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I will be speaking at three panels at the AALS annual meeting in San Francisco next week.

First, on 1/5 at 8:30 a.m., I am speaking on the “Hot Topic” program about federal power over immigration. When we submitted this proposal, we anticipated a different set of questions would be in play two weeks before the inauguration. Now, the panel is even more timely. Here is the lineup:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Jennifer M. Chacon, University of California, Irvine School of Law
Speaker: Jill E. Family, Widener University Commonwealth Law School
Speaker: Anil Kalhan, Drexel University Thomas R. Kline School of Law
Moderator and Speaker: Ilya Somin, Antonin Scalia Law School at George Mason University

Second, fifteen minutes later at 10:30 a.m. (I’ll have to hustle across the street!) I am presenting Presidential Maladministration at the Federalist Society Annual Faculty Conference’s Works-in-Progress panel. There will be a stellar group of scholars presenting here:

Josh Blackman, South Texas College of Law Houston: “Presidential Maladministration”
Enrique Guerra-Pujol, University of Central Florida: “Probabilistic Interpretation”
Jennifer Mascott, Georgetown University Law Center: “Who are Officers of the United States?”
Jonathan Mitchell, Stanford Law School: “The Writ of Erasure Fallacy in American Jurisprudence”
William Nancarrow, Curry College: ‘What Was All the Fuss About?: The Real Reason for Popular Anger at
the Courts during the “Lochner Era”‘
Ilya Somin, George Mason University Antonin Scalia Law School: “The Original Scope of State and Federal Power Over Immigration”
Lee J. Strang, University of Toledo College of Law: “Aretaic Originalism: Originalism’s Promise and Limits”
Moderator: Caleb E. Nelson, University of Virginia School of Law

Third, on January 6 at 8:30 a.m., I am speaking on another “Hot Topic” panel, titled “New Frontiers in Reproductive Rights and Justice.” My remarks will focus mostly on the aftermath of Zubik, and how the Trump administration will handle the contraception mandate. Here is the lineup:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Khiara M. Bridges, Boston University School of Law
Speaker: Melissa E. Murray, University of California, Berkeley School of Law
Moderator: Kate Shaw, Benjamin N. Cardozo School of Law
Speaker: Neil S. Siegel, Duke University School of Law
Speaker: Reva B. Siegel, Yale Law School

If you are in San Francisco, I hope to see you!

In my forthcoming Foreword to the NYU Journal of Law & Liberty, titled SCOTUS After Scalia, I trace the shifts on the right and left with respect to a host of constitutional issues, such as Article III standing and deference to administrative laws. One of the more pronounced changes reflects federalism. For example, in the Washington Post, Erwin Chemerinsky, Annie Laie, and Seth Daivs write that the Rehnquist and Roberts Courts federalism cases limit the Trump Administration’s powers over “sanctuary cities.”

Trump insists that he can force states and cities to participate in his plan to deport undocumented immigrants. But this ignores the 10th Amendment, which the Supreme Court has repeatedly interpreted to prevent the federal government from “commandeering” state and local governments by requiring them to enforce federal mandates.

For example, in Printz v. United States, in 1997, the Supreme Court struck down a provision of the federal Brady Handgun Violence Prevention Act that sought to require local officers to help enforce federal gun-control laws, including by conducting background checks. In an opinion by Justice Antonin Scalia, the court held that the act violated principles of federalism and the 10th Amendment for Congress by compelling state and local governments to comply with a federal mandate. Under the anti-commandeering principle, the federal government can no more require state and local governments to help it carry out mass deportations than it can require local officers to investigate and enforce federal gun laws.

Some have suggested that there is an exception to the anti-commandeering principle that allows the federal government to demand that states and cities turn over confidential information about undocumented immigrants. But this assertion misreads Supreme Court precedents. The court has held that Congress can require states and cities to disclose information where a statute also requires private parties to turn over the same kind of information. The court has never held that Congress can single out states and cities to share information with the federal government. That is the type of commandeering that the court repeatedly has found violates the 10th Amendment.

Nor can the federal government do indirectly — by threatening to withdraw federal funding from states — what it cannot do directly. In National Federation of Independent Business v. Sebelius, in 2012, the Supreme Courtstruck down a provision of the Affordable Care Act that required states to expand their Medicaid programs or lose the state’s federal Medicaid money. The court found the condition that Congress placed on states’ Medicaid funding unduly coercive and thus a violation of the 10th Amendment.

I was struck by reading these, as I recalled Chemerinsky has called for all of these cases to be reversed. Five minutes of research revealed some of Erwin’s prior writings.

In 2000, he wrote that Printz, as well as New York v. United States, should be overruled.

I believe that the ideal result in Reno v. Condon would have been for the Court to overrule the anti-commandeering principle. It is a rule not justified by the text, the Framers’ intent, historical practice, or sound constitutional policy analysis. Indeed, it often is counter-productive to the *829 Court’s goal of advancing state autonomy and is inconsistent with Congress’s powers under the Constitution. There is nothing in the text of the Constitution that mentions or even hints at an anti-commandeering principle. The Tenth Amendment’s text, of course, says only that Congress cannot act unless authorized by the Constitution, while states can act unless prohibited by the Constitution.⁴² Nor was the issue discussed at the Constitutional Convention. Neither New York v. United States nor Printz v. United States attempts to justify the anti-commandeering principle based on the Constitution’s text or Framers’ intent. Erwin Chemerinsky, Right Result, Wrong Reasons: Reno v. Condon, 25 Okla. City U. L. Rev. 823 (2000):

Erwin also wrote that the 10th Amendment places no limits on the spending power.

This is especially important as courts and commentators consider applying federalism principles to the spending power. Concern for protecting the states should not obscure the need to vindicate the authority of Congress to choose whether and how to spend its money. In this paper, I make three arguments. First, Congress’s spending power should be broadly interpreted. Second, the Tenth Amendment should not be applied as a limit on the spending power or on Congress’s ability to place conditions on its spending. Third, Congress should have expansive authority to require *90 that states waive their sovereign immunity as a condition of receiving federal funds. . . . *104 Thus, the Tenth Amendment should not be construed as limiting the ability of Congress to place conditions on grants to the states. Dole should continue to be followed. . . .  In this article, I have argued that the Spending Clause is different and that it should be limited by neither the Tenth nor the Eleventh Amendments. Erwin Chemerinsky, Protecting the Spending Power, 4 Chap. L. Rev. 89 (2001)

As for NFIB v. Sebelius, he wrote the spending clause analysis was made

“without reference to or invocation of constitutional theory” Erwin Chemerinsky, The Inescapability of Constitutional Theory Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self Governance J. Harvie Wilkinson III. Oxford, 2012. Pp 3, 161., 80 U. Chi. L. Rev. 935 (2013)

He added that the Chief’s decision in NFIB:

“gave little guidance as to how to decide when conditions are too coercive and that will lead to a great deal of litigation.” Erwin Chemerinsky, It’s Now the John Roberts Court, 15 Green Bag 2d 389 (2012)

First, overwhelmingly, the Supreme Court’s federalism decisions are “rights regressive”-that is, they limit rather than enhance individual liberties. Part II of the article discusses this. Second, as a more theoretical matter there is no reason to believe that federalism will increase freedom. The traditional explanations for why the vertical division of powers enhances liberty do not withstand scrutiny.
Erwin Chemerinsky, Does Federalism Advance Liberty?, 47 Wayne L. Rev. 911 (2001)

Now, Printz should be used to prohibit federal commandeering of state law enforcement officials, and the Tenth Amendment should put limits on the withdrawal of funds for non-compliant states, as a means to promote the individual liberty of aliens subject to removal.

I emailed Erwin and asked if he still favored the Court overturning Printz, and still maintained that the 10th Amendment places no limits on Congress’s spending power. He replied was not entirely responsive:

I continue to believe that the Supreme Court’s federalism decisions are misguided and undesirable. But they are the law. And our oped argued under this existing law. I do not see any inconsistency.

That’s a huge leap from saying the decisions are utterly inconsistent with the Constitution and ought to be overruled–“misguided and undesirable” is quite a tepid response. But there is a broader issue at play here.

Attorneys, as advocates, are fully entitled, and indeed expected, to use whatever precedents are available to advance their clients’ interests–whether they agree with the principle or not. Professors, as scholars, have a different purpose. Though they have their own opinions, they are seeking some higher truth through their writing, or even advocacy as amicus or direct representation or editorial writing. Though admittedly the line is blurry, there is something disconcerting about an academic explicitly relying on a rules he deems absolutely wrong, and that he previously called on to be overruled. There should be an expectation that the case is consistent with the scholar’s understanding of the correct interpretation of the Constitution. In other words, they are not “hired guns” who will adopt whatever argument is available to serve their causes. (On a related note, Justices who do this–such as Justice Scalia’s sudden embrace of substantive due process in McDonald–are also subject to criticism).

I don’t mean to pick on Erwin here. He isn’t alone. There have been a rash of progressives who suddenly embraced federalism decisions that they previously argued were wrong. On the whole, I’m ecstatic that the Federalist camp is growing! But I don’t pretend for a second they really mean it. Had Hillary Clinton won the Presidency, they would have called on Justice Garland to cast a fifth vote to overturn Printz and a host of other decisions.

Stay tuned to my Foreword for a discussion of “constitutional consistency.”

For the third term in a row, the Cato Institute has filed its “funny” amicus brief before the Supreme Court. (I am an adjunct scholar at Cato, but have had no role in these briefs). In 2014, Cato’s satirical brief in Susan B. Anthony List v. Driehaus, on behalf of P.J. O’Rourke, used crude humor to explain why even falsehoods are essential to the freedom of speech. In 2015, Cato filed its “funny” brief in Walker v. Texas Division, Sons of Confederate Veterans, on behalf of a “team of expert offenders of good taste,” to urge the Court “to reaffirm that the First Amendment protects the speech of unpopular minorities, even when the proffered justification for censorship is its putative ‘offensiveness.'” In 2016, Cato continued the tradition in Lee v. Tam. In this case, the government denied an Asian-American rock band the trademark “The Slants,” because some bureaucrats at the Patent and Trademark Office found the name “disparaging.”

Cato’s latest brief is a is a tour de force of offensiveness. To prove how ludicrous the government’s position is that it can deny “disparaging” trademarks, the brief went out of its way to disparage everyone and everything. Warning: this document may require trigger warnings on certain college campuses. Indeed, the statement of interest warns, “This case concerns amici because we all say things that some people find offensive or even disparaging—but it’s not the government’s role to make that judgment.”

Here are some of the highlights, or lowlights depending on your perspective.

First, the brief offers a historical perspective of early-efforts at disparaging political speech. Indeed, “Crooked Hillary” and “Lyin’ Ted” are tame by the standards of yesteryear.

Disparaging epithets long ago entered our political vocabulary, encapsulating criticisms more succinctly than any polite term ever could. Schoolchildren today learn that Millard Fillmore ran for president in 1856 as the candidate of the “Know-Nothing” Party; few adults could tell you the party’s “real” name. Yet a hypothetical 1856 PTO would likely have denied registration to a group called “Defeat the Know- Nothings” (disparaging to American Party members), just as the real PTO has denied registration to “Abort the Republicans” (disparaging to Republicans), “Democrats Shouldn’t Breed” (disparaging to Democrats), and a logo consisting of the communist hammer-and-sickle with a slash through it (disparaging to Soviets).

Second, indeed many terms that begin as disparaging are often embraced:

Jesuits, Methodists, Mormons, and Quakers owe their popular names to terms that were originally given to them in a disparaging context, and that have since been reclaimed.4 Without disparaging epithets, our vocabulary would be deprived of such terms as “cavalier,” “yankee,” “impressionist” (Renoir, not Rich Little), and “suffragette.”5 How did a donkey become the Democratic Party symbol? A political opponent labeled Andrew Jackson a “jackass,” so Jack- son put the animal on campaign posters. See Jimmy Stamp, Political Animals: Republican Elephants and Democratic Donkeys, Smithsonian.com (Oct. 23, 2012), http://bit.ly/2gzmfKa. An 1820s PTO might have stopped him.

Third, in particular rock bands–several I had never heard of–have endorsed such offensive terms. The brief spares no details.

Rock bands in particular often pick names because they are “disparaging.” The Slits, the Queers, Queen, Pansy Division, N.W.A. (Niggaz Wit Attitudes), and the Hillbilly Hellcats—there’s that word again—are just a few examples. Other bands, looking to push the envelope both musically and culturally, have chosen names like the Sex Pistols, Dead Kennedys, Butthole Surfers, Rapeman, Snatch and the Poontangs, Pussy Galore, Dying Fetus, and many, many more.

…

“Taking back” disparaging epithets has also been a philosophy of rap and R&B music, both of which use variations of “nigger” in their lyrics and names. N.W.A., one of the most culturally significant groups of the past 30 years, is the most prominent example. Straight Outta Compton (Universal Pictures 2015). They grabbed the slur with pride, announcing to themselves and the world with the brazen opening line, “straight outta Compton, crazy motherfucker named Ice Cube, from the gang called niggaz wit attitudes.” N.W.A., “Straight Outta Compton” on Straight Outta Compton (Ruthless Records 1988).

“A cursory survey just of titles yields Dr. Dre’s ‘The Day the Niggas Took Over,’ A Tribe Called Quest’s ‘Sucka Nigga,’ Jay-Z’s ‘Real Nigger,’ the Geto Boys’ ‘Trigga Happy Nigga,’ DMX’s ‘My Niggas,’ and Cypress Hill’s ‘Killa Hill Nigga.’ In ‘Gangsta’s Paradise,’ meanwhile, Coolio declares, ‘I’m the kind of nigga little homies want to be like on their knees in the night saying prayers in the streetlights.’” Kennedy, supra, at 35–36. N.W.A. received a trademark for its name. That The Slants have been denied one for theirs only underscores the arbitrary and biased nature of the Lan- ham Act’s disparagement clause.

…

Finally, band names are also chosen to convey valuable information about the music the band plays. It should come as no surprise that the Queers are not a Lawrence Welk cover band, the Revolting Cocks are not a string quartet, Dying Fetus does not play jazz standards, and Gay Witch Abortion would never open for Paul Anka. Similarly, The Slants have chosen a name that, through its insouciance, expresses some- thing about their music—and the government’s jejeune label of “disparaging” fails to capture the many levels of communication inherent in that name.

Fourth, some names can be deemed offensive by anyone.

Further, the disparagement clause is unconstitutionally vague. Its application will always be unpredictable, because nearly any brand could be taken as disparaging by some portion of some group. Take, for low-hanging fruit, Aunt Jemima, Uncle Ben, the Cleveland Indians’ Chief Wahoo, the women in La Tortilla Factory, or the Keebler Elves. Amicus Flying Dog Brewery has its own history of legal disputes over beer names like “Raging Bitch.” See next page and appendix.

At some expense, Cato submitted its brief in color to include this graphic:

Fifth, getting a bit autobiographical, the brief uses all manners of slurs to refer to amici.

For example, one of this brief’s authors is a cracker (as distinct from a hillbilly) who grew up near Atlanta, but he wrote this sentence, so we can get away with saying that. But he only moved to Atlanta when he was 10 and doesn’t have a southern accent—and modern Atlanta isn’t really part of the South—so maybe we can’t. Another contributor—unnamed be- cause not a member of the bar—is an Italian- American honky who has
wanted to play in a band called the Dagos, which of course would close every set with “That’s Amore” from “Lady and the Tramp.” But, with only his great grandparents having come from Italy, is he dago enough to “take back” the term? And amici’s lead counsel is a Russian- Jewish émigré who’s now a dual U.S.-Canadian citizen. Can he make borscht-belt jokes about Canuck frostbacks even though the first time he went to shul was while clerking in Jackson, Mississippi?

I should note that on the day Ilya took his oath of citizenship at the E. Barrett Prettyman U.S. courthouse, I handed him a filled-out form to renounce his Canadian citizenship. I even offered to walk it over to the Canadian embassy, which was one block away. Ilya still has the form.

Sixth, the brief has a riff on Chris Rock and then-candidate Obama:

In some cases, artists and comedians have harnessed their power to send a critical message. For example, one of the most groundbreaking stand-up routines ever recorded, Chris Rock’s “Niggas vs. Black People,” engaged in cultural commentary that put some African Americans in a negative light—indeed, “disparaged” them. See Niggas vs. Black People, in Chris Rock, Rock This! 17–19 (1997). Many questioned and criticized both Rock’s approach and, specifically, his use of “the N-word.” See, e.g., Eric Bogosian, Chris Rock Has No Time for Your Ignorance, N.Y. Times Magazine, Oct. 5, 1997, http://nyti.ms/2g5SO6c. (“Your audience is made up of whites, many of whom are happy to hear how lazy or stupid blacks are. You’re using the word ‘nigger.’ And some of the white audience is saying, ‘That’s right.’ . . . ‘Nigger’ is a heavy-duty word. You better have a good reason for using it.”). Yet the routine had such cultural resonance that 12 years later it was cited positively by an African- American presidential candidate. See Barack Obama’s Speech on Father’s Day, June 15, 2008, available at http://bit.ly/2ggKS0H. (“Chris Rock had a routine. He said some—too many of our men, they’re proud, they brag about doing things they’re supposed to do. They say ‘Well, I’m not in jail.’ Well you’re not supposed to be in jail!”). The 12-minute riff was undoubtedly an important contribution to an ongoing public debate—and its title and message undoubtedly would have been rejected by the PTO.

Seventh, the brief included riffs from South Park, a show I have been watching since middle school. It’s longevity, and never-ending ability to offend without cancellation, is remarkable.

Indeed, one harm of the government’s approach, which attempts to discern whether a “substantial composite” of a given community has felt disparaged by a mark, is that it will naturally allow certain loud voices in a racial or ethnic community to “speak for” the entire group in determining whether a term has disparaged them. After all, asking a few self-anointed “community leaders” is much easier than ascertaining the sentiments of millions of members of a diverse group.

See South Park, With Apologies to Jesse Jackson (first aired March 7, 2007):
Stan: Hey Token. I just wanted to let you know that every- thing is cool now. My dad apologized to Jesse Jackson.
Token: Oh I see, so I’m supposed to feel all better now.
Stan: Well, yeah.
Token: You just don’t get it, Stan!
Stan: Dude, Jesse Jackson said it’s okay!
Token: Jesse Jackson is not the emperor of black people!
Stan: (confused) He told my dad he was . . .

Eighth, the brief discusses how some words that were totally unoffensive have gained offensive connotations. For example, the word “niggardly.”

There have been similarly intense controversies over the use of the word “niggardly,” which has an entirely innocuous dictionary definition11 but hap- pens to also sound similar to another word of less in- nocuous origins. Use of the word has become so con- troversial that one employee of the D.C. Mayor’s Of- fice lost his job for using it in a public meeting. See Yolanda Woodlee, D.C. Mayor Acted “Hastily,” Will Rehire Aide, Wash. Post, Feb. 4, 1999, http://wapo.st/1j4yg7V. See also Kennedy, supra, at 94–96. What to make of such controversies? Perhaps there are some secret racists who receive a thrill from being able to say “niggardly” out loud and get away with it, like the second-grader who seems to enjoy saying “Hoover Dam” a bit too much. But most, sure- ly, use the word only out of a desire to show that they know their way around a thesaurus. Which definition of “niggardly” would the government use if someone attempted to include the word in a trademark? The dictionary or the dog-whistle? It is hard to know, and that, again, is exactly the problem.

Every year where I assign Youngstown, I brace myself for complaints from uninformed students when they come across this passage in Justice Jackson’s iconic concurring opinion.

However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism.

I found 62 Supreme Court decisions that use the phrase, most recently in a dissent by Justice Scalia, joined by Justice Thomas, in Cipollone v. Liggett Group (1992):

Applying its niggardly rule of construction, the Court finds (not surprisingly) that none of petitioner’s claims—common-law failure to warn, breach of express warranty, and intentional fraud and misrepresentation—is pre-empted under § 5(b) of the 1965 Act. And save for the failure-to-warn claims, the Court reaches the same result under § 5(b) of the 1969 Act. I think most of that is error. Applying ordinary principles of statutory construction, I believe petitioner’s failure-to-warn claims are pre-empted by the 1965 Act, and all his common-law claims by the 1969 Act.

Three years earlier, Justice Stevens–joined by Justices Marshall, Blackmun, and O’Connor–also used the phrase:

The Court’s niggardly construction to the contrary departs from the enlightened laws that Congress intended to track and defeats Congress’ beneficent purpose

The Court’s two African-American justices joined opinions with the word “niggardly,” without any suggestion to change it to “miserly” or “stingy,” a modification I have adopted in my own usage.

Ninth, in one of the sharper jabs, the brief suggests that the U.S. Reports may also be subject to disparagement claims, because of the Court’s decisions in a few unpopular cases.

The government should be careful if it truly believes that printing a disparaging message on any official publication will forevermore be seen as an imprimatur of endorsement for the respectability of the message conveyed—and that this justifies cleansing such publications of all disparaging sentiments. If so, this Court can only hope, for the sake of its own posterity, that the same principle is not eventually extended to another official publication of the federal government that has printed more than a few disparaging sentiments throughout its history: the United States Reports. See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1856); Bradwell v. Illinois, 83 U.S. 130 (1872); Plessy v. Ferguson, 163 U.S. 537 (1896); Buck v. Bell, 274 U.S. 200 (1927).

I always warn my students that readings in class will offend them–call it a blanket trigger warning for the semester.

Tenth, the authors of the brief were even willing to attack the Notorious RBG herself!

Indeed, questioning the character of our politicians is such a cherished American tradition that a member of this Court recently engaged in it herself. See Joan Biskupic, Justice Ruth Bader Ginsburg Calls Trump a “Faker,” He Says She Should Resign, CNN.com, July 11, 2016, http://cnn.it/29zSCUS.

Finally, a few scattered lines that were hapless slaps:

Actual, non-Biden sense of the word “literally.” See, e.g., Alexandra Petri, Literally, Joe Biden, Wash. Post, Sept. 7, 2012, http://wapo.st/2hpA521.

Couldn’t the Redskins controversy be obviated by keeping the name but replacing the logo with a smiling potato head?

“The Slants,” the band played it safe and called themselves “Four Asian-American Men Who Are Very Respectful of Our Diversity as a Nation.” Someone attending a show by such a band might well find it more “destabilizing” to only then discover that the band’s songs contain lyrics referencing the schoolyard taunt “Chinese, Japanese, dirty knees, look at these.” Resp. Cert. Brief 4. Amici, and all others who sometimes find them- selves lumped into a basket of deplorables—now that’s a great band name!—urge the Court to let peo- ple judge for themselves what’s derogatory.

In some of the Supreme Court’s most important First Amendment cases, speech is deliberately designed to be offensive to attract attention to a message: “Fuck the Draft” in Cohen, burning a draft card in O’Brien, or “Thank God For Dead Soldiers” in Snyder. Had these speakers used less disparaging speech–“Darn the Draft,” waving around a draft card, or ” God Hates War”–they simply would not have had the same impact.

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)

One of the earliest efforts of the President to seek the Senate’s “advice” came from none other than George Washington. This stranger-than-fiction account was narrated in the journal of Senator William Maclay of Pennsylvania. On August 22, 1789, President Washington arrived in the Senate Chamber. “He rose and told us bluntly,” Maclay wrote, “that he had called on us for our advice and consent to some propositions respecting the treaty to be held with the Southern Indians.” President Washington’s message was barely heard over the din of the carriages. Senator Robbert Morris of Pennsylvania rose and carped that “the noise of the carriages had been so great that he really could not say that he had heard the body of the paper which had been read, and prayed that it might be read again.” After President Washington’s letter was re-read, Vice President Adam asked, “Do you advice and consent, etc.” Maclay recalled that “there was a dead pause.”

Senator Maclay broke the silence, and asked that the treaty be studied further “to inform ourselves as well as possible on the subject.” Maclay wrote that he “cast an eye at the President of the United States” and “saw he wore an aspect of stern displeasure.” Senator Morris then asked that President Washington’s proposal “be referred to a committee of five.” Senator Pierce Butler of South Carolina objected that “Committees were an improper mode of doing business,” and “it threw business out of the hands of the many into the hands of the few.” Maclay defended the use of committees, and suggested the vote be postponed until Monday, even if it results in “possible inconvenience”

In a scene too remarkable to imagine, President Washington “started up in a violet fret.” In words emphasized in Maclay’s journal, the General barked “This defeats every purpose of my coming here.” Washington had visited the Senate with Secretary of War Henry Knox, who could “give every necessary information.” After Washington “cooled, however, by degrees,” he did not object to a delay until Monday, “but declared he did not understand the matter of commitment” to a committee. Washington then “withdr[e]w” with a “discontented air,” that could be described as “sullen dignity.” Presidential frustration with indecisive congresses is as old as the Republic.

On Monday, the Senate reconvened, with President Washington wearing “a different aspect” from his previous visit. After a “tedious debate,” and several modifications to the treaty, the Senate provided its advice and consent. “This closed the business. The President of the United States withdrew, and the Senate adjourned.”

This passage is adapted from my forthcoming Foreword in the NYU Journal of Law & Liberty, titled “SCOTUS After Scalia.”