Friday, November 30, 2018

What Could Be Worse Than the Trump Era?

by Neil H. Buchanan

With the mostly good news of the midterm elections now behind us -- good news that was diminished, of course, by the continued success of blatant racists in Georgia, Florida, Mississippi, Iowa, and elsewhere, to say nothing of the disappointment of Beto O'Rourke's near-miss in taking down Ted Cruz -- the political atmosphere has once again been taken over by full-on Trump craziness.  Undiminished support for a literally murderous Saudi regime?  Check.  Climate change denialism on steroids?  Check.  Cruelty toward asylum seekers and immigrants?  Double check.

With all of this insanity swirling around us, it seems like a good time to revisit the alternative reality in which Hillary Clinton had won the 2016 election.  In May of 2017, I wrote a Verdict column in the form of a news report from another place in the multiverse where the press was assessing Clinton's first one hundred days in office.  Yesterday, I published a follow-up piece imagining the aftermath of the 2018 midterm elections.

The premise of the column is that the Democrats had been wiped out in the midterms, dropping so many House and Senate seats that they fell below the Constitutionally significant one-third mark in both houses of Congress.  I do not go into as many details about the implications of that outcome as I might have -- such as the possibility that Republicans would then decide not to impeach Clinton, on the theory that they could simply override her vetoes of everything but still keep her in office to blame her for everything that goes wrong "under her watch" -- because there are simply too many cynical possibilities to fit into one column.

Moreover, my larger point is not that (as I supposed in the column) exactly enough once-thought-safe Democrats would lose their seats to bring their total down to 33 sitting Senators.  The thought exercise was designed to remind myself that this month's good electoral news -- as well as all of the good news in other elections during Trump's tenure, including the Democrats' huge gains in New Jersey and Virginia in the 2017 off-year elections -- would simply not have happened if good sense had prevailed on November 8, 2016.

Here, I want to explore the perverse possibility that the country will be better off because of Trump's having won and then imploded.  It is not, I should emphasize immediately, an effort to say that "it's all OK," but rather a matter of thinking about the classic radical-versus-liberal choice -- or, if you prefer, asking whether things must become worse before they can get better.  My answer: Because things are getting worse in any event, we might as well hope that something good will come out of it all.

Thursday, November 29, 2018

The End of the Two-Senators-per-State Rule: Thoughts on the Dorf-Primus Non-Debate

by Neil H. Buchanan

The U.S. Constitution includes a compromise provision that created an upper legislative house with two senators representing every state.  Notwithstanding its mere existence, does that provision make sense?  I suspect that most people would respond to that question initially from a purely realpolitik standpoint.  Specifically, because that arrangement currently favors Republicans, Democrats hate it and Republicans fiercely defend it.

But if asked to justify it on some other grounds, my sense is that most Democrats would feel the need to sound conciliatory and say that there is something about a non-proportionally-delineated legislative body that could make sense.  Maybe it has something to do with preventing the tyranny of the majority, they might say.  Or perhaps something about states' rights (stripped of the racist overtones of that particular two-word phrase).

Perhaps, however, I am projecting my own ill-formed intuitions onto others, in which case I am simply confessing that I had never quite taken the time to think clearly about the two-senators-per-state rule (which I will call 2SPS here).  In any case, I have learned a great deal from the recent non-debate between Professors Michael Dorf and Richard Primus, which they have waged this month here on Dorf on Law and on Take Care.  (The first column was written by Dorf, followed by Primus's first response, then Dorf's reply, then Primus's epic summation.  I do not know whether either side plans to write again on this topic.)

Here, I want to fill in some pieces of the argument against 2SPS, focusing in particular on a comparison between bicameral state legislatures and Congress.  This comparison, I think, strengthens the (already extremely strong) case that both Dorf and Primus have laid out against the current structure.

Wednesday, November 28, 2018

More on the Unprincipled Nature of the Senate: Further Conversation with Professor Dorf (Guest post by Richard Primus)

by Richard Primus

In a series of blog posts (here, here, and here), Michael Dorf and I have been conversing about the justifiability of each state’s getting two representatives in the U.S. Senate.  As a general matter, neither of us argues that the current system is justified (except in the brute sense that current law requires it).  That’s not because we think that the only justifiable ground for allocating representatives in a legislature is on the basis of population (that is, on the basis of the principle we know as “one person, one vote,” and which I’ll call OPOV for short).  We both think that other factors could, in appropriate circumstances, justify departures from OPOV.  Instead, our sense that the current system for the Senate is unjustified rests on our sense that the Senate’s enormous deviation from OPOV is not justified by any argument applicable to the facts of this particular case.  In other words, we don’t think that under all imaginable circumstances every representative in a legislative body must represent a constituency of the same size as every other representative, so far as mathematically possible.  But we also don’t think that anything about the United States in 2018 justifies a system in which some senators have nearly 70 times as many constituents as other senators, and in which more than one-third of the entire represented population elects just eight out of a hundred senators.  

That said, Dorf and I are at least emphasizing different things.  He is identifying things that might in principle be reasons justifying deviations from OPOV.  I am more concerned with showing that none of those reasons helps justify the U.S. Senate, even if some of them might justify deviations from OPOV in some legislature somewhere.  But this contrast between us might make our conversation more of a cooperative effort than a real debate.  To persuade people that the Senate makes no sense, it’s necessary to shoot down a lot of possible defenses of the existing system.  One way to describe this conversation is to say that Dorf is identifying possible defenses—defenses that would need to be rejected if people were to be persuaded that the Senate should be reapportioned—and I’m then explaining why those defenses should be rejected.

What Does a Presumption of Non-Responsibility Mean in a Civil Context?

by Michael C. Dorf

In a post last week, I criticized the Department of Education's proposed new rules governing campus investigations under Title IX on the ground that they use a too-restrictive definition of sexual harassment. Although I acknowledged that a Supreme Court case involving fifth graders supports a definition that sets a threshold of "severe and pervasive" conduct to constitute hostile environment sexual harassment, I argued that in campus Title IX cases, decision makers should apply the well-accepted Title VII standard, which sets a more expansive "severe or pervasive" threshold.

My latest Verdict column might be deemed Part 2 of my miniseries on the DOE's notice of proposed rulemaking. In it, I take aim at the core of the proposed rules, which would make it harder for (mostly female) students alleging sexual assault or harassment by other (mostly male) to prove their cases. Whereas the Obama-era rules sought to minimize false negatives (that is, findings of no responsibility despite the fact that sexual misconduct in fact occurred), the proposed new rules seek to minimize false positives (that is, findings of responsibility despite the fact that the accused did not commit sexual misconduct). My main concern in the column is not whether the old or new approach is better, all things considered. Rather, I argue that insofar as the new rules would permit colleges and universities to require more evidence before finding a student responsible for sexual conduct, they are valid, but insofar as some of the new rules would require colleges and universities to require more evidence, they are invalid. That's because Title IX delegates authority to federal agencies (including the DOE) to write rules that "effectuate" the substantive policies of the statute; whether or not additional procedural barriers to a finding of responsibility are a good idea, they cannot be said to effectuate the anti-discrimination mandate of Title IX.

In the balance of this essay, I want to conclude my mini-series by objecting to yet a third aspect of the proposed new rules. The proposed rulemaking would require that in their proceedings for determining responsibility for alleged sexual misconduct that schools receiving federal funds "include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process." That requirement falls outside the scope of authority that Title IX delegates to DOE, per the analysis in my column. However, even putting that objection aside, the presumption of non-responsibility is wrong-headed because either redundant or confusing.

Tuesday, November 27, 2018

GM Plant Closures Expose Trump's Economic Ignorance But Also Raise Hard Questions

By Michael C. Dorf

Across the political spectrum, elected officials were unhappy with the news that General Motors would mothball five North American plants and cut about 14,000 jobs. That is certainly understandable. The workers who will lose their jobs, their families, and the communities that will suffer the indirect effects of GM's move deserve our empathy.

To be sure, Donald Trump's response was a characteristic mix of bluster and ignorance. He reported that he had pleaded with GM CEO Mary Barra to make a different decision out of a sense of obligation. Trump noted, correctly, that the US had saved GM during the Great Recession (without mentioning that this was accomplished by President Obama over the objections of Republicans). Trump also predicted that Barra's "going to put something back in [Ohio] soon." That's possible, I suppose. If the plant infrastructure can be converted to producing different sorts of vehicles at lower cost than building new plants, then GM's move could cause only temporary pain. But the mere fact that Trump made the prediction is hardly a reason to think it is based on any solid information.

Indeed, the bigger picture here shows the incoherence of Trump's approach to economics. For one thing, Trump's steel and aluminum tariffs have increased GM's costs and thus reduced its ability to make a profit on all of its products. Beyond Trump's fondness for trade wars, he does not seem to understand basic arithmetic. Prior to the last few months of losses and volatility, Trump boasted about stock market highs as an indication of what a success his administration's policies have been. Yet in important respects high stock values appear to be negatively correlated with worker wellbeing. Every dollar that ends up in workers' pockets as wages is a dollar that does not end up as corporate profits that increase a firm's share price. That inverse correlation was painfully obvious yesterday: GM stock prices increased by five percent on the news of the forecasted job cuts.

Monday, November 26, 2018

Ideology, Partisanship, and the Wrong Questions

By Eric Segall

Last week the President of the United States once again accused federal judges of being partisan, and the Chief Justice of the United States responded by stressing the need for an independent judiciary. This exchange prompted legal scholars throughout the land to take numerous positions on the role of ideology and partisanship in judicial decisions, focusing mostly on our highest Court (even though Trump was referring to a district court judge). Most agreed that the Court should try hard not to be partisan or ideological but also stressed that, given the nature of the cases the Court hears, the open spaces of constitutional interpretation, and our overly politicized confirmation process, these are noble aspirations more often violated than achieved. I argue below that, when it comes to the Supreme Court, everyone is asking the wrong questions.

A Tentative Burkean Defense of Something Like the Senate: A Response to Professor Primus

by Michael C. Dorf

A couple of weeks ago, I argued in this space and on Take Care that the US Senate is less anti-Democratic than it might currently appear. That capital "D" is intentional. The core of my argument was that while the Senate currently over-represents Republicans, that is likely an ephemeral phenomenon. As a structural matter, the Senate over-represents small states; over time, the parties' positions will continue to evolve in ways that seek to maximize their total influence.

To be clear, I did not deny that the Senate is substantially anti-democratic with a small "d." As I wrote, whatever might be said in favor of a system that deviates from strict population-based representation, the very out-of-balance ratios one sees in the US Senate cannot be normatively justified.

Professor Richard Primus wrote a thoughtful response to my essay. It also appeared on Take Care. Acknowledging that he might not actually be disagreeing with me, Primus pushed back against the idea that the apportionment of two seats can be justified. Here I'll respond in turn.

Thursday, November 22, 2018

Eleventh in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. George and Kellyanne Conway)

by Diane Klein

As CNN has reported, adult coloring is good for you (really!).  While we cannot guarantee that coloring this picture while sports-addicted family members binge on football this weekend will relax your brain as the Cleveland Clinic promises, it can't hurt.

(Art by Andrea McHale, a special-education teacher in New York City; lettering by Alex Mannos, a graphic artist in Sacramento, California.  The coloring page is subject to a Creative Commons license as below.)

A Thanksgiving "Poem"

By Eric Segall

The air is getting colder with winter so near
Our President is still awful that much is clear

His loony twitter feed tells many crazy lies
Maybe he’s sending secrets to his Russian spies

He makes so much money from the office he holds
His crayon hair is remarkable for its unique folds

He never says I’m sorry or admits to a loss
He just loves being the world’s worst boss

I wake up every day afraid of what he’ll do
Not just him but his entire motley crew

Wednesday, November 21, 2018

Speech vs. Conduct Part II

by Sherry F. Colb

In my Verdict column for this week, I discuss some ways in which combating both coerced confessions and date rapes necessarily creates special challenges. We want to protect victims of these two abhorrent practices, and we also want to allow for good confessions and for mutually desired sexual encounters. I explore how the challenges arise and what we might do to address them.

Here I want to return to the topic of free speech. Two weeks ago, I wrote in this space about the speech/conduct distinction and its utility as an instrument for distinguishing between the expression that the First Amendment ought to protect and the behavior that finds no legitimate protection in the Bill of Rights. I argued that the distinction cannot do the work that we might want it to do. Virtually all of the speech that rightly falls outside of the protected category--including true threats, incitement to imminent lawlessness, and defamation--is truly speech, not action--and yet the content of its communication and its persuasive force are too destructive or too threatening to peaceful existence for us to tolerate. Conversely, action can provide a vehicle for conveying a viewpoint, and shutting down communicative action on the basis of its expressive content or viewpoint is censorship that courts should treat as such.

While the government may lawfully prosecute flag-burning as a species of arson or reckless burning, we do not and should not prosecute the very same conduct as flag desecration, because prohibitions  on flag desecration single out for censorship a message of critique or condemnation for our country. We can disagree with and resent the act of flag-burning, but we cannot treat it as something different from and worse than other types of arson or reckless burning unless we are prepared to sacrifice our commitment to freedom of speech. Fortunately, the U.S. Supreme Court has understood that to classify "speech" as protected and "conduct" as unprotected would be to overlook government repression that we must not tolerate, even as it would demand protection for the words of people who threaten others or incite others to imminent assault or destroy the reputations of private individuals whom we know to be innocent of our charges.

Tuesday, November 20, 2018

Who Are the Anti-Trump Heroes?

by Neil H. Buchanan

Incredibly, The New York Times's op-ed diva Maureen Dowd actually wrote an interesting and insightful column last week.  Her argument is incomplete, as I will explain below, but she actually wrote words that made sense and offered an argument that needed to be made.

Dowd drew from her deep well of richly earned hatred for George W. Bush and especially Dick Cheney, and she pointed out that many of their enablers and cheerleaders are now being cheered on the left for being NeverTrumpers.  She is having none of it.  If anything, she nicely overstates her point rather than following her usual pattern of offering self-satisfied D.C. insider snark.  If she is going to err (and she is), it is much better to see her go for blood against the Republicans for real sins than to, say, carp about "Barry" Obama being too aloof.

Dowd states her thesis clearly in the third sentence of the piece, saying that "villainizing Trump should not entail sanitizing other malefactors."  The column was motivated by a new movie about Cheney, and Dowd's central argument is that we need to stop and ask why so many veterans of the second-worst presidency in American history are now not only respected public commentators but are actually being celebrated on the left.

The toleration of right-wingers is so bad that, as Dowd put it, "MSNBC is awash in nostalgia for Ronald Reagan and W."  This is great stuff, and as I said, when the anti-Trump crowd is hugging the Bush/Cheney people, someone needs to call BS.  As I will explain momentarily, however, Dowd simply ignores the counter-intuitive upside of having loathsome people on one's side.

Monday, November 19, 2018

Dear Secretary DeVos: That Should Be "Severe or Pervasive," not "Severe and Pervasive"

by Michael C. Dorf

Last week, the federal Department of Education issued a notice of proposed rule making that would provide guidance for how schools, colleges, and universities address allegations of sexual harassment and sexual assault under Title IX. The proposed rule follows up on the Trump DoE's earlier rescission of the Obama DoE's guidance, which had taken the form of documents issued in 2011 and 2014.

In one important respect, the proposed regulation is a step forward: it is a proposed regulation rather than a less formal administrative action.

In other respects, the proposed new rule will be controversial. Whereas the Obama administration's guidance emphasized the problem of under-enforcement by requiring the use of procedures that would reduce the risk of "false negatives" (i.e., circumstances in which real victims of sexual harassment or sexual assault came forward but no responsibility was assessed), the Trump administration's proposed rule swings in the other direction by allowing for procedures that will lead to fewer "false positives" (i.e., findings of responsibility in circumstances in which the person found responsible did not actually commit a sexual assault or engage in sexual harassment). To lay my cards on the table, I think this is a step in the wrong direction, because I think false negatives are a more common problem than are false positives, but I recognize that this is an area of contestation.

In this post I want to focus on an aspect of the proposed rule that strikes me as problematic. It defines hostile environment sexual harassment incorrectly (although the fault for that lies with the Supreme Court).

Sunday, November 18, 2018

The LSAC's Contempt for LSAT Takers with Disabilities (and How It's Harming the Legal Profession)

by Diane Klein

It was not so long ago in American history that a blind or deaf student, or one who was mobility-impaired, would be left outside the schoolhouse doors - rejected by an educational system that had no obligation to accommodate them, and by a larger society that regarded them as not worth educating.  If they were not born into well-to-do families, their prospects were bleak. Today, thanks to laws like the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA), we look back with anger and heartbreak on behalf of those who never had a chance to develop their potential and contribute as they might have done, simply because no accommodation was made for them.

Lawyers (like Thomas Gilhool) have played a crucial role in enacting and enforcing these major civil rights laws, and one could be forgiven for assuming that a profession whose reason for existence is access to justice would be a leader in providing equal opportunity for law students and lawyers with disabilities.  At the very least, one would hope that at that crucial intersection of educational opportunity and access to the legal profession - the LSAT - test-takers with disabilities could be confident they would be appropriately accommodated, as the law requires. The truth, unfortunately, is otherwise.

Friday, November 16, 2018

Is Whitaker a Heretic or Just a Hack?

by Michael C. Dorf

My latest Verdict column--which first appeared on Wednesday--asks whether the framers goofed by failing to spell out in the Constitution exactly what the limits are on the ability of Congress to authorize the president to designate as an "acting" principal officer someone who has not been confirmed by the Senate. My answer: kind of, but one shouldn't get too mad at the framers for failing to anticipate all contingencies; a greater share of the responsibility rests with Congress for acquiescing in what looks like circumvention of the spirit, if not necessarily the letter, of the Appointments Clause; still more responsibility lies with Trump, who does not feel constrained by norms, no matter how longstanding or sensible.

The column focuses on the procedural defects in the designation of Matt Whitaker as Acting AG, but of course, one can also point to his substantive shortcomings. Whitaker's role in advising and promoting the Trump-University-esque World Patent Marketing casts doubt on his ethics. His 2014 statement, when campaigning unsuccessfully for the Republican nomination for a Senate seat, that he would have trouble with judicial nominees who lack a "Biblical view" of justice, shows either ignorance of or indifference to the Constitution's prohibition on religious tests for office. Here I want to focus on Whitaker's identification of Marbury v. Madison as a problematic precedent. I will offer a tepid defense of the position but no defense of Whitaker.

Thursday, November 15, 2018

How Bad Will Things Become? Part Eight: The Supreme Court's Political Agenda and Republicans' Electoral Peril

by Neil H. Buchanan

The Supreme Court's two newest members have joined Clarence Thomas in forming an openly reactionary bloc of justices, and their colleagues Samuel Alito and John Roberts differ from them only by slight matters of degree.  Roberts, Alito, and Thomas are 63, 68, and 70, respectively, meaning that we can expect this current majority of hyper-conservative justices (which I have elsewhere dubbed the Unfab Five) to serve together for at least a decade, and possibly two.

They will also serve at the top of a judiciary that Republicans are gleefully packing with the most blatantly political (and sometimes simply unqualified) conservatives that the country has ever seen -- many of them also quite young and thus able to serve for decades.  This means that there is a possibility, even a likelihood, that the courts will stand in the way of progress even if Republicans are not able to stop Democrats from retaking power (although they seem poised to be able to do that, too, with a big assist from the judges that they are empowering).

One reason for a small amount optimism, however, is that those new lower court judges are in fact not likely to serve as long as life tenure would allow.  In the 1980s, Ronald Reagan and the conservative movement installed a passel of young judges, only to find that many of those guys were not willing to receive an upper-middle-class salary to do what turns out to be a lot of work.  Who knew that so many people who thought that Gordon Gecko's "Greed is good" speech was a religious exhortation would want to cash in their judicial experience for bigger paydays?

That might well happen in the lower courts again, with an exodus of judges beginning in only a few years, but there is no reason to think that any of the Unfab Five justices on the Supreme Court will leave early.  What will they do while they rule the roost?

In this "How Bad Will Things Become?" series of columns (see Parts One, Two, Three, Four, Five, and Six), I have moved back and forth between discussing the substance of the hard right judicial agenda and analyzing what one might roughly call the Unfab Five's style.  On the former (substance), the question is where the Court's majority will go on affirmative action, reproductive rights, and so on.  The latter question (style) addresses whether Roberts et al. will bother dressing up their conservative judicial activism or will simply become ever more naked about their ideological power plays.

Today on Verdict, I published Part Seven of this series, in which I speculate on another substantive matter, asking whether the reactionary majority's neo-Lochnerian agenda (which I had described in Part Four) might include a direct assault on the three big New Deal/Great Society social insurance programs: Social Security, Medicare, and Medicaid.

I point out in Part Seven that Social Security was challenged in court at its inception in the 1930's but survived only because the Lochner justices were mostly gone by then.  It would not be even a mild stretch for the Unfab Five to invent an excuse to invalidate those social insurance programs.  As Eric Segall has argued tirelessly here on Dorf on Law and elsewhere (most recently yesterday), conservatives' go-to theory -- originalism -- is not a theory at all, which makes it a perfect vehicle to justify anything that conservatives want to accomplish.

Here, I want to ask the related style question: Given that movement conservatives would love to invalidate all three of those programs (and more), will they actually try to do so, or will they stop short because of the consequences for their Republican comrades who actually want to win future elections?

Wednesday, November 14, 2018

Is Originalism a Theory?

By Eric Segall

Justice Scalia used to defend his originalist theory of constitutional interpretation by arguing that, although originalism has its flaws, it was better than any other interpretative method and that "you can't beat somebody with nobody," meaning that it takes a theory to beat a theory.

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.

Tuesday, November 13, 2018

Appreciating Heitkamp's Decency

by Neil H. Buchanan

In the post-midterm assessments of American politics, Senator Heidi Heitkamp has at most merited a quick mention as one of the three or four Democratic incumbents from states that Trump carried in 2016 who lost their reelection bids.  Joe Donnelly of Indiana, Claire McCaskill of Missouri, and Heitkamp of North Dakota went down hard.  Other Democrats survived, and Florida is being Florida, so we will not know for a long time whether Bill Nelson will hold his seat or lose it to Voldemort.

In many cases, these losing candidates are not even mentioned by name.  "Three or four Democrats lost in the Senate, but the Democrats picked up two seats.  Moving on."  Here, I want to discuss the one and only big thing I know substantively about Heitkamp, essentially to apologize for assuming that she had no principles and was only in politics to win elections.  There might be other things that I do not know about her that would make me feel less good about her, but credit is due where credit is due.  She deserves respect, as I will explain below.

Monday, November 12, 2018

How Much of a Problem is the Senate?

by Michael C. Dorf

In the last week, various liberal law professors and others in whose circles I move have taken to using the midterm election results to decry the US Senate. They point out -- correctly -- that nine million more people voted for Democratic Senators than for Republican Senators; yet the Republicans probably gained at least one seat and at least held their edge. That's not exactly a fair comparison (for reasons described here), but it does capture the bigger picture: If we look at all three classes of Senators, we find that Republicans have more Senators, even though the Democrats represent more people.

Is that a problem? Well, if one is a Democrat (as I am) of course it's a problem. Republicans will continue to confirm very conservative judges and justices; and when there's a Democratic president again, Republicans' advantage in the Senate may enable them to block Democratic appointees (again). Meanwhile, should the Republican edge hold into the next Democratic administration (and even if it does not, absent abolition of the filibuster for ordinary legislation), it will permit Senators representing a minority of the country to block legislation favored by a Democratic House majority and a Democratic president. Thus, I share the dismay of many of my fellow Democrats at the impact of the Senate on the laws we have and how they are interpreted.

But I do want to raise a few questions about the current bout of Senate skepticism that rests on first principles.

Sunday, November 11, 2018

Tenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Matthew Whitaker)

by Diane Klein

Herewith, our contribution to the matter of Matt Whitaker, the former Rose Bowl tight end and U.S. Attorney (for Iowa, in both cases), now catapulted to national prominence by his elevation from Chief of Staff to Attorney General Jeff Sessions, to the position of Acting Attorney General of the United States - thanks largely, it would appear, in gratitude for his critical comments about the Mueller investigation, made in the mainstream media.

(Art by Andrea McHale, a special-education teacher in New York City; lettering by Alex Mannos, a graphic artist in Sacramento, California.  The coloring page is subject to a Creative Commons license as below.)

Friday, November 09, 2018

Whitaker's Appointment is Despicable and Possibly Criminal, but is it Unconstitutional?

by Michael C. Dorf

Yesterday Neal Katyal and George Conway wrote an op-ed in the NY Times arguing that President Trump lacked the authority to name Matthew Whitaker Acting Attorney General. I'm not sure that's right. True, by forcing out Jeff Sessions as punishment for the one unambiguously honorable thing Sessions did--recusing himself, as required by law, from an investigation of the Trump campaign--Trump acted despicably. Depending on what Whitaker does now with respect to the Mueller investigation, Trump's appointment of Whitaker may also amount to obstruction of justice.

But was the appointment unconstitutional? As I shall explain, much as I'd like to agree with Katyal and Conway, their theory is problematic as offered. I will offer a friendly amendment to improve it a bit.

Thursday, November 08, 2018

The Case for Extreme Pessimism After a Good Election Night

by Neil H. Buchanan

How long will our luck last?  On Tuesday, Democrats regained the majority in the House of Representatives, but even though that is exactly the outcome for which I most dearly hoped, the world seems even scarier now than it was on Monday, when I published a call to young people (and everyone else) to vote against Donald Trump and his eager enablers.

On Tuesday morning, I wrote about the likely chaos that would ensue even if Democrats ended up having a good night.  Although the specifics that I offered there might not come to pass (including a prediction of a wave of Republican election challenges, although some such challenges are still possible), the big message was that Trump and his minions would not be gracious losers -- the safest prediction in the history of political commentary.

So I was plenty scared before, when it was still possible that Republicans could have held the House and won other key races.  Why am I more scared now that what seemed to be the worst outcome has not come to pass?

Wednesday, November 07, 2018

First Amendment Free Speech and the Conduct/Status Distinction

by Sherry F. Colb

In my Verdict column for this week, I talk about the meaning of the #BelieveWomen movement and what it might have to teach us about listening to people with an open and curious mind. The topic of listening to people, in turn, makes me think about the freedom of speech. In this post, I want to consider how we might best understand our free speech dilemmas.

Tuesday, November 06, 2018

In the Short Run, Are We Also All Dead?

by Neil H. Buchanan

John Maynard Keynes famously wrote: "In the long run we are all dead."  Although there have been plenty of bad-faith misreadings of that quote, the correct reading is actually quite simple.  Keynes rejected the idea of causing millions of people to suffer in the here and now in the possibly vain hope that some economist's model of "long-run equilibrium" correctly predicts that such sacrifices (always to be paid by other people, of course) will pay huge dividends in the future.

More to the point, we cannot make our way to the long run if we all die in the short run.

In a sense, many of the arguments against Donald Trump have been arguments about a somewhat distant and uncertain future.  Thus, my Verdict column on June 2, 2016 asked: "Is This the Beginning of the End of Constitutional Democracy in the U.S.?"  My concern was not with the decades- or generations-long version of the long run that worried Keynes (although he was also worried about inflicting pain for years at a time with the promise of prosperity just around the corner), but it was still a dystopian prediction of something that might or might not happen and that would in any event take some time to play out.

In my latest Verdict column, published yesterday, I confront the reality that we have already reached the point where the dangers of Trump have become all too real and are no longer speculative.  If the Democrats do not have a good day today, it might well be the end of the line for the American democratic experiment.

Yes, that sounds apocalyptic, yet it is difficult not to fear the worst.  And it could still be awful even if the Republicans do lose today.  Stay with me here.

Monday, November 05, 2018

The Road to Perdition Is Neither Long Nor Winding for Republican Economists

by Neil H. Buchanan

As we wait to find out whether tomorrow's midterms will be the last meaningful election in American history, I will take a few moments here to consider a recent Republican absurdity that was drowned out by Donald Trump's cacophony of hatred and lies.  In one way, it is fully consistent with Trump's tactics, because it is merely another attempt to scare people by shouting "Socialism!!"  Given that the story comes from Trump's economists, however, this one is up my alley and -- viewed from the proper perspective -- very, very funny.

Friday, November 02, 2018

Media Collusion in This Year's Versions of the 'Deplorables' Distortion

by Neil H. Buchanan

Supposedly, the press corps has learned that bothsidesism is not a harmless exercise.  If anyone -- or at least any group with large numbers of white people -- should have newly learned what can happen when lies are not called lies and context is lost, it is American political reporters.

Even after their huge assist in painting Hillary Clinton as a serial liar and spending ungodly amounts of time hyping her email servers in 2016, all the while hesitating to call Donald Trump's lies "lies," journalists have been rewarded by being called "the true enemy of the American people."

But we know that old habits die hard.  One of the worst habits of the collective press's mind is the "To be fair, let's also look at what Democrats are doing wrong" approach to campaign coverage.  It would be bad enough if this were merely false equivalence (of which there is plenty), such as pretending that confronting a U.S. Senator in an elevator represents "incivility" in American politics that must be compared to Trump's spewing of hatred.

But it is much worse than that, because the media often simply gets the story wrong or short-hands it in a way that completely misleads the public and that cements in the collective mind a narrative that is both unfair and damaging to the way voters and potential voters perceive politicians.

The leading example of this phenomenon in 2016 was "the deplorables comment."  In 2018, there is nothing to that extreme degree thus far, but there are some cases in which the shorthand versions of stories completely reverse the reality.  This leaves voters confused and potential voters saying, "Why bother?  They're all bad."

Thursday, November 01, 2018

Mueller, False Flags, and Conspiracy Theories

by Michael C. Dorf

In an era in which every day brings shocking news, the most bizarre story of the last few days has to be the apparent plot against Robert Mueller. For those of you who may have missed it, I'll try to summarize and then provide a big-picture observation.