Sister Megan Rice is free–she is as sassy (and goofy) as ever and boy does she know how to play the media

Sister Rice is out, and traveling around in a Volvo with an adoring New York Times reporter and a slavish New York filmmaker. See here for the New York Times article* today about the nutty nun.

I give the Sister this: She is one tough, old bat who knows how to play the media.


H/t How Appealing.

*Weirdly, the article was placed in the “Science” section of the paper.

What great 20th century American historical figure was a “practical, decently profane, and a most impressive leader?”

You will find the answer to this question, and much more, in this recent and utterly compelling piece from the Jackson List:

In late May 1945, Justice Robert H. Jackson and his fellow justices were nearing the conclusion of their Supreme Court term. They had finished hearing oral arguments in new cases and were writing, editing and handing down opinions. On Monday, May 21st, for example, Jackson announced three opinions for the Court—“the last of [his] crop,” as he described it, of Court opinions for the term.

Justice Jackson at that time also was four weeks into his assignment, from President Truman, to serve as United States chief of counsel in the international trial of now-surrendered Nazis whom the Allies regarded as war criminals. He continued to do Supreme Court work as he needed to, but since late April his “Nazi prosecutor” job was his priority and filled most of his time.

On Thursday, May 22nd, Jackson left Washington to make a preliminary survey of the situation in Europe. He took off from Washington that afternoon and, after airplane refueling stops in Newfoundland and the Azores, he arrived in Paris just after 1:00 a.m. local time on May 24th.

General Edward C. Betts, United States Army Judge Advocate of the European theatre, met Justice Jackson at the Paris airfield. He decided, after conferring quickly in the officers’ lounge there with Gen. Betts and other senior U.S. officials, to stay for a day or two in Paris, working on the Paris-based needs of the case before travelling to consultations in London. The Army then drove Jackson to the Ritz, where he stayed in “a suite big enough and grand enough for a royal family” and got five or six hours of sleep.

Jackson’s May 24th day was filled with high level consultations. He first met with Gen. Betts at his office. His secretary, a British “Wren” (a Women’s Royal Naval Service officer), became Jackson’s, helping him make appointments. A senior aide to General Lucius Clay, the Director of the Military Government of Germany, came from its Versailles headquarters to meet Jackson. They went the airport and met Jackson’s deputy, General William J. Donovan of the Office of Strategic Services. (At the airport, Jackson also ran into and spoke briefly with his Washington friends and colleagues Harry Hopkins, Averell Harriman and Robert Lovett.) Jackson then had a lunch meeting with Donovan and OSS staff back at the Ritz. During the afternoon, Jackson had more meetings with Betts and others at his office. At 4:00 p.m., Jackson met with Jefferson Caffrey, the U.S. Ambassador to France. At 5:00, Jackson drove out to Versailles and had a long meeting with Gen. Clay. At 7:30, Jackson returned to Paris and was introduced to U.S. Army Major Lawrence A. Coleman, a young lawyer who had been assigned to serve as Jackson’s military aide; they reviewed local messages and Washington cables for Jackson.

Following dinner at the Ritz, Jackson took a long walk with Col. John Harlan Amen of his staff. Paris was moonlit but otherwise poorly lighted. They saw few people out. Burned tanks and vehicles lined roadsides. Barbed wire and former Nazi pillboxes were everywhere. Luxury shops appeared well-stocked. Stores for ordinary customers seemed to have no stock.

On Friday morning, May 25th—seventy years ago yesterday—Jackson returned to Gen. Betts’s office. He reported that the Supreme Allied Commander, General Dwight D. Eisenhower, was in Paris. Jackson telephoned and Eisenhower invited him and Betts to meet with Eisenhower at his room at the Hotel Raphael.

Although Jackson and Eisenhower had each lived at various times in Washington, D.C.’s Wardman Park apartment building, they had never met. At the Raphael, Eisenhower greeted Jackson cordially. Eisenhower explained that he was there to get a day’s rest.

They discussed Jackson’s presidential assignment to prosecute war criminals. Eisenhower said he did not support shooting anybody without a trial and hoped that trials would not take long. Jackson explained his preliminary plan to prosecute the Gestapo as a criminal organization, and then to prosecute Gestapo members for the crime of belonging to that organization. Eisenhower stated his support—he said he had seen so much that in his eyes “any bastard who belonged to that outfit is guilty”.

Jackson asked Eisenhower where the principal Nazi prisoners—the prospective defendants—were being held. Betts injected that he was asking the War Department for authority to keep them in jail rather than in prisoner of war camps. Eisenhower said not to bother Washington—simply put the suspected criminals in jail on his responsibility.

Eisenhower stated his full authorization for any war criminal trials, pledging the Army’s full cooperation. He told Betts to get more men if they were needed.

Jackson, in a later diary note, wrote his initial impression of Eisenhower: “He is practical, decently profane, and a most impressive leader.”

As always, thanks to Professor John Q. Barrett. Barrett brings legal history alive!


Thousands pack the church or line the streets or watch a video feed to a large auditorium for the funeral of slain Omaha Police Officer Kerrie Orozco–Westboro Baptist Church members attempted to protest but their view was blocked by others and they left

These articles from the Omaha paper are very much worth reading, that is, here and here. Like yesterday, the photo spread prepared by the Omaha World Herald is unbelievably beautiful but deeply sad. Here.

Our court had a live video feed pumped into the jury assembly rooms in both Omaha and Lincoln. This allowed judges and staff to watch the funeral from within the stunning church, on the Creighton University campus, in real-time.


The other side of my “conflicted” feelings about the death penalty



Scott Greenfield and Jeff Gamso have fair but critical posts about about my earlier piece today regarding the death of Michael Ryan, a sadist and convicted killer. My earlier post was intended to illustrate one side of my conflicting views about the death penalty. Briefly, I offer an illustration of the other side of my conflicted feelings about the death penalty.

When I was a Magistrate Judge (and shortly before the White House began consideration of yours truly for nomination as a district judge), I recommended that the writ be granted in a death penalty case. The district judge adopted my recommendation, and the issuance of the writ was affirmed on appeal.  Rust v. Hopkins, 984 F. 2d 1486 (8th Cir. 1993).

I had concluded that the Nebraska Supreme Court created a reasonable doubt requirement for sentencing after the three-judge sentencing panel made its findings on aggravating circumstances using a lesser standard of proof, and even if the Nebraska Supreme Court could have remedied the invalidity of the sentencing panel’s determination by “resentencing” the defendant under the proper standard, the defendant would be deprived of his due process right to either a two-tier sentencing procedure or notice that the Supreme Court intended to “resentence” Rust on appeal. In a related vein, I was appalled at one of the factual findings by the Nebraska Supreme as the court grievously misstated the record as to whether Rust pumped bullets into the victim while the victim lay on the ground. (None of the members of the Nebraska Supreme Court that handled Rust are on the Court today.)

Mr. Rust came very close to being put to death, and that was so because of a screwy and blatantly unfair ruling by a state appellate court made worse by an important misstatement of the record. The Rust case is an illustration of the other side of my “conflicted” feelings regarding the death penalty.



Cheerfully speaking ill of the dead

michael-ryanIn a post entitled An irrelevant and selfish concern for the quality of my sleep, I noted that I was conflicted over the death penalty. Today, I illustrate one side of that conflict.

Last Sunday, Michael Ryan died on death row in a Nebraska prison. He was 66. He had been there 30 years. According to the Omaha paper, he was suffering from terminal brain cancer.*

Ryan was a white supremacist. He and his group of followers had loose ties to the Posse Comitatus and links to the Christian Identity movement. His teachings included the supremacy of the white race, the inherent evil of Jews, and a distrust of all established earthly authority, including governments. 

For me, Ryan’s death is a pleasant surprise. I know that sounds bad, but it is manifestly the truth.

Consider what I wrote when denying his habeas corpus petition:

This is a death penalty habeas corpus case. It involves the most horrendous torture and sickening murder imaginable. There is not the slightest doubt about the petitioner’s guilt. If any man deserves to be put to death, that man is Michael Ryan.

Michael Ryan (Ryan or the petitioner) was sentenced to death for torturing and then killing James Thimm. Ostensibly in the name of his God, and over a period of two days, Ryan and others at his direction tied and chained Thimm in a hog confinement shed; on several occasions sodomized Thimm with a shovel handle or a pick handle to the point that the man’s guts ruptured; whipped and beat Thimm; shot off some of the victim’s finger tips; partially skinned Thimm alive; and caused the man’s bones to be broken, once using a piece of lumber and a block of wood to complete the fracture of a leg with one blow. After that, Ryan stomped Thimm to death. Although a five-year-old child, Luke Stice, was also killed a month or so earlier as the events culminating in Thimm’s death boiled up, Ryan did not receive the death penalty for that crime [but was sentenced to life in prison].

Ryan v. Clarke, 281 F. Supp.2d 1008 (D. Neb. 2003).

I don’t believe in Heaven or Hell. It is enough for me that Ryan is dead and gone.


*Clarification: Ryan was not executed. He died probably as a result of his cancer. An autopsy will be conducted. The precise cause of death will be known publicly when that procedure has been completed.

Memorial Day, Mr. Justice Holmes and Professor Ronald K.L. Collins

Today is Memorial Day, 2015. I write about Mr. Justice Holmes, and Professor Ronald K.L. Collins‘ classic, The Fundamental Holmes, A Free Speech Chronicle and Reader, Cambridge University Press (first published 2010).

Regular readers of this blog know that I regard Professor Collins very highly. He is a first-rate scholar and a beautiful writer. His recent interviews with Judge Posner and resulting analysis are among the best contemporary original scholarship I have read. See, for example, here. Like Posner, who wrote  The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr.(Paperback – January 1, 1997), Collins is fascinated with Mr. Justice Holmes.

In Collins’ The Fundamental Holmes, the professor traces Holmes’s view on free speech over the seventy-year span of the great man’s life. Each chapter includes Collins’ incisive commentary followed by cases and other writings that illustrate the Justice’s views on free speech. Just a moment ago, I described the book as a classic. That is not hyperbole.

In this post, I do not intend to review Collins’ book. Others far more capable than I am have done that and I have no desire to gild what is plainly a golden lily. What I do intend to do in this post is to use Collins’ book, and Holmes himself, to write about Memorial Day.


Daguerreotype portrait of Oliver Wendell Holmes, Jr., by Oliver Wendell Holmes Sr. Image courtesy of the Harvard University Library.

Daguerreotype portrait of Oliver Wendell Holmes, Jr., by Oliver Wendell Holmes Sr. Image courtesy of the Harvard University Library.

The defining event in the life of Oliver Wendell Holmes Jr., was the Civil War. After graduation from Harvard, he became a first lieutenant. He was wounded at the battle of Ball’s Bluff in Virginia. He was shot through the neck at Antietam Creek, Maryland. He was shot in the heel at Fredericksburg, Virginia.

While some scholars have described Holmes as a nihilist who loved war and a man without morals, and it is true that Holmes was an agnostic and a skeptic who wrote about war in glowing but realistic terms, Holmes was not a war lover. Collins writes:

In a world bereft of certainty, bloated by comfort, and intoxicated by greed, he hoped to revive the great Phoenix of the soldiers faith. And that faith was inextricably tied to duty, which in turn was linked to the value of struggle as a core principle of life. In the broad sweep of it, the fog of Holmes impassioned rhetoric dimmed a glaring truth–it was the fight, more than what is fought for, that was to be valued.

The Fundamental Holmes, at p. 35.

I agree with Collins. While Holmes thought the assumption of eternal truth is both arrogant and ignorant (a point of view that I endorse), Holmes did believe in something. Life itself was an end unto itself. The performance of one’s duty to the fullest extent is the hallmark of a life well-lived.

Holmes delivered a Memorial Day address on May 30, 1884, at Keene, New Hampshire. Collins has reconstructed the speech from various sources.  I quote two passages from that speech as illustrations.

On the death of his friend, the subtext being the fulfilment of one’s duty, Holmes writes:


Id. at p. 23.

On the value of being “touched by fire” and a “mighty heart” displayed while pursuing one’s duty, the great man gives us this breathtaking prose:


Id. at p. 25.

It is worth remembering the Justice’s remarks–even though a 131 years have passed since they were first composed and uttered. And it is worth thanking Professor Collins for fulfilling his duty to the fullest in The Fundamental Holmes.





Both Joan and I have known the young woman, whose photo appears below, since she was a baby. We care for her in the same way we love our own children. We think she is just the tops.

kimKim is very, very smart, just like her Dad, Pat, who is our dear friend. (Pat introduced me to Joan.) She is also a gifted athlete as was her father. For example, and despite her small size, Kim was a good golfer on the UNL women’s golf team.

Kim lives in Portland, Oregon now. After graduating from the University of Nebraska College of Law with high grades, and clerking for me one summer, Kim’s elected to move to Portlandia. However, Kim has retained her wry skepticism despite living in that wonderfully weird city.

Kim clerked for several federal judges in Portland. After that, she became an excellent trial lawyer. She is married to one of Oregon’s preeminent trial lawyers. They live charmed lives, and we couldn’t be happier for her.

Today, Kim stopped at our home for a short visit. She was in Nebraska for some family events. Our visit with her, although brief, was fun and, better still, warmed our hearts on this cold and rainy Sunday.

Some things are more important than others.


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