Today In Wyoming's History: U.S. Supreme Court upholds the 1978 Indian Child Welfare Act.

Today In Wyoming's History: U.S. Supreme Court upholds the 1978 Indian Child W...: 

U.S. Supreme Court upholds the 1978 Indian Child Welfare Act.

The United States Supreme Court, contrary to many expectations, including many in the legislature, upheld today the 1978 Indian Child Welfare Act.

Oklahoma County Courthouse, Oklahoma City, Oklahoma.

This impressive art deco courthouse was built in 1937 and serves Oklahoma County, Oklahoma.  Apparently it was loosely inspired by Mayan temples, which is unusual.

It was a Great Depression works project.

Supreme Court Dobb's Decision Leaker remains a mystery.

The U.S. Supreme Court concluded its investigation of the leak of the draft Dobb's decision with no determination as to who the leaker was.

Be that as it may, like most such events, the furor seems to have passed.

Governor Gordon Orders Flags Be Flown at Half-Staff Statewide Immediately in Honor of Former Wyoming Supreme Court Chief Justice Richard Macy

 

Governor Gordon Orders Flags Be Flown at Half-Staff Statewide Immediately in Honor of Former Wyoming Supreme Court Chief Justice Richard Macy

 

CHEYENNE, Wyo. - Governor Mark Gordon has ordered both the U.S. and State of Wyoming flags to fly at half-staff statewide today, January 4 until sundown on Tuesday, January 10 in honor and memory of Wyoming Supreme Court Justice Richard Macy. Macy served on the Wyoming Supreme Court from 1985 until his retirement in 2000, and served as Chief Justice from 1992 through 1994. 

Both flags should remain at half-staff until sundown on the day interment, Tuesday, January 10.

--END--

---

2022 Year-End Report on the Federal Judiciary

 2022 Year-End Report on the Federal Judiciary

Proposed Amendment B to the Wyoming Constitution Defeated.

Courthouses of the West: Vote No on the Proposed Amendment B to the Wyoming...: Let's get political for a second. Oh no, you are likely thinking, isn't this blog dedicated to architecture and the like? Sure, it c...

Apparently, my view was held by a large number of Wyoming voters. This went down in defeat by a fairly significant margin.  Not just failed to meet the threshold, but just was outright defeated. 

Vote No on the Proposed Amendment B to the Wyoming Constitution.

Let's get political for a second.

Oh no, you are likely thinking, isn't this blog dedicated to architecture and the like? Sure, it crosses over into the law itself, from time to time, but . . . 

Well, yes, we're departing from our normal programming to bring you this public service announcement.

And in doing so, I'll note, I'm typing this just a couple of days out of the hospital, too beat up from surgery to go back into the office yet.  

More on that later.

On November 8th when you go to the polls, you will be voting on Constitutional Amendment B, which would increase the mandatory retirement age of Wyoming Supreme Court justices and District Court judges from 70 to 75.  Circuit Court judges are not subject to a mandatory retirement age, oddly.

The Wyoming State Bar doesn't have an official position on it, but it's pretty clear that its unofficial position is vote yes.  The Chief Justice of the Wyoming Supreme Court, who can openly come out on such matters, has, and her position is yes.

Vote No.

First, let's look at some material just released by the Wyoming State Bar.

Okay, there you have it.

Now, before we go on, let's note that the average Wyomingite is 38 years old, and that Wyoming is an "old" state.  So, even as a state whose population is routinely analyzed as getting older and older, it's still less than 40 years of age.

Keep that in mind.

So the arguments in favor of raising the judicial retirement age?  Well, as we all know, all Americans live free of bodily defect brought on by age, illness, or decline in mental faculties until they're 102 years old.

Right?

Not hardly.

Back the above reference to the hospital

This was my view for the last week.  It's a view of the mountain, between the parking garage and an administrative building belonging to the hospital.

I took the photo from here.

I'm out now.

I was in as I had a robotic right colectomy.  In other words, I had a large (very large) polyp in my large intestine that had to be removed.  I learned this was there when I went in for a colonoscopy. This was the following surgery.

This turned out to be a bigger deal. . . a much bigger deal, than I wanted to admit it was.  In my mind, I wanted to pretend that it would be in and out, or at least I'd be out by Friday.  Nope.  I did get out on Saturday, but I'm feeling rather beat up, and it's clear that it's going to take several days to get back to normal.

Army with two IV hookups.  I had two, as I was so dehydrated when I came in, they had a very difficult time finding my veins.

I am on the mend now, however.

I ignored the current advice, which is to go in for a scope at age 50.  You really should, and my failure to do so caused me to end up with this, probably. If I hadn't had this, I probably would have died from this right about the same time my father died from something sort of related, if not perfectly related.  So my life has probably been extended by modern medicine, just like the State Bar notes has generally been the case society wide.

So the State Bar is right, right?

Well, only so far as people now "live longer" as things like colon cancer don't go undetected as much as they once did, so people tend not to die of them. We don't even think of death's like that as natural deaths, whereas at one time, we pretty much did. There's a reason, after all, that in the Middle Ages people prayed for "good deaths".  Dying from colon cancer isn't a good death.

But living a "long", by historical standards, life doesn't mean living one free of deterioration of some sort.  It's been often noted that in recent decades the incidents of dementia have been increasing, with seemingly little public understanding that the reason for this is tied directly to longer lives.  Probably the incidents of cirrhosis of the liver have increased markedly since the Middle Ages as well, in spite of the huge amount of alcohol consumed at the time, for the simple fact that if you die when you are 40 years old you aren't likely to die by that means, in spite of your diet, as compared to its impact as you age past that point.  Lavran is well portrayed as aged at the time of his death in Kristin Lavransdatter when he's probably not even 50, or just over it.  Kristin is probably right about 50 when she dies.  The book is a fictional work, of course, but an extraordinarily well researched novel. It catches that earlier era well.

Put another way, by extending the retirement ages of lawyers up, we're guaranteeing that the percentage of them that experience mental decline while in office also goes up.  There's no doubt about it.

We're also guaranteeing that the average age of jurists will incline upwards, and their years on the bench will extend.

I've already noted that the median age in Wyoming is 38 years old.  Anyone in business of any kind knows that the post Baby Boom generations, Gen, X, Gen Y, the Millennials, and Generation Jones, do not have the same views and attitudes that Baby Boomers do.  For some period of time, Boomers expressed some contempt of that fact in regard to younger generations, and in more recent years younger generations have expressed contempt back.  Perhaps missed in all of this is that younger generations have had a much harder time with much more limited resources than the Boomers have, with that generation being the most privileged in American history.  This is not to pit one generation against another, but rather to point out that a person presiding in judgement over another ought to at least have some appreciation of where that younger person is coming from and what their experiences have been.

Indeed, here's where the points made by the Bar's information sheet actually cut the other way.  It notes:

By 2030, 9.5% of the civilian labor force is projected to be older than 65.

Citing for authority, the following:

Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, Number of people 75 and older in the labor force is expected to grow 96.5 percent by 2030 at https://www.bls.gov/opub/ted/2021/number-of-people-75-and-older-in-the-labor-force-is-expected-to-grow-96-5-percent-by-2030.htm (visited June 06, 2022).

We'd note at first, that's not necessarily a good thing.  That we've now returned to a condition in which the elderly have to keep working isn't a sign of a healthy economic environment, bur rather potentially the opposite. The population of the elderly working increasing society wide may mean they have to, not that they want to.  

And beyond that, these are figures for the US as a whole, not Wyoming in particular.

Be that as it may, even on its face, it means that over 90% of the workforce, is age 65 or younger.

The Bar's sheet also unintentionally pointed out by something additionally cuts the other way:

Mandatory judicial retirement at age 70 has resulted in the loss of many eminently qualified Justices and Judges in Wyoming, including Justice Michael K. Davis, Justice Michael Golden, Judge Timothy Day, and Judge Thomas Sullins to name a few. If the mandatory retirement age were extended, not only could these members of the judiciary continue to meaningfully contribute to the law in Wyoming, longer service would also result in a net savings for the State.

First of all, these individuals were not "lost", they're all still living.   While not mentioned in this list (which must be sort of deflating to them), I can easily think of four retired judges who are now mediators and arbitrators, at least one of whom is heavily called upon in that role. So, rather than losing them, we simply employed them, or they chose to employ themselves, in another role.

Additionally, each one of these jurists had a seat which was not abandoned, but occupied by a younger lawyer.  At least one of the individuals mentioned retired years ago, and his replacement is now long serving.  Why are we suggesting that he's some sort of flop?  That is exactly, however, what this suggests, untrue though it would be.

Additionally, like to say, of course, that we're a nation of laws, not of men, but those laws are filtered through the experiences and eyes of men, no matter how a person might wish to believe it.  The economic concerns, for example, of average Americans in their late 20s in the 2020s, who push marriage off for financial considerations, who have lived with their parents longer than any generation since World War Two, and whose attachment to careers are less stable, as the careers themselves are less stable, are considerably different than those for people who came of age in the 70s, when simply having a college degree meant while collar employment.

Experience, of course, counts, as we often here, but so does over experience.  Staying in a place, including an occupation, too long will bring about some sort of stagnation.  This is true in all things.  Spots coaching, where a sort of rough rule of the jungle applies, provides an interesting example. Like the law, the occupation exist geared toward producing a definitive result, so perhaps it's analogous in more ways than one.

In the NFL, for example, the same being an institution which Americans regard as sacrosanct, the two oldest coaches are 70 years of age, before the ages all drop down to less than 65.  The tenth-oldest coach is only 54.  Only one MLB manager is over 70 years of age.  The oldest NBA coach is 73, but in second position is one that's 65.

Another example might be the military, with it sometimes being noted that some aspects of the law are in fact substitutes for private warfare.  For officers, the most analogous group, the following is provided:

CHAPTER 63—RETIREMENT FOR AGE

Sec.1251.Age 62: regular commissioned officers in grades below general and flag officer grades; exceptions. 

1252.Age 64: permanent professors at academies. 

1253.Age 64: regular commissioned officers in general and flag officer grades; exception. 

1263.Age 62: warrant officers..

62 years of age, with exceptions up to 64.

Finally, we might also wish to note, the cost of passing this amendment is opportunity costs, in terms of lost opportunities, for the profession.  Recent appointees to the bench have been relatively young, often being in their 40s if in their 40s.  These individuals will already occupy these positions for up to three decades, meaning that they will fill them to the exclusion of other, also qualified, individuals.  While some may be great judges, we can never hope for that, and if most judges are adequate judges we are doing well.  What we do know, however, is that some great judges will never get to be that, as their chance will be taken up by the aged.  Lawyers who in their late 40s and early 50s still have a chance of being judges will lose that chance as occupants of the bench stay on, with everyone knowing that no matter how respected a lawyer may be, nobody is going to choose them for a judicial position after they are in their late 50s.

The one and only reason, therefore, to pass this amendment is the cost savings one noted by the State Bar, but that's a bad reason.  It reduces this, like so many other things in American life, to dollars and cents to serve economic interests alone.  The logical extension of it is simply to discourage retirement in general, something the larger American society in fact already does.

Vote no on Amendment B.

Laramie, Albany County, Wyoming. First "Woman Jury" Memorial.

Memorial, MKTH photograph.

Accurate information on this event is actually fairly difficult to find.   The trial was the First Degree Murder trial of Andrew W. Howie.  The prosecutor, Albany County Attorney Stephen Downey, had only been in that role for a few months and objected to the women being seated as jurors, but was overruled by the Court, which held that as women had been granted the franchise in Wyoming, they also had the right to sit in juries.  Downey's objection was based on social convention, rather than the law.

Contrary to the way it is sometimes recounted, the jury was not all female, but half male and half female, with six women jurors.  It returned a verdict finding Mr. Howie guilty of manslaughter, which must have been included as a lessor offense in the charges.  The trial convinced Downey who in turn became a champion of women's suffrage.

This memorial is not at the Albany County Courthouse, but at the downtown railroad park.  Judicial proceedings in Laramie were originally held in a store at that location.

(Photo and reasearch by MKTH).

2022 United States Supreme Court Watch

This June/July promises to be one in which a whole boatload of major rulings are set to be handed down.

Given that, while we've never had a trailing thread of any kind here before, we're going to track a few of the bigger ones this year.

June 23, 2022

The first of the claims that will be big and controversial.

In 6-3 ruling, court strikes down New York’s concealed-carry law

Here's the text:

New York State Rifle & Pistol Association v. Bruen.

Note, this opinion, combined with the descent, is of epic length.

I haven't reviewed this fully, but apparently what it holds is that a state can't require a party wishing to carry concealed, or just to carry, to prove a particular need to do so.

June 24, 2022

The Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Clinic.

The decision was, quite frankly, way overdue.

June 27, 2022

From last week, the Court held that you cannot sue for Miranda rights violations in Vega v. Tekoh.

This has no criminal law implications.

In Kennedy v. Bremmerton School District, the Court ruled that a coach praying on the football field after games was not a violation of the Establishment Clause.

June 30, 2022

Justices reinstate Louisiana voting map that is being challenged under Voting Rights Act

Supreme Court curtails EPA’s authority to fight climate change

Divided court allows Biden to end Trump’s “remain in Mexico” asylum policy

Denver County Courthouse, Denver Colorado.

This is the Denver County Courthouse, which houses the district, county and city courts in Denver, Colorado.

 

The downtown courthouse was built in 1902 and is a very impressive structure.  

Justice Ketanji Brown Jackson Confirmed by Senate

I should have noted this when it occurred, but it seemed sort of anticlimactic at the time and there was a lot going on, so I failed to note it. 

Also, I don't have a good picture to put up as, unusually, Justice Jackson lacks a public domain photo that I can find, in spite of being an appellate court judge prior to being confirmed for the U.S. Supreme Court.

As widely noted, the confirmation is historic as she's the first African American woman appointed to the U.S. Supreme Court.  It's presumed that she's liberal to moderately liberal in her judicial views.  Her confirmation hearings turned out to be oddly contentious on odd issues, unfairly focusing on her role as a public defender, whose job after all is to defend the accused, and on sentencing as a district court judge that largely matches the Federal norm.  Indeed, the hearings focused attention on how political such appointments now are, in the view of Senators, something we'll presumably live with for a long time.

Courthouses of the West: Jackson Hearing Concludes.

Since this post from this morning:

Jackson Hearing Concludes.

Courthouses of the West: News of the Supreme Court. Day three of the Jacks...:   The Jackson hearings: Key moments from Day 3 and Court remains silent on Thomas’ condition after he entered the hospital last week I have ...

These hearings are now concluded, and Judge Jackson will be confirmed.

Senate Minority Leader Mitch McConnell indicated that he would not vote to confirm Judge Jackson. Republican votes are not needed for this, due to the removal of the filibuster provisions for Supreme Court nominations back during the last period in which the Democrats controlled the Senate, so barring something spectacularly bizarre, confirmation is assured.

I'll confess that, as previously noted, unlike the norm, I never got into the confirmation hearings.  Usually I do in fact follow them, but I just didn't.  I picked up bits and pieces of the news on them, including Ted Cruz reading from a children's book, and a question on if the Judge could define what a woman is, but as the news all came out of context, I frankly haven't paid much attention to it.

Senator Manchin has announced that he is supporting Judge Jackson.  This means that she shall be joining the Court.

Jackson Hearing Concludes.

Courthouses of the West: News of the Supreme Court. Day three of the Jacks...:   The Jackson hearings: Key moments from Day 3 and Court remains silent on Thomas’ condition after he entered the hospital last week I have ...

These hearings are now concluded, and Judge Jackson will be confirmed.

Senate Minority Leader Mitch McConnell indicated that he would not vote to confirm Judge Jackson. Republican votes are not needed for this, due to the removal of the filibuster provisions for Supreme Court nominations back during the last period in which the Democrats controlled the Senate, so barring something spectacularly bizarre, confirmation is assured.

I'll confess that, as previously noted, unlike the norm, I never got into the confirmation hearings.  Usually I do in fact follow them, but I just didn't.  I picked up bits and pieces of the news on them, including Ted Cruz reading from a children's book, and a question on if the Judge could define what a woman is, but as the news all came out of context, I frankly haven't paid much attention to it.

News of the Supreme Court. Day three of the Jackson Hearings and Silence on Justice Thomas

 The Jackson hearings: Key moments from Day 3

and

Court remains silent on Thomas’ condition after he entered the hospital last week

I have to admit that for some reason I've found myself oddly disinterested in these stories.  I have no idea why, but I haven't really been following either, when normally I would.

Not be grim, but given the second story, both have the chance to become momentous events.

Lex Anteinternet: Biden Nominates Kentaji Brown Jackson to the United States Supreme Court

Lex Anteinternet: Biden Nominates Kentaji Brown Jackson to the Unite...:   

Biden Nominates Kentaji Brown Jackson to the United States Supreme Court

 

Jackson with Justice Breyer, whom she is nominated to replace.

She's no doubt qualified and is a sitting DC Circuit Federal Appeals Court Judge, but I'll admit I'm disappointed.  Jackson is a Harvard Law graduate, making the Ivy League grip on the court seemingly irreversible.  She's also married to another Harvard graduate, a surgeon, who is of the Boston Brahmin class.

I was hoping for a less Ivy League nominee

She's likely to pass, however, the Senate Judiciary Committee and receive enough votes to be seated, an important consideration for any nominee is this highly polarized era.

Justice Stephen Breyer To Retire.

Just when you thought the news wasn't tense enough. . . Russians looming over Ukraine. . . PRC looming over Taiwan. . . the mid term election. . . a baseball lockout. . . 

Justice Stephen Breyer decides to retire.

Uff.

Well, off to a titanic nomination spat with a 50/50 divided Senate.

The filibuster, however, won't apply, so the Democrats, assuming they can all agree on the replacement nominee, will get somebody in.  They key will be satisfying the moderate Democrats, although they are few in number.

Breyer, a 1964 Harvard law graduate, was appointed to the Court by Bill Clinton in 1994.  He was principally a government attorney early in his career before becoming a Harvard professor in 1967, although he took time out from that pursuit to engage in government service from time to time, including serving as a Watergate prosecutor.  He was an expert on administrative law.  He went on the bench in 1980.

Breyer had one of those legal careers that's both enviable and deceptive.  Undoubtedly highly intelligent, he actually practiced real law very little, spending no time whatsoever in private practice and the most of his career in academia or on the bench.  Of some slight interest, in his early legal career, 1964 and 1965, he was completing eight years in the Army Reserve, from which he left as a corporal.

Beyer, who is 83, has been under enormous pressure to retire due to Democratic fears that if he does not do so prior to the November election and should then pass away, certain a possibility at his advanced age, his replacement would not get through a Republican Senate or would be nominated by a Republican President.

2021 Reflections. The Legal Edition

This blog has been so slow that a person would be justified in believing its a dead blog.

It isn't, it has COVID 19.

Allow me to explain 

It was already the case that 2019 was an odd year, legal wife, for the journalist here.  The reason for that was that my schedule was such that I did very little traveling.  The last new courthouse (keeping in mind that I don't take photos of courthouses I've already taken, was in Fallon County, Montana.

Fallon County Courthouse, Baker Montana

There's no way on Earth when I took those that I anticipated there wouldn't be any new courthouses appearing later that year.  

And yet there were not.

2020 would have been different, but in late 2019 the news that a new disease was loose in Asia hit.  By January, there were pretty clear signs that something was frightening about it.

January is, of course, Tet, or similar holidays in Asia.  I.e, the Lunar New Year.  It's a big deal and in spite of the imposition of Communism on Asian societies, they still celebrate it.  The Lunar New Year caused Asians to travel all over their own countries and all over the globe.  Easter and Christmas do the same in the West.  The combined impacts of all those holidays sent people moving all over, and the disease was soon global.  Living through it at the time, it seemed to hit Italy first, but who really knows.  

Anyhow, by March things were shutting down.  Trials I had scheduled that summer were cancelled. Courts shuttered their doors.

And Zoom came in.

Now, in January 2022 we're looking at the rapid spread of the Omicron variant of COVID 19.  It's going to close some things somewhere.  It's inevitable.

And even if it's milder, it's effectively the last blow in how the litigators do business.  Things are never going back to the way they were before.

In 2021, I did four trials.  Two of them had some kind of mask mandate in place.  Every courthouse is different.  Depositions have largely gone over to Zoom, and they don't ever appear likely to go back to being live and in person.  Lots of hearing are now by Microsoft Teams.

Ironically, even though I spent a week in a really beautiful courthouse in another state, I'd note, I failed to take a single photograph of it. 

An evolution towards electronic appearances in things was occurring before COVID 19, but the pandemic pushed things over the edge and fully into the electronic world.  I really don't like it, and I don't like what it will likely mean for the law either.  I'm lucky to have principally practiced before it occurred.

2020 and 2021 saw the best and the worst of lawyers in spades, which is something we should note before moving on.  For the worst, lawyers working for the Trump Administration or affiliated with it were full participants in a plot to illegally retain power for the ex President.  It's shameful.  

For the best, most lawyers didn't participate in that or approve of it. The Court system itself really rose to the occasion and kept the coup from working.  Lawyers in at least one state wrote a letter to their Senator, also a lawyer, flatly demanding that the Senator retract the Senator's position in regard to the coup, which the Senator did not do.  It was a brave thing for them to do.

One thing that Trump accomplished that was a real accomplishment (and frankly its Mitch McConnell's accomplishment) was to bring in a set of Supreme Court Justices who actually apply the law as written.

Much of our current problems with huge political polarization stem in fact from the capture of the highest courts by the political left in the mid 20th Century.  The courts of that period were perfectly comfortable with creating new rights out of thin air and foisting them on the public, when the public wouldn't have supported them democratically. That partially lead to a right wing belief that the left was anti-democratic and involved in what some regarded as a slow moving left wing coup.  When one camp drops a belief in democracy, the other will follow sooner or later.

We've finally gotten past the US. Supreme Court acting like a super legislature of Platonic Elders.  It was long overdue.  That's gong to be painful for a few years, but perhaps it helps us get back to where we always should have been.  Big social issues ought to be decided in legislatures, not in courts.

Let's  take a look at the upcoming year and therefore put out a few, a very few, resolutions for the field of law.  Most of these we have little hope of being carried out, which doesn't mean that we shouldn't state them anyway.

1.  End the UBE

The UBE has proven to be a failure.  It's mostly aided the exportation of legal jobs from states with smaller economies and communities to neighboring ones with larger economies and communities, something now aided by electronic practice.  It's made the standard of practice more uniform, by making it more uniformly bad.

The UBE ought to go, or a local state bar reinstated where it exists. For that matter, its time for residency requirements to come back on.

2.  Quite with the bad legal reporting

If you listen to the news, any news, you'll get the impression that the justices of the United States Supreme Court act like a session of World Wide Wrestling every time they meet. That's far from true.

The vast majority of U.S. Supreme Court decisions are heavily one-sided.  I.e., 9 to 0, or 8 to 1 decisions are much more common than 5 to 4.  In the last session, for example, Justice Sotomayor issues and opinion in a criminal case that accused the lower court of ignoring the plain language of a statute. She was writing for the majority.

You never hear stuff like that.

That's mostly because in an average year there's maybe one or two. . . or no, cases that are actually interesting from the Press's prospective.  And those are the ones that tend to be lopsided.  It gives a skewed prospective on the court.

3.  Age matters

I've been saying this for a while, but its disconcerting that the Federal bench has no mandatory retirement age.  

I'm not saying that any Federal judge I've ever encountered seemed impaired. Far from it. But courts belong to the people, and the median age for the people is a lot lower than the upper reaches of the Federal bench. That matters.  

For that matter, I think the state mandatory retirement age for judges ought to be depressed.  It's 70 now, and there was a move in the legislature a few years ago to raise, or remove, it.  I think it ought to be lowered to 65.  Frankly, I'd prefer it being lowered to 60. Again, not because I have a problem with a current judge, but people are younger than that, as a rule.

And at some point this is going to catch up with us.  

This applies, I think, to lawyers as well.  Age takes its toll. Age also narrows us, and we tend to end up our occupations.  Both are bad potentialities.

4.  Wider net

Recently one of the Bar Commissioners noted that a state Supreme Court justice had expressed concern over a lack of applicants for judicial positions.  I'm frankly not surprised that there has been.

Part of this may reflect a disturbing trend in general.  In what most of us thought was the late stage of COVID (it might not have been, as we now know) the press started reporting on the Great Resignation.  Now some are doubting that this is occurring, but at least in the legal field it seems that the Great Hesitation is operating.  I'll post about that in general in one of our companion blogs, but anyone in the legal field anywhere knows that younger lawyers are seemingly just not entering practice right now  I don't know what they're going, frankly  Some that are, are job hopping rapidly.  One judicial law clerk I became somewhat familiar with in another state was on her fourth job as a clerk, and second clerkship, and had only been working for less than two years.

Anyhow, one thing that seems to have gone on for the last few state administrations here is selecting judicial applicants based on certain criteria that were set out, publically or silently, which is fine and makes sense as, after all, it's a political appointment.  That was a change from some prior administrations, however, which took a broader view.  Anyhow, after this being the case for a long time, I think certain private practitioner categories have simply quit applying as it was obvious that they weren't going to be admitted.  

A wider net needs to be cast.

On that, one thing the judicial nomination committee used to be able to do, although I don't know if it still can, was to submit names of its own choosing.  At least one judge in the southeaster part of the state became the judge that way.  He was completely surprised by his own nomination and struggled with it at first as it meant a big reduction in income.  He accepted the position as he felt it was his duty.  If the committee can't do that, it ought to have that power restored and actually use it.

The Lamp: Gerald Russello, R.I.P.

There hasn't been a photo of a courthouse put up here in well over a year.  I missed my opportunity to do that, fragrantly, when I tried a case in the State of Colorado's Denver District Court a couple of months ago.  I spent the whole week in and around the courthouse and never took a photograph of it. 

In my slight defense, I couldn't remember if I'd photographed it before, from the outside.  I had not.  I should have, just as a precaution.  And because it's a beautiful courthouse, and because I was also inside it, which I hadn't been.

I was busy, and just didn't.  

It's a shame to, as the courthouse in and of itself gives us a real view of how things were in the law, and how they now are.  

As odd as that may seem, that's my introduction for a blog post I'm linking in here, which is the following.

GERALD RUSSELLO, R.I.P.

BY MORGAN A. PINO

I suggest you read the post.  It's about somebody who was obviously very decent.

Normally I wouldn't post that here.  If I were to do so, it would be on one of our companion blogs, but I'm doing this here as lawyers work in courthouses and well it just feels like it should be here.

Part of the reason the last photograph of a courthouse that was put up here is so long ago has to do with COVID 19.  The last photo was in February 2019.  Now, there weren't any from February for the rest of that year either, so its not all due to COVID 19. Truth be known, I've taken photos of nearly every courthouse in Wyoming, with two exceptions I can think of, and there are very few let in the state to photograph as a result.  I was also taking a lot of photographs of out of state courthouses, but I had a lull in travel to new places in 2019 and then 2020 effectively was the year of no travel.  Indeed, I haven't been on an airplane since some time in 2019, due to COVID 19.  It's been a huge change in my work habits.  

And not only in mine, but in everyone's.  Now some lawyers are so acclimated to Zoom depositions they'll take nothing else.  I had hoped that would go away, as I hate them.  It shows no signs of doing so, however.  We may be stuck with Zoom depos and the age of lawyer travel may be over forever. It'll probably sound odd for me to say it, as I'm not a natural traveler, but I miss that part of the practice.

Anyhow, another thing I've really been noticing since COVID 19 is the decline, and changes, at least in my view, in all sorts of things law related.  Some people are having a really hard time simply resuming work.  Finding new lawyers to come to work for a firm has become increasingly difficult and some young lawyers don't seem to want to really work at all, at not least in private practice.  

And I've become disgusted with lawyer hypocrisy.

On the day I read this, which is to say today, I already read the news about a lawsuit being filed which contains a lie.  I know one of the lawyers associated with that complaint, and back when we were in law school that lawyer would have dismissed any concept that they'd file a suit containing a lie, but now its happened.  I'm not going further into it, but this sort of thing is appalling.

Just the other day I sat through a CLE in which another lawyer I know made a statement about how lawyers are essentially the guardians of society and advance what needs to be advanced in society.  After a year in which plenty of lawyers were associated with an effort to advance a political fabrication, that's at least open to question, but at the same time, the courts deserve enormous praise, and they're part of the law, for keeping that from occurring. The legal profession can and should be really proud of that while, at the same time, we should be deeply ashamed of those members of our profession who acted in an antidemocratic manner.

Also at that CLE I heard another lawyer speak about how he became a lawyer as he loved cross-examination.  I don't know if I buy that.  How would you know if you loved cross examination if you weren't a lawyer already?  It's like claiming you love saudero tacos if you've only ever had Taco Bell.  Come on.  Anyhow, that sort of thing gets to me.

I've tried lots of cases over the years, but it bothers me when people claim they love destroying people on the stand.  I've done it, and I've seen it done.  Recalling it as a war story is one thing, but to claim you love it in the abstract is quite another.  It's a skill, like argument is for a lawyers, and like killing is for soldiers.  A person needs to be cautious about what the claim to love. The day we took Hill 502 is one thing, the other thing is something else.

All of which gets me to this.

I don't know who Gerald Russello was and I don't know Morgan Pino is.  But as expressed in this article, they're decent human beings, and maybe even better than decent human beings. They're the way that lawyers ought to be.

Blog Mirror: Practicing During Covid

This article is an absolute classic. The best written work to come out of the pandemic.

Practicing During Covid.

Lex Anteinternet: Monday August 4, 1941. Courts, out of jail, and i...

Lex Anteinternet: Monday August 4, 1941. Courts, out of jail, and i...: 

Monday August 4, 1941. Courts, out of jail, and in the desert.

Louis "Lepke" Buchalter, facing front, seated with Emanuel "Mendy" Weiss and Phillip "Little Farvel" Cohen who shield their faces, and Louis Capone, in a Kings County Courtroom during jury selection.

Holscher's Hub: The Courthouse Deer

Holscher's Hub: The Courthouse Deer:  

The Courthouse Deer

 

Lex Anteinternet: Amy Coney Barrett as a Mirror

Lex Anteinternet: Amy Coney Barrett as a Mirror: 

Amy Coney Barrett as a Mirror

Judge Laurence Silberman, for whom Barrett first clerked after law school, swearing her in at her investiture for the Seventh Circuit.  https://en.wikipedia.org/wiki/Amy_Coney_Barrett#/media/File:20180223_185543_NDD_5533.jpg  CC BY-SA 4.0view termsFile:20180223 185543 NDD 5533.jpg Created: 23 February 2018

Yesterday we published this item about long term demographic trends in the U.S.

The Conservative Tide?

Um, correction, we published those about long term demographic trends on Earth, and how that will, and already is, impacting culture..

Following that news, Amy Coney Barrett was confirmed to the United States Supreme Court.

This is interesting in the context of itself, as well as the context of what we were writing about.  Barrett is, in some ways, a mirror on where we are now, and where we're going.

She's also a mirror on how we view democracy itself, at an existential level.  Are we for it, or against it?

Barrett's nomination angered and upset the old order liberal establishment.  She appeared to be what liberals have really feared over the years but never had to really fully face, at least since the death of Scalia.  A legal genius who is a textualist.  And here, in a Twitter exchange between two U.S. Senators, who can see the upset distilled and refined.

First, Senator Ed Markey, a semi freshman Senator (he started finishing John Kerry's term in 2013 before being elected to his own first full term and had a long stint in Congress) from Massachusetts and then the reply from Nebraska Senator Ben Sasse.

Markey, who made it to Congress for his freshman at age 67 (he's now in his 70s) although he did have a prior term as a Congressman from Massachusetts from 1976 until 2013.

Ed Markey@SenMarkeyOriginalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.1:22 PM · Oct 26, 2020·Twitter for iPhone

Sasse, on his second term and still in his forties.

Senator Ben Sasse@SenSasseReplying to u/SenSasseActually, “originalism” is another way of saying that texts and words have meaning. That's not to claim that all texts and words from 1789 were correct – but that when they need to be changed, they should be changed by elected legislators, not unelected judges.4:55 PM · Oct 26, 2020·Twitter Web App

First of all, it must be stated that Markey' statement is so blisteringly ignorant that it should disqualify him from voting for dog catcher.  This is dumb beyond belief.  It's not only partisan, it's just outright stupid.  The fact that Markey has a law degree from the Boston College of Law is proof, as if any is needed, that you really don't need to know anything about anything in order to graduate from law school.

You also apparently don't need to know the Constitution or care about the truth of it.  Markey has been in Congress since 2013

It also shows that the oath of office that Senators take is regarded as a complete joke by some. The oath states:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God. 

I know that it's hoping against hope, but there should be a point at which the violation of your oath of office has an implication, with that properly being that the Senate should refuse to continue to seat you.  You're an oath breaker in your office.  You should go. 

Sasse isn't a lawyer, and is a PhD, so there's apparently some hope for other disciplines yet remaining.

Of interest, Markey, who joined the National Guard while in college, which he says wasn't to avoid service in Vietnam, and who made it to Specialist E4 after five years of National Guard service, was born in 1946.  Sasse in 1972.  Markey is a reliably left wing politician who just made it to the US Senate, after a long career in the House. Sasse is a very independent Republican who is on his second term.*

In other words, here we see the prefect example of what we wrote about yesterday.  An aged, and now nearly irrelevant, East Coast Boomer politician is stating absolute idiocies about the Constitution, and being corrected by a post boomer respected, and more experienced at the Senatorial level, Mid American politician.

In the reaction to Barrett we're seeing a lot of this, although savvy politicians of all generations avoided it.  Long term political survivor, for example, Dianne Feinstein just flat out didn't go there, and for good reason.  She's taking a lot of whiny heat for her decision not to, but given her long history in politics, she's adept at reading the Washington tea leaves and avoided committing forced errors in the second Barrett confirmation she participated in.

The real complaint on the left, to the extent they've been able to express it, is expressed in terms of "she's going to take away our rights", ignoring the fact that it takes five Supreme Court justices to do anything and if Barrett is reliably a textualist there's only one other actually on the Court.  But beyond that, what the real fear is that the Justices will stop making stuff up and send things back to the states to be voted on.

That fear is based on something we all know to be true. The Constitution doesn't cover all that much.  If it isn't in there, it really is left up to the states.  Liberals fear that the American people simply aren't as liberal as they are.  So they don't want these things voted on.  Its not the Courts taking away their rights that they fear, but rather a declaration that they aren't rights and therefore they aren't protected by the Constitution, and are free for legislative address.  

Liberals have real reason to fear that, to be sure, because the evidence is pretty good a lot of state legislatures would in fact not recognize a lot of things that the Supreme Court has said are rights over the years.  But that's the thing about democracy.  People don't always see things the same way you do.

Indeed, they often don't.

Indeed, the recognition of this by humorist and social commentator Garrison Keillor, who is openly left wing also brought a firestorm of criticism from his own fellow travelers.  Keillor made a comment about some things just not worth ripping the country apart for anymore, and included abortion among them, and then was subject to aggressively negative comments.  Keillor's suggestion was that the country could tolerate the states deciding their own way.   That brought the classic argument used when somebody can't think of something to argue about from some on the left, which was to turn on accusations that Keillor acted inappropriately to women on his staff.**

Garrison Keillor was accused of bullying and humiliating women on his staff and no one should be shocked that he continues to be anti-women. . . 

Lyz Lenz, former columnist for the Cedar Rapids Gazette. 

I don't know the details of the arguments about Keillor, but that reply is just weird.  What Keillor stated isn't anti woman, and what we'll note below here should be obvious, Barrett is a woman.

Anyhow, at the same time, this also means that Liberals have become acclimated to an elitist view of government over the years, with the Supreme Court serving as a Platonic council of elders.  They liked the idea of the wise, symbolized by the late Justice Ginsburg, declaring things for the less benighted.  

The problem with that is that if you accept it, you have to accept it Soviet style.  I.e., if the Politburo says one day that we're friends of the Third Reich, we are, and if later it says they're our enemy, they are. No asking questions.

So you really can't ask a legislative body to appoint only benighted elders who are enemies of legislators. That makes no sense.

Indeed, in order for the Court to really work the way the left would have it work, the Court would have to be appointed by itself, something nobody is really willing to do.

Which is in part why court packing, as backed by AOC, is such a dumb idea.  Some upset Democrats would have the next Senate pack the Court.  This presumes that the next Senate will be Democratic, which is looking increasingly unlikely late in the election, but if that comes to pass, some future Republican Senate would just pack it more.  There's be no reason not to, once that was established, and at that point the Court would be nothing more than an arm of the national legislature, the very thing the left wing fears the most.  

Indeed, if it's packed, why not paced, why not pack it with jurisprudential conservatives, that would approach the law the same way that judicial liberals do.  The results of that would be to rule from the bench in a way that conservatives have never done in the U.S., but which there could easily be found people who would do.  Right now, a liberal focus is on abortion, for example.  Judicial conservatives might, at the very most, say that there's no right protecting it to be found in the Constitution, which is actually quite unlikely at this point, and send it back to the states.  But jurisprudential conservatives could take the same approach to the law that judicial liberals have and find that abortion is contrary to the natural law and therefore contrary and hence illegal due to factors that underlie the Constitution and which are beyond it.  People like AOC who would pack the Court, if they have any intellectual honesty, which is doubtful as it would require reasoning beyond politics, would have to accept that even if they are in the highly liberal camp.

In Ginsburgh, Barrett, Sasse, and Markey, we have the reflection of what we noted  yesterday. Ginsburg was a symbol of her times, and a hero of them for legitimate reasons. But those times have passed.  The geriatric nature of the national government makes this something that, for those in it, that is hard to appreciate, and the unusual domination of a single generation, the Baby Boomers, in the culture of the Western World further obfuscated it.  But the oldest departing recent Supreme Court justices, Kennedy and Ginsburg, were well past their eras when the departed the bench, one voluntarily and one through death.

In her life, Ginsburg very much reflected her times. She was a pioneer in the law and in the life of women at the time, becoming a lawyer when it was hard just for women to enter the profession, and raising two children while having a career, the oldest of which, also a lawyer, is now 65 years old herself.  She was a political liberal in a liberal era, and lead a pioneering life.

Barrett, in her 40s, is by contrast younger than both of Justice Ginsburg's children and is a pioneer in her own right, but the kind that many of the left don't care for and fear, just as in the 70s Ginsburg was the same for some on the right.  Also a career women, she is the mother of a large family of seven, for which it is always noted that two were adopted.*** She's outwardly religiously devout where as it seems Ginsburg was secular, at least to appearances.  And Ginsburg quietly endorsed an activist judicial approach which accepted, in essence, that the populace would not go where it needed to on its own and had to be lead there, while Barrett takes the approach that the populace goes where it goes, and should be restrained only where it clearly has been structurally provided that it can't go there.

That this would create fights on the left is telling.  It makes sense that justices like Ginsburg were opposed on the right, as they accepted imposing changes from above and irrespective of democratic feelings on them.  It would seem that everyone would be more tolerant of the concept of imposing changes from below, except for the basic distrust that most people don't want to go some places.

But the acceptance of the imposition of change on the left is mostly because the right has never attempted that in the United States.  It most definitely has in other countries.  Indeed, while its often argued by some that the American Revolution was a "conservative revolution", the disproof of that is that we've never really had one.  Other countries most definitely have had conservative revolutions which imposed conservative ideals from the top.  The Spanish Civil War was a species of conservative revolution in its impact, for example.  It could be likewise argued that Petain's premiership from 1940 to 1945 in France likewise was.

This is not to argue that those are really fully analogous examples, and certainly not admirable ones.  Franco and Petain were definitely anti democratic, where as the American conservatives most definitely are pro democratic.  As noted, it's ironically the American left that tends to be somewhat anti democratic with that impulse existing even somewhat in the mainstream, although recently the hard alt right has flirted with being anti democratic as well.  Rather, the point is American conservatism has always limited its efforts to argument, in the mainstream.****Indeed, American conservatives have not argued for jurisprudentially conservative justices at any point, and don't even seem to know what that would mean.

So the question now becomes, in the short term, how society might deal with increased legislative activity being licensed and licensed at the local level, something that reverses a 90 year trend.  And the added question is how American liberalism, which even in conservative administrations has basically been either been in the driver's seat or right besides the driver with a hand on the wheel, reacts when this is no longer true.  Conservatives in most places are used to the idea of being "strangers in a strange land", i.e., at least somewhat outside of their own societies.  Liberals are not.

Added to that we're just beginning to see the very first reactions of the Cosmo Girl meeting the Twitter Girl.  That may seem to be superficial, but seeing what's gong on out there shows its not.  One hip, young, cool female Twitter figure defines herself as:

real. raw. bold. brave. Marian devotion to apocalyptic proportions. in the pursuit of corn juice.

No hip, cool, Boomer, when young, or ever, defined herself that way.

Changings of the guard are only smooth transitions in organizations that are designed for that.  Cultures, don't design for that.  And as we've noted before, cultures are sticky, yet plastic.  The times, turly, are a changin'

___________________________________________________________________________________

*Markey's South Boston unit contained at least two other then young future notable political figures and his two brothers.  Service in the Guard and Reserve was an honorable Vietnam War option and I'm not claiming the opposite.

**One of the weird ironies of the Me Too movement is that men should have been acting like Christian gentlemen, even though the movement has been grounded in a camp and industry that declared its animosity towards Christian values eons ago.  

This doesn't endorse male wolfish behavior, but so far none of the real backers of the movement have been able to state why men shouldn't act the way that they've been complaining about, even though everyone knows why they shouldn't.  Be that as it may, a society that was raised on a diet of the evolved products of Playboy and Cosmopolitan has taught the very horrific lessons that brought about the behavior now complained of.  In seeking to revive the old standard, in the guise of it being the new woke one, some argument has to be created to back it.  Just "you shouldn't" is an anemic argument and fails on its face.  Nobody makes the argument, however, as "you shouldn't" as it wrong, and its wrong because. . . well nobody wants to go there and discuss what else might be wrong.

***She was oddly accused of racism for adopting orphans from Haiti and criticized simply for having a large family, the latter an example of prejudice of varying types, some religious, but some generational.  The new woman, as viewed from the 60s and 70s, isn't supposed to have a large family.  The problem is, that some of the younger ones now do, as we noted yesterday.

****In the American South, however, this isn't always true by any means.  And there's no denying that Southern conservatism backed racism and went beyond arguments to back it.