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Is Monetary Policy Boring? What Trump Could Do with it is Terrifying

Maybe Donald Trump's promises to use criminal prosecutions to punish those who displease him is not enough to scare you to death.  After all, you might think of yourself as simply an average American -- OK, not truly average so much as the 1950's version of "normal" that thrills the Republican Party, making you a white non-LGBTQ+ Christian dude with higher than average income and wealth. If so, you will not only feel unthreatened by the culture warriors who would accompany Donald Trump back to Washington, but because you have never done anything that puts you in the category of "enemies of the state," you would never be rounded up with MSNBC's Chris Hayes or late-night comedians like Jimmy Kimmel and Seth Meyers when the time comes.  Nothing for you to worry about when the rule of law is tossed aside for political retribution, right? Before I analyze that question, I will note in passing two of the items in today's news cycle that seem important at d

Top 10 List of Justice Alito's Lowest Moments

Justice Samuel Alito's constitutional law jurisprudence is centered around old-fashioned and often pernicious views concerning women, family, LGBTQ issues, unenumerated rights, and partisan politics. But this blog post is not about Alito's judicial philosophy. This is a blog post about the man. Buckle up. Here are ten representative examples of Alito's awful behavior. 1) In 1985, Alito applied for a job in the Ronald Reagan Justice Department. He listed on his resume membership in an alumni group with the name " Concerned Alumni of Princeton ." Was this group "concerned" with world peace, famine around the world, climate change, or just getting better meals at Princeton? Nope. The group was "concerned" that too many women were being admitted at the expense of the children of alumni (who of course were mostly white). The New York Times reported the following in the article linked above: The group had been founded in 1972, the year that Judge Al

The Numbing Down of America: A Non-Lawyer’s View From Abroad

[The following essay is by William P. Hausdorff.] Even before the jarring arrival of Trump, it had become increasingly difficult for those of us who travel abroad for work—I’m in the field of international public health—to explain to non-Americans why we periodically put up with literally insane statements and behavior from our highest elected political leaders.  “You know how politicians can be!” is the response that would elicit a (barely understanding) nod.  But of late it has become truly challenging, and perhaps even ominous, to try to explain why this tolerance for nonsense now extends to the more “professional” part of the federal government, the Judiciary.  Why does the often highly critical mainstream media routinely fail to question the basic competence and fundamental integrity of the judges?  I’m not referring to tweets and blog posts, where essentially every opinion under the sun can be found, but rather the New York Times, Washington Post , CNN, Politico , etc.  For examp

The Truth Turned Upside-Down

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Last week, NY Times investigative journalist Jodi Kantor (best known for her work revealing Harvey Weinstein's predatory history and thus sparking the Me-Too movement) reported that for several days in January 2021--after the insurrection at the Capitol but before the inauguration--an upside-down U.S. flag flew at the home of Justice Samuel Alito. Flying a flag in this manner originated as a naval symbol of distress, but by January 2021 it had also become a symbol of the "Stop the Steal" movement of people who supported Donald Trump's false claim that he was the rightful winner of the 2020 Presidential election. Kantor's original story included Justice Alito's explanation: “I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” The story went on to report that &quo

Explaining the Outcome of, and Speculation About the Role of "Liquidation" in, the SCOTUS CFPB Case

The ruling yesterday in Consumer Financial Protection Bureau (CFPB) v. Community Financial Serv. Ass'n of America, Ltd. brought a sigh of relief to those observers who thought the conservative supermajority on the Supreme Court might just be crazy enough to invalidate a key regulator of the banking industry and call into question the funding for numerous other vital federal agencies. The good news is that the Court reversed the Fifth Circuit's holding that the Constitution's Appropriations Clause forbade Congress from creating a funding mechanism for the CFPB that runs through money earned by the Federal Reserve. The bad news is that any federal judges--the panel below and Justices Alito and Gorsuch in dissent in SCOTUS--credited the challenge at all. Let's start with the merits of the CFPB case, which are so obvious that Justice Thomas wrote the majority. The Appropriations Clause says: "No money shall be drawn from the treasury, but in consequence of appropriat

Deliberating Making Bad Decisions to Maintain the Appearance of Fairness: Merchan Edition?

Is New York's Justice Juan Merchan playing games to maintain the appearance of being evenhanded?  More generally, do judges have the obligation (or at least a good reason) to take account of how often they are ruling in favor of one side or the other during a trial, being careful to appear to be unbiased by balancing the numbers of favorable and unfavorable rulings so that they are roughly equal? I never thought so, but there is at least some possibility that judges could reasonably feel the need to play that game.  Why?  Because some appellate judges might think that there is some requirement to show that neither side is winning every point, and trial judges might worry that their decisions will be overturned if they always take one side over the other. To be clear, it is not accurate to say that a fair-minded judge is "taking one side" when ruling on any particular question.  Were I to announce that, say, an academic paper arguing in favor of regressive tax cuts is well

Prejudice, Propensity, and Probative Value: Stormy Daniels Edition

Last week, Donald Trump's defense attorneys twice sought a mistrial after Stormy Daniels testified about her 2006 liaison with Trump: once after the direct testimony and then again after cross-examining Daniels. Judge Merchan acknowledged after the direct testimony that Daniels had included a number of extraneous details but ruled that, given the opportunity for cross, her testimony did not warrant a mistrial. Following the defense cross-examination of Daniels--in which the attempted slut-shaming was very much on-brand for a Trump lawyer but also seemed to backfire by bolstering Daniels's credibility--the defense again moved for a mistrial and was again denied. Could that be grounds for reversal on appeal? One reason it might not be is that Trump's lawyers didn't object to some of the most salacious details as the testimony was offered and may have thus not preserved the objections for appeal. However, Alan Dershowitz--who, it should never be forgotten,  heroically refu

Is There Value in Showing Restraint? Merchan/Trump and Biden/Netanyahu

One of the most frustrating aspects of the degradation of US politics is that some very prominent people continue to extol the old rules, acting as if there is not only virtue but an affirmative payoff when politicians and public officials refuse to fight fire with fire.  In the last two weeks, I wrote what turned out to be a series of three columns suggesting that people who are not fascist-curious might soon need to save the rule of law by violating it.  I mostly talked about this in regard to US Democrats' responses to Donald Trump, as well as Canada's two non-Conservative parties' responses to reactionary populism, in both cases noting that the non-reactionary parties seem unprepared to "go there." Here, I want to discuss two specific recent examples of people in positions of responsibility -- one a judge, one a President -- who clearly seem to believe that they will earn points by being restrained and refusing to act unless pushed to the absolute limit.  I