Enough.

Like all of us, I have been struggling to process the extraordinary events in Washington, DC over the last couple of days. Since this blog was founded in 2017, I have made every effort to afford Donald Trump the respect due to the Presidential office. That form of respect, I felt, was owed to American democracy itself.

But Trump clearly respects neither the office nor American democracy. The insurrectionist mob that attacked the U.S. Capitol on Wednesday had assembled and moved at his direction. And he did virtually nothing to stop the carnage, placing thousands of people directly in harm’s way. It is entirely proper that he be removed from office immediately.

The aftermath of the insurrection offered some comfort for those who still have great faith in America as the beacon of freedom and democracy. I watched the Senate return to its chamber and continue its debate, with members on both sides of the aisle recognizing the gravity of the situation and the particular blessings of liberty that elevated them to membership in the greatest deliberative body in history. Perhaps this shocking moment will remind all of Congress — all of our leaders, elected or unelected — that they bear heavy responsibilites that come with public service, among them reasoned debate and respect for the rule of law. Maybe — just maybe — they will lead rather than snipe. Maybe they will contemplate rather than tweet. Maybe they will show us that they, too, and worthy of the offices with which they have been entrusted.

And what of the judges? A SCOTUSBlog editorial has called on the Supreme Court to issue a statement confirming the basic fact that Joe Biden won the Presidential election. I think that is unlikely, given the Court’s reticence to express any view on an issue not directly before it. But it is nevertheless a good idea. The Justices are Americans first, and through a combination of merit and happenstance they find themselves in a position of prominence at this moment in history. They sat silently while another mob destroyed a federal courthouse in Oregon this summer. It is time to speak up. History will remember what they say — and what they don’t.

Other judges will eventually have their say, as the insurrections are rounded up and brought to justice. I am reminded of a moment nearly seven years ago, when Boston was shaken first by the bombs that detonated at the finish line of the Boston Marathon, and later that week by a manhunt that shut down the city and surrounding towns for an entire day. It was the first time I heard the phrase “shelter in place,” and it was terrifying. When I returned to school after the incident, I struggled for what to say to my students. I decided to read them a portion of the statement given by Judge William Young when he sentenced another terrorist — “shoe bomber” Richard Reid — in 2004. It captured all the feelings I had that day:

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too muich stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down and bring them to justice.

So war talk is way out of line in this court. You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.

In a very real sense Trooper Santiago had it right when first you were taken off that plane and [placed] into custody, and you wondered where the press and TV crews were, and [he] said, “you’re no big deal.” You’re no big deal.

What your counsel, your able counsel and what the equally able United States Attorneys have grappled with, and what I have as honestly as I know tried to grapple with, is why you did something so horrific. What was it that eld you here to this courtroom today. I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing.

And I have an answer for you. It may not satisfy you. But as I search this entire record it comes as close to understanding as I know.

It seems to me you hate the one thing that to us is the most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not to believe as we individually choose.

Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see that justice is administered fully, individually, and discretely.

It is for freedom’s sake that your lawyers are striving so vigorously on your behalf and have filed appeals, [and] will go on in their … representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.

Make no mistake, though, It is yet true that we will bear any burden, pay any price, to preserve our freedoms.

Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, not war, individual justice is in fact being done.

The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.

See that flag, Mr. Reid? That’s the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will.

Custody, Mr. Officer. Stand him down.

Judges speak for our communities, our ideals, and our shared values. Many of them will have the chance to reiterate those ideals, proudly and publicly, in the coming months. It is altogether fitting that they — and we — do so. America is better than this terrible moment. Let’s get our house in order.

Salt Lake City federal courthouse to be named for Orrin Hatch

Congress can still agree on a few things, it seems. A bill to rename the Salt Lake City, Utah federal courthouse after retired Senator Orrin Hatch passed both houses of Congress unanimously this week. The bill has been sent to the President for signature.

Senator Hatch served Utah for 42 years in the Senate, and was a leading voice on the Senate Judiciary Committee. Much of that time overlapped with another old Judicary Committee hand, Joe Biden. It is a fitting tribute to name the Salt Lake City courthouse in his honor.

Durbin to be top Democrat on Senate Judiciary Committee

In a secret ballot vote, Senate Democrats have approved a plan to let Senator Dick Durbin of Illinois lead the party on the Senate Judiciary Committee for the next Congress. The move was made possible after Senator Dianne Feinstein of California chose not to remain in that leadership position.

It’s not clear to me whether Durbin will be much of a change from Feinstein, whose recent tenure was marked both by moments of embarassing partisanship and sensible statesmanship. But Durbin cannot be worse (I hope) than his primary rival for the position, Senator Sheldon Whitehouse of Rhode Island. A valuable friend to the federal courts not too long ago, Whitehouse approached the lunatic fringe as of late, threatening the Supreme Court directly and ranting about dark money funding of judicial nominees. Let’s hope Durbin (or someone) can exert control and insist that Senators live up the standard of decorum and reasoned debate that the American people rightly expect of them.

Senate Democrats to boycott Barrett confirmation vote, replacing themselves with cardboard cutouts

Please tell me this is a joke:

Democrats on the Senate Judiciary Committee plan to boycott Thursday’s committee vote on Amy Coney Barrett’s Supreme Court nomination as a protest against Republican efforts to rush her through before the election.

The plan hasn’t been finalized yet, according to a Democratic aide, but Democrats are preparing to fill their empty seats with poster-sized photos of people who would be hurt by Barrett potentially casting a deciding vote against the Affordable Care Act. These would be the same pictures of people Democrats had on display during Barrett’s confirmation hearing last week.

Sadly, it appears to be real. Rather than upholding their Constitutional responsibility to vote a Supreme Court nominee, Senate Democrats are planning to replace themselves with cardboard cutouts for cheap political gain. In doing so, they will:

    • Send the message to undecided voters, just days before a major election, that they are not serious about their fundamental responsibilities;
    • Sow the ground for Republicans to pull a similar stunt (perhaps with cardboard cutouts of aborted fetuses) the next time the Democrats have a Senate majority and a Supreme Court nominee; and
    • Provide some free advertising for South Park and Bud Light.

My goodness. What have we become?

A senator beclowns herself at a Judiciary Committee hearing (again). Facebook rushes to her aid.

I don’t usually comment on the culture wars, but every once in a while they connect directly to the operation and interdependence of the judiciary. This week brought an unfortunate example.

This blog has chronicled some of the inappropriate questions and comments from Senator Mazie Hirono (D-HI) in the course of her service as a member of the Senate Judiciary Committee — comments that have drawn sharp criticism even from members of her own party. Among other things, Senator Hirono finds it proper to ask Catholic judicial nominees about their private religious affiliations and practices, as if membership in a church or the Knights of Columbus has any demonstrable impact on a person’s ability to handle the solemn duties of judicial office.

Hirono’s aggressive disgressions were on display during last week’s confirmation hearings for Amy Coney Barrett. First, Hirono asked Barrett — a widely-respected judge, law professor, and mother of seven — if she had ever sexually assaulted anyone. Hirono followed this obscene question with a loud “tsk-tsk”ing of Barrett for her use of the term “sexual preference” during the hearing. Even though Judge Barrett immediately apologized for any unintended offense, Hirono proceeded with a baseless attempt to brand Barrett as a homophobe. (The meaning of the term is certainly in flux and is offensive to many, but it remains in use by, among others, Joe Biden.)

Questions and comments like Hirono’s — which erode public confidence in the court system without any concomitant positive contribution — are cause for civic despair. But in America, such despair often manifests itself as gentle mockery. And the Babylon Bee, a Christian humor site, came through with the following satirical story:

Senator Hirono Demands ACB Be Weighed Against A Duck To See If She Is A Witch.

This may not be the funniest thing I have read in my life, but it’s certainly good for a chuckle — especially for the large number of readers who instantly recognize the direct allusion to “Monty Python’s Holy Grail.” It’s not surprising, then, that the Bee piece was shared widely on social media, including Facebook.

But in a stunning bit of self-importance and tone-deafness this week, Facebook pulled down the article and demonetized the Bee’s own Facebook page, on the spurious grounds that the article “incites violence.” After an appeal and manual review, Facebook has apparently chosen to stand by its decision.

So Americans lose twice. First, a Senator squanders an important opportunity to substantively question a Supreme Court nominee in the name of advancing identity politics. And then, a long tradition of satire is crushed by a social media giant on the weakest of pretenses. Score another point for civic despair. 

On Biden, the Court, and what voters “deserve to know”

Joe Biden’s refusal last week to state whether he supports the Court-packing scheme advanced by several prominent members of his own party, and his insistence that voters “don’t deserve” to know where he stands on the issue, has drawn understandable scrutiny. Several commentators have attempted to dissect both the political cynicism behind the proposal and Biden’s strategy for declining to comment on it. (In particular, I recommend the first dozen minutes of this Commentary podcast as well as this op-ed by Gerard Baker in the Wall Street Journal).

I want to focus here on what the kerfuffle means for Biden post-election, since it seems very likely that he will win the Presidency next month. As Baker points out (behind a paywall, unfortunately), “even Mr. Biden—something of a procedural conservative—must be aware how grotesque the idea [of court packing] is. The prospect of a high court turned into an adjunct of the executive and legislative branches, staffed by black-gowned, forelock-tugging accessories to untrammeled political excess, must surely give him pause.”

Baker is right. Biden is too steeped in the Washington politics of the last fifty years to not be a traditionalist on this issue. Indeed, he has had three decades to reveal himself as a disruptor of court structure, both as a high-ranking member of the Senate Judiciary Committee, and as Vice-President. To be sure, he has spearheaded legislation that has changed court operations, and he bears heavy responsibility for setting the tone of current Supreme Court confirmations with his behavior during the confirmation hearings of Robert Bork and Clarence Thomas. But he has nevertheless conducted himself according to the standards of twentieth-century American politics: play hard, and don’t kick the game board over just because you think you’re losing.

The extremists in his party disagree, and are embracing the vision of converting the Court into an arm of the progressive movement by brute political force. This  development should concern all who believe in preserving the delicate balance between court independence and interdependence, and indeed the proposal is playing very poorly with most voters. (Perhaps in a nod to this reality, Biden himself finally stated that he was “not a fan” of court packing in a radio interview on Monday.)

Progressive extremists will certainly put pressure on a Biden Administration to force the court-packing policy into existence, especially if Democrats win the Senate in November.  And of course Biden, like any President, would feel some compulsion to support the legislative agenda from a same-party Congress. But some of the more senior legislative members of his own party recognize the inherent dangers (political and structural) of court-packing, and would likely try to to slow down any movement, especially in the Senate. Moreover, there is no significant reason to believe that his White House would simply be a vessel for extreme progressives. Biden is a wily veteran in Washington. No matter how he may project on the camoaign trail, he surely knows how to wield the levers of power behind closed doors.

Bottom line: A Biden Administration will not support court packing and will try to deemphasize it. Look for Biden to lean on Nancy Pelosi, and others who have been burned by aligning themselves with their intraparty radicals, for assistance in tamping down the extremism. Biden’s position may prove to be a last stand, depending on the growth of the radical progressive wing of the Democratic Party, and court-packing may remain as an issue in 2024. But a lot will happen between now and then, and the short-term likelihood of this terrible policy proposal coming to fruition is probably slimmer than it appears.

Turley on court packing

Jonathan Turley has been a voice for sanity among legal commentators during the tumultuous past year. His new op-ed at The Hill, which looks at the dangers and irony of Democrats’ court-lacking schemes, continues his tradition of strong and reasonable analysis. A snippet:

For the scheme to pack the Supreme Court proposed by Kamala Harris and others to work, there must be some kind of litmus test. Democrats have pledged to add new justices to ensure a bench that will vote to uphold or overturn cases as desired. Absent such promises, the scheme is a futile exercise. The whole point is to force outcomes like voting to uphold Roe. This rationale has reached truly dystopian levels, with former White House counsel John Dean insisting that, by creating a new ideological majority, Democrats would remove politics from the Supreme Court.

Litmus tests and the idea to pack the bench would not honor Ginsburg. They would instead destroy the Supreme Court she loved. It would obliterate an institution that has preserved the stability and continuity of our country. The Supreme Court has performed this vital role based on its legitimacy and authority with Americans that will evaporate if Democrats conduct litmus tests or pack the bench.

The whole article is well worth the read.

The political calculus: Who WILL be the Supreme Court nominee?

Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.

But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.

I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.

Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”

The political calculus: Who SHOULD be the Supreme Court nominee?

Second in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In an earlier post, I attempted to flesh out the political landscape surrounding any potential Supreme Court nomination. With President Trump announcing his plan to name a nominee at the end of this week, I now turn to whom he should nominate from a strategic standpoint.

I note at the outset that this is a question of politics, not whether the nominee is necessarily the best fit for the Court. While all the likely nominees are well-qualified on paper, the President’s calculus is not (nor has it ever been) about the Court’s best interests. It is about making political hay. And that is the lens through which I approach the question.

I also leave aside the question of whether the President should decline to send a nomination until after the election. That is, of course, the overarching partisan game, which I explored previously. I assume here that the President will make a nomination within the timeline he has provided, that Senator Mitch McConnell will do everything he can to bring that nomination to a vote before November, and that Senate Democrats will do everything in their power to avoid that vote.

With that in mind, the most conventionally strategic nominee is Sixth Circuit judge Joan Larsen. As I have detailed elsewhere, Judge Larsen is a highly intelligent, thoughtful, and well-qualified judge from Michigan, a political swing state which will play a big role in the upcoming Presidential election. Beyond her qualifications, her nomination poses practical problems for Democrats, who do not want to be seen as opposing a female nominee — especially one who sailed through the Senate just three years ago when she was nominated to the U.S. Court of Appeals. Larsen is also popular among voters in her home state, where she was resoundingly reelected to the state supreme court in 2016.

By nominating Judge Larsen, the President would score a political victory no matter what happens during the confirmation process. If the Senate confirms her, Trump can claim victory, charge up his base, and score valuable political points among swing voters in Michigan. If Senate Democrats manage to forestall a vote, Trump can turn that delay into a high-profile campaign issue, deflecting attention from the Biden campaign’s efforts to focus the election on COVID and Trump’s personal behavior.

Judge Larsen is reportedly on the five-person short list under consideration by the President, so her nomination is very possible. And while the qualities of the nominee are secondary to scoring political points — at least to this President — her confirmation would be a positive for the country and the Court. There is little doubt in my mind that she would make an excellent, thoughtful, respected Supreme Court Justice.*

So who will be the Supreme Court nominee? I offer some thoughts in the next post.

* CNN apparently agrees. In a photo caption yesterday, they already referred to Judge Larsen as Justice Larsen.

How far can Congress probe the judicial thought process?

Over at the Volokh Conspiracy, Josh Blackman has a fascinating post (really, a series of posts) about the efforts of ten Democratic Senators to force two Eleventh Circuit judges to “explain” their involvement in Florida’s felon disenfranchisement cases.

The brief background is this: the Florida Supreme Court heard oral argument on a challenge to state legislation conditioning the restoration of a convicted felon’s right to vote on the payment of legal financial obligations. Two of the Justices on the court at the time, Robert Luck and Barbara Lagoa, had been nominated for seats on the Eleventh Circuit Court of Appeals. Both Justices asked questions during oral argument, but were confirmed to the Eleventh Circuit just weeks later. Accordingly, neither Justice had any role in the outcome of the case.

On July 15 the plaintiffs, having sought review in federal court, requested that both judges recuse themselves from the Eleventh Circuit’s deliberations. The request was grounded on the fact that the judges had merely asked questions during oral argument while on the Florida Supreme Court, even though they had taken no part in the decision. (This was factually reminiscent of the Ninth Circuit case of Yovino v. Rizo, involving a judge who had voted on a case but died before it was announced; here, however, the judges did not vote at all.)

Professor Blackman had a very sensible take whether recusal was necessary in the Eleventh Circuit case:

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge’s questions during oral arguments, and even a conference vote, are not “immutable.” Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge’s impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court’s published decision. Therefore, they are not disqualified.

But it’s 2020, and legal arguments aren’t good enough for the political class. Hence, the subpoenas. Blackman’s take (which you should read in its entirety) concludes:

I have serious doubts about whether Congress has the power to subpoena a judge to testify about internal judicial matters. I think Congress could justify that subpoena as part of an impeachment inquiry. But a general need for information to craft legislation would not be suitable.

I am not a constitutional scholar, but that strikes me as correct.