Friday, March 16, 2018

Ronald Rotunda (1945-2018) R.I.P.: A Life Well Lived for a Scholar's Scholar

Ron Rotunda surprisingly passed away Wednesday. Ron was an ardent conservative and brilliant scholar. The prodigious, brilliant scholar was a scholar’s scholar. He wrote two leading casebooks in Constitutional and Professional Responsibility. Few professors publish even one casebook. He co-authored a six volume treatise on Constitutional Law and the leading deskbook for lawyers on professional responsibility (legal ethics). The Professor authored over 500 books, articles, papers, and op-eds. He was writing until he entered the hospital two weeks ago with complications from a simple hernia operation. He has been cited over 2,000 times, one of the most cited law professors. Ron attended Harvard College on a scholarship and then Harvard Law School. He graduated magna cum laude from both. He clerked for Judge Walter R. Mansfield of the United States Second Circuit Court of Appeals. He served as an assistant majority counsel to the Watergate Committee and later from 1997-1999 as Special Counsel to the Office of Independent Counsel (Kenneth Starr). One of the memos he wrote two decades ago is cited today with respect to Special Counsel Robert Mueller’s investigation of the possible collusion between the Russia and the Trump Presidential campaign. He concluded that a special prosecutor could not indict a sitting President, but a grand jury could. His tenet is that no one is above the law. The Constitution provides immunity to legislators “for any speech or debate” in Congress,” but is silent on immunity for the President. He entered the professoriate in 1974 at the University of Illinois Law School, where he became the Alfred E. Jenner, Jr. Professor of Law Chair. He moved after 25 years to George Mason Law School as the University Foundation Professor of Law. He then came west to the Dale E. Fowler School of Law of Chapman University in 2008 as the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence. He never slowed down, continuously grinding out pages of op-eds, papers, and updates. His latest book, “John Marshall and the Cases that United the States of America: Beveridge’s Abridged Life of John Marshall,” was published just before his death. He was scheduled to discuss the book at Chapman last Tuesday. His influence extended far from the United States. He has consulted with Cambodia, the Czech Republic, Moldova, Romania, and Ukraine. Not everyone understood or appreciated Professor Rotunda. He could be prickly on occasion. He was an irreconcilable, irascible curmudgeon. That was part of his charm. Silence was not an option for him. He would speak truth to power for he had power in his convictions. He could be a pain in the gluteus maximus of administrators. Ron Rotunda’s persona was one of transparency. You always knew where he was coming from. His heart was in the right place. He asked questions for which others perhaps did not want to hear the answers. He could quickly cut through the clutter and BS to the core of the issue, and point out inconsistencies and weaknesses of opponents. You would not want to debate him without a full understanding of the facts, law, and policies. Ron Rotunda was a conservative’s conservative on economic and security issues. The ardent conservative was associated with the Cato Institute and Heritage Foundation. He was a social libertarian and a strong advocate for personal freedom. Professor Rotunda constitutional base was as a Scalia constitutionist. He supported President Trump’s policies, but not the President’s style. Yet, no matter how heavy his work load, he always was willing to graciously spend 15 minutes, a half hour or more several times a week discussing current political and social issues, political history, and history in general with a slightly younger colleague, often interrupted only by an important phone call. The erudite professor had an memory unbelievable memory and encyclopedic knowledge. We enjoyed these times over the past couple of years. Professor Rotunda will be missed, but his legal scholarship will last for eons. Professor Ronald Rotunda was more than an esteemed colleague; he was a close personal friend to me. His was a life well-lived, that ended too soon.

Tuesday, March 13, 2018

Democrat Conor Lamb Declared Victory Tonight In Pennsylvania 18: Of Course He Did

Conor Lamb Delivers Acceptance Speech; Of course he won! Democrat Conor Lamb proves once again that a young, energetic, empathetic, telegenic candidate can defeat a dour, tired, lethargic, unenthusiastic old man. JFK proved that against Nixon. The Republicans saw it coming. They recognized that Rick Saccone was a poor candidate. President Trump and millions in Republican dollars almost pulled it out for Saccone, but the chasm was too great. President Trump said Rick Saccone would be his “wingman” in Washington, but Rick Saccone was more of an albatross wrapped around the Republican neck in Pennsylvania 18, just as Judge Ray Moore in Alabama was a political trainwreck. The Republicans ran negative ads against Lamb because they had little positive to offer for Saccone. A young, telegenic positive message can overcome an old, tired negative message. Tip O’Neill said all politics is local. The implications can be national though. The Democrats have now won both a Senate seat and House seat away from the Republicans. They now have a burst of energy, salivating about a blue wave in November. Conor ran as a traditional Blue Dog Democrat, a politically endangered species in today’s America. He ran away from gun control. He ran away from Nancy Pelosi, far away. He ran away from celebrities. He ran away from his anti-Semitic student days. He ran as an ex-Marine. He was not running with the baggage of the 2016 Clinton campaign. He promised to work with anyone. He attacked the Trump tax cuts as a gift to rich corporations He has yet to be infected with Potomac Fever. He leads by 571 votes with 3,200 absentee votes left to be counted. The absentees probably will not change the outcome. All politics are local. Conor Lamb won with the union vote, 1/5 of the voters in the District. The coal miners and steel workers voted for Donald Trump 14 months ago, but Rick Saccone is rigidly anti-union. He supports Right to Work, anathema to labor. Two questions remain: How did Rick Saccone ever get the Republican nomination? Why didn't Conor Lamb win by more votes?

Wednesday, February 28, 2018

"Stand Down," Be it at Baltimore, Berkeley or Parkland is Not the Response in an Emergency

Police officers responding to the shootings at Marjory Stoneman Douglas High School in Parkland reported that they saw three Broward County Deputy Sheriffs standing outside the school during the shootings. That couldn’t be accurate! Law enforcement is trained after Columbine to rush in to minimize the carnage. Yet, it was true. The deputies were told not to enter unless their body cameras were turned on. These officers lacked body cameras. Or were they told to stand down? The high school’s campus security officer did not enter the school during the shootings. Only three reasons could explain his behavior: He was poorly trained; He was told to stand down; or He exercised damnably poor judgment. We also learn that the EMT’s on the scene were ordered to stand down pending the arrival of a SWAT Team. EMT’s are trained to go in right after the police. They weren’t allowed to do so. Lives are lost by delay! Broward County Sheriff Scott Israel’s days in office are numbered. The Sheriff Office needs a major revamping. Students and outside agitators at the University of California Berkeley, the cradle of the Free Speech Movement, on February 1, 2017.protested the appearance of Milos Yiannopoulos, a conservative speaker. They rioted, started fires, threw rocks at the campus police, who were ordered to stand down. Over $100,000 in property damages ensued with campus agitators becoming emboldened. Two months later on April 21, 2017 at Middlebury College in Vermont the same reaction occurred when Dr. Charles Murray, co-author of The Bell Curve, spoke. His host, Professor Alison Stanger, had her hair pulled and neck twisted by a protestor The University months afterwards imposed meaningless sanctions against the perpetrators. Americans were mesmerized by the Baltimore Riots on April 29, 2015. Viewers watched a CVS burning to the ground. The police stood in ranks as the rioters roamed. The Baltimore police were ordered to stand down, either by the Mayor or Police Commissioner. Neither admits to giving the order, relayed to the officers by police brass, but the result was that Baltimore burned while the Mayor fiddled. Millions in damages resulted while the police looked weak. Baltimore has become one of the homicide centers of America.

Tuesday, February 27, 2018

The Not So Easy Solutions to School Shootings

Once again a crazed madman shot up a school. The teenager, whose name shall not be mentioned, killed 14 students and three adults at the Marjorie Stoneman Douglas High School in Parkland, Florida. Once again the cries emotionally scream out “We have to do something.” They plead “Never Again.” The students justifiably exclaim “They want to be safe at school.” Let us though remember H.L. Mencken’s sage admonition: “For every complex problem there is an answer that is clear, simple, and wrong.” Here are the cries: 1 Ban Assault Weapons 2 Ban Semi-Assault Weapons 3 Ban Saturday Night Specials (in the past) 4 Ban Guns 5 Ban Bump Stocks 6 Repeal the Second Amendment 7 Boycott the NRA 8 Require Background Checks for all Gun Purchases 9 Improve the background checks 10 Raise the age to 21 for gun purchasers 11 Keep guns out of the hands of the mentally ill If only if it were that simple! There’s almost one gun per person in the United States: an estimated 357 million guns for 327 million people. These guns are not going to disappear in the United States. None of these would have mattered in Parkland once it became clear the Broward County Sheriff’s Office, social service, mental health experts, and the FBI’s action failed to meaningfully act in light of dozens of specific warnings. The animus towards the NRA diverts attention from the real causes of the Parkland tragedy. Demonizing the NRA is a slogan, not a solution. The NRA did not fire the guns; nor did a NRA member. The NRA did not adopt a soft arrest and policing policy, but both Broward County and the school board did. The NRA did not ignore the warnings. The Broward County Sheriff originally said they had 23 calls about the assailant. The number is now up to 45. The NRA did not ignore the explicit phone call warning: “I know he’s going to explode.” He might slip “into a school and just shoot the place up,” The FBI took no action. The FBI also failed with San Bernardino, Pulse Nightclub, Fort Hood, the Boston Marathon bombers, and even 9/11. America must adapt to the new threat to our nation’s schools. The existing paradigm of open, safe schools needs to be reassessed. One clear safety step to protect students is to harden the target. K-12 schools often have one or two entrances, unlike the spread out college campuses with scores of facilities. Entrances can be guarded, although that is not a complete solution. The Red Lake Senior High School shootings on the Red Lake Indian Reservation are illustrative of the complexity of the security problems. The shooter killed his grandfather and his grandfather’s girlfriend one night. The slain grandfather was a tribal police officer. The shooter showed up at the school the next morning with his grandfather’s guns and shot to death an unarmed security officer at the metal detector. He then killed five students and a teacher and wounded seven victims before committing suicide. Red Lake School is not the only case of family guns being used in these shootings. The killer at Sandy Hook Elementary School killed his mother and then used her guns to kill 20 first graders and six adults before committing suicides. Other protective measures include bullet proofing the windows. Means should exist to lock classrooms against intruders. Teachers should have access to a panic button in their classrooms. Active shooter drills should be practiced, just like fire drills. Active Shooter Drills saved lives at Sandy Hook and Parkland. “Gun free zones” are a green light to potential shooters. Concealed-carry is not the complete solution, but it a partial solution with trained teachers and staff. Even if it cannot prevent an incident, it may reduce the carnage. Three or four or five undercover defenders are better odds than a campus security officer who might be nowhere near the attacker. Washington State Governor Jay Inslee said yesterday at a governors meeting on school security with President Trump: “I have listened to the first-grade teachers who don’t want to become pistol-packing first-grade teachers.” Governor Inslee seems to have forgotten that second graders were the primary victims at Dandy School Elementary School. Law enforcement and school authorities should engage in intensive social media searches. The potential assailants often post their thoughts in advance. One clear step is to not publish the shooter’s name or picture. Don’t give the warped demented souls the 15 minutes of notoriety (fame) they crave. The media wants to publish the name, picture and background of the shooter to help explain why this nutjob did it. Yet, with all the publicity on the Vegas shooter, we still don’t know why he shot up a concert. “Madmen” should not have guns, but psychotherapists lack the means to accurately determine who will become dangerous. It can’t simply be based on those receiving pyschotropics; that would include millions of Americans on these medications. Only rarely as with the shooters at Virginia Tech, Simon’s Rock College of the Bard, and Parkland do people immediately was the assailant before his identity is discovered or discovered. (One commonality in these incidents is that the assailant is usually a white male). We also cannot predict who will go off their meds, as did the shooter at Northern Illinois. Yet the Parkland shooter displayed many warning signs, including a cry for help, slitting his wrists, shooting animals, making threats, and having an ISIS flag, which apparently A major concern a few decades ago was teenage suicide. Now it seems that some of these suicides want to kill others before themselves. Protocols need to be developed and refined both to identify the threats and to respond. Law enforcement changed its response protocol after Columbine to immediately confront the shooter. Broward County held back. Its response should be an object lesson on how not to plan or respond for an active shooter. At least one, if not three other deputies, held back outside the school while the shootings continued. The police had no hesitancy went they arrived. The general rule after Columbine is that the first officers on the scene should engage immediately. That was not followed at Parkland. Why? One suggestion, anathema to the younger generation, is to ban violent video games, or age restrict them. Life is cheap in many of the games while extra lives are readily available. These games cheapen human life. Of course, these games will not be banned. Hollywood is very sanctimonious as it grinds out films extolling violence Guns are usually the weapon of choice for the attackers. Cars, as in Santa Barbara, and knives also show up as the instrumentalities of death. The Columbine and San Bernardino shooters were unsuccessful in detonating bombs In addition, many of the gun incidents do not involve automatic or semi-automatic guns, but involve hand guns. As to unpredictability, a milk truck driver on October 2, 2006 dropped his children off at the school bus, and then drove to the West Nickel Mines School, an Amish school. He killed five schoolgirls and wounded five before committing suicide. Universal background checks sounds good, but trying to apply that to parents passing on firearms to their children is unrealistic. Children in rural America often grow up as familiar with guns as tractors. Banning bump stocks seems easy, but the effect will be minimal. They haven’t been used in most shootings, and apparently anyone competent with a 3D printer can produce one. Students often are the key to stopping these shootings. Several students have warned the authorities of fellow students who have made threats. It’s tough being a “fink,” but it saves lives. However, those calls must be taken seriously and investigated. Students will have no incentive to warn if the authorities, such as the FBI and local law enforcement, flub the investigation. Bans on assault and semi-assault weapons have been unsuccessful. Congress enacted in 1994 a ten-year ban on the manufacture and sales of semi-automatic assault weapons. Studies have shown the ban was ineffective. “Never Again” is a great slogan. The students mean it. It won’t work!

Wednesday, February 21, 2018

170 Political Scientists Rank Professor Obama the Nation's 8th Best President and President Trump the Worst! What duh????

Professors Brandon Rottinghaus of Houston and Justin S. Vaughn of Boise State released the results of their survey of members of the American Political Science Association’s Section of Presidents and Executive Politics. President Obama jumped to eighth place from 18th four years ago. President Trump came in dead last, beating out President James Buchanan. We understand that the political science professoriate will reflectively rank sitting Republican Presidents as the worst of the worst, but let’s see how President Obama earned the distinction of America’s 8th best President. Could it be he weaponized the IRS, FBI, and Justice Department in a war against conservatives? President Nixon wanted to do that, but failed. Is it because President Obama politicized the CIA and NSA? Is it because the Obama Administrative unmasked 200 political opponents? Is it because President Obama created a DACA rule when he said he lacked constitutional power to do so? Is it because President Obama first went AWOL during Benghazi and then lied about Benghazi? Is it because of Fast and Furious? Is it because he did nothing about Russian interference in the 2014 midterm elections and the 2016 Presidential Election? Is it because of his exemplary kowtowing to dictators in Iran and Russia? Is it because he returned the Churchill Bust to England and then denied it? Is it because he bypassed the Senate’s treaty ratification powers with the Paris Accords? Is it because he shipped $1.7 trillion in cash to Iran’s mullahs? Is it because he traded $400 million and five terrorists for the return of Bowe Bergdahl, a deserter? Is it because he let Russia buy 20% of the nation’s uranium supply? Is it because of his red line in Syria? Is it because he supplied the Ukrainian armed forces with MRE’s? Is he because he sent operatives and money to Israel in an attempt to defeat Prime Minister Netanyahu? Is it because of worsening race relations in the United States? Is it because of the poor medical care provided our veterans by the VA? Is it his consistent failure to call a Radical Islamic Terrorist a Radical Islamic Terrorist? Is it President Obama’s inability to use the word “ISIS”? Is it a consistently underperforming economy, never reaching a 3% growth rate? Is it the shrinking self-described 63% of the public as middle class at the beginning of his administration to 51% at the end of his administration? Is it in failing to provide benefits to the victims at Fort Hood? Is it letting foreign count6ries hack into the NSA, OPM, Postal Service, FBI, State Department, NOAA, and the Pentagon? Is it because he gave control of Congress and most statehouses to the Republicans? Is it by wiretapping Fox News Reporter and labeling him a c0-conspirator in a warrant signed by Attorney General Eric Holder? Is it the thousands of hours he spent golfing and vacationing? Is it because the “Hope and Change” of 2008 became the “Hope for Change” of 2016?

Sunday, February 18, 2018

Andrew Jackson and Donald Trump

The animus towards President Trump mirrors that directed at President Andrew Jackson almost two centuries ago. Our 7th President was viewed as a boob and hayseed. Presidents Washington, Adams and John Quincy Adams were from Massachusetts while Presidents Jefferson, Madison and Monroe hailed from Virginia. All six were “educated” by the standards of the time. President Jackson to them was the uneducated barbarian from Tennessee, the frontier of America. Yet, he was a lawyer and had served in Congress. His claim to the White House was based on defeating the British at the Battle of New Orleans. He did something Napoleon could never do – defeat Wellington’s regulars. The Duke of Wellington did not lead the British army at New Orleans, but they were his soldiers. General Jackson secured the future of the American Republic at New Orleans. None of the combatants knew at the time that the United Kingdom and the United States had earlier reached a peace treaty in the Treaty of Ghent. The British probably would have ignored it had they captured New Orleans, closing off much of the West to the United States. Andrew Jackson campaigned by attacking the Bank of the United States, beloved by the eastern establishment of the time. President Jackson opened the doors of the White House and let the people, his people, in after his inauguration. In short he opened the White House to the “deplorables” of those days. He opened America’s democracy to white males, a substantial increase from the 5% property owning white males at the creation of the country. Universal suffrage was still to come, but he started the progression. The Jackson Democrats became the worker backbone of the Democratic Party. Andrew Jackson found a way to connect with the people by enlisting reporters and editors to convey his message. He also demonized his opponents. He won the most votes in 1924, but no one won a majority of the electoral votes. Congress then elected John Quincy Adams as President. Andrew Jackson ranted about the “rigged” system. President Jackson was also attacked as an immoral adulterer. He was deeply in love with Rachel Robards, but it is unclear if she was divorced when she married the future President The fiery Jackson was also the only President to have killed a man in a duel (prior to the Presidency). Of course, there’s major differences, but doesn’t the story of Andrew Jackson presage that of Donald Trump? Immorality, adultery, fiery temper, rigged elections, deplorable voters, outsider crashing the party, trashing the establishment, demonizing opponents, messaging his supporters, and attacking the economic orthodoxy of the times. President Trump is as reviled by today’s Washington establishment as was President Jackson.

Friday, February 16, 2018

Lessons 48 Hours After the Parkland School Shooting

These horrific shooting tragedies bring out instant commentary in the fog of war. It’s time for gun control! It’s time to ban assault weapons and semi-assault weapons.! Ban the bump stocks! Students need to turn in their dangerous classmates We need psychological screenings Let’s ban gun sales to those with mental illness. Don’t let teenagers have guns. Our campuses need armed security guards. Blame it on the NRA Blame it on President Trump Here’s what we know. Two decades of school shootings have not brought solutions to ending the parade of tragedies. The Marjory Stoneham Douglas High School tragedy is one of the few shooting incidents when people immediately know who the shooter is before his identity is discovered. Nickolas Cruz at Parkland, like Cho Seung-Hoi at Virginia Tech, was a known risk. Yet they fell through the law enforcement cracks. 20 Sheriff calls to Cruz’s house over the past two years! The FBI twice failed to follow up or sufficiently investigate specific warnings about him. What good does it do to warn when the authorities don’t follow up? The FBI has a lot of explaining to do. The FBI Hotline averages 2,100 calls/day, but they have a protocol to respond to warnings like the January call about Cruz. It didn’t happen! Just a few weeks ago the Democrats were castigating the Republicans attacking the FBI leadership as an attack on the FBI. They are not springing today to the FBI’s defense. The best rules, protocols or procedures are ineffective in the face of human error, negligence, or incompetence. Psychology still cannot differentiate in advance most of those who pose a threat from those who don’t. “Red Flag” laws though can remove weapons from those who have acted dangerously in the past. Psychology will not tell us in advance which mentally ill patients have gone off their meds prior to shooting up schools or committing suicide. The high school had armed security, but security officers can’t be everywhere at once, especially at a high school with 3,000 students. “Gun-Free” schools are not a bar to shooters. Perhaps a number of teachers and staffers should be allowed to carry concealed weapons with the intent to use them against an armed intruder. The best defense against force is force in the active shooter scenario. Parkland and Sandy Hook show that active shooter drills and exercises save lives. Metal detectors and security would not have stopped Cruz as he mingled with the students who were leaving school. Why not take a look at violent video games which give “extra lives,” thereby cheapening the prices of human life and violence? How’s this for a radical thought for the media? DON’T PUBLISH THE ASSAILANT’S NAME. Strip them of the notoriety they so desperately crave