The Shock Has Passed, the Awe is Gone

One of the Trump administration's earliest and most vicious power abuses was its attempt to sabotage law firms who it viewed as tied to Trump's adversaries, targeting the firms with outrageous and draconian restrictions on everything from their ability to meet with federal agencies to their license to enter federal buildings. It was an existential threat to these firms' businesses if allowed to go through, and some firms, famously, caved in. 

But others fought, and won injunctions against the administration's unlawful retaliation. And today, the report is that the Trump administration is quietly dropping its appeal of those rulings. It is a victory for rule of law, and for the law firms that understood the actual demands of the moment beyond the most transient instinct for self-preservation.

The timeline of events here is instructive, offering hope and, I'd argue, a lesson. From their first week back in power, the Trump administration came out storming with a cavalcade of some of the most radical attacks on the American constitutional order that have been seen in my lifetime. It was shocking, and people and institutions were shocked. They'd never witnessed anything like this. Many were still reeling from an election they weren't expecting to lose. They didn't know how to respond. And the Trump administration exploited that shock and that awe to spend months just running over the institutional guardrails that should have existed to keep them in check. The law firm submissions were part of that story, but it was much larger than that. Media companies, universities, even the Democratic leadership was left floundering at best, trying to negotiate a panicked surrender at worst.

But now the tide is turning. Once again, the dropped initiative against the law firms is just one part of a larger story. The initial blitzkrieg is grinding to a halt. A dazed opposition has regained its footing. Resistance is mounting. Even the Supreme Court maybe is starting to recognize, just a little bit, that its constitutional role is not to act as the highest rubber stamp in the land. The shock has passed, the awe is gone. People are fighting back, and they are winning. And while nobody should expect the Trump administration to just slink away quietly (even if that's what they did do in this appeal), at the very least it's no longer a romp. They're in for a fight now, and it's a fight we can and will win.

This is not an exculpation of those who turned tail and ran. It is a praise of those who remained steadfast -- a few law firms, sure, but far more importantly ordinary American citizens in places like Minneapolis and Chicago and Portland who planted their feet and said no. Their continued faith and grit is what allowed others to rally and reestablish themselves. They are heroes. May their names ever be sung in our victory speeches.

That's the hope. Here's the lesson. The Trump administration's goals are evil. But the strategy -- of coming out the gates storming, front-loading as much aggressive policy content as possible, as fast as possible -- was a sound one. It worked. Yes, it bred backlash -- eventually. But much of the damage "accomplishments" they wrought is already well-entrenched. The lesson here is Machiavelli's, and I flagged it when the Supreme Court did something similar in loading up its most extreme right-wing agenda all at once in 2022.

[I]f you feel compelled to take certain actions that you know are unpopular, or will engender backlash -- do them all, do them early, and do them all at once.

Do not try to spread them out. Do not feel the need to pull back on some to balance the others. Do not hem and haw with baby steps. Do everything you want to do early, and immediately. The backlash will come, but the backlash won't be materially different between one outrageous thing and ten outrageous things. Spreading them out just creates new moments of fresh anger. Purported sops won't make people forgive in the moment.... Get them all out of the way in one fell swoop.

This was a lesson I argued Democrats should internalize, though it was already too late for them in 2022.

Democrats needed to do big things. Those things would be controversial. Talking them out indefinitely in a bid for a compromise that would never occur only would bleed resources (ask Barack Obama how that went with the ACA). Better to slam them through at the start. Voting rights, anti-gerrymandering, DC statehood, BBB, protecting abortion rights. Yeah, these things would be controversial. They wouldn't be any less controversial if they're spread out in drips and drabs. Do them all, do them together, weather the storm, and then spend the rest of your time consolidating your position. 

That would still be my basic advice if Democrats retake the Oval Office in 2028. By the end of the first week, I'd want to a complete pro-democracy package (including DC statehood) on the president's desk. I want to see prominent Republicans and ICE leaders who've committed crimes frog-marched in handcuffs. I want the corporate executives who approved "settlements" for Trump's frivolous lawsuits indicted for bribery. I want to see public resources and opportunities expressly redirected away from companies and firms who caved to Trump, and towards those who showed backbone, to show that there are penalties to being a quisling. I want the DOJ to announce an anti-corruption task force geared at identifying all the money stolen from the American taxpayer by the Trump family and clawing back as much of it as possible, and I want them to name and shame the Supreme Court as among the primary obstacles to providing accountability for their crimes. I want to uncover the corrupt insiders who bet on the lives of American servicemembers and have their identities blasted across every newspaper in America in advance of their trials. Do it all, do it fast, weather the storm, then consolidate your position.

Does the backlash to Trumpism discredit this strategy? I don't think so. For starters, a Democrat administration hopefully would not have the same proportion of incompetent and corrupt lickspittles undermining its progress at every turn -- it's not clear to me that the same level of backlash would emerge. Indeed, I suspect Trump's hyper-aggression was initially popular in a political climate where many people just have an inchoate desire to see some inchoate powerful "them" receive comeuppance. That instinct can be harnessed by Democrats, but, you know, without resort to random street kidnappings.

But even if there is a real backlash, again -- the brute truth is that Trump "accomplished" a lot in his shock and awe period. Those accomplishments are vicious and evil and destructive, but they're going to prove more terribly durable than they have any right to be. Democrats, too, should try to entrench big victories, even if it does generate adverse political winds. Those winds will come regardless -- that's how politics work. You might as well try to accomplish what you can -- and there's a lot that needs accomplishing.

UPDATE: Now Trump's lawyers are trying to undo their motion to dismiss. This does not undermine my assessment that the Trump war machine is sputtering to a halt.

The Columbia-Boycotting Judges Should Recuse from Columbia-Related Cases

A Seventh Circuit panel has dismissed a judicial ethics complaint levied against one of the judges who announced a boycott of Columbia University graduates in his clerkship hiring.

This was, I think, the correct decision, and I have no substantive quarrel with the panel's analysis. Moreover, the complainant, who "is serving a sentence in a state prison after a jury found him guilty of arson, terrorism, and other crimes stemming from his role in firebombing and vandalizing Jewish houses of worship" and who loaded up his complaints with spurious conspiracies of foreign influence and control, is hardly the ideal party to raise concerns about judicial behavior in this context.

That said, while I agree that there is no ethics violation to be found in the Columbia boycott, I do think that the signatories to the boycott letter are obligated to recuse themselves from any Columbia-related cases -- including cases where a party is represented by a Columbia attorney who matriculated in the targeted time period. An academic boycott of this sort necessarily signals bias against persons under the umbrella of the targeted institution, and both the university and its graduates can fairly wonder if they will be treated fairly in the courtroom of a judge who participates in this boycott.

To understand why, it's important to be clear about what a boycott is. One point that is often emphasized in this conversation is that judges have extremely wide latitude in deciding who their clerks will be and on what criteria they will be selected. For example, the panel here wrote:

Except to the extent prohibited by these regulations and guidelines, judges have wide discretion to establish their own screening and selection criteria in appointing law clerks. This latitude permits judges to make distinctions among applicants based on their own determinations of the relevant criteria or qualifications, including where the applicants were educated. Some judges only hire graduates of certain law schools. Some tailor their preferences to the specific needs of their court or chambers—for example, by looking for candidates from law schools with excellent writing or trial advocacy programs or strong core curricula in relevant subject areas. Relatedly, some judges only consider candidates with a GPA in the top 10 or 20 percent of their law-school class (or some other academic cutoff). Some require membership in the law review or moot court team. Others prioritize candidates from law schools in their state or circuit.

This is quite right. But then they continue to say that "[i]n the same way, a judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education like civility in discourse, respect for freedom of speech, and viewpoint nondiscrimination."

I don't think these are the same. And one hint that they're not the same is that you would never hear any of the examples cited in the first paragraph described as a "boycott". A judge who will only hire (or more likely, strongly prefers to hire) applicants for law schools in their state would not characterize herself as "boycotting" the other 49 states. A judge who only hires students in the top 20% of their class would not say he is "boycotting" the bottom 80%. A "boycott" by its nature is different from the ordinary and normal processes of selection that judges (and all of us) do on a daily basis. And -- more to the point -- one calls what one is doing a "boycott" precisely in order to draw that distinction and to signal that one is departing from the normal and unremarkable exercise of discretionary selection.

Consider another example: there are many restaurants in Portland. In deciding where I go to eat, there is a wide range of screening and selection criteria I might use, from taste to price to convenience. Even with those criteria, the vast majority of restaurants I never have and never will eat at -- but nobody would say I am "boycotting" them. In other cases I have eaten at them, but decided that (for example) the food was bad and so will not return. Again, under ordinary usage nobody would call that a "boycott". 

If I announced I was boycotting a given restaurant, the ordinary listener would understand that I am doing something different than identifying the place as among the many, many restaurants I don't eat at for "normal" reasons. A boycott, rather, is a decision to not patronize or transact with a given establishment, based on reasons that lie outside the normal evaluative criteria one typically uses to select a restaurant and in order to effectuate some change in behavior that also lies outside the normal bases one uses to select where to dine (one might say, with respect to the restaurants I no longer visit because the food is bad, that my non-patronage is an attempt to "pressure" them to improve their menus and I won't return until my demands are met, but this would again be highly idiosyncratic usage). The expressive meaning of a boycott -- what makes it a boycott as opposed to an unremarkable decision not to patronize -- is a declaration that "I will not transact with you even if you do meet the criteria I normally use."

This highlights another feature of boycotts: by their nature and by design, they stand in opposition to individualized consideration of a candidate on his or her merits. Return to the law school example. Contra the above paragraph, I actually think it is quite rare for a judge to have a flat rule -- as opposed to a strong preference -- to only hire clerks from a certain state or with a certain GPA or possessing a certain academic background (the repeated use of language like "preferences" and "prioritizes" is again a hint here). They would not reject on principle an oddball candidate who doesn't meet one of the normal screens but for whatever reason still stands out to the judge as extraordinary. Now, it may be that, given the surplus of qualified candidates, in practice no such "oddballs" ever emerge; there are always enough candidates who fill the normal criteria and are also deemed extraordinary. But again, the point of a boycott is precisely that it entails refusing, in advance and without exception, to even consider the applicant no matter what their merits might be. One refuses to dine at the boycotted restaurant no matter how tasty one of its dishes may be. One refuses to hire from the boycotted school no matter how superb one of its graduates may be.

And this is where the issue of bias does creep in. The putative justification for the blanket boycott of Columbia is that the university is so suffused in antisemitism and broader censorialism that all of its graduates are indelibly tainted -- so much so that the judges are outright refusing to engage in any individualized consideration or assessment of any members of the community. I've observed before and I'll observe again that not only are the nominal victims here -- Columbia's Jews and/or conservatives --covered by the boycott, they are in fact its most likely targets (those harassing Jews on campus were not likely to be applying to the judges in question in the first place). Assessed as individuals, it would be weird to impute the sins of Columbia writ large onto their heads. But the entire point of the boycott is that substitutes collectivist grievance for individualized consideration:

[T]he point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho [or other signatories to the boycott letter] declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

I recognize, of course, that at some level there is no such thing as truly "individualized" consideration and there is inevitable mushiness around terms like "normal evaluative criteria" (I recognize that; I wish the courts understood it better in the context of affirmative action). But my position is that the very invocation of the term "boycott" is a declaration and a concession to that point: one says one is boycotting because one wants to express that you're not just doing the ordinary work of meritocratic selection. 

To put it starkly: the core, distilled message the signatories of the Columbia boycott are sending vis-a-vis Columbia students is "because of your association with Columbia, we will not assess you as individuals or on your merits. Your association is enough to render you irrebuttably tainted in our eyes." 

Given that, could an attorney who matriculated at Columbia in the relevant time period feel confident that one of these judges would abide by their judicial duty -- will assess their arguments, behavior, and comportment based on their individual performance and "on their merits"? I don't think they can have that confidence, and I think those fears are reasonable.

None of this constitutes an ethics violation -- a judge does not commit an ethics violation simply by engaging in conduct which would, given the right parties or circumstances, compel a recusal. But I do think that any judge who announces an academic boycott of a given law school, in circumstances where that necessarily entails an announced refusal to judge that school's community members as individuals and on their individual merits, can reasonably have their impartiality questioned when later asked to assess the merits and demerits of that school or its graduates.

(There's one other element of the boycott that I haven't heard talked about much: the extent to whether it crosses over from permitted "jawboning" to impermissible government efforts to censor speech. The boycott imposes official sanctions on Columbia unless it makes various alterations to its school speech and disciplinary policies to the satisfaction of the boycotting judges. Obviously, Columbia has no First Amendment right to, for example, violate Title VI. But while it can, as a private university, suppress antisemitic speech, it is not obligated to; and the government cannot compel it to. Less obviously, but perhaps more importantly, as a private university Columbia is not required to abide by any commitment to viewpoint neutrality or "evenhanded" treatment of different types of protesters. While I doubt Columbia would concede the premise that it does engage in any sort of biased behavior -- and my recollection is that the letter was in fact purely speculative on this point -- the point is that Columbia's choices as to what views it does or does not favor are an exercise of its free speech and associational rights, and official efforts to punish the university for expressing itself incorrectly seem to raise significant First Amendment problems).

.... And Getting Worse Roundup

This will not be my cheeriest roundup. But there are a bunch of links burning a hole in my pocket, so here you go.

* * * *

Apropos yesterday's post on Fugitive Uterus Laws, a Washington Post article on similar efforts underway to set up checkpoint towns in Texas designed to capture any pregnant women who has designs on leaving the state for freedom.

North Carolina Republicans considering impeaching a state supreme court justice because she talked about racism. While I can't fault Slate for juxtaposing this against the undisclosed largesse heaped upon Justice Thomas, my mind more rapidly went to efforts in Wisconsin to impeach a state supreme court justice because she might vote for democracy.

A politically engaged fifteen year old kid asked a (not even that tough!) question that made Ron DeSantis uncomfortable on the campaign trail. So he sent his goons to rough him up.

You see, the real problem with the "War on Drugs" is that it's too metaphorical.

The latest Fifth Circuit crack-pottery: it's probably illegal for the FDA to tell humans they're not horses (yes, this is the latest conservative institution to burn its remaining dignity in defense of ivermectin conspiracies).

Georgia school district: saying the word "gay" around fifth graders is like graphically describing the horrors of the Holocaust to kindergarteners. 

Incredible Disappearing and Reappearing Authors

The Texas judge, Matthew Kacsmaryk who issued a trainwreck of a decision trying to ban the abortion pill is separately in the news for potentially hiding an article he authored while being considered for his judgeship. The basic gist of the story is that he submitted an article to the Texas Review of Law & Politics, a conservative law journal, attacking legal protections for trans Americans. While the article was being edited he removed his name from authorship and replaced it with two colleagues (Stephanie Taub and Justin Butterfield), allegedly so he could avoid disclosing the article to the U.S. Senate, which was in the process of considering his nomination to a life-tenured district court position.

Many people think this seems pretty sketchy. I'm inclined to agree. But I want to see if I can drill down as to why, because I have conflicting intuitions about some similar fact patterns, and so I'm not sure what's driving my judgments here. So let's work through some hypotheticals.

Let's call the two relevant authors K and J. Fact pattern number one is going to be essentially what Judge Kacsmaryk is accused of having done:

1. K writes an article, submits it to a law review, and has it accepted. After it is accepted, K decides he doesn't want his name associated with piece during the pendency of his judicial nomination, so he arranges to remove his name and have J -- not previously listed as an author -- be the public author on the piece.

And here is, as far as I can gather, the explanation of what happened from Judge Kacsmaryk's supporters -- i.e., this is his defense/apologia:

2. J writes an article, but K submits it to the journal under his name as a "placeholder". After it is accepted, K eventually removes his name and has it replaced by J, who was the legitimate author of the piece.

People are reasonably focusing on Kacsmaryk trying to hide information from the Senate. But there's also a more basic academic ethics problem here, that's present both in the accusatory and "defense" version of the story. Simply put, if J did sufficient work on the article to be legitimately credited as a co-author on the piece, why wasn't her name on draft to begin with? And if J didn't do sufficient work to credibly be deemed a co-author, it's dishonest to present her as having written the article. 

Indeed, at one level the "defense" story is worse, because the paper was initially submitted under false pretenses -- K is by stipulation not the actual author, but his name was the sole author listed on the piece when it was submitted and accepted. I have been a law review editor and advisor, and of course have written numerous law review articles (and have many colleagues in each of those roles) -- I have never heard of this "placeholder" authorship idea. The only reason I can imagine someone doing it is to try and get a paper accepted by a journal based on the prestige of the (non-)author's name. Absolutely not okay.

So from that vantage point, either way you slice it Judge Kacsmaryk seems to have done something shady. But I want to tweak the scenarios a bit, because as I said some small changes at least for me change my intuition sharply, and I'm not sure what to draw from that. Consider this variant:

3. J and K write an article together, and submit it with both their names on it. The article is accepted, but at some point in the editing process K decides he no longer wants his name on the piece. The article is ultimately published under J's name only.

This intuitively feels less problematic, but I'm not sure if my intuition is correct. The driver, I think, is twofold: J was always presented as an author of the piece, and the piece is being published under the authorship of someone who we know was (one of) the author(s). Is that enough to make this okay?

One reason I'm inclined to approve this is that the alternative seems odd to me: a piece that J co-authored can never be published if K doesn't want to move forward, even if K is fine with the article being published (so long as his name isn't on it). That seems wrong to me; I don't like that form of limbo. It's different if K was the only real author; I'm not convinced he can hand off his solo work to someone else and say "publish it in your name." But if J was already one of the authors on the piece, I don't feel as bad about letting her take over sole authorial credit (with K's permission) if K wishes to withdraw. Think of it as a sort of joint tenancy in the paper (or, if you prefer, joint and several liability over the paper's contents). Each co-author has full claim over the entire paper; we don't try to subdivide and say "this part is J's share, this part is K's share." And so if K pulls out of the paper, it is fine for the entire paper to revert to J.

If we do think of scenario 3 as problematic, then the question is what, if anything, can cure the problem.

4. J and K write an article together, and submit it with both their names on it. After it's accepted, K decides he no longer wants his name on the piece. They withdraw the piece from the journal it is accepted at. Later, J (with K's permission) submits it to another journal with J listed as the sole author.

To the extent our problem with #3 is that the accepting journal was under the impression that J and K were both authors, #4 fixes that by only representing J as the author from start to finish.  To the extent that we think that the problem is that K "really" was an author on the piece and it's misleading not to include him as such, then #4 fixes nothing, but then we still have this weird limbo problem.

Which brings us to scenario 5, which is some form of disclosure short of co-authorship:

5. J and K write an article together, and submit it with both their names on it. After it's accepted, K decides he no longer wants his name on the piece. J continues on with publication, but in the acknowledgements he states that he collaborated with K on an earlier version of the piece and that K gave permission for the piece to be completed on its own.

This seems like the appropriate move to make. 

For what it's worth, I was in a somewhat similar situation with my "Epistemic Dimension of Antisemitism" article. I initially was working on the project myself, later asked on a colleague as a co-author, and we submitted the piece to a journal under both our names. That publication venue petered out during the editing process (through nobody's fault), and my co-author in the interim changed jobs to one where it would have been awkward for her to be writing pieces like that. So, with her permission, I continued on with the project solo, and when it was finally published (in a different outlet) I included in the acknowledgements a line saying "Special recognition is due to [former co-author], with whom the author collaborated on an earlier version of this project and who graciously gave permission to the author to complete it on his own." 

That, to me, was an adequate resolution to the issue (though maybe people disagree): my name listed as the author, but with disclosure. And the disclosure solution, to be clear, only "works" (to the extent you think it does) insofar as I was always at least in a co-authorial position in the article. So it doesn't cover Kacsmaryk's case insofar as there was a complete replacement of authorship -- persons who were not listed as authors magically "became" the author (whether that's because the true author, Kacsmaryk, disappeared, or because the actual true authors, Taub and Butterfield, were inexplicably left off the draft in its initial submission).

But Taub and Butterfield's article also does not contain any acknowledgement or reference to Kacsmaryk whatsoever (which surprised me). And it is worth noting that, even had he been thanked in an acknowledgements section by the "new" authors, that probably would not have drawn Senate scrutiny (certainly not the same degree as if the article went out under his name). That is to say, leaving aside the "who are the true authors of this article" question, my solution to this problem probably would have "worked" as a means of throwing the Senate off the scent. Which maybe undermines it as actually a valid play; or it just suggests that the norms associated with being considered for a life-tenured judicial position are more stringent than normal academic conduct.

Corruption in the Family

By now, you've no doubt heard about the ongoing corruption controversy regarding Justice Thomas failing to disclose numerous financial gifts from a billionaire conservative friend. To a large extent, the usual suspects are lining up to criticize Justice Thomas and the usual suspects are organizing to defend him. But I want to focus on one thing in particular, embodied by this tweet from former Thomas clerk and Notre Dame Law Professor Nicole Garnett.

I've known Justice Thomas for over 25 years. He is the rare person whose goodness matches his greatness. It breaks my heart that so many are willing to go so far to attack a good, and great, man for political gain.

— Nicole Garnett (@nsgarnett) April 13, 2023

I am sympathetic to Professor Garnett here. I truly am. I've often pondered how I would respond if a loved one -- a mentor, relative, parent, friend -- was credibly accused of corruption or some other dire crime. How would I handle it if the judge I clerked for, the late Diane E. Murphy, whom I absolutely adored, turned out to have accepted millions of dollars in "gifts" without proper disclosures?

Even in writing that sentence, I wanted to hasten to add "now, I could never imagine Judge Murphy doing such a thing." Which is true, I can't imagine it. Judge Murphy was an extraordinarily kind, generous, and humble person; universally respected by peers of all ideological persuasions. She was the furthest thing from a financial grandstander.

But that's just the thing: in most cases like this, the crime is unimaginable to the perpetrator's loved ones right up until it's revealed. It is a myth, I think, that most wrongs of this nature are only committed by persons whom, once the truth comes out, their closest relations will be like "you know what? He did seem the type." It's always going to be a shock to someone.

Be honest with yourself: when it comes to the people closest to you, would you actually know if they were doing something wrong akin to what Justice Thomas is accused of? "Know" not in the loose sense of "I know their character," but in the strong sense of "I'm familiar with their accounting practices"/"I've seen their disclosures"/"I know what's going in and out of their bank accounts"? We don't know. It would come as a shock. If you woke up tomorrow and your parent was arrested for skimming money from their job, you'd be blindsided, and not really because you have a blind spot as far as your parents are concerned. The truth is, you would have probably had no way of knowing what they were up to until the investigation actually broke. It really would be unfathomable, even were it true.

So I do sympathize with Professor Garnett. I don't think she's myopic in identifying Justice Thomas as a personally warm and generous human being (something I've heard from multiple sources). I don't think it is a function of self-delusion that she didn't see this coming.

But the fact is that, for essentially every scandal like this, the perpetrator has loved ones for whom the scandal comes as a terrible, unfathomable surprise. That doesn't mean it didn't happen. That doesn't mean it wasn't wrong. For the individuals affected, the dissonance between the person they know and the crime alleged is beyond abnormal, it is a terrible, almost irresolvable discordance. From the vantage of broader society, that discordance is utterly and mundanely normal -- it characterizes every single case.

And so ultimately, this response to Professor Garnett gets it exactly right:

Justice Thomas might possibly be — and we’ve heard this from multiple sources — the kindest, most generous justice on the Supreme Court.

That doesn’t change the fact he’s involved in a massive ethics scandal of his own making. https://t.co/eO6YYXWe7c

— Fix the Court (@FixTheCourt) April 14, 2023

Justice Accused: The Virtues of Foot-Dragging

News reports saying that judges have "stayed" Donald Trump's executive order banning immigration from several Muslim-majority countries, as well as a temporary halt to all refugees, are somewhat misleading. The stay only applies to the narrow class of individuals who are currently in the US but being detained at the airport -- basically, those persons who were in the air at the time of the order. Persons who had valid visas but remain abroad -- whether it is green card holders seeking to return home or refugees awaiting their flight to safety -- are not covered.

The question I have is whether any judge will enjoin that portion of the order -- the one currently blocking valid visa holders abroad from coming to the United States.

It's a tough sell legally. Courts have been reluctant to enforce constitutional rights outside of American soil. In general, a person in a German or Syrian airport has no rights an American court is capable of enforcing. Add that to the "plenary powers" doctrine, which suggests that the federal government has virtually untrammeled power over immigration, and the legal case looks grim. Hence we have precedents that say that the United States can exclude immigrants based solely on nationality -- even though such discrimination would be clearly unconstitutional in a "normal", on-American-soil case. And that's a good thing for Trump, given that his advisors have publicly stated that the order he promulgated was deliberately designed with anti-Muslim sentiment in mind.

Yet one could argue that the cases which explicitly allow such discrimination predate the judiciary's modern jurisprudence on matters of race and other "like" identities. Our presumption against permitting laws which are motivated by, or discriminate on basis of, racial, ethnic, religious, or national-origin concerns are much stronger than they were back when the Court was upholding the Chinese Exclusion Act.

Is this a winning argument? I'm honestly dubious, though I'd submit that it isn't frivolous. But let's say it's wrong. What if a district court judge nonetheless accepted it, and issued a stay prohibiting American officials abroad from enforcing the order as against persons who had hitherto valid visas? Eventually, she'd probably be reversed -- something that happens to district court judges on the regular. In the meantime, perhaps some more refugees would be able to get on flights in the ensuing confusion. Some more people who we could save, would be.

Robert Cover's book Justice Accused deals with abolitionist judges tasked with enforcing the Fugitive Slave Act -- what strategies did they take? How did they manage their competing commitments to their deep moral principles and the formal legal structure they were embedded in? A similar situation was faced by consular officials during the Holocaust -- the heroes were those who kept issuing visas to Jewish refugees even when they lacked authorization from their home governments. Their victory was not that they eventually "won" in the formal legal sense; they did not persuade their superiors to adopt a different view. Their victory was that in dragging their feet a little longer, in kicking up that extra bit of dust, a few more people were saved than otherwise would have been.

The challenges being launched now might not change immigration or constitutional law to protect against Donald Trump's predations. It is worth stressing that in a democratic state, the fundamental responsibility for maintaining a just state lies with the people in their democratic capacity -- if judges cannot or will not bail us out, the wrong still primarily lies with us, not them. Judges are not cure-alls for our own democratic failures. But between now and the final decision, they still have a role to play as bureaucrats capable of doing what bureaucrats do best: dragging their feet and gumming up the works. It's not the heroism we want. But it may be the heroism we need.

The Shadow of Rule 11 Sanctions

In Arizona, the Republican attorney general has declined to appeal a district court decision striking down the state's gay marriage ban. His reason immediately jumped out at me -- he claimed there was a risk of Rule 11 sanctions (for unnecessarily delaying the conclusion of litigation), given that the 9th Circuit has already rejected identical appeals and the Supreme Court recently denied cert on the same.

This jumped out at me because I have been playing around with the idea of courts sanctioning states for defending patently unconstitutional legislation. The idea is a sort of a check against grandstanding -- it's an expressive snapback by judges against legislators who pass laws that obviously, on face, violate the Constitution.

Now, no matter what one thinks of gay marriage, that is not this case. I think gay marriage bans are unconstitutional, but not obviously so. There are perfectly reasonable, good faith arguments to the contrary. My thoughts went more along the lines of laws banning the construction of Mosques. In any event, while I agree that an appeal by Arizona would prove to be futile, I am highly doubtful that any court would have imposed sanctions on the Arizona AG for filing it. And even under the Attorney General's view, sanctions wouldn't be imposed because his legal argument was intrinsically frivolous, but because it had functionally already been resolved by the relevant courts. Is that a distinction without a difference, though? Isn't a "frivolous" argument simply one which is absolutely, positively, obviously guaranteed to lose?

The point is, regardless of whether this decision is directly on point; I've been on the eye for any indication that Rule 11 sanctions might be factor in constitutional litigation. Even if the context is different, the fact that a state Attorney General viewed such sanctions as a legitimate possibility is very interesting on its own terms.

UPDATE: "Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?" If I do write this article, Howard Wasserman just became my epigraph.

One-Liner

A Palestinian defendant -- facing deportation after being accused of covering up her convictions and subsequent prison sentences for two Jerusalem bombings -- wants her Jewish judge off the case because of his alleged ties to the "pro-Israel" community (the motion is here). While I don't doubt that the Judge is "pro-Israel" in some broad sense of the word, I say "alleged" because some of the supposed "ties" are really just connections to the Jewish community that, if we're charitable, are simply being misunderstood. The label "Builder of Israel", for example, given by the Judge's synagogue for his charitable donations to the community, is a reference to the Book of Ruth that does not necessarily reflect anything about Israel qua Israel.

In any event, we've seen arguments like this before -- a Catholic Judge asked to recuse himself due to his ties to Ave Maria College; the effort to get Judge Walker to recuse himself in the gay marriage cases. Were it up to me, I'd dispose of the motion in a single sentence:

The motion to recuse is denied. See Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F.Supp. 155 (E.D. Pa. 1974).

But I'm cheeky.

The Only Winning Move Is Not To Play

Virginia AG Ken Cuccinelli has severed the state of Virginia's connection with King & Spaulding, which has been in the news for agreeing to, then withdrawing from, representation of the House of Representatives in the DOMA litigation. K&S partner Paul Clement then resigned in protest, and the whole thing has been a massive mess for the Atlanta-firm.

The consensus is that K&S withdrew under pressure from Coca-Cola, one of its biggest clients. Virginia is not as big a money-source as Coke, but the bigger point is that there is no winning move here for a large, wide-ranging firm like K&S. Once they agreed to represent the pro-DOMA side, they were doomed no matter what they did. I agree that they had an obligation (upon entering into representation) to see it to the end, but the only true winning move would have been not to get involved in the first place.

Straight Shooting Judges

The next complaint anti-gay litigants have with respect to the Prop. 8 litigation is that presiding District Judge Vaughn Walker, as a gay man in a long-term relationship, should have recused himself from the proceedings (via). Aside from the strangely apparent concession that Walker does suffer an inequality from the current regime, I find this a little hard to parse. It's just another reprise of the old claims that Black judges shouldn't hear discrimination cases -- and Judge Higginbotham's opinion on that question remains the alpha and omega for me.

K&S Withdraws from DOMA Defense, Clement Resigns

The big gay rights news today is that the law firm King & Spaulding, which had previously signed on to defend the Defense of Marriage Act at the behest of House Republicans, has withdrawn its representation in the face of outrage by liberal and LGBT groups. A lot of folks had wondered whether K&S would face a backlash in its efforts to recruit new attorneys, as the current generation is quite hostile to homophobia and legally-sanctioned anti-gay discrimination. Former Solicitor General Paul Clement, who was to lead the DOMA defense, has resigned from K&S effective immediately, and will continue to defend DOMA at another firm (Bancroft PLLC).

While I was heartened to see that the political muscle of the pro-equality community has grown strong enough that it could provoke such a reaction, I admit some unease for K&S' decision and some sympathy for Clement's resignation. Regardless of whether K&S was correct to take this case in the first place -- and I too find it mystifying that K&S didn't see these problems a mile off -- once they agreed to do it, it's disconcerting to see them then withdraw under fire. As Clement noted in his resignation letter, "Defending unpopular positions is what lawyers do." There are lots of unpopular clients and positions out there, and they deserve representation.

Representing DOMA is kind of like representing a guy who robbed a convenience store. From an outsider's vantage point, you get him an attorney, work on the case diligently, and then hope the due process of the courts sees him convicted. Same with DOMA -- it deserves to have its day in court, and at the end of that day, it deserves to be struck down.

UPDATE: Clement is getting praise from across the legal profession, including from Clinton SG and liberal icon Seth Waxman (currently a partner at WilmerHale).

Halbertal Reflects on Goldstone

A very, very good piece by Moshe Halbertal -- professor of Philosophy at Hebrew University as well as at NYU law school -- giving his thoughts on Cast Lead and the Goldstone commission. Would that everyone approach the issue with such thoughtfulness.

At the highest level, his position is the standard one held by myself and most fair-minded progressives: that the report had severe problems shot through it, and that this fact has precisely zero bearing on Israel's obligation to fully and credibly investigate all allegations of human rights violations (including several very serious ones).

But another point the article raises in pretty stark terms is the degree to which asymmetrical warfare tactics are, in part, organized around taking advantage of the terrain of international law just as much as they are about taking advantage of topographical terrain. Halbertal's account of how Hamas militants, clad (of course) in civilian gear, did not carry arms while moving from position to position (instead relying on arms caches awaiting their arrival is a great example (I have to admit, my first thought on reading that was: "clever!"). The goal is to exploit the blind spots of the current legal regime so as to render ones opponents helpless and give your own operative impunity (in a way that nearly completely subverts the goal of the legal system it is exploiting). This is the logical extension of lawfare -- if law and legal categories are weapons, then we should expect savvy parties to manipulate their conflict so as to maximize their impact.

And this goes back to another problem with the Goldstone commission, and, I honestly suspect, with Judge Goldstone himself. Judge Goldstone, I genuinely believe, is an honest, conscientious man who really saw himself as simply applying facts to law. The problem is that international law is simply too weak at this point for the sort of staid formalism Judge Goldstone exemplifies to be effective. International law is still mostly political -- it doesn't have much existence beyond the specific political desires of actors powerful within UN institutions. This explains, at least in part, why (as Mr. Halbertal noted) Judge Goldstone was able to give so little guidance as to what sort of behavior would have been legally required out of Israel: what sort of civilian : militant death ratio is legally acceptable, what sort of precautions satisfy the obligation to protect civilian lives, and so on and so forth. The doctrine is worse than unsettled -- it is mostly applied in an ad hoc manner based on the political system's preconceptions of bad things and good things (it really doesn't get much more specific than that).

Judge Goldstone, I've often thought, is like a very judicious, public-spirited, personally fair-minded person who volunteers to be the judge at the Scottsboro trial.* The instinct is equal parts admirable, naive, and egomaniacal. Admirable, because of the belief (which I think Judge Goldstone had) that what the situation really needed was for someone who wasn't infected by the endemic prejudice to step in and be a fair arbiter. Naive, because it drastically underestimates the degree to which the prejudice infects the entire system, and thus is perfectly complimentary with formal legal categories -- Jim Crow ate up and spat out formal constitutional doctrine with a near-careless ease (it took rather dramatic changes in how we viewed American law for institutional racism to be rooted out). Egomaniacal, because of the belief that one messianic person could effectively counter an entire system simply by playing by its own rules. Formalism, no matter how judiciously applied, only works when the surrounding system is just. When that quality isn't present, following the rules will do virtually nothing, because they mean virtually nothing.

I really think Judge Goldstone was surprised and dismayed that the UNHRC completely ignored his comments on Palestinian war crimes, just as he, God bless him, continues to assert that his inquiry wasn't "judicial", despite being the only person on the planet who hasn't taken the report as a definitive pronouncement of guilt and innocence. It's because he's coloring inside the lines, and he thinks that if he is absolutely committed to dotting every i and crossing every t, then all the biases and problems and unfairness and double-standards will melt away.

Again, it is partially admirable. But it's far more naive and dangerous, and it just doesn't exhibit a handle on what world he's actually playing in. As they say, the master's tools will never dismantle the master's house. If the system is corrupted from top to bottom, even the noblest paladin won't get anywhere from the inside.

* This article actually weakened that sentiment somewhat, because it presented decisions by Judge Goldstone that seemed like conscious injections of additional bias, rather than a mere unwillingness to transcend the straitjackets of the system imposed upon him.

Kill Keller's Career

Back in February, I blogged on Judge Sharon Keller, a member of the Texas' highest criminal court. Long story short, she refused a request to keep the clerk's office open for 20 minutes to file an appeal for a death row inmate scheduled to be executed that night. The delay was required because a) the Supreme Court had the day before released a decision radically altering the legal terrain upon which the execution rested and b) a computer crash had prevented the lawyers from filing the brief earlier. But Judge Keller wanted to go home on time, so she said no.

I mentioned at the time that I was skeptical Judge Keller would face any repercussions for her outrageous conduct. But perhaps I had too little faith in the Texas system (you'll have to forgive me). The state's Commission on Judicial Conduct is holding a special hearing to address charges she committed "willful or persistent conduct that cast public discredit on the judiciary, among other things." If found guilty, she could be stripped of her status as presiding judge or removed from the court entirely.

Legal Academic Fistfight

Legal Ethics experts Bruce Green and Bill Simon have been having a bit of a spat over an article Simon wrote. Green wrote a reply that virulently attacked Simon's piece, and Simon's rejoinder included this riposte:

It is true that "there is no indication that the plaintiffs understood" my intentions only in the sense that it is true that "there is no indication" that Green is not embezzling from Fordham Law School or assisting Al Qaeda.

Yikes. Play nice, kids.

Professional Responsibility

Jack Balkin via the VC: "Legal ethics is to actual ethics as Madison, Wisconsin is to James Madison: the former is vaguely inspired by the idea of the latter."

Ladies and gentleman, my new profession!

Ethics Case

In what PrawfsBlawgger Paul Horwitz calls "Tomorrow's Legal Ethics Exam, Today," the New York Times reports on a lawyer who revealed a secret about a Virginia death penalty case that resulted in a death sentence being overturned due to prosecutorial misconduct. The lawyer was previously prohibited from revealing the information, as it would have been potentially harmful to his own client, who was a co-defendant in the case.

It's really a fascinating story. And it shows some of the absurdity of a legal system which uses the threat of death to get testimony out of defendants, then acts as if that testimony is in any way reliable.