My friend, Bill Barrett–a good, modest and smart man who served in Congress as one of the last Republican moderates

Bill and Elsie Barrett with their daughter Beth. September 24, 2014 in RGK's chambers

Bill and Elsie Barrett with their daughter Beth. September 24, 2014 in RGK’s chambers

I have known Bill Barrett since 1974. Our firm represented Bill and his insurance, real estate and appraisal business. Ed, my law partner, and Bill grew up together in Lexington, Nebraska and were fast friends. Bill was born in Lexington on February 9, 1929. He was educated at Hastings College in Nebraska, and served in the United States Navy. If you met Bill, you would instantly like him. He genuinely cares about people, and that trait is as evident as his warm laughter, his modesty and his obvious intelligence. You would never know, however, that Bill was one of the most influential Nebraskans of the 20th century.

When Bill returned to Lexington after college and the Navy, he quickly became active in the Republican Party. He was the head of President Ford’s reelection effort in Nebraska, he served in that same capacity when George Herbert Walker Bush ran against Ronald Reagan for the Republican nomination for President and Bill became chairman of the Nebraska GOP. Soon after I first met Bill, his electoral star was ascendant. In 1978, Barrett was elected to the unicameral Nebraska Legislature. He served in that body for roughly 13 years until his election to Congress. He was speaker of the legislature from 1987 to 1991.

In 1983, Bill hired me to represent the Nebraska legislature regarding the Commonwealth Savings debacle and later regarding the impeachment of Nebraska’s Republican Attorney General. Bill’s courage in standing against the Attorney General, a heavy hitter in Republican circles, was extraordinary.

As the New York Times reported, Bill took the floor of the legislature and spoke hard truths:

State Senator William Barrett, a former Republican state chairman, offered particularly damaging comments. He recited how Douglas received a $371,814 check from Marvin Copple’s secretary on Dec. 27, 1977, for the sale of undeveloped lots but later said he could not recall whether he had received the check or whether the money came from Commonwealth.

The same day the check was deposited, Senator Barrett said, Mr. Douglas repaid a loan from Marvin Copple with a check for approximately $320,000. Mr. Douglas has contended the transactions of buying and selling land were but an unconventional way of paying him and and another lawyer, Paul Galter, for doing legal work for Mr. Copple on real estate development projects.

See also PROSECUTION RESTS IN NEBRASKA OFFICIAL’S IMPEACHMENT TRIAL, New York Times (March 28, 1984); State v. Douglas, 349 N.W.2d 870 (Neb. 1984).

In 1991, Bill was elected to Congress to represent the vast Third District of Nebraska. His district was one of the largest and most rural congressional districts in the nation. With nearly 63,000 square miles encompassing 66 counties, Bill returned from Washington, D.C., almost every weekend to see and hear his constituents. That was both remarkable and exhausting at the same time. It meant flying from D.C. to Denver or Chicago and then to Lincoln on a small plane, and after that a car drive of six to seven hours if he was heading to the western end of the district. Yet, from January 1991 to December 2000, Barrett missed only 63 of 5,795 roll call votes. See gov.track.us. This was far better than the median of the lifetime records of all representatives who have served up to and including Dec 2000. Id.

The trusting relationships Bill built with his constituents was evidenced by the fact that he was re-elected by more than 75 percent each term, gaining votes from Republican and Democrats alike. In fact, in the 1998 election, Bill had neither Democratic nor Republican opposition in the primary and general elections. Bill served five terms until 2001, and then at age 72 he decided not to seek relection instead preferring to rest and recoup and spend time with his beloved wife Elsie, his children and grandchildren. Of course, Bill returned to his hometown, Lexington, eschewing the allure of retirement in Washington, D.C.

When Bill was in Congress he was fiscally conservative, but objective third-party observers have recognized that Bill was an ideological moderate. See, for example, the scatter plot showing Bill’s ideological position relative to other members of the House prepared by gov.track.us. While in Congress Bill successfully sought key committees–the Agriculture Committee and the Education and Workforce Committee. He worked hard to keep these posts because of their importance. His increased seniority helped him to continue to work effectively for childcare, education, health care, rural development, agriculture and other vital issues. Bill served three terms as chairman of the Agriculture Subcommittee on General Farm Commodities and vice chairman of the full committee, all of which positioned him to help write two Farm Bills.

On a personal level, Bill came to and spoke at my confirmation hearing. See HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE ONE HUNDRED SECOND CONGRESS SECOND SESSION ON CONFIRMATION HEARINGS ON APPOINTMENTS TO THE FEDERAL JUDICIARY, at p. 4 (Thursday, May 14, 1992). That was the one and only time I ever heard Bill stretch the truth.

In short, Bill Barrett is a good, modest and smart man and one of the last Republican moderates. I am honored to call Bill my dear friend. Although he is 85 years old and he is physically frail, Bill’s mind and sense of humor remain sharp as ever and his warm smile still lights up a room. I cannot express adequately how happy that makes me.

RGK

 

 

 

One trial lawyer’s view about speaking with the jury after the verdict

Kyle McNew is a bright and upcoming young trial lawyer who clerked for a federal district judge and then with federal circuit judge. Recently, he sent me an e-mail about his experience while clerking for the district judge. I was impressed by the e-mail because Kyle articulated why I think speaking to jurors after a trial is very worthwhile.

I asked Kyle if I could reprint a portion of his e-mail and he agreed.  Here it is:

I just read your post about interviewing jurors.

. . . .

[One of my first assignments] was to be the clerk on a 4 month, multi-defendant white collar criminal jury trial. All of the defendants had unlimited defense funds, so these were the best white collar attorneys in DC up against some of the best white collar prosecutors DOJ had to offer. I had graduated law school in May, took the bar exam in July. This trial started the first week of October. The entire experience was incredible, and I can truly say that I know first hand what it is like to drink from a fire hose. But the highlight of the trial was spending about 5 hours with the jury after they rendered their verdict. The jury came back at about 10 am on the 5th day of deliberations. My judge had me reserve a private room at a very nice restaurant just down the street [from the courthouse] for lunch. The jury delivered its verdict (not guilty across the board) and off we went to lunch. . . . We never asked them why they did what they did, because it was obvious. Instead, we asked what worked, what didn’t, what they thought of the process, what could be done better, etc. For an aspiring trial lawyer, it was like manna from heaven. We did the same (sans fancy lunch) for every other trial we had, but that lunch session was the absolute highlight.

As a trial lawyer, I still try to speak to jurors as much as possible. To their credit, they usually don’t want to, so we often hire a jury consultant to contact them and frame their inquiries in terms of research. Less valuable than being able to speak with them face to face, but still valuable. 

Kyle was fortunate indeed to work for a trial judge who cared enough about jurors and young law clerks that he was willing to spend a lot of time listening to and educating them both. What an incredible experience for the jurors and for Kyle.

Thank you Kyle for sharing your experience.

RGK

Voodoo?

Image credit: Charles M. Gandolfo. Licensed per New Orleans Historic Voodoo Museum, Jerry Gandolfo and Creative Commons Attribution-ShareAlike 3.0 Unported license.

Image credit: Charles M. Gandolfo, pursuant to an authorization from the New Orleans Historic Voodoo Museum and Jerry Gandolfo by virtue of  a Creative Commons Attribution-ShareAlike 3.0 Unported license. No changes were made to the image.

 

When I was Chief Judge, I convinced our judges to take and exchange the results of the Myers-Briggs Type Indicator® (MBTI®) personality inventory. I don’t remember where I ended up, but if you think “fascist” you’d be about right. My idea was that if the judges each understood the personality types of the other judges that the Age of Aquarius would be ushered in just like the Fifth Dimension told us it would in 1969. It didn’t work exactly as I had planned. When we were discussing the results, I think that was the first time I heard STFU screamed aloud. Just kidding.

(You will love the visual aspects of this music video. I miss 1969. It was so goofy. You could hum Age of Aquarius while secure in the knowledge that our country had an inexhaustible supply of napalm.)

In any event, Chief Judge Laurie Smith Camp of our court recently persuaded all the judges to take another personality inventory. This time we took the Clifton StrengthsFinder® 2.0 put out by the Gallup Organization. Gallup claims to have distilled psychological theory into personal development practice by interviewing 1.7 million professionals from varying fields. Having quantified the different traits of the people they interviewed, they came up with 34 distinct patterns—what they call “talent themes”—that best describe the range of human uniqueness observed during their research:

  1. Achiever – one with a constant drive for accomplishing tasks
  2. Activator – one who acts to start things in motion
  3. Adaptability – one who is especially adept at accommodating to changes in direction/plan
  4. Analytical – one who requires data and/or proof to make sense of their circumstances
  5. Arranger – one who enjoys orchestrating many tasks and variables to a successful outcome
  6. Belief – one who strives to find some ultimate meaning behind everything they do
  7. Command – one who steps up to positions of leadership without fear of confrontation
  8. Communication – one who uses words to inspire action and education
  9. Competition – one who thrives on comparison and competition to be successful
  10. Connectedness – one who seeks to unite others through commonality
  11. Consistency – one who believes in treating everyone the same to avoid unfair advantage
  12. Context – one who is able to use the past to make better decisions in the present
  13. Deliberative – one who proceeds with caution, seeking to always have a plan and know all of the details
  14. Developer – one who sees the untapped potential in others
  15. Discipline – one who seeks to make sense of the world by imposition of order
  16. Empathy – one who is especially in tune with the emotions of others
  17. Focus – one who requires a clear sense of direction to be successful
  18. Futuristic – one who has a keen sense of using an eye towards the future to drive today’s success
  19. Harmony – one who seeks to avoid conflict and achieve success through consensus
  20. Ideation – one who is adept at seeing underlying concepts that unite disparate ideas
  21. Includer – one who instinctively works to include everyone
  22. Individualization – one who draws upon the uniqueness of individuals to create successful teams
  23. Input – one who is constantly collecting information or objects for future use
  24. Intellection – one who enjoys thinking and thought-provoking conversation often for its own sake, and also can compress complex concepts into simplified models
  25. Learner – one who must constantly be challenged and learning new things to feel successful
  26. Maximizer – one who seeks to take people and projects from great to excellent
  27. Positivity – one who has a knack for bring the light-side to any situation
  28. Relator – one who is most comfortable with fewer, deeper relationships
  29. Responsibility – one who, inexplicably, must follow through on commitments
  30. Restorative – one who thrives on solving difficult problems
  31. Self-Assurance – one who stays true to their beliefs, judgments and is confident of his/her ability
  32. Significance – one who seeks to be seen as significant by others
  33. Strategic – one who is able to see a clear direction through the complexity of a situation
  34. Woo – one who is able to easily persuade

The “test” is taken online and the taker is presented with 177 stimuli and he or she makes 177 responses–each item lists a pair of potential self-descriptors, such as “I like to help people.” See The Clifton StrengthsFinder® 2.0 Technical Report: Development and Validation (February, 2007). The descriptors are placed as if anchoring opposite poles of a continuum. From that pair, the respondent is asked to choose the statement that best describes him or her, and also the extent to which that chosen option is descriptive of him or her. The participant is given 20 seconds to respond to a given item before the system moves on to the next item. Gallup stresses that the “StrengthsFinder” is not designed or validated for use in employee selection or mental health screening (too bad). According to Gallup, feedback is provided to foster intrapersonal development.  As a result, comparisons across profiles of individuals are discouraged by Gallup.

So, how did I do? In order, my “strengths” were (1) input–one who is constantly collecting information or objects for future use; (2) learner–one who must constantly be challenged and learning new things to feel successful; (3) intellection–one who enjoys thinking and thought-provoking conversation often for its own sake, and also can compress complex concepts into simplified models; (4) achiever–one with a constant drive for accomplishing tasks; (5) analytical – one who requires data or proof to make sense of their circumstances.

I have two questions for the bright folks who read this blog:

  • Are personality inventories like the MBTI® and the Clifton StrengthsFinder® more like voodoo than science?
  • If personality inventories such as these have value, what, if any, value do they have for federal judges individually or in the management of their courts?

RGK

 

 

Would (and should) I perform a wedding ceremony for a gay couple in my courtroom?

Yes, I would happily do so. This assumes, of course, that state law authorized me to perform wedding ceremonies and did not prohibit gay couples from marrying. Can anyone put together an argument why I shouldn’t do so?*

RGK

*Incidentally, don’t worry about being labelled a bigot if you take the position I shouldn’t do so. You aren’t a bigot if gay marriage isn’t your cup of tea. Indeed, I can think of several solid reason why I shouldn’t perform such a ceremony.

Photo credit: AP and TPM. In 2013, Justice Ruth Bader Ginsburg made history lwhen she presided over the first gay marriage inside the U.S. Supreme Court.

Photo credit: AP and TPM. In 2013, Justice Ruth Bader Ginsburg made history when she presided over the first gay marriage inside the U.S. Supreme Court.

 

This weekend, in flyover country, the humanity and civility of Supreme Court Justices was on full display–and that is a wonderful thing

Photo credit: NATI HARNIK/The Associated Press

Photo credit: Nati Harnik/The Associated Press. Chief Justice Roberts and Chief Judge Bill Riley of the Eighth Circuit. Chief Judge Riley sits on the Executive Committee of the Judicial Conference of the United States and is highly regarded nationally.  He and I went to law school together and we have long been friends. He is a great guy.

Chief Justice John Roberts spoke at the University of Nebraska College of Law in Lincoln, Nebraska on Friday, and then he attended the barn burner of a game on Saturday night where the Huskers defeated Miami. See here. At roughly the same time, Justice Clarence Thomas spoke in Tyler, Texas, prompting editorial praise: “When U.S. Supreme Court Associate Justice Clarence Thomas spoke at The University of Texas at Tyler, he spoke softly. He spoke without rancor, without partisanship and without demonizing his opponents.”

If you read the news coverage of these events you will see that the Justices each took pains to distinguish the Third Branch from the political branches of government. A reader of that coverage would, unless he or she was a terrible cynic, come to realize that the Supreme Court is radically different from the Executive and Legislative branches of government both in terms of the quality of the decision makers and how they do their work.

The Justices are brilliant and serious people. Despite their substantive differences, they like each other. They are humble despite their accomplishments. They are funny in a wry and self-deprecating manner. They honestly believe that none of them are partisans. They like football and steak just like many of us do. They also don’t mind a beer or two. While they are happy to be liked, they don’t campaign for public acclaim or acceptance. Every decision they make is accompanied by a reasoned analysis, rather than political mumbo jumbo.

When the Justices take time to come to the sticks and speak quietly about their work, they do enormous good for the institution of the Supreme Court. Here’s hoping that they continue to see more tumbleweed in the years to come.

Photo credit: My Way. This foreign blogger who traveled across the United States by car added, "I see my first ever tumbleweed in Nebraska, that's all I have to say about Nebraska."

Photo credit: My Way. This young English blogger who traveled across the United States by car added, “I see my first ever tumbleweed in Nebraska, that’s all I have to say about Nebraska.” If he had cared about American history and the opening of the West, this highway would have taken him to the Homestead National Monument of America. The dismissive English blogger even got the Highway number wrong. He was on Highway 136, not 163.

RGK

 

Pacer will be “fixed”–that’s great assuming there is no “bait and switch”

I am a passionate supporter of PACER and CM/ECF and that’s why I was so upset when the Administrative Office of the United States Courts (AO) cut off access to certain records of certain Courts of Appeal and one large bankruptcy court with a snotty missive and no advance notice as a part of an upgrade to CM/ECF. See here and here. Many others, including especially the Senate Judiciary Committee, were upset too.

As the excellent Wall Street Journal law blog reported on Friday, in an article written by Jacob Gershman, Judge Bates, the Director of the AO, wrote Chairman Patrick J. Leahy of the Senate Judiciary Committee and seemingly caved to the uproar. In the letter, dated September 19, 2014, Bates stated:

I write in response to your letter dated September 12, 2014, regarding electronic access to information maintained by five federal courts. We regret the disruption in electronic access to this information, but I am happy to inform you that we have developed a solution that will restore full electronic access to all the courts of appeals material by the end of October 2014. The restored access will be implemented on a rolling basis in the four affected courts of appeals. We also are developing a solution for the single bankruptcy court that was affected.

This disruption impacted about 600,000 docket sheets of cases that have been closed for more than a decade in the Bankruptcy Court in the Central District of California. It also impacted about 235,000 documents, virtually all of which are docket sheets, in closed cases in four courts of appeals. The courts of appeals cases have all been closed for at least a year. It is important to note that there has been no change in PACER access to the docket sheets and documents in the tens of millions of cases residing in the courts’ Case Management/Electronic Case Files (CM/ECF) system.

A docket sheet is a chronological listing of documents and events in a case. It is not a case filing, record, or opinion. No documents or records were lost or destroyed. Furthermore, all open cases in every court, as well as all new filings, continue to be available on PACER. There is also no impact on the electronic availability of opinions on the courts’ or the Government Printing Office’s FDsys websites. Opinions continue to remain available at no charge. In sum, then, this limited disruption of electronic access in five courts involved docket sheets for some closed cases, not any filings, opinions, or other documents, and not any materials relating to open cases.

The federal judiciary is committed to providing electronic public access to case information in federal courts. Restoring access to the docket sheets is a reaffirmation of this commitment. Regular PACER fees will apply to information requests made through the new access solution, just as they did previously, resulting in no change.

We are moving steadily toward implementation of the NextGen CM/ECF case management system, which will provide more functionality, easier-to-use interfaces, and eventually the ability to log into multiple court systems with a single sign-on function. These are significant enhancements that we expect will be welcomed by lawyers and litigants. Unfortunately, the legacy case management systems in these five courts are incompatible with the new security protocols that accompany these improvements. These legacy systems were developed over 20 years ago and long-term support and maintenance is no longer practical or feasible at this time.

In the interim, before full electronic access is restored in the next few weeks, anyone seeking access to the docket sheets in any of these four courts of appeals can contact the court, which will supply a copy. The one bankruptcy court will do so as well. As stated above, we expect to have all the appellate court docket sheets converted to PDF format and available through PACER by the end of October.

PACER remains the most comprehensive electronic case information system that is publicly available in any court system and we are constantly striving to improve the system and the services it provides. It currently serves 1.8 million registered users and provides responses to more than 500 million on-line queries. While we believe there has been some misunderstanding about the type and scope of information to which electronic access has been disrupted during our transition to NextGen, we also recognize that restoring full electronic access to these docket sheets and ensuring that we communicate with PACER users in a timely and effective manner are important to meeting our users’ expectations and needs.

. . . .

I have two reactions. Tentatively, I say “good for the AO.” However, Bates writes only about making the docket sheets available. If prior to this “fix,” and the implementation of NextGen, one could electronically obtain the docket sheet and, via a hyperlink, any other documents identified in the docket sheet, then this “fix” is not a “full” one. That is, if the fix is limited to docket sheets only, that is not a complete fix if one could have obtained other associated documents from the legacy systems via the earlier iteration of CM/ECF and PACER. I hope that Bates’ letter is not a bureaucratic “bait and switch.”

RGK

PS For the “open access” folks, who complain about PACER fees and such, they continue to gripe. As I have indicated before, their complaints don’t reflect the “real world” exigencies.

Nebraska plays Miami tonight, and “Ray Rice’s Indefinite Suspension Should Be Reversed on Appeal”

Photo credit: Ted Kirk/Lincoln Journal Star. Nebraska's Jeff Smith has a two-point conversion pass from Turner Gill batted away in the fourth quarter against Miami in the 1984 Orange Bowl.

Photo credit: Ted Kirk/Lincoln Journal Star. The Huskers’ failed two-point play in the fourth quarter against Miami in the 1984 Orange Bowl.

Some of you are old enough to remember when Tom Osborne went for two, seeking a win against Miami rather than a tie. Had Dr.Tom simply kicked the extra point, his Huskers would have been national champions that year. But Osborne did  not think or play that way. The Huskers went for two points, a defensive back from Miami swatted the short pass away from the Husker receiver, and Miami won. If sports can teach young people, this was one of the greatest teaching moments of the modern era.

Tonight, the Huskers play Miami again here in Lincoln, under the lights and on national television. Our little town in our little state is all a twitter. And, that, of course, brings me to Ray Rice.

I love football. I love high school football.* I love college football. I love the NFL. I don’t care much about Ray Rice or whether he will win his appeal of his indefinite suspension. But, I do care about good legal writing.

Levi S. Zaslow

Levi S. Zaslow

Levi S. Zaslow is a young lawyer in Maryland. He has written a terrific piece explaining why Ray Rice should win his appeal of the indefinite suspension for beating his wife after he was first punished by the Commissioner of the NFL with a two game suspension. See Levi S. Zaslow, The Legal Appeal of the Ray Rice Appeal: Despite a Broken Process, Ray Rice’s Indefinite Suspension Should Be Reversed on Appeal (September 18, 2014). It is very nice piece of legal writing about due process and the strange world where the NFL and the League’s detractors confront the realities of labor and employment law. Go read it, and, go Huskers!

RGK

*As I have mentioned before, one of the best moments of my life was when Dr. R. Keller Kopf, then 18, ran onto the turf at Memorial Stadium while pictured on the big screen at the beginning of the Class A state football championship. As the “small tight end,” Keller made me proud. I knew how hard he had worked to build his body and mind to a point that would allow him to play in such a game. The perseverance he learned in that endeavor served him well later on, and serves him well even now.

R. Keller Kopf, Institute for Land, Water & Society, Charles Sturt University, New South Wales Australia

R. Keller Kopf, Institute for Land, Water & Society, Charles Sturt University, New South Wales Australia

 

Two implications for older men from the lead paint theory regarding prison sentences and supervised release

 

Design and Image Credit: Stantasyland and Cafepress

Design and Image Credit: Stantasyland and Cafepress

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Reverse trigger warning: I don’t have Ebola

Yesterday, I had my last blood test prior to my PET scan scheduled for next Tuesday. I am done with the chemo infusions until we see the results of the scan next week, on Thursday. My blood counts are low, and that is to be expected. There is a small problem, however,

At the most inconvenient of times, like having lunch with the clerks at the Mexican joint across the street, my nose begins to spurt large quantities of blood. I have been taking Xarelto to thin my blood to make sure the blood clots I developed in Sioux City last year don’t come back.  While the bloody nose problem is not new, it has gotten far worse this last month. And now with an Ebola patient at the University of Nebraska Medical Center, most people are not particularly sanguine (pun) about being around a guy who has a tendency to spray blood all over. Hell, I cleared out the Mexican joint when the law clerks and wait staff went running for large paper napkins to staunch the flow and mop up the mess. That made me feel bad so I had a Margarita.

Anyway, I don’t have Ebola (so far as I know). So, if you appear before me at sentencing or the like, remember the world greatest philosopher, Bobby McFerrin. Don’t worry, be happy.

RGK

 

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