“The Supreme Court and the Politics of Fear” by Linda Greenhouse

Linda_Greenhouse_ACS_logoIn The Supreme Court and the Politics of Fear, New York Times (July 4, 2015)* Ms. Linda Greenhouse explains that Nixon used the Supreme Court and the antipathy for the Court to boost his political standing and that of his party:

WHEN he ran for president the second time almost half a century ago, Richard M. Nixon made Earl Warren’s Supreme Court a target of his campaign. It was a brilliant move. His accusation that the court had tilted “too far in weakening the peace forces against the criminal forces,” as he put it in a widely noticed 1967 Reader’s Digest article, resonated with a public that had seen the crime rate double since 1960.

This time around Ms. Greenhouse sees a different dynamic:

In any event, a majority of the public favors the outcome of both the health care and the marriage decisions, a CNN poll found in midweek. The majority comprised both Democrats and, significantly, independents, 63 percent of whom approved both rulings. By smaller margins, Republicans disapproved of both. For Republican politicians handcuffed to their base, which is to say all of them, there is a danger sign, surely, in their increasing distance from independent voters who will control the outcome of the next election. So too is there danger in a recent Gallup poll indicating that for the first time in seven years, more Americans identify themselves as “pro-choice” than “pro-life.”

A week after the end of a remarkable court term, the message may be this: It’s not the voters, but the Republican presidential candidates, who should be afraid.

Is she correct? Or will the likes of Ted Cruz crucify the Supreme Court such that the Peoples’ trust in the Court will be even further eroded?

Perhaps readers of this blog have an answer. I look forward to their thoughts.

The foregoing said, the battering of the Supreme Court is not as Ms. Greenhouse implies a strictly partisan affair. The Democrats twice frustrated President Nixon when he tried to fill the seat eventually filled by Harry Blackmun, see eg., here, and they did so for strictly partisan reasons.

Clement Furman Haynsworth, Jr. nominated by Nixon was rejected by Senate. Democratic U.S. Senator Philip Hart of Michigan said that Haynsworth’s decisions on civil rights and labor management were “unacceptable,” while Republican Senator Marlow Cook of Kentucky argued that Haynsworth was being “subjected to a character assassination that is unjustified.” Cook argued that Haynsworth was “a man of honesty and a man of integrity.” Ironically, in 1989, David A. Kaplan, a senior writer for The National Law Journal, wrote in the New York Time that Haynsworth was a moderate, “who’s no liberal but is close in outlook to John Paul Stevens.” David A. Kaplan, The Reagan Court – Child of Lyndon Johnson?, New York Times (1989).

President Nixon then nominated G. Harrold Carswell, a former United States Attorney, Federal District Judge, and U.S. Court of Appeals Judge. That nomination flamed out on the floor of Senate with a vote was 51 to 45. Senator Roman L. Hruska from Nebraska did not help things by stating “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”**

Finally, Nixon got Harry Blackmun through the Senate and onto the Supreme Court. At least in my memory of him, Blackmun always wore blue blazers. He also proved to be a liberal at heart. Ironically, I owe Nixon and Blackmun a lot. My judge–Donald. R. Ross–replaced the prissy little Blackmun on the Eighth Circuit and I got a clerkship soon thereafter.

Ms. Greenhouse also seems to forget the disgraceful treatment of Robert Bork at the hands of Ted Kennedy and Joe Biden. There was absolutely no doubt about the brilliant Bork’s qualifications. Rather:

To pro-choice rights legal groups, Bork’s originalist views and his belief that the Constitution does not contain a general “right to privacy” were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court’s 1973 decision in Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork’s rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade.

Robert Bork, Wikipedia (last accessed June 5, 2015).

To illustrate the treatment of Bork, in 1992 the Oxford English Dictionary added an entry for the verb “bork,” with this definition: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.” The Democrats had a trophy to hang on their wall after their vicious attack dogs ran their prey to ground.

In summary, Ms. Greenhouse’s article is intriguing. Her selective memory is irritating but not unexpected.

RGK

* H/t Jonathan Bell.

** Ironically, Carswell was probably the first gay or bisexual judge nominated to the Supreme Court, although he was certainly not out of the closet then. See here.

Why July 4, 1826 is my favorite Fourth of July

There are few thing more astounding and wonderful than the fact that John Adams and Thomas Jefferson died on the Fourth of July 1826. At one time, the two men had been friends, that friendship broke apart, and in their later years was put back together.

Their friendship was almost completely torched by the election of 1800. This was also the election that first introduced us to “dirty politics.”

Consider this:

Negative campaigning in the United States can be traced back to John Adams and Thomas Jefferson. Back in 1776, the dynamic duo combined powers to help claim America’s independence, and they had nothing but love and respect for one another. But by 1800, party politics had so distanced the pair that, for the first and last time in U.S. history, a president found himself running against his VP.

Things got ugly fast. Jefferson’s camp accused President Adams of having a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.” In return, Adams’ men called Vice President Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” As the slurs piled on, Adams was labeled a fool, a hypocrite, a criminal, and a tyrant, while Jefferson was branded a weakling, an atheist, a libertine, and a coward. Even Martha Washington succumbed to the propaganda, telling a clergyman that Jefferson was “one of the most detestable of mankind.”

JEFFERSON HIRES A HATCHET MAN

Back then, presidential candidates didn’t actively campaign. In fact, Adams and Jefferson spent much of the election season at their respective homes in Massachusetts and Virginia. But the key difference between the two politicians was that Jefferson hired a hatchet man named James Callendar to do his smearing for him. Adams, on the other hand, considered himself above such tactics. To Jefferson’s credit, Callendar proved incredibly effective, convincing many Americans that Adams desperately wanted to attack France. Although the claim was completely untrue, voters bought it, and Jefferson won the election.

PLAYING THE SALLY HEMINGS CARD

Jefferson paid a price for his dirty campaign tactics, though. Callendar served jail time for the slander he wrote about Adams, and when he emerged from prison in 1801, he felt Jefferson still owed him. After Jefferson did little to appease him, Callendar broke a story in 1802 that had only been a rumor until then—that the President was having an affair with one of his slaves, Sally Hemings. In a series of articles, Callendar claimed that Jefferson had lived with Hemings in France and that she had given birth to five of his children. The story plagued Jefferson for the rest of his career. And although generations of historians shrugged off the story as part of Callendar’s propaganda, DNA testing in 1998 showed a link between Hemings’ descendents and the Jefferson family.

Kerwin Swint, Mental Floss, The Magazine (last accessed July 4, 2015).

Do view this video, it is wonderful:

But true friendship can survive raw bitterness. Thus it was so between Adams and Jefferson:

Just as truth persists, however, so does friendship. Twelve years after the vicious election of 1800, Adams and Jefferson began writing letters to each other and became friends again. They remained pen pals for the rest of their lives and passed away on the same day, July 4, 1826. It was the 50th anniversary of the Declaration of Independence.

Id.

And so it was as the heat boiled up during the summer of 1826, a remarkable event occurred:

On July 4, 1826, at the age of 90, Adams lay on his deathbed while the country celebrated Independence Day. His last words were Thomas Jefferson still survives.* He was mistaken: Jefferson had died five hours earlier at Monticello at the age of 82.

This Day In History (last accessed July 4, 2015).

Some things are more important than others and that includes true friendship.

RGK

* The words attributed to Adams find no evidence in the historical records. That means absolutely nothing to me. I want to believe John Adams celebrated his old friend as Mr. Adams passed from this world. 

From Simple Justice: Talking about race

Over at SJ Scott writes a post entitled Why You Can’t Talk About Race (Or Anything Else). It is worth reading and I suggest that you do so. The essential thrust of Scott’s tough piece is this:

Stop the whining, the crying, the self-serving sensitivity and the narcissistic presumptiveness that you are entitled to decide the rules of life for others because they’re too feeble and delicate to speak for themselves. Show them the courtesy of being real people by treating them like real people.

We need to talk. If you can’t handle it, then move aside and let the grown-ups do it. And stay out of the way.

I agree entirely with what Scott wrote. But, I have an honest concern.

There are more than a few adult white people (like Scott) who see and will treat black people like real people. But, if we have a real conversation between grown-ups then black people need to approach the conversation in the same way.

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Ultimately, we would get down to the issue of class and throwing away the lives of young black men in prison. What concerns me is that if we have that conversation the “real people” opposite must be willing to accept some horrible truths. I am not at all sure that the vast majority of “real” black people are ready to truly grapple with the truth as it regards class. But, then again, I am a racist old white man with a nasty history of sending legions of young black men to prison without so much as a blink.

RGK

I’m sorry, but freaks are freaks

The day is near ending. A holiday is impending. I am at work perusing the Washington Post (digital version). I come across an article entitled, Tiny house, big benefits: Freedom from a mortgage and worries — and stuff.

imagesThe article is about people who live in tiny homes. It is all about working for nonprofits, collecting life experiences rather than material things, green revolutionary talk, saving the planet, riding a bike 50 miles a day to work from your tiny home, avoiding mortgages to pay off student loans for art history degrees, composting toilets and crap (not literally) like that.

Take for example the couple who have a regular house that they plan to sell, and “238-square-foot tiny home” that “sits a few hundred yards from their 39-foot sailboat, which is docked on a creek that feeds into the Chesapeake Bay.”  “After they retire, they plan to sell the main house and spend time on the boat and in the tiny house — a lifestyle . . . dubbed “surf ’n’ turf.” Doesn’t all of that strike you as more than slightly ironic?

I’m sorry, but freaks are freaks.

RGK

Have the anti-death penalty folks been hung by their own petard?

For my money, the Fault Lines section of Mimesis Law provides some of the most hard-hitting commentary on the legal issues of the day available on this medium. I check it daily.

While I cannot comment on death penalty issues because I have three death penalty cases, there is noting improper in my highlighting fascinating and well-written articles on the subject. It is in that vein that urge you to read Tamara Tabo’s provocative article entitled Alito’s payback in the “Guerilla War” over executions, Mimesis Law (June 1, 2015).

The essential thrust of the article, at least as I read it, is this: The anti-death penalty machine has made execution drugs that minimize pain hard to get and Justice Alito and some of his colleagues are fed up with the strategy of “having your cake and eating it too.”

Ms. Tabo writes:

At oral arguments for Glossip, Justice Samuel Alito posed what I considered at the time to be the decisive question.

Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

In Justice Alito’s majority opinion in Glossip, Alito answered his own question. By insisting that the inmates bore the burden of providing an alternative to midazolam, the Court forced onto anti-death penalty abolitionists the consequences of guerrilla war. In war, there are casualties. In war, there is collateral damage. In war, there are strategies that backfire.

In short, an anti-death penalty lawyer will not be permitted to whine about the pain his or her killer might suffer when lashed to a gurney and snuffed given the real world fact that death penalty opponents actively participated in an effort to eliminate the availability of drugs that would eliminate pain.

Here is the opinion in Glossip v. Gross. I particularly direct your attention to slip op. pages 4 through 6 of Justice Alito’s majority opinion. Among other things, the Justice observes that “a practical obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.”

The Justice then wrote:

Our first ground for affirmance is based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and
available alternative method of execution. In their amended complaint, petitioners proffered that the State could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. But the District Court found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma’s Department of Corrections. The Court of Appeals affirmed that finding, and it is not clearly erroneous. On the contrary, the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so.

Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows.

Id. at slip op. pp. 13-14.

What’s your take on Ms. Tabo’s point that the anti-death penalty folks have been hung by their own petard?

Credit: "Petardsketch2" by unknown, possibly Italian - Library of Congress. The drawing depicts a petard, from a seventeenth-century manuscript of military designs.

Credit: “Petardsketch2” by unknown, possibly Italian – Library of Congress. The drawing depicts a petard from a seventeenth-century manuscript of military designs.

RGK

 

“COOK’S NO HERO FOR SHOOTING ESCAPEE DAVID SWEAT”

Image credit: CNN and usmagazine.com

Image credit: CNN and usmagazine.com

Go over to Mimesis Law, the Fault Lines section, and read the above entitled post by Cristian Farias regarding whether the shooting of the escaped cop killer David Sweat was justified. Mr. Farias makes a convincing argument that the shooting was not justified. I confess, I, too, wondered whether the shooting was justified. While I am agnostic at this point, Mr. Farias’ post is well-reasoned.

Read the post by Mr. Farias, please. Then tell me what you think.

RGK

Image credit: AP and usmagazine.com

Image credit: AP and usmagazine.com

A grief observed

I have appropriated the title to this post from C.S. Lewis and his little book entitled a “A Grief Observed” that recounts his thoughts shortly after the death of his wife. This book helped me get through the death of my first wife the day after Christmas in 1986.

This is a blurb about the book:

Written after his wife’s tragic death as a way of surviving the “mad midnight moment,” A Grief Observed is C.S. Lewis’s honest reflection on the fundamental issues of life, death, and faith in the midst of loss. This work contains his concise, genuine reflections on that period: “Nothing will shake a man — or at any rate a man like me — out of his merely verbal thinking and his merely notional beliefs. He has to be knocked silly before he comes to his senses. Only torture will bring out the truth. Only under torture does he discover it himself.” This is a beautiful and unflinchingly honest record of how even a stalwart believer can lose all sense of meaning in the universe, and how he can gradually regain his bearings.

This post is not about a death of a spouse. Rather, it is brief reflection on trying cases to juries and the impact trying cases has on the souls of the lawyers.

Yesterday, my jury returned a verdict for the defendant. When I take a verdict, I review the verdict form first and then have the courtroom deputy show the lawyers the verdict. After that, I read the verdict out loud. In civil cases, I don’t require the lawyers and clients to wait around the courthouse for a verdict. They can go home if they wish, and we call them with the verdict. However, they can wait if they like.

The plaintiffs waited with Mike. It is hard to wait. Jim and I speculated how we could get the injured man and his wife some money if we could in good faith do so. The fellow was very credible. He was a lean and tough working man with an amputated leg, over a half million in medical bills, and lasting and horrible disabilities. Jim and I felt for him. But we ultimately concluded that if we had to decide the case we would be compelled to rule for the defendant a big corporation. No negligence would be our verdict. That’s what the jury ultimately found.

Credit: Museum of the Origins of Man

Credit: Museum of the Origins of Man

As I looked into the faces of Mike and his clients as I read the jury verdict I saw the pain that the rejection of their claim caused. The pain was palpable.

What struck me most was the pain on Mike’s face. He is not a kid. He’s 49. He has done this many times before. I wondered what he would think as he flew back to Denver to address the files of other clients piled high on his desk.

I know that when you devote your life to trying civil cases that after a while the highs are not so high as they once were and the lows get even lower too. And I thought of C.S. Lewis:

“Nothing will shake a man — or at any rate a man like me — out of his merely verbal thinking and his merely notional beliefs. He has to be knocked silly before he comes to his senses. Only torture will bring out the truth. Only under torture does he discover it himself.”

Trying lawsuits is torture on the lawyers, and the pain is searing when the jury goes against you. It takes an unusual person to do this for a living. I hope Mike will be OK. If our situations were reversed, I am not at all sure that I would OK.

I might well take up heavy drinking and pick fights with my wife. A divorce would not be out of the question. I might be cruel to my friends and anyone who happened to venture within my sight.  I could easily turn into a “prick” lawyer making life miserable for my opponents and the judges before whom I appeared. If so, I would revel in their frustration. I would develop an ulcer or some other physical problem that I would ignore but bitch about incessantly. In short, I would be transformed from the loving and kind young man who started law school into a real bastard.

Trying lawsuits is torture. As CS Lewis observed, torture can bring out the truth in a man. Alternatively, it can turn a good man into a beast.

I sense Mike will retain his sense of humanity and confidence in himself. I certainly hope so.

We lawyers and judges who sit on the sidelines should have empathy for those who venture into the modern-day Coliseum of the courtroom to do battle with the lions and tigers that are waiting to rip out their beating hearts. Trying cases is a merciless endeavor, and it takes a very unusual person to do it day after day with grace and a peaceful soul.

RGK

“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.

RGK

 

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.*

Murray

mike

tjaden_christopher

 

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.

IMG_1615

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?

RGK

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

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