What do Joseph Goebbels, Paul Krugman and Antonin Scalia have in common?

Joan tells me I could be a Catholic. She might be right.

Driving back to Omaha yesterday to resume my trial after successful visits with my doctors in Lincoln,* I forced myself to listen to Rush Limbaugh. I feel deep guilt and horrendous shame for all the sins that I have committed. Listening to the moronic Rush is a small part of my penance.

Anyway, I got to thinking about propagandists and ideologues. There is a commonality, I think, between expert propagandists and ardent ideologues. The best way to see what I mean is through real life examples.

In the 20th century, the most brilliant of all propagandists and ideologues was Joseph Goebbels. Goebbels was a brainiac (and maniac) who obtained a Doctor of Philosophy degree from the University of Heidelberg.

245px-Bundesarchiv_Bild_146-1968-101-20A,_Joseph_Goebbels“After the Nazi Seizure of Power in 1933, Goebbels’ Propaganda Ministry quickly gained and exerted controlling supervision over the news media, arts, and information in Germany. He was particularly adept at using the relatively new media of radio and film for propaganda purposes. Topics for party propaganda included antisemitism, attacks of the Christian churches, and (after the start of the Second World War) attempting to shape [public} morale.” en.wikipedia.org/wiki/Joseph_Goebbels. He was so committed to Hitler and National Socialism that, after poisoning his six children in Hitler’s bunker, he shot his wife in the head and then shot himself in Hitler’s above ground garden.

Then there is Paul Krugman. He is another brilliant fellow and winner of the Nobel Prize in economics. Krugman writes for the New York Times. He worships John Maynard Keynes, and writes devastating columns eviscerating any who dare disagree with his ideology of printing money to do good. He uses his NYT column like a rapier

225px-Paul_Krugman-press_conference_Dec_07th,_2008-8“Krugman was one of the most prominent advocates of the 2008–2009 Keynesian resurgence, so much so that economics commentator Noah Smith referred to it as the ‘Krugman insurgency.’ In June 2012, Krugman and Richard Layard launched A manifesto for economic sense, where they call for greater use of fiscal stimulus policy to reduce unemployment and foster growth. The manifesto received over four thousand signatures within two days of its launch, including from prominent economists,and has attracted both positive and critical responses.” en.wikipedia.org/wiki/Paul_Krugman

In this same vein, is Antonin Scalia, a Justice of the Supreme Court. There is no better writer than Scalia when it comes to argumentation. He is quick-witted. His IQ is obviously off the charts. He believes passionately in a legal ideology that features, among other things, a textualist approach to statutory interpretation. He seeks to propagate his views whenever he can.

220px-Antonin_Scalia,_SCOTUS_photo_portraitSpecifically, Scalia slavishly adheres to his “ordinary meaning” creed to the exclusion of any other reasonable method of construction and interpretation and without regard to whether the impact of the “ordinary meaning” canon produces harmful results. His bombastic dissent in King v. Burwell, so obviously intended to appeal to an audience much broader than lawyers and judges, is a perfect example of an expert propagandist and ideologue of the first rank. (“The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. . . . Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State” means “Exchange established by the State or the Federal Government’?”)

The dissent is all the more remarkable when contrasted with Chief Justice Robert’s majority opinion. That opinion is moderate in tone, practical in approach and lawyer-like in reasoning. It does not seek to appeal to the fringe.

What do these musings mean? Two things, I think.

First, I could never be a Catholic, despite the love my life’s suggestion to the contrary. While I have the requisite heaping dollop of guilt and shame, I am too much the skeptic to accept the dogma.** That is also why the likes of Paul Joseph Goebbels, Paul Robin Krugman, and Antonin Gregory Scalia–expert propagandists and ardent ideologues each of them–frighten me. Because of the power of their propaganda, people have a tendency to believe their extremely passionate ideological claptrap.


* My creatinine levels have returned to normal thus indicating that I will not have continuing renal problems and, further, my shingles are past the eruption stage and without secondary infection.

** On the other hand, I loved the movie Dogma, especially the scene where Alanis Morissette appears as God.

Kings and Queens and Financial Disclosure Reports

The time has come when the judges and Justices of the federal courts should make their financial disclosure reports easily and publicly available at the time of filing. As things stand now, if you are a reporter or just an ordinary citizen you have to make a request to Washington for a copy of the report. Then the judge who is the subject of report is notified. And sometime later you, the reporter or citizen, will get a copy.

We judges and Justices can make things easier. When we file, we can post our reports on our courts’ external web sites. Redactions can be made if necessary for security purposes. That happens now anyway. But I see no reason we as judges and Justices can’t make life easier for those who wish to see our reports.

I am tired of, and annoyed by, the bureaucratic hassle and delay we impose on reporters and the public now. There is no good reason for it. Mark Sherman of the Associated Press rightfully complains that 5 Weeks After Filing, Justices’ Finances Still Not Public, AP (June 24, 2015).* Mr. Sherman is right to bitch, and we have it in our power to avoid bad publicity by simply uploading our reports to our web sites on the day we file them. Easy. For example, see here.

We aren’t kings and queens, and we ought to stop acting like we are special. Most important to me, and like other inquiring minds, I want to know the financial details of the Austrian gig that my friend Tony enjoys each year. See, e.g.Justice Kennedy to Teach in Summer Salzburg Program, McGeorge School of Law (March 12, 2015). I doubt the accommodations mimic solitary confinement.


* A tip of my STFU cap to Brother Bashman at How Appealing. Indeed, Howard Bashman warrants high praise for providing us with a wide array of legal news in a timely fashion. Howard’s site is an absolute treasure!

A correction to “Michael K. Ausbrook and the snipe swarm”–He has worked for free

Now, I am even more amazed at Michael’s work. See the post immediately preceding this one. 

He has done it all for free. All of it.

Michael explains:

I  have truly not meant my experiment as charity. I have just fronted the money to run the experiment. Had the cases come back losers in the first couple or three years, I would have moved on to something else. My idea is that there are cases that can be identified as probable winners in federal court and that they can be won. If that idea has support in reality, then my vision is that there should be offices in every state doing the work, just as there are Innocence Projects everywhere. (Innocence, schminnocence, I say. Some of my clients are innocent; others aren’t. They have all been demonstrably cheated by the Indiana state courts and are serving legally undeserved extra decades in prison as a result.)

I’ve gone on and on again. The point is pretty easily made: There isn’t a living in what I’ve been doing, but I think there should be. With the recognition of the Gideon Award and now the really wonderful post you put up, I begin to get the credibility necessary to start going hat in hand to likely sources of material support.

Michael K. Ausbrook and the snipe swarm

One of things I love about writing this blog is that it provides me with the opportunity to highlight the good works of young (or younger) lawyers. This is one of those posts. It is about Michael K. Ausbrook of the Peoples Republic of Bloomington, Indiana.

Michael and I became acquainted after I wrote a snarky post about federal habeas corpus cases. It was entitled, The high cost of snipe hunts.

Photo credit: JJ Harrison (jjharrison89@facebook.com) per  Creative Commons Attribution 3.0 Unported license.

Photo credit: JJ Harrison (jjharrison89@facebook.com) per Creative Commons Attribution 3.0 Unported license.

I implied that you simply could not win those cases, and they were ultimately a waste of everyone’s time. Stated differently, finding a winner was next to impossible. That did not sit well with Michael. But let me digress for just a moment.

Micheal and I share a love for the classics and Loren Eiseley. I wrote about Michael, the classics and Loren Eiseley in a post entitled All the strange connections and the classics (“Don’t you see? In some strange way, and if only for a moment, the love of the classics brought Richard Arnold, Michael’s father, Michael and me (and perhaps even Robert Lincoln) together. Eiseley would not have been surprised.”).

From time to time, Michael and I correspond. Some times he sends me blog tips as here. Other times, we just shot the breeze. He is a wonderful writer with all the sensibilities of a gentleman who went to Exeter, taking Latin and Greek, and then majoring in the Classics at the University of Pennsylvania.

It was with this background that I was overjoyed to see that Michael’s work on federal habeas corpus cases resulted in his being honored as the 20th recipient of the annual Gideon Award given by the Indiana Public Defender Council, a branch of the Indiana judiciary. The Council has 1,100 members. The Council’s purpose is to provide a support center for lawyers who represent indigent criminal defendants.

Here’s the blurb about the award that Michael received:

The purpose of the Indiana Public Defender Council’s Gideon Award is to honor an individual who embodies the attributes of a zealous criminal defense lawyer for poor persons in Indiana and has distinguished him or herself in cases or his/her career. The Gideon Award is named in honor of the U.S. Supreme Court’s decision in Gideon v. Wainwright, 372 US 335 (1963), which first articulated the right to appointed counsel in felony cases.

Here is the YouTube video of the presentation and Michael’s thoughtful acceptance remarks:

Why did Michael receive this high honor?

Initially, you need to know his legal background. Michael graduated from the Indiana University School of Law, magna cum laude, Order of the Coif, in May of 1993. He is very smart. He is also an excellent writer and a researcher as his clerkship (1993-95) with the Honorable Frank Sullivan, Jr., Associate Justice of the Indiana Supreme Court evidences. It would be fair to conclude that Michael is among the best and the brightest lawyers Indiana has to offer.

With these extraordinary talents, Michael had an idea.

His idea was this: (1) if you taught yourself everything there was to learn about federal habeas corpus law, including the hideously complex creature that is AEDPA (Antiterrorism and Effective Death Penalty Act of 1996); (2) if you asked criminal defense lawyers from all over Indiana to refer indigent cases to you that might warrant federal habeas relief; (3) if you spent hours and hours determining whether a case could be a winner and you selectively took cases to federal court, under the federal habeas corpus statute, that had a reasonable shot of succeeding; (4) then you could really help indigent criminal defendants and make a living at the same time.

Guess what? Michael’s idea worked. He has won 4 of the 6 habeas cases he has taken to the 7th Circuit.  For context, understand and appreciate that federal habeas corpus petitioners have a national winning percentage of less than 1 percent. Michael’s success was mind-blowing. Along the way, he saved his clients 183 years of prison time.

For two of the many of cases brought by Michael, see Barnett v. Superintendent, 2015 U.S. Dist. LEXIS 70289 (N.D. Ind. June 1, 2015) (state conviction for burglary, battery, intimidation, and an adjudication that defendant was a habitual offender), granting writ of habeas corpus after summary reversal and remand by Barnett v. Wilson, 7th Cir. Case No. 13-2625 (7th Cir. Feb. 4, 2014)); Stitts v. Wilson, Southern District of Indiana Case No. 1:10-cv-765 (S.D. Ind. April 2, 2014) (state murder conviction) granting writ of habeas corpus after reversal and remand in Stitts v. Wilson, 713 F.3d 887 (7th Cir. 2013), reh’g and reh’g en banc denied, cert. denied 134 S. Ct. 1282 (2014)).

Now for a disclaimer. Michael was very concerned about my desire to write about his stunning successes. He absolutely flipped out when I insisted that he post the video of his award and his acceptance speech on YouTube. First, he is a truly humble person. Second, and most importantly, he did not want to be seen as a self-promoting huckster to the judges on the federal trial bench in Indiana or to the judges on the 7th Circuit.

I convinced him, after a bunch of e-mails, to allow me to write this post using the following argument: Michael, your idea is a good one and needs to be considered by others. The ability to practice a fascinating but obscure part of federal law while making enough to support yourself, if only modestly, and to do good at the same time is a rare opportunity. You would by a morbidly obese hog if you kept it to yourself. Besides I am frigging federal judge, you have to do what I say. He relented.

How to sum up? That’s hard. Michael exemplifies the very best of our profession.* More particularly, he has helped, along with others, to repair the near dead soul of a cynical and skeptical old federal trial judge. That’s miraculous.

Thank you Michael. Fiat justitia ruat caelum.


*Michael didn’t tell me, but his Dad was a very distinguished lawyer too in Washington, D.C.


Travels with Rich

Really, really good lawyers for my civil jury trial here in Omaha. A horrific crush injury is involved. Diversity jurisdiction.

Lots of money at stake. I love good lawyers. My job becomes easy.

I have known one of the lawyer for over 30 years. He is 71 and still trying cases ’cause he loves it. He once got 10 of us, who were taking depositions in a big case, into a disco in Denver in the late 1970s by telling the proprietor that he was the body-guard for Paul Volcker of the Federal Reserve System. One of the other lawyers was really tall and he played the part of Volcker admirably. We got comped all night. Afterwards, ten of us piled into one cab, I think. Somehow we got back to the hotel. I don’t remember much more of the evening.

The damn digital audio failed in the middle of the Plaintiff’s opening statement yesterday. It was fixed but the IT guy had no clue why it failed. To make me even happier, the digital audio failed for a bench conference as well. I feel like Ted Mack overseeing the Amateur Hour. Trust me, some IT ass is in for a good chewing.

I had dinner in the Old Market. If you come to Omaha, you must visit the Old Market. Old buildings that used to be the warehouse district for Omaha’s booming trade with the frontier have been preserved. It is heaven for frivolous young people, many with garish art on their bodies. Truth to tell, I like it too.upload-2806080741763048738

My face stills looks bad. The skin began to peel off today. I wore my STFU hat when I went to dinner and pulled it way down. I sat on a sidewalk cafe to eat. That way few people were required to confront a leper slurping white wine and eating a huge BLT. Bacon, bacon, bacon, bacon.

I’m done with my course of anti-viral medication. Still taking Lyrica for the pain. That makes me walk like a drunk. I don’t know why but I literally cannot walk a straight line. My cognitive powers, limited though they have always been, remain the same. I just wobble and weave when I walk.

The College World Series is going on. The government is going to pay through the nose for my hotel room. A lot of Omaha police officers patrol the floors of my hotel. The Vanderbilt baseball team–that made it to the finals for the second time in so many years–is staying here. Almost got into a fist fight last night when several of their older fans laughed and pointed at my STFU hat. But one of them was a particularly nice guy, a lawyer from Tennessee. We exchanged business cards. No fight, just warm greetings. Go Vandy!

The jury pool was only moderately terrified by my scabies and unshaven face. I told them the truth. That is, I was bitten and I am among the walking dead. That seemed to comfort them.IMG_1590


Dear Tony,

The Honorable Anthony M. Kennedy

The Supreme Court

Washington, D.C

Dear Tony,

Please forgive the familiar form of address, but I feel like I know you.

I know and respect and like to the high heavens Pat Borchers, former Dean of the law school at Creighton. He clerked for you on the Ninth Circuit. He has nothing but wonderful things to say about you. And, of course, you reviewed two of my partial birth abortion decisions. As I recall you didn’t like them, but, hey, so what? What’s a little disagreement among friends!

Here’s why I am writing Tony. You stirred up a good part of the legal world when you wrote your concurrence in Davis v. Ayala. You purposefully invited a land slide of litigation on the issue of solitary confinement.

You wrote:

In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion no doubt denied many of today’s inmates.

. . .

These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total solation exacts a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations,self-mutilation, and suicidal thoughts and behaviors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” ” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time. 

576 U. S. ____ (2015) KENNEDY, J., concurring, at slip op. for concurring opinion pp. 2, 4-5. (Emphasis added.)

I got to give it to you Tony. Those references to Dickens and Dostoyevsky are killers. Way to go, bud. For legal literature aficionados who hang out in the stacks at Stanford those are home runs! Once again, the legacy that you care so much about is burnished by your brilliance.

Literate and sensitive you are. Yes, sir.

But, Tony, here’s my problem. First, you (and much of the press you follow) really don’t know anything about “solitary confinement” in the real world. For example, I suggest reading Angola 3’s Albert Woodfox, Not Quite the Posterboy for Reform. In that post, Tamara Tabo found that “solitary confinement” is not what you claim it to be, at least not in the former hell hole known as Angola.

But that is not my major complaint, Tony, my friend. My major complaint is this: Who elected you King (or if you prefer, Queen) for a Day? Why are you stirring up solitary confinement litigation? Judges are not Jesuits. You have no roving commission to go about righting supposed wrongs based upon your peculiar conception of morality or religion. Cases are supposed to come to you. You are not supposed to be a crusading creator of cases.

This is personal in another way, my friend. I care about this, Tony, because I manage the pro se docket. I’m the guy who will have to handle the shit storm you unleashed.

I won’t use the acronym that must never be employed when speaking of the likes of you, because, although fitting, I don’t want to spend an inordinate amount of time dealing with twerps from the legal academy. So, Tony, I will, respectfully and only, say please zip the pie hole shut.



PS.  As an aside, Tony, watch out for John Roberts. He is trying to take your place. He is smarter than you are and better looking too! So, you have to figure out something special to handle him. Think, Tony, think!

Let’s end on a friendly and funny note. I know you don’t take yourself too seriously, so I am sure you will enjoy this cartoon*:Kennedy800


*The cartoon is reproduced pursuant to an Attribution-NonCommercial-NoDerivs 3.0 United States (CC BY-NC-ND 3.0 US) license. dhonig appears to be the creator of the work and hypnoctrites.blogspot.com apppears to claim some interest also. No changes have been made to the image.

Our little old house is worth millions (to us)

We bought the house of our dreams in 1998. It is an old style range house. It was built in 1969. We paid $269,000 for it. It sits on a busy street. The tax guy says it is now worth $330,000. He wants to know if I want to appeal the valuation. The valuation is terribly wrong, but I won’t appeal. That’s because our little old house is worth millions to us.

Photo credit: The damn tax assessor. By the way, our address is 3910 South 27th Street, Lincoln, NE 68502.  For all those freaks who wrote that they wanted me dead after my partial-birth abortion decisions or my flag burning decision, if you show up I plan a warm welcome. I have a 50 year old .22 rifle that fires high velocity Remmington 22 shorts. Out of ten shots this year at the bastard bunnies, I got one. So, be  wary. By the way, fuck the NRA.

Photo credit: The damn tax assessor. Our address is 3910 South 27th Street, Lincoln, NE 68502. For all those freaks who wrote that they planned to kill me after my partial-birth abortion decisions or my flag burning decision, if you show up, I plan a warm welcome. I have a 50-year-old .22 rifle that fires high velocity Remington 22 shorts. Out of ten shots this year at the bastard bunnies, I got one. So, freaks be wary. By the way, fuck the NRA. What a bunch of assholes. 


Our backyard, oh dear, the backyard.

Joan labors daily with her extensive flower garden. I mean labors. She doesn’t like weed killing products. She weeds the very large garden by sitting in the weeds in her old sweat pants. The chiggers bite her. Those bites hurt and itch throughout the summer. She says weeding is relaxing. She doesn’t mind the the chiggers. The old woman can outwork most everyone when it comes to tending gardens. Her Catholic upbringing, so uncommented upon otherwise, is evident in her gardening. Hard work and the pain of the chigger is a gift from God. I don’t understand.

Since I have been sick we have had a lawn guy take care of the grass. My little John Deere tractor that Scott Greenfield mocks, ’cause he has a that big John Deere Gator, sits unused in the three car garage. The lawn guy retired after serving as a fire fighter. He’s my age. He is lean and brown and strong and grizzled. He is profane. I like him a lot. He uses the same swear words that I do. I suppose it is a generational thing. His son, who will follow him in the business, is huge. He smiles as he toils in the 97 degree heat, giving off perspiration in wild streams. He seems content to perform the simple task of mowing. I envy him, and I am grateful for him too.

Our backyard, oh dear, the backyard.




IMG_1583 (1)





Some things are more important than others.


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