Happy New Year!

by Neil H. Buchanan

It's hard to believe that this is the tenth New Year's Eve since Dorf on Law came into existence.  We wish our readers the best of the new year.  We will be back to our regular publication schedule next week.

Androids and Animals

by Michael Dorf

My latest Verdict column is titled Do Androids Dream of Animal Rights?.  I usually write a blog post to go with each column, but it's practically New Year's Eve, so I'll simply invite readers to check out the column and post any comments either on Verdict or here.

Happy New Year

It's Serious, Important, and Interesting, But It's Still Funny

by Neil H. Buchanan

The big political story of 2015 was the unexpected emergence -- and even more unexpected staying power -- of Donald Trump as a presidential candidate.  For most of the summer and early autumn, I chose to write nothing about his candidacy, in part because the absurdity of it all made serious commentary seem pointless, while sarcastic commentary would have been redundant.  As the story grew, however, it became all but impossible not to say something about the emptiness of Trump's assertions, the lack of any details in the few policy positions that he announced, the ugliness of his rhetoric, and so on.

As the year ended, I used three Dorf on Law posts (here, here, and here), as well as my most recent Verdict column, to assess an emerging discussion among politicians and pundits about whether Trump could destroy the Republican party in 2016 (and perhaps permanently).  In those pieces, I did not actually discuss Trump's assertions in any detail, but I certainly made clear my negative views about his candidacy.  In response to the second of those Dorf on Law posts, Professor Dorf received a misdirected piece of angry email that was intended for me, titled "MY ANSWER TO THE COMPLAINT."  (Yes, of course it was in all caps.)  Here is the email in its unedited entirety:

As a Lawyer you should know nothing pleases the Law more then brevity. You prolixity is your quicksand. A bore is a person who will not come to the point. A greater bore is a person who continues to talk after he has made his point.

Counselor! Stop! I got the point! I do not mean to be unkind but I have read enough of your contributions to know somewhere half-way though reading you become a great bore. I'd hate to have to read your briefs.

I take it you're a nice intelligent guy. I am sad to read of the misery you feel will befall you if Trump is elected, as he will, and for good reason. The reason is voters are not excited about Trump as Trump but they feel in their gut they cannot endure another 4 years of anything like Obama's " God Damm America" race-obsessed presidency and Trump , and only Trump, is the guy to "Make America Great" again.

I'm not as smart as all you Democrat-Socialist minded guys trying to sabotage or bad mouth Trump hoping the voters will imitate the words you talk about because you're so smart they too will sound smart. You guys are just too smart for your own good.

I will vote to hire Trump. I know in my gut I'm right. I can tell you why in thousands words but let me say here very simply: I want him to be another Chainsaw Al Dunlap in arresting the growth of the Federal Government. Period! I know we have a million problems, I can talk for an hour without interruption on all of them without becoming a bore but the first problem we need to take care of for the economic health and welfare of this country -- and yours --is the national debt. You're an idiot--just because you cannot and the government can print money to avoid bankruptcy you think you can continue to spend over cost -- don't bet your life on it. It will take a chainsaw guy to cut down spending by increasing taxes on the wealthy and reduce spending on the poor --sorry about that --and we must or we're another Greece.

Citizen Dorf, you have a choice. The President and Congress will be just about the same as we have had it for the past 8 years of gross stupidity if anyone else is elected. It's no longer a question of Party which you have explained is as easily changed as the next Supreme Court opinion on Race. The only way to change things is to hire Trump--with all his faults - you get the bitter with the sweet - but he's your man to do the job. You wait for the "perfect" politician to come along and you will lose out. Take him up on the deal he's making you. Give him the chainsaw and tell him to go to work! It will take all of 4 years. Then you can hire a man of your dreams.

Even though I obviously disagree with nearly everything in that email, I am not reproducing it here to mock it.  Instead, I find it fascinating, and I think that the writer of that email would be pleased to know that my bottom line is this: I could easily believe that the email was written by Trump himself, rather than by one of his acolytes.

Think about the cornucopia of everything that is Trump on display in that email.  The insults.  (I am described as "a great bore" and "an idiot."  The writer might as well have called me "low energy.")  The baseless bravado.  ("I am sad to read of the misery you feel will befall you if Trump is elected, as he will, and for good reason.") The stilted prose. ("You [sic] prolixity is your quicksand.")  The puffed up patriotism.  ("Citizen Dorf, you have a choice.")  The complete falsehoods masquerading as unassailable facts.  ("... just because you cannot and the government can print money to avoid bankruptcy you think you can continue to spend over cost -- don't bet your life on it. ... or we're another Greece.")  The weak attempts at charming anti-intellectualism. ("I'm not as smart as all you Democrat-Socialist minded guys.")  The tic-like references to the Trump-as-businessman pose.  ("I will vote to hire Trump."  "Take him up on the deal he's making you.")  The odd and defensive comments about race. (Note especially the description of "Obama's 'God Damm America' race-obsessed presidency." Also: "It's no longer a question of Party which you have explained is as easily changed as the next Supreme Court opinion on Race.")  Note also how the writer personalizes criticisms of Trump, responding to my statements that Trump is dangerous by referring to "the misery you feel will befall you if Trump is elected."  Befall me?

In any event, this is not standard-issue Republicanism, even of the more recent extreme variety.   For example, the writer wants to "increase taxes on the wealthy" (although he is "sorry" that spending on the poor will be cut, too).  Beyond such passing remarks about policy choices, however, the exercise is mostly about empty rhetoric and rote repetition of slogans.  ("Trump , and only Trump, is the guy to 'Make America Great' again.")

As an aside for those readers too young to understand the reference, I should note that Al Dunlap was a takeover specialist in the 1970's, 80's, and 90's, who engineered massive accounting frauds.  (When he was finally brought down, of course, he walked away with a $100 million golden parachute.)  He was popular in some quarters for massive layoffs of employees at companies that he owned.  Time magazine in 2010 listed Dunlap among the nation's ten "most egregiously bad chief execs."  This dated reference by the email writer is also consistent with what we know of the demographics of Trump's supporters.
 
In short, for those of us who have been wondering why some people support Trump, there it is, in all of its illogical glory.  This is still utterly puzzling, but (apparently unlike me) it is definitely not boring.

Life Tenure, The Balance of Power, and Supreme Court Vacancies

By Eric Segall

The Supreme Court will resume hearing oral arguments on January 11. During this pause in the Term's business, we Court-watchers (and criticizers) can usefully turn our attention to structural issues, like the fact that our Supreme Court Justices are the only judges in the entire world who sit on a nation’s highest court for life. Consider the longest-serving member of the current Court, Justice Scalia. He ascended to the bench before we were all using cell phones, satellite television, or the internet; and he could serve for many years to come. If Justice Scalia serves until the age at which Justice Stevens retired, he would still be hearing oral arguments and deciding cases in 2025.

There are many well-documented problems with life tenure. Over the years, we have had numerous Justices, like Marshall and Douglas, who, though once heroes, quite obviously stayed on the bench after they no longer could competently perform their responsibilities. After Douglas’ stroke, and his refusal to retire even though he could barely function, the Court, over Justice White’s vehement dissent, decided not to resolve any case where Douglas’ vote might matter. At the end of Marshall's service, he was openly confused on the bench and allegedly instructed his law clerks to vote the same way that Justice Brennan voted.

Another problem with life tenure, which has been rarely discussed, is that, unlike for Presidents, Senators, and Governors, there is no plan for replacing Justices who leave office unexpectedly other than the normal procedures of Presidential nomination and Senate confirmation. If that were to happen to any of the current Justices, especially one of the conservatives, the result might well be chaos. In this new world of increased partisan politics and rancor, and where the President is deep into his second term, it is highly unlikely that the current Republican Senate would allow the President to appoint a Justice who would drastically alter the balance of power on the Court.

The problem is that because Supreme Court appointments are for life, the stakes for every new position are so high. When there is a clear swing vote at stake, the nomination carnival is especially wild--which is how we got Justice Kennedy (the current swing vote) in the first place back before Michael Dukakis climbed into a tank and we elected our first President Bush. The Senate went through an old school originalist (Bork) and a new school pot smoker (a different Ginsburg) before settling on Justice Kennedy. A vacancy today would make that nomination debacle look like a walk in the proverbial park.

If there were a vacancy today that could not be filled because of current politics, the Justices might wait for a successor before carrying on at least some of their business (like they did with Douglas when he could not function). If they decided to take that course, however, they might be forced to wait a long time. A better solution would be an interim appointment to just serve out the now no-longer-on-the-bench Justice’s term, but that solution is blocked by the constitutional requirement of life tenure.

To be sure, the Constitution allows for a very short-term solution. A president can make a recess appointment, good until the end of the congressional term, unless the Senate confirms the recess appointee (as happened most recently with Eisenhower appointees Warren, Brennan, and Stewart). But if the Senate doesn't confirm the recess appointee, we are back to square one and, in any event, since the Supreme Court's validation of pro forma sessions in the Noel Canning case, recess appointments look like a dead letter. A more drastic solution is needed.

No doubt the Justices need their independence, but fixed eighteen year terms could accomplish that goal without judges staying on so long that they span four Presidential Administrations, three of them two-term Presidencies (Scalia and Kennedy have served during Reagan, Bush, Clinton, Bush, and Obama). Were we to abolish life tenure, a Justice who leaves office prematurely could be replaced temporarily by an interim Justice who would just finish the out the term.

If we were to amend the Constitution to join the rest of the free world and provide fixed terms or retirement ages or both for our Justices, a Supreme Court appointment would need to be the person’s last job (to fight off trying to please future employers) other than serving on the lower courts. I am pretty sure that the line of folks wanting to be a Supreme Court Justice for 18 years, instead of 38, would still be quite long.

There is one other way to mitigate the potential problem of Supreme Court vacancies. We could amend the Constitution to require that at least two-thirds of the Justices have to agree before a law is declared unconstitutional. Such a change would be helpful for many reasons, not the least of which is it would dilute the power of one single Justice or maybe a block of Justices and make the phenomenon of swing vote Justices less frequent and less important. This solution would also go a long way to returning governmental power to elected and more accountable governmental officials whose careers do not routinely span three decades.

Holiday Schedule

by Michael Dorf

Merry Christmas to DoL's Christian readers and happy new year to all. There will be a fewposts next week but we here at DoL are in holiday mode, so we won't return to our regular schedule of a post per weekday until after the new year. We have confidence that you'll find some other way to amuse yourselves during the off days.

Frozen Embryos' Lessons

by Sherry F. Colb

In my column this week, I discuss frozen embryo battles and the different rights and perspectives in play when such fights cannot be resolved by an existing contract between the parties. In this post, I want to further explore a concept that arises briefly in the column:  the symbolic significance of calling an embryo a baby or of otherwise treating an embryo as something other than a potential child or the raw materials of a child.

Such nomenclature, when referring to an embryo or zygote, erases the important biological role that women play in reproduction and treats men and women as equally involved in producing a baby. Since there is in fact, more to reproduction than the contribution of gametes, a pretense that reproduction has already occurred once an embryo or a zygote has come into existence effectively denies the significance (and, in some ways, even the existence) of the unique role that women play in reproduction, through pregnancy.

I developed this idea of the denial inherent in calling a fertilized egg a child in an article entitled "Words that Deny, Devalue, and Punish:  Judicial Responses to Fetus-Envy," ("Fetus-Envy"), published in the B.U. Law Review in 1992, when many of DOL's readers were themselves still zygotes or embryos.  The article explored ways in which rhetoric (specifically judicial rhetoric, although such rhetoric extends well beyond the judiciary) functions to make women's unique contribution to reproduction invisible, to devalue women's contribution of nurturing, and to punish women for it (by excluding fertile women from the workplace, as the company Johnson Controls did).

The context in Fetus Envy in which a court characterized frozen embryos as children was when the court performed a "best interests of the child" inquiry to determine whether the egg donor or the sperm donor should get "custody" of the children.  Because the "mother" of the embryos would do a better job of taking care of them than the "father" (sperm donor) would, the court awarded them to the woman. Awarding embryos to the woman is not necessarily a sexist move, to be sure, but the reasoning and the use of "best interests" rhetoric about an entity that still lacks interests (since embryos are not yet capable of having a state of wellbeing--they are not sentient) is brimming with denial.  Women do not provide a better home for embryos than a man; they provide the only existing environment in which the embryos can become sentient human beings, and their contribution through pregnancy involves active and painful work.

But what if someone believes that embryos are full human beings because of their religion?  I suppose that one cannot effectively rebut a religious argument because it is generally not framed in falsifiable terms.  But the notion that a zygote or embryo is already a person is an interpretive move that some humans have made.  This is how religious people can explain that the Christian and Jewish Bible contains brutal atrocities seemingly condoned by God (such as slavery, the killing of captive prisoners of war, and the treatment of a conquered enemies' virgins as the spoils of war).  People are always the ones translating religious texts, and the particular people who have done so over time have typically been men, the category of humans who might like to view their own contribution to reproduction as equal to that of women (by disappearing pregnancy).

Just to ensure (or at least attempt to ensure) that I am not misunderstood, I am not meaning to say (nor did I mean to say in Fetus Envy) that all men are guilty of fetus-envy (denial, devaluation, and punishment of "women's work").  My goal was to elucidate a psychological phenomenon that I think explains some of the rhetorical moves that judges and others make, whether or not out of a commitment to the pro-life view of zygotes.  Not all men (and not only men) deploy this sort of rhetoric, and fetus-envy does not necessarily explain every instance in which the rhetoric arises.  Not unlike religious claims, my theory is not falsifiable.  But it rings true to me (and to many of the people I consulted about it in the early '90s).  But I acknowledge that, as Freud might say, sometimes a cigar is just a cigar.

The Moderates' Last Refuge: Deny the Damage

by Neil H. Buchanan

In my Verdict column last week and in two follow-up Dorf on Law posts (here and here), I have again discussed the puzzling phenomenon of the moderate 21st-century Republican.  Pundits tell us that such beings exist.  I have friends, colleagues, and family members who claim to be examples of that species.  Yet, based on anything that I can imagine constituting a worldview that counts as politically moderate, the Republican Party in its current form offers moderates nothing to cling to, whereas the Democrats are quite obviously their natural home.

In my recent writings, I have considered a number of possibilities.  Maybe Republican moderates do not really exist, but some people falsely claim to be moderates, for self-esteem purposes.  Maybe political affiliation is such a major part of how a person sees his place in the world that many people are simply incapable of considering going over to the other side.  (Admittedly, this is difficult for me to understand on a personal level.  Not only did I switch from being a Republican to a Democrat in my teen years, but I switched from being an Ohio State fan to a Michigan fan in my twenties.  Talk about breaking deeply felt ties!)  In yesterday's post, I suggested that it is not just a matter of loyalty to a label, but that moderate Republicans are manipulated by their party's attack machine to view Democrats as not merely "the guys that I'm against" but as the very definition of evil, making defection unthinkable.

Any discussion of these topics is made especially difficult by the sloppiness with which political pundits slap the label "moderate" on nearly anyone.  In the 1990's, Dick Cheney was labeled a moderate by many pundits, apparently because he had not yet developed his scowl.  That notion, in which moderation essentially means not screaming or snarling, is still a staple of political commentary.  For example, in one of his desultory politics-as-horse-race columns on which The New York Times wastes far too much space, the reporter Nate Cohn recently wrote that Marco Rubio could defeat Donald Trump or Ted Cruz, even after losing early primaries and caucuses, because "there would still be plenty of room for a candidate who could appeal to the supporters who remain: the party’s mainstream conservative and moderate voters and elites."

Whatever one might say about the possible existence of moderate Republican voters, the notion of moderate Republican elites is risible.  Even so, as I mentioned in yesterday's post, even some true conservatives should now be seriously considering whether they can stomach the party anymore, especially if Trump or Cruz is the nominee.  At various times (e.g., here), I have mentioned conservative writer David Frum, who has publicly broken with the movement conservatives who took over his party.  Nothing that Frum has written before or since the split, however, leaves any doubt that he holds very conservative views.  Maybe there are others like Frum, in the conservative punditocracy or even among Republican officeholders, who are only moments away from bolting from the party.  Perhaps.

There is, however, one other argument that I have come across, offered by a scholar who identifies herself as a moderate Republican, but who has no intention of leaving her party.  Her basic argument goes like this: The people who have taken over the Republican Party since 1980 are buffoons with nothing good to offer the country or the world, but they do not truly represent the party.  These pretenders, especially in their recent, highly virulent form as extreme religious and nativist reactionaries, will soon run out of steam and be replaced by reasonable moderates with liberal-ish social attitudes and pro-business conservative economic views.  In other words, Republicans will soon return to being like the George Bush who ran in the 1980 primaries against Ronald Reagan.

Why, one might ask, has the influence of the supposedly illegitimate radicals not already run its course?  Here is where the story becomes fascinating.  Supposedly, it was actually those liberal-activist judges who enabled social conservative extremism, by taking culture war issues out of the ballot box.  If, the theory continues, the moderates in the Republican Party knew that their voices and efforts were needed actually to defeat extremely conservative social policies in real elections, then the battle would be joined.  But because the courts have illegitimately taken control of social policy, social conservatives are enraged and have taken over the Republican Party.  Meanwhile, moderates in the party sit on their hands, comfortable in the knowledge that the extreme conservatives will continue to be thwarted by those judges -- whose usurpation of political decision-making is the original sin, in the eyes of the moderates, but who can now be expected to follow through on their activism.

Of course, one might reasonably ask why a Republican moderate who is truly pro-choice (to say nothing of those who are at least pro-birth control) has not noticed that the marauders who have taken control of their party have been doing everything possible to appoint judges who will endorse the culture warriors' views.  What happens when that work is completed?  Apparently, that is when the sleeping moderate giant will wake up and prevent the state legislatures and Congress from passing those bad laws in the first place, proving that we never should have needed courts to prevent extreme outcomes.

It is neat theory, in its way.  Among its many flaws, however, is how much resemblance it bears to what economists call long-run equilibrium, in which the only thing that matters is that the balance of interests reaches a stable conclusion in the end.  And the proper retort to this political version of "it will all turn out OK in the long run" is the same as Keynes's comment about the economic version of the theory: "In the long run, we are all dead."

In fact, the Keynes quote is even more apt in this context, because the range of short- and medium-run damage that is being done in the political realm even more obviously involves life-and-death matters.  Keynes, after all, could be interpreted as saying essentially, "Well, I don't want to wait that long."  I think he also was saying that the economic damage from doing nothing in response to depressions was very much about life and death, but in any event that further implication is unavoidable in the context of assessing what happens while we wait (and wait and wait) for the Republican experiment with extremism to flame out.

Even now, when Roe and Casey have not yet been overturned, consider what is happening in terms of reproductive rights.  While we wait to see whether the Supreme Court will strike down Texas's law that effectively shut down the vast majority of clinics in the state that were still willing to provide abortions, millions of women are being prevented from exercising what are still constitutionally protected rights.  States have passed 288 restrictions on abortion since 2011.  Real consequences are happening while we wait for the long run to arrive.

Meanwhile, the same extremists are moving on other fronts, and succeeding.  Funding for all manner of social welfare programs, from Head Start to infant nutrition programs, has been cut.  Voting rights are being curtailed.  The "moderate" Republican presidential candidate Marc Rubio is talking about ripping up the Iran nuclear agreement.  He and his brethren (and Carly Fiorina) are all talking about starting new wars in the Middle East.  These, and nearly every actual policy that the Republican Party now stands for, are supposedly anathema to my moderate Republican colleague and those of like minds.  Yet we are apparently not supposed to worry about the damage that is being done in the meantime, because it will all work out in the end.

Finally, consider the ultimate issue that matters in the long run.  The immoderate politicians who run the Republican Party are in full agreement that we should do nothing about climate change.  Many, of course, deny that it exists at all, or if it does, that humans are causing it.  While we wait for the moderate Republicans to mop up after the supposedly inevitable demise of their party's pretenders, the world's prospects for the long run are looking worse and worse.

In the end, I simply return to the question that I have been asking for years: What would it take?  I certainly understand all of the reasons that people offer for hesitating about changing their political views and assumptions, but it was obvious long before now that this is no mere phase in Republican politics.  Or if it is, the end of the long political tantrum is still nowhere in sight, and far too much of the damage is irreversible.

The Best Defense Is Being Offensive: The Republican Attack Machine and Moderate Voters

by Neil H. Buchanan

In my Dorf on Law post this past Friday, I renewed my occasional discussion of the puzzling relationship between self-described political moderates and the modern Republican Party.  There, building on my most recent Verdict column, I asked whether anyone who thinks of herself as a Republican moderate would ever leave the party, if she has not already done so.  There are plenty of people who have abandoned the Republicans over the years, to become either Democrats or independents, because of the hard right turn that the party has taken in the last three-plus decades.  Even so, there are people who still insist that they are not on board with the extreme conservative views that now define their party, yet who are evidently comfortable enough to stay in the Republican fold.

My conclusion in that post, a conclusion that by its nature must be tentative and subject to revision, is that even the nomination of Donald Trump might not drive those people out of the party.  The party's insiders are easy to explain, because they have too much to lose by walking away from even a fully corrupted party apparatus.  The people with nothing personal to lose are more interesting, however, because they claim to be upset by what they see in the party, but they are not so upset that they are willing to walk away.  It is those people whom I am trying to understand.

One possibility is that such people are a tiny fraction of the electorate who really do not matter as anything other than a curiosity of political anthropology.  If so, then there must be some explanation for the facts that I continually come across such people in my professional and personal lives, and that I read stories about them on a regular basis.  I am not saying that it is impossible that my own observations over-sample an isolated phenomenon.  In fact, that would have to be true for everyone on earth.  Yet personal happenstance would not explain the continued discussion of such people in press accounts of U.S. politics.  Of course, reporters also are often guilty of over-reporting events and memes that are close to home (see, for example, the coverage in The New York Times of Ivy League-related educational issues).

So maybe there just are not that many self-identified Republicans who call themselves moderates, but I happen to have met and read about those few who do exist.  Or maybe the people who call themselves Republican moderates are actually not at all moderate, but they like to think of themselves as non-extreme.  Maybe, in other words, there is nothing to explain.  Nonetheless, readers should consider this series of occasional posts as evidence of my suspicion that there is something interesting going on, even though I cannot rule out these other possibilities categorically.

It has been well documented that Republicans and Democrats are further apart on policy than they have been in decades, which again could mean that there are no true moderates.  It could, however, also mean that true moderates who feel the need to identify with a party are left with two extreme choices.  That latter explanation, however, mistakes a growing distance between the parties (that is, their becoming extremely far apart from each other) for mutual immoderation.  Given that everyone who ever actually describes what a moderate should believe inevitably describes something like Barack Obama's actual policy views, however, it is obvious that a person with genuinely moderate views -- as measured by anything other than the current relative positions of the two parties -- could easily find a comfortable home in the Democratic Party.  (One useful way to think about this is that, as many people have noted, the non-mythical Ronald Reagan would be a pariah in the current Republican Party, whereas the supposedly extreme socialist Bernie Sanders is actually simply advocating an updated version of New Deal liberalism that Franklin Delano Roosevelt would recognize and endorse.)

Which, again, brings me back to asking how people who claim to be politically moderate would stick with the Republican Party today.  In last Friday's post, I noted an exchange of letters published in The New York Times in which a self-identified Republican moderate and various readers discussed her claim that her party could still be called anything but extreme.  What I found most interesting about that writer's response was that she immediately fell back on them-versus-us mythology to demonize the Democrats.  She repeated the standard claim that Democrats are bad for capitalism, which one can believe only by ignoring the evidence, but more tellingly, she went straight to "but Hillary's awful," citing the email thing and Benghazi.

For the longest time, I had thought that the only point of the endless scandal-mongering on the right was to fire up the extreme base.  Anyone who has looked at the facts of the Benghazi story, as told after unending Republican-led witch hunts in both houses of Congress, could only conclude that there is nothing to the claims of evil-doing by the former Secretary of State.  Similarly, nothing has come of repeated attempts by Republicans to turn a long-since-corrected mistake by various IRS employees into a political scandal, yet this has not stopped Republicans from vilifying the tax collectors and slashing the IRS's budget.

Again, however, I had always thought of these overreactions to what ought to be apolitical issues as being little more than a way to keep the true believers in a froth.  What I now see is that these fake scandals also serve a purpose even with the people who would supposedly be least likely to buy into Fox News-style propaganda.  For people on the left end of the Republican spectrum, the scandal-mongering provides an excuse to say, "As bad as my guys are, I hate those other people even more."

Notably, the only person in the presidential race who polls as negatively as Donald Trump is Hillary Clinton.  This is hardly an accident.  Going back to Bill Clinton's presidency, the Republicans have been faced with the question of what to do when your opponents move in your direction.  It used to be PoliSci 101 that the parties would end up mimicking each other, because if Democrats moved to the middle, Republicans could not afford to be seen as extreme.  And Clinton's embrace of what his advisors happily called triangulation was especially challenging to Republicans, because he simply co-opted standard Republican views on economics ("Balance the budget!"), social policy ("End welfare as we know it!"), labor (embracing a decidedly union-bashing element of the party), and on and on.

What is a Republican to do when a Democrat is suddenly agreeing with all of the things that Democrats supposedly would never embrace?  Why, in other words, do Republicans not view Bill Clinton as the most Republican president that the Democrats ever elected?  It was easy to see why the party needed to vilify Clinton, from the standpoint of the true believers.  He was not willing to go along with even more extreme policies, and he reveled in his unparalleled popularity among African Americans.

But the "vast right-wing conspiracy" was not just in the business of whipping up the extreme hatred of the party's base.  It was also succeeding in creating a narrative in which people who view themselves as moderate could continue to self-identify as Republicans by focusing on what they should hate.  And they have been successfully taught that they should hate the Clintons.  For example, whenever a conservative commentator or politician appears on a left-leaning show, such as "The Nightly Show with Larry Wilmore," viewers can count on hearing something like this: "OK, I concede that Republicans should stop being so crazy about ______, but Hillary Clinton will say and do anything to get elected."

That line is not aimed at base voters.  The idea is to make people who view themselves as part of the reasonable middle feel a visceral antipathy toward the politicians who actually represent their views.  This strategy, moreover, does not require one to think that there are a large number of Republicans who think of themselves as moderates.  Rather, it merely requires that there be some people who might otherwise start to think that the Republicans have gone too far.  "I might have been on board with pro-business tax cuts, but I do not believe in starting life with an unfair advantage, so we should have a robust estate tax."  (Yes, there actually used to be, and still are, conservatives who agree with that statement.)  "I want fair elections, but there's no evidence of in-person voter fraud, so even if voter suppression helps Republicans, I think it's wrong."  "Some reporters seem too liberal to me, but I don't feel comfortable when Republican candidates respond to challenging questions by attacking the press rather than actually answering the questions."

A person, even a non-moderate true-believing conservative, could find herself thinking all of those things and concluding that the party with which she would naturally identify has become too far gone, and that the other party is actually now sitting in the middle of the road.  But yelling "Benghazi!" often enough creates the emotional space necessary to keep those people in the fold.  The politics of personal destruction is not just personal.  It is an apparently effective method of distracting enough people who might otherwise bolt.

Seriously, What Would It Take?

by Neil H. Buchanan

The increasing ugliness of the Republican presidential campaign, evident most recently in the bomb-'em-all attitude of nearly every candidate, has generated widespread discussion of whether the Republican Party could suffer significant defections if it continues on its current course.  The public soul-searching from some Republican politicians and pundits is long overdue, of course, but it is also an important moment in which we can assess whether there is anything more than fear of electoral disaster motivating their statements of supposed principle.

As frequent readers of Dorf on Law might recall, I have long been fascinated with the question of why so many people continue to stick with the Republican Party.  This is especially important because one wants to believe that most people do not share the views -- by which, to be very clear, I mean the vitriolic anger and hatred -- that the party's candidates and officeholders at all level of government have been peddling for a long time now.  This is a genuine puzzle.

This past summer, for example, I wrote a pair of Dorf on Law posts in which I discussed the fact that the shared policy positions of Republican candidates and officeholders are extremely unpopular.  In the first of those posts, I characterized Republican apostate (but genuine conservative) David Frum as saying "that one can be a good conservative without being a gay-baiting, racist, immigrant-bashing neanderthal."

In the second of those posts, I questioned whether Frum's supposition is actually correct.  I noted that there really are good people who continue to support the Republican Party, even though they are willing to remain, shall we say, neanderthal-adjacent for some reason.  Discussing such matters as whether it makes sense to be "socially progressive, but economically conservative," I concluded: "I would not call any of my conservative friends, family members, or colleagues neanderthals, and not just to be polite."  The fact is, however, that continuing to pull the lever for Republicans empowers people whose views are truly abhorrent to the values that these avowedly moderate conservatives claim to embrace.

Nor is any of this relevant merely because of the surprising emergence of Trump and Cruz as leaders in the Republican presidential race (although it is, of course, the Trump phenomenon that has finally caused many Republicans to wonder what the hell has happened to their party).  The widening disconnect between moderate Republicans and the party that they continue to support has been increasingly evident for decades.  As Paul Krugman and many others have pointed out, Trump's views on almost every issue are merely unvarnished versions of what nearly all Republicans have been saying and doing for at least a generation.

Two years ago, I wrote a Verdict column and an associated Dorf on Law post in which I asked of moderate Republicans who refuse to leave the party, "What Would It Take?"  It is understandable that people stick with a political party despite occasional disagreements, because adults recognize that no political party (even in a multi-party system) could perfectly align with one's policy preferences.  But at some point, the disconnect simply becomes so great that one expects people to start to walk away.

By the standards of the current political moment, the particular issues that I laid out in those late-2013 pieces are almost quaint.  In our current moment, in which the supposed moderate among Republican presidential candidates takes virtually no flak for having proposed allowing only Christian refugees to enter the country, the old list of stomach-churning Republican policies starts to look almost pedestrian.  Yet the pre-2015 Republican party was already all-in for cutting off food aid to poor children, denying voting rights to minorities, refusing to deal with climate change, and on and on.  What more, I wondered, would be necessary to drive self-described moderates out of the Republican fold?

In my new Verdict column, published yesterday, I tried once again to understand the thinking of people who seem so out of place in the radical right-wing party that the Republicans have so enthusiastically become.  Almost no Republican politician would dare leave the party, if for no other reason than the near impossibility of Democrats truly trusting the turncoat in a way that would make a future political career possible.  And moderate non-politicians who wish to become federal judges and so on certainly have careerist reasons to stick around.

The bigger question is those moderates who have nothing personal to gain.  They have watched their party become more and more extreme, to the point that in late 2015 what passes for a moderate Republican statesman is Senator Lindsey Graham, who attacks Trump while talking about how much he wishes George W. Bush were still president, and who is one of the most aggressive militarists in the race.  Seriously, what would it take?

Last Sunday, The New York Times tried to answer a similar question, publishing a letter from a self-identified Republican who claims that "half our number" are "quiet moderates" who are "[p]ro-choice, pro-gun-control and accepting of same-sex marriage," and whose "first priority is championing private enterprise, the engine that drives the nation, pays its bills, rewards ingenuity and creates jobs."

The Times included with that letter some responses to that Republicans' defense of her party (and her continued affiliation with it).  What was most interesting about those responses is that some responders described various ways in which no reasonable person could hold the moderate views that the writer claimed to hold and not be driven screaming from her party.  Or, as the first responder concluded: "[S]ince her views overlap nearly completely with those of President Obama and the people running to succeed him, she might consider registering as a Democrat instead."  Or, as another responder put it: "Because a majority of Republicans say they are moderates, [the original letter writer] infers that they must actually be moderate."

What I found most interesting about the letter writer's response to that series of comments (which included several sympathetic ripostes from fellow disaffected Republicans) is that she simply resorted to naked partisanship: "Democrats have no choice but to remain fiercely protective of the image of Republican as intractable crackpot, given their presidential campaign’s struggles with issues of trust, following Benghazi and the personal email server snafu."  In other words, people who have stayed with the Republican Party -- even those who claim to be moderate -- gleefully fall back on Clinton-bashing to justify not becoming Democrats.  Benghazi?  That is what self-styled moderates rely on to vilify Democrats?  Seriously?

Even more revealing are the letter writer's two further claims.  First, she says that Democrats are "too fond of expensive regulation to be trusted with the proper care of our excellent private sector," which is not only partisan tripe but is also simply false.  (Among other things, the "excellent private sector" grows more quickly and creates more jobs when Democrats are in the White House.)

But the ultimate example of blindness to reality is the claim that Democrats "can’t afford for voters to be reminded there is such a thing as a dignified and reliable Republican who cares. The primaries may blow their cover."  So, we are supposed to believe that one of the current clown-car full of Republican presidential candidates will emerge to prove that the Republicans are moderate.  Which one is pro-gun control?  Which one is pro-choice?  Which one is accepting of same-sex marriage?  Which one would nominate Supreme Court justices who would be in the mold of the old-style reasonable conservative Sandra Day O'Connor, or even the very conservative Anthony Kennedy?

The question in the title of this post is, then, ultimately beside the point.  For people who are committed to believing that the Republicans have not become an extreme right-wing party, there is always simple denial and the comforting vilification of Democrats.  The Republican Party must change or it will die, but the change will evidently not come from supposed moderates threatening to walk away.  If change comes, it will be because the party will have to replace these deluded (and aging) souls with people who will not join in the first place unless serious changes are made.

Fecking Up Foreign Policy

by Michael Dorf

During Tuesday's Republican Presidential Debate, New Jersey Governor Chris Christie denounced President Obama as a "feckless weakling." This was not the first appearance of feckless in the current campaign. In May, South Carolina Senator Lindsey Graham--who apparently still exists and is rumored to be running for President--called Obama feckless. And as early as February of this year, Texas Senator Ted Cruz described Obama's foreign policy as "feckless and naive." The Republican candidates may disagree with one another about many things, but they agree on one: Our current foreign policy is completely lacking in feck (from the Scots language and meaning roughly "effect" or effectiveness). With one exception, they want to increase the feck.

The exception is Kentucky Senator Rand Paul, every Democrat's favorite Republican presidential candidate, but only so long as the topic is foreign policy. As Paul noted, Christie's high-feck policy of shooting down Russian planes should they violate Christie's proposed Syrian no-fly zone would be a good way to start World War III. It was not clear to the home audience whether the tepid applause for Paul from the Vegas crowd was a sign that there were a few sane people on hand or whether those people were applauding for the prospect of a civilization-ending conflict between the U.S. and Russia.

Christie's Strangelovian threat to go mano-a-mano with Vladamir Putin in the skies over Syria was only one of the three most insane ideas put forward by the Republican candidates at Tuesday's debate. Another came from Cruz, who defended his plan to "carpet bomb" ISIS against the charge that this would lead to killing hundreds of thousands of innocent civilians by clarifying that he didn't want to carpet-bomb Raqqa, the capital of the self-declared Islamic State, but the ISIS fighters. Said the junior Senator from the Lone Star State: "You would carpet bomb where ISIS is, not a city, but the location of the troops."

Ted Cruz is Ted Cruz crazy but he's not stupid, and so one can only assume that this was a calculated deception. Cruz disingenuously contrasted the "15 to 30" daily U.S. airstrikes against ISIS with the the "1,100" daily airstrikes carried out during the early phase of the first Gulf War. As David Sanger noted in The NY Times, however, the U.S. used relatively precise munitions in the Gulf War. "Carpet bombing" would have been a war crime. In any event, the airstrikes in early 1991 targeted conventional troops, tanks, and infrastructure--a more or less conventional army. ISIS has some conventional forces, but fighting it is more like fighting an insurgency embedded among the civilian population. The "location of the" ISIS "troops" is a city, making Cruz's distinction meaningless. Carpet bombing "where ISIS is" means carpet bombing Raqqa.

And then there's the racist formerly known as the Donald. Responding to the once-again-eminently-sensible-on-foreign-policy Senator Paul--who correctly noted that Trump's plan to kill the families of terrorists would violate the Geneva Conventions--the execrable GOP front-runner sarcastically neighed: "So, they can kill us, but we can't kill them?"

They. Us. The quip is both sickening and revealing. Trump cannot comprehend a foundational element of international humanitarian law: that even when fighting against forces that disregard the principle of distinction forbidding the targeting of civilians, signatory nations themselves must obey that principle. The idea is incomprehensible to Trump because to him the families of ISIS terrorists are necessarily enemies--them. Give Trump this: At least he's consistent in his prejudices.

Let me be clear that this post is not meant as a defense of President Obama's foreign policy choices. He was dealt a terrible hand by his predecessor's decision to ignite the Middle East, but there undoubtedly were ways in which he could have played it better. However, everything on offer by the Republican candidates (with the exception of Senator Paul, polling at around 2%) looks orders of magnitude worse than Obama's decisions. Better feckless than reckless.

Was Justice Scalia's Discussion of "Lesser Schools" Racist?

By Michael Dorf

My latest Verdict column discusses an issue that has been in the background in all of the Supreme Court's affirmative action cases in the last dozen or so years, and which resurfaced during last week's oral argument in Fisher v. UT-Austin (Fisher II): Whether to characterize the Texas Ten Percent Plan (TPP) as "race-neutral" or "race-based." UT admits most of its class under the TPP, but then supplements the class with students admitted under a program of "holistic" review that includes race as a factor.

Whether that use of race is narrowly tailored (and thus constitutional) depends in part on whether UT can achieve its goal of a diverse student body using just the TPP--but that is only a useful comparator if the TPP is itself race-neutral. As I explain in the column, most of the conservative Justices do not really have a good answer to the charge by Justice Ginsburg that--taking them at their own word regarding "color-blindness"--the TPP is race-based. However, I note how Justice Kennedy may be different. He has previously suggested that he thinks there is a difference between taking account of race for purposes of integration, so long as "race-conscious" measures are not "race-classificatory" ones.

Here I want to consider another issue that arose during the oral argument and its aftermath: whether Justice Scalia invoked racist stereotypes of African Americans, as some prominent Democrats charged, and as some Scalia defenders denied. To evaluate the charge, let's look at the key language. With ellipses used to denote brief efforts by UT attorney Greg Garre to interject, here is what Justice Scalia said.

There are those who contend that it does not benefit African­-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­ advanced school, a less a slower­ track school where they do well. One of the briefs pointed out that most of the ­­most of the black scientists in this country don't come from schools like the University of Texas.  . . .They come from lesser schools where they do not feel that they're ­being pushed ahead in ­­classes that are too fast for them.  . . . I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some ­­you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And ­­I don't think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible.

If Justice Scalia had just come up with the foregoing on his own, the charge of racism would be undeniable. But of course he did not completely make it up. Justice Scalia was asking Mr. Garre about an argument set forth in a brief (and also a book) by UCLA law professor Richard Sander and attorney/journalist Stuart Taylor, Jr. They argue that race-based affirmative action systematically “mismatches” minority students who would thrive at the schools that would admit them through race-blind processes by placing them in more competitive schools, where they struggle academically. Here is how Sander and Taylor describe the phenomenon in a 2012 article in The Atlantic:

The mismatch effect happens when a school extends to a student such a large admissions preference -- sometimes because of a student's athletic prowess or legacy connection to the school, but usually because of the student's race -- that the student finds himself in a class where he has weaker academic preparation than nearly all of his classmates. The student who would flourish at, say, Wake Forest or the University of Richmond, instead finds himself at Duke, where the professors are not teaching at a pace designed for him -- they are teaching to the "middle" of the class, introducing terms and concepts at a speed that is unnerving even to the best-prepared student. 

The student who is underprepared relative to others in that class falls behind from the start and becomes increasingly lost as the professor and his classmates race ahead. His grades on his first exams or papers put him at the bottom of the class. Worse, the experience may well induce panic and self-doubt, making learning even harder.

The mismatch thesis is highly controversial and contested. One of the most sophisticated statistical wizards in the legal academy--Stanford law professor Dan Ho--thinks Sander and Taylor are wrong. Sander thinks Ho is wrong, but then, Ho thinks Sander is wrong in thinking him wrong. Other leading sophisticated empirical scholars share Ho's doubts about the methodology underlying the empirical claims of Sander and Taylor. Sander in turn has his doubts about the doubts.

So it's quite possible that Sander and Taylor are just wrong. But even if so, that doesn't make it illegitimate, much less racist, for Justice Scalia to have asked Garre about their work. Garre could have pointed to the work of Ho and others casting doubt on the empirical claims. Or he could have said that even if Sander and Taylor are right--and that there is some of what they call mismatch--the benefits to African American students and to the educational experience of everyone at the university nonetheless outweigh any harms from mismatch. Yet because Garre, along with most casual observers of the exchange, apparently understood Justice Scalia to be saying something quite ugly--i.e., that African American students should have to make do with separate and unequal schools--he didn't address the mismatch thesis on the merits.

Was that Justice Scalia's fault? Partly, yes. Whereas Sander and Taylor are careful not to denigrate the somewhat less competitive schools where they think that mismatched students at the most elite schools would thrive, Justice Scalia describes these institutions as "less advanced," "slower track," and simply "lesser."

That is certainly elitism, but is it racism? I don't think so. Justice Scalia was, in my view, insufficiently attentive to the way in which his words would be understood. What he said could easily be misunderstood--and in fact was misunderstood--to mean that in general, African American students are unqualified to attend elite universities. In context, I think it clear that he meant only that, while there are African American students who have the academic preparation to thrive at elite universities, those universities don't stop at admitting these academically prepared students, but also admit students who lack adequate preparation.

That may or may not be true. In my experience teaching in universities for nearly a quarter century, there is only a weak (albeit positive) correlation between entering credentials and ultimate success. But again, Justice Scalia was entitled to ask whether the mismatch claim is true. And the question itself did not imply any sort of claim of inherent racial characteristics--as opposed to disparities in wealth, education, and experience--as the cause of the potential mismatch.

Accordingly, I score Justice Scalia's statements in the Fisher II argument elitist and racially insensitive, but not racist.


Postscript: I wrote the foregoing post over the weekend but delayed putting it up until now so that it would go out with the column. In the interim Geof Stone said more or less the same thing on HuffPo. Neither Geof nor I often come to Justice Scalia's defense, so the fact that we both do so in this instance suggests that we're onto something.

Con Law Exam 2015: Abortion Law in a Fiorina Administration

by Michael Dorf

It's that time of year again--when I'm too busy grading exams and papers to blog as often as I like. Thus, I give you the exam I recently administered to my 1L constitutional law students. They had 8 hours to write exams totaling no more than 2,500 words, but you, dear readers, can take as much time as you like.
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The following facts apply to all questions, except where otherwise noted.

In November 2016, Carly Fiorina is elected President of the United States, while the Republican Party strengthens its majorities in the Senate and House of Representatives. Making good on a campaign promise to “use all lawful means to combat the scourge of abortion,” in March 2017, President Fiorina’s Attorney General, Chris Christie, seeks and obtains a federal grand jury indictment of Dr. Jill Barbary, for allegedly committing first-degree murder in violation of 18 U.S.C. § 1111, which authorizes the death penalty or life imprisonment for the “unlawful killing of a human being with malice aforethought” where the killing occurs “[w]ithin the special maritime and territorial jurisdiction of the United States.” The indictment is filed in federal district court in the Southern District of New York, and is assigned to Federal District Judge Alison Nathan.

The facts are not in dispute. Dr. Barbary was the ship’s doctor on board the U.S.-flagged cruise ship Pinafore. While the ship was sailing off the east coast of the United States, Jane Doe, a passenger who was 23-weeks pregnant, came to the sick bay with what Dr. Barbary quickly diagnosed as severe preeclampsia. After Dr. Barbary explained to Doe that continuing her pregnancy would put her at high immediate risk for a potentially fatal stroke, Doe consented to an abortion. Dr. Barbary attempted to perform a conventional D&E, but complications from Doe’s preeclampsia required her to rush the procedure, and as a consequence, the fetus emerged alive from Doe.

Dr. Barbary thought that the equipment in a neonatal ICU at a Level IV or Level V hospital might perhaps be sufficient to sustain the very premature infant, but when she radioed to shore, she learned that a helicopter dispatched immediately could not bring the infant to such a hospital in less than three hours. However, she knew that, without the kind of intervention available at a sophisticated hospital, the baby would die within minutes. Meanwhile, Dr. Barbary observed signs of severe distress in the infant. Rather than permit the infant to continue to suffer before dying, Dr. Barbary injected a lethal dose of morphine, and the infant died seconds later. Jane Doe, who was still unconscious when Barbary injected the morphine, awoke a few minutes later. Upon learning what Dr. Barbary did, Doe thanked her for “showing mercy to my baby.”

When the Pinafore docked in New York harbor the next morning, the ship’s nurse, James Frederickson, reported the incident to a reporter for the New York Post. A front-page story in the next day’s paper (under the banner headline “SHIP DOC MURDERS BABY”) led to a federal investigation, and then to the indictment.

The indictment relies on the Born-Alive Infants Protection Act (BAIPA), 1 U.S.C. § 8. It provides:

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
(b) As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
(c) Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section.

Dr. Barbary does not contest that the ship’s location at the relevant time subjected her to federal maritime jurisdiction, as defined in 18 U.S.C. § 7. Nonetheless, her lawyer has filed a motion with Judge Nathan, seeking to have the indictment dismissed on the ground that her prosecution would violate the Fifth Amendment’s guarantee of substantive due process.

Question 1: For purposes of this question only, you are a law clerk to Judge Nathan. Advise her whether she should grant the motion to dismiss the indictment. You should assume that there are no relevant precedents in the Southern District of New York or the Second Circuit, and thus, to the extent that you make arguments based on precedent, you should rely only on decisions of the U.S. Supreme Court.

The following facts apply only to Questions 2 and 3.

By statute or otherwise, all states provide some protection to infants “born alive,” per the common law rule that Congress codified at the federal level in the BAIPA. However, states vary with respect to the punishment available. In response to the publicity surrounding the Barbary case, Congress passes and President Fiorina signs the Protecting Unborn Children Against Monstrous Doctors Act (PUCAMDA) of 2017.

PUCAMDA expands the federal murder statute, 18 U.S.C. § 1111, insofar as it applies to fetuses born alive during the course of attempted abortions, so that it now applies to attempted abortions throughout the United States, not just in the maritime and territorial jurisdiction of the federal government. PUCAMDA thus makes it a federal capital offense for a doctor or anyone else anywhere in the United States to kill a fetus born alive during an attempted abortion.

Section 1 of PUCAMDA recites as authority “the Commerce Clause, because abortion is an economic activity substantially affecting interstate commerce, and/or Section Five of the Fourteenth Amendment, because failure to protect from murder some, but not all, persons born alive, denies the unprotected persons the equal protection of the laws.”

Section 2 of PUCAMDA contains the following “fallback” provision: “In the event that PUCAMDA, on its face or as applied, is found by a court to exceed the scope of congressional power, PUCAMDA shall only apply to attempted abortions performed using instruments or other materials that have traveled in interstate or foreign commerce, or in facilities constructed from materials that have traveled in interstate or foreign commerce, or in facilities that rely on interstate or foreign commerce for heating, cooling, electricity, or communications.”

Section 3 of PUCAMDA contains a secondary fallback provision: “In the event that both Sections 1 and 2 of PUCAMDA, on their face or as applied, are found by a court to exceed the scope of congressional power, Medicaid is hereby repealed. In such event, Medicaid is also hereby re-enacted exactly as before, except now with the condition that no state shall receive any funding for Medicaid unless it adopts, with respect to killings of infants born alive after attempted abortions, the same definition of and penalties in its state murder law as appear in the federal murder statute, 18 U.S.C. § 1111, as informed by the BAIPA.”

For purposes of Question 2, you are an advisor to New York Governor Andrew Cuomo. New York law provides substantial protection to infants born alive. For example, New York Executive Law § 291 states: “The opportunity to obtain medical treatment of an infant prematurely born alive in the course of an abortion shall be the same as the rights of an infant born spontaneously.” In addition, New York Penal Law § 125.05 appears to contemplate the possibility of a homicide prosecution of a doctor (or other person) who intentionally kills a fetus born alive after an attempted abortion.

There are no reported decisions of New York cases in which the born-alive rule of Penal Law § 125.05 was applied to the killing of a fetus born alive after an attempted abortion, so it is unclear whether the substance of New York law already parallels federal law. However, it is quite clear that New York law differs at least with respect to penalty, as New York has abolished the death penalty. Governor Cuomo is very concerned about the possibility of federal prosecutors or local prosecutors (under Section 3 of PUCAMDA, should it be activated) seeking the death penalty for a doctor who kills a fetus born alive after an attempted abortion. But it is unclear to the governor whether PUCAMDA is constitutional.

Question 2: Write the analysis portion of a memo to Governor Cuomo discussing whether PUCAMDA falls within the powers of Congress. Even if you conclude that the law is valid without one or more of the fallbacks coming into play, be sure to evaluate the validity of all Sections.

The following facts apply only to Question 3.

The Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C. § 248, provides for criminal and civil remedies against persons who use force or the threat of force to obstruct access to reproductive health services, including abortion. However, the most prominent uses of force against abortion providers have resulted in the most serious criminal charges being brought under state law. For example, Michael Frederick Griffin, who killed Dr. David Gunn in 1993, was convicted of murder under Florida law, and is now serving a life sentence in state prison. Likewise, Robert L. Dear, Jr., who killed three people and injured others at a Planned Parenthood facility in Colorado in November 2015, was (you should assume for purposes of this question) prosecuted for and convicted of three counts of first-degree murder under Colorado law.

On the same day that she signs PUCAMDA into law, President Fiorina takes two actions regarding the FACE Act. First, she issues pardons to everyone who has been convicted of, or stands charged with violating, the FACE Act. Second, she issues an executive order—co-signed by Attorney General Christie—instructing the FBI and other federal agencies “to exercise prosecutorial discretion to de-prioritize FACE Act violations. The Fiorina Administration will treat the FACE Act as a dead letter.” In a memorandum accompanying the executive order, President Fiorina explains:

Although the courts have rejected constitutional challenges to the FACE Act under the First and Tenth Amendments, as the head of a co-equal branch of government, I have the power and duty to make an independent constitutional judgment. I conclude that in fact the FACE Act violates the First Amendment rights of pro-life protesters, violates the Tenth Amendment rights of states, and violates the Fifth Amendment rights of unborn children. Moreover, to the extent that the FACE Act may reach unprotected conduct, it is wholly redundant with state law. It should therefore be an extremely low law enforcement priority. So long as there are real threats to the security of the United States from ISIS terrorists and others, the Fiorina Administration will not waste resources on unconstitutional prosecutions under the FACE Act.

For purposes of Question 3 only, assume that you are an attorney for Planned Parenthood (PP). Although PP has good relations with state and local law enforcement in many places, its leaders fear that in strongly pro-life areas, the withdrawal of the threat of federal prosecution under the FACE Act will greatly increase the risk to patients and employees of private violence and intimidation.

Question 3: Write the analysis portion of a memorandum to PP President Cecile Richards assessing the likelihood of success of a court challenge to President Fiorina’s policies regarding the FACE Act.

END OF EXAM

An Imagined Conversation Involving You Know Who

by Michael Dorf

Dramatis Personae:

Corey Lewandowski: Campaign Manager

Donald J. Trump: Former Buffoon; Current Dangerous Racist Demagogue

Nameless aide: Not a speaking part

Scene: Inside a preposterously opulent hotel suite.

DJT:  Corey! Corey! Try one of these sausages. They're the best. Uhm, when I'm president we'll hire the chef at this place. He's a genius. What is this stuffed with? Veal? Lamb? Golden Retriever puppy? It's awesome. So tender! Wow. Just wow.

CL: Sir, I need to talk to you about the Cruz tweets.

DJT: I thought we did that already.

CL: We did, sir, but he didn't take the bait. He's now leading us by 10 points in Iowa.

DJT: Those people are idiots! I'm much better looking than that sweaty Canadian.

CL: That's true, sir, but apparently the idea that you have the wrong temperament for the White House is starting to resonate with the voters.

DJT: What? What the hell gave them that idea? The people who run this campaign are idiots! You're fired. [To no one in particular]: Someone get me Roger on the phone. Tell him he can come back. [An aide hands a phone to DJT]. Roger? Yeah, it's me. Listen, I just fired that idiot Lewandowski. You want your old job back? Before you answer, let me sweeten the deal. After we win, you can be Secretary of . . . what is the one where you travel a lot? . . . State, yeah . . . you can be Secretary of State. Hello? Hello? [DJT throws phone against the wall.] What a moron. Hey Corey, come back here. You're rehired.

CL: Thank you sir. Now about the tweets. So far Cruz has been able to use you to his advantage. He parrots most of what you say, figuring that he looks reasonable by comparison. He's hoping that you'll fade and he'll get your followers. That's why we need to get him to attack you, to turn them off to Cruz.

DJT: I don't fade! I don't [expletive] fade! Where's Ivanka? She'll tell you whether I fade. Wait. Did I say Ivanka? Heh heh, I meant Melania. [Smirks.]

CL: No, sir. You don't fade. But we do need a strategy for provoking Cruz.

DJT: Let's give him the Ben Carson treatment. You saw what happened to his numbers when I made fun of that crazy belt buckle story. How hard can it be to ridicule a guy who thinks that the central message of Green Eggs and Ham is "don't try anything new"?

CL: About that, sir. We did some field research and it seems that most of your target demographic is unfamiliar with the oeuvre of Dr. Seuss.

DJT: So what should we hit him with? How about I just mock his appearance? He sure sweats a lot.

CL: Are you sure you're not thinking of Marco Rubio?

DJT: Wait, which one is the Cuban?

CL: Both, sir.

DJT: Both? Both?? And that's not even counting Jeb with his Mexican wife. What the hell is going on in this country? This is supposed to be the REPUBLICAN primary. They should SPEAK ENGLISH. S-P-E-A-K  E-N-G-L-I-S-H. All right, how about we just hammer Cruz on not being a real Protestant? He was born Catholic, right? So he starts off Catholic. Now he's a Baptist. Let's tweet that he'll probably become a Muslim next.

CL: Sir, you're a genius.

DJT: Tell me something I don't know.

Will Fisher II Produce Any Judgment At All?

By Michael Dorf

Justice Kagan is recused in Fisher v. Univ. of Texas at Austin (Fisher II), the SCOTUS affirmative action case that was argued on Wednesday. Consequently, going into the argument, the best that the university could realistically hope for was a tie: a 4-4 ruling with Justice Kennedy joining the three remaining relatively liberal Justices to affirm the Fifth Circuit's grant of summary judgment in favor of the defendant UT tying the four most conservative Justices to reverse that decision and instead grant summary judgment for Fisher. Under a rule dating to the early nineteenth century, the result of a tie would be that the lower court decision would be "affirmed by an equally divided court." The case would set no precedent but the Fifth Circuit ruling would remain.

During the oral argument, however, a third possibility emerged. At a number of points, Justice Kennedy suggested that perhaps the right result would be to remand to the district court either to supplement the summary judgment record or to hold a trial. To be sure, by the end of the argument, it appeared that Justice Kennedy's enthusiasm for a remand was dampened by UT attorney Greg Garre's vague answers about what evidence would be introduced if the record were reopened, but it remains possible that Justice Kennedy could conclude that a remand to the district court to take evidence is the right result. In any event, I'm going to assume that he favors that result for purposes of this post. On that assumption, the most likely initial vote at the Justices' conference on the case (which will happen in private today) would be:

Reverse and grant summary judgment for Fisher: 4 votes (Roberts, Scalia, Thomas, Alito)
Affirm: 3 votes (Ginsburg, Breyer, Sotomayor)
Vacate and remand for further district court proceedings: 1 vote (Kennedy)

What would happen in that situation? There would be no majority for any one outcome. Note that this is different from the typical case in which there is majority support for a result but not for a rationale, and thus no Opinion of the Court. To stick to the subject of affirmative action, we could consider Regents of the Univ of California v. Bakke for a standard example of the latter, more common kind of case. There, no view about the legal standard for judging affirmative action programs in general commanded five votes. Because it was "in the middle," Justice Powell's opinion was generally treated by lower courts as controlling for precedential purposes, although it didn't get the full force of precedent until it was adopted by a majority opinion 25 years later in Grutter v. Bollinger.  But long before that, the outcome of the Bakke case was at least clear to the parties, because there were five votes for the same outcome: Bakke won.

The case I am hypothesizing would be different. No single outcome would command a majority. In 1834, Chief Justice John Marshall said that the Court wouldn't deliver a judgment in a constitutional case unless a majority of the members of the Court voted for the result, but as noted on p. 6 of the 10th edition of Supreme Court Practice (formerly Stern & Gressman but now Shapiro et al), the modern practice permits a majority of the Justices participating (so long as there is a quorum, which these days is six), to rule. However, with eight Justices participating, a majority still means five.  So it looks like there would still be no opinion of the Court in Fisher II if the voting pattern hypothesized above comes to pass. What then? I spent about half an hour researching this question and some more time talking this over with proceduralists, only to come away uncertain. It is possible that there is a definitive answer out there in some case, but if so, I haven't found it. Nonetheless, I'm about 80% confident that the right answer would be to treat Justice Kennedy's vote as analogous to Justice Powell's vote in Bakke.

Even so, Fisher II would be more complicated than Bakke. In Bakke, there were only two outcomes proposed by the various Justices, even though there were more than two rationales. Thus, as noted above, although the precedential value of Bakke was up for debate, the outcome in the particular case was clear: Bakke won and the university lost. In Fisher, the votes (by hypothesis) divide among three outcomes, none of which has a majority: reverse (4); affirm (3); remand (1).

A reasonably close nine-Justice analogue is the 2006 case of Rapanos v. United States. The Court considered whether four Michigan wetlands fell within the regulatory authority of the Army Corps of Engineers pursuant to the Clean Water Act. Four Justices (in an opinion by Justice Scalia) effectively said no. As a technical matter, they merely vacated the appeals court's ruling so that their standard could be applied, but it was quite clear that under that standard, the absence of a steady flow of water meant that the wetlands fell outside of federal jurisdiction as the Scalia Four would have read the Act. Another four Justices (in a dissent by Justice Stevens) said yes, and would have affirmed the appeals court ruling to that effect. And then one Justice (Justice Kennedy, naturally) said maybe. Justice Kennedy thought that the Scalia test was too stringent and that the Stevens test was too permissive. He voted to remand for the application of an intermediate standard.

In light of the fact that Justice Kennedy's Rapanos vote was to remand under his unique standard, which was about halfway between the Scalia and Stevens poles, why did Scalia rather than Stevens announce the judgment of the Court? The answer, I think, is that there is at least a common core of the Kennedy and Scalia results: Both undo what the appeals court on its own did, whereas the Stevens group would simply affirm. The tricky bit is what the appeals court does with the case once it comes back. What it in fact did was to punt, by remanding to the district court and the Army Corps. After that, the case disappeared (from WestLaw, anyway, which is where I looked), but it is pretty clear that if it had come back up, the appeals court at that point would have been wise to apply the Kennedy standard. If application of the Kennedy standard resulted in finding the wetlands regulable, then five Justices (Kennedy plus the Stevens four) would affirm; if application of the Kennedy standard resulted in finding the wetlands non-regulable, then a different five Justices (Kennedy plus the Scalia four) would affirm.

Should the Rapanos approach apply in Fisher? In Fisher, as in Rapanos, no position commands a majority, but one could argue that in the case I've hypothesized, there would be five votes for a common core of undoing what the appeals court did. Once the case ends up back in the Fifth Circuit, that court could then apply the Kennedy standard from Fisher II (assuming, as seems plausible, that Justice Kennedy announces a unique one).

In the event that the Court splits as I've imagined, I think the foregoing is the most likely result, but let me suggest two alternatives. One such alternative would be that Fisher simply wins. Here the idea would be that Justice Kennedy's vote to remand is sufficiently different from either of the other alternatives that it's effectively not counted. It would be almost as though he were recused. Of the Justices participating and voting on the record as presented, the result would be 4-3 for Fisher. There is, I think, some logic to this approach, but I don't think it's consistent with the Court's practice of requiring at least a majority of the Justices participating in the case to get a judgment--and while Justice Kennedy's vote would be somewhat analogous to him recusing himself, it is in other respects quite different.

So consider another alternative. What if the three more liberal participating Justices decide to join Justice Kennedy in voting for a remand? Then the Court would be divided between four votes to reverse and grant summary judgment for Fisher versus four votes to vacate and order the record to be reopened (or for a trial) in the district court. Then what? Neither disposition is obviously "narrower" than the other (the much-criticized standard for determining the holding of a divided Court under the much-criticized and puzzled-over standard of Marks v. United States). And in any event, the Marks standard is used in figuring out what rule of law applies when there is an intra-majority disagreement over the rationale for a majority result, but here there is no majority result.

This leaves the arresting possibility that if the liberals strategically abandon their (presumably) preferred option of affirming the Fifth Circuit and join Justice Kennedy in voting to vacate and remand for a new trial, that would leave the Court evenly divided and so the judgment would be affirmed by an equally divided Court. That would be very weird, since (in this scenario), the Court would be equally divided between two outcomes, neither of which is affirming the appeals court, but possibly appropriate depending on how one conceptualizes the rule that an evenly divided Court leaves the lower court judgment intact.

If the idea is "the tie goes to the runner" (I know, that's debated in baseball), then application of the rule here makes little sense. It's not too close to call as between affirm and reverse. However, maybe the affirm-by-an-equally-divided Court rule is based on a different idea--simply that if the Supreme Court doesn't act, the status quo ante is undisturbed. If so, then it doesn't matter what the outcomes the various Justices favor are. If a majority of them can't agree on one, the appeals court decision stands. If so, then even if the three liberal Justices don't change their vote to join Kennedy for a remand, the Fifth Circuit opinion would be affirmed, albeit by an unequally divided Court (4-3-1 in this scenario).

Is that really a possibility? Maybe, but if so, then one can readily imagine the four conservative Justices switching their vote strategically as well, to get a remand to the district court on Justice Kennedy's terms rather than leaving the Fifth Circuit victory for UT in place.

The bottom line is not surprising: The Court will do what Justice Kennedy wants it to do. But the way it gets there could be intriguing.

Of Bullies, Ridicule, and Serious Questions About Religious Exclusion

by Neil H. Buchanan

My latest Verdict column, published yesterday, addresses a question that has been bothering me for some time: Why do the self-styled tough guys of the Republican Party (both officeholders and their hyper-wealthy backers) put up with Donald Trump?  After all, these are people who think that they alone know how to fight and win in difficult situations, as opposed to the supposed weakness of Obama and his fellow Democrats.

Part of the answer, of course, is that it is easy to look tough when you choose your victims strategically.  Voting to take food away from poor children, while talking about "tough spending decisions," is easy to get away with, at least for people who have no conscience.  Republican tough-guy heroes like Rudy Giuliani and Chris Christie rose to national prominence by yelling at reporters (who pretty much have to take that kind of abuse) and constituents (in town hall environments completely controlled by the bully).  Christie's Youtube moment involved screaming at a New Jersey school teacher, but that incident was hardly an isolated one.  Bullying is ugly and wrong, but some people love it.

So, in some sense, the Republicans' situation with Trump is a matter of dealing with a bigger, meaner bully.  The old line about bullies not being able to deal with a punch on the nose is supposed to encourage non-bullies not to be afraid, and to dare to fight back, whereas Trump-versus-Republican-leaders is just bully against bully.  The guys who have happily victimized the weak suddenly feel weak themselves.

Still, why would the Republican leaders -- especially those who are not running for office, and who are used to getting their way -- be so passive?  What exactly are they afraid of?  After all, we are not talking about actual schoolyard bullying, with bigger guys inflicting physical beatings (or wedgies, swirlies, or Wet Willies) on weaker guys.  What do they think will happen to them, if they stand up and argue with Trump?

In my column yesterday, I noted an amazing news article in The New York Times, in which the reporter directly asked why the big power brokers like Paul Singer (a hedge fund billionaire backer of Marco Rubio who, among other things, believes that the government is cooking the books to hide high inflation) or the Koch brothers are not trying to take on Trump.

The best line in the article was this: "Mr. Trump has already mocked Mr. Singer and the Kochs, and officials linked to them said they were reluctant to incur more ferocious counterattacks. ‘You have to deal with Trump berating you every day of the week,’ explained a strategist briefed on the thinking of both groups."

So, the people who are trying to buy the U.S. government are revealed to be living in an episode of "Leave It to Beaver," saying, "Aw, gee Ma, if I say anything, Big Don is really gonna give me the business!"  It is an even more bizarre version of what Paul Krugman has frequently described as the "Mom, he's lookin' at me funny!" phenomenon, with these supposed masters of the universe showing that they are amazingly thin-skinned and convinced of their own victimization.

For a brief moment this week, however, it appeared that the tide had turned, and that Trump had finally gone too far with his call to ban all Muslims from entering the U.S.  Nearly all of the Republican presidential candidates denounced the idea as too extreme, even though it is not categorically different from anything else that Trump has said -- or, for that matter, from what any of those other candidates have said about immigration or anything else.  And with a new poll showing that Trump has recently strengthened his support among Republican voters, we shall see whether the rest of the Republicans and their backers skulk back into the shadows rather than stand up and fight.  [Note: The poll described in the article linked in the previous was mostly taken before the latest controversy.  I have edited that sentence to correct an earlier implication that the poll reflected an increase in support for Trump after his latest outrageous proposal.]

The more interesting question, however, is why the Republicans suddenly decided that Trump's no-Muslims rule was a bridge too far.  After all, this is a party that has been more than happy -- not just on the campaign trail, but in Congress and the statehouses that they control -- to foment anti-Muslim panic for political gain.  As an editorial in today's Times points out, after all, "Ted Cruz and Jeb Bush want to allow only Christian refugees from Syria to enter the country, and Mr. Cruz has introduced legislation to allow states to opt out of refugee resettlement."

It is true that Cruz has long been known as the guy who is most like Trump, but who lacks the bizarre charisma that drives Trump's campaign.  Cruz is essentially counting on picking up the maybe-not-quite-fascist vote that Trump has unearthed, if Trump ever fades.  But if ever there were a candidate who was supposed to embody the very ideal of a modern, principled conservative, it is Jeb Bush.  He was supposedly the guy who can save the Republicans from their worst excesses.  Yet here he is, being as crazy as Trump.

Bush is a terrible campaigner, and (contrary to what we have been told for years) he is not actually very bright.  Even though Bush has been exposed as an extraordinarily weak candidate, however, his name recognition and big-money backing make it impossible to say that he could not benefit from some sort of resurgence that the press would happily cover as a "comeback story."  Why, then, has Bush's insipid and insidious proposal received so little attention?

This question is even more difficult to answer in light of Bush's attempt to explain how his exclusionary refugee policy would work.  A news article describing Bush's non-argument included this: "Asked how he would identify Christian Syrian families to ensure that they receive a special focus, Mr. Bush did not offer a clear answer, but said the onus would be on the refuges [sic] to demonstrate their religion.  'You’re a Christian — I mean, you can prove you’re a Christian,' he said. 'You can’t prove it, then, you know, you err on the side of caution.'"

Right.  Stephen Colbert struck just the right note of mockery.  "If you want to know if somebody’s a Christian just ask them to complete this sentence: ‘Jesus said I was hungry and you gave me something to eat. I was thirsty and you gave me something to drink. I was a stranger and you….’ And if they don’t say ‘welcomed me in’ then they are either a terrorist or they’re running for president.”

Bush's current irrelevance might explain the lack of scrutiny that his proposal should otherwise have elicited.  But even so, why is Trump's proposal more extreme and unacceptable to Republicans?  After all, Bush's policy favors the Republicans' most-favored religion, whereas Trump's policy disfavors the Republicans' most disfavored religion.  That seems like a wash.  It is also true, as the satirist Andy Borowitz has a fictional Trump supporter say, "People need to understand that he’s banning Muslims first because they’re the most obvious religious group you’d want to ban. I’m sure once he’s President he’ll get to all the other ones."

In other words, although Bush's current level of bigotry is actually more extreme and exclusionary, there is no reason to think that Trump would end up being more moderate on this issue.  Trump even went after Ben Carson's small Christian denomination, Seventh-Day Adventism, as being too strange, compared to Trump's "down the middle of the road" Presbyterianism.  (I am the son of a Presbyterian minister.  Even though I am now a secular humanist, I weep for the guilt-by-association that this moment visited upon my former church.)

Is the difference that Bush is only talking about barring entry of refugees, whereas Trump would keep out all Muslims?  Again, that still makes Bush at least as evil as Trump, because Bush is saying that Muslims who are being tortured and persecuted in their home countries for being insufficiently pious (or for being the "wrong kind" of Muslim) are to be excluded from the United States.  Bush is apparently fine with allowing in the people who need help the least.  It is exactly that kind of twisted thinking that has driven many good Christians from supposedly mainstream churches.

In the end, my biggest worry is that Trump will have a similar effect on all policy discussions in this campaign.  The content of his policy proposals is generally indistinguishable from his opponents', yet because he is so personally outrageous and blunt, everyone -- even Ted Cruz -- looks reasonable by comparison.  If, however, we have reached the point where we are looking for differences between favoring Christians and disfavoring Muslims, then we should admit that something is seriously wrong.