Thursday, September 20, 2018

How Bad Will Things Become? Part Four

by Neil H. Buchanan

In my latest Verdict column, "What Kavanaugh Could Have Said, But Didn’t: 'I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment'," I offer a suggestion about how Brett Kavanaugh could have responded to the sexual assault and attempted rape allegations against him in a way that would have been humane and honest and that might have actually won over some skeptics.  I then note that he went in exactly the opposite direction, proving even more emphatically that he should not be on the bench.

I continue to be puzzled by the Republicans' strategy here.  As Professor Dorf ably explained yesterday, even though Republicans are acting as if they absolutely must rush Kavanaugh through as quickly as possible, the odds that they will somehow fail to fill this Supreme Court seat with either Kavanaugh or another hard-line movement conservative are essentially one in a gazillion.  That is my characterization, not Professor Dorf's, but the point is that the Republicans have -- at a minimum -- the luxury of the lame-duck session in which to do the deed.  Taking an anti-woman stance now is an unforced political error on the Republicans' part.

In the end, we will have a 5-4 majority of hyper-conservatives on the Supreme Court.  Perhaps the fifth vote will be Kavanaugh's, perhaps not.  Either way, winter is coming.  The question is how bad it will be.

Therefore, it is now time to add to my series of columns in which I have discussed how bad things might become under a post-Kennedy court.  In Part One, I focused on the potential damage to women's reproductive rights.  Parts Two and Three focused on the question of whether the new hyper-conservative bloc would have any hesitation in remaking the law in their own image and whether they would bother to be at all subtle about it.  Here, I will focus on how the new Roberts Court might change some substantive areas of the law.

Wednesday, September 19, 2018

The Stakes in the Next Round of Kavanaugh Hearings (if they ever happen)

by Michael C. Dorf

Reporters--especially in the law-focused media to which readers of this blog pay attention--have worked  themselves into a frenzy over the scheduled hearing into whether Brett Kavanaugh sexually assaulted Christine Blasey Ford when he was 17 and she was 15. As I write this on Tuesday afternoon, it is not clear that a hearing will occur. Still, I want to make a provocative claim: Even if it does, this is a fairly low-stakes matter. I know that sounds counter-intuitive, but bear with me.

Tuesday, September 18, 2018

The Case For Kavanaugh Was Already a Bad Joke

by Neil H. Buchanan

At the beginning of my column last Thursday, I included a "Note to readers" that read as follows:
I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes.  That column will, unless intervening events require further delay, be published next Tuesday, September 18.
Today is September 18.  Reasonable minds can differ, but I think the thunderbolt over the weekend, in which a woman went public with a credible accusation of sexual assault against Brett Kavanaugh, counts as such an "intervening event."

I truly do think that the content of what Kavanaugh, or any other nominee that the Federalist Society, Trump, and the Republicans (in that order) might put forward, is what ultimately matters.  And, as I have already discussed in Parts One, Two, and Three of that series of columns, there is plenty to worry about.  Because the rest of what I plan to write regarding the possible damage caused by a new Supreme Court hyper-extreme conservative majority is not Kavanaugh-specific, however, I will use today's column to talk about the status of Kavanaugh's nomination.

I am not predicting that Kavanaugh's nomination will die, of course, but I do think that it is important to assess where things stood before the big news broke over the weekend.  The state of play only a handful of days ago was that Republicans -- included the now-exposed imaginary moderate Republicans like Senator Susan Collins -- were untroubled by the process and substance of Kavanaugh's possible elevation to the Court.  It is worth remembering why their views were so dangerous.

Importantly, with the sexual assault allegation against Kavanaugh now dominating the news, there are inevitable comparisons to Clarence Thomas's nomination, which is now remembered entirely for sexual harassment allegations against Thomas and the Senate Judiciary Committee's shabby treatment of Anita Hill (due in depressingly large part to Joe Biden's mishandling of the mess).  I will offer a parallel to Thomas, but that comparison will not have anything to do with different types of mistreatment of women.

Monday, September 17, 2018

My Mostly Uninformed Speculation About What Manafort Will Dish

by Michael C. Dorf

Paragraph 8 of Paul Manafort's plea agreement requires him to "cooperate fully, truthfully, completely, and forthrightly" with the Mueller investigation. Does this mean that Manafort will implicate Donald Trump in the Russian effort to influence the 2016 presidential election or obstruction of the investigation? That depends on what Manafort knows, but it is difficult to believe that Mueller's team would have cut the deal it did with Manafort if not.

After all, Manafort was already facing prison time for his conviction last month in a federal court in Virginia, and the trial on additional charges in federal court in DC was very likely to go against Manafort as well. An ordinary prosecutor will often cut deals with defendants who would be easily convicted at trial simply to save resources, but (as Justice Scalia famously noted in his dissent in Morrison v. Olson), that sort of resource constraint plays a much less substantial role in the exercise of prosecutorial discretion by a special prosecutor. Mueller did not go easy on Manafort to avoid the uncertainty of a second trial or to conserve prosecutorial resources for other, more important, cases. Presumably Mueller cut the deal because Manafort had dirt to dish.

The question is what dirt and on whom.

Saturday, September 15, 2018

Originalism Without History: A Response to Professor Randy Barnett

By Eric Segall

At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"

These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.

Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.

Friday, September 14, 2018

A World (Only Partly) Shaped By Two September Crises

by Michael C. Dorf

On Tuesday, Donald Trump commemorated the 17th anniversary of the 9/11 terrorist attack in true Trumpian fashion -- by pumping his fists self-congratulatorily upon arriving in Shanksville, Pennsylvania for a solemn ceremony and by sending out an enthusiastic but otherwise incoherent tweet. As Trevor Noah observed, bizarre and loathsome as Trump's 2018 behavior was, it was not nearly as bad as what he has done on past 9/11 anniversaries or on the awful day itself.

Meanwhile, tomorrow will mark the 10-year anniversary of the collapse of Lehman Brothers, which set in motion what we came to call the financial crisis and the Great Recession. To be sure, the preceding dramatic fall in the subprime mortgage market and broader housing market, as well as other firm-specific troubles like those that hit Bear Sterns, make the selection of any single date as the start of the financial crisis and Great Recession contestable. Nevertheless, given the cascade of events that followed Lehman's collapse, it is as good a point as any to choose to remember.

In today's essay, I want to use the confluence of these two anniversaries as an occasion to make some observations about how these events have shaped our current landscape--and how they have not.

Thursday, September 13, 2018

Another Trump Casualty: The Myth of Susan Collins

by Neil H. Buchanan

[Note to readers: I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes.  That column will, unless intervening events require further delay, be published next Tuesday, September 18.]

[Update on 9/18: Surprise!  Or not.  Intervening events indeed require further delay.  Part Four of "How Bad Will Things Become?" is now rescheduled to 9/20.]


Two weeks ago, a Washington Post columnist wrote, "Rest in Peace, Lindsey Graham."  It was brutal, making the point that Graham had gone from being the late John McCain's best bud to being Donald Trump's aggressive point man in the Senate, even though Graham's current persona requires ignoring everything that McCain -- and Graham himself -- had said and believed to be true about Trump.

It is a rather amazing thing that someone so lacking in core convictions not only thought he should be the president but that the political press treated him as a brave, independent-minded teller of hard truths.  Yes, the thought went, Graham is a hard-right hawk and a movement conservative, but he's funny and honest and you know where he stands.  And now Graham spends his time running interference for Trump.

The Trump era is not lacking in examples of people bending themselves into pretzels to survive.  Even McCain himself, as I wrote last week, was anti-Trump more in theory than reality, and he (along with all of his colleagues) again and again proved that the defense of institutions and nonpartisan ideals was no match for their glee in checking items off of the hardcore conservative wish list.

Yesterday, news emerged that Senator Susan Collins, the Maine Republican who has managed -- against all evidence -- to maintain a reputation as a moderate and a voice of reason, is now being targeted for a reelection challenge.  There is nothing notable about a politician facing an opponent -- that being what elections are all about -- but this challenge is explicitly contingent on Collins's vote on the Kavanaugh nomination.

That story is mildly interesting, and I will discuss it momentarily.  My primary focus here, however, is on Collins's crumbling facade of reasonableness and affability.  Many of us have seen all along that her image is a peculiarly indefensible myth, and it now appears that she is revealing her inner hack, unable to handle the pressure that comes with being confronted with her own hypocrisy.

Wednesday, September 12, 2018

Abortion on Demand and An Unborn Justice

by Sherry F. Colb

In my column for this week, I discuss the changed meaning of "factory farming" in the public discourse. I think it is important to be aware of this change, because one might otherwise mistakenly think that we have experienced a dramatic revolution in people's attitudes regarding the exploitation of animals. More people than ever seem to be saying that they oppose factory farming, and almost all animal farming is factory farming, so q.e.d. And yet polls find that only 3% of the population identifies as vegan, so it seems that people have come to use the phrase "factory farming" in a manner that differs from how it was once used. "Factory farming" now signifies "something that I condemn and that has nothing to do with me" rather than the reality of "what actually happens to the animals whose slaughtered bodies and bodily fluids I consume each day."

Other words and expressions both evolve and settle into meanings that carry more baggage than meets the eye. In this post, I want to focus on the expression "abortion on demand." I focus on it, because Judge Brett Kavanaugh--Donald Trump's second (all-but-certain) appointment to the U.S. Supreme Court--used those words in a dissenting opinion. He wrote the opinion in connection with an abortion case involving a pregnant undocumented minor. His use of the phrase "abortion on demand" is revealing. It signals something about Judge Kavanaugh's thought process regarding abortion.

Tuesday, September 11, 2018

How Bad Will Things Become? Part Three

by Neil H. Buchanan

The Senate's confirmation hearings for Brett Kavanaugh have ended, and unless something wildly unlikely happens, the Republicans in the Senate will soon accelerate their abandonment of anything resembling responsible governance and place him on the high court.

Even beyond the trampling of process, it is notable that not one Republican has said, "You know, I'm a conservative, and I'm even a proudly non-moderate conservative, but this guy is too much even for me."  That should not actually be a surprise, however, because the notion that there is any meaningful ideological distance across the Republican Party has become increasingly difficult to take seriously.

The only surprise so far has been how unashamedly and nakedly partisan Republicans have been throughout this process; but given the trend of their actions over the past few years, I am honestly not sure why that surprised me.

Will this utter disregard for how things look -- the sense of impunity that comes with feeling that one can wield unchecked power -- now carry over from Senate Republicans to the Supreme Court's majority of five hard-right movement conservatives?  Or will they continue to dress up their partisanship in nice words and high-sounding principles?

I will attempt to answer that question here.  In my next column on Thursday, I will explore what the newly reinforced arch-conservative majority will do to dismantle constitutional law -- and modern government -- as we know it.  [9/13 Update: That column will be published next Tuesday, 9/18.]

Monday, September 10, 2018

Job-Shaming, Bullshit Jobs, and Lawyers

by Michael C. Dorf

Last week I learned a new term: "job-shaming" is the act of trying to make people feel bad because they work in jobs that are either generally considered somehow undesirable or they are less prestigious and/or lucrative than some job they previously held. Actor Geoffrey Owens, who at one time had a role on The Cosby Show, was seen working at a Trader Joe's in New Jersey. The Internet properly condemned those who job-shamed Owens. Then, Tyler Perry offered Owens an acting job, so the story had a happy ending -- except, of course, that if there's nothing wrong with working at Trader Joe's (and I want to be 100% clear that I agree there's nothing wrong with working at Trader Joe's), then the story had a happy ending, or at least a perfectly fine ending, even before Perry offered Owens an acting gig.

To recognize that no one should be ashamed of the work they do is not to say, however, that everyone finds their work equally satisfying. Some jobs do not pay enough for people to support themselves and their families. Some jobs are dangerous, unpleasant, and/or boring. Some people have what seem like desirable jobs that are ruined by abusive bosses. Etc.

Today I want to focus on another way in which a job can be less than fulfilling: If it is what anthropologist David Graeber calls a "bullshit job." I confess to not having yet read Graeber's book Bullshit Jobs, but I did hear him interviewed on the NPR podcast Hidden Brain. And while I found most of what Graeber said fascinating, I was alarmed by his description of many "corporate lawyers" as working bullshit jobs. My first thought was "well I'm a constitutional lawyer, not a corporate lawyer, so I'm okay," but then I realized that Graeber did not mean to single out lawyers who focus on transactional work as distinct from litigators. As I confirmed by looking in his book, he uses the term "corporate lawyers" to refer to lawyers who represent corporations, which includes most of my former students who have gone on to become litigators. And if my job consists of training people to hold bullshit jobs, then I suppose I have a meta-bullshit job.

In the balance of the essay, I'll explain why I think that's not true.

Friday, September 07, 2018

What We Learned From the Kavanaugh Hearings

By Eric Segall

If you didn't have time to spend 12 hours a day and night watching the Judge Brett Coach K Kavanagh hearings no worries I am here for you. Ten take always:

Settled Law, Precedent on Precedent, and Abortion: What We Learned and Didn't Learn About Judge Kavanaugh's Views on Abortion

by Michael C. Dorf

Let's begin with the obvious: The Republican-controlled Senate is extremely likely to confirm Judge Kavanaugh to the SCOTUS. Disruptions of the proceedings by protesters and complaints about the process by Senate Democrats have failed if their aim was to block his confirmation. However, that cannot have been their sole aim. Cynics will say that those Senators on the Judiciary Committee considering presidential runs have used the hearings to demonstrate their commitment to the resistance. My own view is that it is perfectly legitimate to engage in constitutional politics in order to build solidarity to fight and win another day. In that respect, I regard the strategy of Senate Democrats and the more sophisticated of the protesters as much akin to impact litigation brought in the expectation of losing a particular case but serving a larger organizing purpose.

That said, the Kavanaugh hearing has nonetheless been instructive in a number of respects. In today's essay I'll focus on abortion. My bottom line will be that despite Judge Kavanaugh's superficial efforts to conceal his views, his position is pretty obvious to anyone with any sophistication.

Thursday, September 06, 2018

Corruption in Sports, Toxic Masculinity, and American Universities

by Neil H. Buchanan

With the beginning of the college football season, the conversation should be about whether one's favorite team is looking good or bad.  There is, of course, plenty of that.  As a longtime Michigan fan, for example, I am aware of a mini-controversy over (completely accurate) negative comments that former Wolverine great Braylon Edwards leveled -- via Twitter, of course -- at the team's truly terrible performance in its opener against Notre Dame.

Although I hate to be on the losing side of things, this is exactly how sports should be.  One of my alma maters (actually almae matres) is overpaying an overrated and under-performing coach, and I am disappointed.  This gives me a respite of sorts, something to think about other than whether the U.S. political system will survive the mid-term elections.

On a slightly more intense level, a professor at the University of Kansas has called for his university to drop its football program entirely after its loss to a lower-division school on Saturday.  There, the argument was not merely about performance -- fans of Kansas's perennially losing football team can only dream of being disappointed by something like Michigan's 28-11 record over the past three years -- but about the financial drain of running a football program at Kansas.  (Even with the TV money and all that, only a dozen or so of the most dominant programs actually make money from college football, while the rest subsidize their disappointments.)  Most importantly, everyone should worry about the mental and physical toll of the game on the young men and boys who play it.

But the biggest story in college football in the last few months has revolved around spousal abuse by a now-former assistant coach at Ohio State and, much more to the point, the multiple levels of enabling that have been exposed at that university.  As I will explain, the head coach enabled the abuse, and the university then enabled the head coach by whitewashing the whole thing.

Although mistreatment of women is very much a part of Donald Trump's story, at least the Ohio State situation is otherwise a distraction from the existential issues that the country now faces.  Again, therefore, I am treating this column -- as serious as its subject matter is -- as a break from the rest of what is wrong in the world.

The story itself is quite ugly, and the university's response provides further evidence of how completely out of control big-time sports has become at places like Ohio State -- and, in this regard, there are far too many places like Ohio State.

Wednesday, September 05, 2018

R-E-S-P-E-C-T Her Postmortem Rights of Pub-lic-i-ty?: The Aretha Franklin Estate May Test Michigan Law

by Diane Klein

When she died on August 16, 2018, Aretha Franklin became the latest major musical star to die intestate (as Prince did in 2016), leaving her family and fans grieving - and her heirs facing some complex issues of state and federal estate law.

The first step - determining who her heirs are - is easy.  Franklin was the mother of 4 sons - Clarence (born in 1956, when Aretha was just 12 and named after her own father), Edward (born in 1957), Kecalf Cunningham, and Ted White, Jr. - all of whom survived her, and who will share her estate equally under Michigan law.  Of course, without a will, dividing an estate into equally-valued shares is not so easy (how do you divide eighteen Grammy awards four ways?), and niece Sabrina Garrett Owens, selected just before Franklin's death by her sons to serve as personal administrator, will have her work cut out for her.

But the real complication lies elsewhere - in the recognition, valuation, and taxation of a somewhat unusual asset, Aretha Franklin's postmortem right of publicity.

NAFTA

by Michael Dorf

I know, I know. Today is Day 2 of the Kavanaugh confirmation hearing. I'll have something to say about the hearing as a whole on Friday. Meanwhile, I wrote a piece on the remarkable efforts to change NAFTA currently underway. In it, I explain why Trump can unilaterally blow up NAFTA but that if he wants it improved or even modified, he needs congressional cooperation. You can find the column on Verdict.

Meanwhile, in a few hours, Prof. Klein will have a piece here on Aretha Franklin's estate.

Tuesday, September 04, 2018

The What?, the Huh?, and the Why? of the McCain Deification

by Neil H. Buchanan

The last week has seen a truly unprecedented public reaction to the passing of an American politician.  Across a series of memorial services and events celebrating the life of the late Senator John McCain, as well as in the pages of the newspapers and on the screens of the television networks, there was almost complete agreement that McCain was a singular patriot, a once-in-our-lifetimes hero whose passing marked the end of an era.

(I will not provide links here, simply because there are so many examples.  For those who might be reading this column at some point in the future, simply search for McCain's name in late August or early September of 2018.  You will have hundreds of links from which to choose.)

This is in many ways understandable, of course.  The time after even a controversial public figure's death will inevitably bring forth tributes from both sides, with criticism at least muted and an emphasis on the humanness of the moment.  And McCain was not a notably controversial figure.  Even so, the response to McCain's death went far beyond those norms, for reasons that are worth exploring.

It is common to appropriate the reputations of respected figures from the past, to try to recruit them to one's cause: If Orwell were alive today, he would see through this nonsense in a second, or I think Dr. King would actually be opposed to ____ today, not for it.  And of course the standby: What would Jesus do?  McCain was rather quickly pulled into that group, but there is a certain logic to it.

The gap between the McCain who was all but deified for the past week and the McCain who actually existed is wide.  Understanding how that happened -- and its extreme degree -- is a lesson in modern American politics.  The bottom line, I think, is that McCain was being used -- but in a way that he most likely would have approved of (and even exulted in) -- by people who needed to turn him into more than he actually was.

Saturday, September 01, 2018

A Donald Trump Pop Quiz

By Eric Segall

In light of the holiday weekend, and the upcoming national travesty we call a Supreme Court confirmation hearing, I thought I'd lighten the mood just a tad with a pop quiz about our President. These are true and false questions. The answers (and a few editorial comments) are below.