Monday, October 15, 2018

The Dangers of Mutual Radicalization

by Sidney Tarrow

Soon after the election of Donald Trump, a wave of protest bubbled up against the new president and his policies. Beginning with the “Women’s March,” followed by protests on behalf of gun control and against the threat of climate change, and led by new groups like Indivisible and old ones like the ACLU, the movement reached into the legal profession when Trump, soon after entering the White House, abruptly  announced a painful and chaotic ban on refugees and others from several majority-Muslim countries (as described by Michael Dorf and Michael Chu here). When the #MeToo and Never Again movements emerged, it began to seem as if American civil society was rising up in a body against the excesses and outrages of the new administration.

Academics and activists soon collected these varied movements under the rubric of “The Resistance,” but as David Meyer and I argued in our recent book, The Resistance: The Dawn of the Anti-Trump Opposition Movement, that label may say too much and too little. It may say too much because it assumes that the varied protest movements are a coherent whole, and it may say too little because it fails to examine the challenges that the Resistance poses to its supporters. 

Three of these challenges are the most important: first, the proliferation of activist sites and new groups has led to a failure to identify an overarching policy goal – apart from the proximate one of opposing Trump; second, there is a gap  between those who want to defend our institutions against the president and his enablers and those who want to tear down the institutions that facilitated his rise; and, third, there is the danger of mutual radicalization. As was revealed in the conflict that erupted over the Kavanaugh nomination, the third is the most pressing, and could easily weaken The Resistance.

Friday, October 12, 2018

I Feel Pretty: What If Brett Kavanaugh's Female Law Clerks Are All Beautiful?

by Sherry F.  Colb

Mostly lost amidst the credible testimony and ignored accusations of sexual assault against Brett Kavanaugh was a story about his law clerk hiring practices.  The story suggested that (a) all of then-Judge Kavanaugh's female law clerks have looked like models; (b) this is no accident; (c) Professor Amy Chua at Yale Law School groomed some of the female students for these clerkships by asking applicants to send her selfies in the outfits they planned to wear to the interview; and (d) Professor Jed Rubenfeld of Yale Law School, husband of Professor Chua, advised female students that Judge Kavanaugh liked his clerks to have a "certain look." Chua vociferously denied the story, which in turn led a former student to say that Chua was "lying" in her denial.

Needless to say, this story raises some questions. And if Kavanaugh has done what he is accused of doing, it puts the fact that he has a very strong record of hiring female law clerks in a less-than-feminist light.

Thursday, October 11, 2018

Projection, Preemptive Accusation, and Strategic Hypocrisy

by Neil H. Buchanan

There has been a surge of commentary recently about the Republicans' embrace of conspiracy-laden accusations against the Democrats, including the bizarre claim that the people who confronted Republican senators prior to Brett Kavanaugh's confirmation vote were yet another group of "crisis actors" who had been paid by (who else?) George Soros.  As familiar as all of this has become, fantasies like this still have the capacity to surprise because of their complete disconnect from facts and logic.

In my most recent Dorf on Law column, I discussed the paranoid underpinnings of these conspiracy theories, once again drawing from Richard Hofstadter's timeless 1964 essay, "The Paranoid Style in American Politics."  To the extent that Republicans actually believe their own craziness, they are under the spell of extreme paranoid delusions, especially now that they are railing against their "powerful" opponents whom the Republicans in Congress have already made powerless.  It is one thing to accuse someone of abusing her power; but it is another thing entirely to imbue her with imaginary powers that no one can see but that supposedly put all Republicans at risk.

As important as that discussion is, however, it is only one of several partially overlapping explanations of Republicans' current mindset and political strategy.  Here, I am interested in the various ways in which one can explain Republicans' repeated attacks on Democrats for doing things that Republicans themselves are in fact doing (or will soon do). Most importantly, some of the explanations imply a quite conscious strategic decision by Republican strategists to lay the groundwork for future abuses of power.

Wednesday, October 10, 2018

Believing Men Who Lie About Rape

by Sherry F. Colb

Dr. Christine Blasey Ford needed a great deal of courage to come forward and accuse Judge Brett Kavanaugh of attempted rape. Such accusations predictably yield resistance, with allies of the accused saying that the accuser is either lying or mistaken (or crazy). Yet Ford brought her accusation nonetheless, saying that she felt it was her civic duty, and Donald Trump described her testimony as credible; at least that is part of what he initially said. He also observed that he himself has endured false sexual assault allegations, implying that he and Kavanaugh were like peas in a pod. 

Trump's expressly drawing a parallel between his own and Kavanaugh's experience was interesting. Trump, as we know, effectively confessed to sexually assaulting women in an Access Hollywood video that aired only weeks before the presidential election. The women who subsequently came forward were simply confirming that Trump had committed the criminal acts that he had described in the video.

Another sexual assault allegation against him was that of his ex-wife, Ivana Trump. Ivana reportedly gave a deposition during the Trumps' divorce proceedings in which she provided a graphic description of Trump brutally raping her. He was apparently enraged after having undergone painful scalp reduction surgery to cover a bald spot. He allegedly tore clumps of her hair off her head, tore her clothes off, held her down, and jammed his penis into her.  In her account of these events, she ran upstairs and cried for the rest of the night. When she returned to their bedroom, he reportedly menacingly asked her "does it hurt?" Ivana has since retracted this accusation, and one can decide whether the accusation or the retraction is more credible.

Whether one believes Ivana's detailed account or not, Trump does appear to engage in false sexual assault denials (while characterizing his own confessions as mere "locker room talk"). That's hardly surprising, given all of the other distortion and outright lying in which the president engages. Here, however, I want to set aside Trump's broader tendency to lie to focus on his false denials that he has committed sexual assault. He said he was innocent of sexual assault and called his accusers liars. Why in the world would he imagine that comparing himself to Kavanaugh would help exonerate Kavanaugh? 

Tuesday, October 09, 2018

Why Would Republicans Call Democrats Too Powerful and Angry? It's All They Know

by Neil H. Buchanan

The post-Kavanaugh political conversation has been dominated by Donald Trump's effort -- gleefully supported by Republicans -- to turn the recent confirmation process into a political rallying cry.  As The Washington Post's Paul Waldman explained, the new Republican talking point is a version of what both Kavanaugh himself and Lindsey Graham shouted at the Judiciary Committee's Democrats: You're all power hungry, angry political animals!

The Republicans are now claiming that "mobs" of Democrats swarmed the Capitol and tried to "destroy" a completely honest and decent man.  Dr. Christine Blasey Ford was, at best, mistaken in identifying her attempted rapist (if it happened at all), and George Soros is behind it all.  It plays like a mash-up of the Republicans favorite slanders of Democrats and deepens Republicans' claims of victimhood.

There are many angles from which to analyze this new development, obviously including the Republicans' revival of the International Jewish Conspiracy (via Soros), as The Post's Catherine Rampell describes clearly and chillingly.

Here, I will focus on the paranoid aspects of the Republicans' increasingly deranged mindset.  They have, I think, finally reached the point where they will say or do literally anything for political advantage, with no concern whatsoever about whether there is a basis in reality for anything that they say.  They are convincing each other that they are the victims of a swirl of conspiracies, and they have all become true believers.

Monday, October 08, 2018

A Supremely Dark Future

By Eric Segall

Letter to my Granddaughter, 8/24/2045

Dear Jenny,

As you prepare for your first year teaching constitutional law at Clarence Thomas Law School at Liberty University, I thought you might find it helpful to have an accurate historical perspective on some of the subjects you're going to teach. I know you will find some of the law described below to be ancient history, but I can assure you, it wasn't that long ago.

Sunday, October 07, 2018

The "All of the Above" Approach to Justice Kavanaugh

by Michael C. Dorf (cross-posted on Take Care)

[Non-spoiler Alert: This essay discusses the tv series The Americans, but it should not ruin the viewing experience of any readers who intend to watch it.]

In the rightly acclaimed tv series The Americans, two Soviet agents live undercover in the US for many years under the identities of Philip and Elizabeth Jennings. They pose as mild-mannered travel agents by day while committing acts of political sabotage and murder by night. They arrive in the US as committed communists in the 1960s, but by the time the show opens in the early 1980s, Philip has grown fond of suburban American life and its creature comforts. The conflict between Philip and Elizabeth over how committed each remains to the cause of global communism fuels much of the show's gripping narrative. By the time the sixth and final season opens, Philip has quit working for the KGB, as he has grown wary of its efforts to undercut Gorbachev's reforms and peace overtures. He has become his cover. Elizabeth, by contrast, remains a true believer.

That division can serve as a metaphor for two polar attitudes of various liberal constitutional lawyers now that Brett Kavanaugh has been seated on the Supreme Court. We were never Soviet communists; we placed our faith in the Supreme Court. Despite all evidence to the contrary (Bush v. Gore; Shelby County v. Holder; Citizens United v. FEC; Trump v. Hawaii; etc.), we still believed in the Court as a potential force for good.

Is Kavanaugh the last straw? A prominent constitutional scholar recently told me that, in light of the Senate's confirmation of Kavanaugh, maybe it's time for us to find a new field -- commercial law, perhaps -- in which the rulings of the Supreme Court play no substantial role. Having lost faith in the Court as a force for good, this scholar considers the path of Philip Jennings. Doing so might well be good for our personal wellbeing, but it would also be a kind of giving up.

Meanwhile, another prominent scholar suggested that, whatever distaste we now have for Kavanaugh and the route he took to the Supreme Court, we need to keep our noses to the grindstone to minimize the damage; although we will now see the most conservative Court in living memory, we have had a half century of a Republican-dominated Court, so it's not exactly as though we lack experience making lemonade from lemons. That's the path of Elizabeth: put your head down, and do your job.

Is there a middle course? Something other than, on one hand, abandoning the field of constitutional law and, on the other, acting as though it's business as usual? Absolutely. To see what options are available, however, we need to be clear-eyed about the coming challenge.

Friday, October 05, 2018

Justice Kennedy's Writing Style and First Amendment Jurisprudence

by Michael C. Dorf

Today I am participating in an all-day conference at Georgia State Law School called Reflections on Justice Kennedy. As you can see from the conference website, there's a great lineup, although unfortunately the journalists (Nina Totenburg, Adam Liptak, and Emily Bazelon) all had to pull out to stay in DC to cover the latest on the Kavenaugh nomination. Organizer (and DoL blogger) Eric Segall put the panel together months ago--before we had learned that Justice Kennedy was retiring--so the timing is simply bad luck. Anyway, the rest of us will do our best to keep it lively. The day starts at 8 a.m., and proceedings will be streamed live here if you want to tune in. It will also be recorded by CSPAN for possible future airing.

From 10:15 - 11:30 I'll be filling in for Bazelon on a panel on the substance and style of Kennedy's prose, along with Jamal Greene and Eric Berger. With Eugene Volokh, I'll be talking about Justice Kennedy's First Amendment jurisprudence from 11:30 am - 12:45 pm. Professor Segall will moderate both of the panels I'm on. Here I'll offer a preview of my remarks.

Thursday, October 04, 2018

Kavanaugh and the Manly Man's Culture of Life Without Consequences

by Neil H. Buchanan

[Note to readers: My latest column on Verdict, "The Kavanaugh Travesty: A Roiling Brew of Alcohol and Entitled Self-Righteousness," is now available.  I mention it briefly in my column below, but it is a stand-alone piece that I hope many of you will read and possibly even enjoy.]

Saturday Night Live's lampooning of Brett Kavanaugh's September 27 testimony was hilarious, with Matt Damon perfectly depicting Kavanaugh's extreme anger, childish petulance, and blatant lying.  Even so, they missed an opportunity -- an opportunity that was suggested not by a comedic genius but by CNN legal analyst Jeffrey Toobin.

Toobin pointed out after the hearing that, if Christine Blasey Ford had been the unhinged, shrieking, self-pitying witness that Kavanaugh was, she would have been immediately dismissed for lacking all credibility.  And that observation has led me to imagine how SNL could have brought that alternative reality to life.

Imagine juxtaposing the real testimony from Blasey and Kavanaugh with imagined testimony by, say, Kate McKinnon and Benedict Cumberbatch, with the imaginary Blasey screaming and accusing everyone of a conspiracy while the imaginary Kavanaugh calmly but emotionally lays out his story.  Then they could have had Melissa McCarthy play a purple-faced Senator Amy Klobuchar mirroring Lindsey Graham's operatic performance, screaming at Republican senators and sarcastically attacking their motives.

That alone is an interesting thought exercise, but what would bring the point home would be to then contrast the real cable-news reactions to the testimony with reactions to the alternative reality.  In the real world, people talked about how believable Blasey was, but right-wing pundits were still backing Kavanaugh.  In the alternative world, left-wing pundits would stare ashen-faced into the camera and say, "I can't defend what Blasey just did.  And Klobuchar?  It's over."

It is sometimes difficult to depict the double standard under which gender issues play out in America, so this would have been a particularly helpful way to show that only a man could do what Kavanaugh did and still maintain any public viability.  If a woman had done even a fraction of that, the sexist presumptions that women are too emotional would have kicked into high gear.

But even with Blasey's impressive performance and Kavanaugh's (largely scripted) meltdown, as of this writing it seems likely that Kavanaugh will yet be confirmed to the Supreme Court.  What can we learn from this?

Wednesday, October 03, 2018

Reflections on Anthony Kennedy Conference

By Eric Segall

Are you tired of the Brett Kavanaugh controversy? If so, maybe take your mind of it by watching via live stream this Friday a symposium I am hosting on Justice Kennedy's career and legacy. The conference has an all star cast (minus a few nationally known reporters who for good cause had to cancel at the last minute because they had to stay in DC due to the aforesaid Kavanaugh controversy).

As you can see from the agenda below, we have a diverse group of law professors (five from the Volokh Conspiracy, two from right here at Dorf on Law, two from Balkinazation and a host of  extremely talented others). The format is conversations not speeches, the issues range from abortion and gay rights to federalism, separation of powers, and freedom of speech and religion, as well as Kennedy's writing style and his role as the median Justice.

Republicans Embrace an Exclusionary Rule for Kavanaugh

by Michael Dorf

Here is a story I was told by a former clerk to the late Chief Justice Rehnquist about the late Chief Justice Burger: One day, the Supreme Court was hearing oral argument in a Fourth Amendment case in which the issue was whether the police had probable cause to search the defendant's home for drugs. Burger was unhappy with the direction the argument was headed, so he interrupted the defendant's lawyer. "What if the police came into your client's house and saw a dead body?" Burger asked. The lawyer replied that if the police lacked probable cause or consent to enter the house, the evidence thereby obtained would be inadmissible at trial, regardless of whether the charge were drug possession or murder. Burger harumphed unhappily. A few moments later he interrupted the lawyer and asked "What if there were two dead bodies?!"

The story was told to me to illustrate that Warren Burger was not exactly the smartest or most logical justice to don a robe at One First Street, NE. Because it's a funny story, I retell it whenever I have the opportunity, even though I am pretty sure it never happened. (I searched oral arguments and could not find anything like this.) Retelling the story is a way of saying that even if this actual exchange never occurred, it has the ring of truth. Burger was a bit of a dope.

I retell this story now to make a different point, however: Burger really really hated the Fourth Amendment exclusionary rule. In that, he was hardly alone. A great many conservatives hate the exclusionary rule. Under Chief Justices Burger, Rehnquist, and Roberts, the Supreme Court has found many exceptions to the exclusionary rule. Conservative justices--and even more so conservative politicians--think it is a technicality. Why should the criminal go free just because the constable has blundered?

That's a legitimate question. I don't want to say that there's nothing to complaints about the exclusionary rule. Indeed, I myself might favor replacing it with some other remedy for Fourth Amendment violations if I thought that some other remedy would work. I just don't think any alternative is realistic.

But here's the thing: Despite widespread conservative dislike of the exclusionary rule, Senate Republicans who are intent on confirming Brett Kavanaugh to the SCOTUS are applying a super-strong version of it.

Net Neutrality

by Michael C. Dorf

I'll be back in a couple of hours (or less) with another Kavanaugh-related post, but for your morning read, check out my new Verdict column. It provides a brief primer on net neutrality, summarizes the DOJ's argument for pre-emption of California's new net neutrality law, outlines three lines of potential response by California, and offers some broader thoughts on how the conservative attack on the administrative state could be good for progressive regulation in the long run. To be clear, my observations about the potential upside of the attack on the administrative state is an effort to make lemonade out of lemons, not my first-order preference.

Tuesday, October 02, 2018

The Bracing Clarity Provided By the Kavanaugh and Graham Meltdowns

by Neil H. Buchanan

Although it has been a depressing spectacle, the Brett Kavanaugh controversy has provided a few possible upsides.  This seems, for example, to have become a breakthrough moment in which many more people have come to understand why women (and men) who are the victims of sexual abuse do not immediately (or, in many cases, ever) report the crimes.  That alone is a major cultural shift.

On the more cynical side, it is a plus of sorts to watch Republicans shift from a stance that in the recent past would have seen them blatantly saying, "I don't believe her," to now saying essentially, "I believe her, but I don't care."  Just as it is a positive thing for racists to understand that it is bad to admit openly to racism, there is something positive about the social realities that have led to this newer version of Republican misogyny -- especially because their new approach is more obviously cruel, even though it is unspoken.

And of course, we are still facing the reality that either Kavanaugh or an ideological clone will soon be on the Supreme Court.  This means that it might be better for non-Republicans for Kavanaugh to win this battle, because he will be permanently tainted, and because a successful Republican effort to ram him through will be a net plus for the Democrats in the mid-terms.  (It is true that permanently undermining the legitimacy of the courts is bad for everyone but the most powerful, but this is arguably a "get it out in the open" moment in which we might as well admit that we have passed the point of no return.  I take no position on that debate here.)

The most unexpectedly positive (yet still cynical) aspect of this entire debacle, however, is that Kavanaugh provides definitive proof that the Republicans were not "taken over by Trump," which has become the conventional wisdom (and which I have believed to varying degrees at different times over the past two years).

Kavanaugh predates Trump, and thinking about Kavanaugh's very public self-unmasking highlights just how much the Republican party was already the party of Trump, long before 2016.  And when Senator Lindsey Graham decided to go all in on white male grievance and win-at-all-costs hypocrisy, the picture could not have been clearer.

Monday, October 01, 2018

The Kernel of Truth in Brett Kavanaugh's Conspiracy Theory

by Michael C. Dorf

During his prepared remarks at last Thursday's hearing, Judge Brett Kavanaugh claimed that he has been the victim of an "orchestrated political hit" and "smears" emanating from the "left." Republican senators repeatedly echoed this complaint. Yet the vast left-wing conspiracy theory has a glaringly obvious problem. As Senator Khamala Harris made clear in her questioning of Kavanaugh, it doesn't explain why Democrats are targeting Kavanaugh for supposedly false allegations now when they did no such thing to the previous Trump SCOTUS nominee. Here's the exchange:
HARRIS: I’ll point out to you that Judge — Justice now — Neil Gorsuch was nominated by this president. He was considered by this body, just last year. I did a rough kind of analysis of similarities — you both attended Georgetown Prep, you both attended very prestigious law schools, you both clerked for Justice Kennedy, you were both circuit judges, you were both nominated to the Supreme Court, you were both questioned about your record — the only difference is that you have been accused of sexual assault. How do you reconcile your statement about a conspiracy against you with the treatment of someone who was before this body not very long ago? 
KAVANAUGH: I explained that in my opening statement, Senator. Look at the evidence here, the calendars, look at the witness statements, look at Ms. Keyser’s statement.
Note that Kavanaugh does not even try to answer Harris's question. His opening statement does not refer to Justice Gorsuch in any way, not explicitly or implicitly. What he is saying, in essence, is that he thinks the evidence against him does not stand up, which is tendentious but in any event has nothing to do with the question Harris posed: What's his account of Democrats' supposed willingness to make stuff up about him but not Gorsuch and, for that matter, not Roberts or Alito before him? Neither he nor any of the Republican members of the Senate Judiciary Committee attempted to answer that question.

As a service, I'll suggest an answer for them and then explore where it leads.