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


Yes, Hillary Should Have Been Prosecuted

I know this is ancient history, but — I’m sorry — I just can’t let it go. When historians write the definitive, sordid histories of the 2016 election, the FBI, Hillary, emails, Russia, and Trump, there has to be a collection of chapters making the case that Hillary should have faced a jury ... Read More
Law & the Courts

Yes, There Was FBI Bias

There is much to admire in Justice Department inspector general Michael Horowitz’s highly anticipated report on the FBI’s Clinton-emails investigation. Horowitz’s 568-page analysis is comprehensive, fact-intensive, and cautious to a fault. It is also, nonetheless, an incomplete exercise — it omits half ... Read More

Let the World Have Soccer

The United States of America did not qualify for the World Cup this year. Good for us. Soccer is corrupt, hyper-regulated, impoverished by a socialist-style fondness for rationing, and organized to strangle human flourishing. It is so dependent on the whims of referees that is in effect a helpless captive of the ... Read More

Staying on the Path

Dear Reader (Including those of you who are no longer my personal lawyer), Almost 20 years ago, I wrote in this space that the movie A Simple Plan was one of the most conservative movies of the 1990s. In case you haven’t seen it, the plot is pretty straightforward, almost clichéd. It focuses on three men ... Read More

Child Separation at the Border

If you want to read a thoughtful and constructive explanation and partial defense of the policies being implemented by the White House, you should read this piece by Rich Lowry. If you want to read a trollish and counter-productive screed fit for a comment section, read the White House’s official press ... Read More
Economy & Business

Asymmetrical Capitalism

I like to think of American Airlines CEO Doug Parker as my pen pal, but, in truth, he never writes back. It’s a lopsided relationship — asymmetrical, in a word. I have for many years argued that most people would be enthusiastic about capitalism if not for their interactions with a small number of ... Read More