On the utility of making Supreme Court Justices uncomfortable

The extraordinarily talented Tony Mauro has a piece well worth reading entitled, Sotomayor Sees Return to Trial Courts After Retirement, Supreme Court Brief (November 17, 2014) (h/t How Appealing).  In the article, Mr. Mauro quotes the fascinating Justice Sonia Sotomayor:

“Out of my mouth came, ‘When and if I retire, I’m going to go back to the district court,” Sotomayor said, recalling her six years in the 1990s as a judge on the U.S. District Court for the Southern District of New York. “Why would I want to go do what I’ve been doing for however many years it’s been on the appellate court and the Supreme Court?”

She continued, “I want to go back to my first love. And the district court is a very different and exciting place. At least for me, it was the formative experience for preparing me for the [Supreme] court.” (Her remarks are at the 1:13 mark of the conversation, available on YouTube.)

Good for the Justice. I hope she means it.

But, let’s go the Justice one better. Instead of going off to Salzburg or wherever over the summers to teach (and engage in all manner of other pleasant things), why don’t the Justices resolve to try cases to juries in the United States District Courts. And I mean every Justice, even the ones who think they are too smart to set forth in a trial courtroom.

Go to the sticks or some place where the Justice doesn’t know the local legal culture and take a case to a jury trial–a place and a case that would make the esteemed feel uncomfortable and require him or her to rub shoulders with real trial lawyers. Try a criminal case with several defendants involving a drug conspiracy and a bunch of statements raising Federal Rule of Evidence 801(d)(2)(E) problems, or a patent case involving a magic new manure spreader and requiring jury instructions that don’t read like Supreme Court opinions, or a contract case for the production of complex software where no one has yet to figure out what the judge is supposed to do during trial regarding the terms of the contract as contrasted with what the jury is supposed to do with those same terms during deliberations. Draft a verdict form, prepare jury instructions, make rulings on evidence, do a jury orientation, hold bench conferences, decide whether you want a court reporter or digital audio, determine whether to allow recross, decide if lawyers may move freely about the courtroom without your permission, conduct a voir dire and rule on whether the lawyers get to ask questions too, and so forth. Oh, and over the noon hour, conduct two or three sentencing hearings in criminal cases.

Such a practice–trying real cases to real juries with real lawyers in real places–would expand exponentially the horizons of all the Justice (even Sotomayor who spent only six years as trial judge–a mere blink of time for most of us). It would also give the hard-working and long-suffering judges of the Courts of Appeal an opportunity to reverse a Supreme Court Justice for making perfectly idiotic rookie mistakes–and that would be very good for the souls of the rest of us and the Justices too.




Lincoln, MRAP and Peter Pan–It’s a jungle out there

As I have said before, I see connections that most people don’t see. That is particularly true when the Haldol begins to wear off.

Lincoln is a college town. If you care about such things, I have just insulted you. Lincoln is a University town, and a Big Ten one at that. And that brings me to the ACLU of Nebraska, Lincoln, Peter Pan and the jungle out there.

Headed up by Amy Miller, a lawyer that I like more than most, the ACLU of Nebraska is concerned about MRAPs. In today’s paper (The Lincoln Journal Star, frequently referred to as the Lincoln Urinal) is an article about our town’s MRAP and the danger Amy and ACLU Nebraska think that it poses to flower loving people everywhere.

If you don’t know about MRAPs, here’s a photo of Lincoln’s pride and joy:


Photo credit: JournalStar.com

Photo credit: JournalStar.com

In my opinion, Amy and the ACLU of Nebraska seriously underestimate the need for Lincoln to have its very own MRAP. After all, another article in the paper today carried this terrifying headline, Police scramble to Peter Pan Park.

I could be wrong now. But I don’t think so.

It’s a jungle out there.




Kopf to ABA Blog Contest: “Please accept my resignation. I don’t care to belong to any club that will have me as a member”

Last year, I noted that the ABA blog contest was silly and what I really wanted as a prize was the much coveted “Order of the Lenin” rather than a cheesy sticker I could add to the site.

Despite my derision, the ABA sent me the following e-mail that I received four days ago:

Dear Blawgger,

Congratulations are in order.

Your blawg has earned a spot in the ABA Journal’s Blawg 100, our 8th annual list of the best in blogs about lawyers and the law.

The full list appears in the December issue of the magazine, which was posted online today.

As we have in the past, we’re inviting our readers to select their favorites from each of the 13 categories represented in our Blawg 100.

Voting begins today and ends at close of business Dec. 19. Winners will be announced in January.

We invite you to:

• Urge your readers to vote for your blog here.

• Add a Blawg 100 badge to your site. You can find them here.

• Announce your selection with a press release. You can find a sample release here.

• Subscribe here to a list of fellow Blawg 100 bloggers on Twitter. (If you can’t find your handle on the list, please contact us.)

So thanks for your hard work this year. We appreciate the high quality of news and analysis your blog provides to our legal community.

That really, really pissed me off.

I have done everything I can to be excluded from such idiocy. I have insulted female trial lawyers because I am a dirty old man. I expressed my view that Congress should go to hell. I told the Supreme Court to STFU. I engaged in a myriad of snarky exchanges with oh-so-brilliant law professors. I expressed my virulent anti-Catholic bias. Of course, I’m clearly a racist too! (In fact, I am so tempted to scream “Burn this bitch down” that I can hardly stand it.)

What the hell more can I do to get thrown off this list of bull shit?

So this year, I have come up with a solution. Vote for the other guy. I mean it.

BasicIllustratorFileLetter—CSUnder the asinine category of “News/Courts,” here are the bloggers who deserve your vote: Jost on Justice, CourtArtist, Third Branch News, Law Blog, Gavel to Gavel, Trial Insider, Popehat, and Constitution Daily.

Some of you may think that this post is a not so sly effort in reverse psychology to gin up votes for Hercules and the umpire. For you assholes, please remember what H.L. Mencken said, “All men are frauds. The only difference between them is that some admit it. I myself deny it.”



Thanksgiving at Nuremberg

Some of us, perhaps most of us, have much to give thanks for this November 27, 2014. It is very much worth remembering as we enjoy our good fortune that nearly 70 years ago Justice Robert Jackson celebrated Thanksgiving in an unusual manner while in the midst of the Nazi war crimes trials.

Indeed, I assert that Jackson’s Thanksgiving in 1945 ranks second only to that first one celebrated by the Pilgrims. It commemorated and gave thanks for the triumph of law over the greatest evil that civilization has ever known.

With deep appreciation and great thanks to John Q. Barrett, Professor of Law, St. John’s University, and Elizabeth S. Lenna, Fellow, Robert H. Jackson Center, I invite you to read next about Justice Jackson’s Thanksgiving all those many years ago.

For the Jackson List:

In the autumn of 1945, Thursday, November 22, marked the first day of trial evidence at Nuremberg.

In that city, located in the United States military occupation sector of the defeated, surrendered former Germany, the international trial of accused Nazi war criminals had commenced two days earlier in Courtroom 600 in the Palace of Justice.

On November 20, the trial opened with Allied prosecutors reading the indictment against twenty-two individual defendants and six defendant Nazi organizations.  Prosecutors from the U.S., the United Kingdom, the Soviet Union and the French Republic took turns reading the lengthy document to the International Military Tribunal and the 20 of 22 individual defendants who were present in court.  The process was serious and, as it filled the full day, soporific—reporters and spectators who had obtained courtroom tickets with difficulty began to leave early.

On the next morning, Wednesday, November 21, each defendant stood in turn and entered a plea of not guilty.

The president of the Tribunal then called on Justice Robert H. Jackson, the United States Chief of Counsel, to deliver his opening statement.

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility,” Jackson began.  “The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.”

Photo credit: Ray D'Addario and the Robert H. Jackson Center. (Justice Jackson at podium.)

Photo credit: Ray D’Addario and the Robert H. Jackson Center. (Justice Jackson at podium.)

Justice Jackson’s third sentence summarized the entire Nuremberg undertaking:  “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”

Jackson’s speech lasted more than four hours, filling the rest of that trial day.  The packed courtroom, including the defendants, recognized immediately that the speech was a masterpiece of composition, delivery and vision.  (For video excerpts, click here.)

When trial commenced the next morning, Thursday, November 22, the IMT first ruled on pending defense motions.  Defendant Julius Streicher was, the Tribunal announced, sane and fit to appear to present a defense.  Defendant Martin Bormann would be tried in absentia pursuant to the London Charter of August 8, 1945.

The Tribunal then called on the United States to begin presenting evidence on Count One, which charged defendants with engaging in a common plan and conspiracy to wage aggressive war.

Jackson’s Executive Trial Counsel, Colonel Robert G. Storey, explained that most of the evidence to come would be German documents captured by the U.S. and British armies.

Associate Trial Counsel Ralph G. Albrecht then explained the Nazi Party and government structures and offered organizational charts as evidence.

Major Frank B. Wallis, Assistant Trial Counsel, then began to offer evidence on the Nazi rise to power in Germany and pre-1939 planning for aggressive war.

*          *          *

Those trial proceedings did not conclude the courtroom activity in Nuremberg on Thursday, November 22, 1945.

In the United States, it was Thanksgiving Day.  In Nuremberg, the Allies had not taken the day off to observe the American holiday.  But they did, in that first November of peace following years of world war, gave thanks together and quite solemnly.

At Justice Jackson’s invitation, hundreds of military and civilian Allied personnel gathered in Courtroom 600 at 5:15 p.m.

Jackson spoke briefly, explaining the American history and tradition of Thanksgiving to his British, Russian and French colleagues.

Jackson then called on a member of his staff, Captain Edmund A. Walsh (U.S. Army).  In civilian life, he was Father Walsh, a Jesuit priest, the vice president of Georgetown University, the rector of its School of Foreign Service, and long a Jackson friend.  For all present, Father Walsh offered an opening prayer.

Lieutenant Commander Harold Leventhal (U.S. Coast Guard Reserve), a prosecutor on Jackson’s U.S. staff (and twenty years later a Judge of the U.S. Court of Appeals for the D.C. Circuit), then read from the Psalms.

Lieutenant Henry F. Gerecke (U.S. Army Chaplain Corps) gave the closing benediction.  Pastor Gerecke was the newly-appointed chief Protestant chaplain at the Nuremberg prison, assigned to minister to the defendants and other prisoners there.  (For Gerecke’s story, see Tim Townsend’s 2014 book Mission at Nuremberg:  An American Army Chaplain and the Trial of the Nazis—click here.)

Throughout this service, most of those present, including the senior Soviet prosecutors and the not-particularly-religious Justice Jackson, folded their hands and bowed their heads.

*          *          *

[O]n every Thanksgiving, I wish for all of us—religious and not, American and not—that Nuremberg spirit of gratitude, peace, human alliance and the pursuit of justice.

And thank you for your interest and friendship.





Protests hit Lincoln federal building

Lincoln is a college town. That sorta tells it all. We had protestors at the Federal Building yesterday over the mess in Ferguson.

Credit: Takeaway pursuant to Creative Commons Attribution-Share Alike 3.0 Unported license.

Credit: Takeaway pursuant to Creative Commons Attribution-Share Alike 3.0 Unported license. No change was made to the image.

I’m not sure, but I think the Lincoln protestors were chanting, “No Justice, No Lattes.”

That scared me.

But I won’t be intimidated. They will have to wrench my Birkenstocks from my cold, dead feet.


Credit: Kris per Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.  No changes have been made to the image

Credit: Kris per Creative Commons Attribution 2.0 Generic (CC BY 2.0) license. No changes have been made to the image

Please help me! How should PACER be funded?

For those of you, like me, who are huge supporters of PACER, the sister system CM/ECF, and the issue of transparency more generally, please read Brian Browdie’s great article entitled Why Pacer should (and should not) be like Edgar, Quartz (November 24, 2014).*  Transparency advocates want PACER access to be free. But there is a problem (nothing is “free”), and I want your help in addressing that problem.

First, you need to know the basics. Here they are:

* “Pacer holds records for roughly 43 million cases, according to the Administrative Office of the US Courts, which manages the database.”

* “In practice, Pacer’s fee structure means that three-quarters of people who use the database pay nothing.”

* “Pacer has about 1.6 million user accounts, but most of the 500 million requests the database receives annually come from law firms; commercial publishers such as Reed Elsevier, Bloomberg and Thomson Reuters; and the Department of Justice (DoJ). These and other power users accounted for about 70% of Pacer’s $146 million in revenue in the fiscal year that ended on Sept. 30, 2013, according to the Administrative Office.”

*  “As the chart[s] below shows, [the revenue is] used to cover outlays for the filing system, CM/ECF ($32.1 million); video monitors, audio and other electronica that courts need to stage trials in the 21st century ($31.5 million); and the telecommunications, broadband internet and security systems that allow access to 197 databases around the country but keep hackers at bay ($27.5 million).”





Second, what I would like to know from you is this: Assuming public access to these records is a public good that should come as close as possible to being “free” to the general public and perhaps academics, how would you propose that PACER be funded (a) assuming the federal judiciary must maintain roughly the same revenue stream from PACER that it receives now and (b) assuming that Congress will not fund PACER (or the judiciary’s related revenue stream) from appropriated funds?


Trust me–don’t quibble with the “a” and “b” assumptions built into the question. They are real life constraints.

I look forward to your answers while simultaneously wishing you a happy Thanksgiving.


*H/t How Appealing.

Two questions for Jeff Gamso, Scott Greenfield and others with like experience

I have a lot of respect for Jeff Gamso and Scott Greenfield. I also have two questions for them. Others with like experience should chime in as well. But before I ask those questions, I urge you to read Close Your Eyes and Pretend Really Hard from Jeff and The Ferguson Lie from Scott.

I have absolutely no experience with grand juries except to the extent that I have picked several of them as the Chief Judge, I have compelled testimony before grand juries and extended immunity in doing so, and I regularly took grand jury returns when I was a magistrate judge. But, I have never represented a client before a grand jury, and I have never been a prosecutor who has presented evidence before a grand jury. I know next to nothing about the standards prosecutors typically employ at the federal level when deciding to seek an indictment before a grand jury.

With the foregoing by way of introduction, I ask Jeff and Scott and others with similar experiences the following two questions:

1.  Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

2.  If you were a “straight up” federal prosecutor, would you seek a federal indictment of Mr. Wilson?

Jeff and Scott and others experienced in this area have absolutely no obligation to answer my questions. But inquiring minds want to know.


A must read about Judge Posner

With a tip of the hat to the incredible resource that is Howard Bashman and How Appealing, you must read: “The Maverick — A Biographical Sketch of Judge Richard Posner: Part I.” authored by Ronald K.L. Collins at “Concurring Opinions.” It is a wonderfully written and insightful piece that contributes greatly to our understanding of Judge Posner.

The failure to put Posner on the Court is a modern-day tragedy of immense proportions. It is infuriating that no President–Republican or Democrat–had the guts to nominate Posner because they feared that he was just too damn smart and too damn candid and too damn unpredictable and too damn intellectually honest.



This week I will sentence several people to prison. As I prepare, I can’t get Norman Rockwell’s drawing “Freedom from Want” out of my head.

Image credit: "Freedom from Want" by Norman Rockwell From March 3, 1942, © COPYRIGHT 2014 SATURDAY EVENING POST SOCIETY.

Image credit: “Freedom from Want” by Norman Rockwell From March 3, 1942, © COPYRIGHT 2014 SATURDAY EVENING POST SOCIETY.

I wonder whether the people I will send to prison this week share the same image of Thanksgiving as I do. In some ways, I hope they do. Yet, it would make it easier for me if they viewed Thanksgiving as just another day. It helps to dehumanize those who you sentence to prison, but I just can’t seem to achieve that state of perfect nirvana. Poor me.


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