scalia, and other conservatives disparaged the Declaration as “philosophizing” for fear that repairing to it would encourage judicial mischief. Yet without that philosophical foundation, judges are adrift when the constitutional text is insufficient, at which point they are encouraged to defer to the political branches, the very thing the Constitution was written to guard against. Ironically, “restraint” becomes thus another form of “activism.”

Thus informed with this vision, we have sought like-minded souls—in the academy, on the bench, in other think tanks and organizations, among litigators, and elsewhere—and we have worked closely with them, commissioning writings, offering them forums in which to speak, and promoting their work. We have worked especially with the ever-growing Federalist Society, which for 35 years has served as a welcoming forum for discussing legal principles and ideas. And when we launched our amicus program, we looked for cases that might secure the principles that animated us and, when not written in-house, for lawyers who might best inform the Court in ways the litigants themselves might not.

Your questions regarding how Cato is seen from the outside and how it is governed internally regarding “ideological guidelines” are, shall we say, interesting. Let me say just this: It is true, as you surmise, that there are libertarians who don’t play well with people who don’t share their views in every particular—or, as I have been heard to say, many libertarians belong to congregations of one. But when you’re running an organization like Cato or working there you have to address that problem in a prudent way, which means that only general guidelines will do.

We do have our differences within the building, to be sure, and on many issues: On foreign policy, in particular, there are differences among libertarians, as is well known, and on legal issues as well, such as intellectual property and immigration. Libertarians often have trouble with second-best solutions; yet once you come out of a pristine Lockean state of nature you’re in a second best world, so you have to deal with the real world or you’ll end up talking only to each other, if that!

But we’re not anarchists—at least most of us aren’t. And we’re not the Libertarian Party either. My taste is for a broader, more ecumenical libertarianism; but at the same time we can’t water the “brand” down to the point that it stands for little. A related issue is quality, and on that, as director of the center, I’m a stickler. We’ve worked hard to establish the center’s reputation. I don’t want to see it compromised either by work we do or by the work of others at Cato making legal arguments that redound to our detriment.

Q. You’ve been a law prof, senior appointee at the Justice Department, think tank leader, political and legal philosopher, a horse-race gambler, cab driver and a fur trapper. Really, the only thing still missing is a judgeship. How about it? Aren’t you eager to put that lifetime of knowledge to the test and dispense Solomonic justice? Alternatively, what about standing in the well and representing a client? Running for public office? Or are you content to look back over a lifetime of achievement and keep fighting the good fight at Cato? What’s in your future?

A. No, no, and no! Goodness, late next November I’ll be 75! It’s been a great run, and I’ve been very fortunate, first in having the family I have, and second in having the career I’ve had. Obviously, I didn’t plan it! Rather, to quote Tammany Hall’s George Washington Plunkitt, it’s simply that “I seen me opportunities, an I took ’em.”

The biggest project before me at the moment—and it’s a big one—is to finish the book I’m now part way through writing, tentatively titled, Recovering the American Vision: Rights, Powers, and the Constitution. As that title may suggest, it’s my doctoral dissertation, made accessible for a wider audience, and informed by experience, especially by years in the law. That should be quite enough as I sail into my dotage, but I’m not there yet! Thanks for the opportunity to speak to your audience.

Cross: Patrick Frey, Prosecutor By Day and Patterico Online

February 16, 2017 (Fault Lines) — Scott Greenfield and David Meyer-Lindenberg cross Los Angeles County Deputy District Attorney Patrick Frey, renowned online for Patterico’s Pontifications.

Q. You spent your undergrad days in beautiful Ithaca, NY, learning to drink heavily and attending class when it was absolutely unavoidable. What was your major? What made you choose Cornell? Did you travel far from home for your fancy Ivy League education, or was central New York always your kind of place? Back then, was the plan already to become a lawyer, or did you still harbor greater ambitions?

A. As with any decision, there was a mix of factors at work. One of them can be summed up in a single word: overreaction. I grew up in Fort Worth, Texas, which is known to be pretty hot in the summertime. Money was tight, and the rule in our household was: no air conditioning unless the temperature reaches 100 degrees. There was a telephone number you could call for the current time and temperature, and when it got hot, we kids would call that number every five minutes or so. When the automated voice said 100 degrees, we ran to our parents to tell them. At night we would turn on the attic fan, but it would sometimes just pull in hot air, as the temperature could easily still be in the 90s at bedtime. At such times, I would go bed with a washcloth, recently soaked in cold water, draped across my forehead. Are you feeling sorry for me yet?

So, I overreacted. I was determined to go somewhere cold. Cornell fit the bill. Also, it was the best school I applied to — kind of a “we’ll apply to this one on a lark” sort of thing — and I got in.

I had a double major in music and English with a creative writing concentration. I had no plan, really. I just took classes I enjoyed.

Q. From Cornell, you went to UT for law school. Ithaca to Austin is a pretty big jump, and not just because of the weather. Why’d you go? Were you already sure crimlaw was what you wanted to do? At that point in time, would you have considered defense work?

You were a gifted musician, and you wrote a number of songs in the early 90s that were recently covered by indie acts. If you’d played your cards right, could we be writing about Patterico the rock star? (And can you link us to a decent performance of one of your songs?)

A. To be honest, I went to law school for lack of anything better to do. I also thought about attending graduate school for music or journalism, and went so far as to apply to (and get accepted to) the Medill School of Journalism at Northwestern and the University of Missouri School of Journalism. Ultimately I went to law school because it seemed to offer the broadest array of options, and I didn’t want to get boxed in.

That said, it had always been in the back of my head that I might want to be a lawyer. As a kid, I wanted to be Perry Mason. He always caught the bad guy! When I grew up, I realized it was actually the prosecutors who put the bad guys away. When I learned about RICO in law school, I had the idea that I wanted to be an AUSA who used RICO laws against gang members.

The reality is better than I imagined: I became a county prosecutor who uses the STEP act (California’s analogue to RICO) to put away murderous gang members. I think my cases are at least as interesting and significant as the federal RICO cases I have seen — probably more so, as I’m prosecuting murders, whereas the AUSAs tend to focus on drug and weapons trafficking.

I never really considered doing defense work, but I did take part in a criminal defense clinic at the University of Texas, in which we represented real misdemeanor clients in court under the supervision of local criminal defense attorneys. It gave me insight into some of the challenges that criminal defense attorneys face, such as dealing with difficult clients, unreceptive judges, and inflexible prosecutors. It also taught me that many people charged with criminal offenses — especially misdemeanors — are decent people who don’t have evil hearts, but are just fundamentally irresponsible, often because of involvement with drugs and/or alcohol.

Thanks for asking about my music. I don’t know if I would describe myself as “gifted,” though. “Rock star” would definitely be my profession of choice if I had the talent — but I don’t. I wrote some songs in the early 1990s that I performed very badly, but that I always thought could sound great if done by a professional.

Through the magic of the Web, I have been able to persuade some of my favorite artists to cover some of my songs. Some of these songs (including some of my original wretched performances) are on my Soundcloud page. If you listened to just one, I’d recommend Wrong Side of the Road — a song about the dangerous consequences of going against the grain in life.

Q. After law school, you went to California, passed the bar and signed on with the Los Angeles County District Attorney’s office. What made you decide to apply for a job on the left coast? Did they make you an offer you couldn’t refuse? Or is it just that you’d gotten used to traveling 1500 miles every three or four years? Did you work any other jobs in between law school and becoming a fixture in LA law enforcement circles, or was it straight to DAhood for you? And once you’d arrived, what did they make you do? Did they try to park you behind a desk and set you to writing briefs all day, like certain other prosecutors we’ve Crossed, or was it straight to standing in the well for Patterico?

A. I always had it in my head that I’d like to live in California. I wanted to live in a big, exciting city with access to a beach. I got a litigation job with Shearman & Sterling — a huge international law firm based in Manhattan that had a small office in Los Angeles (which has since been closed). I worked with some great people, but it wasn’t for me.

Once I arrived, my best friend there said I should apply for a judicial clerkship. I figured it was too late, but he said judges were starting to take clerks who had some work experience. I ended up landing a job with the Honorable William D. Keller of the Central District of California in Los Angeles. In many ways it was the greatest job of my life (something a lot of clerks say): a never-ending stream of fascinating and important issues crossed my desk. I loved it. I returned to Shearman for a year, but my wife (who was already a Deputy D.A.) seemed to be having a lot more fun in her job than I was having in mine. So I took a huge pay cut and came to the D.A., four years into my legal career.

Funny you should ask about writing briefs. Just 2 ½ years into my D.A. career, the office was experiencing a huge influx of habeas writs due to the Rampart scandal. The unit handling those writs had to be dramatically expanded, and I was one of a handful of people involuntarily tapped for that. I almost quit — I had joined the office to do felony trials, not to receive a third of the money I’d been making to do the same desk-bound writing work.

When I joined the D.A.’s office, I had offers in hand from other Biglaw firms — your O’Melvenys, Irells, and Arnold & Porters — and had turned them down to be a trial attorney. So I was pretty angry that I was being pigeonholed in a writing job right out of the gate in the D.A.’s office. But in the long run, it all worked out. I have been doing serious gang cases for over a decade, and I’m glad I toughed it out.

Q. Obligatory first trial question. When was it? Whom were you prosecuting, and whom were you up against? Going in, did you feel you were adequately prepared, maybe even that you had the win in the bag? And were you right? Looking back now, with twenty years‘ worth of practice to your name, what, if anything, do you think you should’ve done differently?

A. Great question. My first trial was a misdemeanor. The defendant was charged with a “terrorist threat.” (That’s a misleading label that does not require any connection to terrorism, but merely represents a “true threat” under First Amendment law. The name of the statute was changed to “criminal threats” after defense attorneys routinely stood up in court and said, apropos of nothing in the jury instructions: “My client’s not a terrorist!”)

The defendant in my case had threatened to kill the victim, his ex-girlfriend. She called the police, and while police were taking the report, the defendant called back to threaten her some more. She handed the phone to the officer, who heard the defendant threatening to kill her. At trial, the victim could not be found. A California Evidence Code provision allowed her statements to police to be presented to the jury despite her absence. (This was 1997, before Crawford v. Washington made clear that the use of such out-of-court testimonial statements violates the Confrontation Clause.) Also, I obviously had the testimony of the police officer.

I started the trial the Friday of my first week in the job. I prepared for it very carefully. The defense attorney — a smart, talented public defender — argued that the jury couldn’t possibly know whether the victim was scared by the threat (a necessary element), since they had not been able to see her testify and assess what type of person she was. I thought that was a silly argument. Today, having met a wide range of people, I’d be less skeptical of that sort of argument.

Our office in Huntington Park was located a five-minute drive from the courthouse. I was in my office when I got a call saying the jury had a verdict, and that the grumpy old judge wasn’t going to wait for me to get there. I quickly drove down to the courthouse in the rain and caught the jury walking out the door of the courtroom. They told me they just had found the defendant guilty. I was very excited.

For my next trial, a car burglary case, one of the more senior DAs came to watch my opening statement and my direct of the only eyewitness. I concluded the direct and we broke for lunch. The more senior DA said to me: “That was a great opening statement. You didn’t read from notes and you had a clear command of the facts. Great job. Just one question . . . are you going to have your witness identify the defendant?”

I was appalled. After lunch I asked the judge if I could reopen my direct examination to ask one question (“Do you see the person who broke into the car here in court today?”) The judge grumbled about it. He said everyone knew the witness was talking about the defendant, but he let me do it. I love to tell that story — and other stories about my young incompetence — to young lawyers. I think it’s important for them to understand that everybody starts out feeling uncertain and making rookie mistakes. I lost that case, by the way.

Q. In 2003, after ten years practicing law in LA, you started Patterico’s Pontifications, your blog, as a way to give voice to your conservative opinions in a way that didn’t involve the mass sending of emails. You‘ve spent your whole adult life in extremely liberal towns, something that does raise the question of where those views came from. Are they the product of where you grew up? How you were raised? Is it just that you’re a freethinker?

Before you began, you made the decision to blog anonymously and keep your professional and online lives separate. Even now, fifteen years later when your identity’s no longer as much of a secret, you’ve chosen to stick with your nom de plume and the Simpsons avatar. How come? Brand loyalty? Force of habit? Or do you still have that instinct to insulate yourself? In retrospect, was the decision to grab a keyboard and say what was on your mind worth it?

A. Keep in mind that I spent my formative years in Fort Worth, Texas, which is hardly a hotbed of leftism. I was raised by Republican parents. I do consider myself an independent thinker, though. College opened my mind and caused me to examine my beliefs. Most of them survived the test, but not all. I read James Baldwin and Ralph Ellison and learned about the reality of our history of racial discrimination. I met homosexuals, whom I had never met in Fort Worth, and learned that they are people too. That said, I have always been, fundamentally, a “conservative” — albeit one with some views considered left-leaning or libertarian, such as acceptance of gay marriage, or concern for the environment. I believe in the Constitution, the free market, liberty, and limited government.

As for secrecy, I always knew that it was likely my identity would be discovered, so I always blogged as if my name were known. I decided to go public in May 2004 when a journalist named Mark Glaser asked if he could use my name in a piece he was doing in the Columbia Journalism Review on the impact of bloggers on journalism. The L.A. Times had published a piece about Antonin Scalia’s speech to an organization with litigation pending before the Court. I wrote a post noting that Justice Ginsburg had done the same thing, and asked the editors why Scalia’s speech mattered and Justice Ginsburg’s didn’t. To my surprise, the Times responded by doing a front-page story on Justice Ginsburg’s speech, and it became a nationwide story. Glaser wanted to write about all that and wanted to use my name. I told him it was OK. I didn’t want to be in a position where people could learn my identity (which I assumed would not be hard to do) and use that information to threaten me.

I had my picture up on the blog for a few weeks or months early on. The Simpsons avatar is a cartoon drawn from that old picture. I look very different now — more pounds and more gray hairs. I’m wary of having my image on the Internet, since there are still some very obsessive personalities out there who don’t like me — and I have prosecuted and am still prosecuting gang members, including Mexican Mafia figures, for murder. When I prosecuted a member of the Mexican Mafia for murder in 2012, a local news station covered the trial in nightly news reports. I asked the reporter to make sure the camera was always pointed away from me, and he understood and obliged.

Blogging has brought both good and bad. I would say that, despite the SWATting and lawsuits and other nuisances, it’s mostly been a good thing, on balance. It’s brought me into contact with many, many people I never would have met otherwise — and many of those people are important in my life. In the end, it’s part of who I am. It’s hard to imagine myself without it.

Q. Being forced to self-censor at the workplace is nothing new. When patterico.com started out, it was in part a way for you to express tentative support for the Iraq War, something that probably wouldn’t have won you many friends among your peers in LA. But from the start, you also took a classic hardline stance on crime and punishment, including such standard fare as support for the death penalty.

Are liberal prosecutors as unresponsive to law-and-order rhetoric as your average liberal? Is there a subset of your views you could discuss at the water cooler, without fear of professional or social reprisal?

While the Left thinks of the ACLU, Bill Kunstler and Ron Kuby as heroes, the likes of Robert Morgenthau rarely get a mention. In general, is there any tension between left-wing attitudes and a willingness to prosecute sex or gang crimes? Are there secret Pattericos out there, people who agree with you but aren’t as willing to speak up? And now that your coworkers know who you are, do you find you’ve changed any minds?

A. There are definitely left-leaning prosecutors. I went to a retirement party last night for a good friend who is a solid lefty, and one of his other left-leaning friends addressed the crowd by saying that he heard Trump’s library just burned down. Both of Trump’s books were lost, he said, and Trump hadn’t even finished coloring one of them yet! Plenty of people laughed, and I was one of them.

So yeah, there are left-leaning or progressive prosecutors, to be sure. (I don’t like using the word “liberal” to refer to progressives or leftists. The true meaning of the word “liberal” is a lover of freedom, in the style of a Milton Friedman or a Friedrich Hayek.) But most of those are still law-and-order types. It’s a misconception that someone who believes in progressive politics necessarily wants to open the doors to the prisons, although it’s certainly true of a lot of progressives in public life here in California. I think our office has a healthy mixture of political perspectives, but most everyone would be considered supporters of law and order. That’s why they have the job.

Most of my political discussions at the office are with conservatives who are aware of my blog and like to hear my opinion on the latest Trump brouhaha or what have you. I also sometimes discuss politics with left-leaning people, and (unlike the way it happens on the Internet) we’re generally able to appreciate each other’s point of view and disagree in a respectful manner. I don’t have any opinions that I feel I have to hide. Like anything else in life, you choose whom to talk to, and how open you want to be with this person as opposed to that one. But there is no belief of mine that I would be ashamed to have people learn about — which is a good thing, since I am constantly spouting opinions in public under an easily penetrated pseudonym!

I’m a little embarrassed today at my support for the Iraq War, since I now view that war as a mistake. That said, based on what we (thought we) knew at the time, it seemed like the right decision. I was then, and remain today, a supporter of the death penalty, and have a defendant on Death Row in California. It doesn’t seem that he or any other Death Row inmate in California will ever be executed, but I assure you that he richly deserves it.

Do I think I have changed minds? For the most part, no. Does anyone ever succeed in changing another adult’s views on a political topic? Stranger things have happened, I guess. There’s a YouTube video you may have seen where a guy on a motorcycle gets into a crash and ends up flipping in mid-air and landing on his feet atop the roof of a moving car. If that can happen, I guess someone can be persuaded to change their mind on a political topic. But I’m guessing it’s a pretty rare event.

Q. You parlayed your skill and experience with writing into commentary gigs at various websites. (You’ve been published in the LA Times, your blog posts have been covered in the New York Times and Washington Post, and you used to write at Breitbart before it went alt-right.) These days, apart from the blog, you’re best known as a regular at RedState.

Whether at RedState or Patterico’s Pontifications, you haven’t been one to express much support for our current President. You opposed his candidacy, and even deregistered from the Republican Party after he became the GOP’s torchbearer in the general election. By lining up behind Trump, have Republicans betrayed their limited-government ideals? Now that he’s been in office for a few weeks, has he proven as bad as you feared? Is he even worse?

What about the current immigration debacle? Is it the constitutional travesty left-leaning lawprofs claim it is? Do you take as dim a view of plenary power as they do? Was it, perhaps, unwise of Trump to deny re-entry to lawful permanent residents? In the age of Trump, can we expect the same, ahem, scrupulous level of commitment to the Constitution we were used to from Obama?

A. I do not think that support for Trump, by itself, reflects a betrayal of limited-government principles. Plenty of my readers, like me, supported another candidate in the primary, and don’t care for Trump. Many of those people voted for Trump just because he is not Hillary Clinton. That was not my decision, but I understand it and can’t criticize that point of view.

However, on May 3, 2016, the day Ted Cruz bowed out of the race, I instantly saw that the Republican party was going to start conforming itself to Trump’s vision more than I knew I would be comfortable with. Republicans were going to support big government initiatives, worry less about state sovereignty and the Constitution, and defend any number of outrageous Trumpy statements and positions. I wanted no part of it, and I wanted to disassociate myself from a Trump-led Republican Party in a very public and clear way.

My abandonment of the GOP, and my personal distaste for Trump, have been very disturbing to the part of my readership that is more partisan and less concerned with limited government principles. It’s difficult to watch some long-time readers view me as a “leftist” and treat me contemptuously, as if I were the enemy, simply because I can’t stand the demagogue that has seized control of the Republican party. But I don’t change my views to suit my readers. I suspect some other bloggers have — especially those who are dependent on their blogs for income. In that sense, it’s nice to have a day job. It makes it easier to say what I really think.

I despise Donald Trump as a person. I liked that state senator’s description of Trump as a “loofa-faced shitgibbon.” He’s obviously a vindictive, nasty, narcissistic, dishonest clown who has probably never read a book in his life. He is the best argument for the irrationality of the American voter we have ever seen. That said, I wasn’t looking forward to Hillary Clinton being in office, and I think Trump has done and will do some good things. His selection of Neil Gorsuch to replace Justice Scalia was brilliant.

You asked about immigration. I’m very sympathetic to Trump’s concerns over an influx of refugees from war-torn Muslim nations. I don’t think that accepting those refugees in large numbers with insufficient screening has worked out very well for Germany. The Nordic countries have seen their very successful cultures threatened by an inordinate number of immigrants with a murderous ideology and a desire to inflict Sharia law on everyone. All that being said, I am a fierce critic of runaway executive power, and I think Trump should be working with Congress on this issue. It’s also beyond debate that Trump’s rollout of this particular executive order was hasty, slipshod, and illegal as applied to green card holders and other visa holders.

Q. As Patterico’s Pontifications grew and you attracted a bigger following, you also became a target for nutjobs. In 2011, you were infamously doxxed and then SWATted by a lunatic who may have been mad at you for your role in breaking aspects of the story of the first Anthony Weiner sexting scandal. Back then, SWATting – calling in a fake emergency to sic a SWAT team on someone, an extremely dangerous crime that can easily get the victim killed – was a fairly new phenomenon. Did law enforcement take what happened seriously, or did they treat it as a harmless prank? Were they sufficiently responsive to your concerns?

Nor were you the only right-wing blogger covering Weiner to be targeted. Was any headway ever made in those cases? And did the experience do anything to dissuade you from blogging? After all, it’s not exactly a financially rewarding experience, giving rise to the question of whether it’s worth putting your well-being at risk. Did you consider packing it in? Or were you determined not to let the nutjobs silence you?

A. I’m going to remain mostly mute on this, because I am still (still!) facing a lawsuit from convicted bomber and perjurer Brett Kimberlin about it. Suffice it to say that it’s not clear the SWATting was connected to the Weiner story; it could be merely that the SWATter wanted it to be perceived that way.

I never considered packing it in. If anything, it reinvigorated my desire to write. It seemed to me important to show that I could not be silenced.

No headway was ever made in the cases. I was dissatisfied with the efforts of law enforcement. Without going into detail, the FBI agents handling my case did not give me the impression that my case was a priority. They didn’t treat it like a harmless prank, but they also didn’t seem to be going out of their way to solve it either.

There has been one bright spot in all this. Several talented lawyers have stepped forward and handled the lawsuits pro bono. Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog and Bruce Godfrey of Jezic & Moyse LLC have represented me in the lawsuit brought by Brett Kimberlin. That same Ron Coleman represented me in the Nadia Naffe lawsuit along with [Fault Lines contributor] Kenneth P. White of Brown White & Osborn LLP and the essential Popehat blog. I am forever indebted to these gentlemen for their help, and encourage your readers to consider them for paying jobs!

Q. Then there was that ludicrous SLAPP suit you were hit with when a woman by the name of Nadia Naffe decided that, by God, she wasn’t going to stand for you criticizing her on the internet. You, Fault Lines contributor Ken White and Ron Coleman brought her vexatious suit to a very satisfactory conclusion in 2013, when a federal judge dismissed everything she tried to use to silence you.

What is it about legal blogs that makes them such targets for crazies? What was it like to be at the center of one of Popehat’s patented pro- free speech, anti- censorious bullying whirlwinds? (Did it come with all the snark and inventive profanity you’d expect?) And in the years since, has there been an opportunity for you to use your platform to help other blawggers under attack?

A. Yes, we reached a settlement in which I paid her nothing and retracted nothing. As I just said, and can never say enough, I will forever be grateful to Ken White and Ron Coleman for their work on that case. Ultimately, the entire case revolved around the fact that, in looking into her background as a critic of James O’Keefe, I came across a deposition of hers on PACER that I thought reflected poorly on her credibility.

I uploaded it to my own site, and then someone informed me that the lawyers who had uploaded the document to PACER had not redacted her Social Security number as they were supposed to have done. I immediately pulled down the transcript, which had been up on my site for barely over an hour. Later that day, I uploaded a redacted version. But that became the basis of an entire lawsuit claiming I had doxxed her as retaliation for her criticism of me, etc. etc. It was ridiculous, but it took a lot of time and work to make it go away.

I have tried to publicize other cases where there are frivolous lawsuits — usually ones I first read about on Popehat. It’s not easy to line up such help, though. When Ron Coleman was looking for local counsel in Maryland to help with the Brett Kimberlin litigation, exactly one person stepped forward: the aforementioned Bruce Godfrey. Without him and without Ron, I don’t know where I’d be.

Q. You’ve been a fixture of the blawgosphere for fifteen years, and the mainstream media for almost as long. In that time, a lot has changed. Former mainstays of legal blogging dried up and blew away, the user base isn’t what it was and the collegial atmosphere of days gone by is no more. Meanwhile, conventional media is in a bit of an existential crisis, and the national environment for debate is as coarse as it’s ever been, with relentless, damn-the-facts partisanship the new norm.

What keeps you coming back, day after day, putting out intelligent, knowledgeable political and legal coverage at a time when the hottest New Media projects pump out hot takes by uninformed 23-year-olds? Has the composition of your readership changed, a la the Volokh Conspiracy when it moved to the Washington Post? Is writing still worth it? Do you see yourself doing this for another fifteen years? Now that Patterico is an established, legitimate voice on the political Right, what do you plan to do with your soapbox? What’s in your future?

A. Thanks for the kind words. It does seem as though the atmosphere has changed, and of course I have changed, as all humans do. I think it’s common for people to look back on the past as a glorious time of non-partisanship, and to some extent our current view of politics suffers from the misconception that the old days were better than they really were.

And yet…something does seem to have changed, doesn’t it? I find myself increasingly irritated by silly partisan arguments coming from “my” side of the aisle. I don’t know if it’s because my fellow travelers are becoming more partisan, or that I am personally becoming more irritated with stupid partisan arguments. I suspect it’s a little of both.

Has the composition of my readership changed? Good question. I think the readership at my personal blog has declined a bit. It’s not uncommon for people to stop by solely to declare that I am no longer readable because they don’t like what I say about Donald Trump. On the other hand, my blend of conservative principles and dislike of Trump probably landed me my gig at RedState, where I am reaching a whole new audience with very little extra work. (I cross-post most of my posts at both blogs.) When you add the RedState readers to the mix, I’m probably reaching more people than ever.

What’s in my future? Well, I have begun a couple of new projects in recent months. One is the reanimation of an old blog with a new purpose: civil conversation and debate. At The Jury Talks Back, I cross-post all the posts from my main blog — but there are strict rules for the comment section: no personal attacks, no strawmen, no snide remarks . . . in short, no personal nastiness. The rule is: you speak to other people the same way you would speak if I had invited you to my home and you were sitting in my living room. It’s not as lively as my general comment section, but it has definite advantages and has brought a lot of lurkers out of hiding.

My other project is the Constitutional Vanguard, a group of people who believe in liberty, the free market, and the Constitution. We have a mailing list, a discussion forum, and a secret Facebook page. There are over 900 people in the group and it’s growing all the time. People can sign up for it here.

As the old proverb goes: Man plans, and God laughs. I take it day by day. As long as I still enjoy writing, I’ll continue to do it.

Cross: Caleb Kruckenberg, Helping Others, No Matter Which Side He’s On

February 8, 2017 (Fault Lines) — Scott Greenfield and David Meyer-Lindenberg cross Fault Lines contributor and Senior Associate at Levin & Zeiger, LLP.

Q. You went to the University of Kansas for undergrad. Kansas! What made a dyed-in-the-wool liberal want to study in the evolution-denyin’, criminal-fryin’ middle of the Midwest? Are the stereotypes true? Was it fun, a walk on the wild side? Or were you desperate to get out? You majored in history, but switched to painting midway through your degree. Were you going to be the next Caravaggio? Gauguin? Or Kusama Yayoi? Did you have an inkling you were going to end up as a lawyer?

A. I was born in Dodge City, Kansas, which is famous as the former “Sodom of the West” and the setting for Gunsmoke. By the time I came along it was really just a Wal-Mart and lots and lots of churches.

People who grow up in the rural center of the United States invariably fall into one of two broad categories: People who think climate change is a hoax perpetrated by the gay illuminati in an effort to disarm the populace so that our overlords in the New World Order can enforce Sharia law; or People who desperately want to live anywhere else. I think I was maybe three by the time I realized that I was in the latter category.

I don’t want to unfairly malign my home state too much or make unfair generalizations (primarily because I have a lot of family back there), but at the same time, most Kansans are too polite to say anything back to me so I can probably go even further. Growing up there was a bit like being raised in a cult. There is an appropriate way that everything must be done, but everyone is super nice about it. The food also sucks.

When I went to college, I wanted to get the hell out of Dodge, so to speak, but only made it as far as Lawrence before my money ran out. Probably because I was always an oppositional pain in the ass, everyone I knew always assumed I would become a lawyer. In order to defy that expectation I decided to be an artist instead. I even took it further and decided to make the most unpopular style of art I could think of – workmanlike and technically proficient history paintings. I can’t say I was necessarily very good, but I was very oppositional. So there’s that.

Q. After undergrad, you and your wife emigrated to Philadelphia. Your wife, an art historian, went to Temple for grad school, while you applied and got into the Pennsylvania Academy of Fine Arts. Was the plan to work on your brush technique, or did you mean to sell out and become an academic? Are you ever glad you dodged that fate, given that today’s academics are either petrified of the militant children they teach or enthusiastic participants in the madness?

You stuck it out for exactly a year before you decided the artist’s life wasn’t for you. What was the straw that broke the camel’s back? What did your wife think? Back then, where was Caleb Kruckenberg headed?

A. My wife is another native Kansan who was desperate to escape. So after college, we were both game to flee to anywhere.

We ended up in Philadelphia basically on a whim, as that was the only city where we both were accepted to respective graduate programs.

Our plan was to both be academics. We would be poor and drink crappy red wine and engage in revolutionary politics. I would make deeply unpopular and extremely boring paintings of heroic nudes standing in contrapposto in my spare time while I taught my students the difference between an “H” and “B” pencil.

What no one ever shared with me (or at least no one I respected), is that essentially nobody becomes an academic anymore. The whole generation of bearded abstract expressionists with tenure is being replaced by armies of adjuncts with MFAs who primarily work at Trader Joes. And you have to really want it to make it past all those interviews at Trader Joes.

I eventually got really into the aggressive antagonism of Paul McCarthy (not the Beatle, but “Captain Ballsack”). Once I started down that road, I eventually concluded that the most oppositional thing I could do was to drop out and become a lawyer.

So between my bleak economic future and what I convinced myself was actually a very square sort of rebellion, I fulfilled my legal destiny.

Q. After PAFA, you took a volunteer internship with the Philly DA’s office. Why law? Why crimlaw? And what made you want to join the dark side and throw in with the prosecutors? What did you help them with? It seems they made a good impression, because you applied to law school while you were still working there. Was the plan to become one of them as soon as you passed the bar? Or did all the horrors you saw committed at the DA’s office convince you to join #TheResistance?

A. There is a show on A&E called the “First 48.” It’s a true crime show that follows homicide detectives around for the first 48 hours after a murder as they try to solve the case.

When I left PAFA, I was obsessed with it. My wife was working on her Ph.D., and we didn’t have any kids. So when I wasn’t working at my dumb part-time jobs, I just sat around my apartment in my underwear watching that show.

I think what drew me to that show was a fascination with people doing genuinely important work. There’s very little apparent moral ambiguity in solving murders – it’s an unqualified good and important thing that should be done.

It occurred to me that I could be a participant. While I didn’t necessarily want to be a police officer, I figured prosecution would be a good move. On a whim, I called the DA’s office and asked if they wanted an unpaid intern with a useless college degree. Like all government agencies, they said yes when they heard the word “unpaid” and let me join.

The DA’s office was great. I got assigned to a bureau that handled a lot of violent crimes and I was involved in witness meetings and spent a lot of time in court watching shit go down. It was really exciting, and the prosecutors I worked with were dedicated and genuinely cared about their work. I also fell in love with the culture. Growing up in Kansas I had never thought it possible to hear people in nice clothes say “fuck” all the time while they were at work. It felt like I was helping with important work, and also like I was part of a special club of people who gobbled Tums and barely slept while they held society together.

Q. You went to Temple Law, graduating in 2010. That was one of the toughest markets for baby lawyers in recent memory, and a lot of dreams of six-figure Biglaw salaries were crushed when you and your cohort hit the streets in search of a job. How’d you fare? Was there anything you wanted to do and were denied, or did you make a beeline for the Manhattan DA’s office? Did you disappoint your pals in Philly by not signing on with them? At that point in time, would you have considered defense?

A. During law school I just assumed I would join the Philly DA when I graduated.

I didn’t plan, however, on the economic collapse and the fact that every public agency in Philadelphia, including the DA’s office, would go into a hiring freeze. But they did, and I realized that my economic prospects in Philly were about as good as they had been when I was in art school.

For some reason all the DA’s offices, but none of the public defense organizations, in New York City were hiring. I interviewed with all of them, and was lucky enough to get a job in Manhattan.

From the perspective of someone who came to the law from watching television, this was an ideal placement. I mean, you may or may not be aware, but there has been at least one television show about the Manhattan DA’s office.

Q. As a newly minted Manhattan ADA, you were dispatched to the ever-unpopular Appeals Bureau, where, rumor has it, you had a fistfight with another prosecutor over legendary appeals chief Mark Dwyer’s old chair. Was it actually a fistfight? And did you win? How’d you end up with that assignment? Did you have to be “nudged,” given that most prosecutors prefer standing in the well to writing briefs all day? Or did you volunteer?

A. My rookie class at DANY was something like 100 lawyers. Of those, I would say one genuinely wanted to be placed in the Appeals Bureau. Everyone else was gunning for a trial assignment. Which makes sense, considering I wasn’t the only rookie ADA drawn to service by television.

I had worked for a Pennsylvania Supreme Court Justice during law school, which flagged my resume for a possible appeals spot. During the interview process, ADAs from Appeals kept showing up on my interview panels and asked me questions about preservation and standards of review. Once I got the job offer, the writing was on the wall about where I would end up.

I was officially asked to request an assignment, but I was worried, perhaps unreasonably, that they might pull my job offer if I asked for anything other than Appeals. So I did, and, shockingly, that was where they put me.

In the end it was a really good assignment. I handled more than 100 cases on appeal while I was there, which meant that I basically dissected all of those cases from start to finish. Doing that kind of post-mortem is a great way to understand the legal issues – what works and doesn’t work, and even the mundane process of litigating a case.

I came into DANY at a time of change. Robert Morgenthau retired the year before I joined after about 250 years in the position. The longtime Appeals Bureau chief Mark Dwyer also stepped down to join the bench at about the same time. When I showed up at the office, it was like the whole office was trying to learn how to manage in a totally new world.

Aside from prestige, DANY is remarkable in the shabbiness of its office space. After a few years at the office, ADAs can expect to move up to shared offices, and may even get a few select pieces of furniture that still function as they were originally intended.

One of my greatest triumphs at DANY was capitalizing on the uncertainty in the office in 2010 to acquire Mark Dwyer’s former desk chair. Through a series of elaborate trades, I was able to transition from my original non-reclining, heavily stained and cracked chair to Mark’s decades-old thousand-pound monstrosity. The chair was definitely no more comfortable than anyone else’s, but it was a pure power move to end up with it. I miss it.

Were you one of those appeals prosecutors who mailed it in, change the names around in the same old brief and called it a day? Or did you only put your pen to bespoke work? Were the periodic appearances before the NY Supreme Court’s Appellate Division something you relished, or did you long for the security of your desk?

I hate form briefs. I hate “boilerplate” sections. I hate being told not to “reinvent the wheel.” Because criminal appeals generally involve a few narrow classes of related issues in hundreds of different cases, there is a strong incentive to rely on what has worked before. As a government agency, moreover, the DA’s office wants to have a unified stance on cases and issues, and so leans even more heavily on what has come before.

I butted heads with my superiors all the time about wanting to do things my own way. I convinced myself at the time that it was about doing things better than they had been done before. In hindsight, a lot of that was unqualified egotism.

Regardless, I put a lot into my work at the DA’s office, and I stand behind everything I wrote.

I liked appellate work. (I still do.) But by nature I am a courtroom attorney. I adored oral arguments, and took every opportunity I could to appear before the Appellate Division. Not only was it fun to appear before a panel of five judges, but the courtroom is unbelievable. I have practiced law all over the country and been in lots of courthouses, but nothing compares to the Appellate Division, First Department in opulence.

Q. Prosecutors rarely lose an appeal in New York’s First Judicial Department. What about you? Ever lose one? If yes, did you deserve to lose it? Conversely, did you ever win one you really wish you hadn’t?

Ever been the appellant? If so, how’d you do? And was cleaning up a trial prosecutor’s mess an interesting change of pace?

You were good at your job. (Obviously; we only take the best at Fault Lines.) But be honest: was your success rate due to your mad appellate skillz, or do you think you’d have fared differently if you hadn’t been wearing the white hat?

A. In about 100 appellate cases, I lost 3. For an appellate prosecutor, that’s actually a pretty lousy appellate record. We were supposed to win every case.

One case that I was proud to lose was People v. McGann. This was a case where my office had prosecuted a homeless man for sleeping on the sidewalk. We used a “quality of life” ordinance that was originally meant to stop the scourge of abandoned cars on the streets of New York that Mayor Giuliani dug up and repurposed to criminalize homelessness to arrest the defendant when he refused to go to a homeless shelter. Instead of doing what most people do and simply plead guilty in exchange for an ACD (Adjournment in Contemplation of Dismissal) at his first appearance, the defendant had called bullshit and fought against us all the way. He was right to do that, and I’m glad he won.

The one case that I won that I wish I hadn’t was People v. McCray. Like most states, in New York residential burglary is more serious than non-residential. What makes a building residential is that it has a home or rooming house attached to it. In New York City, basically everything qualifies as a residence, and it is up to individual prosecutors to use their sound discretion to charge residential burglary where appropriate.

This defendant had burglarized Madame Tussaud’s Wax Museum in Times Square, but he had been charged and convicted with residential burglary because the Hilton Hotel sits on top of the same massive building that houses the museum. I defended the case on appeal and the Court of Appeals eventually affirmed that, yes, the museum was a “residence,” no matter how unfair that might seem.

Q. You underwent a radical career change in 2013 when you left the DA’s office to become a New Mexico State public defender. Why’d you hang up your prosecutor spurs? And why New Mexico? You left Manhattan in November; didn’t you worry you were going to miss NYC’s refreshingly brisk winters? Was it difficult for you to break out of the prosecutor’s mindset, switch from putting people behind bars to fighting to keep them free? Other former prosecutors who’ve done what you did report a change in empathy toward criminal defendants. Did you have to do some recalculating, or did you know exactly what you were getting yourself into?

A. While I was originally attracted to prosecution because I wanted to do something important to help people, the reality is that most criminal charges are not about individual redress but maintaining social order. Abstractly, drug crimes have victims, often the defendant himself. But, after a while, it is hard to get motivated about making sure a drug dealer, or user, stays in prison. After three years as a prosecutor, I had had enough and decided to go to defense.

Of course, when you spend years being gung ho about prosecution, it’s hard to convince public defense organizations that you are on their side.

On a whim, I applied for a job at the New Mexico State Public Defender. They paid well and would accept my out-of-state law license, and my wife and I were both sick of New York City. I didn’t really think anything would come of it.

I interviewed on a Thursday, and had a job offer the next day. I put in my notice the following Monday and got out of New York just as the really crappy weather was setting in.

Q. The New Mexico public defender made you a felony trial attorney right off the bat, about as far from appellate work as it’s possible to get. Was that a deliberate decision? You thrived on the work, even though you were suddenly playing for the other team, in a different, especially high-pressure role, and managing a PD’s caseload – over 100 cases at any given time. How’d you do it? And how’d you adjust to the different culture of a PD’s office? The lack of resources, the incredible demands on your time, the stark realities of representing the indigent and underserved? Did you find that judges treated you with suspicion where they used to laugh at your jokes? Ever think to yourself, “I should’ve stayed in 1 Hogan Place?”

A. One of the big selling points for me at the PD’s office is that they agreed to make me a felony trial assistant. I always wanted to try cases and they gave me the chance right away. When I got there on my first day, I had a huge stack of files assigned to me, and my supervisor basically just told me “good luck.”

I loved that job. My first trial was a first-degree murder case that I tried with another lawyer who had also just started at the office. We got a not-guilty verdict and I was absolutely hooked on trial work.

Q. One year into your job with the state of New Mexico, you were poached by the federal public defender. Suddenly, you were no longer facing run-of-the-mill prosecutors backed up by local and state cops, but the feds, with nearly unlimited resources at their disposal and a nasty habit of building their case for years before bringing them to trial. Was it a very different assignment from being a state PD? How do federal public defenders’ offices differ in their approach?

You continued your hot streak at trial, but you also went back to doing appeals. Was it like a homecoming, or did your year of standing in the well leave you feeling like you were warming the bench?

Speaking of which, it’s finally time for the obligatory first trial question. What was your first trial as a federal defender like? Whom were you representing? What were you up against? Going in, did you believe you had the win in the bag? And were you right?

A. The best thing about practicing in a small legal community is that it is easy to quickly build a reputation. I had a few pretty big wins at the PD’s office, and was able to finagle that into a spot with the federal defender after just a year in New Mexico.

Federal practice was a whole different animal though. In state practice you can often win cases just because the police and prosecutors are overwhelmed. Stuff falls through the cracks.

That doesn’t happen in federal court. I once had a client who was caught on video by a drone selling machine guns to the ATF. That’s not a case you can win by attrition.

Still, there are opportunities to fight federal cases – you just have to be enterprising.

One of the most far-reaching victories I’ve ever had, in any setting, was a case that seemed hopeless. I had a client charged with re-entry after removal, which is basically the crime of returning to the U.S. after you’ve been deported. If a person has a criminal history, then he is guaranteed prison time. My client had previously been convicted of a federal drug conspiracy, which was based on his act of carrying a backpack of marijuana into the U.S. from Mexico, for which he had been sentenced to 90 days in jail and deported. He returned again, and this time was looking at several years in prison.

I made a very technical argument that his conspiracy conviction should not be counted as a “drug trafficking offense” under the sentencing guidelines, and he should only face about a year in jail.

I lost at the trial level, but won on appeal, and, in the process, created a circuit split. Maybe most significantly, that decision applies to lots of different parts of the sentencing guidelines, and has potentially saved a very large number of people from having sentencing enhancements applied to them.

As far as trial, my happiest moment came when a jury found one of my clients not guilty after he was arrested with approximately 7 pounds of cocaine hidden in a car he was driving when he came across the border. My client was a young father from Mexico who had been recruited by a family member to buy construction materials in the United States. My client didn’t know that his family member had arranged to have drugs hidden in his vehicle. So-called “blind mules” are actually fairly common at the border, but that doesn’t really stop the government from prosecuting them. Fortunately the jury was able to overcome what might have seemed like the implausibility of the defense, and found him not guilty. Instead of serving a mandatory five-year prison sentence, he went home to his wife and kids.

Q. Last year, shortly before you joined Fault Lines, you went back to Philly to become a senior associate at Levin & Zeiger LLP, where you handle criminal defense (especially post-conviction) work and represent clients in civil-rights actions against the government. How’d you get the offer? What made you decide to take the job? After a lifetime of cashing the taxpayer’s checks, was it a shock to join the private sector, become a working stiff like everyone else? Have you come full circle? Is there anything left of Caleb the prosecutor, or are you fully committed to gunning for the government? When are you going to make partner, anyway? And what comes after that?

Last summer I got a call out of the blue from a lawyer in Philadelphia who I did some work for while I was in law school offering me a job. It was a total surprise. But my wife and I had always wanted to come back to Philly and so we just said yes and I joined Levin & Zeiger, LLP.

Before I joined my current firm I hadn’t given much, if any, real thought to how lawyers in private practice make a living. As a government employee, cases just keep appearing on your desk, and you get paid at the end of the month. The only real thought I put into the mechanics was bitching about how I wasn’t getting paid enough.

Getting butts in the door is, by far, the biggest challenge of private practice. You can be the absolute best lawyer on earth and fail miserably if you can’t convince people to hire you (and then insist that they actually pay you).

I am fortunate in that the partners at my firm hired me because they have too much work to do entirely on their own, but also want nothing more than for me to develop my own practice and get my own clients. It is a very collaborative and mutually beneficial arrangement.

One of the great things about my current practice is that I get to focus on what I want to do, versus what shows up on my desk. I still have a number of appellate cases, but I focus a lot on plaintiffs’-side civil rights cases. Those cases are a return to what got me into the law in the first place.

I wanted to be a prosecutor because I wanted to help people who were victims of crime. In practice, prosecution focuses on what the defendant did, because often the only victim is societal order.

In civil rights cases, the whole focus is on making a victim whole and righting whatever wrong happened to them. This is uniquely satisfying; particularly when my clients are marginalized members of the community who have never really had anyone stick up for them before.

Cross: Tom Mesereau, Defending The Famous And Difficult

February 1, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindberg cross Los Angeles criminal defense lawyer, Thomas Mesereau, who successfully defense of Michael Jackson and won four federal jury trials in a row.

Q. You’re the son of a West Point officer who, after serving as an aide to General Douglas MacArthur, went into the family business, Mama Leone’s. That’s one odd combination, particularly in the 60s, a time of significant upheaval. Were you the crew-cut officer’s kid? The New York City restaurateur’s kid? You were clearly a smart kid, heading off to Cambridge when thw time came to leave the cannoli. Were you all “peace and love” as a youth, or the officer’s son, inured to hard work and high expectations? How did that shape your future plans?

A. In my opinion, we are all a combination of various influences, experiences, and expectations, good and bad.  My life is no exception.  My father grew up relatively poor and was an outstanding athlete and student in high school.  He won a Congressional appointment to the United States Military Academy at West Point, where he was named to All-American football teams.  He was a parachute battalion commander in the Philippines during WWII and the highest ranking member of his West Point class at the conclusion of the War.  Dad and the late football legend, Vince Lombardi, were assistant football coaches together at West Point.  My father could be brilliant, creative, magical, and effective.

My mother’s father, Gene Leone, was a poor Italian immigrant, who grew up in a New York slum, “Hell’s Kitchen.”  His father died in this early thirties and his mother, who barely spoke English, had to raise 4 sons on her own.   She began cooking meals in her home for friends, and it grew into one of the most famous restaurants in the world, “Mama Leone’s.”  In fact, there is a book currently available which lists Mama Leone’s as one of the 10 Restaurants that changed America.

Grandpa was a bona fide genius in his field.  He was a workaholic that reveled in the business.  My father once commented that you couldn’t have a better restauranteur than my grandfather.

I was exposed to the realities of fame and fortune at an early age.  I saw fame and fortune come and go.  I saw the jealous and complicated lives that can result.

I was never going to be as good an athlete as my father, nor could I outshine him in many areas.  The same applied to my relationship with my grandfather.

This caused no small amount of turmoil and confusion within me.  Nevertheless, Dad and Grandpa gave me many gifts that allowed me to forge my own path.

Q. You went to Harvard for undergrad, where you studied government, boxed and played football. What was the plan going in? Did you know you wanted to be a lawyer? Was there a purpose behind it, to save the nation from injustice? After Harvard, and a master’s at London School of Economic, you were off to the left coast for law school. Why San Francisco, a fairly radical place in those days? Did you go to University of California’s Hastings College of Law with the intention of practicing criminal law? How well did a city boy blend into the mellow world of Haight-Ashbury? Was this where you belonged? Did you ever wonder why you didn’t stay closer to home?

A. My pre-college education was turbulent.  Although we lived in an affluent part of Englewood, NJ, my parents sent me to a Catholic grammar school in a less affluent part of town.  My parents were called in to confront my disciplinary indiscretions every year.  Street fights were very common.  I attended 4 high schools in 5 years, and endured numerous suspensions.  Nevertheless, I learned that one can change their life very quickly with determination.

When I was admitted to Harvard, the Director of Admissions sent a personal letter to my parents telling them how impressed he was with me.  I think my parents almost collapsed.  A year before, after my third suspension from a Jesuit high school, they were unsure if the United States Marines would accept me!

I majored in government with a focus in International Relations.  Following college, I worked for a United States Congressman who was on the Board of Directors at the United States Military Academy.  I worked primarily on emergency fuel allocation legislation, which was a response to the Middle East oil embargo of 1973.  I then attended the London School of Economics where I focused my Master’s Degree on International Relations.

In the meantime, my parents had moved to Laguna Beach, CA.  I discovered that I could attend a state law school for $450 a semester.  The head of the legal department at West Point was a great fan of Hastings College of the Law in San Francisco.

I left law school during my first semester to explore the possibility of being a foreign correspondent.  Of course, at this point in my life, I realized that I was somewhat of a loner and a misfit, who liked to see things myself and not always rely on others for my information.  Hastings gave me a 1 year leave of absence.  After interviewing with numerous media outlets, I returned to finish law school.

My father had always recommended that I consider law school, particularly if I wasn’t sure what I wanted to do with my life.  He was “spot on!”  During my last semester, I took a trial practice class.  The professor, a sitting San Francisco Superior Court Judge, told me I had special courtroom talents.

I fell in love with San Francisco the moment I arrived.  Its spectacular beauty, diversity and tolerant air were infectious.  I still get goose bumps when I travel to San Francisco.

Q. After law school, you did a stint writing speeches in Washington, D.C.  What was that about? You then went left again, to work at the Orange County District Attorney’s office. Why prosecute? Was it just the job you got, or did you believe that you were going to save the world one perp at a time? While you weren’t really cut out to put people in jail, were you good at it? Did you appreciate the opportunity to exercise discretion that could help people? And there are, of course, bad dudes out there who deserve prosecution and punishment. Didn’t that make it more palatable?

Now that the Orange County District Attorney’s office is under enormous scrutiny for its handling of jailhouse snitches, Brady and perjury, not to mention the occasional beating of a defense lawyer, is this the same office you worked for? How could this office have gone so very wrong?

A. My first job was with a large national law firm in Washington, DC.  I was an associate in the Public Utility Law section; we prepared and conducted administrative hearings and trials.   I then returned to Sothern California and joined the Orange County District Attorney’s Office.  I thought this would be a good opportunity to gain trial experience.  However, I discovered I was too compassionate and empathetic to some of the individuals we prosecuted.  I was determined to stay one year, and no more.

My first trial left a bad taste.  I was asked to prosecute a young Latina girl for shoplifting.  When she was first arrested, they had to put her on suicide watch. She had a long history of physical, emotional, sexual, and drug abuse.  When brought to the police station, she immediately tried to sniff typewriter fluid.  The case was a “slam dunk” that I thought should be resolved in a way which gave this poor soul treatment.  Instead, I was forced to try it in front of a juvenile court judge.  Following the automatic conviction, my colleagues came to my office to congratulate me and give me “high-fives.”  I was totally disgusted.

There is no one I respect more than a highly ethical, professional prosecutor.  Unfortunately, prosecutors suffer from the same human infirmities and weaknesses that others do.  They need constant challenges to remind them that we are a nation of laws, not just privileged individuals.  I am much more comfortable challenging authorities to ensure that those perceived as weak or less fortunate are not abused.

I am not involved in the current problems facing the Orange County’s DA’s office.  Nevertheless, I am glad that certain courageous judges and individuals are challenging its apparent indiscretions.

Q. You weren’t long for the District Attorney’s office. But why criminal defense? Had you considered any other practice areas? Was it what you expected? And the obligatory first trial defense question: looking back now, do you cringe or are you filled with pride? What kind of case was it, and what would you do differently given the skills and experience you have today?

A. Prior to my focus on criminal defense, I was an associate with a large, national civil law firm; a prosecutor; Assistant to the President of a large corporate subsidiary; and a partner with a small mainly civil law firm.  Everything interested me, at first.  However, I always felt that having a passion for one’s work was a great blessing in life. My father and grandfather had passion for their chosen professions.  I was determined to find such meaning and purpose in life as well.  I had to come to grips with my compassion, dislike for elitism, and growing love for the courtroom. For 40 years, I have collected, read and re-read books by and about trial lawyers.

My desire for independence was also a factor.   Of course, I like to see and do things for myself.  I don’t fit into organizations very comfortably.

Q. Developing your practice, did you go through the usual hard work in the trenches, taking on the combination of retained, indigent, pro bono and the occasional unanticipated pro bono that most criminal defense lawyers enjoy? What about it got your juices flowing: the trial work, legal writing, dealing with the insanity that clients bring to your door, beating the prosecutor? Many young lawyers today seem to find criminal defense too frustrating or unpleasant, and struggle to go back into the well for another round of getting beaten to a pulp. Did that happen to you? What kept you going back day after day? Is this a matter of being tougher than the prosecution? If a lawyer feels vulnerable, does he belong in the trenches?

A. My trial skills were self-taught.  No one took me into a courtroom and gave me good direction.  Fortunately, I was able to read widely, observe other trial lawyers in action, and come to my conclusions about what was effective for me. I also consulted other lawyers who were very generous with their ideas and suggestions.  I learned that our public defenders were extremely knowledgeable about what they do.  They were always helpful.

Every trial lawyer must learn the fundamentals of trial practice and the philosophies behind them.  But to excel one needs to learn when to break those rules and develop one’s own unique style.  Along with the trial fundamentals, one also needs to learn who they are as a person and, conversely, who they are not.  You can study other lawyers, but can never blindly copy them.

The late Johnny Cochran was the best trial lawyer I ever watched. His intellect, compassion, humility, flexibility and improvisation were breathtaking. Study carefully his closing argument in the O.J. Simpson case.

Every year, I read at least one book by or about the late criminal defense lawyer Clarence Darrow. Nobody combined intellect, psychology, emotion, compassion and kindness better than he.

By nature, I am repelled by arrogance towards others.   It became clear to me at an early juncture that humility, decency and compassion are courtroom strengths.  I also saw lawyers put on a tough front for clients which was very ineffective.  Each case requires a different perspective and presents a unique chemistry.  Trial practice is an art, not a science.

For many years, I volunteered at free legal clinics in the African American community.  The time spent at these clinics was very satisfying for me.  It also helped me to grow as a person and as a trial lawyer.  The loner, journalistic bent in my personality took me to the Deep South to participate in death penalty trials.  I wanted to see things for myself rather than rely on stereotypes and the opinions of others.

I feel fortunate to have found criminal defense in my life.  While every day may not be a “picnic,” there are far more good ones than bad.  My work spans both white collar and non-white collar cases.  I have learned that doctors, business people, etc. can be targeted for inappropriate reasons as well as the poor.  I believe non-white collar criminal defense helps one with white collar cases, and vice versa.  The more cases you try with an open mind, the better you are likely to be.

My philosophy of trial practice strongly espouses the notion that we are always learning and growing in the courtroom.  So many trial lawyers assume an air of arrogance, elitism, and a belief that they should be teaching, not learning.  They are wrong.

You have to be yourself in the courtroom.  Some trial lawyers are mild mannered, understated, and very effective.  Some trial lawyers are theatrical, dramatic, flamboyant, and ineffective.  I have studied, and continue to study, successful trial lawyers.  But I would like to think that my fundamental style is my own.

Q. You’ve become one of the small cadre of Los Angeles criminal defense lawyers whom celebrities turn to when trouble finds them. But your first “big name” was Mike Tyson. What brought him to your door? Many young lawyers are desperate for that big name or big case. Are they too obsessed with fame? Is the big break the result of hard work, day after day, in the trenches for every client? Are young lawyers a little too hungry for their fifteen minutes? Are they ready?

A. I was contacted by a partner in a large law firm in Arizona who was counsel to Mike Tyson.  Mike was being investigated by the San Bernardino County, California District Attorney’s Office for alleged rape.  Gloria Allred had already given a press conference in support of the alleged victim.  I was asked to be Mr. Tyson’s California counsel.  We conducted an aggressive investigation and prepared a booklet for the District Attorney’s Office.  It included background information on the accuser as well as forensic arguments.  Although Mike had already served time in state prison for rape, the district attorney’s office declined to prosecute.

Mike Tyson was not the first celebrity I ever represented.  I had defended others in large and small cases in Los Angeles.  One that I am particularly proud of is my defense of Larry Carroll, a celebrity newscaster in Los Angeles.  Larry was indicted for securities fraud by a state grand jury.  After a 12 week trial, which included his testimony, the case was dismissed in the interest of justice.  The trial judge concluded that Larry was a victim, not a perpetrator of an investment fraud scheme.

I understand why many lawyers want fame.  They equate fame with legal success.  However, fame can be fleeting and dangerous.  It can also be a springboard to success.  It depends on how it is handled.  For example, many lawyers think a high profile case will never be forgotten.  This is false.  Other than the OJ Simpson Michael Jackson cases, they seem to fade quickly.  I can speak all day about the pitfalls of fame.

Q. Most criminal defense lawyers have a piece of trial, such as voir dire or cross, that’s where they hit their stride. What’s yours? Is there a “most critical” skill that defense lawyers need to develop? Are there skills that just don’t matter that much? Beyond gaining experience, what did you do to reach that level of skill that allowed you to win four federal trials in a row?

A. Most lawyers don’t realize that humility, compassion, and decency are strengths.  They put on a tough front for their clients who are desperate to be protected.  Their egos and self-involvement create an obsession with their own work product, which in my opinion detracts from their objectivity.  This affects everything from jury selection to closing argument.

A trial is an evolving, living organism.  There has never been an experience quite like it before, and will never be one like it afterwards.  It requires a unique combination of objectivity and passion.  I have spontaneously scuttled weeks of preparation for a particular witness when the course of the trial dictated such.  I believe more in listening, feeling, and observing a witness, than note taking.  I try in my opening statement to immediately begin to portray my client as a living, breathing human being. If a trial lawyer is not a decent person, don’t expect them to make their client into one.

Because of my experiences in civil litigation and corporate law, white collar criminal defense has never posed any problem.  I think trial lawyers who try both types of cases will likely be more skilled in both arenas.

Q. You represented Robert Blake, who was notorious for being a difficult client. While every criminal defense lawyer experiences the client who just won’t follow advice, how does that play out in a case where everyone is watching? Are celebrities harder to deal with? Do they take advice? When they don’t, or only half do, what are the consequences for their lawyer? Is there any magic to persuading people who are used to giving orders to heed a lawyer’s counsel? And when they don’t, how do you deal with it? At what point does a lawyer pull the plug and walk away from the case?

A. My attitude in every case is “I am the artist. I choose the paints and the brushes.”  Again, this is a creative and human endeavor. It is not mechanical or scientific.

The creative process includes who appears at counsel table.  For example, many corporate clients feel protected when a large number of big firm corporate lawyers surround them in the courtroom.  I think this is counterproductive.  It sends a terrible message to the jury who sometimes believe that a wealthy defendant is trying to buy justice. The defense team should be small.

Celebrities tend to have big egos.  They are used to people catering to their whims and beliefs.   They like to tell others what to do.  To make matters worse, the people around them like to keep them insecure in order to create a need for them.  In a high profile case, other lawyers will tell them what they want to hear to gain their confidence.  It can be a very difficult situation.

I tell clients who I will work with. They don’t tell me.

Q. From a distance, few things look sexier to a lawyer than being the household legal name in a high-profile case. Is it really as much fun as it looks? While the first day or two may seem like fun, what about when the calls don’t stop coming, the interviews ask the same insipid questions over and over, the paparazzi won’t get off the hood of your car? What is the worst thing that happened to you as a result of being the “celebrity” lawyer? Have you learned to take it in stride? Does it make your head hurt, thinking about running the gauntlet to get into the courthouse?

A. Celebrity is a double-edged sword.  The notoriety can be exciting and fun.   It can also be fleeting and destructive.  All kinds of characters come “out of the woodwork” to be your friend.  They are not.  Lawyers, in particular, are not immune to jealousy and envy.  One has to be very careful not to get carried away with fame.

Fame also tempts the lawyer to think the focus is on the lawyer, rather than the client.  This is wrong.

Q. Sorry, but there’s no way to interview you without bringing up Michael Jackson. You tried, and won, his case, much to the surprise of those smearing him along the way. But from the lawyer perspective, what distinguished you beyond your work at trial was that you handled the attention with enormous grace and dignity. With so many lawyers desperately trying to call attention to themselves, hoping to get that Larry King interview if not a show of their own, why were you unwilling to play the game?

You evoked the values of hard work and humility. What were you thinking? Young lawyers are told they have to toot their own horn or no one will, that shamelessness is the new rule. Is this the right message? Are the days of professionalism over, and it’s just about puffery? If Tom Mesereau were a young lawyer today, how would you bill yourself to survive in the current legal environment?

A. The Michael Jackson case was the highest profile case of my career.  More accredited media covered the case than the OJ Simpson and Scott Peterson cases combined.  It was a madhouse.

I did my best to take one day at a time.  Following the acquittals, Mr. Berri Gordy, the founder of Motown, asked me how I had managed such an unmanageable situation.  I told him that I would like to be able to say that I strategized everything.  But this would not have been true.  I hung by my finger nails each day.  I did my best, and asked that God help me with the rest.  I was fortunate.

Young lawyers are correct to believe that they must find a way to properly advertise and promote themselves.  But it should be done with dignity and professionalism.  I will expand on this in a Fault Lines post as soon as I can.

Cross: Liliana Segura, Putting The Human Face on Injustice

January 25, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross investigative criminal law and civil rights journalist at The Intercept, Liliana Segura.

Q. You went to Barnard College, where you studied English (and, if rumors are to be believed, took a lot of women’s studies classes). Why there? Why English, since you were undoubtedly bright and had a great future ahead of you? What did you plan to do? Were you going to be the best-educated barista in NYC, or had you already been bitten by the journalism bug? Did you ever consider grad school? Doing a law degree, perhaps?

A. Okay, well, putting aside the premise that English majors are bound for failure – never heard that one before! – I did know I wanted to be a journalist. By the time I got to college, I had something of a political and feminist consciousness; I had loose visions of one day starting a print publication for teenage girls as an alternative to the glossy crap that are gateway drugs to “women’s magazines,” which I hated. (In retrospect, now that Teen Vogue has won overnight fame for outflanking traditional news outlets in hard-hitting commentary about Trump, this seems funny.)

My other primary objective was being in New York City. Originally, I’d planned to go to Columbia University, but instead ended up at the University of Maryland after I was offered a scholarship to the honors program. There was a good journalism program there, but unfortunately it was a terrible match for me and I decided to transfer by my second semester.

I ended up at Barnard, surrounded by highly intelligent women who were ambitious, politically astute and frankly intimidating. College campuses get a lot of flak these days for shutting down avenues of free thought, but for me, an all-women’s college was critical to my political awakening. Unlike at Maryland, there was no journalism major, so getting my MA in English seemed like the logical choice.

I was a senior in college when 9/11 happened; in the days afterward, Sister Helen Prejean, the famed anti-death penalty nun, had been scheduled to come speak. Although the city had come to a standstill, she kept her commitment to come to campus and I attended her talk. I found something profound and deeply life-affirming in her words. Afterwards, I attended a meeting of anti-death penalty activists who were working on exposing an incredible injustice in Chicago, where racist Police Commander Jon Burge had overseen a regime of brutal abuse against scores of black men arrested and interrogated in a couple of police stations on the South Side.

A number of these men ended up giving false confessions, and some went to death row. The year was 2001 and yet I had never heard of this, although the torture had been exposed years before by Chicago-based journalists, community activists and family members. It was a radicalizing moment for me. I joined the Campaign to End the Death Penalty, which would introduce me to countless other people who had experienced the cruelty of our capital punishment system. Activism continues to inform my work today.

Q. Your first gig out of college was as a staff writer for the H.W. Wilson Company. Along with two others, you wrote the 2004 edition of the Current Biography International Yearbook, a massive compendium of biographies of foreign notables. How’d you get the job? How were the people you wrote about selected? Did you find putting together 65-odd biographies of people who didn’t even have the decency to be born American exhausting? Who was your most interesting victim? Were you always a prolific writer, or were you forged in the crucible of Current Biography? And did you get to see your name in print?

A. Just to be totally accurate, my first job was actually a scandalously low-paying gig at an academic publisher in midtown, as an editorial assistant working on science and engineering titles. My authors were primarily crotchety men who were geniuses in their field, but not particularly friendly or interested in prioritizing my requests. (This would turn out to be excellent preparation for the world of journalism and for the world more generally.)

When I decided I needed to leave that job, I actually looked at the jobs section of the New York Times – the print edition! – and saw a listing for a staff writing position at this 200-year-old company that actually printed its own periodicals on site, in the basement. I’m pretty sure I got the job because of my cover letter, which I wrote in the form of my own biography. It felt kind of gimmicky, but it worked.

The job was fun while it lasted. The office was in an impoverished part of the South Bronx, up a steep hill from the old Yankee Stadium and housed in a weird old building overlooking the Hudson with a lighthouse on top. Our subjects were chosen in a rather ad-hoc way and we were encouraged to submit suggestions, the primary criteria being that individuals had to have some kind of global significance and, also, still be alive.

I wrote about an incredible range of people, from heads of state to artists, architects, actors and athletes. I was especially excited to write about people who had interested me growing up – a Colombian journalist who had risked her life to expose human rights atrocities by the military; the Argentinian cartoonist Quino, who is now in his 80s and whose comic strip is famous across Latin America. Sometimes I got to interview my subjects, but that was not expected, nor was there really time allotted for reporting.

Overall, the writing was staid and formulaic, so I got bored pretty fast. More importantly, the War on Terror was now underway, and I was becoming more and more concerned about the direction our own country was headed. I was doing some blogging – mainly bashing the Bush administration – and the more I wrote, the more I wanted to find a place where I could do “real journalism.” One thing I noticed my disparate subjects had in common was that at some point, they had taken a risk, veered from the beaten path to achieve their place in the world. So that was a good lesson.

Q. In early 2005, you joined The Nation magazine as a full-time intern. It was basically two jobs rolled into one: fact-checking people’s articles and doing research for them when they were overworked and rushing to meet deadline (which is pretty much always). What’s it like to be the eminence grise of journalism, responsible for the intellectual foundation of other people’s articles but not getting a byline of your own? Did you long to rule in your own right?

A. First, yes, I went from a full-time writing job to becoming a full-time, (mostly) unpaid intern. This was not my proudest adult moment, so a little context is in order. If the post-9/11 era was a galvanizing political time for me, the 2004 election was a wake-up call: I was appalled that George W. Bush won a second term, distressed about the war in Iraq and horrified by the images coming out of Abu Ghraib. On the day the election results were finally made official, I left work early, had a beer and resolved to find a new job at a place that shared my values and whose mission was to fight back against the excesses and injustices of the Bush administration. That would turn out to be The Nation. It was the best professional decision I have ever made.

Fact-checking, apart from spending my previous years’ savings and paltry paycheck on happy hour with coworkers, was the best part of the job. For an investigative story, it’s like doing journalism in reverse; you start with the article and work your way backwards to the source/sources. It was also the sort of task where you’d collaborate directly with a writer or editor to negotiate the best editorial fix. I found this really satisfying, especially when I’d see the resulting story in print, knowing I’d helped improve it.

The internship also encouraged us to pitch our own articles for the (then-fledgling) website, so I didn’t have to wait long to write things of my own – I wrote my first piece after testifying at a hearing against the death penalty in New York. One of the other people who testified that day was Yusef Salaam, of the Central Park Five, who has more recently come back on the scene to direct much-deserved criticism at Donald Trump. It was one of many times I would hear him tell the story of how Trump had called for his execution in a full-page ad in the New York Times.

Fact-checkers’ prestige has gone up a lot in the decade since you did the job; nowadays, there are entire sites devoted to fact-checking rumors (Snopes) and politicians’ statements (PolitiFact). At the same time, they get a lot of criticism for their perceived inaccuracy and bias. In your opinion as a veteran of the business, are the allegations fair? Have fact-checkers sold out their integrity for political currency? Is political fact-checking nothing more than partisan politics in disguise, or does it keep the public informed and politicians on the straight and narrow?

I don’t know that I can speak to fact-checking so broadly, but I can say that the kind most familiar to me is hardly foolproof – and certainly not immune to the unchecked machinations that can take hold when an author and editor have lost sight of a publication’s ethical and editorial standards. This was most egregiously on display with the Rolling Stone story about the supposed gang rape at the University of Virginia, for example – although the magazine has a stable of professional fact-checkers, the process completely broke down. But in general, having fact-checkers is enormously valuable at any publication and in the early days of The Intercept, I lobbied hard to hire them.

What about in traditional journalism? As we saw throughout 2016, the most high-profile outfits now routinely rush out articles with embarrassing mistakes. Have standards slipped? Or were things always this way? Can anything be done to keep the nation from finding out that the NYT has no idea where Aleppo is?

Well, if the New York Times has no idea where Aleppo is and embarrasses itself accordingly, I actually think it’s not a bad thing for people to see. No publication is infallible and if more Americans were skeptical of the authoritative objectivity of august publications, maybe we would not have invaded Iraq.

But to be fair, I think there are also a number of things going on at once. First, the internet has completely transformed journalism. The advent of Twitter and other social media means that the news cycle moves absurdly fast – what is on the front of the Times this morning is something a lot of us saw last night. So you take the old race for scoops, put it in this context and the industry is going to have some pretty high-profile screw-ups. But the flipside is that we now have more ways than ever to correct and push back against bad journalism. Where one used to just have a byline and masthead to go by in assessing the people responsible for a given article, today all these reporters and editors have Twitter handles. They reveal their opinions, allegiances, and biases, whether they mean to or not.

Q. Following your internship, you spent two years working at The Nation’s sister outfit, The Nation Institute, a nonprofit devoted to advancing progressive journalistic causes. You edited books, helped with the annual Ron Ridenhour prize for fearless journalism that advances the cause of social justice and, perhaps most intriguingly, were involved in selecting first-year law students for the Robert Masur civil-liberties fellowship, which carries a $2000 cash prize.

What did the day-to-day of your job entail? What kinds of things advance the cause of social justice, anyway? Actually, can you provide a comprehensible definition of social justice? And how’d you decide which lucky law students got a summer stipend? Did The Nation Institute take a holistic view of civil liberties, or would an applicant committed to expanding Second Amendment rights have been out of luck?

A. The job was hard to define in that the day-to-day really depended on what was happening – what event was coming up, what titles were on the horizon from Nation Books. Any given week, I could be organizing an event for an author at Riverside Church or stuck in the office writing a fundraising letter. What it did allow me to do was stay close to the magazine and develop closer ties to the colleagues who would become my journalistic allies down the line.

While our mission certainly fit under the broad umbrella of “social justice,” I don’t know that I could define it comprehensively. We came to the magazine and the Institute for a lot of different reasons. A number of my fellow interns had experience organizing in Democratic politics; others had high-level academic backgrounds and were more drawn to things like literary criticism. For me, social justice meant a commitment to advancing equal opportunity, civil rights, and racial justice. This manifested itself as fighting against a carceral state that preyed primarily on poor people of color.

I also came to be influenced by The Nation’s columnists who focused on civil liberties, like the now-departed Alex Cockburn, as well as Nat Hentoff, whose writing I knew primarily from the Village Voice. These kinds of authors formed my thinking around things like hate crimes legislation, which was prioritized by some segments of the left, but which I came to be – and continue to be – very critical of.

As far as the Robert Masur prize, I confess I cannot remotely recall who received them, nor was the decision up to me. It was a fairly mundane process, though, and basically a brief, once-a-year thing. Perhaps not surprisingly, I don’t recall any candidate making the case that they needed the monetary award to launch a career defending 2nd Amendment rights. I don’t really think such an applicant would be drawn to The Nation Institute, but I’d be glad to be proven wrong.

Q. In 2008, you became a “proper” journalist when you joined the staff of AlterNet, the progressive online magazine. You specialized in civil-liberties coverage: not only did you manage and edit other people’s stories, but you put out several of your own each week. How’d you gravitate to civil liberties? More importantly, how’d you make such a big success of it, given that you don’t have a law degree? An inevitable result of being on the civil-liberties beat was that you started putting out criminal-justice stories, some of which were promptly singled out for prizes. Where’d you get the chops to not just do it, but do it right? Are you a journalistic wunderkind? Are there steps other young journalists could take to reproduce your success?

A. So, first, ha, no, I am far from a wunderkind. By the time I got there, I had written a fair number of freelance articles, mainly about criminal justice, including a long piece for AlterNet about false confessions that was the precursor to my being hired.

AlterNet was one of those places that grew out of the early blog and Bush era – it ramped up quickly and found success in aggregating content from other corners of the web. This meant a lot less editing than just feeding the beast, so to speak, finding content, getting permission to republish it, and presenting it in a way that would appeal to our readers. (Clickbaity headlines, listicles.) Curating the Civil Liberties section was an absurdly large task in itself, but I also had to assemble the War on Iraq section. There was a lot of learning on the job, for better or worse.

I wrote a lot – sometimes about things I wanted to write, sometimes about things I was told to write. It was a good challenge, and a good way to exercise my writing muscle, but it was also pretty exhausting. As always, my lack of legal training meant I just researched the hell out of my stories, at least to the extent I was able, and interviewed as many people as I could. But the emphasis was not really on original reporting, it was on turning things around fast – “hot takes” if you will – which did not always result in the best quality work.

My time at AlterNet did allow me to write critically about the Obama administration from the very start of his first presidential term. In retrospect, I am most proud of the writing I did warning that he was likely to continue some of the most problematic policies of the Bush administration, whether drone strikes or surveillance. I also did some of my early substantive writing on Supreme Court rulings around things like juvenile sentencing and lethal injection, which are beats I keep returning to.

Q. You went back to The Nation in July, 2010 to serve as temporary editor and, after that gig expired in August, stayed on as an associate editor. What were some things you wanted to change up during the glorious month you were in charge? Was it enjoyable, rising from intern to editor and being the protagonist of your own American success story?

A. Well, I don’t wish to overstate my editorial power, although yes, it was hugely exciting to find myself in an editor’s chair. At first, I just helped manage the articles that piled up on the desks of our more senior editors. Later, I had the chance to think creatively about who I wanted to have writing for us. So, for example, I assigned a first-person piece to a federal judge who had been outspoken about his opposition to mandatory minimums.

Another assignment was to an Iraq vet turned stockbroker who later got involved in Occupy Wall Street. I also tried to bring in people with a certain amount of political and geographic diversity. It was during this time, for example, that I was able to get my now-colleague, Jordan Smith, to contribute articles on criminal justice, bringing in much-needed on-the-ground coverage from Texas.

You continued to establish yourself as a serious crimlaw journalist, including by putting out intelligent coverage of the clemency process, whether at the state or federal level. In your opinion, did our new president emeritus do enough to grant clemency to federal prisoners? Is targeting nonviolent drug offenders the correct approach, or are violent criminals – domestic abusers, for example – also deserving of a second chance? (John Pfaff argues that especially on the state level, treating violent offenders more leniently is the only way to appreciably reduce the prison population.) On that note, was Obama right to commute “terrorist” Oscar Lopez Rivera’s sentence? What about Chelsea Manning’s?

No, I don’t think Obama did enough in any area of criminal justice reform, not just where clemency is concerned. But I’m also well aware that no president could ever do enough to undo the ravages of mass incarceration; as people like Pfaff remind us all the time, the federal prison population is a tiny fraction of the people we have imprisoned in this country, and looking to the White House or DOJ to solve this problem is misguided at best. Real change has to happen at the state and local level, and yes, we do have to seriously rethink the sentences we give to people convicted of violent crimes.

The question of second chances is a theme I come back to repeatedly in my work, as in this piece. Part of this is the result of activism over the years; for example, I once went to visit prisons in upstate New York to meet people serving life without parole for murder. It was informal research; I met people who had aged in prison and were clearly not the same men they had been when they committed their crimes.

Around this time, I also went to Angola Penitentiary in Louisiana to write about their infamous rodeo, where I met countless young men who were doomed to die in prison – some for nonviolent crimes. I did a lot of research (including in the famed prison publication, The Angolite) on the way parole has been so completely diminished in that state and in this country, and I became increasingly convinced that we have to radically rethink not just the death penalty but all permanent sentencing schemes.

So when it comes to clemency and commutations, it’s hard for me to object to anyone the White House would show mercy to. I was certainly in favor of clemency for Lopez Rivera as well as Manning. They have been punished enough.

Q. You exploded onto the nation’s journalistic scene in 2014, when you helped found The Intercept in the wake of the Snowden leaks. The publication’s original focus was squarely on the NSA story, but from the get-go, the plan was to expand into more general civil-liberties and national-security coverage.

So what it wanted to do was very much in your wheelhouse. What made you decide to sign on to such an adventurous project? (You’d already edited some of Glenn Greenwald’s work; he’d contributed material to a 2010 book you co-edited, Midnight on the Mavi Marmara. Did he give you the impetus?) What was involved in creating a new media platform essentially from scratch, around one of the most controversial and explosive stories in recent memory? What were your responsibilities? The Snowden leaks made The Intercept visible, but how did it survive, thrive and turn into a household name in what remains an extremely volatile industry? Did you ever think to yourself, “this is crazy?”

A. The decision to join The Intercept (long before it was called The Intercept) did feel crazy a lot of the time, in no small part because I left what I had always considered my dream job at The Nation. But it was an opportunity too good to pass up. I hugely admired what Edward Snowden had done and it felt thrilling to be a part of the team that would help push out his revelations to the rest of the world.

Glenn’s work had been required reading for me during the Bush administration, and I aligned with his continued critique of executive power, surveillance, drone strikes etc. under the Obama White House. But I had a far longer history with his co-founder, Jeremy Scahill, going back to my Nation Institute days, and it was both of them who convinced me to take the leap and join the new project.

It was certainly chaotic at first, and sometimes frustrating since it took a while before I could do what I came to do, which was focus on writing full time. (My early responsibilities were basically to help with the launch of the site, which meant a fair amount of editing of national security stories.) Eventually we hired more people. I was also able to recruit Jordan Smith, stealing her away from the Austin Chronicle. She has been my best partner in crime – not to mention on the wrongful conviction, death penalty and forensics beats far longer than I. I have learned a lot from her work over the years.

Q. At The Intercept, you’ve put together a serious portfolio ranging from incarceration to racial justice to the death penalty. Even with your impressive track record, something that stands out is that you’re a journalist with unimpeachable progressive credentials who was nevertheless willing to point out the Clintons’ role in making the modern death-penalty process the dumpster fire that it is. From Bill’s cynical, self-serving support of AEDPA to Hillary’s newfound pseudo-commitment to reform, you didn’t let a lie or a whitewashing of the historical record slip by. The press as a whole is currently under attack for its perceived loyalty to the Democratic party and unwillingness to tell the truth when it’s politically inconvenient. Where does the courage to take on establishment grandees in an election year come from?

A. I think the fact that the Democrats have been so bad for so long on criminal justice issues makes it very easy to criticize them, particularly the Clintons. The activists who helped shape my politics were well to the left of the Democratic party, and I learned early on that liberal politicians were not our allies when it came to the fights around sentencing and mass incarceration. I also saw some of the most unlikely politicians take some of the most courageous (if calculated) stances on the issues that mattered to me the most. For instance, there were former Illinois Governor George Ryan’s historic commutations of his state’s death row in 2003 (which was close to my heart given that the decision was linked to the legacy of the Burge police torture scandal I mentioned earlier.)

When it came to my perception of the Democratic party, I also had something of a formative experience in 2007 at the YearlyKos conference in Chicago. That year attracted all the major Democratic candidates vying for the 2008 nomination. I knew that it would be a gathering of the partisan blogosphere, but what I found was an embarrassing lovefest – it felt like a series of pep rallies, rather than a chance to exert pressure on some of the most potentially powerful politicians on earth.

My mission was to ask whatever candidate I could why they supported the death penalty, since it was basically a universally-held position. (I ended up confronting John Edwards on the issue, which you can read about here.) Later, when Obama won the Democratic nomination in 2008, I was dismayed to hear him condemn the Supreme Court ruling in Kennedy v. Louisiana, which held that the death penalty violates the 8th Amendment in non-capital crimes. It was all political posturing, which I found gross and intellectually dishonest. (I wrote about that here.) So I guess I got used to pointing out the places where the Democrats suck on criminal justice.

One of the most contested articles I published at AlterNet was by an exoneree whose habeas appeal was denied by Sonia Sotomayor during her time on the New York Second Circuit Court of Appeals – a denial rooted in AEDPA, as I recall. He spent many more years in prison for a crime he did not commit as a result, and so he wrote about the experience when she was facing confirmation to the Supreme Court. It angered some people that I would run a story that cast her in a negative light prior to her confirmation hearing, but the argument at the center of his piece was important.

As he wrote then, “Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case – condemning me to a life sentence based on procedure in the face of an airtight innocence claim – should be part of the discussion.” I think it’s always important to show the human consequences of judicial decisions, no matter who is making them.

Q. It’s in the nature of criminal-justice reform that there are no easy answers. Rhetoric on both sides is often unavailing; people’s deeply-held opinions rely on flawed assumptions; and many of the most radical and potentially effective solutions (like mercy for violent criminals) are politically unpalatable. Though honest reporting may not win you any friends in the short term, is there a long-term payoff? Does what you do have the potential to elevate the national discourse, or are you tilting at windmills?

A. Good question. I don’t really know what the long-term payoff is, although the longer I’ve done this, the more I’ve been invited to share my opinions on these topics. For example, I had a chance to influence the debate about the US strategy of replacing executions with life without parole at last year’s World Congress Against the Death Penalty in Oslo.

I do think that the country has come a long way in the years I’ve been paying attention to these issues. As feeble and flawed as Obama’s criminal justice reform measures were, it was rather surreal to see these issues rise to such a level of prominence at all in the past few years – to see criminal justice reform become something politicians actually felt like they had to promise. It was especially amazing to go to a conference of formerly incarcerated people in Oakland last fall, which was pretty damn militant in its politics, and see a DOJ official in attendance, vowing to keep fighting for reform to a room full of people who spent years in prison. In ways that I did not appreciate until recently, for all its problems, this administration did make some genuine efforts to bring formerly incarcerated people to the table.

Of course we also know that these moments are fleeting, and now the Trump administration has swept all that away. What keeps me going is the knowledge that the activists at that conference have always worked on the margins and outside the systems of power – they’re used to not having government on their side and they do it anyway. I try to keep that in mind when I write and just focus on the work.

Q. You and your husband, Radley Balko, are the nation’s premier criminal-justice reporting power couple. Congratulations! Do you guys work together? Has your style of coverage influenced his, or vice versa? Do you ever step on each other’s toes? (You’re both on the junk science beat, for one.) Are you competitive with one another? Does he scoop your stories? Do you scoop his? And whose reporting is the most hard-hitting, anyway (we already know who has better hair)?

A. I don’t know about the whole power couple thing, but thanks. Given that he’s been writing on these issues longer than I have and that I was reading his work long before I met him, I can definitely say he’s influenced my own journalism. I’ve learned a lot from his writing on prosecutorial misconduct, for example, as well as on forensics. The left has also traditionally been not-great at covering things like civil asset forfeiture, and I learned from his writing on that topic. We share a lot in common when it comes to the wrongful conviction beat, and if we collaborate on anything, I imagine it’ll be on that.

I can’t say we’ve stepped on each other’s toes, even when we sometimes come close, say on forensics/junk science. The perverse nature of the criminal justice beat is that there are always more than enough awful stories to go around.

Oh, and I can’t say we’re competitive. We’re in rather different stages in our careers. He is publishing his second book this year, while I have vague goals of writing a book before too long. But our writing is also pretty different. Radley writes daily opinion and analysis – he is obnoxiously skilled at crafting convincing, evidence-based arguments day in and day out. I tend to take a lot longer on stories and prefer to write character-driven narratives. Although I’m trying to get into more opinion pieces, I enjoy reporting feature stories far more.

Q. What’s in your future? You’re extremely young, have a great record of quality journalism and are racking up the kills at The Intercept. Ever feel like putting all that acquired knowledge to the test? Passing the bar, standing in the well and representing someone? (Hell, in California, you wouldn’t even need to go to law school.) Running for office? (Chicago could use a new mayor.) Or is journalism your one true calling? Will President Trump usher in a golden age of criminal-justice reform? Or is the best we can hope for that his constant outrages will keep the press busy?

A. Well, first, I do not consider myself extremely young (at all), but I do think I have time. I am definitely committed to being a journalist for the long haul. There was a time I thought about law school, but only because it would be a good education; I quickly realized it wouldn’t be worth the time and money if I knew I didn’t want to practice. I do also think that good journalism is as necessary now as ever, although I also worry about things like outrage fatigue and what the Trump administration might mean for places like The Intercept, whistleblowers like Edward Snowden and my colleagues who rely on such sources.

When it comes to criminal justice, though, I think a lot of our work remains the same: focusing on the states and localities where many of these battles have always been fought. For the moment, I haven’t gotten tired of telling those stories, and there is certainly more than enough work left to do.

Cross: Josh Blackman, A Fearless Constitutional Contrarian

January 18, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross prolific blogger and South Texas College of Law associate professor Joshua M. Blackman.

Q. You went to college at Penn State, where you studied information sciences and technology, not exactly the routine precursor to a career in the law. What were you into then? Was the plan to be on the cutting edge of tech, or something less remunerative? You were apparently pretty good at it, graduating magna cum laude in December, 2005, and yet you chose to go to George Mason Law. What went wrong? Was there something that pushed you away from a lucrative career? Was law always in the plan? Did you get in trouble and get punished by being forced to attend law school?

A. For as long as I can remember, I was surrounded by computers. Both my parents were in the business, and I was always exposed to technology. During my sophomore year in high school (1999), I took notes on my Palm Pilot IIIe. By my junior year, I brought a HP Jornada 820 laptop to class. Penn State’s then-new major of Information, Sciences, and Technology seemed like a good fit for my interests and skillset. In hindsight, I am very grateful for the education I received.

In recognition of my work on network security, the Department of Defense awarded me a two-year full scholarship-for-service: they would pay my tuition for two years, and in exchange I promised to work for the DOD after I graduated for two years. It was a sweet deal. Following my junior year, I interned at the Defense Information Systems Agency in Arlington, Virginia, and was assigned there permanently once I graduated.

For reasons I still don’t completely understand, I decided to take the LSAT during my final semester at Penn State. I had only taken one law-related class, which focused on cyberlaw, and knew next to nothing about what law school entailed. My preparation was minimal—I took a few sample tests over the course of a few weeks. I frankly wasn’t too concerned with my score because my plan was to apply early decision to George Mason as an evening student, and nowhere else. By that point, I would have established in-state residency, so my tuition would be a fraction of the cost of other D.C. schools. Also, my office was a 10-minute drive to Arlington’s campus.

I had some vague notion that my technical background would prepare me for a career in intellectual property, but didn’t know much more than that. I distinctly remember GMU’s brochures which basically promised me a starting salary of $160,000 a year, so it seemed lucrative enough. (Those were the heady days, huh?) I had no idea what I was getting myself into—I didn’t even know what 1L meant.

Q. After graduating Penn State, you went to work at the Department of Defense doing computer stuff while attending law school. Was there some connection between your working for the government and your views toward law? Did this shape your perspective? What about your analytical background in computers? Did that relate to your view of law? You continued to work for DoD throughout law school, moving from computers to the general counsel’s office. Did you want to work as a government lawyer? Where there other areas of law that interested you? Was your work with the DoD a matter of paying for law school or did that reflect your area of legal interest? How did you find the time to be articles editor on law review with all that going on?

A. During my first year of law school, I continued to work 40 hours a week as a computer scientist with the DOD, focusing on network security. My initial goal was to rush through law school as an evening student in 3.5 years. However, after a few weeks, I realized I absolutely loved law school! My passion was no longer for coding. After my first year, I switched to the full-time program.

To my good fortune, my supervisor at work recognized my shifting interests, and allowed me to transfer to the agency’s general counsel office, where I focused mostly on labor issues. We were able to work out a deal where I would work 25 to 30 hours per week, but with staggered shifts, that would allow me to go to class during the day. During the week, I would go to work in the morning for a few hours, go to a class, go back to work, then back to class for evening sessions. (By the way, this is where my custom of always wearing a suit to class began—I literally had to because I was schlepping back and forth to work).

As your readers may know, the ABA has a paternalistic rule that limits students to 20 hours of work during the week. It is utterly insane for the accreditors to tell students how much they can work to support themselves, without any reference to an individual student’s aptitude. I violated the rule, and am damn proud of it.

This schedule, combined with law review duties was brutal, but I loved it. Also, as a glutton for punishment, I took 18 credits every semester, including every constitutional law class GMU had to offer. Even though I started off as an evening student, with a credit deficit, I still graduated magna cum laude with 6 or 7 credits more than I needed to graduate. All the while, I continued working at the DOD until August 2009, when I began my clerkship for Judge Gibson in the Western District of Pennsylvania.

Q.  Following law school, which you graduated in 2009, again magna cum laude, you clerked for two judges, first Judge Kim R. Gibson in the Western District of Pennsylvania, and then Judge Danny Boggs at the Sixth Circuit. Judge Boggs is famous for giving his clerkship applicants an arcane general knowledge quiz. You apparently passed, but neglected to go on TV’s “Who Wants To Be A Millionaire?” What was it like clerking? Was there a reason why you sought to clerk with Judges Gibson and Boggs? How did that experience shape your view of the law? Did you share their philosophy toward law? Politics? Did the experience make you want to try your hand in the well or at the lectern?

A. By the summer before my third year in law school, I became obsessed with the idea of clerking. I am not exactly sure why I wanted to do it (a close friend did it and seemed to enjoy it) but my burgeoning interest in the federal judiciary had taken a hold of me. To accomplish this goal, I did something absolutely insane: I applied to every single district and circuit judge in the country. (I discuss the details in this essay I wrote shortly before I started teaching).

That year, I received a single circuit court interview (he happens to be on Mr. Trump’s short list), but did not get the position. I also received several district court interviews, but none felt as good of a fit as Judge Kim R. Gibson. Judge Gibson was a West Point graduate, and a former state-court judge from Somerset, PA. He made his name by handling the legal aftermath of Flight 93, which crashed in his jurisdiction. We had such a good rapport during the interview, I knew I would be at home. Above all, he was always kind to me, and supported my insane endeavors with a smile. Most importantly, the clerkship allowed me to sit in court nearly every day of the week.

Though my practice experience is nil (Scott will never let me forget this), in my two years clerking, I received a crash course in all manner of civil and criminal litigation. We had a higher-than-average number of trials (several diversity jurisdiction tractor trailer accidents on the Pennsylvania turnpike) as well as some bizarre criminal cases involving Pennsylvania “militia men” (all acquitted!).

As a geographic matter, however, the clerkship was not so great. Johnstown, Pennsylvania is remote—about 2 hours from Pittsburgh and 4 hours from Washington, D.C. In hindsight, the isolation was a blessing, as it gave me so much time to write. During my two years in Johnstown, I published nearly ten law review articles, started my blog, launched FantasySCOTUS, and began building my platform. I don’t know if I could have done all of that had I lived in a more interesting place.

As for Judge Boggs, I actually applied to him three times. First, as a 3L, I applied and received the quiz, but did not make the cut. I applied again during my first year with Judge Gibson. Much to my disappointment, I was his fourth choice, and there were only three slots available. He had recently concluded his Chief Judge service (a year early!), so he had one fewer space. After candidate #3 accepted, Judge Boggs told me to apply, yet again, the following term.

During my second year clerking with Judge Gibson, I applied, and probably out of pity, I got the coveted Sixth Circuit clerkship. Judge Boggs is a polymath and a renaissance man. I don’t say that lightly. He knows everything about everything. It is humbling to work for him, and I learned so much about the law, as well as countless other topics that he would muse about. We still keep in close contact. I am beyond grateful that my first two employers after law school were such remarkable jurists.

Q. While you clerked for Judge Gibson, you taught a federal courts seminar at Penn State. Was that it? Were you hooked on academia? Following your time with Judge Boggs, you entered the AALS meat market for a tenure track position. Was there an attempt to go for a Supreme Court clerkship? How did that turn out? Did you consider practicing law instead of teaching? What if you hadn’t gotten a position, was there a plan B? Do you ever wonder, looking back now from the Ivory Tower, whether you chose the wrong path?

A. Shortly after the clerkship began, Judge Gibson mentioned that he was asked to teach a federal courts seminar at the Penn State law school (his alma mater). I had mentioned during my interview that I had an interest in teaching. He asked if I would help him teach the class with him. I was elated! Working closely together, we put together a syllabus, and (thankfully) about a dozen students decided to enroll in the new class. Over the course of the spring 2010 semester, every week Judge and I would drive to University Park (about 2 hours away), and teach a 2.5 hour class on all facets of litigating in federal courts.

The lectures were usually divided in half. I would discuss the theoretical aspects of the law, and go over the relevant cases. Then Judge Gibson would explain how it works “in practice.” To answer your questions, I was hooked. I couldn’t believe how much I enjoyed teaching. We taught the class again in the Spring of 2011. By that point, I decided that I wanted to apply to become a fulltime law professor.

I submitted my materials to the AALS “meat market” in the summer of 2011, shortly before I began my clerkship with Judge Boggs. To be frank, I didn’t have a Plan B. I had an offer waiting from the law firm I summered at, but I had no interest in going back. One experience crystalized that reaction—I wrote a memo for a partner on some government contract issue, and raised a due process issue. The partner criticized the memo, saying he didn’t care about the Constitution. Technically, the offer is still standing, but I suspect they forgot about me. I didn’t, and still haven’t, applied for a Supreme Court clerkship. It was academia or bust. In hindsight, I have no doubt I made the right decision.

Q. You ended up teaching in Houston at South Texas College of Law, first in Property Law and then shifting into Constitutional Law. How did an East Coast kid end up in the Republic of Texas? You had the misfortune of coming out of law school at a dark time for new lawyers, something that was also reflected in legal academia. Was there much opportunity for new lawprofs? What were the options available for teaching law? Not to be unkind, but South Texas isn’t Harvard. Is there any hope to climb up the food chain? What does a young lawprof do to establish his scholarly cred?

A. The “meat market” process at the AALS was brutal. At the time, I had a dozen publications, and several more in the works. To my surprise, I received about two-dozen interviews at the market, including several at Tier I schools. Though, for reasons I still don’t completely understand (you can speculate), I was only invited for “call back” interviews at two schools: Ave Maria and South Texas.

I had never been to Texas before the interview (other than a layover), but my visit was spectacular. The faculty and staff quickly made me feel at home, and offered me a place to develop as a scholar and teacher. Shortly after the interview, South Texas made me an offer, which I gladly accepted. Originally, I was hired to teach property only, but in my second year, a constitutional law professor took emeritus status. That opened up a spot for me. I am grateful to the administration for allowing me to slot into this coveted courseload.

I’ve now been teaching at South Texas for five years, and am really lucky for the focus the school places on teaching. For purposes of tenure, teaching is more important than scholarship. At most other schools, that presumption is reversed. Working with senior colleagues, I have tried to continuously improve my teaching. No matter how much I write, the biggest impact I’ll have is on the 150 students I teach every week. No one else has to read my work, but those students are required to sit and listen to me talk for two hours straight. This, and not in print, is where I will make my biggest mark as a scholar.

Q. You are, to say the least, a prolific writer, and have been since law school. At present, you have more than 10,000 blog posts, 34 law review articles and two books, Unprecedented: The Constitutional Challenge to Obamacare and Unraveled: Obamacare, Religious Liberty, and Executive Power. What drives you to write? One of the primary critiques of academics is that they may write scholarly articles, but no one reads them. Has that been your experience? Do you think your work has had an impact in the real world? Has it been worth it, or do you wonder if you murdered all those words for nothing? Which of your efforts has had the greatest impact, for you and for the law?

A. I love writing. I consider it a hobby. Whenever I have a free moment, my fingers are drawn to the keyboard, as I think about how to phrase my ideas in the most appealing manner. The process is truly iterative. My ideas often start as tweets, evolve into blog posts, and before I know it, I have enough content for a law review article. Indeed, my books are (in large part) collections of my prior writings. I hope to continue writing for as long as I can. I have more topics that I wish to write about than there are hours in the day.

This may surprise my readers, but I don’t write for them. Truly. I write for myself. Whether anyone reads my material is secondary to my personal intellectual pursuit of putting words to (digital) paper. Even though all of my writings are publicly available, and I encourage (urge) people to read my material, I write because it satisfies my own curiosity. Writing about something helps me think through issues.

My writings have impacted the real world. Federal judged have cited my scholarship in consequential opinions affecting constitutional law. I’ve written several amicus briefs—though not cited (yet), their ideas were adopted by majority opinions. Reporters have quoted me in media to explain complicated legal issues to millions of Americans. Beyond the law students in my classrooms, tens of thousands of law students around the world watch my lectures on YouTube. I can relate that Unprecedented sits on the bookshelves of several Supreme Court chambers, and one Justice discussed it during conference.

Q. Early on, you staked out a libertarian position on law and politics, and it’s been reflected in your writings and opinions. Where did this come from? Prawfs Ilya Somin and Randy Barnett, Volokh Conspirators both, were offered as your academic references. Did they influence you? Did you consider what impact your views would have in an extremely progressive academic climate? Did your views have any negative impact on you as an academic?

For a young law professor, you’ve never been shy about stating your views. More importantly, you’ve never been shy about having views that differ from the prevailing views amongst your fellow academics. You have not yet gotten tenure, though you were promoted from assistant to associate prof in 2015. Are you at all concerned that expressing more conservative or libertarian views would cause problems? Does it concern you that there are so many academics who have the protection of tenure who remain concerned about voicing views outside the progressive academic mainstream? To what do you attribute that?

A. As a law student, I am very grateful to have had the opportunity to take classes with so many prominent libertarian professors, including Ilya Somin, David Bernstein, and others on the GMU faculty. Additionally, I took full advantage of the D.C. scene, and became friends with Randy Barnett at Georgetown, Ilya Shapiro at Cato, the lawyers at the Institute for Justice, and many others. They were all instrumental in my intellectual development, and helped shape my views on the law and the Constitution. With their guidance, by the time I graduated, I had already authored seminar papers (which would become law review articles) on the Second Amendment, eminent domain, information privacy, the Establishment Clause, and national security.

This strong publication record, perversely, complicated my entry to the academic market. It singled me out as a constitutional law scholar—and even worse, a libertarian one! Virtually every single one of my mentors told me not to go onto the market as a libertarian constitutional law professor: without a Harvard or Yale JD, or a Supreme Court clerkship, as a Caucasian male, I had no chance. Randy Barnett urged me over dinner to consider becoming an IP scholar (in light of my technical background), as the private law field is less prone to ideological bias. Others suggested I should not write about anything controversial, and lay low until I got tenure—then I could come out of the intellectual closet to show everyone my true colors. And they all insisted that blogging was a bad idea, and I should not create a record of informal writings that could be used by opposing faculty to spike my candidacy.

Through a combination of arrogance and naiveté, I ignored all of their advice, and went on the market as a constitutional law professor. I could not hide from my already-public record at that point, nor would I want to be a scholar on topics that don’t interest me—I don’t think I’d be nearly as productive. Fortunately, I had written an article on Pierson v. Post, so I could credibly list property as an alternate class. That single paper helped get me the interview at South Texas, and the rest is history.

As for being outside of the mainstream, it really has never bothered me. Many professors—even with tenure—have a natural aversion to being criticized. Playing it safe means your work won’t be criticized. Thankfully, since I was young, peer pressure has never worked on me. As I noted above, I frankly don’t care what others think of me, or what I write. I do it for my own worth. If others find value in it, great! But that’s not why I do it. Even without tenure (which I will be eligible for in the Spring of 2018), I take seriously the importance of academic freedom, and put all of my efforts into critical thinking—regardless of how far out of the mainstream I am. Since I began teaching, I have been very fortunate to have the support of the Dean and the faculty in all of my endeavors, and never once felt like the content of my writings was held against me.

Q. While there has been no shortage of scholarly Blackman writings, your blog has also proven to be very influential, as well as informative. But unlike law reviews, it’s pretty readable for the practicing lawyer, and even the non-lawyer. Bryan Garner has waged war against lawyer-speak, which remains the mainstay of most academic writing, but you’ve been remarkably plain-spoken and comprehensible on the blog.

Where have you gone wrong? Do you take issue with dense and prolix writing? Are you deliberately trying to be clear where others are more circumspect? You wrote a particularly funny post about the meaning of the word “interesting” in academic jargon. Is this a message that you will say what you mean and not moderate your writing to the point of incomprehensibility? Does it make your head hurt when other academics refuse to say what they mean?

A. Like my decision to go on the hiring market as a libertarian constitutional law professor, my decision to start the blog in September 2009 was driven by a mix of arrogance and naiveté (sensing a pattern?). After I narrowly missed out on the clerkship with Judge Boggs, a close friend urged me to start a blog. He said it would give me an outlet to write and build a reputation while I was stuck in Johnstown. I do not recall ever asking for permission from Judge Gibson before I began—I think I told him after I launched it. I still can’t believe he let me blog—he never objected to any of my posts so long as I stayed away from politics and anything concerning the Western District of Pennsylvania. Although he did make me take down my video of “Hitler reacts to Citizens United. (He didn’t get the meme).

Launching that blog was one of the better decisions I’ve ever made. Thanks to several early links from the Volokh Conspiracy, Instapundit, Althouse, and a few others, many people began reading my blog, beyond those I could reach on my Facebook or my nascent Twitter account. JoshBlackman.com has allowed me to develop a special bond with more people than I’ll ever know. In a little more than eight years, I have published nearly 10,000 posts on more topics than I can even remember, and reached millions of readers around the globe. Remarkably, some of my original readers still follow the blog, and regularly email me about posts. Occasionally, when I meet people, they will say “I’ve been reading your blog since you were in Pennsylvania!” It’s surreal.

My writing style on the blog, and everywhere else, is geared towards a college educated person with an interest in the law. Occasionally, I’ll have a technical post, that gets into the weeds of legal doctrine, but for the most part my prose is designed for a broad audience. Writing in this fashion, so often, and so quickly, has helped me become an even better academic writer, as well as a brief writer. I continuously work on my prose, sometimes agonizing over an opening sentence for an hour (it is really the most important). I hope all of my colleagues take Bryan Garner’s advice to heart—we can reach so many more people if our material is understandable.

Q. An issue that we’ve talked about in the past, but has returned (did it ever go away?) with a vengeance is academics using their cachet as scholars to promote their political agendas without regard to any “search for the truth.” Indeed, it’s quite the opposite, that some are deliberately promoting false understanding of law to serve a goal for which a faithful representation of law presents a problem.

How big an issue is this in the academy? Do prawfs recognize it but not care? Is there any movement within law schools to call out those academics who abuse their credentials for their cause? Are there liberal prawfs who are disturbed by this happening? Are they willing to speak out, to admonish their colleagues not to take advantage of their scholarly credibility to achieve a political goal? If not, what’s become of intellectual honesty in academia?

A. Professors hold a very special place of trust with the public. When we write something, it has a different significance than when a non-professor writes the exact same thing. Unlike attorneys who represent clients (and thus have a vested interest), and even think-tankers (who are often nudged in a certain direction), professors are given academic freedom to pursue the truth wherever it goes. If we forsake that trust, our words become worthless.

I recently wrote critically of a letter signed by 1,400 law professors opposing the confirmation of Senator Jeff Sessions as Attorney General. As a threshold matter, the letter had no meaningful legal analysis—it recited hackneyed talking points, which were of contestable veracity. Further, of the 1,400 professors who signed it, maybe a couple were actually involved in writing it. Would any professor put their name on a law review article they did not write? More specifically, one of the claims in the letter referenced Senator Sessions’ record over the past three decades. Did any of them review his entire record over this period. Of course not! (I doubt any Senate staffers did either). How they could put their signature to this letter boggles my mind. I will use all of my efforts to explain to professors why putting their names on these letters, to which they did not contribute, exploits their credibility.

In any event, NBC News and the Washington Post wrote favorable stories about the letter. I wrote a letter to the editor of the Post (which was not published), questioning why this non-legal analysis was in the least newsworthy. (It wasn’t).  Ultimately, the letter served its purpose. Senator Feinstein of California, the ranking member of the judiciary committee, referenced the letter during her opening statement, as if it would give a single Senator a reason to oppose Sessions. (It didn’t).

Q. As a still-young professor, you’ve got a lot ahead of you, despite having published more than most by the time of retirement. Where do you go from here? Is the goal to end up with the New England elite? While you’ve done numerous amicus briefs, what about real litigation, whether in the trenches or on appeal? Or given that lawprofs have found their way to the Supreme Court (where your Fantasy SCOTUS has had more than its share of success predicting outcomes), what about being on the bench someday? Is there anything you aspire to do other than teach and write?

A. I try not to think too far ahead, because my predictions are almost always wrong. As for litigation, I would like to become more of a lawyer. Largely on Scott’s warnings, I’d be afraid of serving as a grunt in the trenches, as I would likely make some inadvertent procedural error that screws over my client. My on-the-fly command of the rules of evidence and procedure are not up to par. My skills are better suited for appellate arguments, and hopefully even before the Supreme Court one day. The right case will come along sooner or later. Even short of litigation, I regularly advise state and federal law makers on a whole range of policy matters. The best way to stop bad laws is to never enact them in the first place—or repeal them as soon as possible.

Article III is the ultimate brass ring. The likely reaction to that prospect is that my paper trail (the blog, the articles, the tweets, etc.) makes me unconfirmable.  As I’ve written elsewhere, I think this preference for people who played it safe gets the nomination process exactly backwards. We should insist on jurists who have written at length about their judicial philosophy on different issues—and done so in a position where they could be criticized.

A proven record, intellectual honesty, and a backbone, are indispensable attributes of a federal judge. The nomination shouldn’t be left to chance. Ironically, thanks to Harry Reid and the nuclear option, Presidents can now become more ambitious with their nominees. (I think we will see the fallout of Reid’s decision with the new administration). If a person like me, who has written on all manner of the law with honesty and directness, can be considered for a judicial appointment, then I would be much more confident in the direction of the federal courts. Until then, SCOTUS will remain a fantasy.

Cross: Tim Young, Leading Ohio’s Public Defenders

January 11, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross the State of Ohio’s Public Defender, Tim Young.

Q. You were an Air Force kid, born at Hill AFB in Utah and, like many military brats, shunted around much of the globe while growing up. You graduated high school at Ramstein AFB in Germany, just forty miles from Trump’s ancestral homeland. Do you speak any exotic languages? Did growing up abroad leave you with an exotic outlook on American criminal law? Did you long for home, or was the adventurous lifestyle the right one for you? And why’d you repatriate?

A. As a kid I didn’t know anything different. Moving from place to place is what my family did. After a year and a half or two years, there was this expectation that it was time to move on. People often ask, “how could you move all the time?” I respond with the question of “how could you stay in one place so long?” People are amazingly adaptable.

As a kid, I was adapted to moving – often. And it was great. I lived in so many places; outside of DC, in New Mexico, in Wisconsin, overseas, and so many more. My mom was a teacher. New places were an educational opportunity in her mind. We were the family that stopped at all of the historic markers and vista overlooks along the highways. When we got to a new city or sometimes, a new country, she had lists of places we needed to see and things we needed to do.

Don’t misunderstand, I did not come to appreciate any of this until later in life. I was the typical kid griping in the back seat of the car and asking how much longer till we got there. But I was also being exposed to cultures and people from all over the country. I lived in states all across this country and that was my real education – school was the same everywhere – but the people and cultures were so different.

That is what living abroad did for me, it gave me a perspective on my home from afar. When we moved to Germany, we did not live on the base but instead lived in a small village, one of only two American families in the village. Later I would understand this as my mother taking advantage of another educational opportunity. Again, this is my perspective now. At the time I was a 17-year-old kid living in Germany, a place I could legally drink. Enough said.

Q. You attended the University of Dayton in Ohio for undergrad, then stayed on for your law degree. Why Ohio? Going in, was the plan to become a lawyer? Or did someone entice you into the profession with promises of riches and glory? And what attracted you to crim law? You clearly gave your classmates the impression it was the perfect gig for you; they voted you “most likely to become a criminal defense lawyer.” Did you embrace the label or refuse to be pigeonholed?

A. I returned to Ohio to attend school. My father and stepfather both served full careers in the Air Force. There was no “home” to return to when I graduated high school in Germany. My father had retired from the Air Force and had started his second career at the University of Dayton. They had a tuition-free policy for kids of employees. That made the college choice pretty easy. There was no grand plan. Just get a degree.

Grad school was always an option. I was probably a junior in college when I really started to consider law school seriously. At that point, I was a philosophy major so grad school had become a concrete plan. As much as I enjoyed philosophy and defended it as my choice of major, even I knew it should just be renamed “the going to grad school major.”

As I entered law school, I knew I wanted to be a litigator but nothing much more specific than that. As I took classes, I was largely defining areas I never wanted to practice. After contracts, I realized I was never going to do anything with the UCC. And tax law was an easy no. I really enjoyed environmental law, but upon graduation the only interview I got remotely related to environmental law was with Ashland Oil Company. Given I became a public defender, I don’t imagine it is hard to see what a bad fit that would have been, defending an oil company. I would have lost my license.

But by the end of third year, my classmates knew what I was supposed to do, voting me most likely to be a criminal defense attorney. In a classically predictable way for a future public defender, I had to be contrary, and it took me two more years before I accepted what others knew about me.

Q. After you graduated in ‘92, you signed on as an associate with Ruppert, Bronson, Chicarelli, & Smith in Franklin, Ohio, where you primarily handled civil cases. What could’ve induced you to give away your criminal-justice birthright? Did they promise you a spectacular mess of potage? Were you at all doubtful about a career in criminal defense, given that it can be a poorly paid, stressful and low-status job?

You spent two years at RBC&S, during which time you also handled the odd criminal case. That takes us to the obligatory first trial question. What was the case about? Who’d you go up against? Going in, did you believe you were adequately prepared? Were you right?

A. I started with RBC&S because I had clerked for them and they were a really great small firm doing plaintiff’s work. And, like many people, I was blind to what I should have seen much earlier. I was still narrowing down my plans for what kind of lawyer I was going to become. It was a general practice firm ranging in practice areas from family law, wills and estates, medical malpractice to criminal defense. But most importantly, they were really great people. I had friends who despised the firms and people where they worked. I had a huge benefit in that after two years of work, I really liked the people I worked with. I just hated most of the work. Bless the lawyers who handle divorce cases, but I wanted to go back to bartending before I took another family law case.

But before I got to the moment that I was going to become a client if I had to do another divorce case, I had also done two years of appointment work in public defense cases. One of the things about Ohio is that not all counties have public defender offices. RBC&S was in one of those counties. All public defense cases were handled by appointed counsel and the firm had committed to having all of the lawyers on those lists. But the reality of firm practice is that the partners, while on the list, rarely handled the cases when appointed. They gave them to the lowest associate – me.

And that was my first jury trial. It was an appointed case. I had been a lawyer for just about a year and I was about to handle a felony jury trial. The case involved a guy charged with burglary. He and his ex-girlfriend had children together and he was probably not getting over her as much as he should have. She, however, was over him and had moved on.

One morning, the kids call him and tell him that they are hungry and mom is not there. He goes and finds her at her new boyfriend’s apartment and barges in demanding she get up and get home to take care of the kids. He won’t leave until she gets up and comes outside to go home. The cops are called and, miracle of miracles, actually refuse to arrest to him. I remember getting the case file with the police report and thinking this is a mistake – I’ll call the prosecutor and get this cleared up – plea to a trespass (a low level misdemeanor in Ohio). But the prosecutor had already indicted for burglary and refused to budge. Ohio has one of those statutes where trespassing in an occupied dwelling is a burglary without anything more. No other act is required, just trespass in a house. My client was technically guilty, but the case seemed so damn wrong.

I was woefully unprepared. There was really little investigation to be done. The police reports and witness statements were clear. There was little dispute about what happened; versions differed a little and blame was allocated differently in each version, but the three versions all matched up at the important points. The unpreparedness was simply my inexperience. I had never tried a case. I did not know crap about proper cross. My objections were tentative and hesitant. But there were two good things in the client’s favor. Most people reacted like I did when asked about the charges, that this seemed wrong. And I had a judge who was going to give the trespass charge as a lesser included offense.

I stumbled and stammered through the day. The jury went out. I had always heard that quick verdicts are bad for defendants. The jury was back in 20 minutes. Not guilty of burglary, guilty of trespass. We would have pled to that months before, and the client was released with time served. I had tried my first criminal case.

Q. You resigned your gig in Franklin in ’94 to join the Montgomery County Public Defender’s Office, headquartered in Dayton. Here at Fault Lines, we’ve interviewed former PDs who were desperate to leave the profession and move on to things as unlikely as comedy, citing overwork, the lack of money and the misery of representing unappreciative defendants in the trenches as reasons to leave the life behind. Others, however, seem drawn to it.

What made you want to swim upstream? Why’d you trade it in for one of the most demanding and responsible jobs a lawyer can do? And when you arrived at the PD’s office, how difficult was it for someone used to private practice to adjust? Did you find you had fewer resources at your disposal? Was there less leeway to choose how best to represent your clients? Conversely, did the PD’s office come with a bigger storehouse of knowledge to draw upon? Were you mentored, or thrown in the deep end and left to swim?

A. I came to the realization of what I wanted to do while on a long drive home after taking my younger brother to college. Between my own appointed cases and those I handled for partners at RBC&S, about a third of my work was appointed counsel work. And those were the cases I enjoyed. As corny as it sounds, I got into law to help people. And despite my Con Law professor’s best efforts at beating the majesty of the bill of rights out of me, I was (and still am) completely awestruck by the founders and their foresight to create these fundamental rights. Today, a big sign hangs outside of my office, it is a quote from John Adams: “it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished…”

I had come to loathe much of my other work and it showed in the quality of work I was doing. And with this clarity, I resigned the day I returned from the trip with my brother and applied to the public defender office in Dayton, Ohio. I did not have a job with the public defender office yet, but I knew that was what I was meant to do.

I was hired a couple of weeks later and was doing what I loved. But I was drowning. The caseloads were and remain far too high. At first, trying to juggle 15 files for a morning call in a misdemeanor court was almost too much. Learning to focus on what was in front of me was really hard when I had so many other cases that needed something done. And the knowledge gap was huge — what was a lesser of what, when did the government have to prove a gun was operable, what are the elements of every criminal charge in the code? I was drowning.

But six months later, most of that was second-hand knowledge. Every day there had been another PD I could go to and ask another annoying question. Every day I could copy someone’s organizational system for juggling so many cases. And for the first time since I became a lawyer I could focus on the people in front of me and help them.

Q. By 1994, violent and property crime rates in Ohio were already falling from their peak in ’90. But had anyone noticed? The nation was in the grip of panic about crime, fed by “superpredator” rhetoric, kneejerk federal and state legislation and the impulse to ramp up the drug war to deal with the crack cocaine epidemic.

What was it like for Ohio public defenders in the mid-‘90s? Were you insulated from the madness, or was Montgomery County as hard-hit as any other? Was funding remotely adequate? Were enough public defenders being hired to deal with the influx of indigent clients? Was the kind of grotesquely excessive caseload PDs across the country are expected to shoulder today common back then? And what were your bosses at the Montgomery County PD doing in response?

A. Montgomery County PD remains a place of which I have very fond memories. It was where I became a trial lawyer and then a manager and office leader. But Montgomery County was like everywhere else. Caseloads exploded. There were 100,000 new police on the streets across the country, we doubled down on the failed war on drugs, and tough on crime was and is the hue and cry of too many policy makers.

But Montgomery County was far better prepared to deal with some of it. Years before caseloads exploded, a jurist, Carl Kessler, had the amazing capacity to bring unlikely groups together, and he essentially overhauled the county justice system and put in place a systemwide case management plan. This plan includes open discovery available upon indictment, a very coordinated scheduling of dockets, and active participation from all the players in the case.

The court also instituted a mentoring system for new judges, and this helped bring a consistency to sentencing within the court with variations being far less than seen elsewhere throughout the state. Having these kinds of systems in place helped absorb some of the extensive caseload growth. But at some point, the money stops keeping up. The caseloads creep up, the budget lines for experts remain flat even though there are more cases, the amount of money dedicated to training declines. Budgets continued to increase but at a slower pace than caseloads. I had too many cases. We all did.

But I was never pressured to not try cases or file motions. In fact, just the opposite. I never had an expert request denied when I needed it. I also never once in the 14 years that I worked there, saw a lawyer take a verdict alone. The Montgomery County PD office had 40 lawyers and there were regular jury trials across the office. Regardless of when a jury came in, I cannot think of one time that other PD colleagues had not remained to be there with the lawyer and client when a jury returned. The dedication of my colleagues is what keeps me going every day.

Q. It didn’t take you long to make it into a leadership position. In 1997, the Supreme Court of Ohio appointed you to the state Public Defender Commission, where you and your fellow commissioners were responsible for overseeing the Office of the Ohio Public Defender – which you now run – and allocating money to PD’s offices throughout the state.

Was the lege generous enough with the money it set aside for public defense, or were Ohio’s elected officials like those in most U.S. counties and states in that they’re reluctant to fund a service that, though mandated by the Constitution, doesn’t win them a lot of love from voters? How independent was, and is, OPD’s funding? How’d you divvy up the money? And should Ohio, which has its fair share of counties without trial PD services, be doing more to expand access?

A. The undeniable reality is that public defense is woefully underfunded in Ohio. Ohio is a “home rule” state. Local delivery and control of governmental services is the model. Ohio divides its public defense funding between the state and counties. Originally, this split was to be 50/50, but the state has underfunded the appropriation to meet 50%, going as low as 25% in 2008. This places a burden on the counties, and with a larger share, the counties are even more reluctant to increase the budget dedicated to public defense.

OPD’s operating budget is drastically underfunded. From FY 2000–2015, OPD’s operating budget grew only 7.7%, or half a percentage point per year. The Consumer Price Index during this same period increased 37%. Caseloads, workloads, and the prison population have all grown dramatically. But OPD has lost nearly a third of its staff.

A decade ago, the Ohio Supreme Court created a group to examine indigent defense in Ohio. The Task Force that issued the 2006 Report and Recommendations on Pro Se & Indigent Litigants found that:

Funding dedicated to indigent criminal defense in Ohio … totals $128.8 million in fiscal year 2007. The task force believes, based on its understanding of the needs of the system, that $148.7 million is a more appropriate figure.

Despite consistent growth in the size of Ohio’s criminal justice system, the total funding dedicated to indigent defense remains below that recommended figure, ten years later.

Building a high-quality indigent defense system will cost Ohio substantially more than it currently spends on the system, but other areas of the criminal justice system will realize cost savings as a result of improved defense services. Local jail populations and costs will stabilize or decrease, as defense attorneys identify alternative placements or monitoring systems for clients awaiting trial, and as cases are processed more quickly and efficiently. Ohio’s prison system will benefit, as more sentences will be legally sound and appropriate, and as more clients are diverted to appropriate community alternatives. And Ohio’s courts will realize efficiencies and savings, as defense attorneys are more prepared to proceed with cases, better able to represent their clients, and less likely to commit constitutional errors that result in legal appeals.

A high-quality indigent defense system increases public safety by ensuring the right people are in prison, serving the right sentences. Well-trained, adequately supported defense counsel are also the most likely obstacle between an innocent Ohioan and a wrongful conviction.

Q. In 2008, you took over as state public defender after fourteen years in Montgomery County. Now that you had your hands on the tiller, what were some of the first reforms you wanted to undertake? Was the transition from lawyer in the trenches to high-profile administrator a smooth one? Had anything in your career prepared you for the responsibility of overseeing a large staff? What about the responsibility of ensuring access to quality representation for so many Ohioans? Did you ever think to yourself, “I wish I were still in the well?”

A. I don’t know of anything that prepares you for a job like this. I joked with people for the first six months: don’t tell me anything new after 2:00 p.m. as my brain was full for the day, already overloaded with all the new information I could possibly digest.

But a few things were obvious. The first was giving the juvenile section the same status as the adult divisions within the office. I believe public defense does a distinct disservice to children and the justice system when we use juvenile court as a training ground for lawyers – when we treat it as ‘kiddie court’. These are children, they deserve our best. So, when I got to OPD, my first ‘official act’ was to restructure the office so the juvenile section was not a subset of another department but instead a department of its own, on the same footing and stature as the other departments within the office.

The second major effort I knew I wanted to undertake was to try and bring the public defense system together. Being a home rule state, each county office is independent. For years in Montgomery County, both as a lawyer and as a manager, whenever I was trying to solve a problem I always thought to myself that someone in Ohio must have addressed this problem before. But there was no coordination of information flow between county PD offices. Each was an island without much contact with other PD offices across the state. And the state office, OPD, had something of an ivory tower reputation. It was viewed as insular and not necessarily as a resource for those working in public defense across Ohio.

This outreach project is continuous to this day and into the future. During my first year I started by getting in the car and driving to every county PD office in the state. I wanted to meet everyone and make sure they knew that OPD was here to help. This is a project that continues to this day. OPD has staff going somewhere across the state every day. We hold annual conferences for all of the county PDs. Our website is driven by user needs. We host a caselaw handbook, a motion bank, immigration guides, a collateral consequences database, and numerous other resources.

Finally, OPD now has a Policy and Outreach division. One of the main purposes of this division is to coordinate with and assist county PD offices and appointed counsel throughout the state. Public defenders by their nature are non-conformists. We are not joiners. We reject authority. But, we are stronger together. We can be better lawyers when we share our work, when we coordinate our efforts, and when we speak with a unified voice for our clients and for the resources we need to help them.

Q. One of your signature achievements as Ohio Public Defender was the creation of the Wrongful Convictions Project, which, since 2009, has sought to free innocent Ohioans languishing in prison for crimes they didn’t commit. Where’d the impetus come from? The project was initially funded through a donation from the Moritz College of Law, paid for by TV reporter Erin Moriarty, who’s put out a great deal of coverage of wrongful convictions. How’d you get that grant?

DoJ subsequently signed on and agreed to provide additional funding, allowing you to expand WCP and hire more people. It’s not easy to get the feds to open their purse strings for so eminently worthy a cause. How’d you do it?

Since its inception, WCP has made use of law students to review prisoners’ claims of innocence. These days, it’s trendy to complain about the flakiness and unreliability of young soon-to-be lawyers. Is that true of the kind of law student attracted to helping out the public defender?

And finally, how many prisoners has the WCP freed in its seven years of existence? Is the project high-profile enough? Does the average Ohioan know about the good work you’re doing?

A. I want to answer these questions, but I also have a distinct desire to answer a broader question about the people who do this work. So, let me try to do both and answer the question and also use it as a jumping off point.

As a public defender for 14 years in courtrooms, nothing scared me more than an innocent client. It was terrifying to think of someone locked up in a cell for something they did not do and making sure I stopped it from happening. And DNA testing had revealed how flawed so many of the other “forensic sciences” are, and the unreliability of other evidence we rely upon to convict people and take their freedom. But DNA exonerations meant there had to be hundreds and thousands of more cases that had the same faulty science or unreliable evidence. When I became state public defender, Ohio already had the Ohio Innocence Project, a DNA-based exoneration group that is doing tremendous work, headed up by Mark Godsey and housed at the University of Cincinnati.

I also had the privilege of representing two individuals who were exonerated. (State v. Aldridge) Along with three other lawyers, we represented two clients who had been convicted of molesting a group of children in an apartment complex in a twisted and sordid tale that was unbelievable on its face years later. But right after the McMartin preschool case, everyone was looking for these kinds of cases and was determined to find them, evidence be damned. It was one of those cases that you remember forever, but the highlight was the state had fought us on discovery. In Ohio, discovery is discretionary in post-conviction actions. We had won the right to an evidentiary hearing, but the state had won the discovery battle – they thought. We already had volumes of Brady violation material we had obtained through public records over the years.

So we are in the hearing and there has been no exchange of anything, not even witness lists. Somehow, we had gotten Dr. Richard Ofshe as an expert in our case. Dr. Ofshe is a nationally-known leading scholar on false memories and coerced interrogations. This leads to this classic courtroom moment when Dr. Ofshe is called to the stand, the state does not know who he is and does not even have his CV. He is asked about his qualifications and awards. As he relates that he has won the Pulitzer Prize for Public Service, the lead prosecutor leans over and whispers a bit too loudly to her subordinate, “Oh crap, you take him.” Both clients were ultimately freed and remain out today.

With that background, the Wrongful Conviction Project was a no-brainer, as was the fact we needed to expand the types of cases we looked at – to the non-DNA side of the house.

As to how we got it funded and our students, I cannot say enough about the people involved. Erin Moriarty and Moritz School of Law have been the backbone of funding. We awarded Ms. Moriarty our Defender of Justice award in recognition of her commitment to the project. DOJ started guiding more grant money towards innocence projects, and we got turned down the first time we asked. It was our second effort that was rewarded.

And the law students are the only way the project could ever be successful. Our experience has been the exact opposite of the way the question is phrased – the students we have involved in the project make it function. We could not collect the relevant case documents, review the requests, and review the files without the students. Our staff lawyer assigned to the project, Joanna Sanchez, was hired directly from Moritz as part of the project.

And this is where I want to jump off and speak a little more broadly than the question asked. Public defense is about the people. It has been fun to answer these questions, but it also makes me a little uncomfortable in that I am only as good as the people I work with. People are drawn to this work. I think there are one or two career public defenders per law school class – people who do the work because it is a calling. They come to PD offices with a shared belief system in fundamental freedoms and individual liberties. They come to help those who need it the most. They come to try and rebuild lives. That is not to say that others do not share these beliefs, there are many. But PDs feel a need to do this work.

My job, as a leader, is to make sure we hire those who have this devotion to the mission and want to be career public defenders and then do everything in my power to lobby for the tools, systems, and policy changes that will allow them to do their jobs at a very high level. So, it is about them. Yes, there is great pride in our Wrongful Conviction Project, but it is the people who make it great – our project director, Joe Bodenhamer and his team. Our Juvenile Department was recognized nationally by the National Juvenile Defender Center. It is due to the people who do the work – they are amazing.

Our Legal Department has been involved in huge victories, ultimately winning the first constitutional challenge to Adam Walsh legislation. Our Death Penalty division has been involved with more clemency success than anywhere else in the nation and Ohio is ground zero for lethal injection litigation. This is true across OPD – whatever goes well, whatever recognition I have is really and truly only because of the work being done by the lawyers, investigators, mitigators, IT staff, administrators, and all of our support staff. If I thought there was a prayer it would not be edited out, I would list each and every one of the amazing employees here at OPD because they deserve the recognition!

Q. Is Ohio doing enough to fulfill Gideon’s promise? Funding is one major problem, but funding by itself isn’t enough. Strickland v. Washington established that the accused have the right to an effective lawyer, but set the bar so low as to be satisfied by breathing and the occasional “huh?” As such, it’s possible to pay lip service to an indigent defendant’s Sixth Amendment rights by giving him, not a lawyer capable of effectively and zealously representing him, but a warm body to prop up in the courtroom.

What can the state public defender do to ensure the lawyers entrusted with the poor are not just well-funded, but appropriately trained and ethically up to snuff? For that matter, what should the lege be doing?

You’ve been a major proponent of reform in this regard, including on the national level – you even met with former AG Eric Holder to discuss the issue. Could the feds be doing more? Should they be? Are national initiatives to hold indigent defense to high standards the answer, or is this a problem that defies a uniform fix?

A. Frankly, with the exception of a handful of places in this nation, no state or local government is doing enough with regards to funding. Even with a lack of funding there are still things that can and should be done. And it is public defense leaders who must seek change. No one is going to fix this broken system for us.

As noted in the question, Strickland’s second prong essentially reduces the quality of the lawyer to a lump of flesh in many cases. We support this crazy fiction that if the evidence of guilt is overwhelming it does not really matter how badly your lawyer performed – drunk, sleeping, who cares. But isn’t the corollary also true, crappy lawyering makes the evidence look overwhelming? We have a system of review that presently values economy over fundamental fairness. Because that is what Strickland really holds, you are not entitled to a fair trial or an effective lawyer if you are ‘really’ guilty. We should do better. Think how differently the system would function if the second prong of Strickland did not exist. Everyone would be incentivized to make sure the client got a fair trial – not a perfect trial, but a fundamentally fair trial where competent counsel was involved.

As a state public defender, there are still steps towards improving the quality of the system that can be taken regardless of holdings like Strickland.

First, we have invested heavily in training. We sponsor seats at numerous CLEs around the state. We partner with the National Defender Training Project to put on a trial school every June and we fully fund 40 attendees. If I could, I would double or even triple the training budget.

Second, we have undertaken the building of a case/client management system. This system will provide one platform for public defense professionals across the state to enter data and records about the cases they handle. This will be provided free of charge to county PD offices and court appointed counsel. Ultimately, we will collect a very detailed set of data about public defense in Ohio. We will be able to make much more effective arguments about the need for reform, and we can be much more detailed about the degree and location of problems.

Third, the Ohio Public Defender Commission has recently passed a full set of comprehensive administrative code rules governing the qualifications of counsel and the necessary resources for a county public defender office or a not for profit organization.

While these will not solve the problems of inadequate funding, we will ultimately raise the bar for performance, have a much better understanding of how clients are being represented across the state, and reduce the number of cases that need resources dedicated to fixing what we should have gotten right the first time the client was represented.

Q. You ended 2016 with an amazing array of decisions out of the Ohio Supreme Court, including a declaration that mandatory bindover for kids is unconstitutional; that a term of years that exceeds life expectancy for a child is unconstitutional; and a new standard that makes police records and other governmental records available as public records upon conclusion of the trial. Not too shabby. Where do you go from here? What about the death penalty? What are the big issues you hope to slay in 2017? And what happens to Tim Young next? Is there a robe in your future? Or maybe you miss the good old days of crossing a cop and watching his eyes well up with tears?

A. As a PD, you dream about the two weeks we had at the end of term in 2016 from the Ohio Supreme Court. There were a plethora of a groundbreaking decisions released.

All 7 members of the Ohio Supreme Court agreed that a statute that limited DNA testing in death penalty cases is unconstitutional. The Ohio Supreme Court reviewed the statute and the State offered the following purpose: Ensuring that the final judgments of its courts are expeditiously enforced. The Ohio Supreme Court disagreed:

“Are we to take this to mean that expeditious enforcement of the death penalty is the guiding factor and goal? Are we to value speed over certainty? Of all cases that cry out for certainty, it is cases that result in the extinguishing of a human life. If, however, the generic expeditious enforcement is the basis of the state’s argument, even a cursory investigation reveals that this rationale is faulty. See State ex rel. Nyitray v. Indus. Comm., 2 Ohio St.3d 173, 176, 443 N.E.2d 962 (1983). Indeed, expedience is subverted by the statutory scheme.”

In State v. Moore, the court held that “pursuant to Graham, a term-of-years prison sentence that exceeds a [juvenile] defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.”

In State v. Aalim, the court held that mandatory bindovers of juveniles violate the Ohio Constitution. It is difficult to describe the scope of this win and how many children’s lives will benefit from it.

Finally, the Court handed down a case that completely opened up public records requests for post-conviction litigation. Today, in Ohio, the police files become public record upon completion of the trial.

Whatever else I may have thought of 2016, it ended well – it is impossible for me to be prouder of all of the staff at OPD, what this kind of work says about each and every one of them. These decisions are the result of huge team efforts that include every department and support from every part of the agency.

As to my future, OPD just finished celebrating 40 years of service. My goal, if they will have me, is to be here when the agency turns 50 and then retire. I have my dream job. I am not looking to go anywhere. I never pictured myself in a robe. And while I desperately miss trying cases, I love my job today. I am a career public defender and I am deeply proud of that. If I can finish my career at OPD and then teach a little as an adjunct professor I will be happy, for I will have spent the vast majority of my career helping people in need, people without resources, people without a political voice, people without a home. But how we treat people is the measure of the strength of our community. How we treat those in poverty, those who have the least, that is the measure of our community.

And this is what I hope the legacy of our work is at OPD – we helped people. We helped offices improve, we helped lawyers with problems, and most importantly, we helped clients.

Cross: Justice Mark Dwyer, From Wingman To Law Man

December 21, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross former loooong-time Manhattan Appeals Bureau Chief turned Acting Supreme Court Justice, Mark Dwyer.

Q. You got into Princeton at the end of the Summer of ’68, graduated in ’72 and went straight on to Yale Law. In retrospect, those choices weren’t so bad, but what possessed you to go to these very prestigious schools at a time when counter-culture was king? Obsess about the moon landing? Party uncontrollably? Go for a tour of Vietnam? And why law school? Going in, was it your plan to make your mark as a prosecutor (and, maybe, jurist)? Or do these things just . . . happen? When you packed your bags and left for New Haven, where were you really headed?

A. The “why law school” part is the easiest. Dad was a lawyer (and judge; I inherited the Judicial Gene). My mom’s father was a Biglaw lawyer (if that can be said of any lawyer in Erie, Pennsylvania). Three of my uncles were lawyers. Two of my sisters are lawyers. Plus, it’s easier than math.

Growing up in the heartland, I always heard that the Ivy League schools taught you more. We’re talking 1968, for college admission. I assume that what I heard is much  less true now, but it seemed a goal worth shooting for. My dad had chosen Harvard Law, so he was able to understand my view.

The counter-culture was not quite my style, but it could be said to have led to my acceptance at Yale. I applied in 1972, when Yale Law School had just been rocked by a couple of years of protests in what the profs considered “The Dark Ages.” My application was still on hold over spring break, when I went north to check out another school. So I stopped in New Haven to look around there as well.  I knocked on the door of the Dean of Admissions, dressed in a blue sport coat and a button-down shirt, and had hair the same length as now.  He hemmed and hawed, and said, “we haven’t decided.” But when I got back to college about five days later, I found the “fat” envelope waiting for me.

What was my goal? I was going to be a litigator. Not one who takes depositions and settles; I would try criminal cases for somebody.

Q. At Yale, you roomed with a fellow Princeton ’72 alumnus, a kid from New Jersey by the name of Sam Alito. Were you already friends in undergrad? What was it like, living, sharing meals and facing down the horrors of law school with a future SCOTUS justice? Was it enlightening? Did you think your roomie was destined for the big bench? Did you have to teach him how to pronounce Latin correctly? And what did two young law students do in the evenings for, ahem, fun?

A. We knew each other well in college. We were both in the college debate group, ate at the same dining facility, and had many mutual friends. And we were similarly, um, “anal” enough that visitors to our suite considered it a trip to see “the two Felixes.” Sam was much more the diligent student, making no noise, and thus was an ideal roommate.  And it is no surprise that he has done so well — though it is always against the odds to get where he has.

When we discussed matters, he always thought he won the argument. I knew he was always wrong. Those who speak of “sibling rivalry” don’t understand how much more intense “law school roommate rivalry” can be. It was when I heard Sam was going to be a Supreme Court Justice that I resolved to be a Supreme Court Justice too.  Et voila!

Q. After you graduated, you spent a year clerking for Judge Platt, EDNY, and another teaching writing at NYU Law. Now, your judicial opinions are notable not just for being thorough, but for their clear language and straightforward style. Did you ever consider going the Bryan Garner route, building on that early job and committing yourself to improving the state of legal writing? How bad is it, really? Are lawyers too prone to wordiness, boilerplate, bad prose, empty conventional phrases? And what about judges, who have to deal with and produce more writing than anyone? Do you ever wish you were a prosecutor again, so the pain of reading bad motions would end?

A. My one-year NYU job happened only because I didn’t get hired by the Manhattan D.A. on my first try. A law school friend, Nancy Ryan, encouraged me to re-apply and encouraged Mr. Morgenthau to take another look. Being any kind of an academic was of no interest to me.

But: boilerplate motions are silly — except that they are something that overworked defense attorneys have to file to survive. Any unusual point they have in their favor gets lost when they push the buttons to copy what their colleagues said in the last 1000 cases. Prosecutors read those motions too — and respond with boilerplate of their own.  And so do judges.

Beyond that, the simplest thing to improve lawyers’ writing?  Divide those long sentences. It’s easy.

Q. With a resume like yours, you could have gone to work for any white-shoe firm in the country. Instead, you chose to dedicate yourself to public service, signing on with the New York County District Attorney’s Office under the legendary Robert Morgenthau.

Why? A passion for prosecution? Did you see yourself in the well, battling for victims and putting away the bad guys? Were you, like your new boss, a product of your time, committed to prosecution because it was an honorable calling and something the community needed? Do public servants like that exist anymore, in this access- and status-obsessed age?

A. Plenty of public servants like that still exist, and are desperately needed. They fill not only the DAs’ offices, but the defense offices and the court offices as well. By the time I left law school, my ambition was to be (if I may date myself) Perry Mason, but on the other side. I was lucky to have the option of not going to work every day, just to get paid.

Q. Obligatory first trial question. This would be back in 1977, when the City was a radically different animal than it is today. What were the facts? What was it like, standing in the well for the first time? Going in, did you think you knew what you were doing? And if so, did your confidence turn out to be well founded? Looking back now, were you all you thought you were at the time? Do you smile or cringe?

A. In a job interview, Peter Zimroth, then the head of the Appeals Bureau, asked: “gee, it wouldn’t be so bad to start in appeals, would it?” Not being the world’s dumbest interviewee, I said, “gee, that would be great!” I figured my Perry Mason moments were on hold for just a year.

But within a month I realized that appeals was perfect for me, and I settled in for the long term. The law was more attractive to me than all those grubby facts. As to the law, I had much to learn, but a lot of good teachers.

I did try one case later, just for fun. The guy was a pick-pocket. An E felon. I nailed him.

Q. You lasted 33 years at one of the nation’s highest-profile DAs offices, run by a professional with exacting standards. Did you immediately discover you were well-suited to the job, or did it take you some time to adjust to the workplace and the reality of prosecution? Did someone mentor you, help you get oriented, or were you entirely self-taught? Ever think to yourself, “I made the wrong choice?” Secretly wish you’d gone into defense?

In 1985, you became chief of the Appeals Bureau, perhaps the law-wonkiest job at 1 Hogan Place, where you remained for about 25 years. Was it that great? What was the worst thing you ever had to deal with as head of Appeals? Looking back, what impact did your tenure have on New York criminal law?

A. I always tell people that being a judge is the second-best job I’ve ever had. I loved appellate litigation. Every defense brief posed puzzles, factual and legal, and they paid me to play the game of solving puzzles. I was proud of my written work, if I made it the best I could. And oral argument is more fun than watching your favorite football team win the national championship.

My most entertaining was a habeas corpus argument before an en banc Second Circuit panel. I never got closer to the Supreme Court podium than to the chair beside Bob Pitler in two cases, but I had plenty of fun anyway.

Bob and all the senior appeals ADAs were, indeed, mentors.  Every substantial brief was edited by someone senior to the writer, and so you learned on every brief. The worst thing? When you are the bureau chief, you have to spend a lot of your time on administrative matters. But as the bureau chief, you get to pick the most interesting cases to do yourself.

In that regard, whatever impact I’ve had on the law has been as part of a team effort. In a public office with a very large caseload, it can’t work any other way.

Q. New York’s changed a lot since you started out as an ADA. Gone are the days when you had to fear for your life while walking through Central Park. Even relative to the rest of the nation, New York’s crime rate plunged precipitously during the ’90s. To what extent can we attribute the change to the work of prosecutors? What about cops, who, a couple of decades ago, didn’t always act with the integrity of today’s NYPD (think Knapp and Mollen Commissions)? Was it always a picnic, working with them to score convictions?

And has our newfound state of security, something most Millennials take for granted because they’ve never known anything else, blinded us to the importance of what prosecutors do? These days, even the Grey Lady occasionally takes up the “prosecutorial misconduct” refrain. Is this a case of Chesterton’s Fence, where people attack an institution without really understanding why it exists?

A. As a kid from the sticks, I was startled by crime conditions in NYC in the late ’70s and early ’80s. I was mugged one and a half times. I remember having to avoid the last car, the “marijuana car,” on the subway. I like the city better now. My daughter will never know that seedy a place.

Prosecutors worked hard, but we didn’t clean it up. The same, I think, with cops (with whom, as an Appeals ADA, I never worked). Times simply changed, as they always do, and this time far more likely for economic reasons than legal. But it still isn’t “all clear” out there. I see fact patterns involving conduct just as depraved as in the old days — just not as many of them.

I’m sure there has always been prosecutorial misconduct. I’m guessing it was far more prevalent in days gone by than now. Now, though, we are suddenly willing to look at it, as fear of criminals has lessened. And that is, of course, a very positive thing. We all agree that we can’t have privileged lawyers above review, for absolute power still corrupts absolutely. And that goes for judges and defense attorneys as well.

Q. In 2010, there was a major changing of the guard at the New York County DA’s office, the first real shake-up since you joined. Outgoing District Attorney Morgenthau, like you, with over 30 years of service to his credit, retired and was replaced by Cy Vance, who, in addition to refurnishing the office, moved some Morgenthau veterans out of their jobs and replaced them with his own people.

Before Morgenthau retired, you’d spent 25 years at the head of the appeals bureau and, at the end, served as his Chief Assistant. Then three weeks after he left, Governor Paterson nominated you to the Court of Claims. Did that appointment come at a good time? Were you eager to try your hand at judging? Thirty-three years as a prosecutor seems like long enough for anyone– were they? Were you ready to stick it out with a new District Attorney?

A. Essentially by accident, I had to fill a gap and become chief assistant when the boss had about seven months left in his final term. It was obvious that Cy would, quite naturally, bring in his own chief assistant. The boss was then kind enough to recommend me to the governor, and so I wasn’t suddenly out on the street.

And, as you suggest, after all those years I was rather ripe for a new challenge.  Plus, having a mandatory retirement age makes things simpler.  At 70, I will be quite happy to do a little more non-legal reading than I can now. But I would have been quite content to finish as an appellate lawyer.

Q. As a judge, you’ve written a number of decisions that could be interpreted as “defense-friendly.” But really, what you do boils down to looking beyond surface appearances. In People v. Abdul-Akim, you suppressed evidence after the police systematically violated the defendant’s Fourth Amendment rights. In People v. Hazzard, you weren’t afraid to call out a cop when the defense showed he lied about being given consent to search a home. And last year, in People v. Collins, you refused to sign off on junk-science, even though other judges had held their noses and done so.

Defense attorneys like to complain about former prosecutors serving as judges. You, however, have proven to be profoundly committed to deciding cases on the merits and without of bias. So are the kvetchers wrong? You served in an office known for its integrity, and contributed meaningfully to that reputation. Is what you do now an extension of your work ethic from your prosecutor days? And while you may not act on it, do you ever feel the pressure to do your former colleagues a solid?

A. In the DA’s office, I generally advised trial lawyers that if the legal argument passed the giggle test, and they really, really needed to do something, then they should do it (and let the appeals bureau clean up afterwards).

I think some of my former colleagues have been surprised at a few of my rulings, which don’t necessarily endorse steps I would have advised them to take back then. But I have a different client now. I have had no trouble changing gears, and looking at legal questions from a different perspective. A very large number of my judicial colleagues, in Brooklyn and now in Manhattan, were experienced prosecutors. I don’t think they have a problem making neutral decisions. Nor do my colleagues who used to be defense attorneys.

I will confess one thing. When I suppress evidence, I still feel sick to my stomach.

Q. Normally, we use the last question to ask where you might be headed next. But you’re now an Acting New York Supreme Court Justice, meaning you’ve just about reached the apex of the profession, and will suffer mandatory retirement in 2020. So instead, tell us some judicial war stories. Has it been as much fun on the bench as you hoped? How heavy are the shoulders that wear the robe? And what do you think of being told you’re soon to be over the hill? Do you miss the trenches, and ever wish you could go back to the well or the lectern for one last fight?

A. Who knows, maybe I will visit one or two courtroom lecterns after I retire. But as I’ve said, I have no problem with quitting full-time work at 70.

Being a judge is mostly fun. People suddenly have to laugh at my jokes; that never happened to me before. You worry about what your decisions will do to people’s lives, but most of the time, that can’t control your decisions. So you do your job. “Next case.”

War stories? Well, just briefly. I had a Sovereign Citizen defendant who, at a pretrial appearance, asked if he could say something. He told me that the American flag behind the bench was illegal. It had nothing to do with his “sovereign” philosophy. He said that the gold fringe around the flag was permissible only for flags used by the military. I looked it up. He was right. (But the flag is still there.)

I try to treat defendants like the human beings they are. Just talking to them civilly and explaining what is happening is key. Most defendants respond well to that, which makes life in the courtroom much easier. I especially remember one fellow in Brooklyn who started out very angry with the criminal justice system, and very loud about it. By the time I sentenced him, he was happy as a clam and told me he was looking forward to having me as his lawyer when he was released from state prison.

Cross: Brad Heath, Where Legal Journalism And Investigative Reporting Meet

December 14, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg  cross USA Today investigative reporter and lawyer, Brad Heath, who won the Hillman Prize for Newspaper Journalism on prosecutorial misconduct.

Q. You studied poli sci at Colgate in upstate New York, graduating Phi Beta Kappa and at the top of your class. The cool thing about poli sci is that it’s flexible, a good springboard for a number of careers. So what made you want to choose the daily grind, penury and lack of appreciation of a journalist’s life? Why not go to DC, or do an MBA, or go directly to law school? What was it that attracted you to the Fourth Estate?

A. Honest answer: Being a reporter always sounded like more fun.

I started in newspapers when I was in college, and was lucky to work at small papers that let me cover things interns had no business covering. I went to crime scenes, interviewed politicians, chased storms and firetrucks, and once ended up dragging a date to an arson and a murder arraignment. I couldn’t imagine giving that up. I still can’t.

But I also have different – and probably better – reasons for staying with it now. The press does important work. At our best, we hold those in power accountable for how they wield it. We reveal the decisions they would prefer be kept secret. We show the consequences of those decisions, for good and ill. We help people see and experience the world in which they live. Those things strike me as important and worth doing.

But it’s still fun.

Q. You cut your teeth at the Press & Sun-Bulletin in Binghamton, New York, a local paper serving a metro area of about 250,000 people (then as now). As head investigative reporter, you were responsible for covering major national stories, but you also instigated investigations of your own. We keep hearing that small-town papers are beleaguered and struggling to compete with the big nationals, but do local papers have competitive advantages of their own?

Did the local focus of a paper like the Press & Sun-Bulletin allow you to devote time and attention to stories that would otherwise get lost in the noise? Was there, perhaps, more recognition for your journalism than you’d have gotten in a massive newsroom? Or was it all bad? That early in your career, was it intoxicating to be responsible for presenting the news to your slice of America? Or were you eager to move on to the big leagues?

A. I loved working for a small paper in a small city.

First, opportunity was there for the taking (and – attention young journalists! – it still is). The Press & Sun-Bulletin hired me as a health reporter, and I probably wrote a dozen health stories before my editors let me go off and cover Hillary Clinton’s first Senate campaign. They let me dream up investigative projects that took six months to execute. They sent me to New York the day after the terrorist attacks on September 11, 2001. They let me borrow a radar gun from the local baseball team to try to catch speeding cops. They didn’t use the word “no” a lot.

Second, local connections really matter. It helps to know the people you’re covering, and the readers for whom you’re covering them. It helps to be able to get in the car and go talk to people. (These days, there’s a good chance I’ll have to book a flight.)

Third, local institutions matter. The national government is huge and powerful. But it was local housing inspectors who failed to stop a landlord from letting his low-rent apartments deteriorate to the point that they became a danger. Local police have a lot more impact on a lot more people than the FBI does. Local politicians control the property taxes. Some of those institutions work really well; others don’t.

One of the last investigations I worked on in Binghamton showed that local property taxes were badly out of balance, meaning many people paid far too much because their neighbors paid too little. Our readers devoured it. And they showed up in town halls and used our research to challenge their tax bills. I was too young and too naïve when I started as a reporter to understand just how important that kind of coverage is. I’m still learning.

Small newspapers – all newspapers – really are struggling now. They still put out a pretty good paper in Binghamton, but it’s a fraction of what it was when I left 14 years ago. Like everywhere, there are fewer reporters and editors to cover a more complex world. Local papers’ competitive advantage is that they’re not competing with The New York Times or USA TODAY. In a lot of places, they’re still the only source for timely and reliable information about your schools, your taxes, your roads, and your mayor. When I worked in Binghamton, our main competitors were a pair of local TV stations, and a lot of what you saw on their evening news was based on what they learned in the morning paper.

Q. In 2002, after two years at the Press & Sun-Bulletin, you moved to the Detroit News. There, you got your first taste of the power of journalism when an expose you wrote on dangerous drivers led to the passage of a law that mandated harsher penalties for drivers with bad records. Did you expect that kind of reaction? Was passing a new law the right response? Your previous work, covering federal, state and local malfeasance at the Press & Sun-Bulletin, presumably taught you the risks of kneejerk government intervention. It’s gratifying for a journalist’s work to have real impact, but were you at all mindful of the potential downside of drawing attention to something that could result in the passage of a bad law?

A. Last part first: No.

Part of this is an institutional bias. I think you’re right that reporters like to see people act on the information we provide. I do, because it means somebody thought the story was important. Good journalism can stir people to outrage, kindness, or even legislation. But we should pause more often to evaluate that impact. But that gets to an even bigger (and, in my view, appropriate) institutional bias in favor of telling people about things.

We provide people information; what they do with it is up to them. I have a hard time imagining a circumstance in which I’d even contemplate not reporting on something because politicians might respond by passing a law I don’t like. What we should do – and often don’t – is follow-up, and try to figure out whether the government actually fixed the problem, and at what cost.

I don’t know the answer to how Michigan’s bad-driver law worked out. Somebody should probably find out.

Q. You arrived in Detroit while the “9/11 Changed Everything” trope was still very much in effect. What impact did that have on the stories you covered, the view toward law enforcement, who enjoyed the reflected heroism of police and firefighters who lost their lives at the Twin Towers? You covered areas like anti-terrorism measures in a major city. Was there serious scrutiny at the time? Was it acceptable to question or challenge Detroit’s handling of terrorism issues? Did you? Looking back now, would you have handled it differently?

A. I’ll say at the outset that I was a small player in our coverage of anti-terrorism issues. This was a huge issue in Detroit, where the government brought one of its first major terrorism cases after the September 11 attacks, and The Detroit News was already covering it aggressively when I arrived. Some of the paper’s top reporters were watching the Justice Department’s tactics pretty aggressively, and asking smart questions about who they were targeting and why. That led to an impressive investigation of how the federal government was looking for terrorism suspects in the local Arab community.

I got involved later, when one our reporters wanted to follow the legal trail to city court in Dearborn, Mich., where Arab residents complained that they were being targeted by local police. We reviewed the court’s electronic dockets, matched surnames against lists of Arab and Muslim names, and talked to a lot of people. There weren’t many rocks we didn’t turn over. I was involved in some of that coverage; I learned a lot by watching skeptical work by excellent reporters.

Q. Unlike the vast majority of journalists who write about the criminal justice system, you’re an honest-to-god lawyer with a fancy degree from Georgetown. But you didn’t go to law school until 2007, one year after you started at USA Today. What made you want to subject yourself to that particular torture? A more in-depth knowledge of the field you were covering? But plenty of dilettantes without an education to speak of manage to turn out criminal-justice copy. Standards too high for legal journalism a la Slate and Gawker? Or were you secretly planning on a legal career? What gives?

A. True story: I actually liked law school. Or at least most of it.

My editors were nice enough to let me go at night. A few times, I filed stories from the back of the classroom. I analyzed foreclosure patterns in Denver during torts. But somehow I still ended up learning a lot about a lot of things, in no small part because Georgetown’s night program attracts a fascinating mix of people working in DC. I learned intelligence law in a class full of intelligence officers. I learned about detainee reviews in a class whose students had previously run detainee tribunals in Iraq. (The torture was realizing that we’d be graded on the same curve.)

I went to law school in part to make myself a better journalist, and in part because newspapers were struggling and I wanted to have an escape hatch if I needed one. Then, about halfway through, a friend from college emailed to tell me he’d been laid off from his law firm and to ask whether it would be a good time to get into newspapers. Some escape hatch.

Q. Coming out of law school, big-time national reporter that you were, you still managed to be at the top of your class, magna cum laude and, ahem, Order of the Coif. With a pedigree like that, did you consider monetizing that effort and going to a big law firm to make it pay? If you had chosen to practice, would criminal law have been your thing or would a cushy gig at mergers & acquisitions have suited you well? You’re admitted to practice in state and federal court in Virginia? Have you given it a try? Do you want the chance to make a federal agent cry on cross?

A. By the time I got to my last year of law school, I wasn’t really thinking about going to practice law. But one day, a career counselor emailed to tell me that Georgetown had assigned me a career counselor, and to recommend that I apply anyway. I did, and I talked to a couple litigation firms.

But I ran into two problems I couldn’t get over. First, I’ve been lucky in my career that my editors have let me go after pretty much any subject or story I wanted. It’s rare when they tell me what to do, and rarer still that I listen. So doing what the client wanted wasn’t totally appealing. Second – and more important – is my time. I remember interviewing with a partner at a litigation firm who was a couple years older than I was. He had a picture of his son on his desk. And he told me that although he typically worked insane hours during the week, and on Saturdays, his wife knew that Sunday afternoons were usually for her. It was a clarifying moment.

I’ve never really practiced. I do my own administrative appeals when the government turns down my Freedom of Information Act requests, but I don’t litigate them. I work for a big company that can afford lawyers who are much better than me.

But thanks for the questions that are making me look at the balance on my checking account.

Q. You’re noted for the deep dives you take into some of the most serious issues confronting the legal system, investigative reporting in its truest sense. Of your more recent efforts, your work on fugitive extradition was exceptional, and garnered you quite a few awards as well. What made you go there? It wasn’t the trendy issue of the day, and while others were focused on drug war, sentencing reform and police demilitarization, you chose to do serious investigation instead. How did you come to the story? What made you decide where to put your efforts? What tells you, “this is where I really need to dig”?

A. The part of my job I like most is that I have the freedom to read the newspaper, wonder how something works, and spend some time figuring it out. The extradition investigation is a pretty good example. I started looking into it because I saw a story in The New York Daily News about the man who murdered NYPD Officer Peter Figoski in 2011. Before Figoski’s murder, his killer had been accused of another shooting in North Carolina, arrested in New York, and set free because the authorities didn’t want to come get him.

I read the story and wondered how often that happens. I didn’t know there’d be a story in it; I guessed that it was probably pretty rare. I called around to local sheriffs and jails. Eventually, I asked the FBI for a copy of their database of wanted fugitives, and – I’m still surprised about this – they sent me part of it. It listed 186,000 felony warrants for which the police had decided not to pursue someone out of state. That surprised me. It surprised the people who sat near me. That’s often my first test for whether something’s worth a deep dive.

And I’m still learning how to find the best and most important stories. A few years ago, a lawyer tipped me off to a case in which the Justice Department had acknowledged that a man convicted of illegally possessing a firearm was “legally innocent” and urged the judge to keep him locked up anyway. A cursory check of court records turned up dozens of federal prison inmates in a similar situation. This was obviously a story. But I still spent the better part of a week getting over the fact that it was only happening in North Carolina. A good editor set me straight.

Q. You started out at a time when newspapers still, for the most part, relied on dead trees. But things have changed overwhelmingly in the past fifteen years, and you were consistently one of the people to see it coming. Throughout your career, you’ve helped the outfits you worked at adjust to the new world order, ranging from helping the Press & Sun-Bulletin develop databases to creating apps for USA Today.

First off, where’d a poli sci major – cum – lawyer get those tech chops? How’d your employers feel about the intrusion of new tech into an industry that, for decades, was a byword for “staid and settled”? And what about us alternative media outlets? Can blawgers hope to approach the mainstream media’s level of journalistic sophistication? Are we an annoyance, a thorn in your side? Or do we have some kind of weird, symbiotic relationship?

A. I was – am – a nerd about this stuff. So I taught myself enough about databases and writing code to get by. I’ve been fortunate to work for editors who have been supportive and thoughtful about the role tech can play in our work. And they’ve grasped the need to innovate to serve our readers better.

When I worked in Binghamton, I got an electronic copy of the county’s payroll and we tried to put it online. Our website wasn’t great, so the only place we could figure out to do that was on the company’s email server. That got us some angry phone calls from corporate IT. A couple months later, we got a much bigger database of property assessments and ran it out through the same setup. That got us a corporate award.

I couldn’t do my job without basic tech skills. To investigate extradition practices, I had to merge big, ugly datasets with millions of records, and download millions of court dockets. I have robots that mine federal court dockets for things that might point to bigger stories. At first, that kind of thing let me find stories my competitors couldn’t. Now it’s the price of entry for even having a chance of figuring out how big, complicated institutions actually work.

I’m a fan of law blogs, and a lot of other alternative media. In general, I think we benefit from hearing more voices – and especially from practitioners. I don’t read them expecting dispassionate coverage. I don’t expect law bloggers to spend a year investigating prison discipline in New York, or to match thousands of FBI fugitive records to court documents. But law blogs that explain how things work, or how they should work, or where some court got something wrong, are helpful – to readers trying to understand the law, and to journalists looking to explain and investigate it. So are law blogs that tell journalists where we get it wrong. (It’s especially annoying when you’re right.)

Q. We live in a time of advocacy journalism, where reporters from either end of the political spectrum put political narratives ahead of facts, which have an inconvenient way of not fitting their ideologies. Is this as bad as it seems, or is it just a reflection of the times we live in? People gravitate to the media outlet that promises to confirm their bias. The next generation of journalists, currently at college, is learning that disagreement – however mild – is a major no-no and constitutes hate speech. The likes of Vox and Politifact were founded on the idea that it’s better to turn out propaganda than neutrally report the facts, which they claim are indigestible to the average reader.

Where do you, an old-school investigative journalist, stand on this? USA Today is still a platform for sane journalism. Will you, too, succumb to the insanity? Unlike many of your colleagues, you’ve got the chops to turn out quality reporting and a track record of doing so. But as of late, even law professors at Ivy League colleges are producing articles that are pure advocacy, things that have nothing to do with the law as it is and everything with how they think it should be. When the time comes to abandon reality and turn out clickbait, will you go gently into that good night? Or will you bear up against the storm of listicles, “fake news” and garbage?

A. We’ve always lived in a time of advocacy journalism. Newspapers, in particular, used to be tools of vicious partisan advocacy. Serious, straight coverage is a relatively recent innovation. And it’s a hard one. I know I can’t totally set aside my worldview when I approach a story, though I can try to be aware of it and keep an open mind.

I agree that advocacy and opinion proliferate online. And I basically think that’s good. The new twist, I think, is that advocacy, serious investigations, clickbait and deliberate lies all show up in your Facebook feed or browser looking more or less the same, and a lot of it is filtered to reflect your preexisting opinion. So it’s harder to be a discerning reader of the news now, and easier than ever to stay sealed up inside a bubble that comfortably reaffirms your views.

Clickbait isn’t in my future, and fake news – to the extent it’s populated by deliberate lies – it’s basically fraud. If that day comes, I’ll take up gardening. But we’ll have bigger problems than the demise of the news industry.

But we in the news media should also pay attention to what the clickbaiters and even the liars are doing, and how they’re doing it. They’re reaching readers. (We still reach more.) We’re being naïve if we don’t acknowledge that the way we tell stories and deliver information has to keep up with the ways in which our readers want to get their news. And we should listen to the people who are tuning us out or don’t trust us anymore, because there are lots of them.

I don’t think the challenge facing USA TODAY or The New York Times or The Wall Street Journal is whether we will eventually succumb to lies, clickbait or partisan spin. We won’t. The challenge is how we build trust with readers while delivering the most reliable information we can in the ways they want to consume it. We should take those ideas wherever we can get them.

Q. Ordinarily, the final question asks what the future holds for the witness, but in this case, maybe the better question is what does the future hold for serious journalism? Is there any future for dead tree journalism? Is there money or interest to fund the sort of thorough investigative reporting you exemplify? Will the push to get words on a screen and clicks for advertising subsume accuracy and depth? Will there be any appreciation of a journalist with integrity in an age obsessed with advocacy? What happens to Brad Heath when it’s all kids at Huff Post who’ve never actually written in cursive?

A. I’m pretty optimistic about the future of serious journalism.

For all the clickbait and garbage, this digital revolution has also brought us ProPublica and The Marshall Project, both of which are producing some of the most sophisticated coverage of law and justice that you’ll find anywhere. The Huffington Post was on the streets in Ferguson, Mo. when unrest erupted after the death of Michael Brown, and it’s published a slew of thoughtful stories on prisons and sentencing reform.

I don’t know yet where the money will come from to pay for that. ProPublica and The Marshall Project are getting it from donors. That’s one way. But I also think that reliable information is valuable, and has a commercial future.

People crave strong, authoritative journalism. We see that at USA TODAY. We chase lots of breaking stories, and have lots of articles about whatever went viral on Twitter yesterday or whatever weird thing one politician or another said online. But it’s our original reporting – whether investigations or deeply researched pieces on executive power or diversity in tech – that our readers gravitate toward. A lot more people read those stories, they spend a lot more time with them, and they’re much more likely to share them with their friends. I take that as a sign of appreciation.


Cross: Jonathan Adler, Focusing On The Crush Of Regulation

December 7, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross Jonathan Adler, Johan Verheij Memorial Professor of Law, Director, Center for Business Law and Regulation and Volokh Conspirator.

Q. In 1991, you graduated magna cum laude from Yale with a degree in history. We’re not surprised your record of academic excellence reaches back that far, but we have to ask: why history? Where’s the connection to the environment, government, constitutional law, all the things that’ would preoccupy you in later years? Did you have a plan going in? Was law school always on the horizon? And did you ever guess you’d turn to the dark side, become a professor?

A: One summer in high school I took a course on early American political thought, and that class really sparked an interest in American political and intellectual history. I think those subjects helped lead to my interest in the law, as did the encouragement of my thesis advisor. Given my emerging politics, he suggested law school would be a safer route to academia than a Ph.D. in history or political science.

As he put it, the worst case scenario after law school would be getting well-paid as a lawyer. A Ph.D., on the other hand, would not open as many potential alternatives. That said, I really did not have much of a plan in college. By the time I graduated, I said I wanted to be a mid-level officer in the war of ideas, but wasn’t sure whether that meant becoming an academic, working in politics, or something else.

As for environmental policy, that grew out of my interest in the outdoors, and the time I spent growing up hiking, camping, fishing and hunting. Figuring out how to protect these things in a way that is compatible with other values is endlessly challenging and interesting.

Q. After undergrad, you spent nine years working as the Competitive Enterprise Institute’s director of environmental studies. What attracted you to the job, and how’d you get it? The job required you to have a thorough understanding of complex federal laws and regulations, but you didn’t have a law degree or any formal education in the field. Where did you get the chops to not only take on that role, but thrive in it? And what made you want to throw your hat in the ring as a libertarian environmental thinker, at a time when government and public opinion, broadly speaking, were headed in the opposite direction?

A: I ascribe much of my career to serendipity. I spent several summers in Washington, D.C. while in college, which allowed me to make significant connections at various think tanks and policy shops. That’s how I met the folks at CEI, which was then a tiny policy boutique headed by a guy named Fred Smith. Due to these connections, I was recommended for a job there – essentially as a policy analyst and research assistant to Smith – just before I graduated from Yale.

The idea of trying to apply libertarian principles to environmental problems was tremendously exciting and it seemed like a great way to spend a few years before figuring out what I was really going to do with my life. Little did I know, CEI was about to go through a massive growth spurt. When I showed up, it was a tiny place with only 8 people and a half-million-dollar budget. Within a few years, the organization had tripled in size, and I rode the wave, eventually taking over the environmental department. My role was to be the generalist who coordinated the specialists in what was a growing and increasingly influential program, and I guess I was good at it.

Q. During the 90s, CEI argued that federal environmental regulations weren’t just cumbersome, but ineffective (and frequently counterproductive). You lent your support to a new group of thinkers on the subject, known as free-market environmentalists, who championed regulatory reform and market solutions to environmental problems. And in that vein, on several occasions, you gave testimony to Congress on the encroachment of environmental laws on private property rights.

Looking back, were efforts to reform public thinking on the wisdom of state-sponsored environmentalism successful? How have things changed? Were subsequent administrations more responsive than the Clintons to the idea that less federal involvement is more? Just how cumbersome are we prepared to let things get before we come around?

A: I think the work we did at CEI in the 1990s was important, but I am not sure how successful we were. On the one hand, we helped develop some powerful critiques of traditional environmental regulation and helped legitimize the use of property-based or market-oriented approaches to some problems.

On the other hand, we failed to convince policymakers to rethink their overall approach to environmental policy. When Republicans took over Congress in 1995, for example, it was much easier to convince them that environmental regulation was bad than it was to convince them that they needed to embrace an alternative approach to environmental protection, and other than in a few select areas, the Bush Administration was not much better. Working with conservatives on these issues sometimes felt like banging my head against a wall.

Q. In 1996, while you were still employed at CEI, you chose to go back to school and get a law degree. You outdid yourself at George Mason, graduating summa cum laude and valedictorian. Why’d you make that move? To refine your knowledge? Or were you already planning to sign up with the academy? You clerked for Judge David Santelle on the DC Circuit, and you were a summer associate at the DC branch of Kirkland & Ellis. With a career in Biglaw as an option, why’d you choose to become a professor? Passion for teaching? Glutton for punishment? Or was it simply the right environment in which to develop your ideas?

A: After working at CEI for a few years, and finding myself waist-deep in regulatory policy, I realized I should go back to school. If I was going to play lawyer on TV, I should at least have the degree. And since I lived in Virginia, I realized I could get my degree at night at George Mason without having to go into debt. The aim, at that point, was not so much to get into academia as it was to flesh out my understanding of the law and perhaps gain the tools I would need if I ever wanted to pursue public-interest litigation.

During my summers at Kirkland, I focused on administrative law – basically helping the firm’s clients who were suing or getting sued by the federal government – and I thought I’d found what I wanted to do. I applied for clerkships on a lark – because it was something I wanted to do, but not because I thought I’d actually get one. My year on the D.C. Circuit was an amazing learning experience – perhaps the most educational year of my life – and it also provided the opportunity to continue working on some scholarly projects I had begun in school. Apparently some folks were reading what I was writing, as I was recruited at Case Western and figured the opportunity to become an academic was not one I should let pass by.

Q. In 2001, you left DC for Ohio when you were hired as assistant professor of law at Case Western. It turned out you had a remarkable gift for teaching: three years in, you received the Federalist Society’s Paul M. Bator Award for all-around professorial excellence, and in 2007, Case Western gave you its annual Distinguished Teacher Award. Nor were you behind in scholarship; in the past ten years, you’ve been consistently recognized as one of the most-cited authorities on administrative and environmental law (and the most cited of all in your youthful age group.)

Juggling the teaching and scholarship requirements of the job is a major challenge for many professors; how do you do it, let alone so successfully? And you made tenure in 2006. Now that your job’s secure, why aren’t you content to sit back and, like a sea squirt that’s found a place to attach itself, dissolve your own brain?

A: I’ve found that my teaching and scholarship actually complement each other. My regulatory policy experience in D.C. helped inform both, and I find that intellectual engagement with the subjects that I teach helps me bring more insight and energy into the classroom. Researching and writing on a subject makes it easier to teach. I also have largely been fortunate to teach in areas that I find inherently interesting, and I do what I can to communicate my enthusiasm for these subjects to my students.

Q. At around the time your law-professor career was taking off, Eugene Volokh founded Volokh Conspiracy, one of the longest-running and most influential blawgs (and definitely one of the most professorial). You’re an O.G. Conspirator, having joined as a pseudonymous contributor in 2002. Since then, you’ve become one of its leading lights. At the same time, due in no small part to VC’s migrating behind the WaPo paywall in 2014, its audience has grown massively and changed nearly as much. Is catering to the tastes and expectations of the WaPo readership as much of a change of pace as one would imagine? Do you ever feel pressure to reduce the complexity of what you write about, lest your message not get across? Is writing for a mainstream readership a healthy exercise in clarity? You’re not afraid to challenge liberal sacred cows. Has there been backlash or pushback from VC’s new fans? If so, does it matter to you, or are you used to all that from millennial students?

A: Blogging at the VC has been a tremendous opportunity and I’m quite grateful that Eugene invited me on board way back when. At the time, blogging was a fun outlet, but we had no idea where it might lead (let alone that we’d collect such a following).

For me, blogging is often a way to try out arguments and to explore issues that are more current or fast-moving than the focus of my scholarship. As you suggest, it’s also a good platform for learning how to discuss complex issues in a more accessible manner.

I don’t think I dumb-down my posts, but I do make an effort to keep my posts accessible to non-lawyers and non-academics, and I think this helps improve my other writing. I do not believe that legal writing has to be technical or obtuse to be effective. To the contrary, I think the best legal writing should be readily intelligible to lay readers. I hope that’s true of my blogging and my scholarship as well.

The shift to the Washington Post has been interesting. It’s certainly expanded our readership and reach, but it has also had some downsides. When Eugene first launched the VC, it was a small little site with a core dedicated readership that never hesitated to challenge our claims. The early comment sections often provided highly substantive commentary on our posts, and I would regularly read – and respond – to the more substantive comments.

This is something that’s been lost in the shift. A wider readership has also meant a wide array of commenters, including lots of people who are not particularly interested in substantive discussion. While many of our old commenters are still there, they often get drowned out by partisans and trolls. This makes it more difficult to engage substantively with the comment threads and, frankly, makes me less inclined to read the comment threads on my posts. I’m sure it’s discouraged some of our older commenters from continuing to engage as well.

Q. You’ve been a sought-after legal commentator for a while now, and last year, when you took a bold, public and confident stance in opposition to the Supreme Court’s ruling in King v. Burwell, you knew what you were getting into. When CJ Roberts delighted fans of the ACA by putting aside concerns over what the law said in favor of SCOTUS’ interpretation of what the government wanted it to do, manufactured statutory ambiguity and rewrote the law accordingly, you were there, calling shenanigans from atop the WaPo’s soapbox.

In short, the decision wasn’t exactly a textualist’s wet dream. And instead of resolving the law’s “ambiguity” by applying Chevron doctrine and deferring to the feds’ interpretation, SCOTUS went ahead and inserted its own. The icing on the cake is that it did so by declaring the problematic parts of the law meaningless. What does this kind of judicial fiat imply for textualism? The future of Chevron deference? The notion that courts don’t exist to legislate? Has CJ Roberts gotten too big for his boots? What’s to be done?

A: I would not write the things I do if I expected courts – let alone the Supreme Court – to follow my lead. The King litigation was something of an accident, in that I first wrote about the relevant provisions in the ACA without any knowledge that the Administration was planning to (in effect) rewrite the statutory text, let alone that someone would sue over it and take the litigation to the Supreme Court.

Yet once the litigation began, I was not about to change my interpretation of the law just because it was controversial. But I also never expected the plaintiffs to prevail. I am no fan of the King decision (a point I’ve made at length), but (as I’ve also written) I think it fits with the Chief Justice’s general approach to deciding high-stakes cases. Whatever commitment the Chief has to textualism takes a backseat to his reluctance to embrace broad decisions with potentially disruptive consequences. What this meant in King is that he would not embrace a reading of the statutory text – a reading he himself called the “most-natural” reading – if it meant a dramatic change in the way the law was being implemented.

I appreciate the concern that following the statutory text would have made millions of people ineligible for health insurance tax credits, but I also believe that fixing such problems is the job of Congress, and not the courts. Legislators created the mess, and we should expect legislators to fix them. That said, I think that some parts of the decision, such as the curtailment of Chevron deference, are important silver linings and could have a positive effect down the road.

Q. Speaking of deference, you’ve been commenting on a related legal drama: federally-compelled bathroom access for transgender students. DoE interprets Title IX, which authorizes it to police discrimination based on “sex,” as covering gender identity. Others disagree, pointing out that the meaning of “sex” in 1972 doesn’t allow for that possibility and that Congress’ consistent refusal to amend the law to address gender-identity discrimination speaks volumes.

Some courts have been all too quick to defer to DoE. In a recent VC post, you pointed out that a now-stayed Fourth Circuit decision confused Auer with Chevron deference, applying the wrong doctrine in its haste to give the feds the green light. But you’ve also said that deferring to DoE here may not be entirely wrong, because “sex,” as used in Title IX, could be sufficiently ambiguous to make the feds’ interpretation legit. How’s that possible, given that in 1972, “sex” was universally understood to refer to “male” or “female” as expressed in chromosomes and sex organs? Where’s the ambiguity here?

A: I’m a textualist, and I don’t put much faith in ex post efforts to discern congressional purpose from extra-textual sources. The text is what goes through bicameralism and presentment. Unstated intentions do not. This is why I took the position I did in King, and it also explains my views on Title IX.

In Title IX, Congress prohibited discrimination “on the basis of sex.” It also made clear that equal sex-specific facilities (such as bathrooms or lockers) are permissible. What Congress did not do, however, is define “sex,” or otherwise explain how the law should apply to individuals of indeterminate sex, such as intersex individuals or those born with X-X-Y chromosomes, or to transgender individuals. If someone is transitioning from male-to-female or vice-versa, at what point should they be recognized as one sex or the other? Title IX provides no guidance on this point.

As a consequence, under current doctrine, it is up to the agency to resolve this ambiguity. As I’ve argued on the VC, I think this means the Education Department could adopt regulations that provide some degree of protection for transgender individuals. Yet as I’ve also explained, that’s not what they did.

Q. As a libertarian, you’ve survived for over fifteen years in an academic milieu that’s noted for its hostility to non-progressive thought. What’s the secret? Why are you willing to challenge liberal orthodoxy on things ranging from environmental regulations to the viability of the ACA as written, when so many other professors are terrified to do things as mild as criticize political correctness? What about those who applaud when public colleges violate students’ First Amendment rights? What’s wrong with the ivory tower?

And what about your students? You’re a gifted and well-liked teacher, but even so, a quick perusal of ratemyprofessor.com shows some of them wish you were more liberal. What are you doing to cope with the zeitgeist?

A: I’m not sure I have any secret. Given all of the policy work I did in the 1990s, including countless op-eds on a range of subjects and contributions to National Review Online, my political orientation was never much of a secret. I have, however, always sought to engage others with civility and respect, even when these courtesies were not returned. I’ve felt that if I set a good example for how to engage in civil discourse, this will be appreciated more often than not – and deprive my critics of extraneous reasons to attack me.

I know that some students don’t like my politics, but I think most would tell you that I rarely discuss my personal views in class. My job as a professor is to help teach my students how to think, not what to think. I take that obligation seriously, and I think (and certainly hope) that most of my students appreciate that.

Q. After fifteen years as a professor and twenty-five as a public intellectual, you’ve got unimpeachable cred and a stellar record to look back on. So what’s in your future? Are you happy teaching, giving talks and publishing articles, or do you secretly want a change of pace? A career in litigation? A seat on the bench and a robe to go with it? What’s next for Jonathan Adler?

A: I think it’s safe to say that I won’t be facing a Senate confirmation anytime soon (if ever), and that’s okay. I do the work I do because it is of interest to me, not to curry favor with politicians or set myself up for some other job. As I see it, I have one of the best jobs in the world. I am essentially paid to learn and think about interesting subjects and to help communicate this knowledge and understanding to others. For a dork like me, that’s pretty ideal.