Tag Archives: Top

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: Dara Lind, Keeping Criminal & Immigration Law Honest At Vox

November 16, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Vox “explainerd” on immigration and criminal justice, Dara Lind.

Q. You’re a Yalie, seven years out of college, and an anthropology major to boot. Were you one of those grubby forensic-anthropology types, slumming it in the mud, or were you drawn to the cerebral, cultural side of things? And what are you doing slumming it as a crimlaw journalist? Ever consider going to law school? Did you have an interest in criminal law at Yale? Where did it come from?

A. It’s a matter of family lore that, the first time my father held me (his firstborn) in his arms, he told me that I could be anything I wanted to be in life — but please, God, don’t be a lawyer. And like any good millennial, I have a codependent relationship with my parents 😀

JK. This is the real reason that story matters: my father had earlier in life left the radio industry to get a very fancy law degree, and then spent a few years in New York entertainment law, before realizing that the fact that he “oughta be a lawyer” (because he was good at writing, public speaking, and arguing) mattered less than the fact that he was freaking miserable practicing law. So when I turned out to be especially good at writing, public speaking, and arguing, I knew better than to give in to the “you oughta be” line.

It would be tremendously helpful to me if I had a legal credential. I’d like JD degrees to be subject to the rules for chair tests in high-school band: I’m sure I could find people who would lose their diplomas to me in a one-on-one Law Challenge. As it is, I know myself well enough to know I would be a terrible law student. I simply do not care about easements, and I’m not very good at doing the reading on subjects I don’t care about.

My legal education has instead come through legal anthropology, and then through the areas of policy (immigration and criminal justice) that tend to be built most firmly on law. My anthropology degree was the result of taking a bunch of classes in social theory (I essentially majored in Bourdieu) and then writing papers on immigration policy in the United States. I’m kind of a failure as a poststructuralist; I believe firmly that power works through subtle and symbolic ways, but simply as a matter of triage I tend to care more about blindingly obvious expressions of power like deportation and incarceration.

I wrote my senior thesis on immigration court after spending a summer watching proceedings in Minnesota; I saw about a dozen people get deportation orders in two hours on my first day of observation, and have never felt more inclined to smash the state in my life.

Watching a trial court in an administrative-law system is a really good object lesson in how lives get abstracted to fact patterns, and in discretion as the chief way to exercise power, because immigration judges had (or at least were willing to exercise) so little of it. Attorneys and defendants literally got a handout listing three hypothetical fact patterns, two of which wouldn’t qualify for relief and one of which would; the best way to get relief was to show how identical the facts of your case were to the third case on the handout.

That’s very different from the legal education that you get from actually studying law, which tends to be about the transmutation of facts into law and the flexibility and power of argument within a case.

Q. You were a well-known student activist at Yale; your cause célèbre was immigration reform. Would it be indelicate to ask where the interest came from? With so many worthy causes to choose from, why this one? What was it like, advocating reform in the dying days of the Bush administration, when it still seemed like the next President might turn things around? Did you plan on parleying student activism into a career?

A. I’m pretty sure the real student activists thought I was a crypto-Nazi, or at least a neoliberal sellout. I lived with members of the Party of the Right and used words like “discourse” a lot. My activism, to the extent that it existed, was a function of my interest in immigration.

The summer after my freshman year, I was an intern with an education nonprofit in Louisville working on Hispanic outreach programs. At one point I was analyzing a bunch of grant applications, and pretty much every district said the same thing: they couldn’t build a relationship with the parents of a student if the parents were afraid to come to school, because school officials were part of the government and the government might deport them. It immediately became clear to me that immigration status is (as the anthropologists put it) a “master status”: something you can’t fix other problems without addressing first.

When, the next summer, the city of New Haven passed a municipal ID program — and then the next day ICE arrested a few dozen immigrants in an early morning raid on a Latino neighborhood — it was too obvious a case of retaliation not to be galvanizing. At the time, there were serious worries that the lists of municipal ID holders would be FOIAable by anti-immigrant groups, so there was a lot of interest in getting as many people as possible to sign up. I helped the city of New Haven get in touch with student groups and set up a week of open signups on campus: hardly a notorious activism career.

I definitely figured that my senior thesis was going to be a historical artifact, because I figured that at the very least the Obama administration would fix the immigration-court backlog. But looking forward to the Trump administration, I’m glad to have some understanding of what it looks like when the federal government wants everyone to know how tough it is on immigration enforcement.

Q. After you graduated, you spent a year guest blogging at several progressive outlets, including The American Prospect, ThinkProgress and the now-defunct Firedoglake. We keep getting told that the collaborative-blog model exemplified by the likes of Vox and HuffPo is the future of journalism. Back then, did blogging even pay the bills?

Was it a temporary gig while you looked for more stable employment? A good alternative to the unpaid-internship circuit? Or was it exactly what you wanted to do? Were the soapboxes you were given big enough? How about reader engagement? Does a 23-year-old have the ability to ask deep, thoughtful questions? Answer them?

A. To the contrary, blogging nearly cost me steady employment. I was trying to juggle it with a full-time job in advocacy, because I was too annoyed with the state of immigration reporting in 2010 (which generally showed less policy literacy than I had as a 22-year-old) to turn down opportunities to do it better. I had asked for my office to draft some sort of “social media policy” that would establish what I could do on the side. I ultimately figured it was better to beg forgiveness than ask permission.

I thought I was flying under the radar until I wrote a blog post pointing out some Spanish/English doubletalk from a politician my employer was still trying to stay on good terms with. I got…a talking-to. I don’t know how close I actually was to losing my job, but it’s the only time in my career I thought that’s where the conversation was going.

At one point, I tried to transition to journalism full-time, but the outlet I’d decided I wanted to work for did not agree. I realized I was either going to have to develop some actual reporting chops or just give it up – and that I couldn’t do the former while doing a day job I cared about. So I picked the latter.

Q. You spent nearly a year and a half as the Senior Policy Associate for America’s Voice, the immigration-reform advocacy group. As with most organizations of its kind, the official titles aren’t exactly descriptive, so we’re going to come right out and ask: what did you do there? By then, you were an established writer– did they hire you for that reason? For your immigration chops? Were you looking to become a policy wonk, a lobbyist? You set up shop in DC, the progressive’s mecca. Were you fully prepared to be thrust into that arena? Ever wish you’d stayed in Connecticut?

A. Remember that I graduated into the maw of the Great Recession. DC was the only place I could possibly get hired (especially because my only internship experience was in the nonprofit sector).

I spent a miserable summer in Kansas City after graduation, which allowed me to save up enough money to move to DC without employment, but also reminded me that I’d gotten out of the Midwest because I was sick of people mocking me for using big words, so I happily fled back to the East Coast where all my friends were.

(A few months after moving to DC I made the brilliant mistake of falling in love with someone else who had escaped the Midwest and worked in an industry that only existed in DC, so my fate got sealed pretty quickly.)

I actually started at America’s Voice in October 2009 — titles are so fungible that I had 3 different titles over my time there, which explains the confusion on my résumé. I was told that the job might not last more than a year, because the organization planned to pass comprehensive immigration reform in 2010 and then dissolve. I was there for five years.

I got hired because I cared about immigration and could write a press release quickly (the time I spent doing communications for extracurricular groups at Yale was much more relevant to my career than my degree was). I spent the next several months writing talking points for police chiefs and faith leaders, because of course a 21-year-old nice Jewish girl is immensely qualified to tell black pastors how to talk about immigrants.

I realized pretty quickly I wasn’t cut out for communications. When I got on calls with think-tankers to develop talking points, they were the ones stressing their topline message while I tried to pick apart their methodology. So over time, I ended up taking on more political and policy tasks.

I live-tweeted House hearings (and got a lot of stink-eye from congresspeople who assumed, I guess, I was just sitting in the hearing room texting the whole time). I parsed the shit out of offhand comments made on immigration by random back-benchers in town-hall meetings, trying to reverse-engineer, from talking points, what sort of policy compromise they’d be able to accept without being accused of flip-flopping. I did a bunch of Spanish-to-English translation of work under other people’s bylines, which means I can’t tell you what it was, but believe me, I’m really good at it.

Oh yeah, and one time I helped deliver a couple hundred cantaloupes to Republicans in Congress (after Steve King famously said that deferred-action recipients were all drug smugglers with “calves like cantaloupes”). The success of that stunt made us cocky enough to follow up with a dozen frozen turkeys before Thanksgiving, which resulted in us having to pull an “Am I being detained?” when cornered in a side room by a Capitol Police officer and more or less chased out of a House office building. I was a little relieved when I got my Hill press pass for Vox; I wasn’t sure my name wasn’t on a blacklist somewhere.

Q. The big federal immigration story in 2013 was S.744, the Senate reform bill sponsored by Chuck Schumer and his “Gang of Eight” (including Marco Rubio, a fact that would come back to bite him in the ass in this year’s primaries). You covered it extensively while you were at America’s Voice. Was it everything you wanted from a piece of immigration-reform legislation? Did it compromise too extensively? Was it entirely off the mark? Though the Senate passed it, it died an ignominious death when the House declined to take it up. Did the bill have a noteworthy legacy? Were you, perhaps, startled by subsequent Republican support for the E-Verify system?

A. If anything I was surprised at how little of a push got made on E-Verify once the GOP took back both chambers, given that the House had tried to pass mandatory E-Verify in 2011 — and while the system is still flawed, it appears to be better now than it was then.

Comprehensive immigration reform was never a strategy everyone loved, obviously. But it was one way of solving the fundamental dilemma of immigration policy, as it’s existed since 2009 or so. There are 11 million unauthorized immigrants in the US; most people don’t want all of them deported. At the same time, the US/Mexico border is fairly secure by historical standards, but calls to “secure the border” tend to drown out arguments for further changes to law — and no other change to immigration law is actually popular enough among both politicians and the public to push through the border panic. So how do you reassure people that the border is secure, and move forward with other reforms?

In 2009 and 2010, President Obama tried to answer this by stepping up deportations; in S744, as it ultimately got passed by the Senate, it was done by focusing on inputs (number of Border Patrol agents, amount of money spent).

The problem is that symbolic politics are rarely just symbolic, so the real question is how much real suffering you’re willing to cause in the name of catering to people’s feels. The S744 “border surge” made it impossible for feels of border insecurity to derail the rest of the bill, but also would have caused real harm by further militarizing border communities.

(Arguably, if you want to make people feel safer about the border without doing anything, “build a wall” is probably the way to go — you build it, you say “Look, it’s built!”, you move on with legalizing people who are already here. But the incoming administration is not as committed to building the wall as it is to deporting people, so.)

By the time S744 was drafted, the framework of “comprehensive immigration reform” had remained unchanged for several years, which made it a little overbaked — it was impossible to make individual legislators feel like they’d won meaningful concessions, and people don’t fight for things they’re not invested in. (A less kind way to put this: members of Congress have never seen an issue of principle they can’t reduce to an issue of ego.)

At this point, the coalition that made “comprehensive immigration reform” politically appealing has been blown to smithereens — you pretty clearly can’t persuade Republicans in 2016 to get on board with expanding immigration just because business likes it. Arguably, it was blown to smithereens the minute the law passed. The organization I worked for had mugs made with some of the best provisions of the bill, as a memento for some of the people who’d worked on it; weeks after they were delivered to the office, we still had a whole box of mugs, because none of the Republicans we were hoping to give mugs to were returning our calls.

The next time the opportunity comes up for Congress to pass a big change to immigration law, the politics are going to be very different, so S744 won’t make very much sense as a model. Whether that’s a good thing depends on what happens instead.

Q. In lieu of legislative action on immigration, President Obama decided to take action himself. At a cabinet meeting in early 2014, Obama declared that he had a pen and a phone and was going to use them. He originally created DACA – his Deferred Action on Childhood Arrivals policy – by executive action in 2012, following yet another Congressional refusal to pass the DREAM Act. His November, 2014 changes to DACA amounted to an enormous deportation deferral, potentially covering nearly half of the nation’s illegal immigrants.

Is it constitutional, let alone wise, for the President to usurp Congress’ role by executive fiat? Given that Donald Trump is poised to wield the same power Obama did, he may very well use it to revoke Obama’s orders – and pass some of his own that’ll take the nation in a very different, un-progressive direction. At Vox, you’ve been a notable cheerleader for DACA. Has anything changed?

A. The executive branch has a ton of statutory authority on immigration enforcement; Donald Trump would have had just as much ability to deport every unauthorized immigrant in the US had he been elected in 2008 as he does now. The limiting factor is resources. Nothing changed in immigration law between 2001 and 2007 to make deportations easier, but post-9/11 budgeting did, and deportations more than doubled as a result.

At the same time, prosecutorial discretion is an uncontroversial legal principle. With the exception of traffic violations in the age of red-light cameras, perfect enforcement of violations of the law is always impossible, and the question facing prosecutors is whether to engage in deliberate triage or fill up dockets opportunistically. When you don’t have the resources to deport everyone, but you have the resources to deport a lot of people, how you choose which ones to deport becomes super relevant.

The story of the Obama administration’s immigration policy is, in large part, a battle between labor and management over where in an agency prosecutorial discretion resides. The White House felt that agency management had the power to dictate where resources go; the agents feel they’re being deprived of their ability to make case-by-case determinations.

When I worked in advocacy, we’d occasionally get word that a college student, or the mother of a toddler, had been detained by ICE, even though the Obama administration was going around saying they weren’t deporting students or parents. We’d mobilize activists to send faxes and phone calls to ICE headquarters in DC, in the hopes that, if the case became enough of a headache, someone in DC would make an angry phone call to, say, the Detroit field office, telling them to drop the case. That’s obviously not an ideal way to implement policy!

The Obama administration ultimately decided that the only way to guarantee that management could dictate prosecutorial priorities was to allow immigrants to apply for protection proactively, taking the decision out of ICE agents’ hands.

When the deferred-action programs got challenged in 2014, the administration found itself arguing that Citizenship and Immigration Services did still have discretion in looking over applications, as a way to claim that the deferred-action program wasn’t a regulation (and therefore didn’t need to go through the notice-and-comment process). But though I’ve heard about cases where people got rejected even though they met all the qualifications on paper, the government never really made the case for that in court. As far as I’m concerned, the constitutional weakness is probably there: not in what the administration did, but how.

What I’ve never understood was how the expansion of deferred action in 2014 was unconstitutional, but the original Deferred Action for Childhood Arrivals program in 2012 — which, if anything, was much more clearly analogous to a bill Congress had just failed to pass, and which the states in the US v. Texas case were using to argue the new program would be implemented unconstitutionally — was kosher. The Fifth Circuit totally punted on that, and I would have loved to see whether the Supreme Court was willing to follow the states’ argument to its logical conclusion.

Q. And that brings us directly to our next question – in March, 2014, you left America’s Voice to sign on with Vox. How come? Missed blogging? The thrill of seeing your name in print, or pixels perhaps? (Given that you stayed, it can’t have been that you were sick of Washington.) At the time, Ezra Klein and Matt Yglesias had just founded the site; you were part of the original team. What was so new, so revolutionary about it? What made you want to sign on? Was its emphasis on liberal politics part of the game plan from the start, or was it the organic result of the people writing for it? Did working for Vox make you rethink your duties as a journalist, and if so, what did you conclude?

A. I spent about three years trying to figure out how I could forge a career in policy without going either to the Hill (too outspoken) or to grad school (too poor, bad at delayed gratification). But by the beginning of 2014, I was sick of people assuming that, because I was a 25-year-old woman, I didn’t know exactly what information was and was not publicly available about deportations of “criminal aliens” (something I’d been following as a wonk side project for years). So I figured I’d go to grad school, get the credential, maybe grow a few gray hairs for gravitas.

When Ezra and company left the Washington Post to start a new site, my partner tried to get me to apply, because it was such an obvious fit for me. “Explaining complicated systems to interested people” was my career mission statement years before I went to a site that explained the news, and while the state of immigration reporting in 2014 was better than it had been in 2010, it still wasn’t being taken seriously enough as a policy issue for my liking.

But it had taken me three years to decide what I wanted to do next with my life, and I did not want to reconsider again. I told my partner I’d offer to freelance for the new site as a grad student. Then Ezra himself emailed me with a request to talk.

Ultimately, he persuaded me that a high-profile byline would give me the same social capital as a graduate degree, and that “instead of you paying them, we’d be paying you.” (Fact check, Mostly True. Given how much all of us worked during the first year of the site and what we were getting paid, I have no idea what our hourly wages came out to and I don’t particularly want to run the calculations to check.)

Because I was coming out of advocacy, my editors were initially concerned about a liberal bias in my reporting. Vox has never tried to be liberal; to the extent that our writers tend that way, it is, as you say, the result of organic network effects. Personally — and everything I say about my site should be taken as me speaking only for myself — I would love it if we had more ideological diversity.

What Vox is, though, is positivist journalism: here are the consequences of these choices; here is the choice that does the most to accomplish the stated goals. The problem is that not everyone’s goals are the same; to paraphrase something I heard about game theory once, what does a utilitarian do with people for whom “utility” isn’t happiness but Godliness? And while positivist journalism is better built for a lot of things (like assessing truth claims) than traditional he-said-she-said journalism, it isn’t built for debates that are built on irreconcilable values.

The solution to this, as far as I’m concerned, is to be honest about what the values of all participants are. Done right, this is actually better than he-said-she-said journalism, because it allows you to ignore incorrect factual smokescreens and grab onto the values arguments that aren’t being voiced.

When I write about “self-deportation,” for example, I always try to point out that stepped-up enforcement is going to make the lives of unauthorized immigrants harder, and that for supporters of self-deportation that is the point — they feel the cost of violating immigration law should be as high as possible.

This might appear biased because, to people who don’t agree with that principle, the logic seems cruel. It might seem less biased to assume that people believe in more immigration enforcement because, say, they’re primarily concerned about welfare use. But it’s not the job of journalists to put people’s positions in the terms we find most palatable; it’s our job to present the values people themselves find most important.

Q. Vox is where you started spreading your wings as a crimlaw journalist; in the past, your focus was more on social issues. Why did you decide to make the change? Given that you’re neither a lawyer nor someone who, like Radley Balko, has spent many years on the beat, how have you’ve managed to make a success of it? Crimlaw journalism is one of those areas where emotions and political bias can get in the way of the facts; have you managed to avoid those pitfalls? Is there any pressure at Vox, like Slate, that encourages a less objective viewpoint? Given the right circumstances, can neutral journalism be more of a hindrance than a help? What’s the right way to look at a crimlaw issue – complex and unsatisfying, or simple, easily digestible?

A. I am going to send this to all the immigration lawyers I know and tell them that a crimlaw blogger called their field a “social issue.” I imagine the result will look something like this.


I think of both criminal justice and immigration less as social issues than civil issues; they both involve complicated apparatuses of law and policy  that have real and discrete impacts on people’s lives, but the public debate about them often pretends that all policy is just an expression of normative or “culture war” values. “Tough on crime” is a slogan without policy meaning that nonetheless has policy consequences; so is “end mass incarceration.”

If I know anything at all about criminal justice, it’s because of my partner, who is always happy to discuss collateral consequences over dinner. (We are fun at parties.)

Since he, like me, is also a wonk who is not a lawyer, my understanding of criminal law is pretty purely reflected through policy; I think of myself as a criminal justice journalist rather than a legal journalist. That probably gives me a bias — not toward emotions, but toward consequences – that I know can run counter to the logic of law.

There’s a tendency in criminal-justice and legal journalism to apply existing frames to new cases; that’s what determines which cases are newsworthy. (Consider the median coverage a police shooting of an unarmed black man gets now versus 2012.) Those existing frames are often built by politics: poor police-community relations and implicit bias in policing; rape and rape culture; overcriminalization. This can make for some terrible journalism. It is what leads journalists upset with the outcome of a case to say the defendant “got off on a technicality,” which is a phrase I promise never to use on pain of forfeiting my paycheck to the NACDL.

But this is not an inevitable consequence of talking about law in terms that are more lay-friendly than the terms in which lawyers talk about them.

There’s a difference between ambiguity and ambiguousness. Most things are complex and unsatisfying, but that doesn’t mean that you can’t identify particular axes of disagreement and lay those out, or explain how the same dilemma, played out over and over again, can create clear systemic problems. The question of “should defendant X take a plea bargain?” is usually a lot harder to answer than the question of “is the fact that 95% of defendants take plea bargains good or bad for the system?”

Laypeople need to have some understanding of how law works (inter alia, they’re the ones who have to serve on juries and elect prosecutors). And if journalists aren’t actually making it easier for laypeople to understand than an expert would, there is no point to journalism.

Q. Let’s be blunt: Vox has come in for its share of criticism. A recent Current Affairs op-ed by Nathan J. Robinson attacked your outlet (and its writers) not just for factual errors and style, but for an alleged tendency to see itself as the arbiter of what’s true and correct when there’s little basis to support that’s the case. Any truth to that? Are you entitled, snot-nosed kids condescending to the rest of us, or do Robinson and his ilk not get what you’re up to? Vox’s self-proclaimed goal isn’t to provide facts, but to process those facts, come to the right conclusions and make them easily digestible for its readership. Is it possible that nuance gets lost along the way? Is humility important? Is it a help or a liability that you guys are so damn young?

A. Stentorian lecturing is not actually any more appealing when it’s being done by an older person, though! I have spent enough time listening to Boomers to know this.

I think of condescension as treating readers as if they’re not smart. A lot of “news” writing for women, in particular, appears to be written for someone who doesn’t actually care about global affairs but has to make small talk with the boss in the office elevator. Blech. Spare me.

Vox assumes readers are smart, but not necessarily perfectly informed — i.e., that those of us who get paid to know these things for a living do in fact know more than people doing other things with their lives. (That makes it super-incumbent on us to be right. This is the most important use of humility for a journalist: making you careful enough before publication that by the time you publish, you’re damn sure everything’s right. Whenever I get something wrong, it’s because I’ve gotten too cocky to check, and it sucks.)

Depending on how you look at it, that’s either translation or arbitrage. Either way, it obligates the journalist to write in a way that maximizes ease of access — to inform as many people as want to be informed.

In my experience, clarity, conciseness, and informativeness are one of those “pick two” situations. I tend to pick the first and the third. A ramp might have to extend for longer than a set of stairs in order to reach the same height, but not everyone can manage the stairs and everyone can manage the ramp.

Clarity and ease of access should not be the goal of all writing. It would be laughable to judge poetry that way, for example, and I think that narrative journalism can accomplish things explanatory journalism can’t. But if you’re committed to expository writing — which is, in theory, what most journalism is — ease of access has to be a core commitment.

As a middle-schooler, I was really proud of myself when I completed a written assignment and the Microsoft Works Flesch-Kincaid analysis gave my work a score of 11.7 or whatever. I thought it meant I was sophisticated. It really just meant I was using too many semicolons and relative clauses to be readable.

Of course, that Current Affairs article, and most critiques of my site, are generally a stalking horse for ideological disagreement (with “Vox ideology” defined as “what Ezra, Matt, and Dylan Matthews think”). I personally am much less concerned with whether I’m manipulating my readers into the “right conclusions” in my writing than I am with whether I can persuade my readers when I suspect my conclusions don’t mirror their instincts.

Journalistic outlets in 2016, and this is not just a Vox problem by any means, have a huge incentive to pander to the prejudices of the existing audience. This creates a vicious cycle: the content you publish attracts readers of a certain stripe, who reward content that appeals to them, which draws in more of the same kind of readers. I worry much more about that than I worry about the prejudices of the people doing the work.

This isn’t a problem that we can fix on the producer end. I want people to think a lot harder about what ethical consumerism looks like in an attention economy. Understand that when you spend time consuming content you don’t like, you’re playing yourself. When you don’t like everything a site does, make a point of seeking out and sharing the stuff you like. And never, ever hatelink.

Q. You’re just at the outset of your career, and you’ve got a long, promising future ahead of you. So it only seems fitting that we close by taking a quick look at the past. Right now, college campuses are in turmoil, with students clamoring that they and their emotional traumas aren’t being taken seriously by administrators and staff. Exactly one year ago, you wrote a notable piece on just that subject, drawing on your own experiences at Yale.

Are campus protests over political slogans written in chalk and offensive Halloween costumes likely to be effective in the long run? Have today’s student activists lost sight of the bigger goals of progressive politics by choosing to focus on themselves and their needs? Are they unlike you and your generation? Do you have any advice for them? And given that they, along with the rest of us, are facing four years of President Trump, what should they be focusing on now?

A. I don’t think that this wave of student activism is particularly strategic. But I don’t know that it could be. Some of these students (Nathan Heller’s feature about Oberlin in the New Yorker brought this into focus for me) are rejecting the notion of college as a place to find oneself, which is at least a half-century old, and as a lever of upward mobility, which is even older than that. That’s a really radical critique, and radical critiques don’t tend to lend themselves well to strategy.

It’s going to be really interesting to see how progressive movements react to the Trump administration. But I think that campus activism circa 2015 was maybe not terrible tactical practice for the age of Trump, because the feelings of unsafeness that were at the core of so many activist uprisings are a lot more relevant (and arguably more valid) now.

The fact of life under President Trump is that some fears are entirely rational, both in terms of threats from the state and from nonstate actors. You don’t have to believe every reported hate crime on social media to be aware that there are a lot of verified cases of harassment being undertaken in the name of our president-elect, and when Guatemalan-born children ask to start taking their passports to school it seems wrong to blame their parents for making them scared.

But not everyone has equal reason to fear: I think that a lot of progressives, not only on college campuses, are focusing on their own victimhood to the exclusion of protecting others. (I’m a woman, a Jew, and a journalist, and I am really annoyed with the number of people using their membership in one of those categories as evidence that they personally will be targeted by the federal government or 4chan. I am not the person I’m worried about right now.)

I feel pretty strongly that if you are less threatened, you are obligated to support those more threatened. When someone is afraid because she’s getting harassed on the street for being Muslim, or because her parents might get deported, you don’t get to pretend she’s just upset because her preferred candidate lost. But if you’re primarily worried for what President Trump will do to you, you should probably work through the relative likelihood that you’ll be endangered compared to others.

Cross: Alan Gura, The Lawyer Who Changed The Second Amendment

October 26, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Washington, D.C. lawyer, Alan Gura, whose representation before the Supreme Court of the United States in District of Columbia v. Heller and McDonald v. Chicago fundamentally changed the interpretation of the Second Amendment.

Q. You studied government as an undergrad on Cornell’s arts quad. Were you always interested in government, or was that something that caught your attention in college? Did you plan to go on to law afterward? Cornell was something of a long-time hotbed of liberal thought. Was that your perspective going in, during or coming out? Was there an influence in college that framed your interest in the law? Did your coming from Israel have any bearing on your views on American government or law?

A. I’ve always been interested in government and public policy. I don’t recall exactly when it was that I decided to go to law school. There was no epiphany, where the clouds parted to reveal the “aha” moment. At some point, law school seemed like the next logical step.

I got a good sense of Cornell in the summer of 1988, which I spent there after my junior year of high school. I never thought of Cornell as a particularly “political” place. It just seemed like a great school overall, and that it was. To be sure, there was plenty of PC nonsense, but I don’t know if it was better or worse at Cornell than on any other college campus at the time. If anyone graduates from Cornell having experienced nothing more than “activism,” they’ve done something wrong and blinded themselves to a great time.

I came to this country from Israel shortly after first grade. Like most (all?) first-graders, I didn’t have very many views about government or law. Of course, not everyone there, or here, shares my views on anything.

Q. After the chilly hills of Ithaca, you attended Georgetown Law School. What made you decide to go to D.C.? Was there any particular area of law that interested you going in? Was the plan to practice law or to use your education in government? Did you have activist views toward the law, toward the Constitution in law school? Back in the early 90s, the predominant view of the Constitution was that it was a living document, subject to whatever emanations and penumbras one wanted to find to meet societal desires. Was that your view? Did it change?

A. Georgetown is a great school, and I was thrilled to be accepted there. I loved Washington, which of course offers a great deal for anyone interested in public affairs. While I graduated from Cornell, I had spent a year of college at Johns Hopkins, in not-too-far Baltimore, and took advantage of that to intern for then-Senator Pete Wilson. My job was essentially that of legislative correspondent, drafting constituent letters (primarily on environmental issues), giving tours of the capitol to visiting constituents, and generally helping about the office. It was a great introduction to Washington.

When I returned to Washington a few years later, I did not go to law school with any particular employment plan. I had next to no knowledge of the legal industry, but I was interested in the law, and figured that I’d find something useful and interesting to do within the profession. I cared, then as now, about any number of issues from a libertarian perspective, but I didn’t plan on necessarily having a public interest career.

Law school helped me develop a deep appreciation both for the genius of our Constitution, and the genius of some of our judges and justices in subverting it completely. I never bought into living constitutionalism, which is nothing more than left-wing politics by another name. And it did often seem that everything after 300 U.S. 1 is just wrong. The Slaughter-House Cases were a complete farce, and the way my professors and classmates related to Lochner was the world turned upside down. Constitutional text reflects the Framers’ classical liberal values. Fighting those values requires subverting the text.

In my second year, needing to make some money, I came across a flyer in a law school hallway advertising a position at something called “the Institute for Justice.” I was already fairly libertarian in my views, and discovering IJ was a revelation. IJ was this magical oasis compared to the leftist law school environment. It was an honor, and a major inspiration, to work with the attorneys there. They opened my eyes to what was possible.

One of IJ’s ultimate goals is to get Slaughter-House overruled, an issue on which I learned much from Chip Mellor. I could not have imagined that within sixteen years, I’d win a Supreme Court case where the deciding vote, even if it was the only one yet – called for the restoration of the Privileges or Immunities Clause. I also attended IJ’s summer student conference during one of my law school years, a highlight of which was a Ninth Amendment lecture by Prof. Randy Barnett. I consider myself very lucky that I’ve had the chance to continue learning from and working with Prof. Barnett.

Q. After law school, you clerked for North Carolina District Judge Terrence Boyle, who had been legislative assistant to North Carolina Senator Jesse Helms, and he was a pretty conservative judge. Did you actively choose to clerk for Judge Boyle because of his positions? What did you take away from your time in North Carolina, aside from an appreciation of barbecue? Did your experience with Judge Boyle influence your views? Did this confirm or change your view of constitutional interpretation? Did you have any desire after this clerkship to get into court and try cases?

A. I chose to clerk for Judge Boyle because he’s a great judge, because our values are essentially consistent, and because we connected well enough in the interviews to be honored with the offer. I considered various factors in researching clerkships, and I wouldn’t have applied without at least reading a few of the judges’ opinions and getting as much sense of their world view and personality as that might reveal.

That Judge Boyle had once worked for Jesse Helms suggested that Judge Boyle fit comfortably somewhere on the right side of the spectrum, which was fine by me—that’s what I was seeking—but that’s about all that particular data point said. Our political system doesn’t allow for very precise sorting—there’s the more-or-less right wing faction, and an increasingly leftist one. Having worked on the Hill, I had learned not to directly equate people with their bosses, for better or worse.

Are there people reading this who think Helms was the devil incarnate and anyone who’d work for anyone who’d work for him is morally defective? Sure. But that’s not how the world works. If you think his policies hurt people, I’d say the same thing about his left-wing equivalents, e.g. Barbara Boxer and Ted Kennedy, but I harbor no particular ill will against them or their staffers or their staffers’ staffers. Having said that, of course, I do judge people with terminal harshness for associating with those who are beyond the pale—Donald Trump and David Duke come to mind. We all draw our lines somewhere.

And whatever his shortcomings, Jesse Helms did at least one great thing for this country: he helped place Terrence Boyle on the federal bench. I’ve never been prouder to have worked for anyone. Judge Boyle is sharp, personable, well-read, and he cares deeply about the law and about the people impacted by his decisions. He is incredibly patient—much more so than I would be in his position. And he’s absolutely committed to the Constitution and to the principles of the Declaration of Independence. He’s really the gold standard for a federal district judge, and I’m not saying that because I worked for him (some clerks have written bitterly of their bosses), or because I agree with every last decision he’s issued since taking the bench in 1984 (that would be impossible). Judge Boyle possesses all the qualities that anyone would want in a judge, and he’s a fine human being.

Apart from lucking out with a great boss, the position of law clerk gave me an invaluable perspective on the practice of law. I experienced, first hand, a wide variety of lawyering within a very diverse docket, and had the opportunity to see what worked and what didn’t. I encourage clerking for all aspiring attorneys. By the time I started the clerkship I had already decided that I wanted to litigate, and the clerkship didn’t do anything to change my mind.

I hadn’t set foot in North Carolina until I first drove down to interview with Judge Boyle. As it was only a one year clerkship, I figured that I could clerk on Mars if that’s where the job took me. Fortunately, the barbecue is better in North Carolina than on Mars. Although the chambers were near the coast in Elizabeth City, we almost immediately traveled to Charlotte to help out in the Western District, and once during the summer Judge Boyle held court in New Bern. So I saw a great deal of the state, and very much liked it. My family loves vacationing on the Outer Banks, which I discovered through the clerkship.

Q. From NC, you went to California (a return of the prodigal son perhaps?), where you served as a deputy Attorney General. Did you get to try cases? Were you the trial lawyer you hoped to be? Did you have trial lawyer in your bones? After that, you went to Sidley Austin for a bit, then became counsel to the Senate Judiciary subcommittee on Criminal Justice Oversight. How did that happen? Were you interested in criminal law before this? Did this relate to your experience as a deputy AG? What sort of issues were you dealing with? Did you find yourself on a “side” in the mix? Were you sympathetic toward “truth and justice” or the defense?

A. I’d spent my law school summers at the California Attorney General’s Office in Los Angeles, in the Civil Division’s “Torts and Condemnation” Section. A different unit handled most prisoner claims, and another unit handled most employment claims, but this was the section that primarily defended the state and its employees in civil claims for money damages—everything from allegedly dangerous conditions of state parks, to police shootings, to airplane crashes.

The state’s tort control board resolved many of the simpler or low-dollar claims, so if the Torts and Condemnation section got the case it was usually at least somewhat interesting and often significant. The L.A. office’s geographic reach comprised the bottom half of California, excluding San Diego and Imperial counties. The attorneys I worked for were wonderful mentors, and they liked my work enough that it was suggested I’d apply for a job as a Deputy following my clerkship.

The experience could not have been much better. Every once in a while, a complaint would show up in my box. Someone had sued the state, I was to defend it, and let the bosses know how it turned out. That’s it. And it would be my case on appeal as well. Of course, having had no prior litigating experience, I knew next to nothing. I was conversant with the federal rules from my clerkship, but most of our work was in the state court system—and there’s a big difference between reviewing pleadings, and figuring out which ones to file and how to prepare them. But I was honored to work alongside some of the greatest attorneys I would ever meet, and I learned quickly.

There were about thirty of us in the L.A. office, and while not everyone was close to everyone, it was a tight-enough office, and overall there was a fairly good camaraderie. At the time, our office supervisor would have to review what I put on letterhead, but oddly enough, not what I filed in court. Of course, we all sought input from each other on significant pleadings, if (as was typical) we had sole responsibility for the case. The client agencies decided whether to settle and for how much, but otherwise, we each had total responsibility, and autonomy, as to how to work our cases.

Within a few weeks of starting, I was in court. Cases that someone didn’t want or couldn’t handle anymore for some reason were “burgers,” and our supervising deputy had a spatula on his wall signifying his authority to “flip burgers” to the other deputies as justice required. On day one, among the first “burgers” flipped my way was a bizarre case brought by two convicted car thieves who had been stopped by the highway patrol before they could drive their stolen SUVs across the border. The thieves claimed that cars were chock full of their goodies that they were planning to take home to Central America, and that the highway patrol had a duty to inventory and secure their now-lost property. Of course the cops, and the cars’ owners, knew nothing about this, and the thieves’ receipts were on the vague side.

The deputy who first had the case had only time enough to file an answer, but of course this wasn’t going to fester long, notwithstanding the plaintiffs’ lawyer’s plan to depose not just the police officers, but his clients’ victims about what they had allegedly done with the car thieves’ alleged possessions. So I gathered it was my task to write a motion for judgment on the pleadings—lack of duty to the thieves in securing the cars they’d stolen, and a raft of immunities under the tort claims act—and I drove to Indio to argue it.

I was stunned when the judge granted my motion, but with leave to amend. I left the court somewhat dejected, not realizing yet that in California some judges will always grant leave to amend at least once, no matter what, and that I’d won as much as could be won that day. We have to waste time doing this again? What amendment could possibly state a claim on these facts? I stopped at a bagel place for lunch before leaving the desert, and commiserated with the shop’s proprietor. He was somehow related to Carl Karcher, the burger magnate’s brother as best as I can recall, and I got a coupon for a free burger at any Carl’s Jr. So the case was a true “burger.”

The job’s biggest downside was that it paid next to nothing. People who’d been there for a while made okay money, but the starting salary for newbies had me living back home with my folks. Still, that position was invaluable—almost everything I ever learned about the practice of law, I learned from my colleagues and own my own at the California Attorney General’s Office. There’s something to be said for my almost two decades of experience since leaving that job, but that’s really where I became a lawyer. And yes, we went to trial.

I had two trials during my stint at the AG’s office. I second-chaired a suicide-by-cop case involving five highway patrol officers in the federal court in Riverside. A troubled teenager led the cops on an exceedingly wild chase that had ended with five of them opening fire on him. We earned a defense verdict after several hard weeks of trial. And I first-chaired an aviation case, brought by a county park concessionaire who sued when an airplane piloted by a state employee in the course and scope of employment crashed into his concession. The pilot’s insurance company had become insolvent, and the plaintiff wanted the state there as a deep pocket beyond what the guarantee association might supply. A few days into the trial, the case settled with the state paying nothing. That case, too, was quite complex—though the plane crash, tragic as it was for the pilot and his family, was the best thing to happen to the plaintiff’s business.

I’ve had some trials in my practice since leaving the state, but it’s largely out of my system. I prefer arguing about the law, not about what happened. For years now, I’ve tended to take cases that are unlikely to reach trial, as the adjudicative facts are undisputed. But it’s nice to have learned that I can successfully try cases.

At the Attorney General’s Office, I never faced a conflict between “truth and justice” and the defense. In cases of liability, I could recommend a settlement and the client agencies would settle. Everyone was a grown-up and we were busy— we weren’t going to waste time and take needless risk in cases where someone screwed up. But if the case had no settlement value, and especially if the plaintiffs conjured the bovine sciences, no soup for them.

It helped that the clients tended to be highly professional. Some police agencies are absolutely corrupt, and our nation plainly faces a problem with excessive police militarization. In my practice, I’ve since represented people in claims against incompetent and violent cops. But California’s state law enforcement agencies, at least when I was there, were clean. I was never called upon to defend bad officers. And in at least one memorable instance, I defended a police officer against a claims that was out-and-out fraudulent—I successfully obtained sanctions in that case when the evidence was uncovered.

As much as I liked my job in California, after a while I felt that I’d learned what I could, and I wanted to return to Washington and do something else with my career. A college friend at Sidley suggested I apply for an associate position they had, so I lateraled there as a fourth-year associate. I’m not going to slag the firm or some of the people there, but, let’s just say I disliked it for many of the typical reasons that people dislike Biglaw. After some amazing experiences at IJ, with Judge Boyle, and at the California AG’s, Biglaw was a big letdown. I’ve got my stories, but it wouldn’t serve any useful purpose to unload them here. And they aren’t that unusual.

One day I ran into an acquaintance on the Hill, who said they were looking for a counsel on the Committee, so I jumped at it. I’d still had fond memories of my earlier time on the Hill ten years earlier, and figured it would be a nice place to park for a while until I figured out the next step. While to some extent I focused on criminal justice issues, my colleagues and I were also the committee staff for the subcommittee’s chairman, Senator Thurmond. The greatest hurdle to being hired there was my complete lack of connection to South Carolina. Perhaps Southern California, or North Carolina, were close enough?

Q. After serving as counsel to the Senate subcommittee, you opened your own shop with Laura Possessky in Washington, D.C. Why not go back to Biglaw? What made you decide to take a chance and start a firm was the right route for you? Did you think at the time that you would end up before the United States Supreme Court? What was your focus when you first started the firm? How did it turn out? Was small firm life what you expected? Did it take off from the start, or did you sweat it out like the rest of us?

A. Actually, I started out, for a short time, as a sole practitioner. I wanted to practice law again, and to take and run my own interesting cases. I wasn’t opposed to partnering with others, but I was very much opposed to Biglaw, which I disliked intensely. If I thought my experiences were unique, perhaps I’d have tried another large firm, but it didn’t seem worth pursuing. I didn’t have a book of business, just some savings, some credit cards, whatever I’d learned over the years about the practice of law and a few connections here and there. I had no particular expectation of small firm life, other than that I wouldn’t have to put up with Biglaw life.

I figured I could always get a job somewhere if it didn’t work out. But the concept of self-employment was irresistible. It didn’t take off from the start, but I always somehow had something useful to do, and the business grew. I didn’t expect or directly plan to be arguing in the Supreme Court, but it was always a possibility considering the nature of some of my cases. I never gave the matter much thought, but neither did it seem fantastical or off-limits. The Supreme Court is a court. Some cases go there.

After a short time being on my own, I convinced a friend of mine, Chris Day, to leave his associate-ship at a small firm and form Gura & Day with me. Two years later, he brought in a third partner, a friend of his who was at the time a Virginia state senator, Ken Cuccinelli, and I brought in Laura Possessky, a Georgetown classmate and friend who had referred me some fantastic matters, and was ready to leave her firm.

That arrangement didn’t last long, with Chris and Ken going their way, and Laura and I going ours, in late 2005. I’d since seen a few associates come and go, and Laura chose to go in-house with the Corporation for Public Broadcasting this summer, so for now I’m back on my own—at least formally. In truth, I’ve always joined with other firms, and staffed up or down, depending on the requirements of a given case. Many matters I can handle myself; on others, I partner up. I have one matter now on which I’m one of five firms. In 2016, there’s just no reason why everyone must be under the same roof. I’d be happy to partner with others again, but it must absolutely be the right fit. If it happens, great, but it’s not mandatory.

Q. Your first case before the United States Supreme Court was, to say the least, a doozey. Heller v. District of Columbia. At the time you took on Dick Heller’s case, it was quite the radical proposition that the Second Amendment’s right to keep and bear arms was a fundamental individual right. What made you think you could change the long-standing interpretation of the Second Amendment? Was this a cause for you or a case? While some scholars were taking the position that it was an individual right, it was pretty much black letter law that it was a militia right. What made you think otherwise? Did you think you had a chance of achieving such a fundamental change in the law? What difference did support, such as CATO Institute, make? What about the institutional forces against you?

A. I wouldn’t agree that our position in Heller was all that radical. In the legal academy, the individual rights model had become the “standard model” of the Second Amendment, with the collective rights theorists regrouping under the “sophisticated” collective rights banner. That was one of the driving forces behind taking the case—that the academic debate was real, and the Fifth Circuit had just handed down Emerson, adopting the individual rights view and creating a split. It was a question of when and how, not if, the Supreme Court would get the question. The “collective rights” theory was black letter law only insofar as lots of courts had adopted it, but until the Ninth Circuit’s reaction to Emerson, in Silveira, no one had actually explained it. The collectivist theory was asserted, never proven or even elucidated to any degree, and legally it was the proverbial unclothed emperor.

It was, however, a very radical proposition in terms of the legal profession to be making a Second Amendment claim in 2003. It was tin-foil material for anyone who hadn’t studied it, though the criminal defense bar had discovered the issue, particularly after Emerson, and started raising Second Amendment claims. My colleagues and I could bring the Heller case because nobody else wanted it. If the Second Amendment was a big sexy issue in 2003, others would have pursued it.

The case was initiated by Clark Neily and Steve Simpson at IJ. It was their idea, but an idea outside of IJ’s core mission. Clark was allowed to work on the matter off-the-IJ-clock, and Bob Levy helped organize it. They needed a lead counsel, and Bob kindly thought of me. Of course I said yes, for a number of reasons. First, while I wasn’t a gun rights activist by any stretch, it’s an issue in which I’ve long strongly believed. Second, it seemed like a perfectly plausible case, in that we were right, the case would be handled IJ-style, and the courts appeared to be as open as they’d ever be to the argument. And third, we deeply believed that the issue would be determined one way or the other, such that the real risk was in doing nothing and allowing some random garbage case to frame the issue. So while we were by no means expecting a Supreme Court victory, neither did we expect defeat. We had a strong case in which we believed, and we were going to take it as far as it would go.

We didn’t get institutional support as such from Cato, as Cato doesn’t sponsor litigation. Bob put his own money into the case, and all of us had put in our time. We could not have predicted the institutional opposition, and all the twists and turns that the case would take, but nothing worthwhile is very easy.

Q. By the time you argued Heller, the “elite” Supreme Court bar had already taken shape. Did you ponder having one of the “known” lawyer take on the case? What did you do to prepare for oral argument? Did anyone question you as to whether you were the right lawyer to make the attack? It must have taken incredibly firm resolve to take the case on. Did you ever ask yourself, “what have I gotten myself into?” Did you ever consider giving up the fight?

A. It never occurred to me to give away a case I’d spent years developing just because others market themselves as “elite.” Aren’t we all special. It definitely occurred to various “elite” people in town, and their friends, that they should help themselves to my business. Bob kindly, and wisely, ran interference for me on that. It was always understood that I was taking the case to take it all the way. I prepared heavily, including five moots—the fourth of these was by far the toughest, but the last one went well enough, as did the argument.

To be sure, not every lawyer is ready to argue in the Supreme Court. But I had argued the case successfully at the D.C. Circuit, which wasn’t nothing. I wasn’t coming from a transactional practice, or from a career in some field involving largely the litigation of facts under established law and procedure. And the Supreme Court has been around for hundreds of years before this bizarre new notion that only half a dozen high priests might deign to argue there.

The Supreme Court has its own special rules and idiosyncracies, but that’s true of all courts, and we’re not pretending that only a handful of special people can litigate a pharmaceutical patent in the District of New Jersey or a capital case in Orleans Parish, to name two difficult, high-stakes matters of the kind I’d never attempt. The idea that judges should only hear from lawyers with whom they socialize is better suited to Podunk County Speedtrap Court. And in a generalist court, like the Supreme Court, there’s something to be said for the bar’s breadth of experience and perspective. Many excellent Supreme Court litigators would have lost McDonald for the simple reason that they’d never have included the Privileges or Immunities Claim that won Justice Thomas’s decisive vote. Had anything happened to me, Clark or Bob would have done at least as good a job arguing Heller. So could many of my former colleagues at the California Attorney General’s Office.

Of course, I market myself as someone who’s argued and won two landmark Supreme Court cases, but it wouldn’t occur to me to snipe someone else’s business just because they’re about to present their first argument. More than once, upon reading stories of attorneys being pressured to yield their first Supreme Court argument, I’ve reached out and encouraged them to hang on.

It never occurred to me to drop the Heller case. We were never in any posture where that might have made sense.

Q. To add insult to injury, you got screwed when it came time for the award of fees for your representation in Heller. District Court Judge Emmet Sullivan cut your fee request by about two-thirds, after another three years of fighting following the Supreme Court’s ruling in your favor. What happened there? From the outside, the $1.1 million fee award might have seemed pretty good, but given the many years you put into the case, it was grossly inadequate. Was this an example of “no good deed goes unpunished”? Was there some sort of animosity because of the position you took? What does this say about taking a long-shot chance and winning? Is the message to leave well enough alone?

A. It’s a matter of public record that we settled on appeal for a substantially larger figure than awarded by the district court, and still, it was not reflective of the market value of our work product as we had presented. I have some opinions on the matter that I would rather keep to myself at this time. People can read the decision and consider its assertions, educate themselves on the subject of attorney fee awards, and draw their own conclusions. You are not the only person who has asked me such questions.

Q. When you received the decision in Heller, it was a huge victory, a paradigm shift from the understanding of the Second Amendment for generations. But then, there was what I call Justice Scalia’s “errant paragraph”:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

What did you think when you read this? After all the effort exerted at changing the law, this gave an awful lot back without much by way of rationale. Was he smoothing ruffled feathers? Can this be justified? Were you satisfied with the decision, or did you see this as a switch in stumbling blocks, but still stumbling blocks to achieving a meaningful individual right to keep and bear arms? Despite this, Circuits have not given Heller a lot of respect, largely employing Justice Breyer’s “interest balancing inquiry,” unlike other individual rights. Why have court treated Second Amendment rights so much worse than other fundamental constitutional rights? Why has the Supreme Court allowed them to do so?

A. The “errant paragraph,” as you describe it, has not yet posed the greatest problems. At least in theory, there’s logic in the notion that every right has a contour, and if the Framers were comfortable with certain practices, they must not have believed them to be inconsistent with the right they were securing. Then again, the Alien and Sedition Acts were enacted within seven years of the First Amendment’s ratification, and at least some Amendments were enacted with the express goal of overturning existing law. And there are serious questions as to whether history supports the examples of longstanding prohibitions provided in the “errant paragraph.”

Most courts have held that “presumptively lawful” means that the presumption can be overcome in as-applied challenges. I’ve won two such cases so far, against application of the so-called “felon in possession” ban on behalf of plainly harmless individuals. Those victories were consolidated on appeal and affirmed by the en banc Third Circuit, Binderup v. Attorney General, and that could very well be the next Second Amendment case the Supreme Court considers.

On the negative side, the gun prohibitionists like to divorce the word “longstanding” from the rest of the paragraph, or read “longstanding” to mean as long ago as last week, such that virtually all laws are presumptively constitutional—a neat trick that undoes Heller’s holding. Indeed, they are trying to read this language to hold that there is no right to acquire guns at all, because any commercial restriction is presumptively (meaning to them, conclusively) lawful.

That’s a nonsense reading of a constitutional right, and not at all consistent with Heller, but it’s about what should be expected considering the Court has decided to let this right wither on the proverbial vine. The bigger problem, as you’ve identified, is that Justice Breyer’s dissent might as well be the majority opinion for many lower court judges. Prof. Allen Rostrom, who teaches at the University of Missouri Kansas City and was formerly of the Brady Center, wrote an article explaining this phenomenon four years ago, so it’s not exactly a secret.

Why is this happening? Many of the lower courts do not treat Heller as a fully valid precedent. It’s hard to imagine any Second Amendment cases prevailing in some venues. And it does appear that someone on the Supreme Court has either changed his mind, or wasn’t serious at the outset. The issue is bigger than the Second Amendment. Defiance on this level calls into question the Supreme Court’s institutional role at the top of the precedential hierarchy. UCLA’s Richard Re just authored an excellent article describing the phenomenon, “Narrowing Supreme Court Precedent From Below.” This practice invites chaos and lawlessness. That it can be credibly described, and celebrated by some, should concern the Court.

Q. Your Supreme Court encore to Heller was McDonald v. Chicago, bringing the Heller Second Amendment rights to the states. At this point, would it be fair to say you were among those “elite” lawyers of the Supreme Court bar? Did you see yourself as getting pigeonholed as the Second Amendment lawyer? Was that where you wanted to be? Now that you’ve proven beyond question your abilities as a lawyer, and a Supreme Court advocate, where do you want to go next? You’re now running your own shop, limited to appellate and strategic litigation. What does that mean? What’s the next “strategic” constitutional right you plan to take on? How do you see the future for individual rights in a county that seems more intent on finding safe spaces than free spaces?

A. Well, handsome, if you want to call me “elite” I won’t stop you. It’s better than some of the other names that I get called. “Elite” is not a term I’d have coined, because I don’t believe that the universe of people who can perform at this level is necessarily all that small, or as small as some law firm marketing departments pretend. If “elite” is the word for lawyers who are proven effective at complex, high-stakes litigation, including at the Supreme Court, I won’t object to it, though I’m not quite comfortable yet with self-describing that way. Marketing has never been a particular talent of mine.

I wasn’t well-known prior to Heller. Perhaps if I’d had a “boring” Supreme Court argument or two beforehand, things would have been different, but getting (in)famous all-at-once on a hot-button topic has had a pigeonholing effect. I’ve always been aware of that, and I continue to address it. Of course, Heller opened an exciting new field that I was eager to take advantage of, and which I was well-situated to pursue. It would have been dumb to stop working on Second Amendment cases. And I wanted to build upon my work, and leverage it into additional victories. I believe in the issue, else I wouldn’t take these cases, and I’m very happy to make a real, positive difference in the lives of my clients and others who benefit from this work.

But the Second Amendment is hardly my only interest, and it never appeared that a niche Second Amendment practice could be viable long term. It definitely doesn’t look that way now! I’ve never aimed to build such a practice. To be sure, I haven’t been successful in this area because guns are a defining or even large feature of my personal life—they’re not. Rather, I’d like to think I’m making the most of what could be made in this contentious area because I know something about complex federal litigation. McDonald should have proved as much, as the issue in that case concerned the Second Amendment only tangentially.

Heller and McDonald are examples of strategic litigation—the practice of designing and litigating a case for the purpose of creating or advancing precedent, usually by getting an unconstitutional law struck down. The substantive claim can involve any side of any topic, but there are some common considerations, doctrines, and best practices involved. I’m happy to be teaching “Strategic Litigation for Social Change” for the third year in a row at Georgetown, where I task students with identifying some unconstitutional law they’d like to get struck down, and then designing a case showing how they’d go about it.

Strategic cases start out in district court, but they have an appellate character from the outset. There’s usually little or no discovery, as the adjudicative facts are not at issue, and they go up sooner rather than later on cross-dispositive motions. I also handle appellate matters generally. For example, in recent years, I’ve filed two notable Supreme Court amicus briefs supporting Congress’s role in the conduct of foreign relations. And I’m happy to handle the appeals that some lawyers would rather have someone else defend or pursue.

I’m a generalist on appellate matters, but with respect to constitutional litigation I continue to favor free speech cases. One of my all-time favorite clients is Frederick, Maryland’s Flying Dog Brewery, which I successfully represented in challenging Michigan’s beer label censorship regulations. Michigan’s liquor commissioners banned Flying Dog’s “Raging Bitch” beer for having an allegedly offensive label, and we taught them a few things about the First Amendment that they might have missed in their safe space.

I’m helping fight California’s demands to snoop into the identity of advocacy groups’ donors, a practice long-recognized as a serious violation of First Amendment associational freedom. And I’m challenging the Federal Election Commission’s frankly puzzling practice of applying contribution limits to testamentary bequests. It’s hard to see the appearance of corruption when people choose to leave money behind to their favorite political party upon their death.

As the political culture becomes more statist, and schools indoctrinate young people into hating freedom of speech, it’s our role as lawyers who care about individual freedom to push back, and to do whatever we can to preserve our rights. But there are practical limits to “whatever we can.” The culture eventually selects the judges. We can’t do it ourselves. If, in the end, the people would rather have a safe space than a free space, that’s what they’ll get.

Photo credit Peter Goldberg

Cross: Ron Kuby, The Dude’s Radical Lawyer

Mar. 15, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Ron Kuby, criminal defense and civil rights lawyer and radio warrior.

Q. Even by the standard of the times, you had a pretty unconventional upbringing, where you ended up leaving the United States while in junior high school for Israel as a follower of Meir Kahane. Yet, five months later you were back here. Why did you go? Was it what you expected? What happened that Israel put you back on a plane?  It’s not easy to get thrown out of a country as a junior high schooler. How did you manage that?

A. It was something I said…

Seriously, it was. I was delivering an insightful, thoughtful, and experience-based (though unsolicited) critique of Israeli society to a group of American tourists one afternoon, who were visiting the youth village where I was hanging out. Apparently one of them was a more than just a tourist. He had some connection with the government and got mightily pissed off. Two days later, I was told “you travel tomorrow,” and in the morning, I was escorted to the airport and placed on a plane back to the United States. It was fine. I was getting sick of the place and didn’t have any money to fly back anyway.

Explaining the “how” of returning is easier than explaining the “why” of going. It will surprise no one to learn that I was a rebellious and troubled youth, in an era of troubles and rebellion. By the time I was 14, I was expelled from Junior High School for writing an underground newspaper. I was living with my mother, until one day she told me that she was moving out and the rent was paid through the next month. No one was volunteering to let me live with them and/or give me a job. This was Cleveland, in 1971. Anywhere had to be better.

I was already a young Zionist hoodlum, having joined the Jewish Defense League when I was 13. I was hardly the first errant youth at that time who shipped off to Israel to get straightened out. Yossi Klein Halevi, in his Memoirs of a Jewish Extremist, Harper Collins (1994) describes an almost identical journey to mine. But he made aliyah a few years after I was deported and long after my idealized Zionism had disappeared.

I enjoyed my time in Israel. The government sent me to a youth village that was also a destination for various student-tourist groups looking for an authentic kibbutz experience. I knew where to buy booze and score hash, I knew where to change money and where to stay away from—they befriended me, then would move on to another city. Then a new group came. After a while, I had friends all over the country, and could crash with any of them. I would go to tourist areas, usually with a hot but sincere girl, and we would scam tourists by claiming our group left without us, we needed x pounds (this was pre-shekel) to meet them in wherever, then I’d have enough money for a week. That part was all good. A bit sketchy, but good.

But it was a brutally authoritarian society. Highly militarized, which I did not like, and highly racist, which I despised. The level of animus toward the Arab population and daily, casual abuse reminded me of the American South. I would hang out in Jerusalem, and would gravitate toward the Arab quarter. I eventually spent a lot of time with Palestinians and discovered I liked them a good deal more than the Israelis, and they had their own stories to tell.

Q. You graduated from the University of Kansas with a degree in cultural anthropology and history, after spending some time roaming the hemisphere.  From there, you decided to go to law school at Cornell. What made you decide on law school? Did you go in with the purpose of doing criminal defense?  Any other practice areas that caught your interest?  Did you like your time in Myron Taylor Hall?

A. True story: I had applied for a Danforth Fellowship (it was like a Midwestern version of the Fulbright) to do graduate work in anthropology. The Danforth Committee would not consider your application unless you were recommended by your university. No problem, I thought—I had done original fieldwork in the West Indies, authored the then-definitive work on folk medicine in the U.S. Virgin Islands (OK, the only work, but still). I was a straight “A” student and had presented at an international conference, as well as published papers. I was the best fucking anthropology student in KU’s history. But they refused to recommend me.

One day, I saw the head of the university committee and asked him why? He told me it was my general attitude—which the committee found—wait for it—“condescending and arrogant.” I walked to the bar where I worked and told the bartender. He said “you should go to law school, they like people like that there.” That was really the first time I thought about it. Other stuff happened too—I was arrested in demonstrations, organized resistance to draft registration, got my arm broken by the cops, and dealt pot—things that gave me some exposure to legal topics in non-academic fora and naturally gravitated toward criminal defense and civil rights.

I had no money and no advice from anyone about where and how to apply anywhere. A guy who was living in our commune suggested I apply to Cornell because “it’s a good school.” And it is. I owe a lot to Cornell. Once they accepted me (I think I was “geographical diversity”), Dean Anne Lukingbeal, who just retired, made sure I had enough financial aid to afford it. I got a great legal education there. Strictly old school, right out of “1L.”

I enjoyed the intellectual challenge of it. This was a new way of thinking about the things I had always thought about; here were analytical tools to construct and deconstruct arguments.

But I didn’t love the experience. Most of my fellow students had been rejected at Harvard, Yale and/or Stanford, so they already had a sense of inferiority and an aggressive competitiveness for those associate positions in BigLaw. Clinical work was thought of as an inferior form of legal education. I despised most of them. The feeling was reciprocated. The problem was, in their view, only losers are leftists–jealous of the success of the winners. But I was a fucking great law student. Coasted into Law Review on grades—then quit because it was taking too much time from Prisoners Legal Services, one the few clinical programs Cornell then offered. As soon as the last course was finished, I went to New York City to start working for Bill Kunstler full time. Didn’t even show up at graduation.

Q. During school, you somehow managed to hook up with probably that best known radical lawyer in America, Bill Kunstler. How did that happen?  What was it like for a kid to learn the ropes with someone as well known as Bill?  Did he influence your politics and vision of the law?  Were you both on the same page from the outset?  What did you learn from Bill?

 A. It was serendipity. When I was interning at PLS, one of the attorneys who used to work there, Mark Gombiner (now with the federal defender in SDNY) was then working for Bill. So the staff attorneys encouraged me to write and request an internship. I did. No answer. I wrote again, including a writing sample and some other materials. No answer. Finally, I started pestering Mark, who pestered Bill enough that he said OK—no doubt figuring I would have limited usefulness and flake out quickly.

For me, from the first time he opened the door wearing a dress shirt and boxer shorts and thrust a cup of coffee into my hand at precisely 8:00 a.m. on Monday, I was in love. Then it was just classic figuring out how to make myself as indispensable as possible. I had a small but important Public Interest Law Union grant from Cornell (thanks again!) that allowed me to live without pay, and was staying at the home of a classmate’s father in New Jersey. So long hours, take on every shit job, figure out what to do with a minimum of guidance, do it well, do it before Bill even knows it needs to be done, etc.

I eventually found the packet I had so eagerly sent to Bill. It was unopened, and wedged between an air conditioner and a windowsill to make the former flush with the latter.

So funny to think about what I learned from Bill. What didn’t I learn from Bill? Of so many memories, I recall a warm spring day when Bill and I were having lunch in a little café down the street from his Greenwich Village home/office. We were talking and laughing and munching and I realized that I am now living some of the greatest days of my life. Years from now, I thought then, I would think back on these days with amazement—that was me, I was there, we did these things. So love these days and give all you can and learn all you can. It was the first time in my life that I realized just how amazingly fucking fortunate I was and that I needed to savor it while it happened, rather than look back and regret I did not appreciate it at the time. Below is a short list, in no particular order, of things I recall from Bill:

  • Ridicule is more effective than bluster
  • Every day after trial, make notes for your summation in a separate summation book. You may think you will remember these points, but you won’t. By the time you need to write your summation, it is already largely written.
  • Remove loose change from your pockets before addressing the jury.
  • All white people are racist, and you tend to find out at the most inconvenient time.
  • Grab all the free pens and pencils you can.
  • Don’t be too elated by your victories or too upset by your losses. There is more work to do tomorrow and you need to be able to do it.
  • In America, celebrity triumphs over everything, even disapproval.
  • Most of the people who claimed they marched with Dr. King where nowhere near the South. Or as Norman Siegel likes to say, “if all the people who claimed they were on the Pettus Bridge actually were there, it would have collapsed.”
  • Bring a crossword puzzle to work on during the court’s charge.
  • Every good defense has a theme which needs to be followed. Every question you ask and every witness you call must support that theme. Don’t get bogged down in cross-examination which, while it may make the witness look foolish, does not support your theme.
  • Decide what you want to get from each witness, get it, stop.
  • Don’t take yourself so fucking seriously.
  • White liberals are such bullshitters when it comes to a Black man’s life.
  • You really can put legal argument in an Affirmation.
  • Don’t represent rats.
  • The jury still represents the single most powerful check on the government’s power to criminalize.
  • Seek justice, not law. More people have been slaughtered “under law” than any other justification.
  • Every newspaper has 100 pages each day it must fill with something. It might as well be you.

When Bill gave speeches, he would usually end by a reference to Moby Dick, and assert, in his great basso profundo, “Ahab may have gone down lashed to the white whale, but tomorrow, Ishmael returns to the sea.” Thunderous applause followed.

It wasn’t until after Bill’s death that his closest friend, Bruce Jackson (l’uomo universale in his own right) pulled me aside and pointed out that it was not at all clear that Ishmael returned to the sea, tomorrow or at all. Indeed, he told me, Melville left that point deliberately ambiguous.

True, perhaps. But that is only because Melville never met Bill Kunstler. Had he been so fortunate, he would have made explicit what Bill always knew—that the struggle against injustice is perennial, and that everyone is called, in successive generations, to play their part in the fight for justice and freedom.

Q. Every new criminal defense lawyer has a first trial. For most, it is a humbling, if not embarrassing, experience.  How did it happen for you? Did you think you were ready to beat the world going in? Did it turn out that way? Was there some deeply humiliating experience that happened to you as it did the rest of us?

A. My whole life has been a succession of deeply humiliating experiences. Let’s see, there was the first day I interned for Bill and he gave me a giant stack of papers to file in federal court to obtain an injunction and told me if I fucked it up, I shouldn’t come back. I threw myself at the mercy of a Southern District clerk (who knew a helluva lot more law than I did), and she took pity on my brown eyes, brimming with tears. Or the time my pants ripped down the seat as Bill and I were headed to court for opening statements in some high profile murder trial, and Bill reassured me that no one could see it but “don’t let your cock flop out during my opening.”

Then there was the time in Atlanta in the ‘90s, when Bill and I were conducting an evidentiary hearing in the Wayne Williams case. I had just hit my pace in cross-examining a Georgia BCI detective, while I was leaning comfortably back on an old wooden railing. I slid over to grab a document and got a splinter, actually a chunk of lumber the size of a pencil, in my ass. But I am on a roll and do not want to break the momentum. Begging Bill to yank the splinter during a bathroom break counts as deeply humiliating….

I know there are scores of others, but, as is said in the great Irish folk song, (although the Scots beg to differ on origin), The Parting Glass, “And all I’ve done, for want of wit, to memory now I can’t recall…..”[1]

My first trial was a murder case in Virginia. Bill let me handle some of the less important witnesses, including a cop who was pretty well pinned down in a series of prior statements. I thought, no problem. On the stand, he completely contradicted himself and I was stunned. I went back to the table and Bill said, “well, cross examine him!” Uh, okay. Got it.

It took me thirteen years before I felt that I owned the courtroom. That this was my place and I was in charge here—no matter what some clown in a black robe thinks. Thirteen years before I really felt I knew exactly what I was doing and how to do it. Dunno about the rest of you.

Q. As far as the rest of the New York criminal law community was concerned, you and Bill eventually became partners, holding the firm out as Kunstler & Kuby.  When Bill died, and his wife, Margaret Ratner, blocked you from the office, the files and use of the name, we were shocked. What happened?  Was it a matter of money, of pride, of some sort of personal animosity?  It seemed incomprehensible that you wouldn’t take over the practice, and yet Ratner went to great lengths to make sure that didn’t happen. What went so terribly wrong?

A. Gosh. That one sure caught me by surprise as well. In 1994, after I had worked for Bill for 11 years, he named me a partner and renamed the firm Kunstler & Kuby. In his autobiography, My Life as a Radical Lawyer, Birch Lane Press (1994) he wrote of me, “he became my associate and is now my partner.” Id. at 397. The last chapter of the book is entitled “1994: Kunstler & Kuby” and the book ends with Bill writing, “I expect Ron will be here always, as long as always is, carrying on the work of Kunstler & Kuby.” Id. at 398.

When Bill died just a year later, the firm was several hundred thousand dollars in debt—mostly a labor debt to our clients. Like a lot of small criminal defense firms, we ran our finances kind of like a Ponzi scheme—the money that comes in today pays for the work for last year’s client whose case is now coming to trial. In my best year at the firm, I made $55,000. For the next year, I worked 70 and 80 hour weeks to complete the work we had been paid for, bring in new business, and pay “rent” to Bill’s widow. I did not seek her assistance to finish this work, nor did she offer any. I figured I owed it to Bill not to saddle his widow with obligations of the firm, and I certainly owed it to our clients to continue to provide the best representation I could.

After I finished up everything nice and tidy, Ratner sued me, claiming the partnership was not a genuine partnership, and I was just an at-will employee. She won a preliminary injunction, prohibiting me from using the name “Kunstler & Kuby.” At that point, I bailed. I had no money to pay counsel—I was being represented by a friend who knew as much about partnership law as I did. She was represented by a top BigLaw partnership lawyer, and was backed by the money of her second husband, Michael Ratner, the brother of developer Bruce Ratner and heir to the Ratner real estate fortune. The widow had a talent for choosing husbands. She had three before she was 30, each more impressive than the last.

I also did not have the time or inclination for that fight. I had many clients and many cases, and did not want to end up as a civil litigant, living from motion to motion, order to order, appearance to appearance. And I was concerned that in fighting to keep the name “Kunstler,” I would tarnish the name Kuby. You cannot win by getting into the muck with the grieving widow. When the case was finally resolved in late ’97, I walked out of the courthouse singing “Maggie’s Farm,” Bringing it All Back Home, Dylan, Bob (1965) and didn’t look back.

As to the why of it, I now have a pretty good understanding of it and it is not pretty. But as I said, you cannot win by getting into the muck with the grieving widow, so I am going to keep it classy.

Q. Bill Kunstler was the ultimate cause lawyer, but you were always more practical in your practice, representing defendants without regard to their politics.  Was this a difference in how you viewed your practice, or was the cause of defending the accused enough of a cause for you?  Do you see yourself as carrying on Bill’s legacy, or is that past history?

A. Bill and I were always there for the defendants whose progressive politically-motivated actions ended up in encounters with the law. We both saw ourselves as “movement lawyers,” attorneys who would contribute our skills to the causes of social change championed by our clients. I still do that work, for groups and individuals fighting climate change, Black Lives Matter, and Occupy. Bill and I both refused to represent defendants who commit acts of violence to deprive others of civil liberties—killer cops, abortion clinic bombers, and the like. If I wanted to represent right-wing killers, I would have gone into corporate law.

At the same time, there were many defendants who were wrongfully criminalized, or whose basic rights were being violated in an atmosphere of fear and hysteria. We would (and I still do) represent them as well. The best example is the Central Park Jogger rape case—which was not seen as a “cause,” especially by white people. When we took up Yusef Salaam’s case, and questioned the validity of the confessions, Bill was attacked as someone who used to stand for noble causes, but now just represented the worst street thugs and rapists. We know how that turned out. Sadly, Bill didn’t live to see the exoneration, but he never doubted it would happen.

We also took cases simply because we were pissed off at something the government or some other bully was doing to someone, or cases just to stick our thumbs in the eyes of authority. When Giuliani was rousting the squeegee people, we offered free representation to them. Boy, did that piss people off. We never got as much hate mail and angry calls—ever. Clin Ferguson (the LIRR gunman), meh. Sheikh Omar Abdel Rahman of the first World Trade Center attack, meh. But SQUEEGEE MEN!!!!! And I still do that kind of “fuck you, oh yeah, FUCK YOU” work.

Sometimes we took cases just because we needed to make a fee to keep things together. While we had basic principles about things we would never do, there was flexibility above that line. And the flexibility often moved in a direction inverse to our bank balance.

Contrary to public perception, neither Bill nor I ever took cases simply because the accused is entitled to a defense. Usually that is just an excuse to make a shit ton of money and come up with a high-minded justification for it. Bill was often attacked for saying he only represented people he loved. A bit of an overstatement, perhaps, but Bill had a large capacity for love.

The truth for me, at least, is that criminal defense work is an incredibly intimate experience. As the wonderful Lynne Stewart taught me, there is always something, some spark, in even the worst person who has done the worst thing, which illuminates an underlying and tortured humanity. If not loving all my clients, I usually end up at least liking them. But I have always tended to like people who like me…

I spend much more time thinking about why I am choosing to represent any particular person than Bill did. Bill had wonderful instincts and was not afraid to act upon them. He would see injustice and he acted, and he was almost always right. Meanwhile, I have a tendency to dither about this or that, and well, what about the other thing, and sometimes the moment for action passes.

As to carrying on Bill’s legacy—it is a big legacy. Huge. Bill began battling the forces of McCarthyism in the ‘50s, worked for the civil rights and anti-war movements in the ‘60s and early ‘70s, took up the cause of anti-imperialist freedom fighters in to late ‘70s and early ‘80s, and fought the new Jim Crow, as Michelle Alexander so trenchantly named it, in the late 80s and 90s. He lived through every one of the fights of his many days, and contributed to the cause of liberty and justice in each of them. In his spare time, he wrote poetry, authored ten books (including one best seller, The Minister and the Choir Singer, William Morrow, 1964, about the Hall-Mills murder case, and the lesser known Law of Accidents, Oceana Publications, 1954), served in the United States Army as an infantry major during WWII, married two women and raised two families, and smoked a lot of pot. No one can carry all of that on. They do not make people like that anymore. I would like to think I am, as Bill hoped, “carrying on the work of Kunstler & Kuby.” That is for other people to judge.

Q. Not that you have a face made for radio, but you teamed up with Curtis Sliwa, who started the red beret’ed vigilante force Guardian Angels in New York City, for a radio show.  How did that happen?  Sliwa’s claim to fame was as a “regular joe” street guy, whereas you were the thoughtful liberal. It seemed as if he had the easier side of the deal, with fortune cookie platitudes that were easily digested for the hard of thinking. You, on the other hand, offered ideas that required thought, intelligence and a fairly strong level of erudition. Talk about an Odd Couple. Did it work for you? Did you feel that the medium put you at a disadvantage? Was it fun at least?  And what brought it to an end (the first time) eight years later?

A. In April of 1996, I was in the middle of trying the civil case against subway gunman Bernhard Goetz. Bill had started the case in 1986 in the People’s Republic of the Bronx, but delaying tactics by Goetz, plus the usual Bronx civil backlog, postponed the case for a decade. Alas, Bill did not live to see Goetz’s denouement.

One Saturday, while doing trial prep, Curtis called to see if I would do a short interview with him as a “newsmaker.” The short interview became a contentious and relatively entertaining hour-long debate. The program director happened to be listening and thought if I could talk about other things besides this case in the same way I talked about this case, it could be a good show. So in November, 1996, I pared up with Curtis for a three-hour show—the Monday Night Fight. From there, the show grew, taking over more and more timeslots, sort of like Israel with the Palestinians. Eventually, we got the big prize—the WABC morning show, starting on May 1, 2000. I was fired on November 1, 2007, and was re-hired, under different management, on January 1, 2014. My contract was just extended through at least this year. And talk radio pays money—the same amount every two weeks. It is a respectable mid-six figures and it pays for my law practice. At least, I do not have to make any money from law. And it turns out. I am very, very good at that.

I think I became a much better lawyer because of talk radio, and a much better talk show host because I am a trial lawyer. With every caller, and with Curtis, just like every witness, you make a very quick decision about what you want to do—play it hard or soft, kind or mean, get a laugh or throw a punch—and how will it be heard by your audience or your jury? It is also personality-driven radio, so I am expected to do what most people want me to stop doing—being me.

It ended because my boss hated me. He was a rightwing knuckle dragger and wanted a station of the same. He hated the fact that I was trying to keep the level of dialogue in triple digit IQ points. First, he tried to fire me, but his bosses kept overruling him. Then he tried to make my life so miserable that I would quit. But for $750,000 a year (which is what I was making then), I can endure a lot of misery. Finally, as part of the cosmic comedy, Don Imus got fired from WFAN for making racist comments. WABC had just been sold to Citadel (now bankrupt), and they wanted Imus for the morning show. That provided my boss the opportunity to fire me.

Now I never thought Imus should have been fired for his comments, but I certainly didn’t think he should get my job. I was doing a show with Bernard McGuirk, one of the Imus guys who participated in the famous Rutgers basketball comments. He started to go down a racial road in the conversation, and I warned him: “Remember what happened last time you did that.” He replied: “Yeah, you got fired.” As we say, shit happens.

Q. Do you remember what I did immediately after my son and I watched the Big Lebowski?

How does a lawyer become such a household name that he finds himself a cult hero?  When did you find out the Dude wanted you to be his lawyer?  While Jon Rapping won a MacArthur Genius Award, you will be forever immortalized in the Big Lebowski. Does it get any cooler?

A. So my daughter and I were talking and I mentioned that I had worked with Barry Scheck on the first federal DNA case in Ohio, in 1991. She looked up and said, “you worked with Barry Scheck?” I nodded and smiled. She asked: “Why is he so much more successful than you?” Hey, Barry may have played himself in the Good Wife, as well as numerous other appearances and mass culture references, he may have almost single-handedly created the Innocence Project and exonerated hundreds, he may be a consultant on major aspects of criminal justice reform and has done more for more people than any lawyer I know, but I got the shout-out in the Big Lebowski. Nothing is cooler than that.

Q. You’re closing in on 60, still haven’t cut your hair, and still have more business than you can handle.  Is there anything else you want to do before you’re done? Do you still want to try cases, teach maybe, sit on a bench before it’s over? You’re back on the radio with Sliwa, but the times are very different now than then. Is there a next step in the career of Ron Kuby?

A. Ha! Sixty is closing in on me—not the other way around. And I suspect that is a fight I will not win. Or at least not on the terms I would want. On the other hand, law is one of those few professions that you can practice well into old age, as long as you have your health and your wits (and sometimes not even the latter). I do find it unnerving when people talk about the great career I’ve “had.”

I have been married to the same woman for 30 years. Our daughter will be matriculating at Georgetown Law School this fall, so I look forward to many trips on the Acela express over weekends to kick around hearsay rule exceptions, or the Statute of Frauds.

There are some things I definitely do not want to do—retire, judge, or teach. My general attitude is anathema to all three.

Talk radio is still great fun and pays very well. The only problem is that one day they are putting up billboards with your picture on them, the next day they are scrubbing your name from the website and it is like you were never there. With law at least, they have to give you notice and due process before they yank your ticket. I’ll probably keep the radio gig as long as they want me.

But practicing law is still what I do best, and love the most. What I lack in the energy I had thirty years ago, I make up for in judgment (I think). These days, I look for cases where I, as Ron Kuby, think that I can really make a difference in outcome—either because of specialized skills, persona, or both. As we sadly know, about 95% of criminal cases are going to turn out the same way regardless of who the lawyer may be—that pesky evidence and those fucking facts are generally outcome determinative.

I have been doing a lot of actual innocence work lately. Last year, I was pleased to win two bitterly-contested hearings in Kings County and Manhattan for two men who had spent 28 years and 25 years in prison, respectively, for crimes they did not commit. I have another hearing set for June in Brooklyn, and will probably be doing a month-long hearing in Nassau County later this year. Of course, there has been no money from any of these, so it is like a really, really expensive hobby. But with a socially useful result. One of my clients, Shabaka Shakur, is working for me as a paralegal, and has founded his own advocacy group, Absolutely Innocent. Hopefully he will win a lot of money and I will work for him. I keep modelling good boss behavior just in case.

At the same time, it was my daughter who brought Professor Abbe Smith’s amazing and provocative article, In Praise of the Guilty Project, to my attention. While I would not presume to paraphrase her brilliant writing, her central thesis is that creating a fetish about actual innocence across the legal landscape has a great capacity to do harm to the core criminal defense function of representing the guilty. The vast, vast majority of people rotting in America’s prisons are not factually innocent—they have been overcriminalized, mistreated, and wrongfully convicted based upon police perjury and prosecutorial misconduct.

I think we are enjoying the perfect climate for de-incarceration and ending mass incarceration in America, and would like to keep working on this until the moment passes. As soon as one of Obama’s clemency prisoners kills some white housewife, it’s going to be game over.

What I will do in the future remains, of course, opaque. If anyone manages to get through this whole thing, they will realize that I stumbled into most of the good things that have happened to me, and I intend to stumble on in hopes of more of the same. We shall see. As my favorite ADA, the redoubtable Matthew Bogdanos, likes to say, “tomorrow is promised to no one.”

[1] Sometimes “shan’t recall.”  Two very different ideas conveyed.  I prefer “shan’t,” but Liam Clancy singing this brings me to tears.

Cross: Charles Lavine, Cleaning Up Corruption In Albany

Dec. 16, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses New York State Assembly member Charles Lavine (D-Glen Cove), Chair of the Assembly Ethics Committee and a former criminal defense lawyer.  Assemblyman Lavine authored a New York Times op-ed following the convictions of Assembly Speaker Sheldon Silver and Senate President Dean Skelos.

Q. Before being elected to the New York State Assembly, you were a criminal defense lawyer, starting with the representation of indigent defendants at the Legal Aid Society, becoming a member of Grossman, Lavine & Rinaldo, and then going solo. That’s a lot of baggage, in terms of experience and exposure, particularly since you took the most difficult route possible, primarying an incumbent just to get to the general election. Why? What drove you to take such a crazy chance? Was your history on the wrong side of the courtroom used against you? What does it take for a criminal defense lawyer to win an election?

A. I had always been involved in some type of politics. Before running for the Assembly, I had been Democratic leader of the Glen Cove Committee, counsel for the Industrial Development and Community Development Agencies, served two terms as counsel for North Country Reform Temple, served on the Planning Board and on the City Council. I had also fought to elect good people to my school board and for responsible school budgets. By 2004, passing school budgets in Glen Cove and other communities had become very difficult in part because New York State hadn’t had a budget on time for 20 years and it was impossible to know how much state funding would be available when education budgets were voted upon. I ran on a platform of on time budgets, the fundamental building blocks of good government. I never viewed fighting for what was right as “taking a crazy chance,” perhaps in small measure because of the years I spent representing unpopular people.

Being a defense lawyer in controversial cases was used against me. I believe, though, that it probably got me more votes than it cost me. The people who would hold the crimes of my clients, primarily appointed clients, against me would likely never vote for anyone like me anyway.

Criminal defense lawyers who have been involved in their communities and local governments and have some experience in politics can win elections. Whether prosecutors or criminal defense lawyers, it is critically important to have good lawyers in elected office.

Q. On the day you got off the (metaphorical) bus in Albany, you must have had some anticipation of what you would be looking at as a member of the state Assembly. Was it what you expected? Did you expect politics to be altruistic or dirty? Did you expect your colleagues to be knowledgeable, dedicated public servants, putting the interests of their constituents first and foremost?  What did you find there? What surprised you, thrilled you, appalled you, when you took your seat in the Assembly?

A. Human nature is the same, whether in local or state government. As in local government, most of the members were well intentioned and dedicated. What I did not anticipate was the skill, professionalism, knowledge and dedication of the staff. While little appalled me, it was extremely distasteful to witness the manner in which some Senators gloated on one of the evenings that marriage equality was defeated. Whether for or against, the debate was about human rights and deserved far more respect from those who were victorious than night. Their victory, however, would prove to be short lived.

Q. The view of lawmaking from the outside is never quite the same as it is from the inside. No doubt you could have rattled off a few dozen changes in law that were absolutely needed when it came to the New York Criminal Procedure Law and Penal Law, having lived through the mess as a trench lawyer. As a rookie legislator, was anyone interested in doing anything to reform the mess?  Did you have the chance to make changes or were you met with fellow legislators who thought the new kid should be seen and not heard?  Was your experience shown respect, or were you relegated to the seat farthest away from power and influence?

A. The Assembly conducted the most extensive hearings on the death penalty in American legislative history starting in the months before I was sworn in. While I was allowed to sit with the members for the initial hearing, I asked no questions before being sworn in, after which I was able to engage and play a meaningful role in that I was the only member who had ever handled death penalty cases in both the state and federal courts. I believe my opinion and knowledge were valued and I am very pleased that those hearings were instrumental in ending the death penalty in our state.

Q. As a newly elected, first-term Assemblyman, having just won a two-year term of office and still exposed to the potential of being unseated in the next election, what was the impact of having to run again, to raise money to fund your next election a mere two years off?  Certainly, the support of the party would be crucial in keeping your seat, Was this a means of keeping a new legislator under control, toeing the party line lest he be the target of a primary with the support of the party leader?  How much room did you have to move, regardless of what the party wanted you to do?

A. Interesting question. I have experienced political pressure, but very rarely by party leaders. That pressure came more from special interest groups. For example, the NRA once said it wanted to “take a shot at getting rid” of me and was “targeting” me for defeat. Tea Party opponents once brought an armed gunman to a debate I was having in a synagogue. When I supported consolidation of local governmental services, some local village officials were very antagonistic. One must be somewhat thick skinned and it also helps if one is not unduly afraid of controversy.

Q. In the aftermath of the convictions of former Assembly Speaker, Sheldon Silver, and former Senate President, Dean Skelos, two of the “three men in a room,” and with rumors swirling that the third man, Governor Andrew Cuomo, might soon find an indictment with his name on it, some might have suggested the best political move for a legislator was to keep a low profile, stay under the radar. Instead, you wrote an op-ed for the New York Times suggesting changes that might end the corruption reflected in these convictions. What were you thinking?  Why go counter to the common wisdom of keeping your name off Preet Bharara’s short list to take a chance by going public?

A. I became Chair of the Assembly Ethics Committee, Co-chair of the State Legislative Ethics Commission and Chair of a taskforce charged with redesigning the Assembly’s sexual harassment and retaliation policies in 2013, in the midst of the Vito Lopez crisis. Even though those positions involved very steep learning curves, they provided me with a unique vantage point from which to evaluate the ethical debacle that has led to the convictions of the Assembly Speaker and the last six Senate leaders. Writing the Times Op-ed was my responsibility and obligation. I believe United States Attorney Bharara is a consummate professional and I have no reason to fear that I will become a target of any investigation. The prosecution of legislative wrongdoers is an essential ingredient of good government.

Q. In your op-ed, you confront some very real problems that elude the understanding of many member of the public.  One of your most significant points is that the Assembly needs to change to four year terms from the current two years, relating back to the fact that it leaves legislators with about a twelve hour honeymoon before they have to hit the streets to fund their next election. The reaction in the Times’ comments wasn’t entirely positive, with many suggesting that a four year term just lets corrupt politicians stay in office longer. How do you explain the real life incentives faced by politicians to people who are sick and tired of politics?  If the public view of politicians is so cynical, and why wouldn’t it be given the convictions, how can they be convinced that there are legislators in Albany who aren’t there to enjoy graft and power?

A. My Op-ed piece does not call for four-year terms. It addresses reforms that the Senate and Assembly could take on their own to improve the legislative process and, in so doing, improve the legislative product. I remain an admirer of President John F. Kennedy and am still moved by his call that we ask not what our country can do for us, but should instead ask what we can do for our country. That sense of selflessness is an important ingredient of American exceptionalism. It is not a philosophy shared by some my colleagues who are intent on frustrating shared efforts, that is, governmental efforts, to make life better for our people. If we value our families, then we are dedicated to our communities, which are simply collections of our families. Government is nothing more or less than the organizational extension of community. My colleagues who revel in cynicism are engaging in the most cowardly forms of demagoguery.

Q. As you also make clear in your op-ed, the whole citizen-legislator schtick sounds a lot better from a populist point of view than it does from the perspective of legislators trying to get anything accomplished.  You write:

Despite the fact that New York is one of the largest states in the country and one of the largest economies in the world, my colleagues and I work shockingly few hours: Next year we are scheduled to spend just 57 days in Albany between Jan. 6 and June 16, when the legislative session ends.

Thirty of those days will go toward completing the state budget, due at the end of March. Those days will be totally consumed with fiscal analysis and negotiation, leaving only 27 days between April 1 and June 16 to consider all other governmental business, including more than 10,000 bills. There’s little chance we’ll get to more than a handful of those.

The numbers reveal an obvious and insurmountable problem, and explain a lot about why laws in desperate need for enactment or reform, like the dreaded archaic P.L. 265 knife law that has been so badly abused by police and damaged so many lives, will never reach the top of the list for consideration. If the Assembly doesn’t go full time, does that mean there is no hope for reform? What does a former criminal defense lawyer tell working guys who are arrested and prosecuted for nonsensical laws, whose lives are ruined because Albany doesn’t have the time to care?

A. We have to realize that the Assembly has been far more interested in modernizing our criminal laws than has the Senate. Mentioned earlier, the extensive hearings on the death penalty were conducted in the Assembly, not the Senate. As presently constituted, the Senate would easily and has easily passed bills reinstituting the death penalty and increasing criminal sentences whether justified or not. I would tell New Yorkers not to give up on the hope that change can be accomplished. That change, however, will remain elusive so long as the public is disengaged and lacks faith in its elected representatives to bring that change about.

Q. It seems the legislature is far better at passing new laws than cleaning up the mess of old ones that need fixing. And yet, the latest flurry of penal issues, such as bullying and campus sexual assault, raised significant and, perhaps, insurmountable constitutional issues. Does the legislature think about these problems? Do they understand the problems they create? In light of the popular support for ever more crimes, does the legislature have the guts to just say no to laws undermining due process?

A. There are any number of proposed criminal and civil legislative proposals that are constitutionally infirm. These do not go to the floor for a vote. Every major bill that is voted upon has been vetted in committee meetings and in majority conference in the Assembly and is open to debate on the floor.

Q. The mechanics of Albany have long created an incentive system for what Boss Tweed would have called “honest graft.” As part-time legislators, paid a decent salary for part-timers, perhaps, but a woefully inadequate income to maintain a decent lifestyle in downstate New York, politicians are forced to have outside employment to make ends meet. And nobody really thought Shelly Silver was filling out interrogatories at Weitz & Luxenberg. Is there any politically acceptable way to change these incentives, to make it unnecessary for elected officials to need outside employment to feed their families? If their only real coin is influence, what practical means is there to provide an incentive to stay above influence peddling as a way of survival in Albany?

A. This is a challenge that was one of the reasons for my Op-ed piece in the Times. A full time, professional legislature won’t be a panacea, but it will help to eliminate many of the obvious conflicts some of my colleagues have when they are either employed by special interests or by the law firms that are under retainer to special interests. While this is obvious to every citizen of good faith, it is apparently not so apparent to my colleagues who make a great deal of money from those special interests.

Q. Perhaps the dirtiest secret of legislative politics is member money, where the party leaders hand out funds to members to spend on constituent causes. On the one hand, these funds can be put to good use on the local level, where legislators are thought to be the best judges of efficacy. On the other hand, this emits the unpleasant odor of a slush fund to pay off supporters. And no matter how good the use to which these funds are put, they expose members of the Assembly to allegations of graft and corruption. Can this be ended? Should it be ended? If it is ended, would this spell the end of funding for deserving local causes that rely on member money by way of dedicated legislators for their survival? Without it, what alternative means exist for small, local causes to serve their communities? Is ending an opportunity for corruption also ending a vital opportunity to do good?

A. The public has a right to know how every taxpayer dollar is spent. In my Op-ed, I describe the absolute necessity of having a clear-cut schedule placed on the state’s website describing which legislator initiated a grant, the amount and purpose and the entity to which the grant was delivered.

Cross: Judge Richard Kopf on Cops Who Lie

Oct. 6, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield “crosses” Senior United States District Court Judge Richard G. Kopf about the impact of video on the judiciary’s realization that the historically trustworthy police officer isn’t always so trustworthy.

Judge Kopf:

Three caveats:

I can’t speak for other judges.

I am old. Younger judges are far more likely to be skeptical of the police than those of us who grew up with the mythology of the 1950s.

As a federal judge, and save for interdiction stops on the Interstate highways involving a bunch of dope and the Nebraska State Patrol (that uses in-camera video), most of my cases are not dependent upon the credibility of one cop. Moreover, my motions to suppress are first heard by a tough and experienced Magistrate Judge, so I make fewer credibility determinations than you might expect.


Q. Ten years ago, in the typical one-on-one swearing contest between cop and defendant, what were the chances the defendant would prevail?

A. The cop would normally prevail. By the way, I seldom saw defendant’s take the stand and testify under oath. Thus, I infrequently saw “the typical one-on-one swearing contest.”

Q. To what do you attribute the fact that defendants didn’t testify at suppression hearing?

A. Probably, the failure of defendants to testify at suppression hearings was motivated by defense counsel’s fear that such testimony could later be used to enhance the defendant’s sentence if the defendant was found to have lied. Moreover, such testimony might cause the government to refrain from offering a cooperation plea agreement later on. Finally, counsel may have believed that a trial would take place even if the suppression motion failed and thus exposing the defendant to cross-examination prior to trial was not worth the risk that such testimony could be used during the trial. In this regard, defense counsel instinctively (and properly) fear exposing defendants to the rigors of cross-examination unless absolutely critical.

Q. In the past few years, having seen videos proving that cops lie, can be abusive, shoot without justification, has this changed the equation?

A. Yes. It has changed my perspective, particularly when I deal with a local cop from a small police force. Overall, I am generally more skeptical.

Q. Do judges view the credibility determination as a matter of going with the odds?

A. To a degree, I view credibility determinations as going with the odds. But, and this is important, I have always known enough about life and probabilities not to rely too heavily on “odds,” and this is particularly true now after the recent events to which you have referred.

Q. What will it take for judges to believe that police are not always the paragons of virtue they claim to be?

A.  At least for me, that realization has hit me hard rather late in life. As you have noted above, the events of the past few years, captured on video, are powerful proof that cops can be remarkable con artists.

Q. What can the defense do today when there is no video to prove misconduct or abuse has occurred?

A. Dive deep into the facts. Give me as much of the background facts as you can. The more the better. Get me information about the defendant and his or her background. Same with the cop. Try to put me at the scene.

While it is dangerous, think hard about putting your client on the stand.

Q. Given that police are almost invariably more experienced and well-trained at testifying, while defendants may well have a less than savory background, what can a “dirty” defendant do when a pristine cop, who claims to have “no motive to lie,” lies?

 As I have said, the more I know about the background facts the more I can evaluate the likelihood that a “pristine” cop is lying. For example, assuming a “dirty” defendant does not testify, if the claim is that there was no consent to search the auto, and it was a cold and snowy day with the wind blowing hard out of the north, and the cop failed to obtain written consent or make an audio or video recording of the oral consent, then the “pristine” cop’s assertion that the defendant consented becomes suspicious, at the very least. As in other things, context is often critical.

Q. If you believe that a police officer or agent has lied under oath in your courtroom, is it sufficient that the prosecution lose the point or should the officer face more severe sanctions? If so, what?

A. No it is sure as hell is not sufficient. A cop who lies should be subjected to a perjury prosecution. I should be the one to publicly refer the matter to the prosecutor. Furthermore, I would not hesitate to publicly “ban” such a cop from ever appearing before me again.