O’Hear to Chair the Federal Nominating Commission

Since 1979, Wisconsin’s senators have used some form of what they term a “Federal Nominating Commission” to recommend individuals for vacant federal judgeships and U.S. Attorney’s positions. (One can see the current charter from the senators here.) Whether this approach is good public policy is a worthy question, but not my topic here.

Rather, I wish to make an observation concerning leadership of the Federal Nominating Commission: Where there is a vacancy, the charter calls for the dean of the law school in the federal judicial district (Marquette in the Eastern District and the UW-Madison in the Western District) or his designee to chair the commission. I have thus chaired the commission on occasions in the past.

With respect to the current vacancy in the U.S. Attorney’s position in the Eastern District, occasioned by the departure of Steve Biskupic, L’87, for private practice, I this week exercised my option to delegate my responsibilities. This occurs from time to time (e.g., the late Dean Howard B. Eisenberg tapped our colleague, Professor Peter K. Rofes, on one occasion in the 1990s, and a similar thing has occurred on occasion in the Western District).

Specifically, I have turned to my colleague, Michael M. O’Hear, Professor of Law, Associate Dean for Research, and (least relevantly) managing editor of this blog. My principal reason, besides other demands on my attention, is my belief that Professor O’Hear — a leading legal academic in the area of criminal sentencing — is unusually well qualified to help guide this search.

I hope that Professor O’Hear will consider using this blog as one of the means of disseminating information about the Federal Nominating Commission’s important undertakings. In all events, the commission’s recommendation of four to six individuals to serve as the U.S. Attorney in Milwaukee is due to the senators under the charter near the end of March.

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Chief Flynn Discusses “Issues”

Mike Gousha and Police Chief Ed FlynnMike Gousha began his spring-semester series of conversations “On the Issues” by hosting Milwaukee Police Chief Ed Flynn, who had come to the Law School last January within weeks of starting as chief and thus has a year under his belt (in addition to his substantial experience elsewhere). Anyone who has never heard Flynn speak is missing a treat: he is smart, extraordinarily well-spoken, and witty. A podcast of the interview, which includes as usual with Gousha questions from the audience, is available here and is well worth a listen.

Perhaps the most striking part, for me, was Flynn’s description (at about the 30-minute mark) of how bad police drag good police down:

And I’m not minimizing or mitigating when I say, “Show me a hospital-ful of doctors, and I’ll show the white-coat wall of silence. Show me a roomful of attorneys, and I will show you the pinstripe wall of silence. Show me a roomful of police officers, and if we’re not thoughtful about it, we will have the blue wall of silence.”

Because the devil’s bargain becomes this—and trust me, this is the truth—the overwhelming majority of your police officers come into the job with notions of moral clarity, and they want to protect the good guys from the bad guys. They function in a world that is far more ambiguous than they thought. And they have to make the kinds of decisions which the order book doesn’t cover and the general orders don’t cover, but they live in a rule-based environment. They know they’re expected to do something, and they do things—and most of the time they’re within a margin of error of right. Sometimes they’re wrong—their colleagues know it. Sadly, over the course of the years, if you’re not careful, if you don’t have adult discussions about it, the devil’s bargain is this: The good cop who screws up makes the devil’s bargain with the cop who’s a thief or a brute, where neither one of them says anything. And that’s where you don’t want to get.

Flynn then proceeds to describe how in his estimation anyone who wishes to change this police subculture has to look upon the general police culture with a basic degree of empathy. Other aspects of the interview included Gousha’s asking Flynn to compare Milwaukee’s drop in violent crime over the past year with Chicago’s rise in the same.

To the list of adjectives that I earlier used in describing Flynn, I should add another. He seems loyal as well: he never misses the opportunity, even while appearing at this Jesuit institution, to credit the Christian Brothers, whose institutions he attended for both high school and college.

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The Company You Keep

Today I circulated my beginning-of-semester letter to students. I note it here because it gives me an opportunity to answer the question of the month (the month, admittedly, being this past November). That question was, “Who was your favorite law professor?” From the first post (by our Professor Papke concerning his Professor Bork) and throughout (including several posts by Marquette lawyers on some of our predecessors on the faculty), the conversation was rich and offered much to admire even secondhand.

I contributed only comments not posts, but take this opportunity now. I do it while exercising my prerogative (firmly established by Professors Murray and Morse) to redefine the question: appreciating, not just professors, but those from whom we learned in law school.

For my point, as I note in today’s letter to students, is how much I learned in law school from my fellow students. This was especially true of my closest friend in law school, now a partner in a West Coast law firm, but an accurate statement concerning numerous other friends and associates as well. Sometimes I learned legal doctrine, and other times it was more about different things, such as habits, that are not much less important in law and life. This learning occurred in study groups, during upper-level moot court, on a law journal, and in many other contexts.

I note this here, as we begin the semester, in order to encourage students to take this truth into account as they go about their activities this semester: time spent with fellows concerning the law—not just communing with one’s laptop, but in actual and intelligent conversation with other students—can be among the most valuable investments in your legal education. Truly was it for me.

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