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Steve Shiffrin
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Facebook, along with the rest of the internet, is full of angry thoughts, lies, deceptions, things to distract us and corrupt our spirits. This is what holy scripture calls 'the world,' and it has ever been this way. I for one do not think it is qualitatively different from the various demons that have assaulted human beings from time immemorial. And if there are demons here, there are also opportunities for us to practice discipline in this wilderness, the same way Jesus did in his wilderness temptations. We do it by practicing faithful attentiveness to the beauty of God's presence with us in the wilderness. On facebook it means we can post things that sustain us, give us joy, and provide meaning. We can practice the hope that comes from letting anger alone and turning to compassion. We seek to absorb God's loving attention for us so that our faces... Continue reading
Posted Nov 30, 2018 at
Judge Jon Tigar, a federal district judge, sitting in San Francisco recently ruled that the Trump administration had to resume hearing asylum claims from immigrants regardless of where they entered the United States. In response, Trump said that the Ninth Circuit Court of Appeals, an appellate court, that handles appeals from Judge Tigar’s rulings was a lawless disgrace, and that Judge Tigar is an Obama judge. In response, Chief Justice Roberts said we do not have Obama judges, or Trump judges, Bush judges, or Clinton judges. Instead, we have “dedicated,” “independent” judges. This claim of Roberts is reminiscent of his position at his confirmation hearings that judges are like impartial umpires calling balls and strikes. In fact, judges are influenced by their background and it often makes a difference whether their politics are liberal or conservative. Judges are not just umpires and the line between law and politics is often... Continue reading
Posted Nov 21, 2018 at
I have removed a number of authors from the blog who have not posted for at least a year (by my recollection); if any of them wish to be restored, I would be happy to put their names back. At the moment, however, I do not expect them to post. If any of them wish to put up a post, but not rejoin the blog, I would be happy to make sure it gets posted. If I have kept someone who does not expect to post in the future, please let me know. Well, the authors in question are still there! I will contact typepad to inquire about the workings of the software. Continue reading
Posted Nov 16, 2018 at
John Schindler, formerly with the NSA, tweets that the Mueller data has been shared and the intelligence community has backups of Mueller's work. Laurence Tribe is arguing that the appointment of Whitaker violates the Vacancy Reform Act (assuming that Sessions was fired). Whitaker will presumably be advised that he has to recuse himself. If he refuses to do so, he runs a risk of himself being disbarred and he could ultimately be prosecuted for obstruction of justice (if he seeks to protect Trump). Meanwhile, if the Russians have been laundering money through the auspices of Trump's business interests, the New York AG will be more than willing to take civil and criminal action if Mueller cannot do so. Continue reading
Posted Nov 7, 2018 at
Donald Trump pretends to be a nationalist. But, as David Brooks remarked a few days ago, you can’t be a nationalist when you hate half the country. In fact, Donald Trump rhetorically caters to a minority of the country while playing the big con even for them since it is obviously not in their interest to be robbed of health insurance or to watch the nation’s wealth be transferred to the already rich. A country governing for the few cannot be considered great. The Republicans have long claimed to be the patriots. Democrats have let them get away with it. In part, this is because Democrats recognize a responsibility to help those beyond our borders. That recognition, however, should not be considered inconsistent with a national vision. As Robert Bellah understood, a nation needs a narrative that stands as a regulative and aspirational ideal of what the country stands for.... Continue reading
Posted Oct 28, 2018 at
For some time the Attorneys General of New York and Massachusetts have been investigating Exxon concerning misrepresentations it has made with regard to climate change. Exxon resisted discovery pursuant to these investigations on First Amendment grounds. Last week I mentioned that I was pleased to join with Free Speech for People as co-counsel in a Second Circuit Court of Appeals brief that refuted Exxon's contentions about the First Amendment. See here. We argued that Exxon had no First Amendment right to mislead consumers and investors. Today, the New York Attorney General has finally concluded its investigation and has sued Exxon in the New York Supreme Court for New York County for defrauding its investors. The complaint is detailed and persuasive. See here. Continue reading
Posted Oct 24, 2018 at
Proud to have joined as co-counsel with Free Speech for People in opposing Exxon's attempt to defend against investigations of the Attorneys General of New York and Massachusetts by resorting to the First Amendment. Exxon has no First Amendment right to mislead consumers and investors. Continue reading
Posted Oct 16, 2018 at
In her Saturday Wall Street Journal column, Peggy Noonan praises Susan Collins’s defense of now Justice Kavanaugh as the voice of reason. She notes that Collins supported nominees of Republican and Democratic Presidents. She indicts Democrats for attempting to scuttle the nomination from the start. She does not mention the behavior of the Republicans in scuttling the nomination of Merrick Garland. Nor does she mention that Collins did not support Garland. Neither Noonan nor the “voice of reason” discuss (1) the apparent perjury of Kavanaugh; (2) his open display of partisanship; or (3) his shocking shows of temper coupled with inappropriate respect for sitting Senators. Kavanaugh would properly have been disqualified for any one of these reasons. A “voice of reason” would have squarely dealt with all of the major issues, but Collins did not do that. It was far from the “master class in thoroughness” described by Noonan. Collins... Continue reading
Posted Oct 14, 2018 at
Senate Republicans are complaining about “mob rule.” You would not guess that the Republicans control the House, the Senate, the Presidency, and the Supreme Court. You would not know that the number of Republican representatives in the House vastly exceeds what they would be entitled to if majority rule prevailed. You would not realize, as Michael Tomasky observed in the New York Times that the 54 Senators who voted for Justice Gorsuch received 54 million votes while the 45 Senators who voted against him received more than 73 million votes. You would not guess that 4 of the current Justices have been appointed by Presidents who were elected despite losing the popular vote. This is not democracy, but it is no secret that the Senate is undemocratic. Nonetheless, the Framers hoped the Senate would be a deliberative body that would act in the public interest. Instead, the Senate Republicans (together... Continue reading
Posted Oct 7, 2018 at
Last week, a friend of mine argued that Kavanaugh should be confirmed because Dr. Blasey (her professional name) had remained anonymous until quite late. In this, he spied a character flaw. I observed that the issue was not whether she had a character flaw, but whether Kavanaugh had the requisite character for a Supreme Court appointment. In addition, Blasey had every right to remain anonymous. Indeed, she revealed her name only after her name was leaked to the press. The same thing happened to Anita Hill. This points to a scandal that has not received enough attention in this matter. Leaking Blasey’s name to the press when she had requested anonymity is inexcusable as it was with Hill. Who leaked her name and why? This exploitation of Blasey for whatever reason cannot be defended and members of the press should try to find out who did it. Continue reading
Posted Sep 25, 2018 at
I just finished William Connolly’s, Aspirational Fascism: The Struggle for Multifaceted Democracy Under Trumpism. Connolly is a giant in political theory and this short book is well worth reading. It offers fascinating comparisons and contrasts between the political and rhetorical appeals of Donald Trump and Adolph Hitler and important guidance for the resistance – all embedded in themes familiar to those who have generally followed the development of his theory. As he argues, it is crucial to understand the appeal of nationalist, right-wing, authoritarian politicians if resistance is to be informed. It is not enough to write off the racism, sexism, and fascist tendencies of Trump’s base (though that needs to be done). Connolly argues that a multifaceted diverse social movement has to bring in white male workers left behind who have been conned by Trump. In this respect, the book deserves to be read with Listen Liberal by Thomas... Continue reading
Posted Sep 17, 2018 at
We do not live in a democracy. If we think of a democracy as a system of representation in which the rights and interests of the People are respected, my claim seems to be unassailable. Surely, a legislature that attempts to deprive millions of people of health insurance and passes a massive tax cut in which more than 80% of the revenue goes to the top 1% reminds us that John Kenneth Galbraith was on to something when he said we have socialism for the rich and capitalism for the poor. This welfare for the rich is compounded by the unearthing of health and safety measures (including bad faith denials about climate change) and otherwise promoting a short-term, short-sighted friendly business environment opposed by and to the detriment of the People. The system is rigged against the People. The Framers were opposed to democracy. Even with elections for the Senate,... Continue reading
Posted Sep 12, 2018 at
Taryn Mattice has called my attention to Gary Wills powerful critique of the Catholic Church. It is all about the scope of the sex abuse scandal, the craven need to preserve authority, the so-called “natural law” justifications for a wide variety of unpersuasive positions on sex, and the role that the laity ought to be playing in combatting the overreaching and worse of the hierarchy. To be sure, Gary Wills is not a master of understatement. But his criticism is smart, sharp, well written, with breakouts of humor. It is well worth the read. Continue reading
Posted Aug 31, 2018 at
Jennifer Rubin reports in today's Washington Post that "Paul Manafort's lawyers rested their case without allowing their client to take the stand . . ." In an important respect, that is not true. Lawyers cannot prevent their client from testifying, and surely they did not do so here. Lawyers can advise the client not to testify, but the decision whether to testify or not is squarely within the client's authority. Paul Manafort decided not to testify. I am not suggesting this was a mistake. His chances of being convicted would surely have increased if he had. Opening himself to cross examination by a prosecutor would have been a form of legal madness. Prosecutors are not permitted to comment on a defendant's failure to take the stand, and juries are legally foreclosed from drawing an inference from that failure. Juries are ordinarily quite good about trying to follow instructions, but it... Continue reading
Posted Aug 15, 2018 at
As a member of the Legal Advisory Board of Impeach Donald Trump Now, I am pleased to announce the release of a new book The Constitution Demands It: The Case For The Impeachment of Donald Trump. Written by a trio of veteran constitutional attorneys from Free Speech For People, Ron Fein, our Legal Director; John Bonifaz, our President; and Ben Clements, our Board Chair; with a foreword by John Nichols, the national affairs correspondent for The Nation, The Constitution Demands It presents the legal and constitutional case against Trump, and provides a guide for Congress to launch impeachment proceedings. This book will be in Barnes & Noble stores and independent bookstores across the country on Tuesday, August 14. You could go to your local bookstore or go on Amazon and buy a copy (or 10!). The more books we sell in the first week, the more likely we’ll attract national... Continue reading
Posted Aug 12, 2018 at
Much of the discussion about the possible elevation of Judge Kavanaugh to the Supreme Court has centered on whether Roe v. Wade would be overturned. In fact, as Justice Blackmun emphasized in Planed Parenthood v. Casey, Roe has already been partially overturned. But the Court in Casey affirmed what it characterized as the central holding of Roe. Specifically, it recognized that states could not criminalize a women’s decision to have a pre-viability abortion, and it declared that a state could criminalize post-viability abortions except those that endangered the life or health of the mother. David Brooks has previously been sharply criticized for his views on abortion (see here.)(Brooks’s views) and and The criticisms, particularly the Planned Parenthood response, strongly suggest that Brooks's published views are disturbingly ignorant. Recently, Brooks launched an attack on Justice Kennedy for remarks made in Casey. Ironically, the remarks that drew the fire of... Continue reading
Posted Aug 6, 2018 at
Newspaper headlines indicate the Mueller wants to grant immunity to five witnesses for the Manafort trial. If you do not get beyond the headlines, this seems overly generous. In fact, no generosity is involved. Mueller is seeking to compel the testimony of the five witnesses, none of whom need testify if they invoke the Fifth Amendment – unless they are granted immunity. But there are two kinds of immunity. There is transactional immunity which would excuse them from all crimes connected with their testimony, and there is a narrower form of immunity: derivative use immunity. That is the form Mueller has applied for the court to grant. Under this form of immunity, the witness can be prosecuted for crimes connected to the testimony, and the witness can be prosecuted if the testimony is perjurious, but the testimony (or evidence procured as a result of it) cannot be used against the... Continue reading
Posted Jul 18, 2018 at
The Supreme Court in Janus overturned a 41 year old precedent permitting a state to compel non-union members of a public union bargaining unit to support the union that represents them in collective bargaining. The precedent, Abood v. Detroit Board of Education, said that non-union members of the collective bargaining unit could not be forced to support the electioneering activities of the union, but could be forced to support the collective bargaining expenses, the grievance expenses, recreational activities, and more controversially – lobbying activities. In my view, Abood was right and Janus is wrong. Citizens commonly are taxed to support ideologies to which they are opposed. Suppose Michigan decided that unions ably represented workers against corporate power and decided to tax the population to support unions. Surely, Michigan could use subsidize collective bargaining expenses and the like. It even could support lobbying expenses, given that Michigan can pay the expenses... Continue reading
Posted Jun 30, 2018 at
Justice Kennedy obviously did not want to decide the issues presented in the wedding cake case, so he took a specious way out. He argued that the Civil Rights Commission (one of 4 Colorado decisionmakers in the case) had an anti-religious purpose. To support this conclusion, he pointed to an anti-religious statement by one commissioner (of the seven on the Commission) and a number of other statements that even he conceded could be read (and, in my view, clearly should be read) to say that religious businesses had no right to discriminate against their customers. That the statement of the single Commissioner could have been a but for cause of the outcome in Colorado strains credulity to the breaking point. In addition, Justice Kennedy points to an inconsistency on the free speech issue by the Commission. Colorado had ruled that cakemakers could not be compelled to sell a cake with... Continue reading
Posted Jun 5, 2018 at
Democratic candidates for President and many other Democrats are supporting a proposal that would make the government the employer of last resort, at least in the poorest counties. This is not only humane policy; it may be good politics. Guaranteeing a job for blue collar workers that the economy has left behind together with guaranteed health insurance and education combined with an infrastructure program and serious efforts to address climate change gives the Democrats a positive program, that goes well beyond opposition to Donald Trump. It is no secret that Donald Trump appealed to white male blue collar workers and that appeal was a critical part of his success. The guaranteed jobs proposal is designed to appeal to that group and beyond. But I worry. Almost thirty years ago, Johns Hopkins’ William Connolly argued in his book Identity/Difference that liberal policies (see, e.g., affirmative action, busing, and gun control) and... Continue reading
Posted May 13, 2018 at
Donald Trump tells his base that his immigration policy is anti-Muslim, and more than 90% of the people affected by it are Muslim. The Solicitor General tells the Court that the ban is not anti-Muslim because most Muslims in the world do not fall within it. The question is whether the President gets to have it both ways. Continue reading
Posted Apr 26, 2018 at
Recently I saw a debate about hate speech at Cornell between New York law professor (and former ACLU President) Nadine Strossen and NYU law professor Jeremy Waldron. Strossen is opposed to the prohibition of hate speech because it amounts to point of view discrimination which she claimed is acceptable only in an emergency. She also maintained that hate speech statutes have been used to censor the minorities they have been intended to protect. In her recent book on hate speech, Strossen admits that libel law is an exception to the “emergency” principle. The reason is that libel causes harm and it need not be immediate harm to warrant regulation in a wide variety of circumstances. And that is precisely the point of Jeremy Waldron’s book, The Harm in Hate Speech. He argues that hate speech is a form of group libel that threatens the quality of life, the dignity, and... Continue reading
Posted Apr 24, 2018 at
According to the Washington Post this morning (see here), pursuant to a search warrant, FBI investigators seized records of Attorney Michael Cohen including communications with many of his clients, Donald Trump among them. In order to get this warrant, among other things, the FBI would have had to show that there was at least probably cause to show that Trump and Cohen conspired to commit a crime. It is not clear to me why this did not fall under the purview of Mueller’s investigation, but it is not a “witch hunt.” Continue reading
Posted Apr 10, 2018 at
Kurt T. Lash, the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond posted this eye opening post on Facebook: Next term I will teach a course entitled "Abolishing Slavery, Building Liberty: The Adoption of the Thirteenth, Fourteenth and Fifteenth Amendments." This coming Monday, I will give a lunchtime presentation for the students at Richmond Law School talking about the research which led to the creation of the course. In doing so, I will discuss three things I suspect students don't know about these three amendments: First, the Thirteenth Amendment abolishing slavery was preceded by a thirteenth amendment protecting slavery. Both “thirteenth” amendments were sent to the states for ratification. Before he supported the abolition Thirteenth Amendment, Abraham Lincoln supported the pro-slavery thirteenth amendment which would have made slavery an unamendable part of our Constitution. Second, most students have studied Section One of the Fourteenth Amendment—it requires... Continue reading
Posted Apr 8, 2018 at
One of the great questions of the day is to ask why evangelicals and conservative Catholics continue to support Donald Trump. One of the answers is abortion, and accompanying that is the view that the pro life movement favors life until a baby is born. This misses the fact that millions of pro lifers do not support Donald Trump and that the traditional Catholic view supports social justice in ways that are too often not recognized. For a strong statement of this por life view, see these eloquent remarks of Sister Joan Chittister from an interview with Bill Moyers. Thanks to Nancy De Coster for posting this interview on facebook. Continue reading
Posted Apr 2, 2018 at