RUTHFULLY YOURS

We had to tell the judge.

It was the middle of our terrorism trial in 1995, and the Blind Sheikh’s lawyer was trying to elicit hearsay from a witness — some innocent-sounding remark the witness had heard the “emir of jihad” make. I bolted out of my seat to object. At the sidebar, I made the Evidence 101 point that if the Blind Sheikh wanted his words placed before the jury, he would need to take the stand and testify.

By then, it was obvious that he had no intention to do that. It would have meant submitting to cross-examination and being confronted with his decades of brazen jihadist rhetoric. So his lawyers fought hard to get the occasional benign statement admitted through more appealing witnesses. Ultimately we prevailed – Judge Michael Mukasey (yeah, that Michael Mukasey) ruled the testimony inadmissible.

Except . . . I was wrong. Well, truth be told, I still think I was right, but in our system, that wasn’t my call to make. When we went back to the office that night, one of my partners, Pat Fitzgerald (yeah, that Pat Fitzgerald), found a couple of cases in which the Second Circuit had theorized that this kind of “state of mind” hearsay was admissible. Once we determined there was no principled way we could distinguish our case, the next step was clear and inarguable: We had to tell the judge. First thing the next morning, we withdrew my errant objection. We showed Judge Mukasey the cases, he quite properly reversed his ruling, and the testimony was admitted into evidence.

I hadn’t thought about that story for years, probably because it was not very unusual. Okay, I hear you snickering: Andy made an argument that turned out to be wrong — nope, nothing unusual there! Fine, guilty as charged.

What I mean, though, is that our office (the U.S. attorney’s office for the Southern District of New York), like the Justice Department as a whole, was very self-conscious about its traditions and reputation for probity.

That was not because we were all upright, altruistic types — though I like to think most of us were. It had a lot to do with self-interest. Nothing damages a government lawyer’s reputation more than having a conviction in a big case reversed because of some prosecutorial error; and no error more invites reversal than depriving an accused of the constitutional right to present his defense.

Then there’s the big picture. See, there are a lot of judgment calls in litigation, which means there is no shortage of temptation to pull a fast one, since we always want to win the case at hand. But there are lots and lots of cases. When a prosecutor develops a reputation for trustworthiness in the courthouse, that helps on all the judgment calls in all the cases. In addition, when a judge clearly respects the prosecutor, that makes an impression on the jury. People fully expect defense lawyers to fight zealously for their clients; they expect prosecutors to fight fairly. It thus matters whether the sense conveyed by the judge is that the prosecutor is playing it straight or seems slippery. Plus, it is the law that the prosecutor must reveal arguably exculpatory evidence and must speak up when a legal error has been made, especially an error by the prosecutor. Most law-enforcement-oriented people grasp that enforcing the law includes doing so when the law cuts against you — which the criminal law tends to do against the government, thanks to the presumption of innocence and due-process rules that are a model for the world.

Most law-enforcement-oriented people grasp that enforcing the law includes doing so when the law cuts against you.

Mr. Sasse, a Republican, is a U.S. senator from Nebraska. This is adapted form a speech he delivered to Colorado’s Steamboat Institute. He is a conservative, intellectual star in the GOP rsk

I am a historian, and that usually means I’m a killjoy. When people say we’re at a unique moment in history, the historian’s job is to put things in perspective by pointing out that there is more continuity than discontinuity, that we are not special, that we think our moment is unique because we are narcissists and we’re at this moment. But what we are going through now—the past 20 or 30 years, and the next 20 or 30 years—really is historically unique. It is arguably the largest economic disruption in recorded human history. And our politics are not yet up to the challenge.

There have been four kinds of economies: hunter-gatherers, agriculture (settled agrarian farmers in their villages), industry (mass urbanization and immigration), and whatever we’re entering now. Sometimes we call it the information-technology economy, the knowledge economy, the service economy, the digital economy. Sociologists call it the “postindustrial” economy, which is another way of saying “we don’t have anything to call it.”

What it really means is that jobs are no longer permanent. It used to be that you did whatever your parents and grandparents had done. Hunter-gatherers and farmers never even thought about it. There was no such thing as job choice, only becoming 7 and 10 and 12 years old and taking on more responsibilities to earn your keep.

Industrialization brought a massive disruption. At the end of the Civil War, 86% of Americans still worked on the farm. By the end of World War II, 80 years later, 60% of Americans lived in cities. One of the most disruptive times in American history was the Progressive Era. And what was Progressivism? Not much more than the response of trying to remake society in an era of mass immigration, industrialization and rising cities. But it turned out not to be as disruptive as people feared, because once you got to the city, you got a new job, which you’d probably have until death or retirement. And the social capital that used to be in the village tended to be replicated in urban ethnic neighborhoods.

What’s happening now is wholly different. The rise of suburbia and exurbia, and the hollowing out of mediating institutions, is an echo of the changing nature of work. In the 1970s, it was common for a primary breadwinner to spend his career at one company, but now workers switch jobs and industries at a more rapid pace. We are entering an era in which we’re going to have to create a society of lifelong learners. We’re going to have to create a culture in which people in their 40s and 50s, who see their industry disintermediated and their jobs evaporate, get retrained and have the will and the chutzpah and the tools and the social network to get another job. Right now that doesn’t happen enough.

Think about qualitative survey data—polls that ask, “What are the top three or four things you’re worried about?” Ten years ago, nowhere on the top 10 of that list was anything about prescription drugs. Today opioids are a major concern. People are scared about drug abuse in largely middle-aged populations. That’s a symptom of the economic disruption.

I don’t mean to be exceedingly pessimistic. There are plenty of wonderful opportunities for American families and innovators in this new economy. For one thing, there are fewer middlemen complicating transactions instead of adding value. So we’re going to get a lot more visibility and transparency into product offerings, and consumers are going to get higher-quality and lower-cost stuff.

In other industries, we don’t know how to price for things that turn out to matter quite a lot. Think of the news media. We are going from a world in which we had too much central control by a few large organizations, to one in which everybody, everywhere can deluge us with information. What is likely to happen next is not a lot more higher-quality journalism. We’re going to have higher-volume journalism, and some of it will be good. A free, thriving, and independent press is critical to self-government, so this is a big challenge.

As a group, black Americans have made the greatest gains — over some of the highest hurdles and in a very short span of time — of any racial group in mankind’s history. What’s the evidence? If one totaled up the earnings of black Americans and considered us as a separate nation with our own gross domestic product, we would rank among the 20 richest nations. It was a black American, Gen. Colin Powell, who once headed the world’s mightiest military. Black Americans are among the world’s most famous personalities, and a few are among the world’s richest people.

The significance of these and other achievements is that at the end of the Civil War, neither a slave nor a slave owner would have believed such progress would be possible in a little over a century — if ever. As such, it speaks to the intestinal fortitude of a people. Just as importantly, it speaks to the greatness of a nation in which such gains were possible. Nowhere else on the face of the earth would such progress be possible except in the United States of America. The big and thorny issue that confronts our nation is how these gains can be extended to the one-third or more of the black population for whom they have proved elusive.

A major part of the solution should be the elimination of public and private policy that rewards inferiority and irresponsibility. Chief among the policies that reward inferiority and irresponsibility is the welfare state. When some people know that they can have children out of wedlock, drop out of school and refuse employment and suffer little consequence, one should not be surprised to see the growth of such behavior. The poverty rate among blacks is about 30 percent. It’s seen as politically correct to blame today’s poverty on racial discrimination, but that’s nonsense. Why? The poverty rate among black intact husband-and-wife families has been in the single digits for more than two decades. Does one want to argue that racists discriminate against female-headed families but not husband-and-wife families?

Education is one of the ways out of poverty, but stupid political correctness stands in the way for many blacks. For example, a few years ago, a white Charleston, South Carolina, teacher frequently complained of black students calling her a white b——, white m——-f——-, white c—- and white ho. School officials told her that racially charged profanity was simply part of the students’ culture and that if she couldn’t handle it, she was in the wrong school. The teacher brought a harassment suit, and the school district settled out of court for $200,000.

In a major victory in the ongoing Lois Lerner scandal at the IRS, non-profit election integrity organization True the Vote defeated an IRS motion to quash discovery in True the Vote v. IRS. The ruling means that everyone involved in the scandal could be compelled to submit every document related to the case and be deposed by True the Vote’s legal team.

From their press release:

Judge Reggie Walton of U.S. Court of Appeals for the District of Columbia just issued a critical order in True the Vote v. IRS case. The order compels the IRS to submit to discovery and depositions, giving True the Vote a long-awaited opportunity to expose the full scope of the discriminatory practices used by the Internal Revenue Service to target and abuse organizations and individuals who expressed political views in opposition to the Obama Administration.

In an exclusive interview, the lawyer representing True the Vote, Jim Bopp, Jr., cheered the ruling:

What we have now is an opportunity to find out who did what. The IRS has doggedly fought anyone finding out what happened and how it happened that they launched this comprehensive campaign to attack and undermine and adversely treat Tea Party and other conservative groups. We finally get an opportunity to find out. CONTINUE AT SITE

Not just anyone can become a citizen of the United States. You first have to come into the country legally. Or illegally, and get amnesty. Then you have to apply for citizenship. And there is a brutal civics test! It is so difficult, that the government decided to give out the answers in advance.

The civics portion of the citizenship test consists of up to ten questions chosen from 100 questions, the answers to which are listed on the federal government’s website. Applicants must get at least six right. That means people who want to become citizens have to pre-learn the answers to at least 95 short questions! But there are some real tough questions, like,

“What is the name of the President?”,

“If the President can no longer serve, who becomes President?”

“What do we show loyalty to when we say the Pledge of Allegiance?”

“Name one state that borders Mexico”,

“Where is the Statue of Liberty?”, and

“When is Independence Day?”

There, that’s six questions! If you know all the answers, you know enough to become an American!

It is no surprise, then, that over 90% of applicants pass the test. But it should be equally of little surprise that most applicants, having the questions and answers in advance, simply memorize the answers, learning little or nothing about American history.

Even worse, if you can claim that you have a “mental disability” you don’t even have to take the test.

Why not instead have applicants actually study American history and answer a few essay questions? From what I see in the media, immigrants (legal and otherwise), are often bright valedictorians who are at or near the top of their class.

It’s good to be a Senator, especially if you are a Republican who is the most important opponent of tort reform on Capitol Hill. Witness the largesse that the plaintiffs bar is bestowing on South Carolina’s Lindsey Graham in its moment of maximum political peril.

On Thursday Mr. Graham was feted in Houston at a fundraiser hosted by Mark Lanier, who can afford it. The Lanier Law Firm has vacuumed up some $13 billion in tort verdicts over the years from Vioxx to asbestos. The invitation asks Mr. Lanier’s tort comrades to share their wealth to the tune of $500 to $5,400 for “Team Graham.”

“Our goal is to show Senator Graham an appreciation from both sides of the bar for what he can help do, especially with tort reform running rampant from the house,” Mr. Lanier added in an email. “It will take Senator Graham to help educate folks and lead the charge from the Republican side.”

Mr. Graham has every right to take campaign cash from all comers, and in this case he is a true believer. He’s long fought tort reform, and his legal friends have rewarded him with some $3.7 million over his 24-year Senate career.

Now his services are truly needed, like Bonasera the undertaker in “The Godfather.” Mr. Lanier wants Mr. Graham to use all of his powers, all of his skills, to bury at least two bills that have passed the House that address major tort-bar abuses.

The Fairness in Class Action Litigation Act would crack down on trial-attorney fees that are many times larger than the payout to the class of litigants they represent. The Furthering Asbestos Claims Transparency Act would require the nation’s 60-some asbestos trusts to provide courts the records of trust payouts. This would reduce the plaintiffs bar practice of “double dipping”—secretly raiding the trusts while also pursuing claims via lawsuits. In court they claim the company they’re suing caused asbestos disease, but to the trusts they blame the defunct company financing the trust.

Senator Graham is on the Judiciary Committee where Republicans hold a mere 11-9 majority. His defection on any tort bill would result in a tie that could kill it. Chairman Chuck Grassley will be loathe to move bills that he knows will fail, so Mr. Graham can whisper to Mr. Grassley that he is undecided and perhaps never have to take a vote.

Mr. Graham’s office didn’t respond to our request for comment about the Lanier event, but Mr. Grassley should take his reform bills to the Senate floor despite a tie vote in committee. Even if the bills are defeated, Senators would have to go on record. In any case the trial bar will get its money’s worth from Thursday.