Solum on Posner and the Descriptive/Normative Gap in Originalist Theory

By Eric Segall

After Dick Posner retired from the federal bench, I wrote on this blog that "there is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court." I also confessed that Dick and I are good friends so my objectivity was compromised. I was pleased, therefore, to read that Professor Lawrence Solum recently said the following about Posner:

I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time.

Professor Solum is, of course, one of our leading academic originalists, and the only law professor who testified in favor of originalism at the confirmation hearing of then-Judge Neil Gorusch. What is interesting about Solum's praise of Posner is that there is little doubt Posner was one of, if not the most, anti-originalist judges of his generation. His disdain for grand theory of any kind, especially textualism and originalism is, well, legendary. He once said the following at a conference where he was reviewing a book written by Solum's colleague Randy Barnett:

What would the framers of the [Fourth Amendment] have thought about [n]ational security surveillance of people’s emails? That is a meaningless question. It is not an interpretive question, it is a creative question. . . . The [Constitution] cannot resolve it . . . by thinking about the intentions, the notes of the constitutional convention, [or] other sources from the 18th century. This seems to be the standard problem for judges . . . . It is not interpretation, it is just trying to find . . . a solution to a question that has not been solved by the legislature.

In the same speech, Posner made clear that judges should veer away from or use justiciability 
doctrines to avoid even clear constitutional text if modern conditions so required. Given his anti-originalist, anti-textualist judicial preferences, it is interesting that a prominent originalist would praise Posner as the "greatest American judge of his time."

Why Not to Be an Originalist

by Michael C. Dorf

Tomorrow morning I'll be on a panel at the Federalist Society National Lawyers Convention, speaking on the topic "Why, or Why Not, Be an Originalist?." US Court of Appeals Judge Thomas Hardiman will moderate the panel, which also will include UVA Law Prof Sai Prakash, NYU Law Prof Rick Pildes, and US Court of Appeals Judge Amy Coney Barrett. Based on our planning conference call and the known priors of the panelists, it is very likely that Prakash and Barrett will offer reasons to be an originalist, while Pildes and I will offer reasons not to be an originalist.

Before proceeding to preview my remarks, I want to say a few words about Fed Soc. Recently, I have watched uneasily as some very prominent members have debased themselves by carrying water for Donald Trump in the apparent view that his nomination of conservatives to the federal bench justifies a kind of Faustian bargain. By the same token, I admire other conservatives with ties to Fed Soc who have recognized the threat that the current president poses to the Republic, even at the cost of being called "human scum."

Those points aside, I greatly respect Fed Soc's longstanding and genuine commitment to open debate. I am not a mere token liberal on tomorrow's panel. And that has generally been my experience with national Fed Soc events and when I am asked to offer a counterpoint to an invited speaker at a Cornell Fed Soc chapter event. (This was also true when I used to be asked to play that role at Columbia Fed Soc chapter events.)

Okay, so now onto the preview.

Job-Linked Benefits Revisited

by Michael C. Dorf

My latest Verdict column takes the recent election in Argentina as a point of departure to argue that everyone would be better off if we did not regard demotions as shameful. In that election, I note that Argentines elected a former President, Cristina Fernández de Kirchner, as their Vice President. Argentina has a two-consecutive-term limit on the Presidency but no lifetime term limit, so Kirchner may regard the Vice Presidency as a stepping stone back to the Presidency (in the same way that Vladimir Putin allowed Dmitri Medvedev to keep the President's chair warm for him while he cooled his heels as Prime Minister).

I explain that not every demotion offers a clear path back to the better job but that there will often be reasons why a "lesser" job is better than or at least as good as a more elevated one. That's the column in a nutshell, but interested readers should check it out for more details and examples.

Here I want to connect a point I make in the column to a recent Dorf on Law essay by Prof Buchanan. I note in the column that with a few exceptions, we no longer have an economy in which workers can expect to land a job with a single firm and then stick with that firm until retirement. Rather, millennials, Gen-Z, and subsequent generations (as well as Gen-Xers and Boomers still in the workforce) can expect to change firms and even lines of work with some frequency. In the column I say that this fact ought to make people less concerned about "demotions."

In addition and more tangibly, frequent job shifts also underscore a point made by Prof Buchanan last week: Our system of tying health insurance and retirement savings to particular employment makes no sense. I agree with that observation as a normative matter. But I want to try to explain as a causal matter why we nonetheless have the system we do.

Ad Hominem Attacks on Trump’s Critics and the Loss of Good-Faith Disagreement

by Neil H. Buchanan

I have heard labor lawyers use a term, "retroactive incompetence," to describe the phenomenon in which an employee with a stellar work record (usually including glowing annual performance reviews, multiple commendations, and so on) finds herself under attack by her bosses after she does something that the bosses dislike (files a sexual harassment complaint, sues for being passed over for a promotion in favor of a less qualified beneficiary of nepotism or sexism, blows the whistle on financial misdeeds or environmental crimes, and so on).

The "disgruntled former employee" at that point becomes the worst worker the company had ever been forced to deal with.  It becomes surprisingly easy to swat away all of those employee-of-the-year awards and letters of commendation by saying that the employee was so problematic that it was easier for everyone to tell her that she was (and to treat her like) a great employee than to tell her to stop being  -- and in this context, it is easy to predict what is coming next -- "such a b-word."

This defense ought actually to be deeply embarrassing, because the bosses -- who, if their company is publicly traded (as most are in cases that make the news), are holding out their company to investors and regulators as a responsibly managed organization that is worthy of being given fiduciary responsibilities -- was in fact so scared of one Nasty Woman (yet one who, presumably, nevertheless persisted) that they damaged the company rather than get rid of a cancer on the corporate culture.

As self-negating as that defense is, however, we see it over and over.  And it does contain a grain of believability in that people do know that some problematic people are tolerated nearly everywhere.  (TV sitcoms could barely exist without them.)  The real-world consequence is that we are left looking at matters of degree rather than categorical evidence.  People who perhaps were once praised by a boss are different from those who receive promotion after promotion and all-but-poetic reviews from their supervisors.  Even with the inevitable tough, borderline calls, there will still be clear cases where we can see that a person is being slimed ex post by people who have no better defense.

All of which brings us to Donald Trump and his many enablers.

Congress Should Amend the Presidential Succession Act to Ensure Party Continuity

by Michael C. Dorf

On Thursday of last week, Jennifer Williams, an aide to Vice President Mike Pence, testified for the House impeachment inquiry. Her cooperation with the inquiry raises an intriguing possibility: What if Pence is implicated in the arms-for-fake-dirt Ukraine scandal? Should the House impeach Pence alongside of Trump? If doing so is justified by the evidence, then simultaneous impeachment and removal of Trump and Pence would make House Speaker Nancy Pelosi the acting President, pursuant to the Presidential Succession Act. That possibility, in turn, would certainly make Republican Senators who might otherwise be willing to vote to remove a President and Vice President of their own party unwilling to do so.

Or they might insist on removing the President and Vice President one at a time. If they removed Pence first, then, pursuant to Section 2 of the 25th Amendment, Trump could name a new Vice President; Trump's removal would then lead to the new Vice President's becoming President, whereupon that new President would name a new Vice President. That is the same sequence of events that led from the Nixon-Agnew administration to the Ford-Rockefeller administration. Although Ford and Rockefeller were both well qualified, it is easy to imagine Trump, in a fit of pique, naming as his successor someone almost as poorly suited to the job as himself, Rudy Giuliani, say, or Sean Hannity.

Alternatively, if the Senate were to remove Trump first, then Pence would name a new Vice President, who would become President upon Pence's removal, whereupon the successor would name a new Vice President. It seems less likely that Pence would choose new leaders purely out of spite, but there's still something very very troubling about the prospect of a President who was chosen by someone who was then removed for committing impeachable offenses. That was true of the procedure that gave us Ford, and it would be true in any version of the invocation of Section 2 of the 25th Amendment.

Justifying the Administrative State -- and Congress

by Michael C. Dorf

Today I have the pleasure of attending an all-day conference at Cornell Law School focusing on the forthcoming book The Reasoning State by my colleague Prof Edward ("Jed") Stiglitz. I look forward to hearing the comments of various panelists who have come from near and far. I'm commenting on two of the chapters. Here I want to preview some of my remarks on Chapter 2 -- Reasoning and Distrust: State Architecture in Advanced Societies.

The book as a whole is terrific. It is methodologically diverse, including historical materials, legal and institutional analysis, formal mathematical models, and the reports of some psychological experiments, all integrated into a coherent whole. I won't attempt to summarize the entire book here, however, both because that's too daunting a task and also because Chapter 2 is the core of the book.

In both my oral comments later today and in this preview, I'll begin with a summary of the chapter (and thus the book's core argument), and then raise some questions. Readers who want a deeper understanding should consult Stiglitz's 2018 article in the University of Pennsylvania Law Review, which sets forth an earlier version of the core argument, and/or his 2017 article in the Supreme Court Economic Review, which reports on one of his experiments. And of course they should buy the book when it's available.

How Not to Be a Republican

by Neil H. Buchanan

In my new Verdict column, published this morning, I return to the Democrats' intramural feud over Elizabeth Warren's Medicare-for-All plan.  Back when she had not yet released the details of her plan, the self-styled reasonable centrists claimed that she was being vague because she refused to "admit" that her plan might involve having people pay taxes.  As I wrote at the time (those days of yore known as three weeks ago), it was not Warren but her detractors who were being evasive, because they were pretending not to notice all of the non-tax costs that our health care system imposes on people.

Now that Warren has released a detailed financing plan -- one that does not, in fact, raise taxes on the middle class -- the arguments from her opponents have only become more absurd. The title of today's column (Dear Mayor “Extremely Vague” and Senator “Pipe Dream”: Put Up or Shut Up), is of course a reference to the oh-so-clever zingers that brought the punditocracy to its feet for Pete Buttigieg and Amy Klobuchar.

The "put up or shut up" part is simply an extension of my earlier critique, which is that they have been getting a free pass even though they have not described anything that comes even close to a non-vague plan.  In particular, I quote New York Times columnist Elisabeth Rosenthal: "Medicare for All, Medicare for All Who Want It, a public option, improving the Affordable Care Act—those are 30,000-foot concepts that, depending on the details, could work (or not) and be popular (or not)."  I echo her call for the non-Warren/Sanders candidates actually to put something out there that can be attacked, in the way that they are attacking Warren and Sanders.

And to be absolutely clear, there is nothing wrong with (and everything right about) attacking one another's policy proposals.  No one could have expected that Warren's release of her detailed financing proposal would end the debate.  I would have hoped that the arguments against it would have been better than the incoherent snark so far from Joe Biden's campaign (which I discuss at length in the latter half of today's Verdict column), which simply blows my mind.

But attacking and criticizing each others' plans is what candidates do.  Sometimes, the exchange is even outright nasty, and that can be appropriate (or at least acceptable), too.  Talking like Republicans, however, is not at all what they should do.  Unfortunately, not only are the non-Warrens talking like Republicans, their feelings are getting hurt when they are called out for talking like Republicans.  They need to get a grip and understand the difference between disagreement and damaging disagreement.