Governor Christie, Ebola and locals acting like yokels

Please briefly review my prior post, Civil liberties, isolation, quarantine, Ebola and other terrifying diseases (among other things, stating that “scary though it may be, the 50 states and the various Indian tribes have the primary authority to deal with outbreaks like Ebola assuming the patient is not at a US port of entry or is not likely to travel between the States or reservations.”)

Pursuant to an order of New Jersey Governor Chris Christie, a young nurse has been physically detained against her will and quarantined merely because she treated Ebola patients in Africa. She is entirely asymptomatic and there is apparently no reason to believe that she failed to follow the proper protocols while engaging in her medical work in Africa. She has twice tested negative for Ebola. She can’t see her lawyer. The CDC believes this quarantine is both unnecessary and unwise. See here for the details of this story and how the tremendously courageous and articulate nurse, Kaci Hickox, skewers Christie’s decision.*

If you care, really care, about civil liberties, Governor Christie’s decision, unsupported as best I can tell by medical and scientific evidence, ought to concern you. I fear that my previously expressed fear about leaving these decisions to our 50 state governments and Indian tribes is coming to fruition. Christie seemingly proves once again that locals often act like yokels.

Maybe it is time to break out the Constitution. As I have said before, the specter of “big brother” with a stethoscope and a sidearm is not solely the province of lunatics.

RGK

*New York Gov. Andrew M. Cuomo (D) has imposed a similar rule and so has Illinois. See here.

The candid lawyer, Robert H. Jackson

The American lawyer, even one who is a partisan, is frequently the only one in the room who is candid. Keep that idea in mind as you read the following piece from the always fascinating Jackson List.

In 1880, Mr. Velona Walter Haughwout of Fall River, Massachusetts, married Helen J. Preston in her hometown, Jamestown, New York. They settled in Fall River but retained ties, through her family, to Jamestown.

Decades later, Mr. Haughwout read Jamestown newspaper stories—some and maybe all sent by his sister-in-law, who continued to reside there—about the activities, including public speeches, of a Jamestown attorney, Robert Houghwout Jackson. [Later to become Justice Jackson.] Perhaps Haughwout and Jackson had met. They definitely were connected by Jackson’s middle name, which was his mother’s maiden name. Haughwout concluded, it seems correctly, that he and Jackson were related descendants of an early Dutch settler in New Netherlands (North America, and later the United States).

In June 1928, Mr. Haughwout wrote his compliments to Jackson:

Robert H. Jackson, Esq.

My dear cousin:

I read with great profit and inflated sense of pleasure your screed upon Russia.

My inflation was due to the astonishment that our family name was sustained by a man of real consequence. I had supposed Haughwoutian oratory to be an extinct art. I salute you sir and am proud to subscribe myself your kinsman.

V.W. Haughwout

That Fall, Haughwout wrote again to Jackson. Haughwout’s sister-in-law had sent him a story on a recent Jackson speech supporting the Democratic Party’s nominee for president, New York Governor Al Smith. “[W]hile I cannot subscribe to your conclusion that Smith should be elevated to the White House,” Haughwout wrote,

I must say that the speech was by far the most satisfying one I have read during this filthy campaign, barring none. It is so superior that I am passing it on to a prominent Boston friend of mine as a specimen of fearless, lucid reasoning. I hope it does not carry him over into the Smith column, but I am for frankness whatever the result. … It would clarify the air if both candidates [Al Smith and Republican nominee Herbert Hoover] were to imitate your candor.

On October 24, 1928, Jackson dictated and sent a letter back to Haughwout. Jackson expressed some agreement about the Smith-Hoover race and then mentioned the candidacy that he found more promising:

I appreciate very much your kind words about my speech but I really think that it only shines by reason of the dismal campaign background which is the worst in my recollection. We have, however, in Franklin D. Roosevelt, a splendid candidate for Governor of New York whom I hope to see elected.

* * *

Robert Jackson met Franklin Roosevelt in 1911 and then had episodic contacts with him over the next seventeen years. Roosevelt was elected Governor of New York in 1928, and thereafter, and even more so after his reelection in 1930, Jackson was in contact with him and involved in state policymaking and politics.

In 1932, the Democratic Party nominated F.D.R. to be its presidential candidate. Jackson became a prominent campaign lawyer and spokesman.

On October 24, 1932, James A. Farley of New York, the Democratic Party’s national chairman, held a press conference at his headquarters, the Biltmore Hotel in Manhattan. Farley announced that he was forming a state-wide lawyers committee to protect Democratic Party interests before the election and at the polls. The committee’s first task, he said, would be to investigate the reported Republican campaign to intimidate workers from voting Democratic. Farley announced that Robert H. Jackson of Jamestown had agreed to chair this committee, and that Jackson would appoint chairmen of district committees to assist him.

Jackson worked quickly. Two days later, he announced that he had appointed Democratic lawyers’ committee representatives in judicial districts and counties across New York State, and that they were investigating dozens of complaints of factory owners and managers attempting to intimidate workers into not voting Democratic.

Late the next week, Jackson reported back to Farley, and publicly, on his investigation of alleged employer intimidation of prospective voters. Jackson and his committee members had found that: (1) only a small proportion of employers had used such methods; (2) the similarity of their methods and “advice” to workers indicated a common origin; (3) such efforts “boomerang,” causing more resentment than intimidation; and (4) federal and state legislation should be enacted to punish “every such attempt.”

* * *

On the following Tuesday, November 8th, Governor Roosevelt defeated President Hoover. In New York State’s race for governor, Lieutenant Governor Herbert Lehman defeated the Republican candidate, attorney William J. Donovan.

Through the following year, Robert Jackson continued to practice law in Jamestown, and to assist the Democratic Party and its candidates.

Mr. Haughwout died in February 1934, two weeks after the U.S. Senate had confirmed his kinsman Jackson’s appointment to his first New Deal office, a senior position in the Treasury Department. In a few more years, his speeches, reports and other writings, and his candor, would come to national and then international attention.

* * *

John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY

The evisceration of Dahlia Lithwick

Scott Greenfield

Scott Greenfield

If you want to read a great piece of critical legal writing, page through Scott Greenfield’s piece Horse-Trading Constitutional Rights. Scott incisively dissects a poorly reasoned article written by the very bright Dahlia Lithwick for Slate entitled The Courts’ Baffling New Math.

Dahlia Lithwick

Dahlia Lithwick

To be clear, I pimp Scott’s piece primarily because it is an example of excellent legal writing. Moreover, but less importantly, I agree with his point. Finally, Lithwick can be a tiresome scold. Taking her down several pegs is a good thing if you care about intellectual rigor and the national legal commentariat.

RGK

On Going to Omaha with a bloody nose

Got up at 4:00 AM this morning. Had another bloody nose and I am still having trouble getting it stopped as I pen this piece. My legs and feet are swollen up again.

I have to leave early to drive the 60 miles between Lincoln and Omaha. I have a judges’ meeting in Omaha that will burn up the morning. After our big meeting, I will also visit with Chief Judge Smith-Camp and Judge Gerrard, my colleague in Lincoln, about getting back into the case assignment wheel on December 1, assuming that bloody noses and leg and feet swelling are not a harbinger of bad things to come when I undergo my late November PET scan.

Photo credit: Thesun.co.uk.  Don't you love the British tabloids?

Photo credit: Thesun.co.uk. Don’t you love the British tabloids?

This afternoon, I will meet with the head drug prosecutor for the district, a senior probation officer and a federal defender to fine tune our handling of sentence reduction matters due to the retroactive amendment to the drug tables. In our little district, we have about 700 of those sentence reduction matters.

I feel foolish as I type this with a long piece of twisted Kleenex sticking out of my left nostril. Just for fun, when I get to Omaha, I think I will tell my colleagues: “Don’t worry, UNMC thinks there’s only a small chance of Ebola.”

I feel better already.

RGK

Counsel table or podium?

courtroomThis may seem insignificant. If so, forgive me. But, I have a question addressed to experienced trial lawyers who try cases to juries.

If you had your druthers, would you sit at counsel table or use a podium to question a witness?

Let me know and tell me why. Young’uns who want to try cases to juries need to know.  So, I hope the old hands fire away and share their views on this seemingly small matter.

RGK

“Tea in the Crimea,” a novel by David Kopf

 “Yesterday, President Vladimir Putin authorized the use of Russian troops in Ukraine in defiance of American and international warnings against Russia intervention in Ukraine. By the end of the day, unmarked Russian forces and pro-Russian Ukrainians took control of large parts of Crimea, igniting an international crisis.” Adam Chandler, Russia Prepares for Occupation After Winning Control of Crimea, The Wire, News from the Atlantic (March 2, 2014).

Image credit:  Maximilian Dörrbecker (Chumwa). Used pursuant to Creative Commons Attribution-Share Alike 2.0 Generic license.

Image credit: Maximilian Dörrbecker (Chumwa). Used pursuant to Creative Commons Attribution-Share Alike 2.0 Generic license.

 

I have written before about my cousin George, the fellow who retired from the State Department and then wrote a book about our grandmother. Today, I am pleased to write about his much, much younger brother, David. Cousin David has been an editor and a journalist during his relatively short adult life. Like his brother George, David is a gifted writer.

David has just completed his first novel entitled Tea in the Crimea. In my hopelessly biased opinion, it is excellent.

He began the novel in March of this year with the Russian invasion. According to David, the novel “tells the story of how everyday people react when 30,000 Russian soldiers pretending not to be 30,000 Russian soldiers invade their country.”  Like his father, David has a wry sense of humor. Tea in the Crimea is the “unfolding story of everyone’s favorite Black Sea peninsula.”

Interestingly, the book is published by David using the internet and in a serial form. You can access the piece and the hyperlinked table of contents here. The novel is entirely free. In an e-mail, David explained, “My whole editorial career — 22 years so far — I stuck to the old Samuel Johnson line about writing for money*, but I decided to take a chance on myself. I thought, ‘If not now, when? Get writing on spec, big dummy.’ . . . It feels great.”

FullSizeRender

Congratulations David!

RGK

*“No man but a blockhead ever wrote, except for money.” The Samuel Johnson Sound Bite Page, No. 203.

PS I am far older than David. Until the death of his father, my Uncle George (revered by me despite time and distance), I had not seen David since he was a small boy. The California funeral gave me the opportunity to reconnect with David and also to meet his beautiful family.

The huge Social Security scandal

I have written before on the troubled situation with Social Security appeals. Richard G. Kopf, The trouble with Social Security disability appeals, Hercules and the umpire (May 10, 2013). As an introduction to this post, I urge the reader to take another look at that earlier post.

Now, the Washington Post has done the research and has produced a terrific in-depth article detailing that the Social Security Appeal process has a backlog of 990,399 cases. David A. Fahrenthold, The biggest backlog in the federal government, Washington Post (October 18, 2014). The situation is outrageous. It is a scandal of monumental proportions. Something must be done, and now, to relieve the many dedicated Administrative Law Judges, and other similarly dedicated SSA employees, who confront this mountain of work every day under impossible conditions. Claimants who are not entitled to benefits receive them because the ALJs don’t have time to do it right. Claimants who are entitled to benefits wait in the wings despite the fact that many of them are the most vulnerable among us.

To fix the problem will take a lot of money and the will of Congress to get it right. Until then, the Social Security appeal process will continue to operate, if that’s what you call it, like a Bangladeshi bureaucracy instead of an American legal system worthy of respect. The President and Congress should be embarrassed. Said to say, that’s not news.

RGK

 

Marc Bookman and “The pot calling the kettle black”

Marc Bookman was the moving force behind the ethics complaint against Judge Jones. A friend of this blog and a civil litigator, who has no interest in the Jones dispute, brought to my attention that the United States Supreme Court has recently referred to disciplinary authorities alleged misconduct of Mr. Bookman in a death penalty case.

The venerable Lyle Denniston wrote about Mr. Bookman’s problem in August of this year. See Lyle Denniston, Court hands off feud about murder appeal (August 11th, 2014) (discussing allegation that defendant facing the death penalty did not authorize Bookman to file petition with the Supreme Court and the order the Court entered dismissing the petition but referring the claim against Mr. Bookman to state disciplinary authorities).

I stress that I have no idea whether Mr. Bookman did anything wrong. But, adages abound, among them: “What goes around comes around.”

RGK

On being “uncomfortable” and “offended”–the ethics complaint against Judge Jones and the student affiants

That students have devolved from budd[ing] scholars and statesmen to butthurt babies is, sadly, a trend that’s been happening for quite a while now, as higher ed has facilitated, if not encouraged, them to elevate their feelings above all else. But why is there no grown up in the room?

Scott H. Greenfield, Sensitive Sally Smacks Special Snowflake Student Silly, Simple Justice (May 24, 2014).

I return to the ethics complaint against Judge Jones that I discussed yesterday. Specifically, I write about two affidavits submitted by two students, one of whom was pursuing an advanced degree in criminology (and perhaps a law degree) and the other a law degree. I concentrate on the issue of race, and whether Judge Jones’ statements reflected racial bias such that students were justified in being “uncomfortable” or “offended.”

Background

Here is how the “Appeal” describes two student affidavits:

The affidavits from attendees are categorical that Judge Jones’ comments diminished confidence in and respect for the judiciary’s integrity and impartiality:

As an African American male, and as someone who is interested in the areas where race and law intersect, I was made uncomfortable by her comments on race and found them offensive.
Exhibit B, #35.

From speaking with others after the lecture and observing the reactions of others during her remarks, she upset and offended many of the attendees in the room tremendously.
Exhibit C, #14.

. . . .

Id. at p.18. (For all of of the sworn statements, click here: affidavits.)

It is important to stress that the student affidavits are odd in one critical aspect. Instead of reciting what they heard, they frequently adopt by reference what another person heard, that is, the recollections of Marc Bookman, the Director of the Atlantic Center for Capital Representation. As regards Judge Jones’ comments on race, Bookman’s affidavit makes clear that Judge Jones did not mean to imply that Blacks or Hispanics were inherently more murderous. Specifically, Bookman stated that Judge Jones said “she did not mean that certain races were ‘prone’ to such violent behavior – just that, ‘sadly,’ they happened to engage in it more often. She noted there was no arguing that ‘Blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly” people from these racial groups do get involved in more violent crime.” Bookman Aff. ¶ 28.

Here is what the Special Committee concluded regarding race and Judge Jones statements:

 It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are “disproportionately” involved in certain crimes and
“disproportionately” present in federal prisons. Needless to say, this topic can be extremely sensitive, and we do not doubt the affiants’ and witnesses’ repeated statements that they found the remarks offensive. Judge Jones herself recounted that she “was uncomfortable about alluding to such facts.” Jones Recollections 20-21. We recognize that, without an explanation or qualification, saying that certain groups are “more involved in” or “commit more of” certain crimes can sound like saying those groups are “prone to commit” such crimes. But we must consider Judge Jones’ comments in the context of her express clarification during the question-and-answer period that she did not mean that certain groups are “prone” to criminal behavior. In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial. Rather, they resemble other, albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system.

The evidence also shows that Judge Jones used the term “red herring” to signify her view that a challenge to the death penalty on the ground that it is administered in a racially discriminatory manner is nonviable. When we consider this in the context of a discussion of McCleskey v. Kemp, 481 U.S. at 292, we again cannot find that such a view indicates improper bias or misconduct.

Report of the Special Committee, at pages 27 and 28 (footnote omitted).

In a footnote to the foregoing conclusion, the Special Committee wrote:

See, e.g., Eric Holder, U.S. Attorney General, Remarks at the 11 Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013) (“[I]t’s time to ask tough questions about how we can . . . address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.”); Marc Mauer & David Cole, Five Myths About Americans in Prison, WASH. POST (June 17, 2011) (“Yes, African Americans and Latinos disproportionately commit certain crimes. But in a 1996 study of crime rates in Columbus, Ohio, criminologists from Ohio State University concluded that socioeconomic disadvantages ‘explain the overwhelming portion of the difference in crime.’”); Charles Ogletree, The Burdens and Benefits of Race in America, 25 HASTINGS CONST. L.Q. 217, 228 (1998) (“African-Americans are grossly over-represented in the criminal justice system. In part, this is due to the fact that, per capita, black people do commit more crimes than whites. However this fact alone does not account for the disparities in the crime statistics. In fact, since the 1970s, rates of black crime have been stable, even though the rates of prosecution have increased exponentially.”); id. at 228 n.48 (“A number of studies have documented the unusually high arrest rates for blacks suspected of crime compared to other groups.”); id. at 236-37 (“The problem is that the decision-making process at every stage . . . is discriminatory and thus subject to bias (racial or otherwise) in its applications.”); see also U.S. SENTENCING COMM’N, 2012 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, tbl.4, available at http://www.ussc.gov/sites/ default/files/pdf/research-and- publications/annual-reports-and-sourcebooks/2012/Table04.pdf (providing statistics on race of offenders in each primary offense category).

Id. at n. 11.

My concerns about the student affidavits

The practice of law is a tough business. It is particularly tough business when the death penalty is involved. As law students who are about to become lawyers, one would hope that they develop very tough skins. They will not be able to survive in the real world if they don’t. More importantly, they will do their clients a huge disservice if they hold themselves out as advocates while at the same time being oversensitive about their personal views. Frankly, that law students are made to feel “uncomfortable” or “offended” while they study to become legal professionals is a good thing. As I have said in another context (that subjected me to howls of criticism), they ought to “get over it.” Law students must learn that taking on the representation of a real live human being means that the task is never about them. We don’t need “butthurt babies.” We need tough-minded lawyers.

RGK

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