Tuesday, June 26, 2012


This morning a statue of Judge Thomas M. Cooley was unveiled and dedicated on the Lansing campus of the Thomas Cooley Law School. I was asked to say a few words, and this is what I said:

Forty years ago, the Michigan department of corporations told me that I couldn’t use the name “State College of Law.”

My old law professor, Stanley Beattie, suggested the name Thomas M. Cooley. It made sense for a lot of reasons. Cooley was a lawyer, a Judge, a scholar, an author, a teacher, a philosopher.

What's more important, he was a patriot who understood the genius of the federal republic known as the United States of America.

His is a legacy of thought. A legacy of principle. A legacy of truth.

Thomas Cooley taught us the simple, undeniable fact that the words of a written constitution mean what they say and say what they mean.

Cooley taught us that constitutional law does not evolve like the common law. He said that any judge who allows public opinion to influence his interpretation of the constitution is guilty of reckless disregard of official oath and public duty.

Cooley’s voice clearly condemns the notion, taught at so many law schools today, that the Supreme Court of the United States is somehow empowered to decide when the culture supercedes the constitution.

If the statue we dedicate here today could speak, it would certainly tell us that the people who ratified the fourteenth amendment in the middle of the nineteenth century never intended to legalize sodomy or abortion.

That’s not what they meant. That’s not what they said.

Cooley taught that ours is a government of laws and not of men; that authority is something different from raw power; that words have meaning and that meaning matters.

This law school was founded to teach practical scholarship in the law, to prepare men and women to serve as ministers of justice in their communities. We never aspired to imitate the Harvard Law School where International Law is a required course, but constitutional law is an elective.

We let other law schools prepare their graduates to be social engineers. We wanted our people to be lawyers. Real lawyers. Practical, ethical counselors and advocates. Men and women who would grace our profession and bring to other occupations and enterprises a thorough understanding of the American legal system.

That we dedicate this statue amidst the cacophony of a national election year is especially significant.

The strong face of this strong American should remind us that liberty and law are inseparable and that the campuses of this law school enshrine the fondest hopes of every new generation of students.

True leadership is not found in sound bites and political commercials. It is not confined to hash marks and tweets.

True leadership is the ability to inspire people. To teach, To encourage. To capture our imaginations and prompt us to look up, to reach up, to be better than we are.

Not all leaders are on television.

Some of them are dead. Like Thomas M. Cooley.

But they still can lead. Just as Judge Cooley does, and will continue to do here at the law school which bears his name.

Cooley spoke in long sentences and elegant phrases. Unfortunately, too many of us haven’t the patience to read and appreciate his words.

He gave a speech at the dedication of the lecture hall at the University of Michigan Law School on Thursday, October 1, 1863. It was in the midst of the Civil War.

He said something that day which ought to be pounded into the talking heads that cackle on Fox News and MSNBC.

“In the life of nations,” said the Judge, “conservatism and progress must be found to go hand in hand… for better or worse, the world is ever changing…if we would truly conserve what is good in the present, we must do so by relieving it of what is bad.”

Laws can become outdated. Changes have to be made, Cooley insisted. But he warned us that if skilled hands refuse to do the work, we can expect people who do not understand or appreciate our heritage of law and freedom to saddle our nation with wrong headed ideas and unworkable schemes.

In the words of Thomas Cooley, they will “cut and hew in their ignorance until the beautiful fabric which has required ages to build and perfect may be utterly defaced by vandal hands.”

Which prompts me to conclude with a public service announcement.

For several years, I have been organizing a convention on the Internet to propose amendments to the federal constitution. It is open to any registered voter in the United States. It’s free.

You don’t have to be a constitutional law expert. What we want is a critical mass of common sense to vet every proposal.

We now have over 300 delegates from 46 states. We need more. Lots more, if our work is to be taken seriously.

And there is much work to be done. If the uproar over the Health Care case doesn’t prove again how badly we need a non partisan system of judicial selection in the Supreme Court, I don’t know what it will take to arouse the American people.

If an approval rate of less than ten percent doesn’t prove that reform of the United States Congress should be high on our national agenda, I have to wonder how our citizens can ever expect to be fairly represented in the nation’s capital.

And if three generations of an imperial presidency and seven or eight undeclared wars all around the world are not enough to make us wonder whether our nation is really an exception to the bloody narrative of human history, I have to ask what will?

Convention USA needs lawyers, law students and law faculty. We need intelligent, spirited dialog and debate. Look us up at conventionusa.org.

Thomas McIntyre Cooley stands here with his hand extended. He’s reaching out to all of us. He wants to give us a hand. I say let’s take it.

Saturday, June 23, 2012


Back in the 1990’s, a professor at Michigan State University named Harold Spaeth got a grant from the National Science Foundation to conduct a study of the United States Supreme Court.

Specifically, he was to construct a data base with all known – and presumably relevant – information about the justices.

What emerged was a mountain of information, most of which is insignificant, about the justices, the cases, the process of decision making, and the minutia of appellate procedure.

What did come out of Professor Spaeth’s studies, and what gave him stature as a predictor of Supreme Court decisions, was the rather simple and unremarkable fact that Justices of the court tend to vote in accordance with the interests and agenda of the President who put them on the court.


There’s loyalty in politics? Appointees appreciate being appointed? Justices selected for their philosophy tend to vote what they believe?

Surprise, surprise.

Having served time on the bench, I seem to be expected to know how the Supreme Court will rule on the Obamacare statute. In all honesty, I haven’t the foggiest idea.

I have never read the briefs, nor heard the oral arguments. The legal theories of the parties are complex and riddled with conflicting precedents. What the Justices will say to each other in their draft opinions and inter office memoranda is anybody’s guess.

Of course, the Harold Spaeth formula for predicting court outcomes is easy. Five of the nine Justices were appointed by Republican Presidents, four by Democrat Presidents.

Ipso facto the decision will be 5 to 4 against Obamacare.

No doubt that’s what Spaeth’s data base would tell us. But there is another factor at work, one which is much harder to compute.

Whatever the political disposition of the Justices, they have one overriding motivation which cannot easily be assessed or predicted. They all love the Supreme Court of the United States. For each of them, service on the Court is the defining achievement of their lives.

Whatever denigrates the Court, diminishes them. Whatever stains the reputation of the Court, impairs their personal legacies.

None of them want the United States Supreme Court to be vilified from the left or the right as an assembly of political hacks. They are five Harvard graduates, three Yale graduates and one hybrid who attended Harvard then transferred to Columbia.

They are highly educated, very smart men and women. They like to think that their decisions are founded in logic, history, science, and experience. Each of them would feel insulted if a newspaper editorial dismissed their opinion as a mere knee jerk aye or nay dictated from Party headquarters.

So they will be looking for a tertium quid, a third thing, a compromise, if you will, by which they can achieve a result they can live with, but not a ruling that will be seen as a political gesture.

Pretty tough assignment. Especially when fevers are running so high on both sides of the aisle.

What bothers me is this: somebody has the make the call. Either the health care law complies with the Constitution or it doesn’t. Congress isn’t the last word. The President isn’t the last word. It’s a call that must be made by the Supreme Court.

When the heat is turned up to the max, as it is with Obamacare, the very institution of the Supreme Court begins to creak at the seams. Just as it did with Bush v Gore. Just as it did with Roe v Wade. Just as it did with Citizens United.

The problem is that we do not have a non partisan supreme court. The problem is that we do not have a method of judicial selection at the highest level which gives the institution of the Court some insulation against the conclusion that it is merely an arm of one or the other of the political parties.

My solution? http://oldjudge.blogspot.com/2010/09/non-partisan-court.html

Saturday, June 9, 2012


Two and a half years ago, Nidal Hasan murdered thirteen people in cold blood at Fort Hood Texas. He shot 29 others, who fortunately didn’t die. Hasan himself was shot and captured on the spot.

Yesterday, Hasan showed up in court for a scheduled pre-trial hearing. What was on the docket? A bunch of pre-trial motions designed to delay Hasan's day of judgment.

What happened? MSNBC tells us in 379 words:

The judge in the trial of Fort Hood shooter Nidal Hasan delayed pre-trial motions Friday when he ruled the defendant to be in violation of the Army's grooming standards.

Hasan showed up for the half-day administrative hearing sporting a beard, which the military prosecutors said was a violation of Army regulation 670-1 and court-martial rule 804(4)(1). Judge Col. Gregory Gross then went on record saying that Hasan's beard was a disruption to the proceedings.

"It is a disruption. The judge felt it was," Fort Hood media officer Chris Haug told msnbc.com. "He's in violation of the Army's dress and grooming standrds,” Army regulation 670-1 dictates the appearance of Army uniforms, while court-martial rule 804(4)(1) states the accused shall be attired in dress or uniform as prescribed by a military judge.

"He's an active-duty soldier and should be in full uniform and clean shaven. That's what all active-duty soldiers are supposed to do," Haug said. It was the first time Hasan has shown up in court with a beard. According to Army rules, all males must be clean shaven when in uniform or civilian clothes while on duty.

The defense indicated it would file a request for exception to the policy for religious accommodation for Hasan, an American-born Muslim, to the Department of the Army. There was no indication how long it would take for a decision to be made on such a request.

The pre-trial motions will resume when Hasan adheres to the Army regulation or when a closed-circuit feed can be set up for him to observe the trial from a different location, the military said. A location has not been determined should the closed-circuit option be needed. The motions scheduled for Friday included a request for further continuance, resolution of discovery matters and whether the accused should receive the services of an expert neurologist at government expense. It was unclear when the motions would be addressed.

Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder. If convicted, he could face life without parole or the death penalty. Eight soldiers and five civilians were killed in the Nov. 5, 2009, attack on the Army base in Texas. Hasan was wounded and paralyzed from the chest down before being captured.

Now the defense has another reason for delay. They will make a motion to let Hasan wear a beard to court. That should take a couple of months to be heard and decided. If they lose that motion, the prosecution will make him watch the trial on closed circuit television, which, of course, will create another objection and appeal by the defense.

Where’s the media? Where’s the outrage? Relatives of the thirteen victims wait in excruciating silence for justice to done. For someone to care. For someone to investigate. At least to ask a few obvious questions.

I Googled New York Times and Nidal Hasan. What came up was a story on July 21, 2011 about the Senate investigation of the Fort Hood massacre. It said the army knew Hasan was an Islamic extremist, but did nothing to prevent his rampage.

Oh, yes. And another story in February of this year. A sympathetic human interest story about how Hasan’s cousin’s law practice was hurt by the bad publicity.

Maybe the Fort Hood victims should contact Trayvon Martin’s press agent.