Between the Lines


The GameMost political podcasts with which I am familiar have a well-defined perspective, be it right, left, libertarian, socialist, or whatever. The hosts, the guests, the thoughts, and most of all the audiences hew closely toward some ideological mean about which controversy may take place so long as it does not go beyond the locally prescribed bounds of decency. Our political culture is such that (in podcasts, anyway) the unifying feature of discourse is the existence of the “other”: the ideological enemy which lies far outside of the conflicts we have among ourselves.

Nevertheless, to me, one of the great joys of politics and philosophy are the arguments you have with people you totally disagree with and yet, with whom you share a deep mutual respect. Such experiences help you realize that politics is after all only one of the relatively shallow aspects of the human experience. And a venue like a podcast where it is possible for people to actually complete a thought seems like the perfect place for such battles.

In that spirit, my co-host on the Harvard Lunch Club Political Podcast, Todd Feinburg, and I invited Emily Bazelon (“E-Baz!”), one of the co-hosts of the Slate Political Gabfest, for a bout of right versus left, cowboys versus Indians, freshman semi-formal dance boys versus girls episode of the HLC podcast which we call: “Is Trump Too Stupid to be President?

Friedrichs Decision Is a Blow Against Educational Excellence


Rebecca Friedrichs, a veteran Orange County, Calif., public school teacher.

Today, an evenly divided Supreme Court affirmed a lower court’s decision in Friedrichs v. California Teachers Association to permit unions to continue charging nonmembers “agency fees” to cover collective-bargaining activities that the union supposedly engages in on their behalf. About half the states require agency fees from public-sector workers who choose not to join a union.

Maybe the Court Got this One Right?


shutterstock_19836403As noted in yesterday’s The Daily Shot, the Supreme Court finally ruled in the case of Nebraska and Oklahoma v. Colorado, wherein the former states sued their neighbor for undermining federal drug policy and their own drug prohibitions by legalizing marijuana. Having started a fairly lively conversation when the case was filed, I want to make some observations on the outcome. I suspect it’ll mostly remind people why lawyers drive them crazy. Here, in its entirety, is the court’s majority opinion:

The motion for leave to file a bill of complaint is denied.

That’s it. Justice Thomas, joined by Justice Alito, dissented:

Merrick Garland: Political Pawn


Caplan-Merrick-Garland2-1200The single most important phrase that changed the politics of Supreme Court nominations was Senator Edward Kennedy’s famous and shameful denunciation of “Robert Bork’s America,” with its back alley abortions, segregated lunch counters, and rogue police. From that point on, Supreme Court nominees of either party, and even potential nominees, have risked being attacked in a similar manner. The nomination process of Clarence Thomas was, of course, quite ugly—and there were major tussles during the deliberations over John Roberts and Samuel Alito (who then Senator Obama wanted to filibuster). Now, the Republican opposition is coalescing against Judge Merrick Garland, the Chief Judge of the Court of Appeals for the District of Columbia, who at age 63 is Barack Obama’s nominee to the Supreme Court.

The resistance to Garland may prove to be misguided from a political perspective, even if permissible as a constitutional matter. But the Republicans have just doubled down in their game of political chicken by announcing that they will not give Garland a hearing either before or after the election. Whether they have enough ammunition to succeed politically is a complex question.

To help cut through the morass, it is useful, I think, to separate the politics from the man. The opposition to Garland has nothing to do with Garland himself, who is a distinguished public servant and an excellent federal judge. If he were filling a seat vacated by a liberal Democrat, there would not be much fuss. But this appointment involves a shift in control on the Supreme Court. Republicans fear that even the most reasonable liberal Democrat will tip the balance of the Court away from the conservative wing. If Hillary Clinton becomes president, she will doubtless make two or three appointments to the Court, at which point the Democrats will have a complete ideological lock on the Court for at least a generation.

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Marco Rubio has lots of charisma and charm. He is really cute, if you like that sort of football player thing, and many people appreciate his earnest boyishness and sense of humor. Many people here at Ricochet are very disappointed in his showing in the primaries and his withdrawal from the race, having given much of […]

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What Republicans Should Have Said (But Won’t) About Obama’s SCOTUS Nomination


In politics, providing a reason for doing what you do is almost as important as doing the thing. Instead of the lame, inside-baseball “We just don’t confirm Supreme Court Justices in an election year” justification Republicans have offered, here’s how they should have clarified their opposition:

We cannot, and will not, confirm any justice to the Supreme Court whose vote would imperil important constitutional rights such as the right to bear arms and the right to freely practice and exercise religion.

Whole Woman’s Health in the Supreme Court: When Does Regulation Count as an Undue Burden?


In its first major argument since the untimely death of Justice Antonin Scalia, the newly constituted eight-member Supreme Court in Whole Woman’s Health v. Hellerstedt had a spirited session on whether the twin requirements of Texas Law H.B. 2 constituted an “undue burden” on a women’s constitutional right to have an abortion set out in 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. The first of these requirements was that any physician have admitting privileges at a hospital within 30 miles of where the abortion took place. The second, and more onerous, was that the abortion be performed in an Ambulatory Surgical Center (ASC) that is frequently reserved for procedures more dangerous than an abortion.

In the course of oral argument, there was no question that Justice Scalia’s voice was missed, but by the same token, there was no shortage of comments from the Justices who peppered the lawyers throughout the argument. Eight-member courts can function, at least to this extent. I have already written about the merits of this case, and nothing contained in the oral argument changed my views on the how it should be decided. If one could dial back the clock to 1973, I would never have held that the laws that made abortion illegal in every state of the union were unconstitutional in all of them, on grounds that it were unclear then and are still difficult to articulate today. But for these purposes, that decision is water over the dam, and the only question before the Supreme Court was whether the Texas requirements imposed an undue burden on the right of a woman to obtain that abortion.

Is this a Deal that Conservatives Should Make with Trump?


Trump_the_art_of_the_dealIn his press conference last night, Donald Trump was asked whether he could win the presidency without conservatives. After his obligatory “I’m a conservative” line, Trump basically said conservatives would stand to lose everything if they don’t support the Republican nominee.

Senator Ben Sasse and other Republicans have said they will not support Trump if he wins the nomination and others are considering a third-party or independent bid if it comes to that. If either of those happen, Trump is likely right: conservatives will lose anything.

What is the highest conservative priority, the one thing that would be more important for constitutional government than anything else? First, I’d suggest judicial nominations. Consider the appointment of Scalia’s successor, the likelihood that there will be more vacancies on the Supreme Court in the next few years, plus all the other appellate appointments the next president will make. A close second would be eliminating government unions and shrinking the administrative state. If conservatives could get control of judicial appointments or eliminate government unions, would it be worth making a deal with Trump?

The Quiet Justice and the Constitution


clarence-thomasAnyone who follows the actual work product of the Supreme Court knows that oral argument has no correlation to quality of legal reasoning or sharpness of thought. Focusing on whether Justice Thomas has or has not asked questions is a red herring.

What counts is not questions from the bench, but the written word of the opinions. For many decades, Justices rarely asked questions and oral arguments would often go long stretches without any questions. In fact, it was Justice Scalia’s arrival that spurred the no-holds-barred questions and answers that are a feature of today’s oral arguments.

But the appellate review of the Supreme Court does not serve the same function as trial courtrooms, where the lawyers and their antics dominate the proceedings. The Supreme Court focuses mostly on the written briefs of the lawyers, the text and history of the Constitution, and its own precedents. The lawyers contribute very little in oral argument to the Supreme Court’s deliberations.

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Earlier today, I published what I believe to be an ironclad argument as to why I should be the next associate justice of the Supreme Court of the United States. The argument can be summarized thusly: 1. There are no real requirements for the Court, and so I am not disqualified. And I am, in […]

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Why Obama Should Nominate Cruz for SCOTUS


supreme courtAs we were watching the CNN town hall, a friend of mine suggested, tongue-in-cheek, that Obama should nominate Ted Cruz. At first I laughed, and then I started thinking about it. This isn’t really that far-fetched an idea.

Obama already said he’d consider an elected official. Well, Cruz checks that box.

With a GOP Senate you gotta get someone in there who can get confirmed. Who better than Cruz? Senate Republicans will never have to worry about a guy they don’t like anymore because he’ll be out of their hair. Obama can present it as a deferential carrot to the GOP Congress in return for something else he may want or need.

Water Polo and the Judge


131007_DX_ScaliaIsMean.jpg.CROP.promo-mediumlargeThe whistles from both sides of the Olympic pool blew hard. The white clad referees each pointed to the defender in front of my son and held up the four fingers representing his number, and then pointed to the side. The player was done. Kicked out. The blood oozing from my sons nose was finally enough proof the other kid used his elbow too many times.

Not wanting to mollycoddle, but suitably concerned, I remained standing in my position, clapping and cheering him on as the teams went back to their respective corners. The coach checked on my son. This wasn’t just any game; they were deep into a qualifying tournament, just a feat to be there at all, which if they medaled would provide an invite to the Junior Olympics.

For the past few minutes the phone was furiously buzzing in my back pocket. It was Saturday afternoon. No business today, I thought, and left alone whatever was going on in the outside world.

How Republicans Can Win the Supreme Court Media Battle


SCOTUS“The only winning move is not to play.” — Joshua, War Games, 1983

The passing of Supreme Court Justice Antonin Scalia has changed the 2016 political landscape. There is bipartisan consensus on that point, and that point alone. What remains uncertain is how this will play out. But there is only one clear path for Republican candidates and senators: Starve the media of this story.

This much we know:

Antonin Scalia, a Most Memorable Friend


scalia0001The sudden death of Justice Antonin Scalia has elicited many tributes about his achievements. It has also sparked extensive reviews of his judicial body of work—and raised some questions about how filling his spot will affect the 2016 presidential election and the future direction of the Supreme Court. Like many others, I shall have more to say about these weighty issues going forward. But for now, I’d like to write about some of my personal interactions with Justice Scalia prior to his appointment to the Court in 1986.

Scalia graduated in the exceptional Harvard Law School class of 1960 along with the late David Currie, for many years my colleague at University of Chicago Law School. Currie helped arrange for Scalia to interview for a potential faculty position at the University of Chicago in early 1977. By that point, the election of Jimmy Carter as President had ended Scalia’s term as head of the Department of Justice’s Office of Legal Counsel, to which Gerald Ford had appointed him in August 1974.

When Scalia appeared for his Chicago job talk, he cut a large figure. The topic of the session was executive privilege vis-à-vis the Congress, an issue on which Scalia had sparred with Congress repeatedly as head of OLC. For Scalia, there was no middle ground on this question. He was a passionate and articulate defender of executive privilege, and noted, correctly in my view, that this was an issue that was not defined by party, but by role. Repeatedly, he stressed that every president of both parties had taken this view, which he thought that the constitutional system of separation of powers required.

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I confess I am pleasantly surprised at the strong stand GOP senators are making against confirming any Obama appointment to replace Justice Scalia. Perhaps after all the sturm und drang of the Harriet Meyers nomination, GOP officials finally are getting trained to behave like actual conservatives regarding court appointments. If so, it raises again the […]

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