As Jacob Sullum notes, my old friend Laurence Tribe seems to be arguing that the Senate’s rejection of Robert Bork was a kind of constitutional moment that weakened the merit, and not just the political viability, of certain conservative claims about the Constitution. Now obviously the Senate rejected Bork in important part because many senators, and many voters, rejected his constitutional philosophy. But the facts that people disliked Bork’s beard, that Southern Democrats smeared Bork as an atheist and socialist, and that Ted Kennedy smeared him in numerous other ways, also played a role. In trying to figure out what the Constitution means post-Bork, is an interpreter of it supposed to make a political judgment about how much his philosophy was repudiated and how much other factors came into play? If a differently-constituted Senate confirms someone who thinks very similarly to Bork but presents himself differently, have we had another constitutional moment? Or is this a judicial Brezhnev Doctrine that lets liberals keep any gain they make forever?
Is abortion a sad and unfortunate reality — regrettable, as we are sometimes told, but often necessary — or is it a breezy nothingburger, completely “normal,” and something to be giddily celebrated like a last-minute NFL touchdown? For a long time, the abortion lobby has had difficulty deciding. This ... Read More
Yesterday I wrote a piece rejecting the absurd alarmism surrounding Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court. No one will “die” if Kavanaugh is confirmed. His judicial philosophy doesn’t represent an “emergency” for the “safety” or “freedom” of the American people. If ... Read More
A fascinating series of controversies erupted this week, and they had nothing to do with Donald Trump or Robert Mueller. Business Insider ran a column defending actress Scarlett Johansson from fierce criticism for her decision to play a transgender man in a forthcoming film called Rub and Tug. The writer, ... Read More
It was a hot and difficult summer. And Europeans were pained to hear the blunt assessment that the U.S. would not be able to forever sustain NATO without greater investment on their part. The alliance was heading for “collective military irrelevance” and the current state of affairs was “unacceptable,” ... Read More
Yesterday, I looked at a case where Judge Brett Kavanaugh, on the DC Circuit, sided with a criminal defendant asserting a “battered woman syndrome” defense. Today, let’s look at an opinion that aired his skepticism about an “ever-metastasizing” tool of federal prosecutors: 18 U.S.C. § 1001, the ... Read More
Critics of Donald Trump claim that there’s no rhyme or reason to his foreign policy. But if there is a consistency, it might be called reciprocity. Trump tries to force other countries to treat the U.S. as the U.S. treats them. In “don’t tread on me” style, he also warns enemies that any aggressive act ... Read More