Sunday, January 17, 2021


Sunday Reflection: The sad sad Christians

 I was driving yesterday and was listening to a conservative Christian radio broadcaster-- just something that I happened upon as I flipped through the stations.

She was on a long soliloquy about the sad state Christians found themselves in at the moment, which is something that really could go either way. But then, the reveal: "In my lifetime, I don't think I have ever seen Christians so dispirited about the turn the world has taken, with this stolen election."

I hit the radio with the heel of my hand, which was a mistake in at least two ways. I was upset and disappointed at that message, that Trump's loss was somehow a blow to Christianity.

First, aren't we supposed to be bigger than politics?

Second, we are getting rid of a deeply troubled man who disrespects women, has paid off a porn star to keep quiet about an affair, defines himself through displays of wealth, and does not seem to have any history of churchgoing or even a passing familiarity with the elements of the faith. In place of him, we are getting a devout Catholic who attends church regularly, speaks knowledgeably about his faith, and does not seem in thrall to wealth and its accoutrements. That's gotta be good, right?

"But, abortion!" the conservatives will say. 

Somehow, for so many of our nation's Christians, that one issue--something that Jesus never discussed--takes precedence over consideration of all of the issues and values that Jesus did talk about: poverty, love of God and neighbor, humility, and sacrifice. Opposition to abortion may be a principled position (whether you agree with it or not), but it is not one that can reasonably be seen to supplant all the things that Christ actually told us to do and to respect-- few if any of which mark the life of Donald Trump.

I get that some people are despondent that Trump will no longer be president. That makes sense at some level. What doesn't make sense is that your Christian faith would lead you, somehow, to that despondence. 

Whatever it is that your own faith and vocation make you want to accomplish, you still can. A change in presidents does not change that. And if the new president changes your faith or hope for the world, your faith does not appear to have been so strong to begin with.

Saturday, January 16, 2021


Hey! That's me!

I make a cameo appearance in this promo for a class at Harvard's Kennedy School of Government (Cornell William Brooks' remarkable "Morals, Money, and Movements"). 

A long long time ago I was deciding where to go for law school. I was living in Cambridge, Massachusetts at the time, and wandered through Pound Hall at Harvard Law. A cork board was full of notices for upcoming lectures.  I thought "I'll go to Yale Law, and then someday come here and give a lecture." And that has happened, several times. 

I also once hoped that someone would invent a phone that, when it rang, ran after you on little feet. That, too, may someday happen.


Friday, January 15, 2021


Haiku Friday: In the Snow


Waco got snow this week! I saw pictures of many poorly built snowmen (and a few keepers). Up here, we are used to it by now, of course.

January needs snow. I went skiing on Tuesday, and it was glorious-- fields of white, gliding, turning. 

Let's haiku about snow this week. I will go first:

Still kind of magic
Those first big fat flakes, falling
Slowly to my nose.

Now it is your turn! Just use the 5/7/5 syllable, and have some fun!

Thursday, January 14, 2021


PMT: The Execution of Lisa Montgomery


Buried beneath a lot of the other mayhem, the Trump Administration has gone on a real tear of executions, trying to get as many done as they can before they leave office. It's appalling and wrong.

On Tuesday night, they executed Lisa Montgomery, the first woman executed in the federal system since 1953. She is the 11th person killed by the Trump Administration, a streak that has followed a 17-year period in which there were no federal executions. 

Her crime was horrific. She strangled to death a woman, Bobbie Jo Stinnett, who was eight months pregnant, and cut out the baby (who survived the ordeal somehow). The victim and perpetrator knew each other; they both bred rat terriers. 

Montgomery was a mess, scarred by trauma and probable mental illness. A District Court ordered a stay to allow for a hearing to examine her competence on Tuesday, but the Supreme Court over-ruled that order later in the day so the execution could be completed.

What was the rush? Well, they did know a new, less bloodthirsty administration was coming in. 

She killed. We killed. Does that make anything better?

Wednesday, January 13, 2021


My Students: Campbell Warner

Working at Baylor, I got to work with some remarkable students. And who is the guy holding the championship cup (and, it looks like, a beer, contrary to Baylor regs), next to the talented Jennifer Job? Well, that's Campbell Warner, one of my all-time favorites. 

Campbell came to Baylor law from LaSalle University in Philly, and he immediately made an impression as smart, competent, and funny- and great in court. I asked him to be part of this team, and he did a fantastic job. I knew he was a guy who was going places, and I was right.

After law school, Campbell began a remarkable career as an Army JAG lawyer. JAG lawyers through their careers usually do everything: prosecution, defense, appellate, legal assistance, and more-- it's a remarkably balanced career path. Campbell has enjoyed that kind of variety, including a year deployed in Afghanistan. I've kept in touch with him (it helps that his wife is from Minnesota), and am often envious of the things he gets to do. Along with people like public defenders and school teachers-- all of whom sacrifice to protect our liberties-- I am grateful for his service to this country.

Right now, he is the special victims prosecutor at Fort Riley, Kansas, and prosecutes sexual assaults, domestic violence, and child protection cases. Fort Riley is a good spot-- he has had two prior stints there and knows his way around.

Oh, and along the way he won $30,000 on Jeopardy:

Campbell Warner has a lot ahead of him. I can't wait to see what it is.


Tuesday, January 12, 2021


Q: Does accepting a pardon imply guilt?

 A:  Not necessarily!

        The idea-- often tossed around right now-- that accepting a pardon implies guilt does have some historical precedent. In the 1915 case of Burdick v. United States, the United States Supreme Court did say that accepting a pardon carries a confession of guilt. But more recently, the Court has cut the other way.


         In a deeply troubling 1993 opinion in a capital case, Herrera v. Collins, the Court held that a federal prisoner could not pursue a writ of habeas corpus solely on the basis of actual innocence. In the course of reaching that conclusion, the court noted that their bar to habeas did not mean, “however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency.” The Court then went on to assert that under British law, clemency “was the only means by which one could challenge his conviction on the ground of innocence,” and that “Our Constitution adopts the British model and gives to the President the ‘Power to grant Reprieves and Pardons for Offences against the United States.’” Their message was clear: at least in some cases, clemency is an allowable forum for innocence claims.


         Eugene Volokh has noted some other reasons to think that pardoning may be consistent with innocence: the federal statute that allows compensation for the wrongfully convicted allows pardon to be a basis for such a claim, and the DOJ’s own guidelines for clemency don’t create a bar but rather assert that “Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.”


      So can President Trump pardon himself while proclaiming innocence? Well, yes, all he has to do is sign a pardon warrant and bleat about being unfairly persecuted. But when the rubber hits the road-- which would come if he is ever charged in federal court and he raises the pardon as a defense-- the arguments above will come into play.

Monday, January 11, 2021


What was THAT?... in haiku

 First of all, Megan Willome properly called me on an error in my post last Friday (Doh!) even while honoring the error with her syllable count:

You know everything is wrong
when haiku rules change
7-5-7, please no.

Gavin, as usual, got right to the heart of the matter:

My son and I watched
“Daddy, what are they doing?”
“I don’t think they know”

My dad gave us multiple stanzas:

Blacks who protest all
the killing will have massive
police resistance 

A white mob intent 
on sedition find themselves 
welcomed by allies

When will we all learn
when will we finally say
enough is enough.

And we heard from Christine:

January 6th
I so wish I was watching
Olympus has Fallen.

Jeff H. was here, too, with an adept observation:

Do lives matter if
They don't seem much like the cast
Of Duck Dynasty?

And Desiree gave us the perspective from suburban Virginia:

Terrorists escape 
DC and head to my town. 
They weren't welcomed here.

Sunday, January 10, 2021


Sunday Reflection: What Jesus is this?


It's been quite a week.

Of it all, one of the things I found most disturbing was the Christian imagery used by the violent insurrectionists at the Capitol who were literally trying to disrupt an election. There were crosses and Jesus flags and Jesus signs... one would think it had been organized by a church. And it kind of was

Speaking at the ‘Prayer to Save America Rally’ yesterday, in the lead up to the #TrumpMarch, Tennessee pastor Greg Locke riled up the audience: “It’s time to stand up, church! It’s time to stand up, patriots! It’s time to stand up, pastors! And push back. This is America, and we’re going to keep it free. If you believe that, give the Lord some praise. Where the spirit of the Lord is, there is liberty!”

Brian Gibson, a pastor from Kentucky, spoke from the podium, saying “We are not fighting FOR a victory, we are fighting FROM a victory. We serve a resurrected Jesus.

“We’re so glad all of these patriots are here,” Gibson yelled to the thousands surrounding the podium. “Does anybody think that America’s worth fighting for?”

“How many of you are believing that the people we elected are going to do what’s right? And they’re going to stand against all of the injustice and the fake votes.”

Pastor Mark Burns, which Time Magazine called ‘Trump’s top pastor’ also spoke, warning: “We’re here to serve notice. Because this is a demonic attack from the gates of hell.”

[Side note: When I first read that, I assumed that Burns was owning up to things and admitting that he was instigating a "demonic attack from the gates of hell," but upon reflection I don't think that is what he meant]

I don't have to belabor the point with those who have made it to the Razor: This really isn't what Jesus was talking about. I'm not sure what gospels they are reading. 

But it points to something deeply important: The public image of Christianity has become these people, Jerry Falwell, Jr., and the evangelical right. And how terrible is that for the mission of evangelism? Who in their right mind would want to join that group?

We Christians who aren't like that bear part of the blame. Too many of us with some role in public life keep our faith a secret-- which means that people don't connect the good works they do with the faith. It's time to be bold, and to redefine what it means to follow Jesus from the public perception that those like the insurrectionists create. That means to include faith in the way that we are publicly defined, and define ourselves in public.

The flag-wavers may be destroyers, but we are healers, those who love and give and serve. We may tell ourselves that we do it in Jesus's name, but we too rarely tell anyone else-- and that is part of what lets the insurrectionists define the faith. It's time for that to change. 

Saturday, January 09, 2021


The Song in My Head

 Son House, born in Clarksdale MS in 1902. His early work was recorded by Alan Lomax, forgotten, then re-discovered in the 1960's. He died in 1988.

Friday, January 08, 2021


Haiku Friday: Just, you know, this week....


We kinda have to haiku about what is happening, right? If you aren't aware of the events of the week, they are summed up neatly in the video above (which has some remarkable scenes from inside the Capitol).

Here, I will go first:

News flash: "Police have
Retaken the Capitol."
Never imagined...

Now it is your turn! Just use the 7/5/7 formula, and have some fun! [Oops! After 14 years, I mess that up? It's 5/7/5...]

Thursday, January 07, 2021


Political Mayhem Thursday: Political Mayhem


To the right is a statement put out by the government of Venezuela yesterday. Translated, it said this:

Venezuela expresses its concern over the acts of violence that are taking place in the city of Washington, USA; condemns political polarization and aspires that the American people can blaze a new path toward stability and social justice

That's not something I expected to see this week, or ever. Or the headline "Police re-take U.S. Capitol building." But here we are. 

It's hard to imagine the things that happened yesterday in Washington, DC. I was at work waiting for a call to start, so I watched part of the President's rambling speech, which combined long periods of boredom (lots of made-up statistics about the election, such as "250,000 more people voted in Pennsylvania than are eligible to vote") with incitement of his hopped-up fans to further action. The speech included this directive:

"And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women," Trump told the crowd. "And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

Of course, Trump did not walk with them down to the Capitol (maybe he would have taken a golf cart if one had been provided) and instead went home to watch TV and fume about Mike Pence, who didn't subvert the election for him. 

Much of the crowd, however, did head to the Capitol-- and then stormed it and created violence and mayhem. One woman was shot dead and over 50 police officers were hurt.

Here is the takeaway: There was serious violence, incited by the President and intended to impede the transfer of power. We can no longer talk about an unbroken legacy of the "peaceful transfer of power"-- because there was violence this time. Yesterday. In the Capitol of the United States. As votes were being certified. 

Anyhoo... two other things happened yesterday that normally would be really significant (and still are, but just got buried in the news cycle).

First, President-elect Biden (remember him?) named Merrick Garland as his Attorney General, Lisa Monaco as the Deputy Attorney General, and Vanita Gupta as the Associate Attorney General (or #3 in the DOJ-- a fascinating job whose previous holders have included Rudy Giuliani, Frank Keating, Web Hubbell, and Tony West). For my work, Monaco and Gupta may be the more important nominees. Monaco is a former Obama-era Homeland Security Advisor who has more recently been working at NYU with Rachel Barkow, Anne Milgram, Bryan Stevenson and other good influences, while Gupta has been a leader in reform circles for years. 

Second, the Georgia senate races were called for the Democrats, Jon Ossoff and Rev. Raphael Warnock. That's huge, of course-- now the Democrats will control the House, the Senate, and the Presidency. 

There is something else there, too.

Raphael Warnock, the pastor at Ebenezer Baptist Church in Atlanta, is someone who talks about faith all the time, whether you want him to or not. His Christian identity is right up front. In him, there is a chance to shift from Jerry Falwell, Jr. and his ilk being considered the only thing you find at the intersection of politics and Christianity-- and that will be good for us all.


Wednesday, January 06, 2021


Back to YLS '90 for a minute...


I've switched over from profiling my law school classmates to profiling my students, but I'm going to go back to Yale Law '90 for a minute to re-visit the previously-profiled Jeb Boasberg, a federal District Court judge in DC. He has decided a lot of tough and controversial cases on pipelines, immigration and more, but the most controversial (and silliest) one of all just came down the pike, and he handled it very well.

Yesterday, Judge Boasberg ruled in Wisconsin Voter's Alliance v. Pence, a frivolous lawsuit in which Trump supporters sought to, well... here is how Judge Boasberg aptly described it:

Plaintiffs’ aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President.

And that's just the first paragraph of the opinion, which you can read in full here.  It didn't take him long to get to the point:

In addition to being filed on behalf of Plaintiffs without standing and (at least as to the state Defendants) in the wrong court and with no effort to even serve their adversaries, the suit rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave: the undermining of a democratic election for President of the United States. The Court will deny the Motion.

He doesn't stop there, either-- after dispatching the plaintiff's case on jurisdictional grounds, he launches into the substance, in a way that even my non-lawyer friends can understand:

Even if the Court had subject-matter and personal jurisdiction, it still could not rule in Plaintiffs’ favor because their central contention is flat-out wrong. “Plaintiffs claim that Article II of the U.S. Constitution provides a voter a constitutional right to the voter’s Presidential vote being certified as part of the state legislature’s post-election certification of Presidential electors. Absence [sic] such certification, the Presidential electors’ votes from that state cannot be counted by the federal Defendants toward the election of President and Vice President.” Compl., ¶ 32 (emphasis added); see also PI Mem. at 1. More specifically, “Plaintiffs [sic] constitutional claims in this lawsuit are principally based on one sentence in Article II of the U.S. Constitution.” Compl., ¶ 54; see also PI Mem. at 1. That sentence states in relevant part that the President “shall hold his Office during the Term of four Years, and . . . be elected[] as follows: [¶] Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .” U.S. Const., art. II, § 1.

Plaintiffs somehow interpret this straightforward passage to mean that state legislatures alone must certify Presidential votes and Presidential electors after each election, and that Governors or other entities have no constitutionally permitted role. See Compl., ¶ 55. As a result, state statutes that delegate the certification to the Secretary of State or the Governor or anyone else are invalid. Id., ¶ 58. That, however, is not at all what Article II says. The above- quoted language makes manifest that a state appoints electors in “such Manner as the Legislature thereof may direct.” So if the legislature directs that the Governor, Secretary of State, or other executive-branch entity shall make the certification, that is entirely constitutional. This is precisely what has happened: in each of the five states, the legislature has passed a statute directing how votes are to be certified and electors selected. 

For what it is worth, I love this kind of clarity from the bench. So far, though, Judge Boasberg is traveling ground many other courts have already trod in rejecting almost every suit filed by the Trump lawyers. But at the end, we find something new-- a well-deserved threat of sanctions for this terrible lawyering, something that would happen in regular course to others who repeatedly filed frivolous litigation but to which the Trump lawyers have somehow been immune:

Plaintiffs readily acknowledge that their position also means that the Supreme Court’s decisions in Bush v. Gore, 531 U.S. 98 (2000), and Texas v. Pennsylvania, No. 155 (Orig.), 2020 WL 7296814 (U.S. Dec. 11, 2020), “are in constitutional error.” Compl., ¶ 76. They do not, however, explain how this District Court has authority to disregard Supreme Court precedent. Nor do they ever mention why they have waited until seven weeks after the election to bring this action and seek a preliminary injunction based on purportedly unconstitutional statutes that have existed for decades — since 1948 in the case of the federal ones. It is not a stretch to find a serious lack of good faith here. See Trump v. Wis. Elections Comm’n, No. 20-3414, 2020 WL 7654295, at *4 (7th Cir. Dec. 24, 2020).

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendant — even after reminder by the Court in its Minute Order — renders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engage in such gamesmanship or symbolic political gestures. As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

So, huzzah Judge Boasberg!

Tuesday, January 05, 2021


A good year for.... Satan!

 If you haven't seen this, you should now:

That kind of sums it up, huh?

But the truth is that for the moment all the problems of 2020-- Pandemic, Trump, etc. -- are still with us in full force.  I suspect that in the same way that culturally the year 1970 (and maybe 1971) were part of the 60's, the next month or more will really be 2020 in the broad sense.

But... it will end. Really.

Monday, January 04, 2021


Haiku of the new year

 So, yeah, I loved my dad's (maybe my mom's) haiku for the new year:

A hope filled new year 
365 days 
less the first twenty

Year 2020 
was spent in retreat and fear
our eyes were opened 

We will push refresh
button stored up ideas
will come pouring out. 

We also had this uplift from Desiree:

New year, new journeys!
So much to explore this year,
places near and far.

And from Ann:

Oh 2021
One day at a time ahead
Again and again.

Incoming from Louisville, via Jill Scoggins:

We eat for good luck
as if black-eyes, greens, cornbread
could bring the magic.

And, to round things out, this was the Medievalist's:

Jan 1 a new year,
We survived last year,
Let us live the new.

Sunday, January 03, 2021


Sunday Reflection: Winter


In Minnesota, winter is a spiritual season, as necessary to the people here as migrating is for birds. If it isn't cold in January, people sense that something is just off.  

The cold is important to the world around us here. If it doesn't get well below zero several times in the winter, invasive bugs aren't killed off-- the cold literally keeps bad things at bay. 

And for the people, there is a kind of purification, too. I live in a neighborhood of walkers-- there almost always are people walking by my house, which is on a corner. In the winter, as snow piles up and the street is often covered with white, there are people out there walking, in about the same numbers. Some have dogs, but most do not. Sometimes there will be a bunch of kids, girls or boys, with hockey sticks and skates heading for the rink in the park two blocks down. They are the same kids who pass by with fishing poles in the summer. 

There is something wonderful about coming out of the cold to a warm place. Coffeeshops here often have fireplaces, and the people come in, shake out their boots, get a cup, and sit by the fire. It's kind of perfect. 

In March, of course, it has gotten a little old, but that is part of our cycle, too. We want the change, and then it comes-- the longer days, the snow's disappearance, the return of the lakes. 

It's a good world to be in, isn't it?

Friday, January 01, 2021


Evel Knievel


When I was a little kid, Evel Knievel was a BIG deal. And only now do I realize just how weird that is...


Haiku Friday: To 2021!


I took this picture in my Mom's kitchen in the fall; I don't know why, but it gives me hope. There are always beautiful things, right?

And I know that the flipping of the calendar won't magically wash away all the problems of 2020, but... aren't we all glad to see 2021?

Let's haiku about our hopes for the new year. Here, I will go first:

Oh, 2020,

We are glad to see you go.

New beauty arrives.

Now it is your turn! Just use the 5/7/5 syllable formula, and have some fun!

Thursday, December 31, 2020


Political Mayhem Thursday: What? A Warrant?


 On Christmas morning, a 63-year-old white suicide bomber, Anthony Quinn Warner, blew up his RV in front of an AT & T switching station in Nashville. He was the only one killed, but communications in the Southeast were affected for days.

 It was a strange incident. But the latest developments really have me baffled.

 Apparently, the suicide bomber's girlfriend had recently told the police a straight-up truth: that this guy was building bomb's in his RV. She apparently had a pretty good description of the whole operation.  This was confirmed by an attorney who said that Quinn frequently talked about making bombs.

 So what did the police do? They knocked on the door. They drove by. And then they dropped it.

People I know in the law enforcement business have had a uniform response to this story: She should have told them he was a black guy growing pot in there-- then they would have gotten a warrant. Which is true, and not funny. 

To get a warrant, you need either an informant with a good track record, or a new informant with corroboration. Here, the second applies. Yet, they didn't take action.

 There is a larger picture here, and it is an important one. Our police forces are largely focused on answering 911 calls and arresting people for drug crimes. It's kind of what they know how to do, so they keep doing it. And, of course, it's ineffective-- there are as many drugs as ever out there, in every kind of community, and answering 911 calls rarely prevents a crime. 

"Defund the police" was a dumb mantra, but "rethink the police" would be better. We need to rebuild and retask police forces so that they are more effective at preventing crime. There are ways to do that-- I've written about that a lot, as have many others-- but the first step is to consider doing things differently.

Wednesday, December 30, 2020


My Students: Charles Dolson


I'm devoting Wednesdays to profiles of my students, alternating between Baylor and St. Thomas grads.

Charles Dolson graduated from St. Thomas in 2014, and was one of my favorite people to see show up in class. So, it's good that he took most of them, including the clinic!

He came to law school with a lot of worthwhile experience. He had been a police officer up on the Red Lake Reservation (where he had spent much of his childhood), and then the Chief of Police there. (Red Lake is a "closed" reservation, meaning that all land is held in common, and there is no private land ownership). Before that, he was in the Marines, and among other tasks worked on Marine One (and, I think, closed the door on Bill Clinton's hand, which is understandable since the guy could never stop waving). 

I love having people with law enforcement experience in class-- along with social workers, they have the most useful backgrounds for class discussion. And Charlie was just fun to be around, too.

After law school, he served for four years as the Executive Director of the Red Lake Band of Chippewa, and now works as an attorney for Milles Lacs Corporate Ventures. He's one of those people with a remarkable circle of friends and colleagues-- he seems to know everyone in several overlapping circles. And no doubt, they feel the same way I do: lucky to be in the same circle as him.

Tuesday, December 29, 2020


Those we've lost


The New York Times has an excellent feature titled Those We've Lost, profiling people like Detroit Police Chief Benny Napoleon (pictured). They all died of COVID this year, part of the 1 in every 1,000 Americans who perished.

That number-- 1 in 1,000-- seems small until you consider the number of people most of us know or know of. And, of course, we all do know or know of someone special who has died, it seems.

It will take a while before we realize the shape of this wreath of tragedy, and of course the pandemic is not yet done with us. 

Needless to say, this is what marked 2020 as different. 

Monday, December 28, 2020


Christmas Haiku

 I hope yours was good, however you spent it. 

We should all check out Gavin's reflection on Christmas in his hometown:

The church bell rings out
It connects generations
It transports me home
Christine chimed in:
The spirit of Christmas
is gathering in my heart
The light shines brightly

And so did the Medievalist:

It is Christmas time,
Snow and frost might fill the air,
But light fills the heart.

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