Tuesday, January 31, 2017

It's Not About Judge Gorsuch

by Michael Dorf

In the coming days and weeks, my co-bloggers and/or I will undoubtedly have a fair bit to say about Judge Gorsuch's record and what it likely portends for his tenure on the Supreme Court. That is inevitable. This is a blog about law, my own special focus is constitutional law, which is an interest of most of my co-bloggers as well, and a Supreme Court nomination is undoubtedly a big deal.

It is also true that I regard Judge Gorsuch's confirmation as essentially unstoppable. Democrats can filibuster and perhaps they will successfully maintain party discipline, but a world in which Senate Democrats have that kind of party discipline is almost certainly a world in which Republicans invoke the "nuclear option" and use the same mechanism to invalidate the cloture rule for Supreme Court nominees that Democrats used a few years ago to invalidate it for executive branch and lower federal court nominees.

Accordingly, as the proprietor of a quasi-news site, I do not intend, nor would I ask my co-bloggers, to sit on the sidelines during debates over Judge Gorsuch's qualifications, record, and likely voting pattern as a SCOTUS justice. Having said that, however, I want my first foray into this discussion to be a disclaimer: Nothing that you will read here about the merits of Judge Gorsuch as a SCOTUS nominee should be taken as recognizing the legitimacy of his nomination. The seat to which Judge Gorsuch has been nominated rightfully belongs to Judge Merrick Garland, as Dawn Johnsen explains on Slate.

That is a judgment that has nothing to do with Judge Gorsuch. Had Justice Scalia passed away after the election or even in the month or two right before the election, I would have expected that in the normal course of things, a Republican president with a Republican majority in the Senate would nominate a conservative. Judge Gorsuch appears to be eminently well qualified as a matter of professional competence, albeit much too conservative for my taste--by one measure more conservative than Justice Scalia was. However, because Democrats (as well as Republicans) have traditionally held a variety of views on when one ought to oppose a nominee on the basis of ideology alone, as well as on when one ought to attempt to filibuster a nominee on that basis, I would still have expected a Republican president to be able to get 60 votes to hold a vote and then a majority to confirm someone like Gorsuch.

That would have been true pretty much regardless of who the Republican president was. During his first eleven days in office, President Trump has already shown that he is no ordinary Republican, but in nominating Judge Gorsuch to the Supreme Court he has acted exactly the way I would have expected any Republican president to act. This is not a Trumpian issue. It's a Republican issue.

Hence, I believe that the Democrats will be justified in filibustering Judge Gorsuch, even if the effort proves futile. Whether they ought to do so strikes me as an entirely tactical question at this point. Will forcing the issue do more to fire up the Democratic base or the GOP base? How will it play with voters in states in which Democratic Senators are up for re-election in 2018? Will those voters remember or care? I don't pretend to know the answers to these questions.

I do know that the system is broken. We have or will in any event soon have a system in which Supreme Court vacancies that arise when the Senate and the presidency are controlled by different parties will remain vacant until the same party controls both. That, in turn, will increasingly lead to a very polarized Court, as each party will nominate and confirm strongly conservative or strongly liberal justices when it can, because there is no reason not to. In this prisoner's dilemma, any other course is a sucker's game.

There is, to be sure, a sense in which Democrats share responsibility for the current state of affairs. Democrats did more than Republicans to make ideology a standard ground for rejecting a professionally qualified nominee. And Democrats under Harry Reid exercised the nuclear option--although they did so in response to new levels of obstructionism by Republicans. But who "started it" and who is more to blame is by now mostly beside the point. If it were possible for Democrats and Republicans to reach some sort of binding agreement whereby old norms of deference to the president were restored and strengthened, there might be something to be said for that approach, but we are nowhere near anything like that now. For Democrats to treat the Gorsuch nomination as a "normal" nomination to which a norm of deference to the president applies simply because they think that is a norm that both parties ought to respect in a perfect world right after and as a direct result of the Republicans' norm breaking with respect to Judge Garland would be to be played for suckers.

Praise be to Allah for the Lawyers

[Note to readers: We at Dorf on Law received the essay below from a lawyer who, because his job is not protected by the blessings of intellectual freedom, needs to worry about offending clients and angering thin-skinned politicians.  She or he thus wishes to remain anonymous, which we respect even as we note that there is something very wrong with a world in which such anonymity has become both prudent and necessary.

[The essay is particularly prescient in that it was written before Sally Q. Yates was fired for having somehow "betrayed" the Justice Department -- because heaven forbid that the Acting Attorney General's first concern would be to the Constitution or justice! Yates had been disloyal to Trump's Justice Department, so she had to go.

[Predictably, Trump treated this as just another political moment, using his familiar litany of demagogic insults and denunciations: "Ms Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration."  He might as well have called her "low energy," threatened to lock her up, and accused her of conspiring with Ted Cruz's dad to kill JFK.

[In any event, we invite you to enjoy the essay below.]

Praise be to Allah for the lawyers - the people who wrote the Constitution, who debated it, who pushed for it to be ratified, and who will be critical in defending it. And I'm not saying this as a lawyer but as a citizen.

It's a little known fact that the vilification of the legal profession is a four decades long smear campaign by conservatives with the purpose of dissuading working class folks from asserting their rights. (Believe me, the plutocrats who perpetrate this fraud don't think lawyers are evil and have armies of expensive lawyers working to make the world a safer place for billionaires; ironically, this is the very kind that the general public thinks are the good ones because they mistake money and Ally McBeal appeal for righteousness.) The campaign has been so successful that its message is bought into hook, line and sinker by the overwhelming majority of the population.

Consider the massive corporate scandals and the damage done to our society by the MBA's and MBA-wannabes in just the last decade, the worst of which we have yet to fully recover from. Indeed, consider the damage done by America's "first MBA president" and the possible destruction of our world by our current president (who was never admitted to Wharton's elite MBA program, but who did manage to complete an undergraduate business degree there). They're batting 1.000. But nobody thinks MBA's as a group are evil the way they view lawyers as a group. Hey, did you hear about the MBA who spent his entire weekend doing pro bono work at no charge to help political refugees seek asylum against a fascist administration? Me neither. To be sure, I don't think MBA's are evil, but the comparison illustrates the nature of the smear campaign against lawyers, which has stigmatized the assertion of workers' and other civil rights with great chilling effect.

Until now, we have gotten away with believing in this dangerous myth. For, as imperfect as our union has always been, we have never had the very basis of the Constitution and our way of life challenged from within in such a brazen, broad, fundamental, fast, alarming and disturbing way that transcends the numerous specific issues and that goes to the very heart of western liberalism. The corrosion of civil rights (and the obliteration of unions) by the terrible administration of Ronald Reagan, and even the abuses of power of the George W. Bush administration, as awful and far-ranging as they were, were decaf compared to this full-blown Trump roast in your cup every morning. It is literally the worst part of waking up because you still can't believe that you are stuck in this dystopian nightmare.

Unfortunately, the bubble we have long enjoyed of not having to think about how our system of self-governance was created, how it works, how every single piece of social progress happens, or how justice is won in every case, has now been burst by the biggest of pricks. It is unclear if we will win this war between good and evil. But I hope what is becoming clear is that lawyers - those evil, pernicious lawyers - will play a critical role, not just on the ground but on the very front lines. And hopefully, as a result, we will demand more from our government and from the plutocrats who run this country and their political arm, the Republican Party.

So, with apologies to the Bard, first thing we do, let's fund all the lawyers who are fighting for what has come with meteoric speed to be the defining cause of our time.

Trump Is No More a Political Genius Than Lottery Winners Are Financial Wizards

by Neil H. Buchanan

Anyone who was paying attention should have known that Donald Trump's presidency would be a disaster.  Only the particulars of that disaster remained to be determined.  Having predicted that bad things would happen, however, even pessimists like me are astonished by how quickly matters are spinning out of control.

Just eleven days into his reign, Trump has managed to incite a petty (but revealing) spat with the press about his own popularity, which was embarrassing but mostly harmless.  (I say "mostly" because Trump's obsession with the popular vote will dovetail all too well with longstanding Republican efforts to suppress voting by minorities and young people.)  It was worrisome, but there was nothing especially scary about it.

Now, however, we are confronted with a nascent constitutional battle that has begun with a fight over immigration policy but will soon spread to more and more areas of governance.  When an incident on the second weekend of his presidency can reasonably be likened to Richard Nixon's infamous Saturday Night Massacre, we can say with great confidence that Trump is truly on track to do real damage.

The good news is that there is now meaningful and growing dissent against Trump's shameless actions.  Only a few days ago, it appeared that citizens and politicians were at a loss as to how to react to the chaotic embarrassment that was unfolding, unsure whether to bother fighting with Team Trump over, for example, "alternative facts" regarding the size of the inaugural crowd.

For my part, I suggested last week that continually reminding Trump about his non-majority accidental election was a way to keep him occupied.  The more time he spent insisting that he could have won the popular vote, the less time he would have to do real damage.  Even so, I allowed that reasonable minds might disagree about whether to kick that hornets' nest.

Sooner or later, we might return to a relatively stable situation in which such strategic questions will become relevant again.  As of this writing, however, the stakes have moved far beyond Trump's injured pride (although his ego is always at the center of everything he does, of course), and we may soon witness a test of how strong the rule of law really is in this country.

Either way, there is one issue that we need to confront, and that is whether Trump is an evil genius like Dr. No or instead is more like Dr. Evil, a hapless doofus who only thinks he is a genius.  The answer matters a great deal to how the opposition to the Trump Administration should respond to his dangerous actions.

People have a tendency to believe that things happen because of some grand scheme, which means that we often reject the possibility of mere happenstance.  When a tornado rips through a town, the houses that are left standing are spared only by the luck of the draw, with the path of the storm being no more explicable than a random event.

Even so, survivors often insist on believing that they were spared because they did something right and the victims did something wrong.  Starting from the result, we work backwards to look for the story that puts together cause and effect, to try to make sense of the happy and unhappy outcomes.

We also frequently see this in the financial markets.  Every event, from a market crash to a bull market and every twist and turn in between, makes someone rich, which leads them and others to believe that they knew something that others did not know.  The level of self-delusion can be amusing, to say the least.

Years ago, for example, an investment advisor appeared on PBS's "Wall Street Week," claiming to have developed a method to assess his financial predictions, based on golf scoring.  He explained that, under his method, he had the equivalent of an 18-hole golf score of 56, which he quickly pointed out would be a record-setting score among professional golfers.  Unfazed, the host Louis Rukeyser noted drily that anyone can invent a scoring system that makes himself look good.

But had this man not gotten rich?  If so, he must have done something right, based on some special insight.  Actually, no.  In any random draw, some outcomes will be better than others under any given set of rules.  Moreover, when many wealthy people try to explain their wealth by appealing to their own genius, they conveniently forget that they began the game with a huge advantage.

Sports is also filled with examples of people who get lucky and are temporarily deemed to be geniuses or physical phenomena, sometimes rewarded with preposterous contracts that never have a chance of panning out.  In sports, however, we have the advantage of repeated tests to expose the guy who wins one playoff game but quickly flames out, whereas the Joe Montanas and Peyton Mannings of the world prove their greatness repeatedly over time.

Politics is certainly not immune to this cognitive error.  Surprise winners and their campaign directors are frequently thought to possess some brilliance that others lack.  For example, Jimmy Carter and his campaign pollster, Patrick Caddell, were briefly the boy wonders of American politics.  Carter then lost to one of the most beatable Republican candidates that we had seen up to that time, and Caddell never had another big success, eventually winding up as a talking head at Fox News.  (Because he took a contrarian position on Trump's chances in 2016, he is claiming validation that he saw it coming all along.)

If Obama's key people, especially David Axelrod and David Plouffe, are truly the visionaries that many people thought they were in 2008, they have not shown it recently.  And I have no doubt that the people who managed Tea Party candidates' wins in 2010 have managed to parlay being in the right place at the right time into unearned reputations for political savvy.  Karl Rove's reputation for genius has certainly taken a beating, especially in 2012.

All of which brings us back to Donald Trump.  It is no surprise that he and his handlers would try to anoint him the new genius of American politics.  What is surprising is that so many other people are willing to say, "Well, he won, so that must mean something."

Interestingly, no one is claiming (as far as I know) that Trump or his people put together a strategy that was specifically designed to eke out wins in a few Midwestern states and thus win the Electoral College.  The claim is that Trump is a political genius because he alone came up with a way to tap into voter anger.  And that supposed genius is usually attributed to his rhetoric, playing to white working-class alienation by coming up with the right set of villains.

The problem with this theory is that there was no mystery about the alienation of white working-class voters.  People like me have been saying ever since the beginning of the Great Recession that this is exactly the kind of economic atmosphere in which hateful demagogues flourish.  This was not news.  The signs were flashing red for years.

That is why, after all, the Republican primaries in 2016 ended up being so ugly.  Ted Cruz was attacking Marco Rubio for being too immigrant-friendly, and Rubio was frantically trying to run away from his earlier efforts to pass a bipartisan immigration bill.  That would have happened even if Trump had flamed out.  The entire campaign season became a fight for what only now is being called Trump's base.

The argument for Trump's genius then doubles back to the observation that he won, while Cruz and Rubio and fourteen others lost.  Yes, someone was going to win the nomination out of that entirely undistinguished group, but the guy who won might not have done anything especially savvy.  Again, however, after the fact we always seem to want to look for the story that explains what just happened as something other than random chance.

But why, in the end, is the explanation for 2016's outcome not simply this? "Trump was the loudest, angriest guy in the room.  He was the person who could call himself an outsider at a time when some voters would be drawn to outsiders.  His very absurdity made him catnip to cable news, and they gave him free air time.  Meanwhile, the media held Clinton to completely different standards in the general election."

In this view, Trump became president in spite of himself.  Indeed, if there were truly an underlying genius at work during the long campaign, there should have been some evidence of it, especially during the periods when it looked like he would lose in a blowout.  The closest thing we saw to that, however, was when his family briefly blocked him from tweeting before Election Day.

But maybe the genius was Trump's knowing that he had to continue to be Trump? Perhaps, but how would we distinguish that from the alternative explanation, which is that Trump simply does not have the self-control to change anything that he does, that he was probably going to fail because he could not adjust, and that his unexpected win was not due to his doing anything other than what he would be doing if he were stuck in a room staring into a mirror?

Even so, there are plenty of people who now ascribe nearly mythical powers to Trump.  In the Washington Post, for example, an author recently warned (based on his experience in opposition to Hugo Chavez in Venezuela) that it is a mistake to think that Trump is not a genius.  He wrote: "Getting to the highest office in the world requires not only sheer force of will but also great, calculated rhetorical precision. The kind only a few political geniuses are born with and one he flamboyantly brandishes."

Fortunately, that is simply not an obvious truth.  "Great, calculated rhetorical precision" is hardly how anyone would describe Trump's speaking (or tweeting) style -- unless, of course, one is deep into the reverse-engineering mindset that starts with, "He won," and ends with, "So his unique rhetoric must have been the reason."

Again, it is possible that there was something unique to Trump (and to Carter, Reagan, Bush, Clinton, Bush, and Obama) that is proved by their having won their elections -- in two cases without winning a majority of the popular vote and in two others with whisker-thin victories in both the popular vote and Electoral College.  Color me skeptical.  Sometimes, a win is just a win because it was a win.

In less extreme versions of this phenomenon, writers recast Trump's obvious weaknesses as strengths, such as a reporter for The New York Times who recently described Trump's "... deft conversion of demonstrably false claims into a semantic mush of unverifiable 'beliefs'" in his testimony in multiple lawsuits.

Deft?  Trump's favorite phrase is "trust me," and he robotically repeats everything that he says.  He did well in his business career by starting with a lot of money and then being willing to fight lawsuits simply because he knew that he had the money to wear down his opponents.  Being impossible to pin down on the stand is not necessarily deftness.  It can also be the result of being a reality-challenged fabulist.

Consider two outstanding counterexamples, former Reagan chief of staff Alexander Haig and former Ford and Bush Secretary of Defense Donald Rumsfeld.  Both were masters at emitting clouds of words that deliberately left their questioners fumbling.  Errol Morris's documentary "The Unknown Known" shows how Rumsfeld was able to turn every question into a different question.  (This also distinguishes him from Kellyanne Conway, who merely refuses to answer questions and endlessly repeats talking points.  She is Condoleeza Rice, not Donald Rumsfeld.)

How do we know that people like Haig and Rumsfeld were different from Trump?  We saw them adjust as needed when their situations changed.  By contrast, Trump has one mode, and it never changes.  When he becomes angry, he does the same thing that he always does, only louder.  Trump's verbiage leaves people agape, but not because they cannot follow what is happening.  What he says is just so stupid that people shake their heads and eventually give up.

But does any of this matter?  After all, maybe this is all a question of how generous one wishes to be with Trump.  People who like him are willing to excuse all of his weaknesses, and they now have convinced themselves that because he happens to be the one who ran against their hated nemesis and somehow won, he can do no wrong.  People like me, meanwhile, might merely be holding a grudge.

If that were the story, however, I would have every reason to accept reality and move on.  After all, I do not want Trump to succeed politically because I do not like his policy agenda -- which is turning out to be even worse than we thought it would be.  If he really has a particular political skill that needs to be understood and confronted, then we in the opposition have every reason to acknowledge it in order to confront him most effectively.

Again, if Trump is truly an evil genius, he should be able to figure out ways to adapt to new circumstances and adjust his rhetoric and actions.  Are we seeing any evidence of this?  Not at all.  He is simply retreating into his neuroses and increasing the intensity of what has gotten him (and us) into this mess.  And things are getting worse, for him and for us.

There is a danger in underestimating one's opponent, but there is also a danger in elevating him into a mythic beast.  If, for example, we say that Trump has a unique pipeline into the souls of his supporters, we run the risk of believing that all of them will stand with him no matter what, which is true only of a core group of true believers (who would have been just as steadfast in supporting any Republican).  In reality, many of the people who have given Trump the benefit of the doubt thus far will have every reason to become disillusioned and walk away.

Perhaps most importantly, those of us who must summon the strength to fight this emerging tyrant need to stop psyching ourselves out.  Imagining that his utterly improbable path to the White House somehow shows that Trump is politically unbeatable risks becoming a self-fulfilling prophecy.

We can be sure that Trump's inability to adapt will itself present untold dangers in the days ahead, but his lack of discipline and personal demons can be used against him.  They are his weaknesses, not his strengths.

Monday, January 30, 2017

Trump's Two-for-One Special

by Michael Dorf

After a weekend spent parsing President Trump's evil executive orders, it is a pleasure to consider one that is possibly merely stupid. Today Trump issued an EO that requires, to the extent permitted by law, that each time a federal agency promulgates a new reg, it must eliminate at least two old ones, and the cost of the new reg must not exceed the cost of the eliminated regs.

On its face, the 2-for-1 requirement is easily evaded. Suppose you run NHTSA and you have on the books a reg requiring that new cars be equipped with airbags and another reg requiring that new cars be equipped with backup cameras. You want to add a reg requiring that new cars be equipped with vehicle proximity sensors that alert the driver of a nearby car that could lead to an accident. You scour the existing regs and can't find any that you think should be eliminated. As I read the EO, there is nothing to stop you from "eliminating" the airbag reg and the backup camera reg, and then replacing them with a new reg requiring airbags, backup cameras, and vehicle proximity sensors. Presto! Two regs replaced by one that is really three!

To be sure, the EO authorizes the Director of OMB to formulate "standards for determining what qualifies as new and offsetting regulations." Presumably there will be some effort going into figuring out when a new reg is "really" an old reg plus a new reg. But given that most regs do more than one thing, this process may be more complicated than it at first appears.

The real bite of the EO probably comes from the cost limits, but here too it could be circumventable. What is the cost of my hypothetical vehicle proximity sensor reg? Suppose that once manufacturing is scaled up, it costs a car compnay $300 per vehicle to add proximity sensors. But suppose also that once they buy the new cars consumers discover that they really like the proximity sensors, so much so that at the margin, a person who could afford a car costing at most $20,000 will choose to forgo $300 worth of options he otherwise would have purchased (a sun roof, say, or a deluxe stereo system). As a result, there is no suppression of demand for new cars and thus the car companies are able to pass on all of the extra $300 in compliance costs to the customers. The net cost of the reg is $0.

And that doesn't even take account of social benefits, like the fact that the proximity sensors save lives of drivers and passengers as well as reduce medical and other financial costs of accidents. Under President Clinton's EO 12866, which updated Reagan administration policies, new regs are already subject to centralized OIRA cost-benefit analysis. Thus, any reg that can survive OIRA review can be said to necessarily have at most zero net cost, because its benefits must outweigh its costs. So it's possible that the cost provisions of Trump's 2-for-1 EO do literally nothing.

Now to be candid, I doubt that the Trump OMB will construe the EO that way. Because the EO repeatedly refers to "costs" without ever referring to benefits, OMB will likely say that a reg can only survive if its costs do not exceed the costs of the two or more regs it replaces, without any regard to benefits of either the eliminated or the new regs. What's more, we can expect the Trump OMB to take a narrow view of compliance costs. In my example above, OMB could score the proximity sensor reg as having a cost of $300 because that's the cost of manufacturing, even though the car companies (in my hypo) fully recoup that cost.

But even though that's what the Trump OMB is likely to do, the EO itself doesn't require that approach. Consider another example. Suppose that a reg says that new car bodies must be made from high-strength aluminum. Suppose the cost of such aluminum per car is $1000. Suppose further that prior to the reg, car bodies were made from steel, also at a cost of $1,000 per car. We can imagine Trump's OMB scoring the aluminum reg as "costing $1000" but that's idiotic, given that the real net cost is $0. And there's no sound economic reason to distinguish the net cost appraisal in this example from the net cost appraisal in my proximity sensor example.

So, yes, expect the Trump OMB to use the 2-for-1 EO as a cudgel to block regulation, but don't attribute that to the text of the EO, which is every bit as badly constructed as the more evil EOs on immigration released on Friday. And also, as Dan Farber points out, don't expect the EO to have much practical impact because it probably only affects discretionary rules, which Trump wasn't going to issue anyway.

In Resisting Trump, Act Locally Without Succumbing to Quietism

By Michael Dorf

In two recent posts, I called on Democrats (and by implication, principled Republicans who are horrified by Trump) to resist fighting with one another over how best to resist Trump (here) and what to aim to replace Trump with (here). Today, I want to offer some thoughts on how to go about both surviving the Trump presidency with one's mental health intact and also to play a part in working against Trump for the good of the nation and our local communities.

On a personal level, people like me--straight, white, male, economically secure, and living in a very liberal enclave within a Democratic state--will probably be able to ride out a Trump presidency without much personal pain. True, the qualifier "probably" is there in recognition that Trump could start a trade war leading to a Depression or a shooting war leading to nuclear annihilation. At the very least, the cruelty and aggressive stupidity of Trump's bans on refugees and people from seven countries (none of which have been the source of terror attacks in the U.S. in decades) is already making U.S. academia less attractive to the rest of the world. Thus, even those of us who are relatively comfortable cannot be entirely secure even if we ignore the fate of those most likely to be directly harmed by Trump.

Still, it is tempting for those of us who can probably ride out the worst of Trump to each "tend our own garden," as Voltaire has Candide say at the conclusion of his horrific adventures. The temptation is especially strong for intellectuals, because the life of the mind can be an escape from the realities of the broader world. And indeed, I have found that since the election, I have been spending more time reading books and less time on social media or obsessively following the news.

Retreating from an unhealthy obsession with the latest outrageousness to emanate from Trump and his fellow travelers can be good for one's mental health. Yet taken to its logical conclusion, this attitude leads to quietism--the belief that the world is hopelessly irredeemable and so one should not court frustration by struggling against it. And quietism by those who could oppose evil makes evil more likely to triumph.

For those of us who have the luxury of choosing to engage with and resist Trump and his ilk, the key question is how. I'll consider three variations on the proposition "act locally."

(1) Let me begin by dispelling any suggestion that acting locally is inconsistent with acting nationally. It is possible to walk and chew gum at the same time. More to the point, as a terrific document put together by former congressional staffers illustrates, the best way for individual citizens interested in resisting Trump to make their voices heard is by getting the ear of their respective members of Congress. Its authors draw lessons from the Tea Party movement, writing:
In spite of the fact that [Trump] has no mandate, he will attempt to use his congressional majority to reshape America in his own racist, authoritarian, and corrupt image. If progressives are going to stop this, we must stand indivisibly opposed to Trump and the members of Congress (MoCs) who would do his bidding. Together, we have the power to resist — and we have the power to win. 
We know this because we[] witnessed the rise of the Tea Party. We saw these activists take on a popular president with a mandate for change and a supermajority in Congress. We saw them organize locally and convince their own MoCs to reject President Obama’s agenda. Their ideas were wrong, cruel, and tinged with racism— and they won. 
We believe that protecting our values, our neighbors, and ourselves will require mounting a similar resistance to the Trump agenda — but a resistance built on the values of inclusion, tolerance, and fairness. Trump is not popular. He does not have a mandate. He does not have large congressional majorities. If a small minority in the Tea Party can stop President Obama, then we the majority can stop a petty tyrant named Trump.
Inspirational language, no doubt, but the authors of Indivisible: A Practical Guide for Resisting the Trump Agenda go on to give concrete practical advice about how to sway members of Congress. It's true, of course, that the Tea Party was most effective in resisting Obama after the GOP gained control of the House in the 2010 midterms, but the authors of Indivisible are also right that much of the groundwork was laid when they were still in the minority. Indivisible is one of the few things I've read in the last few months that gives me hope.

(2) Acting locally also means engaging in state and local politics. Republicans currently dominate state politics. There are more than twice as many Republican governors as Democratic ones. A full half of the states have both a Republican governor and Republican majorities in the state legislature. Only four states are comparably all-Democratic. Those numbers are bleak and gerrymandering makes them hard to change. Nonetheless, they are changeable. Republicans at the national level will likely overreach and states with Republican control will likely go along, providing opportunities for Democrats to pick up state legislative seats and governorships.

Moreover, local government can be a source of real power. Republicans have an even greater advantage in local politics because state sub-units (such as counties, cities, towns, and villages) tend to encompass unequal population units, and with Republicans more concentrated in rural areas than Democrats, they tend to control more total units.

But the flip side is Democratic urban dominance. Nine of the ten largest cities in America (including the seven largest) have Democratic mayors, as do twenty-two of the twenty-five largest cities. Although the "packing" of Democrats into cities undercuts the number of seats Democrats hold in the House of Representatives, cities also have substantial power, even when, as a formal matter, their powers are limited by state law. Among other things, local governments--including cities--often have substantial discretion in how to spend state and federal funds allocated to them. And as major economic and cultural sites, cities provide value to national leaders that gives municipal leaders leverage.

A memorable incident from the 1970s is instructive. People remember President Gerald Ford stiffing New York City during its time of need (although he never actually said "drop dead"), but they tend to forget that within two months of the infamous Daily News headline, he signed legislation providing the Big Apple with the loans it needed. Our nation's major cities are too big to fail (not least now because many of them contain Trump-branded properties), and that gives their Democratic leaders power.

Beyond the numbers game, of course, much policy is made at the state and local level, often on a non-partisan basis. A county government in a county that will lose crucial funding for its public hospital due to Obamacare repeal or that will have to shoulder the burden of cleaning up toxic waste sites without EPA assistance due to Trump/GOP gutting of the EPA is a county government that can both provide resistance to the national policies and look for ways to work around them--regardless of whether the County Board has more Republicans than Democrats.

(3) Finally, acting locally need not necessarily be defined geographically. Local activism could also mean taking action in some sphere in which one plays a role that can be a site of resistance to Trumpism. I'll give a couple of examples from my own experience.

Because of the risk faced by undocumented immigrant university students in the likely event that Trump cancels DACA, students and faculty at universities (including my own) have been urging our university administrators to take measures to protect those students. The term "sanctuary campus"[*see footnote below] movement is admittedly somewhat ill-defined and, as with all movements, there are more and less radical versions of this idea. At its most radical, the movement would have university administrators, faculty, and students providing active resistance--including law breaking--to federal authorities seeking to crack down on undocumented students. The somewhat less radical version (which I support) would have universities withhold cooperation with such efforts except under court order and replace any withdrawn federal financial support with other resources. Relatedly, it would have universities support and defend foreign students, faculty, staff, and their families against the horrid travel bans I discussed yesterday. I was heartened that Cornell (interim) President Hunter Rawlings issued a strong statement adopting most of what we faculty have been proposing. Strong leadership has also been in evidence from the University of MichiganHarvard, and elsewhere.

Another version of localism defined non-geographically means acting in one's area of expertise. Mine is law and so, while I think that nearly all of Trump's cabinet nominees are problematic, I signed a letter specifically objecting to his nomination of Senator Jefferson Beauregard Sessions III to be Attorney General because of what I regard as Sessions' hostility to the civil rights mission of the Justice Department. Others, with different expertise, might likewise oppose personnel and policies favored by Trump to which their expertise speaks.

Of course, these efforts won't always or even mostly succeed at their immediate goal. But they sometimes will. It is already conventional wisdom that the administration reversed itself yesterday and decided that the country ban doesn't apply to U.S. green card holders because of the widespread pushback against the policy. Sustained pressure could lead to more changes in the executive orders or at least to a face-saving decision to allow the policies to lapse when the Trump administration concludes that with a few cosmetic changes whatever policies are in place count as the vaunted "extreme vetting."

Meanwhile, even failed resistance can build solidarity of those already committed to the cause and raise the consciousness of others. There is value in pointing out to the public that Jeff Sessions is not just a southern conservative but someone with a long record of hostility to civil rights.

In the fight to prevent the "normalization" of Trump and Trumpism, plain-vanilla opposition to particular personnel or policies of the sort that would be appropriate even when offered against a normal Republican (or for that matter Democratic) president, his policies, and his nominees has a role to play, because just as the impact of Trump's attacks on the norms of democracy is cumulative, so is the impact of resistance.


*footnote: The term sanctuary campus refers to universities and colleges. Sanctuary campuses serve a function similar to the function of sanctuary cities. An executive order signed by President Trump last week purports to withhold federal funding from sanctuary cities, but as Ilya Somin notes on the Volokh Conspiracy, the order is flatly unconstitutional because only Congress has the power to condition funds on state or local compliance with federal law. As an aside, I disagree with Somin's further conclusion that 8 U.S.C. § 1373, which the Trump order cites as authority, itself violates the 10th Amendment. In Reno v. Condon, the Supreme Court distinguished between acts of Congress that demand affirmative aid from states and their subdivisions—which are invalid—and acts of Congress that forbid or pre-empt state laws limiting cooperation by others with federal authorities—which are valid. 8 U.S.C. § 1373 is a law of the latter type. Taken at face value, it does not affirmatively require state or local authorities to do anything. It merely forbids state and local power from interfering with the voluntary cooperation with the feds by state or local agencies or individuals.

Sunday, January 29, 2017

Malevolence and Incompetence, But Also Post-Hockery, Explain Trump's Cruel Executive Orders

by Michael Dorf

In addition to being appalled at the gratuitous cruelty and almost certainly counterproductive stupidity of President Trump's executive orders concerning refugees in general, Syrian refugees in particular, persons attempting to enter the U.S. from seven (not exactly randomly selected) majority-Muslim countries, and the thinly disguised religious discrimination underlying the favoritism for "minority" (i.e., Christian) refugees, lawyers and law professors in the circles in which I travel have been stunned by the incompetence of the lawyering or lack of lawyering that went into the formulation of these and other orders. For example, the executive order that cracks down on so-called sanctuary cities withholds federal funds from localities that do not do the administration's bidding, even though South Dakota v. Dole--which was decided nearly thirty years ago and has been repeatedly reaffirmed since then--makes clear that only Congress can attach conditions to federal funds disbursed to state and local governments. Any competent lawyer working at the high levels of government knows this.

As Benjamin Wittes writes in a very important essay on Lawfare, the incompetence of the Trump immigration orders apparently stems from the failure to consult with any of the agencies or personnel responsible for implementing the orders or to follow procedures that have been routine in prior administrations of both parties. Wittes, who wrote a chapter on military detention in my book Constitutional Law Stories, is generally hawkish on counterterrorism, but he is a rational and decent human being and so, like any rational and decent human being, he deplores what Trump is doing to refugees and other non-citizens. Accordingly, he explains that in the short run the Trump team's incompetence will tend to undercut the effectiveness of his malevolence, which is to the good, even as he also explains that in the long run the Trump administration's incompetence could pose grave dangers in the face of genuine national security threats (as opposed to well-vetted innocent men, women, and children fleeing for their lives from our mutual enemies).

I agree with Wittes on both points. Here I want to expand on Wittes's explanation for the incompetence of the Trump memos by pointing to their post-hockery. Litigators know a great deal about post-hockery. You have a client who has a weak legal position. In an ideal world, you or some other lawyer would have advised the client to take a different course of action, but it is too late for that now, so you must defend his, her, or its legal position by making arguments to a court for why your client should prevail. Sometimes it's impossible because the law is too clear. But often there is wiggle room in the law and so you find a way to argue that what, on its face may appear to be a weak legal position, should actually prevail.

Trump's White House team is in a roughly analogous position, with a crucial difference that I'll elaborate shortly. In an ideal world, someone would have persuaded Trump not to call for "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on" back on Pearl Harbor Day, 2015. Although that announcement no doubt helped him with the most xenophobic and religiously bigoted Republican primary voters, it earned condemnation from Republican and Democratic elected officials and was never going to be implemented. Thus, at some point during the campaign, the Muslim ban morphed into a ban on entry by people coming from countries where terrorism is a serious threat. However, Trump's egotism prevented him from saying something like "I was wrong to call for a ban on Muslims because religious discrimination is immoral and unconstitutional, so I'm now changing my proposal." Thus, the idea of a Muslim ban remained and remains in place to shape the policy.

When it came time for a small group of White House advisors to write the refugee and country bans into an executive order, they were still guided by the original proposal. As reported in a CNN story, when the executive order was first released, Homeland Security officials concluded that it did not bar permanent residents from the seven listed countries, but that decision was overruled by Trump reichsführer Steve Bannon and consigliere Stephen Miller. Neither Bannon nor Miller is a lawyer, and so their judgment that the order applies to green card holders (temporarily stayed by Judge Donnelly's order in the Darweesh case, at least for those who have made it back to a U.S. port of entry), was almost certainly not based on a close parsing of the executive order they themselves apparently played a large role in drafting. Nor was the judgment likely based on their own assessment of their own intentions in drafting the executive order just days earlier.

Rather, I want to suggest that the interpretation was guided first and foremost by their recollection of Trump's campaign rhetoric. They understood their job as giving effect, insofar as possible, to Trump's promise of "a total and complete shutdown." The order could not plausibly be construed as totally and completely shutting down Muslims entering the U.S., given its language. But insofar as it contained any ambiguity, Bannon and Miller were guided by the imperative to convert into policy as much as they could of Trump's original pronouncement.

To be sure, unlike a lawyer with a client who acted in a way that the lawyer now regrets but cannot change and thus must try to defend, it is likely that Bannon, at least, and possibly Miller too, were enthusiastic about carrying into effect as much as they could of Trump's idea for a total ban on Muslims entering the U.S. But I want to suggest that even if they were more neutral towards the idea, they would have found themselves being guided by Trump's initial aspiration for the policy. Indeed, putting aside the question of the policy's application or non-application to permanent residents, the whole executive order itself is an exercise in post-hockery: It is an effort to give as much effect as possible to some idiotic and evil thing that Trump happened to say in the campaign.

That brings me, finally, to an important distinction between litigation post-hockery and policy post-hockery. A lawyer who must come up with a post hoc legal justification for a client's action has the advantage of only needing to argue that it fits into a gap or ambiguity in the law. The lawyer need not argue that the client's course of action was best, all things considered, or even a good idea. By contrast, a presidential administration adopting and implementing a new policy must argue in the court of public opinion that the policy actually makes sense. That, however, is impossible, not only because the particular policies don't make sense but because they were never intended to make sense. The statements that the Trump White House has been converting into executive orders were not in any way the product of Trump's having carefully studied even far-right white papers on immigration or anything else. They were the product of his own impulsive bigoted instincts and his showman's talent for gaining attention by hearing what outrageous things others in his party were proposing to do and then going much further.

Thus, the executive orders are indeed the product of both malevolence and incompetence, just as Wittes argues. But they are also the product of a doomed effort to turn blind and stupid rage into law.

Friday, January 27, 2017

Trump's Snowflake Voters

 by Neil H. Buchanan

There is now a received wisdom about the 2016 election that goes something like this: Trump was inevitably going to win, and the reason no one saw it coming was that journalists live in liberal bubbles in coastal cities and do not know any Trump voters.

If only these journalists had "gotten out there" and interviewed Real Americans, rather than holding them in contempt, they would have felt -- really felt -- the pain of these voters.  This story then holds that those angry voters naturally voted for Trump because he is the ultimate outsider, and they felt in their guts that his solutions were just what is needed to reverse the pain in their lives.  Sticking it to those annoying elitists was an added bonus.

But what if that received wisdom is wrong?  More importantly, what if this new conventional wisdom is actually more condescending to voters -- more the result of the liberal bubble inhabitants' biases and groupthink than of actually applying logic to evidence -- than the supposedly arrogant narrative that it replaced?

I offered an initial assessment of this already-established narrative back on December 1, quoting one analyst who wrote: "Trump is president because of a regional revolt ... .  White people generally didn’t deliver the White House to Trump, however much they enabled him; the Rust Belt did."

As that quote implies, everyone is trying very hard only to talk about the Trump voters who are not racists or otherwise bigoted.  For obvious reasons, the question of race in the election is a sensitive one, as I have explored recently.  (See here and here.)

More to the point, those of us who oppose Trump are optimistic enough to believe that a large number of his current supporters are not permanently in his camp.  Yes, Trump has undeniably brought some ugliness into the mainstream, not all of which will go away any time soon.  But we need to believe that most people are inherently good.

The instant consensus noted above -- that liberal journalists missed the real story -- relies in large part on the idea that Trump won his sliver-thin margins in several now-post-industrial states by flipping formerly Democratic voters to his side.  If that really is the story, then the last two and a half months of hand wringing about those white working class voters is obviously a necessary step in Democrats' efforts to return to political prominence.

The problem is that the data never quite told the story that everyone now thinks is true.  The same day that I wrote about "reaching the reachable Trump voters," in fact, two scholars published a piece in Slate in which they looked at voting data from what they called the Rust Belt 5 -- Iowa, Michigan, Ohio, Pennsylvania, and Wisconsin.  The story they tell is quite interesting and surprising.

As everyone should know by now, three of those states (Michigan, Pennsylvania, and Wisconsin) provided the Electoral College edge for Trump.  As I calculated recently, if fewer than 54,000 Trump voters in those three states had flipped to Clinton, we would not currently be scratching our heads about "alternative facts" or worrying about trade wars (and shooting wars).

The authors of the Slate piece, Konstantin Kilibarda and Daria Roithmayr, point out that the data support a distinctly different story from the "angry white working class voters flocked to Trump" narrative.  It is not that the raw vote totals are wrong, so it does remain true that the equivalent of the population of Elyria, Ohio swung the election for Trump.  That by itself remains an astonishing fact.

Kilibarda and Roithmayr, however, describe the so-called Rust Belt revolt as a myth because "[t]he real story—the one the pundits missed—is that voters who fled the Democrats in the Rust Belt 5 were twice as likely either to vote for a third party or to stay at home than to embrace Trump."

Overall, more than a half million under-$50,000 voters who had voted for Obama in 2012 did not vote at all in 2016.  Furthermore, fewer than two-thirds of the white voters who had voted for Obama in 2012 voted for Trump last year, and those who stayed home or who voted for a third party totaled 220,000 -- more than enough to swing the election for Clinton.

So even if we are looking only for data to support the angry-working-class-whites narrative, we end up with a chunk of those voters who never embraced Clinton but who certainly could not join their angry friends at Trump rallies.

In addition, the Republicans picked up as many voters in those states whose incomes are above $100,000 annually as they did among voters who earn less than $50,000.  It was not really a working class revolt after all.

More shockingly, Democrats also lost 400,000 votes among the "black, indigenous, and other people of color (BIPOC) vote," compared to 2012.  One third of those voters, for reasons known only to them, voted for Trump in 2016.  Put another way, more than 260,000 Democratic voters of color fell away in 2016 by not voting or by voting for a third-party candidate.

Therefore, the notion that down-on-their-luck white voters flipped to Trump is not exactly wrong -- enough such voters did so to make up the deficit that Clinton needed, many times over -- but only motivated thinking by pundits could have turned this into the dominant theme of the post-election discussion.

In some ways, this distorted pundit-led discussion is an example of what can usefully be called an insta-consensus.  On election night, shocked analysts were casting about for a story to tell, and Trump's bigoted campaign rhetoric all but begged for that story to be about angry white voters.  Everyone was being sensitive not to call the white Trump voters themselves bigots, so this had to be spun as a story about misunderstood downscale white people.

This kind of distorted insta-consensus is actually all too common.  Perhaps the most dramatic example is the completely false narrative that emerged after the mass shooting at Columbine High School in 1999.  The entire story that was told about that horrific event -- a "trench-coat" mafia of goth-obsessed kids wreaking revenge on the popular jocks who had tormented them -- turned out to be utterly false.  Yes, I was surprised, too.

Although that example is extreme, the 2016 election post mortem is in its own way just as misguided.

Because so many liberals are willing to believe the negative stereotypes that they hear about themselves -- "Well, gee, I really don't like tractor pulls, and I do laugh at candidates in the Iowa caucuses when they eat fried cheese" -- I strongly suspect that this new narrative is a peculiar form of penance for people who deep down are ashamed when Sarah Palin describes other places as "the real America."

I recently read a long article by the journalist George Packer in The New Yorker, which was published a week before the election.  It is a fascinating read, in part because it shows that whatever else one might say about Hillary Clinton, she was keenly aware of the populist rumblings among working class voters and was actually quite focused on winning them over.

Packer's piece is not without its weaknesses.  Any journalistic effort that actually takes Thomas Friedman and Charles Murray seriously as thinkers is not on strong ground, after all.  In any event, Packer focuses on the idea that the white voters who were drawn to Trump were understandably angry with supposed liberal elites.

Packer quotes Murray: "The energy coming out of the new lower class really only needed a voice, because they are so pissed off at people like you and me.  We so obviously despise them, we so obviously condescend to them—'flyover country.'"

And there it is again, the supposed condescension and disdain that Trump's voters are now thought to have been rebelling against.  The problem is that all of this solicitude for the feelings of Trump's voters is itself insulting, condescending, and disdainful.  One can imagine Murray and Packer whispering: "Shhhh.  Don't say anything bad about them, because they hate that.  They're very sensitive!"

To use the insult that the pundits on Fox News are now wrongly hurling at college students, people like Packer seem to think that working class white people are "snowflakes" -- fragile, pathetic, and weak losers who will melt if someone says something unpleasant to them.

Surely, no one likes it when others are being condescending.  But I frankly think that working class voters can take it when they find out that their leaders don't like fried butter on a stick.

When I was growing up in a working-class suburb of Toledo, Ohio, we knew that Ohio was the butt of jokes (and within Ohio, Toledo was the butt of jokes).  When I went to college, for example, a kid from a suburb on Long Island (a suburb that was surely no different from my suburb) asked with a smirk, "How many cows do you have on your farm?"  It was stupid, but who cares?  We were stronger than that.

Moreover, as I have pointed out again and again, it is also condescending to Trump's voters to say that they hate elites but somehow they cannot bear to be told that Trump is conning them by installing people in power who really look down on working people.  (When the Koch brothers are not pouring money into Republican campaigns, they are endowing operas and ballets in liberal, disdainful, condescending, elitist New York City.)

People can be stubborn, so we can depend on Trump's voters to deny that they made a mistake in voting for Trump.  Indeed, we can be sure that the non-voters who actually flipped the election to Trump will be even more insistent that their acts of omission were not the reason for Trump's rise.

But it is essential to engage with these voters and non-voters and show them that Trump's promise to bring back the jobs of the fifties and sixties is a cynical lie.  That is going to upset some people, but that is politics.  The alternative is to refuse to engage on the issues at all.

People are not snowflakes, and they can handle adult conversations in which they are challenged to rethink their positions.  For liberal pundits to think otherwise, and to imagine that white working-class voters will suddenly change their views if liberals learn to love pork rinds, is what real condescension looks like.

Thursday, January 26, 2017

A Right to Appeal?

by Michael Dorf

In my latest Verdict column, I discuss the Supreme Court's recent cert grant in Davila v. Davis. The case presents the admittedly technical question of whether a criminal defendant's state habeas lawyer's ineffectiveness counts as "cause" sufficient to excuse the default of a claim that his state direct appeal lawyer was also ineffective, such that a federal habeas court can hear his petition for relief. Got that? No? Okay, go read the column, where I explain the details as well as I can for laypeople. Also, if you're still a law student, take Federal Courts and/or an advanced class in federal habeas corpus. The law still won't make sense, but at least you'll know exactly how it doesn't make sense.

In the Davila case the issue is how narrowly or broadly to read two prior precedents (Martinez v. Ryan and Trevino v. Thaler), which held that ineffectiveness of state habeas counsel is "cause" that can excuse defaulting a claim of ineffectiveness of state trial counsel. In a sense, Davila poses the question of whether a claim of ineffectiveness of state direct appeal counsel is more like a claim of ineffectiveness of trial counsel--if so, the habeas petitioner wins--or more like other claims, which are subject to the rule of Coleman v. Thompson that ineffectiveness of state habeas counsel is not cause--if so, the state wins.

Martinez and Trevino themselves no doubt will strike many readers as somewhat peculiar. There is no federal constitutional right to state habeas. So how can there be a right to effective assistance of counsel on state habeas--even if only for the limited purpose of excusing a default? The Supreme Court in Martinez  tried to duck that question by claiming that it was only recognizing an equitable principle, not a legal right. If that sounds mysterious to you, you're not alone.

Still, the notion of a conditional right isn't all that hard to understand. We find conditional rights in other areas of the law as well. There is no right of the public to have the government dedicate public property as a municipal park, but if it does, then there are various rights of access guaranteed by the First Amendment under the public forum doctrine. Closer to the context of a case like Davila itself, there is no federal constitutional right to an appeal in a criminal (or civil) case, but if the state provides for an appeal, then there is a right to counsel (including state-appointed counsel for indigents) on appeal, per the rule of Douglas v. California (1963).

Thus, the idea that there is no right to state habeas, much less to free counsel for state habeas, but that equity will excuse a default of an otherwise valid ineffective assistance of trial counsel based on ineffective assistance of state habeas counsel falls within the general category of propositions that deny that the greater power to deny some right or benefit entirely includes the ostensibly lesser power to deny it partially on some problematic basis.

In itself, the idea that the greater power does not always include the lesser power is sensible enough, especially where the exercise of the ostensibly lesser power would result in illicit discrimination. The greater power of the government not to provide health insurance at all does not include the lesser power to provide health insurance only to white people. The greater power not to create a municipal park does not include the lesser power to create a park open only to pro-Democratic rallies and marches. Etc.

Likewise, some of the injustice of allowing a death sentence to stand based on lawyer incompetence surely sounds in principles of equality. Who lives and who dies should not turn on the fortuity of who has the better lawyer.

Yet that principle doesn't seem to carry us far enough in the current context. For one thing, the fact that there is no right to a lawyer at all in state habeas means that even after Martinez some defendants could end up being sentenced to death based on the quality of (non-)lawyering at the state habeas phase--namely, those defendants who lacked any counsel on state habeas. That's why the Court in Martinez suggested--but did not decide--that perhaps there is a right to a lawyer on state habeas where state habeas is the first opportunity to raise a particular claim, such as ineffectiveness of trial counsel. In such cases, state habeas functions as de facto first appeal and thus the rule of Douglas applies. That, at any rate, is the possibility left open by Martinez. I am suggesting that the equal-protection logic of the opinion argues in favor of extending Douglas in this way.

But that brings us back to a problem with Douglas itself. The Court's opinion in that case sounded chiefly in equal protection, concluding that "[t]he indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal." That is indeed problematic, but Douglas ought also to have sounded due process themes. Sure, if the state gives an appeal, it should have to provide a lawyer. But is it really permissible for the state to vitiate that right for everyone by denying any right of appeal? The Douglas Court thought so. It left undisturbed the proposition--articulated in McKane v. Durston (1894) and reaffirmed in Griffin v. Illinois (1956)--that the Constitution does not require any appeal in a criminal case. No subsequent case calls that proposition into question.

To be sure, the issue is hypothetical, because every state and the federal government affords at least one layer of appeal in criminal cases. But what kind of law professor would I be if I permitted the hypothetical nature of the problem to preclude my examining it?

So, suppose some state were to do away with a right of appeal in criminal cases, preserving (let's say) discretionary review by the state supreme court to be followed by the discretionary grant of cert by the U.S. Supreme Court on federal questions that could prove dispositive. Under current doctrine, that would be permissible. Should it be?

I would like to think not. For one thing, the very fact that all of the states in fact permit a right of appeal in serious criminal cases is evidence that such a right has become "fundamental" to what the Court in Duncan v. Louisiana (1968) called the "American scheme of justice." Just as in the Eighth Amendment context the widespread rejection of a practice by the states serves as evidence that the practice is "cruel and unusual," so in this context the widespread--indeed universal except in my one hypothetical state--practice of granting appeals in criminal cases argues for its fundamentality.

There is also the problem of error. Some years ago my then-colleagues Jeff Fagan and Jim Liebman examined capital cases from 1973-1995. They reported that reviewing courts found prejudicial error in 68% of those cases. Many of those errors did not directly bear on guilt or innocence, but some did, and even the ones that didn't involved serious error. Perhaps the error rate is somewhat lower in non-capital cases, where the rules are somewhat less punctilious. At the same time, however, one would think that the high stakes of a capital case would give prosecutors and trial judges extra reason to get it right. In any event, even if the error rate in capital cases is several times higher than in non-capital cases, the Fagan/Liebman findings imply that trial judges err enough to warrant appeals in all cases. A 1993 NY Times story about an especially error-prone judge cited a 20% reversal rate, even as it noted an 8.5% nationwide reversal rate for the most serious felonies. A system in which trial court judges did not have to worry about reversal would likely produce an even higher reversal rate.

To be sure, the fact that an appeals court reversed a trial court is no guarantee that the appeals court was right and the trial court was wrong in some absolute sense. But our one-way ratchet system (in which a defendant can appeal a conviction but the government cannot appeal an acquittal) will catch the errors that most threaten our core principles--that it is better to let the guilty go free than to punish the innocent.

That brings me, finally, to a practical point, a way in which my plea for a right to appeal is relevant in a country in which criminal defendants already have rights to appeal. Both the Fagan/Liebman study and common sense suggest that each additional layer of review adds to the reliability of the criminal justice system. Of course, one can reach a point of diminishing returns. But I do not think we had reached that point in the early 1970s when the Burger-then-Rehnquist-then-Roberts Court and then Congress began to substantially cut back on the scope of federal habeas corpus as a collateral remedy for state prisoners.

The Davila case arises in the aftermath of that cutback. Under the Warren Court precedent of Fay v. Noia, state court procedural defaults were generally excused for federal habeas purposes so long as the defendant did not "deliberately bypass" the state courts. Counsel's incompetent decision not to present an issue to a state habeas court would not count as deliberate bypass under Fay. The baseline rule of Coleman and other post-Warren Court cases--requiring the habeas petitioner to show cause--is what creates the need for Davila to argue that his case is more like Martinez than like other defaults through the ineffectiveness of state habeas counsel. And those post-Warren Court cases, in my view, under-value federal habeas because they under-value the right of appeal. Indeed, as Douglas shows, even the Warren Court, which decided Douglas, under-valued the right of appeal.

Wednesday, January 25, 2017

Trump's Copycake

Guest Post by Diane Klein

Earlier this month, unnamed representatives of the Trump Administration commissioned Washington, D.C.’s Buttercream Bakeshop (and its owner, Tiffany MacIsaac), to make a cake for Trump’s “Salute to Our Armed Services” ball on Friday, January 20, 2017.  As bakery clients frequently do, they brought in a photograph of another cake.  But this prior cake was not merely to be used as “inspiration” - the instructions were to “replicate” it, as precisely as possible.  And what cake was to be copied?  A nine-tier showstopping cake made by Food Network celebrity chef Duff Goldman - for the Obama Administration “Commander-in-Chief” inaugural ball in January, 2013.

Goldman described the cake to the Washington Post on January 20, 2013, this way: “a silver, 18-inch base that becomes light blue, then navy blue, as it tapers to the top. The bottom layer will boast red stripes, while another layer will feature red, white and blue bunting. The cake will include not just the presidential seal, but also the seals of the five branches of the military, each made with fondant, gum paste and royal icing. Stars attached to wires will appear to burst from the creation.”  The tiers of the cake included many different flavors: red velvet with cream cheese frosting, pumpkin-chocolate chip (with chocolate fudge), and lemon-poppy and pineapple-coconut (with buttercream).

As with the use of the Rolling Stones’ “You Can’t Always Get What You Want” and “Heart of Stone” by the irony-impaired Trump team, no permission was obtained from the original creator of the work.  There is no question that the use for public performance of the copyrighted music of another is unlawful copyright infringement (though whether any legal action will be pursued is unknown).  But what about the copycake?  Does Duff Goldman have a cause of action against MacIsaac, Buttercream, or even the White House?

Two theories suggest themselves: copyright infringement and unfair competition.

For a copyright infringement action to be viable, of course, the underlying subject matter must be copyrightable.  Recipes are not copyrightable.   But here, as it turns out, what was copied was not the actual cake.  In fact, MacIsaac’s creation was not a “cake”at all - it was decorated styrofoam, with just one section of cake for ceremonial “slicing.”  What is at issue, then, is the pattern or design of the cake’s decoration.  Should it be analogized to a clothing design, which is not copyrightable, and hence, can generally lawfully be copied once seen in public?  Or is the cake more like a traditional work of art, and protected (although no copyright registration was made in this case)?

The Copyright Act by its own terms covers “sculptural works” under 17 U.S.C. Sec. 102(a)(5).  That a cake is to be eaten is not obviously disqualifying.  Under the Copyright Act, a “useful article” may nevertheless also qualify as a protectable sculptural work “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”   The “utilitarian aspects” of a cake are presumably limited to its consumption.  All the rest - the fondant Presidential Seal, colored stripes, stars on the ends of sticks stuck into the cake, and so on, seem clearly to qualify as “pictorial, graphic, or sculptural features.”

Section 102(a)(5) of the Copyright Act codified the holding of Mazer v. Stein, 347 U.S. 201, 214 (1954), which protected “china statuettes of dancing figures that appeared on the bases of table lamps.”   A 2010 Fourth Circuit case, Universal Furniture International, Inc. v. Collezione Europa USA, Inc., provides further helpful guidance.  In this case, one furniture company sued another, claiming its designs had been copied (and sold for less).  The furniture in question “was highly ornate...adorned with three-dimensional shells, acanthus leaves, columns, finials, rosettes, and other carvings,” language that might as easily describe a fancy decorated cake.  One furniture expert “described the collections as ‘an ornamentation explosion.’” Collezione Europa defended itself by, inter alia, arguing that furniture designs were not copyrightable.  The Fourth Circuit disagreed, distinguishing the non-protectable utilitarian elements of the furniture, from the purely decorative.

This doctrine, now known as “conceptual separability.” “exists when the artistic aspects of an article can be conceptualized as existing independently of their utilitarian function….[when] the design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences. If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists.  Conversely, when the design of a useful article is as much the result of utilitarian pressures as aesthetic choices, the useful and aesthetic elements are not conceptually separable.” Separating ornamentation from function, the Fourth Circuit found the designs protectable.

Duff Goldman’s cake, too, might be described as an “ornamentation explosion,” using cake decoration as a medium of artistic expression.  His cake was “meant to pay special homage to the nation’s armed forces, with the seals of the five branches,” along with its other elaborate decorations.  History’s first “celebrity chef,” Marie-Antoine Careme, might have had just such a cake in mind when he famously remarked, “The fine arts are five in number, namely: painting, sculpture, poetry, music, and architecture, the principal branch of the latter being pastry.”  Further evidence of conceptual separability is provided when we remember that there was no edible or utilitarian part of MacIsaac’s replicake.  It was simply a heavily decorated stack of styrofoam blocks.

Although a claim by Goldman could be negated if his original cake were a “work made for hire,” in the end, this theory is inapplicable.  (I credit Cornell Law student Siobhan Mahaffey for the suggestion.)  An independent contractor (like a baker) can certainly create such a work, and in that case, the person or entity that commissioned the work is the owner of the copyright.  Moreover, if that entity is the White House, arguably, the person who commissioned the replicake was acting on behalf of the copyright owner (same White House, different occupant), and there was no infringement at all.  However, a sine qua non of a work made for hire is a written agreement to that effect, and none is in evidence here.

In addition to a copyright infringement claim, might this also be a form of unfair competition?  The essence of an unfair competition claim of this type is “passing off,” or misrepresentation as to source.  With respect to the Trump White House, the person who ordered the cake of course knew it was not being obtained from the original baker - the instruction was to copy it.  However, anyone who recognized the cake as identical to the prior one might easily assume it was made by the same person (other than Goldman, of course, who knew he didn’t make it!).  The presentation of the cake at the event included no representation as it its source or creator at all.  Ordinary passing off involves the misrepresentation of one’s own goods or services as someone else’s.  The fashion world is plagued with it; the popular chain Forever 21 has been sued more than 50 times for its knock-offs of famous designer clothing.  Other examples include counterfeit purses or soda or (more dangerously) prescription drugs.

This situation involves what is called “reverse passing off.”  Here, the wrongdoer misrepresents someone else’s goods or services as her own.  (In this way it resembles plagiarism in the academic context.)  If MacIsaac or Buttercream were to state or imply that this was their own original cake design, that might qualify as reverse passing off.  But MacIsaac did no such thing: she was entirely open (albeit, after the fact) about having been asked to “replicate” Goldman’s cake.  Arguably, then, there is no “passing off” in a case of open copying.

A copyright having then arisen even in the absence of registration, Goldman might well have had a claim, although his public statements seem to have given MacIsaac an implied license after the fact.  On January 21, 2017, he tweeted, “Remembering a fantastic cake I made is awesome and the chef that re-created for @POTUS Trump did a fantastic job. Group hug, y’all.”

Goldman’s magnanimity was matched only by MacIsaac’s generosity: she donated the proceeds from the cake to the Human Rights Campaign, a high-profile gay rights group.  In conclusion, like so much else about the Trump campaign, inauguration, and nascent administration, the replicake is deceptive, phony, and indigestible - but probably not (strictly) unlawful.

The Enduring Personal Appeal of Donald Trump--and What We Can Learn From it

by William Hausdorff

Give 'em the old razzle dazzle
Razzle Dazzle 'em

Give 'em an act with lots of flash in it
And the reaction will be passionate

Give 'em the old hocus pocus
Bead and feather 'em

How can they see with sequins in their eyes?
What if your hinges all are rusting?
What if, in fact, you're just disgusting?

Razzle dazzle 'em
And they’ll never catch wise!

(sung by the character Billy Flynn, from Chicago, the Musical)

At least 40% percent of Americans currently retain a favorable opinion of President Donald Trump.  He is even more popular within the Republican Party, as shown by the unwillingness of any Republican official to call him to task for his blatant personal conflicts of interest, or for any Senator to declare they will vote against ANY of his cabinet nominees, no matter how unqualified, mendacious, or corrupt.  Why?

1.  It’s not because President Trump has an attractive personality.  His demeanor is unpleasant, if not repugnant.  He has no sense of humor.  He’s sarcastic in the worst New York way, like Rudolph Giuliani, with a mean edge (disclosure:  I’m a New Yorker too).  He has zero charm.  Even women who voted for him, who excuse his boorish behavior, say he reminds them of their ex-husband. 

That’s unusual in a winning Presidential candidate, but he was facing Hillary Clinton, also not perceived as a warm person.  In contrast, Obama was the hands down winner in the charisma department compared to John McCain and Mitt Romney.  Pundits in 2000 and 2004 seriously suggested that election outcomes then had a lot do with the perception that it would be more fun to have a beer with George W. Bush than with either of the wooden public personae of Al Gore or John Kerry.

(Although I loathed his politics, I have little difficulty believing that George W is a truly likable guy in person—think of his little nicknames—primarily because I remain perplexed what else he had going for him besides his name and the Bush organization.)

To complete the picture, Bill Clinton was much more charming than either the passionless George Bush Sr or the stern Bob Dole, and the cinematic Ronald Reagan had much more charisma and a better public sense of humor than either the dour Jimmy Carter or the earnest but not scintillating Walter Mondale.

Trump’s personal shortcomings may ultimately cause problems.  It’s fun to fantasize that he won’t last long in the Oval Office. Like Nixon, Trump is pathologically insecure and appears to have few friends or even sympathetic ears.  Both seem inherently self-destructive.  If and when the public tide turns against Trump, it seems likely there will be little goodwill to draw on and his reign will crumble fast.  Of course, then we get Mike Pence.  (But maybe we already have him--see below.)

2.  Trump’s willingness to be blunt and bold (even if often offensive and/or insulting and/or petty) continues to appear as a major positive attribute in interviews with Trump supporters, and distinguishes him from most other politicians, Republican or Democratic. 

The Democrats have something to learn here.  The Democrats could have seized Bernie Sanders’ and Trump’s signature issue of “the rigged system” by bluntly refusing to participate in hearings with any nominees whose ethics forms aren’t filled out or have refused/or not yet dealt with their conflicts of interest.  This would have pushed the issue to the forefront, and made it clear that the Democrats were simply not going to accept the violation of this fundamental norm.  Even if the Republicans chose to held Republican-only hearings, it would have looked bad for them and for Trump, and the Democrats would have appeared to have stood for something.

However, to be most credible the Democrats would need to start acknowledging their own complicity.  For example, it was reported that 

 [Education secretary nominee Betsy De Vos’] family gave $250,000 to five of the 12 politicians who sit on the Committee of Health, Education, Labor and Pensions”

of which $31,000 came from De Vos herself.

Yet later in the same article her supporters gleefully point out that 

“Billionaire [Penny] Pritzker donated $20,000 to Democratic senators who then voted on her confirmation as President Barack Obama’s commerce secretary.”

3.  Outside of angry tweets, Trump’s main interest appears to be implementing the Tea Party-dominated Republican Party agenda.  Almost all of the people Trump has named for his cabinet are Tea Party Republicans. One after another of his prospective Cabinet members indicated in their hearings they don’t agree with those instances in which he appeared to deviate from Republican orthodoxy.  This is why the Republican Party loves him.  They know that someone seriously looking to shake up the system would have put in place a team of like-minded individuals. 

None of Trump’s more egregious nominees would be sailing through their respective Committees, and soon the Senate, if it weren’t for the votes of the media-savvy pseudo-maverick and pseudo-moderate Republican Senators who somehow manage to always fall in line with the most conservative elements in the party when it matters.  This is the real story, and they should be the real targets of Democratic actions.

4.  Democrats and the media need to refute the outright lies and disinformation, and put pressure on Republicans to do so too, but not get distracted by tweets.  Why it’s necessary to keep correcting these lies is clear by a quick glance at how FoxNews.com and Breitbart treated the question of the size of inauguration audience. Both reported the Trump and Spicer rants almost as a press release straight from the White House.

Interestingly, Breitbart, although it derisively characterized the criticisms of Trump and Spicer’s lies as “a media meltdown on social media,” at least quoted several of them, whereas Foxnews.com ignored the criticisms altogether.

As a parenthesis, I’m not convinced that the “fake news” epidemic is substantially different from the yellow journalism of the past, when newspapers explicitly affiliated with specific parties or with right-wing publishers such as William Randolph Hearst invented their own versions of events.  People have always chosen which radio or TV shows to listen to, or which papers to read, and these are usually those that reinforce their own sense of reality.

In any case, talk is cheap.  With whatever Trump said yesterday, there is a good chance that tomorrow he will say the opposite, and deny that he ever said it in the first place.  Why do more than correct his falsehoods, even in his inaugural address?

More importantly, Democrats often had a hard time getting beyond the Cabinet nominees’ rhetoric to focus on their past actions, or lack thereof. It doesn’t matter how many nominees say they are not racist and support civil rights, or that they believe global warming exists and that man has a role, if their past actions show just the opposite.

In this regard, the media coverage of Secretary of State-designate Rex Tillerson and Exxon’s position on global warming was at times embarrassing. Exxon is not “one of the good guys” because it officially acknowledges that global warming is man-made and supposedly advocates for a politically infeasible carbon tax. 

In reality, it is the likely target of major lawsuits for fraud, because it has continued to spend millions funding “think tanks” denying global warming and hiding its own research, with the net effect of overvaluing the potential value of future oil exploration. Furthermore, in his supposed lack of knowledge of Exxon’s core policies, ex-CEO Tillerson seems to have directly lied about the company’s lobbying efforts against sanctions on Russia.  But none of that matters to the pseudo-mavericks Senators McCain, Graham, and Rubio.

5.  Democrats need to recognize that the rules of the game have changed and to stop being enablers--if not chumps.  Witness the repeated willingness of a significant portion of the Republican Congress to shut down the government or default on its debt over Planned Parenthood or any other relatively minor issue.  Or the successful gambit by Senate Majority Leader McConnell to ignore with impunity the existence of a presidential supreme court nominee. 

It seems likely that the new model for federal (and state-level) Republican behavior is the North Carolina state legislature, where the moment a Democratic governor squeaked by in the recent election the Republican-dominated legislature held special emergency sessions to strip him of powers.

These are not conservatives.  In its disregard for the basic norms of democracy, not to mention willingness to dismember core programs of the Federal Government such as environmental protection, defense of civil rights, anti-trust, progressive taxation, or even Social Security (Privatization Ryan), the Republican Party is actually “pseudo-conservative.” In his discussion of Senators Joe McCarthy and Barry Goldwater in his classic The Paranoid Style in American Politics (pp 43-44), Richard Hofstadter quotes Theodore Adorno’s definition of a pseudo-conservative as  

“a man who, in the name of upholding traditional American values and institutions and defending them against more or less fictitious dangers, consciously or unconsciously aims at their abolition.” 

Yet there are some hopeful signs that the Democratic leadership may be slowly getting this.  It seems plausible that the hearings for some of Trump’s cabinet nominees were delayed due to Democratic intervention, until their ethics forms were at least submitted.  But if so, this seems to have been negotiated behind the scenes, with no discernible benefit to the Party.

The most tangible sign, however, was four years ago, when then-Senate Majority Leader Harry Reid finally got rid of the filibuster for executive branch and lower federal court nominees.  While some recent media reports asserted that the Democrats were “foolish” to get rid of this potential tool to temporarily threaten cabinet nominations, that interpretation ignores why the “nuclear option” was reluctantly adopted in the first place.  

The real story was that the then-minority Republicans in the Senate were threatening to filibuster everything, and had accordingly simply stopped allowing the confirmation of any judges or even cabinet  officials.  De facto, the then-majority Democrats were ceding control to the minority.  Only when the filibuster was killed was Obama able to fill positions.  In other words, it worked. Conversely, anyone who believes the Republicans will hesitate to get rid of the remnants of the filibuster if the Democrats threaten to block Trump’s Supreme Court nomination is also in denial.

Blind obstruction of anything the Trump Administration wants to do, a la McConnell, no.  But targeted obstruction, when traditional norms are not respected, and when there’s a very clear, potentially achievable goal, yes.  The same goes for future demonstrations.  Rather than being diffuse and completely ineffectual, like the Occupy Wall Street efforts, they need to be coordinated with electoral, legislative and perhaps civil disobedience efforts with specific aims. 

--> President Trump.  President Trump.  It’s here.  Need to stop saying “I can’t believe it.”  Now’s the time to be bold.  And blunt.