The defendant blamed the corrupt judge and rigged trial. He called it a disgrace, over and over.  He lied about his ability to defend himself, claiming the gag order prevented it when the choice was his whether to testify. Of course, testifying would have been critical if he wanted to claim innocence, but then he would have been subject to cross. There is no one who believes he would have done well on cross.

Justice Juan Merchan was exceptionally fair to the defendant, far more so than judges usually are to defendants. His charge, that the jury did not have to be unanimous as to the crime he intended when he falsified business records, is legally correct under existing New York law, even if the law is dubious. Despite the defendant smearing the judge at every opportunity, the judge bent over backwards to give Trump a fair trial.

In his opening, Todd Blanche argued that the defendant never had sex with Stormy Daniels. It was irrelevant to the case and unnecessary to assert. By doing so, it opened the door to Daniels’ salacious testimony. As Andy McCarthy wrote, this was pure Trump hubris, his inability to admit fault and need to deny everything, relevant or not. For all the grievances he has against the judge and prosecution, they couldn’t have pulled it off without Trump being Trump.

There is little doubt that Blanche argued that Trump never had sex with Stormy because Trump demanded it. There is little doubt that Robert Costello was called as a witness because Trump demanded it, certain that he would destroy the disloyal Michael Cohen because that’s how Trump thinks it should work. It was a disaster on a number of levels, likely aided by Costello’s refusal to be prepped for trial because he was too important a person. He knew what he was doing and didn’t need any prep. He would give Trump exactly what Trump wanted. And in a way, he did.

Had Trump received a better, a more competent, a lawyerly defense, there was a good likelihood he would have beaten the case. But Trump is Trump. He knows more than the generals. He knows more than the lawyers. If they wanted to continue in this megalomaniac’s service, they would do as they were told.

The defense needs its own story, and in my experience, the side that tells the simpler story at trial usually wins.

Instead of telling a simple story, Mr. Trump’s defense was a haphazard cacophony of denials and personal attacks. That may work for a Trump rally or a segment on Fox News, but it doesn’t work in a courtroom. Perhaps Mr. Trump’s team was also pursuing a political or press strategy, but it certainly wasn’t a good legal strategy. The powerful defense available to Mr. Trump’s attorneys was lost amid all the clutter.

Whether Trump’s lawyers lacked the skills needed to effectively cross witnesses is unclear. From media accounts, the crosses were disjointed and largely ineffective, but that’s through the lens of people who were not inclined to be kind to Trump. Then again, Todd Blanche’s experience was as a federal prosecutor, and prosecutors rarely are skilled at cross examination. They just don’t get much opportunity to hone their skills as defendants rarely call witnesses.

Because the defense denied everything and attacked Mr. Cohen on every point, prosecutors were able to focus on the many points where Mr. Cohen’s testimony was corroborated by documents, phone records, text messages and a recording. If the defense had narrowly focused on the key points on which that testimony was not corroborated, it could have undermined the prosecution’s advantage.

Not being privy to the internal defense discussions between lawyer and client, I can’t say with certainty that Trump’s lawyers, if left to their own devices, would have tried a better case, would have crossed witnesses differently, would have conceded the points that were obvious rather than proffer incredulous denials that made them, and the defendant, look foolish and false.

But knowing what and how Trump conducted himself over the years, there is little doubt that he was directing the show and that what happened in the well was what Trump demanded happen. Trump has never had the strength or intelligence to grasp that he was not the smartest guy in the room. He dictated how the case would be tried, even though his lawyers had a duty to provide a zealous defense despite their client.

They could have asked for the judge to charge the lesser included offense of falsifying business records in the second degree, a misdemeanor. But that would have meant that Trump more or less conceded guilt as to falsifying records, even if not for some collateral criminal purpose.

But Mr. Trump’s team went for broke, deciding not to seek a jury instruction that would have permitted jurors to find that Mr. Trump committed a misdemeanor rather than a felony. It’s unclear whether that decision to deny the jury an option that would have given the defense a win was an act of hubris or a refusal to compromise, but both are characteristics of Mr. Trump that don’t translate well into a criminal trial.

This case could have been won, even in Manhattan with a jury that was unlikely to have warm feelings toward the defendant. Even with a judge who was unlikely to ever vote for him. Even with the state of the law working to facilitate a conviction by leaving the enhancement crime vague and not requiring unanimous agreement as to that final prong of the crime.

The reason Trump was convicted was Trump.

The Tennessee Learning Loss Remediation and Student Acceleration Act updated the state’s third grade retention requirements and requires intervention for some students before they can be promoted to fourth grade. Starting in the 2022-23 school year, third grade students who score “below expectations” or “approaching expectations” on the third grade ELA TCAP shall not be promoted to the fourth grade unless they meet the requirements.

For those in the audience who don’t speak bureaucrat, allow me to humbly translate. A child’s success or failure during their third grade year is no longer decided in a collaborative effort by parents and teachers. Instead, it’s decided in one section of the third grade TCAP testing—the ELA reading comprehension section.

Children in this part of their standardized assessments are given material to read and write several essays on. If an independent third party reading these essays determines the child is “below expectations” or “approaching expectations” they will repeat third grade unless they participate in “interventions.” These interventions take two forms: summer school or year long tutoring in fourth grade. If a child has to participate in one of these, they are at risk of being held back in fourth grade should they not “meet expectations” again.

Parents and teachers have two options if a students doesn’t meet expectations. One is to retake the test, but in a multiple choice format. The other is “repeated interventions” that take up a child’s summer and school year.

As could be expected, the legislature got what it wanted good and hard.

As the reading law took effect last year, 60% of third grades fell short of the state’s reading benchmark.

...[M]ore than 12,000 opted into yearlong tutoring in fourth grade. Those students must now show adequate growth or again face retention. A state education department projection estimates up to 6,000 of those fourth graders may be retained this year.

The state Board of Education says this is a bad law requiring correction. Parents of retained children or those affected by the law’s interventions say the ordeal places undue stress on families. Hospitals in Tennessee are seeing a 50% increase in emergency room visits for anxiety during the testing periods.

When faced with the horrendous consequences of a bad law, do those with the final say over the education of Tennessee’s children attempt to course correct? Of course not. They double down.

Retaining students in grades K-3 rather than grades 3-4 will ensure that students who are in the most need of additional reading support will have access to foundational literacy skills instruction at a critical point in their foundational literacy development should they be retained...

According to Tennessee’s experts in education, the answer isn’t working with the parents to construct learning plans that address student needs. It’s to fail kids earlier based on one test. Failing them when they’re younger just means they get the negative effects of being held back when children are more “resilient.”

While years of research shows the overall costs and benefits of retaining students are unclear, the general consensus among researchers and educators is that the earlier a struggling student is retained, the better the outcomes for that student.

How is putting a child at risk for dropping out of school earlier better? Or giving a kid anxiety over testing? Maybe there’s some benefit to turning kids off of reading for pleasure parents haven’t fully been briefed on yet? Whatever the case, absent some miracle that sees a legislative body acting with speed and the will of the people, changing this horrible law will take significant time, putting many students at risk of repeating grades twice based on the subjective assessment of one person reading a nine year old’s essays.

H.L. Mencken once said “There is always a well-known solution to every human problem—neat, plausible and wrong.” Tennessee’s elected officials either are unaware of Mencken’s wisdom or are damned intent on proving him correct by sticking to their belief a child’s educational success should hinge on one test.

This will harm more children than it helps. That much is playing out in school districts across Tennessee. None of this addresses the issues most everyone acknowledges were fundamental to the problems: that we screwed up bad when it came to kids during COVID and we could’ve done a lot better.

Self-reflection, unfortunately, is something no politician or “expert” seems capable of these days.

Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial.

Okay, this doesn’t reflect a rational argument in opposition, but it was a nifty turn of phrase. Raskin goes on.

The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.

The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.

In other words, they can ask the other justices on the Supreme Court to . . . do something? Granted, there is a strong due process component to having a fair and impartial justice sit in judgment, but that doesn’t mean that one group of justices has any authority to tell another that they’re off the case. There is obviously no process for such a petition, although that doesn’t preclude the attorney general from making up his own form of petition and having it sent over  to the Court. The problem is what would the justices do with it when it got there?

As for 28 USC § 455, relating to the disqualification of judges and justices when their impartiality can reasonably be questions, Raskin makes a strong case that it’s applicable on its terms to the Supreme Court, since there are no justices to be found elsewhere in the federal judiciary. Where the argument unravels, however, is that he neglects to take note of the fact that the judicial branch of government, consisting of the Supreme Court and whatever lower courts Congress may create, is co-equal to Congress.

The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges[.]

See how he tries to shoe-horn “federal laws under it” into the mix, as if laws enacted by Congress are the same thing as the Constitution. Laws carry weight as to pretty much everyone in government, but they do not enable one branch of government to tie the hands of another.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.

Curiously, Raskin argues the a co-equal branch of government would “trespass on the constitutional separation of powers” by not subjecting itself to Congress’ command. While Congress is not without the power to affect the Court, whether by paying salaries to justices, determining the number of justices to sit on the Court (the Constitution only requires a Chief Justice, without any particular number of associate justices), or respecting the Supreme Court’s authority to determine whether its “commands” are constitutional or not, nowhere in the Constitution does it state that Congress gets to command whether another constitutional officer is empowered to perform his constitutional duty.

Even if there were a mandate requiring Supreme Court justices to adhere to a Code of Ethics, which no reasonable person could argue against since no one wants an unethical justice sitting on the Court, there remains the ancillary problem of how it could happen, there being no mechanism by which to charge, investigate and determine whether an ethical lapse occurred. But that is downstream from the solution argued by Raskin, that whether a justice is ethical or not, violates due process by lacking impartiality or not, it is not Congress’ “command” that matters, save for one instance.

If representatives in the House decide that a justice has gone rogue, the Constitution provides for a remedy. Impeachment. Beyond that, Raskin’s cred as a former con law prawf isn’t good enough to carry his argument up the hill.

But what about wars that are existential?

We know how America fought such wars. During the siege of Vicksburg in 1863, hunger “yielded to starvation as dogs, cats, and even rats vanished from the city,” Ron Chernow noted in his biography of Ulysses Grant. The Union did not send food convoys to relieve the suffering of innocent Southerners.

In World War II, Allied bombers killed an estimated 10,000 civilians in the Netherlands, 60,000 in France, 60,000 in Italy and hundreds of thousands of Germans. All this was part of a declared Anglo-American policy to undermine “the morale of the German people to the point where their capacity for armed resistance is fatally weakened.” We pursued an identical policy against Japan, where bombardment killed, according to some estimates, nearly one million civilians.

Over the past 50 years, however, America has become a dilettante warrior, punching with one arm tied behind its back and, ultimately, walking away in sniveling failure, with myriad excuses to conceal the shame of being a loser.

We withdrew in humiliation from Saigon in 1975, Beirut in 1984, Mogadishu in 1993 and Kabul in 2021. We withdrew, after the tenuous victory of the surge, from Baghdad in 2011, only to return three years later after ISIS swept through northern Iraq and we had to stop it (which, with the help of Iraqis and Kurds, we did). We won limited victories against Saddam Hussein in 1991 and Muammar el-Qaddafi in 2011, only to fumble the endgames.

And that’s the mentality Americans have brought to their positions on Ukraine and Gaza, wars which evoke passion but, let’s face it, are hardly existential to most of us. Winning or losing, or something in between, is mostly fodder for passionate arguments, after which we will drink chard or a PBR and munch on Fritos.

But can’t we do better, now that we have more sophisticated tools of war? President Biden keeps calling on Netanyahu to do more to avoid harming civilians. President Biden refuses to give Zelensky fighter planes to safeguard its skies from Russia. Why can’t we do battle nicely, without killing the undeserving or escalating the already inflamed passions?

This often ends in tragedy, as it did on Sunday when an Israeli airstrike targeting Hamas leaders reportedly led to the deaths of at least 45 civilians in Rafah. This has always been the story of warfare. Terms like “precision weapons” can foster the notion that it’s possible for modern militaries to hit only intended targets. But that’s a fantasy, especially against enemies like Hamas, whose method is to fight and hide among the innocent so that it may be rescued from destruction by the world’s concern for the innocent.

It’s equally a fantasy to imagine that you can supply an ally like Ukraine with just enough weaponry of just the right kind to repel Russia’s attack but not so much as to provoke Russia into escalation. Wars are not porridge; there’s almost never a Goldilocks approach to getting it just right. Either you’re on the way to victory or on the way to defeat.

For Ukraine and Israel, these wars are existential. They can either win or lose, and if they lose, the consequences will mean their existence comes to an end. But are we not concerned with humanitarian needs? Should this not trump the “win at any cost” view of war?

But the tragedy of America’s recent battle history is that thousands of those soldiers died in wars we lacked the will to win. They died for nothing, because Biden and other presidents belatedly decided we had better priorities.

That’s a luxury that safe and powerful countries like the United States can afford. Not so for Ukrainians and Israelis. The least we can do for them is understand that they have no choice to fight except in the way we once did — back when we knew what it takes to win.

War is hell, not because we want it to be or we lack the will to do better, but because that’s the nature of war. We used to know that when we won wars, but that was when winning was existential to the United States. We’re now dilettantes in other people’s existential wars. They didn’t ask for wars. Ukraine didn’t ask Russia to invade. Israel didn’t ask Hamas to invade. But it happened and they are now compelled to deal with it. They have the will because they have no choice. We do not.

But Orin questions the opposite direction, whether others assigning meaning to a word or phrase somehow imputes that meaning to its speaker. Forget Humpty Dumpty, and consider whether the listener is master rather than the speaker.

The Alito flags raise one recent example, but I see this as a recurring dynamic. What does “from the river to the sea” mean? What is “critical race theory”? What does “all lives matter” mean? A surprising amount of politics ends up being channeled through contested meanings of used phrases and symbols.

I’m sure there’s an academic phrase that already describes this.  But in the absence of knowing it, I will call this the strange politics of meaning assignment.  Here’s the idea.  In a polarized political environment with little communication between the two sides, you can easily rile up your side by providing an uncharitable interpretation to the other side’s symbols or phrases. This is what that means, you announce. Now you can see the real them. Finally, they are saying the quiet part out loud. This is who they are.

While he’s certainly right that adversaries in our polarized society will impute an “uncharitable interpretation to the other side’s symbols or phrases,” is the problem that it may not reflect the speakers’ or users’ intended meaning?

Sometimes that assigned meaning is correct, and being uncharitable is just being accurate.  In that case, fair enough. But, often enough to matter, meaning might be contested. A particular symbol or phrase may have different meanings to different people.  A particular use may be innocuous or in a context where the meaning is uncertain.  In that setting, assignment of meaning can cause a lot of trouble.  It can effectively create a meaning that isn’t what those who use that symbol or phrase mean.

What was intended by Justice Alito’s wife flying the American flag upside down? Many point out that it’s a distress symbol, but that wasn’t Alito’s explanation. As for the Heaven flag, many point out that it’s a historical flag that goes back to the revolution. But Alito never said that. At the same time, Alito knew that it was improper, not to mention stupid, to invite questions as to his engaging in politics that would be viewed as compromising his impartiality. Does the meaning matter? Does ascribing meaning to the flags change the fact that a Supreme Court justice should hold himself above the political fray? And when his spouse’s conduct is indistinguishable from his, say with a flagpole at their mutual home, should his spouse find a different way to express her views that won’t taint her husband, the justice?

As for Orin’s other example, the phrase “from the river to the sea,” it had a definitive meaning long before it was heard on American college campuses. Granted, many of the chanters might be unaware of its meaning, just as they’re unaware of what river and what sea it’s talking about, and they’re just being part of the tribe by regurgitating the sounds the rest of their friends are making. But do they get to claim some other meaning, as Rashida Tlaib claimed it was a chant of peace?

From the river to the sea is an aspirational call for freedom, human rights, and peaceful coexistence, not death, destruction, or hate. My work and advocacy is always centered in justice and dignity for all people no matter faith or ethnicity.

Do we each get to reinvent the meaning of whatever we say or do, or are there meanings and definitions that people should be held to if they choose to use a symbol or phrase? And if people are unaware of them when they use the symbol or phrase, does that absolve them of responsibility for doing so without first taking responsibility for their actions?

To Orin’s point, it’s no different if meaning is assigned by others to a person’s use of a phrase or symbol, whether charitably or otherwise. In some instances, there are legitimate questions as to what is meant when a phrase of symbol is used. But most of the time, there is a definition to be had and efforts to spin it into some benign, if not positive, meaning are nonsense. And then there are instances where a disputed meaning doesn’t matter and the very fact that a question is raised reflects the impropriety of its use.

Did other fathers teach this lesson to their children? Apparently not.

Shameful Princeton students rush to stop a MEMORIAL DAY parade after spotting American flags coming towards them.

Hundreds of activists charged onto the road and sat down while shouting “Free Palestine” at the parade marchers who were honoring fallen service members & veterans. pic.twitter.com/dSQWK0J4YD

— Oli London (@OliLondonTV) May 26, 2024

Without regard to their purpose in protesting, was a parade in honor of those who died for their right to chant slogans unworthy of sufficient respect to not be turned into a performative platform? Is there nothing that matters more than whatever orthodoxy seizes the moment?

Americans fought and died for them. Would they do the same for anyone else, or is this about playing activist in the street to block a parade honoring men and women who deserve our respect but won’t get it from these children.

On twitter, I wrote that it’s sad that they care so little for fallen American servicemen. In reply, Michael Bailey corrected me.

They care. In the wrong direction.

— Michael Bailey (@profjmb) May 27, 2024

We need to teach our children to honor those who gave their lives so they could protest, no matter how foolish and misguided their protest might be. Happy Memorial Day. God bless America.

Image shamelessly stolen from Dan Hull.

It was students whose twisted, childish grasp of facts turned terrorists into freedom fighters, who made excuses for why rape was, this time, justifiable.

And they did so at the expense of their fellow students, whose concerns were secondary to their cause because their cause was more important. Their cause is always more important, but it went so far as to physically block students who failed to profess devotion to their cause from access to campus, harassing them, abusing them, calling for the death and destruction of the only Jewish homeland that exists, after they were driven out and put to death for being Jewish.

And they refused to see any connection because they didn’t want to. They wanted to belong to the rebellious mob, the woke fighting for what they believed to be justice as if every woke battle was somehow tied to the plight of Palestinians. After all, wouldn’t the Palestinians fight for gay justice, trans justice, racial justice, gender justice, all justice, just like them because that was what the woke orthodoxy proclaimed?

And they could prove they were on the right side of history because there were Jews in their camp. If they were antisemitic, then why would Jews choose to join them? The answer is sad, pathetic, but clear: The Jews, whose identities were melded with progressive ideological orthodoxy, needed to belong, and the way to belong was to believe as their tribe believed, do as their tribe did.

Then they would be the “good Jews,” the ones that the woke mob accepted, if not embraced because they gave cover to the lie that their called for the eradication of Israel didn’t make them anti-semitic. They could all feel good about themselves by believing they were the moral ones, the ones on the right side of history who stood for the oppressed and marginalized identities against the evil, genocidal Israeli villains who deserved what they got on October 7th because of their stealing the Palestinian homeland and putting Palestinians into an open-air prison, killing their babies and destroying their homes.

There is nothing surprising about any of this. These are sad, pathetic children with a hole in their lives that needs to be filled with purpose. And so they invent one and it gives them a reason to exist. That it’s wrong, false, misguided and contrary to reality doesn’t concern them. Everybody in the encampment agrees with them and supports their belief, and that’s the only thing that matters.

They believe, so they belong. If not, they would have no reason to exist. It’s just a way to fill that huge empty space in their soul that, in earlier generations, was filled by family, religion, by patriotism, by having an identity that provided shallow minds an explanation for why they wake up in the morning. The difference this time is that they do so at the expense of their fellow students rather than some faceless militaristic bureaucracy that brings boys home in a box. But that’s the price of being accepted by the tribe and belonging. Nothing matters more than belonging, and so they believe.

I made sure that he knew.

The Biden DOJ and FBI were planning to assassinate Pres Trump and gave the green light.

Does everyone get it yet???!!!!

What are Republicans going to do about it?

I tried to oust our Speaker who funded Biden’s DOJ AND FBI, but Democrats stopped it. https://t.co/XSTevEQsNI pic.twitter.com/o0lUjcEdix

— Rep. Marjorie Taylor Greene (@RepMTG) May 21, 2024

The concern is that some Trump acolyte will fail to realize this is lunacy and believe, in his deepest heart, that this is real and that, as a patriot, he must act to prevent the murder of his fearless leader. Whether it will manifest in attempting to kill an FBI agent or someone else can’t be known in advance, but the fear that someone will do something is, sadly, real.

Special Counsel Jack Smith has sought an order to Judge Aileen Cannon to modify the terms of Trump’s release in order to prevent him from riling up his minions in a way that could cause them to engage in violence.

Federal prosecutors on Friday night asked the judge overseeing former President Donald J. Trump’s classified documents case to bar him from making any statements that might endanger law enforcement agents involved in the proceedings.

Prosecutors tendered the request after Mr. Trump made what they described as “grossly misleading” assertions about the F.B.I.’s August 2022 search of Mar-a-Lago, his private club and residence in Florida. This week, the former president falsely suggested that the F.B.I. had been authorized to shoot him when agents discovered more than 100 classified documents while executing a court-approved search warrant there.

Whether Judge Cannon will issue such an order, and whether she will do so within a meaningful time frame, has yet to be seen. But so what? If it isn’t Trump saying so, it will be any one of the red tie brigade spewing his talking points as his proxies. Even if Trump is gagged, there’s a gaggle of congressfolx happy to say that words Trump can’t. They are not subject to the court’s jurisdiction, even if Judge Cannon is inclined to act. That they put the FBI, and perhaps others, at credible risk of violence in service of one of the most ridiculously stupid and dangerous claims possible does not appear to concern them.

By falsely suggesting that F.B.I. agents “were complicit in a plot to assassinate him,” prosecutors wrote, Mr. Trump exposed them “to the risk of threats, violence and harassment.”

“Those deceptive and inflammatory assertions irresponsibly put a target on the backs of the F.B.I. agents involved in this case, as Trump well knows,” prosecutors wrote.

While there may be little more that Smith can seek beyond a gag order, or modification of his release terms, this will hardly end the threat. In another time, such an accusation would have spelled the end of a candidacy, as someone so flagrantly insane, stupid or both, would be  publicly recognized as totally unfit for office. No more.

There is no depth to which Trump won’t sink, and no depth to which his sycophants won’t follow him, to paint himself the victim in need of saving by his supporters because he’s so weak and helpless. And send money too, because he’s really rich but would really prefer to spend your money rather than his so he can stay really rich.

The problem isn’t whether Judge Cannon should modify his release terms, although she should. The problem is that there is no fix when there is no shame, no limit to the lies one is thrilled to spew to remain in the good graces of a graceless man. The law doesn’t provide a solution for every wrong man can conceive, and so we rely on the sense of propriety and integrity of the public to reject such lunacy as this.

And yet, that is cold comfort should some unduly passionate Trump supporter believe that he is saving America by acting to protect Trump.

To bolster their point, prosecutors reminded Judge Cannon that days after the search of Mar-a-Lago — a legal investigative step that Mr. Trump condemned on social media as an attack against him — an armed man in Ohio tried to shoot his way into an F.B.I. field office near Cincinnati.

The man, Ricky W. Shiffer, had said at the time that “patriots” should head to Florida to defend Mr. Trump and kill F.B.I. agents. Mr. Shiffer was ultimately killed in a shootout with the local police.

Would Ricky Shiffer, who almost certainly believed he was serving his nation by killing FBI agents, have been less inclined to commit murder if Trump’s words came out of a proxy’s mouth? No gag order can fix the sincere and “well-intended” belief of a nutjob brought about by the lies and/or ignorance of another nutjob. This is where we are now. They can’t be stopped from spewing lunacy, but we can recognize it as lunacy, reject it and condemn those proxies so devoid of shame as to spew it.

Good afternoon. Before I begin, if everyone could please deactivate your explosive vests, remove your keffiyehs and silence your cell phones until commencement exercises conclude, that would be appreciated.

Also a brief housekeeping note: If anyone knows who spilled red paint all over the Student Union men’s bathroom, please invite them to clean that shit up. This isn’t a daycare and none of you are toddlers. Allegedly.

Now let’s begin. Dear Class of 2024 of the People’s School of Gaza: Congratulations. You did it.

What you did beyond holding parts of the University of Tennessee campus hostage, screaming obscenities at Jewish students, and generally behaving like entitled brats, I’m not sure. But you damn sure accomplished those three things, which means you’re officially as bad as the children at Princeton, Harvard, Yale and Columbia.

Let’s go back to the beginning of May when a few of you who didn’t get enough love and attention as small tykes started this “exercise in free speech.” For the alleged “benefit” of people half a world away who don’t give a damn about you or what you think you stand for, the lot of you thought it was a great idea to make your fellow students at UT’s lives hell.

So you stomped your feet. Chanted slogans like “From the River to the Sea,” “We want 48, Not No Two State,” and “Death to America.” You made your little signs, waved Hamas flags and donned keffiyehs because someone online told you it was a great way to stand against “Colonization” and “Imperial Zionism” or some such nonsense. Harassed Jewish students on campus who had jack all to do with this mess.

Are you really still surprised the lot of you got arrested?

Things really got ridiculous last week when you tried to take over the College of Law’s lawn for your little “Nakba” vigil—an event if any of you’d bothered to do ten seconds of research commemorated the mass slaughter of Israeli Jews. As do most “holidays” Hamas celebrates. But no, you wanted to have another reason to throw a tantrum and demand you get your way.
So you celebrated the slaughter of Jews. Remember that.

When the College of Law’s Dean came to let you know you’d repeatedly violated the University’s time, place and manner restrictions with your tantrums and you’d be arrested for trespassing if you didn’t leave within ten minutes, you questioned why the university you “pay money to attend” would have you arrested.

And then the cops showed up and arrested most of you. I’ll add they only did so after giving you one more chance to leave the College of Law’s lawn. When they slapped the cuffs on you, none of you even had the balls to take it like adults. No, you whined and moaned about how your “rights to free speech were being silenced” and how “this can’t be what America looks like.”

Let’s see what lessons we can learn from our time at the “People’s School.”

First, the right to free speech doesn’t mean people have to put up with your shit.

You’re free to speak your mind on college campuses. No one has to listen. I know this is hard for all of you who’ve been inculcated with this asinine notion everything you say is important and the center of the universe, but it’s a correct statement.

People are going to let you speak because that’s what we do in America. Don’t be surprised when they ignore you completely because most of the time that’s what the lot of you deserve if someone’s in a good mood. What you might get in return, if someone’s having a bad day, is what we call the “free marketplace of ideas.”

Since most of you are incapable of understanding subtext, let me spell it out: Graciously, we might ignore you. If we’re not being gracious, we might take the time to chastise you for being a complete tool.

Second, if you choose to protest, you better be prepared to suffer the consequences. When the civil rights protests of the 60s happened, those who protested knew damn well they could be arrested for what they did. They still chose to do it because they knew doing the right thing was more important than appearances or social media clout.

You were more concerned with what it was going to do to your mother and father’s opinions when they saw your mugshot. By the way, go thank your parents for putting up with your shit. They’re the ones paying for you to attend UT and have your little tantrums. Not you.

For fuck’s sakes, you got Yassin arrested! Yassin from Yassin’s Falafel House! Think abut this! Your actions got the guy both the FBI and USA Today named the “nicest guy in America” arrested! And he’s the only one prepared to not bitch about it.

Finally, your tantrums don’t matter. They never will. The adults watching your nonsense—the real adults who owe you nothing, understand you’re owed nothing and don’t give a fuck about you—see what you’re doing and we know it’s nothing more than you attempting to make something meaningful out of your miserable, entitled existences.

By hating Jews, no less.

Now it’s time to graduate into the real world. Please take the dunce caps from underneath your seats, don them, find a corner to go sit in and think about what you’ve done until someone tells you to stop.

And one more thing: Am Yisrael Chai, dipshits.

Once upon a time, in a vibrant swamp filled with the croaking of frogs and the buzzing of insects, there lived a transgender frog named Frankie. Frankie was a kind and gentle soul, always ready to lend an ear or a helping hand to those in need.

One sunny day, Frankie was basking on a lily pad when a scorpion named Scorpius approached. Scorpius was known throughout the swamp for his sharp wit and cunning nature. He was also well-known for his dislike of bigots, those who judged others based on their differences.

“Hello, Frankie,” Scorpius said, his voice smooth as silk. “I have a proposition for you.”

Frankie, being the trusting frog that he was, listened intently.

“I need to cross this swamp,” Scorpius continued, “but I cannot swim. If you carry me on your back, I will reward you handsomely.”

Frankie considered the offer. He knew of Scorpius’s reputation, but he also knew that a bird in the hand is worth two bigots in a bush. He decided to take the chance.

“Very well, Scorpius,” Frankie said. “I will help you.”

And so, Frankie allowed Scorpius to climb onto his back, and together they began to cross the swamp. As they swam, Scorpius spoke of his adventures and his disdain for bigots. Frankie listened, fascinated by the scorpion’s tales.

When they reached the other side of the swamp, Scorpius thanked Frankie and gave him a bag of gold coins. Frankie was overjoyed. He had taken a risk, and it had paid off.

The moral of the story is: a bird in the hand is worth two bigots in a bush. It is better to take a chance on something that is certain, rather than hold out for something that may never come to fruition. And, of course, it is always wise to stand against bigotry and embrace the differences that make us all unique.

THE PIG AND THE SQUIRREL

Once upon a time, in a lush green forest, there lived a pig named Penelope and a squirrel named Sammy. Penelope was a kind and gentle pig who loved to read books and learn about the world. Sammy, on the other hand, was a mischievous squirrel who enjoyed playing pranks and making fun of others.

One sunny day, Penelope was sitting under a tree, reading a book about the history of the forest, when Sammy came bounding up.

“What are you reading, Piggy?” Sammy asked, his voice filled with disdain.

Penelope looked up from her book and smiled. “It’s a book about the history of our forest,” she said. “It’s quite fascinating.”

Sammy laughed. “You’re a pig, Penelope. What do you know about history?”

Penelope was hurt by Sammy’s words, but she didn’t let it show. Instead, she said, “You’re right, Sammy. I am a pig. But that doesn’t mean I can’t learn about history. After all, don’t judge a book by its cover.”

Sammy was taken aback by Penelope’s words. He had never considered that he might be judging her based on her appearance.

“You’re right, Penelope,” Sammy said, his voice softer now. “I shouldn’t have judged you. I’m sorry.”

Penelope smiled. “It’s okay, Sammy. We all make mistakes. The important thing is that we learn from them.”

From that day on, Sammy stopped judging others based on their appearance. He and Penelope became the best of friends, and they spent many happy days reading books and learning about the world together.

The moral of the story is: don’t judge a book by its cover. It is important to look beyond someone’s appearance and get to know them for who they truly are. After all, everyone has something unique and valuable to offer.

SARAH AND OMAR

Once upon a time, in a land not so far away, there was a prestigious university where students from all walks of life came to learn and grow. Among the many students were two friends, Sarah, a Jewish girl, and Omar, a Palestinian boy. They were both bright and ambitious, and they quickly became inseparable.

One day, Sarah and Omar decided to join the university’s investment club to learn about the exciting world of finance. The club’s first lesson was about the importance of making decisions and sticking to them. The wise old professor told them, “In the world of finance, you must be decisive. Don’t hedge your bets, for indecision is the enemy of success.”

Sarah and Omar took the professor’s words to heart and began to invest in various stocks and bonds. However, they soon realized that the world of finance was not as straightforward as they had thought. There were risks and rewards, ups and downs, and sometimes, it was difficult to know which path to take.

As they continued to learn and grow, Sarah and Omar found themselves facing a difficult decision. A new company had emerged, promising great returns but with a high level of risk. Sarah was hesitant, fearing the potential losses. Omar, on the other hand, was eager to take the risk, believing in the company’s potential for growth.

In the end, Sarah decided to hedge her bets, investing only a small amount in the new company while keeping the majority of her funds in safer investments. Omar, however, went all in, believing in the company’s potential.

As time passed, the new company flourished, and Omar’s investment grew exponentially. Sarah, on the other hand, saw only modest gains from her smaller investment. She realized that by hedging her bets, she had missed out on the opportunity for greater success.

Moral: Don’t hedge your bets, for indecision is the enemy of success. Sometimes, you must take a leap of faith and trust in your decisions.

THE WOLF AND THE SQUIRREL

Once upon a time in the lush forests of Wokeville, there lived a Wolf and a Squirrel. The Wolf was a proud creature, always boasting about his speed and strength. He would often mock the Squirrel for being small and slow, saying, “You’ll never get anywhere in life, you silly little thing.”

But the Squirrel was not one to be discouraged. He knew that his strength lay in his determination and perseverance. He would often reply to the Wolf, “Slow and steady wins the race, my friend. One day, you’ll see.”

One sunny day, the Wolf and the Squirrel decided to have a race. The Wolf, confident in his abilities, laughed and said, “This will be the easiest race of my life.” The Squirrel, on the other hand, simply smiled and said, “We shall see.”

The race began, and the Wolf sprinted ahead, leaving the Squirrel far behind. But the Wolf was so focused on his speed that he didn’t notice the obstacles in his path. He tripped over a fallen branch and tumbled into a ditch.

The Squirrel, on the other hand, moved slowly but steadily. He carefully navigated the obstacles in his path, never losing sight of his goal. He even stopped to help a fallen bird, earning the admiration of the forest creatures.

In the end, the Squirrel reached the finish line first, while the Wolf was still struggling to get out of the ditch. The Wolf was humbled and realized that speed alone was not enough. He apologized to the Squirrel and admitted, “You were right, my friend. Slow and steady does indeed win the race.”

The moral of the story is that determination and perseverance are just as important as speed and strength. It’s not about how fast you can go, but about how far you can go without giving up.

Within hours after Thomas Perez Jr. called police to report his father missing, he found himself in a tiny interrogation room confronted by Fontana detectives determined to extract a confession that he killed his dad.

Perez had told police that his father, 71-year-old Thomas Perez Sr., went out for a walk with the family dog at about 10 p.m. on Aug. 7, 2018. The dog returned within minutes without Perez’s father. Investigators didn’t believe his story, and over the next 17 hours they grilled him to try to get to the “truth.”

The cops pulled every trick in the book, telling Perez they found his father’s body and they had evidence he did it. They deprived him of his mental illness medication and even told him they were going to kill his dog.

Perez insisted he didn’t remember killing anyone, but detectives allegedly told him that the human mind often tries to suppress troubling memories.

Eventually, Perez broke and confessed to murdering his father.

Finally, after curling up with the dog on the floor, Perez broke down and confessed. He said he had stabbed his father multiple times with a pair of scissors during an altercation in which his father hit Perez over the head with a beer bottle.

After being left alone in the interrogation room, Perez tried to hang himself with the drawstring of his shorts, causing the police to take him to a mental hospital for a 72-hour hold. There was only one problem.

Later that day, the truth derailed the detectives’ theory and their prized confession.

Perez’s father wasn’t dead — or even missing. Thomas Sr. was at Los Angeles International Airport waiting for a flight to see his daughter in Northern California. But police didn’t immediately tell Perez.

It’s not that there was no cause for police to believe that harm had come to Perez’s father. There was evidence in the home of a struggle and blood. The problem was that none of it amounted to a crime, not because it lacked indicia, but because no crime had, in fact, occurred.

First, they noted he seemed “distracted” and “unconcerned” during the 911 call, according to court records. Officers responding to the call noted the father’s cellphone and wallet were still at the home, which was in disarray. Police saw the mess as a sign of a struggle, but [Perez’s lawyer, Jerry] Steering said Perez was renovating the house and had argued with his father about it.

Additionally, a police dog sniffed out the scent of a corpse in the father’s bedroom. And there were small blood stains in the house. Steering later would say the blood stains were caused by the father’s finger-prick diabetes tests.

But for the psychological torture the police inflicted on Perez in order to get him to confess to a murder that never happened, one that could have cost Perez his life had his suicide attempt worked, this might be described as a comedy of errors. But there was nothing funny about what the detectives did to Tony Perez Jr. to try to coerce a confession from him.

Perez became so distraught that he began pulling out his hair, hitting himself, making anguished noises and tearing off his shirt while police encouraged him to confess, according to a summary of the case written by U.S. District Court Judge Dolly Gee.

“He was sleep deprived, mentally ill and significantly undergoing symptoms of withdrawal from his psychiatric medications,” Gee wrote.

And the police excuse? That Perez was never under arrest, such that he was free to go, as if being held in an interrogation room suggested that he could have left any time he wanted.

Police, in court records, insisted Perez was voluntarily undergoing questioning and was free to go at any time. However, in her case summary, Gee wrote that the “circumstances suggested to Perez that he was not free to leave.”

But the kicker is that even after Perez’s father turned up, alive and well, the cops still couldn’t bring themselves to tell Perez the truth, to let Perez go.

Police picked up the father at the airport and brought him to the Fontana station.

But the investigation didn’t stop there. Detectives obtained a warrant to again search Perez’s house for evidence that he had assaulted an “unknown victim,” according to Gee’s summary.

It appears none was found.

As a result of his suicide attempt, Perez was detained for the remainder of the 72-hour hold.

Perez sued and the case was settled for “nearly” $900,000 for the psychological “torture” he endured at the hands of police for a crime that never happened.

According to the New York Times, the flag can now be seen as “a symbol of support [1] for former President Donald J. Trump, [2] for a religious strand of the ‘Stop the Steal’ campaign and [3] for a push to remake American government in Christian terms.” A bit of a hodgepodge to be sure. Did Mr. or Mrs. Alito choose to fly this flag to “stop the steal” nearly three years after the election? That seems a stretch. Again, there is no actual evidence of this, but countless news stories, and politicians, will accept this insinuation as obvious.

Aside from these flags reflecting exceptionally poor and conflicted judgment by Alito, who should have remained above such symbolism in order to maintain the appearance of impartiality and the integrity of the Supreme Court, what does this mean? What should be done about it? Is this much ado about nothing or time for Alito to recuse himself?

I had no idea that either an upside down American flag or the Appeal to Heaven flag represented anything relating to political and religious positioning. But a person who chooses to fly such a flag should certainly be aware of its implications. And assuming Justice Alito was aware, and he was sending a message that was unbecoming of his status as an associate justice of the Supreme Court, has he crossed a line? If not, why then has Alito not “cleared the air”? If he was willing to publicly display the message conveyed by these flags, and he was, then it would be no different to provide an explanation, if there is one.

Josh Blackman argues that this is likely more about religion, as Alito is quite religious. Josh may be right, but then why doesn’t Alito say so? And even if it is about religion, should he be flying a flag that represents America becoming a Christian nation? There would seem to be a rather flagrant establishment problem there.

Justice Alito proffered an excuse for the upside down “distress” flag his wife raised, although it didn’t bear up to scrutiny, doesn’t satisfy concerns about why he left it flying over his home, and was a rather cringey “blame the wife” excuse. So what is the reason for this?

Is there one?

In 2009, Brandon Woodruff was convicted of murdering his parents Norma and Dennis in their new home in Royse City, Texas in 2005.  His parents were both shot and stabbed multiple times in what might have been a personal cause homicide. The prosecution hypothesized that Brandon killed them over tensions arising from his being gay having poor grades in college, and possibly from his overspending and appearing in a couple of adult films. There was no evidence for an argument; there is evidence that the police and the jury were anti-gay. It was repeatedly stated at his trial,  “If he could lie about being gay, he could lie about killing his parents.”

His indictment was based upon scant evidence; there was no blood or gunshot residue on his clothing or the truck he drove. His being held in pretrial detention, however, proved significant.  It is undisputed that the prosecution had recordings of fifty-four conversations between him and his legal team. A district court judge appointed a special prosecutor, but did not dismiss the case.

The appeals court rejected the defense’s motion to dismiss. They wrote, “Our review failed to discover any privileged information of even the most marginal value to the State,” even though false statements of an alternative suspect were discussed. Their decision stated, “In fact, on Exhibit 1F, track 5, the defense attorney informs Brandon that the district attorney‘s office has recorded attorney-client telephone calls in another case.”

The Appeals Court also maintained, “This case does not demonstrate a pattern of recurring violations.” In another footnote the appeals court indicated that, “At a later hearing, the defense presented evidence before Webb Biard, Senior Judge of the 6th Judicial District Court, that the tapes had been played to at least two fact witnesses.”

A replica of a Colt revolver was reported to be missing from the house of the parents of Brandon’s former girlfriend, but the exact date of its disappearance is uncertain. Over two years later, a dagger was found in a previously searched outbuilding at the old home of his parent.  The prosecution asserted that Dennis Woodruff’s blood was found on the guard of the dagger.

Both pieces of evidence are problematic. The missing gun was a 0.45 caliber and was never recovered. The caliber of the bullets at the crime scene was either 0.44 or 0.45.  Whether the gun was operational is open to question. It is unclear what tests were performed on the knife, which raises the question of whether only a presumptive test for blood was used or a confirmatory test followed. There are abrasions next to a stab wound which suggest that the blade of the murder weapon was about 6 inches long, half of the length of the dagger.  One is also prompted to ask, if Brandon had disposed of the gun so thoroughly that it was never found, why hide the dagger in an obvious location?

The evidence that was not collected would almost fill a book. There is nothing to suggest that the police took the temperatures of Norma or Dennis’s bodies, yet this can be the best way to determine the time of death. The Appeals Court wrote:

The defense emphasizes a number of deficiencies in investigating the crime. The State failed to fingerprint many items in the Royse City house, failed to perform DNA testing of the blood stains on the carpet and bathroom sink, and failed to perform DNA testing on the hairs found in Norma‘s hand. Many items were seized but not logged, and stored in an office. These deficiencies, though, are not sufficient to prevent a rational juror from concluding, beyond a reasonable doubt, that Brandon committed the murders.

The petition of John D. Nation, Brandon’s lawyer, went a little further, stating “Officers did not take fingerprints inside the house...” The killer must have locked the door on the way out; therefore, a reasonable juror might want to know whose fingerprints were there.  If the hair had roots, standard autosomal DNA testing could have been performed. Even if there were no roots, mitochondrial DNA testing might have ruled Brandon out.

The prosecution’s timeline was almost absurdly tight. The failure, therefore, to secure some of Brandon’s phone records (which were erased after six to nine months) is remarkable. What is especially odd is that fourteen of the most critical hours are missing from the records that do exist. These data might have been highly probative, given that Brandon was frequently on the phone and that it takes about 25 minutes to drive to the murder scene from where he tended to the family’s animals in Heath, Texas on the night of the murder.

The Innocence Project of Texas took up Brandon’s case in 2021.

For further reading

Railroaded by Phillip Crawford Jr. (2018). Brandon Dale Woodruff v. State of Texas
https://cases.justia.com/texas/sixth-court-of-appeals/06-09-00086-cr.pdf?ts=1396147572

Brandon D. Woodruff vs Lorie Davis, Director, TDCJ-CID (John D. Nation, counsel of record)
https://www.supremecourt.gov/DocketPDF/18/18-1413/91486/20190311094141460_woodruff%20pet%20cert.pdf

But dreadful isn’t a synonym for criminal, and nothing about the terrible facts of the case has eased my legal concerns. From the beginning, it has been obvious that the facts of the case are damning, but the law is cloudy. The reason is simple: To secure a felony conviction, the prosecutor has to prove that Trump falsified business records with an “intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.”

This element does not require that the prosecution prove beyond a reasonable doubt that Trump committed “another crime,” but merely that it was his intention to do so when he intentionally falsified business records.

But what is the other crime? Here is where the case gets shaky. In court filings, the prosecution has argued that Trump was attempting to commit or conceal federal and state election law crimes, along with state tax crimes. The election law theory has real weaknesses, however. While I’ve long believed the hush-money scheme violated federal criminal law, I also recognize that the underlying legal theory has not been fully tested.

While David presents this is a one-step problem, there are two, as the state crime and federal crimes each require separate consideration. Initially, the problem with the state election law issue is that Trump was running for president, a federal office, and subject to federal election law. This would seem, at least on its surface, to pre-empt state election law.

As for federal election law, no court in New York has ever held that intent to violate a federal offence can serve as a predicate for a state falsifying business records offence.

As for state tax law, presumably intended to be violated by chalking up the reimbursement to Cohen for the hush money payments as legal fees, thus deductible as a business expense, upon which state tax would not be paid, there has yet to be a word of testimony to suggest that this either was done or intended. Indeed, there has yet to be any evidence that this was even possible, assuming Trump knew of and considered it when deciding to record the payments as legal fees.

To be clear, an untested legal theory is not the same thing as a weak or specious theory. If Trump is convicted, his conviction could well survive on appeal. The alternative, however, is dreadful. Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon, and the Biden campaign runs ads mocking him as a convict. If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law.

It seems imprudent for Biden to promote Trump’s conviction as a reason to vote blue. First, it’s not as if this would be a secret requiring Biden to shout it from the rooftops lest people be unaware. Second, there are a surprising number of people who despise Trump but nonetheless believe that this was a politically-motivated prosecution, and might be swayed toward Trump for that reason. Third, as president, Biden should have a positive reason to ask people to vote for him, not to vote against Trump, the felon.

But the technical legal issues aside, what has the prosecution offered in evidentiary support its its allegation that the falsifying of business records was done in furtherance of the commission of another crime? Could it have been? Sure, in a theoretical sense, just as it could similarly have been done to save Trump from looking like the skeevy, disgusting, philandering, amoral piece of dreck he is. He didn’t want the Stormy story to come out on the heels of the Access Hollywood story, and he didn’t want the story that he bought silence coming out by leaving a trail of evidence in his reimbursement payments to Cohen. Would anyone seriously doubt Trump would be that conniving and simple at the same time?

Has the prosecution offered any evidence to suggest that Trump’s purpose wasn’t the most obvious and superficial possible? Not a word. It’s even possible that Trump could argue that he thought payments to Cohen, because Cohen was his lawyer, were properly recorded as legal fees, as some people would assume that any payment to a lawyer for any purpose was, by definition, a legal fee. Again, dumb and simplistic, perhaps, but this is Trump we’re talking about.

What evidence should the prosecution have proffered to make its case and elevate the misdemeanor to a felony? Beats me. Perhaps Cohen explaining that he advised Trump of the benefits to recording it as a legal fee for tax and election law purposes, even if Cohen’s legal advice was wrong or questionable. But that didn’t happen. Whether the jury will credit Cohen’s testimony remains to be seen, but even if they do, Cohen gave the jury nothing to work with.

As much as Trump keeps pounding on the claim that he can’t get a fair trial in New York, Justice Juan Merchan has been exceptionally fair in his rulings, bending over backwards to give Trump the trial he deserves even if Trump is stunningly unappreciative. It may be that the judge is well aware of the issues arising from both the dubious legal theory and the complete absence of evidence in support of the requisite “another crime” issue. Will it be enough that the prosecution can argue theoretical crimes?

If so, that would likely be true in all falsifying business records cases, making the misdemeanor a nullity subject only to an imaginative prosecutor coming up with some putative other crime. Is that all the law requires to turn a misdemeanor into a felony?

Edit: An additional thought occurred to me. It’s unclear whether the prosecution will settle on the “another crime” in summation or the judge will charge the jury with only one of the three options. If not, then it’s quite possible that the jury could convict without agreement as to what the “another crime” is. In other words, it would not be a unanimous verdict as to all the elements of the charge if the jurors find the “another crime” to be different from one another.

I thought of 2012 when I read in an Axios report this week that “President Biden doesn’t believe his bad poll numbers, and neither do many of his closest advisers.” That belief isn’t absurd on its face. After all, polling is difficult, and there have been a number of recent polling misses.

After describing at length a handful of banal experiences for a concept that doesn’t really require much explication, David puts the pedal to the metal.

If you are a true partisan, you essentially become an unpaid lawyer for your side. Every “good” fact that bolsters your argument is magnified. Every “bad” fact is minimized or rationalized. When partisanship reaches its worst point, every positive claim about your side is automatically believed, and every negative allegation is automatically disbelieved. In fact, allegations of wrongdoing directed at your side are treated as acts of aggression — proof that “they” are trying to destroy “us.”

Or as Jonah Goldberg put it more succinctly:

Someone you know or love goes to sleep one night,” he wrote, “and appears the next day to be the exact same person you always knew. Except. Except they’re different, somehow.

Big deal, you say. Confirmation bias isn’t exactly unknown or some big mystery. After all, everybody knows that brilliant people agree with me. But there’s a level far below the ordinary confirmation bias where it’s no longer about wrapping oneself up in information that bolsters your priors and ignoring, if not rejecting, information that challenges or undermines them.

It’s easy to blame the exhausted majority for checking out. We have obligations as citizens to cast informed votes, even as we juggle the professional and domestic responsibilities of our busy lives. But we also need to ask why people are checking out, and one reason is that partisans make it so very difficult to engage.

Ironically, there’s a gap in the logic here that eludes the extreme wings as well, apparently, as David. Most of us believe ourselves to be part and parcel of that exhausted majority and not part of any crazy fringe believing either in nutjob conspiracy theories or that the world will be wonderful once unicorns prance on rainbows.

Then, as partisanship deepens, partisan subcultures can get increasingly weird. They become so convinced of the us-versus-them dynamic that they’ll eventually believe virtually anything, as long as it’s a claim against the other side. MAGA’s Taylor Swift conspiracies, in which her popularity is some sort of liberal psyop, and election denial conspiracies sprang from the same poisonous partisan well. If decades of partisanship have persuaded you that your opponents are evil, have no morals and want to destroy the country, then why wouldn’t they hack voting machines or recruit a pop star as a government asset?

And wild as some of the MAGA partisan beliefs may be, the woke fringe with their “defund the police” and “abolish prisons” aren’t less nonsensical. The most significant distinction is that while the right is bent on adoration of a vulgar, narcissistic, deceitful ignoramus, the left is more insidious in that it wraps its ideology in a bow of bettering humanity and aiding the oppressed, which certainly sounds like better reasons to be deeply misguided that being a Trump sycophant.

So what can be done about this unfortunate state of affairs where we believe too much?

George Orwell famously wrote that “to see what is in front of one’s nose needs a constant struggle.” We can’t simply tut-tut against the pernicious effects of pure partisanship; we have to struggle against it, including within ourselves. I have some rules to help temper my worst partisan impulses. Among them: Expose yourself to the best of the other side’s point of view — including the best essays, podcasts and books. Also, when you encounter a new idea, learn about it from its proponents before you read its opponents.

To add to the irony, the most highly recommended comments to David’s New York Times post prove the point.

This is a very thoughtful and well written column. I must say, though, when I got to this line of Mr. French’s advice I got tripped up:

“Expose yourself to the best of the other side’s point of view — including the best essays, podcasts and books.”

Okay, I’ll bite: Can someone expose me to the “best” of the MAGA point of view, including their “best essays, podcasts, and books”? I’ll listen if there are any.

To be fair, there isn’t much good to say about the MAGA point of view, but that doesn’t mean the election of Trump spells the death of democracy, as argued nightly on MSNBC, or that old man Biden hasn’t fallen short in myriad ways to be the president who would return us to normality after the crazy of Trump.

The race for the presidency is tight, which is unsurprising given that we are left two choices reminiscent of being in a pit of feces with someone about to pour a bucket of vomit on your head, and having to decide whether to duck. If you can’t comprehend why any decent person wouldn’t be on your side, then you’re on the fringe and there is nothing that will change your mind.

IN AN AGE OF POLITICAL POLARIZATION and tribalism, “heterodoxy” has become an increasingly popular concept for the tribeless, denoting people and ideas that defy traditional left/right descriptions. The Heterodox Academy, cofounded by renowned psychologist and author Jonathan Haidt in 2015 in reaction to progressive groupthink in academia, is the most prominent example; but the label is also embraced by what Radley Balko identified as the “new genre of heterodox punditry”—as found in publications like Quillette, UnHerd, and the Free Press. Amid competing and stultifying orthodoxies, the concept of heterodoxy can feel like a refreshing alternative.

To be fair, Radley wasn’t really addressing heterodoxy, but the Trump-type right wing’s adoption of the “new genre” as opposed to the unTrumped liberal rejection of woke progressivism, Radley’s new religion. An unfortunate game is played on the left by pegging all unwoke liberals as Trump supporters to dismiss them as racists and haters. It’s always easier to vilify those who disagree with you than rationally deal with their arguments.

But then, is the same criticism true for the new dissidents?

Yet problems can arise when heterodoxy becomes not just an inclination but an identity—as illustrated by the trajectory of the “Intellectual Dark Web,” the network of self-proclaimed dissidents that has largely devolved into crankery and contrarianism. And now there’s a new heterodox venture: “Dissident Dialogues,” a self-styled “place for dangerous ideas” that has British organizers but held its inaugural two-day festival in Brooklyn earlier this month.

It’s become the norm in progressive academia to have panels where the only disagreement is how high the heretics should be hung. And yet, the panels at Dissident Dialogues wasn’t much better.

FOR ALL THE “DISSIDENTS,” many panels had surprisingly little dissent; Marshall conceded that there was “room for improvement” on diversity of opinion.

Take the session on “gender medicine,” with Irish psychotherapist Stella O’Malley, British journalist Mia Hughes, and Manhattan lawyer and “anti-woke” Democrat Maud Maron. It featured a solid consensus against gender-affirming care for minors and more generally against progressive gender theory, which is indeed a “dissident” position in mainstream culture; but while the panel offered some thoughtful discussion, several highly debatable claims—for instance, that “gender identity” itself is a myth rooted in sexist stereotypes—went unchallenged. Ironically, on an earlier panel about feminism, liberal feminism was almost unanimously trashed for rejecting stereotypical views of masculinity and femininity—two mutually contradicting positions united by the fact that both are “unwoke.”

It may be that the concept behind Dissident Dialogues was to bring together voices that were either rejected or canceled by progressive academic orthodoxy, and provide a platform for the otherwise unplatformable. It’s an understandable purpose, given that there is no shortage of opportunities for the righteous to sit on the dais with like-minded “scholars” nodding in approval. But then, if one takes issue with a panel consisting only of people who agree with each other on the woke end, is it any better when the panel is on the less-than-woke end but in similar agreement?

If mainstream institutions can benefit from the checks and balances provided by “heterodox” alternatives, “heterodoxy” definitely needs checks and balances from mainstream institutions.

Cathy’s Bulwark post is better than merely a brilliant recounting of one of the more interesting groups of heterodox thinkers: it’s brutally honest. Much as the woke would cast heretics as Trump-loving wingnuts to dismiss them as unworthy of consideration, heterodox thinkers need to similarly beware that they don’t become a silo unto themselves and create their own orthodoxy that refuses to consider the “dissident” voices of progress.

Not for pay. Not for benefits. For “free speech.”

The union, U.A.W. 4811, represents about 48,000 graduate students and other academic workers at 10 University of California system campuses and the Lawrence Berkeley National Laboratory. Its members, incensed over the university system’s handling of campus protests, pushed their union to address grievances extending beyond the bread-and-butter issues of collective bargaining to concerns over protesting and speaking out in their workplace.

As a general precept, it’s not unheard of for a union to be concerned about its members’ ability to speak in the workplace. But this strike authorization isn’t about speech, per se, but a very specific subset that neither involves free speech nor a term and condition of employment.

The strike authorization vote, which passed with 79 percent support, comes two weeks after dozens of counterprotesters’ attacked a pro-Palestinian encampment at the University of California, Los Angeles, for several hours without police intervention, and without arrests. Officers in riot gear tore down the encampment the next day and arrested more than 200 people.

Essentially, the union strike authorization relates to the treatment of criminal conduct on campus. The encampments were not free speech. The counterprotesters attack was not free speech. The clearing of the encampments and arrests were not free speech. What this seeks to influence is what constitutes criminal conduct and how it’s addressed. The union wants its say.

The union said it had called the vote because the University of California unilaterally and unlawfully changed policies regarding free speech, discriminated against pro-Palestinian speech and created an unsafe work environment by allowing attacks on protesters, among other grievances.

The vote left it to the executive board of the local to decide whether a strike should be called.

“At the heart of this is our right to free speech and peaceful protest,” Rafael Jaime, the president of U.A.W. 4811, said in a statement after the vote. “If members of the academic community are maced and beaten down for peacefully demonstrating on this issue, our ability to speak up on all issues is threatened.”

Of course, “peacefully” demonstrating is a disingenuous characterization. While it was mostly peaceful, it was also blatantly unlawful, as they not only seized a portion of the campus but denied access to others who had as much right to be there.

Masked activists block Jewish Professor from entering the UC Davis campus where he works.

pic.twitter.com/pdq4CdyXCc

— Oli London (@OliLondonTV) May 15, 2024

The University of California recognizes the problem inherent in the union’s flexing of muscle beyond the scope of normal labor relations issues, where the answer to any issue that concerns the union could be a strike that undermines a university’s mission of providing an education.

A spokeswoman for the University of California president’s office said in a statement that a strike would set “a dangerous precedent that would introduce nonlabor issues into labor agreements.”

“To be clear, the U.C. understands and embraces its role as a forum for free speech, lawful protests and public debate,” said the spokeswoman, Heather Hansen. “However, given that role, these nonlabor-related disputes cannot prevent it from fulfilling its academic mission.”

The plan is to use a strike to reward campuses that capitulate to the protesters’ demand and punish those that don’t.

Mr. Jaime, the U.A.W. 4811 president, said before the vote that the union would use the tactic to “reward campuses that make progress” and possibly call strikes at those that don’t. He added that the union would announce the strikes “only at the last minute, in order to maximize chaos and confusion for the employer.”

The problem, of course, is that this isn’t a business that will lose profits if a strike is called, but a university. The people punished are the students if they are denied an education. Then again, the people punished by the union’s demands are also the students, as well as the faculty, that don’t share their activism.

But now that unions have taken hold on college campuses, they are in a position where they can shut down a school for whatever cause or purpose they support to the detriment of everyone else. While strikes by public sector unions are unlawful in other states, they are not in California. And frankly, the unlawful strikes are “forgiven” as part of the settlement elsewhere, rendering that limitation a functional nullity.

If this ends with the University of California capitulating to its union, as some of its colleges capitulated to its student protesters, it opens the door to a deeply problematic future, where whatever issue enjoys the progressive trend on campus will be the source of the next threatened strike.

Tobias Higbie, a professor of history and labor studies at U.C.L.A., said that while striking for free speech was unusual, it wasn’t unheard-of. The academic workers’ union is also largely made up of young people, who have been far more receptive to organized labor than young people in even the recent past, he said.

“It points to how generational change is not only impacting workplaces, but it’s going to impact unions,” Mr. Higbie said. “Young members are going to make more and more demands like this on their unions as we go forward over the next couple of years, and so I think it’s probably a harbinger of things to come.”

Having realized that the power to strike to wreak havoc on a university can enable a union to push whatever trendy cause strikes its fancy, there is really no limit to what it can demand of the administration at the expense of the students, administration and taxpayers. But that’s the nature of public sector unions, particularly in the hands of children.

But now, Cy has seen the light.

The appeals court decision surprised me because I had been to the trial and witnessed the honesty, raw pain and power of the survivors’ testimonies on the witness stand.

A very curious argument, even for Cy, beyond his flagrant appeal to emotion. Is “raw pain” a substitute for evidence? Does calling witnesses “survivors” prove a defendant’s guilt? But most importantly, if Cy had faith in the veracity and “power” of his accusers, why then did he go out of his way to muddy his case with propensity witnesses to bolster his complaining witnesses and fill in the gaps in the evidence? If he had faith in his case, he could have prosecuted Weinstein for only the crimes for which he was indicted instead of bringing in a smear campaign of uncharged bad acts that was the eventual undoing of his conviction.

And what of that undoing?

It troubled me because with no deference provided to the lower court, the Court of Appeals, in a 4-to-3 decision, had reversed a lengthy, objectively thoughtful, well considered and, importantly, unanimous opinion by a panel of the distinguished intermediate appeals court that sustained every single aspect of the jury’s verdict and evidentiary rulings by the trial judge at the Weinstein trial. That’s rare.

Rare? Is Cy saying it’s rare that the Appellate Division, First Department issues “lengthy, objectively thoughtful, well considered” decisions? Or that they issue decisions at all? Or that the Court of Appeals reversed the intermediate court?

It’s certainly true that most affirmances of criminal convictions are upheld. Heck, few ever make it to the Court of Appeals, which gets to pick and choose its caseload. But there is a reason why New York has a “supreme” appellate court, even if its naming structure is peculiar. That’s because sometimes the intermediate appellate court, thoughtful though it may be, gets it wrong. This is particularly true in cases where the overwhelming public view is that the defendant is guilty, guilty, guilty. It takes a very strong court to push against that public certainty of guilt.

This isn’t to suggest that the justices in the First Department are weak and easily manipulated by public opinion, but that they shared the public sentiment, shared the public’s belief that Weinstein was guilty and rendered a “lengthy, objectively thoughtful, well considered” decision to make sure he stayed convicted.

How do we in New York reconcile the decisions of law by members of our highest court that seem disconnected with the factual realities around rape and power differentials that lead to sexual abuse in the workplace?

This might not seem so at first glance, but if Cy was put on trial, this would be an admission against interest. Note that he recognizes that the Court of Appeals opinion was a “decision of law,” while his argument against it claims to be grounded in “the factual realities around rape and power differentials that lead to sexual abuse in the workplace.” Whether his belief about the factual realities is factual or ideological, what it is not is law.

After this Weinstein decision, how do we give faith to victims that the system can work to hold sexual abusers like Weinstein accountable? The answer lies not in the Court of Appeals, but in the legislature.

Perhaps “sexual abusers like Weinstein” would have been held accountable if Cy didn’t try to collaterally smear him with uncharged bad acts, and instead relied solely on the evidence of the crimes charged. And if the evidence of the crimes charged fell short, that’s how the system is supposed to work. When the prosecution can’t prove guilt beyond a reasonable doubt, the defendant should be acquitted, even if he’s as despised as Weinstein.

But neither Cy nor the very progressive New York legislature is willing to accept the premise that defendants should only be convicted when the evidence is sufficient to sustain their burden of proof as to the crimes actually charged. And so Cy holds hands with legislators who want to undermine basic evidentiary law and due process to craft a system that will convict the accused not merely based on evidence of the crimes charged, but evidence that he has a propensity to commit the crimes and, well, deserves convicting anyway. But only for sex crimes.

Today, it’s about Weinstein. Decades from now, when it’s used against anyone charged with a sex offense, will people remember that we changed the law to get one hated man and ended up undermining evidence and due process for anyone accused of a sex offense, innocent or guilty?

At Reason, Billy Binion argues that it shouldn’t have been.

...But I’ll bookend the list with an article that, whether it meant to or not, made the case for why the demonstration wasn’t really a story at all: “About 30 students walk out on Jerry Seinfeld at Duke commencement,” notes Politico.

Thirty students out of the approximately 7,000 graduates and a crowd estimated to be composed of around 20,000 in total. Assuming those numbers are basically correct, that is 0.43 percent of students and 0.15 percent of the audience. Put differently, roughly 99.6 percent of students and 99.8 of the crowd watched Seinfeld’s address, which went on undisturbed after a brief period of chanting from the protesters. But it is very likely that many news consumers walked away with the polar opposite impression after consuming the press reports.

That there were dozens, DOZENS, of students involved in the graduation protest is important, just as there was a similarly small fraction involved in the Columbia encampment. At a school with more than 36,000 students and over 7,200 faculty, a few hundred may be more than dozens but still amounts to a miniscule fraction of students. Of course, this doesn’t inform us whether others supported the students and faculty involved in the protest but chose, for whatever reason, not to join go all in.

The problem, as Billy argues, is that the media’s highlighting (fetishizing?) the protests has given rise to a distorted view of what’s happening on campus.

The out-of-touch Seinfeld coverage wouldn’t necessarily merit a mention if it were an anomaly. The problem: It isn’t. It has become fairly standard practice in the press to take voices on the fringe and shove them to the center of the conversation without contextualizing where they came from. Journalists are incentivized to find engaging angles, and fringe characters tend to be interesting. The impulse is understandable. But it creates a distorted picture of reality and comes at the expense of the truth. And journalists should foremost be invested in conveying the truth.

The old saw is “if it bleeds, it leads,” and in the same scheme of pushing the notorious for the sake of readership interest, covering protests, whether by a few hundred or a few dozen, does emphasize the few over the many. Would anybody care if this were a mere footnote in a story in the Duke Chronicle about what a lovely graduation ceremony it was, with a few dozen malcontents walking out while thousands of students listened attentively to beloved television star Jerry Seinfeld?

Then again, this may have only been dozens, but it was dozens that came on the heels of encampments, and campus building seizures, that pitted student against student, that to some extent extolled terrorists and martyrs despite the mass act of terrorism on October 7th, that marred a ceremony that served no purpose other than to provide the handful of unduly passionate activists to put on a performance at the expense of their fellow students and parents. Did any of these graduation protests stop the killing in Gaza? Did anyone think it would? Did anyone care that their moment of attention came at the expense of other students, who just wanted to enjoy a graduation after they were denied a high school graduation because of covid?

The press has shown a particularly insatiable appetite for stories on Israel-Palestine protests on college campuses; the division sells. Some of those demonstrations have certainly been newsworthy. This one wasn’t.

Did the press make a big deal out of a nothingburger at Duke, or was this the Duke piece of a larger, and newsworthy story. Has too much been made out of the fringe of simplistic if passionate students when one realizes just how tiny a fraction they constitute in the grand scheme of university students?

*Tuesday Talk rules apply.

As highlighted in the video, Fortson had a handgun in his hand. From the perspective of the deputy, he was there to address a “disturbance” in apartment 1401, Fortson’s apartment.

The bodycam footage, dated May 3, begins at roughly 4:28 p.m. with a deputy arriving at what appears to be an apartment complex.

A woman at the complex is heard telling the deputy there was a disturbance in apartment 1401 and that it was “getting out of hand.”

The same woman tells the deputy she previously walked by the apartment and heard yells and “a slap,” but added she wasn’t sure where it came from.

The deputy takes the elevator to the fourth floor and knocks on a door three times. The apartment number “1401” is visible in the footage. He announces himself twice, saying, “Sheriff’s office, open the door.” There is nothing heard on the footage from inside the apartment.

Why would Fortson appear at the door holding a loaded gun knowing that on the other side, as announced, was a deputy? This is where the perspective shifts from what is seen on body cam video to what was happening with this good and decent young man. Consider the scenario from Fortson’s position on the Good Guy Curve.

Until he arrived at the door, Fortson could not have known whether the person on the other side was really a deputy or someone pretending to be so he could commit a push-in robbery. What Forston did know was that there was no reason for a deputy to be knocking on his door. He wasn’t a criminal and there was nothing, to his knowledge, happening that could conceivably give rise to police interest in him or what was happening in his apartment. Indeed, at the time the deputy knocked, Fortson was facetiming with his girlfriend, hardly something to give rise to law enforcement concern.

So Fortson, unaware of any possible reason for the knock and announce, and unaware of any legitimate reason why a deputy was at his door did what a law-abiding citizen has a right to do: approached with caution. Fortson approached holding a gun, because he had a right to do so.

And his mere holding of a gun was sufficient in the mind of the deputy to invoke the Reasonably Scared Cop Rule. Sure, the gun was pointed down, not at the deputy, but that doesn’t mean he couldn’t have raised it and fired in an instant. But he didn’t. Instead, the deputy fired five bullets into Fortson’s body. Instead, the deputy shot and killed Roger Fortson.

There is no question that the deputy was at the apartment where, he was told, a disturbance was happening. The sheriff’s explanation was that the deputy heard sounds of a disturbance coming from inside the unit, thus verifying what the deputy had been told. The video, however, reveals no sounds emanating from the apartment. Still, given what woman told the deputy, he had a reason to investigate further.

If your primary concern is whether the cop had an objective reason to be afraid for his life, you will find Fortson’s holding a gun sufficient to justify the shooting. After all, a cop need not wait for the muzzle flash before defending himself from a deadly threat.

But if your concern is that a citizen, a good guy, has a fundamental right to possess a gun, particularly in the defense of his own home, Fortson did nothing wrong. You might question why he had the gun in hand after the deputy knocked and announced, it being unwise to hold a gun when a cop knocks loudly, but bear in mind that we neither have video of the scenario from Fortson’s perspective that offers a better understanding of why he had the gun, nor a person to ask since Fortson was shot and killed.

If the right to keep and bear arms exists, then it’s hard to fault Fortson for exercising a fundamental constitutional right. After all, he was a good guy and had no reason to believe that he posed any threat to a deputy who was inexplicably knocking on his door, assuming it really was a deputy. And yet, Rogert Fortson is dead.

Jew lists are back in fashion pic.twitter.com/aE8AdrrO67

— Eitan Fischberger (@EFischberger) May 11, 2024

Of course, without lists, how would people know who to hate, to shun, and round up when the time comes?

The irony isn’t that people who believe they are the righteous are making lists of people to hate and presumably cancel, as happened when PEN America cancelled its awards gala. To the unduly passionate, Zionism has become the new “racism,” an epithet conclusively dooming its target to be not merely on the wrong side of history, but complicit in “genocide.” After all, how can anyone support Israel knowing what is happening in Gaza, as gleaned from viral Tiktoks.

If there is such a list for lawyers, for blawgers, for old white men, put me on it.

It should come as no surprise that the unduly passionate are ramping up for their next round of hating who they tell you to hate. It was the only path available to the woke fringe, for whom the world breaks down to a simplistic binary in all things other than gender.

HAPPENING NOW: DRAG ARTIST AND TRANS ADVOCATE CHIQUITITA DISRUPTS THE GLAAD MEDIA AWARDS FOR THEIR SILENCE OF THE GENOCIDE IN GAZA AND THEIR PARTNERSHIP WITH ADL. “GLAAD IS COMPLICIT IN GENOCIDE”. pic.twitter.com/cOQ5S3rAsv

— ACT UP NY (@actupny) May 12, 2024

This has nothing to do with which side you favor or whether any side owns morality. People used to say reasonable minds can differ. Now, reasonable minds are complicit in genocide if they aren’t overtly anti-male anti-racist pro-Palestinian, until the next group that must be hated is named. Sorry, but I don’t make the rules.

Happy Mothers Day. Enjoy it until they reach you on the list.

And then their convictions were reversed. In New York, this was unacceptable to Democratic legislators, so a bill has been introduced to change the law.

§ 60.77 Rules of evidence; admissibility of defendant committing another sexual offense in a sexual offense case.

1. In a criminal proceeding in which a defendant is accused of a sexual offense, the court may admit evidence that the defendant committed any other sexual offense. Such evidence may be considered on any matter to which it is relevant, including to prove that the defendant acted in conformity therewith or had a propensity to engage in similar wrongful acts.

The bill goes on to permit the judge to exclude propensity evidence if, like FRE 413, the probative value is outweighed by prejudice.

2. The court, in its discretion, may exclude such evidence if its probative value is outweighed by the probability that its admission will create undue prejudice to the defendant.

Had the legislators merely adopted FRE 413 as an evidentiary rule, given that New York does not have statutory rules of evidence, that would be one thing. Had legislators done this for all crimes in New York, that would be another thing. But what this does is tip the scales by establishing that propensity evidence, the very evil the Molineux Rule exists to exclude, is statutorily established as probative to show “defendant acted in conformity therewith or had a propensity to engage in similar wrongful acts.”

Had this been limited to prior convictions, it would still be bad law, but this includes “prior bad acts,” which means that at a trial for the commission of Act 1, random accusers can testify about uncharged, untested, unconvicted prior acts, without limit as to number or evidentiary proof beyond the witnesses’ accusation. The purpose is clear, to taint the defendant as a sexual predator who is disgusting, has gotten away with it many times before, and deserves to be convicted now, if not for the crime with which he’s charged, then for the crimes for which he was never charged.

As for the defendant, he’s now placed in the position of not merely defending against the crime on trial, but against any and all accusations by third parties. This means trials within trials. Except that there is no due process with regard to any of the propensity evidence, no discovery, no notice, no opportunity to defend that doesn’t place even greater emphasis on the uncharged and unconvicted accusations which only serve to taint the defendant as a bad dude who deserves to be convicted for something.

Over the years, it has become clear that the same nice folks who would reform the criminal legal system for some would make it more difficult, and harsh, for others. The others are men accused of sex offenses. Murder and assorted mayhem is one thing. Rape is another. Blackstone’s ratio applies to the former. Lhamon’s ratio applies to the latter. Let no one accused of rape walk free.

We’ve seen this happen before. Many times. It was drugs. It was civil asset forfeiture. It was corporate malfeasance. Now it’s sex offense. To be fair, it’s been sex offense for quite a while. Each time, we’ve come to learn after bad law is established and shrugged off because of the peculiar evil and its related panic that we made a mistake. A grievous mistake. And yet we keep making the same mistake over and over, because this time it’s special.

If New York changes the law to make propensity evidence admissible to serve the very purposes for which it’s excluded, it will be another grievous mistake. And yet the Democratic legislators supporting the bill feel all righteous because it would have meant Harvey Weinstein’s conviction might not have been reversed.

Well now that you mention it...

But I digress. Let’s get started poking this son of a gun, shall we?

Mother’s Day. The one day a year when we celebrate the person who brought us into the world and then spent the next 18 years trying to get us out of it. As a wise man once said, “A mother’s love is like a bad case of the flu—you can’t shake it, and it makes you want to vomit.”

This is the one holiday all year when we pretend we actually care about our mothers and act like good children. We send flowers, chocolates—hell, we actually call them for once instead of just saying “Mom, just leave a message or text me” like we do the other 364 days of the year.

Here’s a prediction I’m sure someone reading this will fulfill: one of you will give your mother the infamous handmade card. Yes I’m talking to you. The person who will write “I love you” in crayon and hope the woman who taught you to spell doesn’t notice all the mistakes. Because nothing says “I appreciate you and the contributions you’ve made in my life” like a card that looks as if a drunken toddler created it.

Take five minutes and buy a real card, genius. Thank me later.

And then there’s the Mother’s Day brunch. The one where you spend an hour waiting for a table, another hour waiting on food, and then another thirty minutes regretting you didn’t make the same meal at home for half the price. But hey you spent quality time with your mother fighting over who gets the last pancake.

Screw it, you know who the real heroes of Mother’s Day are? The dads.

Yeah, matriarchs, I said it. Fight me. We’re the ones who make sure the kids don’t burn the house down while they try to make you breakfast in bed, after all. Let me tell you, ladies, there’s nothing more romantic than waking up to the smell of burnt toast and the melodic sounds of your children arguing over who gets to use the fire extinguisher.

I have a friend who just lost his home in a fire but I’m still making that joke.
That’s how giving I am. You’re all welcome.

In all seriousness, Mother’s Day is a great opportunity we often neglect to really celebrate the person who’s always got our back and can make anything better with a hug and a cup of hot tea. Whether it’s a heartfelt message, a thoughtful gift, or just spending time with them, it’s important to take time this weekend to honor the incredible women who helped raise us.

To all the Moms out there reading this: cheers! May your weekend be memorable.
To the children of mothers out there: Go call the woman. She wants to hear from you and this parenting stuff is HARD.

That’s all for this weekend! Happy Friday and remember: no matter how bad your week’s been at least you’re not Mama June to your daughter’s Honey Boo Boo!

We’ll see you next week, everyone!

After nothing happened for about 14 months, Pope sought aid from Wisconsin’s public defender, who replied that Pope first needed an extension from the court of appeals—which turned him down on the ground that he had waited too long. See State v. Pope, 2019 WI 106 ¶11, 389 Wis.2d 390, 936 N.W.2d 606 (Dec. 17, 2019) (recounting the 1997 decision). The court of appeals found that Pope had forfeited his appellate rights by not doing himself what the lawyer was supposed to do for him. Pope then asked the trial court for relief; it said no, given the appellate decision. “Since 1997 Pope has made multiple attempts to reinstate his appeal rights.” Id. at ¶12. All were unsuccessful until 2016, when the state acknowledged that Pope is entitled to an appeal and the circuit court entered an order to that effect.

The new-appeal order did not do Pope any good, however, because Wisconsin requires court reporters to keep their notes for only ten years. Wis. S. Ct. R. 72.01(47). Backes failed to order a trial transcript in 1996, and the state’s judiciary rejected Pope’s request for one in 1997. (Technically, Pope filed a “statement on transcript”, which the court of appeals treated as a request for a transcript at public expense. That request was denied. Pope then did not order a transcript on his own account, as he lacked the funds.) The notes were destroyed. In 2017 a state judge held that, given the absence of the transcript that Pope’s current lawyers say they need to formulate a claim of error, and the inability to reconstruct a transcript (a finding that the state does not contest in this court), Pope is entitled to a new trial. That decision was reversed by the court of appeals, and the Supreme Court of Wisconsin affirmed the appellate decision.

Horrible? Absurd? Bear in mind that this didn’t exactly happen in a vacuum, as Pope did what he could to try to vindicate his rights, even if it wasn’t sufficient for the Wisconsin Supreme Court. But even with all this known, Pope’s nightmare wasn’t over.

It is now almost 28 years since Pope was sentenced to life in prison, and he has yet to enjoy an appeal. He has suffered at least two violations of his constitutional rights: the right to assistance of counsel, see Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (failure to pursue an appeal requested by a client is treated as ineffective assistance without the need to show prejudice), and the right to an appeal equivalent to that available to well-heeled litigants, see Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). (A solvent litigant could have purchased a transcript in 1997.) When a state violates a criminal defendant’s constitutional rights, it must set aside the conviction unless it finds, beyond a reasonable doubt, that the violation was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Yet Wisconsin’s judiciary has never found that the errors were harmless beyond a reasonable doubt. Instead it has placed multiple burdens on Pope—a burden to take over the tasks that his faithless lawyer should have performed and a burden to show arguable issues that a transcript might illuminate. That is a long way from the approach required by Chapman.

While Judge Easterbrook’s “take no prisoners” approach can be devastating when he’s on the wrong side of an issue, it’s extraordinary when, as here, he calls out each piece of the system, starting with naming the appellate defense lawyer who completely abandoned Pope and, for good measure, noting that the Wisconsin bar isn’t the least bit concerned about it.

But his lawyer, Michael J. Backes, abandoned him and did not take any of the steps necessary to protect Pope’s rights. Backes has been reprimanded for abandoning at least four other criminal defendants yet remains in good standing at Wisconsin’s bar.

The opinion is a mere five pages, easy to read and, well, devastating. As I’ve argued here many times before, when criminal law activists point fingers at the failings of the legal system, it’s almost invariably directed at the police and prosecution. Not that they don’t deserve their fair share of blame, but reformers forget that there is supposed to be a criminal defense lawyer standing between the defendant and the system, to do battle when cops and prosecutors do wrong.

And beyond the defense lawyers, there are supposed to be judges, whose duty includes assuring every defendant that his constitutional rights are protected, even when (especially when?) the criminal defense lawyer drops the ball. As Judge Easterbrook’s opinion in Pope demonstrates, there are times when every cog in the wheel of justice fails, and fails miserably. It took 28 years for a judge to stop making excuses for the denial of one of the most basic rights available to a criminal defendant: the right to appeal.

A group of 13 conservative US federal judges are vowing to not hire Columbia University law students or undergraduates because of how the school has handled pro-Palestinian demonstrations on its campus in recent weeks.

The judges sent a letter to Columbia President Minouche Shafik and the dean of Columbia’s law school Gillian Lester, on Monday, outlining their position and describing the Manhattan campus as “ground zero for the explosion of student disruptions, antisemitism and hatred for diverse viewpoints on campuses across the Nation.”

Whether you agree or disagree with the particulars of the judges’ condemnation of Columbia Law, a more basic question arises from this letter. As noted by Orin Kerr at VC, do judges have a role, any role, to play in this melodrama?

Over at David Lat’s substack, Judge Lee Rudovsky, who is considering whether to join the Columbia clerk boycott, offers a perspective on the role of judge that is relevant to that discussion and that I think is worth addressing:

Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents.

I respectfully disagree.  As I see it, judges as judges do not have an important role to play in our society beyond the work they do in the courtroom or in chambers.  They shouldn’t be stepping up to the plate, and they shouldn’t be trying to help American society solve problems like anti-Semitism, in any kind of official capacity.

Judge Rudovsky’s “special role to play” has the ring of social activism to it, much like the duty to speak up for the oppressed or be complicit in their oppression. The claim is inherently unsound  as applied to society in general, and improper as applied to judges in particular.

First, they have not been elected as society’s moral arbiters any more than activists, but as folks with robes who decide questions of law.

[N]othing in that process qualifies a judge for some broader role in society.  Judges are not overseers of our culture, or specialists in mob violence or how to address it. If, as individuals, judges want to take on a broader role in society, they are free to step down from the bench and pursue it.

Second, while they have the right to speak out on any political or controversial subject of their choice, regardless of whether their thoughts are any more valuable than, say Taylor Swift’s, they do not have the right to do so when it is in conflict with the position they’ve voluntarily assumed as judges.

The problem, it seems to me, is that the “special responsibilities” Judge Rudovsky suggests judges have can be hard to distinguish from politics.  I don’t mean politics in the Republican versus Democrat sense (although it’s presumably no coincidence that all of the judges who have publicly joined the boycott are Trump appointees).  I mean politics in the broader sense of how our society resolves competing claims about justice and fairness. When those claims don’t happen to involve a legal claim brought by a party in court, turning that question of politics into a question of law, I think judges acting in their official capacities should sit on the sidelines.

There is always the possibility that a case will come before them involving issues raised, or parties involved, in the moment’s outrage. By putting their thoughts and feelings on paper, they have compromised their integrity, expressed their bias and demonstrated a lack of impartiality expected and demanded of a judge.

When one becomes a federal judge, one assumes vast power to impact litigants. That power is granted for life upon good behavior, the point of which is to insulate judges from the political and social winds of the moment such that they can reach sound if unpopular legal decisions. With this vast power comes some limitations, not the least of which is getting embroiled in politics that taints a judge’s impartiality. Yes, they have opinions and beliefs just like everyone else. No, they do not get to put up a tent or take one down. Not if they want to continue to wear the robe.

Judge Rudovsky is right, judges do have an important role to play. Orin is right, that the important role is that of being a judge, even if that means they can’t get down in the mud and wrestle with pigs.

Either Judge Cannon wasn’t up to the job of being a federal judge, which wouldn’t come as a major surprise given her stunning lack of experience and extremely thin qualifications when she was appointed by then-president Trump.

Or she was in Trump’s pocket, at least to some extent.

My belief in institutional integrity compelled me to presume the former rather than the latter. Once appointed for life, Article III judges tend not to feel any sense of obligation to the president who gave them their robe, no matter how undeserved it may be. They know that their fidelity to president, party and politics will haunt them on the bench, making everyone from litigants to circuit judges taint them as unworthy, both of integrity as well as being taken seriously. Even judges aspire to respect from their peers, and the peers of federal judges are their fellow federal judges.

Of course, that aspiration is tempered by other aspirations, such as higher or different office. But I digress.

Pathetically, the order issued by Judge Cannon taking the Trump classified documents case off the trial calendar without a new date leaves me to believe that I gave her too much credit in chalking her special master ruling up to grave incompetence. This is not to say that she  is competent, but that even an incompetent judge would have minimally grasped that her steaming pile of self-created malarkey wouldn’t pass the sniff test from a thousand miles away.

The Court also determines that finalization of a trial date at this juncture—before resolution of the myriad and interconnected pre-trial and CIPA issues remaining and forthcoming—would be imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury. The Court therefore vacates the current May 20, 2024, trial date (and associated calendar call), to be reset by separate order following resolution of the matters before the Court, consistent with Defendants’ right to due process and the public’s interest in the fair and efficient administration of justice.

This isn’t a hard case. There aren’t difficult issues to be determined. A competent judge would have decided all outstanding motions in a month. An incompetent judge would have taken six weeks. Maybe eight if all her law clerks quit. The two words beginning with the letter “i,” imprudent and inconsistent, are the sort of meaninglessly vague verbiage federal judges employ to cover their butt.

The problem isn’t that the court shouldn’t “fully and fairly consider” pending motions, at least to the extent they aren’t facially ridiculous and intended to either pursue some delusional conspiracy attack, such that they would be summarily trashed by even the most modestly competent judge. The problem is that these motions only remain pending because Judge Cannon never decided them, even though they could have, and should have, been decided months ago. They’re just not that hard.

But what about the Speedy Trial Act, you ask?

Finally, the Court has evaluated the statutory factors set forth in the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(B), including the public’s interest in the efficient administration of justice. Upon such review, the Court finds that the ends of justice served by this continuance, through the last deadline specified in this Order, July 22, 2024, outweigh the best interest of the public and Defendants in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). Time under the Speedy Trial Act is therefore tolled—up to and including July 22, 2024—to permit adequate time for hearings and adjudication of substantive pretrial motions, discovery disputes, and CIPA issues, many of which present novel and difficult questions.

Under the Speedy Trial Act, the government has 70 days to bring a defendant to trial. This never happens. There are invariably motions that give rise to delays, as well as other reasons such as negotiation of a plea (which doesn’t apply here). But there are two interests the act serves, foremost of which is the defendant’s interest in getting out of pre-trial detention and out from under the taint of criminal accusation. Trump isn’t in jail and would apparently prefer to take his chances with an election than a trial.

But there is also a public interest involved, which Judge Cannon blithely dismisses as outweighed by her failure to decide motions for months. Cool story, judge.

It had been my hope that her absurdly dumb ruling in the special master case reflected her inexperience and challenged intellect, and was not the product of some sense of allegiance to the man who plucked her from obscurity and handed her a robe. My hopes have been dashed. This order precludes me from chalking it up to mere incompetence. This was conniving, which is not ordinarily considered a qualification for federal judge. Indeed, it should be frowned upon. I am frowning.

What’s wrong with fixing a legally “non-binding” definition of antisemitism in education? As with so many things, it goes vague and overbroad at the fringes.

But the IHRA text also states that “manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity” and offers several examples such as:

• Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
• Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
• Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
• Drawing comparisons of contemporary Israeli policy to that of the Nazis.
• Holding Jews collectively responsible for actions of the state of Israel.

Given what’s happening on campuses and in the streets, particularly the confusion over whether calling for the destruction of Israel and death of Jews is antisemitic, this long-standing bill from the BDS days finally got some traction.

While the legislation is a Republican project—the lead sponsor is New York Republican Michael Lawler, and most of the cosponsors were Republicans—Democrats also rallied behind it; of 212 House Democrats, 133 voted for the bill. And yet critics across the political spectrum, from the American Civil Liberties Union to libertarian Reason magazine columnist Robby Soave to right-wing pundit Matt Walsh to anti-woke education crusader Christopher Rufo to left-wing populist (and strong Israel supporter) Batya Ungar-Sargon, have denounced the bill as not only a terrible idea, but an unconstitutional one.

And initially, I agreed, as Cathy noted in her piece.

Attorney and blogger Scott Greenfield, who initially assailed the legislation as “one of the dumbest and most unconstitutional bills ever introduced,” later came to a similar conclusion:

At the New York Times, Michelle Goldberg joined the chorus condemning the “dangerous” bill “which would codify, for the purpose of enforcing federal civil rights law in higher education, a definition of antisemitism that includes rejection of Israel as a Jewish state.” But she then notes the Democratic Congressman, former con law prof and occasional progressive darling Jamie Raskin supported the bill.

Jamie Raskin, a House Democrat and former constitutional law professor, wrote a statement explaining the problems with the bill at length, before justifying his “yes” vote with a kind of defeated shrug: “At this moment of anguish and confusion over the dangerous surge of antisemitism, authoritarianism and racism all over the country and the world, it seems unlikely that this meaningless ‘gotcha’ legislation can help much — but neither can it hurt much, and it may now bring some people despairing over manifestations of antisemitism a sense of consolation.”

There remains a question of whether the non-binding definition formulated by IHRA will serve to illuminate the scope of antisemitism or be weaponized by some bureaucrat in the Department of Education’s Office of Civil Rights to silence criticism of Israel, which is and certainly should be protected speech, as a form of prohibited Title VI discrimination.

Of course, given how the current bureaucrat has handled Title IX definitions, there is nothing to preclude the office from crafting as vague, overbroad and dangerous a definition as she wants now, so that while this law provides Congressional imprimatur that Catherine Lhamon lacks for Title IX, it merely offers the opportunity to expand and weaponize the definition if the bureaucrat is so inclined to use it against universities.

Is this a bad law, a nothing-burger or a  fair, albeit non-binding, means to stop antisemitism on campus? Given the current state of campus unrest, there is a strong probability that conflation of criticism of Israel will leak into ordinary Jew hatred, as it already has in some instances. Will this help to stem the tide? Given that Zionism is the movement for Israel as a Jewish state, does the vilification of Zionists and calls for the eradication of Israel include a call for the death of Jews?

*Tuesday Talk rules apply, within reason.

On Saturday, an MIT spokesperson confirmed in an email to me that “requests for a statement on diversity will no longer be part of applications for any faculty positions at MIT”, adding that the decision was made by embattled MIT President Sally Kornbluth “with the support of the Provost, Chancellor, and all six academic deans”.

The decision marks an inflection point in the battle over diversity, equity, and inclusion (DEI) in higher education. Since at least the late 2010s, diversity statements have been ubiquitous in faculty hiring, sometimes carrying serious weight in the selection process. As one dean at Emory University put it while describing her approach to hiring, “Diversity statement, then dossier.”

Whether it’s correct to suggest diversity first, then competence, it’s hard to argue that anyone falling short on their past, present and future commitment to diversity stood a chance at being hired. And it wasn’t an easy thing, even for those who believe in diversity rather than spew the word salad to get a foot in the door.

MIT embraced the diversity statement trend. In late 2023, the university’s Department of Nuclear Science and Engineering sought an assistant professor “in fields from fundamental nuclear science to practical applications of nuclear technology in energy, security and quantum engineering”. Applicants were required to submit “a statement regarding their views on diversity, inclusion, and belonging, including past and current contributions as well as their vision and plans for the future in these areas”.

What exactly would a nuclear science prof have to offer to prove his diversity cred? Short of guaranteeing a passing grade to all marginalized students, it’s not as if the prof has much to offer.

The thought here is that if MIT, what the Ivy folks call a “peer institution,” is ready to trash the diversity statement, then can Harvard and Yale be far behind?

The decision at MIT is different — reform from within, prompted by a university president alongside deans and provosts, at a private institution.

It’s very possible that more private universities, and state universities in blue states, will eventually follow MIT’s lead for one basic reason: a significant number of faculty from across the political spectrum simply cannot stand mandatory DEI statements. Last month, Harvard Law School’s Randall Kennedy — a self-described “scholar on the Left committed to struggles for social justice” — described the general sentiment: “It would be hard to overstate the degree to which many academics at Harvard and beyond feel intense and growing resentment against the DEI enterprise because of features that are perhaps most evident in the demand for DEI statements.”

DEI statements had long been under attack as social justice loyalty oaths, requiring applicants for the Academy to swear fealty to the “DEI Enterprise” They’ve been criticized as a blatant mechanism to assure woke ideological conformity in the professoriat by weeding out any heretics who scored too poorly on the diversity rubric. But is it, as Sailor proclaims, “momentous”?

While the compelled speech of a diversity statement was a blight on the Academy, the elimination of diversity statements by no means guarantees that the hiring process will eschew ideology or welcome diversity of thought. Diversity statements were one test, an easy means by which to vet applicants so that no heretic manages to slip through to the interview stage. But that doesn’t mean applicants won’t be asked questions, won’t be tested on their adherence to the orthodoxy, or suffer rejection.

Diversity statements were a reflection on the depth to which the Academy had fallen in its ideological conformity. Has that changed? Are the current professors, and perhaps more importantly, the current students who are often involved with hiring committees whether officially or otherwise, any less woke? Will they be willing to have a conservative in their midst? A liberal, in the old school sense of a principled lefty who would fight for the rights of those he disagreed with?

Much as MIT’s elimination of Diversity Statements is certainly a positive step, particularly given the nature of the Institute and the limits of how science and engineering can bend to fit the diversity paradigm, rumors of the death of ideological capture might be quite premature. Much as many of us would hope that the days of the Woke Inquisition are waning, the current campus climate suggests that there remains a very long way to go to undo the ideological damage to students inflicted by, and with the support of, the people into whose hands their fragile minds were entrusted.

Lawprof John O. McGinnis explains the problem with capitulation.

Northwestern University, where I teach, has reached an agreement with Gaza-protesting students to end their encampment. The university agreed to the terms under duress, as the students were breaking Northwestern’s rules and threatening further disorder; their capitulation will incentivize more rule-breaking in the future. The agreement’s substance will further entrench identity, rather than truth, as a foundation of university life. Until universities return to the business of education and reject identity politics, they will be subject to such holdups.

He goes on to explain why reasonable time, place and manner restrictions on protest are constitutional, and that the students knowingly violated them. While Northwestern is a private institution, and hence the First Amendment does not apply, what the students did would have been wrong regardless. They knew, or should have known, that wrapping up their actions in the rhetoric of protest didn’t give them carte blanche to lawfully do as they pleased. They didn’t care. As far as the students were concerned, they were passionate, they were moral, they were on the right side of history. That meant they were entitled.

And when the outcome is negotiation and capitulation, the students turned out to be right.

Entering into an agreement with these students invites further campus disruptions. It also puts the school in a bind. If Northwestern holds firm against a future band of agitators, it can be rightly accused of playing favorites—a charge inimical to the university’s mission of drawing on ideas from all corners and transmitting knowledge.

To put it another way, once you’ve surrendered to a small cohort of students who took a portion of a campus hostage by giving in to their demands, you’ve made clear that violating the rules is the path to getting your way. You’ve made clear that you are unwilling to take the unpleasant actions to free the campus from the small group of students who demand control and let them, rather than the governing body of the university, the vast majority of the faculty who didn’t lock arms to protest the protesters and the rest of the student body, seize control of the university. You’ve validated their scheme. You’ve set the precedent.

Worse than the university’s capitulation may be the substance of the agreement itself. First, Northwestern agreed to admit and provide full scholarships to five Palestinian students. This offer is legally dubious, as Title VI of the 1964 Civil Rights Act prohibits admissions that discriminate based on “national origin.” The university might be relying on how Title VI applies only to people “in the United States,” but the statute is binding once those students set foot stateside; after all, a university surely could not design an admission program for exclusively white foreign students. Northwestern shouldn’t be able to argue, either, that Palestinians’ special hardships warrant making an exception to Title VI. The Supreme Court, in its recent Students for Fair Admissions v. Harvard case ending affirmative action, rejected diversity of experience as a compelling interest justifying discrimination. The same objections can be lodged about the provisions to bring over two Palestinian academics as visiting professors.

Legal or not, this provision reinforces Northwestern’s commitment to identity politics. To be sure, many Palestinians are suffering, but so are others of different nationalities. What about Ukrainians, Uighurs, Haitians, and, in fact, Israelis? Rewarding groups by their identity is exactly what has emboldened constituencies to demand privileges that compromise the school’s institutional neutrality.

The specifics of the capitulation are, as McGinnis explains, problematic. While they may vary from school to school, they are invariably predicated on identity. It’s not as if  anything any school does is going to have any impact whatsoever on the fighting in Gaza. If they both cared about Gazans and had the capacity to think, they would have realized that the only path for helping Gazans was to protest Hamas rather than give it their support and comfort, thus emboldening it by showing that American students support its terrorism.

Civilization has progressed by creating organizations with separate and limited tasks. We have political institutions that respond to constituent pressures. Universities are an epistemically neutral forum for disagreement and must stand apart from politics. A university’s neutrality, once compromised, cannot be easily regained. As Northwestern will learn, surrendering to students with a political agenda comes with costs.

Some have tried to compare what’s happening on campus now to what happened in 1968. There were many differences, but perhaps the most important one was that students’ neighbors, brothers, ROTC members and, if they flunked out, roommates were being drafted and sent to die in ‘Nam. The universities were directly implicated in the conflict. This time, the schools had no connection to the conflict, and were left to do the one thing that universities exist to do. By capitulating, they taught one lesson, that they are weak and easily manipulated, and lack the fortitude to fulfill their mission.