I am not going to pore over the exit polls and election results. You can read plenty of that analysis elsewhere. Instead, I’ve taken a few days to step back and observe. My goal was to get a 30,000-feet view of what happened and where we go from here, as a country generally, and as liberals in particular. The view is still murky, but a few themes have emerged.

The Outsiders

Amongst my liberal friends, two general camps have emerged, with some overlap between the two. One group, the #NotMyPresident camp, are the ones you see out in the street on the news. They are taking the principled position that we should not legitimize a candidate for office who gets there the way Donald Trump did, with lies and hate. This is a perfectly legitimate position. The most visible member of this group is Michael Moore.

The Unifiers

On the other side is the #Unite camp, made up of more moderate Democrats, urged reconciliation and acceptance from the start. Not much needs to be said about this group. Secretary Clinton and President Obama are part of this camp.

The Pragmatists

The overlapping group, the pragmatic #RespectTheOffice camp, do not like Trump and are just as upset as the first group, but they will still accept the result. They will also work with the Trump Administration on issues where there is common ground, and will oppose him on everything else. This approach runs the risk of giving the Trump Administration political victories and capital that can be used for less savory efforts. Sens. Bernie Sanders and Elizabeth Warren have embraced this approach.

I don’t know which group is correct. I see my friends falling into these categories. None of them are wrong.

As a pragmatist, mediator and firm believer in consensus-building, and as someone more comfortable working within institutions than assailing them from the outside, the pragmatic engagement approach is an easy fit. My family is traditionally Methodist. I’m not. I don’t have much use for organized religion and I don’t particularly know much about Methodism, but I have always liked this saying, often improperly attributed to John Wesley:

Do all the good you can, by all the means you can, in all the ways you can, in all the places you can, at all the times you can, to all the people you can, as long as ever you can.

Imagine my surprise to hear this in Hillary Clinton’s DNC acceptance speech!

What do we do going forward?

Several good ideas have emerged, including these from Michael Moore, Bernie Sanders, and Elizabeth Warren.

Michael Moore:

Sen. Bernie Sanders (D-VT):

To the degree that Mr. Trump is serious about pursuing policies that improve the lives of working families in this country, I and other progressives are prepared to work with him. To the degree that he pursues racist, sexist, xenophobic and anti-environment policies, we will vigorously oppose him.

Sen. Elizabeth Warren (D-MA):

So let me be 100% clear about this. When President-Elect Trump wants to take on these issues, when his goal is to increase the economic security of middle class families, then count me in. I will put aside our differences and I will work with him to accomplish that goal. I offer to work as hard as I can and to pull as many people as I can into this effort. If Trump is ready to go on rebuilding economic security for millions of Americans, so am I and so are a lot of other people — Democrats and Republicans.

As I write this a week out from the election, I don’t have any answers. Right now, it is probably enough to know that we will all have to make politics a much more central part of our lives. This time it is personal!

Writing at The Intercept last week, Jon Schwarz laid out a positive plan for the coming struggle:

  1. If you can, make politics one of the centers of your life.
  2. White liberals must step up right now in the right way.
  3. We need a story.
  4. We don’t need a third party, we just need a party.
  5. We need non-corporate media.
  6. Be not downhearted.
  7. Barack Obama gets one day off.
  8. Be good to yourself and everyone else.

I think I can get behind all of those. Are you in?


*I’m a liberal. You probably are, too. Sure, the term “progressive” gets lots of play and is the hot new thing, and the L-word has been much maligned by the now-moribund conservative movement, but I’m not going to let someone else define my terms for me. I’m a liberal, I believe in liberal ideals and programs, and I’m going to own it.

Or, Demographics Are Not Your Friend

The Emerging Democratic Majority

The optimism of youth …

Democrats have been predicting a demographic victory for seven election cycles now, since Judis and Teixeira’s “The Emerging Democratic Majority” came out in the wake of the 2002 midterms. We assumed a number of facts not in evidence: that these new citizens would vote, and that they would vote for Democratic candidates; that the traditional Democratic base would hold strong; and that we had the better ideas. We counted on voters’ support, but did little to earn it. Poor engagement, coupled with our abject failure to also engage with the concerns of White, working class voters, explains much of this loss. We also know that there was a significant enthusiasm gap between the two candidates. Finally, we know that a significant number of voters rejected Clinton but voted for Democrats down-ballot.1 The results show that every state with a US Senate seat up for election went to the same party that particular state picked for President.

The time may come when the Democratic party can rely on demography to carry the day. Too many of us thought we were there already.


I’m going to need a few days to deal with this. I may pop up on Facebook this weekend, but I need to take some time. Let’s get together soon and figure out how we move forward.

Elections aren’t endings; they are beginnings. That gives me a glimmer of hope.

Love to you all.


strawhatOn Tuesday, Pennsylvania voters will be asked to decide whether to amend the Constitution of the Commonwealth. The Pennsylvania Judicial Retirement Age Amendment (2016) ballot question will be worded thusly:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?

It is deceptively straightforward. If you don’t know any better, you might assume judges are never required to retire, as is the case in the Federal courts. You would be incorrect. The Pennsylvania Constitution, Article V, Section 16(b), currently requires judges to retire at age 70. This amendment would raise the age to 75.

I am sympathetic to the proposal. As a litigator and trial lawyer, I have known several judges who were still excellent jurists at age 70, and who could have served for years into their seventies. By rights, I should be in favor of this idea. I am not.

On the substantive question: there’s nothing special about any particular judge. They are just men and women in robes. Some are better than others. When one retires, we elect another. If we choose wisely, we choose another wise person. Thus it is as with all things.

On the procedural issue: the process of putting the question on the ballot has been an embarrassment. In a state that has recently seen its Attorney General jailed as a Felon and perjurer; where several senior legislators have been removed from office for corruption; and where two Supreme Court Justices were forced to step down for ethical lapses involving lewd and racist emails, you would think we would be more sensitive to issues of process and transparency.

You would think that.

Treachery and subterfuge should not be rewarded. For this and many other reasons, I will vote NO on the Ballot Question. It fixes a problem we do not have.

Some election thoughts as we head into the final weekend before Election Day:

  1. The best GOTV tool Democrats have is for a Trump-is-surging narrative to take hold in the final weekend. My fear for weeks has been complacent Democrats and independents staying home because enough “someone elses” will vote. Democracy is not a spectator sport; think rugby.
  2. Local media here in the PA hinterlands are so pro-Trump it is gross. WTAJ-TV & CDT, I’m looking at you fools/tools. My Internet is full of these poorly written, thinly sources stories with breathless headlines. We all know your audience, and you pander so well, but would it kill you to Do Better at Journalism? (Actually, it probably would. I’ve seen your numbers…)
  3. Pearl-clutching because someone was mean to you on the Internet doesn’t win arguments. See the last sentence in #1, above.

That’s all I have for now. Feel free to follow me on Facebook. I’m told my public feed is “pretty great.”

Listen to Convincing John,
And all your troubles will be gone.
He’s gonna tell it, spell it, sell it,
Just for you.
I seem to have acquired a new (to me) laptop for little more than a song. I have no idea what I’ll do with it. It is certainly light!

Longtime readers will recall that every computer I’ve owned has been named after a Fraggle or other character from Fraggle Rock (our home wifi network is called “FraggleRock”). There’s been a Gobo, Mokey, Sprocket, Uncle Traveling Matt, Red, Cotterpin, Cantus, and now…

Meet “Convincing John,” an ASUS X205TA:


Named for the Fraggle who can convince anyone of anything:


Seems an appropriate name for an attorney’s computer.

I’m a sucker for good legal writing, and Apple’s response to the FBI is really good (pdf).

We did learn one interesting thing from Apple’s brief:

The general consensus had been that Apple had input in the drafting of the Ex Parte Order in order to focus on the legal, Constitutional, and liberty issues instead of getting bogged down in the technical details of implementing the order. It now appears that was not the case. As Apple’s counsel describe it in Footnote 22:

22 The government obtained the Order without notice to Apple and without allowing Apple an opportunity to be heard. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (recognizing that one of the "'fundamental requisite[s] of due process of law is the opportunity to be heard'") (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). But this was not a case where the government needed to proceed in secret to safeguard its investigation; indeed, Apple understands that the government alerted reporters before filing its ex parte application, and then, immediately after it was signed and confirmed to be on the docket, distributed the application and Order to the public at about the same time it notified Apple. Moreover, this is the only case in counsel's memory in which an FBI Director has blogged in real-time about pending litigation, suggesting that the government does not believe the data on the phone will yield critical evidence about other suspects. (Citations omitted.)

Assuming this timeline is accurate, the FBI is being as cynically political as we thought.

(Sometimes we forget that the FBI was founded as a political operation, and that it is only in recent times that its actual law enforcement activities have taken precedence over undermining the political enemies of the Powers that Be. But I digress.)

A problem many of my custody clients struggle with is what to do when the litigation is over. We’ve amassed volumes of material about the other side, fortified our own position with evidence, exhibits, and witnesses to show how we meet the needs of the children better than the other parent possibly could. And then it ends, either in a negotiated outcome of an order and decree from a judge. But it is over and time to get back to parenting.

Returning to peacetime is difficult. In almost all cases, the once-litigants are now called upon to co-parent. Where once they were guarded with information for fear of showing any weakness, they’re now expected to cooperate and be open with each other. To say this is a difficult transition is an understatement.

I firmly believe we should have our custody clients attend post-litigation counseling. We often hear about how traumatic divorce and custody litigation is on children, but it is just as harmful to the parents.

The parents who manage to leave the war behind are the ones who win the peace, and their children are better for it. But we aren’t concerned with that. Not as attorneys, not as judges, and not as the courts. We need to do better. The adversarial process is a terrible way to deal with raising children.

Apple may very well lose this thing. What will that look like for us?

Encryption2 is all around you. If you have ever used a credit card, online or off, you’ve benefitted from encryption. Does the FBI really want to compromise all commerce? Of course not.

Is the FBI staffed by idiots and buffoons? Probably not. But they also know what the legislation will look like when this is done. If they win this case, they will ask Congress to adopt the court’s decision as part of Federal law. If they lose, they’ll ask Congress to overturn the court with a new Federal law. Either way, that’s the end-game. This case is all about softening up the public with The Terraists.

I expect that new law will carve out an exception for certain activities. These will need to be licensed by the government, ignoring the gross anti-federalist overreach that will stretch the Commerce Clause to its theoretical limit.

Banks will be licensed for strong encryption. Friendly telecoms probably will. But end users? No way. The rest of us will get the broken version we currently have, or a Pro version where you have to agree to store your master key in a government-run escrow. In that case, see Footnote 1, above.

Using Strong Encryption will become a new Federal crime. It’ll be up there with Perjury and Obstruction of Justice. Get arrested for something and happen to have an iPhone with unlicensed/unregistered Strong Encryption? That’s a paddlin’.2

More thoughts later when I have time (including why Apple has to argue under the 1st Amendment and not the 4th).