Engaging Minds

 

“Things we lose have a way of coming back to us in the end, 

if not always in the way we expect.”  

Harry Potter and the Order of the Phoenix.

Early on, I studied and trained with the purpose of taking up teaching as my profession.  Adult-sized responsibilities loomed, however, and I made an adjustment to my career goals.  Rather than stepping from college into a teaching career, I entered law school.  Thereafter, I embarked on the path of a public interest litigator, a twenty-five-year career that covered a spectrum of publicly debated, hot-button issues of keen public interest.

Sixteen years into my career, I had had breathtaking opportunities.  I participated in the presentation of cases in the United States Supreme Court, state Supreme Courts, federal appellate and district courts, and state trial courts around the Nation.  Cases torn from national headlines, disputes discussed above the fold of daily newspapers, and the opportunity, in representing clients, to address substantive, fundamental questions regarding our Constitution, federal civil rights law, and novel applications of both.

Now, my employer threw me an unexpected curve.  

With less than two months to prepare, my supervisor advised me that our office would host a program, a Washington DC Semester for Law Students, in cooperation with Regent University School of Law.  Regent is an ABA-accredited law school situated in Virginia Beach, Virginia.  My employer and Regent had crafted a relationship over time, mutually beneficial, by which we employed law students as clerks and interns. In addition to the substantial benefit obtained by the students -- working with a prominent public interest law firm -- I had the occasional opportunity to dip my toe into the teaching pool.  Those early opportunities included teaching seminar-level courses on litigation of federal constitutional law issues, and team teaching a course on the First Amendment.

I was given principal responsibility to direct and lead an off-campus program, in our Washington DC office.  The semester experience would allow students to take three substantive law instructional courses, as well as to participate in an externship program for credit toward graduation.  The challenge of standing the program up on its feet with short notice was compounded by the disinterest of the two other attorneys assigned to this task with me.  We three were highly experienced in our assigned areas, experts, though none were bar members in states that provided special skills certification.  Two, however, had not taught previously, though they had made presentations in the setting of continuing legal education classes.  

Faced with these challenges, I was excited nonetheless at the prospect of a regular and active program of teaching, and the opportunity to mentor students through the externship program.

Ultimately, after a selection process for the text I would use, and developing syllabi for the advanced course in constitutional law and the externship program, we welcomed our first class of students.  My models for instruction were former law professors from my schooling.  I deliberately sought to emulate in teaching the approach, though not the particular style, of those professors that had most aroused and energized in me an interest in, a love for, the subject matter of their courses.  In practical terms, that emulation meant I committed to drawing students into a conversation about the principles and ideas represented in the cases, statutes, and constitutions we studied.  

The capacity to do so began with setting high expectations, and with recognizing in these students their commitment to the success of the venture we commenced together.  I set clear expectations both in the syllabi and in our first class together.  Students who would be attorneys should plan to read and understand assigned materials and should be prepared to discuss them in class, just as an attorney would be expected to do with a client or in court.  The only proper ways to honor their efforts and preparation, for me, was to bring my own best preparation and inquisitiveness to our class times, to treat students with decency, and their contributions with respect.

I was not surprised, honestly, with the outcome of settling expectations at the start.  Students, I found, consistently rose to the challenge.  Their internal drive to succeed, to be prepared for a profession the entry to which was creating small mountains of indebtedness for them, converged with the opportunity to discuss, as with a peer, the doctrinal implications of the cases and materials before us.  

Teaching a substantive course in the law, such as advanced constitutional law, could be done in many ways.  I employed a modified Socratic dialogue with students.  This approach is stereotypical, I suppose, of the law school setting, nonetheless, when undertaken with humility and real interest, I have found, draws students into the materials with which they must have familiarity, and draws out of students the engagement, the participation, that makes for a successful instructional program.

During lecture courses, it is still possible to measure aspects of learning.  

Student attentiveness, and absorption in the material, are evident if you watch for the signs.  While visual clues may not be completely reliable, some are:  both the intense eye-to-eye contact and the muffled yawn serve as keys.  My experience with the lecture setting was found in conducting a weekly, hour-long lecture associated with the externship portion of our program.  In that context, visual clues were helpful, but weekly writing exercises and the interaction with students as they completed those assignments allowed a much more effective evaluation of student comprehension.

Of course, in a law school setting, there was still the requirement that a method of measuring student success be devised.  Toward that end, I tried three approaches and settled on two.  

In the externship program, I measured student progress and success through a series of written assignments and oral exercises.  Students crafted case memos, complaints, scheduling orders, discovery devices, and motions to dismiss and for summary judgment; they orally argued the summary judgment motion; and they conducted a mock deposition.  By reviewing the written product and observing the oral exercises, with an eye both to the substantive development of ideas and the stylistic method, I could mark the progress of students over the semester.  

In the substantive law course, I employed two different methods.  Initially, students prepared an in-depth paper on a topic within the scope of the course.  This approach allowed students to bring scholarship and persuasion to historical controversies involving constitutional law in America.  A significant shortcoming became obvious:  the research paper did not provide me sufficient feedback regarding the instructional materials and student mastery of them.  Ultimately, I employed a hybrid of the typical university exam with objective questions and the typical law school essay exam and found that approach well-suited to completing the picture I needed as a teacher of student accomplishment.

After eight years of directing the program, and teaching both the substantive law course and mentoring students through the externship component of it, I knew that teaching students was my calling, my vocation.  I could practice law, and no doubt would continue to do so.  But there is no moment -- in even the best of my courtroom successes-- to compete with any of those finest teaching moments:  a conversational engagement with students in class, in which, despite the more cynical suspicion that a teacher is being shined on, there is evident that fiery spark of genuine interest and grasp; the contact had with a student after time has passed, learning that the student had put to professional use the ideas and materials that had been shared in class; and similar such affirmations of the value of the effort.

Progressivism's Intoleration of Liberty Comes in Many Forms ... All Ugly

If you visited Springfield Mall (now Springfield Town Center) in the late 1990's and early 2000's, you may have had a "stress test" performed at a kiosk as you walked on the upper level near Target.
In case you weren't told, the kiosk was set up by the fine folks at the #churchofscientology.

Now, I take this view of their whole schtick. Pure. Tee. GRADE A. BUNKUM. Utter nonsense.

Clearing your engram may cost you thousands, tens of thousands, hundreds of thousands of dollars. Can you say, scamolicious? I can.

Still, I also visited the Orlando church of Benny Hinn in the mid-1990s. You know Benny. He of the whacky "bam and down goes the audience" videos?

During a single service, attended over a weekend when we were stuck in Florida waiting for action from a court, Joel Thornton, I, and a couple others attended. The service was stupendously long. Remember, I grew up in the Catholic Church. Mass, except Midnight Mass and Easter Vigil, was always a 50 minute and done deal. During Benny's Sunday service, they took up FOUR separate collections. Count 'em. One. Two. Three. Four.

During the last collection, Benny "The Ringmaster" Hinn, took to the podium to preach the collection. In the sanctuary there were at least two stretchers with attendees that had been brought by ambulance, and a couple thousand others, including many who were, no doubt, in need of miraculous interventions for their health, their families, their lives. Benny's collection message was straightforward: "If you leave here today and have not GIVEN, YOU are a THIEF and a ROBBER and God's Spirit has no part of you!" Call me a thief and robber if you will, the only thing I gave was a hearty wish that he would regret his vile perturbation of Xianity.

And, of course, there's the machine gun preacher. Not Sam Childers, whose true life story is told in the eponymous movie. I mean Creflo Dollar, another fine and outstanding example of the Gospel of Christ in the American Pulpit. You may remember Creflo because of controversy over his pursuit of a church purchased 65 million dollar Gulfstream jet for his travels. Yes. 65 million. $65,000.000.00. What you may not remember is his scamalicious announcement that he would like to line up those that come to church and don't tithe and mow them down with a machine gun outside the back door.

Now, I hope you see I am an equal opportunity critic of asinine banality dressed as counsel, instruction, teaching, and preaching.

Yet.

Yet.

I would not stop the Scientologists, Hinn, Dollar, or others from their hucksterism. It is contrary to my basic view, that liberty should be maximized for all so that it can be maintained for me. So let Tom Cruise clear his engram and let him try to convince others to clear theirs too. Let Creflo and Hinn milk the willing with their ungospel.

But to my point.

There continues to be a decidedly anti-LIBERTY strain that overarches progressivism in America.
The assaults and batteries at Trump rallies -- bloodied heads, broken windows, etc. -- are evidence of the INTOLERANCE of progressives.

The proposal to create a power in California's Attorney General and District Attorneys to criminalize disagreement with the decidedly unsettled "settled science" of anthropogenic climate change is evidence of the INTOLERANCE of progressives.

The effort to ban therapies that are, in the view of many, quite unlikely to succeed in changing sexual orientation, to intervene and impose a state or federal government screen between willing patients and willing practitioners, these are evidence of the INTOLERANCE of progressives.

Now, I may have offended you. Perhaps you are a subscription donor to the Jet-of-the-Month Club on Trinity Broadcasting Network? Perhaps you donate to the American Center for Law and Justice without knowing that the organization is a nonprofit funnel that has passed some 40 million dollars through to the Sekulow family that constitutes its board and chief officers? Perhaps you had a clear engram till I started mocking the very idea of it?

My goal was not to offend.

My goal was to demonstrate to you that your need for maximum liberty -- to preach the need to punish us climate change denialists, to donate funds for your Pastor's Gulfstream, etc -- depends on RESPECTING the liberties of others. You destroy the liberties of others only by destroying the innate and natural rights of every man.

Court Rejects Once-a-Month Bill of Rights

Eric Segall has an article on the Daily Beast that seems to suggest that, given the chance, the Supreme Court would reverse a decision out of the US Court of Appeals in Washington. The DC Circuit, in a split 2-1 vote, struck down DC's “one gun a month registration rule.” Limiting gun registration to one a month effectively limits additions to an individual's gun safe to one a month, because such guns have to be registered.

The recent decision reflects the continued battle by Dick Heller to vindicate his rights under the Second Amendment. While the three judge panel upheld six gun regulations in what was, once, the Murder Capitol of the United States, the Court struck down a rule that only one gun a month could be registered with the City.

Taking cases to the Supreme Court is what attorneys do ... when they are paid well, or when they work on hotly contested issues of public policy.

I know.

I did exactly that for twenty five years, including twenty one years as Senior Counsel with the American Center for Law and Justice. Still, a good attorney knows when to call it quits, when not to suggest that his client spend money that will, essentially, be wasted. Segall apparently thinks an attempt at Supreme Court review would not waste the time and money expended.

One of the tasks of attorneys that regularly practice before the Supreme Court – a task I undertook many times for my employer – is to evaluate the facts of a case, the condition of the law on a subject, and the opinions and decisions of the justices of the Supreme Court, so that a client has the most well-informed basis on which to decide whether to pursue review of their case at the Supreme Court. That kind of consideration makes lots of sense, just given the costliness of seeking Supreme Court review. Depending on legal fees and the costs of printing and service of legal documents, a request to the Supreme Court to review a case can cost into the six figures. Just the preliminary stage of asking for review can run that high.

Obviously, issue organizations, the one I worked for, and others, like the ACLU, the NRA, the NAACP, raise significant funds to carry such cases to the Court, and carefully select cases for the purpose of winning strategic decisions from the Court. Segall’s post urges the District of Columbia and gun control advocates to go all in on this particular case. His advice rests on two principal points.

First, in his view, the temper of the times is quite different today than nearly a decade ago when the Supreme Court issued its decision confirming that the Second Amendment protects an individual right to keep and bear arms. Segall’s post suggests that the school and public shootings and the public temper resulting from them puts the Court in a different position than when the Court decided Heller. Until District of Columbia v. Heller, gun control advocates persistently claimed that cities, States, and the federal government had a free hand in regulating, restricting, even prohibiting gun ownership, because, as they saw the matter, the Second Amendment only protected the right of States, rather than the rights of individuals. Heller rejected that view.

Second, Segall asserts, because the restriction that the DC Circuit struck down only regulated the pace of gun purchasing and accession to a private owner’s “armory,” it is different in its essential character. On that point, of course, he is not entirely wrong. There is a none-too-subtle difference between telling a man he cannot own a single weapon and telling him that he may only register one gun a month with the District. If that rule had been in place since the day the first Heller decision came down, and a gun enthusiast had wanted to do so, he could have added nearly 75 handguns to his Washington, DC, based collection in the intervening period. So, sure, there is a difference between restricting and forbidding.

The judges that struck down the one a month rule explained their decision as follows:

The District has not presented substantial evidence to support the conclusion that its prohibition on the registration of “more than one pistol per registrant during any 30-day period,” D.C. Code § 7-2502.03(e), “promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” []

It is therefore unconstitutional.

The District argues that the limitation could reduce gun trafficking and that it would further promote public safety by limiting the number of guns in circulation, as the District “could reasonably conclude that more guns lead to more gun theft, more gun accidents, more gun suicides, and more gun crimes.” 

As for the District's first argument, what little expert testimony it presented indeed indicates that limiting gun purchases in turn might limit trafficking in weapons. The experts' conclusion that limiting gun registrations would likewise reduce trafficking is, however, unsupported by the evidence.  For example, Chief Lanier stated "[s]tudies have shown that laws restricting the registration or purchase of multiple firearms in a given period are effective in disrupting illegal
interstate trafficking of firearms."  Yet the only study she and the District's other witnesses cited has nothing to do with "laws restricting registration[.]"

One of the experts also testified from his own observation that w hen Virginia limited firearm purchases to one every 30 days, fewer guns bought in Virginia were used in crimes committed in the District; traffickers , he observed, instead sourced more guns through straw purchasers in Maryland. But even if this is true, t he suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense . Indeed, as Heller notes, even Chief Lanier acknowledged that the efficacy of purchasing limitations in preventing trafficking may have little bearing upon the efficacy of registration limitations in doing so. 

As for the District's second argument, one of its experts testified that, in his opinion, "the most effective method of limiting misuse of firearms, including homicide, suicide, and accidental injuries, is to limit the number of firearms present in a home."  Accepting that as true, however, it does not justify restricting an individual's undoubted constitutional right to keep arms (plural) in his or her home, whether for self - defense or hunting or just collecting, be cause, taken to its logical conclusion, that reasoning would justify a total ban on firearms kept in the home.

Now as to the temper of the times being different today, Segall forgets, or ignores, that the Supreme Court decided Heller in 2008. The case was briefed by the parties, the case was argued before the Court, the justices conferenced their views, and the Court issued its decision in the immediate aftermath of the 2007 mass shooting at Virginia Tech. The shadow of Columbine stretched out too, though it was nine years since that shooting. The immediacy of the Virginia Tech shooting, however, belies the notion that more recent shootings make for a different social construct today.

Against the DC Circuit’s reasoning, Segall contends that now is the time to act, to pursue review in the Supreme Court, and to do so with his seeming expectation that the Court would overturn the decision of the DC Circuit and affirm the power of municipalities like DC and, presumably, States, to restrict the pace of gun purchasing by individual gun owners.

Segall expressly invokes a notion popularized by Mark Tushnet, a professor of constitutional law, about the kinds decisions one is likely to see issued by the Supreme Court. Tushnet’s view, simplified, is that, if you cannot imagine a New York Times headline reporting the outcome of a Supreme Court case, then it is likely the Court would not issue the decision.

Tushnet’s theorem, however, is not so nearly helpful a tool as Segall believes.

A few examples suffice to show what is wrong with the theorem. Remember that the notion is, if you cannot imagine the decision of the Supreme Court as a headline on the New York Times, then it is unlikely the Court would render the decision.

Yet, the Supreme Court struck down the laws of virtually every State in the Nation, and its first decision on the topic of abortion, created a legal vacuum in which women were free to have an abortion at anytime during the ninth months of gestation, and for any reason at all, or for no reason whatever.

Could you picture, back in time, the New York Times publishing the headline:

“Supreme Court Greenlights Killing Babies Day Before Scheduled Delivery”

or

“Constitution Guarantees Right of Women to Murder Children”

Well, no, you probably could not. 

Travel back to the eve of the last century. We are in an era following a bloody civil war that cost nearly half a million lives and, in today’s value, Eighty Billion Dollars in plundered wealth. The war ended, the Nation undertook its long, slow healing, beginning with the addition of three amendments to the Constitution. One of those amendments, the Fourteenth, contains the first, and only, express requirement that governments must guarantee to all their citizens the equal protection of the law. In that clime, how likely would you consider a headline such as this one:

“Negro Complaints Over Segregated Train Cars Have No Merit, Supreme Court Rules”

or

“In 9-1 Decision, Court Holds Equal Protection Does Not Require Equal Treatment”

Although the “Greatest Generation” is fading into memory by the minute, could men and women that lived alongside, worked with, did business with, Americans of Japanese descent imagine a headline such as this:

“No Harm, No Foul: Locking Up Japs Without Due Process A Necessary Tool In War Time.”

Of course, in these cases, and in most every one that the Court ever decides, there is more than one way to describe what it is that the Court is doing. For example, in the Roe v. Wade case, it could be easily imagined that the New York Times might run a headline such as this one:

“Abortion Ban Denies Women Due Process of Law.”

Or, in the era of Jim Crow laws, one could imagine a headline saying,

“Constitution Does Not Prohibit States From Regulating Private Contractual Relationships.”

Or, in the aftermath of Pearl Harbor, one could easily picture a headline such as this one:

“Temporary Relocation Protects Japanese Americans From Danger, Provides Port Security.”

You see, I think, the problem with a tool like Tushnet’s. Every circumstance in life can be described in more ways than one. If one version of a story makes a plausible headline, then the Court might take a case that produces such a headline? There are better ways to predict what cases the Supreme Court will take to review. Imaginary headlining is not typically a line item in a lawyer’s billing to his client.

So, in this case, Segall says, “Strike now, while the iron might be hot.” Perhaps he correctly reads the temper of the Court. Perhaps a petition from review, asking the Court whether a government can legitimately restrict a citizen to the exercise of a constitutionally protected right to a periodic occurrence of one time a month. Perhaps the Court would uphold a City ordinance limiting demonstrators to one protest a month. Perhaps the Court would uphold a federal statute guaranteeing an accused to representation by counsel once a month. Perhaps the Supreme Court would sustain a state law limiting the New York Times to a schedule of once a month publication.

Yes, guns are different.

Yet, a persons rights with respect to guns, their ownership, and their availability to them as a tool of political participation, are full partners in the Bill of Rights, and in the essential rights of man.

Segall can imagine the Court taking a case in which it would affirm limits on the periodic addition of weapons to one’s personal armory. I can too. But only because I do not find it difficult to imagine a Supreme Court unhinged from the Constitution, unconnected to the natural law that the Bill of Rights respects, and too full of its purpose and mission to realize how its aberrations of law foment political and social instability.

What a Quarter Century of Public Interest Litigation Practice Looks Like

From time to time, I publish posts on topics related to law, to legal history, to politics, to elections, and the like. It occurs to me that you might want to have some idea about the writer of these posts. So I am using this blog post to introduce you to the professional side of me.

James Matthew Henderson, Sr.

Contact Information Available Via Email 

Request to jmhenderson58@gmail.com

Executive Profile

Accomplished appellate and trial litigation counsel.  Highly skilled team leader.  Effective written and oral advocate. Perceptive, innovative, positive.  Talented and inspiring instructor and mentor.

Skill Highlights

•           Federal Constitutional Law   

•           Legal Research and Writing, Trial and Appellate

•           Drafting Litigation Documents

•           Skilled Legal Editor

•           Client Management

•           Section 1983 Civil Rights Actions

•           Oral Advocacy

Experience

American Center for Law and Justice, Inc., Washington, DC

Senior Counsel, July 1992 to September 2012 

Led and directed trial and appellate litigation of federal constitutional and civil rights cases. Organized, lead and supervised team litigation of staff attorneys in Washington, DC, Virginia Beach, Virginia and Nashville, Tennessee. Conducted all aspects of preparation, trial and appeal, including fact development, legal research and writing and trial practice. Researched and wrote on legislative issues related to mission of the Center or to questions of federal constitutional or civil rights law. Initiated organizational system of demand correspondence for the representation of clients to resolve disputes in advance of litigation.

Emily Echols et al. v. FEC.

Supreme Court 2003.

Bipartisan Campaign Reform Act of 2002 ban on campaign contributions by minors held unconstitutional. Lead counsel in three judge district court.  Drafted all documents including trial  brief.  Successfully argued before three judge district court. Co-Counsel in US Supreme Court.  Drafted Summary Affirmance Motion, Motion on Divided Argument, and Appellee's Brief.  Assisted arguing counsel with preparation for argument.

Hill v. Colorado.

Supreme Court 2000.

State statute restricting speech at health care facilities held constitutional. Lead counsel in Jefferson County District Court, Colorado Court of Appeals and Colorado Supreme Court.  Drafted all documents, including discovery devices, summary judgment briefing, and appellate briefs, and first round Petition for Writ of Certiorari in the US Supreme Court. Co-Counsel in US Supreme Court.  Drafted Petition for Writ of Certiorari and Reply Supporting Petition, Drafted Petitioners' Brief and Reply Brief.  Assisted arguing counsel with  preparation for argument.

Lamb's Chapel v. Center Moriches Union Free School District.

Supreme Court 1993.

School district exclusion of church from using school facility after hours because  of its religious content overturned. Co-counsel in US Supreme Court.  Edited Petitioner's Brief and Reply Brief.  Assisted Arguing Counsel with preparation for argument.

Bray v. Alexandria Women's Health Clinic.

Supreme Court 1993.

Ku Klux Klan Act of 1871 does not apply to women seeking abortions. Trial Counsel in District Court, drafting all pleadings and briefs. Co-Counsel in US Supreme Court.  Edited Petition for Writ of Certiorari and Reply Supporting Certiorari, both Petitioners' Briefs and Reply Briefs, and assisted arguing counsel with preparations for both arguments.

Evergreen Association v. City of New York.

US Court of Appeals for the Second Circuit 2014. 

US District Court for the Southern District of New York 

City of New York enjoined from enforcing speech restrictions against crisis pregnancy. Lead Counsel in District Court and US Court of Appeals.  Argued preliminary injunction motion successfully in trial court, argued in US Court of Appeals for affirmance. Organized and lead team litigating in trial and appeals court.

Bynum v. U.S. Capitol Police Board.

US District Court for the District of Columbia 2000.

USCPB enjoined from enforcing a prohibition of praying as a form of demonstration in the public areas of the United States Capitol. Lead Counsel.  Drafted all documents and argued successful injunction motion.

Mahoney v. Babbitt.

US Court of Appeals for the DC Circuit 1997.

Emergency injunction granted on emergency appeal barring National Park Service from carrying out threatened arrest of protestors criticizing newly re-inaugurated President. Lead Counsel in District Court and US Court of Appeals.  Drafted all documents in both courts and argued the case.

Ex Parte: Reverend Keith Tucci.

Texas Supreme Court 1992.

Texas Court of Civil Appeals 1992.

Seven ministers protested the issuance of an injunction effectively preventing prayer on public sidewalk were arrested when they violated the injunction.  Texas Supreme Court ordered ministers  released on habeas. Co-Counsel in 1st Court of Appeals and Texas Supreme Court.  Drafted Petitions for Writ of Habeas Corpus resulting in order releasing Petitioners.

Jews for Jesus v. Massachusetts Bay Transportation Authority. 

US Court of Appeals for the First Circuit 1993.

US District Court for the District of Massachusetts 1991.

Judgment striking complete ban on distribution of free literature on station platforms sustained. Lead Counsel in District Court and US Court of Appeals.  drafted all documents and briefs, including trial brief and Appellees' Brief in the US Court of Appeals. Argued at District Court and US Court of Appeals.

Regent University School of Law

Adjunct Professor of Law and Director of Washington Program, 2004-2011

Directed Washington, DC, Semester Experience Program for Regent University School of Law, an American Bar Association accredited law school. Supervised participating law students participating in 255 hour externship program each semester of the program. Taught three credit hour course on advanced constitutional law. Taught one hour Law Practice Lecture Course. Progressively improved externship program to satisfy Law School upper level writing and oral advocacy requirements.

Advanced Constitutional Law: The Law of Religious Liberties

Three credit hour course on the history of, and the law of, religious liberties beginning with Colonial America to the present day. Consistent rated superior by students participating in program

Legal Practice

One hour course on legal practice basic skills, covering drafting

pleadings, motions, memoranda, scheduling orders, discovery devices,

and covering oral advocacy. Recognized by faculty as providing students necessary writing and oral advocacy opportunities to satisfy upper level writing and oral advocacy requirements.

Christian Advocates Serving Evangelism, Washington, DC

Litigation Counsel, October 1989 to July, 1992

Trial and appellate litigation of federal constitutional and civil rights cases. Litigation including all aspects of preparation, trial and appeal, including factual development, legal research, legal writing and trial practice. Research and writing on legislative issues related to mission of the Center.

United States v. Kokinda.
Supreme Court 1990
Decision of US Court of Appeals for the Fourth Circuit that soliciting political donations on post office sidewalk enjoyed First Amendment protection against postal service restrictions reversed. Co-Counsel in Supreme Court. Assisted Lead Counsel in preparation of brief and reply brief, and assisted lead counsel in oral argument preparation.

Henderson v. Lujan.

US Court of Appeals for the DC Circuit 1992.

Injunction barring enforcement of ban on free distribution of literature on public sidewalk in public  park affirmed. Lead Counsel in US Court of Appeals. Drafted Appellee's Brief and argued at US Court of Appeals.

Zauber v. Stone Mountain Memorial Association.
Georgia Supreme Court ()
DeKalb County Superior Court ()
Injunction barring enforcement of ban on free distribution of literature in Georgia's Stone Mountain Park affirmed. Co-Counsel in Georgia Supreme Court, Drafted Appellee's Brief and Reply Brief, assisted Counsel in preparation for argument. Lead Trial Counsel in Dekalb County Superior Court, first chair counsel on motions and trial.

National Organization for Women v. Operation Rescue.
US District Court for Washington, DC
US District Court for Maryland 
US District Court for the Eastern District of Virginia
Injunctions against abortion business blockades by nonviolent protestors under Ku Klux Klan Act of 1871 reversed. Lead Counsel in Washington, DC and Maryland litigation, Co-Counsel in Eastern District of Virginia. Drafted oppositions to motions for preliminary injunctions, oppositions to orders to show cause on contempt, and on attorneys fees.

Mahoney and Christian Defense Coalition v. District of Columbia. 

US District Court for the District of Columbia 1990.

Emergency ordinance restricting picketing and demonstrating on public ways near medical facilities in the City of Washington enjoined. Lead Counsel.  Drafted all documents and argued successful preliminary injunction motion.

Free Speech Advocates, New Hope, KY

Staff Counsel, October 1987 to October, 1989

Trial and appellate litigation of federal constitutional and civil rights cases. Litigation including all aspects of preparation, trial and appeal.

Bar Admissions

Commonwealth of Kentucky (No. 82072)

District of Columbia (No. 452639)

Supreme Court of the United States

US Courts of Appeal for the First, Second, Fourth, Sixth, Eighth and Tenth Circuits

US District Courts for the Western District of Kentucky, the District of Columbia, the District of Colorado and the Southern District of Indiana

Publications

Sekulow, Henderson, Broyles, Religious Freedom and the First Self-Evident Truth: Equality as a Guiding Principle in Interpreting the Religion Clauses, 4 Wm. & Mary Bill of Rights J. (Issue 1) (1995)

Sekulow, Henderson, Tuskey, Proposed Guidelines for Student Religious Speech and Observance in Public Schools, 46 Mercer L. Rev. 1017 (1995)

"The Public Forum Doctrine in Schools," 69 St. John's Law Review 529, Symposium, "Twenty-Five Years After Tinker: Balancing Students' Rights" (Summer-Fall 1995). 

"Poor Way to Quash Protestors", Nat'l Law Journal (March, 30, 1992)

Missouri Home Education: Free at Last?, 6 St. Louis U. Pub. L. Rev. 355 (1987)

Education

St. Louis University School of Law, JD, May 1987

            Law Review

                 Staff, St. Louis University Public Law Forum 1985-86

                 Managing Editor, St. Louis Univ. Public Law Review 1986-87

            Honors and Awards

                 Thomas J. White Family Foundation Fellow in Public Law and
                      Government, 1985-87

            Graduated Top Third of Class

            Memberships

                 Federalist Society, 1985-87

                 Christian Legal Society, 1984-87

University of North Carolina at Wilmington, BA in Biology, August 1981

Rush Limbaugh Just Called My Former Boss "Stupid" and "Ignorant"

Well, sort of. Allow me to explain.

When I can, I take lunch at home, that way I check in on the family, and get to see Terri (my wife), even if briefly. On the run back and forth, I usually have Rush on. It is the only time I get to listen these days.

He caught my attention because he was touching on the teapot tempest over a bus advertisement in Pennsylvania that I had read about last night. It seems that a display ad on a bus, included the words, "Ziggin, Zaggin!" Don't read those words backwards or you may find yourself offended. And that was the story I had caught on the web the night before, that an offense, or a pretense of offense, had arisen when someone noticed that backwards, the message was, well, the backwards of "Ziggin, Zaggin!"

So Rush was on a tear over the pretense of offense, or the ease of injury, or whatever you would call the willingness to be offended by words that aren't even being used.

During his jeremiad, he mentioned a story about government employees let go because of the use of the word, niggardly, in some context or other. Not a fan of Wikipedia (after all, how can I trust an "encyclopedia" that has me as an editor?), I note that even Wikipedia realizes that confusion and ignorance reigns supreme in this nation over the perfectly fine, non-racial, Scandinavian word.

Rush was quite amused over the "Ziggin, Zaggin," story and the knee jerk response of a transit agency pulling down the display ad rather than challenging the silly objection. At that point, he recalled the story of the employment woes of the government employee whose vocabulary was broad enough to include "niggardly" and too broad for his or her own good. Rush described the firing supervisor as "Stupid" and as "Ignorant" for failing to realize that "niggardly" had no racial or racist component to it all.

And that's when I laughed. And that's when I realized that Rush Limbaugh just called Jay Sekulow, the Chief Counsel of the American Center for Law and Justice, "stupid" and "ignorant."

Oh true enough, he was talking about a different "stupid" and "ignorant" supervisor at another place of employment.

But Jay Sekulow fit the bill on this one to a T.

Years ago, I wrote all of Jay's press releases, in a period running from about December 1989 until he and I joined the American Center for Law and Justice. After that, and until the ACLJ terminated my employment in September, 2012, I wrote many of Jay's Supreme Court briefs and petitions and many of his appellate court briefs (those not written by Walter Weber, our colleague) (like many attorneys on the top end of legal enterprises, Sekulow had discontinued the drafting of such documents as soon as about 1992 or 1993, taking the role of editor on the work of others). I seldom got feedback from Jay. I assumed then, and do now, that his light touch reflected complete satisfaction with my research, and my legal reasoning.

But there was that one occasion. And when he called me, I actually expected him to do it. I knew he would react to my use of the word "niggardly" because I knew that Jay often seemed more concerned about how matters appeared than how they actually were. In the case of the word "niggardly," as I reminded him then, there is absolutely NO RACIAL IMPORT to the word. NONE. But I knew that he would conclude that others would perceive it so and that we would surrender the linguistic field before the battle began.

Ignorant.

Stupid.

Well, Rush, if you insist.

The Monster in the Senate Closet: The Filibuster

Imagine the innocence of childhood.  No fears of tomorrow.  No concerns about mortgages, taxes, illnesses, broken families.  Yet, even into the innocence of childhood, monsters will creep.  In my childhood, the boys in our family shared to large rooms in the basement of our Falls Church, Virginia home.

I love basements.  There is a moldering smell due to dampness.  There are crevices and hideaways to explore.  They are indoor playgrounds of manifold opportunities.

When the night comes, though, and the lights go down for bed time, a basement, just like a bedroom with a closet, becomes a place of great danger to a child's active imagination.  I am not ashamed to admit creeping from the bed to our little half-bath when I had to relieve myself.  Creeping along the basement walls and ducking low as I passed underneath the high set windows that were, as much as anything else, a means of ventilation, since they were at ground level outside the home.

Why did I creep so softly and gingerly?

For fear.

Fear of what was outside that might be looking in.

Others had the same experience of fear, but their childhood spent in bedrooms with closets, they feared the boogeyman in the closet. Movies are made in the horror genre that feature the child's bedroom closet because so many know that gripping fear of the closet.

Of course, we grow up and realize the true horror of what is in the closet:  handme down clothes, stinky socks, the odd spider, toys.  Nothing to fear. Now we laugh at our childhood fear.

The United States Senate has lived under the grip of a mortal terror for nearly two centuries.  Far too long, the Senate, a mature institution of popular sovereignty and governance, has laid about under the grip of that monster in the closet.  Oddly, at a time when we, who belong to the fellowship of former closet monster victims, are long past being held hostage to the imagined monster, the Senate continues to quake in fear and inaction.  And it appears that even removing the Democratic majority in the Senate will not snap the Senate out of the grip of its terrorized paralysis.

Here are a couple examples drawn from the headlines:

At the beginning of the new Congress, socialist Bernie Sanders summoned up the boogeyman in an effort to prevent adoption of the Keystone pipeline legislation:



Not to be outdone, New York Democrat Chuckie "Where's the Camera" Schumer and other Democrats threaten a filibuster of the separate funding legislation for the Department of Homeland Security:

During the tenure of George W. Bush, the Director of the nonprofit where I worked asked me what could be done about the filibuster being used by Democrats to block confirmation votes for Bush's judicial nominees.  There was, of course, talk about the "nuclear option" but what was that option, how would it work, how could it be given effect and why should it.  These were his questions to me.  That set me to the task of reviewing the Senate's filibuster practice, the Senate Rules governing that practice, and the political wisdom of that practice.

Based on my research and study, I concluded that the Senate, at any time a majority of those present and voting wished to do so, could amend the Senate Rules and eliminate the filibuster by the vote of a simple majority.  I also concluded that eliminating the filibuster was a sound political decision that our organization, The American Center for Law and Justice, should support.  I have not waivered from that view since then, even when the Senate filibuster allowed Republicans in the minority to hold the Senate hostage to their demands.  (While the document bears the names of two other ACLJ attorneys, it is solely the product of my research and writing).

Today, we are once again being terrorized.

Yes, terrorized.  Just as when parents soundly sleeping are startled awake by the nightmare screams of their child, whose horrified screams simply embody their fear of the monster in the closet.  Our body politic is disturbed by the pretended fear of Republicans that they will be held hostage to Democrats in minority through the device of the filibuster.

The problem for Republicans is that the monster in the closet no longer terrorizes those who were minding the legislative store during the last session of Congress.  Then, in a fit of pique, the Democrats finally pushed through a change to the Senate's ridiculous and time-honored practice. Harry Reid bullied those changes through to accommodate Obama's petulant demand for judicial confirmations and Republicans' skillful play of the filibuster rule to prevent votes on certain judges. Because Reid, via a simple parliamentary procedure, changed the filibuster rule and practice as applied to judicial and executive nomination votes, we now know a parliamentary truth:

A simple majority vote of the Senate -- taken at any time the Senate is in session -- can be used to amend the Rules of the Senate.  Such amendments may change even long practiced senatorial privileges as the filibuster.

Once you have gone into your closet with a matured judgment ... and with the lights on ... you begin to realize the infantilism in your night terrors.  You chuckle at how you were held in rigid paralysis by the certainty that a monster would leap out and take you wherever it is that closet monsters take their unwitting victims.  And so it is here.  We know that the only reason that Democrats can obstruct the Senate Republican majority is if the Senate Republican majority chooses to play terrorized child, captive to a rule that has no more merit or substance in this era than does the closet monster of our childhood in our adult lives.

While the horror genre provides entertainment, and perhaps even serves a psychological purpose of providing manageable doses of fear that we can conquer by confronting, it is a poor framework for the exercise of, or for preventing the exercise of, political will.  The Republicans should overthrow the vestiges of the filibuster, and legislate apace.

An Apology for Tyranny: How One Evangelical Conservative Legal Group Contributed to Liberty's Loss

As I mentioned the other day, there is responsibility to be assigned for the massive constitutional violations of privacy and liberty uncloaked this week, the logging of billions and billions of phone records, the PRISM program and related adventures in domestic surveillance.  And there is responsibility that flows back to Bush/Ashcroft and the Patriot Act.  And there is responsibility that flows back to the leadership of conservative and evangelical Christian groups that should have opposed the surrender, in 2001, of liberty in the name of obtaining security.

But now I want to back up my assertion by directing you to the October 2001 "Open Letter" of Jay Sekulow, Chief Counsel of the ACLJ.  There, Sekulow baptizes the maiden voyage of this government intrusion, giving my former employer's blessing to what became the Patriot Act.

In the "Open Letter," Sekulow stakes the claim that the legislation is constitutional, and asserts that the conclusion was supported by Senior Staff.

This was not true at the time that it was promoted to the conservative and evangelical community in October 2001.  "Senior Staff," of which I was one, raised serious questions and objections to the legislative proposal at the time that it was discussed with us.  Truth be told, the ACLJ's support for the act was a fait accompli by the time that consultation was had.

It was unsound -- then -- to support the arrogation of power by the Executive Branch, and to support the derogation of individual liberties.

To my own shame, I kept silence with the notion of keeping my job.  Even when the deleterious impact was reflected in greater and greater encroachments on the exercise of well-established constitutional rights (such as through the creation and maintenance of speech free zones in the name of providing security to "protected persons"), and I should have criticized the security crazed and liberty loathing sense of the Bush administration's policies, I kept silent within the ACLJ, while strenuously litigating for the rights of clients, such as Reverend Patrick Mahoney, to conduct prayer vigils and demonstrations in close proximity to events involving the President, Supreme Court justices, etc.

Now those policies have grown up under the nurture and care of the Kenyan, but the seeds should never have been planted by Bush and Ashcroft, nor watered with the praise of the ACLJ.

Accountability and Uncomfortability

I guess, unless you are a true stooge of the Obama administration, you are shocked and angered at the collection of Verizon network records, being conducted on the grand scale by Obama's Department of Justice under the thin skin of a Foreign Intelligence Surveillance Act order.

If you are angered, welcome to the club.

The National Journal is angered.

The New York Times is angered.

The Atlantic is angered.

Piers Morgan is angered.

Get the point?

Except stooges -- Lindsey "Light in the Loafers of Liberty" Graham and his ilk -- we all know that Obama's sweeping sweep sweeps too far.

Maybe, finally, the Republican led House of Representatives will exhibit the manly firmness of a resolute legislature by investigating the Administration via select committees ... it asks too much to hope that Boehner & Co. will craft articles of impeachment in response to the Administration's tyrannical excess.

But, and this is an important but, do not think the job is done by searching out Obama's toadies and seeking to affix all responsibility on them for the rape of the Fourth Amendment.  To fully excise the tumor against liberty, we have to follow the cancer back to its birth in the fear generated by the September 11 terror attacks.  In that long view, an honest appraisal indicts then-President Bush, that Congress and its paramours for making this all so easy with the Patriot Act and the sacrifices of liberties then in the name of providing security for which so many desperately craved.

When I served as Senior Counsel with the ACLJ, I was thunderstruck when none of the organization's senior attorneys -- seasoned counsel with decades of constitutional law practice between them -- were NOT consulted before the organization loaned its name and support to the Patriot Act.

Thus began the rape and pillage of our rights to privacy, respect for constitutional rights and liberties, with the blessing of America's leading religious liberties nonprofit.

Today, if you are thunderstruck with the present administration's excesses, you should not only hold it accountable, but should seek out those that stood this monster up and welcomed it to the table. When you do, you will ask my former employer whether the security it craved was worth the liberty we lost.