Art Maven Roundup

All of the sudden, I've been on an art kick. The below image is a silkscreen I recently purchased from DC-based artist Halim Flowers. Flowers was convicted of felony murder as a juvenile and sentenced to two life terms. He was released after serving 22 years following statutory reforms aimed a juvenile offenders who had received life sentences, and now is showing in galleries around the world.

Pictured: "Audacity to Love (IP) (Blue)" by Halim Flowers. The colors are meant to be reminiscent of the Israeli and Palestinian flags (blue and white, and red, white, and green).

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Trump continues to show his contempt for American Jews, saying any Jew who doesn't support him "hates their religion" (and Israel).

An in-depth story about a White supremacist who was elected to city council in Enid, Oklahoma, and the recall campaign to try and remove him.

Given the well-covered softness in Biden's support in the Muslim community, it seems suicidal to me for Democrats to give into the repulsive Islamophobic attacks holding up the confirmation of Third Circuit Court of Appeals nominee Adeel Mangi (the story indicates that Biden has remained rock-solid in backing his confirmation, but there may be some misgivings in the Senate Democratic caucus).

Writing on the sudden "heterodox" support for revisionist accounts justifying George Floyd's murder, Radley Balko flags what has been obvious for a long time: as much as this cadre likes to bleat about respecting truth, free-thinking, and rationality, it is as if not more beholden to ideologically-convenient narratives at the expense of reality. Pretty much everyone on the internet has been sharing this with their own story of the alt-center blowing past truth in order to push conservative grievance politics; mine was watching them stand in unblinking support of a hit piece on California's Model Ethnic Studies Curriculum even after it was revealed the author completely fabricated the inclusion of a seemingly-damning antisemitic quote.

Interesting retrospective on the Israeli Black Panthers in JTA.

The Supreme Court's frosty reception to the contention that government officials privately lobbying social media companies to take down misinformation is a First Amendment violation is the latest suggestion that the Court is finally losing patience with the regular drumbeat of insane legal theories emanating out of hyper-conservative Fifth Circuit.

The Supreme Court Fight Probably Helps Trump

It depresses me (if it is even possible for me to become more depressed -- yup, turns out it is) that we have to immediately turn to the political implications of Ruth Bader Ginsburg's death and the ensuing confirmation fight over her replacement. But we do. And, more depressing still, I think the beneficiary of this development on a political level is Donald Trump. Why? Three reasons:

1. Historically, Republicans are more motivated by judicial battles than are Democrats. That gap might be narrowing, but it's not clear it's disappeared. But while this is the factor everyone cites, it's actually the smallest factor in my analysis.
2. A Supreme Court fight is a "normal" political controversy, and Trump is helped any time politics feels like a "normal" Democrat vs. Republican fight compared to extraordinary events that are unique to him and/or 2020 -- most notably, the coronavirus debacle. Ginsburg's death is one of the few things that can muscle coronavirus out of the headlines not just for a day but for a sustained period of time.
3. Ginsburg's death is a political shock, and that automatically benefits Trump given that he's ran consistently behind in the polls. Why? Think of it this way: suppose the Supreme Court fight has an equal chance of either causing Trump to gain or lose five points in the polls. The former puts him ahead of Biden. The latter -- well, a loss is a loss: there's no tangible difference between Trump losing by a small margin and him losing by a large margin. So really, it's a 50% chance of it helping Trump and a 50% chance of it making no difference -- which is to say, it averages out to helping Trump. Given the remarkable stability in Trump's polling averages, he might be willing to take the chance on a shock even if the odds it benefited him were less than 50% (this is why I briefly contemplated the possibility of Trump doing something truly wild to shake up the polls if he was lagging far behind, like tapping Tulsi Gabbard as his new VP). And again, I think the baseline odds that this benefits Trump are at least 50% if not higher.

Ruth Bader Ginsburg Should Rest in Peace. The Rest of Us Have To Gear Up.

 Justice Ruth Bader Ginsburg has passed away after a long battle with pancreatic cancer.

Surprising absolutely nobody, Mitch McConnell has already promised to fill the seat weeks before the election notwithstanding his own months-long obstruction of Merrick Garland's nomination in the last year of Barack Obama's presidency.

It's possible he won't be able to do it. A few Republicans have hinted they won't go along with the move -- Lisa Murkowski being the most vocal, but potentially also Susan Collins and Mitt Romney. I have to assume Martha McSally has already decided she's toast in November and is just deciding to do as much damage as possible in her remaining time in office, because she waited scarcely five minutes to come out in favor of a pre-election vote. The list of Republicans who are going to publicly and unapologetically flip-flop on "filling a SCOTUS seat in an election year" is quite lengthy, but Lindsey Graham stands out for especial brazenness as he has a clip where he specifically states to the camera "I want you to use my words against me" if Republicans try to fill a seat in election year 2020.

Hypocrisy charges likely won't matter. That doesn't mean you don't fight, but it does mean that victory or defeat has little to do with how hard Chuck Schumer fights. There's no magic bullet, no secret parliamentary trick that can defeat a determined GOP majority that wants to slam through Ginsburg's replacement on short notice ahead of the next election.

What we can do is change the personnel after the election.

I've been opposed to court packing for a long time. Even after Garland, where I thought there had to be some retaliation, I thought court packing was a bad idea -- it promises a cycle of retaliation that has no logical stopping point.

I'm having trouble holding that position now, and I can't imagine cleaving to it if the GOP replaces Ginsberg before inauguration day. The Republican has announced that the new rule is that anything that is formally within the rules is permissible, regardless of how many norms it shatters or double-standards it creates. Well, confirming a new Supreme Court Justice just weeks before election day is exactly as within the rules as court packing is.

All that notwithstanding, I think the real necessary move is adding new states. DC is the obvious one, Puerto Rico ranks up there too. My stance on this is well-known. What I like most about adding new states is that, unlike court packing, it is both political hardball and unquestionably correct as a matter of non-partisan political ethics. The idea that certain American territories should be completely and permanently disenfranchised from effective political representation is an anathema to any semblance of democratic legitimacy. And the fact that the Republican argument against statehood is "but we can't win places non-White people live in" does not deserve the dignity of a response.

But all of this depends on Joe Biden winning the Oval Office, and Democrats retaking the Senate. I don't have a ton of spare income, but I sent a few dollars over to Theresa Greenfield in Iowa (it struck me as right at the line of winnable but needing an extra push). Support whoever you can with whatever you can; it doesn't have to be money either. Bear down and get the vote out however you can.

Ginsburg can rest in peace. She's earned it. The rest of us, unfortunately, can't rest at all. It's time to gear up.

The Ballad of a Black Republican

Thomas Farr was a Trump nominee for a North Carolina district court judgeship.

Senator Tim Scott (R-SC), the sole Black Republican in the Senate, opposed his nomination, citing concerns about Farr's racial history. This isn't something Scott does on the regular; indeed, he's been a consistent supporter of President Trump's judicial nominees.

Now, as we know, the Republican position on racism has long been to angrily deny that they're okay with racism, while at the same time insisting that any alleged instance of racism that inconveniences them in any way is a left-wing smear that (sadly!) distracts attention from the "real" racism. In the event "real" racism does rear its head, the Republicans insist, they will be its most uncompromising foes.

So one might think, then, that if one of the few Black Republicans in Congress, who has not made a habit of accusing Trump nominees of racism, says "hey -- this guy presents a problem", that they might take that claim seriously and abandon Farr for a different Trump nominee whose legal views are almost certain to be materially identical to Farr in virtually all respects. After all, surely nobody could accuse Tim Scott of only leveling a racism claim reflexively, against any and all Republicans, to benefit a left-wing political agenda?

Alas:

In the three-page memo [signed by 31 conservative leaders], they urged Scott to reconsider his position, arguing a smear campaign was launched by “unprincipled left-wing activists who hate Tom” and suggesting Scott was complicit in the partisan attack.

“In these difficult days, when allegations of racism are carelessly, and all too often deliberately, thrown about without foundation, the result is not racial healing, but greater racial polarization,” they wrote. “Joining with those who taunt every political opponent a ‘racist’ as a partisan political tactic to destroy their reputations is not helpful to the cause of reconciliation.”

Scott, to his credit, remains unbowed:

“For some reason the authors of this letter choose to ignore ... facts, and instead implicate that I have been co-opted by the left and am incapable of my own decision making,” Scott said in a statement to McClatchy, adding he votes for Republican judicial nominees “99 percent of the time.”

“Why they have chosen to expend so much energy on this particular nomination I do not know, but what I do know is they have not spent anywhere near as much time on true racial reconciliation efforts, decrying comments by those like (Republican U.S. Rep.) Steve King, or working to move our party together towards a stronger, more unified future,” Scott continued, referring to the Iowa congressman who recently suggested he was sympathetic to white supremacists in a New York Times interview.

But you'll note -- and this is not Scott's fault -- that whatever credit Scott might have thought he'd earn as a good Republican soldier was unable to be cashed at the conservative bank. Much like the anti-Zionist Jew who finally sees an attack on Israel he actually thinks is antisemitic, the Black Republican who finally sees a case of conservative racism will find that he is viewed no differently than any other Black person who levels a charge of racism -- untrustworthy, unthoughtful, probably a tool, definitely a liar. That he generally buys into the conservative view on politics -- it doesn't matter. That he's more often ran cover for conservatives on questions of racism -- it doesn't matter.

That's the sad ballad of the Black Republican. Tim Scott might genuinely think that the reason that racism claims are discredited by Republicans is that so many of them are, in his view, made by bad actors acting in bad faith. But he'll find that, in truth, all it takes to become viewed as a bad actor is to be a Black actor who speaks of racism in a way that inconveniences Republican. Push comes to shove, they don't trust him any more than any other African-American public figure

Things People Blame the Jews For, Volume XLVII: Schumer Not Stopping the Kavanaugh Nomination

A few times now -- not anywhere official, just on Facebook posts or blog comments -- I've seen some variation on the following argument: Chuck Schumer is going to "let" Brett Kavanaugh be confirmed because Israel and/or Netanyahu. Right after Justice Kennedy announced his retirement, John Cole made an intimation in this direction:

Dear @SenSchumer Now is not the time for your middling centrism and civility bullshit. You better fight like McConnell did or we will replace you. You're not the only New Yorker owned by Wall Street and AIPAC. You are very replaceable, so you better grow some balls.

— Dirty Computer (@Johngcole) June 27, 2018

At first blush, it's not just a false connection to make, it's a profoundly weird one. What exactly does AIPAC or Israel have to do with the Supreme Court? It's the branch of government that -- by far -- is least relevant to their policy agenda. Whatever Schumer does or doesn't regarding the confirmation fight -- and right now, all signs are he's gearing up to make it a real fight -- will almost assuredly have nothing to do with Israel or pro-Israel lobbying one way or the other.

There's actually a few different conspiracy theories intersecting to make this one, not all of which are specifically antisemitic or even about Jews. There is:

• The belief that congressional Democrats have some super-secret trick they could use to stop Kavanaugh, and the only reason they don't use it is because they don't really want to block the nomination;
• The belief that Schumer doesn't actually possess substantive (hawkish) policy views about Israel, but rather votes the way he does simply in blind deference to whatever Netanyahu wants;
• The belief that Israel is so concerned about who will fill Justice Kennedy's seat that they will make sure Kavanaugh gets confirmed.

You need to believe all three subparts for the machine to run. If you don't believe the first, then you're left with the straightforward and boring truth that if Kavanaugh gets confirmed it's almost certainly because he's a Republican nominee needing to get the approval of a Republican Senate, and Democrats don't have some magic bullet to turn 49 into 51.

You need to believe the second because otherwise there's no reason to think that Schumer would care what Bibi thinks about the U.S. Supreme Court. If Schumer votes hawkishly on Israel because that's what he believes (and it so happens to mesh with Bibi's own views), then there's no reason to think that harmony would translate over to the American judicial context. What they really want to argue is that Schumer is bought and paid for by Israel and just ceases to exercise independent judgment once Bibi opens his mouth on any topic.

And you need to believe the third because otherwise there's no account for why Israel would intercede in this issue. I understand why Israel would try to lobby people on the Iran Deal -- that's a big issue for them. But the Supreme Court? That's not their bailiwick. And you'd have to think they care so much that they'd be willing to risk serious blowback for marginal gain, since Kavanaugh is very likely to be confirmed even if they do nothing.

The first of these is actually the largest driver here. There is a non-trivial portion of the progressive base that has more or less full-throatedly endorsed Green Lantern-ism -- the idea that whenever progressive political outcomes don't manifest, it's because liberal politicians didn't will it hard enough. This is itself a weird position when you think about it -- its leftists basically saying that American political structures are so lopsidedly slanted in favor of progressive priorities that we should naturally see progressive results even in circumstances where the liberal party is in the minority. But it's an outcropping of the same "the primary was rigged" sentiment whereby everything is being sabotaged from within, we'd be winning already were it not for the powers-that-be standing in our way, and the greatest enemies are always inside the house.

On it's own, this sort of sentiment doesn't require any particular connection to Jews or Israel. And one does see other terms or entities fill the role of the interfering "power" that stands and obstructs the natural progressive march of political history ("neoliberals", "the establishment", "big money donors" ... there are a few actually).

Nonetheless, understanding this sentiment does illustrate how the "Zionist conspiracy" iteration is not accidental and is a form of antisemitism. It is antisemitism -- specifically, the antisemitism that naturally associates Jews and Jewish entities with extraordinary power and world-spanning conspiracies that stand outside the normal fabric of political space and time -- that makes Israel "work" as a vector for this sort of conspiracy theorizing.

The conspiracy theory is trapped between the rock of feeling like it's going to lose (the Kavanaugh nomination) and the hard place of fervently believing that -- were things proceeding as they "should" (and they mean that descriptively, not normatively) -- they'd be destined to win. What they need, then, is some body that can break their own political equivalents of the laws of physics -- and, precisely because it can latch onto a network of deeply-ingrained antisemitic tropes, the Zionist cabal feels "plausible" as the sort of entity that could pull that off. And, as a bonus, it offers hope -- if the Zionists are what is standing between the conspiracy theorist and total victory, then all one needs to do is smash Zionism and voila! Utopia. It's so much easier than the messy, complicated, sometimes-friend-sometimes-foe reality that characterizes actual political progress -- which is why antisemitism is called the "socialism of fools".

So let's state what should be obvious: If Kavanaugh is confirmed, as remains much more likely than not, it will be for the straightforward reason that he is a Republican nominee and there are 51 Republican Senators in a 100 person chamber. That's it. If a few Democrats defect, that will be because sometimes red-state Democrats facing tough reelection fights cast votes like this. That's it. I'm not saying any of that is good or wise or justified, just that it's the most obvious explanation, and not one that seems so superficially implausible that it cries out for an alternative "it's a Zionist conspiracy" explanation.

The Blues of Self-Regulation

One of the odder tropes of current conservative discourse related to the possibility of constraining the excesses of the Trump administration is blaming (who else?) Democrats for eliminating institutional checks available to the minority party, like the filibuster. What's weird about this is that if conservatives actually believe that such constraints are important parts of our system of checks and balances, they're absolutely free to restore them. Nobody's stopping them. But the idea that Republicans will self-regulate is seen as transparently absurd by all parties -- Republicans included.

Yet there's an even more fundamental absurdity: the implication that were it not for Democrats changing the rule-in-question sometime in the past eight years, the rule would be there to constrain Republicans. The problem being that, even when Democrats didn't change a rule protecting the minority party, Republicans haven't even blinked before casting them aside the minute they interfered with their partisan agenda. We already saw this with filibusters on Supreme Court nominees (Democrats abolished the filibuster for lower-court nominees, but not SCOTUS). And now GOP Senator Tom Cotton (R-AR) is proposing that the Senate eliminate the "blue slip" rule, which allows Senators to block judicial nominations in their home states. Democrats had kept that rule despite its use by GOP Senators to obstruct Democratic judicial nominations in the Obama administration. But -- surprise, surprise -- it turns out that whether Democrats keep or change a minority-protective rule has absolutely no bearing on whether Republicans want to keep it.

Is It Possible To Confirm a Supreme Court Justice

Presidents are going to nominate Supreme Court Justices who, roughly, correspond to their political beliefs. There is no use complaining about that. And there is a solid case to be made that, where the nominee is not otherwise unqualified or (perhaps) a shrieking radical, members of the opposition should not actively block the confirmation.

That norm had been fraying for quite a few terms now. But the treatment of Merrick Garland has completely annihilated it.

The fact of the matter is that Democrats legitimately feel robbed of a Supreme Court Justice right now. There was a vacancy in a Democratic administration. The nominee was a liberal, but not one that even Republicans contended was either unqualified or some sort of radical. Garland was a Breyer, not a Kennedy, but he wasn't a Reinhardt either. There wasn't even the pretense that GOP obstruction had anything to do with Garland's own merits as a potential Justice. They just decided that they weren't going to vote for, or allow a vote on, or even consider someone a Democrat nominated. Hell, Ted Cruz went as far as to suggest Republicans could justly prevent a Democrat from ever appointing anyone to the Supreme Court ever again.

Given that, how can anyone look at Senate Democrats and tell them with a straight face that they shouldn't just line up to block whomever Trump nominates? It's not just "they did it first," it would also function as a form of restorative justice. Again, from their vantage point this is a stolen seat -- full stop. And we just learned there is no political consequence for this sort of obstruction.

"Advice and Consent" as Hendiadys

I am an admitted skeptic of English as a discipline; particularly when it seeks to intrude on other (e.g., my) academic domains and argue that literary theory is the key to understanding some legal dilemma or constitutional controversy. But I have to say that today I attended a fantastic workshop featuring UCLA Law Professor Samuel Bray and his forthcoming article "'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys and the Constitution." It actually did a great job of making me rethink a number of knotty problems of constitutional interpretation.

The underlying paper is excellent, not the least of which is that it taught me how to pronounce "hendiadys" (actually, pretty much as it's spelled: "hen-DIA-u-dus"). A hendiadys is special case of the written construction "X and Y". Normally, that's a conjunction referring to two separate things. So if I ask for "eggs and milk", I want two items purchased. If I write that an applicant must be "college educated and have four years of relevant experience," I've put down two qualifications.

In a hendiadys, however, "X and Y" refers to a single concept. If I say that my steak is "nice and juicy", I'm not giving two characteristics ("nice" and "juicy"), I'm giving it one -- "nice and juicy" refers to a single attribute. Likewise with common expressions like "rough and tumble" or "high and mighty." These refer to one thing rather than two.

As the title suggests, Bray applies this concept to two "X and Y" constructions in the Constitution which have typically been given the standard conjunctive read. Under this view, to be unconstitutional under the Eighth Amendment a punishment must be both "cruel" AND "unusual" -- two criterion , of which both must be met. More recently the Supreme Court's Obamacare decision did a similar thing with regard to "necessary and proper" -- Chief Justice Roberts' opinion indicated that the law might have been "necessary" to effectuate Commerce Clause ends, but it separately analyzed whether it was "proper" and concluded it was not.

What's wrong with this? Sometimes the conjunctive reading leads to perplexing results, or doesn't seem to match our understanding of what the text means, or just seems awkward. Consider "necessary and proper". Bray observes first that, at the time of the founding, the term "necessary and proper" was almost always treated and discussed as a single term -- there are very few contemporaneous sources that sought to disaggregate them into two distinct qualifications. Moreover, "necessary" is a pretty hard word -- while people have tried to argue that it can mean "convenient" or "useful", that's far from the natural reading. Yet if necessary does means something closer to "indispensable", what non-superfluous work could "proper" do -- presumably any law which is unavoidably required to achieve a licensed congressional power is also a "proper" law? It'd be a weird thing to write (and weirder still since the man who inserted "and proper" into the clause, James Wilson, was a fierce proponent of a strong national government and would have been unlikely to have sought a further limitation on congressional power beyond "necessary").

As a hendiadys, however, "necessary and proper" modulate each other, creating a single hybrid requirement that evokes attributes of each. "Proper" tempers "necessary", suggesting that it is something  closer to "useful" or "convenient". But "necessary" in turn alters "proper", suggesting that a law must have some non-trivial bearing on an articulated congressional power to be valid. Bray has fuller arguments for this in his paper, and I encourage you to read it.

Another potential example of a constitutional hendiadys which springs to my mind is "advice and consent" -- as in the President's power to appoint Supreme Court Justices "by and with the Advice and Consent of the Senate." This has obviously become quite timely with the nomination of Merrick Garland to the Supreme Court, and the position of many Senate Republicans that they will refuse to even consider his (or any other) nomination in favor of whomever the next President selects.

Liberals have, of course, cried foul, and some have tried to argue that the Senate has breached its "advice and consent" obligation (these are, as you might expect, arguments whose partisan affiliations tend to hew closely to who's sitting in the Oval Office). These arguments, as a formal matter, strike me as a weak (Michael Ramsey at the Originalism Blog gives a good rundown why). Yet I do think the controversy helps illuminate some surprising ambiguities in "advice and consent", which I do think is best read as a hendiadys.

Of course, it is perfectly grammatical to read it conjunctively: for a judicial appointment to be confirmed, the Senate must provide (a) its advice and (b) its consent. But this duo of obligations rings very odd when you think about it: we seem to pay very little attention to the "advice" part. If the President selects his nominee with zero input from the Senate and the Senate proceeded to immediately confirm the nomination by unanimous vote, would the constitution have been violated? I'm highly skeptical. "Advice" seems superfluous.

"Consent", for its part, is like "necessary" -- it's a hard word. It denotes agreement, and it does not suggest any restriction on the bases for which the Senate can withhold its approval. If the Constitution simply said "the President, with the consent of the Senate, shall appoint" justices of the Supreme Court, it would seem to place the two branches on equal footing with respect to judicial nominations -- the President and the Senate must come to a mutual agreement on who goes on the Supreme Court, with both branches possessing equally legitimate authority to veto the choice.

Yet this doesn't track the norms of judicial nominations at all. For nearly all of American history, the Senate has never acted as if it could withhold consent to a presidential nominee simply because there was someone else they liked better, or because they'd rather their party was in control of the White House. Their confirmation role has been much weaker -- withholding consent only for unqualified nominees, or perhaps nominees so ideologically extreme as to demand an exception. The default was heavily titled in favor of the President -- the Senate will not reject judicial nominees simply because, on balance, it'd prefer someone else to be making the choice; it acknowledges a default presumption (and a relatively strong one at that) that the President should be able to appoint the nominee of his choosing. And it is the breach of that historical practice that is why today's liberals are so aggrieved: the Senate's position right now (refusing to confirm any nominee while it waits a year for a new president to take office) is, as a historical matter, an unprecedented deployment of the "advice and consent" power.

Reading "advice and consent" as a hendiadys helps put some constitutional muscle behind that instinct. Just as "necessary" and "proper" modulate each other, the term "advice" tempers "consent." It suggests that the consent power the Senate possesses ought to be an advised consent -- not an automatic consent, not an unconsidered consent, but still a consent that places the Senate in a subordinate, advisory position. This tracks well with the historical practice identified above, wherein Senators have not acted as if they can simply withhold consent for no other reason than the preference for a different candidate. The Senate, historically, has treated "advice and consent" as a hendiadys; they have voluntarily agreed to exercise the power in a way that acknowledges the president's superordinate position in the nominating position.

None of this means I think there is any actionable case against Senate Republicans for refusing to utilize their consent power in an "advised" fashion (if for no other reason than it's an obvious political question). But I do think reading this clause as a hendiadys better gets at how the executive and Senate have generally conceptualized their respective roles in the nomination process across American history, and so gives some credence to the idea that liberal objectors to the blanket obstructionism of Senate Republicans are appealing to a norm with genuine constitutional roots.

Of course, these are my thoughts less than 24 hours after reading Professor Bray's paper. His argument, with respect to the two clauses he focuses on, is much more polished than mine. And, as I say, it is an article well worth reading.

Garland Isn't a Kennedy, He's a Breyer

And the nominee is ... Merrick Garland, D.C. Circuit Court of Appeals! (Looks like my SCOTUS pick streak comes to an end -- but two out of three ain't bad). Garland wasn't the first choice of many liberals, but I think in retrospect it is highly likely that many of the younger guns (Kelly, Srinivasan, etc.) calculated that they have a better shot in the future then in this crap-shoot of an election year confirmation attempt. Garland, who's 63 years old, almost certainly knew it was now or never.

And with respect to liberal concerns, look -- Garland isn't a Ruth Bader Ginsburg. But he's not a Anthony Kennedy either. He'll be a reliable member of the Court's liberal bloc. There's a reason he's been the primary feeder of liberal Supreme Court clerks for years now. Replacing Justice Scalia with Justice Garland would be a tremendous move forward.

The other thing to say about Garland is that he really puts Senate Republicans in a pickle. It's not just that, as Chuck Schumer put it, if Garland can't garner bipartisan support than nobody can. It's how stark of a choice he puts in front of Republicans. The obstruct at all costs approach puts two outcomes on the horizon: either whichever 39 year old liberal ingenue Hillary Clinton nominates after 12 months of Republicans insisting that "this election is when the people decide!", or Donald Trump putting forward Judge Judy. Suddenly, a 63 year old conventional Democrat doesn't seem that bad, does it?

In any event, congratulations to Judge -- hopefully soon-to-be Justice -- Garland, who is a fantastic jurist and would make a great addition to the Court. May your confirmation process be smooth as is conceivably possible in these turbulent times.

Jane Kelly For SCOTUS?

I've been hearing murmurings that Eighth Circuit Judge Jane Kelly might be the President's SCOTUS nominee. And there are a lot of dimensions along which that makes a lot of sense.

I've never actually met Judge Kelly, but I'm quite familiar with her. She arrived on the Eighth Circuit in 2013 midway through my clerkship with Judge Murphy, finally ending the latter's streak as the only woman ever to serve on that court nearly 20 years after she was first appointed. Kelly's confirmation was unusually easy in this day and age -- a 96-0 vote taken three months after her nomination -- apparently because she is very well liked by Iowa Senator Chuck Grassley. The Republican chairman of the Senate Judiciary Committee is no small ally for a prospective Obama nominee to have. And it would be difficult for Republicans to justify blocking a nominee they quickly and unanimously confirmed to the Eighth Circuit barely three years ago.

Beyond the purely tactical concerns, Judge Kelly is an interesting choice for another reason: Prior to her elevation to the bench, she was a career public defender, working in the Northern District of Iowa from 1994 to 2013. That background is extraordinarily uncommon on the federal bench, and I believe entirely unheard of on the Supreme Court. Her nomination would certainly have particular resonance in the current political moment where overstretches of the police state have been a central issue occupying progressive activist thought.

Now normally, what that background giveth, it also taketh away -- it is very easy to caricature a federal public defender as "soft on crime" (pluck out the most gruesome murderer she ever defended and ask why she wanted to keep him on the streets). But -- and not to get too macabre -- Judge Kelly has a personal story here too that helps insulate her from that particular angle of attack: she was beaten unconscious and left for dead in an unsolved 2004 assault. She is far more intimately familiar with the ravages of violent crime than nearly any other high-level government official in the United States.

Of course, if Judge Kelly were nominated and confirmed, that would restore Judge Murphy as the sole woman on the Eighth Circuit (and -- perhaps even more amazingly -- would also leave her the only active Democratic-appointee on it). But I get the sense she wouldn't mind. Judge Kelly would certainly put a lot of pressure on Senator Grassley and the wing of the GOP Senate that still isn't 100% comfortable with government-via-tantrum. And beyond that, I don't think she'd make a half-bad Justice either.

UPDATE: Speaking of Grassley, he's stepped back from the edge a bit, saying he won't decide whether to hold hearings on President Obama's nominee until the nomination is announced. Admittedly, other quotes from the same interview are less promising. But if this is a slight step towards rapprochement, a Kelly nomination could be just the way for Obama to respond in kind.

(I'm going to just say I'm predicting a Kelly nomination now. It's a bit of a dark horse pick, but I'm undefeated so far in Obama SCOTUS predictions so why not roll the dice a bit?).

The State Supreme Court Pipeline

Noting several recent appointees to the California Supreme Court who seem like potential future SCOTUS nomineees, Orin Kerr asks why we don't see this more often -- "this" being the use of a state supreme court as a farm system for the highest courts. The appeal of the route makes some sense -- it provides valuable judicial experience while not being hamstrung by Senate gridlock.

One good explanation, which Kerr floats, is that many state court positions are elected rather than appointed. I have two more:

(1) Not all state supreme courts are created equal. It seems to me that nominating a judge from the California Supreme Court would be viewed qualitatively differently than nominating someone from the North Dakota Supreme Court. The high courts of larger states probably would be seen as sufficiently prominent so as to render their justices credible nominees. It might not wholly be a function of size -- certain state high courts have outsized reputations for quality whereas other states ... lag ... but I don't think that every state high court would be considered suitable. Kerr gives the example of David Souter, who spent most of his judicial career in the New Hampshire state court system, but recall that he was first appointed to the First Circuit before being elevated to the Supreme Court. My understanding is that the former appointment was done because of a sense that it would be faintly ridiculous to pull someone from a tiny northeastern state and place him on the highest court in the land. And while his tenure on the First Circuit was brief, it does seem to be the case that even a quick stop on an appellate court is considered sufficient to wash away any "viability" doubts (see also: John Roberts).

(2) For the state court pipeline to work, a lot of pieces need to fall into place at once. Basically, you need a superstar candidate who lives in a viable state that has (at the very least) an ideologically-amenable governor who either personally harbors near-term presidential ambitions or is willing to carry water for someone else who does. The example of David Stras in Minnesota is a good one, but also demonstrates how the stars have to align -- if Stras had been on the University of Illinois faculty instead of the University of Minnesota, or T-Paw had not been elected governor of what remains a blue-leaning state, then that route is closed off. The federal system is much more flexible -- if one really wants to nominate someone, there will probably be a vacancy on the relevant circuit court or the D.C. Circuit, or a district court in a pinch, no matter what state they reside in. And there's no agency problem because the person looking to seed the field already is President.

Of course, it could be argued that (a) every governor imagines themselves to be President one day and (b) if Stras isn't around, they'd just pick someone else. But my sense is that only a few true superstars are thought of as SCOTUS candidates before they ever get into a relatively high-profile judicial role. It's probably not the case that Minnesota had infinite David Stras-calibur candidates for a future SCOTUS nomination waiting in the wings. Rather, I suspect that at any given point there are a handful of Stras types out there waiting in the wings, who may or may not reside in states that have the right combination of factors to make a state court appointment a viable waystation to the Supreme Court. Outside those few cases, our thoughts on viable SCOTUS personnel tend to focus on folks who already are sitting on a major court. Sometimes, like Stras or Goodwin Liu, they get lucky. But for the most part, the federal system just offers more opportunities and a tighter nexus to put someone in the Supreme Court conversation.

A New Low

I'm actually amazed (and it's tough for media depravity to amaze me) that the Washington Post managed to put together a whole article on how Elena Kagan doesn't cross her legs when she sits. You have got to be kidding me.

Quote of the Confirmation Day

Michael Kinsley:

Now that the sex lives of Supreme Court justices have become grist for commentators, we are finally free to discuss a question formerly only whispered about in the shadows: Why does Justice Antonin Scalia, by common consent the leading intellectual force on the Court, have nine children? Is this normal? Or should I say "normal," as some people choose to define it? Can he represent the views of ordinary Americans when he practices such a minority lifestyle? After all, having nine children is far more unusual in this country than, say, being a lesbian.
[...]
Speculation is already rampant about why Scalia chose nine children over a more conventional lifestyle. Is he a sex maniac? That suspicion naturally arises. But perhaps once he started, he just never got around to stopping. Or maybe he just likes children. In recent days, Scalia’s friends have rushed to his defense, going out of their way to portray him as a model of sexual restraint. "Every Friday a bunch of us used to go down to this bar to pick up women," one of his college roommates recalls. "We’d always ask Nino if he wanted to join us, but he always said he was too busy studying. Frankly, we thought he was gay."

Inquiring minds want to know.

The Right Republican Tactic Towards Kagan

Miguel Estrada -- the talented conservative Latino judge who Democrats famously blocked from being appointed to the DC Circuit (and thus, the Supreme Court) -- has come out and endorsed Elena Kagan's nomination. This "may have the bizarre result of fueling suspicion from some on the left who worry that Kagan is a right-winger in Dem's clothing." I don't think this is bizarre at all, and part of me thinks it might be calculated. There are plenty of liberals grumpy over the Kagan nomination (I'm relatively neutral on the matter). But Republicans can't block her -- they already know she'll be confirmed. So they have two choices.

First, they can wage a furious but futile battle against the Solicitor General, hopefully riling up their base in the process. And that would be the standard tactic. But it seems relatively superfluous -- the GOP base is plenty riled, and there are plenty of things to be done between now and November to keep them riled. Meanwhile, the standard Republican temper tantrum is the best way to pave over the fissures that are developing over the nominations. Liberals may not like Kagan, but they'll be reminded of how insane Republicans are, and for the past few cycles "Republicans are batshit crazy" has been the best mobilizing tool the Democrats have ever had.

Alternatively, they can recognize the writing on the wall, and give her a nice reception, and a healthy confirmation margin. What will happen? Well, the Republican base might pitch a fit. But, as I said, they'll get over it between now and November. And in the meantime, they'll have scored two essential victories. First, they'll be able to claim the high ground on the judicial confirmation fight. Right now, it is buried in a mishmash of "he started it". If Republicans can say, quite plausibly, "Obama nominated one of his top choices -- not a compromise -- a solid, unabashed liberal whom we could have attacked over (among other things) the Solomon Amendment, and we confirmed her with virtually no fuss", they will be in a dominant position the next time they're occupying the Oval Office (not to mention if Obama ever gets the chance to nominate a true liberal's liberal).

But second, and more importantly, Republican behavior like this would crack the left wide open. Liberals are already suspicious that Kagan is our own version of Souter. If Republicans treat her like they think she's the best gift that ever happened to them with this President and this Senate, there will be no containing the internal strife. The liberal base will be demoralized, perhaps irrevocably, and the already pro-GOP fundamentals will lead them to a rout. And the sacrifice? Justice Kagan, who, to reiterate, will be on the court anyway. Oh, and maybe a slightly less reared-up Republican base -- but if they take back the House, who cares if the base is happy or sad about it?

Real Posts Mean a Real Roundup

Hey, I wrote three actual posts today, so back off! 

 

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Jon Chait blows the lid off Matt Yglesias' absurdly vague smear re: the meaning of Goldstone's past collaboration with South Africa's apartheid regime.

Feel good story about Gaza surfers.

Proponents of an anti-Israel boycott sure are attracted to conspiracy (see also). 

Margaret Atwood and Amitov Ghosh had a lovely acceptance speech for their joint receipt of the Dan David Prize.

Arizona just passed a bill targeting ethnic studies courses, on the grounds that they may promote "ethnic solidarity" (which is "just like the old South", according to the state schools chief, who perhaps is a few years short of schooling himself).

You know what happens when you allow gay marriage? Gays get married.

Once again, for many conservatives qualities associated with American Jews make one automatically an inauthentic American.

In related news, John Cole is collecting the latest additions to the constitutional qualifications for a SCOTUS justice.

The Universal Tantrum

Jon Chait thinks that the political calculus that went into the Kagan nomination may have been miscalculated:

Substantively, I'm pretty happy with the Elena Kagan nomination. Politically, though, I suspect the White House has made a mistake. The calculation seems to be that Kagan is their most confirmable pick. Why? Well, Senators like Orrin Hatch have said nice things about her in the past. Conservatives at Harvard like Charles Fried like her.

On the other hand, there are entry points to rile up the conservative base against her. There's Kagan's opposition to ROTC based on the military's discrimination against gays. She wrote a college paper that seemed vaguely sympathetic to historical socialism. Tea Party Nation has emailed its supporters calling her a "radical leftist."

Now, maybe these concerns will remain marginal in the face of a selection that enjoys the support of Republican elites. But the last 15 months have shown that, in the face of conservative outrage or organized Republican opposition, the support of a smattering of Republican elites tends to melt away very quickly. What Republicans are going to want to invite a Tea Party-backed primary challenge by voting to confirm Kagan? In the end, I think no more than a couple GOP Senators will be left standing. If the White House predicts a 70+ vote cakewalk, I suspect it's mistaken.

I think it's obviously true that Republicans would throw a temper tantrum regardless of whether the nominee was Kagan, Wood, or even Garland. Throwing a fit is kind of all Republicans do, nowadays. However, I think there might be a difference in terms of how the tantrum is portrayed. Diane Wood, fairly or not, was presented as the liberal end of the nomination spectrum. Hence, media coverage of the inevitable Republican freak out would have cast it as justified, or at least politically expected even under normal circumstances. The goal with Kagan, I take it, is for Republicans to flip out and for it to look unreasonable -- proof of the degree to which the party is hostage to its most extreme elements.

Of course, the problem with this strategy is that the media doesn't have a spine, and thus takes the very fact of a Republican hissy fit as per se proof that the fit is reasonable. But the analysis does, I think, go one level deeper than Chait takes it.

It's a Pirates Life for Me, Maybe? Roundup

Yes, yes -- these roundups are the epitome of lazy blogging. Sorry. I'll snap out of it eventually.

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Big Labor pushes through majoritarian democracy.

I was waiting for the first person to argue that two straight female SCOTUS nominations (making for three of nine female justices total) equals a de facto exclusion of men. Thanks, K-Lo!

A mild surprise in West Virginia, as centrist Dem Alan Mollahan (D) goes down in the primary to an even more conservative candidate.

Seattle police officer taped beating a Latino robbery suspect (who turned out to be entirely innocent, not that it matters).

Ta-Nehisi Coates on why Obama's anti-X-box-ism is genuine.

Andrew Sullivan's haywire gaydar re: Elena Kagan is really starting to piss me off.

Recently defeated (at the GOP nominated convention) Utah Senator Bob Bennett (R) is in no rush to decide his next move.

If you're a Republican in Alabama, believing in science is a smear.

The Futile Symposium Roundup

Tomorrow is going to be a hilarious meeting.

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The tea-baggers have taken Maine.

Ta-Nehisi Coates on what other people can supposedly say.

The emergent attack on Elena Kagan is that she's too tough on slavery.

...Well, that, and that she's fat.

Something different: A radio debate where the liberal opposes Kagan and the conservative supports her.

Medical marijuana stores firebombed in Montana.

Friendly fire costs a Democratic seat in Hawaii: The DCCC is pulling out since the two Democratic candidates are going to split the vote and let a GOPer slip through the middle.

Still Perfect

It's Kagan, which means I'm two for two. Bow to my superior prognostication skills.

Legal Advancement Roundup

The Supreme Court sweepstakes draws closer to its conclusion, and meanwhile, I begin my quest for a clerkship.

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Ken Waltzer takes on John Mearsheimer's ever-more infamous speech.

Another entry in the just give war a chance catalog.

Yes, we know that terrorist suspect in the attempted Times Square bombing Faisal Shahzad is an American citizen. But still, does he really need to be read his Miranda rights? That's reserved for White terrorists!

Meanwhile, retired general Paul Eaton blasts the anti-constitution wing of the GOP for putting American lives at risk.

Dennis Prager sees another data point for why Whites are smarter than Blacks -- they're tea partiers! Clearly, the only explanation for why Blacks wouldn't want to join a White-dominated movement is that they're irrational creatures.

Obama and Biden interview Judge Wood.

How many anti-Semitic themes can be fit onto one website? The Palestine Telegraph endeavors to find out.

The Phoenix Suns, whose top player is a Canadian immigrant (who wants odds on whether he'll ever be asked to show his papers?) denounce the new Arizona anti-immigrant law.