Bench Memos

Law & the Courts

Erwin Chemerinsky Is Beyond Parody

For most of the last year, law professor Erwin Chemerinsky was propagating the “silly” and “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on President Obama’s nomination of Merrick Garland. Never mind that back in 2005 Chemerinsky wrote a law-review article that defended the use of the filibuster to block judicial nominations, including Supreme Court nominations. Never mind that in January 2006 he urged Senate Democrats to filibuster the Alito nomination. (See cites in linked post.)

In a Los Angeles Daily News op-ed (and in a very similar piece, not available online, in the San Francisco Daily Journal, a newspaper for lawyers), Chemerinsky now calls for Senate Democrats to filibuster the Gorsuch nomination. Chemerinsky does not acknowledge, much less try to explain away, the blatant contradiction in his positions. (And, no, as I explain in the link above, Chemerinsky can’t plausibly claim that the “timely vote” to which he said Garland was constitutionally entitled was something other than a final Senate floor vote on the nomination.) He even continues to claim that Senate Republicans “stole” the seat.

What’s perhaps most telling is that Chemerinsky makes his call for a filibuster in the midst of a cartoonish attack on originalism. Is there any stronger indictment of Chemerinsky’s “living Constitution” approach than the fact that Chemerinsky’s positions on the constitutionality of the filibuster flip back and forth depending on who is president?

Most Popular

Politics & Policy

Kat Timpf Chased Out of Brooklyn Bar

Fox News personality and National Review contributor Kat Timpf was forced to leave a bar in Brooklyn over the weekend after a woman she had never met became enraged upon learning she worked in conservative media. Timpf, who has twice previously been harassed while socializing in New York City, first described ... Read More
Film & TV

The Dan Crenshaw Moment

Given the spirit of our times, things could have gone so differently. On November 3, when Saturday Night Live comic Pete Davidson mocked Texas Republican Dan Crenshaw’s eye patch, saying he looked like a “hit man in a porno movie” — then adding, “I know he lost his eye in war or whatever” — it was a ... Read More
U.S.

The Present American Revolution

The revolution of 1776 sought to turn a colony of Great Britain into a new independent republic based on constitutionally protected freedom. It succeeded with the creation of the United States. The failed revolution of 1861, by a slave-owning South declaring its independence from the Union, sought to bifurcate ... Read More
Elections

Florida’s Shame, and Ours

Conspiracy theories are bad for civic life. So are conspiracies. I wonder if there is one mentally normal adult walking these fruited plains -- even the most craven, abject, brain-dead partisan Democrat -- who believes that what has been going on in Broward County, Fla., is anything other than a brazen ... Read More
Elections

There’s No ‘Neo-Jim Crow’ in Georgia

In the overtime of the 2018 elections, the Left can’t decide whether it opposes casting doubt on election results or insists on it. In the case of the Georgia gubernatorial election, narrowly lost by African-American activist Stacey Abrams, it’s unquestionably the latter. A cottage industry has grown up ... Read More
Economy & Business

Virginia Gives Away the Store to Amazon

Amazon’s deal with the Virginia state government to put part of their new headquarters in Crystal City is now official, and the details are dribbling out. Just about all of them are bad. Begin with the otherworldly claim that “regional and local transit systems have significant unused capacity, even during ... Read More