Wednesday, January 23, 2019

Michael Flynn ∩ Enes Kanter = Erdoğan

by Diane Klein

Enes Kanter is afraid for his life.  And not because he might be fouled by Vince Carter or Dirk Nowitzki. The Turkish NBA player, until recently best known to Americans primarily as a double-double machine for the New York Knicks, stayed in the U.S. last week while his team traveled to London, because he was not confident his security could be assured.  What has put him at risk is his criticism of the current president of his home country, Recep Tayyip Erdogan, "a dictator in all but name," who is now seeking Kanter's arrest and extradition due to the player's association with the man Erdogan blames for the failed July 15, 2016, military coup attempt against him, his former ally, Fethullah Gulen.

Kanter's ties to Gulen are real; the athlete says he was with Gulen on the night of July 15, 2016, and he is a supporter of Gulen, though it has estranged him from his family in Turkey. However, the precise role of Gulen (a legal permanent resident in the U.S. now living in Pennsylvania), or his followers, in the coup attempt in Turkey, is hotly contested.  As was widely reported at the time, "Gulen has been blamed by the Turkish government for orchestrating a failed military coup against Erdogan's government," and Al-Jazeera lays the coup squarely at the feet of "Gulenists," members of Gulen's "Hizmet" movement.  Some EU sources disagree.  What is not disputed is the Erdogan regime's desire to have its revenge on Gulen - or the lengths to which they are willing to go, to have it.

Tuesday, January 22, 2019

How Unforgivable Are the Democratic Candidates' Various Mistakes?

by Neil H. Buchanan

As Donald Trump continues to prove his unfitness for office -- indeed, as he continues to demonstrate his complete lack of empathy for anyone who doe not support him (or even for millions who do) -- the Democrats are now launching their 18-month marathon to determine who will replace Putin's puppet.  Things are already rather interesting.

Earlier this month, Professor Dorf wrote a column discussing the flurry of media coverage about a whisper campaign designed to sink Senator Elizabeth Warren's candidacy.  The idea is that Warren is supposedly not "likable," or something, and the people who want to bring Warren down are saying that she has all of the personality issues that supposedly were Hillary Clinton's undoing.

Dorf's question was whether a person who does not buy into the obviously sexist basis for that argument can responsibly take others' sexism into account when deciding who should be the Democratic nominee next year.  Drawing from a Supreme Court case called Palmore, which described a situation in which we can and should refuse to validate (that is, to be complicit in) others' biases, Dorf argued that there are nonetheless times when the consequences of ignoring those biases are simply too serious to ignore.

The possibility of giving Trump a second term in office is one such unacceptable consequence.  He concludes: "Trump is an existential threat to American democracy, world peace, and the habitability of planet Earth. Even a small diminution in the likelihood of defeating him in 2020 is too high a price to pay for compliance with the Palmore principle."

I thus begin here by emphasizing that any Democrat (in fact, almost anyone at all) would be better than Trump, which means that none of my forthcoming criticisms of the Democratic candidates is serious enough to move us -- for Palmore-style reasons or any others -- to say that any of those candidates is fatally flawed.

I do, however, want to ask whether the inevitable scrutiny of the candidates can turn up issues so worrying as to be essentially disqualifying (again, assuming that the alternative is another Democrat, not Trump -- or Pence).  So far, much to my surprise, there is only one candidate who is in serious trouble on such grounds: Senator Kamala Harris.

Monday, January 21, 2019

Originalism and Deference: A response to Ilan Wurman

By Eric Segall

Professor Ilan Wurman of Arizona State has written a thoughtful and mostly fair review of my new book Originalism as Faith. I wanted to briefly respond because the one aspect of the review that I think muddies the waters also happens to be what I think is the major new contribution of my book.

Friday, January 18, 2019

McConnell's Usefully Bad Argument About Investing in Border Security

by Neil H. Buchanan

At some point, Senate Republicans will have to become involved in efforts to reopen the federal government.  Their majority leader, Mitch McConnell, has thus far blocked the Senate from voting on any of the funding bills that the House has sent its way.  Worse, he has simply refused even to try to do anything positive, sitting idly by while Trump's temper tantrum endangers millions of Americans' lives, threatens their financial well-being, and puts our futures at risk.

What does capture McConnell's attention?  Today's Washington Post includes an op-ed with McConnell listed as the author, and it is actually easy to believe that he wrote it himself.  After all, it is all about McConnell's lifelong commitment to rigging elections, and it is certainly written in his voice, including his oh-so-snarky labeling of a House bill "the Democrat Politician Protection Act."  Yes, even now, McConnell insists on using "Democrat" instead of "Democratic," which has long been part of Republicans' version of political correctness.  (For some reason, they think it quite clever to call things "Democrat shutdowns," "Democrat intransigence," and so on.  Go figure.)

The larger problem is that McConnell and his colleagues have simply given up on the idea of governing, lapsing into old habits and burbling talking points rather than engaging honestly on any issues.  Although McConnell does not emphasize budgetary issues, his op-ed does provide an opportunity to talk about Donald Trump's border wall obsession in terms of objective economic costs and benefits.  Unsurprisingly, the analysis does not look good for Trump.

Thursday, January 17, 2019

Can Dogs Invade Our Privacy?

by Sherry F. Colb

In my column for this week, I discuss a case from Minnesota that may make it to the U.S. Supreme Court. The case raises the question whether a dog sniff of a private resident's door constitutes a "search" for purposes of the Fourth Amendment bar on unreasonable searches and seizures. The Minnesota Supreme Court held that the answer was "no" and that police therefore needed no warrant, probable cause, or other indices of reasonableness for having brought the drug-sniffing dog to detect narcotics in the house from outside of the house.

The answer to the question may turn on how the Court defines a "search." The Katz v. United States  definition (really the Harlan concurrence's definition) is the invasion of a reasonable expectation of privacy. The more recent (though also more ancient) definition has to do with the invasion of property, of "persons, houses, papers, and effects," rather than an inquiry about privacy and the expectations that people do and ought to be able to hold. We could answer both questions the same way, to be sure, but one might head in different directions depending on which question one selected as critical. Should people be able to expect privacy from K9 police detecting drugs in their homes? Does the use of K9s interfere with a person's enjoyment of his property rights in his home?

Wednesday, January 16, 2019

Why Professor Hemel is Wrong About Life Tenure for SCOTUS

By Eric Segall

Professor Daniel Hemel of the University of Chicago has written a thoughtful essay in Politico on why allowing Supreme Court Justices to serve for life, while raising some problems, is not as bad as the two potential cures that I and many other scholars have advocated (term limits or a mandatory retirement age). Although Hemel raises some strong arguments, they are not ultimately persuasive.

A Second Brexit Referendum Would Not Be Undemocratic

by Michael C. Dorf

Now that Parliament has resoundingly rejected the Brexit deal that PM May negotiated with the EU, a replacement deal seems highly unlikely. EU authorities could make some token concessions or give some nice-sounding reassurances, but the margin of defeat strongly indicates that nothing to which the EU could reasonably agree would come close to satisfying the coalition of (mostly Tory) Brexiteers and (mostly Labour) Remainers who voted no yesterday. Other than another vote on more or less the same deal with what most observers expect would be more or less the same outcome, that leaves two main options: (1) crash out of the EU without a deal, a chaotic process that would have very harmful economic consequences and potentially harmful political consequences at the Ireland/Northern Ireland border and/or elsewhere; or (2) remain in the EU after all. Here I want to explore option (2).

One way for the UK to remain in the EU would be for Parliament to simply ignore the result of the 2016 referendum. The UK was under no obligation to hold a Brexit referendum in the first place. When Parliament authorized such a referendum in 2015, it did not commit to abiding by the result. And even if the 2015 Act had so committed, the commitment could not bind a later Parliament, which could simply override it. Why is no one talking about this possibility? Presumably because everyone assumes that Parliament is either bound as an unofficial matter to follow through with Brexit, given the 2016 result, or because most people think that as a political matter, Parliament cannot unilaterally pull the plug on Brexit.

Accordingly, nearly all of the discussion of remaining after all assumes that there would be a second referendum. That brings me to a curious but surprisingly widespread argument one hears against a second referendum: that it would be undemocratic. Here I want to examine that argument. I'll conclude that despite some superficial appeal, it is unpersuasive.

Tuesday, January 15, 2019

Romney's Revealingly Empty Rebuke of Trump

by Neil H. Buchanan

It was never quite clear why Mitt Romney, the Republicans' failed 2012 presidential nominee, decided to run for the U.S. Senate.  He is turning 72 in March, he has no particular policy interests that seem to motivate him, and he was signing up for a job that often comes with almost no power or responsibility.

True, he knew that he could win easily (running in his current home state of Utah), but even that required some humiliating suck-up time to get Republican voters to forgive him for saying nasty things about Donald Trump in 2016.  Why take the job at all?

Fifteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Neal Katyal and Bill Barr)

by Diane Klein

Today, confirmation hearings begin for William Pelham Barr as U.S. Attorney General, a position he held from 1991-1993 under George H.W. Bush.  Top of mind among Senators are Barr's statements about the Mueller investigation contained in an unsolicited 20-page memo he wrote in June 2018.  To the extent those statements tell us something about his views of the powers and duties of the special counsel, and the relationship between the Justice Department and the Special Counsel, it might be worth consulting the drafter of those regulations - Neal Katyal, who served that role as a 29-year old new lawyer in 1999 working for Janet Reno (and later served as acting Solicitor General under Obama).