Thursday, December 13, 2018

If Kasich Is Accepted As a 'Reasonable' Candidate, Why Aren't Warren or Sanders?

by Neil H. Buchanan

To be clear, John Kasich would be a better president than Donald Trump.  But so would my dog Maynard, who died in 2006.  Being a preferable alternative to the most dishonest, corrupt, bigoted president ever cannot be the standard for judging possible presidential contenders, yet many self-styled centrists (or at least non-extremists) in the pundit class continue to treat Ohio's soon-to-be-former governor as some kind of truth-telling paragon of seriousness.

This is nonsense on stilts, and The Washington Post's editorial page -- which, like the editors of The New York Times, seems to think that Kasich deserves to be treated as a serious thinker -- allowed Kasich to inadvertently prove his unseriousness in an op-ed this morning.

There is not much to say about the op-ed itself, although I will dutifully force myself to address it in a few moments.  More importantly, however, it is useful to think about how the Kasich myth has played out among the keepers of the conventional wisdom.  Now that Paul Ryan has so completely ceded his own unearned spot as the Serious-and-Reasonable Conservative, John Kasich seems to be the guy that the opinion makers want to elevate.  Will they never learn?

More to the point, I continue to be amazed that there are people who seriously argue that Democrats must not "mess things up" by nominating someone who is perceived to be Too Extreme -- usually referring to "that Socialist" Bernie Sanders, but also including Elizabeth Warren and some others -- are perfectly happy to say that even liberals should be willing to settle for someone like Kasich, because he is supposedly reasonable and non-extreme.  This is ideology masquerading as realism.

Wednesday, December 12, 2018

How Determinate is the Original Understanding of Stare Decisis?

by Michael C. Dorf

My latest Verdict column discusses last week's oral argument in Gamble v. US. The case poses the question whether to abandon or at least to cut back on the "separate sovereigns" exception to Double Jeopardy. Under that exception, a prosecution in federal court does not preclude a subsequent prosecution in state court based on the same underlying conduct, nor vice-versa. The case is important in its own right but has garnered special attention because of its potential with respect to the Mueller investigation. Should Trump issue pardons to various of Mueller's targets, they could nonetheless face charges in state court (mostly in NY but potentially elsewhere in addition). However, if the separate sovereigns exception were abandoned or curtailed, that option could be off the table.

Or at least some observers have claimed. As I explain in the column, even abandonment of the separate sovereigns exception would leave Trump and his henchmen subject to state prosecution for crimes arising out of different conduct. Further, Gamble does not provide an opportunity to say anything about the interaction of the pardon power with Double Jeopardy. And there was not even a hint of a concern about the Mueller investigation expressed by any of the justices during the Gamble oral argument.

Accordingly, most of my column discusses the case's merits, albeit with a Trump-related twist at the end. Here I want to go into some greater depth on one point that was particularly interesting during the oral argument. The issue concerns what has become a leading justification for acceptance of stare decisis by self-styled originalists.

Tuesday, December 11, 2018

What Bothers People About Medicare-for-All, Really?

by Neil H. Buchanan

Now that the Democrats -- thanks to their historic trouncing of Republicans in the midterms -- are set to take back control of the House of Representatives next month, many in the party are talking excitedly about finally creating a universal single-payer health care system in the U.S.  Why not get this country at least into the Twentieth Century when it comes to health care, even if we stagger across the finish line five or six decades later than every other country that we think of as "civilized"?

Because the U.S. already has a non-universal single-payer system called Medicare, which happens to be quite popular even among the Republican base, Democrats are using the shorthand Medicare-for-All to describe a range of proposals, some of which would involve the total elimination of private insurance while others would provide public funding for universal care but allow private add-on insurance policies.  Those policy differences, though undeniably important, are not pertinent to the discussion here.

Instead, my question is why so many people disparage Medicare-for-All (or any kind of public health care financing system).  After all, we are not merely talking about a bunch of astroturf groups, funded by shadowy right-wing ideologues, spinning stories about death panels and Stalinist assaults on personal freedom.  Supposedly reasonable conservatives -- and even a lot of centrist and left-centrist Democrats -- become twitchy when anything like Medicare-for-All is on the table.

Why is there such widespread opposition to a system that is not only a proven success worldwide but that already exists here in the U S of A?  Why do even people of apparent good faith lose their marbles when we start to discuss treating health care as an American right rather than as a privilege of wealth?  I think the explanation can be broken into three categories.

Thirteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Emmet Flood)

by Diane Klein

Monday, December 10, 2018

Bob Cousy, Bill Russell, and Race in America On and Off the Court

By Eric Segall

It is a rare event to read a book that combines two great passions. But Gary Pomerantz's "The Last Pass: Cousy, Russell, The Celtics, and What Matters in the End," is just such a book.
Pomerantz (disclaimer, a long-time friend) previously wrote about race relations in Atlanta and Wilt Chamberlin's 100 point game, among other topics. In his latest, he takes on both the NBA and race, two of my favorite topics to think about (one personal, one professional). It is a must-read for anyone interested in either subject.

Thursday, December 06, 2018

The Future of Work if Workers Are No Longer Needed

by Neil H. Buchanan

Last week, General Motors announced mass layoffs as part of a plan to close multiple manufacturing plants in North America.  Politicians of all stripes expressed varying combinations of anger and dismay, and Donald Trump predictably failed to comprehend the problem or his role in it (just as he had tried to bully Harley-Davidson last year when they rationally responded to his economic policies by planning to move manufacturing abroad).

On this blog last Tuesday, Professor Dorf offered some interesting thoughts about what the future of employment might look like.  (Those thoughts, in turn, expanded on a column that he wrote two years ago.)  Dorf wrote: "So far, no one on either the right or the left has really begun to imagine a future in which automation leaves just too few jobs for the number of able-bodied adults who need them."

That is correct, but with a twist.  The mainstream lefty intellectual par excellence, the great economist John Maynard Keynes, wrote a short essay in 1930 that anticipated much of this debate.  That essay does not inform the current debate, however, so Dorf is correct that virtually no one on either side of today's political debate has had much to say about the long-term consequences of the manufacturing economy's decline.

Here, I want to discuss the optimistic and pessimistic versions of the future of work.  Keynes's essay then becomes relevant, but not necessarily as The Answer to what the future might hold.  Indeed, Keynes's optimism is striking, compared to what might truly await our children and grandchildren.

What Would the SCOTUS Say About a Human Gene Editing Ban?

by Michael C. Dorf

The recent news that Chinese scientist He Jiankui claimed to have created twin girls with genes edited to give them resistance to HIV infection sparked great interest and sharp criticism. Did he actually do it? Did his university know? Why didn't he follow ordinary scientific protocols? Was it ethical? And now, ominously, where is he?

Those are all important questions, no doubt, but as a constitutional lawyer they raised a different question for me. The first "test-tube baby" was born forty years ago. In the intervening years, a host of legal questions involving IVF, egg donation, surrogacy, and other forms of assisted reproductive technology (ART) have arisen. State laws and state court decisions address many of these questions. And yet, despite tackling other contentious issues involving human reproduction, sexuality, and family formation, the SCOTUS has been almost completely absent from this debate.

I don't intend that observation as a criticism. One can legitimately worry about over-constitutionalization of policy questions that are better addressed through public debate, legislation, and state court litigation that has a less permanent and more local quality than a Supreme Court decision. Nonetheless, the result is at least a little curious on its face. Over the last four decades, the Supreme Court has not exactly been shy about constitutionalizing issues--in ways that liberals and conservatives each dislike, depending on the issue. Why not at least a handful of ART rulings, even if only to deny recognition to a constitutional right to any particular ART?

I don't have a clear understanding of why the Court has avoided this area, so I will leave it as an exercise for the reader. Meanwhile, I want to flag how I think the argument will go if and when one of these cases eventually makes it to the SCOTUS.

Wednesday, December 05, 2018

Observing and Integrating Different Moral Perspectives

by Sherry F. Colb

My Verdict column this week discusses the CDC's (Centers for Disease Control and Prevention's) recent report that abortion rates dropped dramatically between 2006 and 2015. I offer competing accounts of this drop and explain how each fares vis-a-vis the political objectives of the various perspectives. The primary competing perspectives are the pro-life and pro-choice perspectives. In this post, I will speak in more general terms about how people who hale from these two perspectives communicate about abortion. I believe we can learn something important from observing some of the destructive ways in which each side uses language.

Tuesday, December 04, 2018

Ends, Means, and George H.W. Bush

by Neil H. Buchanan

Four days before Donald Trump became president last year, the satirist Andy Borowitz faux-reported that George W. Bush was "eagerly counting down the days until he is no longer the worst President in U.S. history."  This was hilarious, and it reminded me that the junior Bush was once on the opposite end of the joke, with people saying that George H.W. Bush was the beneficiary of a quick rewrite of history due to his once-wayward son.  As one friend of mine put it in the early 2000's: "W is proving that he's a loyal son by doing everything so badly that his father looks good by comparison."

The elder Bush's death last weekend has brought forth more than the standard praise for recently deceased politicians.  Bush, in large part because of his stylistic contrast with Trump -- who, by the transitive principle, has been a fantastic surrogate son of Bush pere -- is receiving positively glowing coverage.

Merriam-Webster defines "hagiography" as a "biography of saints or venerated persons" or an "idealizing or idolizing biography."  It is difficult to decide whether Bush's public remembrances are merely hagiographies or, as I described the public response to John McCain's death, a deification.  Both men's images benefited enormously from the political moment, and as a result, both have been praised to excess.  That is not to say that there is nothing to praise, but it is obvious that the memories of both are being used in large part to take swipes at Trump.

Trump deserves the swipes, of course, but the facts about McCain and Bush should not be papered over in doing so.  As David Greenberg put it in Politico: "Respect for the dead must coexist with respect for the historical record."  Consider this column my statement of respect for the historical record regarding George H.W. Bush.

Monday, December 03, 2018

Further Questions About the Scope of the Dep't of Education's Authority Under Title IX

by Michael C. Dorf

In recent weeks, I wrote two blog posts (here and here) as well as a Verdict column critical of some aspects of the Dep't of Education (ED)'s notice of proposed rulemaking with regard to Title IX. I had thought I was done with that topic, but some reactions to the column (in the comments section, via an email exchange with Prof. Josh Blackman, and on criminal defense attorney Scott Greenfield's blog) raised interesting questions that I think merit further discussion. Hence, this fourth entry in the "trilogy." By way of preview, I will suggest that ED's theory on a key point relies on a very broad view of discrimination that Republican administrations and the Supreme Court have typically rejected.