Wednesday, March 01, 2017

The Man's Role in Abortion and Paternity

by Sherry F. Colb

In my column for this week, I discuss a bill under consideration in the Oklahoma legislature requiring, among other things, that the father of a pregnancy give written consent to an abortion before a pregnant woman is able to obtain an abortion.  In the column, I discuss some of the misogyny that is evident if one looks to both the bill at issue and the rhetoric of the legislator who introduced the bill, Rep. Justin Humphrey.  In this post, I want to focus on the man's role in determining his own paternity more generally.

There is plainly an asymmetry in the availability of options for a man and for a woman when a woman becomes pregnant.  If she wants to terminate the pregnancy, then -- at least under existing constitutional precedents -- she has the right to do so, prior to fetal viability, and she need not consult with anyone about that decision (assuming she is of the age of majority).  Meanwhile, the father of the pregnancy -- despite the Oklahoma bill that, under existing precedents, is plainly unconstitutional -- does not get to object to the abortion, even if he would like to become a father to the baby that would result if the woman were to take the pregnancy to term.  At the same time, if the woman decides that she wants to take her pregnancy to term and keep her baby, the father of the pregnancy is stuck with that decision in two respects.  First, he does not get to decide that he wants the pregnancy terminated, even if he desperately wants to avoid becoming a father.  And second, he does not get to decide to avoid all responsibilities associated with fatherhood; he is ordinarily going to be responsible to pay child support for his son or daughter for eighteen years.

This asymmetry may seem quite unfair.  One the one side, the woman has all of the decision-making power and on the other side, the man must simply live with whatever the woman decides.  One way to deal with the inequity is to relieve the father of child support obligations if he does not want the child to be born and he wishes not to be a father.  To be sure, having financial obligations to care for the child is in no way comparable to the immense bodily integrity intrusion of an unwanted pregnancy, so it is not the case that a "financial abortion" (whereby the man might legally have no paternal connection to the child) is just as necessary for his autonomy as an actual abortion is to the woman's.  Still, we might wish to consider letting the man off the hook for child support, if we take seriously one of the ideas that grounds the abortion right:  having sex does not commit a person to becoming a parent against her will.

The reason not to allow men a right to "financial abortion" is that the child in question would suffer for not having two parents taking responsibility for him or her.  Whatever money the father could afford to pay in child support would be lost to the child, despite the fact that he or she had no say at all in whether to be born into the world.  To the extent that we believe that the father of the pregnancy had more choices in the matter (i.e., the choice not to have sex) than the child of the pregnancy (i.e., no choices), we might impose the financial burden on the father rather than the child.  The contest, then, is between them rather than between the woman and the man.

On the contest between the woman and the man, it is the fact of pregnancy--a fact that differentially burdens the woman to such an extent that we ought not to force it upon her against her will--that creates the asymmetry.  Once the woman decides to have the baby and gives birth to that child, she is responsible to the child, just as the father is.  She, in other words, has no right to a "financial abortion," only to an actual one, and the reason she has the latter right is not that she gets to decide whether or not to be a parent (a decision that the man might like to be able to make as well) but rather that she gets to decide whether to be physically occupied for nine months by a being that will grossly alter her body and create a great deal of discomfort and a not-insignificant level of medical risk.

One could, of course, say that the mother has more options than the fetus that she carries, in that she could have refrained from having sex and thereby avoided pregnancy, while the fetus never had any choice in the matter.  In the case of the unwanted pregnancy, however, the fetus--before he or she reaches sentience--has no interests and is therefore not yet "someone" but still "something" with the potential to become someone.  As the fetus is a potential person, it makes sense that we give preference to the woman, an actual sentient being already, over the fetus, at least prior to sentience. And then once the fetus reaches sentience, where the issue of abortion becomes far more fraught (as outlined more fully in my book with Michael Dorf, Beating Hearts: Abortion and Animal Rights), it is still the case that imposing the burdens of pregnancy on a woman singles out pregnant women for bodily intrusions the likes of which we impose on men only in the rare context of military conscription.  So long as we do not require kidney donations from unwilling male donors, we should not be demanding the sacrifices of pregnancy from unwilling females.

The one option we have not discussed yet is that we preference the wishes of whoever wishes to terminate the pregnancy, thereby favoring the right not to procreate over the right to procreate.  The reason we have not discussed this yet is that it would allow for a man to force a pregnant woman to have an abortion against her will.  Though I recall reading of at least one "father's rights movement" advocate making an argument along these lines, the very notion of it does a good job of uniting people who are pro-choice and pro-life to oppose the idea:  forced abortions are an unadulterated intrusion on a woman's bodily integrity and violate her interests as well as those of the fetus (to the extent that the fetus is sentient) and should not be permitted.

Tuesday, February 28, 2017

Another Round of Professor-Bashing from the Right

-- by Neil H. Buchanan

Donald Trump's recent attacks on the press -- calling the news media "the enemy of the American people" -- are appalling and Stalinesque, and people are right to criticize him harshly for taking his attacks as far as he has.  The degree to which he is willing to vilify a free press is indeed alarming.

Degree does matter, but we must not forget that none of this is new as a matter of kind.  Indeed, this is simply another example of Trump doing what Republicans have been doing for years.  It is just that he is willing to do so at a higher volume and even more crudely.

Republicans have been attacking the press for decades, perhaps out of a group-reinforced belief that the press is truly biased but also because they have found that they can "work the refs" and constantly succeed in securing generous coverage from cowed reporters who bend over backward to prove their open-mindedness.

This is all part of a larger strategy in which Republicans have been busy demonizing all institutions that present any opposition to their agenda.  In the 1970's and especially the 1980's, they went after labor unions, shamefully abetted by the Bill Clinton-led triangulators.  At this point, the Republicans are trying to finish off the job by attacking public employee unions and civil service protections.

Beyond the press and labor, the Republicans are also frothing against the universities with ever-increasing intensity.  From perpetual-candidate Rick Santorum's claims about "liberal indoctrination" of our gullible youth to tallies of the party affiliations of university professors, there is a well financed army of people whose job it is to claim -- loudly and repeatedly -- that universities are illegitimate because they are too liberal.

The most clumsy Republican responses to this claim include recent proposals in some state legislatures to dictate quotas of Republicans that must be hired to teach college classes.  This idea has already been widely mocked, so here I will simply note how odd it would be to serve on a hiring committee in which the conversation included something like this: "OK, so we're hiring three people this year, all of whom have to be Republicans.  Let's take out our lists of Republican physicists, Republican English literature scholars, and Republican forensic anthropologists."

Or we can come at this from the opposite direction.  If the idea is that the academy is an essential institution in any modern society -- certainly a claim with which I enthusiastically agree -- and thus that we must have ideological balance in terms of partisan politics (which is not true, but bear with me here), I propose that we require similar partisan balance in the hiring and promotion of military officers, FBI agents, CEO's of publicly traded corporations (which benefit from laws limiting their legal liability and so on), and members of the clergy (another institution with important social influence).

Can you imagine the fun in watching the board of XYZ Corp. as it tries to hire a new chief executive?  "We need someone who knows our business and is a turnaround expert for companies with aging product lines.  But remember that there are too many Republican CEO's nationwide, so let's go out and get the best Democrat we can find!"  For the same reason that Eastern State U.'s Sociology Department should not be required to inquire into the political affiliation of applicants for an opening in Comparative Development, XYZ's new CEO candidates should not be judged by their partisan leanings.

Part of the problem, I think, is that conservative professionals have long felt resentment at the social isolation that their political views created for them when they were in college.  A recent profile of Supreme Court nominee Neil Gorsuch, for example, noted that he was a committed conservative on his Ivy League campus who felt so stung by the resulting social rejection that he founded a conservative campus newspaper and sought out like-minded friends.  (He put himself, if you will, in a bubble, yet I have not heard any conservatives chiding him for doing so.)

Such groups frequently complain that their rights are being trampled by "political correctness" on campus.  But that attempt to claim victim status does not work, because the right to hold unpopular views is most definitely not the same as the right to be liked in spite of your views.  If you want to mock environmentalism and denigrate people who are struggling for their civil rights, you can do so.  You are also going to be widely seen as a jerk or worse.  That is how life works.

In a column last month, I noted that the new all-purpose conservative insult -- calling liberals, especially college students, "snowflakes" who cannot stand the realities of life -- actually applies best to Trump's voters, who are sure that the world is against them and that they deserve not to be called racists even as they voted for an openly bigoted candidate.

This applies more broadly to the supposedly hard-nosed conservatives who constantly complain about how unfair life is to them.  Jeff Sessions said during his confirmation hearings to become Attorney General that his feelings were hurt by accusations of racism.  Some (but not all) conservative professors complain that campus culture is unfair to them, because they are not cheered when they speak their minds.

If anyone should have some sympathy for these conservative academics, I am probably the prime candidate.  As a left-leaning economist who later moved into legal academia, I certainly know what it is like to feel stifled by a professional culture that rules certain ideas and approaches out of acceptable conversations, journals, and departments.

In economics, an ideological purge took place starting in the 1970's (or perhaps a bit earlier).  In a short span of time, it became impossible to publish -- and thus to hold jobs in even lower-ranked economics departments -- unless one accepted a very narrow methodological approach to economics.  That approach was, moreover, inherently conservative.

The process was sometimes anything but subtle.  Some universities went through very public spectacles in which they drove those who rejected the new orthodoxy out of the academy.  Some, like the University of Notre Dame, actually created new economics departments to fill with true believers, shunting the apostates aside into underfunded and unsupported programs that were then supposed to die quietly.

Most economics departments, however, simply took what they surely viewed as a sensible I-see-the-trees-and-it's-not-my-job-to-care-about-the-forest approach to hiring and promotion, knowing that a job candidate who rejected rational-choice theory would never be published, which meant that there was no point in hiring her.

Graduate students quickly adapted to the new reality, and by the 1980's, we all knew the paths to professional success.  Required courses in economic history and "history of thought" (that is, economic methodology) became electives or were dropped outright.  Anything viewed as "soft" -- economic development, gender issues, and so on -- was dead in the water.  As one example, Harvard's only tenured "radical" economist in all of those years had been tenured before he rejected the professional orthodoxy.

In 2014, I wrote a series of columns about how economics was overrun by this new conservative wave.  (The last of those columns is here, with links to early columns in the series.)  When I say "conservative," however, readers might be confused, because nearly everyone is aware that New York Times columnist Paul Krugman is politically liberal even as he is the most highly decorated mainstream economist of his generation.

Krugman's existence, however, does not disprove the claim that economics was taken over by an inherently conservative dogma.  Yes, there are still economists who identify as Democrats and whose work can support liberal-ish policies.  But the implicit political requirements of modern economics are still deeply conservative, with liberal results viewed as "special cases" that must be justified by extraordinary steps and additional work in order to pass professional muster.

So, do I think that academic decision-making processes can be overtaken by non-merit-based group-think?  Absolutely.  I have seen it up close.  And the conservatives won in a rout.  When I was a graduate student, those of us on the outside of the new orthodoxy accurately complained about the anti-intellectualism and narrowness of that dominant approach.  It is no fun to be a part of a disadvantaged minority.

Does something like this happen in fields outside of economics?  I suppose that there must be examples, but we are not going to be able to identify them merely by counting party affiliations of professors.  And we will similarly not be able to say that there is a problem when people in the non-dominant school of thought complain about the dominant school of thought.

Consider my current field, which is law.  Despite the wailing from some of my conservative colleagues, it is not difficult to find conservative professors who are quite successful in the legal academy.  Unlike economics, where heretics were effectively dispatched to a tiny number of low-ranked universities, we can find prominent conservatives in every law school in the country, including the highest-ranked ones.

And this is nothing like tokenism.  Campus-level "federalist societies" -- a national conservative coalition that is heavily funded by right-wing foundations -- do not lack for potential faculty sponsors.  The right-leaning faculty themselves are able to publish in all of the top journals, to be tenured and promoted and hired by higher-ranked law schools, and to serve in Republican administrations.

Again, I am sure that conservative law professors grind their teeth when the general conversation among their peers leans to the left.  (Which is not to say that we sit around talking politics all the time.  Mostly, we are just teaching our classes and writing our articles.)  But that is not the same as being systematically discriminated against.

I doubt that most Republican legislators who are attacking academic freedom are doing so because they have had conversations with conservative law professors.  More likely, theirs is a simpleminded response to the conservative mythology in which all professors are Marxist crazies.

Certainly, a large chunk of the hate mail that I receive derives its energy from a belief that I must be bad simply because I am a professor.  Emails arrive that begin, "Only someone who is ensconced in a communist university ... "  (For some reason, enraged emailers particularly like the word "ensconced.")  It is as simple as professor = liberal = evil.

Even so, I am frequently surprised by my conservative colleagues' attempts to foment the anti-university backlash on the right.  In any working environment, it is not as pleasant to hold minority views as it is to be roughly in sync with one's colleagues.  But the American university -- and especially the American law school -- continues to be a place where minority views are present.  The only exception to this statement with which I am familiar is in economics, and that is an example of conservatives systematically driving out nonbelievers.

In any event, we need to remember the context in which all of this is taking place.  Republicans are feeling the wind at their backs, and they sense that they can now even more fiercely attack the institutions that do not reliably support their programs.  Academia has always been one of their most important targets.  Turning universities into Republican-friendly spas is one more way in which they intend to consolidate power.

Monday, February 27, 2017

Europe’s Refugees Aren’t a Threat to America, But the Refugee Panic Is

by Margaret A. Moody

[Editor’s Note: The following post is by Margaret A. Moody, who practices immigration and international law. In 2015, she served as a full-time consultant to the UN High Commissioner for Refugees (UNHCR) Northern Europe, in Stockholm, Sweden. In an earlier post on her own site, Ms. Moody explained how and why the ostensibly temporary measures contained in President Trump's (stayed) January 27 immigration Executive Order 13769 would likely end up being permanent. Because the anticipated EO that will supersede EO 13769 might incorporate the latter's reliance on the list of seven predominantly Muslim countries (also discussed in a recent DoL post by Diane Klein), Ms. Moody's analysis of EO 13769 will remain highly relevant. As a lawyer in private practice, Ms. Moody does not speak for UNHCR.]

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Europe’s Refugees Aren’t a Threat to America, But the Refugee Panic Is

When I arrived in Stockholm, Sweden, in the fall of 2013, the grumbling about refugees was just beginning.

By the time I left Sweden at the end of 2015, expertly printed swastika decals were a common sight in our high-rent neighborhood north of Stockholm and in the city’s tony shopping district of Östermalm.  Stickers reading “Nordisk Ungdom—2000-talets nationalister” (“Nordic Youth—21st Century nationalists”) dotted lamp posts and crossing signal buttons across the city.  

Shortly after I returned to the U.S., an estimated 100 neo-Nazis and soccer hooligans descended upon Stockholm’s Central Station, its answer to Grand Central Station.  Yielding Billy clubs, they attacked Afghan refugee boys known to hang out there.  The police were outnumbered.

Still, many Swedes and other Europeans recognize the humanitarian issues at stake.  But alarmist rhetoric is common, and new laws make it harder for asylum-seekers to be reunited with family.

Europe isn’t sending America her refugees.  She’s sending America her refugee scare.

The anti-refugee panic has crossed the Atlantic and has now settled in America.  Menacing portraits of refugees in Europe rationalize radical changes in U.S. immigration and visa law.

First, little-understood changes to the U.S.’s Visa Waiver Program were rushed through as an eleventh-hour rider to the Omnibus Spending Act in the final days of 2015.  Now those revisions have been employed to defend sweeping changes introduced by the January 27, 2017, executive order.

The Visa Waiver Program allows qualified citizens of Europe and a few other countries to travel visa-free to the U.S. for tourism or certain business purposes.  This is how a Frenchman who wants to see Manhattan or the Grand Canyon comes to the U.S.  The 2015 changes mean that any citizen of a European country who is also a citizen of a designated country—currently Iran, Syria, Iraq, Yemen, Sudan, Somalia, and Libya—has to apply for a visa at a U.S. consulate rather than traveling on the Visa Waiver Program like he used to.

To be clear, citizens of designated countries who have no European citizenship have always had to apply for a visa.  They’ve never been eligible for the Visa Waiver Program.  What the changes did was to impose a visa requirement on, for example, Swedish citizens who are also Iranian citizens.  This means that an Iranian-born Swede—imagine a businessman or an academic (and there are many)—who had previously traveled to the U.S. visa-free on his Swedish passport must now apply for a visa on the sole ground of original Iranian nationality.

The chaos of the current refugee crisis obscures the well-established European populations of Middle Eastern origin.  Hundreds of thousands of Swedes, Germans, French, and British are of Iranian, Iraqi, and Syrian descent.  The significant Iranian-European population dates to the 1979 Revolution, when there was a mass exodus from Iran.  Many people of Syrian origin have lived in Europe for forty years, and Iraqis for nearly as long.  These longtime Europeans tend to be well integrated.  They are hairdressers, school teachers, government employees, tailors, business people, artists, academics, and authors.  And many have siblings or cousins in the U.S., whom they visit regularly.

The Visa Waiver Program changes of 2015 never made any sense.  They were based on misunderstandings of the demographics of Middle Eastern-origin populations in Europe, the incompetent misapplication of foreign countries’ citizenship laws, and a disregard for international law.

Worse, the 2015 changes are now pointed to to justify the recent executive order banning refugees and virtually all nationals from seven designated countries from entering the U.S. or receiving any immigration benefits.

To understand the wrongheadedness of these changes, we need to understand the facts about Europe’s refugee crisis, terrorism in Europe, and how refugees get European citizenship.

The recent major terror attacks in Europe have not been carried out by refugees.  And they haven’t been carried out by nationals of the seven designated countries, either.  The Paris attackers were mostly French and Belgian citizens of Moroccan extraction, though the collaboration of one Syrian is suspected.  Even assuming a Syrian participated, it appears he did not obtain refugee status.  The attacks in Nice and Berlin were both perpetrated by Tunisian nationals.

Sound familiar?  The flagrant mismatch between the banned nationalities and the nationalities of the perpetrators of major terrorist attacks in the U.S. has been widely noted.  There’s a similar mismatch to the nationalities of the perpetrators of the recent atrocities in Europe.

To be sure, Europe’s recent refugee crisis has been chaotic.  The sheer numbers of asylum-seekers have overwhelmed government and civil society.  Recent refugees from the Middle East and Africa have reached Europe by land or by sea, generally not at ports of entry.  Yet even under those chaotic conditions, terrorism attacks by refugees in Europe have been extraordinarily rare.  (And no, rioting—violent and criminal—in Europe’s ghettos is not the same as terrorism.)

The situation in Europe is a far cry from the organized, deliberate refugee resettlement in the U.S., overseen by the Department of State and numerous other agencies.

Then there’s the other fear behind the European refugee panic.  What if a would-be terrorist who slipped into Europe in the chaos of the migration crisis—the proverbial bad apple—hops on a plane to the U.S. from Europe?  That’s implausible.

No major refugee-receiving European country has citizenship laws so loose that a refugee who has come in the turmoil of the crisis could have obtained citizenship yet—or anytime in the near future.  No European citizenship means no European passport and no visa-free travel.  For a refugee to get European citizenship, first he must get refugee status, which takes months or years.  Then he must fulfill that specific European country’s naturalization requirements, including five to eight years of permanent residency, plus a laundry list of other criteria.  Those normally include a high degree of language proficiency and no criminal record.

By the time a recent refugee to any European country manages to get the citizenship of a European country, he will have had a long period of stable residence in Europe.  European police and intelligence agencies will have had ample opportunity to do background checks.  And even so, as any knowledgeable U.S. Department of State or Department of Homeland Security official could attest, the U.S. can easily prevent air travel of individuals whose particular life histories disqualify them from travel to the U.S.

Conflating European citizens with the governments they fled before finding safe harbor in Europe is to turn international human rights law on its head.  The smear that they pose a security threat to America is absurd.

The assessment of whether an alien is admissible to the United States must be done on an individualized basis, as required by law.  Broad assertions that all refugees or all nationals of certain countries pose national security threats are ludicrous.  Serious counter-terrorism experts understand this.

Ask Your Doctor About The Wellspring Committee (and Nominee Neil Gorsuch)

By Diane Klein

If your television viewing habits are anything like mine, you have seen, and wondered at, what appears to be a commercial for Judge Neil Gorsuch.  The 30-second spot, called "Jane," features Jane Nitze, identifed as someone who "Clerked for Judge Gorsuch" and a "Former Obama Administration Attorney."  Bathed in golden light, she speaks in reassuringly persuasive and dulcet tones about her former boss, now Trump's nominee for the Supreme Court.

Like so many other political events of the past year, this is "unpresidented."  Who is behind this ad, and what could be its purpose?  It's not as if television viewers can vote for or against Gorsuch's confirmation.  That's up to the U.S. Senate.  So what's going on?

At a glance, once you realize Gorsuch is not a "candidate," the ad is most reminiscent of those now-ubiquitous pharmaceutical ads, the ones that generally include the words "ask your doctor about...", and a rapid-fire list of often-chilling side effects.  Ads for prescription drugs touting magical (or maybe) genuine cures for ailments real and imagined ("restless leg syndrome," anyone?), direct you to your doctor because as we all well know, you can't just buy Xeljanz, Latuda, or Cialis over the counter (much less a cancer drug like Neulasta, advertised during the Presidential debates). These prescription drugs must be prescribed by a physician.  But the purpose of the ads is to send sufferers scurrying into doctors' offices demanding these drugs by name.

And it works.  Which is why, in 2014 alone, the pharmaceutical companies spent $4.5 billion on "direct to consumer" (DTC) advertising in the U.S. (and $5.2 billion the next year). To be sure, these ads are controversial.  Before 1997, they were banned in the U.S., and the EU, Canada, and much of the world continue to do so for many of the same reasons: any "educational" value for consumers is outweighed by the likelihood of deception, misinformation, and confusion, resulting from the advertisers' actual motive: selling drugs. and making money. Some argue that the cost of advertising actually contributes to the high cost of drugs.  Even the American Medical Association opposes DTC advertising, because of the way it alters the relationship between doctor and patient.  What purports to educate and inform is only intended to persuade and sell.

The concerns about the Gorsuch ad, though related, are distinct.  After all, when Pfizer advertises Viagra, there's no mystery about who is paying for the ad, or why.  It's much less obvious who paid for "Jane," or what their agenda is (other than Gorsuch's confirmation, obviously).

If Jane Nitze were hawking legal pads or Legal Zoom, the Federal Trade Commission would regulate the advertisement. When it comes to product and service endorsements, the FTC rules first state that "An advertiser may use an endorsement of an expert or celebrity only so long as it has good reason to believe that the endorser continues to subscribe to the views presented."  That's no problem - there is no reason to think Nitze will change her mind about her former boss.  But the FTC also demands, in 16 C.F.R. Section 255.5, that "When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed."

We know the connection between Jane Nitze and Neil Gorsuch.  But what is the connection, if any, between either of them and the people who funded this ad? We have no idea.

Jane Nitze's credentials are as solid-gold as Trump's toilet fixtures (we imagine), if not more so.  She earned a physics and statistics degree at Harvard College, and then a law degree from Harvard Law School, where (like Barack Obama) she served on the Law Review.  In fact, her liberal establishmentarian cred is even better than advertised - after clerking for Gorsuch at the Tenth Circuit, she was a Supreme Court clerk, to Justice Sonia Sotomayor, who officiated at the former Jane Kucera's 2013 wedding to Paul Kendall Nitze, son of a former assistant administrator of the EPA (under Clinton), and grandson of Paul H. Nitze, a secretary of the Navy and founder of the School of Advanced International Studies at Johns Hopkins.  Jane then went to the Office of Legal Counsel at the Obama DOJ (as advertised), and is now a Climenko Fellow and Lecturer at the Harvard Law School.

Most of this can be learned from her CV and her New York Times wedding announcement. But it's much harder to find out about the folks behind the TV commercial.  Because political advertisements are not regulated by the FTC, it takes a little more digging to figure out who put this on the air.  As the ad ends, the words "ConfirmGorsuch.com" appear in bold black letters, while nearly-illegibly at the bottom of the screen, it says "Paid For By Judicial Crisis Network" (which also holds the copyright on the webpage ConfirmGorsuch.com).

The Judicial Crisis Network (JCN), a 501(c)(4) entity, was founded in 2005 as the "Judicial Confirmation Network."  Back then, its goal was to support Bush's nominees (now Justices Roberts and Alito).  Over time, funded by the Koch Brothers, it morphed into an entity dedicated to blocking Merrick Garland's nomination, spending millions in that effort, but not before becoming deeply involved in judicial races all over the country.  JCN's money mostly comes from the Wellspring Committee, also a 501(c)(4) "dark money" operation, that is not required to disclose its donors, and can spend effectively without limits.  Secretive but influential right-wing activists Ann Corkery and Robin Arkley are central figures, as are Corkery's family members. The funders of the Wellspring Committee take full advantage of the tax laws, and consider their judicial spending - $10 million for Gorsuch, more than $2 million of which is for the televison ad buy - nonpolitical "social welfare" spending (as is required for entities of that type).

Though it is far from clear, the real purpose of "Jane" seems to be not so much to induce action - but rather, inaction.  It says to the liberal, middle-aged viewer, the Obama voter, the woman, the Hillary voter (do you imagine a female former Gorsuch clerk was chosen by accident?), that there's nothing to worry about with Gorsuch.  It's not so much "ask your doctor about Viagra," as it is, "Don't bother writing to your Senator about Gorsuch."  Like all political tactics designed to reduce participation in the new Trump Era, that should give us pause.  It's not so much the drug, as it is the side effects.

Does Jane Nitze know, or care, who paid to produce the advertisement in which she appears, and to put it on the air?  Or about the other causes in which they have been involved?  Does she believe that the way the Merrick Garland nomination was handled, and JCN's role in that, was proper?  We don't know.  Had she chosen to write an opinion piece in support of Gorsuch, she would have joined a wide-ranging coalition of scholars, lawyers, and Court-watchers who similarly endorse him.  This television ad feels different.  Given JCN's history, as a lawyer, a law professor, and a fellow Harvard College alum, I don't much like Nitze in the role of Tom Hagen to Gorsuch's Johnny Fontane.

Saturday, February 25, 2017

Finally, Someone Else asks "Is the Supreme Court a Court?"

By Eric Segall

Readers of this Blog, or those who follow me on Twitter or elsewhere, probably know that I've devoted much of my career, and a full length book, to the argument that the Supreme Court is actually not a "Court," as we generally define that term. My essential thesis is that judges, in addition to not taking bribes and not hearing cases involving themselves or their family, must at a bare minimum take prior law seriously and in good faith when deciding cases. A person who resolves a dispute "all things considered" and without any regard for prior positive law would not be a judge but some other kind of governmental official. My view is that the Supreme Court, not being bound by prior law, and usually interpreting vague text and contested history, has over time and as an institution not taken prior legal materials seriously enough or consistently enough to warrant the label "Court."

Needless to say, this thesis has not made me popular among many of my colleagues and others who write about the Supreme Court. They see some truth in my thesis but generally argue I go way too far.

So imagine my surprise (and delight) when I awoke on Thursday morning to read a blog post with the title: "Is The Supreme Court a Court," written by Keith Whittington (a renowned originalist legal scholar at Princeton University), This is how the post begins:
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half.... [W]e might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules. 
Professor Whittington goes on to argue that Supreme Court justices, for a variety of reasons including that they choose their own docket, usually decide only "hard cases." These are the kinds of disputes where the "answers are unclear," and which "push the boundaries of established legal understandings." The Court has a "steady diet" of these cases, which makes the Justices excellent fodder for political scientists who, Whittington argues,
love the Supreme Court [because] the justices display lots of behavior that looks like the exercise of policy-driven discretion. (Of course, the justices also benefit from occupying the court of last resort in the United States, which means that even apparently easy cases can be made hard by rendering the established legal rules no longer operative).
It doesn't have to be this way, Whittington says, because the justices could decide to hear more cases involving legal errors than nationally important policy disputes. But the justices "prefer to spend their time on the hard cases, where there are no clear legal answers. In those cases, the justices get to create legal answers.... These cases are chosen ... because they are useful vehicles by which the justices can make new law."

Whittington also mentions that there was a time long ago when the justices didn't write dissenting and concurring opinions like they do now, which also leads to more of a policy-making than dispute-resolution role. Whittington concludes that the justices think
it is the job of the Supreme Court to announce new law. The law does not truly exist until the justices say what it is. The Court does not engage in the judicial task of resolving disputes in accord with some pre-existing set of legal rules; it engages in a somewhat different task of issuing legal pronouncements that other courts will then use to resolve disputes. There are other bodies within our political system that perform that task as well. They are called legislatures.
I have a few quibbles with Whittington's post. I don't agree that the Court acts like a legislature because the justices cannot usually reach out and decide issues not brought before them (Citizens United, notwithstanding) and because the justices have life tenure and don't have to stand for re-election. Nor do I think the practice of writing separate opinions is as important as Whittington does. But where he and I appear to be in complete agreement, is that the justices view their role more often than judges should as setting national policy on hotly contested issues on an all-things considered basis (the justices would of course not accept that description).

I think the justices understand quite well that the cases they take and the decisions they issue do appear to many to be more legislative than judicial, which is why they go to such great lengths to pretend that text, history and/or prior case law support their decisions. But, of course, as I wrote in my book, that is the greatest myth of all.

Friday, February 24, 2017

Trump's Muslim Travel Ban 2.0 Will Be Magical

by Michael Dorf

According to a story in The Hill on Wednesday, the White House has decided to wait until next week to release a revised Executive Order (EO) to (presumably) replace EO 13769, which has been stayed in the courts. Exactly what the new EO will say remains to be seen, although, according to White House Adviser Stephen Miller, apparently it will have magical properties.

As recounted in The Hill story, on Tuesday Miller told Fox News that there will be “mostly minor technical differences” between the new EO and EO 13769, even as the new EO will be "new and different." The minor technical differences will somehow be "fully responsive to the courts," which, it bears remembering, have found that the challenges to EO 13769 are likely to succeed on the merits because the flaws in EO 13769 are substantial, not merely technical. Miller, who has no legal training, believes the magical new EO will square the circle because, as he told The Hill in an email, "though any changes are of course very technical and legal in nature, the significance of the changes will be quite substantial."

Suffice it to say that I have my doubts, and not just because Miller's word salad is self-contradictory. As I explained in a recent column, if the new order has a disparate impact on Muslims--as it surely will if it maintains the seven-country ruse that underlies much of EO 13769--then it will almost certainly be tainted by the same history of discrimination that led Judge Brinkema to enjoin EO 13769.

Meanwhile, in all of the litigation and speculation about the new EO, it is easy to lose sight of the nominal justification for the Trump policy. Both Trump's original December 2015 call for a "total and complete shutdown of Muslims entering the United States" and EO 13769 claim that the travel restrictions are to be temporary measures designed to give the administration time to tighten vetting procedures. That fact leads to an obvious question: What steps, if any, have the president and his team taken to review existing vetting procedures and design new ones?

In addition to imposing travel restrictions, EO 13769 directs the Secretary of Homeland Security, the Secretary of State, and the Director of National Intelligence to conduct a number of investigations and to begin implementation of various additional screening measures (such as use of biometrics and additional interviews for visas). The EO contains various time limits for the review and for the receipt of information from targeted countries.

Section 3(c) of EO 13769 suspends entry into the country of nationals of the seven majority-Muslim countries for a period of 90 days, ostensibly to permit the relevant actors to conduct their review of existing screening procedures and begin to implement new ones. How that period interacts with the other time periods in EO 13769 is not entirely clear but also not very important if, as strongly hinted, the new EO supersedes EO 13769.

It is impossible to glean the likely content of the new EO from Miller's double-talk but other sources indicate that it will probably maintain its basic shape while applying to a smaller category of people, expressly exempting green card holders and probably some other current visa holders. If so, a crucial test of the validity of the order should be whether it resets the clock to zero. If so, that would be strong evidence of bad faith.

How so? Let's suppose that the administration issues the new EO on Monday of next week, which is 31 days after the issuance of EO 13769. There is nothing in the fact that EO 13769 has been on ice since Judge Robart's ruling that should have prevented the Departments of State and Homeland Security (or anyone else in the administration) from undertaking steps to review existing procedures. To be sure, Section 3(c) of EO 13769 says that the reason for the travel ban from the seven listed countries is "[t]o temporarily reduce investigative burdens on relevant agencies during the review period," but this is what in technical legal terms is called bullshit.

For one thing, the review to be conducted is at the high levels of the relevant departments, not by the line officers who do the screening for visas. And in any event, there is no burden on those line officers due to travel to the U.S. by people who already have visas.

Now maybe the new order will address this obvious deficiency by exempting current visa holders, but if the point is to free up the time of the screening officers, then it ought to exempt all visa holders, i.e., all people whose entry won't pose any sort of burden for the officers now being asked (supposedly) to do extra work by reviewing the efficacy of existing screening procedures. If any category of persons holding current visas is not exempted from a travel ban, that will be evidence that the justification of freeing up people's time is nonsense.

Indeed, the freeing-up-time justification was always nonsense, which is why it hasn't tended to come up in litigation. The government has instead tended to say that the seven-country list identifies areas of extra security risk and that therefore, people ought not to be allowed in from those countries until the screening procedures have been tightened. This also turns out to be false, as the government has pointedly declined to offer evidence, in camera or otherwise, of what security risks are posed by the people targeted by EO 13769, but even if it were taken to be true, it would not preclude the review of screening procedures while the travel ban is stayed.

This brings us back to the timing issue. If the government has actually been using the time that has elapsed since January 27 to review screening procedures, then any version of the new EO that corresponds to Section 3(c) of 13769 ought to last for no more than 90 days minus the time that has elapsed since then. If the new EO is issued on Monday of next week, say, that would be 59 days. Each additional passing day before the issuance of the new EO should reduce that figure by one day.

Of course, even the reduced length of the ban is arbitrarily high. Trump has been able to receive intelligence briefings since May of last year. During any of the intervening nine months did he or any of his advisors seek information relevant to tightening screening procedures? That question won't be answered publicly, I'm sure, but we will be able to infer from the content of the new EO whether it really bears any relation at all to improving screening procedures with impediments to entry by a collection of mostly Muslim foreign nationals as a mere unfortunate side effect or whether, instead, those impediments are the raison d'être of Muslim Ban 2.0, just as they were for Muslim ban 1.0.

Thursday, February 23, 2017

Viewing Trump's Mess from Abroad

by Neil H. Buchanan

The rest of the world has been looking on with a combination of bemusement and horror as Donald Trump has made the transition from cartoonish reality-TV star to even more cartoonish American president.  By all accounts, Trump has managed to fascinate people around the world, although not in a good way.

As it happens, this is the last day of my most recent visit to Australia.  I was invited to be a research fellow at the Business School of the University of New South Wales in Sydney, where I have been living for the last six weeks.  Plans for this visit began to take shape last summer, when nobody thought that Trump would be president.

The timing of this worked out such that I left the U.S. on January 9, eleven days before President Obama's term ended.  The insanity of the presidential transition had not yet given way to the utter chaos of the Trump presidency.  Although I have been following the news in the same ways that I would if I had stayed home, my physical absence from the U.S. as well as daily interactions with non-Americans have given me a unique perspective regarding what has been happening.

In my time here, I have thought often about an underappreciated 1959 movie called "On the Beach," which starred Gregory Peck, Ava Gardner, and Fred Astaire.  Based on a Nevil Shute novel, the film is set five years in the future (1964), shortly after nuclear war has broken out between the U.S. and the USSR.  Peck is the commander of an American submarine that happens to have been stationed off the coast of Melbourne when the war broke out.

The movie thus shows people in Australia who know that they are doomed.  They know from reports (and the subsequent lack of response to attempts to communicate) that the nuclear holocaust has apparently killed everyone in the northern hemisphere.  Now, they are simply trying to live everyday life as normally as possible, knowing that they have at most several months to live before radiation poisoning makes its way into the air in the southern hemisphere.

The movie itself is quite interesting, but the reason I have been thinking so frequently about it during this trip to Australia is probably obvious.  Millions of people living on this island continent are waking up each day keenly aware that their fate is not in their hands, and they wonder whether the unhinged new American leader will mishandle relations with other powerful countries -- not just Russia but also China, which is even more important to Australia in terms of immediate political and social matters -- in a way that dooms Australians.

One way in which the Trump Effect could affect Australia is by warping domestic politics here.  There are Trump-esque nativist politicians who (like the leaders of right-wing populist movements across Europe) would love to create their own bigoted electoral wave to take over national politics.

At this point, however, indications are that this is unlikely.  Although Australia has certainly elected right-wing governments in recent years, and the country is dealing quite badly with a refugee crisis, the people here are mostly appalled by what Trump has been doing.

This was true even before the truly weird moment earlier this month when Trump decided to insult the Australian Prime Minister, Malcolm Turnbull.  This had the odd effect of making a very unpopular conservative prime minister a momentary hero, but it was even more troubling because Trump was obviously ignorant of how close and loyal an ally Australia has been to the U.S.

I was thus in the unexpected position of being in a foreign country that I would have thought should be completely "safe" in the sense of being a place where Americans would not be viewed with animosity.  Yet Trump managed to make Australians wonder whether the U.S. is still a reliable ally.

On my most recent trip to this side of the globe, I spent three weeks last May traveling in Australia and New Zealand, giving talks at universities in which I analyzed the U.S. election.  Only a day or two after I arrived, Trump had nailed down the Republican nomination, so the conversation was turning toward the contest between Trump and Hillary Clinton.  Now, we are on the other side of that unexpected outcome.

I have a strong aversion to what might be called taxicab sociology, in which an American writes a column based on a conversation with his taxi driver during a trip from a foreign airport to a luxury hotel.  It is far too easy to use one conversation as a vehicle to make a point that the American wishes to make, and the "local knowledge" provided by the cab driver is often suspiciously convenient.  For New York Times columnist Thomas Friedman, that style of writing has unintentionally become self-parody.

Not wanting to go down that path, I decided that it is essential to observe local responses here and only to take seriously any patterns that are unmistakable, not one-off conversations.  This is especially important in my situation, because of course the non-service workers whom I meet tend to be academics, whose political views might be unrepresentative of the country as a whole.

On the other hand, because Australia's population is highly urbanized (with something like half of the population living in just the three largest cities), it is less likely here than in the U.S. that staying in the cities would give one a misleading sense of people's attitudes overall.

Two things have jumped out at me during this trip and the one last May.  First, Aussies and Kiwis avidly keep up with U.S. politics in a way that I would never have expected.  And it is not just people who come to public lectures by American professors who are paying attention.  Local memes have emerged here based on Trump that are every bit as savvy as one would see in the U.S. (perhaps even more so).

For example, an All About Women festival in Sydney is being advertised with a poster of a cat pawing at two balls, with the catchphrase "I grab back."  Similarly, a restaurant owner wrote on his chalkboard: "Drinking beer on a hot day lowers your body temperature by up to 5 degrees!! #alternativefacts."

A nearby pub has a poster on a wall that looks like a shooting range target, with Trump's face drawn over it.  (As an aside, I confess that I felt the need to delete a photo that I took of that poster from my iPhone, because it is unclear what is going on at border checkpoints in the U.S. these days.  Ironic humor is probably a bad idea.)

The mockery of the new American president is visible everywhere, which brings me to the second pattern that I have noticed during my time here.  When I am interacting with anyone, the conversation goes something like this:

-- Aussie person: Sounds like you're from the States.  Where are you from?

-- Me: Yes, I'm visiting for a few weeks.  I'm from Washington, D.C.

-- Aussie person: Ah.  [Long, somewhat uncomfortable pause.]

-- Me: I have to say, I'm happy to be here these days.

-- Aussie person: Oh, thank god you said that!  It's insane, isn't it?

The conversation then involves the Australian excitedly telling me things about Trump that are especially egregious.  A few weeks ago, for example, one person said, "Did you hear that they shut down the Spanish-language version of the White House's website?  That's just petty."

Again, some of these conversations are with service workers.  Although workers here are not dependent on tips, there is a politeness that pushes against making a guest feel uncomfortable.  Therefore, I have asked some people what they would have said if I had indicated any pro-Trump sentiments.  To a person, they told me that they would have smiled and changed the subject.

Two women in a high-end store (who, if they lived in the U.S., would by age, race, and economic class be relatively likely to be Republicans) said that some Americans had been in the shop that morning talking about how excited they are that Trump is in office.  One of the Australian women said to me (while the other nodded), "What are they thinking?"

In fact, the only person I met here who is pro-Trump was a young American woman who is working in Australia for six months.  She told me that she had grown up in a red suburb of D.C., and she looked very uncomfortable when I said something suggesting that I was not a Trump fan.

I emphasize that this is not rigorous science, and I do not claim that it is.  What I find interesting, however, is the universality of the reactions to Trump.  Everyone with whom I have spoken seems to be fairly bursting to talk about what has gone wrong in America, and as soon as they discover that they are talking to someone who will not defend Trump, the floodgates open.  It is a friendly kind of conversation -- "Are things really as crazy as they look?" -- but it is unmistakably serious and sincere.

It is also completely understandable.  The future of Australia (and the world) continues to be profoundly dependent on what happens in the U.S.  If we go to war, they will probably again join us as an ally.  Either way, they know that they cannot control the things that could most affect them.

What seems most mysterious to them is that Americans did not prevent this from happening.  Many of us are just as mystified.

Wednesday, February 22, 2017

A Serious Proposal to Inform the President

by Michael Dorf

The events of the last several days suggest that the Trump White House, while not exactly the fine-tuned machine that the Maximum Leader touts, is behaving a bit more professionally than in its first chaotic month. On Monday, President Trump named a well-respected, not-at-all-insane general, H.R. McMaster, as National Security Adviser. Yesterday Trump acknowledged the existence of a spike in antisemitic attacks and unequivocally condemned them, while also condemning bigotry more generally. To give Trump credit for these acts is, of course, to grade on an unbelievably generous curve, but it's still a major improvement.

One hopes that the McMaster appointment means that there will be another voice of reason in the higher echelons of the administration so that policy is not made entirely by people in way over their head (Kushner) or working for the Dark Lord (Bannon). Time will tell, but there is reason to be skeptical. Tuesday also saw the release of two appalling internal guidance memos by the Department of Homeland Security that greatly expand the categories of undocumented immigrants who will now be targeted for deportation.

In addition to their cruelty, these guidance memos are not, shall we say, reality-based. One of them commits DHS to construction of Trump's Great Wall, beginning with this piece of justificatory fiction: "A wall along the southern border is necessary to deter and prevent the illegal entry of aliens . . . ."

The other guidance memo states that "[c]riminal aliens have demonstrated their disregard for the rule of law and pose a threat to persons residing in the United States," even as it prioritizes apprehension and deportation of "removable aliens who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense." That's right. Any criminal offense. According to Homeland Security Secretary Kelly's construction of the Dear Leader's will, someone who has been charged with possession of marijuana or has not even been charged but is--what?--believed by ICE to have at one point possessed marijuana or to have committed misdemeanor littering poses "a threat to persons residing in the United States."

Kelly's guidance memos should not come as a shock. They implement two executive orders (available here and here) that POTUS Maximus signed on January 25. Trump has justified those orders in turn by pointing to his campaign promises to "build the wall" and to get tough on "bad hombres" bringing crime and drugs from Mexico, but of course, the fact that Trump said something while campaigning hardly makes it true.

I am not so naive to believe that Trump could be induced to abandon his Tremendous Wall or his crackdown on undocumented immigrants by something as impotent as facts. Being a badass towards undocumented immigrants from south of the border and towards anyone suspected of being a "radical Islamic terrorist" were the twin pillars of Trump's campaign. (Wait, you say. What about misogyny? That is no doubt part of Trump's essence and his support, but he didn't expressly campaign on it. But see "nasty woman, such a").

Suppose you could lock Trump in a room for an hour, hold his attention per the eyelid trick of the Ludovico Technique (from the coincidentally appropriately titled film A Clockwork Orange), and expose him to experts explaining how stupid his immigration policy is. Still, Trump is almost certainly too committed to that policy to let it go.

However, there are many topics about which Trump is merely an ignoramus, not an ignoramus with a well-developed, albeit stupid and cruel, policy agenda. With respect to these areas of what we might call non-ideological ignorance, it is in nearly everyone's interest that Trump be better informed. The question is how.

We can begin with the observation that Trump spends MUCH more time watching cable news than even a regular person with a reasonably demanding job ought to. That explains some of his bizarre statements and tweets, including the belief that a terrorist attack had taken place in Sweden the night before Trump spoke at a rally because Trump had watched a FoxNews segment on immigration and crime in Sweden that aired the night before Trump's comments. Whether a riot that subsequently broke out in an immigrant neighborhood of suburban Stockholm vindicates the FoxNews story is beside the point. Even if Trump is only watching reliable reporting, he is getting way too much of his information from tv news aimed at a general audience than from policy experts aiming to inform him on precisely those topics he needs to learn about to make well-informed decisions.

To combat Trump's ignorance while leveraging Trump's status as a cable news junkie, John Oliver has created a series of short commercials featuring a tv cowboy that he has aired on shows Trump watches. Watch below (or, if you're getting this post by email, here).



Funny, no doubt, but even assuming Oliver means this to be taken seriously, it can only scratch the surface of Trump's ignorance. Thus, I want to propose something more drastic, to be implemented by the White House itself. (Pay attention, Reince!)

I propose that Trump be given his presidential daily briefing in the form of a half-hour video that El Jefe can watch each evening in the White House residence (either in his bathrobe or, per Sean Spicer's apparent preference, au naturel). The briefing "show" would be slickly produced and could even be designed to look like CNN or FoxNews, with "guests" who are really policy experts with different views arguing with one another. But it would be based on the professionals' sense of what the president needs to know, rather than whatever happens to be on tv. So, in a sense the tv briefing would be "fake news," i.e., it wouldn't be an actual news show, but it might go some way towards addressing Trump's distractibility.

One obvious downside is that to be fully effective, the tv briefing would have to include some classified information, which Trump might then inadvertently leak to the public. But of course he's already at risk of doing that. And finally, to be clear, this is a serious proposal.