Mensch tracht, un Gott lacht

Sunday, August 26, 2018

My Post on CONLAWPROF: On Elected Judges and Elected Prosecutors

It strikes me that the complaint against judicial elections (as voiced on this listserv) is rooted in the absence of life tenure -- not elections per se. You could have elections filling judicial vacancies -- but with the candidates' receiving life tenure. And you could have appointments by political authorities to fixed and limited judicial terms -- with the possibility of reappointment. The threat to the rule of law (such as it is), lies with the prospective candidate for reelection/reappointment to judicial office biasing his/her decision for self-interested reasons. But that conflict of interest will appear whenever you have terms of limited duration with the possibility of reelection/reappointment. It is not elections per se that create the conflict.

Another solution to the conflict is to use either elections or appointment for fixed and limited terms -- but to preclude second or subsequent terms in judicial office (or, at least, to the same judicial post). 

I wonder if any might agree with the following proposed reform -- which is somewhat tangential to the discussion above.... U.S. attorneys (i.e., federal prosecutors) posts might only be filled with people at the end of their careers in private practice or in government. That is, former U.S. attorneys should be precluded from thereafter taking on both any federal judicial position (if not any appointed federal position) and any elected federal position. [I expect that any such reform would require a constitutional amendment.] I'd like to see prosecutorial discretion vested in those who are not thinking about the horizon of the next election or the next judicial appointment. If such a reform were passed, I expect the U.S. attorneys posts would fall to retiring federal (and state) judges, senators, governors, and, perhaps, very senior DOJ officials and other law officers in the civil service, professors, and members of the bar--all people who would be willing to give up a future career in regard to elective positions. If the feeling on this listserv is that (elected) judges are biased by elections--doesn't it make good sense to remove prosecutors from the orbit of such elections? 

Seth Barrett Tillman, My Post on CONLAWPROF: On Elected Judges and Elected Prosecutors, New Reform Club (Aug. 26, 2018, 9:21 AM), 

Tuesday, August 07, 2018

My Bertie Wooster Moment

After using the beach prior to sunrise, and after seeing the below-sea-level aquarium, I decided to leave Eilat. My time there was not exactly propitious. On arrival, I called one of the city’s two chief rabbis and asked what restaurants were kosher. I was told: “none.” So I left. I headed north—there was only one road in that direction. I was on my way to Safed. It was Friday, 9 AM. I had a full tank of gas—and I was in a black suit wearing sunglasses. Really. I was on my way to an arranged date to take place before sundown. But I never got there; I never made it to that date.

I was driving a new Subaru. A rental car. The sun was out, and it was hot—hot as only a desert could be hot. I was going about 90 mph, maybe 100, and I had a blow out. My car exited the safety of the raised road. In effect, I flew off a small cliff. It all happened so fast. It was over in what felt like an instant. And then the car landed, luckily, right side up. Thinking that my gas tank might be punctured, I exited the car hastily—not that there was much left of it. All the tires flattened. All the windows fractured in 1000s of pieces. A total wreck. I was fine—just the smallest cut on my left hand. A scar I still have. I was fine, not one broken bone or damaged organ. There was nothing left of the car. I fished out my kit from the wreck—all intact.

If I ever go by that spot, I have to say Hallel there.

The only other vehicle on the road nearby was an Egged tour bus. It was full of German tourists. Really. I am not making this up. I was befriended by a German nurse who took my pulse. The tourists all thought it was a miracle that I survived. The driver said: “If you could do that again, go to Hollywood as a stuntman.”

The driver offered me a ride to Masada. From there I would call the rental car agency, and get a new car, or, at least, a way back to a settled abode before sundown. I called the rental company. I told them I was at Masada, and that I’d need a replacement car, “as there had been some damage to their property.” Could they bring me a new car? It was about 11 AM, and they hoped to come by 2 to 4 pm.

When they picked up the car, they recognized that it was totalled. No chance of repair. It was then that I had an epiphany—which I’d like to share with you. It is the sort of thing Bertie Wooster might say to Jeeves. If you return a rental car so damaged that it cannot be repaired, you don’t have to (and, indeed, you cannot) fill up the gas tank when you return it. The incentives do not make any sense—but that is the world we live in.

Seth Barrett Tillman, My Bertie Wooster Moment, New Reform Club (Aug. 7, 2018, 12:08 PM), (

Rocky & Racism

I was about thirteen years old when Rocky came out. I saw it during the summer, while in sleepaway camp—in a camp trip to the town movie theatre in Warrensburg, New York. I did not know much (actually—anything) about boxing. Still, I am sure I could have followed the basic plot had I been on my own. But I wasn’t on my own. Most of the camp counselors (who were with us in the theatre) were from Slippery Rock, and they were studying to be school gym teachers and college coaches. They were good guys, and they knew everything about things like boxing. So during the movie, I had a running commentary as to the details from a counselor.

Summer ended. We went home. And in pretty short order there were all sorts of reviews that Rocky was about race. The great white hope. A movie only racists could love. Here is Joe Queenan in The Guardian:

Cheerfully moronic, imbued with an almost infantile racism to which Stallone and the film's enthusiasts have long purported to be oblivious, Rocky lionizes a small-time South Philly hood who somehow manages to wangle a bout with the reigning heavyweight champion of the world, and thereupon gives him the fight of his life. The champion, Apollo Creed, is a motor-mouthed African-American punk who shows no respect for America, much less the flag; he is transparently a stand-in for Muhammad Ali, who, though sainted and adored now, was in those days reviled by a substantial percentage of white Americans, particularly old school Caucasian fight fans. (Joe Queenan, America’s great white hope?, The Guardian,

Just about everything is wrong about the statement above. Apollo Creed was not portrayed as a “punk.” He was the champion. He was a boxer—who was so much better than his peers that he found difficulty finding contenders. When he could not find a contender, it was his idea to create one: giving “a local Philadelphia boy a shot at the greatest title in the world.” What this shows is that Creed was not just raw strength—he was a thinker. And that’s the truth too many of our movies never put forward about professional sports—athletes and their coaches are thinkers.

The remaining claims are similarly false. There was nothing about Creed that showed a lack of respect for America or its flag. As to Rocky, he did not “wangle” his way to getting the bout with Creed. It was handed to Rocky—a result which was wholly unexpected (from Rocky’s point of view) and wholly undeserved (ditto). Most of Rocky was about his transforming himself to make himself worthy of the shot fate (and Creed) had gifted him.

Then there is the racism charge. What is meant by an “almost infantile racism.” If it is “almost infantile,” does that mean that it is adult-like, or does it mean “almost racist,” as in not racist? Plain and simple: Queenan is a race huckster. The natural consequence of such race hucksterism is to make producers and others afraid to make movies with a diverse cast.

Still, I used to (sometimes) wonder—did I root for Rocky because he was the underdog, or because he looked more like me than Creed? I always thought it was the former, but now I am sure. Here is why.

Have you seen the Ip Man martial arts series starring Donnie Yen? Here is a link to Ip Man 2, where Ip Man fights Twister—the stand-in for British boxing. The fight is cast as a confrontation between East and West, martial arts and Western boxing, the champion and the underdog. I know that I was rooting for Ip Man, and I am not Chinese. I suspect that most people (including most Caucasian people) in British theatres (that is, in the country next door) were doing much the same—even though Twister is draped in a Union Jack.

It might be irrational to root for underdogs. Maybe underdogs don’t deserve our good will. But giving them our good will and support isn’t rooted in racism. It transcends race. I rooted for Ip Man. Rocky was never about race. Case closed.

Seth Barrett Tillman, Rocky & Racism, New Reform Club (Aug. 7, 2018, 7:06 AM), ( )