Osler's Razor

 

I'm devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990. I'm finding them to be pretty interesting, all these years down the road!

Stephen Gardbaum was another of those people whose education extended way beyond Yale Law. By the time I had graduated with my BA in 1985, he had gathered up both a BA from Oxford University and a master's degree from the University of London in Sociology and Politics. And before we graduated from law school, he had received a Ph.D. from Columbia in political theory. It's... pretty impressive.

After law school he found his way to the academy, first at Northwestern and then at UCLA, where he now holds the Stephen Yeazell Endowed Chair.

His specialty is comparative international law, and particularly constitutional law in the international context. Not surprisingly, he has been a visiting professor in Australia and France, and has published his work all over the place. If you want to check out what he does, you can read his upcoming (and quite timely) article, "The Counter-Playbook: Resisting the Populist Assault on Separation of Powers" here.

It's not my field-- but it sounds pretty interesting!

 

 Lots of great poems on the ways we treat ourselves; here are some of my favorites.

Mary Senneka had this, which I really liked:

The sunshine is warm.
Pillows, afghan on the chaise
An afternoon nap. 

And it is always good to hear from the Medievalist:

I’m making a smore,
Chocolate, gram-crackers and
A charred marshmallow.

My dad had an entry this week:

I hear the call to
dinner yet continue to
dab at the canvas

Jill Scoggins offered this:

Why go small with a
reward? Designer handbags
are best incentives.

While Desiree has an antidote to Zoom:

Staring at a screen
Teaching bio to kids earns
me some new perfume!

 

 A friend sent this to me-- an anti-drug film from the 1960's that was mostly seen by suburban white kids. I found it both troubling and mesmerizing.

 

 

I'm a Christian who works at a Catholic school and who holds a chair in preaching. I've given sermons in six states for four different denominations. Religion is important to me, and I have thought and written a lot about the role of faith in public life (and tried to live with a role for faith in my own public life).

 As President Trump has prepared to nominate a new Justice to the Supreme Court, there has been a fair amount of (probably accurate) speculation that the pick will be 7th Circuit Judge Amy Coney Barrett. I have colleagues that know her and think highly of her, and others who very much against her nomination (the latter group, I should note, does not include people who know her).

Judge Barrett is Catholic and reportedly a member of an ecumenical group called People of Praise, which has Catholic roots and fewer than 2,000 members in the United States. People of Praise was founded in South Bend, Indiana, where Judge Barrett taught at Notre Dame. 

In reaction to the idea that Barrett might be nominated, some people have declared that religion should be off-limits as a topic of inquiry, and that questioning her about her religious beliefs would be a form of discrimination against Catholics. 

I'm wary of that argument, and I would like to explain why.

Implied in that bar is the idea-- sometimes expressed openly-- that faith does not impact a judge's work. And that's where they lose me.

Faith, if it is real and whole and genuine, isn't segmented into one part of life or another; the God you see and feel and believe in is the God of your entire life. That doesn't mean, say, that you are going to start talking about Jesus in court, but it does mean that your faith is going to direct you as to what is important and what moral imperatives can be addressed through your work. What is a belief in God if that God can't follow you to the office? 

The truth is that for all of us our faith or non-belief shapes us, especially in forming the very morality that is going to guide us in our most important choices... and it should. That means that to truly understand a candidate for the court, that bar must be breached. And it is a bar-- after all, laws often prohibit employers from asking candidates for a job about their faith. 

Another way in which faith is a legitimate area of inquiry is in regard to religious diversity on the Court. Again... faith influences what we think is important and how we see the world. That means a diversity of viewpoints is a good thing in a deliberative body that represents the nation as a whole.

Of the 8 Justices now, two are Jewish (Kagan & Breyer), five are Catholic (Kavanaugh, Thomas, Alito, Sotomayor, and Roberts) and one (Gorsuch) was raised Catholic but worships as an Episcopalian. According to the Pew Religious Landscape survey, about 21% of Americans are Catholic-- but that 1/5th of the nation makes up either 62% or 75% of the Court (depending on how you categorize Gorsuch). While Catholics have a super-majority on the Court (which would increase with Coney), they are outnumbered in the United States not only by Evangelical Christians and by "Nones"-- those with no religious affiliation. Yet, those groups have no representation on the court.

If you're wondering if I raised this point with Obama's picks, well, yes I did. It even led to this strange exchange with Linda Greenhouse and Jeffrey Toobin on CNN (you have to scroll down some to get to it).

Here is what I said then about Kagan (to USA Today) and I would say the same now regarding Barrett: "She should not be called upon to defend her religious beliefs but in those areas where belief is going to inform a justice's principles, they should be open in letting the public know this. It should be part of the broader public discussion."

 

 I'm devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990. It's been an adventure.

Some of my classmates are easier to find than others. Sometimes I will throw their name into the googler and out comes thousands of hits: articles, photos, videos, the gamut. Other times there will be nothing at all. Once in a while, what I find is kind of reprehensible (ie, anti-LGBT briefs with a classmate's name at the bottom). And sometimes-- like this week-- I find just enough to be really intrigued (even though I couldn't find a photo).

Eric Jorstad was a little older than many of my classmates, but not much-- he had done some stuff before coming to law school.  He received a Masters of Divinity from Yale Div. School in 1982, and a second theology degree from Luther Seminary in St. Paul the next year, before serving as a Lutheran minister in Detroit.

After law school, he returned to Minnesota, clerked at the federal district court, and became a partner at Faegre & Benson (or Faegre and somebody-- they changed names a lot). Their offices are just a few blocks from mine.  He apparently has retired from the firm and might be in Arizona. ("might be in Arizona" is something you can say about a high percentage of Minnesotans). I did come across some recordings of his sermons.

What surprises me is that I haven't run into him! I mean... sermons, Detroit, Minneapolis, etc. But there is still time...

 

Recently, President Trump and the Justice Department announced that they were cutting off funding to three "Anarchy Jurisdictions"-- New York, Seattle, and Portland.

 Is it just me, or does an "Anarchy City" sound pretty fun? I mentioned this on Twitter (@oslerguy, if you are looking), and Steve Skarnulis gave me this song to hum:

 Take me down to Anarchy City/Where the grass if green/and the girls are pretty/Ohhhhhhh.... take me down...

Now I can't get that out of my head. But, really, I think the NYC tourism board really needs to do something with this. I mean, can you imagine the art scene in Anarchy City? Or the music? I'm so sick of COVID Lockdown City that my desire for Anarchy City is strong.

 Anyone want to go with me?

 Some great stuff last week!

We had this from Jill Scoggins, which made me (appropriately) sad:

Where are the students?
They should be here. Our campus
is empty, bereft.

The Medievalist is, I think, still a Minnesotan:

It is not ninety,
Gray clouds maybe suggest rain,
The days grow shorter.

Christine had her own take:

The lake is still warm
but winds from the NNW
harder to paddle.

And Desiree had a poem that made me wonder about whether or not she has horses:

The barn is cooler
The horses don't sweat so much
And the flies are gone!

 I think a lot of people are really tired.

There is good reason, of course. 2020 has been a hell of ride, huh? A pandemic that won't go away. An economy in the tank. A degrading and depressing political season. The death of a beloved Supreme Court justice and a lot of other admirable people. Plus, for many of us, there have been other things related and unrelated to all of this. I see terrible things happening to people around me, which make my own little hardships seem like nothing.

I find that it makes me quiet.

And maybe that is good. We see that over and over in the Bible: Jesus retreats from the others, and we see him in quiet. 

Not that there is not a lot to fight for. And we all will do that. But in this moment, we probably need to be unapologetic about those moments of quiet.

 

 

 

There is a lot of attention given to the presidential race, but that masks what may be just as important: the race for the US House and Senate.

Before I continue, I do want to note that the horse-race aspect of politics is over-emphasized, and I don't want to exacerbate that here. Also, it isn't just important whether we elect Republicans or Democrats, but what kind of Republican or Democrats we elect. For example, 2018 saw the election of a fascinating group of Democrats in the House who are both moderate and have proven to be highly competent (in the mold of Chet Edwards). This group includes Minnesota's Dean Phillips and California's Katie Porter. Both of them beat incumbent Republicans in districts that lean Republican (or did until 2018). You may have seen Porter questioning testifying witnesses with remarkable clarity (as in this hearing, for example). I'm really encouraged by the rise of these new faces close to the center.

According to the Washington Post, there are 13 Senate races where there is some element of competitiveness. Of those, two involve incumbent Democrats and 11 feature incumbent Republicans:

Alabama (Dem. incumbent)

Arizona (Rep. incumbent)

Colorado (Rep. incumbent)

Georgia (2 Rep. incumbents)

Iowa (Rep. incumbent)

Maine (Rep. incumbent)

Michigan (Dem. incumbent)

Montana (Rep. incumbent)

North Carolina (Rep. incumbent)

South Carolina (Rep. incumbent)

Texas (Rep. incumbent)

Of these, I would be shocked--shocked!--if the challenger wins in Michigan, South Carolina, or Texas, or the incumbent wins in Alabama. I suppose it might happen, but... it would be a leap. 

That leaves Arizona, Colorado, 2 in Georgia, Iowa, Maine, Montana, and North Carolina in play, with the Democrats trying to pick up 4 or 5 (provided they lose in Alabama) to take control of the Senate. 

Of those, I find the Maine race particularly interesting. A good case can be made that Susan Collins has served her state well, but she has not adjusted well to the age of Trump, and probably will not survive the image she created by repeatedly being gamed by Trump.  "I think he learned his lesson" may be the epitaph on her political gravestone.

Montana is intriguing, too. Senator Daines and former Governor Bullock (a Democrat) have a lot of overlap in their policy positions. I saw Bullock speak at a tiny cafe in Newton, Iowa during his brief presidential campaign, and my observation as I watched was that the guy clearly belonged in Montana. Which is one reason he is so popular there. 

Georgia? Who knows? It probably will depend on who turns out to vote on that day. But with two seats in play-- and two close races-- the swing is significant. Kelly Loefler, the appointed Senator, has faced strong opposition from the WNBA team she owns, which is, um, not a good look.

In the end, the table slants towards the Democrats.

If they win, we will all be watching what they do with it. Despite the Trump campaign's inane blathering about Biden being captured by the far left, the truth is that Biden is a centrist who longs to forge good law in a bipartisan way. We know that because he acted that way for decades in the Senate, and says (to some derision) that he will do the same as president.  If moderates win their races in places like Montana and North Carolina, he will have allies in the Senate who can help him with those efforts. 

I've been devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990.

This week, I think I will finally get around to profiling myself. And that is pretty much summed up in this video about me and IPLawGuy:

 

 Nice haiku this week!

There was this from Jill Scoggins:

Jackie, JFK
in that car in Dallas. NO!
Go back, y'all, go back!

And a nice poem from David Best:

Real-life dead soldiers.
Killed by American might.
Things you don't forget.

The Medievalist excelled:

Jet into tower,
All billowing smoke and flame,
Crashing down, all dead.

And we got this from J-Say:

Until we are ash,
Rage has a scent that lingers
Oh blue where are you?

The images from California, Oregon and Washington are awful: smoke filled skies turn day into night, as fire consumes hundreds of thousands of acres. 

It is hard to see without thinking "apocalypse." It isn't that, of course, not in the Biblical sense, but it is transformative and terrifying. Experts say that global warming has created events that accelerate one another, as heat waves dry up the land that is then primed for fire, which diminishes the vegetation that cools down the environment in that area. 

It is confounding that our nation has chosen this path. We are almost alone among Western industrialized nations in rejecting any kind of serious effort to restrict global warming, and our inaction is used as an excuse by the worst offenders to not address their problems. Just as the global warming events create a causal chain, so do our political issues.

Is this a spiritual issue?

How could it not be? Who do people think created this Earth? How in the world can it be seen as something we consume rather than conserve? 

I have this piece in tomorrow's Waco Tribune. I hope it maybe makes a tiny difference in at least one person's discussions.

 

 

I'm devoting Wednesdays on the blog to profiling my classmates in the Yale Law School class of 1990.

Jim Brochin was one of my favorite people to hang around with at YLS. I remember once coming across him as he was rollerblading through New Haven, and talking about hockey-- something we both found pretty fascinating. Jim was double-Yale, having graduated from the college in 1984, so he knew his way around. He was a great person to have in class, too: smart, insightful, and funny.

After law school he clerked for Hon. Kimba Wood in the SDNY, a prized clerkship given Wood's high profile and leadership in the bar. After that he worked for an Independent Counsel (but not that one) in the investigation into the former Agriculture Secretary, Mike Espy.

Since then, he has become one of the best white-collar defense attorneys in New York. He now works as a partner at Steptoe, where he has continued to be a leader in the field.

In addition, he has done a lot of work with the Innocence Project, which I greatly admire (but have never been affiliated with-- clemency work is more like the Guilty Project most of the time).  

If we ever get to have a reunion, Jim is one of the people I would most want to catch up with; I'm confident he has built up a pile of good stories I would love to hear. 

 

 At the moment, President Trump is trying to whip people into fear of left-wing extremists. Certainly, the evidence shows that such extremists exist, and that they can be dangerous. But the evidence also shows that right-wing extremists have done far more damage than leftists. The General Accounting Office-- hardly a biased source-- reports that over 70% of terrorist incidents in the US from 9/11 through 2016 (including those by Islamic terrorists) were committed by those on the right. Consider these incidents, for example (all of which were committed by people who publicly espoused right-wing ideology):

-- Timothy McVeigh was a right wing extremist who quit the NRA because he felt they were too weak on gun rights. He killed 168 innocent people and injured over 600 in the 1995 bombing of the Oklahoma City federal building.

-- Between 1996 and 1998, Eric Rudolph bombed abortion clinics, a gay bar and the 1996 Atlanta Olympics, creating over 100 causualties.

-- In 2008, a right-wing terrorist shot up a Unitarian Church in Knoxville, killing two and injuring eight people.

-- In 2010, a right-wing terrorist shot up a bookstore in in Wichita Falls, killing one and injuring four innocents.

-- In 2012, six people were killed by a right-wing terrorist at a Sikh temple in Wisconsin.

-- In 2013, six people were injured and one died in a right-wing terror attack at LAX.

-- In 2015, an attack on Emmanuel AME church in Charleston left nine dead.

-- In 2017, a car attack on counter-protesters injured 19 and killed one in Charlottesville.

-- 2018 was a big year for right-wing terrorists. They killed 11 people at a synagogue in Pittsburg, two people at a Kroger store in Kentucky, and two more at a Yoga studio in Florida.

-- In 2019, 23 people were killed by a right-wing extremist at a Walmart in El Paso.

President Trump argues that those who oppose him are lethally dangerous. However, it is those who support him who appear to be more dangerous. 

 In writing about what it is like this time of your, we got input from five very different places.

Christine is in North Carolina (but from Michigan):

Shadowy sunlight
the clock reads seven a.m.
The dogs still sleeping

Gavin is from the Dakotas:

Blood sucking skeeters
They ruled summer, but no more!
First frost frees us all.

Megan Willome is a Texan:

You must be alert
to notice Texas autumn,
but today, it's real.

The Medievalist is a Minnesotan:

Summer is over,
Cool nights, fresh mornings, short days,
Winter is waiting.

And Desiree hails from Virginia:

Never liked school, but
September meant new school clothes
and I did like those!

 

 

I taught my first class yesterday, and it was glorious-- real students in front of me. I was kind of giddy about it.

To me, this is the start of the year, when the calendar flips. And the day cooperated with that in every possible way. I walked into my back yard to do the crossword puzzle in the Times, and I went back in to get a sweatshirt. Which means that the heat has broken, and the chill of the evening is here (at least in Minnesota).

Let's haikus this week about this unique and kind of thrilling time of year. Here, I will go first:

The shadows got long
Sooner than I expected;
And the moon, golden.

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

If you are over 30 or so, you probably remember the December, 2000 Supreme Court decision in Bush v. Gore, which cut short a recount of votes in Florida, giving the election to George W. Bush. Part of that decision was premised on the fact that two different counting methods were used in different Florida counties.

In the opinion, the court included this odd line:

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Everyone assumed it was a unique situation that would never come up again. In fact, the Court has not cited to it since. However, that precedent should scare us a little right now.

Imagine this:

The night of the election on November 3, the early returns show a Trump lead, but because mail-in ballots remain to be counted, there is no result announced.

Immediately, Trump sues to stop the counting of ballots, claiming the kind of irregularities cited in Bush v. Gore. Judges he appointed stop the counting in some places, and litigation makes a mess of the whole thing. In the confusion, Trump claims victory, and we never really know what the outcome should have been.

Bush v. Gore was a terrible decision. I think the Justices in the 5-4 majority justified it by imagining that the situation would not arise again. That could turn out to be an error of historic proportions.

I've devoted Wednesdays on the blog to profiling my classmates in the Yale Law Class of 1990.

Robert Rivera Jr. was one of a small group of people coming to New Haven from Texas (he had just graduated from the University of Texas-Austin). Little did I know that I would later live in Texas for 10 years-- I should have asked more questions of friendly Texans like Robert.

After law school, his story is remarkably simple (especially compared to the wandering around people like me did on their way to finding their calling. 

Right out of school, Robert started working for Susman Godfrey, a large national law firm. He made partner in just five years. AND... he's still there. That's remarkable stability. He specializes in complex high-stakes litigation, and has worked on cases across the country and around the world. As someone who got worn out by simple high-stakes litigation (criminal prosecution), I admire his longevity in the field!