“The Supreme Court Erred Again”

My friend, Eric Hines, is one of most well-informed lay persons about the law that I have come across. I suppose that is not surprising given his wide-ranging education, and his long career as a senior Air Force officer.

Eric writes a blog, entitled A Plebe’s Site.  Eric is very conservative. He is also intellectually honest and open-minded. That said, he is a skilled debater. So, if you take him on, you best be prepared for a robust exchange.

At his blog you will find trenchant analysis of legal, economic and political issues. His most recent post, The Supreme Court Erred Again, is just such an example. In that post, Eric skillfully criticizes the Supreme Court for the ACA ruling in King v. Burwell. It is worth a read. In fact, A Plebe’s Site is always worth a read.



Legal realism (or why I should immediately be found incompetent and taken to the home for old folks)

I am still in Omaha. My civil case went to the jury yesterday afternoon. They left at 5:00 pm. I hope they return today. My instructions weren’t that bad.

Yesterday, at noon I was wolfing down a sandwich and doing research. Jim, my brilliant career law clerk, who helps me with jury cases, was doing the same thing. We were stressed. More about that important lunch later.

The case before us is a sad one with a lot of money at stake–an amputation of a leg after a crushing injury. The lawyers are good.

No, that’s wrong. The lawyers are some of the very best. They fight like hell for their clients, but they are civil and professional to each other and everyone else. I really like them as human beings. They are quick witted and wry. Better still, they tolerate my jokes.

Murray Ogborn and Mike Ogborn represented the plaintiffs (husband and wife). A great duo those two lawyers. (I have known Murray forever.)  Mike is Murray’s son. Sorry Murray, Mike just might be better than you are! They know how to appeal to a jury using ethos (an ethical (truth telling) appeal) rather than the weak pathos (appeal to emotion) that so many plantiffs trial lawyers use to no good end.*





On the other side, for the “monster” corporation (Murray’s description at closing), sits Chris Tjaden. He is from a venerable defense firm. All alone, Chris represents his client with the understated manner of a great defense lawyer who knows how to appeal to jurors by striking at the plaintiffs’ weak spots and avoiding entanglement with minutiae. Chris properly and skillfully uses logos (logic)to slice and dice.

Back to my lunch of yesterday. So, I am eating a ham and swiss sandwhich at noon, while trying to do research about something Mike brought up, when the prongs on my oral appliance for my fake front teath decide to impale the underside of my tongue.


Since I recently had two teeth taken out on the right lower jaw, the prongs on the right side of the appliance are free to engage my tongue. I haven’t had time to see my dentist to fix the prongs. Ultimately, I ripped the appliance from the underside of my tongue. I started laughing at myself in a manic way as blood mingled with a piece of ham and swiss that I spat out on the cherry wood desk the government bought.

Thank goodness my tongue stopped bleeding, and I was able to take the bench and get the case to our attentive jury. As I write this, I am sitting alone in a motel room in the early morning and wondering how in the world I became a Senior United States District Judge.

I can’t even eat a ham and swiss sandwich without stabbing myself in the tongue. Will somebody please help me?


*For more on the three modes of persuasion, see here.

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From the Road to China to the Antiques Road Show

I asked Joan whether I could write about her family and the Antiques Road Show. She gave me permission. She had one caveat. No bragging about her family. I agreed.

John Wagoner was a young lawyer in Grand Island, Nebraska when WWII broke out. He had to call in some favors, but he got into the Army Air Corps. He trained as a pilot, but ended up doing logistics for C-47s flying over the Hump from China. He also defended soldiers in courts martial. Additionally, he had “an extra-legal” business trading between China and India, but that is a fascinating story for another day. In short, John was a resourceful person.

a_veteran_in_olive_drabHis tour of duty took him to Chungking (now Chongqing) China, Generalissimo Chiang Kai-shek’s provisional capital. At the airfield one day, John observed a VIP air plane land. It was General Hurley’s plane. On it was Florence Gerrard. John noticed her and returned the hat box that she had left on the plane.

Ms. Florence Gerrard was to begin work for the State Department at the American Embassy. She was to perform secretarial duties at the embassy and John was very interested in the tall young woman, but I am getting ahead of myself.

Florence (Gerry or Flo) Gerrard was raised in Greenway, Arkansas. That’s near Piggot. Her home had no inside plumbing until she and her husband had plumbing installed for her parents sometime in the late ’50s or early ’60s. The tall girl graduated high school and then secretarial school in St. Louis. After that, she took a civil service exam, the war broke out and she ended up in Panama with the U.S. State Department. After two years in Panama, she returned home.

While at home on leave, she received notice from the State Department that her next posting would be in China. If she could quickly get to Washington, D.C., a plane would take her there. Florence caught the train, and made the plane.

The girl from Greenway learned that she was on the plane assigned to Major General Patrick Jay Hurley and various other important people like Kathleen Harriman. Ms. Harriman was going to Moscow where her father, Averell Harriman, was ambassador to the Soviet Union. The three-week flight to China took Florence to London, then to Turkey, Egypt, Moscow, back to Egypt, then to India, and over the “hump” to China. While Florence was a secretary at the Embassy, there is some evidence that Florence was really employed as a secretary by the Office of Strategic Services (OSS), the predecessor of the CIA. Florence never said much about her work except to make vague statements about it.

By now, you not doubt realize that John and Florence fell in love and married. After the war, they decided to stay in China. They had fallen in love with each other and the people and culture of China.*

John opened an import/export business in Shanghai with some Chinese partners. The family lived in the French Concession. (In 1994, Joan and I believe we may have found the home that by then was a multi-family apartment.) Joan was born, and then June was born. Business was good, but the communists were an ever-present threat.

John and Florence loved beautiful things, particularly beautiful things that could be bought cheaply after the war. One of the stunning pieces they acquired was a hand crafted silver plate cutlery set in an Art Deco pattern of the early ’20s-’30s. It is shown below.



By 1949, the communists were closing in. John sent Florence, Joan and June back to the US. Six months later, John followed after hitching a ride on a military plane. John renewed his law practice in Grand Island becoming a well-known trial lawyer. More children came. The union of John and Florence produced seven children. Joan (“Miss Boss” as she was known by her siblings) is the oldest. John and Florence are gone now.

From the period of 1945-1946, fast forward nearly 70 years. Joan’s three sisters in Omaha each put in a bid to attend the Antiques Road Show that was to appear in Omaha. Only one got a ticket.

The lucky sister, Mary, took the silver cutlery set that belonged to sister Ann. A producer was captivated by the set and the story behind it. The Roadshow experts could not figure out the markings on the set, but they decided that the it was probably made by a German or Austrian silver smith. Mary will appear in a short segment when the Road Shoe presents its program on Omaha. The silver set will be featured. Florence would have been so proud.

The family has a transcript of an oral interview of John and Florence about their time in China. It runs 155 pages. The transcript is entitled “Road to China.” It is fitting that a part of their fascinating story will be recounted on the Antiques Road Show.**

Addendum: Subsequent to this post going up, I have learned that June, one of Joan’s sisters, has been able to confirm that Florence was with the OSS. June searched a repository of declassified documents and found references to Ms. Gerrard. That probably explains why Florence was flown with a bunch of VIPs to China. Fascinating.


* This beautiful Chinese piece hangs in our home.


** The Roadshow in Omaha took place this weekend. I have no clue when the segment will appear.

In this instance, Judge Posner lied

Let’s face it, I don’t belong in the same sentence as Judge Richard Posner. I regard Posner as a giant. I respect him and wish he sat on the Supreme Court. He is known for speaking the raw truth, and I highly respect him for that trait. But he is wrong as hell to write in Slate* that the Chief Justice’s dissent in the gay marriage case was heartless and furthered the cause of bigotry. It is a damnable lie.

The Chief Justice ends his dissent in the gay marriage case with these words:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Obergefell v. Hodges,  576 U. S. ____ (2015), slip op. at p. 29 of dissent.

Those are not the words of a cold and heartless and bigoted man. Indeed, if anything the dissent reflects a sadness that the Chief Justice cannot join the majority.**

Paul Barrett said it best when trying to understand the Chief Justice and his views in the Obamacare and gay marriage cases:

On Thursday, Chief Justice John Roberts drew fierce conservative fire for upholding Obamacare (again). A hero to political liberals for 24 hours, Roberts seemingly flipped positions on Friday to write the lead dissent opposing the nationwide legalization of gay marriage. What’s with this guy?

Actually, his opinions in the marquee cases of the 2014-2015 Supreme Court term aren’t difficult to reconcile. Agree or disagree with Roberts on the merits, one can easily discern an essentially restrained jurist concerned with promoting the machinery of democracy and the reputation of the highest court in the land.

Paul Barrett, Why John Roberts Upheld Obamacare but Dissented on Gay Marriage
He sides with liberals one day, conservatives the next. What gives?, Bloomberg Business (June 26, 2015).

No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”

Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.


*H/T How Appealing.

**I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.

“Angering Conservatives and Liberals, Chief Justice John Roberts Defends Steady Restraint”

Please read this insightful piece from Adam Liptak in the New York Times.*

download (3)The Chief Justice is fast becoming my hero.

He may well be the best Chief Justice since Chief Justice John Marshall.





* H/T Howard Bashman at How Appealing.

Judge Joe has the right to crow (but he won’t)

Judge Joe Bataillon is a really nice guy. I have objective proof of that assertion.

imagesLisa, my middle daughter, the one in China, told me what a nice man Joe was long before I knew Joe. She knew Judge Joe before I did because Lisa and one of Joe’s daughters, see here, went to Marian High School together and were good friends. Marian is an all-girls Catholic High School with a proud tradition in Omaha.

After I met Joe all those many years ago, I realized what Lisa meant. Joe is truly a good man. He always, and I mean always, seeks to do the right and fair thing even when others (like his church) push hard for Joe to do something different. Joe is indifferent to reversals by the Court of Appeals. His focus is doing what he believes is right.

Yesterday, when the Supreme Court declared that gay people had the Constitutional right to marry, Joe was vindicated. Since 2003, Joe had said essentially the same thing. See Waters v. Ricketts, No. 8:14CV356 (D. Neb., March 2, 2015) (“Nebraska’s “Defense of Marriage” Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens.”); Citizens for Equal Protection, Inc. v. Bruning, 368 F.Supp.2d 980 (D.Neb.2005) (” Section 29 does not merely withhold the benefit of marriage; it operates to prohibit persons in a same-sex relationship from working to ever obtain governmental benefits or legal recognition, a right they had before the passage of Section 29. If the purpose, as offered by the proponents of Section 29, were merely to maintain the common-law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. The court concludes that the plaintiffs have established that Section 29 is an unconstitutional bill of attainder.”); Citizens for Equal Protection, Inc. v. Bruning, 290 F. Supp. 2d 1004 (D. Neb. 2003) (denying motion to dismiss and stating, “Section 29 does not just withhold a benefit; it actually prohibits same-sex relationship couples from working to obtain governmental benefits. If the purpose, as offered by the defendants, of Section 29 is merely to maintain the common law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. I conclude that the plaintiffs have met the legal requirements for stating a claim of bill of attainder.”).

Judge Joe has the right to crow. But he won’t because he is also a humble man. Indeed, I feel fortunate to have Judge Joe as a colleague and a friend. By his actions, Judge Bataillon has offered us all a lesson in humanity. By the way, it is not his fault that I am a bad student.


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