Thursday, November 12, 2926
1775 General Washington forbade recruiting officers from enlisting black troops
1933 Nazis received 92% of the vote in German parliamentary elections
1938 Hermann Goering announced he wanted Madagascar as a Jewish homeland
1948 Japanese Prime Minister Hideki Tojo was sentenced to death for war crimes
1960 A Military coup against the Republic of Vietnam's President Ngô Đình Diệm failed
2024 Donald Trump appointed Elon Musk and Vivek Ramaswami as heads of the newly created Department of Government Efficiency
2025 The United States Mint struck its last penny for circulation, though it will remain legal tender. There were still an estimated 300 billion pennies in circulation, according to the Treasury
2025 A bill passed Congress and was signed by President Donald Trump, ending the longest government shutdown in American history at 43 days
In bed at 8(?), up at 5:45; 0600 204.2 118/74/70 121; 36/19/43/35, cold and windy day, 18 mph w/ gusts of 31 mph.
Morning meds at a.m. Entresto at 6:30 a.m. and p.m.
Dental problems. I had a meatloaf sandwich on sourdough bread and dark, kettle potato chips for dinner last night. The chips were thick and dense enough to break the temporary crown on my lower left back molar. I'm scheduled to have the permanent crown installed tomorrow at 2:30. The broken temporary crown is sharp and jagged, and of course my tongue drifts toward it regularly. Also, what remains of the temp is loose and no longer securely adhered. My dentist is on the clinical faculty at the Marquette Dental School, and I think she works at the Dental School clinic on Thursdays, so she's probably unavailable today. Looks like I will be eating Malt-O-Meal, eggs, and mashed potatoes between now and tomorrow afternoon, though I'll call her office and leave a message. Fingers crossed.
Murdering shipwrecked sailors. Some time ago, we learned that on September 2, 2025, American military forces killed two sailors who had survived a missile attack on their boat, which was allegedly carrying drugs, illegal for consumer use in the US. Doing that is a war crime; it is illegal, even under maritime law, under which even shipwrecked pirates deserve rescue. News reports at the time said the DOD Secretary Pete Hegseth gave the oral order: "Kill them all." Hegseth denied it and placed full responsibility for the strike on a Navy admiral in charge of the operation. The government also put out the story that the two survivors were radioing for help that could have attracted hostile armed vessels to the fray. Yesterday, Admiral Frank Bradley, who was in charge of the Joint Special Operations Command, said that was false, that the men were not radioing for help. They were helpless on the open sea, clinging to the wreckage of their boat, trying to save themselves from drowning. There were also reports that the admiral and others discussed for 41 minutes what to do about the two survivors before the order was given to kill them, and that they received legal advice that the second strike on the boat and the survivors was legal.This "incident", which to me is a case of murder, was one of Congressman Massie's grounds for impeachment ofPete Hegseth. I hope that at least that article will be refiled when the Dems take control of the House in January. I'd like to hear the testimony of the JAG who opined that the order was legal. I suspect there will be ample grounds to support the conclusion, because, as I used to tell our law clerks, "nothing's simple, nothing's cheap" in the law. Law is squishy. Nonetheless, on many matters, we know "in our bones" whether an act is right or wrong. Consciences are not as squishy as the law is, as words are. Everything about these strikes on so-called "narcotrafficers" in the Caribbean and eastern Pacific fails the 'smell test.' The political justifications are what we used to call, back in Vietnam, happy horseshit. One guy's opinion.
Judge Richard Posner has died at age 87. Although I can't recall the particulars, I remember walking behind him on a street in Madison one day when he was sitting on a 3-judge panel. The man was incredibly smart, a polymath. He was appointed to the 7th Circuit by Ronald Reagan and was very conservative, though not in traditional ways. What I found most interesting in the NYTimes story about his death was this:
In later years, he drifted left, issuing opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation that were markedly liberal.
It made me wonder whether he got smarter in old age, or just squishier.
The Times story also reveals how squishy the law is.
Judge Posner called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said in a 2017 interview. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
Asked in 2017 by The New York Times about his many critics, Judge Posner said they fell into two camps.
Some, he said, simply have a different view of the proper role of the judge. “There is a very strong formalist tradition in the law,” he said, summarizing it as: “Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.A lot of the people who say that are sincere,” he said. “That’s their conception of law. That’s fine.”
He said he had less sympathy for the second camp. “There are others who are just, you know, reactionary beasts,” he said. “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.”
He reminds me of lines I quoted in an article I wrote a million years ago in the Marquette Law Review from Ivan Klima's Judge on Trial:
the opportunity to study and reflect on law offered the greatest satisfaction while the requirement to implement it was the saddest or most painful fate that could befall one. The practice of law led either to cynicism or madness. We could see examples of the former all around us, and as for the latter, suffice it to recall Kafka, who, though few realised it, was a Prague lawyer.
I am one of the cynical crowd. Kafka's The Trial reflected, in advance, what is happening now under the Trump adminsistration.

















