Neal Katyal And George Conway’s Incomplete Legal Advice

In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate.  So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”

(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)

Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:

[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the  law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic.  Unconstitutionality Alleged! Boom!

What Katyal and Conway have failed to do is tell us who has standing to sue.  Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”

So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.

This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.

As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.

Twenty Seven Years On, Old White Misogynists Still Get To Send Liars To The Supreme Court

Twenty-seven years on, little has changed in America. Old white men still get to make liars into Supreme Court Justices. Indeed, things have worsened. Back in 1991, the Senate merely elevated a serial sexual harasser to the Supreme Court. Now, they get to send lying, rapey fratboys to the bench. I suppose that’s not so surprising when our President is also a ‘man’ who routinely sexually assaults women. And the US Senate continues to be packed with misogynists.

Brett Kavanaugh, who give ample evidence yesterday that he is a unhinged, vengeful, and demented Republican hack, also established yet again, by means of his constant evasions and his repeated obfuscations, that he was guilty of the charges Christine Blasey Ford‘s powerful testimony had laid against him. On nine separate occasions, he filibustered when asked if he would support a full FBI investigations into the ‘charges’ he was facing. For a man who was supposedly so upset that his good name had besmirched, who was ready to swear on God–though this must be reckoned our culture’s most useless oath-taking of all–that he was innocent, he was remarkably unenthusiastic about the prospects of an inquiry that would support his claims. He knows that once a full FBI investigation is launched, the likes of Mark Judge will not escape inquiry or subpoena; witnesses will be questioned closely; corroborative evidence will mount. And a far more comprehensive picture will emerge of the kind of man the Senate is sending to the Supreme Court.

Kavanaugh did precisely what one would expect a guilty liar to do. He knows that the political calculus favors him. He is backed by a serial sexual abuser and harasser and the Republicans in the Senate. Kavanaugh knows that once he is nominated the game is up; he will not face any threats to his lifetime tenure on the Supreme Court. The Democrats, were they to come to power in 2018 or 2020, in the House and Senate, will not pursue impeachment proceedings against him. They will be too busy engaged in a ‘healing’ process, in ‘moving on.’ All Kavanaugh had to do–and he did just that–is continue to lie, deny, obfuscate, evade, and of course, to show that he is a good little Trumpkin who has learned the right lessons from his master, be as offensive and deranged as possible. Most usefully, that would send a loud and clear signal to the folks on Fox that he belongs on the Supreme Court; they can be counted on to break out the pom-poms and assemble a cheering squad as quickly as possible.

What a contrast yesterday’s hearing provided: Ford was dignified, knowledgeable, and polite; she elevated the proceedings. Kavanaugh bragged, preened, yelled, interrupted, condescended, refused to answer questions, and ranted; he dragged the proceedings down into the basements of the many houses where he and drunken buddies assaulted women.

Stand by for photographs of Brett Kavanaugh, Donald Trump Jr., and Stephen Miller celebrating his confirmation with a few ‘skis’ at a DC watering hole. Our ‘republic’ has the leaders and judicial sages it deserves.

Justice Hugo Black, The Ku Klux Klan, And The Trump Candidacy

In 1914, Hugo Black–a future Supreme Court Justice–was elected solicitor, or district attorney in Birmingham, Alabama. He lobbied to improve prison conditions for both black and whites, and even published a report on coerced confessions. As a trial lawyer, he had successfully represented a black man who had been imprisoned twenty-five weeks beyond his original sentence. But he remained a prisoner of his time and place.

After a stint as district attorney, Black became a personal injury lawyer, and showed himself a master of the racial dog whistle. In one case, he defended a Protestant minister, E. R. Stephenson, accused of murdering a Catholic priest, James Coyle, who had performed the marriage of the minister’s daughter, Ruth, to a Puerto Rican laborer, Pedro Gussman. During his questioning of prosecution witnesses, he asked several of them, “You’re Catholic, aren’t you?” Later, he asked for floodlights to be installed in the courtroom, and had them shone on the decidedly not-white Puerto Rican bridegroom during his testimony, saying that he “just wanted the jury to see that man.” And then, during his closing argument to the jury, many of whom were members of the Ku Klux Klan, Black recited the Ku Klux Klan prayer, “Our father and our God. We, as klansmen, acknowledge our dependence upon Thee.” The jury voted to acquit.

In 1923, Black joined the Klan as a prelude to running for Senate. During his electioneering, Black marched with the Klan and spoke at over a hundred meetings, all the while decked out in Klan robes. He struck many populist and nativist themes in his stump speeches, railing against corporations and income inequality and immigrants. In 1926, he was awarded, and happily accepted, the Klan’s ‘grand passport’ after winning the Democratic Party’s primary. When a clerk asked him why he had joined the Klan, Black replied, “Why, son, if you wanted to be elected to the Senate in Alabama in the 1920s, you’d join the Klan too.”

As Black’s biography shows, racist and nativist populists who rose to power are not unknown in American political history; neither is their skilled deployment of race-baiting techniques and their sounding of dog whistles. The artful politician can invite the sympathy of the working class by concentrating on those issues that address their economic bottom line even as he appeals to their baser instincts by readily finding scapegoats among the usual suspects: foreigners and people of color. Donald Trump has learned his lessons well, even if there is little evidence he burned any midnight oil reading the biographies of Supreme Court Justices. He’s not alone in imbibing these lessons, of course; most of the Republican Party have been diligent students of their dark arts. Trump has just done it better.

And so Trump might yet say to someone who would ask him why, during the election season of 2016, he went on tirades against Mexicans and Muslims, welcomed the support of white supremacists, accused Federal judges of bias, and sought to ban an entire class of immigrants from the nation, “Why son, if you wanted to be the Republican Party’s presidential candidate in the new millennium, you’d been a fascist too!”

Note: This post is cribbed from Jeffrey Rosen‘s The Supreme Court: The Personalities and Rivalries That Defined America (Times Books, New York, 2006, pp. 136-137).

The ‘But The Supreme Court’ Argument For Hillary Clinton

One ‘hold-your-nose-and-vote-for-the-lesser-evil’ argument currently making the rounds for the Hillary Clinton candidacy–ostensibly intended to address the ‘schism’ in the Democratic Party, among the ‘Left’ and ‘progressives’–goes something like this. Vote for Hillary Clinton, even if you disagree with many of her policies, do not consider her entirely trustworthy, and would much rather vote for Bernie Sanders–because she will nominate the right person, the right Justice, to the US Supreme Court. (The Senate will not confirm a nominee put up by President Obama, so this will be one of the first tasks awaiting the new President next year.) No matter what you think, you cannot allow a President Trump to nominate a right-wing ideologue to the Supreme Court, who will then roll back years of hard-won legal victories in many domains: perhaps abortion restrictions, perhaps voting rights, perhaps the power of regulatory administrative agencies to keep our work spaces safe and our drinking water clean.

It is worth noting how much this argument presumes and concedes.

First, and most importantly, the American political system is broken. There is no separation of powers; the judiciary and the executive branch are the new legislatures. The Supreme Court is now a full-blown political institution. Political change will not come about because people’s representatives will legislate their desires and demands into existence; rather, an unelected group of Yale and Harvard educated lawyers will respond directly to petitioners who seek to address some perceived injustice. Persuade the justices; do not bother with the ballot box. Unless you are voting for President.

Second, it places too much faith in the ability of the Supreme Court to drive substantive social and political change. The poster child for this sort of claim is Brown v. Board of Education, which left segregation intact; and as a vigorous debate among professional court watchers–a motley crew of legal scholars and political scientists–confirms, supporting examples can be found quite easily. Despite the expressive impact of the courts and their rulings, political change does not happen because courts direct the polity to change; rather, it occurs because citizens organize and exert pressure at and on the right places and the right actors–in a variety of political domains and institutions.

Third, it suggests–as if acknowledging the unprecedented obstruction of a sitting President by the Republicans over the last eight years–that the President is a lame-duck from the moment he or she drops his or her right hand on being sworn in. No substantive legislation can be driven by that office; the Constitution offers no escape; a recalcitrant House of Representatives and Senate cannot be forced to do perform their legal duties. The President can merely nominate a Supreme Court Justice; and that too before the final year of office (apparently the new normal now given what has transpired since Justice Scalia’s death.)

It is into this impoverished and diminished political landscape that we are steered by the ‘but the Supreme Court’ argument for Hillary Clinton. We are being asked to settle for an immensely diminished Republic.

Samuel Chase and Judicial Supremacy

In the history of the US Supreme Court, Samuel Chase holds a singular, if dubious honor: he is, to date, the only Supreme Justice to be impeached (he was, however, ultimately acquitted by the US Senate).

The background to his impeachment is indicative of the political ferment so common  in the early days of the new republic. From Wikipedia:

President Thomas Jefferson, alarmed at the seizure of power by the judiciary through the claim of exclusive judicial review, led his party’s efforts to remove the Federalists from the bench. His allies in Congress had, shortly after his inauguration, repealed the Judiciary Act of 1801, abolishing the lower courts created by the legislation and terminating their Federalist judges despite lifetime appointments; Chase, two years after the repeal in May 1803, had denounced it in his charge to a Baltimore grand jury, saying that it would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy[.]” Jefferson saw the attack as…an opportunity to reduce the Federalist influence on the judiciary by impeaching Chase….The House of Representatives served Chase with eight articles of impeachment in late 1804….The Jeffersonian Republicans-controlled United States Senate began the impeachment trial of Chase in early 1805, with Vice President Aaron Burr presiding and Randolph leading the prosecution.

What is perhaps even more interesting about the Chase impeachment is that, according to Robert H. Jackson‘s The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics (Vintage, 1941), ‘the proceedings to impeach him took so wide a sweep that the whole Federalist judiciary felt itself likely to be removed if Chase was convicted. They may have been right.’

One of the members of the judiciary ‘frightened’ by the turn of events was none other than John Marshall, Chief Justice of the United States, who had, in 1803, presided over the famous ruling in Marbury v. Madison that had established judicial review over the legislative branch of the US Government. But, now, confronted by a tide turning against the judiciary, one underwritten by fury at they seemingly excessive power it had granted itself, he became ready to trade it away in exchange for security in the judicial office. So he ‘wrote to Chase an amazing letter proposing to scrap the whole pretension to judicial supremacy’:

I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the judge who has rendered them unknowing of his fault.  [From: Albert J. Beveridge, Life of Marshall, Houghton-Mifflin, Vol III, p. 177]

As Jackson notes, ‘this certainly indicates no strong confidence that judicial judgment was to be final.’ (Chase’s impeachment was not on legal or ethical grounds but on the basis of ‘judicial performance.’) Fortunately for Marshall (and future versions of the Supreme Court) the impeachment failed–in part because some senators refused to indict Chase on the grounds that the quality of his jurisprudence was adequate grounds for removal–and the Marshall doctrine of judicial supremacy and the judicial independence became enshrined in US law.

Our Truly Messed-Up Constitution (And Those Dedicated To Keeping It That Way)

Sanford Levinson‘s Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We The People Can Correct It) is a truly depressing book. As I read it last night and this morning–in preparation for a meeting today with this semester’s Wolfe Institute Faculty Discussion Group–I grew increasingly enraged, perplexed, and then, finally, even more convinced that the excessive veneration shown to the US Constitution is a scam, one perpetrated on this nation by a political class determined to ensure the US will never become a true democratic republic. (I am only up to Chapter Three as yet, and dread what awaits me in the remaining ones.)

Much of Levinson’s critique in Chapters Two (Our Undemocratic Legislative Process) and Three (The Legacy of Article II: Too-Powerful Presidents Chosen in an Indefensible Process, Who Cannot Be Displaced Even When They Are Manifestly Incompetent), was familiar to me in its bare outlines: the bicameral, or rather, tricameral legislature, with its multiplicity of ‘veto points’ that may stymie majoritarian legislation, the unrepresentative nature of the Senate, (which without exaggeration may be termed as Levinson does, ‘illegitimate’), the misuse of presidential vetoes deployed on non-constitutional grounds, the all-too-frequent elections to the US House of Representatives, the idiotic Electoral College, the lame-duck Congresses, the delayed inauguration of the President. And so on. And on. But I don’t think I have ever had the Constitutions weaknesses and disastrous discordance with present-day realities laid out quite as infuriatingly well as Levinson does. (My familiarity with the outlines of Levinson’ critique should indicate part of the problem with the Constitution: most people, on being informed of its vagaries, are inclined to think it broke, and indeed scathing critique of the Constitution, given the dates on many of the commentaries and analyses cited by Levinson, is nothing new. But changing the Constitution is well-nigh impossible. We are, indeed, seemingly trapped in the ‘cage’ of its Articles and Clauses.)

A full reckoning of the Constitution’s problems as highlighted by Levinson requires a careful read of his book. Here is a tiny excerpt to get you started. Levinson cites Lynn A. Baker and Samuel H. Dinkin’s article ‘The Senate: An Institution Whose Time Has Gone?’ (Journal of Law and Politics, 1997) to offer a ‘terse summary of the practical consequences of the inequality of voting power in the Senate.’:

First, the Senate ensures  that the Federal Government will systematically redistribute income from the large states to the small states. Second, it provides racial minorities a voice in the federal lawmaking process that is disproportionately small relative to their numbers. Third, it protects diversity among the states by making federal homogenizing legislation more difficult to pass.

In case all that sounds too abstract, here is a little number of particular interest to me:

Over the period 1963-1999, New York taxpayers paid out $252 billion more in taxes than were received back in federal payments or services.

This is a mere sampler; besides the extant difficulties caused for the republic by the Constitution’s provisions, there are many crises waiting to happen in times of national emergency or even tied elections. It’s a clunker and a lemon rolled into one.  As Levinson notes, amending the Constitution is a near-intractable task, the difficulty of which may be gauged by revisiting John Roche’s paraphrasing  of Lord Acton‘s sagacious remark: It is not so much power that corrupts as the prospect of losing power.

Nietzsche on Olympia Snowe’s Departure From the Senate

Olympia Snowe’s announcement that she would not seek reelection in November 2012 and would instead retire when her third term ends in January 2013 has, understandably, been the cause of much gnashing of teeth among those ostensibly committed to a more tolerant politics and to ‘pragmatism’ in legislation. Snowe herself wrote an Op-Ed in the Washington Post, blaming, among other things, “the corrosive trend of winner-take-all politics” and “the dysfunction and political polarization [of the Senate].” (There have been other step-downs like this in the past, most notably, from the Democratic side of the aisle, Evan Bayh in 2010, and more recently, Ben Nelson.)

Snowe’s Post article does not suggest that she is leaving because she is not a Republican any more, and in her diagnosis and prognosis of the ailing legislative branch of this nation, she appears to indict Republicans and Democrats alike. She does not, after all, indicate that she feels her party alone cannot accommodate her ‘centrist’ or ‘moderate’ leanings. (I put those political orientations in quotes because, to be honest, I think I have lost my bearings on what they stand for any more in the American political landscape.) And some of those who commented on her departure incorporated this marching-in lockstep-with-party-orthodoxy-is-the-bane-of-modern-American-politics flavor in their writing. Here, for instance, is Frank Bruni in the New York Times:

Just because you choose a team shouldn’t mean you’re suddenly and miraculously on board with everything in its playbook, on down the line…Rare is the Democrat of plausible national ambition who tangles in a tough, meaningful way with labor unions or environmentalists, groups that President Obama has been loath to cross.

(My reaction to that is “Really?” but I’ll let it pass for now.)

Still, Snowe’s case will be of especial interest to those that view the Republican Party as having become completely unhinged in recent times, and Democrat spinners will only be too keen to use her resignation as exhibit Numero Uno in making this charge. Her decision to not seek reelection certainly appears more interesting when viewed in this light; In the former dimension, one can speculate about iconoclasts and persecution; in the latter, merely about boring institutional fatigue. Charges of “a pox on both your houses” sound better coming from us citizens, fed up with the Confederacy of Dunces on Capitol Hill.

Nietzsche, as usual, has something to say about this situation, and unsurprisingly, he goes for the more interesting option. So, once again, from Human, All Too Human: A Book For Free Spirits (translated by RJ Hollingdale, Cambridge University Press, 1986; this version includes Volume 2: Assorted Opinions and Maxims, from which I quote below.)

So, from Volume 2, Section 305–on page 283–reads:

Party tactics. – When a party notices that a member has changed from being an unconditional adherent to a conditional one, it is so little capable of enduring this that it tries, through incitements and insults of all kinds, to bring him to the point of outright defection and turn him into an opponent: for it has the suspicion that the intention of seeing in their faith something of relative value that admits of a For and Against, a weighing and distinguishing, is more dangerous to it than a wholesale opposition.