Friday, February 12, 2021
In 2016, I was a proud supporter of Senator Marco Rubio’s campaign for the Republican nomination for President. I put a Rubio sign in my front yard. I blogged about my support for Rubio. I encouraged people I knew to turn out for Rubio at the Minnesota caucuses. I attended the Minnesota caucuses, where my precinct voted overwhelmingly for Rubio. Although Donald Trump carried primaries nearly everywhere else that day, the good people of Minnesota stood for principle and character, giving the strong win to Marco Rubio.
In 1980, I was a delegate to the Republican National Convention, as part of the Montana delegation that put Ronald Reagan over the top for the nomination. In 2016, I thought I saw in Marco Rubio another powerful leader of principle and character. Rubio integrated conservative values with equal opportunity. Rubio spoke openly of his Christian faith and how it provided moral guidance to his political role. He saw faith and people of faith as playing a key role in promoting the common good for people of all faiths and beliefs. I saw him as offering us the best of a person of deep faith and positive spirit in seeking political office.
After the tragedy of Trump’s nomination and then the start of the long four-year downward spiral of the Trump presidency, Rubio’s moral standing appeared to falter, not by words or action but too often by silence. From time to time, Rubio would return to his first values and separate himself from this or that of the worst of Trump’s outrages. Indeed, I often defended Rubio to others who were dismayed by the Trump perversion of the conservative movement.
Barely a month ago, we watched a defeated president call for his extremist followers — the White Nationalists and conspiracy theory crazies that Trump had welcomed for four years — to join him at what he promised would be a “wild” rally on January 6 to overturn the election results. Once again drawing on his repertoire of violent imagery, Trump enraged the crowd and then sent his crazed mob down Pennsylvania Avenue to the Capitol. Repeating word-for-word what Trump had told them, the mob chanted Trump’s slogans and lies as they attacked the citadel of democracy. We watched the Trump mob beat police officers with Trump flags.
When Trump’s long-delayed response came hours later, he said of these domestic terrorists who were acting in his name, “We love you. You’re very special.”
Documenting history is a moral obligation if we are ever to learn from mistakes and aspire to something better. Over the past few days, the impeachment managers have done exactly that. As graphic and disturbing as was the video and documentary evidence, we as citizens were rightly called to bear witness along with the Senate to Trump’s inflammatory words and to the Trump mob attack on the Capitol.
Then we learn what Marco Rubio thinks about this. He branded the whole thing as “stupid.” To be sure, he said that Trump bore responsibility for what happened. But he nonetheless said that he wanted to end it as soon as possible and, indeed, even before any evidence was presented. And Rubio promised to join most of his fellow Republicans in the Senate in giving Trump a pass for the most dangerous attack on American democracy in more than a century. In fairness, however, Rubio said this before we saw the full story in living color.
I pray that Marco Rubio will think carefully about what he now has seen. I hope that he did not turn his eyes away, but watched carefully and thoughtfully. I urge him to draw on the conscience that he spoke of during his 2016 presidential run. Please consider, Senator Rubio, that you may be on the wrong side in dismissing the infamous events of 1/6 as something to rush past “at the first chance” to “end” this. Do not allow others behind the scenes to sweep away the broken glass, while you fail to demand that justice be rendered against the president who shattered the windows of American democracy.
Now is the time. Later recognition that this opportunity was lost is simply too late. It’ll be too late for history, which will not look kindly on those who hastened to move past this outrageous episode. It’ll be too late for our country which needs a new beginning. It’ll be too late for the Republican Party which has tolerated a faction that accepts political violence and desperately needs to move on to a different and more uplifting path.
Please surprise me, Senator Rubio. Please let us see the same man of principle, character, and conscience that inspired me in 2016. Prayerfully and regretfully, but firmly, vote to convict Trump. Let the truth set you free.
Wednesday, January 27, 2021
Mixed Feelings from a Department of Justice Alum About the Belated Ethical Stand by DOJ Leaders at the Close of the Last Administration
After working as a legislative assistant to a U.S. Senator on Capitol Hill and clerking for a U.S. Court of Appeals judge, I was fortunate to be chosen through the Honors Program to become an appellate attorney at Main Justice in Washington, D.C. For three years, I represented a wide variety of government officials (from the President and Cabinet secretaries to line government employees) and federal agencies (from the Central Intelligence Agency and Department of Defense to the U.S. Postal Service). I was the attorney on appellate cases in the U.S. Courts of Appeals and the Supreme Court. The subjects ran across the civil litigation spectrum, from constitutional challenges to government programs to simple tort claims against the government.
That wonderful opportunity for a young lawyer proved to be the beginning of my life's work.
As a law professor, I have devoted much of my academic attention to civil litigation involving the federal government. I have authored the hornbook on "Litigation With the Federal Government," published by West Academic Press in 2016 and now on contract for a new edition in 2022. I have also published the only law school casebook on the subject, having now taught the course more than a dozen times. I have written many, many scholarly articles on jurisdiction over government cases, contract and takings disputes with the federal government, attorney's fee recoveries against the federal government, the Federal Tort Claims Act, etc. Most recently, I have been working on federal government accountability for official wrongdoing, with a focus on redressing sexual violence perpetrated by federal employees.
My pro bono appellate practice over the past decade has put me more than once on the other side of the Department of Justice, when I have been court-appointed counsel for those bringing claims against the federal government and when I have written or joined amicus briefs in the Supreme Court. When appearing opposite DOJ attorneys in court, I have continued to appreciate the professionalism and high standards of ethics of federal government attorneys. As any good lawyer will tell you, it is much easier and more satisfying to litigate against good and responsible attorneys, while it is hard and unpleasant to litigate against poor attorneys. And with the DOJ, you interact with the best of the best. Thus, even as a litigation opponent, my affection for the DOJ remains strong.
Because of those sentiments and my hard-earned knowledge of the vital importance of this legal institution, I have been heartbroken to watch the politicization of the Department of Justice over the past four years by the Trump White House. Especially under Attorney General Barr, DOJ has too often been degraded to the personal law firm of Donald Trump. DOJ’s true mission is to serve as the legal counsel for the federal government as a whole, bearing allegiance not to an individual but to the United States. The devolution of DOJ during the Trump Administration has undermined its role as an independent source of legal advice for the government and executive officials, tarnished its reputation before the courts and public, and caused many of its best and brightest to leave Main Justice.
It was with mixed feelings that I learned of former President Trump’s final disgraceful attempt to recruit the DOJ as a legal foot soldier in his misguided army of insurrection against democratic governance.
Sunday, January 24, 2021
This is the third and final in a series of posts about my experiences teaching in person last semester during the pandemic at a Catholic law school. The first post was about health and safety for teaching in person despite the contagion. The second post was about educational quality given the accommodations necessary to teach in person during a pandemic. This post is about fostering community in challenging times with social distancing.
Community as a Hallmark Value at the University of St. Thomas School of Law
Fostering community among students, faculty, and staff is a hallmark at the University of St. Thomas School of Law. It is one of the visible attributes that draws prospective students and that is frequently emphasized by our current students and alumni. As more than one person has said, community is simply baked into our DNA at St. Thomas. If you ask a typical St. Thomas law student what stands out about the law school experience, he or she is quite likely to speak to a positive atmosphere that nurtures students and draws people together.
Now many law schools tell prospective students that they have a strong community and portray images of community in publicity brochures and alumni magazines. Assertions of a supportive community are easily uttered. For the University of St. Thomas, we fortunately have considerable concrete evidence that our community is genuine and distinctive.
First, in national surveys of law student engagement, law students at the University of St. Thomas consistently report they are happier and feel more supported. UST law students are much more positive about their law school experience than is generally reported at other law schools.
Second, I take an anonymous survey of students in my Professional Responsibility class each spring when they are more than half-way through their legal education. Substantial majorities of our students report each year that they are more committed to and even happier about their choice to become lawyers than when they began their legal education. By contrast, across the country, many law students become disenchanted by the end of their first year, and upper-level students often express regret about their decision to go to law school.
Third, in yet another survey, which is publicly available, our students vote regularly in the Princeton Review to include us among the top ten law schools for “Best Quality of Life.”
Now some law deans and professors would openly or quietly disclaim that community should be a signature characteristic of legal education. The purpose of law school, they would say, is to effectively prepare students to pass the bar and competently engage in the practice of law. Others might say that a law school as part of a university should be first and foremost about demanding critical thinking and challenging students with new ideas, rather than seeking to flatten out student experience into an anodyne good feeling. And in public law schools, there are constitutional free expression expectations that restrict efforts to vigorously press a particular theme, which in the legal academy can become ideologically rigid.
I believe that the University of St. Thomas has generated a sense of community that is neither heavy-handed in approach nor indifferent to differences in viewpoints. To be sure, as a private and faith-based law school, we would have the freedom to choose a motivating theme, even if it trespassed on freedom of thought or excluded contrary points of view. But that is not our path. We do not assume that any human institution, including the Catholic Church, has a monopoly on truth. Especially when it comes to law and public policy, the Church encourages prudential judgment and respects the expertise of others in translating values into policy. Moreover, we embrace ideals of academic freedom in our encouragement of intellectual exploration. As I say when describing our Catholic identity to students, we are always Catholic, but we are not only Catholic. We welcome the expression of values and the sharing of insights from all traditions, while not neglecting the Catholic Intellectual Tradition.
Rather, at the University of St. Thomas, we seek to foster a community that is diverse in every way, that consists of people who disagree passionately about matters of values and who draw their most deeply-cherished beliefs from a variety of backgrounds and traditions. What is distinctive for us is to celebrate this diversity and see it as an entry point to draw everyone together. As our Vision Statement defines community, “[w]e foster a diverse environment in which each student feels supported in his or her unique journey from law student to lawyer and called to share his or her gifts to enrich the collective learning community.”
The crucial link that brings us together is a very intentional attempt to talk across the political, cultural, and religious divisions that plague our country. Our sense of community is a bridge, a search for common ground. In so doing, we discourage the demonization of different viewpoints or the presumption that those who disagree with us are acting in bad faith. At the same time, we encourage speaking truth to power and shedding light on uncomfortable realities and damaging attitudes that others might wish to avoid. Far more than is true at most other law schools, UST law students who espouse quite conflicting positions on legal and political issues are in conversation with each, attend programs sponsored by groups with a different perspective, and collaborate on ventures to to better understand alternative viewpoints and find a common ground if possible.
Saturday, January 16, 2021
This is the second in a series of three posts about my experiences teaching at a Catholic law school in person during the pandemic. The first post was about safety for teaching in person. This second post is about educational quality. And the third and final post next week will be about fostering community in challenging times.
Premise of Superior Quality of In-Person Teaching:
I begin this post by forthrightly stating my premise that teaching in a classroom to students who are physically present to each other and to the professor is superior. I genuinely believe that this is the ideal setting for legal education. Of course, a pandemic can make a mockery of the ideal.
Even in normal times, I acknowledge exceptions to this premise, such as a special unit of one or two credits for subject that by its nature requires less of a synchronous dialogue. And there is value in an online course designed for students who are unavoidably remote, such as during a summer session for students working elsewhere. For a fully online course, assuring educational quality requires precise organization, development of asynchronous online elements to engage students, use of technology with video and interchange elements, etc. As the experts and those who teach online regularly know, a fully online class demands intense prior planning and rigorous attention to best practices.
But for the typical doctrinal law school course, in-person instruction is better. And for the course that primarily involves a back-and-forth dialogue between the professor and students, in-person instruction is essential to keep the entire class engaged.
And we have good evidence for these conclusions from this past spring. A survey conducted by Thomson Reuters, “Law Schools and the Global Pandemic,” found that a large majority of law students found it difficult to stay engaged with fully online courses, with 39 percent finding it very difficult and 23 percent agreeing it was difficult. Unfortunately, the same survey showed that only about as third as many professors, 14 percent, recognized this as a serious problem. From the professor’s perspective, he or she may have had a satisfying discussion online with the students who were called on for that day and then subjectively judge the day’s class to be a success. But the professor didn’t realize that a larger group of students were tuning out.
As one student told me, online classes during the pandemic have been “prime territory for distraction.” We have to remember that our students who are accessing a class at home, rather than being situated in a classroom designed for instruction, have multiple distractions that are calling constantly to them.
But our ideals cannot always be realized. We now are struggling with the Covid pandemic, which demands creative accommodations and empathy for the difficulties so many face. The hard reality is that not everyone can be in person, whether a professor or a student, even if that state, city, or university permits in-person instruction. We must remember that many of us simply do not have such a choice, either by reason of their own health risks or those of loved ones. And if anyone has to be online, there are reasonable arguments that being fully online avoids some of the complications of dividing between those students who are in-person and those who are remote. We all long for the return of normalcy, where these questions are not before us.
I focus here on those of us who are fortunate to have a choice and who thus are able to teach in person to students who can attend in person. I contend here that the complications can be overcome and that high quality education can still be achieved. In other words, I believe if you can do it safely, then it is worth the candle.
For those of us able and dedicated to continuing in person instruction, we had to make two key accommodations: (1) a hybrid setting in which some students were in person and others online, and (2) social distancing and mask-wearing for those in person. Let me speak to each.
Challenges of the Hybrid Combination of In-Person and Online:
I know of at least one law school that told incoming first-year students they must be in person for the fall or accept a deferral to the following year. But of the law schools that offered any in-person instruction, most allowed students to choose whether to attend in person or simultaneously attend remotely. What then of the quality of instruction for those who are in person, while the professor is juggling responses to online students as well? And what of the quality of instruction for the remote students who are listening in on the in-person class? For the first question, the impact on those in-person by the hybrid format proved to be minimal. For the students online, the situation was definitely more complicated, but in the end I think the question whether educational quality was maintained received a qualified “yes.”
For my each of my two Civil Procedure sections (that is, with the main section broken into two during the pandemic), we began the semester with approximately 38 students in person and 6 online. For those 38 attending in person, the simultaneous participation of a small number online did not appear to have any impact. So for in-person students, the quality question goes to the impact of social distancing and mask wearing (discussed below), rather than how they received instruction. Since instruction was directly from the professor, with participation by others students who were also physically present, things were much the same as usual. As I noted in the first post, students repeatedly commented how much they appreciated the opportunity to attend law school in person, despite the accommodations that had to be made to make it possible during the pandemic.
For the smaller number of students who were online (because they could not safely attend in person), a hybrid setting was more of a challenge. The university sought to address this by setting up a second monitor for the professor in the classroom on which would appear the online students. For me with my approach, that proved unworkable and so I quickly abandoned it (although I understand other colleagues found it helpful). I had all students — both those in the classroom and those who were remote — sign in to Zoom so that we could all participate in polling questions. As a consequence, the second monitor showed everyone, not just the online students. Moreover, the second monitor was set in front of me so that I could see it, which meant that its placement physically blocked my view of several students in the classroom. In addition, having two monitors awkwardly affected how the cursor moved, jerking between the two monitors. So I turned it the second monitor off and moved it away.
Another technological problem was that online students had difficulty hearing what the in-person students were saying. For the most part, online students had no difficulty hearing me, as long as I stayed behind the podium (which during the pandemic was expected anyway). But early on, it was nearly impossible for online students to hear the students in the classroom. The university adjusted the microphones in the classroom, which helped but remained imperfect. I tried to remember to restate the questions or frame my answer for the benefit of the online students, which online students indicated got better as the semester wore on.
Two technology features also enhanced educational quality for online students especially, but also for in-person students:
Tuesday, January 12, 2021
Over the next week, I plan to post three observations from my personal experiences teaching — and teaching in person — at a Catholic law school during the pandemic. In today’s post, I’ll address the question of health and safety for faculty and students in an in-person classroom environment, while a virulent disease rampages through our society. In the next post, I’ll discuss effectiveness of education given the constraints of a hybrid in-person/online format and social distancing with masks. In the third post, I’ll discuss the unprecedented challenges during the pandemic of fostering a sense of community, which is a central part of our mission as a Catholic law school.
Like other universities and law schools, we deferred to each professor’s (and student’s) judgment as to whether appearing in the classroom was safe. For the law school, we ended up (for first-year students) with more than 80 percent of our course sessions being offered in person, through the voluntary choices of teaching faculty, including myself. Our mostly in-person availability for first-year classes proved to be very popular with incoming students, several of whom told me that it influenced their final choice among schools, especially as the other two law schools in the Twin Cities had moved almost entirely online.
The University of St. Thomas, and the law school, devoted the months since the pandemic lock-down in March to plan for returning to in-person teaching in the fall. The dedication of the administration, information technology experts, and support staff cannot be praised enough. They made sure that we had the necessary technology to simultaneously provide in-person instruction and include students who had to remain online. They prepared each classroom for the necessary social distancing and essential sanitation.
Thursday, January 7, 2021
Saturday, December 26, 2020
Abuse of the Pardon Power: Highlighting the Positive Good of Clemency as Described by Mark Osler and a Shameless Self-Promotion of a Past Work of Mine
President Trump's pardon of corrupt political cronies and another group of war criminals who murdered children and other innocents was indeed "nauseating." Not only are they grotesquely unjustified, but they leave a negative impression about the positive good of clemency. For a most important discussion of these issues, including a wonderful colloquy with my University of St. Thomas colleague, Mark Osler, I encourage everyone to watch this program.
Much of my recent work focuses on accountability for official wrongdoing. A most troubling aspect of the recent slew of arbitrary pardons by President Trump is that they come at a point in which he has no accountability for his actions. There is a reason he did not issue these pardons until now, which is that he knew these controversial actions would have further damaged his chances of re-election. But there lies the problem, for which a simple solution is available.
Two decades, ago, in the aftermath of controversial pardons to relatives and cronies by President Clinton at the end of his second term, I wrote an article titled "Suspending the Pardon Power during the Twilight of a Presidential Term". I proposed amending the Constitution to suspend the pardon power, other than to delay an execution, from the date of a presidential election until the inauguration for the next administration. Building on my earlier suggestion of the same in an op-ed, a proposal was introduced in Congress in 2001 to do just that but, alas, went nowhere. It is now time to renew the proposal.
Tuesday, November 17, 2020
One Christian’s Fallible Thoughts on the Lessons of (and Warnings from) the Election for People of Faith on Both Sides
To my faithful friends and family of who voted for the losing candidate:
“[Biden’s] victory caused people to weep in joyful relief as they became aware of the heaviness that had afflicted their hearts, after they’d suddenly been relieved of it.”
The words above express what so very many of us felt when the presidential election was finally called days afterward. I myself was startled to find tears forming in my eyes when I knew for certain that the Trump presidency was now in its last days. I truly felt like a heavy weight had been lifted off my chest.
I do understand that those who voted for President Trump had a very different emotional reaction after his defeat: grief, anger, fear, denial. I do wish to extend sympathy toward Trump supporters with their deeply felt disappointment. I have always sought to understand in a sympathetic way why so many of my brothers and sisters in Christ reached a decision to support this man, who I saw as so undeserving of their faith (and I speak more of what I think I’ve learned in my words to Biden supporters below).
But in the interests of understanding each other in the community of Christian faith, I do ask those who voted for Trump to take a moment and try to understand (and perhaps even find empathy for) why so many of us felt intense relief that we would not be experiencing another four years of this presidency. Can you appreciate the wounds that so many Americans felt from the hostile words, blizzard of insults, and unceasingly childish behavior of the man in the White House?
Friday, October 16, 2020
In my professional life, I have not been reticent to express my opinions on matters of the law and legal reform, taking clear and I believe well-informed public positions on matter of public policy. In my personal life, I have not been quiet in expressing my political views, including judgments about candidates. (And in expressing political opinions here, I of course do so in my personal, academic, and professional capacity, not on behalf of my Mirror of Justice colleagues or speaking for the University of St. Thomas.). My colleagues, professional associates, family, and friends know where I stand on major issues:
- I believe in robust protection of religious liberty, including the right of individuals, religious schools, and churches, mosques, and synagogues to express religious views and exercise religious practices that may not be in vogue with the cultural elite.
- I believe that educational choice — including (especially including) religious schools — is one of the most powerful engines for progress, equal opportunity, and racial equity.
- I believe that the right to life of the unborn should be recognized as a compelling civil rights cause.
- I believe that people in urban areas, as well as suburban or rural, have a right to be safe from violence, whether safety is endangered by racist police subcultures and unnecessarily militaristic practices or by foolish calls to defund and abolish the police.
- I believe that law-abiding citizens have a constitutional right to own a gun for self-defense or sport and am a gun owner myself.
- I believe in freedom of speech and defend it against threats by self-righteous intolerant persons in the cultural elite of academia, media, and government or elsewhere in society.
- I believe that socialism is a dangerous ideology with a long history of destroying economic prosperity and undermining liberty throughout the world.
- And I believe that government and politicians are as often the problem as the solution, so that we often (not always, but often) are better advised to look for community-based partnerships for the common good.
I understand and respect that most people who share all or most of the beliefs that I have just articulated will find it difficult or impossible to support Joe Biden for president. They instead find themselves, even with grave misgivings, forced to the conclusion that President Trump is the lesser evil in this election. I love many people and know and appreciate others who, while acknowledging the grave flaws in this disordered man and saddened by the choice, will reluctantly cast a vote for Donald Trump. And I know others who conclude the only alternative is not to vote for president or to cast a protest vote for a write-in or third-party candidate.
I do not think that religious liberty, free enterprise, educational opportunity, public safety, or the right to life of the unborn are at all safe in the insecure hands of this president. Indeed, I fear that the principles that I hold most dear are endangered in the long run (and not so long run) by being so closely associated with this toxic figure.
Tuesday, October 13, 2020
In today's New York Times, Wajahat Ali wrote a column titled, If Amy Coney Barrett Were Muslim. Drawing parallels with Judge Barrett's Catholic background and experiences, Ali points to the scurrilous and bigoted comments made by many on the right about Muslims in public life. While I am disappointed that he compromised the strength of his argument by ending with a political attack on Judge Barrett's judicial philosophy (confirming leftist bona fides is apparently obligatory these days at the New York Times), Ali's column strikes me as a sadly fair description of hypocrisy and anti-Muslim antipathy among many Americans, including those who claim to care about protecting religious faith. Ali's column should be read by every faithful Catholic, both to be reminded of the importance of a robust understanding of religious liberty and to stand in solidarity with our Muslim brothers and sisters when they suffer bigoted attacks and ignorant attitudes.