Category Archives: Uncategorized

Is Hillary Clinton the U.S. President-Elect?

On this Saturday morning, three days since Hillary Clinton conceded the presidential election:

  • Clinton has a counted vote lead in the nationwide popular vote of about 400,000. That does not matter because, of course, we choose presidents by electors.
  • Each State determines its electors, however, based on the popular vote in the State.
  • Based on current popular vote totals translated into electors, Donald Trump has 290 electoral votes—20 more than the total needed to become president—and Clinton has 228.
  • Two States, Michigan (16 electoral votes) and New Hampshire (4 electoral votes), have not been decided—those vote counts are ongoing.

So how close to completed, or not, are the popular vote counts in States, and especially in the States that are apparently very close and definitely are/will be decisive?

For example, in Pennsylvania (20 electoral votes), awarded to Trump by the media and color-coded maps we’ve all seen, Trump leads by about 69,000 votes out of about 5.8 million cast.  Have all Pennsylvania votes in fact been counted?  If not, will they be?  If so (and if when), is the margin so close that we—Clinton, yes, and also Trump, and also all of the people in the United States—have an interest to recount, to be sure we know who the voters chose?

And also Wisconsin.  Its 10 electoral votes also have been awarded to Trump.  The reported vote margin in Wisconsin is about 27,000 votes, out of more than 2.8 million votes counted.  Have all the Wisconsin votes been counted?  And is the race so close that they should be recounted?

If a majority of voters in Michigan, Pennsylvania, and Wisconsin cast their ballots for Hillary Clinton, she is President-elect, even if New Hampshire voters chose Trump.  Or she should be.

Shouldn’t we figure that out?

Why aren’t people asking these questions?

Election Eves:  A Memory and a Prediction

I remember walking, 36 years ago, through the main gates onto Georgetown University’s campus.  I was a student then, probably carrying too many books.  The day was beautiful—sunny and crisp.  The next day was Election Day.  I could feel, and the press made clear, that voters were deciding late, many out of stoked fears and both grounded concerns (e.g., about economic conditions) and unfounded perceptions (e.g., that the government was doing nothing to free U.S. citizens held hostage in Iran), moving toward what became Ronald Reagan’s victory over President Carter.

This morning I walked through the main gates onto St. John’s University’s campus.  I work there, and I definitely was carrying too many books.  This day is beautiful—sunny and crisp.  Tomorrow is Election Day.  I believe I can feel, and the “press” (now paper plus everything else) is making it clear that a distinct majority of voters is rejecting attempts to stoke fears and voting instead on grounded information and accurate perceptions.

With respect, “Morning in America” was a 1980s slogan that did not describe what happened too much to too many Americans in that decade.

Today is a brighter morning in America, as the past eight years generally have been.  And I look forward to tomorrow’s morning, and even more to Wednesday’s.

A Word Against Smearing Supreme Court Justices

Gabe Roth of the advocacy group Fix the Court published an Op-Ed essay, “The Supreme Court Is Being Hypocritical,” in today’s New York Times.  He points to factual circumstances in various cases that the U.S. Supreme Court has decided recently or is considering.  He argues that these facts and the concerns they raise (in his mind) apply not just to the litigants in those cases, but to the Justices too.

Mr. Roth calls these cases the Court’s “self-referential docket,” but really he’s criticizing what he sees as the Justices’ failures to reference themselves.  He wants the Justices to see ethical issues in their own behaviors and, in response, to promulgate new rules to address them, and to behave in ways that he thinks would be ethically better.

Alas, his list of particulars is flawed.  To wit:

  • Yes, Elena Kagan was Solicitor General of the U.S. before her appointment to the Court. But she did not “surely” have significant involvement as S.G. in Affordable Care Act cases.  In fact, it is well-documented that she avoided them, perhaps because her judicial appointment was already impending when those cases began.
  • Yes, Justices and their family members do own stocks (as many, many people do, directly or at least indirectly). But the ideas that Justice Stephen Breyer or Chief Justice John Roberts—each rich beyond the point of having financial needs or concerns, by the way—cast votes in Supreme Court cases so as to raise their stock share prices is just outrageous.  And so is the idea that Breyer, Roberts, or Justice Samuel Alito, or any justice, will cast a vote in a pending insider trading case so as to move financial markets in the justice’s favor.
  • Yes, the Supreme Court has not recently taken a case to review the constitutionality of a law banning certain protests on the plaza in front of the Court building. And yes, the Court in 2014 unanimously invalidated a state law barring protesters within 35 feet of abortion clinics (McCullen v. Coakley).  But Roth’s implication that judicial self-interest explains these differing legal outcomes oversimplifies matters, vastly—as reading various Supreme Court and lower court decisions on these and other “buffer zone”/speech restriction laws will quickly demonstrate.
  • Yes, Justice Sandra Day O’Connor wrote for the Court, when it upheld Missouri’s age 70 mandatory retirement rule for its judges, that “physical and mental capacity sometimes diminish with age.” (No kidding.)  And yes, Justice Antonin Scalia died last winter just before his 80th birthday, and Justice Anthony Kennedy recently celebrated his 80th.  And Roth’s point?  The idea that any Justices is forgetting his or her age and not monitoring his or her capacities is absurd.  The implication that Justice Scalia had become too infirm to serve, or that any Justice now is, is insulting because it is refuted by their performances on the bench, which occur in public and then are preserved on audio tape, and in their written opinions.

Mr. Roth’s bad examples only weaken his meritorious arguments.  Yes, the Court/the Justices could do much more to advance Court transparency and thus public appreciation for its performance.  For instance, filming oral arguments and then making those films publicly available, routinely but perhaps after an interval of time, would improve public education without affecting much how the Court does its work.

It only sets back public discourse, and it probably makes the Justices less receptive to sound reform proposals, to claim falsely that the Court is broken.

“He’s Been Shot. HELP Him!”

I assume that when a police officer comes upon an injured, and especially a gravely injured, person, the officer typically calls for medical help (EMS) and then, while waiting for its arrival, provides whatever first aid and comfort the officer can.

This seems not to be happening in instances where the person has been injured by the police—and to be specific, where the person has been shot by the police.  This New York Times story chronicles a number of incidents, captured on publicly-released video, where recent police shootings have been followed by groups of officers standing around, just looking at the shot, often dying, person.

Many things might cause this inaction.  At the threshold, some situations and settings might be actively dangerous—a shot person is not automatically safe to approach or to touch.  Some officers, especially shooters, might also be in a kind of shock, frozen in the moment.  Some officers, not knowing much first aid, might feel unqualified to do anything.  Some shooting victims are, possibly, so obviously “gone” that nothing will aid them.  But some police inaction might be based in callousness, and in failures of trainers and commanders to encourage, direct and build human empathy.

We—society, and every police chief, and every individual officer—need to fix this.  Policing, properly done, is about law enforcement.  But it also is about caring for the community, and each person among us.  We recognize this in our constitutional law:  the Fourth Amendment prohibits unreasonable searches and seizures, including touching and handling persons, but it is objectively reasonable for police officers to engage in searches and seizures when they are trying to help an injured person.  (See Chief Justice Roberts’s 2006 opinion for the unanimous Supreme Court in Brigham City v. Stuart.)

Yes, it can be constitutionally reasonable for the police to seize a person by, for valid reasons, shooting him or her—that is the lawful use of deadly force.  But even after a lawful seizure of a person, the government may not arbitrarily cause suffering.  (Think of a convicted criminal lawfully incarcerated.  The government has seized him.  But it may not then torture him or, without reason, deny him basic attention, care and sustenance.)

I have never come upon a shooting victim.  But I have seen injuries, and I have been injured—as you have too.  As a bystander, I’ve tried to help—to perform modest first aid, to speak words of comfort, to stay at the side of the person in pain.  As a victim, I’ve received the first aid, the kind words, the held hand, and I’ve been grateful.  It seems a basic thing that makes our world decent.

Our cops—our community caretakers—should jump in to care for injured people as much, as often, as reflexively, as they jump into situations to enforce our laws.  I believe that this instinct is already in most cops as people, or it was.  It should be reignited, trained, encouraged, rewarded, applauded.

Every victim of violence is a person whom the police have, commendably, sworn to protect.

Remanded … NOT to Judge Randa

From 2012 until 2014, Billy Robinson, Jr., was part of a criminal conspiracy that bought heroin in Chicago, transported it north into Wisconsin, and sold it in Milwaukee.  The conspirators ultimately were arrested and, in time, Robinson pleaded guilty in federal court to two charges of traveling in interstate commerce to facilitate heroin distribution.

Robinson’s case was assigned to the Honorable Rudolph T. Randa, then a judge in active service on the United States District Court for the Eastern District of Wisconsin. (For his biography, click here.)  Judge Randa accepted Robinson’s guilty plea and sentenced him to 84 months’ imprisonment.

The legal problem in the case arose with Judge Randa’s comments at Robinson’s sentencing hearing.  Before imposing the sentence, Judge Randa offered various remarks on urban decay; how Robinson’s Milwaukee neighborhood had changed from one of safety in the early 1960s, when Randa knew it as a college student, to an unsafe neighborhood today; how Milwaukee riots in 1967 resembled recent Baltimore protests against police brutality; how 1967 anti-Vietnam War protests in Milwaukee had impeded Randa’s deployment to military service; how the “real problem” is that Robinson has five children by four different mothers; and so on.

Robinson appealed the legality of his sentence.  He argued that Judge Randa’s comments make it impossible to determine whether he sentenced Robinson based on the relevant criteria specified in federal law.

Last week, a panel of the U.S. Court of Appeals for the Seventh Circuit agreed with Robinson.  Chief Judge Diane P. Wood, on behalf of a three-judge panel, wrote that Judge Randa’s “comments during the sentencing strayed so far from the record that [the court of appeals] cannot trace the (legitimate) reasons for Robinson’s sentence….”  (For the whole opinion, forceful in its brevity and understated tone, click here.  The opinion does not, alas, reproduce the full transcript of Judge Randa’s comments before he sentenced Robinson.)

To correct Judge Randa’s error, the Court of Appeals vacated Robinson’s sentence and sent the case back for resentencing.

And, wrote Chief Judge Wood in her opinion’s final sentence, “Circuit Rule 36 shall apply on remand.”

That cryptic statement was an act of judicial kindness to Judge Randa.  Rule 36 (click here) empowers the Court of Appeals, when remanding a matter to a trial court, to reassign it to a new judge.  Chief Judge Wood’s final sentence, which could well have used Judge Randa’s name or at least explained exactly what was being ordered, means that Robinson’s case must be reassigned from Judge Randa to another judge, and not returned to Judge Randa, for resentencing.

As the Court of Appeals surely knows, Judge Randa recently took senior status (semi-retirement).  As part of that move, it seems, at least according to press from last winter (e.g., click here), that he is electing not to hear new criminal matters.

But Robinson’s case is, for Judge Randa, old business.  If the Court of Appeals had not ordered that Rule 36 would apply, the case would have come back to him.  Now, no matter his preference, it cannot.

RIP, David Margolis

Margolis

“Career federal prosecutor,” a phrase that appears in many discussions of crime, justice and law enforcement issues, is a hefty credential.  It refers to someone who was hired by the United States Department of Justice as a young or young-ish lawyer, who then, over many years, worked and was promoted up the line, assigned to and in time handling numerous, increasingly complicated, often controversial, investigations, trials, appeals, and other federal criminal law matters.

Career federal prosecutors are distinguished—descriptively, if in fact not much in their skills, honesty and dedication—from DOJ political appointees, who are appointed and selected by presidential election winners and their nominees, and who often have political party identities and stay in office only as long as their party’s president holds office.  (And “career” prosecutors are also distinguished from non-political appointees who serve as prosecutors for a while but then move on to other employment.)

David Margolis, who just died at age 76, was the quintessential career federal prosecutor.  He worked in the Department of Justice for more than 50 years.  He saw it all and did it all.  He worked closely with and was revered by hundreds, maybe thousands, of DOJ colleagues (I was once one) and others across law enforcement and other government agencies.  He worked well with political appointees from both parties.  They valued his law-smarts, his life-knowledge, and his justice-wisdom; his guidance and criticisms; his guff and his praise; his toughness and courage.  He helped all of them to stand up and perform their responsibilities, as he took the load, and sometimes the heat, of performing his own.

Margolis stories and lessons are and will be, and should be, many.  A personal one is his “death” (heart stoppage) twenty years ago in his DOJ office, and then the miracle of his fall to the floor restarting his heart—Jim McGee & Brian Duffy described that, and a lot of David’s work, in their 1996 book Main Justice.

More of David is captured in this 2011 profile in the Brown University (his alma mater) alumni magazine, and in this Washington Post profile one year ago.

And here are the statements issued today, at this sad moment, by Attorney General Lynch and Deputy Attorney General Yates.

David Margolis, a great guy in addition to being a skilled lawyer, handled big public responsibilities. He worked forward, from matter to matter, giving each his best, usually doing excellent work, maybe sometimes screwing up, staying honest and apolitical, and showing up the next day to give Justice everything he had.

I hope that public service, and especially federal prosecution, continues to see his likes.

Robert B. von Mehren (1922-2016)

Robert Brandt von Mehren, one of New York’s and the nation’s leading lawyers, especially in the field of arbitration, died on May 5th at age 93.  He was a retired partner in the Debevoise & Plimpton law firm, a Manhattan and Martha’s Vineyard resident, and a man of brilliance and, I found, charm and kindness.

In recent years, I spoke and emailed a few times with Mr. von Mehren as I was researching and writing an essay, “No College, No Prior Clerkship,” on James M. Marsh, Justice Robert H. Jackson’s 1947-1949 law clerk at the U.S. Supreme Court.  (Click here for an abstract of the essay, and click here to buy the new book, Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices, in which my essay appears along with many strong pieces and a range of fascinating material.)

I contacted Mr. von Mehren because he was a cameo player in the process by which Justice Jackson hired Jim Marsh.

In 1946, von Mehren was clerking for Judge Learned Hand at the United States Court of Appeals for the Second Circuit.  Prior to that, as a Harvard Law School student, von Mehren compiled a tremendous academic record, including serving as president of the Harvard Law Review.  Unbeknownst to von Mehren, someone—probably Jackson’s incumbent law clerk, Murray Gartner, himself a former Harvard Law Review president—had flagged von Mehren for Jackson’s consideration to be Gartner’s successor as Jackson’s law clerk.  Jackson was (properly) very impressed with von Mehren’s credentials, but in the end Jackson ranked von Mehren second to Marsh and hired him.

This all was news, and interesting, to Mr. von Mehren.  He told me that he never applied to or interviewed with Jackson.

It all worked out.  Justice Stanley Reed hired von Mehren to be his law clerk in that Supreme Court year (October Term 1947).  As Reed’s clerk, von Mehren got to see Justice Jackson and all of the Justices of that era (Vinson, Black, Frankfurter, Douglas, Murphy, Rutledge and Burton were the others) in action.  And von Mehren got to know and like Jackson’s clerk, Jim Marsh.

Justice Reed law clerk Robert von Mehren O.T. 1947

Von Mehren during his clerkship

with Justice Reed

Von Mehren’s path was a notable rise from remote beginnings.  He and his identical twin brother Arthur were born in Albert Lea, a city in southern Minnesota, in August 1922.  The boys grew up fluent in English, of course, and in Danish and Norwegian (hat tip:  Daniel R. Coquillette).  (Ninety-two years later, I could hear a trace of that—Robert pronounced his name “fun-MAY-won” in a soft European accent).

In high school, Robert won a scholarship to Yale University, from which he graduated summa cum laude.  At Harvard Law School, he graduated magna cum laude.  After clerking for the great Judge Hand and for the very capable Justice Reed, he became associated with Debevoise, his professional home for most of his career.  (Luckily, because it’s more and worthy information, his law firm webpage is still “up”—click here.)

(And Arthur?  He attended Harvard University and then, with Robert, Harvard Law School.  He also earned a Harvard Ph.D. in Government, joined the Harvard Law School faculty, and became one of its giants—click here for one memorial and here for one obituary following his death in 2006.)

For more on Robert von Mehren’s accomplished and full life, click here and here.

May he rest in peace.

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President Bush’s 1990 Appointment of Justice David Souter

A blog post by Anton Piatigorsky caught my eye.  It repeats, in part, the fairly widespread belief that when Justice William J. Brennan, a leading, long-serving liberal justice, retired from the Supreme Court in 1990, President George H.W. Bush looked to replace Brennan with a stealth arch-conservative.  Former Governor John Sununu, from New Hampshire and then Bush’s White House chief of staff, has said as much.  And, the belief continues, the eventual Bush nominee, then-Judge David Souter, also of New Hampshire, turned out to be a huge disappointment if not a traitor to how he presented himself to the president and why he (Souter) was nominated.

I don’t think that holds up.  For example, I don’t think that President Bush ever said that that’s what he sought in Souter.  I also don’t think that there is evidence that that is the vetting and assessment of Souter that occurred at the president’s level.

What Bush was seeking was, by all accounts, a problem-free, no paper trail, quality, Republican-type nominee—who, yes, as a replacement for Justice Brennan, almost by definition had the potential to shift the Supreme Court rightward.

Tinsley Yarborough describes in his biography of Justice Souter (click here) how Sen. Warren Rudman of New Hampshire, Souter’s old boss and close friend and also a friend to Sununu and President Bush, was Souter’s principal recommender and really the cause of his nomination.  Sen. Rudman was a Republican but not of the slash/burn type; in fact, in many instances he was quite moderate and non-partisan.

Bush Rudman Souter

As Yarborough recounts, Rudman suggested the Souter nomination to Sununu and Bush and it all rolled quickly from there, including that no one ever vetted Souter for or had a basis to determine that he would be the determined anti-Brennan.  Based on the historical record (such as we can see it), while many on the farther right were disappointed in the jurist that Justice Souter turned out to be, I’m skeptical that President Bush is or that the late Senator Rudman was in that group.  And I’m very skeptical that they would have a basis, given how Souter was vetted and picked, to feel that way.

In picking Justice Souter, President Bush went for huge smarts, relevant experience and no paper trail.  He wanted a problem-free nominee and he got him.  Bush never asked litmus test questions—which Souter would have refused to answer anyway.

Please get her to the polls!

Here is a CNN report on Clarina (“Mimi”) Hudon of Manchester, New Hampshire.  Born in 1905, she now is age 110.  She is believed to be the oldest person in the state.

If Mrs. Hudon had been born a little earlier, she would not have been able to vote when she reached adulthood. But when she was fifteen years old, the 19th Amendment to the U.S. Constitution, giving women the vote, was ratified.  In 1928, she voted in her first presidential election, casting her vote for the Democrat, New York governor Al Smith.

Mrs. Hudon knows of Hillary Clinton.  And now she’s heard of Bernie Sanders.

Some New Hampshire official should make it possible for her to vote next Tuesday, for one of them or for whomever.

What Did/Would Chief Justice Rehnquist Think of Ted Cruz?

Ted Cruz, after great success as a Harvard Law School student, became a law clerk to two federal judges.  During 1995-1996, Cruz was a clerk to Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit.  During 1996-1997, Cruz clerked at the U.S. Supreme Court for the Chief Justice, William H. Rehnquist.

rehnquisttedcruz

It’s of course Ouija Board stuff to wonder what Chief Justice Rehnquist would think today about Senator Cruz as he runs for president.  Rehnquist died in September 2005, when Cruz was the appointed Solicitor General of Texas.  He argued cases regularly, skillfully before the Rehnquist Court.  But I think that no one then was imagining Ted Cruz as a serious presidential candidate, or at least not the one that he is now in his speeches, debates and issue positions.

As a starting point, what did Chief Justice Rehnquist think about Ted Cruz as a person, in his clerkship year and thereafter?

Some might have direct knowledge, but that has not been shared.

Some indications might exist on paper or other media, but they have not surfaced.

Some who knew Rehnquist well could venture their educated guesses, but I don’t know that any has.

I knew Chief Justice Rehnquist only a little bit.  I interviewed and interacted with the Chief Justice a couple of times in 2003, when he generously met with me to discuss Justice Robert H. Jackson, whom Rehnquist had served as a Supreme Court law clerk during 1952-1953.

My guess is that the Chief Justice Rehnquist I met would not have thought well of the Ted Cruz now running for president.  Rehnquist in 2003 was too many things that Cruz seems not to be.  Rehnquist was mellow, relaxed and not judgmental.  He was reflective, including about himself as a law clerk and later.  He had some strong views, of course, but he laughed at extreme partisanship and made fun people who demonized others.  He was kindly.

I suspect that Ted Cruz knows that his candidate persona today is not the late-life Rehnquist type (and maybe that he was not a beloved Rehnquist law clerk).  The evidence is Cruz’s understanding of the Chief he does not resemble—Rehnquist was, Cruz wrote in his memoir last year (click here for an excerpt on his Rehnquist clerkship), “very much a Midwesterner.  He was polite, low-key and modest.”

Chief Justice Rehnquist loved to make small bets, including on politics.  I bet that Rehnquist wouldn’t hesitate to vote against Ted Cruz in a 2016 Republican primary.  I think that Rehnquist would agonize a bit about Jeb Bush, and then he’d vote for John Kasich.