Rants, mumbling, repressed memories, recipes, and haiku from a professor at the University of St. Thomas Law School.
Wednesday, September 30, 2015
Up now on HuffPo...
Over the past several years, I have gotten to visit dozens of churches. Many of them seem to be struggling with the same two conflicts. One is over liturgy-- whether to stick with tradition or use a "contemporary" worship style. The second is often subtler, between a clergy with a progressive heart for social justice, and the older people who usually fund the church.
In the wake of the 1967 riots in Detroit, my dad and some of his friends made a series of ads in an effort to discourage people from arming themselves. Jennifer Plansker (pictured in this ad as the little girl), dug up one that features my dad, along with her mom and brother, Jeff.
In this post-Heller world in which arming ourselves to combat perceived threats is considered by some to be a civic duty, this effort may seem odd. At the time they made this ad, though, many Americans still thought that more guns did not equal safety. (That was then and is now true, of course, but it is not a very popular truth these days).
There is something thrilling to know that my dad and his friends used their talents (they were in advertising, after all, back in the Mad Men days) to address a serious social issue. I love the image of them working up the ideas, and then making it happen.
It didn't work, of course. Gun violence in Detroit increased and today it is horrific. The presence of guns in so many homes has only accelerated, not solved, that problem.
Still, they tried. And that is more than most people did, or do.
I am 52 years old, and some days that still surprises me. How did that happen? My body feels the same, pretty much, and there is a part of me that is just as immature as ever.
Yet, there is something about the accumulation of years that affects the way I see the world. There is now a pile of memories for every image, song, scent, and emotion. When I see a bridge like this one (in Nebraska City, Nebraska), my mind glances over and lands lightly on a handful of other moments: the middle of the night on the bridge over Crim Dell at William and Mary in 1984, a bridge by the cider mill in Michigan in 1993, a tiny bridge in Cameron Park in Waco in 2007. I pause with a welter of feelings, brought along from other parts of my life when I was in many ways a different person.
But, still, there are new things-- some of them shocking and wonderful and strikingly beautiful. This week was full of that, woven in with the other things. I sat down with a reporter and talked about things I care about, I taught a class and laughed when I messed up, I went to a new place (Nebraska City, Nebraska, in fact, where I was talking to federal defense attorneys), and I had a great debate in a packed room with an old friend (Judge Richard Sullivan). There is a richness to it all-- one that I can see clearly now that I have those years and layers of memories. That gift of perspective lets me know when things are good and beautiful and rare.
Yesterday, unexpectedly, John Boehner announced that he was stepping down from his post as Speaker of the House, and his seat in Congress, effective next month. Washington seemed to be rocked by the news. However, it appears (according to the Washington Post) that he made the move in part to help avert a government shutdown:
A group of anti-Boehner insurgents had threatened that if the speaker
capitulated to Democrats on the Planned Parenthood funding, they would
move to topple him by forcing a vote to vacate the speaker’s chair in
the House. Boehner will move a funding package that includes the Planned
Parenthood funding, which is expected to be approved next week. But his
announced resignation denies the rebels their best leverage for
If this read on things is correct, I really respect his decision.
Thirty-five years ago this week, Ron Fournier and I were running neck-and-neck as friends and competitors on the Grosse Pointe North cross-country team. Now he is doing a remarkable thing: shaping the conversation over our national values and leadership choices.
Meanwhile, I am in rural Nebraska (at least for today).
Ron has relentlessly (and importantly) pursued the story on Hillary Clinton's emails, a tale that keeps developing new twists. Most recently, it has come out that the emails she thought she deleted will be available to the FBI, providing kindling for several more news cycles into the future.
For Democrats, this is an opportunity wasted. A crowed GOP field
has been taken hostage by a celebrity billionaire with a history of
bankruptcies, sexist behavior, and racially offensive
statements. Lacking a firm grip on policy or the truth, Donald Trump
is the GOP front-runner. His closest competition, Dr. Ben Carson, said Sunday
he didn’t think a Muslin should be president, and his efforts to
clean up the controversy have been as ham-handed as they are
dishonest. Which brings me back to Clinton. Loyalists argue
that her policy agenda speaks to America’s new demography and
addresses 21st century challenges. Even if they’re right, the
Clinton team has underestimated the value that voters place on a
candidate’s character. One top Clinton adviser told me in the
spring, “Trust doesn’t matter.” Oft-burned Americans
understand that a policy agenda is a collection of promises. If
they can’t count on Clinton to be honest, they can’t count on her to
keep her word about income inequality, jobs, health care, and the
What do you think? Will the Clinton campaign survive these issues, and should it?
Also, if you were wondering what we looked like back in the day… that is me on the left and Ron on the right (on either side of Jerry Stitzel):
When I lived in Waco (and enjoyed faculty tickets to the football games), Baylor lacked a true rival. Sometimes people acted like Texas was a rival, but that was kind of a Yale/Princeton thing-- only one side thought it was a rivalry. Texas knew their real rival was A & M. A few times, the Bears played Oklahoma State in the last game, but their real rival was Oklahoma (duh). We were just kind of adrift at the bottom of the league.
How things have changed! Along with Baylor's ascendancy in football has come a real rivalry, with TCU (which has also produced a great program, currently ranked in the top 5, as is Baylor).
That rivalry just keeps getting more intense and weirder, too-- just the way people like it. Last year, both schools were shut out of the championship playoff group of four (Ohio State, Oregon, Alabama, and Florida State), and both pretty much blamed the other. They ended with one loss each-- Baylor to West Virginia, and TCU to Baylor.
Ratcheting things up a notch this week, TCU coach Gary Patterson (or "Gary Fatterson" to some Baylor wags) poked the bear. Two of his student-athletes were arrested for a beer robbery, and in response Patterson said that the incident was "not even close to what happened south of here." It was clearly a reference to the case of Sam Ukuachku, a Baylor player recently convicted of the rape of Baylor freshman.
Think that will stir the pot?
I like the rivalry… but I really do not like the fact that both schools are plagued with convicted or accused student-athlete-violent felons. As I have argued before, Baylor must take firm steps to investigate problems thoroughly. They also must change the culture that too often allows this kind of violence, whether or not it involves an athlete.
Um, yeah, that should work. If anyone was listening to Scott Walker, he wouldn't be dropping out.
So… how did this happen? Not too long ago, Walker was the leading candidate in Iowa, but most recently he has been polling at less than one-half of 1% of Republican voters nationally. If I had been betting on it at the start of the summer, I would not have bet on Walker and Perry as the first two to drop their campaigns.
Lots of good haiku last week, but I especially want to see the pictures painted by two of our poets.
First we have this from the always-intriguing and talented Renee (one of my all-time favorites):
There was a dark boy Ojibwe in his blood who Rode a spotted horse
In the parade on The Fourth. Wore buckskin bare chest. Appaloosa proud. And then this vision from Jill Scoggins (it kind of explained the drummer mentality): I was a drummer at NHS. Loved seeing kids cover their ears
as our band marched by. Drum cadences should be LOUD. We made sure they were.
I am a very lucky advocate, in that I often get to speak to the exact groups of people who can put into action the ideas that I have. This past Friday, I got to address over a thousand people at the US Sentencing Commission's conference-- an audience that included over 100 judges, and hundreds of probation officers, defense attorneys, and (of course) the sentencing commissioners. On Thursday of this week, I get to talk to the federal defense bar of Nebraska at their annual gathering. Then, on Friday, I will be debated Judge Richard Sullivan (SDNY) about narcotics policy back at St. Thomas. I will also get to teach this week, about all of this and more.
These are opportunities at wholesale advocacy: To affect, in some way, those who have the power to then make discrete decisions that matter.
Wholesale advocacy, though, never feels complete to me. There is no human narrative there, no single life in being, no soul who cries out for justice. I need some retail, too. I'll get that this afternoon, when I go up to Sandstone Prison here in Minnesota to meet with someone who has been incarcerated for too long.
The two things, wholesale and retail, need one another. Retail work compels us to change an unjust system, and that usually happens through wholesale work. But it is the retail that is real. They feed off one another, reify and ennoble each other.
Jesus did both, and that is an example to us. He gave truth to huge crowds, performed public miracles for them, but then turned to one person: The woman at the well, the Centurian, the leper. I fail to meet that example, or to come close. None of us do. But there is a deep integrity in doing both. When Jesus talked to a crowd about the poor, he knew who they were, because he fed them and healed them. He alternated between the teaching (to the crowds, or the learned) and the healing, and both seemed important. Shouldn't they be for us-- even us professors?
Obviously, there is more to this story, and I would love to see the surveillance video of exactly how this all went down. But… it just seems like the kind of goofy story that seems to happen more often in Waco than anywhere else.
Political Mayhem Thursday: The Fallout from Last Night's Debate
So… what did you think of the debate(s) last night? I am eager to hear others' takes on it. I thought there was a lot of substance to the discussion-- more than many people expected. And it was great to hear a consensus that the "War on Drugs" has been a failure.
Personally, I think it is time for all four of the guys in the warm-up debate, and some of them in the main event, to drop out. I suspect they are hanging in there thinking that Trump will implode, sending shrapnel everywhere, and then it will be a whole new game-- and they might be right.
But some of these candidates are relatively weak (though, as I have said before, I think overall it is an impressive group). I am in Louisiana right now (speaking tomorrow at the US Sentencing Commission's annual conference), and it is striking how unpopular Bobby Jindal is here in his home state. There is a reason for that unpopularity, too-- people perceive that he has chosen things based on what is good for his campaign as opposed to what is good for the state. I suspect that outside of New Orleans, there is more support for him…. but probably not much, based on statewide polls.
Oh, no, Mr. Bill! Delta and American end their interline agreement!
I was buying a plane ticket recently, and a notice popped up saying that as of yesterday, Delta and American Airlines were terminating their interline agreement. It was in big red letters, so it seemed like a big deal. I had a lot of questions, the first one being "What is an interline agreement?"
Fortunately, there was an excellent explanation of the whole thing offered by the good people at the Cranky Flyer blog. I heartily recommend you check it out.
It turns out that an interline agreement is the contract by which airlines can shift luggage and passengers to one another, and then compensate the servicing airline. For example, I have often had an American flight cancelled out of MSP (they are like that, unfortunately), and they put me on a Delta flight. That won't happen anymore.
Apparently, Delta has become much better at operations than the other two remaining legacy carriers, United and American. If you haven't been following along, in the past ten years Delta merged with Northwest, United gobbled up Continental, and American most recently has merged with USAir. Delta struggled for a while after the merger but has been much improved, American is so-so (and still in the middle of the merge), and United is a steaming load of mess.
Because Delta has become better as, well, being an airline, it cancels far fewer flights than American and United. That means that the passenger-shifting has become lopsided, and American and United send far more passengers to Delta than vice-versa. In fact, it was about a 5-1 imbalance between American and Delta earlier this year.
Delta then bumped up its rates for flying the people sent over by United and American. United agreed to pay the higher rate, but American did not.
Yesterday, Bernie Sanders spoke at Liberty University in Virginia. Kudos to Liberty for inviting him, and to Sanders for accepting. As many of you know, one of my problems with our nation's discourse is that too often people speak only to those who agree with them. Below is an annotated version of the speech, which I found over at the Washington Post:
Thank you, President Falwell and David. Thank you very much for inviting my wife, Jane, and me to be with you even this morning. We appreciate the invitation very much.
And let me start off by acknowledging what I think all of you already know. And that is the views that many here at Liberty University have and I, on a number of important issues, are very, very different. I believe in a woman's rights....
And the right of a woman to control her own body.
I believe gay rights and gay marriage.
Those are my views, and it is no secret. But I came here today, because I believe from the bottom of my heart that it is vitally important for those of us who hold different views to be able to engage in a civil discourse.
Too often in our country -- and I think both sides bear responsibility for us -- there is too much shouting at each other. There is too much making fun of each other.
Now, in my view, and I say this as somebody whose voice is hoarse, because I have given dozens of speeches in the last few months, it is easy to go out and talk to people who agree with you. I was in Greensboro, North Carolina, just last night. All right. We had 9,000 people out. Mostly they agreed with me. Tonight, we're going to be in Manassas, and have thousands out and they agree with me. That's not hard to do. That's what politicians by and large do.
We go out and we talk to people who agree with us.
But it is harder, but not less important, for us to try and communicate with those who do not agree with us on every issue.
And it is important to see where if possible, and I do believe it is possible, we can find common ground.
Now, Liberty University is a religious school, obviously.
And all of you are proud of that.
You are a school which, as all of us in our own way, tries to understand the meaning of morality. What does is mean to live a moral life? And you try to understand, in this very complicated modern world that we live in, what the words of the Bible mean in today's society.
You are a school which tries to teach its students how to behave with decency and with honesty and how you can best relate to your fellow human beings, and I applaud you for trying to achieve those goals.
Let me take a moment, or a few moments, to tell you what motivates me in the work that I do as a public servant, as a senator from the state of Vermont. And let me tell you that it goes without saying, I am far, far from being a perfect human being, but I am motivated by a vision, which exists in all of the great religions, in Christianity, in Judaism, in Islam and Buddhism, and other religions.
And that vision is so beautifully and clearly stated in Matthew 7:12, and it states, "So in everything, do to others what you would have them to do to you, for this sums up the war and the prophets." That is the golden rule. Do unto others, what you would have them do to you. That is the golden rule, and it is not very complicated.
Let me be frank, as I said a moment ago. I understand that the issues of abortion and gay marriage are issues that you feel very strongly about. We disagree on those issues. I get that, but let me respectfully suggest that there are other issues out there that are of enormous consequence to our country and in fact to the entire world, that maybe, just maybe, we do not disagree on and maybe, just maybe, we can try to work together to resolve them.
Amos 5:24, "But let justice roll on like a river, righteousness like a never-failing stream." Justice treating others the way we want to be treated, treating all people, no matter their race, their color, their stature in life, with respect and with dignity.
Now here is my point. Some of you may agree with me, and some of you may not, but in my view, it would be hard for anyone in this room today to make the case that the United States of America, our great country, a country which all of us love, it would be hard to make the case that we are a just society, or anything resembling a just society today.
In the United States of America today, there is massive injustice in terms of income and wealth inequality. Injustice is rampant. We live, and I hope all of you know this, in the wealthiest country in the history of the world.
But most Americans don't know that. Because almost all of that wealth and income is going to thetop 1 percent.
You know, that is the truth. We are living in a time -- and I warn all of you if you would, put this in the context of the Bible, not me, in the context of the Bible -- we are living in a time where a handful of people have wealth beyond comprehension. And I'm talking about tens of billions of dollars, enough to support their families for thousands of years. With huge yachts, and jet planes and tens of billions. More money than they would ever know what to do with.
But at that very same moment, there are millions of people in our country, let alone the rest of the world, who are struggling to feed their families. They are struggling to put a roof over their heads, and some of them are sleeping out on the streets. They are struggling to find money in order to go to a doctor when they are sick.
Now, when we talk about morality, and when we talk about justice, we have to, in my view, understand that there is no justice when so few have so much and so many have so little.
There is no justice, and I want you to hear this clearly, when the top one-tenth of 1 percent -- not 1 percent, the top one-tenth of 1 percent -- today in America owns almost as much wealth as the bottom 90 percent. And in your hearts, you will have to determine the morality of that, and the justice of that.
In my view, there is no justice, when here, in Virginia and Vermont and all over this country, millions of people are working long hours for abysmally low wages of $7.25 an hour, of $8 an hour, of $9 an hour, working hard, but unable to bring in enough money to adequately feed their kids.
And yet, at that same time, 58 percent of all new income generated is going to the top 1 percent. You have got to think about the morality of that, the justice of that, and whether or not that is what we want to see in our country.
In my view, there is no justice when, in recent years, we have seen a proliferation of millionaires and billionaires, while at the same time the United States of America has the highest rate of childhood poverty of any major country on Earth. How can we? I want you to go into your hearts, how can we talk about morality, about justice, when we turn our backs on the children of our country?
Now you have got to think about it. You have to think about it and you have to feel it in your guts. Are you content? Do you think it's moral when 20 percent of the children in this country, the wealthiest country in the history of the world, are living in poverty? Do you think it is acceptable that 40 percent of African American children are living in poverty?
In my view, there is no justice, and morality suffers when in our wealthy country, millions of children go to bed hungry. That is not morality and that is not in my view ... what America should be about.
In my view, there is no justice when the 15 wealthiest people in this country in the last two years -- two years -- saw their wealth increase by $170 billion. Two years. The wealthiest 15 people in this country saw their wealth increase by $170 billion.
My friends, that is more wealth acquired in a two-year period than is owned by the bottom 130 million Americans. And while the very, very rich become much richer, millions of families have no savings at all. Nothing in the bank. And they worry every single day that if their car breaks down, they cannot get to work, and if they cannot get to work, they lose their jobs.
And if they lose their jobs, they do not feed their family. In the last two years, 15 people saw $170 billion increase in their wealth, 45 million Americans live in poverty. That in my view is not justice. That is a rigged economy, designed by the wealthiest people in this country to benefit the wealthiest people in this country at the expense of everybody else.
In my view, there is no justice when thousands of Americans die every single year because they do not have any health insurance and do not go to a doctor when they should. I have talked personally to doctors throughout Vermont and physicians around the country. And without exception, they tell me there are times when patients walk into their office very, very sick and they say, why didn't you come in here when you're sick? And the answer is, I do not have any health insurance or I have a high deductible or I thought the problem would get better. And sometimes it doesn't, and sometimes they die because they lack health insurance.
That is not justice. That is not morality. People should not be dying in the United States of America when they are sick.
What that is, is an indication that we are the only major country on earth that does not guarantee health care to all people as a right, and I think we should change that.
And I think -- I think that when we talk about morality, what we are talking about is all of God's children. The poor, the wretched, they have a right to go to a doctor when they are sick.
You know, there is a lot of talk in this country from politicians about family values. You have all heard that. Well, let me tell you about a family value.
In my view, there is no justice when low income and working class mothers are forced to separate from their babies one or two weeks after birth and go back to work because they need the money that their jobs provide. Now I know everybody here -- we all are, maybe in different ways, but all of us believe in family values.
Jane and I have four kids. We have seven beautiful grandchildren. We believe in family values. But it is not a family value when all of you know that the most important moments and time of a human being's life is the first weeks and months after that baby is born. That is the moment when mothers bonds with the baby; gets to love and know her baby -- dad is there as well. That is what a family is about. And those of you -- at least those of you who are parents -- more parents back here than there I suspect. You know what an unforgettable moment that is. What an important moment that is. And I want you to think, whether you believe it is a family value, that the United States of America is the only -- only -- major country on earth that does not provide paid family and medical leave.
Now in English, what that means is that all over the world when a woman has her baby she is guaranteed the right because society understands how important that moment is. She is guaranteed the right to stay home and get income in order to nurture her baby. And that is why I believe when we talk about family values that the United States government must provide at least 12 weeks of paid family and medical leave.
In my view there is no justice in our country when youth unemployment exists at tragically high levels. I requested a study last month from a group of economists. And what they told me is that 51 percent of African American high school graduates between the ages of 17 and 20 are unemployed or underemployed -- 51 percent.
We have in this country sufficient amounts of money to put more people in jail than any other country on earth. The United States has more people in jail than China; a communist authoritarian country.
But apparently we do not have enough money to provide jobs and education to our young people. I believe that's wrong.
I am not a theologian, I am not an expert on the Bible, nor am I a Catholic. I am just a United States senator from the small state of Vermont. But I agree with Pope Francis, who will soon be coming to visit us in the United States.
I agree with Pope Francis when he says, and I quote, "The current financial crisis originated in a profound human crisis, the denial of the primacy of the human person," and this is what he writes: "We have created new idols. The worship of the ancient golden calf has returned in a new and ruthless guise in the idolatry of money and the dictatorship of an impersonal economy lacking a truly human purpose," end of quote.
And the pope also writes, quote, "There is a need for financial reform along ethical lines that would produce in its turn an economic reform to benefit everyone. Money has to serve, not to rule," end of quote.
Now those are pretty profound words, which I hope we will all think about. In the pope's view, and I agree with him, we are living in a nation and in a world, and the Bible speaks to this issue, in a nation and in a world which worships not love of brothers and sisters, not love of the poor and the sick, but worships the acquisition of money and great wealth. I do not believe that is the country we should be living in.
Money and wealth should serve the people. The people should not have to serve money and wealth. (APPLAUSE)
Throughout human history, there has been endless discussion. It is part of who we are as human beings, people who think and ask questions, endless discussion and debate about the meaning of justice and about the meaning of morality. And I know that here at Liberty University, those are the kinds of discussions you have every day, and those are the kinds of discussions you should be having and the kinds of discussions we should be having all over America.
I would hope, and I conclude with this thought, I would hope very much that as part of that discussion and part of that learning process, some of you will conclude that if we are honest in striving to be a moral and just society, it is imperative that we have the courage to stand with the poor, to stand with working people and when necessary, take on very powerful and wealthy people whose greed, in my view, is doing this country enormous harm.
I was in Hong Kong last May, and took the funicular up Victoria Peak. There was a crowd at the bottom, and when I got off there was a crowd at the top (Hong Kong is like that). In fact, the landing at the top of the tram was basically a mall, full of luxury stores and restaurants, albeit with an astounding view:
Still, it was crowded. People jostled one another, talking in a hundred languages, pointing and taking pictures.
After a minute, I realized something: we weren't actually at the top of the mountain. There was a good 500-700 feet of elevation above us, at least. So I broke away from the crowd and started hiking up. Once I was out of the place, there were few people, then none. Eventually I got close to the top, and found this beautiful, quiet garden:
There I was, in the middle of this bustling world city, in this quiet peaceful place. It was a moment of joy.
It probably shouldn't surprise us that Jesus does exactly that-- he is showing us a way to Sabbath. I don't do it enough, though we have plenty of that right here in Minnesota...
Nkechi Taifa and I have a piece up at MSNBC, on race and clemency. I worry that we have lost track of the important tool that clemency can be to correct racially disparate outcomes we have seen for decades-- discrepancies that have done nothing to solve an problem, and have caused deep and enduring pain and division.
It was an honor to write the piece with one of my heroes. Nkechi Taifa has been a tremendously successful advocate, and has gotten results that matter-- among other projects, she led the way in getting rid of the 100-1 ratio between crack and powder in federal sentencing via the 2010 Fair Sentencing Act. Here she is talking about her work:
Fall is a delicious season in Minnesota. It is ripe and whole and perfect. There is the coming of winter, the inevitable snows, put off for this time of beautiful sunsets and crisp air. Apples spring forth, and tonight I heard the sound of a marching band nearby (and had to go investigate).
Let's haiku today about the signs of fall, wherever you are. I will go first:
The drumline calls out
To the squash and shorter days
I savor it all.
Now it is your turn! Just slap it into the comments section below, using the 5/7/5 syllable count. (and no, I did not pick this subject just to make the Medievalist feel homesick…).
I happened to be in Kentucky this week on Tuesday, giving a talk in the beautiful library at the University of Kentucky. It was a wonderful crowd with fantastic questions-- full of people with experiences richer and deeper than my own in some ways. Thanks to Katie Yunker and the others who organized the event!
Of course, the real news out of Kentucky that day had to do with Kim Davis, the clerk of Rowan County. Ms. Davis had refused to issue marriage licenses, because she believed it violated her "religious freedom" to do so after same-sex marriage became legal.
I've written before, and at length, about my disagreement with Ms. Davis's idea of living out her faith by denying things to other people.
Denying things to people, though, is a big idea to some Christians, and a large crowd gathered to hear Ms. Davis speak at a rally. Naturally, camera-seeking politicians were right there, with Mike Huckabee in the lead. If you haven't seen it yet, here was the scene as Ms. Davis made her statement to the press and several hundred of her fervent supporters:
Some people have reacted to this kerfluffle by arguing that public officials cannot bring their religious views into their work-- that if they do, they violate the Establishment Clause, as they are literally acting as the state at that time. In other words, Ms. Davis was the state in performing (or refusing to perform) her duties, and if she is guided by religion rather than law, that becomes a state religion.
Others, including Gov. Huckabee, believe that Ms. Davis should be able to do what she did if it results from a sincere religious conviction.
Yesterday, before my talk at the University of Kentucky, I found myself obsessed with the sports section of the Lexington Herald-Ledger. Specifically, I was fascinated by the names of the schools listed in the high school football rankings. This place is almost as goofy as Waco! Those names included each of the following:
Manual and, our winner:
Pleasure Ridge Park
Meanwhile, I loved the visit-- great people here, and fine hosts!
Today, I am at the University of Kentucky, giving a public lecture at 7:30 in the main library's auditorium. See the details here. I hope it goes better than last time (see above).
Many times, I drove between Waco and Detroit, and often this was an in-between place to stop. The land around Lexington is strikingly pretty, and there was always a part of me that wanted to stop and stay for a while. Now I get to do that, then get back in time to teach sentencing!
It's a busy month. Next week I will be in New Orleans to speak at the US Sentencing Commission's Annual Conference, and the week after that I'll first be heading to Nebraska to speak to the defenders there, then back to Minneapolis to debate the estimable and Hon. Richard Sullivan (SDNY) on narcotics policy at St. Thomas on Sept. 25. Here's the rub: there are four different topics for these four talks-- death penalty, clemency, defense strategies, and narcotics policy. Whew! It will get my mind revving for the new semester...
My favorite time of day is dusk; it always has been. As a kid, it was magical to ride my bike down Colonial Road in the fading light, over long shadows on the pavement. Now, I stop on the little bridge over Minnehaha Creek and feel that same small joy inside.
Why? I suspect that there is a mysterious appeal to dusk that is like the way we are drawn to the beach. It is a boundary, a border, between the known (the land, the day) and the unknown (the water, the night). We move from the familiar and safe to the dangerous, and there is this realm of beauty and truth in the interstices.
The world is designed this way. It isn't static; it moves, and carries us ceaselessly, inexorably between the known and the unknown, the light and the shadow. Dusk is that thrilling moment when we see the creation in full, a creation that does not stay the same or allow us to remain unmoved.
Yesterday Slate.com reporter Leon Neyfakh posted a great piece about a new article by former US Pardon Attorney Margaret Colgate Love. As many of you know, I've had an ongoing friendship and dialogue with Ms. Love over the past several years. Most recently, we debated key clemency issues last April here at St. Thomas. Admittedly, the discussion is often lopsided: She knows more about the institution than I do, and she has certain written more often about clemency policy. It is her writing that I assign to my clinic students (in fact, we will be discussing it next class). It is always best to be in dialogue with people who know more than you do; that way you learn with every discussion.
One of the key points of disagreement between us has been this: I have long argued that the pardon power won't be effectively used until the process is pulled out of the Department of Justice, and Ms. Love has held (often compellingly) that clemency could work within DOJ. As Mr. Neyfakh reports, she has reconsidered that view:
For a long time, Margaret Love resisted this point of view,
and was unwilling to give up on the idea that, with the right changes,
the Justice Department could still be turned into a reliable manager of
mercy. But in a new law review paper posted last week,
Love announced that she has changed her mind. She has watched, she
writes, as the Justice Department has become more and more reluctant to
recommend clemency candidates to the president and has concluded that
the process is irreparably broken. If it is to be fixed, she now
believes, responsibility for choosing candidates for clemency and putting them in front of the president must be taken away from the Justice Department.
For a long time, Margaret Love resisted this point of view, and was
unwilling to give up on the idea that, with the right changes, the
Justice Department could still be turned into a reliable manager of
mercy. But in a new law review paper posted last week,
Love announced that she has changed her mind. She has watched, she
writes, as the Justice Department has become more and more reluctant to
recommend clemency candidates to the president and has concluded that
the process is irreparably broken. If it is to be fixed, she now
believes, responsibility for choosing candidates for clemency and putting them in front of the president must be taken away from the Justice Department…..
Love is not the first person to argue that the Justice
Department has become ill-equipped to be dealing with clemency. But the
fact that she has come around to joining other experts who have made the
point—including the law professors Rachel Barkow and Mark Osler,
authors of a 2014 paper that was picked up by the New York Times editorial board—is
significant, in part because she’s such a prominent voice in the debate
over the pardon power, and in part because she’s someone who actually
worked inside the Justice Department. The question is what took Love so
long: After all, if the problem she has identified is a fundamental
conflict of interest on the part of the Justice Department, doesn’t that
mean it’s always been there?
“I was just kind of stubborn about it, because I believed in
the Justice Department,” she said. “I thought we could bring back the
old times, and now, I guess I’m just not persuaded that it’s possible,
not at this time.”
It's going to be interesting to see what happens in this discussion through the end of this administration and the beginning of the next….
I do a lot of things, but there is one primary job that is more important than all the others: I go into a classroom and teach students about the law, and the people who are affected by the law. It is an incredible pleasure to be able to do that, a dream come true, and the first week back in class is like a holiday to me.
It's a particular kind of holiday, too: It is the start of the new year. That first day of class is the breaking point; my heart runs on an academic calendar. There are new challenges, a new start, a new group in front of me. How exciting is that?