Category: Education

Trump Short-Listers on Supreme Courts of Michigan and Minnesota Recuse from Election-Litigation

Dr. Jill Stein has appealed her recount suit to the Michigan Supreme Court. Two Justices on that court, who were on Donald Trump’s SCOTUS short list, have recused after Stein’s motion to disqualify.

Chief Justice Young offered this statement, which provides, in part:

As I have previously stated, anybody can make a list.1 In this regard, after serving as a jurist for 21 years, 18 on this Court, I fully acknowledge that, at the age of 65, the probability of my being selected and appointed from the president-elect’s infamous list of United States Supreme Court potential appointees is extraordinarily remote.2 Indeed, the oldest justices ever appointed in the history of the United States Supreme Court were approximately my age at the time of their appointment. (Justice Horace Harmon Lurton was 65 and Charles Evans Hughes was 67). The conflict supposed by intervening defendant is both speculatively hypothetical and, in my case, improbable.

After the disintegration of the political question doctrine and such cases as Bush v Gore,6 courts are increasingly called upon to settle frank political questions. Now, more than ever, a bit of judicial restraint is required to resist the calls of political sirens who urge the courts to engage in politics by another name.7

You hear that Inglorious RBG!?

Young notes in closing that he has never been in touch with the Donald’s team:

Even though no one representing the president-elect has ever contacted me or asked whether I am interested in serving on the United States Supreme Court, being listed is a potential boon, however remote. And now that the person offering this boon is a party in my Court, it is appropriate to remedy this conflict by declining to participate in this matter.

Justice Larsen likewise noted that she did not seek placement on the list, but it warrants recusal:

Before the November 8, 2016 election, now President-elect Donald J. Trump, or his campaign, included me on a list of 21 possible nominees to fill the vacancy on the United States Supreme Court created by the untimely passing of Justice Antonin Scalia. I did not seek inclusion on the list, had no notice of my inclusion before its publication, and have had no contact with the president-elect, or his campaign, regarding the vacancy. Yet the president-elect and his surrogates have repeatedly affirmed his intention to select someone from the list to fill the vacancy. My appearance on the president-elect’s list and his presence as a party in these cases creates a conflict requiring my disqualification. Accordingly, I grant the motions for disqualification.

Likewise Justice Stras of the Minnesota Supreme Court recused in September–even before the election–in a case concerning a suit to strike Trump’s name from the ballot.  (H/T Derek Muller)





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Could Senator Sessions Vote for His Own Confirmation?

As a general matter, when a President nominates a current Senator for a position, as a matter of courtesy, colleagues on both sides of the aisle will vote for one of their own. The votes are usually lopsided. For example, Senator Ken Salazar was confirmed by a voice vote, Senator Hillary Clinton was confirmed 94-2,  and Senator John Kerry was confirmed 94-3. Chuck Hagel was confirmed 58-41 in 2013, but he was a former Senator at that point. (Senator Judd Gregg (R-NH) withdrew his nomination, as did former Senator Tom Daschle (D-SD)). Likewise, Senators appointed to the Court also receive lopsided votes. President Truman’s nominee Senator Burton of Ohio was confirmed by a voice vote and (former) Senator Sherman Minton was confirmed 48-16. President Roosevelt’s nominee James Byrnes of South Carolina was confirmed by a voice vote, and Hugo Black was confirmed 63-16. (Black’s hearing was held in private, in a failed attempt to keep quiet his Klan affiliation). For this reason, I’ve suggested that the easiest Justice to confirm would be Ted Cruz–his colleagues on the other side of the aisle would be all too happy to get rid of the 45-year old, who would likely serve another four decades.

As a result of these lopsided votes, as far as I can tell, it has never been necessary for a Senator to cast a vote for himself or herself. But what if the vote was 49 for and 50 against. If the Senator cast the 50th vote, allowing the Vice President (almost always of the same party as the nominee) to break the tie. I doubt it will come to it, but what happens if the Senate’s votes were different, and the vote for Senator Sessions was 49 for and 50 against? Could Sessions vote for himself? Senator Blumenthal of Connecticut has asked Sessions to abstain voting on his own confirmation.

My first thought was whether there is some sort of constitutional norm. Akhil Reed Amar’s thought-provoking book, “America’s Unwritten Constitution,” begins with the impeachment trial of President Johnson in March 1868. Senator Benjamin Franklin Wade of Ohio is the president pro tem of the Senate. If Wade voted to remove Johnson, he would be next in line to succeed the President. (There was no Vice President at the time). Amar writes of the “intolerable conflict of interest” if Wade was permitted to vote, as his vote would directly benefit his own power. Ultimately, recognizing that the text of the Constitution was silent, and there was no precedent to the contrary, Wade was allowed to vote. Some argued that depriving Wade of a vote would in fact deprive the state of Ohio its suffrage in the Senate. Wade voted “guilty.” As history will recall, Johnson’s removal fell short by a single vote–35 to 19. Wade’s vote nearly was decisive, and could have elevated himself to the White House. The fate of our Republic would have been quite different.

I asked Amar if there was any problem, then, with Sessions voting for his own confirmation. Amar replied that since the commission happens after the confirmation, it would not be problematic. In other words, even after the Senate votes on the confirmation, the President must still complete the final act of commissioning the officer. As you’ll recall from Marbury v. Madison, the “final act,” in that case placing the seal on the commission, was what made the appointment complete–not delivery. (In April 2015, I authored an amicus brief in support of a cert petition concerning a thorny issue of what happens when the President rescinds an appointment after the Senate has already voted).

I also asked Josh Chafetz. His tentative response was that nothing in the Senate Manuel or Riddick’s Senate Procedure prohibits such a vote. He suggested that “nearly all nominees have simply had the good grace to refrain from voting, but I can’t swear that there isn’t a precedent.”

Brian Kalt added that Rule XII provides that “A Member, notwithstanding any other provisions of this rule, may decline to vote, in committee or on the floor, on any matter when he believes that his voting on such a matter would be a conflict of interest.” In other words, it is within the discretion of the Senator to decide for himself or herself.

Based on my august panel of experts, my tentative conclusion is that a Senator can vote for his own confirmation.


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Perhaps my least-favorite word in academic discourse is “interesting.” Consider several common usages:

  • “I find it interesting that Professor Smith wrote X here, but he wrote y previously.” This is the hypocrisy charge. Most professors would not say, “I find it hypocritical,” so instead the professors uses “interesting,” or even the more exotic “curious” which has the same effect. (Relatedly, see Richard Re’s post on the “You, Too Fallacy”).
  • “Professor Smith’s paper raises interesting questions about X.” This is the incompleteness charge. Most professors would not say, “Professor Smith’s paper totally misses the point, and doesn’t even address these fundamental questions,” so they refer to the incomplete analysis as “interesting.” A close runner-up is “This paper raises questions that I hope are answered in future works.”
  • “That’s an interesting question.” This is the I have-no-fricking-clue response. Very often when a colleague, student, or reporter, asks a question that is totally off-the-wall, the professor has no clue what the answer is. Saying the question is “interesting” is a nice way of giving credit to the misguided inquisitor, and also buys a few seconds for you to mentally-cobble together a response, but it adds absolutely nothing. It’s a filler like “Um.” It also raises a possible rejoinder–are questions that do not receive such appellation “dull” or “boring”? Should students and colleagues not rewarded with the “interesting” honor feel offended? (Once a professor told me not to praise the questions of some students, because that makes other students feel like their questions were not worthwhile–I do not follow that advice).

“Interesting” is often little more a euphemism academics use to passively aggressive criticize something, which cannot do so openly.

Once you pay attention to how the phrase is used, you’ll never use it again.

I fight myself whenever I have the urge to use it. I’m positive I slip at times–especially when reporters ask insane questions. If you catch me doing it, tell me to stop.

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Divisiveness of ACA Led to Partisan Split, Decline for Support of Federal Role in Health Care

Gallup released a new survey suggesting that since the enactment of the ACA, the percentage of Americans who think “the responsibility of the federal government to make sure all Americans have healthcare coverage” has decreased.

Gallup observes:

Compared with today, Americans were more widely inclined to say ensuring healthcare coverage is a federal responsibility between 2000 and 2008, with majorities of 54% to 69% saying this. But as President Barack Obama’s Affordable Care Act was debated and implemented, the issue became politicized, leading to a nearly even division on the question from 2009 to 2011.

By 2012, sentiment against healthcare being a government responsibility swelled to 54%, and it remained the majority view through 2014. But last year’s poll found Americans shifting more toward the view that the government should ensure all have healthcare, and this holds today.

One of the greatest failings of the ACA’s party-line vote was that roughly half the country did not participate in a massive expansion of federal power over healthcare. As I discuss in Unraveled, this same contingency had no problem opposing it, even after it was enacted.  This further polarized critical discussions of public health.

I included this passage from the Epilogue of Unraveled, which is more true today in light of these numbers:

The ACA’s polarized history complicates its future. Going forward, public health discussions will be inextricably interwoven with partisan rancor. University of Chicago health law professor Harold Pollack lamented that “so many promising [health care] delivery reforms are tinged by their association with President Obama’s signature domestic policy achievement.” In 2017, and beyond, any effort to unravel health care and politics will prove unavailing. Future reforms of the ACA will be permanently entrenched along Obamacare’s battle lines.

For these reasons, I have urged Republicans to find a way to make Obamacare’s replacement bipartisan–or else we will be stuck in the same divided posture that the Gallup poll illustrates.

On a related note, Harry Reid predicted that the Senate filibuster is not long for this world.

Reid predicted that the 60-vote filibuster threshold for legislation and for Supreme Court nominees will ultimately disappear altogether — calling it a natural evolution of the chamber.

The rules are “going to erode, it’s just a question of when,” Reid said. “You can’t have a democracy decided by 60 out of 100, and that’s why changing the rules is one of the best things that has happened to America in a long time. It’s good for us, it’s good for them.”

If Republicans go nuclear, it will be for Obamacare.

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Guest on “Your Weekly Constitutional” Podcast – The Most Dredd-full Chief Justice

In October, I recorded a 45-minute long podcast on the “Your Weekly Constitutional,” with airs on WETS 89.5 FM in Johnson City, Tennessee, and syndicated nationally. The show is hosted by Stewart Harris, who teaches at the Appalachian School of Law. The title of the feature was “The Most Dredd-full Chief Justice.” We took a deep dive into Chief Justice Taney, inspired by Frederick, Maryland’s then-recent decision to remove his statute from public grounds. We also take detours to Ex Parte Merryman, the distinction between judgment and precedent, and a host of other fun topics.


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In Defense of United Charging “Basic Economy” Passengers for Overhead Space

Recently, United announced that passengers will be able to buy discounted tickets, known as “Basic Economy,” but there are two primary conditions: first, you are not assigned a seat until you check in; second, passengers will not be allowed to stow carry-on bags in the overhead compartment–bags must fit below the seat.

On cue, Senator Chuck Schumer found something else he wants to ban.

“The overhead bin is one of the last sacred conveniences of air travel and the fact that United Airlines — and potentially others — plan to take that convenience away unless you pay up is really troubling,” Schumer wrote. “It seems like each year, airlines devise a new, ill-conceived plan to hit consumers and it has simply got to stop.”

My general rule of thumb is that whatever Chuck Schumer wants to ban, I support. Once again, my rule carries the day.

To prove my point, I must flash back to December 16, 2009, in one of my earliest blog posts, when Senator Schumer called a flight attendant a “bitch” because she made him turn off his phone before takeoff. (It is unclear if Billy Bush and Access Hollywood had a secret recording).

Schumer asked if he could finish his conversation. When the flight attendant said “no,” Schumer ended his call but continued to argue his case.

He said he was entitled to keep his phone on until the cabin door was closed. The flight attendant said he was obliged to turn it off whenever a flight attendant asked.

“He argued with her about the rule,” the source said. “She said she doesn’t make the rules, she just follows them.”

When the flight attendant walked away, the witness says Schumer turned to Gillibrand and uttered the B-word.

But moments after the flight attendant had told Schumer to shut it off, the phone rang again.

“It’s Harry Reid calling,” the source quoted Schumer as saying. “I guess health care will have to wait until we land.”

You see, when it comes to passing Obamacare, Senator Schumer is fine with delaying everyone else on the flight. (In hindsight, December 19 was a pivotal date, as the Senate was on the cusp of voting for the ACA).

The primary reason why I support this new option is because it will speed up boarding. If you have taken a United flight in the last few years, you will be familiar with this message: “If you are in Zones 4 or 5, you will not be able to bring you bag on board. Please check it at the gate.” Without fail, on every sold-out flight, roughly 40% of the passengers are not able to check their bag in the overhead. Yet, they attempt to do so anyway. So much time is wasted as passengers go up and down the aisles, often blocking the boarding process, trying to find overhead storage where there is none. Ultimately, all the extra bags are brought to the front of the plane, and they are checked at the gate. This wastes so much time, and adds to the stress of flying. Forcing more people to check their bags–here though offering a discounted ticket–is a smart move.

Also, the bag-check fee is $25. So long as the difference in price between the “Basic Economy” and the “Economy” tickets is more than $25, this will be a worthwhile deal. (If you sign up for a United credit card, you board in Zone 2, and the check-in fees are waived).

The much bigger inconvenience is that you do not have a reserved seat. But if you are travelling alone, and don’t care where you sit, this could be a way to save money.





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“From The Heart” by The Slants is the #SCOTUS Free Speech Anthem

This term, the Supreme Court will hear arguments in Lee v. Tam, which considers whether the PTO violated the First Amendment through their denial of a trademark for “The Slants,” an Asian-American rock band. Tony Mauro reports that–in what must be a first–The Slants recorded a rock song about their case!

The new song, [Frontman Simon Tam] said, was meant to be “an open letter to the trademark office.”

He added, “For us, this case has always been about civil rights.”

You can buy a copy from Microsoft–if you do, it will be the best $.99 you spend today. The song, titled “From the Heart,” should serve as the Supreme Court’s Free Speech Anthem.

Here are the official lyrics from frontman Simon Tam:

Sorry if our notes are too sharp
Sorry if our voice is too raw
Don’t make the pen a weapon
And censor our intelligence
Until our thoughts mean nothing at all

Sorry if you take offense
You made up rules and played pretend
We know you fear change
It’s something so strange
But nothing’s gonna’ get in our way

There’s no room
For your backward feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart

No, we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Sorry if we try too hard
To take some power back for ours
The language of oppression
Will lose to education
Until the words can’t hurt us again

So sorry if you take offense
But silence will not make amends
The system’s all wrong
And it won’t be long
Before the kids are singing our song

There’s no room
For your backward feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart

No, we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Or, if you’d like it in legalese, here is the Respondent’s brief in opposition to certiorari:

The Slants are also crowdsourcing money to fund their trip to the Supreme Court. I contributed.

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