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?

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