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 apppears to claim some interest also. No changes have been made to the image.

Pat Borchers’ wonderful holiday gift to the rest of us

Pat Borchers, former Dean  of the Creighton Law School, is a really good guy. True to the Jesuit tradition at Creighton, Pat is socially committed. But, he is also a self-styled conservative. He is brilliant, genuine, practical, funny and a terrific writer.

Pat has recently started a blog entitled “The Way I See It.” He explains his background and the purpose of the blog this way:

My full name is Patrick Joseph Borchers. As far as I can tell, there are only three people in the world with the name “Patrick Borchers” and I’m the only one with the middle name of “Joseph.” The paucity of Patrick Borcherses is perhaps unremarkable, as my name appears to have been a compromise. “Patrick” is quintessentially Irish, and my mother’s maiden name was Mary Bridget Hennessy.

My last name is German. A few years ago I received an email out of the blue from a Hans Borchers who had been born in the Goslar District of Germany, asking (essentially) if I were my father’s son, to which I replied in the affirmative. He was working on filling out a family tree. We Borchers are fairly easy to track as it’s an uncommon last name.

I was born in Madison, Wisconsin in 1961 to two brilliant parents. My father holds a PhD in Physics from the University of Wisconsin, where he taught on the Physics faculty and served in high ranking administrative positions (the last being Vice Chancellor for Academic Affairs) until we left in 1977.

My mother majored in Mathematics, which was extremely unusual for a woman of her generation. She had significant course work later in her life toward an MPA, though I cannot recall whether she got a degree. My interest in politics was sparked by her. When I was young (12 or so) she ran for the city council in Madison. We worked like dogs on her campaign. She lost by three votes. But she eventually became chair of Madison’s Parks Commission and then Planning Commission, which made her — as a practical matter — one of the most politically powerful people in Madison. Although we have a lot of longevity in our family, she died in 2008 as a result of a rare cancer.

I got married at what now seems like the absurdly young age of 23. It worked out. Twenty-eight years and five children later, we’re still married.

Sharing my parents’ quantitative bent, I majored in Physics and graduated from Notre Dame in 1983. But I never completely scratched that political itch and I went to law school, which was a lucky break. I attended the University of California, Davis, School of Law and graduated in 1986. I met my wife in law school and I was a law clerk for Anthony M, Kennedy the last year he was a judge on the U.S. Court of Appeals before President Reagan put him on the U.S. Supreme Court.

I practiced law in California, then got into academics, becoming Dean of the Creighton Law School, Vice President for Academic Affairs at Creighton University, and now as a Professor of Law (with an adjunct appointment in the Department of Philosophy) and directing the Werner Institute for Negotiation and Dispute Resolution at Creighton. Creighton is located in Omaha, Nebraska. Although a lot of people don’t know this, I suspect that with Creighton now in the Big East conference for sports that more people will figure this out. Anyway, that’s probably enough about me. There are a few more details about me located on Wikipedia. The link is here. Feel free to edit it, though please respect Wikipedia’s rules about “vandalism” and remember that there are laws about defamation of character.

I probably meet the technical definition of being a “public figure.” My jobs have made me fairly visible. I hold a minor public office in Douglas County, Nebraska. I flirted with running for the open U.S. Senate seat from Nebraska, before deciding to support my friend Shane Osborn. I plan on running for the Nebraska state legislature in 2016.

But having spent several paragraphs talking about me, I now tell you that this blog isn’t about me.

The last few years have reawakened my interest in politics. This may seem odd, because it has been one of the most dreadful eras for United States politics.

However, this blog will be devoted in some substantial part to politics, which brings me to its title: “The Way I See It.” Some of you will recognize this from folk musician Joni Mitchell’s hit “Free Man in Paris.” I picked it in part because I really like Joni Mitchell’s songs. But part of it is to say that this is just the way I see it.

If I had to put my finger on what I think ails our country and public debate in general, it’s that we’ve lost a respect for civil discourse. People don’t do much talking about issues anymore. There’s a lot of shouting past each other. People are more interested in scoring “gotcha” points than trying to solve problems.

As you will learn, I’m conservative. But please don’t mistake that for being closed-minded. I am genuinely interested in other points of view. Although a good deal of Hegelian philosophy doesn’t appeal to me, the notion of “thesis” and “antithesis” leading to “synthesis” contains an important insight. We are smarter collectively than we are individually.

If the first several posts from Pat are any indication, Pat’s blog will be eclectic, thoughtful and fun to read. Just this week, there is a post about a football coach, who is lawyer and a lover of pirates. There is another about two giants in the fields of economics, John Maynard Keynes and Friedrich Hayek.

Pat’s decision to blog is a wonderful holiday gift. I hope a lot of people read what Pat writes. If nothing else, you will be stimulated by the fine prose of good person and a serious, but not pedantic, thinker.


On killing the Oxford comma

Pat Borchers, former Dean of the Creighton Law school, and now Director and Professor of Law at the Werner Institute at Creighton, has alerted me to an important event. These days, Pat thinks a lot about clarity and conflict resolution. In that vein, he writes:

This could top the famous debate that raged in Ann Landers’s column about whether toilet paper should be put on the spindle so that the paper has to be pulled toward the user (so essentially over the top) or down (so essentially from the bottom).  Now I’m an “over the top” man, but I managed to keep my friends who were on other side of the issue.

Quietly, almost as if it was hoped the change would go unnoticed, Oxford has killed the Oxford comma. See here.

Pat explains his happiness at the death of what he sees as an unnecessary appendage and then sharpens our writing horizons this way:

I realize that I am one of the few people who cares about such matters, but I say “hooray.” I recognize that in some circumstances the “Oxford comma” can avoid ambiguities. However, the sentences in which the meaning turns on the comma are likely bad sentences that need to be rewritten. Meanwhile, I continue to attempt to educate people on the difference between “to lie” and “to lay.” “To lie” is the intransitive verb, because there is no recipient of its action. “I lie (not lay!) in bed.” However, “I will lay the book on the nightstand.” (“The book” is the recipient of the action — transitive verbs are sort of like conveyor belts.) I now mention a few other favorites. “Who” is the direct object and “whom” is the indirect. “Who is knocking at the door?” “Whom should I send to the door?” “It’s” is the contraction for “it is.” “It’s time to leave for the movie.” “Its” is the possessive of “it.” “Every dog has its day.” “Who’s” is the contraction of “who is” while “whose” is the possessive of “who.” “Who’s knocking at the door?” “I know whose shoes got left in the front hall.” “That” is the restrictive relative pronoun while “which” is the non-restrictive one. “Was” is the past tense while “were” is the subjunctive mood. “I wish it were (not was!) nicer outside today.” Oh dear, I could go on for a long time. But allow me to say that “please bring me carrots, peas and apples” is equally as clear as “please bring me carrots, peas, and apples” and the former requires one fewer (not less!) characters.

Pat, you are a good friend, but I must end with the central question that you leave unanswered:

Why would you ever ask for carrots and peas and apples when you could instead ask for a burger, a slice of onion, fries and a beer?  


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