About Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Case Against the Employee Free Choice Act.

Deep (Freeze) in the Heart of Texas

 

The recent dramatic events in Texas are an early warning sign of the disasters that are likely to occur if the Biden administration continues its relentless effort to demonize the use of fossil fuels in the effort to combat climate change.

Assessing whether the climate is really changing requires looking at two numbers. The first is mean global temperatures across time. While that figure is increasing overall, it shows a complex up-down pattern that cannot be explained solely by the steady increase in carbon dioxide emissions. The higher the mean temperatures, the worse the supposed problem.

The second measure, though often neglected, is every bit as important: the variance in temperatures, whether measured in days, seasons, or years. A lower variance over a relevant time period means less stress on the power grid and other systems, even when the mean temperature increases. The general trend is that the variance in the temperature has gone down over time. Even today, for example, a large fraction of the record high temperatures in the United States took place in the 1930s—when carbon dioxide levels were far lower than they are today—with only three record highs after 2000.

Coca-Cola’s Diversity Diktat Falls Flat

 

It is a commonplace of modern rhetoric to exalt diversity and inclusion as a first step toward racial justice. The standard account, widely accepted in political and business circles, insists their combined benefits are unambiguous: a firm’s performance will improve if its employees, suppliers, and customers are composed of individuals from all races, genders, sexual orientations, and general points of view. These diverse persons are not intended as mere tokens but are respected for offering their distinct and valuable perspectives on vital matters critical to corporate and national welfare.

As an abstract matter, it is hard to oppose an employment strategy that generates higher revenues and superior innovation. But once we get down to brass tacks, the overall picture is far more complex. The massive coercion involved in implementing diversity norms was recently revealed by Coca-Cola, which has gone all-in on diversity and inclusion for its more than 700,000 employees: “We champion diversity by building a workforce as diverse as the consumers we serve. Because the more perspectives we have, the better decisions we make.”

It would, however, be a mistake to assume that Coke thinks that it has made good on its key promise. In January, Coke’s new African-American general counsel, Bradley Gayton, laid down this broadside, “Commitment to Diversity, Belonging, and Outside Counsel Diversity,” in which he describes what he perceives to be the abject failure of prior efforts to reach requisite levels of diversity and inclusion at Coke and in the legal profession more broadly. Without a link to a source or statistic, Gayton lashes into the legal profession for being “too quick to celebrate stagnant progress and reward intentions.” Gayton demands specific actions to meet the “crisis on our hands” engendered by a lack of diversity.

Klobuchar’s Antitrust Blunder

 

This past week, Senator Amy Klobuchar, now the head of the Senate Judiciary subcommittee on antitrust, proposed the most comprehensive legislative reform of antitrust law since the passage of the Clayton Act in 1914. That statute extended the reach of antitrust law so that it covered not just Sherman Act cases of monopolies and cartels in restraint of trade, but also any merger or consideration that, to quote the language of Section 7 of the Clayton Act, might “substantially lessen competition” or “tend to create a monopoly.”

To Senator Klobuchar, that 107-year-old statutory standard is not sufficient for dealing with antitrust law in the digital economy. She has insisted that breaking up companies like Facebook “has to be on the table.” In a blunt statement, she projects her optimistic vision: “When we talk about structural remedies and breaking things up, those companies would then be unleashed to do even more”—but she doesn’t say how that welcome outcome would be achieved. Indeed, if a breakup would have that positive effect, then shareholders of those companies should be demanding that management adopt that course of action to maximize the value of their holdings. But underlying her analysis is the tacit assumption that there are no efficiency gains from the integrated operation of a single firm, let alone from any future merger or acquisition.

Unfortunately, she offers no systematic explanation as to why that negative judgment is correct. Nor does she explain exactly why the current system of merger evaluation is deficient. In his classic 1968 article, “Economies as an Antitrust Defense: The Welfare Tradeoffs,” the late Nobel laureate Oliver Williamson explained why it was not possible to have a presumptive condemnation of mergers. On the one side, mergers can increase industry concentration, exerting the usual negative effects on consumer welfare, including higher prices and perhaps lower quality. But on the positive side are the cost savings from the merger brought through efficiency gains in operations. The challenge is to measure and weigh their relative magnitudes.

Biden’s Unlawful Re-entry into Climate Accord

 

On January 20, beneath an imposing array of solar panels, President Biden issued an executive order declaring that the United States would rejoin the Paris agreement on climate change. The order stated in full: “I, Joseph R. Biden Jr., president of the United States of America, having seen and considered the Paris Agreement, done at Paris on December 12, 2015, do hereby accept the said agreement and every article and clause thereof on behalf of the United States of America.”

This executive order raises issues of huge constitutional import. Does the president of the United States have the constitutional power to “accept” the Paris agreement by unilateral action? The correct answer is a decided no. The Paris agreement should be understood first and foremost as a treaty. As such, it should be governed by Article II, Section 2, Clause 2 of the Constitution, which requires treaty ratification by two-thirds of the senators present. President Obama knew that he did not have the votes in the Republican-controlled Senate to ratify the treaty in 2016—hence the initial entry into the agreement via executive order.

The simple question here is whether the obligation to secure Senate approval can be avoided by rebranding the treaty as an “agreement,” as was done in Obama’s and Biden’s executive orders.

Biden Goes Deep Green

 

It is amazing the difference that four years can make in environmental policy. On January 24, 2017, at the outset of his presidency, Donald Trump issued an executive order that salvaged the Dakota Access Pipeline (DAPL) from the Obama administration’s planned obstructionism. Obama had sought to upset the string of administrative approvals that the project obtained at both the federal and state levels. DAPL runs about 1,100 miles from the Bakken and Three Forks oil fields in North Dakota to Patoka, Illinois, where it is able to carry, far below ground, about 500,000 barrels of crude oil per day. Trump’s action allowed Congress to vote on whether to grant the last federal easement needed for the pipeline to proceed.

DAPL is now in service, even as litigation to shut it down continues. Environmental groups continue to allege attenuated theories of adverse effects under the National Environmental Policy Act (NEPA). Their efforts are consistent with the common practice among environmentalists of paying inordinate attention to highly remote contingencies while completely ignoring the large and immediate safety and efficiency advantages of getting crude oil to both domestic and foreign markets via DAPL. More concretely, the chances that any crude oil shipped by DAPL will escape in sufficient quantities to damage the fishing or water rights of the Standing Rock Sioux have always been infinitesimal, which is why the pipeline operations have caused no such harm for the past three years. The overall soundness of the pipeline grid will become truly dire if DAPL is shut down while Keystone is left incomplete.

For the moment, however, the immediate threat is to the Keystone pipeline. On January 20, President Biden issued an executive order aimed at “Restoring Science to Tackle the Climate Crisis.” One component of his major order was to revoke the permit for the Keystone XL pipeline. The pipeline started some twelve years ago, but since that time it has been beset with legal challenges, including one in May 2020 in which a Montana judge yanked the pipeline’s permit on the grounds that the Army Corps of Engineers had not consulted sufficiently with the US Fish and Wildlife Service on the alleged risks that the pipeline posed to endangered species and their habitat. Such orders overlook the benefits from that pipeline, which include its ability to ship up to 830,000 barrels per day of crude oil from the Alberta sands to American refineries along the Gulf Coast.

The Trial That Should Not Be

 

Last week, the House of Representatives voted to impeach Donald Trump for “incitement of insurrection,” stemming chiefly from his remarks before a large crowd near the White House on January 6. As I have previously written, serious questions still remain as to whether those charges are valid as a matter of fact and law. But assuming they are, the question is what comes next.

Press coverage is mostly limited to tactical and political issues. On the Democratic side, the chief concerns are the timing and form of the expected trial. Should Speaker Nancy Pelosi delay sending the article of impeachment to the Senate to give House leaders more time to gather evidence to strengthen their case? Or will that delay undercut the perceived public urgency of the trial? If there is an impeachment trial, will that slow down the Senate confirmations of top cabinet officials or the passage of Joe Biden’s legislative agenda? On the Republican side, the question arises of whether individual senators should break ranks with Trump and convict him, even if most Republican voters are as strongly opposed to conviction as Democratic voters are in favor of it.

In an important sense, these questions put the cart before the horse. First, we must ask whether the Senate even has the power to try this impeachment once the president is out of office. As a textual matter, the answer is no. There are two relevant provisions in the Constitution: Article I, Section 3, and Article II, Section 4. Article I, Section 3, gives the sole power of impeachment to the Senate. First, a simple declarative sentence provides that “When the President of the United States is tried, the Chief Justice shall preside.” The key word is “the” as in “the President.” The word “the” is used instead of the word “a.” “The” has a definite reference to the president now sitting in office, which will be Joe Biden on January 20. Once Donald Trump is out of office, he cannot be tried under this provision.

Trump’s Bitter Denouement

 

As this essay is written, it is certain that President Donald J. Trump will be out of office by noon on January 20. What is not certain is the manner of his departure. He may leave earlier by resignation, under the complex provisions of the 25th Amendment, or by impeachment followed by trial. Much depends on the interpretation given to the tumultuous events of January 6. The proposed articles of impeachment are likely to stress that Trump incited riots, insurrections, or worse.

It is here that we need to inject a note of caution. Proof of those powerful charges is a complex issue because of the causal question of the relationship between what Trump said to his supporters and the indisputable acts of violence that took place at the Capitol. The physical movements, motivations, and timing of many individuals must be examined closely, which means that it is impossible to allow for adequate preparation of defense during the next nine days. There are still further questions of exactly who did what inside the Capitol, in light of the manifest shortcomings of the Capitol police. Their lack of preparedness and, at times, seeming acquiescence to the crowds outside likely amplified the negative consequences of Trump’s actions.

One can be deeply critical of Trump’s efforts to overturn the results of the Electoral College and still acknowledge that the fundamental protections of procedural due process apply with special urgency to disfavored and despised individuals. Contrary to a growing narrative, there are also reasons to question whether his conduct amounts to either an insurrection or a coup. There is simply no time for adequate consideration of articles of impeachment, let alone for conviction after trial.

Fannie and Freddie Revisited

 

The US Supreme Court heard the oral argument this month in Collins v. Mnuchin, a high-stakes case worth roughly $29 billion. The case was argued on terms that ordinary people would rightfully find utterly unintelligible. At stake was the legitimacy of the key features of the federal bailout of Fannie Mae and Freddie Mac, the two government-sponsored enterprises (GSEs) that dominate the residential home mortgage market.

The bailout began in the frenzied days after the 2008 banking crisis. Initially, the federal government agreed to contribute more than $188 billion to the two companies in exchange for senior preferred stock that carried with it a 10 percent dividend, or $18.8 billion per year. That deal was not negotiated by the trustees of Fannie and Freddie, as they had been ousted from their positions by a conservator, Edward DeMarco, the acting director of the Federal Housing Finance Agency (FHFA), which was given power to oversee the residential mortgage market. DeMarco had an obvious conflict of interest in making this deal because he was negotiating against the Department of Treasury, where he had been a senior official between 1993 and 2003.

The 2008 deal remained stable until August 2012, when DeMarco and Treasury renegotiated the transaction, such that the 10 percent dividend was eliminated in favor of a Net Worth Sweep (NWS) in the Third Amendment to the original deal. That NWS took all the dividends in perpetuity from both Fannie and Freddie and paid them into the federal treasury, leaving the companies with no cash, no liquidation preferences, and no voting rights, so that their only asset was a lawsuit against both FHFA and Treasury Secretary Steven Mnuchin as a stand-in for the United States government.

Nasdaq’s Diversity Distraction

 

This past week, Nasdaq announced that it had applied to the Securities and Exchange Commission for authorization to impose diversity requirements on the boards of directors of its listed companies. The substantive proposal requires that each company include on its board at least two diverse directors, one of whom must be a woman (or, more precisely, one who self-identifies as female) and one who self-identifies as a member of an underrepresented minority, including “Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, two or more races or ethnicities,” or as “LGBTQ+.” Whenever these targets are not met, the listed company must offer a public explanation as to why that is the case. At no point does Nasdaq offer specific instances of intentional discrimination against members of these preferred groups.

In its SEC application, Nasdaq writes as if the new policy is all gain and no pain. It reports that its proposal has strong support from many of its member companies, a large fraction of which have already adopted similar diversity policies. For instance, a Deloitte study cited in the application notes that a majority of public and private companies surveyed have either already reviewed “their board composition, recruiting, and succession practices” to fight “racial inequality and inequity,” or intend to do so. Nasdaq cites further studies that find that companies with diverse boards have consistently higher returns on investments than those companies that ignore diversity. It thus concludes that the “benefits to stakeholders of increased diversity are becoming more apparent and include an increased variety of fresh perspectives, improved decision making and oversight, and strengthened internal controls.”

Yet, Nasdaq simultaneously laments the relatively slow rate of increase in board diversity among its member companies, noting that “the US still lags behind other jurisdictions that have imposed requirements related to board diversity.” It also asserts, without demonstrating, that if “companies recruit by skill set and expertise rather than title, they will find there is more than enough diverse talent to satisfy demand.” Nasdaq then reverses field by allowing a listed company to disclose that it does not meet the rule because it is bound by some alternative legal standard under state or federal law, or because it “has a board philosophy regarding diversity that differs from the diversity objectives set forth” in the Nasdaq rule.

Avoid the Pitfalls of Student Loan Forgiveness

 

One looming issue facing the incoming Biden administration is what to do with the $1.7 trillion in outstanding student loans, mostly held by the federal government. The most recent internal government analysis found that the United States will lose about $400 billion on its current portfolio of $1.37 trillion, a number likely to increase as the government continues to allocate about $100 billion per year in new student loans. Notably, that analysis did not include the roughly $150 billion in loans backed by the federal government but originated by private lenders.

By way of comparison, private lender losses on subprime loans in the residential lending market were about $535 billion during the 2008 crisis. The student loan and subprime mortgage crises share the same root cause: by statutory design, the government wished to expand both markets, such that loans were made with little or no examination of the borrowers’ creditworthiness. The meltdown of the residential home market arose because private lenders relied on the implicit federal loan guarantee. In the end, this practice pushed Fannie Mae and Freddie Mac, the holders of weak mortgages, over the edge, and ultimately resulted in the wipeout of all the private common and preferred shareholders of the two companies.

Fortunately, the absence of private shareholders ensures that the student loan crisis is not likely to generate such chilling collateral consequences. But the problem of borrower defaults will not go away soon, given that the federal government continues to pump billions of dollars each year into student loans. Unfortunately, this constant infusion of new capital into the lending market is causing increases in college tuition that outstrip inflation, imposing additional costs on individuals who do not take out student loans, and raising the overall cost of education above competitive rates.

An Overambitious Climate Plan for Biden

 

President-elect Joe Biden’s transition team has made it clear that climate change will be a top policy priority for his incoming administration. In crafting its policies, the Biden administration may heavily rely upon a blueprint already created by former Obama administration officials and environmental experts. Known as the Climate 21 Project, the exhaustive transition memo seeks “to hit the ground running and effectively prioritize [Biden’s] climate response from Day One,” after which it hopes to implement major institutional changes within the first hundred days of the Biden presidency. The project’s recommendations involve eleven executive branch agencies, including the Departments of Energy, Interior, and Transportation, as well as the Environmental Protection Agency and the National Oceanic & Atmospheric Administration, all of which are now actively involved in environmental policy. But the breadth of the Project 21 initiative is evident by its inclusion of State, Treasury, and Justice, too.

The project makes a grim assessment of the (unnamed) Trump administration. In speaking of the Environmental Protection Agency, it notes, without identifying any particulars, that it “has experienced a prolonged, systematic assault to disable effective capacities, demoralize its highly expert and dedicated staff, undercut its own legal authorities, and betray the EPA’s core mission to protect human health and the environment.” To reverse these trends, the Climate 21 Project is determined to shift the EPA’s focus “to climate change and clean energy,” an effort centered “around a deep decarbonization strategy.” The memo adds that the Interior Department must directly seize on “climate mitigation opportunities . . . in reducing greenhouse gas emissions from fossil resources owned by the public and tribes, boosting renewable energy production on public lands and waters, [and] enhancing carbon sequestration on public lands.”

The project’s seventeen-person steering committee consists of many Obama administration officials and environmental activists. Its co-chairs are Christy Goldfuss, formerly a managing director at the White House Council of Environmental Quality and now the head of Energy and Environmental Policy at the Center for American Progress, and Tim Profeta, Director of Duke University’s Nicholas Institute for Environmental Policy Solutions. The committee contains no mainstream Republicans or market-oriented economists. Its orientation is captured by the repeated use of the words “crisis” or crises,” which appear fifteen times in its report’s summary alone, usually joined with the word “climate.”

Religious Liberty Should Prevail

 

This past week in Fulton v. City of Philadelphia, the Supreme Court re-entered the dangerous minefield at the junction of religious liberty and anti-discrimination. The current dispute arose when Philadelphia’s Department of Human Services announced that it would no longer refer children to Catholic Social Services (CSS) for placement in foster care because CSS refused to consider same-sex couples as potential foster parents. CSS was, however, prepared to accept into its foster care all children regardless of their sexual orientation. After prolonged negotiations with the city failed, CSS sued. It seeks, in the words of the Third Circuit, “an order requiring the city to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.” The Third Circuit upheld the position of the city.

Resolving this delicate confrontation requires a return to first principles. Let’s start with the First Amendment’s protection of the free exercise of religion, as elaborated in Justice Antonin Scalia’s majority opinion in Employment Division v. Smith. Alfred Leo Smith, a drug guidance counselor, was denied unemployment benefits after being terminated for consuming peyote, a controlled substance, as part of a religious rite. The court held that his religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” The First Amendment did not require Oregon to accommodate Smith’s religious practice. Any neutral law of general applicability was acceptable, notwithstanding its disparate impact.

Notably, the word exercise is broad enough to cover not only Smith’s use of peyote but also CSS’s adoption policies. Accordingly, under no circumstances should Philadelphia be allowed to pass an ordinance that requires the Catholic Church to ordain women as priests, or to offer family aid services paid from its own funds to same-sex couples. The question in Fulton is whether CSS’s free exercise rights are forfeited when the city supplies public funds and matching services to CSS and the children it puts up for foster care.

A Flat Tax Is a Fair Tax

 

One of the most contentious political battles of the 2020 election cycle involves the Illinois “Fair Tax” ballot amendment. Supported politically (and financially) by Illinois’s billionaire governor, J. B. Pritzker, the amendment seeks to remove a provision in the Illinois constitution that requires all income taxes to be flat—that is, held at a constant rate regardless of the amount of income earned by any taxpayer. Currently, all income earned in Illinois is taxed at a 4.95 percent rate. The amendment requires a simple majority vote to be passed.

The amendment does not offer any specific progressive rate scale, but allows for increasing tax rates to be applied to successive tiers of a taxpayer’s income. Notably, the initial legislative plan on which the amendment is largely based—and which was proposed by the Democrat-controlled legislature—is a hybrid between a flat and progressive scheme. Most earners would be subject to progressive rate scales starting at 4.75 percent for the first $10,000 of income earned. Then. as income increases, so would the tax rate, maxing out at 7.85 percent. The legislative plan maintains a flat tax for the financial elite: Individuals reporting income above $750,000 and couples with joint incomes above $1,000,000 would pay a 7.95 percent rate from their first dollar.

This change in tax structure is held out as the fairest because it puts onto the rich the burden of shoring up Illinois’s rickety finances. The argument goes that the poorest 20 percent of the public are disproportionately exposed to high state, county, and local sales taxes, which total 10.25 percent in Chicago. This leads to a regressive system overall, where the poor pay an effective tax rate of 14.4 percent, while the top 1 percent pay only 7.4 percent. The obvious rejoinder is that, in total dollars, the rich pay far larger amounts in all taxes, much of which is used for transfer payments from which they do not benefit.

Untangling the Obamacare Challenge

 

During the hearings on Amy Coney Barrett’s nomination to the Supreme Court, one constant theme was whether her vote would jeopardize the Affordable Care Act. From the time of its inception, the ACA was a grievous social and economic mistake. Thereafter, Chief Justice John Roberts’s decision in NFIB v. Sebelius (2012) was a constitutional train wreck. Notwithstanding this sorry history, the most recent challenge to the ACA—raised in Texas v. California—is whether neutralizing the individual mandate under Section § 5000A(c) of the GOP’s Tax Cuts and Jobs Act of 2017 (TCJA) undoes the whole statute. This new challenge to the ACA is a sure constitutional loser, no matter what view one takes of the original legislation.

To set the stage for the current dispute, it is necessary to recapitulate the two key constitutional challenges to the ACA in NFIB v. Sebelius. The first was that the ACA exceeded the scope of the Commerce Clause, which gives Congress the power to “regulate commerce among the several states.” The second was that the individual mandate counts as a “tax” that falls within Congress’s power “to lay and collect taxes.”

In the ACA, the individual mandate was artfully disguised as a “shared responsibility payment” whereby young people who failed to enroll were made to pay a levy. As the chief justice noted in his NFIB opinion, the mandate was regarded at the time as an “essential” feature of the ACA structure: the mandate was necessary to keep young adults in the pool, who in turn provided the subsidies needed to keep the rates charged to older Americans affordable. It was presumed at the time that healthy, young adults otherwise would opt out of coverage in droves because their premiums would be far in excess of their collective benefits. The penalty/tax was designed to create a Catch-22, for now in principle young people stood to lose exactly the same amount by opting out of the ACA as by staying in.

Is There an Antitrust Crisis in Big Tech?

 

This past week, the Democratic majority in the House of Representatives released an exhaustive report, Investigation of Competition in Digital Markets, which purports to demonstrate a looming crisis in today’s digital markets, to which the strict application of the antitrust laws is the obvious antidote.

The report attributes a famous remark to Louis Brandeis: “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.” To the Democrats, the combined $5 trillion market value of four major tech companies—Amazon, Apple, Facebook, and Google—offers ample confirmation of the increasing concentration of wealth and power in a few hands. The report believes that these four firms, each in its own way, raise serious antitrust concerns because of their ability to control access to markets, block innovation by smaller rivals, impose onerous conditions on potential customers and rivals, and skew the organization of trade and commerce in ways antithetical to the general welfare.

Although the report does not speak about breaking up these companies, it does offer a long list of questionable recommendations to address current antitrust problems. Those recommendations include limiting the ability of “certain dominant platforms” from operating in “adjacent lines of business,” erecting nondiscrimination requirements in order to prevent various forms of “self-preferencing,” a “presumptive prohibition of mergers and acquisitions by dominant platforms,” and “prohibitions on abuses of superior bargaining power.”

How Affirmative Action Falls Short

 

It has been fifty-six years since the passage of the Civil Rights Act of 1964, legislation that took aim at the systematic forms of legal segregation that had long dominated large segments of American life. It did not take an expert in implicit biases to see the corrupting influence that officially sanctioned racial segregation had on public life, nor did it take a subtle analysis to understand the importance of the Voting Rights Act of 1965 in undoing the exclusion of African-American citizens from their lawful place in society. The effects of these statutory reforms were lasting and profound.

The passage of these landmark statutes did not put an end to racial conflict simply because they ended explicit forms of discrimination. Indeed, one of the toughest issues to resolve was the proper regime for dealing with labor markets. The great mistake of the 1964 Civil Rights Act was to adopt an explicit colorblind standard for employment under Title VII, which had the effect of slowing down the introduction of affirmative action programs that might have led to more African-American employees in the workplace, especially in unionized firms.

Those affirmative action programs received belated judicial approval in United Steelworkers v. Weber (1979), in which Justice William Brennan held that Title VII “does not prohibit such race-conscious affirmative action plans.” In Weber, Justice Brennan upheld a program that set aside 50 percent of the in-plant craft-training places for black workers until they achieved parity to the percentage of black workers in the overall labor force within that community. That decision was the second major piece of Title VII’s employment law regime, following the 1971 decision in Griggs v. Duke Power, which had previously adopted a strict “business necessity” test to justify a disparate impact that any facially neutral test or business practice had on racial minorities. Weber enabled affirmative action programs, while Griggs blocked discrimination against protected minority groups.

Doing Justice to the Barrett Nomination

 

To the glee of his conservative base and to the consternation of his progressive opponents, President Trump has nominated Amy Coney Barrett for a seat on the United States Supreme Court. My own preference, which was shared by others, such as Peggy Noonan, was to delay a vote on the nominee until after the election. But the course of events has moved rapidly in the other direction, and a no-holds-barred nomination fight is now upon us.

In earlier times, Judge Barrett’s consistent level of high performance would have led to confirmation by acclamation under the now-disregarded practice of evaluating a judge’s legal understanding and technical competence, independent of her political orientation. But these are not normal times. Indeed, the current fight resembles the appointment of John Marshall, our greatest chief justice, to the Supreme Court by President John Adams on March 3, 1801, the day before Thomas Jefferson was sworn in as president.

Senator Mitch McConnell’s prompt announcement that the president would move forward with the nomination rests on the fact that McConnell had sufficient votes in his pocket. McConnell and Trump may think that they will gain a powerful political advantage by forcing the Democrats into a two-pronged strategy of massive resistance. The first is an all-out attack on Barrett for her religious associations, most notably her membership in People of Praise, a predominantly Roman Catholic faith community formed in 1971. The second is an institutional challenge, represented by Senator Elizabeth Warren’s adamant refusal to confirm a new Supreme Court justice until after inauguration on January 20, 2021. The Democratic playbook threatens to pack the Supreme Court if Barrett is confirmed, or to limit the appellate jurisdiction of the Supreme Court so that it could not review Biden administration proposals, like implementing the Green New Deal or increasing the rights and power of unions. Progressives by and large are fearful of judicial intervention by a conservative court that would challenge their culture war victories, upset their efforts to reshape the economy from top to bottom, and remake the regulatory world to be friendlier to business.

Trump and McConnell, Beware

 

I first met Ruth Bader Ginsburg in the winter of 1978 when we were both fellows at the Center for Advanced Studies in the Behavioral Sciences at Stanford. Our interactions were always cordial. From the first time we talked, it was clear that she was a passionate advocate first, and a detached academic second. She was always immersed in filing certiorari petitions at the Supreme Court in connection with the hugely successful Women’s Rights Project, which she ran at the American Civil Liberties Union from 1972 until she was appointed to the Court of Appeals for the District of Columbia in 1980.

Ginsburg had the rare quality of being both passionate and rigorous in her work, and she displayed those same traits of grit and excellence at every stage of her career. Moreover, her excellence as a lawyer was not confined to the women’s rights issues that brought her fame. She also displayed an impressive expertise on the many procedural, jurisdictional, and constitutional issues that form a huge part of the high court’s docket. It was surely possible to disagree with her on the merits of any given case, as I often did. But it was not possible to dispute the brilliance, knowledge, and determination that she brought to her lifetime’s work.

Ginsburg was nominated and confirmed to the United States Supreme Court in 1993 by a 96-3 vote, in a relative period of peace between the huge confirmation battles of Judge Robert Bork and Justice Clarence Thomas, and those of Justice Neil Gorsuch and Justice Brett Kavanaugh. The most bitter fights have been over Republican nominees, a pattern that promises to continue with the next nominee, whom President Trump has stated, surely incorrectly, that he has “an obligation” (as opposed to an option) to nominate. He has already announced it will be “a very brilliant woman.” The thought that the immediate struggle would be put off until after the election was dismissed by Senate Majority Leader Mitch McConnell’s immediate announcement that he will try to persuade the Senate to confirm a nominee.

The American Meltdown

 

Police confront rioters, South Portland, OR, Aug. 20.
It’s now a common trope to claim that the United States is so deeply racist that massive structural changes are needed in how government and private institutions operate. That dangerous claim has gained exceptional influence at all levels of education—from elementary school to graduate-level programs. But this idea rests on a wholly misguided understanding of the facts on the ground.

It is surely correct to mourn the death of any individual, regardless of cause. But it is also imperative not to make false causal accusations, as protesters have done, by attributing the deaths of George Floyd, Breonna Taylor, and other African Americans to entrenched police brutality and institutional racism. It is not just activists who make this claim. It also our governing organizations. The New Jersey Educational Association uses the Black Lives Matter banner to advocate a major reformation of the education system: “It is impossible to see the video of [Floyd] being strangled under the knee of a police officer in broad daylight on a public street and not be disgusted, horrified, angry, [and] sad.”

Assessing the Presidential Candidates

 

Choosing a president often requires voters to resolve a tension between two factors—the personal traits of the candidate and the policies that he and his administration will implement. How do Joe Biden and Donald Trump stack up on these measures?

The Democrats present Biden as a sensible, experienced administrator who will remedy the social divisions of the Trump era—now wracked with looting and violence—by restoring calm and order. But Biden is not without his weaknesses. Lingering concerns regarding his mental fitness will not go away. His penchant for gaffes and outbursts on the campaign trail is likely to persist. A sympathetic press has largely refrained from scrutinizing his son Hunter’s involvement as a board member of the corrupt Ukrainian gas company Burisma, and likewise has ignored charges of Biden’s alleged sexual improprieties, most notably those tied to Tara Reade.

Putting Biden’s character issues to the side, the inquiry then shifts to his substantive policies. A classical liberal such as myself insists that government should restrict itself to a limited menu of topics, and staunchly resists excesses in regulation and taxation. In my opinion, there is not a single issue on which he and his party take the correct position. Neither Biden nor his party’s platform recognize the limits and inevitable pitfalls of aggressive government action. Given Biden’s platform, taxes, especially of the rich, will dramatically increase to fund massive programs of redistribution intended to underwrite a long list of positive rights—education, health care, union representation, and equal pay.