Monday, March 19, 2018

Remembering Julie Hilden

by Michael Dorf

Julie Hilden -- lawyer, author, and editor -- passed away on Saturday. She was my friend for over 30 years. Julie combined a fierce intelligence with incredible kindness. Her work was brutally self-critical even as she was extraordinarily generous to others. I'll try to paint a picture of her life and work, but this is also a personal remembrance.

Sunday, March 18, 2018

Even If McCabe Committed Wrongdoing, He Was Likely Fired for "This Russia Thing"

by Michael Dorf

A number of commentators who are not simply apologists for Donald Trump have been arguing that the firing of Deputy Director Andrew McCabe by (supposedly recused) AG Jeff Sessions cannot have been a simple political hatchet job, because it was based on a recommendation of the Department of Justice Inspector General, a nonpartisan professional who was appointed to his current position by President Obama. I think they're making a straightforward logical error.

McCabe contends that he did nothing wrong. Maybe he's right about that. Let's assume for the sake of argument, however, that he's wrong. In other words, let's stipulate that if and when the report of IG Michael Horowitz is made public, it contains smoking-gun evidence that McCabe committed the wrongs that have been publicly alleged and that these are firing offenses, even for someone who is barely a day away from retiring with full benefits. Nonetheless, it is possible -- indeed, given Trump's very public campaign to discredit the Mueller investigation and anyone who could aid it, it is likely -- that the evidence contained in the IG's report was not the actual reason McCabe was fired.

The firing of James Comey closely parallels McCabe's firing.

Deputy AG Rod Rosenstein wrote a letter detailing how Comey's mishandling of the investigation of Hillary Clinton's emails--especially his public comments on the investigation--was a serious breach of policy warranting dismissal. Trump then fired Comey, initially claiming that he did so based on Rosenstein's report. But that was obviously just a pretext. As Trump himself soon boasted, he would have fired Comey without the Rosenstein recommendation. Why? Because of "this Russia thing."

Likewise, IG Michael Horowitz prepared a report detailing how McCabe's mishandling of the investigation of Hillary Clinton's emails--especially his authorization of comments to the media on the investigation--was a serious breach of policy warranting dismissal. Sessions, who had good reason to fear that Trump would fire him if he did not act against McCabe, then fired McCabe, claiming that he did so based on Horowitz's report. But that is likely just a pretext. Trump hasn't yet publicly boasted about it quite so explicitly as he did with Comey (although he has come close), but the most logical explanation for McCabe's firing--even assuming that he was fireable--is "this Russia thing."

Friday, March 16, 2018

How Scalia Saved Originalism By Destroying It

by Michael Dorf

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

Thursday, March 15, 2018

Hillary Clinton and the Heckler's Veto

by Neil H. Buchanan

The "heckler's veto" describes a situation in which a person's speech is effectively silenced by the reactions or anticipated reactions of people who disagree with the speaker's views.  The threat of hostile reactions, up to and including violence, causes people to choose (under duress) not to speak or authorities to tell them not to speak.

Has Hillary Clinton's very existence become an especially pointed version of the heckler's veto?  It has long been obvious that her every word will be distorted by her detractors and that she will be held to mutually contradictory standards.  And now, finally, it appears that she simply cannot make an argument without her words being completely misconstrued and her motives impugned, so much so that she would be better off saying nothing.  (Perversely, she would then be criticized for her silence, but that is par for this course.)

I offer these thoughts in the light of a recent mini-kerfuffle over comments that Clinton made in an appearance in India, comments in which she again tried to describe why she lost the 2016 presidential election.  Inevitably, her remarks were deliberately misunderstood by conservatives and liberals alike.  Her critics are so relentless that they have succeeded in making it wiser for her never to speak again.  No matter what one thinks of Clinton, that is a serious problem.

Wednesday, March 14, 2018

Hamilton Versus Trump Part 4: "talents for low intrigue, and the little arts of popularity"

by Michael Dorf

My "Hamilton Versus Trump" seminar is now firmly back in Hamilton territory. This week's reading included Federalist 68, in which Hamilton defends the Electoral College on the ground that its (small-r) republican mechanism rather than a (small-d) democratic process will generally lead to the election of statesmen rather than demagogues. The Electoral College mechanism, he writes:
affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

Tuesday, March 13, 2018

Does Animal Rights Advocacy Frustrate Human Rights?

by Sherry F. Colb

My Verdict column for this week explores the question whether the causes of human rights and of animal rights are in some way incompatible with each other. Are those who support animal rights either hostile or indifferent to human rights? And have human rights achievements made it more difficult to advocate for animal rights? In this post, I want to consider one reason for the perception among some audiences that animal rights may be incompatible with human rights. The reason is a subset of what Professor Gary Francione has dubbed "single issue campaigns." 

Single issue campaigns are attempts to persuade an audience that a particular type of animal exploitation is especially immoral and must stop. Sometimes, single issue campaigns have no implications for human rights, one way or the other. Advocacy against foie gras may represent one example. But on occasion, a single-issue campaign will select a form of animal exploitation that seems mainly to involve people of a particular race, religion, or sex. In such cases, it might appear that animal advocates are comfortable relying on bigotry to reach their goals.

Monday, March 12, 2018

Hollywood Bashing and the Gun Debate

by Neil H. Buchanan

Proposals to arm teachers or create larger security presences in schools are highly unpopular, opposed by teachers themselves (who would presumably be among those with the most self interest in this debate) as well as those who study school violence.

Even in Florida, where gun love has always run to extremes and where one might have expected the public response to the Parkland shootings to include calls to give teachers guns, the public at large -- by a decisive majority (56-40) -- is against arming teachers and school officials.

Actually, of course, some opportunistic politicians have been calling for arming teachers and adding (more) armed guards to American schools.  And the unpopularity of that idea is, as is always true in American debates about guns (and taxes, and the environment, and ...), not stopping Republicans from moving forward with bad proposals.

When the Republicans who dominate Florida's government surprised everyone by passing a modest but nontrivial gun-control law (while still failing to ban assault weapons or high-capacity magazines, of course), they excluded teachers from their new "school marshal" program, but they did move forward with that program, in spite of (because of?) the warnings from experts that such programs inevitably target students of color for harassment and worse.

There is also the possibility that, in the chaos of a school shooting, armed school staff -- again, especially those who are from minority groups -- would be seen by police as perpetrators and not protectors.

It is nonetheless not a surprise that, having recovered from his brief flirtation with actual gun control, Donald Trump has decided to push for more guns in schools as his administration's only semi-specific proposal to deal with mass shootings.

This is consistent with Trump's longstanding enthusiasm for the idea of a hero with a gun saving the day.  Although he was rightly mocked for claiming that he would have run into the school in Parkland even without a gun, Trump embraces implausible scenarios in which good people shoot bad guys dead, making everything right again.

Trump is, of course, hardly alone in his faith in a hero on a white horse solving all problems with a "peacemaker."  But where does this fantasy come from?  Yes, I am going to blame Hollywood.