Louisville Law plays host to an international delegation of lawyers and judges.
Rule of Law: International Visitor Leadership Program comes to Louisville Law

Members of the international delegation outside of the University of Louisville School of Law.
Members of the international delegation outside of the University of Louisville School of Law.

As a member of the Bingham Fellows Class of 2019, one of the many great opportunities presented to me is chance to meet local leaders who are engaged in our community in a myriad of ways.

One recent example of the connections the Bingham Fellows has fostered came last week, when a group of international lawyers and judges visited the University of Louisville School of Law. Their visit was organized by the U.S. Department of State's International Visitor Leadership Program and was coordinated locally by the World Affairs Council of Kentucky and Indiana. I learned about this visit from Xiao Yin Zhao, executive director of the World Affairs Council and a fellow member of Bingham Fellows. My thanks to her for including the School of Law in this visit!

John Cross
Professor John Cross explains the differences between civil law and criminal law.

It was an interesting and lively discussion, especially when our visitors learned that many state judge are elected rather than appointed.

Another interesting topic was our school's ties to Justice Louis Brandeis. I was pleased to hear that several of our visitors were familiar with the justice and even referenced some of his opinions. It was a nice reminder that we are tied to a legal mind whose impact is known around the world.

The morning was a great example of the value of local connections and the role our law school can serve in educating students and the community alike.

Dr. Sara Robertson of the University of Louisville's School of Nursing was the evening's presenter.
Rules of the Game examines "blurry rules" of nurse practice authority

Dr. Sara Robertson
Dr. Sara Robertson was the featured speaker at the February 11, 2019, Rules of the Game event.

Last month, an intimate gathering of Louisville’s town and gown met at the Speed Museum for the third installment of Rules of the Game.

This event series, generously sponsored by local leaders David Jones Jr. and Matthew Barzun, brings together members of the community and the University of Louisville for an evening of thought-provoking discussion about the rules we as a society live by, the rules we break — and why.

February’s topic, “Nurse Practice Authority: Why Are the Rules So Blurry?” was brought to us by Dr. Sara Robertson, assistant professor and director of the Doctor of Nursing Practice Program at UofL’s School of Nursing.

For about 10 minutes, Dr. Robertson spoke about the constraints under which Nurse Practitioners work in the Commonwealth and how that limits the delivery of medical services. She explained, for example, that an NP can only practice if a physician signs off on the service delivery. This requires the NP, moreover, to pay a significant fee. The result, Dr. Robertson argues, is to infringe on wider delivery of medical services.

She outlined SB 132 — a bill that did not make it out of committee during the Kentucky's Legislature's 2019 Regular Session — that proposed removing the mandatory collaborative practice agreement that NPs must have with a physician in order to prescribe controlled substances. This agreement, argue opponents, poses a barrier to health care for many Kentuckians. While SB 132 didn't make it out of committee, the bill in its entirely has been added as amendments to another bill, SB 22. Dr. Robertson is now advocating for passage of these amendments.

Her presentation was followed by a lively discussion. As I looked around the room, I was excited and encouraged to see participants from a wide range of careers and experience — in the room, we had doctors, entrepreneurs, academics, lawyers and civic leaders.

It’s this kind of interdisciplinary engagement that makes the relationship between Louisville and UofL so special — and so important. And as dean of the city’s only law school, I am honored to be part of this program that prompts us all to examine the different ways we view the world.

See a full gallery of photos from this event.

Senator Gerald Neal (1972) honored with Trailblazer Award
Several members of Louisville Law community honored by LBA

Senator Gerald Neal
Senator Gerald Neal and students from Central High School.

On the same evening that Louisville Law hosted Professor Marc Steinberg for the Bullitt Lecture, the Louisville Bar Association honored one of our alumni with its prestigious Justice William E. McAnulty Jr. Trailblazer Award.

The award — named for the first African-American to serve on the Kentucky Supreme Court — was presented to Senator Gerald Neal. (Coincidentally, both Justice McAnulty and Senator Neal are graduates of Louisville Law!)

Senator Neal was honored for “his contributions to the promotion of racial diversity and justice within the legal community and beyond,” says the LBA.

Indeed, Senator Neal has an impressive record. He was elected to the Kentucky Senate in 1989, becoming the first African-American male to serve in that body. Returned to Frankfort at every subsequent election, he is now the longest serving African-American member of the Kentucky General Assembly.

A strong advocate for senior citizens, youth, minorities and the disadvantaged and a staunch supporter of education, economic development, health care and penal code reform, he sponsored legislation amending the Kentucky Constitution to remove segregation by race, prohibit racial profiling by law enforcement and prevent the execution of a person when evidence shows racial bias in prosecution. He was recently chosen as parliamentarian of the National Black Caucus of State Legislators.

In 2017, the law school’s Law Alumni Council awarded Senator Neal its highest honor, the Lawrence Grauman Award.

The LBA’s event also recognized winners of the Central High School Law & Government essay contest. As many readers know, Louisville Law and Central High School have a longstanding partnership meant to promote diversity in the legal profession.

Second-year law student Kaylee Raymer, who is one of our Human Rights Advocacy Fellows, was presented with the LBA’s Legal Opportunity Scholarship.

And receiving special recognition was Barbara Thompson, someone who is known to generations of Louisville Law graduates. Barbara retired as director of student records in June of 2018 after 47 years of service. Many lawyers in Louisville and beyond owe her a debt of gratitude for her commitment and counsel over nearly half a century. I was sorry I could not be there – if only Deans had the capacity to be in two places at once!

Professor Marc I. Steinberg was the speaker for the 2019 William Marshall Bullitt Memorial Lecture in Law.
An evening with an insider trading law expert

Professor Marc Steinberg with Louisville Law securities students.
Professor Marc Steinberg with Louisville Law securities students.

As an environmental and property law scholar, corporate law isn’t an area where I have done much work. So I was thankful when my colleague Manning Warren arranged to bring in his friend and co-author, Professor Marc I. Steinberg of SMU’s School of Law, for this year’s William Marshall Bullitt Memorial Lecture in Law, held February 28.

Professor Steinberg, Rupert and Lillian Radford Professor of Law at SMU’s Dedman School of Law, presented "The Securities and Exchange Commission vs. Mark Cuban – A Trial of Insider Trading."

Professor Steinberg served as an expert witness during the insider trading trial of the SEC versus Mark Cuban. In his talk, he outlined insider trading law in the United States, compared insider trading law in other developed securities markets and discussed the SEC-Cuban case.

I was thrilled to see members of the local bar, as well as many law students, attend this important lecture, made possible through the generous support of Lowry Watkins, Jr., in honor of his grandfather, the Honorable William Marshall Bullitt, former Solicitor General of the United States.

Professor Steinberg’s resumé is an impressive one. He has written more than 150 articles and 36 books. In addition to SMU, has taught at the University of Maryland School of Law, the Wharton School of the University of Pennsylvania, the National Law Center of George Washington University and Georgetown University Law Center, as well as international appointments in at law schools in 13 countries.

He was an adviser to former U.S. Supreme Court Justice Arthur J. Goldberg for the Federal Advisory Committee Report on Tender Offers and is a Former enforcement attorney and special projects counsel at the SEC.

Suffice it to say, the University of Louisville School of Law is fortunate to have had such an accomplished legal scholar as a guest speaker. I want to again thank Professor Steinberg for sharing his time and expertise with us.

See a full gallery of photos from the event.

Louisville Law extends a note of gratitude to KBF for its support
Kentucky Bar Foundation supports Central High program with textbook grant

Harvey Johnston and Central High students
KBF President Harvey Johnston meets with Central High students.

As we approach the end of Black History Month, I wanted to take this opportunity to highlight one of our law school's signature programs.

One of the shining stars of the University of Louisville School of Law is our partnership with Central High School's Law and Government Magnet Program.

Established in 2011, the program connects Louisville Law and Central High students and aims to increase diversity in the legal profession. The most significant part of the program involves bringing law students to Central to teach in three programs: Street Law (legal issues and critical thinking), Writing Skills and Marshall Brennan Civil Liberties.

After many years of use, the textbooks for the street law and Marshall Brennen classes were in need of replacement.

In June 2018, the Kentucky Bar Foundation provided the School of Law a $5,000 grant so that we could purchase new textbooks. And on February 7, 2019, KBF President Harvey Johnston — a Louisville Law graduate himself — visited Central High. He talked with students and shared his own experiences of high school and his career path as a lawyer.

The partnership has been successful in many ways over the years. There are currently six Central Law and Government Magnet students enrolled in law school — including two at the University of Louisville. The program is successful because of the support of many, most recently the generous grant by the Kentucky Bar Foundation. Louisville Law is thankful for the foundation's support of this effort to promote diversity in the next generation of lawyers.

More than 50 attendees were present at the event, hosted by the Estate Planning and Elder Law Program.
Third annual elder law event great example of community engagement

Local attorneys presented at the Elder Law Symposium.
Local attorneys presented at the Elder Law Symposium.

A Dean’s life is full of events. Some are especially memorable — especially for a law Dean — because they demonstrate the impact a school has in the community it serves most immediately.

Goldburn Maynard
Goldburn Maynard

Community engagement has become an important part of the School of Law and of the University of Louisville more generally in recent years, and this was very evident at a terrific event I attended in West Louisville, at the Southern Star Baptist Church on Saturday, September 15, 2018.

Law students gathered before the event.
Law students gathered before the event.

A group of our students, under the auspices of the Estate Planning and Elder Law Program run by Professor Goldburn Maynard, organized the third annual Elder Law Symposium. The event attracted more than 50 seniors and their friends and family from across the community for a program that featured estate and elder law practitioners, Metro Councilwoman Jessica Green and Judge Denise Brown.

It made me so proud to be associated with a School where faculty and students bring their dedication to serving the community in an important and much-needed way. As Professor Maynard reminded those assembled, the singer Aretha Franklin died without a will — and none of us should do that! The day was a terrific and important event and showed the importance that law has for our individual lives.

Be sure to read another account of the day in this blog post written by Estate Planning and Elder Law research assistant Joe Zurschmiede.

Dean Crawford shares one of the best part of his job: connecting with alumni.
Getting to know Louisville Law alumni

Dean Crawford and a group of 2011 alumni
Dean Crawford displays his school spirit with a group of 2011 law school alumni.

One of the great pleasures of this new job — perhaps the greatest pleasure, next to getting to know our students — is getting to meet our alums and learn about their lives and careers. Two recent experiences really brought the truth of this fact home for me.

The first was a reunion the School of Law hosted for members of the classes from 1969-1971. These were small classes due to the Vietnam War, which is why we combined the reunion group. The impulse for this was the return to campus of Murray Klein, class of 1970. Murray, who now lives in California, had not been back to the School of Law for years and returned to award a very generous scholarship to third-year student Bethany Beal.

Martha Schecter and Murray Klein
Martha Schecter and Murray Klein, both of the Class of 1970

The scholarship was created by Murray and his wife, Elayne, in honor of his mentor, a fabled teacher at the school, the late William Read. We held the event at the Omni Hotel, downtown Louisville’s newest smart spot.

I saw some already familiar faces, like the always amiable Wyatt partner Grover Potts (class of 1969), and also made some news friends, like the Pikeville lawyer John Baird, class of 1971, and Richard Beliles, class of 1971, the Kentucky state chair for Common Cause.

I also met Martha Schecter, class of 1970, whose fame preceded her. Martha is a longtime legal aid lawyer and since I arrived in January people have told me she is someone I need to meet. Why so? Because she is known and respected as someone who has spent her career working to make this a better place. Martha still sizzles with the intensity of her social commitment and I hope we can lure her back to campus this year for some women in law leadership events we are planning.

Grover Potts Walt Swyers
From left, Grover Potts (1969) and Walt Swyers (1971)

This event was bracketed for me by yet another reunion — the reunion of a group of men from the class of 2011: John Nawara, Ryan Polczynski, Kyle Samons (UofL football fans may remember Kyle’s star career as the “white thunder” as a Louisville running back), Greg Thompson, Fernando Valdizán and Gulam Zade.

This group, which formed in law school, calls itself the “B-90.” That is “B’ as in ”bottom” and 90 as in 90 percent — those who were not getting the fancy law firm jobs from law school. These guys gather every year, coming from far and wide — Columbus, Ohio; Nashville, Tennessee; Morgantown, West Virginia, and yes, from Louisville, to relive old times and to plan their fantasy football leagues. Sadly, not all of them could attend that Saturday at a pizza parlor in the Highlands, but the ones I met were an incredibly diverse bunch: a lawyer for the Social Security Administration, an in-house counsel recently named as one of Nashville’s “40 Under 40,” a crazily busy plaintiff’s attorney and a sports agent, to name just a few.

Most impressively of all, what may have been a bit of a regret in law school — to be part of the “B-90” — was now a badge of honor: All of these guys have, in a relatively short time, established very successful careers, a testament to the fact that class rank is not everything. They are also very loyal alums and promised to start a scholarship endowment later this year.

These meetings were welcome occasions to me for another reason. This School has not had a great tradition of reunions — something I hope to change. Indeed, we will soon be sending out notices for an all-class reunion on the Friday of Homecoming weekend, October 26. We have never done this before.

At that event, I will be announcing plans to start having small, class-based reunions. Whenever possible, we hope to do these at the School of Law. Indeed, the 1969-1971 alums asked why we had not brought them back to campus, “to visit the old place.” We plan to start doing that, and soon!

The complexity of and difference in rules for accommodations for those with disabilities in various settings is confusing, Professor Rothstein says.
Exploring the rules of animal accommodations in public spaces

My colleague Laura Rothstein, Distinguished University Scholar and Professor of Law, is an expert on disability law, among other things. This expertise has led her to work recently on questions involving the extent to which animals are welcome in public places. Her guest blog entry below lays out some of the issues. Be sure to read to the end — so that you enjoy the photo of Skip!

Professor Laura Rothstein
Professor Laura Rothstein

Although the United States is a pet-loving country, American culture (unlike Europe, where small dogs are seen in many public places) has historically not supported having these guests in most public places. The exception was the traditional “seeing eye” dog — the German Shepherd or the Lab. The desire to bring our four-legged and two-legged friends (and even no-legged snakes) to public places, however, has increased dramatically in recent years. Recent news stories report about turkeys on planes, parrots in backpacks and kangaroos at McDonald’s. Which of these animals is legally permitted as an accommodation for an individual with a disability?  

This issue was the topic of my most recent publication (which also has the longest title of anything I’ve ever written): Puppies, Ponies, Pigs, and Parrots:  Policies, Practices and Procedures in Pubs, Pads, Planes and Professions:  Where We Live, Work, and Play, and How We Get There:  Animal Accommodations in Public Places, Housing, Employment and Transportation, 23 Animal L.13 (2018)

The article is one of several in a symposium issue that resulted from a panel at the annual Association of American Law Schools conference in January 2017.

The complexity of and difference in rules for accommodations for those with disabilities in various settings is confusing. The increasing presence of the Noah’s Ark of creatures in public places and other settings, however, requires that airports, hotels, restaurants, college campuses, employers, hospitals, landlords and courthouses prepare those on the front lines about what to do when someone shows up with an animal. A Supreme Court case even addressed this issue in the context of a 13-year old girl seeking to bring Wonder, her service dog, into a public school to assist her with mobility issues and to facilitate independence.  

Several federal laws apply — the Americans with Disabilities Act, the Fair Housing Act, the Rehabilitation Act, the Air Carrier Access Act, and the Individuals with Disabilities Education Act. The application of these laws varies depending on whether the animal accommodation is requested for an employment, housing, transportation, public service or public accommodation setting. It can be particularly complicated when a setting such as a college campus is involved with students, staff and faculty and visitors who go to class, attend football games, live in fraternity and sorority houses and eat in food courts on campus.  

The confusion on college campuses can be illustrated by considering whether and where Elle Woods (from the movie Legally Blond) could bring Bruiser, her famed Chihuahua. In the movie, she starts out at a public university in California where she lives in a sorority house (might be private club exception under ADA). She then moves to attend Harvard Law School (a private university) and lives in campus housing. She works as a research assistant for a professor, at a firm, and goes to court. She goes to a beauty salon and spends time on campus and at the local park. What if she went to a sports event on campus?  

So in which settings would Bruiser be allowed? The question was never an issue in the movie, but it highlights the many locations where it could be an issue. Answering that question would require a determination of whether Elle had a disability, what documentation she would be required to present about her disability and about Bruiser’s training or certification, whether Bruiser was a service dog or an emotional support animal, and whether the particular setting was covered by one of the relevant federal statutes or even a local or state law. Even if Bruiser were eligible for the setting, he could be removed if he was not under control or harmed or disturbed others. What if others were allergic or had phobias?  

Health care settings have other sets of concerns relating to health issues. The presence of a dog in a waiting room presents different concerns than bringing it to a delivery room or allowing it to remain in the hospital room with a patient. Airline travel is also particularly challenging because different statutes apply to the flight service than apply to the airport facilities themselves.  

The article explores the specific requirements under federal statutes and in the various settings. It also sets out some areas that would benefit from attention. What makes animal accommodations particularly unique is that they are one of the few accommodations that might require another individual (not just an entity) to accommodate the disability. 

Skip the dog
Professor Rothstein's dog, Skip

This is increasingly being highlighted in situations where others have phobias or allergies, with little federal guidance about how to resolve the tensions between the individual needs. The article also makes clear how important it is for those on the front line in various settings to be trained about what questions are permissible to ask the person with an animal. 

Disability accommodation with support or service animals is an issue of great current interest to many of the conference attendees where I speak, particularly college and university administrators. I also enjoy discussing this issue in my property and torts classes, where they learn that not all dogs get one bite!  

My dog, Skip (a rescue dog), provided emotional support while I wrote the article on this topic.

Professor Justin Walker, former clerk for Brett Kavanaugh, praises the judge's 'exemplary character'
Guest blog: Reflections on Judge Brett Kavanaugh

My colleague Justin Walker recently blogged about his admiration for and time spent clerking with retiring Supreme Court Justice Anthony M. Kennedy. Days later, the news broke that the president was nominating Judge Brett Kavanaugh, of the District of Columbia Court of Appeals, to fill Justice Kennedy’s seat. Because Professor Walker also clerked for Judge Kavanaugh, he became something of a media star, doing more than 75 radio, television and print interviews in a little over a week. I wanted to take this opportunity to allow Professor Walker to share some personal reflections on Judge Kavanaugh. Here they are:

Justin Walker
Justin Walker

When Justice Anthony Kennedy announced his retirement, speculation about his replacement quickly swirled. The president was reportedly considering a handful of judges, including his future nominee, Brett Kavanaugh. Since I clerked for Judge Kavanaugh and Justice Kennedy, I began to write and speak about both. Here are a few thoughts on that process, and on Judge Kavanaugh.

My summers tend to be quite quiet and solitary. But a couple Thursdays ago, I paused my summer research, pulled up Skype on my laptop, and sat for an interview with a local news station in New York. The journalist was a former college classmate, and the interview was so unexpected that I had to borrow a collared shirt from a friend whose house I was working at.  

Even more unexpected was that over the next two-plus weeks, I’d do about 75 more television, radio, and print interviews. Over one particular 30-hour period, I found myself on CNN, MSNBC, Fox News (twice), Fox Business (three times), Bloomberg TV, WHAS, and Mitch Albom’s radio show. That final one was a particular treat for me because as a kid, I used to watch Albom on ESPN, and I listened to his tear-jerker Tuesdays with Morrie on a road trip with my mom.  

In many of these media interviews, I emphasized that Judge Kavanaugh is exceptionally qualified. With 12 years on the second-most-important court in the country, 300 opinions, and an unparalleled 13 vindications by the Supreme Court, Kavanaugh’s credentials are, to put it mildly, strong. The day after his nomination, a front-page USA Today article began, “On paper, Brett Michael Kavanaugh may be the most qualified Supreme Court nominee in generations.”  

In addition, I’ve also talked to the media about Kavanaugh’s character, and I’m not alone there. Several critics have written columns saying they’re tired of hearing from all of Kavanaugh’s supporters about how he coaches his young daughters’ basketball teams, serves meals to the homeless, and thinks of his trailblazing mom — a teacher, turned prosecutor, turned state judge — as the real “Judge Kavanaugh.” Who cares, they say, that Brett Kavanaugh’s a nice guy?

Those critics have prompted me to reflect on why I’ve spent so much time talking about Judge Kavanaugh’s character.  

First, and perhaps most simply, I’ve talked about his character because nothing else about him has mattered more to my life and my career. To his former clerks, the judge is a mentor, an advocate, and a friend. His decade of supporting me through thick and thin is what first comes to mind when I think of him, rather than, for example, whether he believes courts tend to be overly deferential to administrative agencies (he does) or whether judges should be faithful to judicial precedents (yes on that one too). As another former clerk, Amit Agarwal, wrote: 

“It has been 11 years since I left the judge’s chambers, and . . . I still call him for guidance whenever I have to make an important decision. His response is always the same: He listens carefully, offers his own view, and then asks a simple but extraordinarily generous question: ‘How can I help?’ I can count on one hand the number of people in my life who regularly ask me that question and mean it. It is astonishing to me that one of them is a former boss who also happens to be one of the most distinguished judges in the country.”

Judge Brett Kavanaugh
Judge Brett Kavanaugh

Second, the framers believed character mattered. Not to go all law-nerd on you here, but when referring to the Senate’s “Advice and Consent” function, Hamilton’s Federalist 76 talked about qualifications and character — and only qualifications and character — when it said the Senate will “prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Since Judge Kavanaugh’s qualifications are self-evident, I’ve tried to share with viewers and readers my insights about his character.

Third, my point about Kavanaugh’s character goes beyond “he’s a nice guy.” Take, for example, his approach to hiring law clerks. Because he hires left, right, and center, his clerks have gone on to work for liberal, conservative, and moderate justices, including Justices Kagan, Sotomayor, and Breyer. As Professor Amy Chua of Yale wrote:

“Many judges use ideological tests in hiring clerks. Judge Kavanaugh could not be more different. While his top consideration when hiring is excellence — top-of-the-class grades, intellectual rigor — he actively seeks out clerks from across the ideological spectrum who will question and disagree with him. He wants to hear other perspectives before deciding a case. Above all, he believes in the law and wants to figure out, without prejudging, what it requires.”

This suggests Kavanaugh values independence and fair-mindedness in his approach to his job as a judge. We can learn something about the kind of justice he will be from the kind of employer he has been.

Take another example related to clerk hiring: more than half his clerks have been women, and more than a quarter have been diverse. Taken alone, that statistic doesn’t tell us much. But his female clerks eloquently expanded on this in a letter to the Senate Judiciary Committee:

“We know all too well that women in the workplace still face challenges, inequality, and even harassment. Among other things, women do not enjoy a representative share of prestigious clerkships or high-profile legal positions. But this Committee, and the American public more broadly, should be aware of the important work Judge Kavanaugh has done to remedy those disparities. In our view, the Judge has been one of the strongest advocates in the federal judiciary for women lawyers.”
One of Judge Kavanaugh’s former clerks, Caroline Van Zile, recently wrote about this from a personal perspective:

“In a profession that often feels overwhelmingly male, the judge has been a champion for women. The vast majority of women who clerked for the judge have gone on to secure prestigious Supreme Court clerkships. They have also worked in all three branches of government. Every time I have faced a career decision, the judge has been there for me, willing to write a letter, make a phone call or just talk things through.”

I’m new to talking to the media, and cable news interviews usually last only a few minutes. Nevertheless, in hindsight, when I’ve done media interviews about Judge Kavanaugh, I wish I had been more precise about why I think his character matters and why his personal qualities speak to values that matter in a judge. I’m grateful to Dean Crawford for the opportunity to begin to do that here.

See a compilation of Walker's media appearances.

Professor Justin Walker, former clerk for Justice Kennedy, shares what he admires about the retiring justice.
Guest blog: Reflections on Justice Anthony Kennedy

My colleague Professor Justin Walker clerked for Justice Anthony Kennedy from 2011-2012, and, in my time as Dean and getting to know Justin, it is clear that the Justice remains a major influence on him — not just for his intelligence and ability, but for the values he embodies. As a result, I was delighted that Justin agreed to offer some reflections on Justice Kennedy, the man. I am pleased to share this revealing look at what made Justice Kennedy such a special member of the Court.

Justice Anthony Kennedy and Justin Walker
Justice Anthony Kennedy and Justin Walker. Walker clerked for Justice Kennedy from 2011-2012.

On the Supreme Court of the United States, the center of gravity shifts with time. The pendulum swings back and forth. The cycle spins on.

But men like Justice Anthony Kennedy don’t just come and go. He symbolized something fundamental to our nation’s great experiment with democracy. Something precious. Something that is vanishing.

That something is civility. Sure, he took tough stands. But he never met venom with venom. When possible, he gave his critics the benefit of the doubt. The Chief means well, he would say. Nino is just being Nino.

As we turn the judiciary into another tribal battlefield, this approach — to life and to the law — is at risk. And that’s why I do not look forward to the coming fight to replace Justice Kennedy. The rhetoric and viciousness will be unprecedented because the stakes are unprecedented. And lost in the middle will be the civility that Justice Kennedy brought to every aspect of a career spent championing the better angels of our nature.

This is not to say I agree with every opinion Justice Kennedy wrote. But I love Justice Kennedy. I loved working for him. I loved learning from him. I loved his intellectual curiosity. I loved his devotion to his adoring children and wife of 55 years. And I loved his life-long love affair with the law.

A few stories that came to mind when I heard the news that he was leaving:


About midway through my year clerking for Justice Kennedy, I arrived at 7 in the morning to deliver some bad news. At his request, I had been driving his car with my wife (long story). It had been clipped by a taxi. The damage to the car was not major. But I worried the damage to my reputation would be harder to fix. I’d dreamed for years of clerking on the Supreme Court. Now was I going to be known forever by the Justice as “that clerk who wrecked my car”?

I should have known better. Don’t worry about it, he said with a smile. It’s just a car. That’s what insurance is for. He was more concerned about my worrying than he was about the car.


At the end of that term, Justice Kennedy dissented in a major case, and he knew I’d want to see his dissent from the bench firsthand. “I’ll take care of it,” he said. I kept helping him with his statement’s final edits until long after all the clerks’ seats were taken. That’s when I arrived in the courtroom and saw the seat he’d reserved for me — in his family box, next to Mrs. Kennedy.


I once heard an unverified story from previous clerks about how Justice Kennedy created a reading list partly in response to the Arab Spring. The long list was a primer on freedom. And its audience was anyone who wanted to learn more about individual liberty, the rule of law and the values that make a democracy endure. The reading list is now online, intended as a guide for young people on freedom and democracy.  

Although the list’s origins may have had nothing to do with the Arab Spring, I like to imagine Justice Kennedy reading about a young fruit seller in Tunisia, who was marching in the streets, opposing autocracy and looking to build a better world. And what does that fruit seller need? Among other things, a reading list! 

If that’s what Justice Kennedy thought, his insight was right. But more than that, it was exceptionally idealistic. How beautiful that after three decades in our cynical capital, and in an era of shouting pundits and shock-talk DJs, Justice Kennedy thought part of the answer to global crises should be found in the words of Shakespeare, Jefferson, and Lincoln — as well as dozens more thinkers, and a few of his favorite movies (including Legally Blonde).  


At the end of the musical Man of La Mancha, on his deathbed, Don Quixote dies while reimagining that he is a knight errand fighting for virtue and justice. But in the original novel, it’s Quixote’s realization that he isn’t a knight that kills him. It breaks his heart.  

Justice Kennedy never tilted after windmills.  And his calling — the law, in all its complex majesty — was different than Quixote’s. But he was like the aspiring knight in this way: If Justice Kennedy had not been able to fulfill his calling, it would have broken his heart.  

It’s fortunate for him that he spent his life in the service of that most noble of callings.

And for those of us lucky to work for him and learn from him, it’s fortunate for us as well. 

I hope Justice Kennedy is looking forward to this next chapter of his life. I know he will bring to it the same civility and idealism he brought to each one that preceded it.