Dorf on Law

by Neil H. Buchanan The Obama Administration was smart to wait until after this week's presidential primaries to nominate Merrick Garland for the open seat on the Supreme Court.  The primary calendar is entering a bit of a lull for the next several weeks, and there is now sufficient media space for everyone to focus on the nomination and the Republicans' bizarre and brazenly nonsensical opposition.  (Just as one example of such craziness, Senate Majority Leader Mitch McConnell literally phoned in his "f*ck you" to Garland, telling him that meeting in person would be a waste of time and claiming that this was somehow a matter of politeness.) Given that the Obama people were savvy about the timing of this nomination, should we also give them the benefit of the doubt regarding the selection that they made, as a political matter?  Yesterday, Professor Dorf weighed in on the issue of Garland's relatively advanced age, responding to suggestions that a 63-year-old...

by Michael Dorf At least according to my Twitter feed, Democrats who are disappointed by President Obama's nomination of Judge Merrick Garland to fill the vacant seat on the Supreme Court are concerned that Obama blew a chance to move the Court substantially to the left or at least to mobilize key constituencies in November. After all, Judge Garland is a moderate, and he belongs to no key minority group. I want to put aside considerations of ideology and identity politics to focus here on another concern that some left/liberal critics of the nomination have (at least tentatively) voiced: They worry that Garland is, to put it bluntly, old. Judge Garland is 63. Of all the Justices nominated to the Court since the Nixon Administration, only Lewis Powell was older when he joined the SCOTUS.  Presidents have taken to appointing substantially younger justcies -- Clarence Thomas was a mere 43 when he took his seat on the Court, and John Roberts was 50 -- for the obvious reason that, a...

by Sherry F. Colb In my Verdict column for this week , I consider the question, which arose on a podcast, whether a shoe salesman with a foot fetish has a duty to disclose his fetish to his customers at the shoe store.  In exploring this issue, I also discussed the hypothetical case of the proctologist, urologist, or gynecologist who wishes to use her patients as fantasy material.  Pedophiles (of the non-practicing variety) were the next case.  From one point of view, people who use their privileged access to collect masturbation material are exploiting their customers, patients, or students.  From another perspective, what the customers, patients, and students do not know cannot harm them. Though I come to a conclusion about these cases in my column, the reality is that these questions are difficult.  People do want to have control about what and how other people think of them, which is why we have torts like defamation and invasion of privacy.   Inde...

by Neil H. Buchanan One of the most interesting aspects of the political conversation over the last several years -- on issue after issue -- has been seeing the safe, conventional, bipartisan, self-satisfied insider view exposed as fraudulent.  For example, decades of Democrats and Republicans agreeing that deficits are the worst thing ever led to President Obama's insane embrace of austerity in 2010, where Obama's people clearly believed that he was on solid ground with establishment thinkers.  He and his party quickly found themselves reaping the consequences of a slow, grinding economic recovery, but much more surprisingly, they also discovered that the professional consensus among economists was not what they thought it was.  Mainstream establishment liberals started to say, "You know, there really is not a good case for austerity.  Quite the opposite." On tax policy, Democrats and Republicans alike spent years believing that the best way to guarantee prosper...

by Michael Dorf Both Democrats and Republicans currently face questions about how small-d democratic their nomination processes are and should be. On the Democratic side, Bernie Sanders supporters worry that even if their man wins more pledged delegates than Hillary Clinton does, her edge in so-called super-delegates could nonetheless give her the nomination. It takes 2,382 delegates to win. There are 712 super-delegates. As the "establishment" candidate, Clinton will end up with the vast majority of them. So, to use some random numbers, suppose that Clint ends up with 670 super-delegates and 1712 pledged delegates. She would just barely win the nomination even though she would have won fewer than 43% of pledged delegates to over 57% for Sanders. That's undemocratic, right? Meanwhile, on the Republican side, in recent days the party establishment has inched closer to making peace with the possibility that Donald Trump could be the nominee, but depending on, among othe...

By Eric Segall My mother passed away Monday of Christmas week. The top of this Blog allows for essays about “law, politics, economics, and more.” This entry is mostly about the “more” but there is some law here as well. My mother was a brilliant woman with several advanced degrees, including one in psychotherapy. In the years before she passed, we talked on the phone regularly about once a week. These conversations often lasted forty-five to sixty minutes and we talked about everything, including the law and the Court. During one of those conversations, I was talking to my mother about the first big Obamacare challenge where Chief Justice Roberts, at perhaps the most important moment of his career, decided for the first time in his career, to vote with the four liberals and against the other four conservatives in a landmark constitutional law case. She asked me to speculate as to why he would do that. I provided some legal reasons but she didn’t seem convinced. My mother the...

by Neil H. Buchanan and Michael Dorf (cross-posted on The Huffington Post ) The early success of the Bernie Sanders presidential campaign surprised nearly everyone. His unapologetically liberal agenda lit a fire in the early Democratic primaries and caucuses, appealing in particular to young people and liberals. We are not young, but we are unapologetically liberal. The calls by Senator Sanders to combat economic inequality, to reduce the role of big money in politics, and to raise the minimum wage certainly resonate with us. We also applaud the unrelenting attention he has paid to Wall Street's excesses. Even if Hillary Clinton becomes the nominee, as looks increasingly likely, the Sanders campaign will have had a major impact on American politics. That impact is almost entirely positive. In one respect, however, the Sanders campaign has been dead wrong. We strongly disagree with his calls to "audit the Fed." As the Clinton campaign absorbs and co-opts the Sanders ...

by Neil H. Buchanan In my Dorf on Law post two days ago (which I updated and lightly edited yesterday morning, before it was cross-posted on Newsweek 's website as " What Could Presidents Trump, Cruz or Clinton Actually Achieve? "), I pondered the on-the-ground consequences of electing one of the three presidential front-runners.  Not the consequences in the sense of what it would mean to elect the first woman president, or alternatively to choose one of the two xenophobic extremists, and not the political consequences of one party's implosion, but the actual policy making that would take place under each of those would-be presidents. One point on which I focused is the "under the radar" activities that are necessarily part of any presidential administration.  I noted that Hillary Clinton in particular would be especially careful about her appointments to Executive Branch positions (not just cabinet secretaries, but undersecretaries and deputies, as we...

by Michael Dorf My latest Verdict column addresses the recent controversy over--ahem--Donald Trump's penis. I argue that while there is no precedent for a presidential candidate's explicit declaration that, as Trump put it last week, "there's no problem" with the size of his member, there are numerous precedents for political candidates and office holders attempting to project an image of male virility and strength as a basis for winning or maintaining public support. I invoke domestic and foreign examples, as well as evolutionary biology. I conclude by wondering how Trump's alpha-male routine would play in a general election campaign against Hillary Clinton. Spoiler Alert: I don't know. Both Marco Rubio's initial "dick joke" about Trump and Trump's response have predictably provided fodder for pundits and comedians. As I note in the column, Rubio's move seems to have backfired; by descending to Trump's level, he undermined ...

by Neil H. Buchanan With the possibility of an independent presidential candidacy now safely behind us -- Michael Bloomberg having honorably ruled out the possibility of enabling a Trump win in November, and Donald Trump being in too deep on the Republican side to do the necessary groundwork for a fallback plan -- we are now looking at three people who could plausibly be sworn in as President in January 2017: Hillary Clinton, Trump, and Ted Cruz. Less plausible, but still possible, are Bernie Sanders, John Kasich, and the fast-fading Marco Rubio, although the latter two are only imaginable after a brokered convention.  And if we were willing to play the "What if something truly weird happens and a party has to go with someone who did not do well in the primaries (or even run)?" game, we could also look at Joe Biden, Mitt Romney, and Paul Ryan as imaginable nominees. I do not, however, want to focus here on the mechanics of how someone could become president.  Instead, ...