Tuesday, May 22, 2018

Diversifying Academic Panels

by Michael Dorf

Last week, the Twitter feed of the Feminist Law Professors blog tweeted at me and ten other male law professors:

So far as I can tell, only Professor Kerr and I replied. He wrote: "I've thought a lot about this issue in the last year; I'm a lot more aware of the problem than I used to be. I'm mixed on the merits of announcing a policy, though, as compared to pushing organizers to think about range of voices if the issue comes up." Whoever manages the Twitter feed for FLP responded positively to that. My reply was as follows: "That's certainly a commitment I have in ORGANIZING panels (of more than, say, 2 people); with Orin, it's something I'm happy to push w/r/t panels to which I'm invited." After a short exchange, I promised to blog about the issue, which I'm now doing.

I confess that when I first saw the tweet, I was puzzled: Why, I wondered, is this a commitment to be undertaken only by men? I then realized: Duh, because a female panelist doesn't need to. If the idea is to ensure that there is at least some gender diversity on each panel, a woman who agrees to serve on a panel provides the minimal diversity herself. So this is not a case where allies are being asked to be out front.

Monday, May 21, 2018

Can His Hispanophobic Diatribe Get New York Attorney Aaron Schlossberg Disciplined or Disbarred? Probablemente No

by Diane Klein

New York attorney and Trump 2016 donor Aaron Schlossberg is currently enjoying (which is to say,  suffering) his 15 minutes of fame for his now-viral xeno- and Hispanophobic rant in a New York City Fresh Kitchen in East Midtown.  What appears to have set him off was a Fresh Kitchen employee having the temerity to speak to customers and other employees in Spanish. 

His tirade itself contained a "greatest hits" of alt-right clich├ęs, each premised on errors of fact and law that would embarrass an attorney actually concerned about getting things right.  But it won't get him disbarred (or even disciplined).

Saturday, May 19, 2018

Democracy and the Left: Rana Responds to New York Magazine's Jonathan Chait

By Aziz Rana

I tend to avoid social media, but felt compelled to respond in some way to Jonathan Chait's short essay in New York Magazine accusing Jedediah Purdy and me of being part of an illiberal or authoritarian left, unconcerned with Trump and suspicious of American democracy wholesale. To begin with, this characterization is clearly wrong about both the substance of Jed's work over many years and his own personal political engagements since Trump appeared on the stage. As for me, Chait seems to misunderstand the nature of my arguments in "Goodbye, Cold War," the N+1 essay he references.

Friday, May 18, 2018

Divisiveness as Business Model and Political Strategy

by Neil H. Buchanan

Last Friday, I argued that Democrats should not preemptively talk themselves out of the idea of impeaching Donald Trump, should the opportunity ever arise.  Whatever the political merits of talking about impeachment during political campaigns, it makes no sense at all to pass up an opportunity to remove a man from office who has committed impeachable offenses.  Yet Democrats, at least as a rhetorical matter, seem to be setting themselves up for failure by claiming piously that "only the most serious" offenses are impeachable, which could quickly come to mean that no offense (or set of offenses) is serious enough.

In that column, I nodded to the political reality that, at least for now, Trump is in no danger of being impeached -- and certainly not convicted -- because of Republicans' decision to ignore everything that he has done.  Further exploring that reality, my new Verdict column this week explains why Democrats' congenital timidity is a problem even outside of the impeachment context.

The now-standard claim among anti-impeachment Democrats is that impeachment would be "too divisive," so the better move would be to beat Trump at the polls, indirectly in the midterms this year and directly in 2020.

The primary reason to worry about this new conventional wisdom is that it would be far too cute to pass up a viable impeachment opportunity (should it ever arise, which seems more than doubtful), because one never knows what might happen that could turn the political tide.  What if Melania Trump's illness were unfortunately to turn out to be more serious?  What if the Democratic nominee in 2020 has a negative October Surprise (perhaps along the lines of former NY Attorney General Eric Schneiderman's shocking and horrifying crimes)?  Anything could, at the right time, swing large numbers of votes Trump's way, even though he is widely despised.

But the more important point is simply that the "one option is less divisive than the other option" argument -- which, I fully admit, has more than a dollop of plausibility to it -- assumes counterfactually that Republicans and the Foxiverse would be any less on the warpath after an electoral loss than after an impeachment.  Sure, they would say that impeachment was uniquely bad, should that be how things play out; but they would just as vociferously say that election fraud (or any other excuse they can invent) is uniquely bad.

Usually, I am the first one to say that degree matters.  Two things being bad does not make them equally bad.  In this case, however, I have become convinced that the right-wing outrage machine would turn anything that it does not like into The Worst Thing Ever.  If the goal is to find the least-bad option, there might not be one.

Here, I want to add to that depressing analysis by offering some examples and thoughts about how right-wing media whip up maximum outrage in the United States these days.  (It is also worth thinking about whether there are ways to blunt that outrage, even a little bit, but I am currently at a loss on that score.)

Thursday, May 17, 2018

Whither Severability After Murphy v NCAA?

by Michael C. Dorf

Monday's SCOTUS ruling in Murphy v. NCAA is most notable for what it did not occasion: disagreement over the validity and scope of the Court's anti-commandeering doctrine. On Wednesday I offered various hypotheses to explain why the Court's more liberal justices have come to accept a doctrine that was ideologically divisive when adopted in the 1990s. Here I discuss the issue that did divide the justices in Murphy: severability.

Murphy features three quite different approaches to severability. Which one will predominate going forward is difficult to say, however, because severability is a lot like standing, the political question doctrine, and various other procedural devices that justices appear to manipulate based on their views of the merits. A justice who believes strongly in a law's unconstitutionality will tend to want to rule against severability -- thus maximally invalidating the law -- whereas a justice with a less unfavorable view of the law will tend to deploy a narrow conception of severability, thereby preserving more of the law.

Wednesday, May 16, 2018

The Political Stakes of Commandeering in Murphy v. NCAA

by Michael C. Dorf

Monday's SCOTUS decision in Murphy v. NCAA need not have any long-term practical consequences for the legality of sports gambling. The Court invalidated the Professional and Amateur Sports Protection Act (PASPA) on the ground that it "commandeered" state legislatures into passing or retaining laws forbidding sports betting, in violation of a principle established in 1992 in New York v. United States. New Jersey and other states can now legalize sports betting, but Congress could achieve everything it sought to accomplish through PASPA with a new law. The flaw in PASPA was that it told states to legislate, but Congress could legislate directly by banning sports betting, with or without exceptions as permitted by state law. Doing so this way--via "conditional pre-emption"--would be a straightforward exercise of the Commerce Clause power, as was expressly recognized as a permissible alternative to commandeering in New York.

Tuesday, May 15, 2018

Trump's Word Means Nothing

by Neil H. Buchanan

As the news cycle settles into its dreary day-to-day sameness even in the face of once-unthinkable scandals and policy blunders, many commentators are still trying to figure out how Donald Trump makes decisions.  It is a tempting puzzle to try to solve, not only because he wields enormous power but because he talks and texts like a simpleton and thus seems as though he should be an easy person to figure out.

I am not at all sure that it matters whether anyone finally explains how to predict Trump, but I do strongly suspect that it matters if people become convinced that an incorrect theory is the key to the puzzle.  For example, during much of the 2015-16 campaign, and especially during the transition period, plenty of people said that Trump would suddenly realize how important the presidency was and thus stop acting like a petulant child when it mattered.  We know how that worked out.

Ever since he took office, people have been trying to figure out what Trump would do in advance of every major decision that he has had to make.  Plenty of theories have been advanced, the latest of which is that Trump does what he has always said that he would do.  This theory is nonsense, and it is damaging both because it leads to false predictions and because it bestows a degree of reliability and even honesty on Trump that serves to legitimize a serial liar.